                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3642-14T1

WILLIAM P. CONDON and DEBBIE
CONDON, individually and as
Executrix and Executrix ad
Prosequendum for the Estate of
WILLIAM P. CONDON,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

ADVANCE THERMAL HYDRONICS,
INC., f/k/a The Hydrotherm
Corporation; AFTON PUMPS, INC.;
A.I.I. ACQUISITION, LLC, as
successor-in-interest to
Holland Furnace Company;
AMERICAN REFRACTORIES CO.;
A.O. SMITH WATER PRODUCTS
COMPANY; AMERICAN PREMIER
UNDERWRITERS, INC., f/k/a Penn
Central Corp., f/k/a GK
Technologies, Inc., f/k/a
General Cable Corp., individually
and as successor to Hydrotherm,
Inc.; ARCY MANUFACTURING INC.;
ASHLAND, INC.; ATLAS TURNER;
AURORA PUMP; AUTOMATION
INDUSTRIES, INC., individually
and as successor to Hydrotherm,
Inc.; BECHTEL CORPORATION;
BELMONT PACKING & RUBBER COMPANY;
BORG WARNER MORSE TEC, as
successor by merger to the
Borg Warner Corporation;
BRADFORD-WHITE WATER HEATERS,
INC.; BRYAN STEAM, LLC a/k/a
Bryan Boilers; AIR & LIQUID
SYSTEMS CORPORATION, as
successor by merger to Buffalo
Pumps, Inc.; BURNHAM LLC,
individually and as successor
to Burnham Corporation,
individually and as successor-in-
interest to Federal Boiler and
Radiator Co.; BRYON JACKSON PUMPS
AND UNITED PUMPS & COMPRESSOR;
CALON INSULATION CORPORATION;
CARDONE INDUSTRIES, INC.,
individually and as successor to
Cardo Automotive Products Company;
CARRIER CORPORATION;
CBS CORPORATION, a Delaware
Corporation, f/k/a Viacom, Inc.,
successor by merger to CBS
Corporation, a Pennsylvania
Corporation, f/k/a
Westinghouse Electric Corporation;
CERTAINTEED CORPORATION,
individually and as successor to
Keasbey & Mattison Co.; CLEAVER
BROOKS COMPANY, a division of
AQUA-CHEM, INC.; COLUMBIA BOILERS
COMPANY OF POTTSTOWN;
CRANE CO., INC., and as successor
to Jenkins Valves, Inc., a/k/a
Jenkins Bros.; CRANE PACKING
COMPANY; CRANE PUMPS AND SYSTEMS,
INC.; DANA COMPANIES, LLC f/k/a
Dana Corporation, individually
and as successor-in-interest to
Victor and Spicer; DAP
PRODUCTS, INC., individually and
for its Tharco Product; DB RILEY,
INC., individually and as successor
to and/or f/k/a DB Riley Stoker
Corporation and as successor to,
and/if f/d/b/a Union Iron Works;
DEMING PUMPS, a division of Crane

