![](http://www.lloydsreporters.com/lloydsAR/redsquare.gif) |
ASBESTOS LITIGATION: Court Issues Split Ruling in Boshko Action
The U.S. District Court, District of New Jersey, granted Defendants' motion for summary judgment and dismissed plaintiff Monte J. Boshko's motion for summary judgment in a case involving asbestos filed against Bently Nevada, LLC, General Electric Company and Jeffrey M. Gordon.
The case is styled Monte J. Boshko, Plaintiff v. Bently Nevada, LLC, General Electric Company, Jeffrey M. Gordon, John Does 1-10 (said names being fictitious) and ABC Companies 1-10 (said names being fictitious), Defendants.
District Judge Joel A. Pisano entered judgment in Civil Action No. 07-4624 (JAP) on Jan. 28, 2009.
Mr. Boshko was employed by GE and Bently Nevada, a subsidiary of GE, for 19 years, collectively. As a field based project manager, his job included supervising contractors, managing the financial reporting for projects, and maintaining contacts with customers.
From 2002 through 2007, Mr. Boshko developed a pattern of erratic work performance. He would perform poorly and then improve after he was threatened with termination. During the 2006, his performance began to deteriorate once again. On multiple occasions throughout the year, Mr. Gordon admonished Mr. Boshko for failing to perform his basic job responsibilities.
Mr. Boshko was assigned to act as the site project manager for a project at Florida Power & Light's Wyman Station Facility in Maine. While he was in charge of the overall project, GE field engineer, Tracy Tuttle, was responsible for ensuring that Mr. Boshko's had access to the machine and the necessary parts. Mr. Tuttle's team disassembled and moved pieces of the machine to assist Plaintiff in completing the upgrade. When Mr. Boshko was finished, Mr. Tuttle's team reassembled the generator.
There were asbestos warnings prominently displayed on the generator in many locations. Additionally, FP & L warned that the underside of the lagging surrounding the generator had material containing asbestos sprayed on its surface. On April 2, 2007, Mr. Boshko underwent mandatory safety training and was instructed to report any incident involving "presumed asbestos containing material" to John Downing or Todd Bayreuther, employees of FP & L.
On April 5, 2007, millwrights, acting under Mr. Tuttle's authority, disassembled the turbine generator's lagging and performed additional maintenance. Mr. Boshko was not present while the lagging was removed. The next day, Mr. Boshko observed a millwright using a shop vacuum, without filters, to clean the floor beneath the area where the lagging had been previously located.
Mr. Boshko believed, based on his training and experience, that the millwright was vacuuming pieces of asbestos insulation off of the floor. He further believed that vacuuming material containing asbestos would cause the asbestos to become friable and expelled into the air.
Mr. Boshko understood that this conduct violated OSHA regulations. He claimed that he informed Mr. Tuttle about the incident and that Mr. Tuttle told him not to say anything. Mr. Boshko, however, did not inform anyone from FP & L about the possible asbestos exposure as required by FP & L safety procedures. Additionally, he claimed that he informed Mr. Gordon about the incident during a conference call on April 12, 2007.
Mr. Boshko was terminated from GE on July 13, 2007. He contended that his poor performance was due to Defendants failure to accommodate his alcohol related disability and/or he was terminated because they retaliated against him after he reported the asbestos exposure incident.
On Sept. 27, 2007, Mr. Boshko filed an eight count complaint against Defendants. On Aug. 1, 2008, Mr. Boshko moved for partial summary judgment. Defendants opposed Mr. Boshko's motion and asserted a cross motion for summary judgment seeking dismissal of all claims.
Ronald A. Berutti, Esq., and George A. Champion, Esq., of Weiner Lesniak LLP in Parsippany, N.J., represented Monte J. Boshko.
Sean P. Lynch, Esq., and Richard G. Rosenblatt, Esq., of Morgan, Lewis & Brockius LLP in Princeton, N.J., represented Bently Nevada LLC, General Electric Company and Jeffrey M. Gordon.
|