Petition for Writ of Certiorari — Bradley v. E. I. du Pont de Nemours & Co.
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| Supreme Court, U.&
~ YY FILED
91-1530 WAR 2 4 1992
No. QFFICE OF THE GickK
In The
Supreme Court of the United States
-—
—_—
October Term, 1991
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Petitioners,
vs.
E.I. DU PONT DE NEMOURS & COMPANY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NORMAN SHAW
Attorney for Petitioners
1370 Avenue of the Americas
New York, New York 10019
(212) 956-0400
1786
tz * NJ (908) 257-6850+(800) 3 APPEAL *NY (212) 840-4640¢MA (617) 542-1114
pellate | sas. DC (202) 783-7288*PA (215) 925-6500*USA (800) 5 APPEAL
QUESTIONS PRESENTED
1. Whether the Torres v. Oakland Scavenger Co. holding
under Fed.R.App.P. 3(c)’s specificity requirement, excluding from
a group of sixteen appellants one who was not named in the body of
the notice of appeal, controls when circuit courts have announced
that when individual names of all appealing parties are not listed in
the body of the notice of appeal in instances in which the generic
term “plaintiffs” adequately and clearly identifies them for
appellate jurisdiction.
2. Whether the lower courts erred in applying to the facts of
this case, which does not involve a “products identification” issue,
the principle found in Celotex Corp. v. Catrett, in light of the fact
that the defendant Du Pont has admitted placing asbestos-
containing products at the petitioners’ workplace over the course of
eleven years, and granting summary judgment based solely upon a
letter containing an opinion of a proposed expert witness that does
not address petitioners’ claim of asbestos exposure during
incineration of asbestos-containing material.
ii
PARTIES TO THE PROCEEDING BELOW
The parties hereto are the same parties as in the proceedings
in United States District Court for the District of New Jersey
(No. 86-03324), and on appeal to the United States Court of
Appeals for the Third Circuit (Nos. 90-5988 and 91-5206). James
John Bradley and Catherine Bradley, his wife, et_al.', are
thepetitioners herin and E.I. Du Pont De Nemours & Company the
respondent, and will be referred to as “petitioners” and “Du Pont”
throughout this petition.
| JAMES JOHN BRADLEY; CATHERINE BRADLEY, his wife; LUIS
BASADRE; ARTHUR BELL; JAMES BENSON, JEANETTE BENSON, his wife;
MARY PIETROPINTO, Administratrix Ad Prosequendum of JOSEPH
PIETROPINTO, Deceased, and General Administratrix of the Estate of Joseph
Pietropinto; FRANCESCO BOZZI, LAURA BOZZI, his wife; CURTIS BROWN,
JR.; HERMAN BROWN; AUDREY BROWN, his wife; JOHN CAREW; REGINALD
CAIN, JOSE CAMACHO; CARMEN CAMACHO, his wife; JOHN COLLINS;
SHIRLEY COLLINS, his wife; LOUIS CURCIO; ANGELA CURCIO, his wife;
BEN DAVIS; BERLINE DAVIS, his wife; CHARLES DEWITT; JULIA DEWITT,
his wife; SAM EDMONDS; DORIS EDMONDS, his wife; CAL FAYARD; ROCH-
ELLE FAYARD, his wife; EDWARD FIELDS; MARY FIELDS, his wife; JOSEPH
FOGARTY; JESSE HINTON, JR.; ALICE HINTON, his wife; ISAAC JEFFRIES;
CAROLYN JEFFRIES, his wife; JUAN JUAME; CARMEN JUAME, his wife;
MOSES LAVAL; OLIVIA LAVAL, his wife; JOSEPH McLAUGHLIN;
GENEVIEVE V. McLAUGHLIN, his wife; LOUIS MADARAZ; CLEMENT
MARRA; CATHERINE MARRA, his wife; RALPH MORRELLO; CHRISTINE
MORRELLO, his wife; EDWARD MORRIS; JEAN MORRIS, his wife;
FERDINAND PENA; REGINA PENA, his wife; ANDRE PIERRE; PAUL POOLE;
GERONICO QUINTANA; DELFINA QUINTANA, his wife; EMILIO
RODRIGUEZ, Social Security No. 582-05-9377; WILFREDO RODRIGUEZ;
MARIO SANTOS; OCTAVIA SANTOS, his wife; FRED SAVAGE; ALICE SAV-
AGE, his wife, CHARLES STATEN; MARY STATEN, his wife; DAVIS THO-
MAS; MARION THOMAS, his wife; WILLIAM TRISLEY; DELORES TRIBLEY,
his wife; LAWRENCE VENEIRO; ROSE VENEIRO, his wife; VASIL VISLOCKY;
(Con’t)
(Con’t)
MARY VISLOCKY, his wife; KENNETH WILLIAMS; ROBERT AUSTIN, JANE
DOE AUSTIN, his wife, a fictitious name; CARLOS BARQUIN; JANE DOE
BARQUIN, his wife, a fictitious name; ALBERT BRAVO; JANE DOE BRAVO, his
wife, a fictitious name; RAY BUNN; JANE DOE BUNN, his wife, a fictitious name;
DEWITT CANNON; JANE DOE CANNON, his wife, a fictitious name; EDWARD
GOLDA, JANE DOE GOLDA, his wife, a fictitious name; KAZIMIERZ
JAWOROWSKI; JANE DOE JAWOROWSKI, his wife, a fictitious name;
ZDZISLAW KOWALSKI; JANE DOE KOWALSKI, his wife, a fictitious name;
FELIX LANTIGUA; JANE DOE LANTIGUA, his wife, a fictitious name;
KAZIMIERZ NITKOWSKI; JANE DOE NITKOWSKI, his wife, a fictitious name;
JOSEPH PAGNOTTA; JANE DOE PAGNOTTA, his wife, a fictitious name; PAT
REILLY; JANE DOE REILLY, his wife, a fictitious name; BASIL RIVERO; JANE
DOE RIVERO, his wife, a fictitious name; EMILIO RODRIGUEZ, Social Security
No. 138-36-6001; JANE DOE RODRIGUEZ, his wife, a fictitious name; MICHAEL
SABAT, JANE DOE SABAT, his wife, a fictitious name; RUDY TROUPE; JANE
DOE TROUPE, his wife, a fictitious name; ELIAS TZEMOS; JANE DOE TZEMOS,
his wife, a fictitious name; LUIS ZAMORA; JANE DOE ZAMORA, his wife, a
fictitious name; JAMES ZICARO; JANE DOE ZICARO, his wife, a fictitious name.
ie
iv
TABLE OF CONTENTS
Page
NY I ie UG ew wesc ous ae euN an cebiekh woes i
Parties to the Proceeding Below ..................008. ii
pg A Rs eee rer Ly oe Pere oe eee ee iv
ING vice cK Cake echcdeehenn eb Auaeoahoons Vv
EG os 0st obicne wa dedeneecewseudade ha l
PET Ser rr ere errr : , 2
URE GE FUNGI x 5 ook cy enced neue Weeecewes 2
Pe Or I ok BS ene haan 6d she eu Sake 2
ee ce cars ck pte eee eks nee be 6
Reasons for Granting the Writ............ccccccccsecs 8
I. A-writ of certiorari must be granted on the scope of
Fed. R. App. P. 3(c) because of circuit conflict over
whether the required specification of parties taking
an appeal consistently utilizing, ef a/. and ‘‘the
plaintiffs’’ presents a jurisdictional bar to the appeal.
» 6G ECG & Oe Rei adda ie ae aes 8
II. Torres does not require the individual names of the
appealing parties to be listed where ‘‘the plaintiffs’’
consistently and adequately identifies all appellants.
Pe at ay Dietetics Will of y o-yy Sul ab 13
Contents
Page
III. Du Pont’s motion for summary judgment, given its
broadest interpretation, is directed to only one of the
petitioners’ four claims for damages............. 15
IV. The court of appeals erroneously affirmed the district
court’s granting of summary judgment solely on the
basis of respondent’s expert opinion that there was
no asbestos remaining after incineration because such
conclusion is not dispositive as to petitioners’ claim
of asbestos exposure during the lengthy incineration
OID a .s oc on ou eieGe nes wa nscaenseswedesaes 20
A. The Existence of Sufficient Evidence Supporting
Reasonable Inferences That Health Hazards
Were Created by Du Pont’s Conduct Precludes
the Granting of Summary Judgment in
ROMPOREONE'S FOVOT. o.oo ccs cccesncscenuss 20
B. Petitioners’ Claim of Asbestos Exposure
Resulting From Frequent and Regular Burning
of Du Pont Waste Materials During Lengthy
Incineration Periods While Working Within
Proximity of Such Activity Precludes Summary
POIs aso i sb 6dcndganeusdteenas tess 25
ee a ado ake ae ea ae a er 27
TABLE OF CITATIONS
Cases Cited:
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
vi
Contents
Page
Association of Am. Med. Colleges v. Cuomo, 913 F.2d 55
+ Be RS ey ir ety y 3! 14, 15
Ayers v. Jackson Twnshp., 106 N.J. 557 (1987) ....... 19, 23
Baylis v. Marriott Corp., 906 F.2d 874 (2nd Cir. 1990)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..........
022s ce awe kaha hed ee ee eee i, 3, 7, 16, 19, 23, 26
Devlin v. Johns-Manville Corp., 202 N.J. Super. 556 (Law
SEU. GO cen 0g46s-64400000Ks teen 18
Fomuamn V. ENG, Ort Wis Bee Cee kh ct hbxenccuaacses 1]
Harrison v. United States, 715 F.2d 1311 (8th Cir. 1983)
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th
ee ee en sl eh 25
Lujan v. National Wildlife Fed’n, 110 S. Ct. 3177 (1990)
Contents
Page
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574 (1986) ...... cece eee e cere eee eens 16
Mauro v. Raymark Indust., Inc., 116 N.J. 126 (1989)
ae CO er rT Peet aed ea idl dye 18
Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161
CED co nocd csuvnusaeay ed he Sen xecee rps eevee ees 19
Nat’l Center for Immigrants’ Rights v. INS, 892 F.2d 814
(Oth Cir. 1989) ........ cece cece erence reees 12, 13, 15
Pope v. Mississippi Real Estate Com’n, 872 F.2d 127 (Sth
2 | errr ter er ee 10
Ruvulo v. American Cas. Co., 39 N.J. 490 (1963) ..... 22, 23
Sholtis v. American Cyanamid Co., 238 N.J. Super. (App.
CE cc gubhv sn tuweaeeeaes 609484: 7, 8, 25, 26, 27
Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150
Lo. Se rrrrrrr rer rer te ae 26
Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988)
baer rerre errr 1, 6, 8, 9, 10, 11, 12, 13, 14, 15
Statutes Cited:
, Cin tome Be.” | | eres 2
, ee Come Sy. err eere rr rr ee 2
vill
Contents
Page
SP NE. TUE 0 rok 8 Laan eeeo eve a eeu eneas 2
Rules Cited:
65s oS ewe ed kaweera eee ba eral 10
er SE as a bog Vas sine a oS es Cota e ae 14
Ps ee EE baa vnc va ennds hehe eeeebaan een 10
Pie Wes PO Os a 4s nearness s Gudeecuns 1, 2, 6, 8, 13, 14
Pe I OE ee Leu case eed eas ope % CUaUNa Nyaa 12
ee aa Ne in ss awed San cine eae ea Uw aed 12
Pe ee ED isn sys 4ce ch coh ch cee blak aun ;, 1, &
ee es GP a 00 see sine bs ce Vee Reeee beens 16
re 16, 23
Other Authorities Cited:
Advisory Comm. Notes on Fed. R. App. p. 3 — 1979
te es cena de kaa Rae eos oa 13
cw ee ee re 22
p Zonk Se ee ee SS eer eee eee 22
Jeffery L. Kirchmeir, Torres v. Oakland Scavenger Co.,
What’s In a Name? — Everything In A Federal Appeal,
39 Case W. Res. L. Rev. 943 (1989)............... 11
ix
Contents
Page
W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser &
Keeton on the Law of Torts § 30................. 23
APPENDIX
Appendix A — Order of the United States Court of Appeals
for the Third Circuit Denying Petition for Rehearing
, £ .¢ fs errr rT TTT Teer la
Appendix B — Opinion of the United States Court of Appeals
for the Third Circuit in Bradley v. Du Pont, Civil No.
91-5206 Filed December 24, 1991 ................. Sa
Appendix C — Order of the United States District Court,
District of New Jersey in Civil Action No. 86-03324 by
Hon. Garrett E. Brown, Jr. Entered on February 22,
SE Snes ew a as RN a a ea hea snes 18a
Appendix D — Voluntary Dismissal Upon Plaintiffs’ Motion
Without Prejudice by Order of the United States Court
of Appeals for the Third Circuit in Bradley v. Du Pont,
Civil No. 90-5988 Filed January 24, 1991 .......... 24a
Appendix E — Order of the United States District Court,
District of New Jersey in Civil Action No. 86-03324 by
Hon. Garrett E. Brown, Jr. Entered on December 4,
Saget eres let oe own ey Phas ae wae kee ee ke 26a
Appendix F — Order of the United States District Court,
District of New Jersey in Civil Action No. 86-03324 by
Hon. Garrett E. Brown, Jr. Filed October 19, 1990
Contents
Page
Appendix G — Plaintiffs’ Notice of Appeal to the United
States Court of Appeals for the Third Circuit Filed
se ee ve ctueeaeashasbha kaw s 46a
Appendix H — Plaintiffs’ Affidavits:
John Carew Dated September 7, 1990 ............. 48a
Herman Brown Dated September 8, 1990 .......... S4a
Curtis Brown Dated September 8, 1990 ............ 58a
James Bradley Dated September 8, 1990 ........... 62a
John Collins Dated September 8, 1990............. 67a
Arthur Bell Dated September 10, 1990............. 76a
Appendix I — Plaintiffs’ Medical Exam:nations:
James Bradley Dated August 30, 1985 ............. 79a
Herman Brown Dated January 27, 1986 ........... 82a
Arthur Bell Dated March 3, 1986 ................. 85a
John Collins Dated May 5, 1986.................. 88a
John Carew Dated June 12, 1986 ................. 9la
James Benson Dated July 1, 1986................. 94a
xi
Contents
Page
Appendix J — Plaintiffs’ Expert Reports:
Joseph J. Aaron, M.D. Dated September 6, 1990
PPPS PTT PPP Pee Pee Teer eT eh 97a
Peter M. Hay, Ph. D, Consulting Chemist Dated
December 10, 1990 .......... 2. cece cece eens 10la
Appendix K — Respondent’s Memorandum and Correspondence:
Cellulose Asbestos Filter Pads — W.R. Freeman Letter
Dated July 12, 1983 ........... cece eee ee eee 10Sa
Robert R. Bonczek, Dir. of Safety, Health &
Environmental Affairs, Letter to U.S.E.P.A. Dated
August 5, 1983 ........... eee e cece ee eens 109a
Ted E. Lewis — August 19, 1983 Visit to Engelhard
Letter Dated August 29, 1983 ...........--+5- 112a
Cellulose Asbestos Filter Pads Update — W.R. Freeman
Letter Dated September 15, 1983...........--. ll4a
Ted E. Lewis - ‘‘Yellow Label’’ Spent Catalyst Shipments
Dated September 28, 1983..........----+-+055: 119a
Cellulose Asbestos Filter Pads Update No. 2 W.R.
Freeman Letter Dated December 5, 1983....... l2la
Cellulose Asbestos Filter Pads Update No. 3 Du Pont
Letter Dated February 29, 1984.............-. 124a
Cellulose Asbestos Filter Pads — Current Status .... 126a
xii
Contents
Page
T.E. Lewis Letter Dated June 6, 1984 ......... 126a
T.E. Lewis Letter Dated August 20, 1984...... 129a
T.E. Lewis Letter Dated September 27, 1984
Appendix M — Neil A. Kaye, Dir. of Environment, Health
& Safety of Engelhard, Letter Dated September 4, 1984
No.
In The
Supreme Court of the United States
October Term, 1991
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife,etal.
Petitioner,
vs.
E.I. DU PONT DE NEMOURS & COMPANY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
OPINIONS BELOW
The opinions of the District Court for the District of New
Jersey in the civil case 86-03324 are unreported but are attached as
Appendices C, E, and F. The first opinion of the Court of Appeals
for the Third Circuit, civil case 90-5988, dated December 24, 1991
is unreported and is attached as Appendix B. A petition for panel
rehearing with suggestion for rehearing in banc was denied
pursuant to Order of the Court dated January 21, 1992 and is
attached as AppendixA.
ais
2
RULE INVOLVED
Federal Rule of Appellate Procedure 3 (c) states:
[T]he Notice of Appeal shall specify the parties
taking the appeal.
[A]n appeal shall not be dismissed for
informality of form or title of the Notice of
Appeal.
STATEMENT OF JURISDICTION
The judgment of the Third Circuit Court of Appeals was
made and entered on December 24, 1991. A petition for rehearing
was filed on January 7, 1992. Rehearing was denied by Order of the
Third Circuit dated January 21, 1992 (Appendix A). The
jurisdiction of this Court is properly invoked under 28 U.S.C. §
1254(1).
STATEMENT OF THE CASE
On March 18, 1991, all petitioners adversely affected by
the granting of summary judgment on behalf of the respondents by
the United States District Court, District of New Jersey, which had
subject matter jurisdiction premised on 28 U.S.C. § 1332 because
of diversity of citizenship and the requisite amount in controversy,
pursuant to memoranda and order of such District Court dated
February 21, 1991 (Appendix C) which included memoranda and
orders dated October 19, 1990 (Appendix F) and December 4, 1990
(Appendix E), filed a timely notice of appeal pursuant to 28 U.S.C.
§ 1291.
The caption of the notice of appeal designated petitioners
3
as “JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al., Plaintiffs.” The body of the Notice of Appeal
unambiguously specified that “the plaintiffs hereby appeal to the
United States Court of Appeals for the Third Circuit....” Appellate
jurisdiction, however, was deemed by the Third Circuit as lacking
to all parties except Mr. and Mrs. Bradley.
As to the second question presented, based on Du Pont’s
submission of a letter opining, without the benefit of testimonial
scrutiny, that there was no asbestos exposure after incineration, the
Third Circuit granted summary judgment even in light of the fact
that petitioners’ exposure claim was based on the burning of
asbestos during incineration that lasted for hours in furnaces.
