Opinion
C. A. PC-2018-5044
08-28-2024
JAMIE L. DAY AND JENNIFER L. BONITO, CO-EXECUTORS FOR THE ESTATE OF BONNIE J. BONITO Plaintiffs, v. 3M COMPANY INC. et al., Defendants.
For Plaintiff: Vincent L. Green, IV, Esq. Kate Menard, Esq. For Defendant: Brian D. Gross, Esq.; Brian A. Fielding, Esq.; Marisa K. Roman, Esq.; John R. Felice, Esq.; Wayne E. George, Esq.; Matthew C. Oleyer, Esq.; Lawrence Cetrulo, Esq.; Rochelle Gumapac, Esq.; Stesha Emmanuel, Esq.; Stephen P. Cooney, Esq.; Jeffrey M. Thomen, Esq.; Paul E. Dwyer, Esq.; Cassandra Feeney, Esq.; Kenneth Costa, Esq.; Nancy Kelly, Esq.; Jonathan Myhre, Esq.; Tierney M. Chadwick, Esq.; Holly M. Polglase, Esq.; Jennifer Whelan, Esq.; Randolph Totten, Esq.; Mark O. Denehy, Esq.; Jonathan Tabasky, Esq.
For Plaintiff: Vincent L. Green, IV, Esq. Kate Menard, Esq.
For Defendant: Brian D. Gross, Esq.; Brian A. Fielding, Esq.; Marisa K. Roman, Esq.; John R. Felice, Esq.; Wayne E. George, Esq.; Matthew C. Oleyer, Esq.; Lawrence Cetrulo, Esq.; Rochelle Gumapac, Esq.; Stesha Emmanuel, Esq.; Stephen P. Cooney, Esq.; Jeffrey M. Thomen, Esq.; Paul E. Dwyer, Esq.; Cassandra Feeney, Esq.; Kenneth Costa, Esq.; Nancy Kelly, Esq.; Jonathan Myhre, Esq.; Tierney M. Chadwick, Esq.; Holly M. Polglase, Esq.; Jennifer Whelan, Esq.; Randolph Totten, Esq.; Mark O. Denehy, Esq.; Jonathan Tabasky, Esq.
DECISION
LICHT, J.
Plaintiffs Jamie L. Day and Jennifer L. Bonito, co-executors for the Estate of Bonnie J. Bonito, having been substituted as plaintiffs for their decedent Bonnie J. Bonito (Mrs. Bonito) following her death, bring this take-home asbestos action against some seventy defendants. Pursuant to Rule 56 of the Superior Court Rules of Civil Procedure, seven defendants moved for summary judgment as to some or all counts alleged against them in Plaintiffs' Tenth Amended Complaint (Compl.). However, the Plaintiffs either settled their claim or reached a stipulation on the motion with five of those defendants, leaving the Court with two motions to decide. The remaining defendants are: (1) Ford Motor Company (hereinafter Ford), see Ford's Summ. J. Mem. and (2) Graybar Electric Company, Inc. (hereinafter Graybar), see Graybar's Summ. J. Mem. For the reasons stated herein, both motions are DENIED.
"Take home" asbestos claims "involve workers' family members who have been exposed to asbestos off-site, typically through contact with a directly exposed worker or that worker's soiled work clothes." Mark A. Behrens, What's New in Asbestos Litigation?, 28 Rev. Litig. 501, 545-46 (2009); see also Ramsey v. Georgia Southern University Advanced Development Center, 189 A.3d 1255, 1259 n.1 (Del. 2018).
The operative Complaint is Plaintiffs' Tenth Amended Complaint, which was filed on March 3, 2021. See Docket. Hereinafter, references to the Complaint are to this Tenth Amended Complaint.
I
Facts and Travel
Plaintiffs advance various theories of liability against Defendants Ford and Graybar (collectively, Defendants), including negligence, strict liability, breach of express and implied warranty, punitive damages, and conspiracy. See Compl. ¶¶ 71-93. At the heart of Plaintiffs' claims is the assertion that Mrs. Bonito suffered from and died of malignant mesothelioma because of exposure to asbestos dust while laundering her late ex-husband's work clothing, which she claims was "covered in asbestos dust[.]" Id. at 4. Mrs. Bonito was deposed before her death; her ex-husband, James Bonito (Mr. Bonito), was also deposed. The relevant details from their depositions are summarized below.
