Richards V. Armstrong Int'l, Inc.
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BUSINESS AND CONSUMER COURT
Location: Portland
DocketNoj BC~-CV-l0-1;~ ,/
STATE OF MAINE
CUMBERLAND, ss
L) c IV · _.-uu.IYl-
4/ ~;rz..
)
GWENDOLYN RICHARDS, Individually
and as Personal Representative of the
ESTATE OF AUSTIN RICHARDS, JEAN
ANN NOONAN, JEFFREY RICHARDS,
JERRY RICHARDS, and JOEL
RICHARDS,
)
)
)
)
)
)
)
Plaintiffs,
DECISION AND ORDER
(Armstrong International, Inc.)
)
)
v.
)
)
ARMSTRONG INTERNATIONAL, INC.,
CRANE CO., DATRON INC.
LIQUIDATING TRUST, GOULDS
PUMPS, INC., and THE NASH
ENGINEERING CO.,
Defendants
)
)
)
)
)
)
)
)
In this action, Plaintiffs seek to recover damages allegedly resulting from the death of
Austin Richards (the Decedent) due to his exposure to asbestos during the course of his
employment at the Great Northern Paper Company (Great Northern). Plaintiffs allege that as a
result of exposure to asbestos insulation used with products manufactured by each of the
Defendants, the Decedent contracted mesothelioma, which resulted in his death. The matter is
before the Court on the motion for summary judgment of Defendant Armstrong International,
Inc. (Armstrong).
I.
BACKGROUND
The following facts are undisputed, except where noted. The Decedent, Austin Richards,
worked as a mason at the East Millinocket paper mill owned by Great Northern between 1950
1
/
and 1953 and between 1956 to 1987. (Supp. S.M.F.
~
4; Opp. S.M.F.
~
4.) As a mason's helper
and mason at the mill, 1 Decedent's responsibilities included the removal insulation from pipes
and various pieces of equipment (including pumps, turbines, valves, boilers, and steam traps) to
allow other tradesmen to do their respective jobs (such as performing internal repairs of the
pump), and then to reinsulate the pipes and equipment. (Supp. S.M.F.
~
A.S.M.F.
5; Reply S.M.F.
asbestos. (A.S.M.F.
~
~
~
6; Opp. S.M.F.
~
~
6;
10.) Removal of the insulation created a significant
4; Reply S.M.F.
~
4.) The mixing of asbestos-containing cement
used for insulation and sweeping debris from the floor also created dust. (A.S.M.F.
S.M.F.
~
5.) Until the 1970s, the insulation used at the mill contained
10; Reply S.M.F.
amount of dust. (A.S.M.F.
~
~
4; Reply
4.)
Armstrong manufactures steam traps. Although the parties dispute the time at which
Armstrong products were present at the mill, one of Decedent's coworkers recalls that
Armstrong steam traps were located at the mill. (A.S.M.F.
~
10; Reply S.M.F.
~
10.)
The Decedent was diagnosed with malignant mesothelioma at age 71 and passed away on
August 19,2007. (A.S.M.F.' 1; Reply S.M.F.' 1.)
II.
DISCUSSION
A.
Standard of Review
Pursuant to M.R. Civ. P. 56(c), a moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in those
statements and that [the] party is entitled to a judgment as a matter of law." A party wishing to
avoid summary judgment must present a prima facie case for each element of a claim or defense
that is asserted. See Reliance Nat'! Indem. v. Knowles Indus. Svcs., 2005 ME 29,' 9, 868 A.2d
1
The Decedent performed "brick work" on a less regular basis. (A.S.M.F. ~ 3; Reply S.M.F. ~ 3.)
2
220. At this stage, the facts in the summary judgment record are reviewed "in the light most
favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24,' 6, 816
A.2d 63. A material fact is a fact that has "the potential to affect the outcome of the suit."
Burdzel v. Sobus, 2000 ME 84,' 6, 750 A.2d 573. "If material facts are disputed, the dispute
must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158,' 7, 784 A.2d 18.
A factual issue is genuine when there is sufficient supporting evidence for the claimed
fact that would require a fact-finder to choose between competing versions of the facts at trial.
See Inkel v. Livingston, 2005 ME 42,' 4, 869 A.2d 745. "Neither party may rely on conclusory
allegations or unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact." Kenny v. Dep't of Human Svcs., 1999 ME
158,' 3, 740 A.2d 560 (quoting Vinick v. Comm'r, 110 F.3d 168, 171 (1st Cir. 1997)).
B.
Applicable Law
Plaintiffs' primary causes of action against Armstrong are negligence and strict liability?
Plaintiffs allege that the use of asbestos insulation on Armstrong's steam traps and was
reasonably foreseeable, and that Armstrong was negligent in the manufacture and sale of its
products in part because Armstrong failed to warn of the reasonable foreseeable dangers
associated with the use of its products with asbestos-containing insulation made by third parties.
As a result, the Decedent allegedly was exposed to harmful asbestos insulation, which caused
Decedent to develop mesothelioma, and ultimately resulted in his death.
2
In Count I of the complaint, Plaintiffs allege that the negligence of each manufacturer Defendant, including Crane,
caused the Decedent's exposure to asbestos, development of mesothelioma, and ultimate death. Plaintiffs also assert
strict liability for defective design and condition based on asbestos within the products and the failure to warn of the
dangers of asbestos (Count 1), civil conspiracy among all the defendants (Count III), gross negligence (Count IV),
"aiding and abetting" among the Defendants' negligent and intentional acts (Count V), negligence per se against all
defendants based on alleged violations of state and federal law (Count VI), and loss of consortium (Count VII).
3
"The essential elements of a claim for negligence are duty, breach, proximate causation,
and harm." Baker v. Farrand, 2011 ME 91 , ~ 11, 26 A .3d 806. A plaintiff must demonstrate
that "a violation of the duty to use the appropriate level of care towards another, is the legal
cause of harm to" the plaintiff and that the defendant's "conduct [was] a substantial factor in
bringing about the harm." Spickler v. York, 566 A.2d 1385, 1390 (Me. 1993) (internal citations
omitted); see also Bonin v. Crepeau, 2005 ME 59,
~
10, 873 A.2d 346 (outlining negligence
cause of action for supplying a product without adequate warnings to the user); RESTATEMENT
(SECOND) OF TORTS§ 388 (1965). "Maine's strict liability statute, [14 M.R.S. § 221 (2011)],
imposes liability on manufacturers and suppliers who market defective, unreasonably dangerous
products," including liability for defects based on the failure to warn of the product's dangers?
See Bernier v. Raymark Indus., Inc., 516 A.2d 534,537 (Me. 1986).
As the asbestos litigation has evolved both nationally and within Maine, the level of
proof necessary to establish the requisite relationship between a plaintiffs injuries and a
defendant's product has been subject of much debate. 4 A majority of jurisdictions have adopted
the standard articulated by the court in Lohrmann v. Pittsburg Corning Corp., 782 F .2d 1156 (4th
Cir. 1986), where the court construed the "substantial factor" test of the Restatement (Second) of
Torts. 5 In Lohrmann, the court announced and applied the "frequency-regularity-proximity test",
which requires a plaintiff to "prove more than a casual or minimum contact with the product"
3
In addition, strict liability can attach for a design defect or a defect in the manufacturing process. See Pottle v. UpRight, Inc., 628 A.2d 672,674-75 (Me. 1993). Those theories of liability are not at issue in this case.
4
In their opposition to Armstrong's motion for summary judgment, Plaintiffs write that strict liability in Maine
requires medical causation and a product nexus in order to prove the necessary link between the alleged defective
product and the claimed damages. (Pis.' Opp'n MSJ 6.) Plaintiffs also assert that this "rubric ... is a departure
from the so-called 'frequency, regularity, and proximity test' of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d
1157 (4th Cir. 1986)." (Pis.' Opp'n MSJ 6.) Because the Maine Law Court has not addressed the issue in the
context of asbestos litigation (Plaintiffs cite other Superior Court decisions as authority for the standard in Maine),
the Court will discuss its reasoning for applying a standard other than as articulated in Lohrmann.
5
The Restatement (Second) of Torts is consistent with the causation standard in Maine. Section 431 provides in
pertinent part that "[t]he actor's negligent conduct is a legal cause of harm to another if his conduct is a substantial
factor in bringing about the harm ... "
·
·
4
that contains asbestos. Lohrmann, 782 F.2d at 1162. Rather, under Lohrmann, a plaintiff must
present "evidence of exposure to a specific product on a regular basis over some extended period
of time in proximity to where the plaintiff actually worked." !d. at 1162-63. Lohrmann suggests
that the Court engage a quantitative analysis of a party's exposure to asbestos in order to
determine whether, as a matter of law, the party can prevail.
Although the Maine Law Court has not addressed the issue, at least one Justice of the
Maine Superior Court has expressly rejected the Lohrmann standard. Justice Ellen Gorman6
rejected the Lohrmann standard "because it is entirely the jury's function to determine if the
conduct of the defendant was a substantial factor in causing the plaintiff's injury and because it is
not appropriate for the court to determine whether a plaintiff has proven that a defendant's
product proximately caused the harm." Campbell v. The HB. Smith Co., Inc., Docket No. CV04-57 at 7 (Me. Super. Ct., April 2, 2007) (Gorman, J). 7 In rejecting the Lohrmann standard,
Justice Gorman wrote that to establish a prima facie case, a plaintiff must demonstrate:
(1) medical causation -that the plaintiff's exposure to the defendant's product
was a substantial factor in causing the plaintiff's injury and (2) product nexus that the defendant's asbestos-containing product was at the site where plaintiff
worked or was present, and that the plaintiff was in proximity to that product at
the time it was being used . . . a plaintiff must prove not only that the asbestos
products were used at the worksite, but that the employee inhaled the asbestos
from the defendant's product.
Campbell at 5-6. (citing, 63 Am. Jur. 2d Products Liability § 70 (200 1).
Insofar as under Lohrmann a plaintiff must prove exposure to asbestos over a sustained
period of time while under the standard applied by Justice Gorman a plaintiff must only
demonstrate that plaintiff was in proximity to the product at the time that it was being used, the
6
At the time, Justice Gorman was a member of the Maine Superior Court. Justice Gorman· was subsequently
appointed to the Maine Supreme Judicial Court.
7
Justice Gorman also rejected the Lohrmann standard for similar reasons in Boyden v. Tri-State P aeking Supply, et
al., Docket No. CV-04-452 (Me. Super. Ct., Feb. 28, 2007).
