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ROBINSON v. AIR & LIQUID SYSTEMS CORPORATION

Civil Case No. 11-4078 (FSH).

WILLIAM J. ROBINSON and GAIL A. ROBINSON, Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

United States District Court, D. New Jersey.

July 23, 2014.

Attorney(s) appearing for the Case

WILLIAM J. ROBINSON, Plaintiff, represented by MOSHE MAIMON , LEVY, PHILIPS & KONIGSBERG, LLP, HOLLY CHRISTINE PETERSON , LEVY PHILLIPS & KONIGSBERG LLP & ROBERT E. LYTLE , SZAFERMAN, LAKIND, BLUMSTEIN & BLADER, PC.

GAIL A. ROBINSON, Plaintiff, represented by MOSHE MAIMON , LEVY, PHILIPS & KONIGSBERG, LLP, HOLLY CHRISTINE PETERSON , LEVY PHILLIPS & KONIGSBERG LLP, JEFFREY P. BLUMSTEIN , SZAFERMAN, LAKIND, BLUMSTEIN, BLADER & LEHMANN, PC & ROBERT E. LYTLE , SZAFERMAN, LAKIND, BLUMSTEIN & BLADER, PC.

William Robinson, Plaintiff, represented by William Robinson .

ALLIED CHEMICAL CORPORATION, formerly known as GENERAL CHEMICAL, Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP.

A.O. SMITH CORPORATION, doing business as A.O. SMITH WATER PRODUCTS COMPANY, Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

ARMSTRONG INTERNATIONAL, INC., Defendant, represented by THOMAS J. KELLY, JR. , VASIOS, KELLY & STROLLO, PC.

CARRIER CORPORATION, also known as BRYANT MANUFACTURING CORPORATION, Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

CBS CORPORATION, formerly known as VIACOM, INC., successor by merger to CBS CORPORATION f/k/a WESTINGHOUSE ELECTRIC CORPORATION, Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GARDNER DENVER, INC., Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

GENERAL ELECTRIC, INC., Defendant, represented by CHRISTOPHER J. KEALE , SEDGWICK LLP & DAVID SCHUYLER BLOW , SEDGWICK LLP.

GEORGIA- PACIFIC LLC, Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

GOULDS PUMPS INCORPORATED, Defendant, represented by STEVEN FREDERIK SATZ , HOAGLAND LONGO MORAN DUNST & DOUKAS.

HONEYWELL INTERNATIONAL, INC., formerly known as ALLIED SIGNAL, INC. as successor-in-interest to Allied Chemical Corporation, General Chemical anf The Bendix Corporation, Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP & JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

IMO INDUSTRIES, INC., individually and as successor-in-interest to and formerly known as DELAVAL TURBINE, TRANSAMERICA DELAVAL, Defendant, represented by JOSEPH IRA FONTAK , LEADER & BERKON LLP.

INGERSOLL-RAND COMPANY, Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

Tata Chemicals (Soda Ash) Partners, Defendant, represented by ROBERT JOHN PANSULLA , FINAZZO COSSOLINI O'LEARY & HAGER LLC.

CBS CORPORATION, Cross Claimant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

GAIL A. ROBINSON, Cross Defendant, represented by ROBERT E. LYTLE , SZAFERMAN, LAKIND, BLUMSTEIN & BLADER, PC.

WILLIAM J. ROBINSON, Cross Defendant, represented by ROBERT E. LYTLE , SZAFERMAN, LAKIND, BLUMSTEIN & BLADER, PC.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CARRIER CORPORATION, Cross Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

GEORGIA- PACIFIC LLC, Cross Claimant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CARRIER CORPORATION, Cross Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

WOOLSULATE CORP., Cross Claimant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CARRIER CORPORATION, Cross Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GEORGIA- PACIFIC LLC, Cross Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

HONEYWELL INTERNATIONAL, INC., Cross Defendant, represented by JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

GARDNER DENVER, INC., Cross Claimant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

CARRIER CORPORATION, Cross Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GARDNER DENVER, INC., Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

