A-0778-11t2 Elbert Hughes v. A.W. Chesterton Co.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0778-11T2
A-0779-11T2
A-4912-11T2
A-4913-11T2

ELBERT HUGHES,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. April 23, 2014

A.W. CHESTERTON CO.; BRAND APPELLATE DIVISION
INSULATIONS, INC; FOSTER
WHEELER CORP.; GARLOCK,
INC.; METROPOLITAN LIFE;
WESTINGHOUSE ELECTRIC CORP.;
DURAMETALLIC CORP.; GENERAL
ELECTRIC CO., and MELRATH
GASKET & SUPPLY,

Defendants,

and

GOULDS PUMPS, INC.,

Defendant-Respondent.

________________________________________

MICHAEL GREEVER,

Plaintiff-Appellant,

v.

A.W. CHESTERTON CO.; BRAND
INSULATIONS, INC; FOSTER
WHEELER CORP.; GARLOCK, INC.;
METROPOLITAN LIFE; HOPEMAN
BROTHERS, INC.; INGERSOLL-RAND
CO. LTD.; MADSEN & HOWELL,
INC.; DURAMETALLIC CORP.;
WOOLSULATE CORP.; GENERAL
ELECTRIC CO.; and MELRATH
GASKET & SUPPLY,

Defendants,

and

GOULDS PUMPS, INC.,

Defendant-Respondent.

________________________________________

GREGORY FAYER, Executor of
the Estate of THOMAS FAYER,
Deceased,

Plaintiff-Appellant,

v.

A.W. CHESTERTON CO.; BRAND
INSULATIONS, INC; DURAMETALLIC
CORP.; FOSTER WHEELER CORP.;
GENERAL ELECTRIC CO.; METROPOLITAN
LIFE; OWENS-ILLINOIS, INC.; HOPEMAN
BROTHERS, INC.; MADSEN & HOWELL,
INC.; WOOLSULATE CORP.; and
INGERSOLL-RAND CO. LTD.,

Defendants,

and

GOULDS PUMPS, INC.,

Defendant-Respondent.

________________________________________

ANGELO MYSTRENA and
KATHLEEN MYSTRENA,

2 A-0778-11T2
 Plaintiffs-Appellants,

v.

A.W. CHESTERTON CO.; BRAND
INSULATIONS, INC; DURAMETALLIC
CORP.; FOSTER WHEELER CORP.;
METROPOLITAN LIFE; HOPEMAN BROTHERS,
INC.; MADSEN & HOWELL, INC.; WOOLSULATE
CORP.; and INGERSOLL-RAND CO. LTD.,

Defendants,

and

GOULDS PUMPS, INC.,

Defendant-Respondent.
_______________________________________________________________

Argued September 17, 2013 – Decided April 23, 2014

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket Nos.
L-5671-08, L-10779-08, L-5016-10, and L-
4208-10.

Franklin P. Solomon argued the cause for
appellants (Locks Law Firm, LLC, attorneys;
Mr. Solomon and James J. Pettit, on the
briefs).

Richard J. Mirra and Steven F. Satz argued
the cause for respondent (Hoagland, Longo,
Moran, Dunst & Doukas, LLP, attorneys; Mr.
Mirra and Mr. Satz, of counsel and on the
briefs).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

3 A-0778-11T2
 In these consolidated cases, we consider whether a

manufacturer has a duty to warn that component parts, which will

be regularly replaced as part of routine maintenance, contain

asbestos. Under the facts of this case, we find it would be

reasonable, practical and feasible to impose such a duty here.

However, we also reject plaintiffs' argument that causation may

be proved by proximity to defendant's product in the absence of

proof they were exposed to an asbestos-containing product

manufactured or sold by defendant and, therefore, conclude

plaintiffs failed to make a prima facie showing of causation.

Plaintiffs Michael Greever, Elbert Hughes, Thomas Fayer,1

and Angelo Mystrena (collectively plaintiffs) appeal from orders

that granted summary judgment to defendant Goulds Pumps, Inc.