5
Lohrmann standard imposes a higher threshold for claimants. The Court's decision as to the
applicable standard cannot, however, be controlled by the standard's degree of difficulty.
Instead, the standard must be consistent with basic principles of causation. In this regard, the
Court agrees with the essence of Justice Gorman's conclusion - to require a quantitative
assessment of a plaintiff's exposure to asbestos, as contemplated by Lohrmann, would usurp the
fact finder's province. Whether a defendant's conduct caused a particular injury is at its core a
question of fact. The Court perceives of no basis in law to deviate from this longstanding legal
principle. The Court, therefore, concludes that in order to avoid summary judgment, in addition
to producing evidence of medical causation, a plaintiff must establish the product nexus through
competent evidence. In particular, a plaintiff must demonstrate (1) that the defendant's product
was at the defendant's work place, (2) that the defendant's product contained asbestos, (3) and
that the plaintiff had personal contact with the asbestos from the defendant's product.
If a
plaintiff produces such evidence, which can be either direct or circumstantial, the question of
whether the defendant's product was a "substantial factor" in causing the plaintiff's damages is
for the jury.
Thus, to survive the motion for summary judgment, the Plaintiffs must first demonstrate
that (1) Armstrong's product was at Great Northern, (2) Armstrong's product at Great Northern
contained asbestos, and (3) the Decedent had personal contact with asbestos from Armstrong's
product. "If a plaintiff produces such evidence, which can be either direct or circumstantial, the
question of whether the defendant's product was a 'substantial factor' in causing the plaintiffs
damages is for the jury." Rumery v. Garlock Sealing Techs., 2009 Me. Super. LEXIS 73, at *8
(Apr. 24, 2009); see also Addy v. Jenkins, Inc., 2009 ME 46,
cause is generally a question of fact for the jury.").
6
~
19, 969 A.2d 935 ("Proximate
C. Product Nexus
In support of its motion for summary judgment, Armstrong asserts that there is no
admissible evidence through which Plaintiffs can prove the Decedent was exposed to asbestos
from an Armstrong product. Armstrong thus challenges the product nexus between the Decedent
and its products. Armstrong also contends that because any asbestos exposure by the Decedent
is the result of insulation applied after manufacture of the steam trap, it cannot be liable for any
exposure to asbestos from third party products.
The record reveals that the parties dispute whether there is sufficient admissible evidence
to establish the presence of Armstrong's products at Great Northern. While Decedent testified at
his deposition that Armstrong steam traps were present at the mill, Armstrong disputes whether
the Decedent's testimony is based on personal knowledge or a summary of information received
from other former Great Northern employees.
(See A.S.M.F.
~
6; Reply S.M.F.
~
6.)
In
addition, James Cramp, a coworker of the Decedent at Great Northern, recalled seeing
Armstrong steam traps at the mill, but Armstrong qualifies this statement to note that there is no
time period for the recollection. (A.S.M.F.
~
10; Reply S.M.F.
~
10.) The Court does not have
to resolve the parties' dispute regarding the record evidence at this stage of the proceedings.
Viewing the evidence in the light most favorable to Plaintiffs as the non-moving party, see
Lightfoot, 2003 ME 24,
~
6, 816 A.2d at 65, the Plaintiffs have established the presence of
Armstrong steam traps at Great Northern.
Plaintiffs, however, have not produced sufficient evidence from which a fact finder could
reasonably conclude that Decedent insulated Armstrong's products with asbestos or was
otherwise exposed to the products. See Boyden, 2007 Me. Super. LEXIS 47, at* 11. Even when
viewed in the light most favorable to the Plaintiffs, see Lightfoot, 2003 ME 24,
7
~
6, 816 A.2d at
65, the Decedent's testimony at his deposition that he remembered Armstrong steam traps at the
plant does not establish that he in fact insulated those steam traps with asbestos, or was otherwise
exposed to asbestos that was associated with Armstrong's products. The fact that Armstrong
steam traps utilized asbestos-containing gaskets during the relevant time period is insufficient to
establish Armstrong's potential liability without demonstrating that the Decedent had personal
contact with the steam traps. Because Armstrong's duty to warn would only arise after sufficient
proof of Decedent's exposure to asbestos from Armstrong's products, Plaintiffs have not made
out a prima facie case to establish negligence or any duty to warn under the law of strict liability.
Accordingly, Armstrong is entitled to summary judgment.
III. CONCLUSION
Based on the foregoing analysis, the Court grants Armstrong International, Inc.'s motion
for summary judgment, and enters judgment in favor of Armstrong International, Inc. on all
counts of Plaintiffs' complaint.
Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into
the docket by reference.
Date:
Y'j{/1~
f- £,
Entered on the Docket:
-I~
Comes sent via Mail -- Electronicar,Y:;.
8
STATE OF MAINE
CUMBERLAND, ss
BUSINESS AND CONSUMER COURT
Location: Portland
Docket No.: BCD-CV-10-19
./
GWENDOLYN RICHARDS, Individually
and as Personal Representative of the
ESTATE OF AUSTIN RICHARDS, JEAN
ANN NOONAN, JEFFREY RICHARDS,
JERRY RICHARDS, and JOEL
RICHARDS,
Plaintiffs,
v.
ARMSTRONG INTERNATIONAL, INC.,
CRANE CO., DATRON INC.
LIQUIDATING TRUST, GOULDS
PUMPS, INC., and NASH ENGINEERING
CO.,
Defendants
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
DECISION AND ORDER
(Nash Engineering Co.)
In this action, Plaintiffs seek to recover damages allegedly resulting from the death of
Austin Richards (the Decedent) due to his exposure to asbestos during the course of his
employment at the Great Northern Paper Company (Great Northern). Plaintiffs allege that as a
result of exposure to asbestos insulation used with products manufactured by each of the
Defendants, the Decedent contracted mesothelioma, which resulted in his death. The matter is
before the Court on the summary judgment motion of Defendant Nash Engineering Co.
I.
BACKGROUND
The following facts are undisputed, except where noted. The Decedent, Austin Richards,
worked as a mason at the East Millinocket paper mill owned by Great Northern between 1950
and 1953 and between 1956 to 1987. (Supp. S.M.F. ,-r 4; Opp. S.M.F. ,-r 4.) As a mason's helper
1
and mason at the mill, 1 Decedent's responsibilities included the removal insulation from the
pumps and associated pipes to allow other tradesmen to do their respective jobs (such as
performing internal repairs of the pump), and then to reinsulate the pumps and valves. (A.S.M.F.
~
6; Reply S.M.F.
~
6.) Because there were so many pumps at the mill, the Decedent removed
and replaced insulation from pumps on a daily basis. (A.S.M.F.
~
~
7; Reply S.M.F.
7.) The
Decedent did not work on the internal aspects of the pumps, nor would it have been his job to
work on the interior of pumps at the paper mill. (Supp. S.M.F.
~~
7, 12; Opp. S.M.F.
Until the 1970s, the insulation used at the mill contained asbestos. (A.S.M.F.
~
~
~
7, 12.)
10; Reply S.M.F.
10.) Removal of the insulation created a significant amount of dust. (A.S.M.F.
S.M.F.
~~
~
4; Reply
4.) The mixing of asbestos-containing cement used for insulation and sweeping debris
from the floor also created dust. (A.S.M.F.
~
4; Reply S.M.F. ~ 4.)
Nash manufactured vacuum pump and compressor systems, some of which had
application for use in paper mills. (Supp. S.M.F.
~
5; Opp. S.M.F.
~
5.) The Decedent recalled
pumps manufactured by Nash at the mill because the name of the company was often stamped on
the pump itself. (A.S.M.F.
~
5; Reply S.M.F.
~
5.) Purchase orders from the mill to Nash reflect
that during the Decedent's employment, there were ten (10) Nash pumps in five (5) different
models at the mill. 2 (A.S.M.F. ~ 11; Reply S.M.F. ~11.)
For certain Nash pumps, Great
Northern requested installation instructions and a list of spare replacement parts. (A.S.M.F.
~~
12, 16; Reply S.M.F.
~~
12, 16.) Nash sold one full set of replacement gaskets for a pump to
Great Northern; Nash sold both paper and asbestos replacement gaskets, but the type of gaskets
sold to Great Northern is unknown. (A.S.M.F.
~
16; Reply S.M.F.
~
16.)
The Decedent performed "brick work" on a less regular basis. (A.S.M.F. ~ 3; Reply S.M.F. ~ 3.)
Nash qualifies this statement to note that purchase orders are not equivalent to shipping orders and thus do not
confirm actual sales or receipt by Great Northern. (Reply S.M.F. ~ 11.) Viewed in the light most favorable to
Plaintiffs, however, the evidence supports the inference that the pumps were delivered.
1
2
2
Mr. Richards was diagnosed with malignant mesothelioma at the age of 71 and passed
away on August 19, 2007. (A.S.M.F.
II.
~
1; Reply S.M.F.
~
1.)
DISCUSSION
A.
Standard of Review
Pursuant to M.R. Civ. P. 56(c), a moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in tliose
statements and that [the] party is entitled to a judgment as a matter of law." A party wishing to
avoid summary judgment must present a prima facie case for each element of a claim or defense
that is asserted. See Reliance Nat'l Indem. v. Knowles Indus. Svcs., 2005 ME 29,' 9, 868 A.2d
220. At this stage, the facts in the summary judgment record are reviewed "in the light most
favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24,' 6, 816
A.2d 63. A material fact is a fact that has "the potential to affect the outcome of the suit."
Burdzel v. Sobus, 2000 ME 84,' 6, 750 A.2d 573. "If material facts are disputed, the dispute
must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158,' 7, 784 A.2d 18.
A factual issue is genuine when there is sufficient supporting evidence for the claimed
fact that would require a fact-finder to choose between competing versions of the facts at trial.
See Inkel v. Livingston, 2005 ME 42,' 4, 869 A.2d 745. "Neither party may rely on conclusory
allegations or unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact." Kenny v. Dep't of Human Svcs., 1999 ME
158,' 3, 740 A.2d 560 (quoting Vinick v. Comm'r, 110 F.3d 168, 171 (1st Cir. 1997)).
3
A. Applicable Law
Plaintiffs' primary causes of action against Nash are negligence and strict liability?
