HENRY W. LATTER, JR. v. 3M COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HENRY W. LATTER, JR., individually

and as Executor and Executor ad

Prosequendum of the Estate of

HENRY W. LATTER, SR.,

Plaintiff-Appellant,

v.

3M COMPANY; ADVANCE STORES COMPANY, INCORPORATED, a/k/a Western Auto Supply Company; AUTOBACS STRAUSS, INCORPORATED, d/b/a Strauss Discount Auto, individually and as successor to R&S Strauss; BONDEX INTERNATIONAL, INCORPORATED; BORG-WARNER MORSE TEC, f/k/a Borg Warner; BOSCH BRAKING SYSTEMS CORPORATION; CBS CORPORATION, a Delaware Corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; CERTAINTEED CORPORPOATION; CHRYSLER, LLC; CLARK EQUIPMENT COMPANY, a/k/a Clark-Hurth; CNH AMERICA, LLC; CUMMINS, INCORPORATED; DANA COMPANIES, LLC, individually and as successor-in-interest to Clark Equipment Company and Clark-Hurth; EATON CORPORATION, d/b/a Airflex; EMERSON ELECTRIC CORPORATION, successor to Lipe Rollway Corporation; FORD MOTOR COMPANY; GKN ROCKFORD, INCORPORATED, individually and as successor to Rockford Clutch; GALION, GENERAL MOTORS CORPORATION; GEORGIA PACIFIC, LLC; GOODRICH CORPORATION, f/k/a B.F. Goodrich Company; HONEYWELL INTERNATIONAL, INCORPORATED, individually and as successor-in-interest to The Bendix Corporation; INGERSOLL-RAND COMPANY, individually and as successor-in-interest to Clark Equipment Company and Clark-Hurth; KAISER GYPSUM; KOMATSU AMERICA CORPORATION, individually and as successor-in-interest to Galion Iron Works; NATIONAL AUTOMOTIVE PARTS ASSOCIATION (NAPA), a/k/a Genuine Parts Company; THE PEP BOYS MANNY MOE & JACK OF DELAWARE, INCORPORATED; PNEUMO-ABEX, LLC, as successor-in-interest to Abex Corporation, f/k/a American Brake Shoe Company; THE GLIDDEN COMPANY, d/b/a ICI Paints; THE SHERWIN-WILLIAMS COMPANY; UNION CARBIDE CORPORATION; DRAVO CORPORATION; LIPE AUTOMATION CORPORATION, f/k/a Lipe Rollway Corporation; ADVANCE STORE COMPANY, INC. and ADVANCE AUTO PARTS, INC. and ADVANCE AUTO PART, INC., individually and as successor to Western Auto Supply Co. and Western Auto; SETCO AUTOMOTIVE, N.A., INC., a/k/a Setco Lipe Clutch; ADVANCE STORES COMPANY, INC., individually and a/k/a Advanced Auto Parts, Inc.; E.I. DU PONT DE NEMOURS AND COMPANY; WESTERN AUTO SUPPLY CORP., individually and a/k/a Western Auto; NATIONAL OILWELL VARCO, L.P., as successor in interest to Hydralift AM Clyde, Inc. and AM Clyde Engineered Products, Inc., f/k/a Clyde Iron Works; SHEPARD NILES; SUPERIOR-LIDGERWOOD-MUNDY; KONECRANES, INC., as successor to and d/b/a Shepard-Niles; and PENNSYLVANIA S&N, INC., individually and as successor-in-interest to Shepard Niles., Inc.,

Defendants,

and

AMERICAN ATLANTIC COMPANY, as successor to American Dredging; WEEKS MARINE, INCORPORATED, individually and as successor to American Dredging Company,

Defendants-Respondents.

March 3, 2015

Argued February 11, 2015 Decided

Before Judges Maven and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10370-08.

