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In Fowler, the Court relied primarily on circumstantial evidence to support its finding that plaintiff had, in fact, presented sufficient evidence whereby a reasonable jury could infer plaintiff decedent suffered asbestos exposure from defendant United Carbide Corporation’s (UCC) products. Notably, while no witness was able to link UCC’s asbestos to plaintiff decedent and though companies other than UCC also provided asbestos to plaintiff’s employer during his employment, the Court still found that decedent’s contact with UCC’s asbestos-containing products could be found to be frequent, regular and proximate by the trier of fact. The fact that UCC had provided substantial quantities of asbestos to the facility over the 12 year period of time that decedent handled asbestos while working in the facility was enough for the Fowler Court to find that plaintiff had presented sufficient evidence to create an issue of material fact and thereby reverse the trial court’s granting of summary judgment. In support of its reliance on circumstantial evidence, the Fowler Court pointed to earlier cases which recognized that “proof of direct contact is almost always lacking” in these cases and emphasized that the ‘frequency, regularity and proximity’ test was not a rigid test with absolute threshold levels. James v. Bessemer Processing Co., Inc., 155 N.J. 279 (1998).
In summary, it is worth noting that summary judgment has been granted in cases with comparatively less frequent, less definitive, less possible exposures than were found in Fowler. The Fowler decision should stand as a reminder to defense counsel that absolute reliance on the “frequency, regularity and proximity” parts of the ‘substantial factor’ test is misplaced. Counsel should be familiar with the Fowler Opinion and the cases on which the Court relied for support. In anticipation of the possibility that courts may follow suit in relying on circumstantial evidence, defense counsel must use the discovery stage to proactively combat even the slightest notion that plaintiff used a defendant’s product frequently, regularly or with any proximity