Sufficient Exposure Found to Reverse Prior Summary Judgment Decision in Favor of Asbestos Supplier Superior Court of New Jersey, Appellate Division, May 17, 2017

In October 2010, the plaintiff, Thomasina Fowler, individually and as administrator of the estate of Willis Edenfield (the decedent), brought a wrongful death and product liability action in the Superior Court of New Jersey against various defendants. The plaintiff alleged the decedent passed away from mesothelioma caused by asbestos exposure associated with defendants’ products. The complaint was filed after the decedent’s death and he was never deposed. Therefore, during discovery, the plaintiff produced two witnesses to testify as to the decedent’s occupational history. The decedent worked at a chemical plant from 1954-94, which manufactured asbestos-containing adhesive products.

The defendant supplier, along with other supply companies, allegedly supplied asbestos to this chemical plant. One fact-witness, Rodney Dover, testified that asbestos was present at the facility and recalled the defendant as one of the suppliers. Dover further testified that the decedent, as part of his job responsibilities, “scooped, weighed, and mixed the necessary ingredients, including asbestos.” The other fact-witness, Lucius Boyd, worked at this chemical plant prior to the time the defendant was a supplier. However, he further confirmed the chemical plant used asbestos while the decedent was employed there.

Following the completion of discovery, the defendant moved for summary judgment, which was granted. In reaching this decision, the trial court found “insufficient evidence the decedent was exposed to defendant’s asbestos while working at the chemical plant.”  The plaintiff’s counsel appealed and argued that the order should be vacated because “the evidence is sufficient to create a genuine issue of material fact as to whether decedent . . . was exposed to respirable asbestos from [defendant]’s products.” [Citation Omitted].

Upon review of the evidence, the Appellate Court agreed with the plaintiff. Here, the court emphasized that the trial judgment cited Provini when granting the defendant’s summary judgment motion. However, unlike the plaintiff in Provini, who could not provide evidence of the work the decedent performed, the plaintiff in the case at bar presented testimony, from co-workers, specifically describing decedent’s job responsibilities at the chemical plant. Also, unlike Provini, who presented no evidence the decedent was actually exposed to asbestos, the testimony established the decedent’s work involved frequent, direct contact with asbestos. The plaintiff was not merely claiming asbestos was present within the building the decedent worked in but the decedent frequently handled asbestos while performing his daily job duties. [Citation Omitted]. The court also noted that the plaintiff presented evidence that the defendant provided asbestos to the chemical plant over a 12-year period while the decedent was employed at the chemical plant and handled asbestos. This was enough to satisfy at least enough evidence to survive a motion for summary judgment in that a reasonable jury could infer the decedent suffered exposure to defendant’s asbestos.

Accordingly, the trial court’s order granting summary judgment was reversed.

Read the full decision here.

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