                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3520-13T4

ARTHUR G. WHELAN,

      Plaintiff-Appellant,

v.
                                             APPROVED FOR PUBLICATION
ARMSTRONG INTERNATIONAL INC.; BURNHAM
LLC; CARRIER CORP., individually,                 August 6, 2018
d/b/a and as successor to Bryant               APPELLATE DIVISION
Heating & Cooling Systems; CLEAVER-
BROOKS INC.; CROWN BOILER CO., f/k/a
Crown Industries Inc.; FORD MOTOR
CO.; JOHNSON CONTROLS INC.,
individually, d/b/a and as successor
to Evcon Industries Inc. and Coleman
Heating and Air Conditioning Products
Inc.; NIBCO INC.; and OAKFABCO INC.,
individually, d/b/a and as successor
to Kewanee Boiler Corp.;

          Defendants-Respondents,
and

A. O. SMITH CORP.; AARON & CO.; AMG
INDUSTRIES INC., d/b/a and as
successor to Akron Metallic Gasket
Co.; AUTOMATIC SWITCH CO.; AUTOMOTIVE
BRAKE CO.; A.W. CHESTERTON CO.; BASF
CORP.; BERGEN INDUSTRIAL SUPPLY CO.;
BETHLEHEM DYNATHERM, a/k/a Dynatherm
Boiler Manufacturing Inc.; BINSKY &
SNYDER LLC, individually, d/b/a and
as successor to Binsky & Snyder Co.;
BONLAND INDUSTRIES INC.; BORGWARNER
MORSE TEC INC., as successor to Borg-
Warner Corp.; BRIGGS INDUSTRIES INC.;
CARLISLE COMPANIES INC.; CBS CORP.,
f/k/a Viacom Inc., successor by
merger to CBS Corp., f/k/a
Westinghouse Electric Corp.; CENTRAL
BRASS CO. INC., individually, d/b/a
and as successor to Central Brass
Manufacturing Co. and Central Brass &
Fixture Co.; CENTRAL ENGINEERING &
SUPPLY CO. INC.; CHICAGO FAUCET CO.;
CHICAGO-WILCOX MANUFACTURING CO.
INC.; COLFAX INC., individually and
as successor to Warner Electric Brake
& Clutch Co.; CRANE CO.; CROSSTOWN
PLUMBING SUPPLY INC.; DANA COMPANIES
LLC; DAP INC.; DUCTMATE INDUSTRIES
INC.; DUNHAM-BUSH INC.; DUNPHEY &
ASSOCIATES SUPPLY CO. INC.; DURO DYNE
CORP.; ECR INTERNATIONAL INC.,
individually, d/b/a and as successor
to Utica Boilers Inc., Utica Radiator
Corp., Dunkirk Boilers, Pennco Inc.,
and Olsen Technology Inc.; ESSEX
PLUMBING SUPPLY INC.; FISHER
SCIENTIFIC INTERNATIONAL INC.;
FORTUNE BRANDS HOME & SECURITY INC.,
individually, d/b/a and as successor
to Moen Inc.; FOSTER WHEELER LLC;
GENERAL ELECTRIC CO.; GEORGIA-PACIFIC
LLC; THE GOODYEAR TIRE & RUBBER CO.;
GOULDS PUMPS INC.; GRACO INC.;
GRUNDFOS PUMPS CORP.; H.B. SMITH CO.
INC.; HILCO INC., individually and as
successor to Universal Supply Group
Inc. and Amber Supply Co.; HONEYWELL
INTERNATIONAL INC., f/k/a Honeywell
Inc., Allied Signal Inc. and Bendix
Corp.; INTERLINE BRANDS INC.,
individually, d/b/a and as successor
to J.A. Sexauer Inc.; INTERNATIONAL
BUSINESS MACHINES CORP.; ITT CORP.;
KAISER GYPSUM CO. INC.; KANTOR SUPPLY
INC.; KOHLER CO., individually, d/b/a
and as successor to Sterling Faucet
Co.; LENNOX INDUSTRIES INC.,
individually, d/b/a and as successor
to Armstrong Furnace Co.; MAGNATROL
VALVE CORP.; MANHATTAN WELDING CO.
INC.; MAREMONT CORP.; MERITOR INC.,
individually and as successor to



                               2        A-3520-13T4
Rockwell International Corp.; MESTEK
INC., individually, d/b/a and as
successor to H.B. Smith Co., Smith
Cast Iron Boilers and Mills Boilers;
MUELLER INDUSTRIES INC.; NATIONAL
AUTOMOTIVE PARTS ASSOCIATION INC.;
NEW JERSEY BOILER REPAIR CO.; NCH
CORP., as successor to Creed Co. and
Daniel P. Creed Co. Inc.; NMBFIL
INC., f/k/a Bondo Corp.; OWENS-
ILLINOIS INC.; PEERLESS INDUSTRIES
INC.; PNEUMO-ABEX LLC, individually
and as successor to Abex Corp.; PRICE
PFISTER INC.; THE PRUDENTIAL
INSURANCE CO. OF AMERICA; RHEEM
MANUFACTURING CO.; RILEY POWER INC.,
f/k/a Riley-Stoker Corp.; ROBERTSHAW
CONTROLS CO., individually and as
successor to Fulton Sylphon Co.; SID
HARVEY INDUSTRIES INC.; SLANT/FIN
CORP.; SLOAN VALVE CO.; SOS PRODUCTS
CO. INC.; SPEAKMAN CO.; SUPERIOR
BOILER WORKS INC.; SUR-SEAL CORP.;
TACO INC.; TRANE U.S. INC.,
individually and as successor to
American Standard Inc. and American
Radiator Co.; TURNER CONSTRUCTION
CO.; UNILEVER UNITED STATES INC.;
UNIROYAL HOLDING INC.; VERIZON NEW
JERSEY INC., individually and as
successor to New Jersey Bell
Telephone Co.; VICTAULIC CO.;
WALLWORK BROS. INC.; WAL-RICH CORP.;
WEIL-MCLAIN, a division of the
Marley-Wylain Co., a wholly-owned
subsidiary of the Marley Co. LLC;
W.V. EGBERT & CO. INC.; YORK
INTERNATIONAL CORP.; ZURN INDUSTRIES
LLC, individually, d/b/a and as
successor to Erie City Iron Works and
Zurn Industries Inc.; AII ACQUISITION
LLC, individually, as successor to,
f/k/a, and d/b/a Holland Furnace Co.,
Athlone Industries Inc., T.F.C.
Holding Corp. and Thatcher Furnace
Co.; AMERICAN PREMIER UNDERWRITERS,



                               3        A-3520-13T4
individually and as successor to
Hydrotherm Corp.; AUGUST ARACE & SONS
INC.; HONEYWELL INC.; ROCKWELL
AUTOMATION INC., individually, d/b/a
and as successor to Sterling Faucet
Co.; ROCKWELL COLLINS INC.,
individually, d/b/a and as successor
to Sterling Faucet Co.; TRIMAS CORP.,
individually, d/b/a and as successor
to NI Industries Inc.; WILMAR
INDUSTRIES INC., individually, d/b/a
and as successor to J.A. Sexauer
Inc.; BASF CATALYSTS LLC; TRIMAS
CORP., individually and as successor
in interest to Norris Industries
and/or NI Industries Inc.; YORK
INTERNATIONAL CORP., individually and
as successor to The Coleman Company
Inc., a/k/a Coleman Heating and Air
Conditioning Products Inc.,

     Defendants.
_________________________________________

         Argued May 2, 2016

         Before Judges Accurso, O'Connor, and Suter.

         Reargued May 16, 2018 – Decided August 6, 2018

         Before Judges Alvarez, Nugent, and Currier.

         On appeal from Superior Court of New Jersey,
         Law Division, Middlesex County, Docket No.
         L-7161-12.

         Kevin P. Parker (The Lanier Law Firm, PLLC)
         of the Texas bar, admitted pro hac vice,
         argued the cause on May 2, 2016 and May 16,
         2018, and Rachel A. Placitella argued the
         cause on May 16, 2018, for appellant (Cohen,
         Placitella & Roth, PC, attorneys; Rachel A.
         Placitella, Nahid A. Shaikh, and Darron E.
         Berquist (The Lanier Law Firm, PLLC) of the
         New York bar, admitted pro hac vice, on the
         briefs).



                               4                          A-3520-13T4
Thomas J. Kelly, Jr. argued the cause for
respondent   Armstrong  International,   Inc.
(Vasios, Kelly & Strollo, PA, attorneys;
Thomas J. Kelly, Jr., of counsel and on the
brief; Linda Fulop-Slaughter, on the brief).