Plaintiffs allege that the use of asbestos insulation on Nash's products was reasonably
foreseeable, and that Nash failed to warn of the reasonable foreseeable dangers associated with
the use of its products with asbestos-containing insulation made by third parties. According the
Plaintiffs, as a result of Nash's failure to warn the Decedent of those dangers or recommend
safety precautions, the Decedent was exposed to harmful asbestos insulation, which caused him
to develop mesothelioma, and ultimately resulted in his death.
"The essential elements of a claim for negligence are duty, breach, proximate causation,
and harm." Baker v. Farrand, 2011 ME 91,' 11,26 A.3d 806. A plaintiff must demonstrate
that "a violation of the duty to use the appropriate level of care towards another, is the legal
cause of harm to" the plaintiff and that the defendant's "conduct [was] a substantial factor in
bringing about the harm." Spickler v. York, 566 A.2d 1385, 1390 (Me. 1993) (internal citations
omitted); see also Bonin v. Crepeau, 2005 ME 59,' 10, 873 A.2d 346 (outlining negligence
cause of action for supplying a product without adequate warnings to the user); RESTATEMENT
(SECOND) OF TORTS§ 388 (1965). "Maine's strict liability statute, [14 M.R.S. § 221 (2011)],
imposes liability on manufacturers and suppliers who market defective, unreasonably dangerous
products," including liability for defects based on the failure to warn of the product's dangers.4
See Bernier v. Raymark Indus., Inc., 516 A.2d 534,537 (Me. 1986).
3
In Count I of the complaint, Plaintiffs allege that the negligence of each manufacturer Defendant, including Crane,
caused the Decedent's exposure to asbestos, development of mesothelioma, and ultimate death. Plaintiffs also assert
strict liability for defective design and condition based on asbestos within the products and the failure to warn of the
dangers of asbestos (Count I), civil conspiracy among all the defendants (Count III), gross negligence (Count IV),
"aiding and abetting" among the Defendants' negligent and intentional acts (Count V), negligence per se against all
defendants based on alleged violations of state and federal law (Count VI), and loss of consortium (Count VII).
4
In addition, strict liability can attach for a design defect or a defect in the manufacturing process. See Pottle v. UpRight, Inc., 628 A.2d 672,674-75 (Me. 1993). Those theories of liability are not at issue in this case.
4
As the asbestos litigation has evolved both nationally and within Maine, the level of
proof necessary to establish the requisite relationship between a plaintiffs injuries and a
defendant's product has been subject of much debate. 5 A majority of jurisdictions have adopted
the standard articulated by the court in Lohrmann v. Pittsburg Corning Corp., 782 F.2d 1156 (4th
Cir. 1986), where the court construed the "substantial factor" test of the Restatement (Second) of
Torts. 6 In Lohrmann, the court announced and applied the "frequency-regularity-proximity test",
which requires a plaintiff to "prove more than a casual or minimum contact with the product"
that contains asbestos. Lohrmann, 782 F .2d at 1162. Rather, under Lohrmann, a plaintiff must
present "evidence of exposure to a specific product on a regular basis over some extended period
of time in proximity to where the plaintiff actually worked." !d. at 1162-63. Lohrmann suggests
that the Court engage a quantitative analysis of a party's exposure to asbestos in order to
determine whether, as a matter of law, the party can prevail.
Although the Maine Law Court has not addressed the issue, at least one Justice of the
Maine Superior Court has expressly rejected the Lohrmann standard. Justice Ellen Gorman7
rejected the Lohrmann standard "because it is entirely the jury's function to determine if the
conduct of the defendant was a substantial factor in causing the plaintiff's injury and because it is
not appropriate for the court to determine whether a plaintiff has proven that a defendant's
product proximately caused the harm." Campbell v. The HB. Smith Co., Inc., Docket No. CV5
In their opposition to Nash's motion for summary judgment, Plaintiffs write that strict liability in Maine requires
medical causation and a product nexus in order to prove the necessary link between the alleged defective product
and the claimed damages. (Pls.' Opp'n MSJ 7.) Plaintiffs also assert that this "rubric ... is a departure from the
so-called 'frequency, regularity, and proximity test' of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1157 (4th
Cir. 1986)." (Pls.' Opp'n MSJ 7) Because the Maine Law Court has not addressed the issue in the context of
asbestos litigation (Plaintiffs cite other Superior Court decisions as authority for the standard in Maine), the Court
will discuss its reasoning for applying a standard other than as articulated in Lohrmann.
6
The Restatement (Second) of Torts is consistent with the causation standard in Maine. Section 431 provides in
pertinent part that "[t]he actor's negligent conduct is a legal cause of harm to another if his conduct is a substantial
factor in bringing about the harm ... "
7
At the time, Justice Gorman was a member of the Maine Superior Court. Justice Gorman was subsequently
appointed to the Maine Supreme Judicial Court.
5
04-57 at 7 (Me. Super. Ct., April 2, 2007) (Gorman, J). 8 In rejecting the Lohrmann standard,
Justice Gorman wrote that to establish a prima facie case, a plaintiff must demonstrate:
(1) medical causation - that the plaintiffs exposure to the defendant's product
was a substantial factor in causing the plaintiffs injury and (2) product nexus that the defendant's asbestos-containing product was at the site where plaintiff
worked or was present, and that the plaintiff was in proximity to that product at
the time it was being used ... a plaintiff must prove not only that the asbestos
products were used at the worksite, but that the employee inhaled the asbestos
from the defendant's product.
Campbell at 5-6. (citing, 63 Am. Jur. 2d Products Liability§ 70 (2001).
Insofar as under Lohrmann a plaintiff must prove exposure to asbestos over a sustained
period of time while under the standard applied by Justice Gorman a plaintiff must only
demonstrate that plaintiff was in proximity to the product at the time that it was being used, the
Lohrmann standard imposes a higher threshold for claimants. The Court's decision as to the
applicable standard cannot, however, be controlled by the standard's degree of difficulty.
Instead, the standard must be consistent with basic principles of causation. In this regard, the
Court agrees with the essence of Justice Gorman's conclusion - to require a quantitative
assessment of a plaintiffs exposure to asbestos, as contemplated by Lohrmann, would usurp the
fact finder's province. Whether a defendant's conduct caused a particular injury is at its core a
question of fact. The Court perceives of no basis in law to deviate from this longstanding legal
principle. The Court, therefore, concludes that in order to avoid summary judgment, in addition
to producing evidence of medical causation, a plaintiff must establish the product nexus through
competent evidence. In particular, a plaintiff must demonstrate (1) that the defendant's product
was at the defendant's work place, (2) that the defendant's product contained asbestos, (3) and
that the plaintiff had personal contact with the asbestos from the defendant's product. If a
8
Justice Gorman also rejected the Lohrmann standard for similar reasons in Boyden v. Tri-State Packing Supply, et
a/., Docket No. CV-04-452 (Me. Super. Ct., Feb. 28, 2007).
6
plaintiff produces such evidence, which can be either direct or circumstantial, the question of
whether the defendant's product was a "substantial factor" in causing the plaintiffs damages is
for the jury.
Thus, to survive the motion for summary judgment, the Plaintiffs must preliminarily
demonstrate that: (1) Nash's product was at Great Northern, (2) Nash's product at Great
Northern contained asbestos, and (3) the Decedent had personal contact with asbestos from
Nash's product.
"If a plaintiff produces such evidence, which can be either direct or
circumstantial, the question of whether the defendant's product was a 'substantial factor' m
causing the plaintiffs damages is for the jury." Rumery v. Garlock Sealing Techs., 2009 Me.
Super. LEXIS 73, at *8 (Apr. 24, 2009); see also Addy v. Jenkins, Inc., 2009 ME 46,
~
19, 969
A.2d 93 5, 940 ("Proximate cause is generally a question of fact for the jury.").
B.
Analysis
In support of its motion for summary judgment, Nash makes two arguments. First, Nash
argues that Plaintiffs have not shown sufficient evidence of exposure to asbestos from a Nash
product. Second, anticipating an argument regarding the use of asbestos insulation on or near its
products, Nash argues that a manufacturer has no duty to warn of any potential dangers of
third-party's products when used in conjunction with its own. Because any duty to warn would
only arise after sufficient proof of exposure to asbestos from Nash's products, the Court will
address that argument first.
Plaintiffs argue that there is sufficient evidence of exposure in the record because "there
were a variety ofNash pumps at Great Northern, [and] Decedent breathed asbestos dust created
by his work installing and removing asbestos-containing insulation from those pumps."
Contrary to Plaintiffs' argument, viewed in the light most favorable to Plaintiffs, see Light]oot,
7
2003 ME 24,
~
6, 816 A.2d at 65, the summary judgment record does not establish the requisite
exposure to asbestos from Nash products.
Although for purposes of summary judgment,
Plaintiffs have established that Nash's products were present at Great Northern during the time
of Decedent's employment, Plaintiffs have not established that Decedent had the requisite
personal contact with asbestos from Nash's products. See Boyden, 2007 Me. Super. LEXIS 47,
at
*11.
The Decedent's recollection of the presence of Nash products at the mill is simply
insufficient to establish that the Decedent was exposed to asbestos dust generated by a product
for which Nash is legally responsible. Nash was not the exclusive supplier of pumps and gaskets
to mill. Indeed, given that there were only ten Nash pumps and one set of Nash replacement
gaskets sold to the mill, a fact finder could not rationally conclude that the Decedent's contact
with a Nash product was inevitable. Accordingly, Plaintiffs cannot prevail on their claim against
Nash.
CONCLUSION
Based on the foregoing analysis, the Court grants Nash Engineering Co.'s motion for
summary judgment, and enters judgment in favor of Nash Engineering Co. on all counts of
Plaintiffs' complaint.
Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into
the docket by reference.
Date:
'1fj;;.
Entered on the Docket:
"k· /~
'(
Copies sent via Mail_ Electronically~
8
BUSINESS AND CONSUMER COURT
Location: Portland
Docket No.: BCD-CV-10-19
STATE OF MAINE
CUMBERLAND, ss
/
)
GWENDOLYN RICHARDS, Individually
and as Personal Representative of the
ESTATE OF AUSTIN RICHARDS, JEAN
ANN NOONAN, JEFFREY RICHARDS,
JERRY RICHARDS, and JOEL
RICHARDS,
)
)
)
)
)
)
)
Plaintiffs,
)
)
V.
DECISION AND ORDER
(Datron Inc. Liquidating Trust)
)
)
ARMSTRONG INTERNATIONAL, INC.,
CRANE CO., DATRON INC.