Mr. and Mrs. Bonito married in December 1966. See Mrs. Bonito's Dep., Aug. 27, 2018, Vol. 1 (hereinafter, Mrs. Bonito's Dep.) at 15:9, 17. During their marriage, Mr. Bonito worked at several different businesses. See generally id. at 22:10-23:3; see also generally Mr. Bonito's Dep., Oct. 25, 2018 (Vol. 1); Oct. 26, 2018 (Vol. 2); Dec. 10, 2018 (Vol. 3); Mar. 19, 2019 (Vol. 9); and Apr. 15, 2024 (Vol. 14.). In 1967, Mr. Bonito opened his own construction company where he built and remodeled homes and basements, including framing walls and putting down floor and ceiling tiles. See generally Mr. Bonito's Dep., Vol. 1 at 25:18-27:13; 77:13-16; 78:2-5. While married to Mrs. Bonito, Mr. Bonito also had a shop where he did automotive work on trucks and equipment. See id. at 86:19-87:8. Mr. Bonito testified to his exposure to products manufactured by Defendants; additional Defendant-specific facts will be set forth below.
For clarity purposes, this Court will identify Mr. Bonito's depositions by the volume number, rather than their exhibit numbers, as the exhibit numbers vary among the filings.
Once the couple married, Mrs. Bonito began doing Mr. Bonito's laundry, including cleaning his work clothes and shoes. See Mrs. Bonito's Dep. 19:20-22; 30:12-14; see also Mr. Bonito's Dep. Vol. 1 at 95:8-96:1. She would do his laundry approximately "[t]hree times a week" or "every couple of days." (Mrs. Bonito's Dep. at 20:6-7.) It was Mr. Bonito's routine to go home in the clothes he wore to work. See id. at 30:22-24; see also Mr. Bonito's Dep., Vol. 1 at 101:15-102:2. When Mr. Bonito arrived home, Mrs. Bonito described his clothes as "dusty." See Mrs. Bonito's Dep. at 31:3, 6.
Mrs. Bonito's laundering process began by shaking out Mr. Bonito's clothing. See id. at 32:9-11; see also Mr. Bonito's Dep. Vol. 1 at 99:5-7. She could see the dust in the air while shaking out the clothes. See Mrs. Bonito's Dep. at 36:19-22. When asked whether she "breathe[d] in the dust from [Mr. Bonito's] clothes," Mrs. Bonito stated, "I'm sure I did, yes." Id. at 37:4-5, 7. She did not wear a mask when doing the laundry. See id. at 37:8-10.
The couple separated around 1985 or 1986, but they "were trying to work things out" for about four or five years before their divorce. Id. at 21:24-22:1. During their separation, Mrs. Bonito did Mr. Bonito's laundry about half of the time, but stopped when the couple got divorced in 1990. See generally id. at 21:17-22:9; see also Mr. Bonito's Dep. Vol. 14 at 2283:2-9.
Plaintiffs presented an expert opinion by Richard Kradin, M.D., a pulmonologist and pathologist, who has specialized in pulmonary disease for over thirty-seven years. See Kradin Report, June 19, 2020 (Dr. Kradin Report) at 1; see also Dr. Kradin's Dep., July 2, 2024. Dr. Kradin reviewed various medical reports, deposition testimony from Mr. and Mrs. Bonito, and Mrs. Bonito's pathology report. See Dr. Kradin Report ¶ 15. He confirmed that "[Mrs.] Bonito was repeatedly exposed to asbestos via the shaking out and laundering of her husband's dusty work clothes during their marriage." Id. He concluded the following: "It is my opinion to a reasonable degree of medical probability that [Mrs. Bonito's] malignant mesothelioma was caused by her cumulative para-occupational exposures to asbestos." Id.
