VESPER v. 3M COMPANY et al

Filing 161

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 12/19/16. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GEORGE VESPER,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action No.
1:15-cv-01322 (JBS/AMD)

v.
3M COMPANY, et al.,
Defendants.

OPINION

APPEARANCES:
Michael S. Noonan, Esq.
THE NOONAN LAW FIRM LLC
64 East Main Street
Freehold, NJ 07728
-andWilliam L. Kuzmin, Esq.
COHEN, PLACITELLA & ROTH, P.C.
127 Maple Avenue
Red Bank, NJ 07701
Attorneys for the Plaintiff
Michael Joseph Block, Esq.
WILBRAHAM, LAWLER & BUBA
30 Washington Avenue
Suite B3
16th Floor
Haddonfield, NJ 08033
Attorney for Defendant Buffalo Pumps, Inc.
Marc J. Wisel, Esq., and Matthew P. Kessler, Esq.
MCGIVNEY & KLUGER, P.C.
23 Vreeland Road
Suite 220
Florham Park, NJ 07932
Attorneys for Defendants DAP, Inc., and Sid Harvey
Industries, Inc.

Paul C. Johnson, Esq.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
Woodland Falls Corporate Park
200 Lake Drive East
Suite 300
Cherry Hill, NJ 08002
Attorney for Defendant Warren Pumps

SIMANDLE, Chief Judge:
This matter comes before the Court on Defendants Buffalo
Pumps, Inc.’s; DAP, Inc.’s; Sid Harvey Industries, Inc.’s; and
Warren Pumps’ respective motions for summary judgment. [Docket
Entries 107; 98; 99; 95.] On August 14, 2014, Plaintiff filed a
complaint in New Jersey Superior Court against 31 named
defendants, alleging that he was exposed to defendants’ asbestos
products at various worksites where Plaintiff worked as
machinist, pipe fitter, and electrician during the 1950s, 1960s,
and 1970s. The case was subsequently removed to this Court.
[Docket Entries 1, 58-59.]
Defendant Buffalo Pumps, Inc. (“Buffalo”), argues that
Plaintiff has failed to offer any evidence that would tend to
show that Plaintiff was exposed to asbestos as a result of any
work with or around Buffalo equipment; Buffalo avers that there
is no genuine issue of material fact as to whether Buffalo is
responsible for Plaintiff’s asbestos exposure and therefore for
his subsequent injuries and that it is therefore entitled to
summary judgment. [Docket Entry 107 at 1.] Plaintiff has not
2

filed a response to Buffalo’s motion. For the reasons discussed
below, the Court finds that Plaintiff has failed to offer
evidence showing that there is a genuine issue of material fact
as to whether exposure to any Buffalo equipment caused his
alleged asbestosis, and Buffalo’s motion for summary judgment
will be granted.
Defendant DAP, Inc. (“DAP”) argues that Plaintiff has not
produced sufficient evidence to establish that he was exposed to
asbestos as a result of working with a product manufactured by
DAP. For the reasons discussed below, the Court finds that there
is a genuine issue of material fact as to this Defendant, and
DAP’s motion for summary judgment will be denied.
Defendant Sid Harvey Industries, Inc. (“Sid Harvey”) argues
that Plaintiff has failed to proffer evidence sufficient to
establish a genuine issue of material fact that he was exposed
to asbestos due to any product or equipment manufactured,
distributed, or sold by Sid Harvey. For the reasons discussed
below, the Court finds that Plaintiff has failed to offer
evidence showing that there is a genuine issue of material fact
as to whether any product made, supplied or distributed by this
Defendant exposed Plaintiff to asbestos; Sid Harvey’s motion for
summary judgment will be granted.

3

Defendant Warren Pumps (“Warren”) argues that Plaintiff has
failed to present sufficient evidence to allow a reasonable
finder of fact to conclude that Plaintiff was exposed to
asbestos attributable to Warren, or that such exposure was a
proximate cause of his alleged injury. For the reasons discussed
below, the Court finds that there is a genuine issue of material
fact as to this Defendant, and Warren’s motion for summary
judgment will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND
The instant action arises out of Plaintiff George Vesper’s
alleged exposure to asbestos from a variety of products mined,
milled, manufactured, sold, supplied, purchased, marketed,
installed and/or removed by various corporations, including
Defendants Buffalo, DAP, Sid Harvey, and Warren. [Compl., Docket
Item 1-2, ¶¶ 1–6.] Plaintiff filed the Complaint in New Jersey
Superior Court, Middlesex County, on August 14, 2014, naming 31
defendants.1 (Id.)

1

Plaintiff named as defendants 3M Company; Alcatel-Lucent, USA,
Inc.; American Premier Underwriters, Inc.; Bayer Cropscience,
Inc.; Borg Warner Corporation; Buffalo Pumps, Inc.; CBS
Corporation; Certaineed Corporation; Coltec Industries;
Consolidated Rail Corporation, Inc.; Copes-Vulcan, Inc.; Crane
Pumps & Systems, Inc.; DAP Inc.; Durametallic Corporation; Duro
Dyne Corporation; Fairbanks Morse Engine and Enpro Industries,
Inc.; Foster Wheeler, LLC; General Electric Company; Georgia4