(Goulds), dismissing their claims with prejudice. The claims

arise 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.2

1
Thomas Fayer's son, Gregory Fayer, brings this appeal on his
late father's behalf.
2
Thomas Fayer, a member of the Asbestos Workers Union, Local
14, was diagnosed with lung cancer in July 2009 and died in
January 2010 at the age of eighty-one. Angelo Mystrena, a
member of the International Association of Heat and Frost
Insulators and Asbestos Workers, Local 89, was diagnosed with
Footnote continued on next page.

4 A-0778-11T2
 The facts are largely undisputed. The majority of the

pumps manufactured by Goulds until 1985 contained asbestos in

their gaskets and packing. Because the pumps have a long useful

life, Goulds knew, at the time it introduced the pumps into the

marketplace, that these asbestos-containing parts would have to

be replaced as part of routine maintenance. By the time

plaintiffs worked in proximity to Goulds pumps, the original

gaskets and packing had been replaced, and it is unknown who

manufactured or supplied the replacement gaskets and packing.

All plaintiffs alleged that Goulds is strictly liable for

its failure to warn because it was foreseeable that asbestos-

containing products would be used when the gaskets and packing

were replaced. In addition, Fayer and Mystrena assert that

Goulds is liable on common law negligence grounds. Goulds

submits that plaintiffs failed to show they were exposed to

friable asbestos from a product it had manufactured,

distributed, sold, or supplied and that this failure was fatal

to their ability to present a prima facie case that Goulds was

strictly liable. In addition, Goulds argues that strict

liability principles are limited to those in the chain of

distribution of the product that caused harm.

asbestosis in December 2009. Greever and Hughes allege they
suffer from asbestos-related pulmonary disease.

5 A-0778-11T2
 We review the orders granting summary judgment using the

same standard as the trial court, Coyne v. N.J. Dep't of

Transp., 182 N.J. 481, 491 (2005), viewing the evidence in the

light most favorable to plaintiffs to determine whether there is

any genuine issue of material fact that precludes judgment in

favor of defendant as a matter of law. R. 4:46-2(c); see also

Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). The

circumstances of this case suggest that Goulds had a duty to

warn that component parts of its pumps contained asbestos.

However, despite drawing reasonable inferences from the record

in the light most favorable to plaintiffs, we also conclude that

summary judgment was properly granted here because plaintiffs

failed to make a prima facie showing of causation.

I

Goulds filed summary judgment motions in the Hughes and

Greever cases in August 2011. In support of its motions for

summary judgment,3 Goulds argued each plaintiff failed to present

evidence he was exposed to asbestos products it had

manufactured, distributed, or supplied at all, "let alone with

frequency, regularity and proximity" sufficient to meet the

3
The briefs in the Greever and Hughes matters were submitted
pursuant to Rule 2:6-1(a)(2). The motion briefs in the other
cases are not part of the record before us.

6 A-0778-11T2
standard adopted in Sholtis v. Am. Cyanamid Co., 238 N.J. Super.

8, 28-29 (App. Div. 1989).

In granting summary judgment, the trial court noted,

"obviously" plaintiff4 "worked on Goulds Pumps" but stated,

there's absolutely zero proof that Gould[s]
supplied, manufactured, or anything, the
replacement gaskets and packing, so what
this fellow may have been exposed to was a
product manufactured and sold by someone
else.

Plaintiff's counsel agreed but argued that Goulds should be

strictly liable for its failure to provide a warning because the

original component parts contained asbestos, the component parts

were necessary parts of the pumps, and, for much of the time

thereafter, the majority of replacement parts available

contained asbestos. The court stated summary judgment would

have been denied if there was proof Goulds required the use of

replacement parts that contained asbestos. However, the court

concluded summary judgment was appropriate as to both

plaintiffs' products liability and negligence claims in the

absence of such proof or evidence the replacement component

parts were manufactured or sold by Goulds.

