NOT FOR PUBLICATION WITHOUT THE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,

v.

A.W. CHESTERTON CO.; BRAND

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

APPROVED FOR PUBLICATION

April 23, 2014

APPELLATE DIVISION
2 A-0778-11T2

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,
3 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

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 L4208-10.

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.

April 23, 2014
4 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.
5 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 asbestoscontaining 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.
6 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.
7 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.
8 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.
9 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).
10 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."
11 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 asbestoscontaining products are not uniformly dangerous and thus" it 

should not be presumed that all such products "pose the same 
12 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).
13 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.
14 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 
15 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 
16 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 "productsliability-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., 
17 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 
18 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 
19 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 LincolnMercury, 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 LincolnMercury, 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.
20 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 asbestosrelated 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 
21 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; 
22 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 factfinder, 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 
23 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.
24 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 
25 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.
26 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.