In the Complaint, Plaintiff alleged that he worked as a
machinist, pipe fitter and electrician during the 1950s, 1960s,
and 1970s, and was exposed to and came in contact with asbestos
products “at various worksites including The New York Ship
Building Company [in Camden, New Jersey], the Rail Yards of the
Pennsylvania Railroad located in New Jersey as well as other
sites throughout the State of New Jersey during the 1950’s,
1960’s, and 1970’s.” (Compl. ¶ 1.) Plaintiff alleged that he was
also exposed to asbestos as a result of doing home renovations
and improvements (via asbestos shingles and other products) and
working in the automotive industry (via brakes and clutches).
(Complaint ¶ 2 and Docket Entry 95-5 at I.6.) Plaintiff alleged
that Defendants manufactured or supplied the asbestos-containing
products to which he was exposed, and that he developed
asbestosis in 2013 as a result of the exposure. (Complaint ¶ 4.)
On February 3, 2015, Plaintiff served Defendants with a
copy of their Answers to Standard Interrogatories. [Pl.
Interrog. Resp., Docket Entry 95-5.] In response to a question
concerning his on-the-job exposure to asbestos, Plaintiff wrote,

Pacific, LLC; Gould Pumps, Inc.; Honeywell International Inc.;
IMO Industries Inc.; Ingersoll-Rand Company; Marley Wylain
Company; Motion Control Industries; Notte Safety Appliance
Company; Owens-Illinois, Inc.; Sid Harvey Industries, Inc.;
Union Carbide Corporation; Warren Pumps; and Weil-McLain
Company. (See Complaint [Docket Item 1-2], at 1-3.)
5

I believe I was exposed to asbestos from the 1950’s to
1970’s at the following worksites:
New York Ship Building Company – Camden, NJ

USS Savannah

USS Kitty Hawk

USS Bonefish

USS Little Rock
Pennsylvania Railroad – Camden, NJ
(Id. I.6.) Vesper worked at New York Ship Building from
approximately 1958 to 1961. [Pl. Dep., Docket Entry 114-1, 18789.] Vesper also stated his belief that he was exposed to
asbestos-containing products in the form of Buffalo pumps, DAP
joint compound and caulk, Sid Harvey furnace cement and other
“asbestos products” supplied or distributed by Sid Harvey, and
Warren pumps. [Pl. Interrog. Resp. I.6.]

A. Buffalo
Vesper was deposed as a part of this case on February 10,
11 and 12, 2015. [Docket Item 107, Exs. 1-3 (“Pl. Dep.”).]
Vesper testified that during the period of time when he worked
as a machinist helper on the USS Kitty Hawk, other workers were
installing “pumps” associated with the ship’s propulsion system
(upon which Vesper worked directly); those pumps and their
associated plumbing were “being surrounded by asbestos” while
Vesper was working in the same environment. [Pl. Dep. 218:11221:19.] When Vesper was asked whether he knew the brand, trade

6

or manufacturer’s name of the pumps that he saw other men
hammering the asbestos-containing gasket onto in the engine room
of the USS Kitty Hawk, Vesper replied, “I’m sure some of them
were Crane”; he did not name any additional manufacturer and
then stated that he did not believe he was exposed to asbestos
“in any other way while [he] was working in the engine room of
the Kitty Hawk on mounting of the main propulsion system.” [Id.
at 229:2-25.] Although asked about manufacturers and brand names
he believed or remembered to be potentially associated with his
exposure to asbestos at New York Ship Building and naming five
such manufacturers, Vesper did not mention Buffalo, DAP, Sid
Harvey, or Warren at that time. [Id. at 377:2-381:24.]
At his deposition on February 11, 2015, Vesper described
how he may have been exposed to asbestos while working as a
sheet metal worker for Pennsylvania Railroad, saying that as he
worked with the hot water and cooling systems on locomotives, he
would have to remove asbestos insulation from that equipment in
order to perform the work on it. [Id. at 426:16-428:1.] In
addition, Vesper believed he would have been exposed to asbestos
while doing plumbing and piping repairs on locomotives as a
result of close proximity to another machinist replacing brake
shoes and other brake system components (which contained
asbestos) at the same time. He could not recall any additional

7

ways he would have been exposed to asbestos as a sheet metal
worker at the Pennsylvania Railroad; nor could he recall brand,
trade, or manufacturer names for any of the asbestos-containing
materials to which he would have been exposed. [Id. at 428:2-21;
427:8-12.] Vesper also stated that he could have been exposed to
asbestos while working as an electrician for the railroad due to
being in close proximity to machinists replacing asbestoscontaining brake shoes while he performed electrician duties.
[Id. at 393:4-396:1.]
On February 12, Vesper was asked directly by counsel for
Buffalo:
Q: Do you associate the name, Buffalo, with any type
of equipment that you would have worked on during your
career.
A: My recollection just brings into mind either pumps
or valves or something of that nature.
. . .
I’m reasonably certain that it’s associated with one
of those two objects, but I’m not exactly certain
which.
Q: Where were you working when you would have
encountered either a Buffalo pump or valve?
A: The two most likely places either would have been
either the New York Shipyard or the railroad.
[Id. at 792:18-793:10.] Defense counsel asked Vesper:
Q: Is it fair to say that you have no personal
recollection of performing any work on a Buffalo pump
or valve?
8

A: I’m a little vague on how to answer that question
because, I mean, I can’t remember picking this cup and
saying it said Buffalo on it. I know I’ve had Buffalo
in my hands. I know I’ve been around Buffalo equipment
and stuff. It’s just I can’t say, specifically, that I
picked up things and said, oh, this is Buffalo pump
from Buffalo valve and put it in. I’d be lying.
...
Q: Okay. Is it fair to say, sir, that as you sit here
today under oath, that you cannot offer any testimony
that you were exposed to asbestos from a Buffalo pump
or valve?
MR. NOONAN: Objection.
A: Not that I am aware of.
Q: Okay. You’re not able to tell me any of the ships
where you worked aboard, whether there was [sic] any
Buffalo pumps or valves on those ships?
A: No.
[Id. at 793:14-794:18.] Upon questioning from his attorney,
Vesper later stated that he had “a general recollection” of
working with Buffalo pumps, “which [was] a little on the vague
side, but I know I definitely used them, and I know I handled
them.” Vesper concluded: “I’m gonna think about it and remember
it.” [Id. at 960:25-961:4.]

