FUOCO v. 3M CORPORATION et al, No. 1:2013cv07054 - Document 96 (D.N.J. 2015)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 9/29/2015. (TH, )
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FUOCO v. 3M CORPORATION et al Doc. 96 U N ITED S TATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY J OSEPHINE E. FUOCO, individually and As Executrix of the Estate of J oseph R. Fuoco, : Plaintiff, : v. Hon. J oseph H. Rodriguez : Civil Action No. 13-70 54 : 3M COMPANY, et al., Defendants. : OPINION : This m atter is before the Court on m otion of Defendant Warren Pum ps, LLC for sum m ary judgm ent pursuant to Federal Rule of Civil Procedure 56. Plaintiff has opposed the m otion. For the reasons set forth here, the m otion [82] will be granted. Backgro u n d Plaintiff J osephine E. Fuoco, Individually and as Executrix of the Estate of J oseph R. Fuoco, alleges that Mr. Fuoco contracted m esotheliom a while serving in the United States Navy and as a construction worker. Plaintiff has sued a num ber of entities alleging various theories of liability. Relevant here, it appears that Plaintiff alleges Defendant Warren Pum ps, LLC, individually and as successor to Warren Steam Pum p Com pany, is liable for failing to warn Fuoco of the dangers associated with the asbestoscontaining replacem ent gaskets and packing m aterials used on circular pum ps to which he was exposed. Am . Com pl., p. 24. Fuoco served in the United States Navy from August 31, 1942 through Decem ber 15, 1945 aboard the U.S.S. Am m en. See J ohnson Cert., Ex. A, Plaintiff’s Answers to Interrogs. During his career in the Navy, Fuoco worked as a m achinist m ate an d alleges 1 Dockets.Justia.com that, in that capacity, he was exposed to asbestos pipe covering, insulation, and other m aterials, id., which caused him to develop “perm anent, disabling and fatal injuries,” Am . Com pl., p. 8 . Su m m ary Ju d gm e n t Stan d ard A court will grant a m otion for sum m ary judgm ent if there is no gen uine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the n onm oving party m ust identify, by affidavits 2 or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 8 70 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). An alys is Warren Pum ps argues it is entitled to sum m ary judgm ent because there is no eviden ce in the record to suggest that Fuoco ever worked on or around a Warren pum p, therefore Warren Pum ps cannot be liable. The Defendant does not dispute that its circulating pum ps were used on the USS Am m en or that asbestos-containing com ponents were used on Warren circulating pum ps during the relevant tim e period. However, as Fuoco was not deposed in connection with this m atter, and no fact witness has offered testim ony with regard to his alleged asbestos exposure aboard the USS 3 Am m en, there is no record evidence Fuoco was exposed to asbestos associated with any Warren pum p on board the USS Am m en. In opposition, Plaintiff states that on or about J une 30 , 20 14, she was in receipt of docum ents which indicated that Warren Pum ps were used on board the USS Am m en in connection with Westinghouse turbines. Accordingly, and with leave of Court, Plaintiff am ended the Com plaint to add Warren Pum ps as a Defendant on or about August 21, 20 14. Since that tim e, however, Plaintiff argues that Warren Pum ps has failed to provide Plaintiff with evidence from prior litigation which would tend to show the presen ce of asbestos containing m aterial used in association with Warren Pum ps aboard the USS Am m en. Specifically, Plaintiff references the 20 0 7 deposition testim ony of a Warren Pum ps corporate representative in another case which revealed that the com pany’s pum ps at tim es m ay have contained asbestos-containing com ponents, an d that asbestos-containing gaskets and packing were used on circulating pum ps on board the USS Willis A. Lee. Plaintiff also references a 1958 technical m anual prepared by Warren Pum ps which calls for the use of asbestos packing an d gaskets for circulating pum ps. Pl. Br., Ex. F. Plaintiff argues that “taken as a whole,” this is sufficient for the Court to infer that asbestos com ponents were used on Warren circulating pum ps “during the relevant tim e periods.” Pl. Br., p. 4. Next, Plaintiff argues that Fuoco was exposed to asbestos-containing com ponents on Warren pum ps on the USS Am m en because a Decem ber 20 14 expert report prepared by R. Bruce Woodruff, Captain, U.S. Navy (Ret.), details overhaul and m aintenance procedures that should have taken place over a five-m onth period when Fuoco served on the USS Am m en and he describes 4 Fuoco’s job duties as likely constituting work on equipm ent, including pum ps, while on the vessel. There is no dispute that m aritim e law governs the claim s at bar. See Conner v. Alfa Laval, Inc., 799 F. Supp. 2d 455, 462-63 (E.D. Pa. 20 11). 