LIQUIDATING TRUST, GOULDS
PUMPS, INC., and THE NASH
ENGINEERING CO.,
)
)
)
)
)
)
Defendants
)·
)
In this action, Plaintiffs seek to recover damages allegedly resulting from the death of
Austin Richards due to his exposure to asbestos during the course of his employment at the Great
Northern Paper Company (Great Northern). Plaintiffs allege that as a result of exposure to
asbestos insulation used with products manufactured by each of the Defendants, the Decedent
contracted mesothelioma, which resulted in his death. This matter is before the Court on the
motion for summary judgment of Defendant Datron Inc. Liquidating Trust (Datron), individually
and as the successor in interest to Nicholson Steam Trap. Datron was substituted for Spence
Engineering Company on May 5, 2011.
I.
BACKGROUND
The following facts are undisputed, except where noted. The Decedent, Austin Richards,
worked as a mason at the East Millinocket paper mill owned by Great Northern between 1950
and 1953 and between 1956 to 1987. (Supp. S.M.F.
~
4; Opp. S.M.F.
~
4.) As a mason's helper
and mason at the mill, 1 Decedent's responsibilities included the removal insulation from p~pes
and various pieces of equipment (including pumps, turbines, valves, boilers, and steam traps) to
allow other tradesmen to do their respective jobs (such as performing internal repairs of the
pump), and then to reinsulate the pipes and equipment. (Supp. S.M.F.
~
A.S.M.F.
5; Reply S.M.F.
asbestos. (A.S.M.F.
~
~
~
6; Opp. S.M.F.
~
~
6;
10.) Removal of the insulation created a significant
4; Reply S.M.F.
~
4.) The mixing of asbestos-containing cement
used for insulation and sweeping debris from the floor also created dust. (A.S.M.F.
S.M.F.
~
5.) Until the 1970s, the insulation used at the mill contained
10; Reply S.M.F.
amount of dust. (A.S.M.F.
~
~
4; Reply
4.)
Datron's predecessor manufactures steam traps.
Although Decedent testified at his
deposition that there were Nicholson steam traps at the mill, Datron disputes whether the
testimony is based on his personal knowledge, or whether the testimony is based on a summary
of information received from other former Great Northern employees. (See A.S.M.F.
S.M.F.
~
~
6; Reply
6.)
The Decedent was diagnosed with malignant mesothelioma at age 71 and passed away on
August 19,2007. (A.S.M.F.' 1; Reply S.M.F.' 1.)
II.
DISCUSSION
A.
1
Standard of Review
The Decedent performed "brick work" on a less regular basis. (A.S.M.F. ~ 3; Reply S.M.F. ~ 3.)
2
Pursuant to M.R. Civ. P. 56(c), a moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in those
statements and that [the] party is entitled to a judgment as a matter of law." A party wishing to
avoid summary judgment must present a prima facie case for each element of a claim or defense
that is asserted. See Reliance Nat'! Indem. v. Knowles Indus. Svcs., 2005 ME 29,' 9, 868 A.2d
220. At this stage, the facts in the summary judgment record are reviewed "in the light most
favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24, ' 6, 816
A .2d 63. A material fact is a fact that has "the potential to affect the outcome of the suit."
Burdzel v. Sobus, 2000 ME 84,' 6, 750 A.2d 573. "If material facts are disputed, the dispute
must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158,' 7, 784 A.2d 18.
A factual issue is genuine when there is sufficient supporting evidence for the claimed
fact that would require a fact-finder to choose between competing versions of the facts at trial.
See lnkel v. Livingston, 2005 ME 42,' 4, 869 A.2d 745. "Neither party may rely on conclusory
allegations or unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact." Kenny v. Dep 't of Human Svcs ., 1999 ME
158,' 3, 740 A.2d 560 (quoting Vinick v. Comm'r, 110 F.3d 168, 171 (1st Cir. 1997)).
B.
Applicable Law
Plaintiffs' primary causes of action against Datron are negligence and strict liability. 2
Plaintiffs allege that the use of asbestos insulation on Nicholson pumps was reasonably
2
Count I of the complaint alleges that each manufacturer Defendant's negligence, including Datron, caused the
Decedent's exposure to asbestos, development of mesothelioma, and ultimate death. Count I also asserts strict
liability for defective design and condition based on asbestos within the products and the failure to warn of the
dangers of asbestos. Count III asserts civil conspiracy among ali the defendants; Count IV alleges gross negligence.
3
foreseeable and that Datron failed to warn of the reasonable foreseeable dangers associated with
the use of its products with asbestos-containing insulation made by third parties. As a result of
Datron's failure to warn the Decedent of those dangers or recommend safety precautions,, the
Decedent was exposed to harmful asbestos insulation, which caused the Decedent to develop
mesothelioma, and ultimately resulted in his death.
"The essential elements of a claim for negligence are duty, breach, proximate causation,
and harm." Baker v. Farrand, 2011 ME 91,
~
11, 26 A .3d 806. A plaintiff must demonstrate
that "a violation of the duty to use the appropriate level of care towards another, is the legal
cause of harm to" the plaintiff and that the defendant's "conduct [was] a substantial factor in
bringing about the harm." Spickler v. York, 566 A.2d 1385, 1390 (Me. 1993) (internal citations
omitted); see also Bonin v. Crepeau, 2005 ME 59,
~
10, 873 A.2d 346 (outlining negligence
cause of action for supplying a product without adequate warnings to the user); RESTATEMENT
(SECOND) OF TORTS § 388 (1965). "Maine's strict liability statute, [14 M.R.S. § 221 (2011)],
imposes liability on manufacturers and suppliers who market defective, unreasonably dangerous
products," including liability for defects based on the failure to warn of the product's dangers?
See Bernier v. Raymark Indus., Inc., 516 A.2d 534,537 (Me. 1986).
As the asbestos litigation has evolved both nationally and within Maine, the level of
proof necessary to establish the requisite relationship between a plaintiffs injuries and a
defendant's product has been subject of much debate. 4 A majority of jurisdictions have adopted
Count V alleges "aiding and abetting" among the defendants' negligent and intentional acts. Count VI alleges
negligence per se against all defendants based on alleged violations of state and federal law, and in Count VII, the
Plaintiffs allege loss of consortium. The predicate of each cause of action is exposure to asbestos from one of
Defendant's products.
3
In addition, strict liability can attach for a design defect or a defect in the manufacturing process. See Pottle v. UpRight, Inc., 628 A .2d 672, 674-75 (Me. 1993). Those theories of liability are not at issue in this case.
.
4
In their opposition to Datron' s motion for summary judgment, Plaintiffs write that strict liability in Maine requires
medical causation and a product nexus in order to prove the necessary link between the alleged defective product
and the claimed damages. (Pis.' Opp'n MSJ 6.) Plaintiffs also assert that this "rubric ... is a departure from the
4
the standard articulated by the court in Lohrmann v. Pittsburg Corning Corp., 782 F .2d 1156 (4th
Cir. 1986), where the court construed the "substantial factor" test of the Restatement (Second) of
Torts. 5 In Lohrmann, the court announced and applied the "frequency-regularity-proximity test",
which requires a plaintiff to "prove more than a casual or minimum contact with the prodl;lct"
that contains asbestos. Lohrmann, 782 F .2d at 1162. Rather, under Lohrmann, a plaintiff must
present "evidence of exposure to a specific product on a regular basis over some extended period
of time in proximity to where the plaintiff actually worked." Id. at 1162-63. Lohrmann suggests
that the Court engage a quantitative analysis of a party's exposure to asbestos in order to
determine whether, as a matter of law, the party can prevail.
Although the Maine Law Court has not addressed the issue, at least one Justice of the
Maine Superior Court has expressly rejected the Lohrmann standard. Justice Ellen Gorman6
rejected the Lohrmann standard "because it is entirely the jury's function to determine if the
conduct of the defendant was a substantial factor in causing the plaintiff's injury and because it is
not appropriate for the court to determine whether a plaintiff has proven that a defendant's
product proximately caused the harm." Campbell v. The HB. Smith Co., Inc., Docket No. CV-
04-57 at 7 (Me. Super. Ct., April 2, 2007) (Gorman, J). 7 In rejecting the Lohrmann standard,
Justice Gorman wrote that to establish a prima facie case, a plaintiff must demonstrate:
(1) medical causation - that the plaintiff's exposure to the defendant's product
was a substantial factor in causing the plaintiff's injury and (2) product nexus so-called 'frequency, regularity, and proximity test' of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1157 (4th
Cir. 1986)." (Pis.' Opp'n MSJ 6.) Because the Maine Law Court has not addressed the issue in the context of
asbestos litigation (Plaintiffs cite other Superior Court decisions as authority for the standard in Maine), the Court
will discuss its reasoning for applying a standard other than as articulated in Lohrmann.
5
The Restatement (Second) of Torts is consistent with the causation standard in Maine. Section 431 provides in
pertinent part that "[t]he actor's negligent conduct is a legal cause of harm to another if his conduct is a substantial
factor in bringing about the harm ... "
6
At the time, Justice Gorman was a member of the Maine Superior Court. Justice Gorman was subsequently
appointed to the Maine Supreme Judicial Court.
7
Justice Gorman also rejected the Lohrmann standard for similar reasons in Boyden v. Tri-State Packing Supply, et
a!., Docket No. CV-04-452 (Me. Super. Ct., Feb. 28, 2007).
5
that the defendant's asbestos-containing product was at the site where plaintiff
worked or was present, and that the plaintiff was in proximity to that product at
the time it was being used ... a plaintiff must prove not only that the asbestos
products were used at the worksite, but that the employee inhaled the asbestos
from the defendant's product.
Campbell at 5-6. (citing, 63 Am. Jur. 2d Products Liability§ 70 (2001).
Insofar as under Lohrmann a plaintiff must prove exposure to asbestos over a sustained
period of time while under the standard applied by Justice Gorman a plaintiff must only
demonstrate that plaintiff was in proximity to the product at the time that it was being used, the
Lohrmann standard imposes a higher threshold for claimants. The Court's decision as to the
applicable standard cannot, however, be controlled by the standard's degree of difficulty.