B. DAP
At his deposition, Vesper testified about his use of DAP
products, primarily at home improvement projects on two

9

residential properties in the mid-1970s (namely, one home and
one townhouse). [Docket Entry 98-5, Pl. Dep. 450:12-464:12;
Docket Entry 110-3, Pl. Dep. 452-464 and 658-669.) Vesper
testified on February 12 as follows:
Q: If I understood your testimony correctly, you used
DAP caulk; is that correct?
A: DAP caulk and DAP spackling. I think it was more
than – I see it as a spackling, what we called mud
type of product, also.
Q: How did it come packaged?
A: My recollection is that it was in – I used DAP in
tubes for something, and I also used DAP in a
container.
[Pl. Dep. 658:19-659:4.] Vesper had previously testified
that he believed he had been exposed to asbestos at 47 Potter
Lane (one of the properties) while doing sheetrock repair:
“taping [the new sheetrock panels] with what they call spackling
or mud, sanding them smooth and repainting.” [Id. at 452:2-4.]
Vesper continued: “I am sure that I was using a product which is
called DAP. It’s a compound. . . . [A]t that point I was a
little bit new at that kind of stuff, so I actually read the
label, and . . . I noticed that the contents label said that it
had asbestos in it.” [Id. at 452:12-23.] Vesper testified that
he believed he reused the same “mud or spackling compound” at
the Rittenhouse Square property and stated: “It was probably
left over from the first process [at 47 Potter Lane]. You don’t
10

throw it away, it’s in an airtight kind of container. You can
seal it and reuse it.” [Id. at 462:2-15.] Vesper also described
replacing damaged asbestos shingles and using asbestoscontaining roofing cement for roofing repairs, but did not
associate DAP products with that work. [Id. at 454:14-456:12.]
On February 12, Vesper went into greater detail about the
two DAP products he recalled using. He described one as a “tube
of caulk,” possibly “one of those little squeeze tubes” rather
than a three-inch-diameter, foot-long tube, containing a “white”
“liquid material or gooky material.” [Id. at 661:8-22.] In
contrast, he described a second material in a “container” or
“can” approximately “three, four inches around and maybe four,
five inches high,” comprising “a pint or a quart” of a “grayishwhite” product that was “more like a mud . . . [y]ou know,
putty” rather than a “gooky” material. [Id. at 661:4; 662:16663:13.] Vesper clarified that he would not describe it as
gritty, but that “it was supplied with a putty knife and you
sand it.” [Id. at 662:12-16.] Vesper described using both
materials to perform sheetrock and drywall repairs. [Id. at 664669.] Vesper also affirmed in an affidavit executed on March 23,
2016 that he used two different DAP products, caulk in a tube
and compound in a can, for home renovations and improvements on
a regular and frequent basis, thereby exposing himself to dust

11

from those products when sanding them before applying another
coat. [Docket Entry 110-3 at 3-4, ¶¶ 6-8.] To the best of
Vesper’s recollection, he performed these renovations at 47
Potter Lane in “the mid-1970s” and at Rittenhouse Square, which
Vesper purchased in or around 1975. [Pl. Dep. 453:8-15; 463:7.]
Vesper also testified that he believed he probably used DAP
products on other occasions, but did not recall which specific
places or occasions: “I just did so much of that type of work
and repairs and stuff, I just don’t remember where I used them.”
[Id. at 669:10-12.] (Emphasis added.)
DAP submits the affidavit of Ward Treat (an employee who
held titles of Senior Chemist, Assistant Quality Control
Manager, and Technical Support Specialist at DAP from 1973 to
1990) to show that it has manufactured a spackle product, but
that the spackle product does not and has never contained
asbestos. [Docket Entry 98-6 ¶¶ 2-5.] DAP submits another
affidavit executed by Mr. Treat to establish that DAP did not
manufacture a joint compound prior to 1978; and that DAP
manufactured a premixed spackle compound, which never contained
asbestos. [Docket Entry 98-7 ¶¶ 8-10.] DAP also affirmed in its
interrogatory responses that it
manufactured and sold products that did not contain
asbestos, such as its spackling and some of its
caulking products. [DAP] also manufactured some
products that contained limited amounts of
12

encapsulated chrysotile asbestos. [DAP] denies that
chrysotile asbestos fibers constitute a substantial
factor contributing to a plaintiff’s risk of
developing cancer. Any of [DAP’s] caulking products
which may have contained chrysotile asbestos were wet
and gooey formulations thereby making the asbestos
fibers non-respirable. . . . [DAP] did not recommend
sanding of these products because if sanded, they
would ball up and become gummy. [DAP] ceased the
manufacture and sale of all asbestos-containing
products by the end of 1978.
[Docket Entry 98-8 at 17, ¶ B.46.] Mr. Treat previously
testified at a deposition in a different case on January
13, 2010, that there was a time, beginning in approximately
1973, “when a decision was made [at DAP] to take asbestos
out of the caulks and putty.” [Docket Entry 110-6 at 7.]
Plaintiff has also submitted formula cards, specifications
and information for DAP caulking compound (i.e., caulk),
showing the presence of asbestos. [Docket Entries 110-4 &
110-5.]

