                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3431-13T4


ESTATE OF SANDRA BRUST and PHILIP
BRUST, individually and as Executor
and Executor ad Prosequendum of the
Estate of Sandra Brust,

     Plaintiffs-Appellants,             APPROVED FOR PUBLICATION

v.                                         November 19, 2015

ACF INDUSTRIES, LLC, f/k/a                APPELLATE DIVISION
American Car & Foundry Co.;
AMSTED RAIL GROUP, individually
and as successor to and d/b/a
Griffin Wheel Company;
BOMBARDIER TRANSPORTATION
(HOLDINGS) USA INC.; CBS
CORPORATION, a Delaware
corporation, f/k/a Viacom, Inc.,
successor by merger to CBS
Corporation, a Pennsylvania
corporation, f/k/a Westinghouse
Electric Corp.; CARRIER
CORPORATION; CERTAINTEED CORP.,
individually and as successor-
in-interest to Gustin Bacon;
EATON CORPORATION, as successor-
in-interest to Eaton Electrical,
Inc., and Cutler-Hammer, Inc.;
FOSTER WHEELER ENERGY CORPORATION;
GENERAL ELECTRIC COMPANY; GE LEASING,
individually and as successor to ITEL
Leasing, The Pullman Leasing Company
and The Pullman Company; GRIMES
AEROSPACE CORPORATION, individually
and as successor to FL Aerospace
Corporation and Midland-Ross Corp.;
KAWASAKI RAIL CAR INC.; NEW YORK
AIR BRAKE CORPORATION; PULLMAN
TECHNOLOGY INC., individually and
as successor to The Pullman Company;
ROCKWELL AUTOMATION INC., as
successor by merger to Allen-Bradley,
Inc.; SIEMENS ENERGY & AUTOMATION,
INC., f/k/a I-T-E Circuit Breakers;
SQUARE-D COMPANY; THYSSENKRUPP BUDD CO.,
f/k/a and as successor to The Budd
Company; TRANE US, INC., f/k/a
American Standard, Inc., f/k/a
Westinghouse Air Brake Company;
TRINITY INDUSTRIES, individually and
as successor to The Pullman
Transportation Company and The Pullman
Company; UNION CARBIDE CORP.; WABTEC
CORPORATION, individually and as
successor in interest to Westinghouse
Air Brake Co. (WABCO) and MotivePower
Industries, Inc.; GOULD ELECTRONICS,
INC., individually and as successor-
in-interest to ITE Circuit Breakers;
OLD ORCHARD INDUSTRIAL CORP.,
individually and as successor-in-
interest to Vapor Corporation; and
AMSTED INDUSTRIES, INC., f/k/a
American Steel Foundries (ASF),

      Defendants,

and

DELAWARE RIVER PORT AUTHORITY
(DRPA), individually and d/b/a
Port Authority Transit
Corporation (PATCO); HONEYWELL
INTERNATIONAL, INC., f/k/a
Allied Signal, Inc. as
successor-in-interest to The
Bendix Corporation; PEP BOYS-
MANNY MOE & JACK OF DELAWARE,
INC.; PNEUMO-ABEX, LLC, as
successor-in-interest to Abex
Corporation, f/k/a American Brake
Shoe Company; PORT AUTHORITY TRANSIT
CORPORATION (PATCO); and RAILROAD




                               2           A-3431-13T4
FRICTION PRODUCTS CORPORATION,
individually and d/b/a Cobra,

    Defendants-Respondents.


         Argued October 7, 2015 – Decided November 19, 2015

         Before Judges Alvarez, Ostrer, and Manahan.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County,
         Docket No. L-5049-11.

         Jeffrey P. Blumstein argued the cause for
         appellants (Szaferman, Lakind, Blumstein &
         Blader, P.C. and Levy Konigsberg, LLP,
         attorneys; Robert E. Lytle, on the briefs).

         Christopher R. Gibson argued the cause for
         respondent Delaware River Port Authority and
         Port Authority Transit Corporation (Archer &
         Greiner, attorneys; Mr. Gibson, of counsel
         and on the brief; Patrick M. Flynn, on the
         brief).

         John   C.   Garde   argued   the   cause   for
         respondent   Honeywell   International   Inc.,
         f/k/a Allied Signal, Inc. as successor-in-
         interest to The Bendix Corporation (McCarter
         & English, LLP and Gibbons, P.C., attorneys;
         Debra M. Perry, Kim M. Catullo, and Ethan D.
         Stein, of counsel; Mr. Garde and Jean
         Patterson, on the brief).

         Walter F. Kawalec, III, argued the cause for
         respondent Pep Boys – Manny Moe & Jack of
         Delaware, Inc. (Marshall Dennehey Warner
         Coleman & Goggin, attorneys; Paul Johnson,
         Lisa Only, and Mr. Kawalec, on the brief).

         Reagan W.    Simpson (Yetter Coleman LLP) of
         the Texas   bar, admitted pro hac vice, argued
         the cause    for respondent Pneumo Abex, LLC
         (Roy   F.     Viola,   Jr.  (Hawkins   Parnell
         Thackston    & Young LLP), and Mr. Simpson,



                                 3                        A-3431-13T4
            attorneys; Mr. Viola and Mr. Simpson, on the
            brief).

            David J. Bird (Reed Smith LLP) of the
            Pennsylvania bar, admitted pro hac vice,
            argued the cause for respondent Railroad
            Friction    Products   Corporation  (Bonner
            Kiernan Trebach & Crociata, LLP, attorneys;
            Mark A. Lockett, on the brief).

     The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

     Plaintiffs, the Estate of Sandra Brust and Philip Brust,

appeal from the summary judgment dismissal of their complaint.

