On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Dreier, Scalera and D'Annunzio. The opinion of the court was delivered by Dreier, J.A.D.
[238 NJSuper Page 12] Plaintiffs appeal from summary judgments granted to the remaining defendants in this strict liability asbestos case. Plaintiffs are Robert J. Sholtis, Jr., Executor of the Estate of Robert J. Sholtis and the decedent's widow, Pauline Sholtis, and Sam Lee and Eunice Lee, his wife. Both Mr. Sholtis and Mr.
Lee, (plaintiffs) were employees of American Cyanamid Co., a former defendant in this case.*fn1 The cases were consolidated for discovery purposes by a case management order dated December 2, 1986. Of the many other original defendants, the principal remaining defendants at the time of the summary judgment motions, who had been denominated as the "Wellington defendants," were Owens-Illinois Inc., Celotex Corp., Eagle-Picher Industries Inc., Keene Corporation, The Flintkote Company, Armstrong World Industries Inc., GAF Corporation, H.W. Porter Company and Porter Hayden Company.*fn2
This case presents two basic problems. The first is procedural, in that plaintiffs attempted to present supplemental certifications to the court in opposition to defendants' motions after the time had expired for receipt of additional factual material. The trial judge refused to consider this material, and we must determine whether such refusal constituted reversible error.*fn3
The second issue in the case is whether the trial judge was correct in determining that plaintiffs failed to prove instances of contact between the Wellington defendants' products and either of the plaintiffs. Within this issue we must also consider the legal underpinnings of the factual analysis, namely, whether there is a legal theory that supports potential liability on the part of one or more of the Wellington defendants.
In most asbestos cases, where exposure is cumulative over many years and there is a late manifestation of disease, it is difficult to prove plaintiff's exposure to a particular defendant's product. See Fischer v. Johns-Manville Corp., 103 N.J. 643, 660-661, 512 A.2d 466 (1986). The claimed exposure in both of the cases before us spans over four decades. Plaintiffs worked in and among many of the buildings in the American Cyanamid complex during their long tenures with their employer. Asbestos products were clearly present throughout the American Cyanamid facility, and plaintiffs have attempted to pinpoint where they may have been brought into contact with the products of one or more of the Wellington defendants.
Plaintiff Sholtis died at age 65 from pleural asbestosis before his deposition could be taken. He worked at the American Cyanamid plant from 1941 to 1980, first as a mill operator, then as a maintenance laborer, pipefitter's helper, junior mechanic, and finally as an area mechanic. Given the explanation of Mr. Sholtis' job, there is little doubt that he was directly exposed to
and worked directly with asbestos at the plant.*fn4 His case necessarily relied upon employment records and testimony of co-workers and suppliers to prove when and where he was exposed to asbestos, and which company manufactured the asbestos to which he was exposed. Employees placed him in five different buildings and medical records in an additional five.
While Mr. Sholtis' exposure was both direct and as a bystander, Mr. Lee's exposure was solely as a bystander, since he did not work directly with asbestos. Mr. Lee worked at American Cyanamid from 1952 until 1988. During the first several years he was a laborer, a helper and a janitor, and then in 1964 became a mill operator. From 1983 until retirement in 1988 he again worked as a janitor. At the age of 53 a portion of his right lung was removed due to pulmonary asbestosis. Employment records and his deposition place him in 14 different buildings in the American Cyanamid complex. He testified that since 1983 he has worked "all over the plant" as a janitor. Lee claims that he worked in building 86 at about the same time as another witness was ripping down asbestos at that location. The witness, however, did not specifically recall in what years he worked in building 86, and remembered using only Johns-Manville asbestos.
Witnesses named several manufacturers other than Johns-Manville as suppliers of asbestos to American Cyanamid. Most, however, could not state which product was used in
which building, having taken no account of the source of various products at the time. Mr. Lee also testified that he has no knowledge of which manufacturer supplied the asbestos in the plant. The foregoing constitutes a brief summary of the facts originally before the court and upon which the judge's decision was rendered.
The new evidence plaintiffs attempted to produce fell into two categories. Some had already been elicited in discovery, but had not been presented to the court as part of plaintiffs' initial papers. Other evidence, such as the Stahoski affidavit, discussed infra, was totally new material. Hovan's second affidavit identified asbestos products manufactured or supplied by five of the Wellington defendants, Porter Hayden, Armstrong, GAF, Owens and Celotex. Hovan stated:
2. While employed at American Cyanamid, I used asbestos containing products manufactured by the following companies:
Johns Manville Raybestos Manhattan
These products included, but were not limited to, gaskets, insulation, ceiling and floor tile, pipe covering and brake linings.
3. All members of my trade used the same asbestos containing products as I did during my employment at American Cyanamid and we all got them from the same stockroom. Additionally, vendors often delivered asbestos containing material ...