C. Sid Harvey
In his interrogatory answers, Plaintiff identified Sid
Harvey as the supplier and/or distributor of asbestos products,
and specifically named Sid Harvey furnace cement as an asbestoscontaining product to which he was exposed. [Pl. Interrog. Resp.
¶ I.6.] At his deposition, Vesper testified that he associated
the name Sid Harvey with “[s]ome type of cement. I say Sid

13

Harvey and I remember cement and I remember handling it and I
remember applying somewhere” but could not provide further
details beyond that he remembered using it in the 1970s.
Plaintiff could not remember the color, texture, or packaging of
the cement; where he may have gotten it; where he may have used
it; or whether the Sid Harvey cement he remembered using did or
did not contain any asbestos. [Pl. Dep., Docket Entry 124-1,
671:24-674:16.] Plaintiff only associated the cement and no
other products with the name Sid Harvey. [Id. at 674:14-16.]
In its interrogatory responses, Sid Harvey stated only that
it “was a wholesale supply house for heating and airconditioning parts”; that it “carried a very small number of
products which may have contained asbestos and which comprised a
minute portion of its total product line and sales”; and that it
“was never in the business of mining, producing, or
manufacturing any asbestos-containing products.” [Docket Entry
124-2, ¶¶ 9 and 1.] Neither Sid Harvey nor Plaintiff has
identified any of the products Sid Harvey carried which
contained asbestos.

D. Warren
Vesper’s claims against Warren relate to Vesper’s work at
New York Ship Building Company. At his deposition, Vesper

14

described what he believed to be his exposure to asbestos while
working as a machinist for New York Ship Building. Vesper stated
that he believed he had been exposed to asbestos due to working
in close proximity to others installing asbestos-containing
materials in the context of pumps, piping, and the main
propulsion system of the ship [Docket Entry 114-1, Pl. Dep.
222:11-223:20] and due to work being done on piping associated
with already-installed pumps [id. at 223:24-224:17]. Vesper also
described the installation of valves associated with the pumps;
he stated that machinists (like himself) would install and mount
the pump and make a gasket for the valve of the pump using
asbestos cloth. [Id. at 225:9-227:14.] He was also exposed to
asbestos by other workers hammering on the asbestos cloth
gaskets in close proximity to him in the process of mounting
valves: “The valves were handing. They’re hammering [the
asbestos cloth gaskets] right over your head or right alongside
of you at the same time.” [Id. at 228:5-19.]
Vesper testified that he personally manufactured an
asbestos gasket for a transfer pump on the USS Kitty Hawk [id.
at 231:7-232:10], personally “did a significant amount of . . .
gasket work” on the USS Little Rock [id. at 957:5-9], personally
made asbestos cloth gaskets for valves in the containment vessel
reactor for the USS Savannah [id. at 278:23-279:12], and

15

personally made asbestos cloth gaskets for valves in the engine
room and containment vessel of the Savannah [id. at 281:15282:12]. Vesper was also exposed to asbestos in the Savannah’s
engine room by other workers applying asbestos-containing
material to plumbing and piping. [Id. at 282:4-5; 282:20-283:5.]
Vesper described installing valves on a Shell Oil tanker; his
testimony was ambiguous as to whether he was exposed to asbestos
during that job. [Id. at 354:22-356:9.]
Vesper testified that “the manufacturer of the pumps that
[he] worked on required as asbestos gasket to be used” and that
the pumps would “probably” not function “without the asbestos
gaskets”. [Id. at 956:14-957:4.] Vesper also testified that he
personally worked with Warren pumps at New York Ship and made
gaskets for them, which created dust that Vesper inhaled.
Warren’s counsel, Timothy Rau, asked Vesper whether Vesper
could recall any specific ship upon which he “would have seen a
Warren pump” and Vesper could not; nor could he state where,
when, or how many times he would have seen a Warren pump. [Id.
at 993:6-994:10.] Rau asked Vesper:
Q: Okay. I think you told your counsel that you
recalled making gaskets for use on a Warren pump; is
that true?
A: In my mind, I’m saying yes, because almost 99
percent of the time I made gaskets. If I did a pump or
I did a flange, I made a gasket.
. . .

16

I recall installing Warren pumps. I remember the name,
Warren, being written on them, and I remember making
gaskets. So I’m going to have to say yes to that.
Q: Sit here and say that you specifically recall doing
that on a Warren pump, is that something that you can
or cannot do?
A: Yes, I think, yes.
Q: Are you able to say how many times you would have
made a gasket on a Warren pump?
A: I have no clue.
[Id. at 994:11-995:11.]
Plaintiff also submitted a medical report dated March 8,
2016, prepared by Dr. Stephen L. Newman, M.D., who concluded to
a reasonable degree of medical certainty that “Mr. George Vesper
developed asbestos induced pleural disease because of his
cumulative occupational exposure to asbestos dust[,]” including
his work “at New York Shipbuilding [sic] as a machinist helper”
near “asbestos insulated . . . rooms” and “a variety of asbestos
equipment such as gaskets, asbestos cloth, [and] asbestos
insulation[.]” [Docket Entry 114-4 at 2.]
In earlier, unrelated proceedings, Warren’s corporate
representative, Roland Doktor, testified that Warren has
manufactured pumps that included “asbestos-containing
components” (including “asbestos thermal insulation,” “asbestoscontaining gaskets,” and “asbestos-containing packing”).
[Doktor’s Dep., Docket Entry 114-10, 10:5-14:9.] Doktor also
testified that a condenser circulating pump, later installed on
the naval ship USS Willis A. Lee, included asbestos components,
17