Joseph D. Rasnek argued the cause for
respondent Burnham, LLC (McElroy, Deutsch,
Mulvaney & Carpenter, LLP, attorneys; Nancy
McDonald, of counsel and on the brief;
Christopher B. Bladel, on the brief).

Sara K. Saltsman argued the cause for
respondent Carrier Corporation (Mayfield,
Turner, O'Mara & Donnelly, P.C., attorneys;
Sara K. Saltsman, on the brief).

Karen J. Stanzione-Conte argued     the cause
for respondents Cleaver-Brooks,      Inc. and
Crown Boiler, Company (Reilly,     Janiczek &
McDevitt, attorneys; Karen J.       Stanzione-
Conte, Michelle B. Cappuccio and   Colleen B.
Cavanaugh, on the briefs).

Robyn Gnudi Kalocsay argued the cause on May
2, 2016, and Sean M. Marotta argued the
cause on May 16, 2018, for respondent Ford
Motor Company (LeClair Ryan, attorneys;
Robin   Gnudi   Kalocsay   and  Michael   D.
Goldklang, on the brief).

Marc S. Gaffrey argued the cause on May 2,
2016, and Jacob S. Grouser argued the cause
on May 16, 2018, for respondent Johnson
Controls, Inc. (Hoagland, Longo, Moran,
Dunst & Doukas, LLP, attorneys; Marc S.
Gaffrey, of counsel and on the brief; Anita
S. Cohen, on the brief).

Robert T. Connor argued the cause on May 2,
2016, and Stephanie A. DiVita argued the
cause on May 16, 2018, for respondent NIBCO,
Inc. (Pascarella DiVita, PLLP attorneys;
Robert T. Connor, of counsel and on the
brief; Angela Coll Caliendo, on the brief).



                      5                          A-3520-13T4
           Hawkins Parnell Thackston & Young LLP,
           attorneys for respondent Oakfabco, Inc. (Roy
           F. Viola, Jr., and Deena M. Crimaldi on the
           brief).

    The opinion of the court was delivered by

CURRIER, J.A.D.

    In this products liability case arising out of exposure to

asbestos, we consider anew whether a manufacturer has a duty to

warn about the risk of harm from exposure to asbestos-containing

replacement parts integral to the function of the manufacturer's

product,   even   if   the   manufacturer   did   not   fabricate    or

distribute the replacement parts.      We conclude that a duty to

warn exists when the manufacturer's product contains asbestos

components, which are integral to the function of the product,

and the manufacturer is aware that routine periodic maintenance

of its product will require the replacement of those components

with other asbestos-containing parts.

    Plaintiff Arthur Whelan contends he developed mesothelioma

as the result of his work-related exposure to numerous asbestos-

containing products.    Plaintiff asserts, as a plumber and auto

mechanic, he was exposed to asbestos in products manufactured by




                                  6                           A-3520-13T4
defendants,1 specifically boilers, valves, steam traps, and brake

drums.     Although    plaintiff          installed     and    worked      with    some

original products manufactured by some defendants, he primarily

encountered asbestos in his cleaning, repair, and replacement of

components used in the products.

      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.            Each defendant argued plaintiff had

not demonstrated exposure to friable asbestos on a regular and

frequent basis from a product it sold, manufactured, supplied,

or   distributed.      The       trial    judge   found      defendants     were    not

liable for asbestos-containing replacement parts they did not

manufacture   or    place    into        the   stream   of    commerce.       Because

plaintiff could not identify an exposure to asbestos from a

product actually manufactured or distributed by defendants, the

court granted summary judgment to each defendant.

      In light of our determination that a manufacturer's product

includes   any     replacement       parts      necessary      to    its   function,

defendants' duty to warn extends to any danger created by those

replacement   parts.         A    careful      review   of    the    record   reveals

1
    When discussing a particular defendant, we refer to it by
name.   Otherwise, we refer to all defendants involved in this
appeal collectively.



                                           7                                  A-3520-13T4
plaintiff presented sufficient evidence detailing his exposure

to asbestos, either from original parts supplied by defendants

or replacement parts required for the function of defendants'

products, to create issues of fact as to all defendants.             We,

therefore, reverse the October 3, November 15, and December 23,

2013 orders granting summary judgment in favor of defendants.

                                   I.

    We discern the following facts from the summary judgment

record.     Plaintiff began work as a residential and commercial

plumber in 1952.     He previously worked at an automotive repair

shop, and continued throughout his life to restore vintage cars

as a hobby.     From 1955 to 1959, plaintiff worked for Franklin

Lowe & Sons.    Plaintiff opened his own plumbing business, Arthur

Whelan Plumbing and Heating, in 1959, which he maintained until

1968.     From 1968 until 1971, plaintiff worked at several other

plumbing companies before becoming employed by Powers Regulator,

where he worked for twenty-five years.

    In 2008, plaintiff was diagnosed with asbestosis; he was

subsequently    diagnosed   with   malignant   mesothelioma   in   2012.

Plaintiff's causation expert, pathologist Eugene J. Mark, M.D.,

stated in his August 2, 2013 report that plaintiff "developed a

diffuse malignant mesothelioma of the pleura" caused by asbestos




                                    8                          A-3520-13T4
exposure.2      Dr. Mark further concluded, "with reasonable medical

certainty" that "all of the special exposures to asbestos which

took place prior to the occurrence of the malignancy together

contributed to cause the diffuse malignant mesothelioma . . .

[and    each]    was    a   substantial     contributing      factor      in    the

causation of the diffuse malignant mesothelioma."

                                       A.

                        Armstrong International Inc.

       While    employed    by   Franklin   Lowe,   plaintiff      estimated      he

worked on twenty Armstrong steam traps installed on commercial

boilers.3       The    company's    name    was   imprinted   on    the    traps.

Plaintiff's job duties entailed opening the traps in order to

clean them and replace the asbestos gaskets.4                 The process of

replacing a gasket took approximately twenty minutes to one hour

depending on its condition and how long it had been in place.

Plaintiff testified that "[d]ue to the high heat involved, these

2
   The expert further stated in his report that asbestos is the
only established cause of diffuse malignant mesothelioma for
individuals who have not previously received radiotherapy at the
site of the tumor.
3
   A steam trap is placed on the end of a boiler's steam line to
prevent the steam from going back into the boiler.
4
   A gasket is a mechanical seal used in a high pressure steam
system that fills the space between two or more mating surfaces,
generally to prevent leakage from, or into, the joined objects
while under compression.     Gasket, Wikipedia (June 26, 2018,
10:59 PM), https://en.wikipedia.org/wiki/Gasket.




                                       9                                  A-3520-13T4
gaskets normally baked themselves onto the product, so they had

to be scraped and brushed off."               Plaintiff could not confirm

whether he replaced gaskets original to the boiler or if the

original had been replaced prior to his work on the system.                        His

employer supplied the new gaskets but plaintiff did not know the

manufacturer of them.           He advised, however, that the Armstrong

steam trap's design required the use of that specific type of

gasket to function properly.           Plaintiff also testified that, in

his experience, asbestos gaskets were "the only product that

would work with the heat involved."

    Armstrong confirmed it manufactured steam traps and some of

its traps contained a single internal gasket, which contained

"an unknown quantity of non-friable chrysotile asbestos."                          The

gasket was manufactured and supplied by an unrelated company.

Armstrong   also   conceded      the   asbestos        gaskets    built     into   the

steam   traps   "were     necessary[,       and]   .    .   .    standard    in    the

industry for these types of products," and were specified as the

proper replacement part for the steam traps.

    Armstrong argued summary judgment was appropriate because

plaintiff was unable to identify either the manufacturer of the

replacement     gaskets    he    installed    or   whether        the   gaskets     he

replaced in the Armstrong steam traps were original to the trap.

Plaintiff opposed the motion, noting Armstrong's concession that




                                       10                                    A-3520-13T4
the   original        component       gaskets      installed      in    its    steam   traps

contained        asbestos          until    1987,         the    recommended       routine

maintenance required replacement of the gaskets every one to two

years with gaskets identical to the original specifications, and

asbestos    gaskets          were     the   industry       standard      and    considered

necessary for proper function at the time.

                                            B.

                                        Burnham LLC

      While self-employed from 1959 to 1968, plaintiff installed

twenty to thirty packaged, cast iron, oil-fired Burnham boilers.