4
The transcript of oral argument of the Greever motion has been
supplied, and plaintiff Hughes represents that the oral
arguments of the Hughes and Greever motions were conducted back
to back. No separate transcript of the Hughes oral argument has
been supplied as part of the record here.

7 A-0778-11T2
 In November 2011, Goulds filed a motion for summary

judgment in the Fayer and Mystrena matters. In support of its

motions, Goulds again asserted that each of the plaintiffs had

failed to present evidence "he was exposed to friable asbestos

manufactured, distributed and/or supplied by" Goulds. Although

plaintiffs disputed this assertion, they concede in their

appellate briefs that the manufacturers of the replacement parts

in use when they worked in proximity to Goulds pumps cannot be

identified.

The trial court granted summary judgment in the Fayer and

Mystrena cases. In its written decision, the court identified

the issue as "Goulds's liability for failure to warn in

connection with exposure to asbestos-containing replacement

parts that it did not specify, require, manufacture, sell,

supply or distribute." The court noted the replacement parts

were installed "five, 10, 20 and even 30 years after the sale of

the pumps or other devices" and that "the asbestos replacement

parts were not specified by the manufacturer nor were they

required for the operation of the device." The court concluded

that because long-standing New Jersey law requires the defect to

exist when the product leaves the defendant's control, liability

should be limited to those defendants in the chain of

distribution of the defective product.

8 A-0778-11T2
 In their appeal, plaintiffs Hughes and Greever argue that

the trial court erred in granting summary judgment on "product

identification," "component part liability," and on a theory

allegedly raised by the court sua sponte. Plaintiffs Fayer and

Mystrena argue Goulds is strictly liable for its failure to warn

of the asbestos hazard inherent in its product through the life

of the product, citing support for this argument from other

jurisdictions; Goulds is liable in negligence.

II

The Product Liability Act (PLA), N.J.S.A. 2A:-58(c)-1 to -

11, "generally 'leaves unchanged the . . . theories under which

a manufacturer . . . may be held strictly liable for harm caused

by a product,'" serving the Legislature's intent "that the

common law should fill the interstices left by the terms of the

Act." Jurado v. W. Gear Works, 131 N.J. 375, 384 (1993)

(internal citation omitted); see Senate Judiciary Committee,

Statement to Senate Committee Substitute for S. 2805 (Mar. 23,

1987).5 Moreover, because the asbestos claims asserted here fall

5
In addition, the legislative committee and sponsor statements
with regard to all product liability causes of action make clear
that warning defect cases are still largely governed by the
common law. See, e.g., Assembly Insurance Committee, Statement
to Senate Committee Substitute for S. 2805 (June 22, 1987);
Sponsor's Statement to S. 2805 (Nov. 17, 1986).

9 A-0778-11T2
within the environmental tort exception6 to the PLA, N.J.S.A.

2A:58C-6, In re Lead Paint Litigation, 191 N.J. 405, 439 (2007);

Stevenson v. Keene Corp., 131 N.J. 393, 395-96 (1993), common

law principles apply. As a result, plaintiffs' products

liability action "may rest on grounds of negligence, strict

liability, or both." James v. Bessemer Processing Co., 155 N.J.

279, 295-96 (1998). The most significant distinction between

the two causes of action is that, in a strict liability case, it

is presumed the seller "knew of the product's propensity to

injure as it did" while in the ordinary negligence case "such

knowledge must be proved; the standard is what the manufacturer

'knew or should have known.'" Id. at 296 (quoting Freund v.

Cellofilm Props., Inc., 87 N.J. 229, 239 (1981)); see also

Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 509-10

(1989).

A strict liability claim requires proof "'that the product

was defective, that the defect existed when the product left the

defendant's control, and that the defect caused injury to a

reasonably foreseeable user.'" Zaza v. Marquess & Nell, 144

6
N.J.S.A. 2A:58C-1(b)(4) defines such action as "a civil action
seeking damages for harm where the cause of the harm is exposure
to toxic chemicals or substances, but does not mean actions
involving drugs or products intended for personal consumption or
use."

