Sholtis v. American Cyanamid Co.

• Decision Date: 22 December 1989
• Citation: 568 A.2d 1196,238 N.J.Super. 8
• Parties: , Prod.Liab.Rep. (CCH) P 12,361 Robert J. SHOLTIS Jr., as Executor of the Estate of Robert J. Sholtis and Pauline Sholtis, Individually and Sam Lee and Eunice Lee, his wife, Plaintiffs-Appellants, v. AMERICAN CYANAMID CO., et al, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 8

238 N.J.Super. 8

568 A.2d 1196, Prod.Liab.Rep. (CCH) P 12,361

Robert J. SHOLTIS Jr., as Executor of the Estate of Robert

J. Sholtis and Pauline Sholtis, Individually and Sam Lee and Eunice Lee, his wife, Plaintiffs-Appellants, v. AMERICAN CYANAMID CO., et al, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 18, 1989.

Decided Dec. 22, 1989.

Jane B. Cantor, for plaintiffs-appellants (Garruto, Galex & Cantor, attorneys; Bryan D. Garruto and Jane B. Cantor of counsel; Jane B. Cantor, East Brunswick, and William E. Paulus, on the brief).

John L. McGoldrick, for defendants-respondents Owens-Illinois, Inc., Celotex Corp., Eagle-Picher Industries, Inc., Keene Corp., Flintkote Co., Armstrong World Industries, Inc., GAF Corp., H.W. Porter Co. and Porter Hayden Co. (McCarter & English, attorneys; Andrew T. Berry, of counsel, Anthony Bartell, on the brief; John L. McGoldrick, Newark, on the supplemental letter-brief).

James P. Richardson, for defendant-respondent John Crane Inc. (Sellar, Richardson, Stuart & Chisholm, attorneys; James P. Richardson, of counsel; Wendy H. Smith, Roseland, on the brief).

Before Judges DREIER, SCALERA and D'ANNUNZIO.

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiffs appeal from summary judgments granted to the remaining defendants in this strict liability asbestos case. Plaintiffs are Robert J. Sholtis, Jr., Executor of the Estate of Robert J. Sholtis and the decedent's widow, Pauline Sholtis, and Sam Lee and Eunice Lee, his wife. Both Mr. Sholtis and Mr Lee, (plaintiffs) were employees of American Cyanamid Co., a former defendant in this case. ¹ The cases were consolidated for discovery purposes by a case management order dated December 2, 1986. Of the many other original defendants, the principal remaining defendants at the time of the summary judgment motions, who had been denominated as the "Wellington defendants," were Owens-Illinois Inc., Celotex Corp., Eagle-Picher Industries Inc., Keene Corporation, The Flintkote Company, Armstrong World Industries Inc., GAF Corporation, H.W. Porter Company and Porter Hayden Company. ²

This case presents two basic problems. The first is procedural, in that plaintiffs attempted to present supplemental certifications to the court in opposition to defendants' motions after the time had expired for receipt of additional factual material. The trial judge refused to consider this material, and we must determine whether such refusal constituted reversible error. ³ The second issue in the case is whether the trial judge was correct in determining that plaintiffs failed to prove instances of contact between the Wellington defendants' products and either of the plaintiffs. Within this issue we must also consider the legal underpinnings of the factual analysis, namely, whether there is a legal theory that supports potential liability on the part of one or more of the Wellington defendants.

In most asbestos cases, where exposure is cumulative over many years and there is a late manifestation of disease, it is difficult to prove plaintiff's exposure to a particular defendant's product. See Fischer v. Johns-Manville Corp., 103 N.J. 643, 660-661, 512 A.2d 466 (1986). The claimed exposure in both of the cases before us spans over four decades. Plaintiffs worked in and among many of the buildings in the American Cyanamid complex during their long tenures with their employer. Asbestos products were clearly present throughout the American Cyanamid facility, and plaintiffs have attempted to pinpoint where they may have been brought into contact with the products of one or more of the Wellington defendants.

Plaintiff Sholtis died at age 65 from pleural asbestosis before his deposition could be taken. He worked at the American Cyanamid plant from 1941 to 1980, first as a mill operator, then as a maintenance laborer, pipefitter's helper, junior mechanic, and finally as an area mechanic. Given the explanation of Mr. Sholtis' job, there is little doubt that he was directly exposed to and worked directly with asbestos at the plant. ⁴ His case necessarily relied upon employment records and testimony of co-workers and suppliers to prove when and where he was exposed to asbestos, and which company manufactured the asbestos to which he was exposed. Employees placed him in five different buildings and medical records in an additional five.