Defendants filed Motions for Summary Judgment between June 27, 2024 and June 28, 2024. See generally Ford's Summ. J. Mem. and Graybar's Summ. J. Mem. Ford asserts that Plaintiffs do not have sufficient evidence to support their design defect claim. See generally Ford's Summ. J. Mem. Graybar's Motion for Summary Judgment asserts that Plaintiffs have failed to establish a causal link between Mrs. Bonito's injury and its product. See generally Graybar's Summ. J. Mem. On July 22, 2024 and July 23, 2024, Plaintiffs filed their Objections to Defendants' respective motions. See Pls.' Opp'n to Ford and Pls.' Opp'n to Graybar. Plaintiffs claim that genuine issues of material fact exist such that summary judgment is inappropriate. See generally id. Defendants filed Replies on August 1, 2024 and August 2, 2024. See Ford's Reply and Graybar's Reply.
Ford also filed a Motion for Partial Entry of Separate and Final Judgment, which will be addressed to the extent needed.
II
Standard of Review
"'Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.'" Cruz v. DaimlerChrysler Motors Corporation, 66 A.3d 446, 451 (R.I. 2013) (quoting DeMaio v. Ciccone, 59 A.3d 125, 129 (R.I. 2013)). "[S]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the Court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education, 5 93 A.3d 949, 951 (R.I. 2014) (internal quotation omitted); see also Super. R. Civ. P. 56. "'The moving party bears the initial burden of establishing the absence of a genuine issue of fact.'" McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting Robert B. Kent et al., Rhode Island Civil Procedure § 56:5, VII-28 (West 2006)). Then, the burden shifts
"[t]he party opposing summary judgment bears the burden of proving, by competent evidence, the existence of facts in dispute. The opposing party will not be allowed to rely upon mere allegations or denials in the pleadings but rather, by affidavits or otherwise the opposing party has an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." Henry v. Media General Operations, Inc., 254 A.3d 822, 834 (R.I. 2021) (cleaned up) (internal citations omitted).
"In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party." Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013). In doing so, the Court "does not pass upon the weight or the credibility of the evidence[.]" Palmisciano v. Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992).
III
Analysis
A
Ford's Motion for Summary Judgment
Ford asserts that summary judgment is warranted on Plaintiffs' design defect claim because Plaintiffs have failed to provide an expert "to opine on the existence of a defect." (Ford's Summ. J. Mem. 4.) Ford insists that, of Plaintiffs' disclosed experts, none "specialize in automotive design by 'knowledge, skill, experience, training, or education' such that they are qualified to provide an expert opinion on the existence of a design defect in Ford's automotive products at issue in this case." Id. at 5. Ford further asserts that Plaintiffs' "mosaic approach" of offering various experts' testimony will not satisfy Plaintiffs' burden, as "all of Plaintiffs' experts . . . are not qualified, to opine on a defect in Ford's automotive or brake design." (Ford's Reply at 4.) Ford stresses that "Plaintiffs must designate a design defect expert 'to explain to a jury what defect, if any, was present; whether that defect was attributable to manufacture, design, maintenance or some other factor; and whether such a defect could cause harm [to the plaintiff].'" Id. at 5 (citing Olshansky v. Rehrig International, 872 A.2d 282, 287 (R.I. 2005).
In its Summary Judgment Memorandum, Ford additionally raised issues as to a manufacturing defect and the conspiracy claim. See Ford's Summ. J. Mem. Since then, Plaintiffs have agreed to stipulate to the dismissal of the conspiracy claim. See Pls.' Opp'n to Ford at 1 n.1; Ford's Reply at 1 n.1; see also Ford's Joint Mot. to Dismiss. Plaintiffs also have stipulated that they will not proceed against Ford as to the manufacturing defect claim. See Ford's Stipulation. Thus, this Decision will only address Ford's design defect claim.
Plaintiffs assert that they have proffered "ample evidence to support [their] theory that Ford's inclusion of asbestos renders its products defective and, minimally, raises a genuine issue of fact on each of Plaintiffs' product liability claims." (Pls.' Opp'n to Ford at 5.) They claim that Plaintiffs' experts are prepared to testify as to the risks of asbestos, what Ford could have done, and the effects of asbestos exposure. Id. Moreover, Plaintiffs insist that various issues remain in dispute; for example, "whether the existence of asbestos in Ford's products rendered them unsafe and/or unfit for their intended purpose" and "whether the dangers of Ford's products were reasonably foreseeable[.]" Id.
