SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3642-14T1

WILLIAM P. CONDON and DEBBIE

CONDON, individually and as 

Executrix and Executrix ad 

Prosequendum for the Estate of

WILLIAM P. CONDON,

Plaintiff-Respondent/

Cross-Appellant,

v.

ADVANCE THERMAL HYDRONICS, 

INC., f/k/a The Hydrotherm 

Corporation; AFTON PUMPS, INC.; 

A.I.I. ACQUISITION, LLC, as

successor-in-interest to

Holland Furnace Company;

AMERICAN REFRACTORIES CO.;

A.O. SMITH WATER PRODUCTS

COMPANY; AMERICAN PREMIER

UNDERWRITERS, INC., f/k/a Penn

Central Corp., f/k/a GK 

Technologies, Inc., f/k/a

General Cable Corp., individually 

and as successor to Hydrotherm,

Inc.; ARCY MANUFACTURING INC.;

ASHLAND, INC.; ATLAS TURNER;

AURORA PUMP; AUTOMATION

INDUSTRIES, INC., individually

and as successor to Hydrotherm,

Inc.; BECHTEL CORPORATION; 

BELMONT PACKING & RUBBER COMPANY; 

BORG WARNER MORSE TEC, as 

successor by merger to the 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-3642-14T1

Borg Warner Corporation; 

BRADFORD-WHITE WATER HEATERS,

INC.; BRYAN STEAM, LLC a/k/a

Bryan Boilers; AIR & LIQUID

SYSTEMS CORPORATION, as

successor by merger to Buffalo

Pumps, Inc.; BURNHAM LLC,

individually and as successor 

to Burnham Corporation, 

individually and as successor-in-

interest to Federal Boiler and

Radiator Co.; BRYON JACKSON PUMPS

AND UNITED PUMPS & COMPRESSOR;

CALON INSULATION CORPORATION; 

CARDONE INDUSTRIES, INC., 

individually and as successor to 

Cardo Automotive Products Company; 

CARRIER 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 CORPORATION, 

individually and as successor to 

Keasbey & Mattison Co.; CLEAVER 

BROOKS COMPANY, a division of 

AQUA-CHEM, INC.; COLUMBIA BOILERS

COMPANY OF POTTSTOWN;

CRANE CO., INC.,and as successor 

to Jenkins Valves, Inc., a/k/a 

Jenkins Bros.; CRANE PACKING 

COMPANY; CRANE PUMPS AND SYSTEMS, 

INC.; DANA COMPANIES, LLC f/k/a 

Dana Corporation, individually 

and as successor-in-interest to 

Victor and Spicer; DAP

PRODUCTS, INC., individually and 

for its Tharco Product; DB RILEY,

INC., individually and as successor 

to and/or f/k/a DB Riley Stoker

Corporation and as successor to,

and/if f/d/b/a Union Iron Works;

DEMING PUMPS, a division of Crane
3

A-3642-14T1

Pumps Systems, Inc.; DUCTMATE 

INDUSTRIES, INC.; DUNPHEY SMITH

COMPANY; EATON CORPORATION, as

successor-in-interest to Eaton 

Electrical, Inc., and 

Cutler-Hammer, Inc.; 

ECR INTERNATIONAL, INC.,

f/k/a Dunkirk and Utica Boilers; 

FLEXIBLE TECHNOLOGIES, INC., 

individually and as successor to

Hydrotherm, Inc.; FLOWSERVE 

CORPORATION; FMC CORPORATION, 

on behalf of its former 

Peerless Pump and Northern

Pump Business; FORD MOTOR COMPANY;

FORT KENT HOLDINGS, INC., f/k/a 

Dunham Busch, Inc., as 

successor-in-interest to 

Iron Fireman Combustion

Products; FOSTER WHEELER ENERGY

CORP.; GENERAL ELECTRIC COMPANY;