Instead, the standard must be consistent with basic principles of causation. In this regard, the
Court agrees with the essence of Justice Gorman's conclusion - to require a quantitative
assessment of a plaintiff's exposure to asbestos, as contemplated by Lohrmann, would usurp the
fact finder's province. Whether a defendant's conduct caused a particular injury is at its core a
question of fact. The Court perceives of no basis in law to deviate from this longstanding legal
principle. The Court, therefore, concludes that in order to avoid summary judgment, in addition
to producing evidence of medical causation, a plaintiff must establish the product nexus through
competent evidence. In particular, a plaintiff must demonstrate (1) that the defendant's product
was at the defendant's work place, (2) that the defendant's product contained asbestos, (3) and
that the plaintiff had personal contact with the asbestos from the defendant's product. If a
plaintiff produces such evidence, which can be either direct or circumstantial, the question of
whether the defendant's product was a "substantial factor" in causing the plaintiff's damages is
for the jury.
6
Thus, to survive the motion for summary judgment, the Plaintiffs must first demonstrate
that: (1) Datron's product was at Great Northern, (2) Datron's product at Great Northern
contained asbestos, and (3) the Decedent had personal contact with asbestos from Datron 's
product. "If a plaintiff produces such evidence, which can be either direct or circumstantial, the
question of whether the defendant's product was a 'substantial factor' in causing the plaintiffs
damages is for the jury." Rumery v. Garlock Sealing Techs., 2009 Me. Super. LEXIS 73, at *8
(Apr. 24, 2009); see also Addy v. Jenkins, Inc., 2009 ME 46, ,- 19,969 A.2d 935 ("Proximate
cause is generally a question of fact for the jury.").
C. Product Nexus
In support of its motion for summary judgment, Datron asserts that there is no admissible
evidence through which Plaintiffs can prove the Decedent worked on any asbestos-containing
component of a Nicholson steam trap, for which Datron is alleged to be liable as the successor in
interest.
Datron thus challenges the product nexus between the Decedent and its products.
Datron also asserts that because any asbestos exposure by the Decedent is the result of insulation
applied after manufacture of the steam trap, it cannot be liable for any exposure to asbestos from
third party products.
The record reveals that the parties dispute whether there is sufficient admissible evidence
to establish the presence of Datron's products at Great Northern. The Decedent testified at his
deposition that Nicholson steam traps were present at the mill, but Datron disputes whether the
testimony is based on Decedent's personal knowledge, or based on a summary of information
received from other former Great Northern employees. (See A.S.M.F. ,-r 6; Reply S.M.F. ,-r 6.)
Datron also objects to paragraph 10 of Plaintiffs' additional statement of material facts as
unsupported by record material. (Reply S.M.F. ,-r 10.) _The Court does not have to resolve the
7
parties' dispute regarding the record evidence at this stage of the proceedings. Viewing the
evidence in the light most favorable to Plaintiffs as the non-moving party, see Lightfoot, 2003
ME 24, ~ 6, 816 A.2d at 65, the Plaintiffs have established the presence ofNicholson steam traps
(for which Datron is responsible) at Great Northern.
Plaintiffs, however, have not established that the Decedent was exposed to asbestos from
Datron's products or that the Decedent insulated them with asbestos. See Boyden, 2007 Me.
Super. LEXIS 4 7, at *11. Even when viewed in the light most favorable to the Plaintiffs, see
Lightfoot, 2003 ME 24,
~
6, 816 A.2d at 65, the Decedent's testimony at his deposition that he
remembered Nicholson steam traps at the plant does not establish that he in fact insulated those
steam traps with asbestos, or was otherwise exposed to asbestos that was associated with
Datron's products. The record is devoid of evidence from which a fact finder could reasonably
conclude that the Decedent worked on, or otherwise had contact with Nicholson steam traps.
Because Datron' s duty to warn would only arise after sufficient proof of Decedent's exposure to
asbestos from Datron's products, Plaintiffs have not made out a prima facie case to establish
negligence or any duty to warn under the law of strict liability. Accordingly, Datron is entitled
to summary judgment.
III. CONCLUSION
Based on the foregoing analysis, the Court grants Datron's motion for summary
judgment, and enters judgment in favor of Datron on all counts of Plaintiffs' complaint.
Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into
the docket by reference.
Date:
'tjsj;J
8
Entered on the Docket:
"'/J
Copies sent via Mail _ El ctronically ·-~
STATE OF MAINE
CUMBERLAND, ss
BUSINESS AND CONSUMER COURT
Location: Portland
Docket No.: BCD-CV-10-19
/
)
GWENDOLYN RICHARDS, Individually
and as Personal Representative of the
ESTATE OF AUSTIN RICHARDS, JEAN
ANN NOONAN, JEFFREY RICHARDS,
JERRY RICHARDS, and JOEL
RICHARDS,
)
)
)
)
)
)
)
Plaintiffs,
)
DECISION AND ORDER
(Goulds Pumps, Inc.)
)
V.
)
)
ARMSTRONG INTERNATIONAL, INC.,
CRANECO.,DATRONINC.
LIQUIDATING TRUST, GOULDS
PUMPS, INC., and NASH ENGINEERING
co.,
)
)
)
)
)
)
Defendants
)
)
In this action, Plaintiffs seek to recover damages allegedly resulting from the death of
Austin Richards (the Decedent) due to his exposure to asbestos during the course of his
employment at the Great Northern Paper Company (Great Northern). Plaintiffs allege that as a
result of exposure to asbestos insulation used with products manufactured by each of the
Defendants, the Decedent contracted mesothelioma, which resulted in his death. The matter is
before the Court on the motion for summary judgment of Defendant Goulds Pumps, Inc.
(Goulds).
I.
BACKGROUND
Except where noted, the following facts in the summary judgment record are not in
dispute. See FR. Carroll, Inc. v. TD Bank, NA., 2010 ME 115,' 2, 8 A.3d 646, 647. The
1
Decedent Austin Richards worked as a mason at Great Northern from 1950 to 1953 and 1956 to
1987. (Supp. S.M.F. ' ' 1, 5; Opp. S.M.F. ' ' 1, 5.) As a mason, Richards removed and replaced
asbestos insulation from pipecoverings and other equipment, including pumps, at Great
Northern. (Supp. S.M.F.' 1; Opp. S.M.F.' 1; A.S.M.F. ' ' 3-5; Reply. S.M.F." 3-5.) Beyond
insulating pumps at Great Northern, Richards was not involved in the installation or maintenance
of pumps and had nothing to do with the internal workings of the pieces of equipment. (Supp.
S.M.F. ' ' 9-10; Reply S.M.F." 9-10.)
It is undisputed that Goulds pumps were present at Great Northern during the period that
the Decedent worked there as a mason.
(Supp. S.M.F. "
14-15; Opp. S.M.F. "14-15;
A.S.M.F." 5, 11, 13, 15; Reply S.M.F." 5, 11, 13, 15.) Further, although disputed, the
summary judgment record supports that the Decedent removed and replaced insulation on
Goulds pumps. 1 (Supp. S.M.F.' 14; Opp. S.M.F.' 14.) The parties dispute whether there is
sufficient, admissible evidence to support Plaintiffs' assertion that a Goulds pump model that
recommended external insulation was utilized at Great Northern. (A.S.M.F. ' ' 21-23; Reply
S.M.F. ' ' 21-23.)
Richards was diagnosed with malignant mesothelioma at age 71, and died on August 19,
2007. (Supp. S.M.F.' 2; Opp. S.M.F.' 2; A.S.M.F.' 1; Reply S.M.F.' 1.)
1
Goulds asserts that any of its pumps at Great Northern were not insulated, relying on deposition testimony of
James Cramps, a former coworker of Richards at Great Northern. (Goulds Supp. S.M.F. ~ 14.) Cramps states in his
deposition that he did not "recall [Goulds pumps] being insulated." (Def. 's Exh. Fat 166:2-9.) Plaintiffs deny this
statement, citing the deposition testimony of Richards:
Q
A
Do you recall the names of any of the pumps you worked on?
Ingersoll-Rand, Terry, Ingersoll-Rand and Goulds, Nash. That's right off my head.
(Goulds Opp. S.M.F. ~ 14; Def. 's Exh. E. 37:3-7.) Plaintiffs also cite this testimony in support of additional
statement of material fact number 5, which Goulds does not deny. Plaintiffs have made out the prime facie showing
that Richards removed and replaced insulation on Goulds pumps, and there is an issue of material fact regarding that
element.
2
II.
DISCUSSION
A.
Standard of Review
Pursuant to M.R. Civ. P. 56(c), a moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in those
statements and that [the] party is entitled to a judgment as a matter of law." A party wishing to
avoid summary judgment must present a prima facie case for each element of a claim or defense
that is asserted. See Reliance Nat'l Indem. v. Knowles Indus. Svcs., 2005 ME 29,' 9, 868 A.2d
220. At this stage, the facts in the summary judgment record are reviewed "in the light most
favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No. 35,2003 ME 24,' 6, 816
A .2d 63. A material fact is a fact that has "the potential to affect the outcome of the suit."
Burdzel v. Sobus, 2000 ME 84,' 6, 750 A.2d 573. "If material facts are disputed, the dispute
must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158,' 7, 784 A.2d 18.
A factual issue is genuine when there is sufficient supporting evidence for the claimed
fact that would require a fact-finder to choose between competing versions of the facts at trial.
See lnkel v. Livingston, 2005 ME 42,' 4, 869 A.2d 745. "Neither party may rely on conclusory
allegations or unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact." Kenny v. Dep't of Human Svcs., 1999 ME
158,' 3, 740 A.2d 560 (quoting Vinick v. Comm'r, 110 F.3d 168, 171 (1st Cir. 1997)).
3
B.
Applicable Law
Plaintiffs' primary causes of action against Goulds are negligence and strict liability .2
Plaintiffs allege that the use of asbestos insulation on Goulds' pumps was reasonably
foreseeable, and that Goulds failed to warn of the reasonable foreseeable dangers associated with
the use of its products with asbestos-containing insulation made by third parties. As a result of
Goulds' failure to warn the Decedent of those dangers or recommend safety precautions, the
Decedent was exposed to harmful asbestos insulation, which caused the Decedent to develop
mesothelioma, and ultimately resulted in his death.