                               2      A-3642-14T1
Pumps Systems, Inc.; DUCTMATE
INDUSTRIES, INC.; DUNPHEY SMITH
COMPANY; EATON CORPORATION, as
successor-in-interest to Eaton
Electrical, Inc., and
Cutler-Hammer, Inc.;
ECR INTERNATIONAL, INC.,
f/k/a Dunkirk and Utica Boilers;
FLEXIBLE TECHNOLOGIES, INC.,
individually and as successor to
Hydrotherm, Inc.; FLOWSERVE
CORPORATION; FMC CORPORATION,
on behalf of its former
Peerless Pump and Northern
Pump Business; FORD MOTOR COMPANY;
FORT KENT HOLDINGS, INC., f/k/a
Dunham Busch, Inc., as
successor-in-interest to
Iron Fireman Combustion
Products; FOSTER WHEELER ENERGY
CORP.; GENERAL ELECTRIC COMPANY;
GEORGIA PACIFIC LLC; GOULDS PUMPS
INCORPORATED; HERCULES, INC.;
HOLLINGSWORTH & VOSE COMPANY;
HONEYWELL INTERNATIONAL, INC.,
f/k/a Allied Signal, Inc. as
successor-in-interest to
The Bendix Corporation;
HYDROTHERM, INC.; HB SMITH,
INC.; IMO INDUSTRIES, INC.,
as successor to and f/k/a
Delaval Turbine, Transamerica
Delaval and IMO Delaval;
INGERSOLL-RAND COMPANY;
J.H. FRANCE REFRACTORIES
COMPANY; JOHN CRANE, INC.;
JOHNSTON BOILER CO.; KAISER
GYPSUM; LAWRENCE PUMPS, INC.,
as successor-in-interest
to Ducan Heating Corp.; MAGNATROL
VALVE CORP.; MCNALLY INDUSTRIES,
INC.; MAREMONT CORPORATION;
MESTEK, INC., individually
and as successor to Hydrotherm,
Inc.; OAKFABCO, INC., f/k/a

                               3     A-3642-14T1
Kewanne Boiler Corp.; PACIFIC
STEEL BOILERS, a division of
Crane Company; PCC TECHNICAL
INDUSTRIES, INC., f/k/a
Boiler Technologies, Inc.,
individually and as successor
to Hydrotherm, Inc.; PEERLESS
INDUSTRIES, INC.; PRESTOLITE
PERFORMANCE, individually and
for its Hays Brand;
SOS PRODUCTS CO.; RAYPAK
INC.; REED NATIONAL FINANCIAL CORP.,
individually and as successor to
Hydrotherm, Inc.; ROPER PUMP CO.;
SB DECKING, INC., f/k/a Selby
Battersby & Company, a subsidiary
of Quaker Chemical Corporation;
SUPERIOR BOILER WORKS; STERLING
FLUID SYSTEMS (USA) INC.,
f/k/a LaBour Pump Co.;
TACO PUMPS; THE FULTON COMPANIES,
individually and as successor to
Fulton Boiler Works, Inc.;
THE OKONITE COMPANY;
THERMCO; TRANE US, INC., as
successor to American Standard Inc.;
TUTHILL CORPORATION; UNION CARBIDE
CORP.; UNION PUMP COMPANY; UNITED
SUPPLY CORPORATION; UTICA BOILERS;
VIKING PUMP CO.; WALLWORK BROTHERS,
INC.; WARREN PUMPS, INC.,
individually and as successor to
The Quimby Pump Company;
WEIL-MCLAIN COMPANY, INC.;
WEINMAN PUMPS; WOOLSULATE
CORPORATION; WORTHINGTON PUMP
CORPORATION; ZURN INDUSTRIES;
JOHNSON CONTROLS, INC.,
individually and as successor-in-
interest to York International Corp.;
SEQUOIA VENTURES, INC., f/k/a
Bechtel Corporation; BW/IP, INC.,
and its wholly owned subsidiaries;
FREEMAN AUTO PARTS; and USCO, INC.,


                               4        A-3642-14T1
      Defendants,
and

PECORA CORPORATION,

      Defendant-Appellant/
      Cross-Respondent.


          Argued February 14, 2018 – Decided July 9, 2018

          Before Judges Alvarez, Nugent, and Geiger.

          On appeal from Superior Court of New Jersey,
          Law Division, Middlesex County, Docket No. L-
          5695-13.

          Patricia M. Henrich argued the cause for
          appellant/cross-respondent (Reilly, Janiczek,
          McDevitt, Henrich & Cholden, PC, attorneys;
          Patricia M. Henrich and Josette F. Spivak, on
          the briefs).

          Amber R. Long argued the cause for respondent/
          cross-appellant (Szaferman, Lakind, Blumstein
          & Blader, PC, and Levy Konigsberg, LLP,
          attorneys; Robert E. Lytle and E. Elizabeth
          Sweetser, on the briefs).

