that Pacor was more than a blind order-taker. Pacor was intimately involved in the asbestos industry for a number of years as contractor, distributor, and fabricator. Its familiarity with the hazards and norms of the industry is evidenced by its practice of requiring employees working in areas of excessive dust concentration to wear protective devices and respirators. (Answer to Interrogatory 105, Exhibit A to Co-defendants' Brief.) Pacor was not an unsophisticated plyer of the trade nor were the amounts of asbestos which reached Carbide by virtue of its efforts insignificant. Additionally, although Pacor's brokerage service was an isolated and limited feature of its overall business, the brokered transactions were by no means isolated or occasional but occurred in ten of the thirteen years, culminating in 1972.
Against this background it would be a misconstruction of the record to characterize Pacor as a "mere broker"; perhaps "broker plus" would be more apropos. In any event, because the mere broker label does not apply, Pacor's motion premised on that notion need not be addressed further and will be denied.
There remains the related but different question put by plaintiffs' cross-motion: an affirmative determination whether Pacor, regardless of the broker phraseology, was a link in the distribution chain as a matter of law. Since this much narrower issue does not hinge on the broker label, it is not resolved entirely by the foregoing discussion.
As noted above and correctly asserted by Pacor, the second element of New Jersey's three-part strict-liability standard calls for proof that the particular defect arose while the product was "in the control of the defendant." Scanlon, 65 N.J. at 590. Contrary to Pacor's view, this court does not read that language to impose an absolute "hands on" requirement. For in the course of applying the control element, New Jersey courts routinely have also employed the "stream of commerce" rationale to find liability, and done so without doctrinal difficulty.
Additionally, the New Jersey Supreme Court has clearly rejected the requirement that a technical sale occur before strict liability will be imposed. See Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 452, 212 A.2d 769 (1965) (liability imposed even though product was leased rather than sold). Consequently, "control" as used in the Scanlon formula cannot be read so narrowly as to immunize defendants who have managed to avoid actual contact with the defective product but must be understood more broadly to permit a finding of liability where the totality of facts indicates a sufficient causative relationship or connection between defendant and product. Here, such a connection is clear from the undisputed fact that Pacor -- whether considered a seller, distributor, or a provider of services -- arranged and profited from the supply of millions of pounds of raw asbestos packaged in its original and unchanged condition.
Pacor has caused itself to "become part of the overall producing and marketing enterprise." Newmark v. Gimbel's Inc., 54 N.J. 585, 600, 258 A.2d 697 (1969). Its connection with the asbestos products, remote though it may be in comparison with that of the other links in the chain, is a factual reality and a factual consideration that should be left for a jury to weigh in the course of assessing, and perhaps commensurately reducing, Pacor's ultimate responsibility.
The result here might be different were the alleged defect attributed to some post-manufacture mishandling, such as in the exploding bottle cases. In such a context, the materiality of actual "hands on" control is obviously substantially greater and the identity of all intermediate handlers is a far more critical factor. The same does not hold true, though, in a failure-to-warn case such as this where the manufacturer's original product was entirely unaltered by subsequent distributors.
For the foregoing reasons, Pacor's motion for summary judgment is denied and plaintiffs' motion is granted. Plaintiffs will submit an order. No costs.