10 A-0778-11T2
N.J. 34, 49 (1996) (quoting Feldman v. Lederle Labs., 97 N.J.

429, 449 (1984)). As alleged here, the defect is "the failure

to warn unsuspecting users that the product can potentially

cause injury." Id. at 57.

The analysis of whether strict liability applies thus

begins with the assumption the manufacturer or seller knew of

the product's defect and then proceeds to "the ultimate question

. . . whether the manufacturer acted in a reasonably prudent

manner" as of the time the product was introduced into the

marketplace. Id. at 49-50; Fischer v. Johns-Manville Corp., 103

N.J. 643, 654 (1986); Feldman, supra, 97 N.J. at 450-51; Green

v. General Motors Corp., 310 N.J. Super. 507, 516 (App. Div.),

certif. denied, 156 N.J. 381 (1998). A defendant satisfies its

obligation by proving it "acted in a reasonably prudent manner

in marketing the product or in providing the warnings given."

Feldman, supra, 97 N.J. at 451.

The mere absence of a warning on an asbestos-containing

product does not render the product defective. Despite the

"unique problems in litigation" presented by asbestos cases,

Provini v. Asbestospray Corp., 360 N.J. Super. 234, 237-38 (App.

Div. 2003), "[o]ur courts have acknowledged that asbestos-

containing products are not uniformly dangerous and thus" it

should not be presumed that all such products "pose the same

11 A-0778-11T2
risks about which the users of those products must be warned,

regardless of the differences in those products." Becker v.

Baron Bros., 138 N.J. 145, 159-61 (1994); see also James, supra,

155 N.J. at 309-10. Because "the term 'asbestos-containing

products' describes a variety of materials with differing

amounts of asbestos and different built-in safeguards," Becker,

supra, 138 N.J. at 160, the "analysis should focus on the

specific product before the court." Id. at 159. The Court

explicitly rejected the notion that "any friction product that

contains asbestos is defective if it does not contain a

warning." Id. at 154.

The plaintiff in an asbestos failure to warn case must also

prove two types of causation: product-defect causation and

medical causation. Product-defect causation requires proof that

the defect — here, a failure to warn — existed when the product

left the defendant's control and that the absence of a warning

caused injury to a reasonably foreseeable user.7 James, supra,

155 N.J. at 296; Becker, supra, 138 N.J. at 152; Coffman, supra,

133 N.J. at 593-95; Goss v. Am. Cyanamid, Co., 278 N.J. Super.

227, 235-37 (App. Div. 1994). To present a prima facie case of

7
We presume that, if a warning had been provided, plaintiffs
would have heeded the warning. Coffman v. Keene Corp., 133 N.J.
581, 603 (1993).

12 A-0778-11T2
medical causation, a plaintiff must satisfy the "frequency,

regularity and proximity" test we adopted in Sholtis, supra, 238

N.J. Super. at 28-29.

III

We first address the question whether Goulds had a duty to

provide a warning here.8 In Michalko v. Cooke Color & Chem.

Corp., 91 N.J. 386, 394 (1982), the Court stated, "Under New

Jersey law, manufacturers, as well as all subsequent parties in

the chain of distribution, are strictly liable for damages

caused by defectively designed products." Ibid. In

Promaulayko, supra, 116 N.J. at 511, the Court expressly

included distributors and retailers who "may be innocent

conduits in the sale of the defective product" as subject to

liability. Relying upon such principles, Goulds argues that it

owed no duty to plaintiffs who were allegedly harmed by

replacement parts because it was not in the "chain of

distribution" of those parts. We view Goulds's interpretation

of the "chain of distribution" as unduly limited when applied to

the facts of this case.

A warning is intended to reduce the risk from a product "to

the greatest extent possible without hindering its utility."