Rule 702 of Rhode Island Rules of Evidence governs expert testimony and states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion." See R.I. R. Evid. 702. In the design defect context,
"a plaintiff must prove: (1) that there was a defect in the design or construction of the product in question; (2) that the defect existed at the time the product left the hands of . . . defendant; (3) that the defect rendered the product unreasonably dangerous, and by unreasonably dangerous it is meant that there was a strong likelihood of injury to a user who was unaware of the danger in utilizing the product in a normal manner; (4) that the product was being used in a way in which it was intended at the time of the accident; and (5) that the defect was the proximate cause of the accident and plaintiff's injuries." Raimbeault v. Takeuchi Manufacturing (U.S.), Ltd., 772 A.2d 1056, 1063 (R.I. 2001) (internal quotation omitted).
Ford's assertions that Plaintiffs shall proffer expert testimony to opine as to the existence of a "reasonable alternative design" are misguided; establishing a design defect does not require evidence of a reasonable alternative design. See Raimbeault v. Takeuchi Manufacturing (U.S.) Ltd., 772 A.2d 1056, 1063 (R.I. 2001); see also Ford's Summ. J. Mem. at 1.
"An expert need not have a license in a narrow specialty, nor hold a particular title," but, their "knowledge, skill, experience, training, or education [must] deliver a helpful opinion to the fact-finder." Raimbeault, 772 A.2d at 1061 (internal citations omitted); see also R.I. R. Evid. 702. Expert testimony regarding a design defect "'must be predicated upon facts legally sufficient to form a basis for his [or her] conclusion.'" Rodriquez v. Kennedy, 706 A.2d 922, 924 (R.I. 1998) (quoting Alterio v. Biltmore Construction Corporation, 119 R.I. 307, 312, 377 A.2d 237, 240 (1977)). "Moreover, expert testimony is required to establish any matter that is not obvious to a lay person and thus lies beyond common knowledge." Mills v. State Sales, Inc., 824 A.2d 461, 468 (R.I. 2003). Ultimately, "a jury is free to accept or to reject expert testimony in whole or in part or to accord it what probative value the jury deems appropriate." Owens v. Silvia, 838 A.2d 881, 890 (R.I. 2003) (internal quotation omitted).
To sustain its burden on summary judgment, Plaintiffs must produce competent evidence that establishes a genuine issue of material fact-here, that issue being whether Ford's products at issue contained a design defect. See Henry, 254 A.3d at 834. Plaintiffs contend they have met this burden by producing the following expert disclosures: (1) Dr. Arnold R. Brody, who will testify as to the "biological and toxicological effects of asbestos"; (2) Dr. Kradin, who will testify that, in his opinion, Mrs. Bonito's mesothelioma was caused by her cumulative exposure to asbestos, which included exposure to Ford's products; (3) Barry I. Castleman, Ph.D., who will testify to "the effects of inhalation of asbestos fibers[,]" "state of the art[,]" and that "defendants knew or should have known that asbestos fibers in the work place posed a health hazard to employees, as well as family members"; and (4) Michael J. Ellenbecker, Sc.D., CIH, who will testify that "from an industrial hygiene basis there is no safe level of exposure to asbestos" and "that this has been true since the 1950's, when asbestos was confirmed as a human carcinogen." (Pls.' Expert Disclosures at 1-3.)
The question, as posited by Plaintiffs, of "whether the existence of asbestos in Ford's products rendered them unsafe and/or unfit for their intended purpose" remains in dispute. (Pls.' Opp'n to Ford at 5.) Indeed, Plaintiffs have not established that their experts' testimony will be predicated on facts regarding Ford's automotive design. Rather, they have established that their experts will testify to other topics, such as the effects of asbestos. See generally id. Of note, however, is an Intra Company Memo dated November 19, 1971 (the 1971 Memo), which provides that: "Inhalation of fibrous asbestos has been considered the source of asbestosis and mesothelioma (rare form of cancer frequently observed in asbestos workers)" and "[Ford's] preliminary experiments [of the fibrous asbestos emission rates from a laboratory brake-lining test] indicate that there is very little fibrous asbestos present in brake dust." Id. at 1-2. In sum, the 1971 Memo acknowledges the dangerous effects of exposure to asbestos fibers and that asbestos fibers, albeit low levels, were present in Ford's brake linings. As such, the 1971 Memo proffers evidence as to the automobile context-the same context to which Ford claims Plaintiffs' experts will be unable to testify. The 1971 Memo, combined with Plaintiffs' experts' testimony, provide sufficient evidence such that summary judgment is not warranted at this time. The jury will be free to accept or reject the evidence and place value to it as it deems appropriate. See Owens, 838 A.2d at 890.
