The opinion of the court was delivered by: Cooper, District Judge
Defendants, Fuchs Lubricants Co. ("Fuchs"), and Blaser Swisslube, Inc. ("Blaser"), move separately pursuant to Federal Rule of Civil Procedure ("Rule") 56(c) for summary judgment as to the claims asserted against them for products liability. (Dkt. entry nos. 13 & 20.) The Court, for the reasons stated herein, will grant the motion by Fuchs and deny the motion by Blaser.
Plaintiff, Christopher P. Martin ("Martin"), worked as a machinist for various companies from 1986 through 2001, except for a two-year period between 1996 and 1998. (Pl. Br., at 6.) He operated machines that cut and fabricate useable parts from raw metals. (Fuchs Br., at 2.) The machines spin rapidly and create friction while in use. (Pl. Br., at 5.) Metalworking fluids or cutting fluids/oils ("fluid") mixed with water are sprayed onto the machines to cool and lubricate the metal while it is being cut. (Id.) The fluid mixes with dust and metal shavings that are created by the cutting. (Id.) Upon contact with the metal, the fluid and particle mixture turns to a mist as a result of the heat. (Id. at 5-6.) Martin inhaled this mist. (Id. at 6.) His clothing absorbed the dust and his skin was exposed to it. (Id.)
Blaser and Fuchs produce metalworking fluid. (Id. at 5.) Blaser produces Blasocut 2000 Universal, and Blasocut 4000 Strong (collectively "Blasocut"). (Id.) Fuchs produces Renokool PT-85 Blue ("Renokool"). (Fuchs Br., at 4.)
Martin was diagnosed with adenocarcinoma of the distal esophagus in November 2001. (Pl. Br., at 7.) He underwent chemotherapy and radiation, and had parts of his esophagus and stomach removed. (Id.) Martin brought an action against the defendants in the Superior Court of New Jersey on November 7, 2003, alleging that his exposure to, and inhalation of, their products caused his cancer. (Id.) He claims that the defendants are strictly liable to him because they placed defective products into the stream of commerce, without an adequate warning as to the health risks associated with the fluid. (Compl., at 3.)
Fuchs removed the action to this Court on December 24, 2003. (Dkt. entry no. 1.) Jurisdiction is proper pursuant to 28 U.S.C. § 1332. Fuchs and Blaser now seek summary judgment as to the claims asserted against them.
Fuchs argues that it is entitled to summary judgment because (1) Martin has not demonstrated that he was exposed to a Fuchs product in particular, and (2) Martin's expert reports are inadmissible and cannot be considered. (Fuchs Br., at 14, 19.) Blaser, adopting the arguments of Fuchs as set out in Fuchs's brief, argues that Martin has not shown that he was exposed to a Blaser product. (Blaser Br., at 4.) Martin argues that summary judgment is not appropriate because (1) the defendants (a) placed defective products into the stream of commerce, and (b) did not place adequate warnings labels on their products, (2) his exposure and other facts create an inference that the defendants' fluids caused his cancer, and (3) the experts' reports are admissible. (Pl. Br., at 9, 10, 12, 15.) The Court heard oral argument on November 14, 2005. (Dkt. entry no. 23.)
I. Standard for Summary Judgment
Rule 56(c) provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the summary judgment movant has met this prima facie burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A non-movant must present actual evidence that raises a genuine issue of material fact and may not rely on mere allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The Court must view the evidence in the light most favorable to the non-movant when deciding a summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). At the summary judgment stage, the Court's role is "not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original). A fact is material only if it might affect the action's outcome under governing law. Id. at 248. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
II. Elements of a Products Liability Action
"Under strict products liability a manufacturer has a duty to ensure that the products it places into the stream of commerce are safe when used for their intended purposes." Zaza v. Marquess and Nell, Inc., 675 A.2d 620, 627 (N.J. 1996). To recover in a products liability action, a plaintiff must prove that the product (1) was defective, (2) when it left the defendant's control, and (3) caused injury to a reasonably foreseeable user. Id.*fn1 "Defects are classified as design defects, manufacturing defects, or inadequate warning defects." Id. at 628. In an inadequate warning case, the defect is not a structural flaw in the product itself, but rather a failure to provide notice to potential users that the product could cause injury. Coffman v. Keene Corp., 628 A.2d 710, 716 (N.J. 1993).