Jeffrey P. Blumstein argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., and Levy Konigsberg, LLP, attorneys; Mr. Blumstein and Robert E. Lytle, on the briefs).

Tara L. Pehush argued the cause for respondents (K&L Gates, attorneys; Ms. Pehush, Angela DiGiglio, Michael E. Waller, on the brief).

PER CURIAM

Plaintiff, Henry W. Latter, Sr.,1 was diagnosed with mesothelioma on June 24, 2008, as a result of his exposure to asbestos. He died from that disease on June 20, 2009. Prior to his death, he was employed on various commercial dredges and other commercial ships, during which he allegedly worked with numerous asbestos-containing products and was exposed to asbestos fibers, dust, and particles. On January 10, 2014, the Law Division granted summary judgment dismissing plaintiff's claims against defendants Weeks Marine, Inc. and American Atlantic Company (collectively Weeks, or defendant). The trial court found that plaintiff failed to establish that he was exposed to asbestos while working aboard defendant's vessels. Plaintiff appeals, arguing that he presented sufficient evidence of his exposure to asbestos while employed by defendant. We agree and reverse.

I.

Following are the salient facts viewed in a light most favorable to plaintiff. Plaintiff was intermittently employed as a deckhand and general maintenance worker for American Dredging Company,2 Weeks' predecessor in interest, from 1962 to 1978. Also, from 1963 to 2003, plaintiff worked for various other companies, including Ballards/Bowers Dredge,3 Standard Dredge, Arundel Dredge, and Dutra Dredge.

Following his mesothelioma diagnosis, plaintiff filed suit against Weeks and numerous other defendants stemming from his exposure to asbestos.4 Specific to Weeks, plaintiff asserted a Jones Act negligence claim under 46 U.S.C.A. 30104 and a general maritime unseaworthiness claim under 28 U.S.C.A. 1333.

During discovery, plaintiff submitted to several days of discovery depositions, followed shortly thereafter by a de bene esse deposition. During his discovery deposition, plaintiff recounted that over the years he had worked on various of defendant's dredges, including the Pennsylvania, the Philadelphia, the Tacony, the Merlin,5 and the New York. Regarding his exposure to asbestos on these dredges, plaintiff testified

Q. Do you believe you were exposed to any asbestos or asbestos-containing products when working with American Dredge?

A. Yes.

Q. What asbestos or asbestos products do you believe you were exposed to?

A. The dredge is a barge, and it pulls itself ahead on cables, and these cables have winches, and they have asbestos brake linings, and we have to get in there every now and then and change them.

Q. Any other exposure to asbestos that you believe occurred when you worked for American Dredge in Camden?

A. Yes. On the dredge Pennsylvania and New York, they had boilers, and they had piping that was covered in asbestos, and we would have to go in and rewrap the pipes. . . .

. . . .

[W]e would have to do the same in the boilers.

. . . .

Q. When you were installing piping, do you believe you were exposed to asbestos?

A. Yes.

Q. What asbestos products do you believe you were exposed to when you were installing piping?

A. The piping that they wrapped with asbestos.

. . . .

Q. How were you exposed to asbestos when doing cleaning on the dredge?

A. We would go into the fire room and we would take the old wrappings around the pipe . . . off, and then wipe it down with the wire brush, and then redo it.

Q. How many times did you do this?

A. In [twenty-two, twenty-three] years, probably a couple of hundred.

Q. Was there dust when you would be in the fire rooms removing the old wrapping?

A. Yes, ma'am.

Q. What did the old wrapping look like?

A. It was white and it had like a canvas to it.

Q. Could you tell who manufactured that old insulation or old wrapping?

A. I believe it might have been 3M or Certain [T]eed.

Q. Did you ever wear a mask when removing this old wrapping?

A. No.

During his discovery deposition, plaintiff specified that he had participated in the insulation of boiler units on the Philadelphia and the Pennsylvania. He further testified that he had changed the brake linings some eighty to ninety times on those two vessels, but had not done so on the Merlin or the New York. Plaintiff also named three men who he worked "side-by-side" with "rewrapping pipes and removing pipe insulation on the dredges" who had died of mesothelioma. Additionally, he had worked with bags of "loose asbestos," which was then mixed with water and used in rewrapping pipes.

