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w . v i l l a no v a . e du/thir dc ir c uit_2015/698NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 3342

_____________ SUSAN HAAS, Individually and as Executrix of Carl Brasmer, and Individual H eirs of the Estate of Carl Brasmer, Appellant

v. 3M COMPANY; THE BOEING COMPANY, I ndividually and as S uccessor to McDonnell Douglas Corporation; CBS CORPORATION, I ndividually and as S uccessor to Viacom, Inc ., and S uccessor to Westinghouse Electric Corporation; HONEYWELL INTERNATIONAL , I NC

. , I ndividually and as S uccessor to the Bendix Corporation; GENERAL ELECTRIC COMPANY; GOODRICH CORP ORATION , I ndividually and as S uccessor to the B.F. Goodrich Company; GOODYEAR TIRE & RUBBER COMPANY; NORTHROP GRUMAN CORPORATION, I ndividually and as S ucce ssor to Gruman Aerospace Corporation , f/k/a Gruman Aircraft Engineering Group

_______________ On Appeal fro m the United States District Court for the District of New Jersey (D.C. No. 12

- c v - 2944 ) District Judge: Hon. Freda L. Wolfson

_______________ Argued June 3 , 2015
Before: FISHER , JORDAN, and SHWARTZ , Circuit Judges

.

(Filed July 7, 2015 )

__ _____________2

Michael E. McMahon Christopher M. Placitella [ARGUED] Cohen, Placitella & Roth 127 Maple Avenue Red Bank, NJ 07701 Counsel for Appellants Timothy K. Kapshandy Edward P. Kenney Laura A. Sexton Sidley Austin One South Dearborn S t. Chicago, IL 60603 Rebecca K. Wood [ARGUED] Paul J. Sampson Sidley Austin 1501 K Street, N.W. Washington, DC 20005 Counsel for Appellee G eneral E lectric Co.

_______________ OPINION 

_______________ JORDAN, Circuit Judge

. Appellant Susan Haas, individually and as the executrix of the estate o f her father, Carl Brasmer, and on behalf of his individual heirs, appeals an order issued by the United States District Court for the District of New Jersey grant ing summary ju dgment for
General Electric Company (“GE”) on claims that Brasmer’s exposure to GE’s asbestos

containing J79

- GE

- 17A engine ( the “J79 Engine ” ) during his service in the United States
Air Force caused his mesothelioma

. Because there is s ufficient evidence from which a

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.3

reas on able factfinder could find that Brasmer’s exposure to the J79 Engine caused his
illness , we will vacate the summary judgment order as to GE and remand for further proceedings

. 1
I. Background 2
A. Factual Background
Brasmer ser ved in the U nited States Ai r Force as an assistant crew chief and then
crew chief from approximately 1969 to 1973. During that time , he was stationed at several different military bases , including Lackland Air Force Ba se (“AFB”) in Texas , Homestead AFB in Florida , Da Nang AFB in Vi etnam , Webb AFB in Texas , Albuquerque AFB in New Mexico , and bases in Thailand. At Homestead AFB, Da Nang AFB, and in Thailand, Brasmer worked on the F

- 4E Phantom jet ( the “F

- 4E”), manufactured by the McDonnell Douglas Corporation, a company later acquire d by the Boeing Company (“Boeing”). The F

- 4E s were primarily out fitted with the J79 Engine , which GE had designed in conjunction with the U nited States Air Force and the United States Navy. The Air Force and Navy specifications mandated the use of asbest os
containing materials i n certain parts of the F

- 4E, including the parts within the J79
E ngine, and any failure to adhere to those requirements may have led the government to reject the aircraft

.

1 The order granting summary judgment addressed not only GE’s motion but also a motion for summary judgment by Boeing. The latter ruling is not before us. See infra note 3 and text accompanying note 10

.