Two types of causation must be established to prevail in a products liability action: product-defect causation, and medical causation. Id.; see also Becker v. Baron Bros. Coliseum Auto Parts, Inc., 649 A.2d 613, 616 (N.J. 1994). Product-defect causation requires the plaintiff to prove that the defect in the product was the proximate cause of the injury. Id. Medical causation requires the plaintiff to prove that the injury was proximately caused by exposure to the defendant's product. James v. Bessemer Processing Co., Inc., 714 A.2d 898, 908 (N.J. 1998). When a plaintiff has been exposed to multiple products of multiple defendants, a "plaintiff must show that the exposure [to each defendant's product] was a substantial factor in causing or exacerbating the disease." Id. at 908-09 (internal quotes and citations omitted); see also Becker, 649 A.2d at 620 (adopting a product-by-product approach to assessing causation instead of a categorical approach); Sholtis v. Am. Cyanamid Co., 568 A.2d 1196, 1203 (N.J. App. Div. 1989) ("the contact between the plaintiff and the defective product must be sufficiently significant so that a reasonable jury could determine the product was a substantial factor in bringing about the plaintiff's injury").
To determine whether a specific defendant's product was a substantial or exacerbating factor, a plaintiff must prove "exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked." Lohrmann v. Pitt. Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986); see also James, 714 A.2d at 910 (setting out "frequency, regularity, and proximity" test as adopted in Sholtis). References to a defendant's market share or industry market percentages are insufficient to reconstruct liability in an action where specific tortfeasors are known and identified. Sholtis, 568 A.2d at 1205; see also James, 714 A.2d at 910 (noting that "frequency, regularity, and proximity" test does not apply to actions that proceed on a theory of collective liability where the specific tortfeasor cannot be named). Allegations or proof that defendant's product was at the workplace are insufficient to prove exposure to the product or demonstrate proximate cause. Lohrmann, 782 F.2d at 1162; Wilkerson v. Armstrong, No. 89-2494, 1990 WL 138586, at *3 (D.N.J. 1990) (noting that speculation that a product was used in the workplace did not establish a material fact to base a denial of summary judgment). The plaintiff's contact with the product must be "proven or reasonably approximated by inference." Sholtis, 568 A.2d at 1205, 1207.
III. Martin's Exposure to Defendants' Products
Martin has brought this action against two specific producers of fluid, in addition to an unnamed manufacturer. Pursuant to James, the Court will evaluate the frequency, regularity, and proximity of Martin's exposure to each product individually.*fn2 Martin has not alleged sufficient exposure to Renokool to maintain an action against Fuchs. Martin, however, has adequately alleged exposure to Blasocut to maintain an action against Blaser.*fn3
A. Exposure to Fuchs's Renokool
Martin asserts that "he is certain that he was exposed to . . . Renokool PT 85-Blue as early as 1986." (Pl. Br., at 6; 6-14-02, Martin v. Mid-Atlantic CNC, Workers' Compensation Tr., No. 2002-2848, at 11-12.) He, however, cites no references, documents, affidavits, etc. to support his assertion. Both the complaint, and Martin's brief in opposition to summary judgment collectively refer to "the defendants" and make no reference to specific instances of exposure, or individual products and their manufacturers. Martin relies on his own recollection. His assertions are speculative in nature and without substantiation. For example, Martin has not provided any information or documents from Fuchs or any of his employers to verify or prove, the employers bought Renokool, the quantities of Renokool bought, the ...