July 10, 2018
On July 9, 2018, the New Jersey Appellate Division issued its unpublished decision in Condon v. Pecora Corporation, et al., Docket No. A-3642-14T1 (App. Div. 2018), wherein it reversed the trial court’s denial of Pecora’s summary judgment motion and vacated Pecora’s portion of the $6.5 million in compensatory damages and $1 million in punitive damages verdict. The law firm of McGivney, Kluger & Cook, PC represented Pecora and Levy Konigsberg LLP was counsel for the plaintiffs.
By way of background, plaintiff, William Condon (Condon) filed suit for damages related to his mesothelioma, and his wife Debbie Condon’s per quod claim. Mr. Condon alleged occupational exposure to asbestos through his work with boilers. At the close of fact discovery, Pecora, represented by McGivney, Kluger & Cook, P.C., moved for summary judgment before the Law Division judge. On June 19, 2014, Pecora’s motion was denied based on the judge’s finding that Pecora was the “exclusive supplier” of pre-mixed asbestos cement used in Burnham boilers with which Condon worked. Similarly, at trial, Pecora, represented by Robert Baum, Esq. and Pooja Patel, Esq. of McGivney, Kluger & Cook, moved for directed verdict at the end of plaintiffs’ case, and for judgment notwithstanding the verdict (JNOV) or a new trial on March 6, 2015. The judge denied these motions. At the close of trial, the jury awarded plaintiffs compensatory damages of $6.5 million, but apportioning only two percent to Pecora ($130,000). On plaintiffs’ punitive damage claim, the jury awarded Condon $1 million, which was molded to $650,000 in accordance with New Jersey’s punitive damages cap.
On appeal, Pecora argued that: i) the trial court erred in denying Pecora’s summary judgment motion because plaintiffs failed to establish that Condon was actually exposed to Pecora cement on any Burnham boilers with which he worked and ii) that the trial court erred in denying Pecora’s motion to dismiss the punitive damages claim. Plaintiffs’ cross-appealed on one primary issue: that Pecora should not have been permitted to introduce prior deposition testimony of corporate representatives and prior interrogatories of settled defendants to prove cross-claims. Because the Appellate Division found that the trial court should have granted Pecora’s summary judgment, the court did not reach Pecora’s points of error on appeal regarding punitive damages, or the issues raised by way of cross-appeal by plaintiffs.
In short, the Appellate Division concluded, upon review of the summary judgment record, that the evidence proffered by plaintiffs failed to establish the necessary link between Condon and Pecora’s wet cement to the extent required to demonstrate “frequency, regularity, and proximity” under Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 29 (App. Div. 1989). Between 1972 and 1982, Condon was employed by Fritze Heating and Cooling installing residential boilers, including packaged boilers manufactured by Burnham (among other brands). Condon testified that the packaged residential boilers were delivered with asbestos rope, gaskets and cement or “trim kits”; however, Condon could not recall whether Burnham’s residential packaged boilers came with “trim kits” (i.e. cement). Condon testified he mostly used powder cement on boilers, but sometimes used pre-mixed wet cement. Importantly, Condon never specifically identified using a product manufactured by Pecora. Plaintiffs conceded that the sole evidential link between Pecora cement and Condon was through Burnham. In this regard, plaintiffs pointed to the testimony of a Burnham corporate representative, Fred W. Kendall, taken on August 8, 1991. In analyzing, Kendall’s testimony, the Appellate Division found that Kendall did not establish two requisite facts necessary to impute liability on Pecora: namely, that i) the Burnham boilers used by Condon were shipped with trim kits, and ii) those trim kits included wet cement rather than dry cement. Accordingly, plaintiffs’ proofs did not establish that Pecora was the “exclusive supplier” of asbestos cement used in the Burnham products to which Condon was exposed. The Appellate Division found that “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” and, therefore, the trial judge should have granted summary judgment to Pecora.