In a products liability case with potential major ramifications, a divided New Jersey Supreme Court determined there was no distinction between original parts by manufacturers and distributors that contain asbestos and replacement parts containing the same by a third party that caused injury, and ultimately death, to a decades-long plumber—and so the manufacturer and distributor had a duty to warn of the dangers of both parts.

In a 5-2 decision, the court upheld an August 2018 appellate panel ruling in favor of plaintiff Arthur Whelan, who died from mesothelioma. There, Appellate Division Judge Heidi Currier found that Whelan had "presented sufficient evidence detailing his exposure to asbestos," either from defendants' original or replacement components or from a third party's replacement components, to withstand summary judgment.

"We affirm the judgment of the Appellate Division, for many of the reasons set forth in its thoughtful and comprehensive opinion reversing the order granting summary judgment in favor of defendants," said Justice Barry Albin Wednesday in the 43-page majority opinion.

"Our developing common law jurisprudence, guided by principles of public policy and equity, dictates that defendants who manufacture or distribute products that, by their design, require the replacement of asbestos-containing components with other asbestos-containing components during the ordinary life of the product have a duty to give adequate warnings to the ultimate user," added Albin.

Chief Justice Stuart Rabner and Justices Jaynee LaVecchia, Lee Solomon, and Walter Timpone join Albin's opinion.

Justice Anne Patterson filed a 21-page accompanying dissent, in which Justice Faustino Fernandez-Vina joined. In it Patterson contends, "the majority has substantially altered the test for medical causation that has governed New Jersey's asbestos litigation for decades."

Justice Anne Patterson

"In my view, there is no wrong to be righted here," said Patterson. "I consider the majority's decision to effect an unwarranted change in the longstanding standard for the medical causation element of an asbestos failure to warn claim. I would reverse the judgment of the Appellate Division."

Whelan's suit contends that replacement parts for boilers that were integral to the maintenance and functioning of the original equipment the manufacturer sold, but manufactured and distributed by another company, had exposed him to asbestos that caused him to contract mesothelioma in 2008, and later die from it.

Several dozen companies are named as defendants. One group of defendants—Armstrong International Inc., Burnham LLC, Carrier Corp., Cleaver-Brooks Inc., Crown Boiler Co., Ford Motor Co., Johnson Controls Inc., NIBCO Inc. and Oakfabco Inc.—filed summary judgment motions, claiming Whelan had not demonstrated exposure to "friable" asbestos on a regular and frequent basis from a product it sold, manufactured, supplied or distributed.

The motion was granted at the trial court level, then reversed by the Appellate Division. The case was granted Supreme Court certification on Jan. 18, 2019, and argued on Nov. 19. 2019. The court's decision Wednesday affirms the Appellate Division.

"In this strict-liability case, the product at issue is the aggregation of all its component parts," wrote Albin Wednesday. "For failure-to-warn purposes, no distinction is made between the original asbestos-containing components and the asbestos-containing replacement components necessary for the continued operation of defendants' integrated products—even though the replacement components are manufactured or distributed by a third party."

But Albin said liability by the defendants wasn't automatic, and that in order to succeed in the failure-to-warn action, the suit on behalf of Whelan must prove the following: (1) the manufacturer or distributor incorporated asbestos-containing components in its original product; (2) the asbestos-containing components were integral to the product and necessary for it to function; (3) routine maintenance of the product essentially required replacing the original asbestos-containing components with similar asbestos-containing components; and (4) medical causation—that the exposure to the asbestos-containing components or replacement components was a substantial factor in causing or exacerbating Whelan's contracting mesothelioma.

Albin said the decision aligns with how the U.S. Supreme Court, New York Court of Appeals and Maryland Court of Appeals have ruled recently on similar failure-to-warn, strict liability cases involving asbestos-containing products.

Sean Marotta of Hogan Lovells in Washington, D.C., represents defendant Ford Motor Co. and argued on behalf of all the defendants at the Supreme Court last November.

"We have no comment," Marotta said when reached by phone on Wednesday.

Christopher Placitella of Cohen Placitella & Roth in Red Bank represents Whelan.

