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Whelan v. Armstrong International inc.

Superior Court of New Jersey, Appellate Division

August 6, 2018

ARTHUR G. WHELAN, Plaintiff-Appellant,
ARMSTRONG INTERNATIONAL INC.; BURNHAM LLC; CARRIER CORP., individually, d/b/a and as successor to Bryant Heating & Cooling Systems; CLEAVER-BROOKS INC.; CROWN BOILER CO., f/k/a Crown Industries Inc.; FORD MOTOR CO.; JOHNSON CONTROLS INC., individually, d/b/a and as successor to Evcon Industries Inc. and Coleman Heating and Air Conditioning Products Inc.; NIBCO INC.; and OAKFABCO INC., individually, d/b/a and as successor to Kewanee Boiler Corp.; Defendants-Respondents, and A. O. SMITH CORP.; AARON & CO.; AMG INDUSTRIES INC., d/b/a and as successor to Akron Metallic Gasket Co.; AUTOMATIC SWITCH CO.; AUTOMOTIVE BRAKE CO.; A.W. CHESTERTON CO.; BASF CORP.; BERGEN INDUSTRIAL SUPPLY CO.; BETHLEHEM DYNATHERM, a/k/a Dynatherm Boiler Manufacturing Inc.; BINSKY & SNYDER LLC, individually, d/b/a and as successor to Binsky & Snyder Co.; BONLAND INDUSTRIES INC.; BORGWARNER MORSE TEC INC., as successor to Borg-Warner Corp.; BRIGGS INDUSTRIES INC.; CARLISLE COMPANIES INC.; CBS CORP., f/k/a Viacom Inc., successor by merger to CBS Corp., f/k/a Westinghouse Electric Corp.; CENTRAL BRASS CO. INC., individually, d/b/a and as successor to Central Brass Manufacturing Co. and Central Brass & Fixture Co.; CENTRAL ENGINEERING & SUPPLY CO. INC.; CHICAGO FAUCET CO.; CHICAGO-WILCOX MANUFACTURING CO. INC.; COLFAX INC., individually and as successor to Warner Electric Brake & Clutch Co.; CRANE CO.; CROSSTOWN PLUMBING SUPPLY INC.; DANA COMPANIES LLC; DAP INC.; DUCTMATE INDUSTRIES INC.; DUNHAM-BUSH INC.; DUNPHEY & ASSOCIATES SUPPLY CO. INC.; DURO DYNE CORP.; ECR INTERNATIONAL INC., individually, d/b/a and as successor to Utica Boilers Inc., Utica Radiator Corp., Dunkirk Boilers, Pennco Inc., and Olsen Technology Inc.; ESSEX PLUMBING SUPPLY INC.; FISHER SCIENTIFIC INTERNATIONAL INC.; FORTUNE BRANDS HOME & SECURITY INC., individually, d/b/a and as successor to Moen Inc.; FOSTER WHEELER LLC; GENERAL ELECTRIC CO.; GEORGIA-PACIFIC LLC; THE GOODYEAR TIRE & RUBBER CO.; GOULDS PUMPS INC.; GRACO INC.; GRUNDFOS PUMPS CORP.; H.B. SMITH CO. INC.; HILCO INC., individually and as successor to Universal Supply Group Inc. and Amber Supply Co.; HONEYWELL INTERNATIONAL INC., f/k/a Honeywell Inc., Allied Signal Inc. and Bendix Corp.; INTERLINE BRANDS INC., individually, d/b/a and as successor to J.A. Sexauer Inc.; INTERNATIONAL BUSINESS MACHINES CORP.; ITT CORP.; KAISER GYPSUM CO. INC.; KANTOR SUPPLY INC.; KOHLER CO., individually, d/b/a and as successor to Sterling Faucet Co.; LENNOX INDUSTRIES INC., individually, d/b/a and as successor to Armstrong Furnace Co.; MAGNATROL VALVE CORP.; MANHATTAN WELDING CO. INC.; MAREMONT CORP.; MERITOR INC., individually and as successor to Rockwell International Corp.; MESTEK INC., individually, d/b/a and as successor to H.B. Smith Co., Smith Cast Iron Boilers and Mills Boilers; MUELLER INDUSTRIES INC.; NATIONAL AUTOMOTIVE PARTS ASSOCIATION INC.; NEW JERSEY BOILER REPAIR CO.; NCH CORP., as successor to Creed Co. and Daniel P. Creed Co. Inc.; NMBFIL INC., f/k/a Bondo Corp.; OWENS-ILLINOIS INC.; PEERLESS INDUSTRIES INC.; PNEUMO-ABEX LLC, individually and as successor to Abex Corp.; PRICE PFISTER INC.; THE PRUDENTIAL INSURANCE CO. OF AMERICA; RHEEM MANUFACTURING CO.; RILEY POWER INC., f/k/a Riley-Stoker Corp.; ROBERTSHAW CONTROLS CO., individually and as successor to Fulton Sylphon Co.; SID HARVEY INDUSTRIES INC.; SLANT/FIN CORP.; SLOAN VALVE CO.; SOS PRODUCTS CO. INC.; SPEAKMAN CO.; SUPERIOR BOILER WORKS INC.; SUR-SEAL CORP.; TACO INC.; TRANE U.S. INC., individually and as successor to American Standard Inc. and American Radiator Co.; TURNER CONSTRUCTION CO.; UNILEVER UNITED STATES INC.; UNIROYAL HOLDING INC.; VERIZON NEW JERSEY INC., individually and as successor to New Jersey Bell Telephone Co.; VICTAULIC CO.; WALLWORK BROS. INC.; WAL-RICH CORP.; WEIL-MCLAIN, a division of the Marley-Wylain Co., a wholly-owned subsidiary of the Marley Co. LLC; W. V. EGBERT & CO. INC.; YORK INTERNATIONAL CORP.; ZURN INDUSTRIES LLC, individually, d/b/a and as successor to Erie City Iron Works and Zurn Industries Inc.; AII ACQUISITION LLC, individually, as successor to, f/k/a, and d/b/a Holland Furnace Co., Athlone Industries Inc., T.F.C. Holding Corp. and Thatcher Furnace Co.; AMERICAN PREMIER UNDERWRITERS, individually and as successor to Hydrotherm Corp.; AUGUST ARACE & SONS INC.; HONEYWELL INC.; ROCKWELL AUTOMATION INC., individually, d/b/a and as successor to Sterling Faucet Co.; ROCKWELL COLLINS INC., individually, d/b/a and as successor to Sterling Faucet Co.; TRIMAS CORP., individually, d/b/a and as successor to NI Industries Inc.; WILMAR INDUSTRIES INC., individually, d/b/a and as successor to J.A. Sexauer Inc.; BASF CATALYSTS LLC; TRIMAS CORP., individually and as successor in interest to Norris Industries and/or NI Industries Inc.; YORK INTERNATIONAL CORP., individually and as successor to The Coleman Company Inc., a/k/a Coleman Heating and Air Conditioning Products Inc., Defendants.