Plaintiff was unsure whether the Certain Teed wrapping, burlap product, joint compound/cement, or 3M joint compound/cement that was used aboard the dredges contained asbestos. He did not know if the insulating materials made by 3M and Kaiser Gypsum, or the gaskets manufactured by 3M to install boilers on the dredges, contained asbestos.

During his de bene esse deposition, plaintiff testified that he had also worked on another of defendant's dredges, the Delaware Valley, which he had not previously named during his discovery deposition. He confirmed his previous testimony regarding the various tasks he performed while in defendant's employ, including brake repair, which involved drilling out the pads, cleaning loose material in the brakes, and replacing the pads. This work required plaintiff and his coworkers to catch and bag substantial dust and debris. Plaintiff observed the name "Bendix" on an air brake cylinder, but did not know whether he was exposed to asbestos from using the Bendix brake cylinder.

Regarding the piping and insulation work he performed on defendant's dredges, plaintiff testified

Q. When you were not actually changing the insulation, would it decompose or break apart by itself anyway?

A. Yes, sir.

Q. Okay. Was it dusty, dirty work?

A. Oh it was - - there [were] always pieces laying around.

Q. Would it go up into the air also?

A. Yeah, it would. You know, it was all over the place.

Q. While you were actually doing the changing of the work, taking off the old and putting on the new, can you describe what it was like in terms of the conditions?

A. It was dirty, dusty work.

. . . .

Q. Did you ever use a mask or a respirator?

A. No. I did not.

Q. Were you ever offered one?

A. No.

Q. Do you remember any of the brands of the pipe wrapping or insulation material that you used aboard the dredges?

A. Basically, it was all the same materials, Certain [T]eed, Kaiser Gypsum, 3M. That's about the best I can remember.

Weeks moved for summary judgment, arguing that plaintiff did not establish that its dredges were unseaworthy or that it failed to provide a safe workplace. Plaintiff opposed the motion, relying on the deposition testimony, as well as certain documents produced by defendant during discovery related to the New York and Delaware Valley dredges.6 Among these documents were (1) a schematic of the Delaware Valley's exhaust system showing that asbestos was to be used to insulate the vessel's pipes; (2) a parts list and instruction book for the Delaware Valley showing that three of its winches contained molded asbestos composition friction blocks; and (3) a manual showing that the New York contained three winches for propulsion that were manufactured by Clyde Iron, all of which required asbestos.

Plaintiff produced the expert report of Jacqueline Moline, M.D., MSc., who opined that plaintiff's mesothelioma was "a result of his occupational exposures to asbestos." She noted that plaintiff had decades of exposure to asbestos on defendant's dredges, in addition to his other employment.

Plaintiff also retained an expert on the hazards of asbestos in the industrial field, Barry Castleman, Sc.D. Castleman's report referenced minimum safety requirements adopted as early as 1943 pursuant to which shipyard employers were to provide employees working around asbestos-containing materials with approved respiratory equipment. He concluded

It is my opinion to a reasonable degree of scientific certainty appropriate to the field of industrial hygiene that maritime industry employers, especially those reliant on federal contracts, knew or should have known of the hazards of asbestos and the procedures necessary to protect their workers from them, in 1962 when [plaintiff] started working for [defendant].

On December 20, 2013, the motion judge conducted oral argument, and on January 10, 2014, rendered an extensive oral opinion granting summary judgment to defendant. With respect to plaintiff's negligence claims, the judge found that plaintiff was unable to "establish a reasonable inference that asbestos was actually present on the vessels he worked on or that [he] was actually exposed to asbestos." Additionally, the judge granted summary judgment on plaintiff s general maritime unseaworthiness claim because "it would be mere speculation for the [c]ourt to find the presence of an asbestos component on one ship simply because the component may have been on another ship." Plaintiff appeals.