Sandra Brust (Brust) was diagnosed with mesothelioma in October

2010, and passed away from the disease while this litigation was

pending.       Plaintiffs   allege       Brust's   father   John    Noga's

employment from 1970 to 1977 as a train operator, yard operator,

and supervisor with defendant Port Authority Transit Corporation

(PATCO) resulted in take-home asbestos exposure leading to her

illness.1

     Noga's job duties included the repair and maintenance of

air brake systems on PATCO's multiple unit (MU) locomotives. 2             In


1
  By virtue of an interstate compact between New Jersey and
Pennsylvania, defendant Delaware River Port Authority (DRPA)
owns the New Jersey tracks and right-of-way through which PATCO
operates the high speed line between Lindenwold, New Jersey, and
Philadelphia, Pennsylvania.
2
  In addition to PATCO and the DRPA, the "railroad defendants"
include Railroad Friction Products Corporation (RFPC), which
                                                   (continued)


                                     4                             A-3431-13T4
the process, asbestos dust would then be released into the air

and land on his work clothes.          Upon returning home, Noga would

play with his children, including Brust, who was born May 23,

1963, before changing or showering.

       Additionally,    plaintiffs     claim    Brust's   mesothelioma      may

have   been    caused   by   her   exposure    to   asbestos   dust   as   Noga

replaced automobile brakes on cars he worked on after hours. 3

Between 1963 and 1978, when the family moved to Georgia, Noga

would buy an average of one used car per year, which he would

repair for resale.

       From 1970 to 1985, starting at about age seven, Brust would

help her mother wash her father's clothes, including his PATCO

uniform.      Brust's expert opined that she developed mesothelioma

as a result of secondary exposure to friable asbestos fibers

through direct contact with her father and while laundering his

asbestos-laden clothes.


(continued)
distributed Cobra brand locomotive air brake shoes as well as
Thyssenkrupp Budd Company (Budd) and Pneumo-Abex, LLC (Abex),
among others.     RFPC supplied Budd with locomotive air brakes
manufactured   by   RFPC;   the  replacement  brake   shoes  were
manufactured and supplied by Abex.      Both incorporate asbestos
into their design.
3
  Included in these counts are the automotive defendants:   Pep
Boys–Manny Moe and Jack of Delaware, Inc., Honeywell, formerly
known as Allied Signal, Inc., successor-in-interest to The
Bendix Corporation, and Abex as successor-in-interest of Abex
Corporation, formerly known as American Brake Shoe Company.



                                       5                              A-3431-13T4
      In   deciding     the    railroad     defendants'        motion     for    summary

judgment,      Judge        Vincent     LeBlon       concluded       that        federal

legislation and precedent preempt state tort claims related to

locomotives.        He rejected plaintiffs' argument that their claim

was exempt from preemption because PATCO was not regulated by

federal transportation agencies or regulations.

      As to the automotive defendants, Judge LeBlon found that

there   was   no    evidence     that     Brust's     contacts     with    automotive

brake dust were sufficiently frequent, regular, and proximate to

demonstrate      causation.           Thus,    plaintiffs'        proofs        did    not

establish the elements of a prima facie case.

      In sum, the judge granted the railroad defendants' motions

for summary judgment as a matter of law.                       He granted summary

judgment to the automotive defendants because, even when the

facts were viewed in the light most favorable to plaintiffs, no

genuine issue of material fact remained which could expose them

to any liability.          We affirm.

                                          I.

      Rule    4:46-2(c)       provides     that      summary     judgment       must    be

granted       "if     the      pleadings,           depositions,        answers         to

interrogatories        and    admissions       on    file,     together     with       the

affidavits, if any, show that there is no genuine issue as to

any   material      fact     challenged    and      that   the    moving    party      is




                                           6                                    A-3431-13T4
entitled    to     a    judgment    .    .    .    as    a    matter    of    law."      The

appropriate        inquiry     is    "whether           the    evidence       presents      a

sufficient       disagreement       to    require       submission       to   a   jury    or

whether it is so one-sided that one party must prevail . . . ."

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,

106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

    On     appeal,       we   review      summary       judgment       orders     de   novo,

utilizing the same standards applied by the trial courts.                                See

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,

374 (2010).

                                             II.

    Plaintiffs contend on appeal, as they did before the Law

Division judge, that their state law claims against PATCO, DRPA,

RFPC, and Abex, arising out of the design and manufacture of

asbestos-contaminated locomotive brake shoes, were not preempted

by federal law.          The basis for their argument is that PATCO is

an urban rapid transit operation, not a railroad, not subject to

federal railroad safety regulations or to federal law generally.

                                             A.

    A      brief       discussion    of      the    doctrine       of    preemption       is

warranted.       It arises from the supremacy clause, which states

that federal law "shall be the supreme Law of the Land; and the




                                              7                                    A-3431-13T4
Judges in every State shall be bound thereby, any Thing in the

Constitution          or   Laws     of    any        State     to      the        Contrary

notwithstanding."          U.S. Const. art. VI, cl. 2.

       "Where    a    state     statute   conflicts          with,    or   frustrates,

federal law, the former must give way."                      CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 663, 113 S. Ct. 1732, 1737, 123 L. Ed.

2d 387, 396 (1993).             "The ultimate question is always whether

Congress intended to preempt the subject matter of the state

legislation."         Chamber of Commerce v. State, 89 N.J. 131, 142

(1982); see also Comm. to Recall Robert Menendez from the Office

of U.S. Senator v. Wells, 204 N.J. 79, 103 (2010) (discussing

federal preemption).            "Congress may preempt state common law as

well as state statutory law through federal legislation."                            Dewey

v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 77 (1990) (citing

Chicago N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,

325-26, 101 S. Ct. 1124, 1134, 67 L. Ed. 2d 258, 270 (1981)).

