Opinion
C. A. PC-2016-5339
07-21-2021
LESTER WALLACE, PERSONAL REPRESENTATIVE OF THE ESTATE OF GERARD WALLACE, DECEASED, AND RUTH WALLACE, HIS WIFE, PLAINTIFFS, v. TRANE COMPANY, SUCCESSOR-IN-INTEREST TO AMERICAN STANDARD, ET AL., DEFENDANTS.
For Plaintiff: See attached For Defendant: See attached Ruth Wallace • Vincent L. Greene, IV, Esq. Carrier Corp.; Electrolux Home Care Products; United Technologies Corp. • James A. Ruggieri, Esq. • Stephen P. Cooney, Esq. Cetrulo, LLP; Defendants' Liaison Counsel • Lawrence G. Cetrulo, Esq. • Stephen T. Armato, Esq. Ferguson Enterprises, Inc.; The Gage Company, Inc. • Anthony S. Aprea, Esq. • Stephen P. Harten, Esq. General Electric Co.; The Heil Company • Jeffrey M. Thomen, Esq. Metropolitan Life Insurance • Mary C. Dunn, Esq. R.W. Beckett Corp. • David H. Stillman, Esq. Sears, Roebuck & Co. • Margreta Vellucci, Esq. The Marley-Wylain Company • Jonathan F. Tabasky, Esq. • Kenneth R. Costa, Esq. • Paul E. Dwyer, Esq. • Michael F. McVinney, Esq. • Clint D. Watts, Esq. Thermo Products, LLC • Anthony J. Sbarra, Esq. • John R. Felice, Esq. Trane Company • Brian A. Fielding, Esq. Wayne/Scott Fetzer Company • Brian C. Newberry, Esq. • Adam Benevides, Esq.
For Plaintiff: See attached
For Defendant: See attached
Ruth Wallace
• Vincent L. Greene, IV, Esq.
Carrier Corp.; Electrolux Home Care Products; United Technologies Corp.
• James A. Ruggieri, Esq.
• Stephen P. Cooney, Esq.
Cetrulo, LLP; Defendants' Liaison Counsel
• Lawrence G. Cetrulo, Esq.
• Stephen T. Armato, Esq.
Ferguson Enterprises, Inc.; The Gage Company, Inc.
• Anthony S. Aprea, Esq.
• Stephen P. Harten, Esq.
General Electric Co.; The Heil Company
• Jeffrey M. Thomen, Esq.
Metropolitan Life Insurance
• Mary C. Dunn, Esq.
R.W. Beckett Corp.
• David H. Stillman, Esq.
Sears, Roebuck & Co.
• Margreta Vellucci, Esq.
The Marley-Wylain Company
• Jonathan F. Tabasky, Esq.
• Kenneth R. Costa, Esq.
• Paul E. Dwyer, Esq.
• Michael F. McVinney, Esq.
• Clint D. Watts, Esq.
Thermo Products, LLC
• Anthony J. Sbarra, Esq.
• John R. Felice, Esq.
Trane Company
• Brian A. Fielding, Esq.
Wayne/Scott Fetzer Company
• Brian C. Newberry, Esq.
• Adam Benevides, Esq.
DECISION
GIBNEY, P.J. General Electric Co. (Defendant or GE) seeks summary judgment pursuant to Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure in this personal injury action brought by Lester Wallace, Personal Representative of the Estate of Gerard Wallace (Decedent or Mr. Wallace), and Ruth Wallace, Decedent's wife (collectively, Plaintiffs). Plaintiffs objected to the motion and Defendant replied. This Court held a hearing on August 19, 2019 and now issues its Decision. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.
I
Facts and Travel
Mr. Wallace suffered from mesothelioma as a result of his exposure to asbestos-containing products and died on August 19, 2017 during litigation of this suit. (Fifth Am. Compl. ¶ 1.) Mr. Wallace worked as a plumbing-heating installer-repairer for Portland Lehigh Fuel Company (Portland Lehigh) from 1949 to 1951, A.R. Wright from 1951 to 1953, Peterson Oil Company (Peterson Oil) from 1956 to 1966, and as an instructor at Southern Maine Vocational Technical Institute (later known as Southern Maine Community College) (College) from 1966 to 1985. Def.'s Mem. Supp. Mot. Summ. J. (Def.'s Mem.) 2-3; see also Wallace v. Trane Co., No. PC-2016-5339, 2021 WL 194321, at *1 (R.I. Super. Jan. 13, 2021). Plaintiffs allege that Mr. Wallace, while at work, inhaled, absorbed, ingested, and came into contact with asbestos and asbestos-containing products. (Fifth Am. Compl. ¶ 60.)