The 1971 Memo was not in the original court filings related to Ford's motion, but it was presented to the Court, without objection, at oral argument. Apparently, it was used in a different trial.
Accordingly, this Court DENIES Ford's Motion for Summary Judgment. Consequently, this Court also DENIES Ford's Motion for Partial Entry of Separate and Final Judgment.
B
Graybar's Motion for Summary Judgment
Graybar asserts that there lacks a causal connection between Mrs. Bonito's injuries and its product(s). To establish liability in an asbestos action, "a plaintiff must provide both identification of the specific defendant responsible for the injury and evidence of the plaintiff's exposure." In re Asbestos Litigation, No. PC-2011-3431, 2021 WL 1055020, at *2 (R.I. Super. Mar. 16, 2021) (Gibney, P.J.) (internal citations omitted). Since this test historically has been difficult to meet due to the "prevalence of second-hand exposure to airborne asbestos dust, the indistinguishable nature of asbestos fibers from different manufacturers' products, the long latency of asbestos-related diseases, and the difficulty of obtaining witnesses and other probative evidence of exposure years after the fact[,]" this Court applies the "frequency, regularity, proximity test as the proper causation standard for asbestos cases in Rhode Island." Sweredoski v. Alfa Laval, Inc., No. PC-2011-1544, 2013 WL 3010419, at *2, *5 (R.I. Super. June 13, 2013) (Gibney, P.J.) (internal citations omitted). This test requires a plaintiff to present "evidence showing (1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked." Id. (internal citations omitted). "The purpose of the test is to assess whether the injured party's exposure to defendant's asbestos products was a substantial factor in causing the alleged injury." Mellor v. Arnold Lumber Corporation, No. PC-2017-5107, 2022 WL 2900924, at *3 (R.I. Super. June 15, 2022) (Gibney, P.J.) (emphasis added).
Notably, the frequency, regularity, and proximity test "is not a rigid test," and it "should be tailored to the facts and circumstances of the particular case." Sweredoski, 2013 WL 3010419, at *6 (internal citations omitted). "[I]n cases alleging that the plaintiff developed mesothelioma as a result of exposure to a particular defendant's product, meeting the frequency and regularity prongs becomes somewhat less cumbersome for plaintiffs because medical evidence has established that mesothelioma can develop from less intense exposures to asbestos than other asbestos-related diseases[.]" Id. (internal citations omitted) (emphasis added). Accordingly, the Court is tasked with making a "reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a plaintiff's/decedent's asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant's product and the asserted injury." Id. (internal citations omitted).
For example, in Mellor, this Court denied the defendant's motion for summary judgment because the plaintiff set forth evidence sufficient to meet the frequency, regularity, and proximity test. Mellor, 2022 WL 2900924, at *6, 17. There, the plaintiff alleged that she was exposed to the defendant's asbestos product (Ready Mix) during the remodeling of her home-specifically that "applying and sanding the Ready Mix released large quantities of dust which [she] then inhaled, especially when she cleaned the dust from her house and her family's clothes." Id. at *1. The plaintiff asserted that her home was under construction at the same time that the Ready Mix formula contained the defendant's asbestos product. Id. She identified the joint compound by name and recalled its "appearance as a mud-like substance in a five-gallon metal bucket bearing a green 'Christmas tree' logo." Id. at *5. The plaintiff further established that she routinely "swept up any dust left in the work area at the end of the day or shook off the dust that had accumulated on the clothes worn by [her husband or herself] and their children[.]" Id. Additionally, the plaintiff's expert physicians testified that "[plaintiff's] exposure to the asbestos in the Ready Mix caused her mesothelioma[.]" Id. at *1.