          Argued May 2, 2016

          Reargued May 16, 2018

          On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7161-12.

          Kevin P. Parker (The Lanier Law Firm, PLLC) of the Texas bar, admitted pro hac vice, argued the cause on May 2, 2016 and May 16, 2018, and Rachel A. Placitella argued the cause on May 16, 2018, for appellant (Cohen, Placitella & Roth, PC, attorneys; Rachel A. Placitella, Nahid A. Shaikh, and Darron E. Berquist (The Lanier Law Firm, PLLC) of the New York bar, admitted pro hac vice, on the briefs).

          Thomas J. Kelly, Jr. argued the cause for respondent Armstrong International, Inc. (Vasios, Kelly & Strollo, PA, attorneys; Thomas J. Kelly, Jr., of counsel and on the brief; Linda Fulop-Slaughter, on the brief).

          Joseph D. Rasnek argued the cause for respondent Burnham, LLC (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Nancy McDonald, of counsel and on the brief; Christopher B. Bladel, on the brief).

          Sara K. Saltsman argued the cause for respondent Carrier Corporation (Mayfield, Turner, O'Mara & Donnelly, P.C., attorneys; Sara K. Saltsman, on the brief).

          Karen J. Stanzione-Conte argued the cause for respondents Cleaver-Brooks, Inc. and Crown Boiler, Company (Reilly, Janiczek & McDevitt, attorneys; Karen J. Stanzione-Conte, Michelle B. Cappuccio and Colleen B. Cavanaugh, on the briefs).