namely, a gasket and asbestos packing. [Id. at 229:1-19.] Doktor
testified at a different deposition that condenser circulating
pumps, made by Warren, were delivered to New York Ship Building
for installation in the USS Kitty Hawk sometime after February
17, 1958. [Doktor’s Second Dep., Docket Entry 114-14, 10:1111:21.] Doktor also testified that on “list[s] of materials” on
technical drawings of a Warren condenser circulating pump,
asbestos sheet gaskets, asbestos sheets, and asbestos packing
were listed as component parts. [Id. at 14:15-20:8.] He also
testified that the main condenser circulating pump would
normally be located in the engine room of the ship. [Id. at
21:20-22:4.]
Doktor identified two different pumps, one described as a
“distilling unit” and one as a “bilge and fuel oil tank
stripping pump,” both of which also contained asbestoscontaining components per their “list[s] of materials,” and were
also shipped to the USS Kitty Hawk from Warren. [Id. at 38:1341:25; 46:3-47:4.] Doktor testified that it was his
understanding that certain repairs or maintenance on Warren
pumps would have required someone to “potentially replace the
gaskets” or to “reseal [a joint] with a gasket[.]” [Id. at 44:745:2.]

18

Doktor discussed another pump, depicted in “Drawing BS52021” which included on one side of the drawing the statement
“under ‘General Notes,’ 15, ‘Insulation and lagging to be
provided by shipbuilder,’” and on the other side of the
document, the description of “insulating material of ’85 percent
magnesia, smoothed and pointed with . . . plastic[,]’ [meaning]
85 percent magnesia, 15 percent asbestos insulation[.]” [Id. at
49:3; 55:1-15.] When asked directly whether “these
specifications seem to be calling for asbestos insulation” or
whether “Warren Pumps require[d] asbestos insulation for this
pump[,]” Doktor replied that “the pump is built to a military
specification, and the specification indicates those parts and
those components that go into making up the pump.” [Id. at 56:112.] Doktor described an asbestos-containing insulating ring and
insulating material for the same pump “which would be installed
by [workers at] the shipyard.” [Id. at 54:2-6.]

II.

STANDARD OF REVIEW
At summary judgment, the moving party bears the initial

burden of demonstrating that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
19

motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for
summary judgment, the court is required to examine the evidence
in light most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Hunt v. Cromartie,
526 U.S. 541, 552 (1999); Wishkin v. Potter, 476 F.3d 180, 184
(3d Cir. 2007). Credibility determinations are not appropriate
for the court to make at the summary judgment stage. Davis v.
Portlines Transportes Maritime Internacional, 16 F.3d 532, 536
n.3 (3d Cir. 1994).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “‘need not match, item for item, each piece of
evidence proffered by the movant,’” but must simply present more
than a “mere scintilla” of evidence on which a jury could
reasonably find for the non-moving party. Boyle v. Cnty. of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998)
(quoting Anderson, 477 U.S. at 252).
III. ANALYSIS
20

A. Buffalo
Buffalo argues that Plaintiff has not offered evidence
sufficient to allow a reasonable finder of fact to conclude that
Plaintiff was exposed to asbestos as a result of work performed
on, around, or near any of Buffalo’s pumps, components, or other
products. The Court agrees.
The factual record for purposes of Buffalo’s motion is
undisputed. [Docket Item 107 at 2-4.] Because Plaintiff has
filed no opposition, the Court deems the facts set forth by
Defendant undisputed for purposes of the pending summary
judgment motion.2 See L. CIV. R. 56.1(a).
A threshold question concerns the applicability of
substantive maritime law as opposed to New Jersey law. Buffalo
argues that, to the extent Plaintiff alleges that his work with
or near Buffalo products occurred while working on U.S. naval
ships at the New York Ship Building Company, maritime law
applies to Plaintiff’s claims. [Docket Entry 107 at 5-8.] The
Court need not reach this issue, as Plaintiff has not presented
sufficient evidence to allow a reasonable finder of fact to
conclude that Plaintiff was exposed to asbestos attributable to

2

 Plaintiff has not filed any opposition to these motions.

Plaintiff’s deadline to file oppositions to the three motions
expired on March 29, 2016. Despite filing no opposition,
Plaintiff has, through counsel, actively participated in this
litigation since the opposition deadline. [See Docket Item 124.] 
21

Buffalo, which is a required element of Plaintiff’s prima facie
case under either maritime law or New Jersey law.
Plaintiff was asked at his deposition with what objects he
associated the name “Buffalo” and answered, “[E]ither pumps or
valves or something of that nature.” [Pl. Dep. 792:18-23.]
Although Vesper stated that he “know[s] [he’s] had Buffalo in
[his] hands . . . [and has] been around Buffalo equipment and
stuff” (a statement the Court credits), he ultimately could not
say whether any Buffalo pumps or valves were aboard any ship
upon which he worked, nor could he offer any testimony “that [he
was] exposed to asbestos from a Buffalo pump or valve[.]” [Id.
at 793:22-794:18.] Plaintiff has not offered any additional
evidence regarding Buffalo pumps, whether or how Plaintiff might
have been exposed to them, and how they might have related to
any asbestos exposure he suffered.
Given that testimony and the absence of any additional
evidence or testimony (including any evidence that Buffalo pumps
or valves did indeed contain asbestos or require asbestoscontaining components) which would allow a reasonable finder of
fact to conclude that Plaintiff was exposed to asbestos
attributable to Buffalo, the Court finds that based on the
undisputed facts in the record, summary judgment is warranted
for the defendants.

