April 2018

On April 16, 2018, a Rhode Island court addressed for the first time whether an entity owes a duty of care to protect non-employees from exposure to the asbestos-tainted work clothes of the entity’s employee.  In a decision denying the defendant Crane Co.’s motion for summary judgment in the matter of Carolyn Nichols, as Executrix of the Estate of Iva Pearl Jones, et al. v. Allis Chalmers Product Liability Trust, et al., C.A. No. PC-2008-1134, Judge Sarah Taft-Carter held that while the existence of such a duty is determined on a case-by-case basis, the plaintiffs had presented sufficient evidence to establish that Crane Co. had a duty to protect against such “secondary” or “take-home” exposure.  The decision is significant in that the Court demonstrated a willingness to impose such a broad duty upon an employer if certain factors are met through the plaintiff’s evidence.

In the Jones matter, the plaintiffs alleged that the decedent, Iva Pearl Jones (“Ms. Jones”) was exposed to asbestos from the clothing of her brother-in-law, Stanley Nichols (“Mr. Nichols”) while Mr. Nichols was employed by Crane Co. from 1979 to 1980 and resided in the same home as Ms. Jones and other family members.  The testimony also established that Ms. Jones “always” did the laundry, including Mr. Nichols’ work clothes.  Ms. Jones was diagnosed with mesothelioma in 2005 and passed away in 2007.  The plaintiffs alleged that Crane Co. failed to take adequate precautions to prevent asbestos fibers from leaving the work site and failed to warn employees of a foreseeable risk of take-home exposures to their cohabitants. Following discovery, Crane Co. moved for summary judgment on all counts asserting that it had no duty of care to Ms. Jones, its employee’s sister-in-law, and that the plaintiffs had failed to establish that the alleged exposure to asbestos from Mr. Nichols’ clothing caused Ms. Jones’ disease.

The Court, noting that an employer’s duty to protect against “take-home” exposures is an issue of first impression in Rhode Island, recognized the division of existing authority in other jurisdictions that have addressed the issue in NY, MD, GA, TN, NJ, IL, and ND. The Court held that it need not find a “special relationship” between Crane Co. and Ms. Jones to impose a duty because the plaintiffs allegations were based upon Crane Co.’s own alleged misfeasance in utilizing asbestos-containing products and not on an alleged failure of Crane Co. to protect against the actions of a third-party tortfeasor.  Instead, the Court held that under Rhode Island law, the existence of a duty of care is determined on a case-by-case basis considering the following factors: (1) the foreseeability of the harm; (2) the degree of certainty of injury; (3) the closeness of connection between the defendant’s conduct and the plaintiff’s injury; (4) the policy of preventing future harm; (5) the burden to the defendant and consequences to the community in imposing a legal duty; and (6) the relationship between the parties.

After considering the above-factors, the Court
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In a recent case, the Ohio Supreme Court addressed the question of whether the “cumulative-exposure theory” satisfies the “substantial factor” test for a plaintiff to succeed on a claim for asbestos-related injuries. The standard in Ohio requires a plaintiff to demonstrate that exposure to the product of a certain defendant was a substantial factor in causing the plaintiff’s asbestos-related injuries.

The decedent, Kathleen Schwartz, was diagnosed with and died from mesothelioma. The alleged main source of her exposure to asbestos occurred as a result of laundering the clothing of her father, who worked as an electrician.  In addition, plaintiff claimed that Ms. Schwartz was exposed to asbestos as a result of her proximity to her father when he changed the brakes on the family vehicle.

Plaintiff, decedent’s husband, brought suit against a number of defendants and claimed that the products of each of those defendants were a substantial factor in causing his wife’s mesothelioma. At trial, plaintiff presented evidence, in the form of expert testimony, that there is no known threshold of asbestos exposure at which mesothelioma will not occur, and thus each exposure to asbestos that the decedent experienced from laundering her father’s clothes and being in proximity to brake products contributed to her total dose of asbestos and were substantial contributing factors to the causation of her mesothelioma.

The trial court entered judgement against the defendant in the amount of $1,011,639.92, based on this cumulative exposure theory of causation. The Eighth District Court of Appeals affirmed the decision, finding that the cumulative exposure theory was based on “reliable scientific evidence.”

In reversing the Court of Appeals, the Ohio Supreme Court held that cumulative exposure theory is inconsistent with a substantial factor test for causation. In its decision, the Ohio Supreme Court noted that R.C. 2307.96 requires a showing that “the conduct of that particular defendant was a substantial factor in causing the injury or loss.” This substantial factor standard requires the trier of fact to consider the manner, proximity, and frequency of exposure. As such, the Ohio Supreme Court held that the cumulative exposure theory is incompatible with the plain language of R.C. 2307.96.  Moreover, the Court held that there must be at least some quantification or means of assessing the amount of exposure to determine if the exposure was in fact sufficient to contribute to the cause of the disease.