"The essential elements of a claim for negligence are duty, breach, proximate causation,
and harm." Baker v. Farrand, 2011 ME 91,' 11, 26 A.3d 806. A plaintiff must demonstrate
that "a violation of the duty to use the appropriate level of care towards another, is the legal
cause of harm to" the plaintiff and that the defendant's "conduct [was] a substantial factor in
bringing about the harm." Spickler v. York, 566 A.2d 1385, 1390 (Me. 1993) (internal citations
omitted); see also Bonin v. Crepeau, 2005 ME 59, ' 10, 873 A.2d 346 (outlining negligence
cause of action for supplying a product without adequate warnings to the user); RESTATEMENT
(SECOND) OF TORTS§ 388 (1965). "Maine's strict liability statute, [14 M.R.S. § 221 (2011)],
imposes liability on manufacturers and suppliers who market defective, unreasonably dangerous
products," including liability for defects based on the failure to warn of the product's dangers _3
See Bernier v. Raymark Indus., Inc., 516 A.2d 534,537 (Me. 1986).
2
In Count I of the complaint, Plaintiffs allege that the negligence of each manufacturer Defendant, including Crane,
caused the Decedent's exposure to asbestos, development of mesothelioma, and ultimate death. Plaintiffs also assert
strict liability for defective design and condition based on asbestos within the products and the failure to warn of the
dangers of asbestos (Count 1), civil conspiracy among all the defendants (Count III), gross negligence (Count IV),
"aiding and abetting" among the Defendants' negligent and intentional acts (Count V), negligence per se against all
defendants based on alleged violations of state and federal law (Count VI), and loss of consortium (Count VII).
3
In addition, strict liability can attach for a design defect or a defect in the manufacturing process. See Pottle v. UpRight, Inc., 628 A.2d 672, 674-75 (Me. 1993). Those theories of liability are not at issue in this case.
4
As the asbestos litigation has evolved both nationally and within Maine, the level of
proof necessary to establish the requisite relationship between a plaintiffs injuries and a
defendant's product has been subject of much debate. 4 A majority of jurisdictions have adopted
the standard articulated by the court in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156
(4th Cir. 1986), where the court construed the "substantial factor" test of the RESTATEMENT
(SECOND) OF TORTS. 5 In Lohrmann, the court announced and applied the frequency, regularity,
and proximity test, which requires a plaintiff to "prove more than a casual or minimum contact
with the product" that contains asbestos. 782 F.2d at 1162. Rather, under Lohrmann, a plaintiff
must present "evidence of exposure to a specific product on a regular basis over some extended
period of time in proximity to where the plaintiff actually worked." !d. at 1162-63. Lohrmann
suggests that the Court engage a quantitative analysis of a party's exposure to asbestos in order
to determine whether, as a matter of law, the party can prevail. See id. at 1163-64.
Although the Maine Law Court has not addressed the issue, at least one Justice of the
Maine Superior Court has expressly rejected the Lohrmann standard. Justice Ellen Gorman 6
rejected the Lohrmann standard "because it is entirely the jury's function to determine if the
conduct of the defendant was a substantial factor in causing the plaintiffs injury and because it is
not appropriate for the court to determine whether a plaintiff has proven that a defendant's
product proximately caused the harm."
Campbell v. The HB. Smith Co., Inc., Docket No.
4
In their opposition to Goulds' motion for summary judgment, Plaintiffs write that strict liability in Maine requires
medical causation and a product nexus in order to prove the necessary link between the alleged defective product
and the claimed damages. (Pis.' Opp'n MSJ 4.) Plaintiffs also assert that this "rubric ... is a departure from the
so-called 'frequency, regularity, and proximity test' of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1157 (4th
Cir. 1986)." (Pis.' Opp'n MSJ 4.) Because the Maine Law Court has not addressed the issue in the context of
asbestos litigation (Plaintiffs cite other Superior Court decisions as authority for the standard in Maine), the Court
will discuss its reasoning for applying a standard other than as articulated in Lohrmann.
5
The RESTATEMENT (SECOND) OF TORTS is consistent with the causation standard in Maine. Section 431 provides
in pertinent part that "[t]he actor's negligent conduct is a legal cause of harm to another if ... his conduct is a
substantial factor in bringing about the harm ... " RESTATEMENT (SECOND) OF TORTS § 431 (a).
6
At the time, Justice Gorman was a member of the Maine Superior Court. Justice Gorman was subsequently
appointed to the Maine Supreme Judicial Court.
5
LINSC-CV-2004-57, at 7 (Me. Super. Ct., Lin. Cty., Apr. 2, 2007) (Gorman, J). 7 In rejecting the
Lohrmann standard, Justice Gorman wrote that to establish a prima facie case, a plaintiff must
demonstrate:
(1) medical causation - that the plaintiffs exposure to the defendant's product
was a substantial factor in causing the plaintiffs injury and (2) product nexus that the defendant's asbestos-containing product was at the site where plaintiff
worked or was present, and that the plaintiff was in proximity to that product at
the time it was being used . . . a plaintiff must prove not only that the asbestos
products were used at the worksite, but that the employee inhaled the asbestos
from the defendant's product.
Id (quoting 63 AM. JUR. 2D Products Liability§ 70 (2001) (emphasis added)).
Insofar as under Lohrmann a plaintiff must prove exposure to asbestos over a sustained
period of time while under the standard applied by Justice Gorman a plaintiff must only
demonstrate that plaintiff was in proximity to the product at the time that it was being used, the
Lohrmann standard imposes a higher threshold for claimants. The Court's decision as to the
applicable standard cannot, however, be controlled by the standard's degree of difficulty.
Instead, the standard must be consistent with basic principles of causation. In this regard, the
Court agrees with the essence of Justice Gorman's conclusion - to require a quantitative
assessment of a plaintiffs exposure to asbestos, as contemplated by Lohrmann, would usurp the
fact finder's province. Whether a defendant's conduct caused a particular injury is at its core a
question of fact. The Court perceives of no basis in law to deviate from this longstanding legal
principle. The Court, therefore, concludes that in order to avoid summary judgment, in addition
to producing evidence of medical causation, a plaintiff must establish the product nexus through
competent evidence. In particular, a plaintiff must demonstrate (1) that the defendant's product
was at the defendant's work place, (2) that the defendant's product contained asbestos, (3) and
7
Justice Gonnan also rejected the Lohrmann standard for similar reasons in Boyden v. Tri-State Packing Supply, et
a!., Docket No. CV-04-452 (Me. Super. Ct., Feb. 28, 2007).
6
that the plaintiff had personal contact with the asbestos from the defendant's product. If a
plaintiff produces such evidence, which can be either direct or circumstantial, the question of
whether the defendant's product was a "substantial factor" in causing the plaintiff's damages is
for the jury.
Thus, to survive the motion for summary judgment, the Plaintiffs must first demonstrate
that: (1) Goulds' product was at Great Northern, (2) Goulds' product at Great Northern contained
asbestos, and (3) the Decedent had personal contact with asbestos from Goulds' product. "If a
plaintiff produces such evidence, which can be either direct or circumstantial, the question of
whether the defendant's product was a 'substantial factor' in causing the plaintiff's damages is
for the jury." Rumery v. Garlock Sealing Techs., 2009 Me. Super. LEXIS 73, at *8 (Apr. 24,
2009); see also Addy v. Jenkins, Inc., 2009 ME 46,
~
19, 969 A.2d 935 ("Proximate cause is
generally a question of fact for the jury.").
C. Product Nexus
In the present case, Plaintiffs have made out a prime facie case for product nexus. As
stated above, although disputed, the summary judgment record supports that the Decedent
removed and replaced insulation on Goulds pumps. 8 (Supp. S .M.F. ~ 14; Opp. S.M.F. ~ 14.)
Thus, the Court turns to whether Goulds should be held liable for failing to warn of the dangers
of asbestos used in conjunction with its products.
8
Goulds asserts that any of its pumps at Great Northern were not insulated, relying on deposition testimony of
James Cramps, a former coworker of Richards at Great Northern. (Goulds Supp. S.M.F. ,-r 14.) Cramps states in his
deposition that he did not "recall [Goulds pumps] being insulated." (Def. 's Exh. Fat 166:2-9.) Plaintiffs deny this
statement, citing the deposition testimony of Richards:
Q
A
Do you recall the names of any of the pumps you worked on?
Ingersoll-Rand, Terry, Ingersoll-Rand and Goulds, Nash. That's right off my head.
(Goulds Opp. S.M.F. ,-r 14; Def.'s Exh. E. 37:3-7.) Plaintiffs also cite this testimony in support of additional
statement of material fact number 5, which Goulds does not deny. Plaintiffs have made out the prime facie showing
that Richards removed and replaced insulation on Goulds pumps, and there is an issue of material fact regarding that
element.
7
D.
Legal Theories of Recovery
Plaintiffs contend that Goulds is liable in both strict liability and negligence.
1.
Strict Liability- 14 M.R.S. § 221
Maine's product liability statute, 14 M.R.S. § 221,9 lays out the essential elements of the
cause of action asserted against a seller:
(1) the named defendant sold the goods or products;
(2) those goods or products were in a defective condition unreasonably dangerous
to the user or consumer or the user or consumer's property;
(3) the plaintiff might reasonably have been expected to use, consume, or be
affected by the goods or products;
(4) the defendant was engaged in the business of selling the goods or products;
(5) the goods or products were expected to, and did, reach the user or consumer
without significant change in the condition in which they were sold; and
(6) the plaintiff or the plaintiff's property suffered physical harm.
Burns v. Architectural Doors & Windows. 2011 ME 61, ' 23 n.7, 19 A.3d 823. Plaintiffs
maintain that Goulds' products were defective because Goulds failed to warn of the products'
hazards associated with the asbestos material used in connection with the products.
In a
defective product case based on a failure to warn, a plaintiff must also show that "(1) the
defendant had a duty to warn the plaintiff of the product hazard; (2) any actual warning on the
9
In full, the statute provides:
One who sells any goods or products in a defective condition unreasonably dangerous to the user
or consumer or to his property is subject to liability for physical harm thereby caused to a person
whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be
affected by the goods, or to his property, if the seller is engaged in the business of selling such a
product and it is expected to and does reach the user or consumer without significant change in the
condition in which it is sold. This section applies although the seller has exercised all possible
care in the preparation and sale of his product and the user or consumer has not bought the product
from or entered into any contractual relation with the seller.
14 M.R.S. § 221 (2011).
8
product was inadequate; and (3) the inadequate warning or absence of a warning proximately
caused the plaintiff's injury." See id. ' 23.