Furthermore, petitioners’ separate and independent claims for
medical surveillance, emotional distress (Appendix H, Affidavits)
arising from erroneous notification of asbestos exposure when as
Du Pont admits six years later in its report that, in fact, only silica
was present, and the claim for punitive damages based on Du Pont’s
corporate conduct that jeopardized the safety and health of workers
were also stricken under misapplication of the summary judgment
standard frequently announced by this Court. All reasonable
inferences were erroneously not made in the non-moving parties’
favor in light of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and
its progeny. In fact, Dr. Peter M. Hay’s report refuting Du Pont’s
opinion was not allowed into evidence (Appendix J).
During the years 1971 through 1982, Du Pont regularly sent
to Engelhard Industries’ Delancy Street plant in Newark, New
Jersey waste material from Du Pont’s manufacturing process which
took place at its plant in Memphis, Tennessee, for the purpose of
reclaiming the precious metal palladium from such waste material.
The waste material included, but was not necessarily
limited to spent catalyst, palladium, asbestos-containing filter
pads, organic solvents, and “filter-cake”.
ey
4
The material was shipped in Du Pont’s own vehicles, and
was contained in 55 gallon steel drums. Over the course of 11 years
the material weighed almost one million pounds in the aggregate
(Appendix K, Ted E. Lewis Letter). Du Pont indicated that it
identifies this material by calling it “yellow label” catalyst. /d.
When the material arrived at the Engelhard Delancy Street site it
went through a refining process so as to permit the palladium to be
retrieved and reclaimed on behalf of Du Pont.
The refining and reclaiming process for a particular amount
of waste material typically took many unspecified hours, and
involved primarily the incineration of the material that had been
delivered in the 55 gallon drums. The incineration took place in
large furnaces, primarily in Buildings 7 and 18 at the Engelhard
location. The incineration process was extremely dusty and
smokey. Such dust and smoke was emitted from the ovens and
leaked into the buildings’ interior and drifted through the buildings’
smokestacks. This resulted in dust, ash and soot being deposited
and settling on the ground, various objects near the buildings on the
Engelhard site, property off the site owned and occupied by
individual homeowners, businesses, and other land owners.
Prior to 1983, Du Pont did not advise any of the seven first-
wave petitioners, any of the other co-petitioners in this lawsuit, any
of the approximately 1,200 people at the Engelhard site who were in
contact with the results of the incineration, or any of the other seven
companies that it used for similar processing, or theiremployees, of
the fact that the material that it had been sending them for
processing, including incineration, contained asbestos.
Robert R. Bonczek, Director of Safety, Health and
Environmental Affairs of Du Pont wrote a letter dated August 5,
1983 to the United States Environmental Protection Agency
including statements concerning its use of asbestos-containing
filters and in its reclaiming activity (Appendix K). Simultaneously,
- m
5
Du Pont caused two of its management personnel to visit the eight
locations of the various processors so as to advise them personally
for the first time of the fact that the material having been processed
over the course of time had in fact contained asbestos. /d.
After Du Pont advised representatives of Engelhard in
August of 1983 concerning the fact of the asbestos incineration,
Engelhard in turn advised its employees of the fact. Engelhard
management asked Du pont to return in early 1984 to give a full
explanation of the situation. Du Pont, for the second time, sent
representatives to Engelhard, so as to indicate the fact that the
material that had been sent for 11 years to Engelhard had contained
asbestos. Jd. At that time there was no mention made of organic
solvents. /d.
Engelhard offered its employees medical screening
because of the asbestos exposure and sought medical cost
reimbursement from Du Pont (Appendices M and K). The offer
took place in August of 1984 and subsequently many employees did
submit to medical examinations.
Thereafter for many months, there was discussion between
Du Pont and Engelhard regarding the cost of the screening activity,
with respect to who should bear such costs. /d.
Much Du Pont suspicious conduct after August of 1983
transpired which strongly supports the fact that the asbestos sent by
Du Pont posed a health hazard to individuals, particularly those
employed by and present at the plant sites of the eight processors
located in New Jersey, New York, Missouri, Illinois and California
(Appendix K). It is undisputed that Du Pont had knowledge of the
fact that its material was going to be subjected to arefining process,
including incineration.
Of the over fifty named petitioners, all. have claimed
6
pulmonary disease, and the physician who has examined them has
indicated that their pulmonary disease is of such nature as to have
been caused or contributed to by asbestos exposure (Appendices I
and J). Specificaily, the disease is a form of pneumoconiosis which
is arestrictive lung disease, and asbestos is one irritating agent that
causes such lung pathology. Petitioners have exhibited a great deal
of exposure to the refining process in Buildings 7 and 18 where the
asbestos-containing material from Du Pont was refined and
incinerated. While not all of the petitioners worked directly within
one or both of those buildings during the entire thirteen years that
the asbestos was being processed at Engelhard, they were all either
in those buildings on a frequent basis during their employment at
Engelhard, or worked in very close proximity to the buildings from
which dust, fumes, smoke and soot from the incinerating process
emanated, and was caused to be in the surrounding atmosphere
before settling on individuals and objects in the vicinity (Appendix
H, Affidavits).
SUMMARY OF ARGUMENT
A Writ of Certiorzri must be granted on the scope of
Fed.R.App.P. 3(c) because especially in light of some circuits,
particularly, the Ninth and Second Circuits distinguishing the
rationale of the Torres v. Oakland Scavenger Co. fact pattern
involving the omission of one appellant from a group of sixteen
appellants. Use of “the Plaintiffs” to specify over fifty plaintiffs in
the body of the Notice of Appeal comports with Rule 3(c) because it
is unambiguous and doesnot prejudice the respondent when in fact
all petitoners intended to appeal. Torres does not require the
individual listing of appellants because “the Plaintiffs” is a
functional equivalent affording Du Pont adequate notice of the
appeal.
The first revelation of asbestos exposure came from
- |
7
Du Pont in 1983 after the respondent was caught by the United
States EPA (Appendix K). By that action alone, principles of law
regarding product identification found in Celotex and Sholtis
instantly and irrevocably became and remained irrelevant to this
case.
A significant error made by the trial judge and by the Third
Circuit was to hold principles involving product identification
issues as bearing on whether or not summary judgment should be
granted in favor of Du Pont and against the petitioners.
This misapprehension of the appropriate use of Celotex
requires the review of this Court in order to clarify that Celotex in
fact should be limited to the cases involving product identification
issues.
The law should be uniform with respect to having it clearly
understood that the basic principles of summary judgment have not
essentially been changed in Celotex except for the requirement that
a claimant, in a toxic tort case with potentially many defendants,
make some minimum showing as to the identity of producers or
suppliers of toxic substances.
Du Pont’s motion for summary judgment, given its broadest
interpretation, is only directed to one of the petitioners’ four claims
for damages. The moving party’s expert merely opined that there
was no asbestos remaining after incineration, while the petitioners’
primary claim was harm from asbestos exposure during the
incineration process. Furthermore, in the aggregate, a jury could
reasonably find that Du Pont’s conduct created safety and health
hazards for workers who were misinformed for over a decade as to
the burning of asbestos.
A jury could reasonably conclude that the petitioners’ claim
of asbestos exposure resulted from the frequent and regular burning
8
of Du Pont waste within the proximity of their daily work.
Therefore, the Court should afford the petitioners an opportunity to
present testimony as to asbestos exposure during the incineration
process in deciding all reasonable inferences in favor of the
petitioners by remanding for atrial on the merits.
REASONS FOR GRANTING THE WRIT
I,
A WRIT OF CERTIORARI MUST BE GRANTED ON THE
SCOPE OF FED.R.APP.P. 3(C) BECAUSE OF CIRCUIT
CONFLICT OVER WHETHER THE REQUIRED
SPECIFICATION OF PARTIES TAKING AN APPEAL
CONSISTENTLY UTILIZING ETAL. AND “THE PLAINTIFFS”
PRESENTS A JURISDICTIONAL BAR TO THE APPEAL.
Rule 3(c) on its face states that “[t]he notice of appeal shall
specify the parties taking the appeal.” Rule 3(c) expressly demands
that “[a]n appeal shall not be dismissed for informality of form or
title of the notice of appeal.” Furthermore, the suggested form of a
notice of appeal, designated “Form 1 in the Appendix of Forms”,
(Appendix L), is silent as to the outright exclusion of et al.
As a widely-used legal syntax originating in old English
common law for “and others”, et al. has been continually and
liberally utilized by the legal profession throughout American
jurisdictions. The Court, however, in Torres v. Oakland Scavenger
Co., 487 U.S. 312, 317-18 (1988), held that where the body of the
notice named fifteen of the sixteen appellants, and the caption was
in the form of naming one plaintiff, et al., “[p)laintiffs in
intervention”, the notice was deemed insufficient to specify the
missing appellant, Mr. Torres.
Du Pont de Nemours & Co. contends that the caption of the
notice of appeal designating petitioners as “JAMES JOHN
9
BRADLEY and CATHERINE BRADLEY, his wife, et al.,
Plaintiffs”, simultaneously with the body of the notice of appeal
consistently referring to all parties as plaintiffs creates a
jurisdictional bar (Appendix G). Nowhere in Bradley was there
ever the blatant confusion of Torres in excluding one or evena few
of the petitioners, which number over fifty parties.
Petitioners contend that Torres is factually and legally
distinguishable from Bradley because of the absence of specifically
omitting some parties while naming others. Du Pont was not in the
least ever burdened or prejudiced from such acaption.
The applicability of the Torres decision is limited by its own
language in that the opinion states:
[T]he requirements of the rules of procedure
should be liberally construed and that “mere
technicalities” should not stand in the way of
consideration of acase on the merits. Thus, ifa
litigant files papers in a fashion that is technically
at variance with the letter of a procedural rule, a
court may nonetheless find that the litigant has
* complied with the rule if the litigant’s action is
the functional equivalent of what the rule
requires.
Torres, 487 U.S. at 318.
Du Pont merely states that it was “prejudiced” by only
having the names of the Bradley couple rather than each and every
petitioner when in fact Du Pont presumed all along that “etal.” and
“plaintiffs” meant what they have always meant to ordinary people,
namely to include all individuals in the group.
The Bradley caption and the body of the notice of appeal are
10
consistent. “Plaintiffs” is a term that every reasonable person
understands as to whom it applies. “Plaintiffs” fulfills the purpose
of universally naming all parties. As such, courts should not put
themselves in the position of failing to recognize what is apparent to
the rest of the world. “Plaintiffs” should not be construed as
Orwellian doublespeak.
Immediately after Torres, the Fifth Circuit created a
common-sense exception to Rule 3 (a)’s specification requirement.
Pope v. Mississippi Real Estate Com’n, 872 F.2d 127, 129 (Sth Cir.
1989). If the notice of appeal includes “et a/.,” in the context of a
two-party action, it is sufficient to designate the appeal of both
parties. If an appellee shows no surprise, detrimental reliance, or
prejudice in a two-party action, generic use of “et al.” in a multi-
party action, with no contradictions or inconsistencies whatsoever
in an appellant’s papers, also cannot surprise the appellee. Where
there is no possibility that the appellant’s violation is harmless,
forfeiture of the appeal is an excessive sanction.
Under an expansive reading of Torres, appellees will be
able to secure the dismissal of unnamed appellants no matter how
meritorious the appellant’s claims and no matter how obvious the
appellant’s intention to seek appellate review. Such result is
inconsistent with Rule 2’s express authorization permitting courts
of appeals to forgive noncompliance where good cause for such
forgiveness is shown. In this case, destroying the claims of all but
John and Catherine Bradley would pervert the intention of Torres.
Federal Rule of Appellate Procedure 26(b) requires that a
federal appellate court may not enlarge the time for filing a notice of
appeal under Rule 4(a)’s 30 day limit after the date of the entry of the
judgment appealed from. In Torres, the Court held that Rule 26(b)
bars a court from enlarging the time limits for filing a notice of
appeal. Such issue does not exist in this case.
1]
In Bradley, reasonable patties such as Du Pont assumed that
all parties from the lower court were in fact appealing. There was no
Rule 26(b) time enlargement or prejudice to this respondent. Even
if the Court accepts Torres’ weak assumption that adding a party to
the appeal extends the time limits for filing a notice of appeal, no
such extension took effect in Bradley. Nowhere in the respondent’s
brief was the mere allegation of prejudice ever substantiated in
detail by du Pont. What prejudice occurred to du Pont remains to
this date a mystery.
Because the actual intent of Rule 3(c) appears to be
ambiguous by simultaneously mandating specificity and also
mandating leniency for informality of form or title of the notice of
appeal, the Torres’ majority should have addressed some policy
arguments to support its conclusion. The Court identifies no policy
supporting, let alone requiring this harsh rule. Courts of Appeals
should have the power to correct injustices. If a defendant is
allowed to escape responsibility by capitalizing on a suspect
omission, when plaintiffs have an obvious intention to appeal asa
collective body, nothing short of perverse justice materializes.
With no policy reasons behind the majority’s decision, the
United States Supreme Court is once again called upon to give clear
guidelines as which rules of appellate procedure will be interpreted
to provide fairness and which rules will be interpreted to aid the
flow of administration of justice. Jeffrey L. Kirchmeir, Torres v.
Oakland Scavenger Co.: What's In A Name? — Everything InA
Federal Appeal, 39 Case W. Res. L. Rev. 943 (1989).
The federal rules were designed to reject the approach that
pleading is a game of skill in which one misstep by counsel is
decisive to the outcome and to accept the principle that the purpose
of pleading is to facilitate a proper decision on the merits. Foman v.
Davis, 371 U.S. 178, 181-82 (1962). Rule 2 embraces the concept
that, upon a showing of good cause, courts of appeals are permitted
12
to “suspend the requirements or provisions of any of these rules ina
particular case.” As argued here, the Rule 26(b) exception that
discourages enlarging “the time for filing a notice of appeal” set out
in Rule 4, should not be the touchstone that binds the Bradley case
because of Torres. An unnamed party effectively appeals where a
notice is timely filed and the unnamed party’s intention to join in the
appeal is clear to all and prejudicial to none. See, e.g. Harrison v.
United States, 715 F.2d 1311, 1312-13 (8th Cir. 1983); Williams v.
Frey, 551 F.2d. 932,934 n.1 (3rd Cir. 1977), then Rule 4’s mandatory
time limitations would remain inviolate. Torres, 487 U.S. at321.
So narrow was the Torres holding that the Ninth Circuit, the
circuit that originally ruled Torres, about-faced in Nat’! Center for
Immigrants’ Rights v. INS, 892 F.2d 814 (9th Cir. 1989). In NS, the
court held that the use of the term “defendants” in the body of INS’s
notice of appeal fairly indicated that all, and not just some of the
named defendants were appealing the decision. In the case, the
caption of notice read as follows:
National Center For Immigrant’s Rights, Inc. et al.,
Plaintiffs,
v.
Immigration and Naturalization Service, etal.,
Defendants.
The body of the notice stated in pertinent part that:
“(NJotice is hereby given that defendants in the above-referenced
action hereby appeal”. /d. at 815. Distinguishing Torres, the court
clearly held that the term “defendants” used in the body of the notice
fairly indicated that ail and not just some of the defendants were
appealing the decision below. /d. at 816.
The /NS court further held that “Torres does not require that the
individual names of appealing parties be listed in instances in which
a generic term, such as plaintiffs or defendants, adequately
oe
13
identifies them.” /d. (emphasis added).
Similarly, this Court should hold that it is manifestly
improper for an appellate court to read the words “the plaintiffs” in
the body of the Bradley notice as meaning only one plaintiff. It
means what it says it means. Plaintiffs, in its normal usage, means
all plaintiffs and not just one or some. See INS, 892 F.2d at 817. Had
only some Bradley plaintiffs intended to appeal, the proper term to
be used in the body of the notice would have been “certain
plaintiffs.” Alternatively, if only some plaintiffs desired to appeal,
those plaintiffs could have identified themselves individually.
IL.
TORRES DOES NOT REQUIRE THE INDIVIDUAL NAMES
OF THE APPEALING PARTIES TO BE LISTED WHERE
“THE PLAINTIFFS” CONSISTENTLY AND ADEQUATELY
IDENTIFIES ALL APPELLANTS.
Circuit courts around the nation have not been consistent as
to the application of Torres’ translation. The Torres Court
translated the phrase “ef al.” as meaning “and others,” rather than
“and the others.” The best translation of the Bradley caption is
“JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, and the others, Plaintiffs,” because the context shows that “er
al.” was intended to refer to all the others. This Court should not
dismiss any of the other plaintiffs in Bradley because the
designation is artful. This result would comport with Rule 3(c)’s
prohibition against dismissal of an appeal “for informality of form”
in the notice of appeal. Furthermore, the Torres mandate,
disallowing the negligent omission of a specific appellant while
naming individually the other appellants, would remain intact.
The Advisory Committee Notes on Rule 3’s 1979
Amendments states that “so long as the function of the notice is met
by the filing of a paper indicating an intention to appeal, the
14
substance of the rule has been complied with.” Such treatment
should be afforded the Bradley plaintiffs. The syntax use of “the
plaintiffs” should be accorded the functional equivalent status of a
plaintiff-by-plaintiff listing.
In addition to the Ninth Circuit, the Second Circuit has also
distinguished Torres’ punishing announcement. In Baylis y.
Marriott Corp., 906 F.2d 874, 876 (2nd Cir. 1990), the notice of
appeal bore acaption styled:
JAMES BAYLIS, ETAL.,
and stating that:
JAMES BAYLIS, et al., [sic] all of the plaintiffs
in this action, hereby appeal....
The Court concluded that the technically-faulty original notice
of appeal was adequate for jurisdictional purposes as to all
plaintiffs. /d. “All of the plaintiffs in this action” was considered
enough of a precise indication as to which parties sought to appeal.
The Second Circuit has taken a reasonable expansive view
of what constitutes a functional equivalent under Rule 3. See Ass'n
of Am. Med. Colleges v. Cuomo, 913 F.2d 55 (2nd Cir. 1990). In
Cuomo, the cross-appellees, numbering eighteen New York state
officials, were not listed as appealing parties individually in the
appeal caption. /d. The Cuomo court held that the phrase “the
defendants in the above matter hereby appeal” in the notice of
appeal was also a functional equivalent of naming each and every
defendant in the action. /d. at 56. The Cuomo notice of appeal
complied with the specificity requirements of Rule 3 (c). /d. at 55.
Likewise, the expression “et al.” is not so clearly
ambiguous as to instantly create hardship or prejudice. Similarly,
using the words “the plaintiffs” in its unambiguous plural meaning
15
should also be extended functional equivalent status. Even Torres
allows this plain meaning and usage of the English language when
the Court considers a technical defect to be immaterial if the notice
of appeal contains such a “functional equivalent” of a listing of each
appealing party’s name. Torres, 487 U.S. at317.