The Court reasoned that the plaintiff put forth evidence that she "frequently and repeatedly came into close contact with the dust released into her home when the Ready Mix was applied and sanded, as well as evidence indicating [when] these exposures likely took place[.]" Id. at *5. In support of the "final, crucial link in the chain of causation[,]" the plaintiff "point[ed] to evidence that [the defendant's product] was a ubiquitous ingredient in the Ready Mix sold in Rhode Island when [the plaintiff's] renovations took place." Id. at *6. This connection further was confirmed by deposition testimony of a former chemist for the defendant who identified that the Ready Mix sold to the northeastern region of the United States (which includes Rhode Island), if sold in the gallon buckets as the plaintiff identified, would have contained the defendant's asbestos ingredient. See id. at *7. Thus, the Court was satisfied that the plaintiff's evidence established it was "reasonably probable, not merely possible, that the defendant was the source of the offending product." Id.
A plaintiff must point to admissible evidence; "merely posing factual possibilities" is not enough to survive summary judgment. See Reera v. A.O. Smith Corporation, No. PC-2012-0379, 2014 WL 2441482, at *4 (R.I. Super. May 23, 2014) (Gibney, P.J.). For example, in Nichols v. Allis Chalmers Product Liability Trust, No. PC-2008-1134, 2018 WL 1900256 (R.I. Super. April 16, 2018) (Taft-Carter, J.), this Court denied summary judgment, concluding that the evidence was "adequate such that a jury could reasonably find a causal connection between [the defendant] and [the decedent's] mesothelioma." Nichols, 2018 WL 1900256, at *10. During discovery, the decedent's husband described the asbestos-containing insulation products that he frequently worked with. Id. He explained that the asbestos fibers and dust attached to his clothes, and he would wear those clothes home. Id. He then described that it was his wife's (the decedent) practice of laundering his work clothes, which involved her breathing in the visible asbestos dust. Id. Finally, the plaintiffs proffered an expert report from a doctor that concluded the decedent's exposure to asbestos was the cause of her mesothelioma. See id. The Court reasoned that the expert's testimony "sufficiently shows that [the decedent's] exposure to asbestos attributable to [the defendant] on [the husband's] work clothes was a substantial factor in causing her mesothelioma." Id. The Court noted that "the [p]laintiffs are not required to exclude all other possible causes of [the decedent's] mesothelioma or show that the insulation [the husband] worked with, in fact, contained asbestos." Id.
Furthermore, circumstantial "evidence of causation is not fatal" to a plaintiff's case if the circumstantial evidence "establish[es] that it is reasonably probable, not merely possible[] that the defendant was the source of the offending product." Hostetter v. Air & Liquid Systems Corporation, No. PC-2012-0650, 2014 WL 906112, at *3 (R.I. Super. Mar. 5, 2014) (Gibney, P.J.) (internal citation omitted). For example, in Hostetter, the trial justice granted summary judgment because the circumstantial evidence presented by the plaintiff would lead a jury to reach a decision based on "mere speculation, guess, or conjecture"-either of which is "insufficient to establish identification in a negligence or products liability case." Id. at *4 (internal citation omitted). There, the plaintiff brought negligence and strict liability actions against an automobile brakes manufacturer, claiming that exposure to the defendant's product caused his mesothelioma. Id. at *1. The plaintiff testified that he breathed in asbestos from the brake dust while he replaced brakes and used the compressed air; he also explained that he "routinely breathed in asbestos-containing dust created by his coworkers working nearby." Id. Notably, the plaintiff failed to "state with certainty that he ever came into contact with [the] [d]efendant's asbestos-containing products, in particular, as opposed to other manufacturers' products." Id. Thus, the defendant asserted that the plaintiff failed to meet its burden on summary judgment because the evidence "shows only that [the plaintiff] might have been exposed to [the] [d]efendant's asbestos-containing products." Id. at *2 (emphasis added).
The trial justice explained that it must determine "whether a reasonable jury could make the inferences required in order to find by a preponderance of the evidence that [the] [d]efendant's products caused [the plaintiff's] injuries." Id. at *3. However, the plaintiff's evidence, "establish[ed] only that [the] [d]efendant was one of four brake suppliers for the . . . trucks on which [the plaintiff] worked and one of at least two suppliers for the [other] trucks." Id. Thus, the trial justice concluded that the facts presented
"establish only that it is merely possible that [the] [d]efendant was the source of the product that caused [the plaintiff's] mesothelioma . . . . [The] [p]laintiff's evidence is susceptible of another reasonable inference besides the inference that [he] was exposed to [the] [d]efendant's asbestos-containing brake products, namely, that [he] was never exposed to the [d]efendant's products but was instead exposed only to the products of the other [truck] suppliers." Id. (internal citations omitted) (emphases added).