Goulds asserts that it cannot be liable for the harm caused by asbestos fiber because
Goulds did not manufacture or supply the asbestos and the asbestos was added after the pumps
left Goulds' control. Goulds further contends that it has no duty to warn of the dangerous
propensities of a third party's products. Plaintiffs counter that they need not show the pumps
themselves were defective; Plaintiffs assert that the pumps, when put to the foreseeable use of
being wrapped in asbestos insulation, became dangerous and Goulds had a duty to warn of those
dangers. Plaintiffs cite Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195 (Me. 1990), for this
proposition. 10
In Lorfano, the Law Court stated:
It is now clear that a product, "although faultlessly made, may nevertheless be
deemed 'defective' under the [statute] and subject the supplier thereof to strict
liability if it is unreasonably dangerous to place the product in the hands of a user
without a suitable warning and the product is supplied and no warning is given."
569 A.2d at 196 (quoting Canifax v. Hercules Powder Co., 46 Cal. Rptr. 552, 558 (Cal. Ct. App.
1965)). Plaintiffs interpret Lorfano as to require, under Maine law, a supplier or seller to warn
about the dangers of a third party's product when the third party's product is used in conjunction
with the supplier or seller's product.
Thus, Plaintiff asserts that the pumps at issue were
defective because Goulds failed to warn about the dangers of asbestos insulation.
10
Plaintiff also cites Unicomp v. Elementis Pigments, Inc., in which the federal district court cites Lorfano for the
proposition that "[a] plaintiff need not show, in a cause of action based on failure to warn, that the product is itself
defective." No. 97-55-P-H, 1999 U.S. Dist. LEXIS 22250, at *69 (D. Me. Feb. 10, 1999). This statement is
inaccurate and based on a gross oversimplification of products liability law. In a duty to warn case, the product is
defective because of the failure to warn: without instruction regarding the product's use from the manufacturer of
the product, latent dangers could harm the uninformed, unwarned user. See Bernier v. Raymark Indus., Inc., 516
A.2d 534, 537-38 (Me. 1986). Unicomp combines the concepts of design defect with a failure to warn defect,
resulting in an inaccurate statement of the law.
9
The Law Court, however, has only described a manufacturer's duty to warn of dangers
that are inherent in the manufacturer's own products. See Pottle v. Up-Right, Inc., 628 A.2d 672,
675 (Me. 1993) ("Strict products liability attaches to a manufacturer when by ... the failure to
provide adequate warnings about its hazards, a product is sold in a condition unreasonably
dangerous to the user."; Bernier, 516 A.2d at 537 (discussing whether "a manufacturer's actual or
constructive knowledge of his product's danger" is relevant (emphasis added)); cf. Bouchard v.
Am. Orthodontics, 661 A.2d 1143, 1145 (Me. 1995) (rejecting plaintiff's argument that "the
supplier of a safe product has a duty to warn against another supplier's dangerous product" as
unsupported by legal authority or the evidence in the record). The Law Court has thus never
directly held that a manufacturer of a product has a duty to warn of dangers inherent in a third
party's product.
The issue is whether given its prior comment on the scope of the duty to warn, the Law
Court would impose a duty upon manufacturers to warn of dangers that might be inherent in
products that are used in conjunction with the manufacturer's product. Courts in some other
jurisdictions have recently concluded that an equipment manufacturer is under no obligation to
warn of the dangers of asbestos insulation that might be used in conjunction with the
manufacturer's product.
See O'Neil v. Crane Co., 53 Cal. 4th 335 (Cal. 2012); Braaten v.
Saberhagen Holdings, 198 P.3d 493 (Wash. 2008); Simonetta v. Viad Corp., 197 P.3d 127
(Wash. 2008). Such a conclusion arguably would be consistent with the Law Court's focus in
Pottle upon the hazards of the manufacturer's product.
In addition, to hold a manufacturer strictly liable for a defect in another party's product
would be contrary to the purpose of strict liability. Strict products liability attaches to a seller (or
manufacturer), in part, because of the seller's superior knowledge of the attributes and risks of
10
his own product. See Bernier, 516 A.2d at 538 (holding that the manufacturer's knowledge of
the dangers of its own product is relevant in establishing a duty to warn).
[T]he justification for the strict liability has been said to be that the seller, by
marketing his product for use and consumption, has undertaken and assumed a
special responsibility toward any member of the consuming public who may be
injured by it; that the public has the right to and does expect, in the case of
products which it needs and for which it is forced to rely upon the seller, that
reputable sellers will stand behind their goods; that public policy demands that the
burden of accidental injuries caused by products intended for consumption be
placed upon those who market them, and be treated as a cost of production against
which liability insurance can be obtained; and that the consumer of such products
is entitled to the maximum of protection at the hands of someone, and the proper
persons to afford it are those who market the products.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. c (1965).u Holding sellers responsible for the
dangerous characteristics of their own products places the burden on the appropriate party.
The Court believes that the Law Court's prior decisions as to the scope of a
manufacturer's duty, and sound public policy (i.e., a manufacture is appropriately responsible for
any dangers inherent in its product) militate against the adoption of a general rule that requires a
manufacture to warn about the hazards of a product that might be used in connection with the
manufacturer's product. 12
Nevertheless, the Court is not prepared to enter summary judgment at this time. The
record generates an issue as to whether the Court should recognize an exception to the general
rule that a manufacturer of a product is not required to warn of dangers inherent in another's
product. More specifically, the issue is whether the same policy considerations that support the
general rule justify the imposition of a duty to warn of another's product where a manufacturer's
product must incorporate another's product in order to have any practical use for the intended
11
Maine's strict liability statute is derived from section 402A of the RESTATEMENT (SECOND) OF TORTS. See
Bernier, 516 A.2d at 537-38 (relying on the comments to section 402A in interpreting Maine's strict liability
statute).
12
This is consistent with this Court's decision regarding Defendant Foster Wheeler in Rumery v. Garlock Sealing
Techs., Inc. (Me. Super. Ct., Cum. Cty., April24, 2009).
11
user, and the other's product is inherently dangerous, and the manufacturer knew or should have
known of the hazards inherent in the other's product. Because the state of the record on this
issue is uncertain, and because the parties have not directly addressed the issue, the Court will
deny Goulds' motion for summary judgment. However, the Court will confer with the parties to
determine whether further briefing on or consideration of Goulds' request for summary judgment
is warranted. The Court, therefore, will schedule a telephonic conference with the parties to
discuss the future course of the case.
2.
Negligence
Plaintiffs' negligence claim is based on Goulds' alleged breach of its duty to warn of the
dangers of the asbestos containing insulation. In negligence, the duty of a manufacturer to warn
of the dangers of its products is similar to the duty to warn in strict products liability actions. See
Bernier, 516 A.2d at 540 ("A strict liability failure-to-warn case does resemble a negligence
action because the reasonableness of the manufacturer's conduct is the critical issue.") The Law
Court has applied the section 388 of the RESTATEMENf (SECOND) OF TORTS to negligence actions
for the breach of a duty to warn of dangerous propensities of products:
One who supplies directly or through a third person a chattel for another to use is
subject to liability to those whom the supplier should expect to use the chattel
with the consent of the other or to be endangered by its probable use, for physical
harm caused by the use of the chattel in the manner for which and by a person for
whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be
dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied
will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous
condition or of the facts which make it likely to be dangerous.
Bonin, 2005 ME 59,~ 10,873 A.2d 346 (quoting RESTATEMENf (SECOND) OF TORTS§ 388).
12
In their written submissions, the parties understandably do not distinguish between the
duty to warn in strict liability or the duty to warn in negligence. 12 Indeed, the Court perceives no
appreciable difference between a manufacturer's duty to warn in strict liability and negligence.
As explained above, therefore, the Court determines that summary judgment on the duty issue is
not appropriate at this time. 13
III.
CONCLUSION
Based on the foregoing analysis, the Court denies Goulds' motion for summary
judgment. As set forth in this Decision and Order, the Court will schedule a conference with the
parties to discuss the future course of the case, including the extent to which further
consideration of Goulds' request for summary judgment is warranted.
Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into
the docket by reference.
Date:
rf/tJ-
12
Many of the recent actions brought in negligence based on the duty to warn involve the failure to warn a minor of
dangerous propensities in a product. Compare Bonin, 2005 ME 59,~ 1 873 A.2d 346 (articulating the issue as
"whether [the defendant] may be found negligent for supplying dangerous machinery to a minor"), and Dickinson v.
Clark, 2001 ME 49, ~ 9, 767 A.2d 303 (discussing whether the dangers of a wood splitter would be obvious to a
teenager in evaluating whether the supplier had a duty to warn), with Cuthbertson v. Clark Equip. Co., 48 A.2d 315
(Me. 1982) (applying section 388 to a supplier of farm equipment after the death of an adult operator).
13
In their Complaint, Plaintiffs do not limit their negligent theories to the alleged failure to warn. For instance,
Plaintiffs allege that the Defendants failed "to properly test said asbestos-containing products or machinery before
they were released for consumer use." (Com pl. ~ 31 (g).) However, based on the summary judgment filings, the
Court understands that the theory of liability against all of the Defendants in this case is based on exposure to
asbestos from exterior insulation, and not from internal components or packing materials. The Court anticipates
discussing the scope of Plaintiffs' negligence claim with the parties during the telephonic conference referenced
herein.
13
Ent~red on th~ Docket:
Jf~/c./tf, _
Cop1es sent v1a Mail_ Electronically_.,;
STATE OF MAINE
CUMBERLAND, ss
BUSINESS AND CONSUMER COURT
Location: Portland
Docket No.: BCD-CV-10-19
...,/
)
GWENDOLYN RICHARDS, Individually
and as Personal Representative of the
ESTATE OF AUSTIN RICHARDS, JEAN
ANN NOONAN, JEFFREY RICHARDS,
JERRY RICHARDS, and JOEL
RICHARDS,
)
)
)
)
)
)
)
Plaintiffs,
)
)
V.
DECISION AND ORDER
(Crane Co.)
)
)
ARMSTRONG INTERNATIONAL, INC.,
CRANE CO., DATRON INC.
LIQUIDATING TRUST, GOULDS
PUMPS, INC., and NASH ENGINEERING
CO.,
)
)
)
)
)
)
Defendants
)
)
In this action, Plaintiffs seek to recover damages allegedly resulting from the death of
Austin Richards (the Decedent) due to his exposure to asbestos during the course of his
employment at the Great Northern Paper Company (Great Northern). Plaintiffs allege that as a
result of exposure to asbestos insulation used with products manufactured by each of the
Defendants, the Decedent contracted mesothelioma, which resulted in his death. The matter is
before the Court on the summary judgment motion of Defendant Crane Co., individually and as
the successor-in-interest to Chapman Valve Co. and Jenkins Valves (collectively, "Crane").