The United States Court of Appeals for the Third Circuit
has, implicitly acknowledged that Third Circuit law is unyielding,
strict and discomforting when applying Torres. See Appendix B,
Docket No. 91-5206, Memo. Opinion at 14 (Dec. 24, 1991). The
appellate court furthered acknowledged that Ass'n of Am. Med.
Colleges v. Cuomo and Nat’! Center for Immigrants’ Rights v. INS
may reflect the better rule of law than Third Circuit law
dogmatically following Torres. Id. at 15.
None of the Third Circuit cases cited by Du Pont, however,
are factually the same as Torres. The Third Circuit has overly
applied Torres’ holding in cases not involving an omission of one or
some appellants in the text of the notice. Torres should be
applicable only in those narrow circumstances involving an
omission. The Bradley matter is not such an omission case.
As the Ninth Circuit, the same circuit with which this
Supreme Court agreed in its treatment of the original Torres case,
has distinguished Torres in the /NS case when “defendants” was
utilized in the caption and notice of appeal. The Court is requested
to expand the /NS rule nationally when “plaintiffs” is utilized. All
the Bradley plaintiffs, therefore, deserve their day in the court.
Ii.
DU PONT’S MOTION FOR SUMMARY JUDGMENT, GIVEN
ITS BROADEST INTERPRETATION, IS DIRECTED TO ONLY
ONE OF THE PETITIONERS’ FOUR CLAIMS FOR
DAMAGES.
Summary judgment may be granted only if there is no
16
genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (in asbestos product
identification case involving fifteen corporations, respondent
failed to identify exposure to the petitioner’s products). In a
summary judgment motion, the nonmoving party receives the
benefit of all reasonable doubts and any inferences drawn from the
underlying facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Rule 56(e) also requires that when
a nonmoving party bears the burden of proof at trial as to a
dispositive issue, that party is required to go beyond the pleadings
and designate specific facts showing that there is a genuine issue for
trial. Celotex Corp., 477 U.S. at 324. For an issue of fact to be
genuine, the nonmoving party must do more than simply show that
there is some metaphysical doubt as to the material facts.
Matsushita, 475 U.S. at 586. Issues of material fact are genuine
when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,248 (1986).
As stated in New Jersey, all inferences of doubt are drawn
against the movant in favor of the opponent of the motion. The
papers supporting the motion are closely scrutinized and the
opposing papers indulgently treated. Judson v. Peoples Bank &
Trust Co. of Westfield, 17 N.J.67, 110A.2d24(1954).
Reliance on an expert’s letter to eradicate totally all
reasonable inferences in favor of anon-moving party oversteps the
summary judgment standard. The petitioners recognize that
exposure to friable asbestos must be established as a substantial
factor in causing the petitioners’ serious and sometimes fatal
pulmonary and cancer conditions. Du Pont’s motion for summary
judgment was directed as to whether or not, as a matter of law, the
petitioners raised a jury question as to whether their pulmonary
17
disability was a result of the contribution of asbestos exposure from
Du Pont’s waste materials. The matter of exposure was the only
issue discussed in Du Pont’s expert’s opinion letter (Appendix N).
Du Pont’s expert opinion should have been narrowly read as only
addressing the question of the causation of bodily injury. In view of
Dr. Joseph J. Aaron’s indication that petitioners suffered from
restrictive disease, asbestos exposure is an issue of material fact to
be decided by a jury in weighing the testimony of any experts’
opinions presented at trial.
The trial judge barred claims based upon Du Pont’s letter in
negating the petitioners’ claim for medical surveillance, the claim
for emotional distress created because of asbestos exposure,
without forewarning or knowledge, over the course of eleven years.
This claim includes fear of not only lung disability but lung cancer
and other forms of malignancies. The claim for punitive damages is
based upon Du Pont’s conduct of knowingly, deliberately, and
intentionally failing to advise petitioners that the waste material
involved in the palladium recovery reclamation incineration
process contained asbestos. Further, Du Pont’s refusal to advise the
individual petitioners of such exposure even to this day, after the
situation had continued for thirteen years is actionable.
The emotional distress suffered by the petitioners is based
on their not having been advised of the incineration of asbestos over
an eleven year period, coupled with an awareness of the fact that
asbestos causes diseases which are progressive, and which
sometimes involve a long latency period before manifestation of
disease.
The major anxiety and fear of the petitioners appears to be
the development of various forms of cancers, in particular lung
cancer. Periodic medical surveillance can alleviate the concern and
distress that petitioners have experienced in being told that nothing
serious has yet developed. These Engelhard employees cannot be
18
expected to be relieved of anxiety concerning the future, in light of
their lung disease, simply because Du Pont’s expert contends that
the petitioners’ pulmonary disease is not asbestos-related.
Petitioners who will suffer an enhanced risk of disease as aresult of
asbestos exposure may recover emotional-distress damages based
on the reasonable fear of future disease when exposure has resulted
in physical injury. Mauro v. Raymark Indust., Inc., 116 N.J. 126,
137 (1989), see, e.g., Devlin v. Johns-Manville Corp., 202 N.J.
Super. 556, 560-63 (Law Div. 1985).
Regardless, petitioners’ increased risk of developing lung
cancer due to asbestos exposure does not at all depend on
individuals having asbestos-related pulmonary disease (Appendix
J, Dr. Aaron’s 9/6/90 Report at 3). There is no medical evidence that
individuals exposed to asbestos who have developed asbestos-
related lung diseases are more likely to develop lung cancer, throat
cancer, gastrointestinal cancer, or other various forms of cancer,
than are similarly exposed individuals who have not developed
pulmonary disease. /d.
Even if it were established that pulmonary disease suffered
by the petitioners is not asbestos-related, this finding would be
medically irrelevant on the propriety of petitioners being
periodically examined. Petitioners’ apprehension about the
development of lung cancer or other forms of cancer will not
subside.
Under New Jersey law, petitioners who will suffer
enhanced risk of disease as a result of exposure to asbestos may
recover damages for enhanced risk of disease when such
contraction of disease is probable. Mauro, 116N.J. at 136. Medical
surveillance damages, without regard as to the likelihood that a
party will ultimately develop disease, are recoverable. /d. at 136-
37. The petitioners’ medical surveillance claim seeks
reimbursement for the specific dollar costs of periodic
19
examinations that are medically necessary notwithstanding the fact
that the extent of petitioners’ impaired health [may be]
unquantified. Ayers v. Jackson Twnshp., 106N.J. 557,606 (1987).
Du Pont apparently does not dispute the concept that
examinations of people exposed to asbestos over the course of over
a decade would be in order. Du Pont’s actions in notifying the other
seven processors about the asbestos exposure clearly implies that
medical surveillance is indicated.Du Pont engaged in dialogue with
Engelhard Industries over the cost of providing medical
examinations to the exposed individuals, up to approximately
1,200 in number, without its making any suggestions that those
examinations were not necessary (Du Pont Employee T.E. Lewis,
Aug. 20, 1984 Letter). Du Pont has historically been involved in
medical surveillance programs with workers in other locations
throughout New Jersey. See, generally, Millison v. E.1 du Pont de
Nemours & Co.,101N.J. 161 (1985).
Therefore, the summary judgment standard in Celotex
should not negate claims made by the non moving party which are
never addressed in the moving party’s motion for summary
judgment based on such party's expert opinion as to only proximate
cause, especially since Celotex was based on product identification.
Furthermore, summary judgment was prematurely granted because
Overreliance on depositions should be avoided. A plaintiff is not
required to state his entire case at the time of giving a deposition.
The party is only obligated to answer whatever questions are put to
him. Only at trial will it be the obligation of the petitioners to
describe in full detail their contact with and around buildings 7 and
18 where the Du Pont asbestos was being incinerated, and their
contact and exposure in areas affected by the burning asbestos.
20
IV.
THE COURT OF APPEALS ERRONEOUSLY AFFIRMED THE
DISTRICT COURT’S GRANTING OF SUMMARY JUDGMENT
SOLELY ON THE BASIS OF RESPONDENT’S EXPERT
OPINION THAT THERE WAS NO ASBESTOS REMAINING
AFTER INCINERATION BECAUSE SUCH CONCLUSION IS
NOT DISPOSITIVE AS TO PETITIONERS’ CLAIM OF
ASBESTOS EXPOSURE DURING THE LENGTHY
INCINERATION PROCESS.
A. The Existence of Sufficient Evidence Supporting Reasonable
Inferences That Health Hazards Were Created by Du Pont’s
Conduct Precludes the Granting of Summary Judgment in
Respondent’s Favor.
Dr. Clifton G. Bergeron, the expert witness for Du Pont, did
not posit that Du Pont’s “yellow label” material containing asbestos
was not airborne during the overnight incineration process
(Appendix N). Nowhere in Bergeron’s report was the petitioners’
main theory of asbestos releasing fibers into the air during
incineration ever rebutted. /d. Dr. Bergeron was of the opinion that
“after incineration” the residual material contained no asbestos.”
The expert further relied on the observation of William J. Bareford,
a Du Pont employee, that the interior of the furnace was “an(]
almost blinding white color” as his basis for the opinion that the
temperature in the furnace was over 1202 degrees fahrenheit. /d.
Further, Dr. Bergeron’s reliance on Engelhard’s undated air
pollution permit stating that the furnace exhaust gas discharge
temperature could go up to 1550 degrees fahrenheit does not
necessarily mean that chrysotile asbestos did in fact instantly
decompose into forsterite and silica.
Petitioners’ claims, based upon Du Pont’s revealing in 1983
that its materials contained asbestos, are directed to the processing
that involved incineration for many hours in the furnaces, as well as
21
the processing by way of sifting and grinding the incinerator ash
that was removed from the furnaces. Therefore, petitioners’ claim
of airborne asbestos exposure during the incineration of Du Pont’s
material has not been addressed by Dr. Bergeron’s letter.
The opinion of Bergeron’s letter is at most only dealing with
the latter phase of the reclamation process. The opinion does not
address exposure before or during the process under the petitioners’
drift theory.
Moreover, petitioners contend that ample evidence from
the record shows that Du Pont’s conduct indicates that the
incinerated asbestos did in fact become airborne. This conduct
includes, but is not limited to, the Du Pont’s Director of Safety,
Health and Environmental Affairs, Robert Bonczek, telling the
EPA in 1983 in part “...disposal of the filters by incineration...might
result in the potential release of airborne levels of the bound
asbestos fibers” (Appendix K at 101la); Du Pont’s failure to
announce that there was no exposure to asbestos, since it had been
purportedly converted into silica; the fact that Du Pont was
subsequently willing to pay a cost penalty premium of at least
$24,000 to have asbestos-containing filter pads incinerated
following notification to the various processors of the asbestos
content of the filter pads (Appendix K, 110aand 112a); the fact that
Du Pont engaged in “damage control” by rushing its representatives
to fly around the country to personally perform notification
(Appendix K); the fact that Du Pont’s correspondence, including
distribution of an article entitled “The Pathogenesis of Asbestos-
Associated Disease” (id.), regarding the notification states that the
purpose of the notification was to allow the processors to evaluate
whether the asbestos had in fact become airborne (id,); and the fact
that throughout all the communications with Engelhard after the
notification regarding medical surveillance of Engelhard
employees, and liability for such a program, Du Pont never once
indicated to Engelhard that none of that was valid because there was
22
no possibility of airborne asbestos. /d.
These facts were introduced and established by Du Pont
itself; the defendant has not denied such conduct. Du Pont’s
aggregate conduct, read in the light most favorable to the
petitioners, is uniformly inconsistent with any idea that there in fact
was no likelihood that asbestos fibers would become airborne. Du
Pont’s conduct was more than simply a warning of the possibility of
asbestos exposure. Rather, it reasonably may be interpreted as
reflecting Du Pont’s knowledge that the health risk existed. With
such divergent viewpoints existing, a material factual issue is
present.
“The relevant weight and sufficiency of expert and opinion
testimony are generally regarded as matters that fall within the
particular province of the jury.” 31A Am. Jur. 2d, § 129 at 137.
There is no requirement that a jury accept expert opinion testimony
in place of its own judgment. 31A Am. Jur. 2d, § 134 at 140.
[W]here the questions presented are the
appropriate subject of expert testimony, the court
should have the opportunity to hear experts,
observe their demeanor on the stand, and form an
opinion with respect to the issues predicated on
evaluation of their testimony. Opportunity
should be given to both sides to cross examine
experts, and the case is therefore not an
appropriate one for summary judgment.
35B C.J.S. Fed. Civ. Proc. § 1146 at 545.
Furthermore, atrial court should be particularly cautious to
grant summary judgment when a cause of action rests upon expert
testimony. Ruvulo v. American Cas. Co.,39N.J.490,500(1963). |
Se
23
It is a matter of common knowledge that such
judgments are to be granted with extreme
caution. The moving party and the pleadings are
to be considered most favorably to the party
opposing the motion. All doubts are to be
resolved against the movant. /t has been said on
the federal scene (after whose rule [New
Jersey's] is patterned) thata litigant has the right
to trial where there is the slightest doubt as to
facts.
Id. at 499.
A “plaintiff must prove tortious conduct, injury and
proximate cause” to prevail in a tort case. Ayers, 106 N.J. at 585
(1987); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser &
Keeton on the Law of Torts § 30, at 164-65 (1984). Proof of
causation mandates that a plaintiff establish a sufficient nexus
between the plaintiff’s injury and the defendant’s conduct. Ayers,
106 N.J. at 585. Fed .R. Civ. P. 56(c) commands summary judgment
only when a plaintiff fails to establish that he was sufficiently
exposed to the defendant’s product. See Celotex, 477 U.S. at 322-
28.
Petitioners have set forth specific facts disclosing that
genuine issues for trial exist. In accordance with Lujan v. National
Wildlife Fed’n, 110S. Ct. 3177 (1990), petitioners affidavits do set
forth specific facts showing that a genuine issue for trial exists.
The district court erroneously opined that petitioners’
affidavits contained only vague and conclusory allegations and
were not based on personal knowledge (Appendix F, Bradley v. Du
Pont, No. 86-03324, slip op. (D.N.J.) at 9). John Collins, a union
official throughout his employment between 1970 and 1983,
averred in his affidavit that Du Pont material in 55 gallon steel
24
drums arrived and were loaded into the furnaces of buildings 7 and
18 (Appendix H at 69a). In Arthur Bell’s affidavit, he states that he
was assigned to work in building 18 where the processing involved
a burning cycle in large furnaces. /d. at 78a. Only when Du Pont
informed Engelhard of asbestos exposure in August of 1984 was
Mr. Bell apprised of his association with the burning cycle while
working during the 1970s and thereafter in building 18. /d. Curtis
Brown avers in his affidavit that he was present in buildings 7 and
18, particularly during the years 1976 and 1982, a time period in
which Du Pont waste was processed continually. /d. at 60a. The
district court discounted Herman Brown’s affidavit (Appendix H at
56a) because he “never worked [physically] in “buildings 7 and 18
where the Du Pont material was incinerated” (Appendix F, Bradley
v. Du Pont, No. 86-3324, slip op. (D.N.J.) at 9). Herman Brown,
however, was employed “near and around” those buildings very
often, on a regular basis, since 1972 and past 1983, performing
clean-up work. Herman Brown’s maintenance duties were
performed while smoke, dust and dirt was constantly emitted from
the burning of Du Pont’s materials (Appendix H at 56a). Such
burning showered Herman Brown with incineration residue which
could be smelled at even some distance from buildings 7 and 18. /d.
Additionally John Carew, who spent a great deal of time in
buildings 7 and 18 from 1972 through 1983 (Appendix H at 49a),
was subjected to the settling of the burned ash for a significant time
while working in or near the furnace buildings. Johnnie Gowans, a
10 year employee at buildings 7 and 18 died of laryngeal cancer.
The deaths of Lawrence Veneiro and Joe Pietropinto, Engelhard
employees during Du Pont’s waste shipments, died of various
cancers. Overall, plaintiffs were angered and outraged by Du
Pont’s concealment of asbestos (Appendix H).
25
B. Petitioners’ Claim of Asbestos Exposure Resulting From
Frequent and Regular Burning of Du Pont Waste Materials
During Lengthy Incineration Periods While Working Within
Proximity of Such Activity Precludes Summary Judgment.
Petitioners recognize their burden of proof at trial to
demonstrate that Du Pont’s “yellow label” material caused their
injuries. The Third Circuit has erroneously overly relied upon
Sholtis v. American Cyanamid Co., 238 N.J. Super. 8 (App. Div.
1989). In Sholtis, the court held that plaintiffs could defeat a
summary judgment motion by proving sufficiently frequent
asbestos exposure, with a regularity of contact, and with the product
in close proximity in a product identification setting; and that such
factors should be balanced fora jury to find liability. /d. at 28 (citing
Lohrmann vy. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63
(4th Cir. 1986) (frequency, regularity and proximity test
established)). As a trial is a search for the truth, courts should
dispose of cases on their merits. See Sholtis, 238 N.J. Super. at 17.
Petitioners have shown enough evidence that their
exposure was of more than acasual or minimum nature. Since proof
of direct contact is almost always lacking, courts must rely upon
circumstantial proof of sufficiently intense exposure to warrant
liability. Jd. at 29. In the opinion of Dr. Joseph Aaron, the
petitioners’ expert, asbestos exposure caused or exacerbated
petitioners’ injuries. The pulmonary conditions of the petitioners
were the result of exposure in part to asbestos at Engelhard. See
Appendix I at 81a, 87a, 89a. Herman Brown’s asbestos exposure
causes chronic bronchitis and pneumoconiosis. /d. at 81a. Arthur
Bell’s and James Benson’s lung disabilities due in part to asbestos
exposure at Engelhard were also noted by Dr. Aaron. /d. at 85a and
9larespectively.
Based on these reports alone, a material issue of fact has
been created as to the proximate causation between Du Pont’s
26
asbestos and the exacerbated pulmonary conditions common to the
petitioners. In the aggregate, these reports directly raise an issue of
material fact as to the concept of proximate causation. The contact
between the petitioners and the asbestos burning exposure during
incineration is sufficiently significant so that a reasonable jury
could determine that the product was a substantial factor in bringing
about the petitioners’ injuries. Suter v. San Angelo Foundry &
Machine Co.,81N.J. 150, 168 (1979).
The Third Circuit has misapplied the “frequency,
regularity, and proximity” test espoused in Sholtis for use in the
identification of at least nine different defendant manufacturers as
to allocating responsibility and imposing liability upon all of the
defendants. Petitioners in this case have not been subjected to the
products of different known manufacturers over a long period of
time. Sholtis involved the proof of identifying individual liability
of each of the nine defendants after the court had determined that no
theory of collective responsibility applied. Sholtis,238 N.J. Super
at 26. Celotex, likewise, involved product identification among
fifteen named corporations.