       There    are    three    categories      of    preemption:            1)    express

preemption as contained in the specific language of the federal

law;    2)     implied     or   "field    preemption"         where    Congress         has

exclusively occupied the field of regulation; and 3) conflict

preemption where state law conflicts with federal law.                            Kurns v.

Railroad Friction Products Corp., ___ U.S. ___, 132 S. Ct. 1261,

1265-66, 182 L. Ed. 2d 116, 123 (2012); English v. Gen. Elec.




                                          8                                       A-3431-13T4
Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 2275, 110 L. Ed. 2d

65, 74 (1990); R.F. v. Abbott Labs., 162 N.J. 596, 618 (2000);

Dewey, supra, 121 N.J. at 77-78.

       Field preemption, at issue here, occurs "where the scheme

of federal regulation is so pervasive as to make reasonable the

inference       that    Congress       left       no     room     for    the       States     to

supplement it . . . ."                 Gonzalez v. Ideal Tile Imp. Co., 184

N.J. 415, 419 (2005) (quoting Gade v. Nat'l Solid Wastes Mgmt.

Ass'n, 505 U.S. 88, 98, 112 S. Ct.                       2374, 2383, 120 L. Ed. 2d

73, 84 (1992)), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042,

163 L. Ed. 2d 857 (2006).

                                           B.

       Since    1926,     it   has     been       settled       that    in    enacting       the

Locomotive      Inspection       Act    (LIA),      49    U.S.C.A.       §§    20701-20703,

Congress    intended      to     occupy    the         entire    field       of    locomotive

equipment.       Congress thereby preempted both state legislation

that   would     affect    the    design,         construction,         and       material   of

every part of the locomotive and its appurtenances, Napier v.

Atl. Coast Line R.R. Co., 272 U.S. 605, 611, 47 S. Ct. 207, 209,

71   L.   Ed.    432,   438    (1926),        and      state     law    tort      claims     for

defective design of locomotive equipment, Kurns, supra, ___ U.S.

at ___, 132 S. Ct. at 1265-66, 182 L. Ed. 2d at 123.




                                              9                                       A-3431-13T4
     Preemption under the LIA "allows railroad carriers to abide

by a single set of national equipment regulations, instead of

having to meet different standards and, potentially, to change

equipment when a train crosses state lines."    Del. & Hudson R.R.

Co. v. Knoedler Mfrs., Inc., 781 F.3d 656, 666 (3d Cir.), cert.

denied, ___ U.S. ___, ___ S. Ct. ___, 193 L. Ed. 2d ___ (2015).

          This broad preemptive sweep is necessary to
          maintain uniformity of railroad operating
          standards across state lines.      Locomotives
          are designed to travel long distances, with
          most   railroad    routes    wending   through
          interstate commerce.    The virtue of uniform
          national    regulation     "is   self-evident:
          locomotive   companies    need  only   concern
          themselves   with   one    set  of   equipment
          regulations and need not be prepared to
          remove or add equipment as they travel from
          state to state."

          [Law v. Gen. Motors Corp., 114 F.3d 908, 910
          (9th Cir. 1997) (quoting S. Pac. Transp. Co.
          v. Pub. Util. Comm'n, 9 F.3d 807, 811 (9th
          Cir. 1993)).]

                               C.

     The LIA, originally enacted in 1911 as the "Locomotive

Boiler Inspection Act" (BIA),4 provides that:




4
  The BIA was enacted in 1911 when railroads used steam engines
and initially applied only to "boilers and appurtenances
thereto," but in 1915 was amended to "include the entire
locomotive and tender and all parts thereof."     Napier, supra,
272 U.S. at 608, 47 S. Ct. at 208, 71 L. Ed. at 437.



                               10                          A-3431-13T4
                  A railroad carrier[5] may use or allow to
              be used a locomotive or tender on its
              railroad line only when the locomotive or
              tender and its parts and appurtenances—

               (1)   are in proper condition and safe to
              operate   without  unnecessary  danger  of
              personal injury;

              (2)   have been inspected as required under
              this   chapter   .  .    .  and   regulations
              prescribed     by     the    Secretary     of
              Transportation under this chapter . . .; and

              (3)   can withstand every test prescribed by
              the Secretary under this chapter . . . .

              [49 U.S.C.A. § 20701.]

       An interstate railroad carrier has an absolute duty under

the    LIA    to   maintain     the    parts      and    appurtenances     of    its

locomotives in safe and proper condition.                 Lilly v. Grand Trunk

W. R.R. Co., 317 U.S. 481, 485, 63 S. Ct. 347, 351, 87 L. Ed.

411,    415    (1943).    The    "prime       purpose"    of   the   LIA   is   "the

protection of railroad employees and perhaps also of passengers

and the public at large . . . from injury due to industrial

accident."      Urie v. Thompson, 337 U.S. 163, 191, 69 S. Ct. 1018,

1035, 93 L. Ed. 1282, 1304 (1949).

       The Secretary of Transportation (Secretary), pursuant to

the LIA, has the authority to regulate the design and inspection

of    all    locomotive   parts,      including    air    brake   systems.       The

5
  A "railroad carrier" is defined as "a person providing railroad
transportation." 49 U.S.C.A. § 20102(3).



                                         11                                A-3431-13T4
Secretary       has      promulgated           highly     detailed        regulations

establishing       air    brake       system     calibration,   maintenance,        and

testing, 49 C.F.R. § 229.29 (2015), 49 C.F.R. § 238.309 (2015),

and safety and design, 49 C.F.R. §§ 229.46 to 229.59 (2015).