          Phil S. Goldberg and Mark A. Behrens (Shook,
          Hardy & Bacon, LLP) of the District of
          Columbia Bar, admitted pro hac vice, attorneys
          for amici curiae Coalition for Litigation
          Justice,   Inc.,   National   Association   of
          Manufacturers,     American     Tort    Reform
          Association, and NFIB Small Business Legal
          Center (Philip S. Goldberg and Mark A.
          Behrens, on the brief).

          McCarter & English, LLP, and Gibbons, PC,
          attorneys   for   amicus   curiae    Honeywell
          International, Inc. (John C. Garde, of counsel
          and on the joint briefs; Kim M. Catullo and
          Ethan D. Stein, of counsel; Christopher A.


                                5                           A-3642-14T1
Rojao and Elizabeth K. Monahan, on the joint
briefs).

Caruso Smith Picini, PC, attorneys for amici
curiae   Union    Carbide   Corporation    and
CertainTeed Corporation (Richard D. Picini and
Anthony Caruso, on the joint briefs).

Eckert Seamans Cherin & Mellot, LLC, attorneys
for amici curiae A.O. Smith and Superior
Lidgerwood Mundy (David M. Katzenstein, on the
joint briefs).

Marshall Dennehey Warner Coleman & Goggin,
attorneys for amici curiae Kaiser Gypsum
Company, Riley Power, Jaeger Lumber and Supply
Company, and Warren Pumps (Paul C. Johnson,
on the joint briefs).

Pascarella DiVita, PLLC, attorneys for amici
curiae Ingersoll Rand Company, Trane US, Inc.,
General   Cable    Corporation,   and    Rheem
Manufacturing Company (Lisa M. Pascarella and
Stephanie A. DiVita, on the joint briefs).

Reilly, Janiczek, McDevitt, Henrich & Cholden,
PC, attorneys for amici curiae Aurora Pump
Company and Cleaver Brooks (Patricia M.
Henrich and Brandy L. Harris, on the joint
briefs).

Sedgwick LLP, attorneys for amici curiae
BorgWarner Morse TEC LLC, Foster Wheeler LLC,
survivor to a merger with Foster Wheeler
Corporation,   and  Foster   Wheeler   Energy
Corporation (Christopher J. Keale, on the
joint briefs).

Diane M. Pompei (Lynch Daskal Emery LLP),
attorney for amicus curiae Georgia-Pacific
LLP.

McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for amici curiae Burnham LLC and


                      6                          A-3642-14T1
              Eaton Corporation   (Nancy   McDonald,   on    the
              joint briefs).

              McGivney & Kluger, attorneys for amici curiae
              Ductmate Industries, The Fairbanks Company,
              Herman Sommer, and Magid Glove and Safety
              (Thomas McNulty, on the joint briefs).

PER CURIAM

      On June 19, 2014, a Law Division judge denied defendant Pecora

Corporation's motion for summary judgment.        The matter proceeded

to trial on plaintiff William Condon's (Condon) complaint for

damages related to his mesothelioma, and his wife Debbie Condon's

per   quod    claim   (collectively,   plaintiffs).    The    jury,     after

apportioning damages of two percent to Pecora, awarded plaintiffs

compensatory damages of $6.5 million.          On plaintiffs' punitive

damage claim, the jury awarded Condon $1 million.        The trial court

molded that verdict to $650,000, in accordance with the punitive

damages cap under the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to

-5.17.1       Accordingly,   plaintiffs    recovered   $783,067.83        from

Pecora.      We now vacate the judgment and reverse the trial court's

denial of the motion for summary judgment.




1
  N.J.S.A. 2A:15-5.14(b) holds that "No defendant shall be liable
for punitive damages in any action in an amount in excess of five
times the liability of that defendant for compensatory damages."
Pecora owed two percent of the $6.5 million award for compensatory
damages, which equals $130,000. Five times $130,000 equals the
$650,000 that was reached.