Plaintiffs claim that Mr. Wallace worked with GE boilers during his employment servicing boilers, furnaces, and burners at Portland Lehigh, A.R. Wright, and Peterson Oil. See Def.'s Mem. 2, citing Ex. A (Plaintiffs filed Responses to Defendant's Standard Asbestos Interrogatories). Plaintiffs allege that dust from an asbestos aircell would emanate from GE boilers. See Pls.' Resp. 5. However, Mr. Wallace testified that he rarely worked on GE boilers and few customers had them. Id. at 3, citing Ex. B (Wallace Dep.) 388:8-12, 394:9-16. He also testified that he was not involved in the installation or removal of GE residential boilers, and that they had outer metal jackets and no visible external insulation. Id., citing Wallace Dep. 390:2-5, 390:13-391:6, 392:9-11. Decedent testified that one of his tasks was to clean the GE boilers, but he could not describe the cleaning process. Id., citing Wallace Dep. 393:3-394:16. Decedent's recollection of working on GE boilers consisted of basic cleaning and that the boilers were kind of round and located in basements. (Pls.' Resp. 1, citing Ex. A (Wallace Dep.) at 393:3-20.) Mr. Wallace further testified that while he worked with asbestos cement and had to seal "where the smoke pipe went back into the chimney," the process involved the pipe and not the actual GE boiler. (Def.'s Mem. 3, citing Wallace Dep. 392:12-20.) However, Plaintiffs allege that Decedent may have had to use the asbestos cement to seal around the smoke pipe that went into the chimney because they had customers with GE boilers. (Pls.' Resp. 1, citing Wallace Dep. 392:12-17, 394:15-16.)
Regarding his work at the College, Decedent testified that he never worked with a GE boiler. (Def.'s Mem. 3, citing Wallace Dep. 389:16-19.) However, while employed there, Decedent worked with Craig Carney (Mr. Carney), who testified that he worked on two GE boilers at the College with Decedent. Id. at 3-4, Ex. D (Carney Dep.) 15:6-10, 15:19-16:3. Defendant acknowledged that while it manufactured and sold oil and gas boilers for residential use beginning in 1932, it ceased manufacturing all residential boilers by 1956. Id. at 4, citing Ex. E (GE's Answers, Responses and Objections to Plaintiffs' Interrogatories and Requests for Production of Document) No. 1a. However, Plaintiffs have alleged that Decedent worked on them longer than the late 40s to early 50s. (Pls.' Resp. 1, citing Wallace Dep. 388:8-24.)
The operative Fifth Amended Complaint was filed on November 15, 2017. Defendant filed its motion for summary judgment on August 2, 2019. Plaintiffs filed their objection on August 16, 2019. Hearing on this matter was held on August 19, 2019. Plaintiffs subsequently filed a motion to dismiss all loss of consortium claims on October 1, 2019.
II
Parties' Arguments
Defendant first argues that Maine substantive law should be applied here. (Def.'s Mem. 1, 5.) Defendant claims that Plaintiffs have failed to establish a nexus between GE residential boilers and Decedent's injuries by demonstrating that Mr. Wallace worked with or around a GE boiler utilizing asbestos-containing components manufactured, sold, or supplied by GE. Id. at 5-7. Defendant further states that if Plaintiffs cannot prove that asbestos-related injuries occurred due to Mr. Wallace's exposure to asbestos-containing products original to a GE boiler (i.e., not replacement parts or sealant manufactured or sold by third parties), then Plaintiffs have not made out a prima facie case under Maine law, and Defendant is entitled to summary judgment. Id. Defendant also contends that Plaintiffs cannot establish that any work done on GE residential boilers was a substantial factor in causing Mr. Wallace's injuries. Id. at 7-8. Assuming Defendant is entitled to summary judgment on the personal injury claim, Defendant finally argues that Plaintiff Ruth Wallace's loss of consortium claim (which is dependent upon the underlying tort liability asserted through her late husband's claim) is similarly barred. Id. at 8.
