In the long-anticipated Fayer/Mystrena decision issued April 23, 2014, the Appellate Division held that an equipment manufacturer has a duty to warn that replacement component parts may contain asbestos. The Court found the imposition of such a duty to be "reasonable, practical and feasible." However, it rejected plaintiffs' argument that causation may be proved by the likelihood that defendant's equipment may have been used with asbestos-containing replacement parts, in the absence of proof that such parts were actually used and that plaintiff was actually exposed to them.
Plaintiffs had appealed from orders granting summary judgment to defendant Goulds' Pumps dismissing their claims with prejudice. The claims arose from plaintiffs' allegations that they contracted asbestos-related diseases as a result of their exposure to asbestos contained in component parts of pumps manufactured by Goulds.
The replacement of component parts was found to be part of regular maintenance. It was also found that the foreseeable market for replacement parts, for at least part of plaintiff's exposure period, was dominated by asbestos-containing parts. Therefore, it was reasonably foreseeable at the time the Goulds' pumps were placed into the marketplace that original gaskets and packing would be regularly replaced with gaskets and packing that contained asbestos. In the Court's view, a warning given at the time of the initial sale would ensure that this information was available to be considered in subsequent decisions regarding the choice of replacement parts and any additional safeguards for workers who made the replacements.
Plaintiffs must prove exposure to the asbestos from those specific replacement products frequently, on a regular basis, and with sufficient proximity so as to demonstrate the requisite causal connection between the exposure and plaintiffs' illnesses. To satisfy the standard, expert proof would usually be required to establish, even inferentially, that the exposures caused or exacerbated plaintiffs' eventual injuries. This proof would be in addition to the expert proof of the asbestos-related injury itself. Plaintiffs must still present evidence of sufficient exposure supported by appropriate expert testimony such that the exposure would cause disease.
In New Jersey, equipment manufacturers now have a duty to warn regarding replacement parts where there is proof that it is reasonably foreseeable that asbestos-containing replacement parts would have been used. Equipment manufacturers will likely turn their focus to developing evidence either that it was not foreseeable that their products would be used with asbestos-containing replacement parts, or that a plaintiff is unable to identify the manufacturers or seller of the replacement parts and that there is insufficient evidence of a plaintiff's exposure to friable asbestos from a replacement part.
The opinion has at least two potential and significant consequences. First, plaintiffs with cases against equipment manufacturers will now develop appropriate facts as to the manufacturer's knowledge of the marketplace for replacement parts. If they prove that the replacement parts likely contained asbestos, they may seek partial summary judgment as to liability for breach of the duty to warn and without the need for expert testimony. Second, plaintiffs must be specific as to their personal exposure to replacement parts. They cannot rely on being in the same area without evidence of "frequency, regularity and proximity" of exposure.
If you have any questions regarding this decision, feel free to contact Joel Clark at 973-822-1110.