GEORGIA PACIFIC LLC; GOULDS PUMPS

INCORPORATED; HERCULES, INC.; 

HOLLINGSWORTH & VOSE COMPANY; 

HONEYWELL INTERNATIONAL, INC., 

f/k/a Allied Signal, Inc. as 

successor-in-interest to 

The Bendix Corporation;

HYDROTHERM, INC.; HB SMITH, 

INC.; IMO INDUSTRIES, INC., 

as successor to and f/k/a 

Delaval Turbine, Transamerica

Delaval and IMO Delaval; 

INGERSOLL-RAND COMPANY; 

J.H. FRANCE REFRACTORIES

COMPANY; JOHN CRANE, INC.; JOHNSTON BOILER CO.; KAISER 

GYPSUM; LAWRENCE PUMPS, INC., 

as successor-in-interest

to Ducan Heating Corp.; MAGNATROL 

VALVE CORP.; MCNALLY INDUSTRIES, 

INC.; MAREMONT CORPORATION; 

MESTEK, INC., individually 

and as successor to Hydrotherm, 

Inc.; OAKFABCO, INC., f/k/a
4

A-3642-14T1

Kewanne Boiler Corp.; PACIFIC 

STEEL BOILERS, a division of 

Crane Company; PCC TECHNICAL 

INDUSTRIES, INC., f/k/a

Boiler Technologies, Inc., 

individually and as successor 

to Hydrotherm, Inc.; PEERLESS 

INDUSTRIES, INC.; PRESTOLITE 

PERFORMANCE, individually and 

for its Hays Brand;

SOS PRODUCTS CO.; RAYPAK 

INC.; REED NATIONAL FINANCIAL CORP.,

individually and as successor to

Hydrotherm, Inc.; ROPER PUMP CO.;

SB DECKING, INC., f/k/a Selby

Battersby & Company, a subsidiary 

of Quaker Chemical Corporation; 

SUPERIOR BOILER WORKS; STERLING 

FLUID SYSTEMS (USA) INC., 

f/k/a LaBour Pump Co.;

TACO PUMPS; THE FULTON COMPANIES,

individually and as successor to 

Fulton Boiler Works, Inc.; 

THE OKONITE COMPANY; 

THERMCO; TRANE US, INC., as successor to American Standard Inc.; 

TUTHILL CORPORATION; UNION CARBIDE 

CORP.; UNION PUMP COMPANY; UNITED

SUPPLY CORPORATION; UTICA BOILERS; 

VIKING PUMP CO.; WALLWORK BROTHERS, 

INC.; WARREN PUMPS, INC., 

individually and as successor to 

The Quimby Pump Company; 

WEIL-MCLAIN COMPANY, INC.;

WEINMAN PUMPS; WOOLSULATE 

CORPORATION; WORTHINGTON PUMP 

CORPORATION; ZURN INDUSTRIES; 

JOHNSON CONTROLS, INC., 

individually and as successor-in-

interest to York International Corp.;

SEQUOIA VENTURES, INC., f/k/a

Bechtel Corporation; BW/IP, INC.,

and its wholly owned subsidiaries; 

FREEMAN AUTO PARTS; and USCO, INC.,
5 A-3642-14T1

Defendants,

and

PECORA CORPORATION,

Defendant-Appellant/

Cross-Respondent.

Argued February 14, 2018 – Decided

Before Judges Alvarez, Nugent, and Geiger.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L5695-13.

Patricia M. Henrich argued the cause for 

appellant/cross-respondent (Reilly, Janiczek, 

McDevitt, Henrich & Cholden, PC, attorneys; 

Patricia M. Henrich and Josette F. Spivak, on 

the briefs).

Amber R. Long argued the cause for respondent/

cross-appellant (Szaferman, Lakind, Blumstein 

& Blader, PC, and Levy Konigsberg, LLP, 

attorneys; Robert E. Lytle and E. Elizabeth 

Sweetser, on the briefs).