Unlike Sholtis or Celotex, the exact source and quantity of
waste materials has been clearly identified. In fact, Du Pont’s
Occupational, Safety and Health manager, Ted E. Lewis notified
Engelhard that the Newark, New Jersey site received and processed
“yellow label” spent catalyst, containing at least 10% asbestos,
from the Du Pont Memphis plant in the amount of 988,000 Ibs. from
1971 to 1982 (Appendix K at 109a). Quantitatively, the frequency
and regularity of asbestos incineration leading to exposure to the
petitioners in or around the proximity of buildings 7 and 18
constitutes a material issue of fact. The petitioners have been
exposed to multiple shipments and numerous lengthy incineration
of Du Pont’s waste.
When facing a proponent summary judgment motion, a
27
plaintiff only needs to produce evidence from which a fact-finder,
after assessing the proof of frequency and intensity of the plaintiffs’
contacts with asbestos, could reasonably infer toxic exposure.
Sholtis, 238 N.J. Super at 29. The affidavits, certifications and
depositions must be read together, giving plaintiffs all favorable
inferences. Judson, 17 N.J. at 75. As the Sholtis court suggested,
when plaintiffs initially present their proofs, there is no recognized
definitive standards defining exposure. Sholtis, 238 N.J. Super at
30. The Third Circuit, however, has not followed the summary
judgment commandment of siding with the non-moving party as to
all reasonable inferences. Since this case is not one of product
identification, fairness dictates that the Court grant the writ of
certiorari and allow argument on the merits.
CONCLUSION
Based upon all the foregoing, petitioners respectfully requests
that their petition for writ of certiorari be granted
Respectfully submitted,
NORMAN SHAW
Attorney for Petitioners
Dated: March 18, 1992
la
APPENDIX A — ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT DENYING
PETITION FOR REHEARING FILED JANUARY 21, 1992
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 91-5206
JAMES JOHN BRADLEY; CATHERINE BRADLEY, his wife:
FREDERICK BANSBACH; MARY ELLEN BANSBACH, his
wife; LUIS BASADRE; ARTHUR BELL; JAMES BENSON,
JEANETTE BENSON, his wife; MARY PIETROPINTO,
Administratrix Ad Prosequendum of JOSEPH PIETROPINTO,
Deceased, and General Administratrix of the Estate of Joseph
Pietropinto; FRANCESCO BOZZI; LAUPA BOZZI, his wife;
CURTIS BROWN, JR.; HERMAN BROWN; AUDREY
BROWN, his wife; JOHN CAREW; REGINALD CAIN, JOSE
CAMACHO; CARMEN CAMACHO, his wife; JOHN
COLLINS; SHIRLEY COLLINS, his wife; LOUIS CURCIO;:
ANGELA CURCIO, his wife; BEN DAVIS; BERLINE DAVIS,
his wife; CHARLIES DE WITT,. JULIA DE WITT, his wife:
SAN EDMONS; DORIS EDMONDS, his wife; JOSEPH
ELINSKE; CAL FAYARD; ROCHELLE FAYARD, his wife:
EDWARD FIELDS; MARY FIELDS, his wife; JOSEPH
FOGARTY; JESSE HINTON, JR.; ALICE HINTON, his wife,;
ISAAC JEFFRIES; CAROLYN JEFFRIES, his wife; JUAN
JUAME; CARMEN JUAME, his wife; MOSES LAVAL;
OLIVIA LAVAL, his wife; JOSEPH MC LAUGHLIN:
GENEVIEVE W. MC LAUGHLIN, his wife; LOUIS
MADARASZ; CLEMENT MARRA,; CATHERINE MARRA,
his wife; RICHARD MENSEL, JULIA MENSEL, his wife:
RALPH MORRELLO; CHRISTINE MORRELLO, his wife:
EDWARD MORRIS; JEAN MORRIS, his wife; WILLIAM
MULLEN; MADELINE MULLEN, his wife; FERDINAND
PENA; REGINA PENA, his wife; ANDREA PIERRE: PAUL
2a
Appendix A
POOLE; GERONICO QUINTANA; DELFINA QUINTANA,
his wife,; EMILIO RODRIGUEZ, Social Security No.
582-05-9377; WILFREDO RODRIGUEZ; MARIO SANTOS;
OCTAVIA SANTOS, his wife; FRED SAVAGE; ALICE
SAVAGE, his wife; CHARLES STATEN; MARY STATEN, his
wife; DAVIS THOMAS; MARION THOMAS, his wife;
WILLIAM TRIBLEY; DOLORES TRIBLEY, his wife;
LAWRENCE VENEIRO; ROSE VENIERO, his wife,; VASIL
VISCOCKY; MARY VISCOCKY, his wife; HERMITT WARD;
AMY WARD, his wife; ALFRED WILLIAMS, DELORES
WILLIAMS, his wife; KENNETH WILLIAMS; WILLIAM
WOLEN; JILL WOLEN, his wife; RICHARD ZUZZIO;
PATRICIA ZUZZIO, his wife; ROBERT AUSTIN, JANE DOE
AUSTIN, his wife, a fictitious name; CARLOS BARQUIN; JANE
DOE BARQUIN, his wife, a fictitious name; ALBERT BRAVO;
JANE DOE BRAVO, his wife, a fictitious name; RAY BUNN;
JAME DOE BUNN, his wife, a fictitious name; DE WITT
CANNON; JANE DOE CANNON, his wife, a fictitious name;
ARMANDO CARDOSA; JANE DOE CARDOSA, his wife, a
fictitious name; WALTER DIXON; JANE DOE DIXON, his
wife, a fictitious name; EDWARD GOLDA; JANE DOE
GOLDA, his wife, a fictitious name; KAZIMIERZ
JAWOROWSKI; JANE DOE JAWOROWSKI, his wife, a
fictitious name; ZDZISLAW KOWALSKI; JANE DOE
KOWALSKI, his wife, a fictitious name; FELIX LANTIGUA;
JANE DOE LANTIGUA, his wife, a fictitious name;
KAZIMIERZ NITKOWSKI; JANE DOE NITKOWSK1, his wife,
a fictitious name; JOSEPH PAGNOTTA; JANE DOE
PAGNOTTA, his wife, a fictitious name; JOHN PIEGARI;
JANE DOE PIEGARI, his wife, a fictitious name; PAT REILLY,;
JANE DOE REILLY, his wife, a fictitious name; BASIL
RIVERO; JANE DOE RIVERO, his wife, a fictitious name;
EMILIO RODRIGUEZ, Social Security No. 138-36-6001; JANE
3a
Appendix A
DOE ROGRIGUEZ, his wife, a fictitious name; MICHAEL
SABAT, JANE DOE SABAT, his wife, a fictitious name; RUDY
TROUPE; JANE DOE TROUPE, his wife, a fictitious name;
ELIAS TZEMOS; JANE DOE TZEMOS, his wife, a fictitious
name; LUIS ZAMORA; JANE DOE ZAMORA, his wife, a
fictitious name; JAMES ZICARO; JANE DOE ZICARO, his
wife, a fictitious name,
Appellants
v.
E.I. DU PONT DE NEMOURS & COMPANY, a corporation
of the State of Delaware; JOHN DOE 1; JOHN DOE 2; JOHN
DOE 3; JOHN DOE 4; JOHN DOE 5; JOHN DOE
CORPORATION 1; JOHN DOE CORPORATION 2; JOHN
DOE CORPORATION 3; JOHN DOE CORPORATION 4;
JOHN DOE CORPORATION 5; JOHN DOE CORPORATIONS
(6 through 50)
E.I. DU PONT DE NEMOURS & COMPANY, ETC.
Third Party Plaintiff
Vv.
SCOTT LABORATORIES, INC.; SCOTT LABORATORIES,
LTD.,; ROBERT A. KEASBEY CO.;
Third Party Defendants
(D.C. Civil No. 86-03324)
SUR PETITION FOR PANEL REHEARING WITH
SUGGESTION FOR REHEARING IN BANC
4a
Appendix A |
PRESENT: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, HUTCHINSON, SCIRICA, COWEN,
NYGAARD, ALITO, ROTH, Circuit Judges and FULLAM,
District Judge*.
The petition for rehearing filed by Appellant, having been
submitted to the judges who participated in the decision of this
Court and to all the other available circuit judges in active service,
and no judge who concurred in the decision having asked for
rehearing, and a majority of the circuit judges of the circuit in
regular active service not having voted for rehearing by the court
in banc, the petition for rehearing is DENIED.
BY THE COURT:
Circuit Judge
DATED: JAN 21 1992
* The Honorable John P. Fullam, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Sa
APPENDIX B — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT IN
BRADLEY V. DU PONT, CIVIL NO. 91-5206 FILED
DECEMBER 24, 1991
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 91-5206
JAMES JOHN BRADLEY; CATHERINE BRADLEY, his wife;
FREDERICK BANSBACH; MARY ELLEN BANSBACH, his
wife; LUIS BASADRE; ARTHUR BELL; JAMES BENSON,
JEANETTE BENSON, his wife; MARY PIETROPINTO,
Administratrix Ad Prosequendum of JOSEPH PIETROPINTO,
Deceased, and General Administratrix of the Estate of Joseph
Pietropinto; FRANCESCO BOZZI; LAUPA BOZZI, his wife:
CURTIS BROWN, JR.; HERMAN BROWN; AUDREY
BROWN, his wife; JOHN CAREW; REGINALD CAIN, JOSE
CAMACHO; CARMEN CAMACHO, his wife; JOHN
COLLINS; SHIRLEY COLLINS, his wife; LOUIS CURCIO;:
ANGELA CURCIO, his wife; BEN DAVIS; BERLINE DAVIS,
his wife; CHARLIES DE WITT; JULIA DE WITT, his wife;
SAM EDMONS; DORIS EDMONDS, his wife; JOSEPH
ELINSKE; CAL FAYARO; ROCHELLE FAYARD, his wife:
EDWARD FIELDS; MARY FIELDS, his wife; JOSEPH
FOGARTY; JESSE HINTON, JR.; ALICE HINTON, his wife,;
ISAAC JEFFRIES; CAROLYN JEFFRIES, his wife; JUAN
JUAME; CARMEN JUAME, his wife; MOSES LAVAL;
OLIVIA LAVAL, his wife; JOSEPH MC LAUGHLIN:
GENEVIEVE W. MC LAUGHLIN, his wife; LOUIS
MADARASZ; CLEMENT MARRA; CATHERINE MARRA,
his wife; RICHARD MENSEL, JULIA MENSEL, his wife:
6a
Appendix B
RALPH MORRELLO; CHRISTINE MORRELLO, his wife;
EDWARD MORRIS; JEAN MORRIS, his wife,; WILLIAM
MULLEN; MADELINE MULLEN, his wife; FERDINAND
PENA; REGINA PENA, his wife; ANDREA PIERRE; PAUL
POOLE; GERONICO QUINTANA; DELFINA QUINTANA,
his wife; EMILIO RODRIGUEZ, Social Security No. 582-05-9377;
WILFREDO RODRIGUEZ; MARIO SANTOS; OCTAVIA
SANTOS, his wife; FRED SAVAGE; ALICE SAVAGE, his wife;
CHARLES STATEN; MARY STATEN, his wife; DAVIS
THOMAS; MARION THOMAS, his wife; WILLIAM TRIBLEY;
DOLORES TRIBLEY, his wife; LAWRENCE VENEIRO; ROSE
VENIERO, his wife; VASIL VISCOCKY; MARY VISCOCKY,
his wife; HERMITT WARD; AMY WARD, his wife; ALFRED
WILLIAMS, DELORES WILLIAMS, his wife; KENNETH
WILLIAMS; WILLIAM WOLEN; JILL WOLEN, his wife;
RICHARD ZUZZIO; PATRICIA ZUZZIO, his wife; ROBERT
AUSTIN, JANE DOE AUSTIN, his wife, a fictitious name;
CARLOS BARQUIN; JANE DOE BARQUIN, his wife, a
fictitious name; ALBERT BRAVO; JANE DOE BRAVO, his
wife, a fictitious name; RAY BUNN; JAME DOE BUNN, his
wife, a fictitious name; DE WITT CANNON; JANE DOE
CANNON, his wife, a fictitious name; ARMANDO CARDOSA;
JANE DOE CARDOSA, hi-s wife, a fictitious name; WALTER
DIXON; JANE DOE DIXON, his wife, a fictitious name;
EDWARD GOLDA; JANE DOE GOLDA, his wife, a fictitious
name; KAZIMIERZ JAWOROWSKI; JANE DOE
JAWOROWSKI, his wife, a fictitious name; ZDZISLAW
KOWALSKI; JANE DOE KOWALSKI, his wife, a fictitious
name; FELIX LANTIGUA,; JANE DOE LANIIGUA, his wife,
a fictitious name; KAZIMIERZ NITKOWSKI; JANE DOE
NITKOWSKI, his wife, a fictitious name; JOSEPH PAGNOTTA;
JANE DOE PAGNOTTA, his wife, a fictitious name; JOHN
PIEGARI; JANE DOE PIEGARI, his wife, a fictitious name;
P |
7a
Appendix B
PAT REILLY,; JANE DOE REILLY, his wife, a fictitious name;
BASIL RIVERO; JANE DOE RIVERO, his wife, a fictitious
name; EMILIO RODRIGUEZ, Social Security No. 138-36-6001;
JANE DOE ROGRIGUEZ, his wife, a fictitious name;
MICHAEL SABAT, JANE DOE SABAT, his wife, a fictitious
name; RUDY TROUPE; JANE DOE TROUPE, his wife, a
fictitious name; ELIAS TZEMOS; JANE DOE TZEMOS, his
wife, a fictitious name; LUIS ZAMORA; JANE DOE ZAMORA,
his wife, a fictitious name; JAMES ZICARO; JANE DOE
ZICARO, his wife, a fictitious name,
Appellants
Vv.
E.I. DU PONT DE NEMOURS & COMPANY, a corporation
of the State of Delaware; JOHN DOE 1; JOHN DOE 2; JOHN
DOE 3; JOHN DOE 4; JOHN DOE 5; JOHN DOE
CORPORATION 1; JOHN DOE CORPORATION 2; JOHN
DOE CORPORATION 3; JOHN DOE CORPORATION 4;
JOHN DOE CORPORATION 5; JOHN DOE CORPORATIONS
(6 through 50)
E.I. DU PONT DE NEMOURS & COMPANY, ETC.
Third Party Plaintiff
Vie
SCOTT LABORATORIES, INC.; SCOTT LABORATORIES,
LTD.; ROBERT A. KEASBEY CO.;
Third Party Defendants
On Appeal From the United States District Court for the District
of New Jersey (D.C. Civil No. 86-03324)
District Judge: Garrett E. Brown, Jr.
8a
Appendix B
Submitted Under Third Circuit Rule 12(6)
September 19, 1991
Before: BECKER and HUTCHINSON, Circuit Judges and
FULLAM, District Judge*
(FILED DEC 24 1991)
MEMORANDUM OPINION
BECKER, Circuit Judge.
This action was filed by seventy-two former employees of
Engelhard Corporation (‘‘Engelhard’’) and their spouses against
E.I. du Pont de Nemours and Company (‘‘du Pont’’), alleging
injuries resulting from exposure to asbestos-containing material
supplied by du Pont to Engelhard. Plaintiffs appeal from orders
of the district court for the District of New Jersey: (1) granting
summary judgment to du Pont and twice denying rehearing
thereof; (2) denying plaintiffs’ motion to amend their complaint
to include a cause of action for exposure to silica; and (3) denying
plaintiffs’ motion to reopen the record and amend answers to
interrogatories to name an expert witness. For the reasons that
follow, we will affirm.
I. BACKGROUND
From 1970 to 1982 du Pont sent to Engelhard the waste
product of du Pont’s manufacture of hydrogen peroxide at its
* The Honorable John P. Fullam, Senior United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
-
ARAL phe om
9a
Appendix B
Memphis, Tennessee plant, a portion of which consisted of used
filter pads. The pads were shipped to Engelhard for recovery of
palladium, a precious metal which was used as a catalyst in du
Pont’s manufacturing process. Englehard’s reclamation process
consisted primarily of the incineration of the waste product in
large furnaces, which, plaintiffs allege, produced smoke, dust,
ash, and soot. In 1983, Engelhard learned that the filter pads
contained ten percent asbestos. Three years later, plaintiffs initiated
this lawsuit alleging that they had contracted pulmonary disease
due to asbestos exposure from this material.
By order dated July 6, 1988 the district court dismissed the
complaint as to eighteen of the seventy-two named plaintiffs and
their spouses. Seven of the remaining fifty-four plaintiffs were
designated as the ‘‘first wave’’ claimants, and discovery was
conducted as to them. By memorandum and order dated October
19, 1990, the district court granted summary judgment against
the seven first-wave plaintiffs and directed the remaining plaintiffs
to show cause why their claims should not be dismissed for the
same reasons. On December 4, 1990, the district court, by
Memorandum and Order, denied the motion for reargument of
the seven first-wave plaintiffs, and dismissed the claims of the
remaining (non-first wave) plaintiffs. By memorandum and order
dated February 21, 1991, the district court denied the various
plaintiffs’ motions for reargument of the December 4 order, denied
plaintiffs’ motion for leave to amend the complaint to include
a cause of action for exposure to silica, and denied plaintiffs’
motion to reopen the record to name an additional expert and
to submit the expert’s report. This timely appeal followed.
Il. APPELLATE JURISDICTION
The caption of the notice of appeal identifies the appellants as
10a
Appendix B
JAMES JOHN BRADLEY and CATHERINE
BRADLEY, his wife, et al.
The text of the notice refers to the appellants only as ‘‘the
plaintiffs.’ du Pont contends that, because appellants failed to
specify by name the appealing plaintiffs, they have violated the
requirements of FRAP 3(c), depriving us of appellate jurisdiction.
Plaintiffs submit that, because the appellants were identified
in the text of the notice of appeal as ‘‘the plaintiffs,’’ without
limitation, du Pont was not misled or prejudiced by the failure
to name specifically the appealing plaintiffs, and thus that the
notice of appeal does not violate FRAP 3(c). They further argue
that, because the notice of appeal includes as the subject of the
appeal all of the orders relating to the ultimate grant of summary
judgment, which was eventually granted against all plaintiffs, they
have effectively designated the entire pool of plaintiffs as
appellants, and therefore that no useful purpose would be served
by requiring the names of each of the numerous parties to be
specified in the notice of appeal. Plaintiffs urge us to construe
FRAP 3(c) liberally, to avoid a construction that would allow
‘*mere technicalities’’ to bar consideration of the case on its merits.