8
Because this case is not governed by the PLA, our analysis is
not limited by the statutory definitions for parties who may be
held liable. See N.J.S.A. 2A:58C-8.

13 A-0778-11T2
Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 201 (1982).

The duty to warn requires a manufacturer or supplier of products

to "take reasonable steps to ensure that its warning reaches"

the employees who will use the product in question. Coffman,

supra, 133 N.J. at 606. Such reasonable steps may include:

providing a warning to persons other than the ultimate user,

see, e.g., Michalko, supra, 91 N.J. at 402 (holding it may be

necessary for the manufacturer or seller to provide a warning to

both the employer and the employee who uses an unsafe product so

the employer is aware of the need to alert employees to the

danger posed); see also Davis v. Wyeth Labs, Inc., 399 F.2d 121,

131 (9th Cir. 1968) (holding drug manufacturer had duty to

ensure that warnings of drug's risks reached both doctor and

consumer); may extend to products it has not placed in the

stream of commerce, see, e.g., Molino v. B.F. Goodrich Co., 261

N.J. Super. 85, 93 (App. Div. 1992), certif. denied, 134 N.J.

482 (1993); Seeley v. Cincinnati Shaper Co., Ltd., 256 N.J.

Super. 1, 18 (App. Div.), certif. denied, 130 N.J. 598 (1992);

see also Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069,

1076-77 (Wash. 2012) (finding, based upon "the general rule that

a manufacturer in the chain of distribution is subject to

liability for failure to warn of the hazards associated with use

of its own products," that defendants could be strictly liable

14 A-0778-11T2
because "when the products were used exactly as intended and

cleaned for reuse exactly as intended they inherently and

invariably posed the danger of exposure to asbestos"); and, when

a manufacturer learns of dangers associated with its product

after the product has left its control, may require the issuance

of warnings thereafter. Molino, supra, 261 N.J. Super. at 93.

As we have noted, the nature of the product is an important

factor in assessing the reasonableness of defendant's conduct in

failing to provide a warning. It is undisputed that the pump as

originally marketed had gaskets and packing that contained

asbestos. However, the parties disagree as to whether this made

the pump dangerous. See Becker, supra, 138 N.J. at 158-59

(finding that a jury question was presented by conflicting

expert testimony regarding the risk posed by processed

chrysotile asbestos).

Eugene Bradshaw, Goulds's corporate designee, testified it

was reasonable for Goulds to conclude there were no risks

associated with the asbestos components because the gasket is

contained between metal parts and the packing "contains

rubberizing gumming things, and it's lubricated when it's being

used." However, plaintiffs presented evidence that workers were

exposed to asbestos when the gaskets and packing were replaced.

Like his father, Thomas, Gregory Fayer was a member of the

15 A-0778-11T2
Asbestos Workers Union, Local 14, and worked as an insulator.

He supplied a certification in which he recounted his personal

observations of such replacements and stated, "[t]he dust from

removing old gaskets and cutting and fitting new gaskets in

Goulds pumps and the dust from pulling out old packing and

stuffing in new packing in Goulds pumps, was visible, and was in

the air where Thomas Fayer was working."

Although we have little evidence from the record regarding

the specific dangers posed by the asbestos contained within the

replacement parts, plaintiffs are entitled to the inference that

the replacement of gaskets and packing posed a risk of asbestos

exposure to workers in proximity to the replacement work. See

Becker, supra, 138 N.J. at 165 (predicting that "products-

liability-case defendants will rarely, if ever, be able to

produce any evidence demonstrating that a dangerous asbestos

product marketed without a warning . . . is not defective.").

Under a strict liability analysis, Goulds is presumed to know of

any danger its product, which included the asbestos-containing

components, posed to users. James, supra, 155 N.J. at 296.