Plaintiff    stated,          in    general,       the    process       of    installing    a

packaged boiler involved "moving the boiler around, taking it

out of the crate, [and] moving it into place, . . . [which]

created some dust from removing the insulation underneath the

jacket."         He    described       a    gray    dust,       which    he    inhaled,    as

asbestos dust generated during the installation process.                                   He

stated     the        dust    emanated       from        the    boiler's      gray-colored

insulation that was visible through the "knock out hole where

the piping would be hooked up."

      In moving for summary judgment, Burnham pointed out the

inconsistencies in plaintiff's deposition testimony.                              Contrary

to the above-cited testimony, plaintiff also conceded he could

not   specifically           recall    whether      any    of    the    Burnham   packaged




                                              11                                   A-3520-13T4
units had asbestos insulation under the jacket.         In an affidavit

submitted   in   support   of   its   motion,   Burnham's   former   Chief

Engineer and Chief Operating Officer, Donald Sweigart, certified

Burnham began phasing out the use of asbestos insulation in the

metal jacket of boilers "beginning in the late 1940s and early

1950s," completing the process "well before 1959"5 when plaintiff

installed the Burnham boilers.

     In his de bene esse deposition, taken prior to the summary

judgment motions, plaintiff added that he cleaned approximately

twelve Burnham cast iron sectional boilers.             The process of

cleaning a cast iron sectional boiler was "basically the same"

for all boilers.6     Each took approximately half an hour to two

hours to clean.     Plaintiff explained he used a wire brush and

vacuum to clean the fireboxes7 and it was "normal for some of the

asbestos to come loose with the wire brush."




5
   The information contained in this affidavit is contrary to
testimony   provided    by   a   different   Burnham    corporate
representative who stated, during a 2007 deposition, that
asbestos components were used in Burnham boilers until 1993.
6
   During his deposition, plaintiff was asked specifically about
cleaning Bryant boilers.    He later noted the cleaning process
for a cast iron sectional boiler was "basically the same"
regardless of the manufacturer.
7
   Fireboxes were constructed of cement brick put together with
an asbestos-based refractory cement. Plaintiff testified it was
common for fireboxes to break down and decay due to the intense
                                                    (continued)


                                      12                         A-3520-13T4
      Burnham      filed    a     motion    for   summary    judgment,      arguing

summary judgment was appropriate because plaintiff did not know

the dates of manufacture of the boilers he installed nor their

maintenance history.             Burnham also argued plaintiff conceded he

did   not   know    whether       the   Burnham    boilers   he   installed       had

asbestos insulation under their jackets and emphasized Swigert's

affidavit that Burnham no longer used asbestos insulation in its

products by 1959.          Plaintiff countered he had presented evidence

of exposure to asbestos in the cleaning and installation of the

Burnham boilers and established the existence of material issues

of fact.

                                           C.

                                    Carrier Corp.

      Between      1959    and    1968,    plaintiff   recalled    cleaning       and

repairing less than ten Bryant8 boilers that were packaged units

with jackets.       He described seeing dark gray asbestos insulation

through the holes in the jacket of the boilers and stated it was

"very   possible"     he    disturbed      the    asbestos   around   the    boiler

during a repair.            He explained that to repair a leak in a

boiler's supply pipe, it was necessary to replace the asbestos-



(continued)
heat of the oil burner, requiring routine cleaning and
replacement of the cement bricks.
8
   Carrier is the successor to Bryant Heating & Cooling Systems.



                                           13                               A-3520-13T4
insulated pipe, resulting in a disturbance of the asbestos.       In

addition, any work on the boiler itself that required moving the

jacket would disturb the asbestos insulation under the jacket

because "[t]he jackets are not really substantially fastened to

the boiler . . . [s]o when you're moving [the boiler], you were

moving the whole jacket against the boiler . . . [and,] after

time, asbestos becomes brittle and flakes."

    In his de bene esse deposition, plaintiff further recalled

installing one or two Bryant cast iron sectional boilers during

the same timeframe.   Installation of a cast iron section boiler

required

           removal of the existing heating plant, then
           moving the new heating plant into position
           which would include uncrating [the boiler
           to] move into a basement or a boiler room
           that same equipment and assembling it on the
           spot where it's going.    By assembling it,
           you put a base together, install a firebox
           in that base and set the sections on top of
           that base and draw them together with draw
           rods. If the boiler came with a jacket, the
           jacket would be applied at that point.    If
           it did not come with a jacket, then the
           asbestos coating would be applied at that
           point.

                Once   that  jacket  or   coating  is
           installed, then the piping to the house or
           building . . . is connected to the . . .
           boiler.

    Plaintiff also described how he constructed and installed

the fireboxes for cast iron sectional boilers.      Using bricks




                                14                        A-3520-13T4
made    with     a    refractory     material       able    to    withstand          extreme

temperatures, the firebox was

               built up like you would build something with
               building   blocks,  put   together  with  an
               asbestos type cement to hold it in place.
               Once that firebox is built up, you filled in
               the outsides with a Vermiculite type of
               insulation and capped it with an asbestos
               product, either the cement you used to put
               the bricks together or mix-up an asbestos
               powder and capped the top off so the
               Vermiculite did not fly out.

       Plaintiff was able to identify the cement used to construct

the firebox as "asbestos type cement" because "asbestos [wa]s

the only product at the time that you could mix and use as a

bonding       agent   that   would[]withstand         [the]      extreme     heat       of    a

firebox."        The    cans    he   used    were    marked       "asbestos      cement."

Plaintiff also stated the asbestos cement generated dust that

dried on his hands, which he "wiped on [his] clothes or wiped

off on a rag."           He also noted asbestos cement "normally came

with the boiler itself," because "[t]he manufacturer supplied

usually what was needed to put that boiler together."

       Carrier's       corporate     representative,          Howard       E.    Jameson,

conceded       that   Bryant    boilers     produced       between    1938      and      1963

contained asbestos-based components such as jacket insulation

and    rope    gaskets.        The   brochures      for    some    models       of    Bryant

boilers even described the jackets as asbestos-insulated.




                                            15                                       A-3520-13T4
      Carrier      filed     a    motion     for       summary      judgment,     arguing

plaintiff's asbestos exposure from Bryant boilers was minimal.

Carrier    asserted       plaintiff       testified      he   did     not    install    or

remove Bryant boilers, cleaned fewer than ten of them, and could

not specifically identify any unit or the maintenance history of

any boiler he serviced.

      Plaintiff responded he presented evidence of installing new

Bryant     boilers     on    at     least    two       occasions,      disturbing      the

asbestos       insulation    each       time,    and    had   cleaned       or   repaired

twelve    to    fifteen     other    Bryant      boilers.          Plaintiff     asserted

Carrier manufactured and distributed asbestos brick, cement, and

rope gaskets, and admitted those products were used until the

1960s and 1970s.

                                            D.

                                 Cleaver-Brooks Inc.

      During the 1950s, plaintiff cleaned Cleaver-Brooks "pork

chop" oil-fired boilers, although he could not recall a specific

number of times.            He also stated he was present during the

installation of a Cleaver-Brooks boiler.                           These boilers were

approximately eight to ten feet high and eight to twelve feet

long, and each took one to two days to clean.

      When working on these boilers, plaintiff used a wire brush

and   vacuum      to   clean      the    soot      inside     of    the     boiler   and,




                                            16                                   A-3520-13T4
specifically, inside the boiler's firebox.                   The fireboxes were

constructed of firebricks put together with asbestos cement and

sometimes capped with a coat of asbestos.                    Plaintiff could not

identify the manufacturer of the asbestos-containing materials

in the boilers or the boilers' maintenance history or age.

    During        the   same    timeframe,      plaintiff    testified      he    also

cleaned     and    completed      small    repairs,    such     as   cutting      and

replacing leaky tubes on Cleaver-Brook steel fire tube boilers.

Plaintiff stated the cleaning process for a steel fire tube

boiler was the same as other boilers and he was "[d]efinitely"

exposed to asbestos when cleaning them.                 He conceded ignorance

of the maintenance history of the specific steel fire Cleaver-

Brooks boilers he worked on.

    Cleaver-Brooks filed a motion for summary judgment, arguing

plaintiff    failed     to     provide    sufficient   evidence      that    he   was

exposed to any asbestos-containing product it manufactured or

distributed.        Plaintiff could not identify specific models or

their   maintenance       history.         He   also   did    not    identify     the

manufacturer       of    the     asbestos-containing         materials      in    the

fireboxes.

        Plaintiff presented deposition evidence from a Cleaver-

Brooks's corporate representative who affirmed in a different

legal action that some of its boilers contained asbestos and




                                          17                                A-3520-13T4
regular      maintenance     and    cleaning      was    generally     required.

