# Petition for Writ of Certiorari — Bradley v. E. I. du Pont de Nemours & Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0387%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 503 U.S. 998 ## Text | 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0387%3A1. Public record. Not legal advice.