22

B. DAP
DAP argues that summary judgment should be granted in its
favor because Plaintiff has failed to present sufficient
evidence showing that he was exposed to asbestos in a DAP
product. The Court disagrees.
Under New Jersey asbestos law, a plaintiff must provide
sufficient direct or circumstantial evidence that allows an
inference that the plaintiff was “exposed to a defendant’s
friable asbestos frequently and on a regular basis, while [he or
she was] in close proximity to it (balancing these factors)[.]”
Sholtis v. American Cyanamid Co., 568 A.2d 1196, 1208 (N.J. App.
Div. 1989). New Jersey courts have noted that the “frequency,
regularity and proximity test” “is not a rigid test with an
absolute threshold level necessary to support a jury verdict.”
James v. Bessemer Processing Co., Inc., 714 A.2d 898, 910 (1998)
(citing Tragaz v. Keene Corp., 980 F.2d 411, 420 (7th Cir.
1992)). New Jersey courts have on occasion applied a more
relaxed standard, with regard to the particular factual
circumstances of the case: “[T]he amount of evidence needed to
establish the regularity and frequency of exposure will differ
from case to case. For example, none of the plaintiffs in this
case were diagnosed with mesothelioma, an asbestos-related

23

disease which is caused after only minor exposure to asbestos
dust.” Kurak v. A.P. Green Refractories Co., 689 A.2d 757, 76566 (N.J. App. Div. 1997) (quoting Wehmeier v. UNR Industries,
Inc., 572 N.E.2d 320, 337 (Ill. App. Ct. 4th Dist. 1991)).
New Jersey courts have found proximate cause and product
identification in cases where a plaintiff “placed himself in
close proximity in relatively small rooms to asbestos-containing
products . . . which were friable,” although the plaintiff did
not “testify that he often found himself covered with dust.”
Kurak, supra, 298 N.J. Super. at 321. See also Dafler v. Raymark
Industries, Inc., 611 A.2d 136, 148 (N.J. Super. Ct. App. Div.
1992) (upholding liability in a case filed by shipyard worker at
New York Ship Yard and finding sufficient proof to allow
inferences of “frequency, regularity and proximity”); Goss v.
American Cyanamid Co., 650 A.2d 1001, 1006 (N.J. App. Div. 1994)
(finding product identification and proximate causation where,
among other potential exposures, plaintiffs “were exposed to
asbestos indirectly while their co-workers installed the
asbestos-containing insulation”); Rotondo v. Keene Corp., 956
F.2d 436, 441 (3d Cir. 1992) (finding proximity, regularity, and
frequency of asbestos exposure to plaintiff who worked in a
boiler room where others were covering pipes with defendant’s
asbestos-containing pipecovering).

24

DAP argues in its motion that Vesper failed to present
evidence that he “was exposed to asbestos-containing products
manufactured, sold, supplied, and/or attributable to DAP, Inc.
k/n/a La Mirada Products, Co., Inc.” or “that he was exposed to
such friable asbestos-containing products on a regular and
frequent basis and that he worked in close proximity to such
products[.]” [Docket Entry 98-1 at 7-8.] Specifically, DAP
states that although Vesper identified DAP as the maker or
supplier of an asbestos-containing “[c]aulking, [c]ement,
[and/or j]oint-[c]ompound [p]roduct” in his responses to
interrogatories, Vesper in fact testified that he
identified working with a DAP joint compound and a Dap
spackle. . . . When asked if the product was a caulk,
he testified that it was a spackle. . . . In fact,
through Mr. Vesper’s description, it is clear that he
is using the product as a spackle of joint compound
would be used in association with his sheetrock work.
[Id. at 5.] DAP continues that its spackles does not and has
never contained asbestos, and that it did not manufacture a
joint compound before 1978 (when it ceased manufacturing and
selling products which contained asbestos). [Id.] The crux of
DAP’s argument is this allegation: “Mr. Vesper testified that he
used a DAP . . . product, which he specifically identified as a
spackle or compound, even when asked if the product was a
caulk.” [Docket Entry 98-1 at 14.] The Court does not agree that
this accurately restates Vesper’s testimony.
25

For this assertion, DAP appears to be pointing to the
following exchange in Plaintiff’s deposition:
Q: If I understood your testimony correctly, you
used DAP caulk; is that correct?
A: DAP caulk and DAP spackling. I think it was
more than – I see it as a spackling, what we
called mud type of product, also.
[Docket 110-3, Pl. Dep. 658:19-25.]3 The exchange continues,
immediately thereafter:
Q: How did it come packaged?
A: My recollection is that it was in – I used DAP
in tubes for something, and I also used DAP in a
container.
[Id. at 659:1-4.] Later, Vesper was asked, “For that job,
would you have used one tube of the caulk and one container?”
and replied, “Yes.” [Id. at 661:2-5.]
Plaintiff in his Response stated that he had indeed
identified using two DAP products, at least one of which was a
“caulk.” [Docket Entry 110 at 2.] Vesper also stated in his
sworn affidavit of March 23, 2016 that he used those two DAP
products on a regular and frequent basis and that he “would be
exposed to dust from these products when [he] needed to sand
them so [he] could apply a new coat.” [Docket Entry 110-4 at 4.]