Another representative testified he was unaware of any Cleaver-

Brooks boiler manufactured prior to the 1980s that was made with

non-asbestos cement.

                                         E.

                              Crown Boiler Co.

       During his January 2, 2013 deposition, plaintiff said he

did    not   personally    work    on   any   Crown    Boilers   and   could   not

attribute his asbestos exposure to that product.                     However, in

response to his counsel's questioning during the January 28,

2013 de bene esse deposition, plaintiff testified he cleaned

five    or   six   Crown   Boilers      during   his    plumbing   and   heating

employment.

       Crown Boiler argued it was entitled to summary judgment

because plaintiff had not established he was exposed to any

asbestos-containing        materials     that    it   manufactured,    supplied,

sold, or distributed, and because he failed to produce evidence

that he was exposed to those materials on the frequency required

by Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 30-31

(App. Div. 1989).

       Plaintiff argued, in opposition, that the evidence showed

he had cleaned the fireboxes of Crown Boilers five or six times




                                         18                              A-3520-13T4
with a wire brush and vacuum and it took him up to two hours to

clean each one.

                                     F.

                              Ford Motor Co.

      In 1952, plaintiff worked at Charlie's Auto Repair for six

or seven months where he was exposed to asbestos from brake

linings and mufflers.        He estimated he performed three brake

jobs and two or three muffler jobs at this employment using

Bendix replacement brakes and Marmont mufflers.            He did not know

if any of the brakes he worked on were original to the cars.

      For six months in 1953, plaintiff worked at a "machine

shop" called Modern Motors.        He spent five days a week operating

the brake lathe that cut brake drums, fitting new brake shoes to

the   drums,   and    installing   brake   linings.   He    testified   the

asbestos drums created dust when they were being set up, wiped

out, and cut.        The majority of the drums "were original lined"

and plaintiff estimated approximately twenty-five percent of the

drums he worked on at Modern Motors were made by Ford.

      Plaintiff submitted documents from Ford reflecting dozens

of its vehicles used asbestos for the rear brake drums and front

disc brake linings for several decades.         In a 1985 letter to the

Environmental Protection Agency, Ford explained it purchased all

of the brake systems installed on its vehicles from outside




                                     19                           A-3520-13T4
manufacturers.         Ford recommended the EPA "not seek to regulate

the use of asbestos in the brakes" of vehicles that currently or

previously had been manufactured with asbestos-containing brake

systems.

      In addition to his professional automotive work, plaintiff

encountered      Ford    brakes    as    part   of   his   hobby   of   restoring

antique    cars.        Among    other   vehicles,    he   owned   a    1932   Ford

Roadster, a 1934 Ford pickup truck, a 1949 Ford sedan, a 1950

Mercury,   and     a    1953    Ford   pickup   truck.     In   1957,   plaintiff

performed a brake job on the 1953 Ford.9                    In or about 1997,

plaintiff changed the drum brakes for all four wheels on the

1934 Ford.       He recalled the brake shoes had been updated to

"1950 to '53 Ford F100 brakes on the front and a 1957 Ford rear

end in it" but he was unable to identify the manufacturer of the

existing brake linings.            Plaintiff "sent the drums out to make

sure they were perfectly round" and when they returned, he put

the Ford brake shoes back on the car with new Bendix brake

linings.

      In 2009, plaintiff performed a brake job on his 1949 Ford,

which had its original 1949 Ford brakes.                    He was exposed to

asbestos dust when he removed the rear brake drums.                       He also




9
    Plaintiff purchased this car new.



                                          20                              A-3520-13T4
removed    the      Ford   engine      from    the     car    and    cleaned     the   old

asbestos gaskets.

       Plaintiff replaced the brakes on a 1950 Mercury when he

purchased that car in the mid-1980s.                      He was unable to identify

the manufacturer of the old brakes because they were so worn

down.     He replaced them with Bendix brand brakes.                            Plaintiff

also replaced the exhaust and intake gaskets on three of the

Ford    cars   approximately        seven      times.        He     did   not   know    the

manufacturer of the original gaskets he removed.

       In its motion for summary judgment, Ford did not dispute

plaintiff      was    exposed       to    some       of    its    asbestos-containing

products    while     working     as     an    automotive        professional.         Ford

argued,    instead,        that   plaintiff's         exposure      to    asbestos     from

changing the brakes on his personal vehicles was minimal.

       In response, plaintiff argued the evidence showed that as a

professional mechanic, he worked on hundreds of "Ford, original

brake drums," which took five to ten minutes per drum, and fifty

to sixty percent of those drums had never been cut or worked on

before.        He     further     contended          the     evidence      showed      Ford

manufactured its own brakes for use with its cars and standard

procedure required the drums be ground flat to accept a new

brake   shoe.        While    performing           repairs   on     his   personal     Ford

vehicles and for six or seven months while employed at another




                                              21                                 A-3520-13T4
auto repair shop, plaintiff noted the brake systems required the

use of asbestos and were designed to be replaced with asbestos

linings.

                                       G.

                           Johnson Controls Inc.

    During his employment with Powers, plaintiff testified he

repaired approximately one dozen Johnson Controls steam and hot

water valves at the University of Medicine and Dentistry in New

Jersey (UMDNJ).      A repair entailed changing the stem packings,

which involved "taking the stem packing nut out, digging the

packings out, and replacing them."                The work took from one to

four hours to complete.       Plaintiff knew the stem packing on the

valves was asbestos.       He did not know the service history of any

of the valves or the components.

    Johnson       Controls'       corporate         representative,         Robert

Franecki, testified in his deposition that Johnson Controls sold

replacement   asbestos       packing        for   its   valves.        He     also

acknowledged it was feasible for the company to place a warning

tag on the valve itself or in a manual.

    In its application for summary judgment, Johnson Controls

argued   plaintiff   did    not   know      who   manufactured    or   supplied

either the existing packing that he removed or the new packing

he used as replacement in his work replacing stem packing and




                                       22                               A-3520-13T4
valves at UMDNJ.      Plaintiff conceded he was unable to identify

the manufacturer of the packing, but argued Johnson Controls

supplied its valves with asbestos components and knew they would

be replaced with like components.           According to Franecki, the

company also knew the replacement process would expose people to

dangerous asbestos dust and it could have warned them of the

danger but did not.

                                   H.

                               NIBCO Inc.

    Plaintiff installed new NIBCO brand valves in one of his

homes and as part of his work at Franklin Lowe.            He admitted it

was unlikely he was exposed to asbestos during the installation

of new valves, but would have been exposed to asbestos while

replacing the packing.

    The exposure to asbestos occurred when cutting up the new

packing and from "digging the old packings out, cleaning up

where it was."     If a valve was leaking, the first repair would

be to "tighten down on the packing nut . . . to see if there's

anything left in there" and then repair it if that did not work.

NIBCO   valves   failed   infrequently,   however,   and   "it   was   much

easier and cheaper . . . to put the packing in rather than put a

new valve in."       The valves' design required the replacement

packing be the same type as the original.            Plaintiff did not




                                   23                             A-3520-13T4
know the repair history of any of the valves he worked on or

whether the packing he pulled out came from a manufacturer other

than NIBCO.

       In moving for summary judgment, NIBCO argued there was no

evidence plaintiff was exposed to asbestos from NIBCO valves as

plaintiff admitted he was not exposed during installation and

the valves failed infrequently.                 Plaintiff countered that the

evidence      showed    he   was    exposed     to   friable    asbestos   when   he

removed original packing.

                                          I.

                                   Oakfabco Inc.10

       Plaintiff first encountered oil-fired Kewanee boilers in

the 1950s and he worked on or around them "[r]ight up to the day

[he] retired."         The commercial boiler was six to nine feet high

and     ten    to      twelve      feet   long.      Plaintiff      cleaned    them

approximately one to two dozen times, but he never installed,

repaired or removed one.              Cleaning required plaintiff to "go

into the firebox area, and wire brush whatever was accessible

from that point, open the front and back doors, brush that all

down, vacuum it out and inspect the tubes."

       Plaintiff       asserted     he    was    exposed       to   asbestos   from

"[d]isturbing the asbestos around the boiler, [and] replacing

10
      Oakfabco is the successor to Kewanee Boiler Corp.



                                          24                               A-3520-13T4
any gaskets that would be on the doors."                He also stated it was

"possible"    the       material   being    vacuumed     contained     asbestos,

because the cleaning disturbed the refractory cement inside the

firebox and vacuuming blew the dust back into the room.