Phil S. Goldberg and Mark A. Behrens (Shook, 

Hardy & Bacon, LLP) of the District of 

Columbia Bar, admitted pro hac vice, attorneys 

for amici curiae Coalition for Litigation 

Justice, Inc., National Association of 

Manufacturers, American Tort Reform 

Association, and NFIB Small Business Legal 

Center (Philip S. Goldberg and Mark A. 

Behrens, on the brief).

McCarter & English, LLP, and Gibbons, PC, 

attorneys for amicus curiae Honeywell 

International, Inc. (John C. Garde, of counsel 

and on the joint briefs; Kim M. Catullo and 

Ethan D. Stein, of counsel; Christopher A.

July 9, 2018
6 A-3642-14T1

Rojao and Elizabeth K. Monahan, on the joint 

briefs).

Caruso Smith Picini, PC, attorneys for amici 

curiae Union Carbide Corporation and 

CertainTeed Corporation (Richard D. Picini and 

Anthony Caruso, on the joint briefs).

Eckert Seamans Cherin & Mellot, LLC, attorneys 

for amici curiae A.O. Smith and Superior 

Lidgerwood Mundy (David M. Katzenstein, on the 

joint briefs).

Marshall Dennehey Warner Coleman & Goggin, 

attorneys for amici curiae Kaiser Gypsum 

Company, Riley Power, Jaeger Lumber and Supply 

Company, and Warren Pumps (Paul C. Johnson, 

on the joint briefs).

Pascarella DiVita, PLLC, attorneys for amici 

curiae Ingersoll Rand Company, Trane US, Inc., 

General Cable Corporation, and Rheem 

Manufacturing Company (Lisa M. Pascarella and 

Stephanie A. DiVita, on the joint briefs).

Reilly, Janiczek, McDevitt, Henrich & Cholden, 

PC, attorneys for amici curiae Aurora Pump 

Company and Cleaver Brooks (Patricia M. 

Henrich and Brandy L. Harris, on the joint 

briefs).

Sedgwick LLP, attorneys for amici curiae 

BorgWarner Morse TEC LLC, Foster Wheeler LLC, 

survivor to a merger with Foster Wheeler 

Corporation, and Foster Wheeler Energy 

Corporation (Christopher J. Keale, on the 

joint briefs).

Diane M. Pompei (Lynch Daskal Emery LLP), 

attorney for amicus curiae Georgia-Pacific 

LLP.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, 

attorneys for amici curiae Burnham LLC and 
7 A-3642-14T1

Eaton Corporation (Nancy McDonald, on the 

joint briefs).

McGivney & Kluger, attorneys for amici curiae 

Ductmate Industries, The Fairbanks Company, 

Herman Sommer, and Magid Glove and Safety 

(Thomas McNulty, on the joint briefs).

PER CURIAM

On June 19, 2014, a Law Division judge denied defendant Pecora 

Corporation's motion for summary judgment. The matter proceeded 

to trial on plaintiff William Condon's (Condon) complaint for 

damages related to his mesothelioma, and his wife Debbie Condon's 

per quod claim (collectively, plaintiffs). The jury, after 

apportioning damages of two percent to Pecora, awarded plaintiffs 

compensatory damages of $6.5 million. On plaintiffs' punitive 

damage claim, the jury awarded Condon $1 million. The trial court 

molded that verdict to $650,000, in accordance with the punitive 

damages cap under the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to 

-5.17.

1 Accordingly, plaintiffs recovered $783,067.83 from 

Pecora. We now vacate the judgment and reverse the trial court's 

denial of the motion for summary judgment.

 

1 N.J.S.A. 2A:15-5.14(b) holds that "No defendant shall be liable 

for punitive damages in any action in an amount in excess of five 

times the liability of that defendant for compensatory damages." 