2 These facts are recounted in the light most favorable to Haas, the non

- movant. See infra n ote 5.4

At each base, Brasmer was assigned to a specific, sing le aircraft; however, if necessary, he would provide assistance on other aircraft of the same model. His responsibilities required him to repair, maintain, and service the aircraft, as well as perform pre

- and post

- flight inspections, which included check ing fuel levels, checking and changing tires, inspecting and replacing landing gear brakes, inspecting and replacing seals and gaskets, and inspecting engine shielding. GE’s corporate representative, Gene Davis, testified at his deposition that the J79 E n gines contained approximately 147 gaskets and clamps , all contain ing asbestos

. Davis further testified that, over time, the
GE

- mad e gaskets and clamps oft en broke down and that , when this occurred , the asbestos decayed

. When that happened , the gaskets an d clamps were replaced, sometimes with parts not manufactured by GE.
Brasmer offered the report of an aviation expert , Mark Thomson, who explained how the gaskets and clamps would ha ve exposed Brasmer to asbestos:

Due to extreme temperatures, noise, an d vibration experienced within the engine compartment, the normal and intended operation of the aircraft caused the asbestos

components [of the J79 E ngine] to deteriorate, crumble, flake, and contaminate the entire engine compartment. Additionally, any i n spection or repair work inside the engine compartment, including , but not limited to, removing, installing, or repairing engine component[s] and including such regular tasks as replacing gaskets, engine inspections, checking fuel filters, oil leaks, exhaus t leaks, and electrical connections, along with other minor repairs, required the manipulation of the exposed components. All of these actions and activities caused the asbestos

- containing components [ to ] be released in to the engine space and ambie nt air, which exposed [Brasmer] and others to asbestos. (App. at 544.)5

During his deposition, B rasmer testified that he replaced seals and gaskets in the engine compartment of the F

- 4E, and that he wipe d down the dusty engine compartment with a dry cloth. B rasmer further testified that he worked on engine seals that contained

a fiberglass

- l ike component which he assumed was asbestos.
B. Procedural History In February 2012, Brasmer was diagnosed with malignant pleural mesothelioma,
and , in April 2012, he filed a state court action against , among others, Boeing and GE, alleging that his mesothelioma was caused by expos ure to the defendants ’ asbestos

conta ining products during his Air Force service

. Boeing then removed the action to
federal district court. During discovery , Brasmer was deposed o ver a period of three days; however, he died before his deposition c ould be c oncluded. As Haas concede s , her father’s deposition was not a “beacon of clarity” because he was on strong medications

. (Opening Br. at 1 4.) For part of the time, though, Brasmer was not taking any narcotic drugs and seemed lucid

. After Brasmer’s death, Haas filed an amended complaint , adding state

- law wrongful de ath claims , and, following the close of discovery, all
defendants moved for summary judgment. Pertinent to this appeal, t he District Court granted GE’s motion, 3 ruling that , “ [ i ] n order for a jury to find that [Brasmer’s] injury was caused by ... GE ... [ the jury ] would have to infer that the dust in the engine compartment was from gaskets or seals that

3 Seven of the ei ght defendants successfully moved for summary judgment. The eighth defendant was dismissed pursuant to a stipulation between the parties. Haas has appealed only the District Court’s order grant ing summary judgment in favor of GE.6

contained asbestos, which were also manufactured or supplied by GE

. ” (App. at 29.) According to the District Court, “[t]his inferential connection ... is too tenuous to defeat summary judgment.” (App. at 29.) In reaching its ruling, the District Court relied upon
Brasmer’s deposition testimony, despite it s being hearsay, determining that it was admissible because GE was present at the deposition and GE’s interests were adequately represented by Boei ng, which had the lead role in ques tioning Brasmer. I n the alternative, the Court decided the testimony could also be admissible under the residual exception to the bar against hearsay

. II. Discussion 4
A. Summary Judgment 5
In order to defeat summary judgment in an asbestos case, New Jersey law provides that a plaintiff must adduce evidence from which “reasonable jurors could infer that sometime during [ his] work histor[y] ... plaintiff [] w[as ] exposed to a defendant ’ s friable asbestos frequently and on a regular basis, while [plainti ff was] in close proximity

4 The District Court had jurisdiction under 28 U.S.C. §§ 133 2 and 1441. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

5 We review a district court’s grant of summary judgment de novo and “view inferences to be drawn from the underlying facts in the light mos t favorable to the nonmoving party.” Montanez v. Thom p son , 603 F.3d 243, 248 (3d Cir. 2010) (internal quotation marks omitted). Summary judgment is appropriate if we are satisfied that there is no genuine dispute as to any material fact and that the movi ng party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett , 477 U.S. 317, 322