Placitella issued this statement: "This landmark decision is a huge victory for all those devastated in injury and mortality by exposure to asbestos intentionally incorporated into machinery manufactured by the defendants. The well-reasoned opinion authored by Justice Albin provides an in-depth analysis of the evolution of New Jersey product liability law and why fundamental fairness supports the Court's decision here. We are very happy for the Whelans."

Amber Long, a partner at Levy Konigsberg in New York, argued on behalf of amicus New Jersey Association for Justice in support of Whelan.

"The court's decision is an important win for New Jersey workers who were exposed to asbestos and all consumers injured by defective products," Long said in a phone call. "It is in keeping with New Jersey courts' long history of jurisprudence that is protective of workers and consumers injured by defective products and will help ensure that manufacturers are held responsible for failing to warn of the hazards of exposure to asbestos associated with their products."

The Chamber of Commerce of the United States of America, the Coalition for Litigation Justice Inc., Product Liability Advisory Council Inc. and Washington Legal Foundation also participated as amici curiae supporting the defendants' position, while the Asbestos Disease Awareness Organization joined NJAJ as amicus in support of Whelan.

Whelan worked for 40 years as a residential and commercial plumber and an auto mechanic. In his suit he claims he was exposed to various asbestos-containing equipment, without proper warning from the manufacturers that made them.

Among the products at issue were materials used to construct fireboxes on oil-fired boilers made by Cleaver-Brooks that Whelan cleaned a number of times in the 1950s. Whelan testified that he could not identify the manufacturer of the asbestos-laden materials in the boilers, according to court documents.

Another such product was the replacement gaskets he fitted on about 20 Armstrong steam traps installed on commercial boilers. The gaskets, which were made with asbestos, were made by another company, which Whelan was again unable to identify, according to court documents.

Named defendants in the suit countered that they had no duty to warn about the dangers of asbestos-containing replacement components manufactured or supplied by third parties and incorporated into their products after those products left their control.

The trial court granted summary judgment to each defendant.

But an appeals court in August 2018 reinstated the complaints against the named companies. The panel found that a manufacturer's product includes any replacement parts necessary to its function, and therefore, the defendants' duty to warn extends to any danger created by those replacement parts.

The appeals court said that the imposition of such a duty does not offend basic principles of fairness and public policy. In its reversal opinion, Currier rejected the ultimate conclusion reached by the Hughes court—that a defendant manufacturer or distributor could not be held strictly liable in a failure-to-warn lawsuit for exposure to a third party's asbestos-containing replacement components installed as part of the regular maintenance of the defendant's integrated product after it leaves its control.

Like the Hughes panel, Currier determined that defendants' "duty to warn extend[ed] to any danger created by those replacement parts" necessary for their products to function, regardless of whether a "third party manufactured or distributed the replacement parts."

But contrasting with the Hughes panel, Currier determined Whelan had shown sufficient medical causation, which Albin supported.

"We do not accept the legal theory advanced in Hughes that a duty to warn, once recognized, has no real consequences—that a violation of the duty is essentially meaningless," wrote Albin. "It makes little sense to impose a duty to warn if the violation of the duty leads to a tortious injury for which there is no remedy."

"We presume that had adequate warnings been given, Whelan would have heeded those warnings and taken steps to protect himself from exposure to the asbestos dust in defendants' products and the products' replacement components," added Albin.

In her dissent, Patterson said she thought the Whelan court altered the test in Sholtis and James to eliminate the requirement that the plaintiff prove sufficient exposure to an asbestos-containing product manufactured by the specific defendant.

"The majority does not base its revision of the standard on any showing that the existing rule deprives asbestos plaintiffs of a remedy," Patterson said.

Albin disagreed. In addition to general common-law jurisprudence, Albin said the majority drew from 1982's Beshada v. Johns-Manville Products, in which plaintiff workers and workers' survivors filed a strict-liability, failure-to-warn lawsuit against the defendant manufacturers, alleging that their exposure to the defendants' asbestos products caused them to contract various asbestos-related illnesses.

In Beshada, the court rejected the "state of the art" defense, in which "no one knew or could have known that asbestos was dangerous when it was marketed." Albin said that is why the parts at issue—be it original or replacement components—were one in the same.

"Defendants had a duty to provide warnings given the foreseeability that third parties would be the source of asbestos-containing replacement components," Albin said. "Warnings on defendants' products would have provided a reliable form of protection for the ultimate user."