                                       7                              A-3642-14T1
     Plaintiffs'     complaint      originally     named       ninety-seven

defendants.    Of the defendants who settled with Condon, nine did

so before trial.       The jury apportioned liability and damages

between eleven defendants, including Pecora.         Other than the six

who were defendants at trial, the court granted the remainder

summary judgment and dismissed them from the case, or plaintiffs

abandoned the claims against them, or they were otherwise dismissed

from the litigation.

     Pecora unsuccessfully moved for judgment notwithstanding the

verdict (JNOV) or a new trial on March 6, 2015.           The judge denied

the motion.     That decision, like the summary judgment decision

before it, was based on the judge's finding that Pecora was the

"exclusive    supplier"   of   asbestos   cement   used   in   the   Burnham

products to which Condon was exposed.         We conclude that factual

finding was not supported by the record.

                                    I.

     On appeal, plaintiffs concede "[t]here is no substantial

difference between the evidential materials Plaintiff[s] relied

upon in opposing Pecora's motions for summary judgment and for

judgment notwithstanding the verdict." Although we have the record

of the several weeks' long trial, we are nonetheless confined to

the summary judgment record.       See Ji v. Palmer, 333 N.J. Super.

451, 459 (App. Div. 2000).

                                    8                                A-3642-14T1
     We recount the relevant facts drawn from the summary judgment

materials.     These materials included Condon's deposition and the

deposition of a retired Burnham employee, Fred W. Kendall, taken

in unrelated asbestos litigation on August 8, 1991.

     From 1972 to 1987, Condon worked for Fritze Heating and

Cooling (Fritze), which he described as a big company that "did

commercial     and    residential     heating    and      air   conditioning

installations."         His    work   "mainly"     included      residential

installations.       Condon did both residential and commercial jobs

but "was not involved with the commercial that much." He installed

systems in new homes and replaced them in existing homes.              Condon

did not repair boilers because Fritze had "a specific service

department."     He recalled repairing only one Burnham boiler that

he repaired because it leaked at installation.

     Most of the boilers Condon installed were packaged boilers.

He very rarely installed boilers requiring on-site assembly.

     Condon     estimated     about   sixty     percent    of   the    boiler

installations he performed were in houses that did not already

have an existing unit.        The other jobs required him to remove an

existing boiler, where "a lot of the times [he] had to break it

apart."

     Condon    identified     Weil-McLain,    Peerless,    Burnham,    Utica,

Florence, A.O. Smith, and Hydrotherm as the brands of boilers that

                                      9                               A-3642-14T1
he installed at Fritze during a six-month period. The only Burnham

boilers    Condon   recalled     installing    were    residential   packaged

boilers.    During his years with Fritze, Condon installed hundreds

of boilers.

     The "packaged boilers" were delivered with asbestos rope,

gaskets, and cement, or "trim kits."          When Condon needed asbestos

cement or gaskets that were not packaged with the boilers, he

obtained them from a supplier close to Fritze. He did not remember

the brand he used.

     Condon    could   not      recall    whether     Burnham's   residential

packaged boilers came with trim kits.                 When deposed, Kendall

answered "Not that I'm aware of" to the question of whether

"asbestos[-]containing gaskets, rope packing, or cement" were

"supplied   with    Burnham's    residential    packaged    boilers."      The

possible exception was a pre-cut gasket.

     Most of the time, the asbestos cement Condon used came in a

powder that had to be mixed with water.               Condon would apply it

with his hands and then, after it dried, scrape it off, creating

"some dust" that he breathed.

     Condon testified he would use premixed, wet cement rather

than dry cement when he worked on furnaces rather than boilers.

He also applied the premixed cement with his hands, and it too

would dry and create dust when removed.               The premixed cement he

                                     10                               A-3642-14T1
used was supplied by Fritze, but the only manufacturer he recalled

for the product was DAP.     The asbestos-containing products used

by Condon included a warning to keep away from children.