    Plaintiff did not know who manufactured or supplied the

asbestos around the boiler and in the fireboxes, or the old

gaskets    that    he    replaced,   nor    did   he    know   the   maintenance

history of any of the boilers.

    Oakfabco argued it was entitled to summary judgment because

plaintiff was unable to show he was exposed to any asbestos as a

result of cleaning a Kewanee boiler or to any asbestos sold with

the boiler.       It was undisputed plaintiff had never installed or

removed a Kewanee boiler.          And, although he cleaned them, he was

unable to provide any specific information as to the location,

model,    year,    or    maintenance   history     of    any   of    the   Kewanee

boilers.

    In opposition to the motion, plaintiff reiterated he had

testified to cleaning the fireboxes and removing and replacing

gaskets on one to two dozen Kewanee dry back boilers – a very

specific type of boiler.             That process required brushing and

scraping the inside of the asbestos-containing firebox, which

took up to two hours for each boiler.




                                       25                                  A-3520-13T4
      During      oral    argument     before    the       trial   court,     plaintiff

stated     he    was   "not   necessarily       arguing"      he     was   "exposed     to

asbestos        that     Kewanee   actually         manufactured,"         but     rather

contended        Kewanee      manufactured       and       distributed        asbestos-

containing       boilers,     specified       how     to     clean     the    asbestos-

containing fireboxes of its boilers, mandated replacement of its

asbestos-containing gaskets, and failed to warn plaintiff about

it.   Because the cement manufacturer could not place a warning

on its cement inside the boilers, plaintiff contended it was

Kewanee's responsibility to provide the warning on the boiler

itself.

                                         II.

      On    appeal,11      plaintiff    argues       defendants        were      strictly

liable for their failure to warn users of the asbestos-related

hazards of their products, inclusive of any component parts,

including those hazards associated with routine maintenance and

replacement, regardless of whether defendants manufactured or

supplied        the    asbestos-containing           hazardous        components        or

replacement parts.

      Defendants assert settled principles of product liability

law in New Jersey require a plaintiff to demonstrate he or she

11
    Although the complaint presented multiple causes of action
against defendants, the parties and trial court only addressed
plaintiff's allegations of strict liability.



                                         26                                      A-3520-13T4
was exposed to asbestos and suffered injury from a defect in a

defendant's own product.              Defendants contend the focus is on the

alleged injury-producing asbestos product itself, alleviating a

manufacturer from liability for an asbestos-containing component

or replacement part it did not manufacture or supply.

      To     prevail    on    a    strict   liability        claim,       plaintiff   must

present proof "that the product was defective, that the defect

existed when the product left the defendant's control, and that

the   defect    caused       injury    to   a    reasonably        foreseeable      user."

Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 49 (1996) (quoting

Feldman v. Lederle Labs., 97 N.J. 429, 449 (1984)).                              A failure

to warn product liability action is premised on the theory that

the product is defective because, absent a warning, the product

was   not     reasonably      fit,     suitable        or   safe    for    its    intended

purpose.      Coffman v. Keene Corp., 133 N.J. 581, 593-94 (1993).

The defect in the product is the absence of a warning that the

product has the potential to cause injury.                    Ibid.

      A     plaintiff    must       satisfy      two    elements      to    establish      a

product liability claim arising from allegations that he or she

was harmed by a product that was defective because it failed to

warn of asbestos-related hazards associated with its use.                               Id.

at    594.      First,       the    plaintiff      must      prove    "product-defect

causation" by demonstrating the defect existed when it left the




                                            27                                    A-3520-13T4
defendant's control and the defect was a proximate cause of the

plaintiff's injury.           Ibid.

    Second,       in    all    cases     involving      occupational         exposure       to

toxic materials, including asbestos failure to warn cases, the

plaintiff must also prove "medical causation" by demonstrating

"his or her injuries were proximately caused by exposure to

defendant's      asbestos          product."          Ibid.       A     plaintiff         must

demonstrate his or her exposure to a defendant's product "was a

substantial      factor       in    causing     or    exacerbating       the      disease."

James    v.   Bessemer     Processing          Co.,    155    N.J.    279,     299     (1998)

(quoting Sholtis, 238 N.J. Super. at 30-31).

    Against that backdrop, we consider whether defendants are

liable for a failure to warn of asbestos-containing components

or replacement parts necessary to the function of their product,

but not manufactured by them.                    In our consideration, we are

guided   by     prior    case      law   and    established       principles         in    our

jurisprudence.

    In Molino v. B.F. Goodrich Co., 261 N.J. Super. 85 (App.

Div. 1992), we determined a manufacturer could be held strictly

liable    for    injuries       caused    by    a     component       part   it    did     not

manufacture if the two products were designed to be used as a

unit.    There, plaintiff was attempting to change a flat tire on

a dump truck.           Id. at 90-91.           As he did so, the spare tire,




                                           28                                        A-3520-13T4
already inflated and mounted on a rim assembly, exploded as

plaintiff was installing the unit to the truck.                     Id. at 91.

Plaintiff brought suit against the tire manufacturer,12 Uniroyal

Goodrich Tire Company,13 and others.          Id. at 89.

       At trial, plaintiff's expert conceded the tire itself was

not defective.      Id. at 90-91.     The expert further testified the

tire was made to be used with the multi-piece rim assembly and

the industry was aware the assemblies were problematic.                  Id. at

93.     He stated, "[i]t takes the whole assembly," including the

tire, "for this to happen."          Ibid.     The expert opined that air

should have been put into the tire only after the assembly was

locked into place on the truck.              Id. at 91. As a result, the

tire    should   have   contained   warnings,    including     a    warning   to

secure the tire to the truck before inflation.             Ibid.

       This court reversed the trial judge's rulings barring the

expert's evidence and granting a directed verdict for Uniroyal.

Id. at 94.       We determined the judge should have allowed the

expert's testimony. Ibid.           Because the tire and rim assembly

were designed to be used together, we stated: if the jury was

convinced     the   tire   manufacturer       "should   have       foreseen    or


12
    Prior to trial, a settlement was reached with the other
defendants, including the manufacturer of the rim.
13
      Uniroyal Goodrich was improperly pled as B.F. Goodrich.



                                      29                               A-3520-13T4
actually knew of the dangers involved with the rim assemblies

used with its product, [it should] consider [the manufacturer's]

duty to provide an adequate warning . . . reasonably foreseeable

to users."    Ibid.

    Molino, therefore, provides precedent for a manufacturer to

be held strictly liable for injuries caused by a component part

it did not manufacture if the two products were designed to be

used as a unit.       In a case decided the same year as Molino, we

established a manufacturer might still have a duty to warn of

the dangers in its machine as originally manufactured, even if

major components of the machine have been replaced prior to a

plaintiff sustaining harm.

    In Seeley v. Cincinnati Shaper Co., plaintiff was injured

while   working       on   a   press     brake     originally     designed,

manufactured, and sold by defendant.           256 N.J. Super. 1, 4 (App.

Div. 1992).    The machine had been substantially altered prior to

its sale to plaintiff's employer.         Id. at 5.      Defendant argued

it had no duty to warn of the dangers inherent in the machine as

originally manufactured, because major components of the machine

had been replaced.         Id. at 18.      We rejected that argument,

noting the replacement parts either "were irrelevant" to the

circumstances of the accident "or could reasonably have been

contemplated   by     defendant."      Ibid.      With   the    changes,   we




                                    30                              A-3520-13T4
reasoned the manufacturer's "portion of the remaining machine

could be thought of as a component part of the machine as it

existed at the time of the accident" and "the manufacturer of

even a component part may be liable for a . . . warning defect."

Ibid.

      Here, it is undisputed defendants' products as originally

marketed had asbestos–containing component parts.                       Defendants

have not argued they were unaware these component parts would be

replaced    regularly     as     part   of    routine   maintenance       on    their

products.     Instead, they assert the duty to warn does not extend

to replacement parts they did not manufacture or distribute.

      Shortly after the entry of the summary judgment orders in

this case, we considered defendants' responsibility for the duty

to   warn   of   danger     in   replacement      parts    in    Hughes    v.    A.W.

Chesterton Co., 435 N.J. Super. 326 (App. Div. 2014).                     There, we

held a manufacturer has a duty to warn of the dangers from

asbestos in replacement parts when its product required the use

of asbestos component parts.            Id. at 338-47.