Pecora owed two percent of the $6.5 million award for compensatory 

damages, which equals $130,000. Five times $130,000 equals the 

$650,000 that was reached.
8 A-3642-14T1

Plaintiffs' complaint originally named ninety-seven 

defendants. Of the defendants who settled with Condon, nine did 

so before trial. The jury apportioned liability and damages 

between eleven defendants, including Pecora. Other than the six 

who were defendants at trial, the court granted the remainder 

summary judgment and dismissed them from the case, or plaintiffs 

abandoned the claims against them, or they were otherwise dismissed 

from the litigation. 

Pecora unsuccessfully moved for judgment notwithstanding the 

verdict (JNOV) or a new trial on March 6, 2015. The judge denied 

the motion. That decision, like the summary judgment decision 

before it, was based on the judge's finding that Pecora was the 

"exclusive supplier" of asbestos cement used in the Burnham

products to which Condon was exposed. We conclude that factual 

finding was not supported by the record.

I.

On appeal, plaintiffs concede "[t]here is no substantial 

difference between the evidential materials Plaintiff[s] relied 

upon in opposing Pecora's motions for summary judgment and for 

judgment notwithstanding the verdict." Although we have the record 

of the several weeks' long trial, we are nonetheless confined to 

the summary judgment record. See Ji v. Palmer, 333 N.J. Super. 

451, 459 (App. Div. 2000).
9 A-3642-14T1

We recount the relevant facts drawn from the summary judgment 

materials. These materials included Condon's deposition and the 

deposition of a retired Burnham employee, Fred W. Kendall, taken 

in unrelated asbestos litigation on August 8, 1991.

From 1972 to 1987, Condon worked for Fritze Heating and 

Cooling (Fritze), which he described as a big company that "did 

commercial and residential heating and air conditioning 

installations." His work "mainly" included residential 

installations. Condon did both residential and commercial jobs

but "was not involved with the commercial that much." He installed

systems in new homes and replaced them in existing homes. Condon 

did not repair boilers because Fritze had "a specific service 

department." He recalled repairing only one Burnham boiler that 

he repaired because it leaked at installation.

Most of the boilers Condon installed were packaged boilers.

He very rarely installed boilers requiring on-site assembly.

Condon estimated about sixty percent of the boiler 

installations he performed were in houses that did not already 

have an existing unit. The other jobs required him to remove an 

existing boiler, where "a lot of the times [he] had to break it 

apart."

Condon identified Weil-McLain, Peerless, Burnham, Utica, 

Florence, A.O. Smith, and Hydrotherm as the brands of boilers that 
10 A-3642-14T1

he installed at Fritze during a six-month period. The only Burnham 

boilers Condon recalled installing were residential packaged 

boilers. During his years with Fritze, Condon installed hundreds 

of boilers.

The "packaged boilers" were delivered with asbestos rope, 

gaskets, and cement, or "trim kits." When Condon needed asbestos 

cement or gaskets that were not packaged with the boilers, he 

obtained them from a supplier close to Fritze. He did not remember 

the brand he used.

Condon could not recall whether Burnham's residential 

packaged boilers came with trim kits. When deposed, Kendall 

answered "Not that I'm aware of" to the question of whether 

"asbestos[-]containing gaskets, rope packing, or cement" were 

"supplied with Burnham's residential packaged boilers." The 

possible exception was a pre-cut gasket. 

Most of the time, the asbestos cement Condon used came in a 

powder that had to be mixed with water. Condon would apply it 

with his hands and then, after it dried, scrape it off, creating

"some dust" that he breathed.

Condon testified he would use premixed, wet cement rather 

than dry cement when he worked on furnaces rather than boilers. 

He also applied the premixed cement with his hands, and it too

would dry and create dust when removed. The premixed cement he 
11 A-3642-14T1

used was supplied by Fritze, but the only manufacturer he recalled 

for the product was DAP. The asbestos-containing products used 

by Condon included a warning to keep away from children.