II.

A.

The principles guiding our review of an order of summary judgment are well-established. Consideration of a request for summary judgment, as permitted by Rule 4:46-2(c), requires the court's review of "'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,'" to determine whether they "'show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995) (quoting R. 4:46-2). When undertaking such a review, a motion judge does not make credibility determinations or perform the typical weighing of evidence that a fact-finder would; rather, the judge analyzes and sifts through evidential materials to "determine 'the range of permissible conclusions that might be drawn.'" Id. at 531 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S. Ct. 1348, 1361, 89 L. Ed. 2d 538, 558 (1986)). See also Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 167 (1985) (requiring a motion judge to make a "discriminating search" of the evidence). Inevitably, the judge must consider not just the quantum of proof, but the quality of evidence as well. Brill, supra, 142 N.J. at 534-35 (citations omitted).

Our review of a summary judgment order is de novo, Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007), during which we employ the same standards used by the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first determine whether the moving party has demonstrated that no genuine disputes exist as to any material facts, and then we decide whether the application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006).

B.

Plaintiff's complaint seeks relief pursuant to the Jones Act, which "establishes a cause of action for negligence for injuries or death suffered in the course of employment, but only for seamen." Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 817, 121 S. Ct. 1927, 1932, 150 L. Ed. 2d 34, 41-42 (2001). "A Jones Act claim is an in personam action for a seaman who suffers injury in the course of employment due to negligence of his employer, the vessel owner, or crew members." Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441, 121 S. Ct. 993, 997, 148 L. Ed. 2d 931, 937 (2001). A Jones Act negligence claim has four elements: duty, breach, notice, and causation. Ribitzki v. Canmar Reading & Bates. Ltd., 111 F.3d 658, 662 (9th Cir. 1997). Thus, a seaman must establish that his employer "was negligent and that this negligence was a cause, however slight, of his injuries." Ibid. This test is often called a featherweight causation standard because the "'quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence, . . . and even the slightest negligence is sufficient to sustain a finding of liability.'" Ibid. (quoting Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993)). Thus, only "the slightest proof of causation" is required to survive summary judgment on a Jones Act claim. Ribitzki, supra, 111 F.3d at 664.

Plaintiff also asserts claims under general maritime law for unseaworthiness and negligence. "It is settled that the general maritime law imposes duties to avoid unseaworthiness and negligence. . . ." Norfolk Shipbuilding, supra, 532 U.S. at 813, 121 S. Ct. at 1929, 150 L. Ed. 2d at 39. Specifically, "[u]nseaworthiness is a claim under general maritime law based on the vessel owner's duty to ensure that the vessel is reasonably fit to be at sea." Lewis, supra, 531 U.S. at 441, 121 S. Ct. at 997, 148 L. Ed. 2d at 937. Unseaworthiness is a strict liability claim, and a shipowner has an absolute duty to provide a seaworthy vessel. United N.Y. & N.J. Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 616-17, 79 S. Ct. 517, 519, 3 L. Ed. 2d 541, 544 (1959). "A seaworthy ship is one reasonably fit for its intended use" and the "actual or constructive knowledge of an unseaworthy condition [by the shipowner] is not essential to its liability." Ribitzki, supra, 111 F.3d at 664.