     Between 1985 and 1987, Condon was promoted to an installation

foreman.     In that job, he ceased doing any installations and

stopped using asbestos-containing products.

     Condon left Fritze in 1987 and began his own business,

William's Heating and Air Conditioning.        When he operated the

business, he was not exposed to any asbestos-containing products.

     Pecora manufactured a premixed, heavy paste, which contained

1.25 percent asbestos.     Pecora did not manufacture a dry cement

product.    Condon did not specifically recall ever using premixed

cement manufactured by Pecora.

     Plaintiffs concede the sole evidential link between Pecora

and Condon was through Burnham.       Specifically, plaintiffs point

to Kendall's deposition.    From 1967 to 1974, Kendall was a buyer,

and from 1974 to retirement, a senior buyer.    He was familiar with

the types of asbestos-containing products that Burnham purchased

during the years he was employed there.

     According to Kendall, Burnham had a residential steel boiler

plant, a commercial steel boiler plant, and a cast iron boiler

plant.     Burnham purchased premixed, high-temperature, asbestos-

containing cement for use with those products.

                                 11                          A-3642-14T1
     Kendall believed Burnham was using Pecora cement in the cast

iron plant since at least 1967 until sometime in the early 1980s.

He testified:

               Q.   Of the cast iron furnaces, do you
          know which models of furnaces the Pecora
          furnace cement was used for or on?

          A. We manufactured -- excuse me.         Boilers,
          not furnaces.

                Q.   I'm sorry.     Boilers.

          A.    There is a difference.

                Q.   Okay.

          A.    No, I do not know.

               Q.   Would you know whether or not the
          furnace cement was used on knockdown boilers,
          as opposed to package boilers?

                . . . .

          A.    No, I don't know.

               Q.   Do you know if they were used on
          residential boilers as opposed to commercial,
          or industrial boilers?

          A.    Basically residential.

     At his deposition, Kendall was shown documents he identified

as an order and confirmation for sixty gallons of Pecora asbestos

furnace cement, purchased in gallon cans, that was shipped to the

Burnham cast iron plant in 1978.           Kendall also identified a

"travelling requisition form" indicating Burnham purchased twelve


                                  12                          A-3642-14T1
cartons containing twelve two-pound cans of Pecora premixed cement

to be used for "PF-5 SPECIAL Repairs."       Kendall testified:

           A. PF-5 is a model. It should be a special
           model PF-5 and two pound cans would be the
           size of cans that would be shipped out for
           repairs or assembly out in the field, as
           opposed to the 15 pound cans that they use in
           the plant.

           Q. Okay. So, the larger cans were used for
           application to boilers.

           A.   Production line.

           Q. And the smaller cans, as evidenced by this
           traveling requisition, were used in the field?

           A.   Correct.

     Kendall could not recall Burnham ever purchasing this type

of "high temperature cement" from anyone other than Pecora, and

he believed it was "highly unlikely" that it did.

     Relying on this testimony, plaintiffs' counsel asserted, and

the trial court accepted, that Pecora was the "exclusive supplier

of asbestos cement to Burnham."         More specifically, that Pecora

was the exclusive supplier of premixed, wet asbestos cement to

Burnham.

     The evidence also showed Burnham purchased quantities of dry

asbestos cement, which was not manufactured by Pecora.         Kendall

testified:

                Q.  One of the products, I guess the
           principal product that I'm going to be

                                   13                             A-3642-14T1
         interested in, there may be other people in
         the room that will ask you about some of these
         other products, is something called 7M Cement.
         Do you know whether Burnham ever purchased any
         7M cement?

         A.   Yes.

              Q. And it's your testimony that Burnham
         did purchase 7M asbestos cement while you were
         employed there?

         A.   My recollection is that's the asbestos
         shorts, that's the dry cement.      7M is a
         particular manufacturer's terminology for it.

Burnham stopped purchasing dry asbestos cement in the late 1970s

or early 1980s.