Between 1985 and 1987, Condon was promoted to an installation 

foreman. In that job, he ceased doing any installations and

stopped using asbestos-containing products.

Condon left Fritze in 1987 and began his own business, 

William's Heating and Air Conditioning. When he operated the 

business, he was not exposed to any asbestos-containing products.

Pecora manufactured a premixed, heavy paste, which contained 

1.25 percent asbestos. Pecora did not manufacture a dry cement

product. Condon did not specifically recall ever using premixed 

cement manufactured by Pecora.

Plaintiffs concede the sole evidential link between Pecora 

and Condon was through Burnham. Specifically, plaintiffs point 

to Kendall's deposition. From 1967 to 1974, Kendall was a buyer, 

and from 1974 to retirement, a senior buyer. He was familiar with 

the types of asbestos-containing products that Burnham purchased 

during the years he was employed there.

According to Kendall, Burnham had a residential steel boiler 

plant, a commercial steel boiler plant, and a cast iron boiler 

plant. Burnham purchased premixed, high-temperature, asbestoscontaining cement for use with those products. 
12 A-3642-14T1

Kendall believed Burnham was using Pecora cement in the cast 

iron plant since at least 1967 until sometime in the early 1980s. 

He testified:

Q. Of the cast iron furnaces, do you 

know which models of furnaces the Pecora 

furnace cement was used for or on?

A. We manufactured -- excuse me. Boilers, 

not furnaces.

Q. I'm sorry. Boilers.

A. There is a difference.

Q. Okay.

A. No, I do not know.

Q. Would you know whether or not the 

furnace cement was used on knockdown boilers, 

as opposed to package boilers?

. . . .

A. No, I don't know.

Q. Do you know if they were used on 

residential boilers as opposed to commercial, 

or industrial boilers?

A. Basically residential.

At his deposition, Kendall was shown documents he identified 

as an order and confirmation for sixty gallons of Pecora asbestos 

furnace cement, purchased in gallon cans, that was shipped to the 

Burnham cast iron plant in 1978. Kendall also identified a 

"travelling requisition form" indicating Burnham purchased twelve 
13 A-3642-14T1

cartons containing twelve two-pound cans of Pecora premixed cement 

to be used for "PF-5 SPECIAL Repairs." Kendall testified:

A. PF-5 is a model. It should be a special 

model PF-5 and two pound cans would be the 

size of cans that would be shipped out for 

repairs or assembly out in the field, as 

opposed to the 15 pound cans that they use in 

the plant.

Q. Okay. So, the larger cans were used for 

application to boilers.

A. Production line.

Q. And the smaller cans, as evidenced by this 

traveling requisition, were used in the field?

A. Correct. 

Kendall could not recall Burnham ever purchasing this type 

of "high temperature cement" from anyone other than Pecora, and 

he believed it was "highly unlikely" that it did.

Relying on this testimony, plaintiffs' counsel asserted, and 

the trial court accepted, that Pecora was the "exclusive supplier 

of asbestos cement to Burnham." More specifically, that Pecora 

was the exclusive supplier of premixed, wet asbestos cement to 

Burnham. 

The evidence also showed Burnham purchased quantities of dry 

asbestos cement, which was not manufactured by Pecora. Kendall 

testified:

Q. One of the products, I guess the 

principal product that I'm going to be 
14 A-3642-14T1

interested in, there may be other people in 

the room that will ask you about some of these 

other products, is something called 7M Cement. 

Do you know whether Burnham ever purchased any 

7M cement?

A. Yes.

Q. And it's your testimony that Burnham 

did purchase 7M asbestos cement while you were 

employed there?

A. My recollection is that's the asbestos 

shorts, that's the dry cement. 7M is a 

particular manufacturer's terminology for it.

Burnham stopped purchasing dry asbestos cement in the late 1970s 

or early 1980s.