          Robyn Gnudi Kalocsay argued the cause on May 2, 2016, and Sean M. Marotta argued the cause on May 16, 2018, for respondent Ford Motor Company (LeClair Ryan, attorneys; Robin Gnudi Kalocsay and Michael D. Goldklang, on the brief).

          Marc S. Gaffrey argued the cause on May 2, 2016, and Jacob S. Grouser argued the cause on May 16, 2018, for respondent Johnson Controls, Inc. (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Marc S. Gaffrey, of counsel and on the brief; Anita S. Cohen, on the brief).

          Robert T. Connor argued the cause on May 2, 2016, and Stephanie A. DiVita argued the cause on May 16, 2018, for respondent NIBCO, Inc. (Pascarella DiVita, PLLP attorneys; Robert T. Connor, of counsel and on the brief; Angela Coll Caliendo, on the brief).

          Hawkins Parnell Thackston & Young LLP, attorneys for respondent Oakfabco, Inc. (Roy F. Viola, Jr., and Deena M. Crimaldi on the brief).

          Before Judges Accurso, O'Connor, and Suter, Alvarez, Nugent, and Currier.


          CURRIER, J.A.D.

         In this products liability case arising out of exposure to asbestos, we consider anew whether a manufacturer has a duty to warn about the risk of harm from exposure to asbestos-containing replacement parts integral to the function of the manufacturer's product, even if the manufacturer did not fabricate or distribute the replacement parts. We conclude that a duty to warn exists when the manufacturer's product contains asbestos components, which are integral to the function of the product, and the manufacturer is aware that routine periodic maintenance of its product will require the replacement of those components with other asbestos-containing parts.

         Plaintiff Arthur Whelan contends he developed mesothelioma as the result of his work-related exposure to numerous asbestos-containing products. Plaintiff asserts, as a plumber and auto mechanic, he was exposed to asbestos in products manufactured by defendants, [1] specifically boilers, valves, steam traps, and brake drums. Although plaintiff installed and worked with some original products manufactured by some defendants, he primarily encountered asbestos in his cleaning, repair, and replacement of components used in the products.

         Defendants Armstrong International Inc., Burnham LLC, Carrier Corp., Cleaver-Brooks Inc., Crown Boiler Co., Ford Motor Co., Johnson Controls Inc., NIBCO Inc., and Oakfabco Inc. filed summary judgment motions. Each defendant argued plaintiff had not demonstrated exposure to friable asbestos on a regular and frequent basis from a product it sold, manufactured, supplied, or distributed. The trial judge found defendants were not liable for asbestos-containing replacement parts they did not manufacture or place into the stream of commerce. Because plaintiff could not identify an exposure to asbestos from a product actually manufactured or distributed by defendants, the court granted summary judgment to each defendant.

         In light of our determination that a manufacturer's product includes any replacement parts necessary to its function, defendants' duty to warn extends to any danger created by those replacement parts. A careful review of the record reveals plaintiff presented sufficient evidence detailing his exposure to asbestos, either from original parts supplied by defendants or replacement parts required for the function of defendants' products, to create issues of fact as to all defendants. We, therefore, reverse the October 3, November 15, and December 23, 2013 orders granting summary judgment in favor of defendants.


         We discern the following facts from the summary judgment record. Plaintiff began work as a residential and commercial plumber in 1952. He previously worked at an automotive repair shop, and continued throughout his life to restore vintage cars as a hobby. From 1955 to 1959, plaintiff worked for Franklin Lowe & Sons. Plaintiff opened his own plumbing business, Arthur Whelan Plumbing and Heating, in 1959, which he maintained until 1968. From 1968 until 1971, plaintiff worked at several other plumbing companies before becoming employed by Powers Regulator, where he worked for twenty-five years.

         In 2008, plaintiff was diagnosed with asbestosis; he was subsequently diagnosed with malignant mesothelioma in 2012. Plaintiff's causation expert, pathologist Eugene J. Mark, M.D., stated in his August 2, 2013 report that plaintiff "developed a diffuse malignant mesothelioma of the pleura" caused by asbestos exposure.[2] Dr. Mark further concluded, "with reasonable medical certainty" that "all of the special exposures to asbestos which took place prior to the occurrence of the malignancy together contributed to cause the diffuse malignant mesothelioma . . . [and each] was a substantial contributing factor in the causation of the diffuse malignant mesothelioma."