    At deposition, Kendall was asked whether he could recall ever

using premixed cement as opposed to dry cement when installing

Burnham boilers.     He responded:

              Q.   Are you familiar with any sealant
         paste shipped in covered metal pails --

         A.   No, because the term "sealant paste" is
         a little general.    No, it's not specific
         enough so I cannot. I cannot identify that,
         no.

              Q.   Just so I'm clear, Mr. Kendall,
         summarizing your testimony, is it fair to say
         that other than the purchases of Pecora
         furnace cement that we've discussed today, you
         don't have any personal knowledge of any
         earlier or later purchases of Pecora furnace
         cements by Burnham?

              . . . .

         A.   No.

                                 14                       A-3642-14T1
         . . . .

         Q.   Actual purchase that you can recall.

    A.   No, no.

         Q.   Your recollection is drawn from the
    documents and, beyond that, you don't have any
    other specific recollection?

    A.   That's correct.

Pecora raises the following points on appeal:

    I.   THE TRIAL COURT ERRED IN DENYING PECORA'S
    MOTION FOR SUMMARY JUDGMENT

         A.   Plaintiff Has Not Provided Proof
         Sufficient   To   Allow   A   Reasonable
         Factfinder To Determine That Any Burnham
         Boiler Plaintiff Installed Came With A
         Can Of Pecora Cement

         B.   Plaintiff Has Not Provided Proof
         Sufficient   To   Allow   A   Reasonable
         Factfinder To Determine That His Work
         With Burnham Boilers Would Have Exposed
         Him To Pecora Cement Which Was Contained
         Within The Boiler

         C.   Pecora Is Not The Exclusive Supplier
         Of Asbestos Cement To Burnham

    II. THE TRIAL COURT ERRED IN DENYING PECORA'S
    MOTION TO DISMISS THE PUNITIVE DAMAGES CLAIM

         A.   The Evidence Submitted Regarding
         Pecora's Knowledge Is Insufficient To
         Meet The Clear And Convincing Standard

         B.   The   Trial    Court    Abused   Its
         Discretion In Admitting The Union Carbide
         Testimony As It Was Not Relevant And Its
         Value Was Outweighed By The Danger Of
         Unfair Prejudice

                           15                        A-3642-14T1
         C.   The   Trial   Court    Abused   Its
         Discretion    In   Admitting    Evidence
         Concerning   Protections   Provided   To
         Pecora's Employees

         D.   The   Trial  Court   Abused   Its
         Discretion    In  Admitting   Evidence
         Concerning Pecora's Decision To Stop
         Using Asbestos

         E.   The   Trial   Court   Abused  Its
         Discretion In Admitting The Opinion In
         The Matter Of Tysenn v. Johns-Manville
         Corp[.]

         F.   The   Trial   Court  Abused   Its
         Discretion In Admitting Evidence About
         Other Pecora Products

         G.   The Jury Charge And Verdict Sheet Do
         Not Set Forth The Applicable Standard

Plaintiffs' points on cross-appeal are:

    POINT III
    THE TRIAL COURT ERRED IN ALLOWING THE NON-
    SETTLING DEFENDANTS TO INTRODUCE INTO EVIDENCE
    ANSWERS TO INTERROGATORIES AND DEPOSITION
    TESTIMONY THE SETTLING DEFENDANTS PROVIDED IN
    OTHER LITIGATION BECAUSE, AS THIS COURT HELD
    IN BUTTITTA, SUCH EVIDENCE IS HEARSAY THAT
    DOES NOT FALL WITHIN ANY EXCEPTION TO THE RULE
    AGAINST HEARSAY

    POINT IV
    THE TRIAL COURT ERRED IN INSTRUCTING THE JURY,
    CONTRARY TO THE SUPREME COURT'S OPINION IN
    SHANKMAN V. STATE, 184 N.J. 187 (2005), THAT
    PLAINTIFF HAD "SETTLED" HIS CLAIMS WITH OTHER
    PARTIES AGAINST WHICH THE REMAINING DEFENDANTS
    ASSERTED CROSS-CLAIMS, THUS IMPLYING THAT
    THOSE PARTIES HAD ACKNOWLEDGED RESPONSIBILITY
    FOR PLAINTIFF'S MESOTHELIOMA