Rule 3(c) states, in relevant part, that the notice of appeal
‘*shall specify the party or parties taking the appeal.’’ Appellate
Rules 3 and 4 constitute a ‘‘single jurisdictional threshold’’ such
that ‘‘[t]he failure to name a party in a notice of appeal is more
than excusable ‘informality’; it constitutes a failure of that party
to appeal.’’ Torres v Oakland Scavenger Co., 487 US 312, 314,
108 S Ct 2405 (1988). The phrase ‘‘et al.’’ does not satisfy the
Rule 3(c) specificity requirement, and failure to satisfy that
requirement thus deprives the Court of Appeals of jurisdiction
over the unnamed parties. 487 US at 317-18. See also Cruz v
lla
Appendix B
Melendez, 902 F2d 232, 235 (3d Cir 1990) (court lacks jurisdiction
over parties designated only under the ‘‘et al.’’ label). We have
held that the law requires this court ‘‘to insist on punctilious,
literal, and exact compliance with the requirement in Rule 3(c)
that the notice of appeal shall specify the party or parties taking
the appeal.’’ Kowaleski v Director, OWCP, 879 F2d 1173, 1176
(3d Cir 1989), cert denied, 493 US 1070, 110 S Ct 1114 (1990)
(citing Allen Archery, Inc. v Precision Shooting Equip. Inc., 857
F2d 1176, 1177 (7th Cir 1988)).
Bound by this precedent, and our discomfiture mollified by
the conclusion that summary judgment was, at all events, properly
granted to du Pont on the merits, we find du Pont’s argument
persuasive. We will therefore dismiss the appeal for lack of
appellate jurisdiction as to all parties other than James John
Bradley and Catherine Bradley who are clearly named as appellants
in the notice of appeal.’
III. SUMMARY JUDGMENT
Plaintiffs submit that they have adduced sufficient evidence
of conduct by du Pont to support the inference that a health hazard
1. We acknowledge that some of the cases from other circuits cited by
plaintiffs hold that the use of a generic term such as ‘‘the plaintiffs’’ or ‘‘the
defendants” in the body of the notice of appeal, is sufficient to make clear
that each and every party to the original action is a party to the appeal, even
where no parties to the appeal are elsewhere specifically named. We further
acknowledge that these cases hold that such a generic designation in the body
of the notice of appeal might cure the label of ‘‘et al.’’ in the caption. See,
for example, Ass’n of Am. Med. Colleges v Cuomo, 913 F2d 55 (2d Cir 1990);
Nat’! Center for Immigrants’ Rights v INS, 892 F2d 814 (9th Cir 1989). Whether
or not these cases reflect the better rule, we are bound by our own precedent.
12a
Appendix B
existed. They also claim to have adduced sufficient evidence of
exposure to du Pont’s asbestos to permit a reasonable jury to
have returned a verdict in their favor. The instances of du Pont’s
conduct cited by plaintiffs are: (1) a letter from du Pont to the
Environmental Protection Agency, dated August 5, 1983, which
plaintiffs claim demonstrates du Pont’s knowledge of the potential
for airborne asbestos from the processing of the filter pads; (2)
du Pont’s willingness to pay a cost penalty to PGP Industries,
Inc. for continued processing of the filter pads, which plaintiffs
claim demonstrates du Pont’s belief that there was danger of
airborne asbestos as a result of incineration of the filter pads;
(3) du Pont’s notification of its various processors around the
country (including Engelhard) about the presence of asbestos in
the filter pads, which plaintiffs claim demonstrates the danger
of asbestos exposure; (4) du Pont’s correspondence with the EPA,
which, plaintiffs claim, when compared with certain of du Pont’s
‘‘admissions’’ in this case, demonstrate du Pont’s knowledge of
the asbestos content of the filter pads and therefore the existence
of a ‘‘cover-up’’; and (5) du Pont’s failure to indicate to Engelhard
during discussions that no employee medical monitoring was
necessary, which plaintiffs claim demonstrates that there was
airborne asbestos from the processing of the filter pads.
Plaintiffs further argue that because du Pont’s expert reports
assert merely that there could be no airborne asbestos resulting
from the processing of the asbestos-containing filter pads before
incineration or after incineration, and because du Pont’s expert
reports do not assert that there could be no airborne asbestos
resulting from the processing of the asbestos-containing filter pads
during incineration, plaintiffs’ failure to controvert those reports
with their own expert’s reports should not be held against them.
Plaintiffs contend that a jury should have the opportunity to weigh
du Pont’s expert’s reports.
l3a
Appendix B
In response, du Pont argues that summary judgment was
properly granted because plaintiffs failed to establish the requisite
causal connection between their alleged injuries and du Pont’s
asbestos-containing filter pads, that is, because appellants failed
to demonstrate sufficient exposure to asbestos. First, du Pont
contends that plaintiffs’ claim of exposure is constructed of bare,
vague, conclusory, and generalized allegations from their affidavits
and contains no evidence that asbestos fibers were released during
the incineration of the asbestos-containing filter pads. du Pont
maintains that, after four years of discovery, plaintiffs must go
beyond these generalized allegations, and that plaintiffs’ reliance
on du Pont’s conduct in warning Engelhard'of possible asbestos
exposure is inadequate as proof of causation. Second, du Pont
contends that plaintiffs failed to meet their burden of going
forward by failing to present expert testimony either to substantiate
their allegations of asbestos exposure or to contradict the expert
reports submitted by du Pont. We note in this regard that, contrary
to plaintiffs’ contentions, these reports refute the notion that the
asbestos in the filters was released when the filters were incinerated.
On appeal from an order granting summary judgment, we
exercise plenary review. Bushman v Halim, 798 F2d 651, 656 (3d
Cir 1986). We review the district court’s rcfusal to reconsider its
entry of summary judgment for abuse of discretion. Robertson
v Allied Signal, Inc., 914 F2d 360, 366 (3d Cir 1990). The standards
for the grant of summary judgment are familiar and need not
be repeated here. See Celotex Corp. v Catrett, 477 US 317, 322,
106 S Ct 2548 (1986); Anderson v Liberty Lobby, Inc., 477 US
242, 249-50, 106 S Ct 2505 (1986).
Proximate cause is, of course, an element essential to
appellants’ case. According to New Jersey law, which is applicable
in this diversity action, in order to defeat a motion for summary
l4a
Appendix B
judgment, an asbestos-case plaintiff must establish proximate
cause, satisfying the ‘‘frequency, regularity and proximity’’ test,
that is, by producing evidence that he was exposed to the
defendant’s friable asbestos frequently and regularly, while in close
proximity to it, and by offering competent proof, usually that
of an expert, sufficient to establish a nexus between exposure to
the defendant’s asbestos and plaintiff's injuries. Sholtis v American
Cyanamid Co., 568 A2d 1196, 1207-08 (NJ Super Ct App Div
1989). Therefore, the question we are presented with is whether,
from the evidence presented by plaintiffs, a jury could reasonably
have inferred, either directly or circumstantially, on the basis of
the law articulated in Sholtis, that plaintiffs’ (and more particularly
James Bradley’s) injuries resulted from exposure to asbestos
supplied by du Pont.? See Bushman, 798 F2d at 657 (citing
Anderson, 477 US at 250-51).
We agree with the district court that a jury could not
reasonably have so inferred, and that plaintiffs have failed to
satisfy this standard for defeating a motion for summary judgment.
We therefore affirm the grant of summary judgment to du Pont.
First, plaintiffs have not set forth insufficient evidence that
asbestos was actually released into the air during the incineration
of the asbestos-containing materials delivered by du Pont, or that
the asbestos was otherwise friable. What evidence has been offered,
in the form of affidavits, has been vague and totally conclusory,
and thus, being void of specific facts, is insufficient to defeat
a motion for summary judgment. See Lujan v Nat’! Wildlife Fed’n,
110 S Ct 3177, 3188 (1990) (conclusory allegations in an affidavit
are no more sufficient than those in a complaint to defeat a Rule
2. Catherine Bradley’s claim is for loss of consortium.
ithe.
(etre Pt walhcl Ate Naiabainiil, nate ban tna
1Sa
Appendix B
56 motion).’ For example, paragraphs 8-12 of James Bradley’s
affidavit, which essentially concedes that Bradley was not assigned
to work in the buildings where the incineration of the asbestos-
containing filter pads took place,‘ assert merely that he was
exposed to dust, fumes, smoke, and soot. Nowhere does Bradley
claim that he was exposed to asbestos, let alone frequently or
regularly, as Sholtis demands. And, considering the unrefuted
expert evidence adduced by du Pont that there could be no airborne
asbestos after the filter pads were incinerated, see below, we can
conclude only that the dust, fumes, smoke, and soot to which
James Bradley refers did not contain any du Pont-supplied
asbestos. Furthermore, the evidence advanced by plaintiffs in their
brief, see above, goes merely to the conduct of du Pont and is
entirely immaterial to this requisite element of causation.
Second, plaintiffs, themselves having presented no expert
testimony, have failed to contradict expert testimony presented
on behalf of du Pont that there could have been no release of
asbestos fibers either before, during, or after the incineration of
the asbestos-containing filter pads. du Pont’s expert testimony
essentially establishes that the asbestos in the material supplied
to Engelhard by du Pont was not friable. Such contradiction was
needed if plaintiffs were to advance their ‘‘during the incineration”’
theory or indeed any other theory in support of plaintiffs’’ claim
of frequent, regular, and proximate exposure to friable asbestos.
We therefore agree with the district court that summary judgment
against plaintiffs was proper.
3. The only affidavit that we consider is that of James Bradley, for none
of the other affidavits pertain to his exposure to asbestos, and they therefore
are irrelevant to this appeal. }
4. These concessions in and of themselves prevent Bradley from meeting
the ‘‘regularity’’ and ‘‘proximity’’ prongs of the Sholtis test.
l6a
Appendix B
Moreover, since plaintiffs in their two motions for reargument
failed to cite any law or new evidence in support of those motions,
we cannot say that the district court abused its discretion in refusing
to rehear or reconsider its entry of summary judgment.
IV. THE MOTION TO AMEND THE COMPLAINT TO
ALLEGE SILICA EXPOSURE
Plaintiffs challenge the district court’s denial of their motion
to amend their complaint to include a cause of action for exposure
to silica. They argue that because du Pont’s expert reports indicate
that, during incineration, some asbestos would be converted into
silica, plaintiffs must have been exposed to silica. Plaintiffs note
that because the first they heard of the existence of silica at
Engelhard was in the expert reports, they should have been
permitted to amend their complaint to allege silica exposure.
In response, du Pont stresses that plaintiffs’ motion came
nearly one year after the close of discovery and over four and
one-half years after plaintiffs initiated their lawsuit. In short, they
assert undue delay and prejudice.
A trial court’s denial of a motion for leave to file an amended
complaint may be reversed only if it clearly abused its discretion.
Adams v Gould, Inc., 739 F2d 858, 863 (3d Cir 1984). Although
leave to amend is liberally granted, see FRCP 15(a); Centifanti
v Nix, 865 F2d 1422, 1431 (3d Cir 1989), and although in the
absence of prejudice to the opposing party, mere delay in adding
a new claim to a complaint is an insufficient reason to deny leave
to amend, Howze v Jones & Laughlin Steel Corp., 750 F2d 1208,
1212 (3d Cir 1984), we are still satisfied that the district court
did not abuse its discretion here. First, the plaintiffs’ motion was
based on sheer speculation as to silica exposure and causation.
17a
Appendix B
Second, in view of the extreme delay, du Pont would likely have
been prejudiced by the injection of a new issue at so late a point
in time. We will therefore affirm the district court’s denial of
plaintiffs’ motion to amend its complaint.’
For the foregoing reasons, the orders of the district court
will be AFFIRMED.
TO THE CLERK:
Please file the foregoing opinion.
Circuit Judge
DATED:
5. Plaintiffs also challenge the district court’s denial of their motion to
reopen the record and amend their answers to interrogatories in order to name
an additional expert, and to submit his report, arguing that no prejudice would
result to any party. We find the plaintiffs’ late-filed motion without merit.
18a
APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT, DISTRICT OF NEW JERSEY IN CIVIL
ACTION NO. 86-03324 BY HON. GARRETT E. BROWN, JR.
ENTERED ON FEBRUARY 22, 1991
NC ~ FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 86-3324 (GEB)
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
Vv.
JOHN DOE I, et al.,
and
E.I1. DU PONT DE NEMOURS & CO.,
Defendant/Third Party-Plaintiff,
v.
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CO.,
Third Party Defendants.
BROWN, District Judge
ken mma! ans A ee Nica tl ag te
19a
Appendix C
By Memorandum and Order dated October 19, 1990, this
Court granted summary judgment in favor of Du Pont as to all
claims by the seven ‘‘first wave’’ plaintiffs and their spouses. It
further dismissed the cross-motions for summary judgment on
behalf of Scott Inc., Scott Ltd., and Keasbey as moot. Finally,
it ordered the remaining plaintiffs to show cause in writing why
their claims should not be dismissed for the reasons set forth in
that Memorandum and Order.
Thereafter by Memorandum and Order dated December 4,
1990 this Court denied plaintiff’s motion for reargument and
dismissed the remaining claims of the plaintiffs for the reasons
set forth in the October 19, 1990 Memorandum and Order.
Presently before the Court is plaintiffs’ second motion for
reargument of this Court’s October 19, 1990 Memorandum and
Order, plaintiffs’ motion for reargument of this Court’s Order
to Show Cause, plaintiffs’ motion to amend the complaint to
include a cause of action for exposure to silica, and plaintiffs’
motion to reopen the record and to amend their answers to
interrogatories so as to name an expert witness. For the following
reasons, plaintiffs’ motions are denied.
1. Motions for Reargument
General Rule 12(I) of the Local Rules for the United States
District Court for the District Court of New Jersey provides:
A motion for reargument shall be served and filed
within 10 days after the filing of the Court’s order
or judgment on the original motion. There shall
be served with the notice a memorandum setting
forth concisely the matters or controlling decisions
20a
Appendix C
which counsel believes the Court has overlooked.
No oral argument shall be heard unless the Court
grants the motion and specifically directs that the
matter shall be reargued orally.
In support of their motions for reargument, plaintiffs present
no new evidence. They merely reassert the same arguments
previously denied by this Court. Accordingly, for the reasons
previously set forth, plaintiffs’ motions for reargument must be
denied.
2. Motion to Amend Complaint
As a general matter, courts freely should grant leave to amend
pleadings when justice so requires. Fed. R. Civ. P. 15(a); Howze
v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.
1984). Although the decision whether to grant or deny leave to
amend lies within the sound discretion of the district court, the
court may deny leave to amend if plaintiff’s delay in seeking the
amendment is undue, motivated by bad faith or dilatory motive,
or results in undue prejudice to the opposing party. Forman v.
Davis, 371 U.S. 178, 182 (1962); Adams v. Gould, 739 F.2d 858,
864 (3d Cir. 1984). Prejudice is the touchstone of whether to allow
an amendment to a pleading. Howze, 750 F.2d at 1212. In the
absence of prejudice to the opposing party, the addition of a new
claim in a complaint is an insufficient reason to deny leave to
amend. /d.
At this late date, four and one-half years after the filing of
their complaint, almost one year after the discovery cut-off, eight
months after this Court had denied a similar request to amend
AAO NN St ht! Ph -
Nt AAT Cs oh nit Moa
2la
Appendix C
their complaint,' and after dismissal of their entire case, plaintiffs
seek to amend their complaint to include a cause of action for
exposure to silica. |
In Berger v. Edgewater Steel Co., 911 F.2d 911 (3d Cir. 1990),
petition for cert. filed, December 21, 1990, the Third Circuit denied
plaintiff leave to amend the complaint where the amendment would
have injected new issues into the case, required additional discovery
and where the motion was made four and one half months after
the close of discovery. Similarly, here the Court will deny plaintiffs’
motion to amend their complaint.
A new cause of action for exposure to silica would certainly
inject a new issue into the case. Moreover, granting plaintiffs’
leave to amend their complaint would likely result in prejudice
to the defendants and would require further discovery.
3. Motion to Reopen Record and Amend Answers to
Interrogatories to Name Expert Witness
Plaintiffs base their motion on General Rule I(A) of the Local
Rules for the United States District Court for the District Court
of New Jersey. Rule I(A) provides that a court may relax or
dispense with any rule if adherence to that rule would result in
surprise or injustice. Nothing in this rule would allow this Court
to grant the relief plaintiffs are presently seeking. Fed. R. Civ.
P. 60(b) would be more relevant to plaintiffs’ motion to reopen
1. By Memorandum and Order dated May 7, 1990, this Court denied
plaintiffs’ motion to amend their complaint to add allegations of injury based
on exposure to chemicals because it was both too late and unsupported by any
expert evidence.
22a
Appendix C
the record. Rule 60(b) provides that a court may relieve a party
from a final judgment if newly discovered evidence which by due
diligence could not have been discovered in time to move for a
new trial is presented.
Plaintiffs have not, however, met this burden. Du Pont
submitted its expert report over one year ago, yet plaintiffs choose
not to submit their own expert report until two months after this
Court granted summary judgment in favor of Du Pont. The Third
Circuit consistently has denied motions to reopen the record where
to do so would prevent the orderly and efficient disposition of
cases. See, e.g., Page v. Schweiker, 786 F.2d 150 (3d Cir. 1986)
(affirming district court’s denial of Rule 60(b) motion to present
additional evidence based on ‘‘legitimate concerns about the
orderly and expeditious resolution’’ of the case); Plisco v. Union
Railroad Co., 379 F.2d 15 (3d Cir.) (affirming district court’s
denial of Rule 60(b) motion in absence of showing by movant
that reasonable diligence would not have brought new evidence
to court’s attention), cert. denied, 389 U.S. 1014 (1967).
Plaintiffs had ample opportunity to present an expert report
before this Court granted Du Pont’s motion for summary
judgment, yet failed to do so. They have not demonstrated that
the expert report is newly discovered evidence or that it could
not earlier have been discovered by due diligence. Plaintiffs’
motion to reopen the record and to amend their answers to
interrogatories sO as to name an expert witness must therefore
be denied.
For the foregoing reasons,
It is on this 21st day of February, 1991
23a
Appendix C
ORDERED that plaintiffs’ motions for reargument be and
are hereby denied; and it is is
FURTHER ORDERED that the plaintiffs’ motion to amend
the complaint be and is hereby denied; and it is
FURTHER ORDERED that plaintiffs’ motion to reopen the
record and to amend their answers to interrogatories to name
an expert witness be and is hereby denied.