GEORGIA- PACIFIC LLC, Cross Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

HONEYWELL INTERNATIONAL, INC., Cross Defendant, represented by JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Claimant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CARRIER CORPORATION, Cross Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GARDNER DENVER, INC., Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

GEORGIA- PACIFIC LLC, Cross Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

HONEYWELL INTERNATIONAL, INC., Cross Defendant, represented by JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

CARRIER CORPORATION, Cross Claimant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CARRIER CORPORATION, Cross Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GARDNER DENVER, INC., Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

GEORGIA- PACIFIC LLC, Cross Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

HONEYWELL INTERNATIONAL, INC., Cross Defendant, represented by JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

A.O. SMITH CORPORATION, Cross Claimant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

ALLIED CHEMICAL CORPORATION, Cross Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GARDNER DENVER, INC., Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

GEORGIA- PACIFIC LLC, Cross Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

HONEYWELL INTERNATIONAL, INC., Cross Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP & JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

IMO INDUSTRIES, INC., individually and as successor-in-interest to and, Cross Claimant, represented by JOSEPH IRA FONTAK , LEADER & BERKON LLP.

ALLIED CHEMICAL CORPORATION, Cross Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GARDNER DENVER, INC., Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

GEORGIA- PACIFIC LLC, Cross Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

HONEYWELL INTERNATIONAL, INC., Cross Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP & JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

IMO INDUSTRIES, INC., individually and as successor-in-interest to and, Cross Defendant, represented by JOSEPH IRA FONTAK , LEADER & BERKON LLP.

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

ARMSTRONG INTERNATIONAL, INC., Cross Claimant, represented by THOMAS J. KELLY, JR. , VASIOS, KELLY & STROLLO, PC.

ALLIED CHEMICAL CORPORATION, Cross Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP.

ARMSTRONG INTERNATIONAL, INC., Cross Defendant, represented by THOMAS J. KELLY, JR. , VASIOS, KELLY & STROLLO, PC.

A.O. SMITH CORPORATION, Cross Defendant, represented by JOSEPH D. RASNEK , MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP.

CARRIER CORPORATION, Cross Defendant, represented by LINTON W. TURNER, JR. , CRAWSHAW, MAYFIELD, TURNER, O'MARA, DONNELLY & MCBRIDE,.

CBS CORPORATION, Cross Defendant, represented by CHARLES F. FORER , ECKERT SEAMANS CHERIN & MELLOTT, LLCOHHOLM & EWING, PC.

FLOWSERVE, individually and as successor to Durco Pumps, Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

FMC CORPORATION, individually and as succesor to Northern Pump Company and Peerless Pumps, Cross Defendant, represented by W. MATTHEW REBER , KELLEY, JASONS, MCGUIRE & SPINELLI, L.L.P..

GARDNER DENVER, INC., Cross Defendant, represented by WILLIAM D. SANDERS , MCGIVNEY & KLUGER, LLC.

GEORGIA- PACIFIC LLC, Cross Defendant, represented by SCOTT ANDREW HARFORD , LYNCH DASKAL EMERY LLP.

HONEYWELL INTERNATIONAL, INC., Cross Defendant, represented by JEFFREY A. CARR , PEPPER HAMILTON LLP & JENNIFER LORI MAHER , PEPPER HAMILTON LLP.

IMO INDUSTRIES, INC., individually and as successor-in-interest to and, Cross Defendant, represented by JOSEPH IRA FONTAK , LEADER & BERKON LLP.

INGERSOLL-RAND COMPANY, Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

TRANE U.S. INC., Cross Defendant, represented by LISA PASCARELLA , PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC.

WOOLSULATE CORP., Cross Defendant, represented by JEANINE D. CLARK , MARGOLIS EDELSTEIN.

OPINION & ORDER

FAITH S. HOCHBERG, District Judge.