Federal regulations define a locomotive and also define an MU

locomotive.        49 C.F.R. § 229.5 (2015).               The federal railroad

safety laws, including the LIA, apply only to "railroads."                            49

U.S.C.A. § 20101.          The term "railroad" is not defined in the

LIA,   but    is   defined       by    federal    regulation,      49   C.F.R.     229.5

(2014), in accord with the Federal Railroad Safety Act (FRSA),

49   U.S.C.A.      §§    20102    to    20155,6     to   exclude    "rapid       transit

operations within an urban area that are not connected to the

general      railroad     system       of   transportation."            "Urban    rapid

transit operations," such as the high speed line operated by

PATCO, are not defined in the federal railroad safety statutes

or regulations.          See Chicago Transit Auth. v. Flohr, 570 F.2d

1305, 1311 (7th Cir. 1977) (Chicago Transit Authority is not a

"railroad" as the term is used in the Railroad Safety Act of

1970 and thus not subject to Federal Railroad Administration

(FRA) "railroad" regulations).

6
  FRSA contains a preemption provision, which provides that
"[l]aws, regulations, and orders related to railroad safety
. . . shall be nationally uniform to the extent practicable,"
but allows State law causes of action in limited circumstances.
49 U.S.C.A. § 20106. The LIA does not contain such a provision.



                                            12                               A-3431-13T4
      By delegation from the Secretary, the FRA enforces federal

railroad safety statutes, including the LIA.                         49 U.S.C.A. §

20702; 49 U.S.C.A. § 20103; 49 C.F.R. 229.1 (2015).                       The FRA has

jurisdiction        over    all     rail    operations    except     rapid     transit

operations     in    an     urban    area   that   are    not    connected     to    the

general railroad system of transportation.                      See 49 U.S.C.A. §

20102(2).

      Urban rapid transit operations are not subject to federal

regulations prescribing safety standards for locomotives and its

appurtenances under the LIA, 49 C.F.R. §§ 229.3(b)(2), 229.5

(2015), or other federal safety regulations.                         See, e.g., 49

C.F.R.   §    213.3(b)(3)         (2015)    (tracks);     49    C.F.R.    §   215.5(f)

(2015) (freight cars); 49 C.F.R. § 217.3(b)(2) (2015) (trains);

49   C.F.R.    §    218.3(b)(2)         (2015)   (operating      regulations);         49

C.F.R.   §    219.5    (drug      and    alcohol   use)    (2015);       49   C.F.R.    §

220.3(b)(2)        (2015)    (communication);       49    C.F.R.     §    230.2(b)(3)

(2015) (steam locomotives); and 49 C.F.R. § 232.3(c)(4) (2015)

(brake   systems       for    freight       trains).       The    Federal      Transit

Administration (FTA), an agency of the United States Department

of Transportation, has jurisdiction, under its rules governing

"rail fixed guideway systems," over rapid transit systems not

otherwise subject to FRA regulation.




                                            13                                 A-3431-13T4
      Federal law requires a "state to oversee the safety and

security of rail fixed guideway systems through a designated

oversight agency."            49 C.F.R. § 659.1 (2014).               A "rail fixed

guideway system" is defined as "any light, heavy, or rapid rail

system" not regulated by the FRA.                   49 C.F.R. § 659.5 (2015).

The   New    Jersey     Department   of    Transportation          (NJDOT)     is   this

state's oversight agency.            N.J.A.C. 16:53E-1.1.             In fulfilling

this responsibility, the NJDOT has adopted rules, regulations,

and guidelines accomplishing that goal.                    It is undisputed that

PATCO is an urban rapid transit operation subject in our state

to general oversight by NJDOT.

                                          D.

      The question plaintiffs raise is whether the LIA preempts

state law claims arising from locomotive equipment even if the

entity      operating    the    equipment      is   "not        subject   to   federal

railroad      regulations."          We    answer         the    question      in    the

affirmative.

      In our view, state law claims for defective design of the

"locomotive equipment," and for failure to warn about its risks,

fall within the field preempted by the LIA as defined in Napier,

supra, 272 U.S. at 611, 47 S. Ct. at 209, 71 L. Ed. at 438.                          The

preempted      field     is    the   subject        of     locomotive     equipment,

regardless of the entity using it.                       The notion was recently




                                          14                                   A-3431-13T4
reaffirmed in Kurns, supra, ___ U.S. at ___, 132 S. Ct. at 1265-

66, 182 L. Ed. 2d at 123.

    In Napier, the United States Supreme Court found a Georgia

statute   that    required      locomotives    to   have   an   automatic      fire

door, and a Wisconsin statute that required locomotives to have

a cab curtain, were preempted by the LIA because the statutes

were directed at the "equipment of locomotives."                Napier, supra,

272 U.S. at 612, 47 S. Ct. at 210, 71 L. Ed. at 439.                     The LIA

preempted "the entire field of regulating locomotive equipment,"

and the power delegated to the Interstate Commerce Commission

(ICC), the predecessor to the FRA, extended "to the design, the

construction and the material of every part of the locomotive

and tender and of all appurtenances."               Id. at 611, 47 S. Ct. at

209, 71 L. Ed. at 438.