         Armstrong International Inc.

         While employed by Franklin Lowe, plaintiff estimated he worked on twenty Armstrong steam traps installed on commercial boilers.[3] The company's name was imprinted on the traps. Plaintiff's job duties entailed opening the traps in order to clean them and replace the asbestos gaskets.[4] The process of replacing a gasket took approximately twenty minutes to one hour depending on its condition and how long it had been in place. Plaintiff testified that "[d]ue to the high heat involved, these gaskets normally baked themselves onto the product, so they had to be scraped and brushed off." Plaintiff could not confirm whether he replaced gaskets original to the boiler or if the original had been replaced prior to his work on the system. His employer supplied the new gaskets but plaintiff did not know the manufacturer of them. He advised, however, that the Armstrong steam trap's design required the use of that specific type of gasket to function properly. Plaintiff also testified that, in his experience, asbestos gaskets were "the only product that would work with the heat involved."

         Armstrong confirmed it manufactured steam traps and some of its traps contained a single internal gasket, which contained "an unknown quantity of non-friable chrysotile asbestos." The gasket was manufactured and supplied by an unrelated company. Armstrong also conceded the asbestos gaskets built into the steam traps "were necessary[, and] . . . standard in the industry for these types of products," and were specified as the proper replacement part for the steam traps.

         Armstrong argued summary judgment was appropriate because plaintiff was unable to identify either the manufacturer of the replacement gaskets he installed or whether the gaskets he replaced in the Armstrong steam traps were original to the trap. Plaintiff opposed the motion, noting Armstrong's concession that the original component gaskets installed in its steam traps contained asbestos until 1987, the recommended routine maintenance required replacement of the gaskets every one to two years with gaskets identical to the original specifications, and asbestos gaskets were the industry standard and considered necessary for proper function at the time.


         Burnham LLC

         While self-employed from 1959 to 1968, plaintiff installed twenty to thirty packaged, cast iron, oil-fired Burnham boilers. Plaintiff stated, in general, the process of installing a packaged boiler involved "moving the boiler around, taking it out of the crate, [and] moving it into place, . . . [which] created some dust from removing the insulation underneath the jacket." He described a gray dust, which he inhaled, as asbestos dust generated during the installation process. He stated the dust emanated from the boiler's gray-colored insulation that was visible through the "knock out hole where the piping would be hooked up."

         In moving for summary judgment, Burnham pointed out the inconsistencies in plaintiff's deposition testimony. Contrary to the above-cited testimony, plaintiff also conceded he could not specifically recall whether any of the Burnham packaged units had asbestos insulation under the jacket. In an affidavit submitted in support of its motion, Burnham's former Chief Engineer and Chief Operating Officer, Donald Sweigart, certified Burnham began phasing out the use of asbestos insulation in the metal jacket of boilers "beginning in the late 194 0s and early 1950s," completing the process "well before 1959"[5] when plaintiff installed the Burnham boilers.

         In his de bene esse deposition, taken prior to the summary judgment motions, plaintiff added that he cleaned approximately twelve Burnham cast iron sectional boilers. The process of cleaning a cast iron sectional boiler was "basically the same" for all boilers.[6] Each took approximately half an hour to two hours to clean. Plaintiff explained he used a wire brush and vacuum to clean the fireboxes[7] and it was "normal for some of the asbestos to come loose with the wire brush."

         Burnham filed a motion for summary judgment, arguing summary judgment was appropriate because plaintiff did not know the dates of manufacture of the boilers he installed nor their maintenance history. Burnham also argued plaintiff conceded he did not know whether the Burnham boilers he installed had asbestos insulation under their jackets and emphasized Swigert's affidavit that Burnham no longer used asbestos insulation in its products by 1959. Plaintiff countered he had presented evidence of exposure to asbestos in the cleaning and installation of the Burnham boilers and established the existence of material issues of fact.


         Carrier Corp.

