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MENNA v. JOHNS-MANVILLE CORP.

April 30, 1984

PASQUALE MENNA, and DIANE MENNA, his wife, Plaintiffs,
v.
JOHNS-MANVILLE CORP., et al., Defendants; JOHN BARBACCIA, and ELEANOR BARBACCIA, his wife, Plaintiffs, v. JOHNS-MANVILLE CORP., et al., Defendants


Ackerman, District Judge.


The opinion of the court was delivered by: ACKERMAN

TO ALL COUNSEL:

ACKERMAN, District Judge.

 These are personal injury actions in which plaintiffs, former employees of Owens-Corning Fiberglas (Owens-Corning) and their spouses, have sued numerous defendants who manufacture and distribute asbestos fibers. Plaintiffs claim that their injuries result from their exposure to asbestos while producing asbestos-based insulation products at the Owens-Corning plant. They allege, inter alia, that defendant suppliers' failure to warn of the dangers of exposure to asbestos makes them liable in negligence and strict liability. Defendant suppliers contend that they were absolved of the duty to warn because Owens-Corning was a sophisticated purchaser. They further claim that Owens-Corning's subsequent failure to warn its employees and to adequately protect them from the dangers of asbestos is the superseding cause of plaintiffs' injuries.

 These matters are presently before the court on plaintiffs' motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Specifically, plaintiffs seek a ruling that mined and milled asbestos is a "product" within the meaning of the Restatement (Second) of Torts § 402A (1965), and therefore that strict liability principles are applicable. They also seek to preclude defendant suppliers from asserting the sophisticated user and superseding cause defenses.

 This summary judgment motion was first heard by Magistrate Cowen on May 9, 1983. In a Report and Recommendation filed on May 31, 1983, Magistrate Cowen recommended that plaintiffs' motion be granted in part and denied in part. He concluded that mined and milled asbestos is a product under the Restatement (Second) of Torts § 402A. However, he recommended denial of plaintiffs' motion to preclude defendants' sophisticated user and superseding cause defenses.

 Defendant Lake Asbestos of Quebec (Lake) objected to the Magistrate's conclusion that asbestos is a product under the Restatement. Defendants Celotex Corporation, Carey Canada and North American Asbestos Corporation have joined in Lake's objection. Plaintiffs, joined by Owens-Corning, plaintiffs' employer, objected to the Magistrate's conclusion that the sophisticated user and superseding cause defenses should not be foreclosed.

 This matter is presently before me to review the Magistrate's recommendation of May 31, 1983. Pursuant to 28 U.S.C. § 636(b)(1), I must make a de novo determination with respect to those portions of the report to which objections have been made. After having carefully considered the parties' briefs, as well as arguments made to the court on September 19, 1983, I have decided to adopt the Magistrate's recommendation that mined and milled asbestos be treated as a product under the Restatement. I have also determined that the superseding cause defense should be available with respect to both plaintiffs' negligence and strict liability counts. However, I have concluded that the sophisticated user defense should only be allowed as to plaintiffs' negligence claims but not as to their strict liability claims.

 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is not to be granted unless, after all reasonable inferences are drawn in favor of the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See, DeLong Corp. v. Raymond International, 622 F.2d 1135 (3d Cir. 1980).

 While the New Jersey Appellate Division has recently determined that asbestos is a product under strict liability law, Fischer v. Johns-Manville Corp., 193 N.J. Super 113, 472 A.2d 577 (App. Div. 1984), the New Jersey Supreme Court has not yet addressed this precise question. Under these circumstances, my task is to predict how New Jersey's highest court would rule on the facts before me. As stated by Judge Adams in McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir. 1980), cert. denied, 449 U.S. 976, 66 L. Ed. 2d 237, 101 S. Ct. 387 (1980):

 
Although some have characterized this assignment as speculative or crystal-ball gazing, nonetheless, it is a task which we may not decline.
 
An accurate forecast of (New Jersey's) law, as it would be expressed by its highest court, requires an examination of all relevant sources of that state's law in order to isolate those factors that would inform its decision. The primary source that must be analyzed of course, is the decisional law of the (New Jersey) Supreme Court . . . It is important to note, however, that our predictions "cannot be the product of a mere recitation of previously decided cases." . . . Rather, relevant state precedents must be scrutinized with an eye toward the broad policies that informed those adjudications, and to the doctrinal trends which they evince.

 Id. at 661-62 (footnotes omitted). Additionally he notes that while lower state court decisions are entitled to some consideration, they are not controlling in the absence of authority from the highest court. Id.

 In Fischer, Judge Pressler held that because "asbestos suppliers do process and package the material and are reasonably regarded as its producers", asbestos is therefore a product within the intendment of § 402 A. 193 N.J. Super. at 132. An examination of New Jersey precedents along with the policies expressed in the Restatement leads me to predict that this decision will be followed by the New Jersey Supreme Court.

 With one modification noted below, the New Jersey courts have adhered to § 402A of the Restatement to define the scope of a cause of action in strict liability in tort:

 
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
 
(a) the seller is engaged in business of selling such a product, and
 
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
 
(2) The rule stated in Subsection (1) applies although
 
(a) the seller has exercised all possible care in the preparation and sale of his product, and
 
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

 See, e.g., O'Brien v. Muskin Corp., 94 N.J. 169, 463 A. 2d 298 (1983), Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140 (1979). New Jersey's courts have rejected the "defective condition unreasonably dangerous" language of § 402A. Instead, they have focused the inquiry in strict liability actions on whether a product is "reasonably fit, ...


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