While Mr. Sholtis' exposure was both direct and as a bystander, Mr. Lee's exposure was solely as a bystander, since he did not work directly with asbestos. Mr. Lee worked at American Cyanamid from 1952 until 1988. During the first several years he was a laborer, a helper and a janitor, and then in 1964 became a mill operator. From 1983 until retirement in 1988 he again worked as a janitor. At the age of 53 a portion of his right lung was removed due to pulmonary asbestosis. Employment records and his deposition place him in 14 different buildings in the American Cyanamid complex. He testified that since 1983 he has worked "all over the plant" as a janitor. Lee claims that he worked in building 86 at about the same time as another witness was ripping down asbestos at that location. The witness, however, did not specifically recall in what years he worked in building 86, and remembered using only Johns-Manville asbestos.

Witnesses named several manufacturers other than Johns-Manville as suppliers of asbestos to American Cyanamid. Most, however, could not state which product was used in which building, having taken no account of the source of various products at the time. Mr. Lee also testified that he has no knowledge of which manufacturer supplied the asbestos in the plant. The foregoing constitutes a brief summary of the facts originally before the court and upon which the judge's decision was rendered.

I

The new evidence plaintiffs attempted to produce fell into two categories. Some had already been elicited in discovery, but had not been presented to the court as part of plaintiffs' initial papers. Other evidence, such as the Stahoski affidavit, discussed infra, was totally new material. Hovan's second affidavit identified asbestos products manufactured or supplied by five of the Wellington defendants, Porter Hayden, Armstrong, GAF, Owens and Celotex. Hovan stated:

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2. While employed at American Cyanamid, I used asbestos containing products manufactured by the following companies:

Porter Hayden GAF

Armstrong Celotex

Johns Manville Raybestos Manhattan

Owens Corning

Fiberglass

These products included, but were not limited to, gaskets, insulation, ceiling and floor tile, pipe covering and brake linings.

3. All members of my trade used the same asbestos containing products as I did during my employment at American Cyanamid and we all got them from the same stockroom. Additionally, vendors often delivered asbestos containing material to us at the spot where we were working on a particular job.

4. While employed at American Cyanamid, we took the asbestos containing products we used into all buildings.

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Supplemental affidavits or depositions from Schwartz, Bartushak and Naldi also identified additional manufacturers, including many of the Wellington defendants. Schwartz included Eagle-Picher, Flintkote and Porter Hayden; Bartushak included Porter Hayden; Naldi mentioned Flintkote. An affidavit from a new witness, Stahoski, an insulator, also identified additional defendants' products, including those of Wellington defendants Eagle-Picher, GAF, Owens Corning, and Porter Hayden. At least one of the initial affidavits or certifications supports the presence of the products of each of the Wellington defendants at American Cyanamid during the period both of the plaintiffs worked there. And the new proofs clearly stated that the asbestos products were drawn from a common stockroom and used throughout all the buildings in the American Cyanamid plant.

Defendants assert that all of plaintiffs' amended proofs should have been included in their first certifications opposing the summary judgment motions, and that such supplemental evidence would prejudice defendants in that they would have been forced to conduct further discovery and depose at least the new witness, Stahoski. The trial judge ruled that he would not consider the amended proofs. He stated: "You did not ask me and, therefore, I did not agree to accept either supplemental or additional affidavits from fact witnesses ... it is that [the original] record upon which I must base my decision."

Summary judgment motions are useful in terminating patently meritless litigation. But, as a trial is a search for the truth and courts should dispose of cases on their merits, a judge should approach summary judgment motions with a predisposition to acting only with all reasonably determinable information in hand. A trial judge has discretion to permit supplemental affidavits to be submitted on summary judgment motions. West Point Island Civic Association v. Dover Tp., 93 N.J.Super. 206, 211, 225 A.2d 579 (App.Div.1966), certif. den. 48 N.J. 576, 227 A.2d 134 (1967). But this discretion should be exercised to increase, not limit, the likelihood that the information before the court reflects the facts that could be adduced at trial. Even as late as at trial, previously undisclosed witnesses may be produced where the failure to supply the witness' "name in answers to interrogatories was not the result of a design to mislead and where there is no surprise or prejudice to the opposing party if the testimony is allowed." Conde v. Browne, 174 N.J.Super. 351, 354, 416 A.2d 915 (Law Div.1980). See also Brown v. Mortimer, 100 N.J.Super. 395, 401-402, 242 A.2d 36 (App.Div.1968); Branch v. Emery Transportation Co., 53 N.J.Super. 367, 375-376, 147 A.2d 556 (App.Div.1958). If such latitude is to be afforded an erring party even at trial, this principle is even more applicable to affidavits submitted in response...