At deposition, Kendall was asked whether he could recall ever 

using premixed cement as opposed to dry cement when installing 

Burnham boilers. He responded:

Q. Are you familiar with any sealant 

paste shipped in covered metal pails --

A. No, because the term "sealant paste" is 

a little general. No, it's not specific 

enough so I cannot. I cannot identify that, 

no.

Q. Just so I'm clear, Mr. Kendall, 

summarizing your testimony, is it fair to say 

that other than the purchases of Pecora 

furnace cement that we've discussed today, you 

don't have any personal knowledge of any 

earlier or later purchases of Pecora furnace 

cements by Burnham?

. . . .

A. No.
15 A-3642-14T1

. . . .

Q. Actual purchase that you can recall.

A. No, no.

Q. Your recollection is drawn from the 

documents and, beyond that, you don't have any 

other specific recollection?

A. That's correct.

Pecora raises the following points on appeal:

I. THE TRIAL COURT ERRED IN DENYING PECORA'S 

MOTION FOR SUMMARY JUDGMENT

A. Plaintiff Has Not Provided Proof 

Sufficient To Allow A Reasonable 

Factfinder To Determine That Any Burnham 

Boiler Plaintiff Installed Came With A 

Can Of Pecora Cement

B. Plaintiff Has Not Provided Proof 

Sufficient To Allow A Reasonable 

Factfinder To Determine That His Work 

With Burnham Boilers Would Have Exposed 

Him To Pecora Cement Which Was Contained 

Within The Boiler

C. Pecora Is Not The Exclusive Supplier 

Of Asbestos Cement To Burnham

II. THE TRIAL COURT ERRED IN DENYING PECORA'S 

MOTION TO DISMISS THE PUNITIVE DAMAGES CLAIM

A. The Evidence Submitted Regarding 

Pecora's Knowledge Is Insufficient To 

Meet The Clear And Convincing Standard

B. The Trial Court Abused Its 

Discretion In Admitting The Union Carbide 

Testimony As It Was Not Relevant And Its 

Value Was Outweighed By The Danger Of 

Unfair Prejudice
16 A-3642-14T1

C. The Trial Court Abused Its 

Discretion In Admitting Evidence 

Concerning Protections Provided To 

Pecora's Employees

D. The Trial Court Abused Its 

Discretion In Admitting Evidence 

Concerning Pecora's Decision To Stop 

Using Asbestos

E. The Trial Court Abused Its 

Discretion In Admitting The Opinion In 

The Matter Of Tysenn v. Johns-Manville 

Corp[.]

F. The Trial Court Abused Its 

Discretion In Admitting Evidence About 

Other Pecora Products

G. The Jury Charge And Verdict Sheet Do 

Not Set Forth The Applicable Standard

Plaintiffs' points on cross-appeal are:

POINT III

THE TRIAL COURT ERRED IN ALLOWING THE NONSETTLING DEFENDANTS TO INTRODUCE INTO EVIDENCE 

ANSWERS TO INTERROGATORIES AND DEPOSITION 

TESTIMONY THE SETTLING DEFENDANTS PROVIDED IN 

OTHER LITIGATION BECAUSE, AS THIS COURT HELD 

IN BUTTITTA, SUCH EVIDENCE IS HEARSAY THAT 

DOES NOT FALL WITHIN ANY EXCEPTION TO THE RULE 

AGAINST HEARSAY

POINT IV

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY, 

CONTRARY TO THE SUPREME COURT'S OPINION IN 

SHANKMAN V. STATE, 184 N.J. 187 (2005), THAT 

PLAINTIFF HAD "SETTLED" HIS CLAIMS WITH OTHER 

PARTIES AGAINST WHICH THE REMAINING DEFENDANTS 

ASSERTED CROSS-CLAIMS, THUS IMPLYING THAT 

THOSE PARTIES HAD ACKNOWLEDGED RESPONSIBILITY 

FOR PLAINTIFF'S MESOTHELIOMA
17 A-3642-14T1

POINT V

THE TRIAL COURT ERRED IN FAILING TO INSTRUCT 

THE JURY, IN ACCORDANCE WITH ITS OWN PROPOSED 

INSTRUCTIONS DISTRIBUTED TO COUNSEL BEFORE 

SUMMATIONS, THAT DEFENDANTS HAD THE BURDEN OF 

SHOWING THAT THE RESPONSIBILITY OF EACH 

DEFENDANT FOUND LIABLE TO PLAINTIFF IS CAPABLE 

OF APPORTIONMENT

POINT VI

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY 

THAT PLAINTIFF HAD THE BURDEN OF PROVING THE 

LIABILITY OF BURNHAM FOR A PORTION OF 

PLAINTIFF'S INJURIES EVEN THOUGH PLAINTIFF 

SETTLED HIS CLAIM AGAINST BURNHAM BEFORE 

SUBMISSION OF THE CASE TO THE JURY

II.

Pecora argues plaintiffs have "not provided proofs sufficient 

to allow a reasonable factfinder to determine that [Condon] was 

exposed to any Pecora Cement, much less an amount of Pecora Cement 

which would be sufficient to cause harm." For this reason, Pecora 

contends the trial court erred in denying its pre-trial motion for 

summary judgment.

A court should grant summary judgment "forthwith" when "the 

pleadings, depositions, answers to interrogatories and admissions 

on file, together with the affidavits, if any, 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." R. 4:46-2(c). Under this standard, "a court should deny a 

summary judgment motion only where the party opposing the motion 
18 A-3642-14T1

has come forward with evidence that creates a 'genuine issue as 

to any material fact challenged.'" Brill v. Guardian Life Ins. 

Co. of Am., 142 N.J. 520, 529 (1995) (quoting R. 4:46-2(c)). The 

"non-moving party cannot defeat a motion for summary judgment 

merely by pointing to any fact in dispute" if it is not material. 

Ibid. 

This court reviews "a trial court's decision on summary 

judgment 'de novo, employing the same standard used by the trial 

court.'" Van Horn v. Harmony Sand & Gravel, Inc., 442 N.J. Super. 

333, 340 (App. Div. 2015) (quoting Tarabokia v. Structure Tone, 

429 N.J. Super. 103, 106 (App. Div. 2012)).

In an asbestos failure-to-warn case, the plaintiff must prove 

two types of causation: product-defect causation and medical 

causation. Hughes v. A.W. Chesterton Co., 435 N.J. Super. 326, 

337 (App. Div. 2014). To reach a jury on the issue of medical 

causation, "a plaintiff only need 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 v. Am. 

Cyanamid Co., 238 N.J. Super. 8, 29 (App. Div. 1989). 

Under the "frequency, regularity and proximity" test that our 

courts follow, a plaintiff who cannot establish direct causation 

from a specific product must "prove an exposure of sufficient 
19 A-3642-14T1

frequency, with a regularity of contact, and with the product in 

close proximity." Id. at 28 (citing Lohrmann v. Pittsburgh Corning 

Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986)); accord Hughes, 435 

N.J. Super. at 345 (noting "liability should not be imposed on 

mere guesswork" and proof of specific asbestos-containing products 

at a workplace is insufficient alone, without proof linking those 

products to the plaintiff's exposure). 

For purposes of this opinion, we will assume that very low 

levels of exposure can cause mesothelioma and that Condon's 

cumulative exposure over the years to all the asbestos-containing 

products he used caused him to develop the disease. Condon 

testified he used wet furnace cement on occasion that dried on his 

hands and created dust when it flaked off. If there was sufficient 

evidence for a jury to conclude some of that wet furnace cement 

was manufactured by Pecora and not by others, perhaps there would 

have been sufficient evidence to find Pecora liable. But no 

evidence establishes the necessary link between Condon and 

Pecora's wet cement to the extent required to demonstrate

"frequency, regularity, and proximity. Sholtis, 238 N.J. Super. 

at 28-29. 