                         16                          A-3642-14T1
           POINT V
           THE TRIAL COURT ERRED IN FAILING TO INSTRUCT
           THE JURY, IN ACCORDANCE WITH ITS OWN PROPOSED
           INSTRUCTIONS DISTRIBUTED TO COUNSEL BEFORE
           SUMMATIONS, THAT DEFENDANTS HAD THE BURDEN OF
           SHOWING THAT THE RESPONSIBILITY OF EACH
           DEFENDANT FOUND LIABLE TO PLAINTIFF IS CAPABLE
           OF APPORTIONMENT

           POINT VI
           THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
           THAT PLAINTIFF HAD THE BURDEN OF PROVING THE
           LIABILITY OF BURNHAM FOR A PORTION OF
           PLAINTIFF'S INJURIES EVEN THOUGH PLAINTIFF
           SETTLED HIS CLAIM AGAINST BURNHAM BEFORE
           SUBMISSION OF THE CASE TO THE JURY

                                 II.

     Pecora argues plaintiffs have "not provided proofs sufficient

to allow a reasonable factfinder to determine that [Condon] was

exposed to any Pecora Cement, much less an amount of Pecora Cement

which would be sufficient to cause harm."   For this reason, Pecora

contends the trial court erred in denying its pre-trial motion for

summary judgment.

     A court should grant summary judgment "forthwith" when "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 entitled to a judgment or order as a matter of

law."   R. 4:46-2(c).   Under this standard, "a court should deny a

summary judgment motion only where the party opposing the motion


                                 17                         A-3642-14T1
has come forward with evidence that creates a 'genuine issue as

to any material fact challenged.'"         Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 529 (1995) (quoting R. 4:46-2(c)).             The

"non-moving party cannot defeat a motion for summary judgment

merely by pointing to any fact in dispute" if it is not material.

Ibid.

      This court reviews "a trial court's decision on summary

judgment 'de novo, employing the same standard used by the trial

court.'"      Van Horn v. Harmony Sand & Gravel, Inc., 442 N.J. Super.

333, 340 (App. Div. 2015) (quoting Tarabokia v. Structure Tone,

429 N.J. Super. 103, 106 (App. Div. 2012)).

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

two   types    of   causation:   product-defect   causation   and   medical

causation.      Hughes v. A.W. Chesterton Co., 435 N.J. Super. 326,

337 (App. Div. 2014).        To reach a jury on the issue of medical

causation, "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."         Sholtis v. Am.

Cyanamid Co., 238 N.J. Super. 8, 29 (App. Div. 1989).

      Under the "frequency, regularity and proximity" test that our

courts follow, a plaintiff who cannot establish direct causation

from a specific product must "prove an exposure of sufficient

                                     18                             A-3642-14T1
frequency, with a regularity of contact, and with the product in

close proximity." Id. at 28 (citing Lohrmann v. Pittsburgh Corning

Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986)); accord Hughes, 435

N.J. Super. at 345 (noting "liability should not be imposed on

mere guesswork" and proof of specific asbestos-containing products

at a workplace is insufficient alone, without proof linking those

products to the plaintiff's exposure).

     For purposes of this opinion, we will assume that very low

levels   of    exposure      can   cause    mesothelioma      and    that   Condon's

cumulative exposure over the years to all the asbestos-containing

products he used caused him to develop the disease.                           Condon

testified he used wet furnace cement on occasion that dried on his

hands and created dust when it flaked off. If there was sufficient

evidence for a jury to conclude some of that wet furnace cement

was manufactured by Pecora and not by others, perhaps there would

have been sufficient evidence to find Pecora liable.                         But no

evidence      establishes     the    necessary       link   between      Condon   and

Pecora's      wet   cement    to    the    extent    required       to   demonstrate

"frequency, regularity, and proximity.                Sholtis, 238 N.J. Super.

at 28-29.