    The Court specifically rejected the states' contention that

the scope of the preempted field was to "be determined by the

object sought through the legislation," which was to promote the

health    and    comfort   of    railroad     engineers,   "rather      than   the

physical elements affected by it."              Id. at 612, 47 S. Ct. 209,

71 L. Ed. 439.      The federal and state statutes were "directed to

the same subject -- the equipment of locomotives."                Ibid.     Thus,

because    the     state   laws,     "however       commendable    or     however

different their purpose," operated on the same physical object




                                       15                                A-3431-13T4
as the LIA, the laws fell in the preempted field.                           Id. at 613,

47 S. Ct. at 210, 71 L. Ed. at 439.

       After     the    decision     in    Napier,       Congress    enacted       various

statutes      amending      the   LIA,     transferring      the    ICC's    regulatory

authority       to    the   Department      of     Transportation,      enacting         the

FRSA, and codifying all federal railroad statutes under Title

49.    Congress did not alter the LIA's broad preemptive field.

       A number of state courts since have held that the broad

field preempts state tort law claims against manufacturers of

locomotive       equipment        for      injuries       sustained     by     asbestos

exposure.        See Wright v. Gen. Elec. Co., 242 S.W.3d 674, 680

(Ky.    Ct.     App.    2007)     (the    LIA    state    common-law        tort    claims

against       locomotive      manufacturers         of    brake     shoes    and      other

equipment are preempted under the LIA); Darby v. A-Best Prods.

Co., 811 N.E.2d 1117, 1125-26 (Ohio 2004) (the LIA preempts

state     law     tort      claims       against    manufacturers       of     railroad

locomotives for injuries caused by exposure to asbestos), cert.

denied, 543          U.S. 1146, 125        S. Ct. 1297, 161           L. Ed. 2d 106

(2005); In re W. Va. Asbestos Litig., 592 S.E.2d 818, 824 (W.

Va. 2003) (state law tort claims against manufacturers of parts

or components of railroad locomotives are preempted by federal

law under the LIA).




                                            16                                     A-3431-13T4
       In 2012, the Court in Kurns reaffirmed Napier.                               In Kurns

the     decedent,    George       M.      Corson,        was       a   former    locomotive

repairman.        Plaintiffs alleged he developed mesothelioma as a

result of his exposure to asbestos while employed installing

brake     shoes     on    locomotives          and       stripping         insulation     from

locomotive boilers.             Kurns, supra, ___ U.S. at ___, 132 S. Ct.

at    1264,   182    L.     Ed.      2d   at    122.          The      plaintiffs    brought

Pennsylvania      state     law      tort    claims       for      defective    design    and

failure to warn against RFPC, and other manufacturers.                                  Ibid.

Coincidentally,          RFPC   is    a     defendant         in    this    case,   and    the

manufacturer      and     distributor          of   Cobra      brand     locomotive     brake

shoes containing asbestos.

       In Kurns, the Court reaffirmed the breadth of the preempted

field established in Napier, holding that the plaintiffs' claims

were preempted because they were directed at "the subject of

locomotive equipment."            Id. at ___, 132 S. Ct. at 1270, 182 L.

Ed. 2d at 128.            The plaintiffs' defective-design claims were

found to fall "within the pre-empted field because they would

impose     state-law        requirements            on    a     locomotive's        physical

makeup."      Id. at ___, 132 S. Ct. at 1272, 182 L. Ed. 2d at 130

(Sotomayor, J., concurring in part, dissenting in part).                                    In

other words, the Court in Kurns rejected the plaintiffs' attempt

to redefine the preemptive field established in Napier, which




                                               17                                   A-3431-13T4
had constituted settled law for eighty-five years.                    Id. at ___,

132 S. Ct. at 1268-69, 182 L. Ed. 2d at 125-27.

     Significant        to   this     appeal,    the    Court     rejected       the

plaintiffs' argument that their state law claims against the

manufacturers      of   locomotive    equipment    fell     outside      the   LIA's

preemptive field because the manufacturers were not subject to

regulation under the LIA at the time the plaintiff was exposed

to asbestos.7      Id. at ___, 132 S. Ct. at 1268-69, 182 L. Ed. 2d

at 126-27.

     The   Court    described       that    position   as   "inconsistent       with

Napier," because

           Napier defined the field pre-empted by the
           LIA on the basis of the physical elements
           regulated —— "the equipment of locomotives"
           —— not on the basis of the entity directly
           subject to regulation. . . . Because
           petitioners' claims are directed at the
           equipment of locomotives, they fall within
           the pre-empted field.

           [Id. at ___, 132 S. Ct. at 1269, 182 L. Ed.
           2d at 127 (emphasis added).]

The Court went on to state:

                Petitioners' proposed rule                  is    also
           contrary    to   common  sense.                       Under

7
  The LIA as originally enacted subjected only "common carriers"
to civil penalties, but after the plaintiffs' exposure in Kurns,
it was revised under the "Rail Safety Improvement Act of 1988,"
102 Stat. 624 § 14, later repealed and recodified at 49 U.S.C.A.
§ 21303, to provide that an "act by an individual that causes a
railroad carrier to be in violation is a violation."



                                           18                              A-3431-13T4
         petitioners' approach, a State could not
         require railroads to equip their locomotives
         with      parts      meeting      state-imposed
         specifications,       but     could     require
         manufacturers of locomotive parts to produce
         only   parts    meeting   those   state-imposed
         specifications.      We rejected a similar
         approach in an express pre-emption context
         in Engine [Manufacturers] Ass'n. v. South
         Coast Air Quality Management [District], 541
         U.S. 246, 124 S. Ct. 1756, 158 L. Ed. 2d 529
         (2004). There, a state entity argued that
         its rules prohibiting the purchase or lease
         of vehicles that failed to meet stringent
         emissions requirements were not pre-empted
         by the Clean Air Act, 42 U.S.C. §7543(a),
         because the rules in question were aimed at
         the purchase of vehicles, rather than their
         manufacture or sale. . . . We observed,
         however, that "treating sales restrictions
         and purchase restrictions differently for
         pre-emption purposes would make no sense,"
         because the "manufacturer's right to sell
         federally approved vehicles is meaningless
         in the absence of a purchaser's right to buy
         them." Id. at 255, 124 S. Ct. 1756, 158 L.
         Ed. 2d 529. Similarly, a railroad's ability
         to equip its fleet of locomotives in
         compliance    with    federal    standards   is
         meaningless if manufacturers are not allowed
         to produce locomotives and locomotive parts
         that meet those standards.         Petitioners'
         claims thus do not avoid pre-emption simply
         because they are aimed at the manufacturers
         of locomotives and locomotive parts.