Garrett E. Brown, Jr.
GARRETT E. BROWN, JR.,
U.S.D.J.
24a
APPENDIX D — VOLUNTARY DISMISSAL UPON
PLAINTIFFS’ MOTION WITHOUT PREJUDICE BY ORDER
OF THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT IN BRADLEY V. DU PONT, CIVIL NO.
90-5988 FILED JANUARY 24, 1991
UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 90-5988
Bradley, et al.
vs.
I Du Pont De Nemours, et al.
James John Bradley, Appellant
(New Jersey District Civil No. 86-03324)
ORDER
In accordance with the agreement of the parties in the above
entitled case, it is entered dismissed by the Clerk under the
authority conferred upon her by Rule 42(b), Federal Rules of
Appellate Procedure without prejudice.
Sally Mrvos
Clerk
United States Court of Appeals
for the Third Circuit
Date: January 24, 1991
es
25a
Appendix D
cc:
Marc J. Gordon, Esq.
Thomas L. Morrissey, Esq.
Matthew S. Slowinski, Esq.
26a
APPENDIX E — ORDER OF THE UNITED STATES
DISTRICT COURT, DISTRICT OF NEW JERSEY IN CIVIL
ACTION NO. 86-03324 BY HON. GARRETT E. BROWN, JR.
ENTERED ON DECEMBER 4, 1990
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 86-3324
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
Vv.
JOHN DOE I, et ai.,
and
E.l. DU PONT DE NEMOURS & CO.,
Defendant/Third Party-Plaintiff
Vv.
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CoO.,
Third-Party Defendants.
27a
Appendix E
MEMORANDUM AND ORDER
BROWN, District Judge
By memorandum and order dated October 19, 1990, this court
granted summary judgment in favor of Du Pont as to all claims
by the seven ‘‘first wave’’ plaintiffs and their spouses. It further
dismissed the cross-motions for summary judgment on behalf of
Scott Inc., Scott Ltd., and Keasbey as moot. Finally, it ordered
that the remaining plaintiffs show cause in writing why their claims
should not be dismissed for the reasons set forth in the
memorandum and order.
Presently before the court is plaintiffs’ motion for reargument
of defendant Du Pont’s motion for summary judgment and this
court’s order to show cause why the remaining claims should not
also be dismissed. For the following reasons; plaintiffs’ motion
is denied and the claims of the remaining plaintiffs are dismissed
for the reasons set forth in this court’s prior memorandum and
order.
1. Motion for Reargument
General Rule 12(I) of the Local Rules for the United States
District Court for the District Court of New Jersey provides:
A motion for reargument shall be served and filed
within 10 days after the filing of the Court’s order
or judgment on the original motion. There shall
be served with the notice a memorandum setting
forth concisely the matters or controlling decisions
which counsel believes the Court has overlooked.
No oral argument shall be heard unless the court
28a
Appendix E
grants the motion and specifically directs that the
matter shall be reargued orally.
Plaintiffs argue that the court has overlooked the ‘‘fact’’ that
the ‘‘conduct’’ by Du Pont indicates that the asbestos became
airborne during incineration and that the expert reports on which
this court relied in issuing its decision have no relevance to any
matters between the parties.
Plaintiffs argument with regard to Du Pont’s ‘‘conduct’’ is
clearly meritless. The record shows that Du Pont merely alerted
the public as to the possibility of asbestos exposure. Plaintiffs
have cited this court to no case law which holds that a general
warning of possible exposure constitutes proof of causation.
Moreover, plaintiffs’ contention that the expert reports have no
relevance is also factually unsupported. Plaintiffs argue that the
expert reports do not address the issue of exposure during the
incineration process.
The expert report of Dr. Bergeron states that ‘‘after
incineration the residual material contained no asbestos.’’
According to the report, the asbestos contained in the filter pads
was heated ‘‘to a temperature well in excess of that required to
effect thermal decomposition.’’ Dr. Pape also issued an expert
report in which he discussed the entire processing of the filter
pads prior to reaching the conclusion that plaintiffs. were not
exposed to airborne fibers from filter pads. The asbestos, according
to the experts, was destroyed during the incineration and plaintiffs
have produced no proof to the contrary.
2. Order to Show Cause
This court ordered the remaining plaintiffs to show cause
29a
Appendix E
in writing why their claims should not be dismissed for the reasons
set forth in its October 19, 1990 memorandum and order. Plaintiffs
have not submitted any new evidence which would sufficice to
defeat a motion for summary judgment. Plaintiffs merely repeat
the arguments raised in their memorandum in support of their
motion for reargument. As previously stated, these arguments
are meritless.
Plaintiffs raise one last argument in support. They claim that
the expert reports are purely advisory in character and that a court
must be cautious in granting summary judgment in a complex
case. The court agrees that it must be cautious in deciding to grant
a motion for summary judgment. However, where the court is
presented no proof indicating that a genuine issue of material
fact exists, it has no choice but to grant summary judgment. Case
law specifically places the burden on the plaintiffs to establish
exposure to the defendant’s product. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-28 (1986). Where there is a ‘‘complete failure
of proof concerning an essential element of the nonmoving party’s
case[,]’’ all other facts are immaterial. /d. at 323.
The New Jersey Appellate Division in Sholtis v. American
Cyanamid Co., 238 N.J. Super. 8 (App. Div. 1989), held that
a plaintiff could defeat a motion for summary judgment only
by proving that he was exposed to the defendant’s friable asbestos,
frequently and regularly, while in close proximity and by offering
competent proof, usually supplied by an expert, to establish a
nexus between the defendant’s product and the plaintiff’s injuries.
Id. at 31. Plaintiffs have proffered no-such proof which they could
produce at trial to demonstrate that the asbestos contained in
the filter pads caused their injuries.
For the foregoing reasons,
30a
Appendix E
It is on this 4th day of December, 1990,
ORDERED that plaintiffs’ motion for reargument be and
is hereby denied; and it is
FURTHER ORDERED that the remaining claims of the
plaintiffs be and are hereby dismissed for the reasons set forth
by this court on October 19, 1990.
Garrett E. Brown, Jr.
GARRETT E. BROWN, JR.
eo oni et nmaliciet
3la
APPENDIX F — ORDER OF THE UNITED STATES
DISTRICT COURT, DISTRICT OF NEW JERSEY IN CIVIL
ACTION NO. 86-03324 BY HON. GARRETT E. BROWN, JR.
FILED OCTOBER 19, 1990
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 86-3324 (GEB)
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
JOHN DOE I, et ai.,
and
E.I. DU PONT DE NEMOURS & CO.
Defendant/Third Party-Plaintiff
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CO.,
Third-Party Defendants
MEMORANDUM AND ORDER
BROWN, District Judge
This matter is before the Court on motions for summary
32a
Appendix F
judgment filed by defendant/third-party plaintiff E.I. du Pont
de Nemours and Company (‘‘Du Pont’’) seeking an order
dismissing the claims of seven plaintiffs,' James Bradley, Arthur
Bell, James Benson, Curtis Brown, Jr., Herman Brown, John
Carew, John Collins and their spouses (‘‘plaintiffs’’), claiming
that plaintiff have failed to establish the requisite causal connection
between injuries they allegedly sustained and the material supplied
to their employer by Du Pont; and by third-party defendants Scott
Laboratories, Inc. (‘‘Scott Inc.’’), Scott Laboratories, Ltd. (‘‘Scott
Ltd.’’) and Robert A. Keasbey Co. (‘‘Keasbey’’), seeking dismissal
of Du Pont’s third-party complaint and all crossclaims. For the
following reasons, summary judgment is granted in favor of Du
Pont and the remaining cross-motions for summary judgment are
therefore moot.
FACTUAL BACKGROUND
Plaintiffs are former employees of Engelhard Industries
(‘‘Engelhard’’) and claim to have been injured by ‘‘certain material
which contained asbestos’’ supplied by Du Pont to Engelhard
during the period between 1970 and 1982. Plaintiffs’ complaint
asserts claims against Du Pont based on strict liability, intentional
tort, breach of warranty, negligence, and negligent failure to warn.
Plaintiffs also allege that they are entitled to future medical
examinations and surveillance ‘‘by reason of their having been
exposed to asbestos during the course of their employment.’’
Plaintiffs’ wives also allege loss of consortium.
1. Approximately fifty-five employees of Englehard Industries and their
spouses brought this action. Seven of the plaintiffs have been selected to be
**first-wave’’ plaintiffs and discovery has been completed as to them.
| Cate cute aaah wf ee all
33a
Appendix F
Du Pont denies liability, alleging that liability, if any, rests
with defendants Scott Inc., Scott Ltd. and Keasbey. Scott Inc.
and Scott Ltd. allegedly manufactured and sold the material
supplied by Du Pont to Engelhard and Keasbey illegedly distributed
other asbestos-containing insulation products to Engelhard. Du
Pont further asserts that the only asbestos- containing materials
it supplied to Engelhard were filter sheets used by Du Pont in
its manufacturing operations in Memphis, Tennessee.
Scott Inc. is a California corporation that distributes filtration
products to a variety of industries. It developed a series ‘‘F-30”’
filter sheets which contained approximately 10% asbestos. Du
Pont allegedly began purchasing these filter sheets in 1970 for
use in its Memphis, Tennessee plant’s hydrogen peroxide
manufacturing process. In 1980, Scott Ltd., a related Canadian
company, assumed responsibility for their manufacture and sale
and continued to market them until 1983.
In February 1983, Scott Ltd. informed Du Pont by letter
that it was replacing the ‘‘F-30’’ series with a new ‘*SD’’ series.
Responding to Du Pont’s inquiry, in June 1983, Scott Ltd. notified
Du Pont that it replaced the ‘‘F-30”’ sheets with the new |
series to eliminate the 10% asbestos.’ Du Pont then notified its
employees of this. Tests revealed that asbestos levels during filter
changes were at levels below the proposed and current OSHA
standards.
Du Pont used Scott filter sheets from 1970 through 1983 a
2. Du Pont was aware that the filter sheets contained asbestos prior to
this date. Specifically, Scott’s product brochure indicated that series ‘‘F’’ filter
sheets contained asbestos. The filter sheets’ labels, however, did not include
a warning that they were made of asbestos.
34a
Appendix F
its Memphis plant. Du Pont used the ‘‘F”’ series filters to process
hydrogen peroxide. The process involved hydrogenerating a
solution of organic chemicals. Palladium acted as a catalyst in
the process and accumulated on the filter sheets. The sheets were
then removed, placed soaking wet in 55-gallon black steel drums
and shipped to Engelhard for recovery of the metal. The weight
of the material was spray-painted on the drums in yellow paint
and the drums contained no other markings.’ Each drum consisted
of 60% organics and 40% solids by weight. The solid material
included the Scott filter sheets which composed less than 7% of
the weight and contained by weight less than 1% asbestos.
Du Pont’s Memphis plant delivered the ‘‘yellow label’’ drums
to Engelhard’s plant where it was chemically processed for the
recovery of palladium. (Deposition of Eckstein at 31; Maples at
37-39). Engelhard’s plant comprised some 32 separate buildings,
(Defendants’ Exh. H), of which only buildings 7, 16 and 18 ever
came into contact with Du Pont’s ‘‘yellow label’’ drums.
(Deposition of Santangelo at 84-90; Eckstein at 64-68). The
incoming drums were sealed and stored in building 16 and from
there were brought to building 7 for incineration. Prior to
incineration, the drums were opened and the contents emptied
into large pans. (Deposition of Santangelo at 88). The contents
consisted of ‘‘wet sludge’’ and carbon and generated no dust
according to Engelhard’s production managers. (Deposition of
Santangelo at 89-90; Eckstein at 64-65). The contents were
incinerated for one day and the furnaces reached the temperature
of 1,550 degrees. (Defendants’ Exh. I). The remaining material
went to another portion of building 7, (Deposition of Eckstein
at 65-66), and from there to building 18 where it was put back
into the drums.
3. Du Pont and Engelhard refer to these drums as ‘yellow label’’ material.
35a
Appendix F
Engelhard manufactured other asbestos-containing products
at its Newark plant. According to plaintiff James Bradley,
‘“‘Coleman’’ heaters were manufactured adjacent to building 1
and Harry Wenk testified that the operation was performed in
building 11. When the operations at the Newark plant were phased
cut, Engelhard hired environmental consultants who determined
that nearly every piece of equipment in the plant was insulated
with asbestos. (Deposition of Natale at 78-79). According to
Engelhard’s superintendent, Keasbey was a main supplier and
installer of the asbestos products found in the plant.
In June 1983 after receiving Scott Ltd.’s letter, Du Pont
notified Engelhard that it was recalling all ‘‘yellow label’’ catalysts
because the filter sheets were made of 10% asbestos. Engelhard
did not receive any ‘‘yellow label’’ drums after 1982. Thereafter,
in June 1984, Du Pont informed Engelhard’s new management
about the issue. In August, Engelhard sent all its employees a
letter advising them that the Du Pont material sent between 1971
and 1982 contained some asbestos. (Defendants’ Exh M). The
letter also recommended that all employees be tested for possible
side effects. This lawsuit followed.
DISCUSSION
Summary judgment may be granted only if there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In a summary judgment
motion, the nonmoving party receives the benefit of all reasonable
doubts and any inferences drawn from the underlying facts.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Fed. R. Civ. P. 56(e) also requires that
when a nonmoving party bears the burden of proof at trial as
36a
Appendix F
to a dispositive issue, that party is required to go beyond the
pleadings and designate specific facts showing that there is a
genuine issue for trial. Celotex Corp., 477 U.S. at 324. For an
issue of fact to be genuine, the nonmoving party must do more
than simply show that there is some metaphysical doubt as to
the material facts. Matsushita, 475 U.S. at 586. Issues of material
fact are genuine only ‘‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’’ Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Du Pont moves for summary judgment dismissing with
prejudice all claims asserted by the seven ‘‘first wave’ plaintiffs.
Du Pont contends that plaintiffs have failed to establish the
requisite causal connection between the injuries they allegedly
sustained and the asbestos-containing material supplied to
Engelhard by Du Pont.‘
It is axiomatic that a ‘‘plaintiff must prove tortious conduct,
injury and proximate cause’’ to prevail in a tort case. Ayers v.
Jackson Twp., 106 N.J. 557, 585 (1987); W. Keeton, D. Dobbs,
R. Keeton & D. Owen., Prosser & Keeton on the Law of Torts
§ 30, at 164-65 (1984). Proof of causation mandates that a
plaintiff establish a sufficient nexus between the plaintiff’s injury
and the defendant’s conduct. Ayers, 106 N.J. at 585. Fed. R.
Civ. P. 56(c) commands summary judgment, after adequate time
for discovery, in favor of a defendant where a plaintiff fails to
establish that he was sufficiently exposed to the defendant’s
product. See Celotex, 477 U.S. at 322-28.
4. The strict liability and claims for medical surveillance, emotional distress
and punitive damages will be discussed separately.
37a
Appendix F
Du Pont argues that plaintiffs have failed to meet their
burden. Du Pont first contends that plaintiffs failed to identify
its ‘yellow label’’ material as a substance to which they were
exposed. Second, Du Pont contends that even if plaintiffs had
been exposed to Du Pont’s ‘‘yellow label’’ material, they have
failed to show regular and frequent exposure while in close
proximity. Plaintiffs, in opposition, argue that they had a great
deal of exposure to the asbestos-containing material supplied by
Du Pont. Plaintiffs further contend that they were exposed on
a frequent basis or worked in close proximity to buildings 7 and
18 which they claim emitted smoke, fumes, dust and soot which
settled on individuals and objects.
Plaintiffs aver that Du Pont has not presented affidavits or
evidence from any source other than their own depositions which
indicates that there was insufficient exposure. On this basis,
plaintiffs claim that Du Pont’s motion should be denied. Plaintiffs
misstate the law. In Celotex, the Supreme Court found that Rule
56 does not require ‘‘that the moving party support its motion
with affidavits or other similar materials negating the opponent’s
claim.’’ Celotex, 477 U.S. at 323 (emphasis in original). Rule 56
merely requires that the moving party demonstrate an absence
of a genuine issue of material fact. Jd. The burden then shifts
to the nonmoving party to set forth specific facts disclosing that
a genuine issue for trial exists. Jd.
The first issue the court must address is Du Pont’s motion
to strike plaintiffs’ affidavits. Fed. R. Civ. P. 56(c) provides that
‘*affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein’’ General Rule 27(A) of the Local Rules for the
United States District Court for the District of New Jersey is
38a
Appendix F
similar. Trial courts are precluded from considering affidavits that
fail to comply with the rules. Hlinka v. Bethlehem Steel Corp.,
863 F.2d 279, 282-83 (3d Cir. 1988).
In Lujan v. National Wildlife Federation, 110 S. Ct. 3177
(1990), the Supreme Court stated that summary judgment shall
be entered unless the affidavits set forth specific facts showing
that a genuine issue for trial exists. Further, it noted that rule
56(e) was ‘“‘not meant to replace conclusory allegations of the
complaint or answer with conclusory allegations of an affidavit.’’
Id. at 3158. Thus, where affidavits merely repeat conclusory
allegations included in the complaint, they are not sufficient to
defeat a motion for summary judgment. /d.
It is this court’s opinion that plaintiffs’ affidavits contain
only vague and conclusory ailegations and are not based on
personal knowledge.’ None of the affidavits allege personal
knowledge of whether the Du Pont ‘‘yellow label’’ material was
in fact being incinerated while they were working in the vicinity,
nor do they allege that the smoke, dust, soot and ash contained
asbestos fibers — the alleged cause of their injuries. For example,
Herman Brown avers in his affidavit that he was exposed to
asbestos from Du Pont’s ‘‘yellow label’’ material because the
smoke stacks above buildings 7 and 18 emitted fumes. ({7). Yet
he admitted that he never worked in buildings 7 and 18 where
the Du Pont material was incinerated (44) nor does he allege
personal knowledge of whether those emissions occurred while
Du Pont material was being incinerated.
Additionally, some of plaintiffs’ affidavits directly contradict
5. All plaintiffs, except James Benson, filed an affidavit.
39a
Appendix F
their prior sworn testimony. For example, in his
affidavit, James Bradley swears that he was exposed to Du Pont’s,
‘‘vellow label’’ material because he spent a lot of time in or near
buildings 7 or 18, ({417-18) yet he admitted on deposition that
he never worked in those buildings. (Defendants’ Exh. S). He
further alleges that he was exposed to the asbestos in buildings
4 and 14 but the testimony has established that Du Pont’s ‘‘yellow
label’’ material was never processed in those buildings. (Deposition
of Santangelo at 73). Plaintiffs have offered no explanation for
their contradictory statements. Consequently, the court must
disregard plaintiffs’ affidavits for purposes of determining whether
there is a material dispute of fact. See Martin v. Merrell Dow
Pharmaceuticals, Inc., 851 F.2d 703, 705-0 (3d Cir. 1988) (purpose
of summary judgment would be seriously impaired if the district
court were not free to disregard a conflicting affidavit).