1 To prove causation in an asbestos case under m aritim e law, a plaintiff m ust show, for each defendant, that “(1) he was exposed to the defendant’s product, an d (2) the product was a substantial factor in causing the injury he suffered.” Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 20 0 5) (citing Stark v. Arm strong World Indus., Inc., 21 F. App’x 371, 375 (6th Cir. 20 0 1)). “[M]inim al exposure” to a defendant’s product is insufficient to establish causation. Lindstrom , 424 F.3d at 492. “Likewise, a m ere showing that defendant’s product was present som ewhere at plaintiff's place of work is insufficient.” Id. See also Kurak v. A.P. Green Refractories Co., 689 A.2d 757, 761 (N.J . Super. Ct. App. Div. 1997). Courts in this Circuit also have held that a plaintiff m ust show that (3) the defendant m anufactured or distributed the asbestos-containing product to which 1 Under m aritim e law, the Court considers the “prevailing view” on land and draws from the law of the state in which it sits. See, e.g., Pan– Alaska Fisheries, Inc. v. Marin e Constr. & Design Co., 565 F.2d 1129, 1134 (9th Cir. 1977). Under New J ersey law, “to prevail against a particular defendant in an asbestos case, a plaintiff m ust establish, in addition to other elem ents of a product liability action, exposure to friable asbestos m anufactured or distributed by the defendant.” Sholtis v. Am . Cyan am id Co., 568 A.2d 1196, 120 8 (N.J . Super. Ct. App. Div. 1989); see also Goss v. Am . Cyanam id, Co., 650 A.2d 10 0 1, 10 0 5 (N.J . Super. Ct. App. Div. 1994) (noting that in asbestos exposure tort claim , plaintiff m ust dem onstrate exposure to a defendant’s asbestos containing product). In an asbestos failure to warn claim , liability m ay attach only where a plaintiff identifies an asbestos-containing product m anufactured or supplied by defendant. Hughes v. A.W. Chesterton Co., 89 A.3d 179, 190 (N.J . Super. Ct. App. Div. 20 14). Courts in this district have followed suit. See Barnes v. Foster Wheeler Corp., Civ. Action. No. 13– 1285, 20 14 WL 2965699, at *3 (D.N.J . J une 30 , 20 14) (collecting and discussing cases); Thom asson v. Air & Liquid System s Corp., Civ. No. 13-10 34, 20 15 WL 1639730 (D.N.J . April 9, 20 15). 5 exposure is alleged. Conner, 842 F.Supp.2d at 8 0 1; see also Barnes v. Foster Wheeler Corp., 20 14 WL 2965699; Dalton v. 3M Co., 20 13 WL 4886658, at *7 (D. Del. Sept. 12, 20 13) (citing cases); Hays v. A.W. Chesterton, Inc., No. 2:0 9-93728, 20 12 WL 30 96621 (E.D. Pa. May 1, 20 12) (citing Abbay v. Arm strong Int’l., Inc., No. 10 – 83248, 20 12 WL 9758 37, at *1 n.1 (E.D. Pa. Feb. 29, 20 12) (Robreno, J .)). In this case, no reasonable jury could conclude that Fuoco was exposed to asbestos from a product m anufactured and/ or supplied by Warren Pum ps such that it was a substantial factor in causing his illness. Indeed, Plaintiff has failed to identify an asbestos-containing product m anufactured or supplied by Warren Pum ps that was aboard the USS Am m en during the tim e Fuoco served. Even if she had done so, the next hurdle to m aintaining a claim – showing that Fuoco’s exposure to such product was a substantial factor in causing his illness – is in surm ountable based on the record before this Court. As such, the Court need not consider the frequency and regularity of Fuoco’s alleged exposure. The Court cannot deny sum m ary judgm ent by speculating that Fuoco worked on or around a Warren pum p or was otherwise exposed to asbestos from a Warren pum p. See Wilkerson v. Arm strong World Indus., Inc., Civ. 89-2494, 1990 WL 138 58 6, at *2 (D.N.J . Sept. 19, 1990 ). An accom panying Order will issue. Dated: Septem ber 29, 20 15 / s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez UNITED STATES DISTRICT J UDGE 6
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