Opinion
C.A. PC-13-3512
04-30-2018
MARY SUPREY, individually and as the Personal Representative of the Estate of PAUL F. MCCARTHY Plaintiff, v. CBS CORPORATION F/K/A VIACOM, INC., et al. Defendants.
For Plaintiff: Robert J. Sweeney, Esq. For Defendant: Jeffrey M. Thomen, Esq.; Randolph B. Totten, Esq.; Victoria M. Almeida, Esq.; Mark O. Denehy, Esq.; James R. Oswald, Esq.; Andrew R. McConville, Esq.
Providence County Superior Court
For Plaintiff: Robert J. Sweeney, Esq.
For Defendant: Jeffrey M. Thomen, Esq.; Randolph B. Totten, Esq.; Victoria M. Almeida, Esq.; Mark O. Denehy, Esq.; James R. Oswald, Esq.; Andrew R. McConville, Esq.
DECISION
GIBNEY, P.J.
Defendant General Electric Company (Defendant or GE) brings this Rule 60(b) Motion for Relief from Order with respect to this Court's June 27, 2017 Decision (the Decision), in which several defendants' motion for summary judgment was denied. The Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14. For the reasons stated herein, GE's Motion for Relief from Order is granted and this Court enters an order granting summary judgment for GE.
I
Facts and Travel
In this asbestos liability action, Plaintiff contends that Paul F. McCarthy, the Decedent, was exposed to asbestos-containing products while he was employed by the U.S. Navy and the U.S. Postal Service. With regard to GE, the Plaintiff alleges that Mr. McCarthy was exposed to GE asbestos-containing material products while he worked for the Navy and lived aboard the U.S.S. Glennon (Glennon). A more detailed recitation of the facts and procedural history was provided by this Court in its June 27, 2017 Decision. See Suprey v. Alfa Laval, Inc., No. PC-2013-3511, No. PC-2013-3512, 2017 WL 2840563 (R.I. Super. June 27, 2017) (Gibney, P.J.).
Defendants Warren Pumps, LLC, Gardner Denver, Inc., and GE sought summary judgment, and oral arguments were heard on February 1, 2017. In support of its motion for summary judgment, GE argued that the Plaintiff failed to provide evidence that Mr. McCarthy was exposed to any asbestos-containing GE products on a regular basis over an extended period of time and in close proximity. On June 27, 2017, this Court published its Decision, denying Defendants' motion for summary judgment. GE filed the instant Rule 60(b) Motion for Relief from Order on August 8, 2017.
The Court also found that Mr. McCarthy's sworn statement was admissible. GE does not request relief from the admissibility section of the Decision, and therefore, the instant decision only addresses the product identification and proximate cause aspect of the Decision.
Mr. McCarthy filed two Complaints simultaneously: PC-13-3511 and PC-13-3512. Defendants Warren Pumps, LLC and Gardner Denver, Inc., named in PC-13-3511, and GE, named in PC-13-3512, joined for purposes of the motion for summary judgment. The June 27, 2017 Decision addressed both case numbers. The instant decision, however, only pertains to PC-13-3512 because GE was only named in that case.
II
Standard of Review
While "no authority exists for the filing of a motion to reconsider, " a motion to reconsider is treated as a motion to vacate under Rule 60(b) of the Rhode Island Superior Court Rules of Civil Procedure (Rule 60(b)). Neufville v. State, 172 A.3d 161, 167 (R.I. 2017); Sch. Comm. of Cranston v. Bergin-Andrews, 984 A.2d 629, 649 (R.I. 2009). A motion for relief from a judgment or order under Rule 60(b) "'is addressed to the trial justice's sound judicial discretion and his ruling will not be disturbed on appeal absent a showing of an abuse of discretion or an error of law.'" Casa DiMario, Inc. v. Richardson, 763 A.2d 607, 612 (R.I. 2000) (quoting Brown v. Amaral, 460 A.2d 7, 11 (R.I. 1983)). Rule 60(b) gives a Superior Court justice the authority to grant relief from a judgment or order for the following reasons:
"(1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) Fraud, misrepresentation, or other misconduct of an adverse party; (4) The judgment is void; (5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which the judgment is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) Any other reason justifying relief from the operation of the judgment." Super. R. Civ. P. 60(b).
The Superior Court has "broad power to vacate judgments whenever that action is appropriate to accomplish justice" in accordance with Rule 60(b)(6). Bendix Corp. v. Norberg, 122 R.I. 155, 158, 404 A.2d 505, 506 (1979). However, the Rhode Island Supreme Court has recognized that Rule 60(b)(6) is "'not intended to constitute a catchall and . . . that circumstances must be extraordinary to justify relief.'" Archetto v. Smith, 179 A.3d 144, 146 (Mem.) (R.I. 2018) (quoting Santos v. D. Laikos, Inc., 139 A.3d 394, 399 (R.I. 2016)). The moving party bears the burden of convincing the Court that there are legally sufficient grounds to vacate the judgment. McBurney v. Roszkowski, 875 A.2d 428, 439 (R.I. 2005) (citing DeFusco v. Giorgio, 440 A.2d 727, 730 (R.I. 1982)).