Plaintiffs bear the burden of proof at trial to demonstrate
that Du Pont’s ‘‘yellow label’’ material caused their injuries. Ayers,
106 N.J. at 585. In Sholtis v.. American Cyanamid Co., 238 N.J.
Super 8 (App. Div. 1989), the New Jersey Superior Court,
Appellate Division, announced the standard to be applied in a
toxic tort case. It adopted the ‘‘frequency, regularity and
proximity’’ test first embraced in Lohrmann v. Pittsburgh Corning
Corp., 782 F.2d 1156, 1162 (4th Cir. 1986). In Sholtis, the court
held that plaintiffs could defeat a summary judgment motion only
by proving that they were exposed to the defendant manufacturers’
friable asbestos, frequently and regularly, while in close proximity
and by offering competent proof, usually supplied by an expert,
to establish a nexus between the defendant’s product and the
plaintiff’s injuries.* Jd. at 31. Friable material is defined as material
6. These requirements are in addition to the other elements of a products.
liability action. s
40a
Appendix F
that actually releases asbestos fibers into the air. /d. at 13 n.2.
Scott Inc.’s expert, Dr. Brian E. Pape, P.h.D., testified that
no asbestos could have been released from the filter sheets before
incineration; and that any asbestos fibers were totally destroyed
through the incineration process. (Defendant’s Exh. O). Dr.
Clifton C. Bergeron, expert witness for Du Pont, corroborated
Dr. Pape’s opinion, positing that ‘‘after incineration in Engelhard’s
furnaces, the residual material contained no asbestos.’’
(Defendant’s Exh. P).
Plaintiffs have not set forth sufficient proof that the asbestos
contained in the ‘‘yellow label’’ drums was actually released into
the air, nor have they contradicted the expert testimony presented
on behalf of Du Pont. During oral argument, counsel for plaintiffs
argued that the definition of asbestos in Websters Dictionary
indicated that it is indestructible’ and therefore the expert testimony
was incredible. This is not sufficient to defeat a motion for
summary judgment. The expert testimony reveals that it is
impossible for asbestos fibers to become airborne when incinerated
above 1250 degrees. The evidence also indicates that the asbestos
was incinerated at 1550 degrees. Plaintiffs have not offered any
proof other than its reliance on a definition in opposition to this
testimony. Clearly, this is insufficient to defeat a motion for
summary judgment.
In opposing the motion for summary judgment, piaintiffs’
7. Asbestos is defined as ‘‘a mineral (as chrysotile, tremolite, or actinolite)
that readily separates into long flexible fibers suitable for uses where
incombustible, nonconducting, or chemically resistant material is required.’’
Webster’s Third New Internationa! Dictionary 126 (1976).
- OSA Ne ee DS gd etl
4la
Appendix F
offer a supplemental report (Plaintiffs’ Exh. G)* written by
plaintiffs’ expert, Dr. Joseph Aaron, and seven initial medical
reports of the plaintiffs produced by Dr. Aaron (Plaintiffs’ Exh.
E). Dr. Aaron is an internist who is not board certified in
pulmonary medicine or in any other field. (Aaron 6-7, 10). In
his initial medical reports, Dr. Aaron opines that each plaintiff's
‘pulmonary condition is the result of his exposure to chemical
fumes, dust, and asbestos in his work at Engelhard.‘ (Defendant’s
Exh. Q). This opinion was based on his assumption that plaintiffs
were frequently ‘‘exposed to breathing in asbestos over a
considerable period of time [a few years? over the course of their
employment.’ (Aaron 76-77). Dr. Aaron further stated that he
could not say with medical certainty that plaintiffs’ conditions
were related to exposure from the ‘‘yellow label’’ material that
Du Pont supplied to Engelhard. (Aaron 96). Finally, Dr. Aaron
concluded that if it was impossible for the asbestos fibers to
become airborne, a fact of which he did not know, then the
asbestos that was supplied by Du Pont to Engelhard could not
have been the cause of plaintiffs’ injuries (Aaron 116).
In his supplemental report, Dr. Aaron opines that
the exposure to asbestos was a contributing cause,
of some significance, to the development of the
pulmonary conditions which I found with respect
to those patients. This opinion, of course, will
depend on the facts given to me with respect to
8. Du Pont raises the question of whether this court should consider the
supplemental report received by this court on September 10, 1990. The court
has discretion in deciding whether to admit supplemental affidavits which are
submitted in a summary judgment motion. Sholtis, 238 NJ. Super. at 17. Because
the court finds no prejudice to the defendants, it will consider the supplemental
report.
42a
Appendix F
the exposure of any particular individual to
asbestos, with respect to the length, intensity and
duration of exposure.’
(Plaintiffs’ Exh. G). Dr. Aaron goes on to say that his opinion
is ‘‘based upon the facts given to him concerning the general
asbestos exposure at the plant site’? and that the incinerated
asbestos became airborne and that plaintiffs were frequently and
intensely exposed to the asbestos more than just occasionally.
(Plaintiffs’ Exh. G). Dr. Aaron, however, does not refute Du
Pont’s expert testimony that it was impossible for the asbestos
to become airborne and that plaintiffs have'not alleged that they
were frequently exposed to the ‘‘yellow label’’ material.
Plaintiffs only argument is that ‘‘{a]t the time of trial it will
be the obligation of the plaintiffs, and it will be in their interest
in connection with this case, to describe fully their contact ai
9. Du Pont argues that Dr. Aaron’s supplemental report is a “‘net opinion’’
which the New Jersey courts have ruied inadmissible. It cites in support Landrigan
v. Celotex, A-5064-88T1, slip. op. (N.J. App. Div., September 4, 1990). In
Landrigan, the appellate division noted that a ‘‘net opinion’’ is one that is based
on an expert’s bare conclusions and is unsupported by factual evidence.
Landrigan, slip. op. at 3. When seeking to establish a cause and effect
relationship, an expert’s opinion must rely on supporting data and a factual
basis. Jd. (quoting Rubanick v. Witco Chem. Co., 242 N.J. Super. 36, 49 (App.
Div. 1990)). Otherwise, it is inadmissible. Jd. Here, Dr. Aaron’s opinion is based
on the assumption that plaintiffs were exposed to asbestos. (Plaintiffs’ Exh.
C). This assumption however has already been established as inaccurate by the
expert testimony. See Defendant’s Exhs. O & P. Although Dr. Aaron concedes
that his opinion depends on facts that will be given to him at trial, (Plaintiffs’
Exh. C), this is not sufficient to defeat summary judgment. Garside, 895 F.2d
at 49; Sholtis, 238 N.J. Super. at 31.
43a
Appendix F
Delancy Street with and in the buildings where the Du Pont
asbestos was being incinerated, and their contact and exposure
in areas affected by the burning asbestos .. . ’’ Plaintiffs Brief
at 7. Plaintiffs argument is not persuasive. ‘‘[A] mere promise
to produce admissible evidence at trial does not suffice to thwart
the summary judgment ax,’” Garside v. Osco Drug, Inc., 895 F.2d
46, 49 (Ist Cir. 1990). Moreover, plaintiffs have not gone beyond
the pleadings nor have they designated specific facts showing that
a genuine issue for trial exists.
Accordingly, because plaintiffs’ own expert admits that the
alleged pulmonary conditions could not have been caused by Du
Pont’s ‘‘yellow label’’ material if the asbestos fibers were not
airborne and because plaintiffs have not contradicted the testirnony
of Dr. Pape and Dr. Bergeron that it was impossible for the
asbestos fibers to become airborne after incineration, summary
judgment is entered in favor of Du Pont.'®
Plaintiffs contend that Du Pont’s summary judgment motion
is directed to only one of the plaintiffs’ four major claims for
damages. Accordingly, plaintiffs argue that they are entitled to
pursue claims for emotional distress, medical surveillance, and
punitive damages even if they fail to establish that Du Pont is
liable for those injuries or that they in fact suffer from asbestos-
related diseases. The court finds no merit in this argument. In
support plaintiffs cite Mauro v. Raymark Indus., Inc., 116 N.J.
126 (1989), Ayers v. Jackson, 106 N.J. 557 (1987) and Devlin
v. Johns-Manville Corp., 202 N.J. Super. 556 (Law. Div. 1985).
10. Because the court finds that plaintiffs have not set forth an essential
element of their claim against Du Pont, the summary judgment motions of
Scott Inc., Scott Ltd. and Keasbey are rendered moot.
44a
Appendix F
These cases stand for the proposition that a plaintiff may recover
on these types of claims when there is proof, established through
expert testimony predicated upon the significance and extent of
exposure to the asbestos, the seriousness of plaintiff’s diseases
and the like. Here, the court has no such testimony. Accordingly,
summary judgment is proper.
Finally, plaintiffs’ claims for strict liability must also fail.
The doctrine of strict liability is premised on the notion that one
engaged in the business of selling a product impliedly represents
that the goods which are placed in the stream of commerce are
free form defect. Restatement (Second) of Torts § 402A (1965).
Comment f states that the rule applies only to those engaged in
the business of selling products for use or consumption.
Here, Du Pont was not engaged in the business of selling
filter sheets, nor was it engaged in the business of supplying them.
Du Pont bought the filter sheets from third-party defendants Scott
Inc. and Scott Ltd. It did not sell the filters to Engelhard. It
purchased Engelhard’s services in order to recover palladium. It
was essentially a service agreement. (Defendant’s Exh. G).
Although this is a regular business, it is not the type of business
to which the doctrine of strict liability applies. See Santiago v.
E.W. Bliss Div., 201 N.J. Super 205, 217-23 (App. Div. 1985)
(seller of punch press not strictly liable for injury caused by
removal of safety guard when it was not engaged in the business
of designing removed safety guard); Allen v. Nicole, Inc., 172
N.J. Super. 442 (Law. Div. 1980) (one may not be viewed as a
seller if it is the use of the (one may not be viewed as a seller
if it is the use of the equipment which constitutes his business).
Du Pont was engaged in the business of buying filter sheets, not
selling them.
45a
Appendix F
Summary judgment is therefore appropriate in favor of Du
Pont on plaintiffs’ strict liability claims. Plaintiffs’ claims for
breach of express and implied warranties are encompassed within
the strict liability claim, see Realmuto v. Straub Motors, Inc.,
65 N.J. 336, 345 (1974), and are disposed of accordingly.
For the foreguing reasons, it is ORDERED this 19th day
of October, 1990, that Du Pont’s motion for summary judgment
as to all claims by the above seven ‘‘first wave’’ plaintiffs and
their spouses be and is hereby granted; and it is
FURTHER ORDERED that che cross-motions for summary
judgment on behalf of Scott Inc., Scott Ltd., and Keasbey are
dismissed as moot; and it is
FURTHER ORDERED that the remaining plaintiffs show
cause in writing on or before November 1, 1990 why their claims
should not be dismissed for the reasons set forth in this
memorandum and order.
s/Garrett E. Brown, Jr.
GARRETT E. BROWN, JR.,
U.S.D.J.
46a
APPENDIX G — PLAINTIFFS’ NOTICE OF APPEAL TO
THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT FILED MARCH 18, 1991
MARGOLIS & GORDON
485 Morris Avenue
Springfield, New Jersey 07081
(201) 467-5820
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 86-3324
(Hon. Garrett E. Brown, Jr.)
NOTICE OF APPEAL
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
vs.
JOHN DOE, et ai.,
Defendants.
-and-
E.I. DU PONT DE NEMOURS & COMPANY,
Defendant/Third-Party Plaintiff,
~ A heh ~~ ls aa eats ind
47a
Appendix G
vs.
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CO.,
Third Party Defendants.
NOTICE is hereby given that the plaintiffs hereby appeal
to the United States Court of Appeals for the Third Circuit from
the Memorandum and Order of the District Court dated February
21, 1991, which effectively served as a ‘final decision’’ of dismissal
with prejudice as to all claims of the plaintiffs under 28 U.S.C.
Sec. 1291 and Fed. R. Civ. P. 54(b).
TAKE FURTHER NOTICE that the plaintiffs intend to
include in this appeal the previous Memoranda and Orders of
the District Court dated October 19, 1990 and December 4, 1990
which addressed the claims of some, but not all of the plaintiffs
in this case.
MARGOLIS & GORDON
Attorneys for Plaintiffs -
s/ Marc J. Gordon
MARC J. GORDON
DATED: March 14, 1991
48a
APPENDIX H — PLAINTIFFS’ AFFIDAVITS
John Carew Dated September 7, 1990
MARGOLIS & GORDON
485 Morris Avenue
Springfield, New Jersey 07081
(201) 467-5820
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 86-3324 (GEB)
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
vs.
JOHN DOE I, et als.,
Defendants.,
-and-
E.I. DU PONT DE NEMOURS & COMPANY, a corporation
of the State of Delaware,
Defendant-Third
Party Plaintiff,
vs.
49a
Appendix H
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CO., -
Third Party Defendants.
AFFIDAVIT
STATE OF NEW JERSEY ) cc.
COUNTY OF UNION )
JOHN CAREW, of full age, being duly sworn according to
law, upon his oath deposes and says:
1. I was formerly employed by Englehard Industries in
Newark, New Jersey, and worked at the Delancy Street location
from at least 1972 until after 1983. I am making this Affidavit
in connection with the claim that I have made against the DuPont
Company because of being advised that between 1970 and 1983
that company sent material containing asbestos to Englehard for
the purpose of refining and incineration, in order to reclaim
palladium.
2. I have been advised that most of that activity took place
in Buildings 7 and 18, and | spent a great deal of time in both
of those buildings from 1972 through 1983 as an Englehard
employee.
3. | am aware of the fact that in Buildings 7 and 18 material
from DuPont was regularly processed and refined and incinerated.
4. The atmospheric conditions in the air within those two
- buildings was very,very heavily polluted with smoke and dust.
50a
Appendix H
5. This smoke and dust came from the burning operation,
primarily.
6. There were smoke stacks in the buildings and dust and
fumes and smoke would not only leak out of the oven and furnace
doors, but would also go up in the stacks and be airborne outside
as well as inside the building.
7. The material coming out of the stacks was a very heavy
noticeable and frequently black ash-type material which would
settle all over the immediate area including on objects and
individuals.
8. Everything on the Englehard site was affected by this heavy
smoke and dust from the furnaces.
9. Examples of how heavy the pollution was are that on
occasions cars that were parked nearby were damaged, and houses
nearby would also be damaged, and to the best of my
understanding it was common knowledge that Englehard, from
time to time, paid for the repainting of cars and the painting of
homes and perhaps other buildings nearby.
10. Over the course of time there were many complaints by
neighbors concerning the air pollution caused by the material
coming out of the smoke stacks.
11. I suffer from lung disability and I have been advised that
it is the type of lung disability that can be caused by exposure
to asbestos.
12. My job at Engelhard from the early seventies at the latest,
until past 1983 was in maintenance, and I was assigned in general
a
Sla
Appendix H
mostly to work in the refining area which included Buildings 7
and 18, so that I was in the general area, outside as well as inside
Buildings 7 and 18 for a large part of my time with Engelhard.
13. Through all those years, while I was not standing right
in front of the furnaces for eight hours a day, five days a week,
I was in and out of those buildings and near those buildings on
a regular and frequent basis.
14. | am aware that DuPont claims that I was exposed to
asbestos at work other than that which was contained in the
DuPont product being incinerated.
15. It is correct that as a maintenance employee I did work
with asbestos insulation from time to time, but the overwhelming
majority of my work had to do with working on equipment and
machinery where there was no asbestos involved.
16. When I did work with asbestos, there would be some
dust created, but I was aware of the fact that I was working with
asbestos on those occasions.
17. As a result of being advised by Engelhard in August of
1984 that asbestos-containing material from DuPont had been
processed for 13 years in Buildings 7 and 18, I became quite
concerned.
18. I am and have been aware of the fact that asbestos can
be very harmful to my health, and can cause lung disability (which
I have) and can lead to the development of cancer both in the
lungs and in other parts of the body.
19. | am very concerned, upset and nervous about this because
52a
Appendix H
of the fact I know many people who have developed cancer
including persona! friends, and a lot of people who worked with
me at Englehard.
20. I am aware of the fact that there are a significant number
of people who worked in or near Buildings 7 and 18 with some
degree of regularity who have developed cancer, including some
individuals who are involved with me in this law suit.
21. I am also disturbed and angry about the fact that DuPont
never advised my employer, and to this day has never advised
me directly about the fact that it was exposing me to the burning
of asbestos.
22. I feel that if I had known that I was being exposed to
asbestos on as regular and constant a basis as I was, I would
have been able to make a choice avoiding the exposure entirely
in various ways, using protective breathing apparatus more
frequently, or even changing jobs so as not to work on a regular
basis around asbestos.
23. In general, I can describe the atmosphere around the
incineration process as being very much more dusty and dirty
than any exposure that I had to any asbestos while I was handling
it personally.
24. While there was asbestos elsewhere in the Engelhard plant,
such as on pipes as insulation and on vessels, that insulation was
not in a bad condition or state of repair so that the asbestos almost
completely bound up and covered, and did not flake off or become
airborne in any way except in infrequent and isolated cases.
25. When that did happen it was usually repaired rather
promptly.
53a
Appendix H
26. I recall that particularly in Building 7, the exposure to
dust and fumes and smoke from the furnaces was so intense that
the employees were working there would have to leave the building.
27. My recollection is that in Building 7 and 18 all of the
DuPont material was processed, and in Building 18 they had a
press which was called the ‘‘Dupont press’’
28. I understand that DuPont claims that based upon the
deposition which I gave earlier in this case it believes that I was |
only occasionally or seldom exposed to the burning of the DuPont
material in Buildings 7 or 18.
29. That is not correct, and I recall being in those buildings
and near those buildings, and subject to the settling of the burned
ash for a significant period of my time spent at Delancy Street.
s/ John Carew
JOHN CAREW
Sworn and Subscribed to
before me this 7th day of
September, 1990.
s/Antoinette Thomas
Antoinette Thomas
Notary Public of New Jersey
My Commission Expires Feb. 27, 1994
S4a
Appendix H
Herman Brown Dated September 8, 1990
MARGOLIS & GORDON
485 Morris Avenue
Springfield, New Jersey 07081
(201) 467-5820
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 86-3324 (GEB)
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
vs.
