SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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.

ADVANC E THERMAL HYDRONICS, INC., f/k/a The Hydrotherm Corporation; AFT ON 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Inc. ; BECHTEL CORPORATION; BELMONT PACKING & RUBBER COMPANY; BORG WARNER MORSE TEC, as successor by merger to the NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court
. " A lthough 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

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- 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 INSULAT ION 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 C orporation, 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.; COLU MBIA BOILER S COMPANY OF POTTSTOWN; CRANE CO., INC. , a nd 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 Crane3 A

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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 an d 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

- i nterest 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.; J OHNSTON 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/a4 A

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Kewan n e 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 Quake r 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
s uccessor 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; WOOL SULATE 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

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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. L

5695

- 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 Sweetse r, 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 Tor t Reform Association, and NFIB Smal l 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, 20186 A

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- 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, a ttorneys for amici curiae A.O. S mith and Superior Lidgerwood Mundy (David M. Katzenstein, on the joint briefs).
Marshall Dennehey Warner Coleman & Goggin, attorneys for amic i 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 c uriae Aurora Pump Company and Cleaver Brooks (Patricia M. Henrich and Brandy L. Harr is, 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 and7 A

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- 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 sum mary 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 per cent to Pecora, awarded plaintiffs
compensatory damages of $6.5 million. On plaintiffs' punitive
damag e 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 Puni tive 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 compe nsatory damages, which equals $130,000. Five times $130,000 equals the $650,000 that was reached.8 A

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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. O ther than the six
who were defendants at trial, the court granted the remaind er

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 Mar ch 6, 2015
. T he judge denied

the motion. Th at 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, p laintiffs 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
jud gment notwithstanding the verdict." A lthough 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

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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 t o 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 res idential and commercial jobs

but "was not involved with the commercial that much." He install ed
systems in new homes and re plac ed them in existing homes. Condon
did not repair boilers because Fritze had "a specific service
department
. " He recalled repai ring only one Burnham boiler that
he repaired because it leaked at installation.
Most of the boilers Condon installed were packaged boilers
.

H e very rarely installed boilers requiring on

- site assembl y .
Condon estimated a bout sixty percent of the boiler

in stallations he performed were in house s that did not already
have an existing unit . The other jobs required him to remov e an existing boiler, where "a lot of the time s [he] had to break it

apart."

Condon iden tified W eil

- McLain, Peerless, Burnham, Utica,

Florence , A.O. Smith , and Hydrotherm as the brands of boilers that10 A

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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 instal led hun dreds

of boilers.

Th e "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

obtain ed t hem from a supplier close to Fritze . H e d id not remember

the brand he use d.

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 th e question of whether
"asbestos[

- ] containing gaskets, rope packing, or cement" were
"supplied with Burnham's residential packaged boilers
. " T he
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 , creat ing

"some dust" that he breathed.
Condon testified he would use premixed, wet cement rather
than dry cement when he worked on furnace s 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 he11 A

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

for the product was DAP. T he asbestos

- containing products used
by Condon included a warning to keep away from chi ldren
. Between 1985 and 1987, Condon was promoted to an installation

foreman . I n 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 co ntained
1.25 percent asbestos. Pecora did not manufacture a dry cement
product. Co ndon 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, Kend all 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, asbestos

containing cement for use with those products
.12 A

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Kendall believed Burnham was using Pecora cement in the cast
iron plan t 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 . B oilers, not furnaces.
Q. I'm sorry. B oilers.

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 ga llon cans, that was shipped to the
Burnham cast iron plant in 1978. Kendall also identified a
"travelling requisition form" indicating Burnham purchased twelve13 A

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cartons containing twelve two

- pound cans of Pecora premixed cement

to be used for "PF

- 5 SPECIAL R epairs." 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 pla nt.
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 as bestos 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 . Kendal l

testified:
Q. One of the products, I guess the

princip al product that I'm going to be14 A

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- 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 c ement?

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 , t hat's the dry cement. 7M is a particular manufacturer's terminology for it.
Burnham stopped purchasing dry asbestos cement in the la te 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 respond ed :

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,
sum marizing 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

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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 raise s the following points on appeal:

I. THE TRIAL COURT ERRED IN DENYING PECOR A'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 C ame 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 Supplie r Of Asbestos Cement To Burn ham

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 Prejudice16 A

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D. The Tria l 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 Di scretion In Admitting Evide nce About Other Pecora Products

G. The Jury Charge And Verdict Sheet Do Not Se t Forth The Applicable Standard
Plaintiffs' points on cross

- appeal are :

POINT III THE TRIAL COURT ERRED IN ALLOWING THE NON

SETTLING 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 HEAR SAY THAT DOES NOT FALL WITHIN ANY EXCEPT ION 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 RESPONSIBILI TY FOR PLAINTIFF'S MESOTHELIOMA17 A

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- 14T1 POINT V THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY, IN ACCORDANCE WITH I TS OWN PROPOSED INSTRUCTIONS DISTRIBUTED TO COUNSEL BEFORE SUMMATIONS, THAT DEFENDANTS HAD THE BURDEN OF SHOWING THAT THE RESPONSIBILITY OF EACH DEFENDANT FOUND LIABLE TO PLAINT IFF 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 SUBM ISSION OF THE CASE TO THE JURY

II.
Pecora argues plaintiffs have "not provi ded 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 de nying its pre

- trial motion fo r 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 issu e 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 motion18 A

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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. H armony 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 ca usation 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 fre quency 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 sufficient19 A

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frequency, with a regularity of contact, and with the product in
close proximity." Id. at 28 (citing Lohrmann v. P ittsburgh 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, wit hout 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

cumulat iv e exposure over the years to all the asbestos

- containing
produ cts 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

wa s 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, re gularity, 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" came20 A

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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 plaintiff s ' 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 B urnham, and a determination
of Pecora's liability would have necessitated findings by the jury

t hat (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 establi sh these points as more likely

than not.

T he 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 inc luded such kits. Regarding Burnham
specifically, Condon recalled installing its residential packaged
boilers, but he did not remember whether those boile rs came with

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

when asked whether asbes tos cement was "supplied with Burnham's
residential packaged boilers" in the relevant time frame. Thus21 A

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neither Condon nor Kendall established a connection between Pecora

and Condon's disease.

E ven 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

t ypically 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. Th erefor e , if
any trim kits supplied by Burnham to Condon w ould have included a
dry product . T he 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 , Kendal l'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 Pec ora cement for use on the "[p]roduction line."22 A

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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 PF

5" boiler. However, the re 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 n ot perform "repairs" on boilers.
Even drawing all inferences i n 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 judgme nt as a

matter of law.

Reversed.