For a motion for summary judgment, '"[t]he moving party bears the initial burden of establishing the absence of a genuine issue of fact."' McGovern v. Bank of Am., 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)). The burden then shifts and the nonmoving party must affirmatively show the existence of a genuine issue of fact through "competent evidence." Id. The nonmoving party "'cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.'" D'Allesandro v. Tarro, 842 A.2d 1063, 1065 (R.I. 2004) (quoting Santucci v. Citizens Bank of R.I., 799 A.2d 254, 257 (R.I. 2002) (per curiam)). Summary judgment is proper when a plaintiff is unable to establish a prima facie case as a matter of law. Kelley v. Cowesett Hills Assocs., 768 A.2d 425, 430 (R.I. 2001).
III
Analysis
In both the underlying motion for summary judgment and the instant motion for relief, GE argues that the Plaintiff failed to present evidence that Mr. McCarthy had any contact with GE asbestos-containing products, including the turbines. Therefore, GE argues, the Plaintiff cannot satisfy the "frequency, regularity, proximity" test to establish the proximate cause element of its prima facie case. GE satisfied its initial burden of showing the absence of a genuine issue of fact as to proximate cause. The burden then properly shifted from GE to the Plaintiff to show causation through competent evidence. To establish the causation element in an asbestos case, the Plaintiff must satisfy the "frequency, regularity, proximity" test and show evidence of "(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." Sweredoski v. Alfa Laval, Inc., No. PC 2011-1544, 2013 WL 3010419, *5 (R.I. Super. June 13, 2013) (Gibney, P.J.) (internal quotation marks and citation omitted) (adopting the "frequency, regularity, proximity" test, used by other jurisdictions, to prove proximate cause in asbestos cases because the Rhode Island Supreme Court has not addressed the issue).
The Plaintiff provided historical documents alleging that the Glennon was a GE turbine destroyer and that the turbine "was reported to have excessive vibrations." See Pl.'s Obj. to GE Mot. for Summ. J., Ex. 2. The Plaintiff further presented a general GE technical letter which lists asbestos-containing materials in the steam turbines and testimony from a GE corporate representative in another case which states that GE turbines would need to be insulated to properly function. The Plaintiff also proffered a sworn statement by Mr. McCarthy, in which he discussed his work history and alleged asbestos exposure aboard the Glennon. Mr. McCarthy did not discuss turbines and only briefly mentioned the engine room-in which both parties agree that GE had turbines-in the following dialogue:
"Q: When you were on the GLENNON, was there a lot of equipment on the ship, pumps and valves and steam traps and what have you?
"A: Oh, in the engine room and stuff, yeah.
. . . .
"Q: And did you have friends that may have worked in the engine rooms and boiler rooms, guys that you hung out with in the - -
"A: Oh, I didn't hang out with them. Usually, all the engineers down there stick together and - they always stuck together." (Paul
F. McCarthy Dep. at 26:21-24, 27:9-14, July 1, 2013.)
After careful consideration, this Court agrees with GE that the Plaintiff has not provided any evidence to show that Mr. McCarthy had regular, frequent, and proximate exposure to a particular GE product. See Sweredoski, 2013 WL 3010419, at *5. Notably, Mr. McCarthy's statement is silent as to his contact with any GE product, including GE turbines-much less the regularity, frequency, and proximity of such contact-and does not state that he was ever present in the engine room in which the GE turbines were located. Further, the Plaintiff's evidence that the turbines likely contained asbestos-containing insulation fails to show that Mr. McCarthy actually was exposed to those turbines. Because of the lack of any exposure evidence, the circumstances in this case are extraordinary enough for this Court to grant GE's Motion for Relief as to the discussion of product identification in the Decision. See Rule 60(b).
While Plaintiff's attorney presented outstanding oral arguments, the record lacks any evidence beyond conjecture that Mr. McCarthy was exposed to any GE asbestos-containing materials, including the turbines in the engine room. Accordingly, viewing the facts in the light most favorable to the Plaintiff as the nonmoving party, this Court finds that GE is entitled to summary judgment. See e.g., Sherman v. AC&S, Inc., No. 01-0696, 2002 WL 1378959, *4 (R.I. Super. June 20, 2002) (Gibney, P.J.); Sweredoski, 2013 WL 3010419, at *2, 5.
IV
Conclusion
For the reasons stated herein, this Court finds that GE is entitled to relief from the section of this Court's June 27, 2017 Decision that discussed product identification. Accordingly, this Court grants GE's motion for summary judgment. Counsel shall submit an appropriate order for entry.