New Jersey Court Finds Plaintiff’s Certification Speculative and Grants Defendant’s Summary Judgment Motion Superior Court of New Jersey, Middlesex County, January 10, 2017
Plaintiff John Burton filed suit in the Superior Court of New Jersey, Middlesex County, against various defendants, including Ingersoll Rand, alleging he developed mesothelioma from occupational exposure to asbestos during his work at a New Jersey facility that manufactured aluminum cans. During his discovery deposition, Burton testified that the production of aluminum cans required a washing system to which the facility had two “washing machines” that incorporated washing and decorating the cans. Burton recalled these washing machines had 12 pumps and testified generally that Ingersoll Rand was one of three manufacturers of these pumps. Burton alleges exposure through the service and repair of these pumps, working with original equipment manufacturer parts (OEMs), specifically gaskets.
Defendant Ingersoll Rand filed for summary judgment and the plaintiff opposed. On January 5, 2017, pursuant to procedures within New Jersey asbestos litigation, the court issued a tentative decision to deny the motion. After oral argument went forward on January 6, 2017, the court reserved its decision, and later issued a written ruling on January 10, 2017.
The crux of this motion centered on whether there was sufficient evidence to show that the Ingersoll Rand pumps that Burton allegedly repaired actually contained asbestos-containing parts. The plaintiff used Burton’s discovery deposition and certification as proofs. Burton’s deposition testimony revealed that kept an occupational journal, which was contemporaneous with the relevant years of his alleged exposure, and identified Ingersoll Rand as one of the pump manufacturers he worked with. However, Burton could not recall any model or serial number, color, marking, or even a nameplate for an Ingersoll Rand pump. The court noted that this lack of knowledge, in itself, some 30 years after the fact, would not defeat summary judgment.
The critical analysis in determining the actual exposure focused on defense counsel’s cross examination of Burton. Here, Burton acknowledged he was unable to provide any information as to anyone from his facility ordering any asbestos containing product from a New Jersey Ingersoll Rand facility. In support of its opposition to this motion, the plaintiff provided a certification on behalf of Burton that attempted to bolster this testimony. This certification referred back to OEMs stored in the facility’s storeroom, and Burton certified that, if there was a breakdown of a pump or he was performing preventative maintenance, and gasket materials were needed, he would obtain asbestos-containing sheet gaskets from the local supply house. Burton alleged he was not asked whether the OEM replacement gaskets on pumps he repaired contained asbestos, and if that question was asked, he would have testified they did contain asbestos.
When considering Burton’s certification as support to the plaintiff’s opposition, the court emphasized that Ingersoll Rand’s counsel painstakingly broke down Burton’s testimony and questioned him further regarding ordering OEMs from the facility’s storeroom. As this issue was already addressed and Burton confirmed he had no information, the certification was found to be speculative at best.
Accordingly, in reaching a decision, the court found no testimony that gave a reasonable inference that the storeroom at Burton’s facility was stocked with OEM parts, specifically gaskets. While Burton does recall Ingersoll Rand as one of three pump manufacturers and this was supported by a notation from his journal entry, he could not provide any further evidence of asbestos exposure associated with defendant Ingersoll Rand. And for those reasons, the court granted the defendant’s motion for summary judgment.