Proceeding on the assumption that the lack of a warning

rendered the original pump dangerous when it entered the

marketplace, we turn to determining the foreseeable users and

uses of the product. See Campos v. Firestone Tire & Rubber Co.,

16 A-0778-11T2
98 N.J. 198, 206 (1984) ("Generally, the duty to warn extends

only to foreseeable users of the product and to uses that

reasonably should have been objectively anticipated.")

Plainly, when a manufacturer requires the use of a

component part, the danger posed by that replacement part is

reasonably anticipated. See Molino, supra, 261 N.J. Super. at

93-94. Further, when the danger posed by a product was

"inherent in the machine as originally manufactured" and the

specific replacements "could reasonably have been contemplated,"

we held that the mere replacement of major components in a

machine will not absolve the manufacturer of a duty to warn.

Seeley, supra, 256 N.J. Super. at 18. But see Surre v. Foster

Wheeler LLC, 831 F. Supp. 2d 797, 800-01 (S.D.N.Y. 2011)

(addressing question whether a manufacturer had "a duty to warn

against the dangers of a third party's product that might be

used in conjunction with its own" and observing that, generally,

no duty arises if the manufacturer "had no control over the

production of the defective product[,] did not place it into the

stream of commerce[,] . . . and played no part in selecting the

defective product") (emphasis added).

In this case, asbestos-containing gaskets and packing posed

an inherent danger in the pumps as originally manufactured. The

fact that these component parts would be replaced regularly as

17 A-0778-11T2
part of routine maintenance did not absolve Goulds of any duty

to warn because it was reasonably foreseeable that these

components would be replaced as part of regular maintenance.

See Seeley, supra, 256 N.J. Super. at 18; Ridenour v. Bat Em

Out, 309 N.J. Super. 634, 642-43 (App. Div. 1998) (holding that

because reasonably anticipated use includes foreseeable misuse,

a duty exists to warn against foreseeable misuses of a product).

Although Goulds did not require that either the original

gaskets and packing or their replacements contain asbestos, its

corporate designee was unaware of any substitutes for asbestos

for the components in Gould's pumps until the late 1960s or

early 70s. Therefore, it was reasonably foreseeable, at the

time the pumps were placed into the marketplace, that the

gaskets and packing would be replaced regularly with gaskets and

packing that contained asbestos. Goulds could not rely upon

plaintiffs' employers or others responsible for the replacement

parts to issue a warning to employees because the duty to warn

is nondelegable. See Beadling v. William Bowman Assocs., 355

N.J. Super. 70, 88 (App. Div. 2002). As a result, the

foreseeable class of users included not only those workers who

came into contact with the pumps as originally manufactured, but

also those workers who came into contact with the component

18 A-0778-11T2
parts as part of regular maintenance. Plaintiffs fall within

this latter class.

Foreseeability of harm is "'a crucial element in

determining whether imposition of a duty on an alleged

tortfeasor is appropriate.'" Carvalho v. Toll Bros. &

Developers, 143 N.J. 565, 572 (1996) (quoting Carter Lincoln-

Mercury, Inc. v. EMAR Grp., Inc., 135 N.J. 182, 194 (1994)).

However, although an important consideration, foreseeability of

injury is not dispositive. Estate of Desir ex rel. Estiverne v.

Vertus, 214 N.J. 303, 317 (2013); Kuzmicz v. Ivy Hill Park

Apts., 147 N.J. 510, 515 (1997). Even when it has been

determined that harm to a particular individual is foreseeable,

"considerations of fairness and policy govern whether the

imposition of a duty is warranted." Olivo v. Owens-Illinois,

Inc., 186 N.J. 394, 401-03 (2006) (citing Carter Lincoln-

Mercury, supra, 135 N.J. at 194-95). We conduct our inquiry "in

light of the actual relationship between the parties under all

of the surrounding circumstances," Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426, 438 (1993), to determine "whether the

imposition of such a duty satisfies an abiding sense of basic

fairness under all of the circumstances in light of

considerations of public policy." Id. at 439.