- 23 (1986). Although the non

- movant’s evidence “is to be believed, and all justifiable inferences are to be drawn in h[er] favor in det ermining whether a genuine factual question exists, summary judgment should not be denied unless there is sufficient evidence for a jury to reasonably find for the nonmovant.” Barefoot Architect, Inc. v. Bunge , 632 F.3d 822, 826 (3d Cir. 2011) (internal q uotation marks and citation omitted).7

to it[,]” as well as “competent evidence, usually supplied by expert proof, establish[ing] a nexus between the exposure and plaintiff ’ s condition.” 6 Sholtis v. Am. Cyanamid Co. , 568 A.2d 1196, 1208 (N.J. Super. Ct. App. Div. 19 89). I n mesothelioma cases , however,

t he amount of exposure necessary to demonstrate liability is somewhat lower because

“ mesothelioma is associated with the smallest exposure to asbestos and can develop from the cumulative effects of minimal and infreque nt exposure. ” Buttitta v. Allied Signal,
Inc. , No. A

- 5263

- 07T1, 2010 WL 1427273 , at *10 (N.J. Super. Ct. App. Div. Apr. 5, 2010) (per curi a m) (internal quotation marks omitted) ; accord Kurak v. A.P. Green Refractories Co. , 689 A .2d 757, 760, 766 (N.J. 199 7)

. 7 A plaintiff may “rely upon circumstantial proof of sufficiently intense exposure,” generally accompanied by expert proof , to warrant the imposition of liability because “p roof of direct contact is almost always lacking

. ” James v. Bessemer Processing Co. , 714 A.2d 898, 910 (N.J. 1998) ( internal quotation marks omitted ); accord Goss v. Am. Cyanamid, Co. , 650 A.2d 1001, 1005 (N.J. Super. Ct. App. Div. 1994) ( stating that a plaintiff need not adduce direc t evidence of asbestos exposure).

6 There is no dispute that New Jersey law controls.

7 See also, e.g. , Barnes v. Foster Wheeler Corp. , No. CIV.A. 13

- 1285 JBS /JS, 2014 WL 2965699, at *3 (D. N.J. June 30, 2014) (“In Kurak , the court recognized a l ower causation standard ... where plaintiff has been diagnosed with mesothelioma. The court stated that, unlike asbestosis or cancer of the lung caused by asbestos, mesothelioma, a cancer of the lining of the lung, can be caused by relatively small exposure s to asbestos .” (internal quotation marks and citations omitted)); Thomasson v. Air & Liquid Sys. Corp. , No. CIV.A. 13

- 1034 JB S/JS, 2015 WL 1639730, at *3 (D. N.J. Apr. 9, 2015) (“[A] lower causation standard may apply in cases where plaintiff has been diag nosed with mesothelioma.”).8

Here, taking a ll inferences in Haas’s favor and viewing the evidence in the light
most favorable to her , there is sufficient evidence for a reasonable factfinder to conclude
that her father was exposed to asbestos from GE’s J79 E ngine and that the exposure caused his me sothelioma. Brasmer testified that , a s part o f his routine responsibilities , he
worked on the J79 E ngine , which required him to come into contact with many seals and gaskets. Davis, GE’s own corporate representative , admitted that th e J 79 Engine ’s 147

se als and gaskets contained asbestos and that the asbestos “frayed” over time

. (App. at 125.) Haas’s expert , Thomson , explained that , due to the “extreme temperatures, noise, and vibration experienced within the engine compartment, the normal and intended operation of the aircraft caused the asbestos

- components to deteriorate, crumble, flake, and contaminate the entire engine compartment

. ” (App. at 544.) Taken together, this evidence is sufficient to defeat summary judgment. 8 That the seals and gaskets c ould have been replaced with non
- GE parts and that Brasmer lacked personal knowledge of
whether a particular substance he encountered was actually asbestos does not change that
result. Sholtis , 568 A.2d at 1206

- 07; Kurak , 689 A.2d at 760

. Accordingly, th e District Court’s grant of summar y judgment cannot be sustained

.