      In    Hughes,   the      plaintiffs      sought     to    hold   liable     the

manufacturers of a pump with asbestos-containing component parts

-- gaskets and packing -- for their exposure to the asbestos in

those component parts that had been replaced years after the




                                         31                                A-3520-13T4
pumps left the defendants' control.      Id. at 332-33.      Relying on

Molino and Seeley, the panel found the

           asbestos-containing   gaskets   and  packing
           posed an inherent danger in the pumps as
           originally manufactured.      The fact that
           these component parts would be replaced
           regularly as part of routine maintenance did
           not absolve [defendant] of any duty to warn
           because it was reasonably foreseeable that
           these components would be replaced as part
           of regular maintenance.

           [Id. at 341.]

    Like   the   manufacturers'   products   here,   the   defendant   in

Hughes acknowledged its pump would require replacement gaskets

and packing during routine maintenance.      See ibid.     As a result,

the Hughes court concluded

           it was reasonably foreseeable, at the time
           the pumps were placed into the marketplace,
           that the gaskets and packing would be
           replaced regularly with gaskets and packing
           that contained asbestos.   [Defendant] could
           not rely upon plaintiffs' employers or
           others responsible for the replacement parts
           to issue a warning to employees because the
           duty to warn is nondelegable.

           [Ibid.]

    The Hughes court, therefore, extended the duty to warn not

only to workers who were exposed to the products as originally

manufactured, but also to "those workers who came into contact

with the component parts as part of regular maintenance."              Id.




                                  32                            A-3520-13T4
at 342.     As a result, the panel determined the product-defect

causation element was met.             Ibid.

     However, the Hughes court reached a different conclusion

on the medical causation element, declining to extend liability

to a manufacturer if the plaintiff's injuries were caused solely

by replacement parts, because he or she had never been exposed

to the original asbestos-containing components supplied by the

manufacturer.       See id. at 343-46.            The panel found plaintiffs

could not prove causation without showing exposure to an injury-

producing element in the product that was manufactured or sold

by the defendants.         Id. at 346.         That product, according to the

court, was only the manufacturer's pump, and did not include its

component parts.        Id. at 345-46.

    It     is   there     that    we    part    ways   and   disagree        with   our

colleagues in Hughes, as we discern the limited definition of

"product"   employed      by     that   panel    is    inconsistent     with     deep-

rooted principles of product liability under New Jersey law.

    It is well-established in this state's products liability

jurisprudence      that   a    manufacturer      may    be   held    liable     for    a

failure to warn of the dangers of its product, even if the

product has undergone substantial alteration, as long as the

alteration did not affect the defect at issue.                     "[I]f the defect

which,    singly   or     in   combination,      caused      the    injury    existed




                                          33                                  A-3520-13T4
before, as well as after, the change, the manufacturer is not

relieved of liability, regardless of how much the product has

been changed."        Michalko v. Cooke Color & Chem. Corp., 91 N.J.

386, 400 (1982); accord Becker v. Baron Bros., 138 N.J. 145, 151

(1994); O'Brien v. Muskin Corp., 94 N.J. 169, 179-80 (1983);

Koruba v. Am. Honda Motor Co. Inc., 396 N.J. Super. 517, 524-25

(App. Div. 2007); Levey v. Yamaha Motor Corp., U.S.A., 361 N.J.

Super. 312, 318 (App. Div. 2003).

       Pursuant to Michalko and its progeny, our courts assess a

manufacturer's       liability       for    a     defective       product    by    the

condition     of    the   product     when      it     left     the    manufacturer's

control.     A product that contained asbestos when it was supplied

by the manufacturer, with no warning as to the dangers posed by

the asbestos-containing component, and that contained asbestos

when    encountered       by     a   worker        years      later,     remains    in

substantially the same defective condition, whether or not its

original asbestos has          been replaced with other asbestos.

       The   "product,"        against     which      a    worker's     exposure    to

asbestos     is    measured,    is   not    the      asbestos    contained    in   the

pump's component parts, as stated in Hughes.                      The "product" is

the complete manufactured item as delivered by the manufacturer

to the consumer, not just the asbestos contained in one of the

product's components.          In Hughes, the whole pump supplied by the




                                           34                                A-3520-13T4
defendants was defective, because it did not carry a warning

about the dangers of asbestos in its components.                                   Here, it is

the boiler, valve, steam trap, brake systems, and the component

parts integral to their function that is the product.

       To    define        the    "product"       as     the   manufacturer's         complete

product       as     marketed         and   distributed         to       the    end   user     is

consistent with our holding in Seeley as well as our Supreme

Court's       holdings        extending       liability        to    a    manufacturer       for

foreseeable alterations to its product.                         See Jurado v. W. Gear

Works, 131 N.J. 375, 386 (1993) (reasoning "[t]he concept of

foreseeable misuse extends to cases in which a product has been

substantially altered from its original design"); Brown v. U.S.

Stove       Co.,    98     N.J.    155,     169    (1984)      (holding        a   defect-free

product "extends to one that is suitably safe after it has been

. . . foreseeably altered"); Lewis v. Am. Cyanamid Co., 294 N.J.

Super. 53, 68 (App. Div. 1996) (reasoning the Court "has held

that a product is defectively designed if it is not designed to

be     as     safe       as      reasonably       feasible      under          conditions      of

foreseeable misuse"), aff'd in part, modified in part, 155 N.J.

544, 559 (1998); see also Restatement (Second) of Torts § 402A

(Am.    Law        Inst.      1965)    ("[o]ne         who   sells       any   product    in    a

defective          condition       unreasonably          dangerous        to    the   user     or

consumer . . . is subject to liability for physical harm . . .




                                                  35                                   A-3520-13T4
caused to the ultimate user or consumer . . . if . . . it is

expected     to   and   does    reach    the          user    or    consumer           without

substantial change in the condition in which it is sold").14

     Here, it was foreseeable, at the time defendants placed

their products into the marketplace, that asbestos-containing

component parts of the product would be replaced with similar

asbestos-containing parts.             Replacing an original part with a

substantially      similar      part     is       a     foreseeable                alteration.

Therefore, the replacement of the asbestos did not substantially

alter either the injury-producing element or the defect.

     Employing     this   definition         of   "product"             is    a     reasonable

conclusion, following the concepts established in Michalko and

the myriad of cases following it, and continuing in the vein of

Molino and Seeley.        Therefore, we conclude that a manufacturer

will have a duty to warn in strict liability if a plaintiff can

show: 1) the manufacturer's product as marketed to the end user

contained     asbestos-containing         components;              2)        the     asbestos-

containing    components       were    integral        to    the    function           of   the

product;    and   3)    the    manufacturer           was    reasonably             aware   its

product would require periodic and routine maintenance involving

14
   See also Restatement (Second) of Torts                    § 402A cmt. g (Am. Law
Inst. 1965) ("The burden of proof that                       the product was in a
defective condition at the time that it                      left the hands of the
particular seller is upon the injured                         plaintiff." (Emphasis
added)).



                                        36                                            A-3520-13T4
the replacement of the asbestos-containing component parts with

other asbestos-containing component parts.                      Under these limited

circumstances,          the    manufacturer's       liability    for    a    failure    to

warn    extends        to     the    danger     created    by   the    component        and

replacement parts.

       We are satisfied the imposition of such a duty does not

offend basic principles of fairness and public policy that must

be accorded to all parties.                Olivo v. Owens-Illinois, Inc., 186

N.J. 394, 401-03 (2006) (holding "considerations of fairness and

policy govern whether the imposition of a duty is warranted").

As stated in Hughes, "a warning given at the time of the initial

sale would ensure that this information was available to be

considered        in       subsequent    decisions     regarding       the    choice     of

replacement parts and any additional safeguards for workers who

made the replacements."                 435 N.J. Super. at 343.               We assume

today, as we did then, that the cost of including a pump on each

of defendants' products would have "little, if any, effect on

[the] product's utility."                 Ibid. (quoting Campos v. Firestone

Tire & Rubber Co., 98 N.J. 198, 207 (1984)).

        How   a       manufacturer's      product     is   defined     appears     to    be

determinant       in       other    states'    consideration     of    this    issue    as

well.    Is       a    "product"        only    the    item     fabricated       by     the

manufacturer          or    does    a   "product"     include   asbestos-containing




                                               37                                A-3520-13T4
component       and     replacement          parts     necessary      to    maintain            its

functionality?