19 A-0778-11T2
 "The overriding goal of strict products liability is to

protect consumers and promote product safety," Fischer, supra,

103 N.J. at 657. In Becker, supra, 138 N.J. at 165-166, the

Supreme Court noted the following observation with approval:

Experience demonstrates that an asbestos-
related product is unsafe because a warning
could have made it safer at virtually no
added cost and without limiting its utility.
Indisputably, a warning would have lessened
exposure and avoided countless injuries.

[Ibid. (quoting Campolongo v. Celotex Corp.,
681 F. Supp. 261, 264 (D.N.J. 1988)).]

Mindful that the purpose of a warning is to reduce the risk

of a product "to the greatest extent possible without hindering

its utility," Beshada, supra, 90 N.J. at 201, we also assume

that the cost of including a warning when the pump is originally

marketed would have "but a slight impact on the risk-utility

analysis, since such cost would generally have little, if any,

effect on a product's utility," Campos, supra, 98 N.J. at 207,

and that the manufacturer has the capacity to include any

attendant additional cost to purchasers as needed.

In Zaza, supra, 144 N.J. at 50, the Court considered

whether the duty to install safety devices should be imposed

when the "finished product is the result of work by more than

one party." The Court stated, "a court must examine at what

stage installation of safety devices is feasible and

20 A-0778-11T2
practicable." Ibid. That reasoning is equally apt in

considering whether there should be a duty to warn at the

initial marketing stage here.

We note that imposing a duty to warn at that stage is more

likely to affect the entire class of foreseeable users than at

any other time in the life of the pump. Since the risk of

exposure continued and was perhaps increased by the replacement

process, 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. We therefore conclude that it would be

reasonable, practical, and feasible to impose a duty to warn

upon Goulds under the facts here.

IV

Generally, the most difficult problem for plaintiffs in

toxic tort cases is the burden of proving causation. See Ayers

v. Jackson Twp., 106 N.J. 557, 585 (1987). Summary judgment was

appropriate here because plaintiffs failed to satisfy that

burden.

The Sholtis causation standard was first pronounced in

Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63

(4th Cir. 1986). See, e.g., James, supra, 155 N.J. at 300-03;

21 A-0778-11T2
Vassallo v. Am. Coding & Marking Ink. Co., 345 N.J. Super. 207,

215-16 (App. Div. 2001). "To support a reasonable inference of

substantial causation from circumstantial evidence, there must

be evidence of exposure to a specific product on a regular basis

over some extended period of time in proximity to where the

plaintiff actually worked." Lohrmann, supra, 782 F.2d at 1162-

63. These factors "should be balanced for a jury to find

liability." Sholtis, supra, 238 N.J. Super. at 28. The purpose

for this stringent standard was for liability to be assigned

"only to those defendants to whose products the plaintiff can

demonstrate he or she was intensely exposed." James, supra, 155

N.J. at 302-03. Therefore, in opposing summary judgment,

plaintiffs were required to "produce evidence from which a fact-

finder, after assessing the proof of frequency and intensity of

plaintiff's contacts with a particular manufacturer's friable

asbestos, could reasonably infer toxic exposure." Sholtis,

supra, 238 N.J. Super. at 29 (emphasis added).

Proof of direct contact "is almost always lacking," James,

supra, 155 N.J. at 301 (quoting Sholtis, supra, 238 N.J. Super.

at 29), and need not be proven by direct evidence of asbestos

exposure. Goss, supra, 278 N.J. Super. at 236. A plaintiff may

"rely upon circumstantial proof of sufficiently intense

22 A-0778-11T2
exposure," generally accompanied by expert proof,9 to warrant the

imposition of liability. James, supra, 155 N.J. at 301-02

(quoting Sholtis, supra, 238 N.J. Super. at 29); see also Kurak

v. A.P. Green Refactories Co., 298 N.J. Super. 304, 314 (App.

Div.), certif. denied, 152 N.J. 10 (1997).

Still, liability should not be imposed on mere guesswork.