         [Ibid.]

Accordingly, the Court concluded that the LIA preempts state

tort claims based on injuries caused by exposure to asbestos

used in locomotive brake shoes even if the manufacturers were

not subject to the LIA regulation.   Ibid.




                               19                          A-3431-13T4
       The Court in Kurns also rejected plaintiffs' argument that

their claims did not fall within the preemptive field because

they arose out "of the repair and maintenance of locomotives,"

as opposed to the "use of locomotives on a railroad line."                           Id.

at    ___,   132   S.   Ct.   at   1267,    182     L.    Ed.    2d    at   125.     The

plaintiffs contended that "the scope of the field pre-empted by

the    LIA    is   coextensive       with     the        scope    of    the    Federal

Government's regulatory authority under the LIA," which did "not

extend to the regulation of hazards arising from the repair or

maintenance of locomotives."          Ibid.

       Nonetheless, the Court refused to "redefine" the preempted

field:

             In Napier, the Court held that Congress, in
             enacting    the    LIA,   "manifest[ed]   the
             intention to occupy the entire field of
             regulating locomotive equipment," and the
             Court did not distinguish between hazards
             arising from repair and maintenance as
             opposed to those arising from use on the
             line. . . . The pre-empted field as defined
             by Napier plainly encompasses the claims at
             issue here.    Petitioners' common-law claims
             for defective design and failure to warn are
             aimed at the equipment of locomotives.
             Because those claims "are directed to the
             same subject" as the LIA, Napier dictates
             that they fall within the pre-empted field
             . . . .

             [Id. at ___, 132 S. Ct. at 1267-68, 182 L.
             Ed. 2d at 125-26 (emphasis added).]




                                       20                                      A-3431-13T4
    Finally, the Court rejected the plaintiffs' argument that

their failure-to-warn claims did not fall within the preempted

field because the basis for liability was the failure to provide

adequate warnings, not the design of the product.     Id. at ___,

132 S. Ct. at 1268, 182 L. Ed. 2d at 126.

    On this point, the Court said:

         A failure-to-warn claim alleges that the
         product   itself    is   unlawfully   dangerous
         unless accompanied by sufficient warnings or
         instructions. Restatement (Third) of Torts:
         Products Liability §2(c) (1997) (A failure-
         to-warn claim alleges that a product is
         defective "when the foreseeable risks of
         harm posed by the product could have been
         reduced or avoided by the provision of
         reasonable instructions or warnings by the
         seller or other distributor, . . . and the
         omission of the instructions or warnings
         renders the product not reasonably safe");
         see also id., Comment l, at 33 ("Reasonable
         designs and instructions or warnings both
         play important roles in the production and
         distribution of reasonably safe products").
         Thus,    the    "gravamen"    of   petitioners'
         failure-to-warn     claims   "is   still   that
         [Corson] suffered harmful consequences as a
         result of his exposure to asbestos contained
         in locomotive parts and appurtenances."
         . . . .     Because petitioners' failure-to-
         warn claims are therefore directed at the
         equipment of locomotives, they fall within
         the pre-empted field defined by Napier,
         supra, 272 U.S. at 612, 47 S. Ct. 207, 71 L.
         Ed. 432.

         [Id. at ___, 132 S. Ct. at 1268, 182 L. Ed.
         2d at 126.]




                               21                          A-3431-13T4
    Here,      it   is    undisputed     that     PATCO's    MU   locomotives,

supplied by Budd, were "locomotives" as defined in 49 C.F.R. §

229.5 (2015), which ran on standard gauge track —— the gauge on

which most railroads, including Amtrak, operate.                  Moreover, it

is undisputed that the "locomotive equipment" at issue —— the

locomotive air brake shoes installed on PATCO locomotives ——

were designed and manufactured as components of a locomotive air

brake   system,     designed   for     use   on   locomotives     operated   by

railroad carriers subject to regulation under the LIA.                 See 49

C.F.R. 232.5 (2015) ("Air brake means a combination of devices

operated by compressed air, arranged in a system, and controlled

manually,   electrically,      electronically,       or     pneumatically,   by

means of which the motion of a railroad car or locomotive is

. . . arrested").        See also Perry v. A.W. Chesterton, Inc., 985

F. Supp. 2d 669, 675-76 (E.D. Pa. 2013) (the plaintiff's state

law claims pertaining to exposure to asbestos-containing brake

shoes located on railcars are preempted under the LIA).                      In

fact, the locomotive equipment was physically indistinguishable

from the equipment in Kurns —— that is, Cobra brand locomotive

air brake shoes manufactured by RFPC and designed for the air

brake system of a locomotive capable of travelling on a standard

gauge track.




                                       22                             A-3431-13T4
    Because      plaintiffs'        negligence    and   products      liability

claims are directed at "the subject of locomotive equipment,"

they are therefore preempted under the sweeping field preemption

adopted in Napier, and reaffirmed in Kurns.              Plaintiffs' claims

are preempted as state actions that would affect "the design,

the construction, and the material" of locomotives, including

claims for failure-to-warn.           Kurns, supra, ___ U.S. at ___, 132

S. Ct. at 1267, 182 L. Ed. 2d at 124.

    That the locomotive equipment operated by PATCO was a rapid

transit operation not subject to the LIA regulation does not

undercut the analysis.        Kurns defines the preempted field as the

locomotive equipment, not by the entity that purchases or uses

the equipment.      Id. at ___, 132 S. Ct. at 1267-68, 182 L. Ed. 2d

at 125.    In Kurns, the preempted field was not coextensive with

the scope of the federal government's regulatory authority under

the LIA.     But that fact was found to be irrelevant                   to the

application of the preemption doctrine.             Id. at ___, 132 S. Ct.

at 1267-69, 182 L. Ed. 2d at 125-27.

