“Frequency, Regularity and Proximity” Standard in New Jersey Law Acknowledged in Denying Two of Four Summary Judgments U.S. District Court for the District of New Jersey, December 19, 2016

The plaintiff was a machinist, pipe fitter and electrician from the 1950s-1970s and alleged asbestos exposure during his work at a variety of locations, including during home repair and automotive maintenance. In 2013, he was diagnosed with asbestosis. The plaintiff testified as to working with pumps as a machinist helper on the USS Kitty Hawk while working for the New York Shipyard. He also testified as to asbestos exposure while working as a sheet metal worker for the Pennsylvania Railroad.

Defendants Buffalo Pumps, DAP, Sid Harvey Industries, and Warren Pumps filed motions for summary judgment. The plaintiff filed no opposition to any of these motions. The court granted the summary judgments of Buffalo and Sid Harvey, but denied those of DAP and Warren.

Regarding Buffalo, the plaintiff did not identify Buffalo directly but upon cross-examination associated Buffalo with pumps or valves. Regarding DAP, the plaintiff testified about his use of DAP caulk and putty at home in the mid-1970s. DAP submitted an affidavit to show it made spackle compound but it never contained asbestos; further, in 1973, DAP decided to remove asbestos from its caulks and putty. Regarding Sid Harvey, the plaintiff testified he used Sid Harvey cement in the 1970s. Regarding Warren, the plaintiff testified that he did gasket work on pumps on the USS Kitty Hawk, USS Little Rock, and USS Savannah; he recalled Warren pumps at the New York Shipyard. Warren’s corporate representative provided testimony regarding types of Warren pumps shipped to the New York Shipyard.

The court granted the summary judgment with respect to Buffalo. The plaintiff could not ultimately say, during his deposition, whether any Buffalo pumps or valves were on board any ship upon which he worked, and the plaintiff offered no additional evidence or testimony which would allow a reasonable finder of fact to conclude that the plaintiff was exposed to asbestos attributable to Buffalo.

However, the court disagreed with DAP’s argument that the plaintiff failed to present sufficient evidence against DAP. New Jersey courts have on occasion applied a more relaxed frequency, regularity and proximity standard, finding proximate cause where a plaintiff was in close proximity in small rooms with friable asbestos. DAP argued of the two products identified by plaintiff, one – spackle – never contained asbestos. The plaintiff stated in a sworn affidavit that he used DAP caulk and spackle on a frequent and regular basis and that he was exposed to dust from them. Although DAP argued its products were wet and gooey, thus not friable, this was a question for the finder of fact.

Next the court granted the summary judgment of Sid Harvey. The only evidence was his bare-bones and conclusory answers in interrogatory responses, and he could not state in his deposition whether Sid Harvey cement contained asbestos.

Finally regarding Warren, the plaintiff supplied evidence that Warren pumps requiring asbestos components were supplied to New York Ship Building during his time of employment. Although Warren argued that the plaintiff did not testify that he specifically recalled working on Warren pumps, this was not fatal to his claims because the plaintiff supplied enough evidence to create an issue of fact.

Read the full decision here.

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