In sum, the trial justice granted summary judgment for the defendant because the plaintiff's evidence "provide[d] an insufficient basis on which a reasonable factfinder could conclude that [the] [d]efendant's products caused the injuries for which [the] [p]laintiff seeks to recover." Id. at *4; compare Suprey v. Alfa Laval, Inc., Nos. PC-2013-3511, PC-2013-3512, 2017 WL 2840563, at *5 (R.I. Super. June 27, 2017) (Gibney, P.J.) (concluding that the plaintiff provided sufficient evidence regarding identification of the product and pointed to the date and time period of alleged exposure to survive summary judgment) and In re Asbestos Litigation, No. PC-2013-5868, 2016 WL 6567851, at *5 (R.I. Super. Nov. 2, 2016) (Gibney, P.J.) (denying summary judgment where the plaintiffs sufficiently described and identified the defendant's product and their installation process-including the inhaling of dust fibers) with Reera, 2014 WL 2441482, at *4 (granting summary judgment because the plaintiff "failed to produce any evidence indicating that such insulation contained asbestos" and the plaintiff "could not recall what products he was interacting with on the jobsite").
During his deposition, Mr. Bonito testified to working with products manufactured by Graybar. See generally Mr. Bonito's Dep. Vol. 2, at 235-236. Specifically, Mr. Bonito recalled buying "electric boxes, fuse boxes, circuit breakers, subpanels and some controls." Id. at 235:19-21. He testified that he "believe[d]" he was exposed to asbestos when working with Graybar equipment, in particular Graybar's "older panels" and "fuse panels." See id. at 235:24-236:9. Mr. Bonito stated that "the older panels had asbestos in them." Id. at 236:4-5. He also stated that he believed the Graybar panels had asbestos sheeting in them. See id. at 236:14-16. Moreover, Mr. Bonito explained that the process of removing the panels was a "dusty, dirty project." Id. at 239:15. He further explained that he frequently performed this process while married to Mrs. Bonito. See id. at 239:18-20. When asked to estimate how often he removed the panels, Mr. Bonito was unable to do so, reasoning that he "just did too many of 'em." See id. at 239:21-240:2. Mr. Bonito confirmed that the dust from this removal process got on his clothes, he would come home in those clothes, and Mrs. Bonito would wash those clothes. See id. at 240:3-7.
Graybar asserts that summary judgment is warranted because Mrs. Bonito is unable to establish that she was "exposed to or within the vicinity of Graybar-supplied products with sufficient frequency or regularity, over an extended time, to meet the causal requirements[.]" (Graybar's Summ. J. Mem. 10.) Graybar asserts that this case is an example of "impermissible pyramiding of interferences." Id. at 6. Graybar contends that it does not manufacture any products but merely distributes them and its name does not appear on any of the products it sells. Alternatively, Graybar asserts that, even if this Court accepts that Mr. Bonito used Graybar's equipment, this claim is barred as Mr. Bonito's use of Graybar's equipment was a "subsequent alteration or modification of the product," pursuant to G.L. 1956 § 9-1-32. Id. at 11.
Graybar notes that the statute, G.L. 1956 § 9-1-32, has since been amended; nevertheless, it argues that Mr. Bonito's use of its product was a "subsequent alteration[.]" (Graybar's Summ. J. Mem. at 13-14.)
As to causation, Plaintiffs insist that they have set forth evidence that Mr. Bonito worked for decades in the construction and renovation business which "frequently required removing and replac[ing] Graybar products." (Pls.' Opp'n to Graybar 8-9.) They claim that throughout that period when Mr. Bonito was working with Graybar products, Mrs. Bonito was regularly washing his work clothes. Id. Regarding Graybar's alternative claim, Plaintiffs contend that it is "well known that electrical panels do not last forever and will, at some point, need to be removed." Id. at 15. Therefore, Plaintiffs insist that it was "foreseeable" to Graybar that its panels would be removed. Id.