    This    broad     field    of    preemption     ensures     uniformity    of

railroad    equipment,        an     important     safety     and     practical

consideration    given    the       national     distribution    of    products

manufactured for use in the industry.             Focusing on equipment, as

was the case in Napier and Kurns, ensures that all locomotive




                                       23                              A-3431-13T4
equipment, regardless of where or by which entity it is used,

meets federal safety standards.               Creating an exception based on

the classification of the operation at the time of the injury

would conflict with the conclusions in Kurns, would threaten

uniformity, and would complicate the straightforward equipment

preemption that has remained unchanged since 1926.                    We therefore

reject plaintiffs' argument that because PATCO's operations were

not   subject   to    federal   regulation,       their    state      court    claims

should survive.

       Motions for summary judgment should be granted where, as a

matter of law, the moving party is clearly entitled to judgment.

In    this   case    the   railroad   defendants        must   prevail        because

Congress      exclusively       occupies       the   field          including       the

manufacture of locomotive brakes.              We therefore hold plaintiffs'

state claims are preempted by federal law, and do not reach

plaintiffs'     additional      claims    of    error     as   to    the   railroad

defendants.8


8
  This broad preemptive field leaves plaintiffs without a remedy,
however, until Congress amends the LIA we are powerless "to
prevent such an injustice."    See Craner v. Cedar Rapids & Iowa
City Ry., 395 U.S. 164, 167, 89 S. Ct. 1706, 1708, 23 L. Ed. 2d
176, 180 (1969) (In the context of whether state-law defenses
are available to a railroad being sued for injuries caused by
its failure to adhere to the Federal Appliance Safety Act of
1893, 27 Stat. 531, 45 U.S.C. § 2, the Court acknowledged the
unfairness of barring a non-federal employee from the recovery
that would have been available to a federal employee for
                                                      (continued)


                                         24                                   A-3431-13T4
                                       III.

    Plaintiffs       contend    that   the    judge   erred      in    ruling    that

plaintiffs     did   not    present     sufficient       evidence      of   Brust's

secondary     exposure     to   asbestos-contaminated           automobile      brake

shoes   and    in    granting    summary      judgment     to    the    automotive

defendants on that basis.         Again, we disagree.

    In granting Honeywell's motion, the trial judge found:

            [Brust] testified that the first time she
            saw her father perform a brake job was
            around 1970 and the family moved from New
            Jersey to Georgia in 1978. Additionally, []
            Noga    testified    that    he    performed
            approximately one brake job per year.     []
            giving [Brust] all favorable inferences the
            total number of exposures from all brake
            jobs    utilizing    various    brake    pad
            manufacturers performed by her father is
            eight.

                 Furthermore, [Noga] when asked was
            unable to quantify the number of times he
            performed a brake job using brake products
            manufactured, sold, and/or distributed by
            Bendix [now Honeywell]. [] Noga's testimony
            lacks   the  specificity   required  by   the
            standard outlined by the court in Sholtis
            [v. Am. Cyanamid Co., 238 N.J. Super. 8, 30-
            31 (App. Div. 1989)].    Therefore, Plaintiff
            has failed to submit evidence that would
            allow [] a reasonable jury to find that []
            Brust was exposed to friable asbestos on a



(continued)
performing the same work "in the same manner" as the non-federal
employee, but added, "It is not permitted the Court to rewrite
the statute."   Id. at 167, 89 S. Ct. at 1708, 23 L. Ed. 2d at
180).



                                        25                                  A-3431-13T4
            regular   and   frequent   basis            in    close
            proximity to Defendant's product.

The judge granted Abex's motion for summary judgment, regarding

its automobile brake shoes, on the same basis.

     When    the   judge      granted    Pep    Boys'   motion    for   summary

judgment,9 he reiterated Brust's deposition testimony:

            that she witnessed her father perform brake
            jobs on the vehicles infrequently maybe []
            once every two or three years.   Therefore,
            given that the relevant time period for
            exposure was at most [eight] years, a
            reasonable inference would have been that
            [Brust] was present for approximately [two]
            to [three] brake jobs performed by her
            father.

     It     is   undisputed    that     Brust    assisted    in   washing     her

father's clothes.       The judge opined, however, that even when

viewing the facts in the light most favorable to her, nothing in

the record established that her illness resulted from exposure

during "Noga's use of asbestos containing brakes sold and/or

distributed by Pep Boys."

     In a products liability failure-to-warn case, a plaintiff

must prove that:       1) the product was defective; 2) the defect

existed when the product left the defendant's control; 3) the

defect    caused   injury     to   a   reasonably   foreseeable       user;   and

4) the defect was the absence of warning that the product can

9
  This was actually a motion for reconsideration, as the original
motion for summary judgment was denied.



                                        26                              A-3431-13T4
potentially cause injury.                James v. Bessemer Processing Co., 155

N.J. 279, 296 (1998); Coffman v. Keene Corp., 133 N.J. 581, 593-

94 (1993).

       In       an   asbestos     failure-to-warn          case,    the    plaintiff    must

also prove two types of causation:                      product-defect and medical

causation.             Becker v. Baron Bros., 138 N.J. 145, 152 (1994);

Coffman, supra, 133 N.J. at 594; Hughes v. A.W. Chesterton Co.,

435 N.J. Super. 326, 337 (App. Div.), certif. denied, 220 N.J.

41 (2014).

       "Proof of direct contact 'is almost always lacking,' and

need not be proven by direct evidence of asbestos exposure."