This matter comes before the Court upon Defendant Warren Pumps LLC's ("Warren") motion for summary judgment (Dkt. No. 95). The Court has reviewed the submissions of the parties and considers the motion pursuant to Federal Rule of Civil Procedure 78;1 and

it appearing that this matter was transferred to the Honorable Eduardo C. Robreno, U.S.D.J., in the Eastern District of Pennsylvania by order of the United States Judicial Panel on Multidistrict Litigation on September 7, 2011 (Dkt. No. 49); and

it appearing that Judge Robreno ruled on a summary judgment motion by Warren and found that there was "no evidence that any of [the asbestos] gaskets were manufactured or supplied by Warren," (MDL-875, E.D. Pa. Civil Action No. 11-67687, Dkt. No. 196 dated February 7, 2013 at 8); and

it appearing that Judge Robreno also found that "no reasonable jury could conclude from the evidence that Decedent was exposed to asbestos from gaskets supplied by Defendant Warren such that it was a substantial factor in the development of his illness," (id.); and

it appearing that Judge Robreno found that Warren could only potentially face liability if New Jersey law "holds Defendant liable for alleged exposure to asbestos arising from gaskets that were used with Warren pumps but were not manufactured or supplied by Warren, such as replacement gaskets. In other words, Warren only faces potential liability in this action if New Jersey law does not recognize the so-called `bare metal defense,'" (id.); and

it appearing that at the time Judge Robreno issued his opinion, he found that New Jersey's appellate courts had not squarely addressed the question and granted Warren leave to refile its motion for summary judgment in this Court to answer this narrow question of law2 (id. at 8-9); and

it appearing that Judge Robreno made similar findings with respect to Warren's pump packing and insulation, (id. at 9-10); and

it appearing that after remand to this Court, Warren filed a motion for summary judgment on this narrow legal issue (Dkt. No. 95); and

it appearing that the Superior Court of New Jersey, Appellate Division has recently recognized the so-called "bare metal" defense, see Hughes v. A.W. Chesterton Co., 435 N.J.Super. 326, 345-46 (N.J. Super. Ct. App. Div. 2014) ("We have required that plaintiffs present proof the injured party has had such exposure to specific products manufactured or sold by the defendant. . . . We do not agree that plaintiffs may prove causation by showing exposure to a product without also showing exposure to an injury-producing element in the product that was manufactured or sold by defendant."); and

for all the reasons stated in Judge Robreno's summary judgment decision, Warren's motion (Dkt. No. 95), and the reasons stated by the Appellate Division in Hughes;3

IT IS on this 23rd day of July, 2014,

ORDERED that Warren's motion for summary judgment (Dkt. No. 95) is GRANTED; and it is further

ORDERED that Plaintiff's claims against Warren are DISMISSED WIT PREJUDICE.

IT IS SO ORDERED.

FootNotes


1. The Court does not consider the 20 pages of additional arguments Plaintiff attempts to "adopt by reference" in her papers. Any arguments not explicitly raised in Plaintiff's brief are deemed waived. See, e.g., Gladysiewski v. Allegheny Energy Serv. Corp., 282 F. App'x 979, 981 (3d Cir. 2008).
2. As Judge Robreno noted, Warren and Plaintiff agreed that New Jersey law applied to this issue. The Court need not address any choice of law issues at this time as the choice of New Jersey law is law of the case for these parties on this particular issue. (MDL-875, E.D. Pa. Civil Action No. 11-67687, Dkt. No. 196 dated February 7, 2013 at 2.) In any event, these two parties waived the application of any other law with respect to this narrow issue.
3. In the absence of clear precedent from the New Jersey Supreme Court on this issue, the Court must predict how the state's highest court would resolve the issue. Travelers Indem. Co. v. Dammann & Co., Inc., 594 F.3d 238, 244 (3d Cir. 2010). "Furthermore, in the absence of direct authority from the New Jersey Supreme Court, we may treat as persuasive authority decisions of the Appellate Division of the Superior Court of New Jersey." Id. Finally, "where two competing yet sensible interpretations of state law exist, we should opt for the interpretation that restricts liability, rather than expands it, until the Supreme Court of [New Jersey] decides differently." Id. at 253 (internal quotation marks omitted).

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