Mr. Bonito testified to working with Graybar-manufactured products, specifically the older panels and fuse panels. See Mr. Bonito's Dep., Vol. 2 at 236:4-5. He described that process as "dusty" and "dirty." See id. at 239:15. Moreover, Mr. Bonito explained that he could not even estimate how many times he removed Graybar panels, as he had done it so many times. See id. at 239:21-240:2. Specifically, Mr. Bonito testified to working with Graybar's products while he was married to Mrs. Bonito, thus while she was laundering his work clothing. See id. at 239:18-20. The circumstantial evidence provided as to Graybar is unlike the evidence that the plaintiff presented in Hostetter, 2014 WL 906112, at *3. Here, a jury could reasonably infer, "to the exclusion of other reasonable inferences" that Mr. Bonito was in contact with Graybar's products. See id. As such, this Court finds that Mr. Bonito's description of his work with Graybar products sufficiently meets the frequency and regularity aspect of the applicable test. See Nichols, 2018 WL 1900256, at *10.
Additionally, this Court notes that Dr. Kradin's report, wherein he described Mrs. Bonito's cumulative exposure to asbestos-which included exposure to Graybar's products-caused her mesothelioma, provides sufficient evidence that Mrs. Bonito's injury was attributable to Graybar. See Dr. Kradin Report. Dr. Kradin's report explained that it was his "opinion to a reasonable degree of medical probability that [Mrs. Bonito's] malignant mesothelioma" was caused by exposure to Graybar's products, among others. Id. ¶ 15; see also Almonte v. Kurl, 46 A.3d 1, 18 (R.I. 2012) (explaining that a medical expert's testimony need not be "absolute[ly] certain[]" but "the expert must show that the result most probably came from the cause alleged").
The Court finds that Graybar's alternative argument that there has been an alteration to the product, and thus alleviating it from liability, fails. Section 9-1-32 defines "[s]ubsequent alteration or modification" as an "alteration or modification of a product made subsequent to the manufacture or sale . . . that altered, modified, or changed the . . . manner of use of the product from that originally designed, tested, or intended by the manufacturer . . . ." There is no evidence that Mr. Bonito altered, modified, or changed Graybar's product. The testimony is that he removed the panels. Removal is not alteration. Certainly, it is foreseeable that at the end of a product's useful life, or when property is being renovated, that panels would be removed. Moreover, the statute speaks of altering the "manner of use." Mr. Bonito never used the panels, rather he simply removed them to salvage the metal. Salvaging metal is also foreseeable when the panels were no longer able to be used.
In this matter, the frequency and regularity prongs of the test are "somewhat less cumbersome" because there is medical evidence establishing Mrs. Bonito's mesothelioma. See Sweredoski, 2013 WL 3010419, at *6. At the summary judgment stage, "Plaintiffs are not required to exclude all other possible causes of [Mrs. Bonito's] mesothelioma or show that the [products] [Mr. Bonito] worked with, in fact, contained asbestos." Nichols, 2018 WL 1900256, at *10. Moreover, summary judgment is appropriate "only if the case is legally dead on arrival." Id. at *2 (internal citation omitted). Thus, to the extent that Graybar asserts that their product did not contain asbestos, those claims will be settled at trial, unless the manufacturer has already conceded that such product indeed contained asbestos. The evidence provided to this Court is adequate such that a jury could reasonably find a causal connection between Graybar's products and Mrs. Bonito's mesothelioma; thus, nothing more is required at this stage. See id. at *10.
Viewing the facts in the light most favorable to the nonmoving party, this Court finds that Plaintiffs have sufficiently set forth evidence as to Mr. Bonito's frequent, regular, and proximate exposure to asbestos regarding Defendant Graybar. There exist genuine issues of material fact such that summary judgment should be precluded at this time. Accordingly, this Court DENIES Graybar's Motion for Summary Judgment.
IV
Conclusion
For the reasons stated herein, this Court DENIES Ford's Motion for Summary Judgment and DENIES Graybar's Motion for Summary Judgment. Consequently, this Court also DENIES Ford's Motion for Partial Entry of Separate and Final Judgment.
Counsel shall confer and submit appropriate orders.