To establish a seaworthiness claim, a seaman must establish four elements: "(1) the warranty of seaworthiness extended to him and his duties; (2) his injury was caused by a piece of the ship's equipment or an appurtenant appliance; (3) the equipment used was not reasonably fit for its intended use; and (4) the unseaworthy condition proximately caused his injuries." Ibid. Significantly, the burden to establish causation is more demanding in an unseaworthiness claim than in a Jones Act negligence claim, even though knowledge of the unseaworthiness is not required. Sloan v. United States, 603 F. Supp. 2d 798, 811 (E.D. Pa. 2009). Accordingly, "a plaintiff must show that the unseaworthy condition of the vessel was the proximate or direct and substantial cause of the seaman's injuries." Ibid. (citation and internal quotation marks omitted). In the present case, plaintiff's unseaworthiness claim is based on the premise that the presence of asbestos on defendant's dredges rendered them unseaworthy.

C.

In granting summary judgment, the motion judge concluded that plaintiff failed to establish his exposure to asbestos while working aboard defendant's dredges. As noted, proof of such exposure is integral to both plaintiff's general maritime negligence and Jones Act negligence claims, since each require duty, breach of duty, and causation. Ribitzki, supra, 111 F.3d at 662.

On appeal, plaintiff argues that the motion judge erred in concluding that he had failed to present sufficient evidence that he was exposed to asbestos while working on defendant's dredges. Having conducted an extensive review of the record, we agree.

During his discovery and de bene esse depositions, plaintiff testified that he worked on several dredges operated by defendant. Included among his various tasks on these dredges was piping and insulation, which he described as "dusty, dirty work." Even when he was not actually changing the insulation, it would break apart, "be laying around," and become airborne. In his de bene esse deposition, plaintiff named the Delaware Valley as one of defendant's dredges that he worked on. While he had not named this dredge in his earlier deposition, as the opponent of a summary judgment motion he was nonetheless entitled to have the motion judge assume the truth of this factual allegation in ascertaining the existence of a triable issue. Brill, supra, 142 N.J. at 540. The schematic diagram of the Delaware Valley's exhaust system lays out the process for insulating the vessel's pipes, and contains "General Notes" which provide

Cover flexible section with 2 layers of "amosite," then lag with asbestos cloth; balance of pipe and the mufflers inside with [two inches] of "Kaylo" and asbestos cloth, outside up to [six feet] above the deck with [two inches] of "Kaylo" and aluminum sheet lagging.

At a minimum, we deem this testimony and evidence sufficient for a factfinder to reasonably infer that plaintiff was exposed to asbestos while employed by defendant.

While a closer call with respect to plaintiff's other work experience on defendant's dredges, plaintiff has also produced evidence that the winches on the Delaware Valley contained molded asbestos composition friction blocks, and that the New York contained three winches for propulsion which required asbestos. We further note Dr. Moline's opinion regarding plaintiff's exposure to asbestos on dredging vessels, and Castleman's expert opinion that defendant knew or should have known of the hazards of asbestos and the necessary steps to protect workers from asbestos exposure.

Although the summary judgment motion was decided on a very narrow ground, we conclude that the record as a whole establishes a triable issue as to whether plaintiff was exposed to asbestos or asbestos-containing products on defendant's dredges. Accordingly, summary judgment on this issue was inappropriate.

Reversed.

1 Plaintiff's initial complaint, filed on December 11, 2011, also included a claim by his son, Henry W. Latter, Jr., for loss of his father's society and companionship. Henry Jr. was later substituted as executor ad prosequendum upon his father's death. However, for purposes of this opinion, we refer to decedent, Henry Sr., as plaintiff.

2 American Dredging Company is identified as American Atlantic Company in Social Security Administration records produced during discovery.

3 There is confusion in the record about the correct name of this company.

4 We are advised that plaintiff's claims against all other defendants have been settled or dismissed.

5 Defendant denied owning a dredge named the Merlin. Plaintiff argues that his references to the Merlin were "undoubtedly" to Weeks' dredge, the Maryland.

6 The record reflects that some documents responsive to plaintiff's discovery requests no longer exist due to a fire in the late 1980s that destroyed American Dredging Company's records. Additionally, the Philadelphia and the Pennsylvania dredges were both lost at sea in the 1970s and the Tacony was decommissioned in 1973.