3

Although DAP cites precisely to this exchange in its brief
[Docket Entry 98-1 at 10], this exchange was not attached as an
exhibit to its motion.
26

He continued: “Had I been asked about the frequency of my use of
these products during the course of my deposition, I would have
testified accordingly.” [Id.] In reply, DAP asks the Court to
apply the “sham affidavit doctrine” and disregard this
purportedly-new allegation, because the testimony (which DAP
characterized as “contradict[ing Vesper’s] prior deposition
testimony”) at Vesper’s deposition established that Vesper
stated “as to the product he used, ‘I see it as a spackling.’”
[Docket Entry 126 at 2.]
Vesper’s testimony at his deposition clearly indicates that
he used not one, but two products, both of which he stated were
made by DAP. He identified one as a “caulk,” described its
packaging in a tube, and described using it in a caulking gun.
The other, he described as coming in a container and stated: “I
think it was more than – I see it as a spackling, what we called
mud type of product.” This phrase—“I see it as a spackling”—is
most properly read to modify the second clause of the
conjunctive statement, “DAP caulk and DAP spackling,” which
Vesper gave as a response to the question, “[Y]ou used DAP
caulk; is that correct?”
As DAP aptly states in its reply:
This distinction [between caulk and spackle] is of no
small moment, and there is a clear distinction between
a caulk, used in seams for doors and/or windows, and a

27

spackle, used to patch holes in an uneven surface,
typically wallboard.

[Id.] However, the Court does not agree that Vesper “was
specifically asked if the product was a caulk and he instead
stated that the product was a spackle.” [Id.] Moreover, Vesper
described using two different DAP products, one of which was
described repeatedly as caulk, in two different ways as part of
doing sheetrock repair within the two residences. [Pl. Dep.
659:2-669:12.] Plaintiff has presented evidence that DAP’s
caulk, at or around the relevant time period, contained
asbestos. [Docket Entries 110-4 and 110-5.] He testified that,
as part of doing sheetrock repairs using DAP products, he would
sand the surface onto which he had applied both DAP products.
[Pl. Dep. 665:17-22.] This process is the means by which
Plaintiff alleges that he was exposed to friable asbestos
attributable to DAP sufficient to establish DAP’s liability, and
the Court finds that he has presented enough evidence to allow a
reasonable finder of fact to so find, by a preponderance of the
evidence.
Although DAP stated in its interrogatory responses that
“[a]ny of [its] products that contained encapsulated chrysotile
asbestos were premixed, wet and gooey formulations thereby
making the asbestos fibers non-respirable[,]” it also stated

28

that “any alleged hazard is the subject matter of this
litigation.” (Docket Entry 98-8, DAP Interrog. Resp. B.14 and
B.23.) The Court likewise agrees that, at this stage of the
proceedings, summary judgment cannot be granted on this ground
as it is the subject matter of this litigation and an
appropriate question for the finder of fact.
DAP is free to argue in due course that the evidence does
not establish by a preponderance that Plaintiff was actually
exposed to friable asbestos attributable to it; that Plaintiff
did not use caulk; that what he remembered as caulk was a
different product; that caulk is or was not suitable for use in
the way Vesper described; or that its caulk would not behave in
the way he described; or any other appropriate arguments it
believes are inferable from the factual record as it develops.
However, it is not the role of a court assessing a motion for
summary judgment to arrive at these types of credibility or
factual determinations; any such conclusions would be for the
finder of fact. On the evidence presented, a reasonable finder
of fact could determine that Plaintiff was sufficiently exposed
to asbestos attributable to DAP, and for that reason, the Court
will deny DAP’s motion for summary judgment.

C. Sid Harvey

29

Sid Harvey argues that Plaintiff has failed to produce
evidence tending to show that he was exposed to asbestos due to
contact with an asbestos-containing product made, sold,
distributed, or otherwise attributable to Sid Harvey. The Court
agrees.
A plaintiff must show that he was injured by a specific
product, manufactured, sold, distributed, or otherwise
attributable to a specific manufacturer or other party in order
to make out a prima facie case in a product liability action
against that party. NOPCO Chemical Div. v. Blaw-Knox Co., 59
N.J. 274, 284 (1971). Here, Plaintiff must provide evidence
sufficient to raise a genuine issue of material fact that he
was, or likely was, exposed to asbestos as a result of his use
of or proximity to a product made, distributed, or provided by
Sid Harvey.
Plaintiff’s only evidence regarding Sid Harvey arises from
1) his bare-bones and conclusory answers in his interrogatory
responses that he was exposed to asbestos through Sid Harvey
furnace cement and/or other “asbestos products” it supplied or
distributed; and 2) his statement at his deposition that he
associates Sid Harvey with a cement of unknown type that he
remembers using in the 1970s. Plaintiff stated that he did not
know whether the cement he remembered contained asbestos; nor

30

has Plaintiff produced or pointed to any other evidence in the
record that the cement Plaintiff used (or any cement Plaintiff
was likely to have used) either did or likely would have
contained asbestos. While Sid Harvey’s responses to
interrogatories were themselves bare-bones, the sum of the
evidentiary record would not allow a reasonable finder of fact
to conclude that Vesper was exposed to asbestos via a Sid Harvey
product. Plaintiff argues that a “material such as furnace
cement is clearly a product which would have been within the
purview of” Sid Harvey, which “sold materials related to heating
and air conditioning.” [Docket Entry 124 at 4.] While this is
so, this does not tend to establish that the cement Vesper
recalled using or the furnace cement he cited in his
interrogatory responses contained asbestos.
To find that Sid Harvey products exposed Plaintiff to
asbestos, or that there is a genuine dispute of material fact as
to this point, would be to speculate beyond what evidence is
contained in the record. Because of this, the Court will grant
summary judgment to Sid Harvey.