       In       considering               appellate      authority           from          other

jurisdictions,          there        is    no   clear    majority      rule        as      to     a

manufacturer's duty to warn for exposure to asbestos-containing

replacement component parts required for the function of its

product. The recent trend, however, appears skewed towards the

imposition of liability on manufacturers even where the worker's

exposure was to replacement parts, where the original product

was manufactured with asbestos-containing parts.                            See, cf., May

v.   Air    &   Liquid    Sys.        Corp.,     129    A.3d   984,    995        (Md.     2015)

(defining asbestos-containing component parts as the "product"

and imposing a duty to warn when the manufacturer's product "not

only has asbestos components, but also cannot function properly

without     these      hazardous          components,    and   a    [worker]        will        be

exposed to the asbestos during necessary, periodic replacement

of the parts with other asbestos-containing parts"); Poage v.

Crane Co., 523 S.W.3d 496, 511, 514-15 (Mo. Ct. App.), transfer

denied, 2017 Mo. LEXIS 375 (Mo. Aug. 22, 2017), cert. denied sub

nom, Crane Co. v. Poage, ___ U.S. ___ (2018) (slip op. at 2)

(holding a manufacturer could be held liable under a duty to

warn    theory        where     it    provided        valves   that        used    asbestos-

containing       gaskets        and        packing,     and    also        specified            and




                                                38                                      A-3520-13T4
identified asbestos-containing replacement parts as proper for

replacing the original valves); In re N.Y.C. Asbestos Litig., 59

N.E.3d 458, 463-78 (N.Y. 2016) (extending duty to warn of the

dangers   of    asbestos-containing               parts     manufactured        by   a    third

party when the manufacturer's product required those parts as a

matter of design, mechanics, or economic necessity even if the

manufacturer had not originally provided those components when

it   supplied    its       product    to    the     end     user);       McKenzie    v.    A.W.

Chesterson      Co.,       373   P.3d      150,    155-56        (Or.     Ct.   App.      2016)

(defining "product" as the pump sold by the manufacturer to the

end user including the asbestos-containing gaskets and packing);

Macias    v.    Saberhagen       Holdings,        Inc.,      282    P.3d    1069,     1076-77

(Wash.    2012)       (assigning        liability           to     manufacturers          whose

products, when "used exactly as intended and cleaned for reuse

exactly    as    intended[,]         inherently        and       invariably      posed      the

danger of exposure to asbestos"); see also Chesher v. 3M Co.,

234 F. Supp. 3d 693 (D.S.C. 2017) (recognizing the majority of

states have rejected the bare metal defense).

      Other     states      have     adhered      to   the       "bare    metal"     defense,

first    used    as    a    bright-line      rule      in    federal       maritime       cases

considering the scope of a defendant's liability for dangers of

asbestos-containing products on ships.                       See Devries v. GE, 188

F. Supp. 3d 454, 462 (E.D. Pa. 2016).                       That defense declines to




                                             39                                      A-3520-13T4
recognize,     under      any    theory    of     liability,      a   manufacturer's

liability for harm caused by any actual asbestos products that

it did not manufacture or supply.                 Lindstrom v. A-C Prod. Liab.

Tr., 424 F.3d 488, 492-96 (6th Cir. 2005).

       In   O'Neil   v.    Crane    Co.,    266    P.3d    987    (Cal.     2012),   the

plaintiff     worked      on    valves    and   pumps     that    used    gaskets    and

packing containing asbestos.              Id. at 992.       He did not work with

the products until more than twenty years after the defendants

supplied their equipment to the Navy.                   Id. at 993.         Therefore,

the original asbestos-containing components supplied with the

products had long been replaced.                Ibid.     Because California law

limited a duty to warn "to risks arising from the manufacturer's

own product," the California Supreme Court found no duty to warn

of hazards from the exposure to asbestos that occurred during

maintenance work on the defendants' pumps and valves.                           Id. at

997.

       In noting the lack of evidence that the valves or pumps

required      asbestos-containing           components           to   operate,       the

California Supreme Court acknowledged the analysis for failure

to warn might be different for a product that required the use

of a defective component for its proper function.                           Id. at 996

n.6.    The court noted, under those circumstances, the finished

product     would      necessarily        incorporate       a     defect,     and    the




                                           40                                  A-3520-13T4
replacement of the original defective part with another equally

defective part supplied by another manufacturer "would not break

the chain of causation."                Ibid.     In addition, "if the product

manufacturer       specified      or     required       the     use   of     a    defective

replacement     part,      a    stronger        case    could    be       made    that   the

manufacturer's       failure       to    warn         was   a   proximate        cause    of

resulting injury."         Ibid.15

       In companion cases decided on the same day, the Washington

Supreme    Court    also       considered       the    issue    of    a   manufacturer's

liability for harm caused by asbestos in the context of both

asbestos-containing parts made and supplied by a third party for

use with the defendants' products, Simonetta v. Viad Corp., 197

P.3d     127,   129-38     (Wash.       2008),        and   replacement          parts   for

original asbestos-containing parts supplied by the manufacturer.

Braaten v. Saberhagen Holdings, 198 P.3d 493, 495-504 (Wash.

2008).




15
    Subsequent courts considering this issue have commented that
O'Neil did not foreclose on the possibility of liability for
component parts a manufacture did not fabricate or distribute.
See, e.g., Willis v. Buffalo Pumps, Inc., 34 F. Supp. 3d 1117,
1123 (S.D. Cal. 2014) (noting O'Neil limited a defendant's
liability for third party components but did not eliminate the
possibility of such liability); Schwartz v. Abex Corp., 106 F.
Supp. 3d 626, 644 n.58 (E.D. Pa. 2015) (observing O'Neil
"contains indications of potential exceptions" to the bare metal
defense).




                                            41                                     A-3520-13T4
       In Simonetta, the defendant manufactured an evaporator, a

distilling plant that converted seawater to freshwater.                           197

P.3d at 129.        After the manufacturer delivered the evaporator,

the Navy or another entity insulated it with asbestos mud and

cloth products made and provided by a third party.                   Id. at 129-

30.     The   evidence    revealed    the    evaporator      required   asbestos

insulation     to    function    properly,      the    insulation       contained

asbestos, and the defendant knew, or should have known, the

insulation would be disturbed during normal maintenance.                     Id. at

131.

       In analyzing the nature of the "product," the Washington

court determined the "completed product was the evaporator," as

delivered by defendant, without any asbestos insulation.                     Id. at

138.    As strict liability attaches only when a manufacturer has

sold   an   unreasonably    dangerous       product,   and    the   unreasonably

dangerous     product    here   was   the   asbestos   insulation,       not      the

evaporator, the court declined to impose a duty.                    Ibid.      "[I]t

was not the evaporator, but the dangers inherent in the asbestos

insulation, a product [defendant] did not manufacture or supply,

that was the proximate cause of [plaintiff's] alleged injury."

Id. at 136.

       In Braaten, the defendants manufactured valves and pumps.

198 P.3d at 495.          Some of their products contained asbestos




                                       42                                   A-3520-13T4
gaskets and packing, which were manufactured by other companies

but installed by the defendants into the pumps and valves prior

to sale.     Ibid.    The manufacturers did not dispute liability for

the failure to warn of the dangers from asbestos in the parts

they originally supplied with the product.               Id. at 501.       Rather,

they asserted strict liability principles did not support the

imposition    of     liability   for    replacement      parts    they     had   not

manufactured or distributed.           Id. at 501-02.

    The    Washington      Supreme     Court    relied    on   its    holding     in

Simonetta, concluding there was no duty to warn for replacement

gaskets and packing.       Id. at 501.       However, the court advised:

           we need not and do not reach the issue of
           whether a duty to warn might arise with
           respect to the danger of exposure to
           asbestos-containing products specified by
           the manufacturer to be applied to, in, or
           connected to their products, or required
           because of a peculiar, unusual, or unique
           design.

           [Id. at 504.]

Subsequently in Macias, the Washington court stated: "While the

chain-of-distribution       requirement        is   undoubtedly      the   general

rule . . . it is not absolute." 282 P.3d at 1080; see also

Morgan v. Bill Vann Co., 969 F. Supp. 2d 1358, 1364-67 (S.D.

Ala. 2013) (applying bare-metal defense/predicting Alabama would

adopt it); Faddish v. Buffalo Pumps, 881 F. Supp. 2d 1361, 1368-

72 (S.D. Fla. 2012) (applying bare-metal defense, finding it



                                        43                                 A-3520-13T4
consistent with Florida law); Thurmon v. A.W. Chesterton, Inc.,

61 F. Supp. 3d 1280, 1284-86 (N.D. Ga. 2014) (applying bare-

metal defense/predicting Georgia would adopt it), aff'd sub nom,

Thurman    v.   Ga.    Pac.,    650   Fed.     Appx.    752    (11th        Cir.    2016);

Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1043 (D. Haw. 2013)

(holding, "under maritime law, a manufacturer is not liable for

harm caused by, and owes no duty to warn of the hazards inherent

in, asbestos-containing replacement parts that the manufacturer

did not manufacture or distribute"); Woo v. Gen. Elec. Co., 393

P.3d 869, 876 (Wash. Ct. App. 2017) (denying summary judgment to

manufacturer and affirming Washington's exceptions to the bare

metal defense).