     The trial court ruled:               (1) between 1973 and 1984, Condon

worked   on    many   Burnham       boilers     in   the    residential     context;

(2) these were packaged boilers and "the majority of them" came

                                           19                                A-3642-14T1
packaged with cement; (3) installation involved the use of cement;

and (4) Pecora "was the exclusive supplier of asbestos cement to

Burnham."      In our opinion, the record did not, even drawing all

inferences in plaintiffs' favor, establish that Burnham boilers

came packaged with cement and that Pecora was the exclusive

supplier of asbestos cement to the company.

     Condon testified he used premixed cement rather than dry

cement, which was manufactured by DAP.          Thus, the sole possible

link between Condon and Pecora was Burnham, and a determination

of Pecora's liability would have necessitated findings by the jury

that (1) the Burnham boilers were shipped with trim kits, and

(2) those trim kits included wet cement rather than dry cement.

Plaintiffs' proofs did not establish these points as more likely

than not.

     The only evidence that could support a finding that Burnham

included trim kits with any of the boilers that Condon installed

was Condon's testimony that a majority of the various brands of

boilers   he    installed   included   such   kits.   Regarding   Burnham

specifically, Condon recalled installing its residential packaged

boilers, but he did not remember whether those boilers came with

trim kits.     Kendall, however, answered "[n]ot that I'm aware of"

when asked whether asbestos cement was "supplied with Burnham's

residential packaged boilers" in the relevant time frame.             Thus

                                   20                             A-3642-14T1
neither Condon nor Kendall established a connection between Pecora

and Condon's disease.

     Even assuming a jury could conclude it was more likely than

not that the Burnham boilers Condon installed included trim kits,

the evidence did not establish those trim kits contained wet cement

rather than dry cement.     Condon testified the asbestos cement

typically came in a powder he had to mix with water before use.

He acknowledged he could not say, without speculating, that Burnham

provided a paste product to use instead.   Kendall's testimony was

that Burnham purchased "7M" dry asbestos cement.      Therefore, if

any trim kits supplied by Burnham to Condon would have included a

dry product.   The jury had no basis to conclude it was more likely

than not that Burnham trim kits, atypically, included wet cement

manufactured by Pecora.

     Along the same lines, Kendall's testimony does not support a

finding that Burnham ever provided wet cement for use in installing

packaged boilers like those installed by Condon.   Kendall said wet

cement was used on "[b]asically residential" boilers, but added

he did not know whether they were sectional or packaged boilers,

and in any event it was not clear from this portion of his testimony

whether the cement was used solely within the Burnham plant.

Later, however, Kendall specifically recalled Burnham purchased

"larger cans" of Pecora cement for use on the "[p]roduction line."

                                21                          A-3642-14T1
     Kendall acknowledged Burnham purchased twelve cartons of

smaller cans of Pecora cement to be "shipped out for repairs or

assembly out in the field" specifically for a "special model PF-

5" boiler.     However, there is no evidence linking Pecora cement

to any other model of Burnham boiler "out in the field" and no

evidence linking Condon to this single model of Burnham boiler.

Condon testified he did not perform "repairs" on boilers.

     Even drawing all inferences in plaintiffs' favor, the jury

would have had no basis to conclude it was more likely than not

that the Burnham boilers Condon installed were packaged with Pecora

cement.   Accordingly, the trial judge should have granted summary

judgment to Pecora.     See R. 4:46-2(c).

                                    III.

     Because    we   find   the   court    should   have   granted   summary

judgment, we do not reach Pecora's points of error on appeal

regarding punitive damages.       Nor do we reach the issues raised by

plaintiffs by way of cross-appeal.         There was no genuine issue as

to any material fact.        Pecora was entitled to a judgment as a

matter of law.

     Reversed.




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