Hughes,         supra,      435   N.J.     Super.     at    344     (citation       omitted)

(quoting James, supra, 155 N.J. at 301).

       Regardless,          to    establish      medical     causation,       a    plaintiff

must demonstrate that the exposure to the defendant's asbestos

products         was    a   "substantial      factor"      in   causing      the    disease.

James, supra, 155 N.J. at 299.                     New Jersey courts, as well as

courts in a majority of other jurisdictions, James, supra, 155

N.J.       at    302-04,      look    to    the      "frequency,          regularity,     and

proximity" of exposure as pronounced in Sholtis, supra, 238 N.J.

Super.      at       28.    Assessment      of     those    circumstances         determines

whether exposure to the defendant's asbestos-containing product

was    a    "substantial          factor"     in    causing        the    alleged   injury.




                                              27                                    A-3431-13T4
Hughes,     supra,       435   N.J.     Super.     at    337-38;      Provini    v.

Asbestospray Corp., 360 N.J. Super. 234, 239 (App. Div. 2003).

    Nonetheless, the frequency, regularity and proximity test

"'is not a rigid test with an absolute threshold level necessary

to support a jury verdict.'"                James, supra, 155 N.J. at 302

(quoting Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir.

1992)).     "The phraseology should not supply 'catch words' [and]

the underlying concept should not be lost."                Sholtis, supra, 238

N.J. Super. at 29.

    We held in Sholtis that "a plaintiff only need produce

evidence from which a fact-finder, after assessing the proof of

frequency     and       intensity     of    plaintiff's      contacts     with     a

particular    manufacturer's          friable    asbestos,    could     reasonably

infer toxic exposure."             Ibid.         "Under this test, plaintiff

cannot    rest    on     evidence     which     merely   demonstrates     that     a

defendant's asbestos product was present in the workplace or

that he had 'casual or minimal exposure' to it."                   Kurak v. A.P.

Green Refactories Co., 298 N.J. Super. 304, 314 (App. Div.)

(quoting Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227, 236

(App. Div. 1994)), certif. denied, 152 N.J. 10 (1997).

    Thus, in order to prove medical causation in this matter,

plaintiffs       must    provide     sufficient     evidence    from     which     a

reasonable jury could infer that from 1970 to 1978, Brust was




                                           28                             A-3431-13T4
exposed       to     asbestos-contaminated            brakes        manufactured       by

Honeywell and Abex, and sold by Pep Boys, frequently, regularly,

and while she was in close proximity to those products.                         Viewing

plaintiffs' evidence in the most favorable light, a jury could

find that Noga replaced the brake shoes on eight cars from 1970

to 1978, and that both the old brake shoes, about which nothing

is   known,    and    the     new     brakes    shoes    were   contaminated        with

asbestos.          During    those     eight    years,    Brust      was    exposed    to

asbestos      through       contact    with     her   father    while      he   handled

asbestos-contaminated brake shoes on at most four occasions, and

through washing his clothes on at most eight occasions.

      Although Noga purchased most of the brake shoes from Pep

Boys, he could not recall the names of the manufacturers of the

replaced brake shoes, where most of the dust originated.                               He

could not quantify the number of times he installed new Abex,

Bendix, or Raybestos10 brake shoes.

      Plaintiffs contend from this testimony that "the evidence

would   only       support    a     finding    that     one   set    of    brakes   Noga

purchased      at     Pep      Boys     was     manufactured         by    Honeywell's

predecessor, Bendix, and one other set by Abex."                            And it is

10
    Raymark Industries, Inc., a manufacturer of asbestos-
contaminated automotive brakes, filed a Chapter 11 bankruptcy
petition in 1998, and is not named as a defendant in this case.
In re Raytech Corp., 261 B.R. 350, 353 (Bankr. D. Conn. 2001).




                                           29                                   A-3431-13T4
undisputed that mesothelioma can develop from minimal exposure

to asbestos.            But the exposures established by this record are

so    few    and    so    limited     that    they      simply    fail     to   meet   the

"frequency, regularity, and proximity" test.

       That test was satisfied in Olivo v. Owens-Illinois, Inc.,

186   N.J.    394,       399     (2006),    for    example,      where    the   plaintiff

alleged she developed mesothelioma as a result of laundering her

husband's asbestos-laden work clothes over a forty-year period.

Similarly, in Anderson v. A.J. Friedman Supply Co., 416 N.J.

Super. 46, 54 (App. Div. 2010), certif. denied, 205 N.J. 518

(2011), we found summary judgment should not be granted where

the    plaintiff          developed        mesothelioma       from       laundering    her

husband's asbestos-laden work clothes over a thirty-year period.

And, in Kurak, supra, 298 N.J. Super. at 310, 321-22, sufficient

proofs were established by the plaintiff's work as a laboratory

technician         in    close    proximity        to   asbestos-contaminated          pipe

insulation for at least thirteen years.

       Hence, we agree with Judge LeBlon that even if Brust was

exposed to one of each of the automotive defendants' products

over an eight-year period, assuming they were sold by Pep Boys,

she    failed       to    establish        sufficient      contacts        to   meet    the

frequency, regularity, and proximity test.                        See, e.g., Chavers

v. Gen. Motors Corp., 79 S.W.3d 361, 370 (Ark. 2002) (one-time




                                              30                                 A-3431-13T4
exposure does not satisfy regularity and frequency test).                There

is   no   genuine   issue   as    to   any   material   fact.   Viewing    the

circumstances in the light most favorable to plaintiffs, Brust's

exposure     lacked   the    requisite       frequency,    regularity,     and

proximity     entitling     the    automotive     defendants    to   summary

judgment as a matter of law.

      Affirmed.




                                        31                           A-3431-13T4
