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Barnes v. Foster Wheeler Corp.

United States District Court, D. New Jersey

June 30, 2014

Kimberly M. Barnes, Executor of the Estate of John W. Barnes, Jr., and John W. Barnes III, Administrator of the Estate of Jeanette Barnes, Plaintiffs,
v.
Foster Wheeler Corp., et al., Defendants.

James J. Pettit, Esq., LOCKS LAW FIRM LLC, Cherry Hill, NJ. Attorney for Plaintiffs Kimberly M. Barnes and John W. Barnes III

David Schuyler Blow, Esq., Michael A. Tanenbaum, Esq., SEDGWICK LLP, Newark, NJ

Joanne Hawkins, SPEZIALI, GREENWALD & HAWKINS P.C., Williamstown, N.J. Attorneys for Defendant General Electric Company

OPINION

JEROME B. SIMANDLE, District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendant General Electric Company's ("GE") motion for summary judgment. [Docket Item 49.] This case arises from the death of John W. Barnes, Jr. ("Barnes") from alleged exposure to asbestos. Plaintiffs[1] assert that Barnes was exposed to asbestos-containing products manufactured, distributed, or supplied by GE during his service in the United States Navy from 1950 to 1952 and that his exposure to these products caused his death. GE's motion turns on whether Plaintiffs have provided sufficient evidence that GE manufactured or supplied asbestos or an asbestos-containing product to which Barnes was exposed such that a reasonable jury could find in Plaintiffs' favor.

For the reasons set forth below, GE's motion for summary judgment will be granted.

II. BACKGROUND

A. Factual Background

The late Mr. Barnes served in the Navy as a fireman from May 29, 1950 to April 15, 1952 aboard the USS Everglades. (Pl.'s Ans. to Interrog., Def. Ex. B. [Docket Item 49-5] at I.4; Def. Statement of Undisputed Facts ("SMF") [Docket Item 49-2] ¶ 2.) Mr. Barnes died from mesothelioma (Pl.'s Ans. to Interrog. at I.9) before being deposed in this matter. (SMF ¶ 3.) GE furnished two propulsion turbines for the USS Everglades on or about July 8, 1944. (SMF ¶ 7.) The GE shipment invoice for these turbines, dated July 8, 1944, indicates GE supplied the turbines, supports, spare parts, wrenches, and accessories, but does not mention insulation. (Def. Ex. E. [Docket Item 49-8.])

Archie Darling also served aboard the USS Everglades from 1951 to 1956. (SMF ¶ 6.) Darling certifies that he "personally kn[e]w that [f]iremen on the USS Everglades from 1952 to 1953 worked around" the turbines in the engine room, the boiler in the fire room, the pumps in the fire room, and the pumps in the engine room. (Certification of Archie Darling ("Darling Cert"), Def. Ex. C. [Docket Item 49-6] ¶ 4.) Darling also states that he knows "there was asbestos insulation in the fireroom and engine room in the USS Everglades because it was very commonly referred to as asbestos among crew members in the engineering department." (Id. ¶ 5.) Additionally, "no one ever told [Darling], or crew members in [his] presence on the USS Everglades... that asbestos was a health hazard." (Id. ¶ 6.)

James Burel[2] served in the Navy aboard the USS Everglades and worked with Barnes "on a regular and frequent basis from September 1952 to November 1953." (Certification of James Burel ("Burel Cert"), Pl. Ex. A. [Docket Item 53-3] ¶¶ 2-3.) Burel "saw [Barnes] exposed to the dust from the external insulation on the turbine, boiler, motors and pumps on a regular and frequent basis from September 1952 to November 1953." (Id. ¶ 5.) Barnes was exposed to the dust at least three times per month for the 14 months between September 1952 and November 1953. (Id. ¶ 5.) Burel states that he knew the "insulation was asbestos because it was very commonly referred to as asbestos among crew members in the engineering department, and because it was only placed on high temperature equipment." (Id. ¶ 6.) Additionally, Burel was unaware "of any non-asbestos insulation in the early 1950's which could possibly be placed on this high temperature asbestos equipment." (Id. ¶ 6.) Burel asserts that none of the crewmembers in the engineering department of the USS Everglades during this time knew that asbestos was a health hazard, nobody wore a mask in the fire or engine room on the USS Everglades during this time period, and Burel did not see Barnes wear a mask. (Id. ¶ 7.)

Importantly, neither Darling nor Burel identifies the manufacturer or supplier of the insulation discussed above. Neither certification mentions ...


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