D. Warren
Warren argues that Plaintiff has not produced sufficient
evidence tending to show a genuine dispute of material fact that
31

Plaintiff was exposed to any asbestos-containing component part
manufactured or supplied by Warren Pumps. (Docket Entry 95-3 at
13.) The Court disagrees.
As discussed above, see Section III.B., supra, under New
Jersey asbestos law, a plaintiff must provide evidence to prove
proximate causation of his or her injury by means attributable
to the particular defendant that meets the “frequency,
regularity and proximity test” laid out in Sholtis, though the
test takes into account the particular circumstances of the case
and is “not a rigid test.” James, supra, 714 A.2d at 910.
Plaintiff has supplied evidence that Warren pumps,
specifically those which had or required asbestos-containing
components (including asbestos gaskets), were supplied to New
York Ship Building during the time frame when Plaintiff worked
there. See Docket Entry 114-14 at 11-79. Such pumps were shipped
for installation aboard the USS Kitty Hawk. Id. Plaintiff has
testified that he was exposed to asbestos aboard the USS Kitty
Hawk: in his deposition, Vesper described at length the making
of asbestos gaskets for pumps aboard the Kitty Hawk and stated
his belief that that was one way he had been exposed to asbestos
aboard that ship. (Pl. Dep. 225:17-228:19; 231:1-232:14.) This
is contrary to Warren’s inaccurate assertion in its motion that
Vesper “specifically attributed his exposure to asbestos aboard

32

the Kitty Hawk to pipe and valve insulation and did not recall
being exposed to asbestos aboard the Kitty Hawk in any other
manner” [Docket Entry 95 at 3].4
Warren argues that Plaintiff did not state that he recalled
working on Warren pumps specifically on the USS Kitty Hawk or
any other specific ship, but this is not fatal to his claims.
Plaintiff has put forth sufficient evidence to present a genuine
issue of material fact regarding his exposure to asbestos
attributable to his work with Warren pumps, given that he has
testified that he remembers working on Warren pumps while
working at New York Ship Building; that he has described being
exposed to asbestos due to making gaskets for pumps; and has put
forth evidence that Warren supplied pumps with or requiring such
asbestos gaskets to a ship upon which he worked at the relevant
time. A reasonable finder of fact could conclude, despite the
lack of direct testimony by Plaintiff that he remembers working
on Warren pumps on the Kitty Hawk, for example, that his memory
of working on Warren pumps, his memory of working with asbestos

4

 Warren similarly misstates the record in saying that “Mr.
Vesper’s individual work on the Savannah did not cause him to be
exposed to asbestos”: Warren cites to a portion of Vesper’s
testimony wherein he states that his “individual work” of
“aligning the steam turbine” (emphasis added) on the Savannah
did not expose him to asbestos (Pl. Dep. 273:14-22), but ignores
the portion of his testimony where he described making asbestos
gaskets aboard the Savannah (id. at 278:23-279:12). 

33

gaskets on the Kitty Hawk, and the presence of Warren pumps with
or requiring asbestos gaskets on the Kitty Hawk--when taken
together--make it more likely than not that Plaintiff was
exposed to Warren pumps’ asbestos-containing components during
his time at New York Ship Building.
Warren also argues that Plaintiff has not produced
sufficient evidence that would allow a reasonable trier of fact
to conclude that Warren or its products could be considered a
substantial factor (i.e., a proximate cause) in causing
Plaintiff’s asbestosis. (Docket Entry 95-3 at 17.) It argues
that Plaintiff has not shown sufficient evidence of frequency,
proximity or regularity of exposure to Warren-supplied or
Warren–manufactured asbestos-containing equipment, components,
or products. (Id. at 19.)5 The Court finds that, in accordance
with Goss and Dafler, described supra, Plaintiff has presented
sufficient evidence to establish a genuine dispute of material
fact as to this issue by presenting evidence and testimony
regarding his work on Warren pumps, on the Kitty Hawk, and with
asbestos gaskets during his time at New York Ship Building.

5

Warren argued in its initial motion that Plaintiff did not
supply expert, medical, or scientific evidence of a nexus
between Plaintiff’s exposure to asbestos and his subsequent
asbestosis. However, Plaintiff cured any such defect with the
filing of Dr. Newman’s affidavit. (Docket Entry 114-4.)
34

Plaintiff avers that he is owed discovery promised to him
by Warren, and that his “tangible proof concerning his claims is
consequently limited.” [Docket Entry 114 at 2.] The Court finds
that he has nevertheless produced sufficient evidence to raise a
genuine issue of material fact as to his exposure to asbestos
through his work upon or near Warren pumps or components, and as
to the relationship of such exposure to his subsequent claimed
injury. As such, Warren’s motion for summary judgment will be
denied.

IV.

CONCLUSION
For the reasons discussed herein, Defendant Buffalo’s and

Sid Harvey’s respective motions for summary judgment will be
granted and Defendant DAP’s and Warren’s respective motions for
summary judgment will be denied. The accompanying Order will be
entered.

December 19, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

35