SLIP OPINION NO. 2018-OHIO-474 SCHWARTZ, EXR., APPELLEE, ET AL. v. HONEYWELL INTERNATIONAL, INC., APPELLANT.[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Schwartz v. Honeywell Internatl., Inc., Slip Opinion No. 2018-Ohio-474.]
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Overview

On March 30, 2018, Judge Rya Zobel of the United States District Court (District of Massachusetts) issued a memorandum of decision on two Defendants’ (NSTAR Electric, formerly Boston Edison, and General Electric) Motions for Summary Judgment in an asbestos personal injury and wrongful death matter, June Stearns and Clifford Stearns as Co-Executors of the Estate of Wayne Oliver v. Metropolitan Life Insurance Co., et al., that addresses multiple issues, including statute of repose, strict liability and liability of a premises owner.

Background

Plaintiff’s decedent, Wayne Oliver, worked on the construction of two power plants, Pilgrim Nuclear Power Station (Massachusetts) and Calvert Cliffs Nuclear Power Plant (Maryland), between 1971 and 1978 and his estate alleges that Mr. Oliver was exposed to asbestos-containing products present at those sites. Defendant NSTAR Electric (formerly Boston Edison)(“Boston Edison”) owned the Pilgrim premises.  Defendant General Electric (“GE”) allegedly designed, manufactured, and sold generators used at Pilgrim and at Calvert Cliffs.  Oliver worked as a pipe inspector for Bechtel, the architect-engineer on projects at both Pilgrim and Calvert Cliffs.

As the owner of Pilgrim, Boston Edison conducted safety audits while the construction proceeded, but primary responsibility for the site construction rested with GE and Bechtel: GE for the steam supply system, nuclear fuel system, and the generators themselves; and Bechtel for everything else. In that capacity, Bechtel hired and supervised all subcontractors on the project, including an insulation installer, New England Insulation (“NEI”). Although NEI reported to Bechtel, it installed the asbestos-containing insulation around the generators pursuant to directions from both Bechtel and GE, and pursuant to GE’s specifications that specifically required asbestos-containing insulation.  The Court also recognized that at both Pilgrim and at Calvert Cliffs, GE had rejected suggestions or proposals for an asbestos-free insulation alternative.

Oliver allegedly sustained exposure to asbestos at both sites while inspecting pipe near dusty thermal insulation as other subcontractors installed it around the generators. He was subsequently diagnosed with mesothelioma in 2015 and died in 2016.  In denying summary judgment to GE and granting summary judgment to Boston Edison, the Court found that:  (1) while the construction work performed by GE met the definition of an improvement to real property for purposes of the statute of repose, public policy considerations necessitated an exception to the application of the statute in cases involving alleged asbestos-related disease; (2) the installation of asbestos insulation was not an abnormally dangerous activity; (3) Boston Edison did not exercise sufficient control over the work at issue to be held negligent; and (4) a premises owner, such as Boston Edison, has no duty to warn where the subcontractor has knowledge of the hazard which is equal to or greater than that of the premises owner.

Application of Statute of Repose

GE argued protection from Plaintiffs’ claims under Massachusetts’s six-year statute of repose, which bars claims concerning “improvements to real property.” Under Massachusetts law, this involves a “permanent addition” versus “ordinary repair.” Whether this statute applied to asbestos claims against manufacturers posed an
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A March 22, 2018, denial of a defendant’s summary judgment motion in the New York City Asbestos Litigation (NYCAL) signals a drastic lowering of the product identification standards in that venue (and a possible strategic adjustment necessary in future defendants litigating there).

In Trumbull v. Adience, Inc., a former brewer sued Stavo Industries (“Stavo”) as a manufacturer of asbestos-containing products to which the plaintiff was allegedly exposed.  Stavo made, among other products, filters used in breweries. The plaintiff listed Stavo in his interrogatory responses, but not during his deposition testimony.  At his deposition, the plaintiff recalled exposure to filters generally, but only named one specific manufacturer—Cellulo.  However, the plaintiff also referred back, on the record, to his interrogatory responses for the list of filter brands that he supposedly encountered.

From Stavo’s perspective, the plaintiff’s general interrogatory mention of Stavo and reference back to those interrogatories during the deposition failed the requirement for product identification. Stavo moved for summary judgment.  Justice Manuel Mendez denied Stavo’s motion, and ruled that a reference back to the interrogatory responses during his deposition did “sufficiently identify” Stavo filters as an exposure source.  The Court found that Stavo’s liability could be inferred from the plaintiff’s testimony that he worked near filters being removed and replaced, considered with Stavo marketing materials from the time at issue claiming widespread usage of Stavo products in the brewing industry.  For the Court, this provided enough evidence to survive summary judgment.

After this decision, the bar for product identification in the NYCAL appears dangerously low.  This standard encourages plaintiffs to make blanket references to their vague interrogatory responses in depositions where actual recollection is impossible. It also forces prudent defendants to cross-examine during depositions with or without a specific mention of the defendant’s product occurring. If the NYCAL proceeds with this standard, the number of identifications stands to increase.
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