8 The District Court’s recitation of the facts incorrectly described certain evidence. In particular, the Court’s reliance upon the testimony of Frederick Deaver, who worked alongside Brasmer in Thailand, was largely misplace d. Deaver testified that he and Brasmer were both crew chiefs and that they did not usually work together. His testimony was that he rarely observed what Brasmer did while working on the F

- 4E. Indeed, Deaver said that he only interacted with Brasmer on two occasions at work. The bulk of his testimony related to the F

- 4E’s brakes. Deaver did note, however, that the planes and their engine components were very dusty and dirty, though he did not list asbestos as a potential source of that dust.9

B. Admissibility of Brasmer Deposition 9 GE argues that the District Court erred in admitting Brasmer’s deposition testimony because it constituted hearsay and that exclud ing th e depositio n would provide

an a lternative basis for affirming the District Court’s ruling

. The District Court ruled that
Brasmer’s d eposition testimony was admissible under Federal R ule of Evid ence 804(b)(1), which provides an exception to the hearsay rule for forme r testimony whe n : (1) the declarant is unavailable; (2) the testimony was given during trial, a hearing, or a deposition; and (3) the testimony is being offered against a party who had, or , in a civil

case, whos e predecessor in interest had, an opportunity and similar motive to develop it by direct, cross

- , or redirect examination. Here, GE argues that, because it did not have an opportunity to cross
- examine Brasmer, the admission of his testimony was inappropriate because the third requirement of Rule 804 (b)(1) was not satisfied. We disagree.
The similar

- motive requirement assures that “the earlier treatment of the witness is the rough equivalent of what the party against whom the statement is offered would do ...
if the witness were available to be exami ned by that party.” Kirk v. Raymark Indus., Inc. ,

9 We review a district court’s evidentiary rulings for an abuse of discretion. Bohler

- Uddeholm Am. , Inc. v. Ellwood Grp., Inc. , 247 F.3d 79, 111 (3d Cir. 20 01 ). This issue is properly before us, even though GE did not file a cross appeal. See United States v . Am. Ry

. Express Co. , 265 U.S. 4 2 5, 435 (1924) (“[I]t is likewise settled that the appellee may, without taking a cross

- appeal, urge in support of a decree any matter appearing in the record , although his argument may involve an attack upon the reasoning of the lower court

... .”); United States v. Ritter , 416 F.3d 256, 262 n.6 (3d Cir. 2005) (“It is well established that the prevailing party below need not cross

- appeal to entitle him to support the judgment in his favor on grounds expressly rejected by the court below.” (internal quotation marks omitted)).10

61 F.3d 147, 166 (3d Cir. 1995) (internal quotation marks omitted). “ Similar motive ”
does not mean identical motive , and whether there was a similar motive is an inherently factual inquiry. United States v. Salerno , 505 U.S. 317, 326 (1992) (Blackmun, J., concurring). Here, the co
- defendants evidently agreed to allow Boeing ’s attorney to be
the lead questioner during Brasmer’s deposition. Even then, GE’s attorney participated in the deposition and had t he opportunity to object or interfere if it was deemed
necessary. Haas v. 3M Co. , No. CIV.A. 12

- 2944 FLW, 2014 WL 3696043, at *9 (D.N.J. July 24, 2014). Further, Boeing’s attorney was able to successfully elicit the information involving the GE

- manufactu red J 79 E ngines that provided the basis for GE’s summary judgment motion. And Boeing avoided liability by admitting that its parts contained asbestos and raising the “ government contractor defense, ” 10 not by showing some hostility to GE’s interests. Boein g did not endeavor to show that GE manufactured the
asbestos

- containing parts that caused Brasmer’s mesothelioma. Id. at *7. Given those
circumstances and this particular record , we cannot say that the District Court abused its discretion in ruling that GE’s interests were sufficiently similar to Boeing’s interests to permit consideration of Brasmer’s deposition testimony under Rule 804(b)(1). 11

10 That defense insulates a private government contractor from a state

- law products liability claim “when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Boyle v. United Techs. Corp. , 487 U.S. 500, 512 (1988).

11 Because we conclu de that the District Court did not abuse its discretion in admitting the testimony under Rule 804(b)(1), we need not reach the question of whether the testimony is alternatively admissible under Rule 807.11

III. Conclusion
For the for e going reasons we will vacate the ruling of the District Court and
remand th e case for further proceedings consistent with this opinion.