Plaintiffs do not dispute Defendant's statement of facts. (Pls.' Resp. 1.) However, Plaintiffs oppose summary judgment, arguing that inferences reasonably drawn from the evidence in the record create a dispute of material fact as to whether Mr. Wallace was exposed to original asbestos aircell insulation from his work on GE boilers. (Pls.' Resp. 4-6.) Plaintiffs do not argue against the use of Maine substantive law in the adjudication of this matter, and in fact cite to Maine law throughout their memorandum. Id.
III
Standard of Review
Initially, the Rhode Island Supreme Court has said that "[it] appl[ies] [its] own procedural law, . . . 'even if a foreign state's substantive law is applicable.'" DeFontes v. Dell, Inc., 984 A.2d 1061, 1067 (R.I. 2009) (quoting McBurney v. The GM Card, 869 A.2d 586, 589 (R.I. 2005)).
"'Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.'" DeMaio v. Ciccone, 59 A.3d 125, 129-30 (R.I. 2013) (quoting Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I. 2008)). This Court will grant summary judgment "when no genuine issue of material fact is evident from 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' and the motion justice finds that the moving party is entitled to prevail as a matter of law." Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011) (internal quotation omitted)).
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) (citation omitted). 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), and "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). Thereafter, "'the nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions."' Mruk, 82 A.3d at 532 (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)).
In this context, "'material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). Consequently, only when the facts reliably and indisputably point to a single permissible inference can this process be treated as a matter of law. Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981). Furthermore, "'summary judgment should enter against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case . . . ."' Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007) (further internal quotation omitted)).
IV
Choice of Law
Our Supreme Court has stated that, "[g]enerally, 'parties are permitted to agree that the law of a particular jurisdiction will govern their transaction.'" DeFontes, 984 A.2d at 1066 (quoting Terrace Group v. Vermont Castings, Inc., 753 A.2d 350, 353 (R.I. 2000)). Here, Defendant has noted in a footnote that on March 28, 2019, Plaintiffs informed GE by letter that they do not intend to oppose the application of Maine law. (Def.'s Mem. n.2.) Furthermore, Plaintiffs are not challenging the application of Maine law here and have quoted Maine law in its response to this motion.
Moreover, under Rhode Island's "interest-weighing" approach to choice of law issues, Maine is the state that "'bears the most significant relationship to the event and the parties.'" Harodite Industries, Inc. v. Warren Electric Corp., 24 A.3d 514, 534 (R.I. 2011) (quoting Cribb v. Augustyn, 696 A.2d 285, 288 (R.I. 1997)) (emphasis added by Harodite Court). Our Supreme Court has confirmed that Rhode Island courts must consider the following factors when evaluating choice of law in tort matters: "'(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil [sic], residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.'" Harodite Industries, 24 A.3d at 534 (quoting Brown v. Church of the Holy Name of Jesus, 105 R.I. 322, 326-27, 252 A.2d 176, 179 (1969)).
Mr. Wallace's contacts with Maine give that state a strong interest in and relationship with this matter. It is undisputed that it was in Maine that Mr. Wallace lived most of his life and worked with the products at issue here. See Fifth Am. Compl ¶ 1; Wallace v. Trane Co., No. PC-2016-5339, 2021 WL 194321, at *1, *4 (R.I. Super. Jan. 13, 2021). It was also in Maine that Mr. Wallace was treated for mesothelioma and later died. Wallace, 2021 WL 194321, at *4. This Court has applied Maine law under similar circumstances in the past, including in a recent decision granting summary judgment in this same matter to another defendant. See generally Wallace, 2021 WL 194321, at *1; Hinkley v. A.O. Smith Corp., No. PC-15-1722, 2017 WL 1046587, at *3 (R.I. Super. Mar. 13, 2017). Therefore, this Court will apply Maine law.
V
Analysis
In order for a plaintiff to survive a defendant's motion for summary judgment as to a particular claim, the plaintiff must "produce evidence that would establish a prima facie case for [that] claim . . . ." DiBattista v. State, 808 A.2d 1081, 1089 (R.I. 2002).
