Tag Archives: Sydney Kpundeh

A Father’s Battle

Posted by Sydney Kpundeh.

A disgruntled New Jersey father has brought products liability design defect and failure-to-warn claims against The New Jersey Port Authority Transit Corporation to recover for injuries arising out of a take-home asbestos exposure. The case’s premise surrounds the father’s daughter, who started to exhibit signs of mesothelioma, which he claims were a result of secondary exposure to friable asbestos fibers through direct contact with her father and while washing his asbestos-laden work clothing. The father is an employee of the Port as a train operator, yard operator, and supervisor. His job duties included the repair and maintenance of asbestos-contaminated air brake systems on the Port’s multiple unit locomotives. When his daughter’s symptoms started worsening, he filed a product liability design defect and failure-to-warn case against the Port and various manufacturers of locomotives and locomotive brake shoes. He claimed that his daughter’s injuries could have been caused by her exposure to asbestos dust created when he replaced the brakes on cars he worked on after hours.

When the case was put before the court, all parties moved for summary judgment. The Port’s argument was that federal legislation and court precedent preempted state tort claims related to locomotives. The automobile defendants argued that there was no evidence that the father’s contacts with automotive brake dust were sufficiently frequent, regular, and proximate to establish causation.

The Appellate Division of the Superior Court of New Jersey ruled that the injuries were preempted by the Locomotive Inspection Act (LIA) under the doctrine of field preemption. The court ruled in such direction because they examined a number of previous decisions that had been considered in the scope of the LIA’s preemptive effect and found that the only way to ensure uniformity is that they must rule the same way.

The failure-to-warn claims that the father filed against the various manufacturers and sellers of asbestos-containing automobile brakes were dismissed summarily because there was insufficient evidence of medical causation linking their products to second-hand exposure. “[T]he evidence showed that the father replaced brakes shoes contaminated with asbestos on four occasions over a period of eight years.”

When he was asked about these times, he could not recall the names of the manufacturers of the replaced brake shoes nor could he recount the number of times he installed new brakes manufactured by the named defendants. Therefore, “it was clear that even if the father was exposed to one of each of the automotive defendants’ products over the eight-year period in question, this exposure was so limited that it failed to meet the frequency, regularity, and proximity test that is required for this type of case.” Hence, this is why the case was dismissed.

Sydney is a political science major and legal studies minor at Seton Hall University, Class of 2016.