       While    noting    the    doctrinal      trends        of     other    appellate

courts,    we   reach    the    result    enunciated         today    after    weighing

policy considerations, guided by the principles that are the

bedrock of our jurisprudence, and as a natural progression from

the decisions that have come before.

       A   defect      that     existed      when      the     product        left       the

manufacturer's        control   is    neither    ameliorated          nor    diminished

when it arises from a component that has been replaced with a

component that contains the identical injury–producing element.

That   well-established         principle      governs       our   definition         of    a




                                          44                                       A-3520-13T4
product for purposes of determining a manufacturer's liability

for an asbestos-containing replacement part.

    We are confident this limited "common sense" approach to

refining    a     manufacturer's    duty     in    the    context    of   asbestos

exposure cases alleviates the concerns expressed by the Hughes

panel.      In    declining   to    extend     liability       to   the   original

manufacturer for a replacement part it did not manufacture, the

court explained:

            If that were the case, a manufacturer or
            seller who failed to give a warning could be
            strictly liable for alleged injuries long
            after the product entered the marketplace
            even if the injury-producing element of the
            product no longer existed.    The imposition
            of liability [for replacement component
            parts] . . . would [also] fail to limit
            liability "only to those defendants to whose
            products the plaintiff can demonstrate he or
            she was intensely exposed."

            [Hughes, 435 N.J. Super. at                  346   (quoting
            James, 155 N.J. at 302-03).]

    Defendants echoed these arguments in their summary judgment

motions and before this court, asserting plaintiff could not

satisfy     the     "frequency,      regularity          and    proximity"    test

enunciated in Sholtis and adopted by the Supreme Court in James.

In James, the Court determined in cases where the plaintiff

alleged exposure to asbestos from multiple defendants, he or she

could    establish    a   prima    facie    case   of     medical   causation    by

showing "an exposure of sufficient frequency, with a regularity



                                       45                                 A-3520-13T4
of contact, and with the product in close proximity."                            155 N.J.

at 301 (quoting Sholtis, 238 N.J. Super. at 28).

     We are satisfied our ruling today remains consistent with

the proofs required under Sholtis and James.                       A plaintiff in an

asbestos failure to warn case must continue to establish medical

causation    through     exposure    to       the   defendant's          complete,          as

marketed product.

     In     opposing    summary     judgment,         a    plaintiff          must        still

produce evidence from which a fact-finder, after assessing the

proof of frequency and intensity of plaintiff's contacts with a

particular manufacturer's asbestos-containing product, including

all necessary component or replacement parts, could reasonably

infer     toxic   exposure.        Sholtis,         238     N.J.       Super.        at     29.

Plaintiff    must    also   show   his    or    her       exposure      was    more        than

casual or minimal.          Goss v. Am. Cyanamid, Co., 278 N.J. Super.

227, 236 (App. Div. 1994).               If the product did not contain

original     asbestos       component     parts           and    did     not         require

replacement asbestos parts, or plaintiff cannot demonstrate he

or   she     used      asbestos-containing            replacement         parts,            the

manufacturer is absolved of its responsibility to warn.

                                     III.

     We     review     orders   granting        summary         judgment        de        novo,

applying the same standard as the trial court.                      Templo Fuente De




                                         46                                      A-3520-13T4
Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.

189,    199   (2016).       Viewing    the       evidence         in   the   light      most

favorable to the non-moving party, we must decide whether the

moving    party     was   entitled    to    judgment        as     a   matter    of     law.

W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012).                           Summary judgment

should not be granted where there are disputed issues of facts

material to the legal conclusion.                    Taylor v. Metzger, 152 N.J.

490, 514 (1998).          In reviewing a summary judgment decision, the

factual findings of the trial court are accorded substantial

deference on appeal, but no special deference is owed to the

trial     court's     interpretation            of    the    law       and   the       legal

consequences that emanate from established facts.                             Manahawkin

Convalescent v. O'Neill, 217 N.J. 99, 115 (2014).

       We turn, then, to the evidence in the record.                            As noted,

the     product-defect      causation       element         has    been      met.         The

defendants may be held liable for the failure to warn of the

dangers associated with the asbestos contained in their product

– inclusive of component parts it did not manufacture or supply.

That liability extends to the failure to warn of the dangers

from cleaning, repairing, and replacing the asbestos-containing

components as none of those activities substantially changed the

product or mitigated the danger.                     The fact that plaintiff was




                                           47                                       A-3520-13T4
exposed to a replacement part, rather than an original part,

will not eliminate a defendant's liability.

       We have also determined, viewing the evidence in the light

most    favorable     to   plaintiff,          that    he   presented       sufficient

evidence    detailing       his    exposure       to    asbestos,         either      from

original    parts     supplied     by   defendants          or    replacement        parts

required    for    the   function    of    defendants'           products    to    create

issues of fact as to each defendant.

       With regard to the boiler defendants — Burnham and Carrier

—    plaintiff     identified     asbestos      insulation        under     the    boiler

jacket.     Installing and working on the units created asbestos

dust.     Plaintiff also built and cleaned fireboxes requiring the

use of asbestos cement.

       The room-size boilers of Cleaver-Brooks and Oakfabco took

two days to clean.         The cleaning included work done on fireboxes

constructed of bricks held together and capped with asbestos

cement.     None of the contact described by plaintiff with these

boilers was casual or minimal.                 It is undisputed the products,

as     marketed,     contained      asbestos          components      and     required

periodic, routine replacement.             Plaintiff noted asbestos cement

was the only product available during the relevant years that

could withstand the "extreme heat" of a firebox.                       He also noted




                                          48                                      A-3520-13T4
the   asbestos     cement        was   supplied     with     the    boiler    as       it   was

needed for the installation and operation of the product.

       When queried about his contact with Crown Boiler products

during his January 2, 2013 deposition, plaintiff said he did not

personally work on any Crown boilers and could not attribute his

asbestos    exposure        to    that      product.       However,       several       weeks

later,   at    his     de     bene     esse    deposition,         plaintiff       recalled

cleaning    five     or     six   Crown      boilers.        This    inconsistency           in

testimony     is   a      factual      dispute     to   be    resolved       by    a    jury.

Plaintiff's description of cleaning all of the involved boilers

is    sufficient       to   allow      an     inference      of    exposure       to    these

products on a frequent and regular basis.

       Plaintiff     also     presented        sufficient     evidence       to    raise      a

jury question as to whether he met the "frequency, regularity,

and proximity" test regarding the valve manufacturers – Johnson

Controls and NIBCO.              He testified he repaired at least a dozen

Johnson steam and hot water valves, which entailed digging out

and replacing the asbestos packing.                        Plaintiff described the

same type of work regarding his exposure with NIBCO valves.

Those valves required asbestos packing for sealing; the valves'

design   required       the      replacement       packing    be    the    same        as   the

original.      Plaintiff's testimony is, therefore, sufficient to




                                              49                                   A-3520-13T4
raise the inference he worked frequently and regularly in close

proximity to asbestos in Johnson Controls and NIBCO valves.

       Plaintiff also estimated he cleaned twenty Armstrong steam

traps.      The     traps      were   designed          to    use     a   specific    type     of

asbestos gasket to function properly.                          The scraping out of the

asbestos gasket took one to four hours.                               Plaintiff presented

sufficient evidence to withstand the grant of summary judgment.

       It is undisputed plaintiff was exposed to asbestos during

his work with Ford cars and their brake systems.                                 The systems

required the use of asbestos and were designed to be replaced

with     asbestos     linings.          The        majority         of     the   brake      drums

plaintiff worked on at Modern Motors were "original lined."                                    He

stated twenty-five percent of those drums were made by Ford.

The    trial      court     erred      in      concluding             plaintiff       had     not

established       Ford    as    the    manufacturer            of     the    lining      on   the

vehicles     on     which      he     worked       at        Modern       Motors.    Plaintiff

demonstrated an exposure to Ford asbestos products sufficient to

raise a factual issue for the jury under the Sholtis test.

       We, therefore, reverse the orders of summary judgment as to

each named defendant and remand to the trial court for trial.

       Reversed and remanded for further proceedings consistent

with this opinion.          We do not retain jurisdiction.




                                              50                                       A-3520-13T4