In Rumery v. Garlock Sealing Technologies, Inc., No. 05-CV-599, 2009 WL 1747857 (Me. Super. Apr. 24, 2009), the Maine Superior Court stated that "[s]trict liability pursuant to 14 M.R.S. § 221 may arise under any of three different theories: (1) a defect in the manufacture of a product; (2) a defect in the design of a product; or (3) a failure of the manufacturer to adequately warn with respect to danger in the use of a product." Rumery, 2009 WL 1747857 (citing Bernier v. Raymark Industries, Inc., 516 A.2d 534, 537 n.3 (Me. 1986); Walker v. General Electric Co., 968 F.2d 116, 119 (1st Cir. 1992)). As the Rumery court noted, the "basis for imposing strict liability on a particular defendant is that 'the product must be in some respect defective.'" Rumery, 2009 WL 1747857 (quoting Bernier, 516 A.2d at 537). Maine law also calls for evidence that an asbestos-containing product originated with the defendant pursuant to 14 M.R.S § 221. See Grant v. Foster Wheeler, LLC, 140 A.3d 1242, 1248 (Me. 2016).
Additionally, a claim for negligence under Maine law requires proof of causation as a main element. See Mastriano v. Blyer, 779 A.2d 951, 954 (Me. 2001). Consequently, a plaintiff must prove that their injury was proximately caused by a breach of duty owed to the plaintiff by the defendant. Id. The Supreme Judicial Court of Maine stated in Grant that:
"Evidence is sufficient to support a finding of proximate cause if the evidence and inferences that may reasonably be drawn from the evidence indicate that the negligence played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably foreseeable consequence of the negligence." Grant, 140 A.3d at 1246 (internal quotation omitted).
Therefore, to establish a case in personal injury asbestos litigation, a plaintiff must demonstrate (1) product nexus-that the decedent was exposed to the defendant's asbestos- containing product-and (2) medical causation-that such exposure was a substantial factor in causing the plaintiff's injury. Id. Furthermore, "[t]he mere possibility of . . . causation" is not enough. Id. When the matter remains one of "pure speculation or conjecture, or even if the probabilities are evenly balanced," summary judgment is appropriate. Id.
A
Product Nexus
The Supreme Judicial Court of Maine stated in the Grant case that a plaintiff must provide sufficient evidence of product nexus in order to survive summary judgment. Grant, 140 A.3d at 1248-49. The Grant court held that the necessary showing of product nexus means, at minimum, evidence of (1) a defendant's asbestos-containing product; (2) at the site where the plaintiff worked or was present; and (3) where the plaintiff was in proximity to that product at the time it was being used. See id. at 1246 (detailing the "less burdensome standard applied by the trial court" in that case, which the plaintiff did not satisfy) (also citing to Welch v. Keene Corp., 575 N.E.2d 766, 769 (Mass. 1991)). A plaintiff must not only prove that the asbestos product was used at the worksite, but also that the employee inhaled the asbestos from the defendant's product. See id.
Furthermore, the Supreme Judicial Court of Maine has stated that in asbestos personal injury matters, Maine law requires evidence demonstrating that the asbestos-containing product originated with the defendant as a prerequisite to product identification and liability. See Grant, 140 A.3d at 1248-49. The court held that "[p]ursuant to 14 M.R.S. § 221, the seller of a product is liable for injury if the product 'is expected to and does reach the user or consumer without significant change in the condition in which it is sold."' Id. at 1248. The court determined that based on this rationale, it would only review a plaintiff's exposure evidence to "asbestos contained in the products' original gaskets and packing." Id.
Plaintiffs have not established that Mr. Wallace installed any new GE boilers. First, Mr. Wallace testified that he rarely worked on GE residential boilers because they were sophisticated and very few customers had them. (Wallace Dep. 390:13-17, 392:21-394:16.) Second, Decedent testified that all of the GE boilers had outer metal jackets and no visible external insulation. Id. at 390:13-391:6. Third, Mr. Wallace testified that while working on the boiler burner, there was no reason to disturb any other part of the boiler and he never installed or removed a GE boiler. Id. at 392:2-11. Furthermore, he admitted that while he may have used asbestos cement to seal where the smoke pipe connected to the chimney, the work involved the pipe, not the actual GE boiler. Id. at 392:12-20. Additionally, there is contradictory evidence offered related to the presence of GE boilers at the College, but this is not sufficient on its own to establish that Decedent was exposed to asbestos from any such boilers.