The trial court ruled: (1) between 1973 and 1984, Condon 

worked on many Burnham boilers in the residential context; 

(2) these were packaged boilers and "the majority of them" came 
20 A-3642-14T1

packaged with cement; (3) installation involved the use of cement; 

and (4) Pecora "was the exclusive supplier of asbestos cement to 

Burnham." In our opinion, the record did not, even drawing all 

inferences in plaintiffs' favor, establish that Burnham boilers 

came packaged with cement and that Pecora was the exclusive 

supplier of asbestos cement to the company.

Condon testified he used premixed cement rather than dry 

cement, which was manufactured by DAP. Thus, the sole possible 

link between Condon and Pecora was Burnham, and a determination 

of Pecora's liability would have necessitated findings by the jury 

that (1) the Burnham boilers were shipped with trim kits, and 

(2) those trim kits included wet cement rather than dry cement. 

Plaintiffs' proofs did not establish these points as more likely 

than not. 

The only evidence that could support a finding that Burnham 

included trim kits with any of the boilers that Condon installed 

was Condon's testimony that a majority of the various brands of 

boilers he installed included such kits. Regarding Burnham 

specifically, Condon recalled installing its residential packaged 

boilers, but he did not remember whether those boilers came with 

trim kits. Kendall, however, answered "[n]ot that I'm aware of" 

when asked whether asbestos cement was "supplied with Burnham's 

residential packaged boilers" in the relevant time frame. Thus 
21 A-3642-14T1

neither Condon nor Kendall established a connection between Pecora 

and Condon's disease.

Even assuming a jury could conclude it was more likely than 

not that the Burnham boilers Condon installed included trim kits, 

the evidence did not establish those trim kits contained wet cement 

rather than dry cement. Condon testified the asbestos cement 

typically came in a powder he had to mix with water before use. 

He acknowledged he could not say, without speculating, that Burnham 

provided a paste product to use instead. Kendall's testimony was 

that Burnham purchased "7M" dry asbestos cement. Therefore, if

any trim kits supplied by Burnham to Condon would have included a

dry product. The jury had no basis to conclude it was more likely 

than not that Burnham trim kits, atypically, included wet cement

manufactured by Pecora.

Along the same lines, Kendall's testimony does not support a 

finding that Burnham ever provided wet cement for use in installing 

packaged boilers like those installed by Condon. Kendall said wet 

cement was used on "[b]asically residential" boilers, but added 

he did not know whether they were sectional or packaged boilers, 

and in any event it was not clear from this portion of his testimony 

whether the cement was used solely within the Burnham plant. 

Later, however, Kendall specifically recalled Burnham purchased 

"larger cans" of Pecora cement for use on the "[p]roduction line."
22 A-3642-14T1

Kendall acknowledged Burnham purchased twelve cartons of 

smaller cans of Pecora cement to be "shipped out for repairs or 

assembly out in the field" specifically for a "special model PF5" boiler. However, there is no evidence linking Pecora cement 

to any other model of Burnham boiler "out in the field" and no 

evidence linking Condon to this single model of Burnham boiler. 

Condon testified he did not perform "repairs" on boilers.

Even drawing all inferences in plaintiffs' favor, the jury 

would have had no basis to conclude it was more likely than not 

that the Burnham boilers Condon installed were packaged with Pecora 

cement. Accordingly, the trial judge should have granted summary 

judgment to Pecora. See R. 4:46-2(c).

III.

Because we find the court should have granted summary 

judgment, we do not reach Pecora's points of error on appeal 

regarding punitive damages. Nor do we reach the issues raised by 

plaintiffs by way of cross-appeal. There was no genuine issue as 

to any material fact. Pecora was entitled to a judgment as a 

matter of law.

Reversed.