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Jennifer A. Whelan is a partner in MG+M’s Boston office, her practice focuses on defense of asbestos, mass tort, products liability, and general liability matters. Jennifer serves as national coordinating counsel in asbestos litigation matters.

Defendants may have greater access to federal appeals courts thanks to a recent Supreme Court decision concerning district court remand orders. The Supreme Court recently settled a circuit split over the authority of federal appeals courts to review district court remand orders, as well as the scope of that review, under 28 U.S.C. § 1447(d). In BP P.L.C., et al. v. Mayor and City Council of Baltimore, the court held that appellate courts have jurisdiction to review all of a district court’s grounds for remand — not just those based on the propriety of federal officer or civil rights jurisdiction — where the case was removed, based at least in part on 28 U.S.C. §§ 1442 and/or 1443.

The case was originally filed in Maryland state court by the City of Baltimore, which alleged that the defendant energy companies caused the city to sustain injuries related to climate change. Two defendants removed the case to the United States District Court for the District of Maryland on several grounds, including federal officer jurisdiction. The defendant energy companies asserted that they were acting under the direction of federal officers in light of their alleged contractual obligations to the U.S. government. The city moved to remand the case, arguing that the federal court lacked subject matter jurisdiction.

The district court agreed with the city and entered an order of remand, saying in part that federal officer jurisdiction was lacking. Immediately after this decision, the defendants attempted to secure a stay of the remand order from both the district court and Fourth Circuit Court of Appeals. Both courts, however, denied defendants’ efforts to stay the remand order pending appeal, finding that defendants were unlikely to prevail on appeal.


Continue Reading Supreme Court settles circuit split over remand orders under 28 U.S.C § 1447(d)

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
Continue Reading Summary Judgment Order Illuminates Issues in MA Asbestos Litigation