As was stated in prior decisions in this matter, even granting Plaintiffs, as nonmoving party, the benefit of inferences reasonably drawn from the record, no link between GE and the third-party sealants Decedent used to maintain and repair used boilers and burners or to seal the smoke hood can be inferred here. See Wallace, 2021 WL 194321, at *6. Here, Plaintiffs' evidence has failed to adequately link his exposure to "asbestos that originated with [Defendant]." Grant, 140 A.3d at 1248.
B
Medical Causation
Ordinarily, after product nexus is established, a court will review medical causation to determine if a plaintiff's exposure to a defendant's original product was a substantial factor in the plaintiff's injuries. See Spickler v. York, 566 A.2d 1385, 1390 (Me. 1989); Wing v. Morse, 300 A.2d 491, 495-96 (Me. 1973). The question is whether a material issue of fact remains as to Plaintiffs' allegation that GE's conduct or product caused the Plaintiffs' damages. See Spickler, 566 A.2d at 1390.
However, evidence of a mere possibility of exposure to a potential asbestos-containing product is not enough to overcome summary judgment, and courts have declined to proceed with such an analysis when a plaintiff cannot make a threshold showing of product nexus. See Grant, 140 A.3d at 1248-49. Therefore, this Court will not conduct such an analysis since Plaintiffs have not met their burden on product nexus and have not provided sufficient evidence of an original GE product in order to survive summary judgment. See Spickler, 566 A.2d at 1390; Wing, 300 A.2d at 495-96.
C
Foreseeability and Duty to Warn
Foreseeability arguments are not legally sufficient to establish liability for Defendant, either under Maine precedent or this Court's precedent applying Maine law. Hinkley, 2017 WL 1046587, at *4 n.3. Additionally, a theory based on the foreseeable ancillary use of a defective or toxic third-party product, which would subject a manufacturer to liability by way of a duty to warn, is also not applicable here. See Wallace v. Trane Co., No. PC-2016-5339, 2020 WL 6470890, at *6 (R.I. Super. Oct. 27, 2020) (citing Richards v. Armstrong International, Inc., No. BCD-CV-10-19, 2013 WL 1845826, at *25 (Me. B.C.D. Jan. 25, 2013)); see also Marois v. Paper Converting Machine Co., 539 A.2d 621, 624 (Me. 1988). This is because there is no evidence that the actual third-party product used was supplied or recommended for use with its products by the Defendant.
D
Loss of Consortium and Conspiracy
The Supreme Judicial Court of Maine has stated that both a loss of consortium claim and a personal injury claim are subject to the same defenses since both claims arise from the same set of facts, and the spouse's loss of consortium injury derives from the other spouse's bodily injury. See Steele v. Botticello, 21 A.3d 1023, 1027-28 (Me. 2011); see also Hardy v. St. Clair, 739 A.2d 368 (Me. 1999); Brown v. Crown Equipment Corp., 960 A.2d 1188 (Me. 2008); Parent v. Eastern Maine Medical Center, 884 A.2d 93 (Me. 2005). However, Plaintiffs' loss of consortium claims were collectively dismissed on October 1, 2019.
Under Maine law, civil conspiracy is not an independent tort, and so "absent the actual commission of some independently recognized tort, a claim for civil liability for conspiracy fails." Potter, Prescott, Jamieson & Nelson, P.A. v. Campbell, 708 A.2d 283, 286 (Me. 1998) (citing Cohen v. Bowdoin, 288 A.2d 106, 110 (Me. 1972)). Because this Court has granted summary judgment on the underlying personal injury claim, Plaintiffs' conspiracy claim must fail.
VI
Conclusion
This Court finds that Defendant has met its summary judgment burden and that Plaintiffs have failed to produce sufficient evidence of product nexus. While Plaintiffs' claims for loss of consortium were previously dismissed, the remaining conspiracy claim fails here for want of an underlying tort basis. Therefore, Defendant's motion for summary judgment is granted as to all counts of Plaintiffs' Fifth Amended Complaint. Counsel shall submit the appropriate order for entry.