JOHN DOE I, et als.,
Defendants.,
and
E.I. DU PONT DE NEMOURS & COMPANY, a corporation
of the State of Delaware,
Defendant-Third
Party Plaintiff,
VS.
55a
Appendix H
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CO.,
Thira Party Defendants.
AFFIDAVIT
STATE OF NEW JERSEY ) SS:
COUNTY OF UNION )
HERMAN BROWN, of full age, being duly sworn according to
law, upon his oath deposes and says;
1. [ am a former employee of Engelhard Industries and;
worked at the Delancy Street location from approximately 1972
past the year 1983.
2. I suffer from lung disability, and in August of 1984 I was
advised by my employer that between 1971 and 1982 the DuPont
Company sent to Engelhard for refining material which contained
asbestos.
3. I have been informed that that material was processed
in Buildings 7 and 18, which did contain DuPont material.
4. While I was not assigned to work directly inside Building
7 or Building 18, I worked near and around those buildings very
often performing clean up work.
5. I remember that the atmosphere in those buildings was
always very dusty and dirty because of the burning operation of
the furnaces, which caused dust fumes and smoke to fill the rooms.
56a
Appendix H
6. I remember many times when the employees in those
buildings would have to come out of them because there was so
much dust, fumes and smoke.
7. There were smoke stacks on Buildings 7 and 18, and there
was always a lot of smoke, dust and black substances like ash
coming out of the smoke stacks.
8. When I worked near those buildings, and even some
distance away from them elsewhere on the plant site, I could smell
the fumes and smoke from the burning in those buildings.
9. What came out of the stacks on those buildings would
get all over the surrounding objects including automobiles and
even the land and buildings owned by neighbors.
10. The smoke and dust coming from the smoke stacks would
fall to the ground and settle on various objects near Buildings
7 and 18, as well as in other areas of the Engelhard site.
11. In August of 1984 I was advised by Russell Oiler by means
of receiving a letter that some of the material that was burned
and otherwise refined in Buildings 7 and 18 contained asbestos.
12. I understand that asbestos can cause cancer, and I am
concerned about the possibility of becoming seriously ill with that
disease because of the exposure that I had to asbestos.
13. From my observation any of the employees that were
regularly or more than occasionally working in or near Buildings
7 and 18, experienced a lot of exposure to the dust, fumes and
smoke from the burning that went on in those buildings.
57a
Appendix H
14. I did clean-up work as part of my job duties, and I imagine
that some of the material that I cleaned up from the floor or
ground was asbestos which had been removed from pipes or other
equipment by maintenance employees.
15. I do not recall any particular large amount of asbestos
at any time as waste, and [| do not recall that any asbestos on
equipment or pipes was in place on a damaged condition
16.I believe that any exposure that I may have had to asbestos
and any dust created by it was far less strong compared to the
amount of dust, fumes and smoke that came from the operations
in Buildings 7 and 18 to which I was exposed on a fairly regular
basis.
s/Herman Brown
HERMAN BROWN
Sworn and Subscribed to
before me this 8th day of
September, 1990.
s/Barbara B. Lipkin
Barbara B. Lipkin
My Commission Expires
October 13, 1990
58a
Appendix H
Curtis Brown Dated September 8, 1990
MARGOLIS & GORDON
485 Morris Avenue
Springfield, New Jersey 07081
(201) 467-5820
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 86-3324 (GEB)
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
vs.
JOHN DOE I, et als.,
Defendants.,
-and-
E.I. DU PONT DE NEMOURS & COMPANY, a corporation
of the State of Delaware,
Defendant-Third
Party Plaintiff,
vs.
59a
Appendix H
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CO.,
Third Party Defendants.
AFFIDAVIT
STATE OF NEW JERSEY ) Ss;
COUNTY OF UNION ta
CURTIS BROWN, of full age/ being duly sworn according
to law, upon his oath deposes and says.:
1. I am one of the plaintiffs in the case against du Pont,
having been employed at Engelhard Industries at its Delancy Street
plant during part of the time period between 1970 and 1983.
2. We have now been advised that the du Pont Company
has informed Engelhard that for 13 years the material which du
Pont sent from its Memphis plant to Engelhard for refining,
primarily for burning, contained asbestos.
3. 1 am informed that that material was processed in buildings
7 and 18.
4. I therefore was exposed to the dust, fumes, smoke, and
soot that was created by the processing and the inceneration of
the du Pont product, since I was present in those buildings for
much of the time, particularly during the years 1976 and 1982.
5. I am informed that du Pont is claiming in this case the
exposure that I had to the du Pont product was insignificant in
terms of supporting my claim in this case.
60a
Appendix H
6. My claim in this case is not limited to the question of lung
disability resulting from exposure to asbestos, but also includes
a very great concern that I have for my health because of my
being exposed to asbestos.
7. I am aware that asbestos can cause serious health problems,
and since I do have at least one condition that can be the result
of exposure to asbestos, namely a lung condition, I feel that I
have been misled and deceived by not having been informed as
to exactly what I was exposed to.
8. I have also been advised that it is medically indicated that
I should have periodic checkups so as to detect the development
of any serious disease such as cancer.
9. 1 feel that I was exposed very intensely to a lot of dust,
fumes and smoke which came from some of the burning that
apparently involved the asbestos from du Pont in Memphis.
10. The burning operation in buildings 7 and 18 was very
dusty, dirty and smokey and involved those substances coming
out of the doors of the building, filling up the rooms, and going
out of the smokestacks on to everything in the area, not only
confined to the Engelhard location.
11. During the course of my employment I saw many
containers with the name du Pont on them although I cannot
state which of those containers came from Memphis, and I am
accepting du Pont’s word that some of those did in fact come
from Memphis and did contain material that was made up of
asbestos.
6la
Appendix H
12. Since the burning of the du Pont material took many
hours, the dust, fumes and smoke to which I was exposed was
significant over the course of several years.
13. The contact that I had with the dust, fumes, and smoke
from the incineration process as well as other elements of the
refining process was not just occasional, once every so often, or
very slight such as might occur if someone is just passing by a
particular area.
14. My employment at Engelhard involved being in and near
buildings and areas where the refining and incineration process
took place.
s/ Curtis Brown
CURTIS BROWN
Sworn and Subscribed to
before me this 8th day of
September, 1990.
s/Barbara B. Lipkin
Barbara B. Lipkin
My Commision Expires
October 13, 1990
62a
Appendix H
James Bradley Dated September 8, 1990
MARGOLIS & GORDON
485 Morris Avenue
Springfield, New Jersey 07081
(201) 467-5820
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 86-3324 (GEB)
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiff,
VS.
JOHN DOE I, et als.,
Defendants.,
and
E.I. DU PONT DE NEMOURS & COMPANY, a corporation
of the State of Delaware,
Defendant-Third
Party Plaintiff,
63a
Appendix H
SCOTT LABORATORIES INC., SCOTT LABORATORIES,
LTD., and ROBERT A. KEASBEY CO.,
Third Party Defendants.
AFFIDAVIT
STATE OF NEW JERSEY ) SS:
COUNTY OF UNION Bs t
JAMES BRADLEY, of full age, being duly sworn according to
law, upon his oath deposes and says:
1. I was a chemical operator at Engelhard Industries at its
Delancy Street location during the periods of 1970 to 1983, when,
as I have been advised, the DuPont Company sent to Engelhard
Industries for refining, including incineration, material from, its
Memphis, Tennessee plant, which contained asbestos.
2. I was advised by my employer in i984 that it was
recommended that I be examined because my job duties brought
me into contact with the DuPont material which was processed
essentially in Buildings 7 and 18.
3. Lin fact do have a lung condition for which my major
complaint is coughing, as well as shortness of breath and chest
pain.
4. | am advised that these complaints can be the result of
exposure to lung irritants, including asbestos.
5. Because of the fact that I am very much aware of the
harmful effects that asbestos can have on the human body,
64a
Appendix H
including the development of lung problems as well as lung cancer
and other types of cancer, I have been very depressed and
concerned about learning of the exposure during the 13 years since
1970.
6. I am aware cf the fact that asbestos-related disease does
not always develop right away, and that there is a period of
incubation or latency, so I cannot be reasonably certain that I
will not develop the same kind of disease, including cancer that
many other co-employees have already developed, including some
people who are plaintiffs in this law suit.
7. I know of a large number of people who in fact have died
because of cancer, and the large number seems to be very out
of proportion to what would normally be expected.
8. I understand that in this case, in defense again, my claim,
DuPont claims that because I was never assigned to Buildings
7 and 18 so as to work inside them on a regular basis, I did not
have enough exposure to asbestos to be harmful, meaningful,
potentially dangerous, or to have contributed to my lung condition.
9. I disagree entirely with that claim, since the results of the
burning of the DuPont materials in Buildings 7 and 18 were visited
upon individuals who were not actually inside the building.
10. The dust, fumes and smoke that came from those
buildings through smoke stacks, and through open doorways was
extremely intense.
11. The smoke, dust, fumes and soot came out of the
furnaces, particularly in Building 7, and went right out of the
doorways of the building into the general atmosphere.
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12. The general atmosphere around the smoke stacks was
such that everything including individuals, objects, cars and land
and property of adjoining and distant neighbors was covered with
the dirt, dust and smoke.
13. The results of the incineration and burning could be
smelled and experienced by everyone nearby Buildings 7 and 18,
elsewhere on the Engelhard site, and off the property.
14. I remember particularly the occasions when the furnaces
would be shut down and I personally was involved in at least
one of those occasions.
15. The purpose of the shutdown was because they were
creating so much smoke and fumes.
16. I remember complaints from people outside of the
Engelhard site, such as Conrail, trucking companies, and the City
of Newark, with respect to the smoke pollution that was caused.
17. Because of my position as a union official, I spent a lot
of time in various locations in the plant where I was not assigned
to work, including Buildings 7 and 18, and the general refining
area of the Engelhard plant site which included those buildings.
18. Any suggestion that I had only limited contact, every
so often, in or near Buildings 7 and 18 involving the incineration
process, is completely incorrect.
19. In addition to being depressed and concerned about the
potential development of serious disease, I also am upset and
angered to think that the DuPont Company had deliberately
concealed from me as well as from other employers the fact that
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it was exposing us a very harmful substance.
20. Had I known that I was going to be exposed to the burning
of asbestos over the course of time, I would have had the
opportunity to protect myself as well as I could from the potentially
harmful effects of the exposure, and the concealment of that fact
by DuPont seems to me to be inexcusable.
s/James Bradley
JAMES BRADLEY
Sworn and Subscribed to
before me this 8th day
of September, 1990.
s/Barbara B. Lipkin
Barbara B. Lipkin
My Commission Expires
October 13, 1990
67a
Appendix H
John Collins Dated September 8, 1990
MARGOLIS & GORDON
485 Morris Avenue
Springfield, New Jersey 07081
(201) 467-5820
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 86-3324 (GEB)
JAMES JOHN BRADLEY and CATHERINE BRADLEY, his
wife, et al.,
Plaintiffs,
VS.
JOHN DOE I, et als.,
Defendants.,
-and-
E.I. DU PONT DE NEMOURS & COMPANY, a corporation
of the State of Delaware,
Defendant-Third
Party Plaintiff,
SCOTT LABORATORIES, INC., SCOTT LABORATORIES,
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Appendix H
LTD., and ROBERT A. KEASBEY CO.,
Third Party Defendants.
AFFIDAVIT
STATE OF NEW JERSEY ) cc.
COUNTY OF UNION __)
JOHN COLLINS, of full age, being duly sworn according
to law, upon his oath deposes and says:
1. I was employed at the Delancy Street location of Engelhard
Industries during the entire period involved in this law suit, namely
1970 through 1983.
2. During those years I was involved in a very great deal
of exposure to the waste material coming from buildings 7 and 18.
3. In both of those buildings there were furnaces which
involved the incineration of material sent to Engelhard Industries
from the du Pont Company.
4. The du Pont material arrived in 55 gallon steel drums and
was loaded in to large pans and put into the furnaces for burning.
5. The smoke, dust and fumes coming from those furnaces
and going into the buildings themselves was so great as to be almost
not describable.
6. It should be sufficient to note that the dust, fumes and
smoke were so heavy that there were intense black clouds in the
buildings and coming out of the buildings, and that frequently
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Appendix H
the individuals in the buildings, particularly building No. 7 would
actually have to leave the buildings.
7. I was a union official during this time, and I am aware
of the innumerable complaints made by individual employees and
the union regarding these working conditions.
8 The result of the incineration was dust, fumes, smoke,
and soot that went up through the smokestacks from buildings
7 and 18, as well as all the dust, fumes, smoke and soot that
remained in the buildings.
9. The material coming out of the smokestacks would go
all over, including on to the nearby areas of the Engelhard plant
site on Delancy Street as well as the entire plant site.
10. The material that came out of the stacks would go on
to adjoining property and there were constantly complaints from
different neighbors including a trucking company that was nearby,
and the Conrail Company.
11. I recall that on many occasions there was damage to
automobiles from the soot and dust, and it was common
knowledge that Engelhard Industries paid for the repainting of
those vehicles.
12. There were occasions when Engelhard Industries paid for
the repainting of buildings owned by neighboring residents and/or
businesses.
13. I can recall instances when the New Jersey State Police,
and also the Newark Police would come to the plant site because
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Appendix H
of complaints about the heavy smoke coming from buildings 7
and 18.
14. I can recall many occasions when the company was
ordered to shut down the furnaces because of the heavy pollution.
15. I can recall instances when union officials at the plant
complained to the company and requested and demanded that
the furnaces be shut down because of the heavy pollution.
16. In August of 1984 I and hundreds of other Engelhard
employees were advised by Engelhard that du Pont had just
informed it that the material that du Pont had sent in for
processing and refining had contained asbestos.
17. I am directly familiar with the du Pont activity.
18. du Pont material was burned in both buildings 7 and 18.
19. I am aware that the metal sought to be recovered on behalf
of du Pont was palladium.
20. I know of no other company that sought to recover
palladium in its dealings with Engelhard.
21. One of the items of equipment in building 18 was a
*“*press’’, and that was called the ‘‘du Pont press’’.
22. All palladium recovery at Engelhard was on behalf of
du Pont, and all du Pont reclaiming was for the purpose of
reclaiming palladium.
23. In other words, I have no knowledge of other companies
Tla
Appendix H
seeking to recover palladium, and no knowledge of du Pont’s
seeking to recover other precious metal aside from palladium.
24. I was directly exposed in building 18 to the dust, fumes
and smoke from the refining of du Pont materials when I was
assigned to work there.
25. However, because of my activities as a union official,
and my being close to building 7, as well as being in the general
area of the smokestacks, I was constantly exposed to the results
of the refining and incineration process of the du Pont material.
26. In that regard, I may have had more regular, direct,
extended, and intense exposure than some of the other plaintiffs
in this case, including Herman Brown, Curtis Brown, Arthur Bell,
John Carew, James Bradley and James Benson, but from my
observation, all of those individuals, from time to time and over
some extended period of time were exposed to the dust, fumes,
and smoke resulting from the refining, reclaiming, and incinerating
of the du Pont material.
27. It is my understanding that there was du Pont material
that was processed at Engelhard which did not come from the
du Pont Memphis, Tennessee plant.
28. It was not until being advised in August of 1984 about
the fact that the material coming from the du Pont Memphis plant
contained asbestos that I learned that in fact asbestos had been
processed, including being incinerated, between the years 1971
and 1982.
29. I have been informed that since this law suit was started,
the period of time was extended to 1970 to 1983, insofar as the
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Appendix H
processing of du Pont material is concerned.
30. I have also been advised that the union has been informed
that close to one million pounds of material was processed over
the course of these 13 years.
31. While I was and am aware of the fact that where we
were working involved the use of chemicals, it was a complete
shock for me to learn that for 13 years I had been closely exposed
to asbestos in a harmful form, and this shock was increased by
the fact that the warning came from the source of the asbestos,
the du Pont Company, as well as from Engelhard Industries.
32. The fact that I was notified and warned to be examined
clearly indicates to me that I was put at risk of damage to my
health for a period of 13 years.
33. I am aware that asbestos is a very harmful and dangerous
material, causing many physical problems, not only involving one’s
lungs, but also the development of cancer.
34. I know that I have lung disease, but almost more
importantly, I am aware of the very high risk of developing cancer.
35. I have been very nervous, depressed and upset about this
risk to my health since I learned of it in August of 1984.
36. I have had the unfortunate experience of seeing my
concern take a definite form in the exampie of an individual named
John Gowans who was my wife’s brother.
37. John Gowans worked in the same area at Engelhard that
I did during the time periods between 1970 and 1980, and was
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Appendix H
also exposed intensely to the activity involving the refining and
reclaiming of du Pont material.
38. John developed throat cancer early in 1990 and died as
a result of that disease several months ago.
39. It is almost beyond description for me to try to express
my feelings regarding the fact that my worst fears were actually
realized with respect to a very close friend and member of my
family.
40. I am aware that asbestos increases the risk of cancer of
the throat, and in the case of John Gowans it was his larynx that
was the site of the cancer.
41. I am aware that since this case started, in addition to
what happened to my brothrr-in-law, John Gowans, another
plaintiff, Lawrence Veneiro, has developed cancer and died, and
that another plaintiff, Vasil Vislocky, is now suffering from lung
cancer.
42. I am also of course aware of the fact that before this
law suit started Joe Pietropinto died of lung cancer.
43. All of these facts serve to confirm and increase my concern
and fear about developing the disease.
44. I feel a sense of anger and outrage, as well as fear, because
of the fact that the exposure of me as well as hundreds of other
people by du Pont was intentional, and the concealment of the
fact that there was a very harmful and poisonous substance took
place over the course of years and that that concealment was
deliberate.
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Appendix H
45. I am aware that du Pont claims in this case that one or
more of the individual plaintiffs had exposure to its burning
product that was insignificant.
46. That is simply not true with respect to me and with respect
to any of the individuals who are plaintiffs in this case.
47. | am aware of many people who are not plaintiffs in
this case who nevertheless have become ill, some with various
forms of cancer, and some of whom have died.
48. I believe that the frequency and incidents of the illnesses
suffered by former employees at Delancy Street is so high as to
be something more than coincidence, and in fact is the result of
their having worked near burning asbestos.
49. Had I and other individuals known of the extent of the
risk that we were working under we would have had an opportunity
to minimize or eliminate that risk such as changing employers,
changing jobs, being more careful not to be close to the burning
asbestos, wearing protective devices and clothing.
50. I am angered and outraged that we were denied that
opportunity by the deliberate concealment on the part of du Pont
concern
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