         Between 1959 and 1968, plaintiff recalled cleaning and repairing less than ten Bryant[8] boilers that were packaged units with jackets. He described seeing dark gray asbestos insulation through the holes in the jacket of the boilers and stated it was "very possible" he disturbed the asbestos around the boiler during a repair. He explained that to repair a leak in a boiler's supply pipe, it was necessary to replace the asbestos- insulated pipe, resulting in a disturbance of the asbestos. In addition, any work on the boiler itself that required moving the jacket would disturb the asbestos insulation under the jacket because "[t]he jackets are not really substantially fastened to the boiler . . . [s]o when you're moving [the boiler], you were moving the whole jacket against the boiler . . . [and, ] after time, asbestos becomes brittle and flakes."

         In his de bene esse deposition, plaintiff further recalled installing one or two Bryant cast iron sectional boilers during the same timeframe. Installation of a cast iron section boiler required

removal of the existing heating plant, then moving the new heating plant into position which would include uncrating [the boiler to] move into a basement or a boiler room that same equipment and assembling it on the spot where it's going. By assembling it, you put a base together, install a firebox in that base and set the sections on top of that base and draw them together with draw rods. If the boiler came with a jacket, the jacket would be applied at that point. If it did not come with a jacket, then the asbestos coating would be applied at that point.
Once that jacket or coating is installed, then the piping to the house or building . . . is connected to the . . . boiler.

         Plaintiff also described how he constructed and installed the fireboxes for cast iron sectional boilers. Using bricks made with a refractory material able to withstand extreme temperatures, the firebox was

built up like you would build something with building blocks, put together with an asbestos type cement to hold it in place. Once that firebox is built up, you filled in the outsides with a Vermiculite type of insulation and capped it with an asbestos product, either the cement you used to put the bricks together or mix-up an asbestos powder and capped the top off so the Vermiculite did not fly out.

         Plaintiff was able to identify the cement used to construct the firebox as "asbestos type cement" because "asbestos [wa]s the only product at the time that you could mix and use as a bonding agent that would[]withstand [the] extreme heat of a firebox." The cans he used were marked "asbestos cement." Plaintiff also stated the asbestos cement generated dust that dried on his hands, which he "wiped on [his] clothes or wiped off on a rag." He also noted asbestos cement "normally came with the boiler itself," because "[t]he manufacturer supplied usually what was needed to put that boiler together."

         Carrier's corporate representative, Howard E. Jameson, conceded that Bryant boilers produced between 193 8 and 1963 contained asbestos-based components such as jacket insulation and rope gaskets. The brochures for some models of Bryant boilers even described the jackets as asbestos-insulated.

         Carrier filed a motion for summary judgment, arguing plaintiff's asbestos exposure from Bryant boilers was minimal. Carrier asserted plaintiff testified he did not install or remove Bryant boilers, cleaned fewer than ten of them, and could not specifically identify any unit or the maintenance history of any boiler he serviced.

         Plaintiff responded he presented evidence of installing new Bryant boilers on at least two occasions, disturbing the asbestos insulation each time, and had cleaned or repaired twelve to fifteen other Bryant boilers. Plaintiff asserted Carrier manufactured and distributed asbestos brick, cement, and rope gaskets, and admitted those products were used until the 1960s and 1970s.


         Cleaver-Brooks Inc.

         During the 1950s, plaintiff cleaned Cleaver-Brooks "pork chop" oil-fired boilers, although he could not recall a specific number of times. He also stated he was present during the installation of a Cleaver-Brooks boiler. These boilers were approximately eight to ten feet high and eight to twelve feet long, and each took one to two days to clean.

         When working on these boilers, plaintiff used a wire brush and vacuum to clean the soot inside of the boiler and, specifically, inside the boiler's firebox. The fireboxes were constructed of firebricks put together with asbestos cement and sometimes capped with a coat of asbestos. Plaintiff could not identify the manufacturer of the asbestos-containing materials in the boilers or the boilers' maintenance history or age.

         During the same timeframe, plaintiff testified he also cleaned and completed small repairs, such as cutting and replacing leaky tubes on Cleaver-Brook steel fire tube boilers. Plaintiff stated the cleaning process for a steel fire tube boiler was the same as other boilers and he was "[d]efinitely" exposed to asbestos when cleaning them. He conceded ignorance ...

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