Provini, supra, 360 N.J. Super. at 237-38. "Industry should not

be saddled with . . . open-ended exposure based upon 'a casual

or minimum contact.'" Sholtis, supra, 238 N.J. Super. at 29

(quoting Lohrmann, supra, 782 F.2d at 1162). Even if plaintiffs

are able to show that asbestos-containing products supplied by

defendant "were in use at the plant," such evidence is

insufficient for the imposition of strict liability "without

actual proof linking the exposures of [plaintiffs] to those

products." Goss, supra, 278 N.J. Super. at 236. Plaintiffs

must prove "that each of them were exposed to the asbestos from

those specific products frequently, on a regular basis, and with

sufficient proximity so as to demonstrate the requisite causal

9
To satisfy the standard, "[e]xpert 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." Sholtis, supra, 238 N.J. Super. at 29 n.16; see
also Vassallo, supra, 345 N.J. Super. at 215-16. The record
before us does not disclose if plaintiffs submitted such expert
evidence.

23 A-0778-11T2
connection between the exposure and plaintiffs' illnesses." Id.

at 236-37.

We have required that plaintiffs present proof the injured

party has had such exposure to specific products manufactured or

sold by the defendant. For example, in Vassallo, supra, 345

N.J. Super. at 215-16, we found plaintiff had presented proof

"she was regularly and frequently exposed to Resisto marking

ink," the defendant's product, which made her ill. In contrast,

in Provini, supra, 360 N.J. Super. at 237-238, we affirmed an

order granting summary judgment where plaintiff was unable to

prove the decedent was ever exposed to the asbestos-containing

product during his employment, rejecting the argument that it

should be assumed he was exposed because the product was used by

his employer during the time he was employed. See also Kurak,

supra, 298 N.J. Super. at 315-22 (reviewing cases in which

evidence of exposure was found sufficient and insufficient).

Plaintiffs argue they demonstrated the requisite contact to

survive summary judgment by showing they had sufficient contact

with Goulds pumps, without regard to what contact they had with

the component parts that allegedly caused their injuries. While

it is true that the alleged defect in the pump was a failure to

warn, it is also true that plaintiffs allege they were injured

by asbestos contained in parts that were replaced long after the

24 A-0778-11T2
pumps left Goulds's control. We do not agree that plaintiffs

may prove causation by showing exposure to a product without

also showing exposure to an injury-producing element in the

product that was manufactured or sold by defendant. If that

were the case, a manufacturer or seller who failed to give a

warning could be strictly liable for alleged injuries long after

the product entered the marketplace even if the injury-producing

element of the product no longer existed. The imposition of

liability based upon such proofs would rest upon no more than

mere guesswork, Provini, supra, 360 N.J. Super. at 238, and

would fail to limit liability "only to those defendants to whose

products the plaintiff can demonstrate he or she was intensely

exposed." James, supra, 155 N.J. at 302-03.

Plaintiffs concede they are unable to identify the

manufacturer or seller of the replacement parts that allegedly

made them ill. Because they failed to produce evidence they had

any contact with friable asbestos in replacement parts that were

manufactured or sold by Goulds, summary judgment was

appropriate. See Sholtis, supra, 238 N.J. Super. at 29.

V

Plaintiffs Fayer and Mystrena also argue that their

negligence claims against Goulds should have survived summary

judgment. We disagree.

25 A-0778-11T2
 Although common law negligence is an available cause of

action to product liability plaintiffs, the Supreme Court has

recognized that "strict liability was more appropriate than

negligence doctrine for resolution of inadequate warning cases."

Coffman, supra, 133 N.J. at 598 (citing Freund, supra, 87 N.J.

at 237). Moreover, a negligence claim requires proof that

defendant knew or should have known that the failure to warn had

the propensity to injure these plaintiffs. Freund, supra, 87

N.J. at 239. Because plaintiffs failed to present such proof,

summary judgment was properly granted.

Affirmed.

26 A-0778-11T2