I.
BACKGROUND
Except where noted, the following facts in the summary judgment record are not in
dispute. See FR. Carroll,/nc. v. TD Bank, NA., 2010 ME 115, ~ 2, 8 A.3d 646,647.
1
The Decedent was employed at Great Northern from 1950 to 1953 and 1956 to 1987.
(Supp. S.M.F.' 3; Opp. S.M.F.' 3.) 1 Plaintiffs allege that the Decedent was exposed to asbestos
and asbestos-containing products while working at Great Northern. (Supp. S.M.F. ' 1; Opp.
S.M.F. '1.) In his capacity as a mason's helper and mason, the Decedent was involved in
applying and removing asbestos insulation from pipes and equipment at Great Northern. (Supp.
S.M.F. ''5-6; Opp. S.M.F." 5-6; A.S.M.F.' 3; Reply S.M.F.' 3.) He did not install, nor do
any maintenance on, valves while employed at Great Northern. (Supp. S.M.F. ' ' 10-11; Opp.
S.M.F." 10-11; A.S.M.F. '7; Reply S.M.F. '7.)
The summary judgment record supports the presence of Crane Co. valves, Jenkins valves,
and Chapman valves at Great Northern during the period that the Decedent worked there as a
mason? (Supp. S.M.F. '7; Opp. S.M.F.' 7; A.S.M.F." 12-13; Reply S.M.F. ' ' 12-13.) It is
undisputed that valves arrived at Great Northern as bare steel. (Supp. S.M.F.' 15; Opp. S.M.F.
' 15 .) The parties vigorously dispute whether there is sufficient, admissible evidence to support
the assertion that the Decedent specifically applied and removed asbestos insulation from Crane
Co., Jenkins, or Chapman valves. (See Supp. S.M.F. "4, 8-9; Opp. S.M.F. "4, 8-9; A.S.M.F.
'6; Reply S.M.F.' 6.) The parties also dispute the extent to which Crane Co. recommended the
use of asbestos insulation with its products, and whether these recommendations were made to
Great Northern? (See A.S.M.F. ' ' 19-24; Reply S.M.F." 19-24.)
1
Plaintiffs qualified this statement to note that the Decedent worked at Great Northern Paper Mill (Great Northern)
until 1987. (Opp. S.M.F.' 3.)
2
Crane suggests in its reply statement of material facts that the only Crane Co. products that Crane Co. shipped to
Great Northern were four ball valves in 1981. (See Reply S.M.F. ' ' 16-31.)
3
Several of Plaintiffs' statements of material fact include references to asbestos containing packing materials or
gaskets sold by Crane. (See A.S.M.F." 16-19,21-23,25, 29-30.) Crane objects to these statements as irrelevant to
the present motion because Plaintiffs' theory of liability is that the Decedent's exposure to exterior asbestos
insulation caused his illness. (See Obj. to A .S .M .F. " 16-19, 21, 25, 29-30 .)
2
Crane Co. acquired the Jenkins line of valves in an asset purchase in the early 1990s
when Jenkins was in bankruptcy, but did not acquire the liabilities of Jenkins. 4 (Supp. S.M.F.
' ' 16-17, 20; Opp. S.M.F." 16-17, 20.)
The Decedent was diagnosed with malignant mesothelioma at age 71 and passed away on
August 19,2007. (A.S.M.F.' 1; Reply S.M.F.' 1.)
II.
DISCUSSION
A.
Standard of Review
Pursuant to M .R. Civ. P. 56( c), a moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in those
statements and that [the] party is entitled to a judgment as a matter of law." A party wishing to
avoid summary judgment must present a prima facie case for each element of a claim or defense
that is asserted. See Reliance Nat'l Indem. v. Knowles Indus. Svcs., 2005 ME 29,' 9, 868 A.2d
220. At this stage, the facts in the summary judgment record are reviewed "in the light most
favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24,' 6, 816
A .2d 63. A material fact is a fact that has "the potential to affect the outcome of the suit."
Burdzel v. Sobus, 2000 ME 84,' 6, 750 A.2d 573. "If material facts are disputed, the dispute
must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158,' 7, 784A.2d 18.
A factual issue is genuine when there is sufficient supporting evidence for the claimed
fact that would require a fact-finder to choose between competing versions of the facts at trial.
See Inkel v. Livingston, 2005 ME 42,' 4, 869 A.2d 745. "Neither party may rely on conclusory
4
Plaintiffs assert there is a genuine issue of material fact regarding whether Crane Co. acquired the liabilities of
Jenkins, but they have not asserted in their statement of material facts or otherwise established by record evidence to
support their contrary viewpoint. See Kenny v. Dep't of Human Svcs., 1999 ME 158, ~ 3, 740 A.2d 560. Crane has
assumed for purposes of the motion that Crane Co. is responsible for both the Crane and Chapman lines of valves.
(Crane MSJ 2 n.2, 11-14.)
3
allegations or unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact." Kenny v. Dep't of Human Svcs., 1999 ME
158,' 3, 740 A.2d 560 (quoting Vinick v. Comm'r, 110 F.3d 168, 171 (1st Cir. 1997)).
B.
Applicable Law
Plaintiffs' primary causes of action against Crane are negligence and strict liability.5
Plaintiffs allege that the use of asbestos insulation on Crane's valves and the valves of its
predecessors-in-interest was reasonably foreseeable, and that Crane was negligent in the
manufacture and sale of its products in part because Crane failed to warn of the reasonable
foreseeable dangers associated with the use of its products with asbestos-containing insulation
made by third parties. As a result, the Decedent allegedly was exposed to harmful asbestos
insulation, which caused Decedent to develop mesothelioma and ultimately resulted in his death.
"The essential elements of a claim for negligence are duty, breach, proximate causation,
and harm." Baker v. Farrand, 2011 ME 91,' 11, 26 A .3d 806. A plaintiff must demonstrate
that "a violation of the duty to use the appropriate level of care towards another, is the legal
cause of harm to" the plaintiff and that the defendant's "conduct [was] a substantial factor in
bringing about the harm." Spickler v. York, 566 A.2d 1385, 1390 (Me. 1993) (internal citations
omitted); see also Bonin v. Crepeau, 2005 ME 59,' 10, 873 A.2d 346 (outlining negligence
cause of action for supplying a product without adequate warnings to the user); RESTATEMENT
(SECOND) OF TORTS§ 388 (1965). "Maine's strict liability statute, [14 M.R.S. § 221 (2011)],
5
In Count I of the complaint, Plaintiffs allege that the negligence of each manufacturer Defendant, including Crane,
caused the Decedent's exposure to asbestos, development of mesothelioma, and ultimate death. Plaintiffs also assert
strict liability for defective design and condition based on asbestos within the products and the failure to warn of the
dangers of asbestos (Count I), civil conspiracy among all the defendants (Count III), gross negligence (Count IV),
"aiding and abetting" among the Defendants' negligent and intentional acts (Count V), negligence per se against all
defendants based on alleged violations of state and federal law (Count VI), and loss of consortium (Count VII).
4
imposes liability on manufacturers and suppliers who market defective, unreasonably dangerous
products," including liability for defects based on the failure to warn of the product's dangers. 6
See Bernier v. Raymark Indus., Inc., 516 A.2d 534,537 (Me. 1986).
As the asbestos litigation has evolved both nationally and within Maine, the level of
proof necessary to establish the requisite relationship between a plaintiffs injuries and a
defendant's product has been subject of much debate.
7
A majority of jurisdictions have adopted
the standard articulated by the court in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156
(4th Cir. 1986), where the court construed the "substantial factor" test of the RESTATEMENT
(SECOND) OF TORTS. 8 In Lohrmann, the court announced and applied the frequency, regularity,
and proximity test, which requires a plaintiff to "prove more than a casual or minimum contact
with the product" that contains asbestos. 782 F .2d at 1162. Rather, under Lohrmann, a plaintiff
must present "evidence of exposure to a specific product on a regular basis over some extended
period of time in proximity to where the plaintiff actually worked." !d. at 1162-63. Lohrmann
suggests that the Court engage a quantitative analysis of a party's exposure to asbestos in order
to determine whether, as a matter of law, the party can prevail. See id. at 1163-64.
Although the Maine Law Court has not addressed the issue, at least one Justice of the
Maine Superior Court has expressly rejected the Lohrmann standard. Justice Ellen Gorman9
In addition, strict liability can attach for a design defect or a defect in the manufacturing process. See Pottle v. UpRight, Inc., 628 A.2d 672,674-75 (Me. 1993). Those theories of liability are not at issue in this case.
6
7
In their opposition to Crane's motion for summary judgment, Plaintiffs write that strict liability in Maine requires
medical causation and a product nexus in order to prove the necessary link between the alleged defective product
and the claimed damages. (Pis.' Opp'n MSJ 6.) Plaintiffs also assert that this "rubric ... is a departure from the
so-called 'frequency, regularity, and proximity test' of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1157 (4th
Cir. 1986)." (Pis.' Opp'n MSJ 6.) Because the Maine Law Court has not addressed the issue in the context of
asbestos litigation (Plaintiffs cite other Superior Court decisions as authority for the standard in Maine), the Court
will discuss its reasoning for applying a standard other than as articulated in Lohrmann.
8
The RESTATEMENT (SECOND) OF TORTS is consistent with the causation standard in Maine. Section 431 provides
in pertinent part that "[t]he actor's negligent conduct is a legal cause of harm to another if ... his conduct is a
substantial factor in bringing about the harm ... " RESTATEMENT (SECOND) OF TORTS§ 431(a).
9
At the time, Justice Gorman was a member of the Maine Superior Court. Justice Gorman was subsequently
appointed to the Maine Supreme Judicial Court.
5
rejected the Lohrmann standard "because it is entirely the jury's function to determine if the
conduct of the defendant was a substantial factor in causing the plaintiffs injury and because it is
not appropriate for the court to determine whether a plaintiff has proven that a defendant's
product proximately caused the harm."
Campbell v. The HE. Smith Co., Inc., Docket No.
LINSC-CV-2004-57, at 7 (Me. Super. Ct., Lin. Cty., Apr. 2, 2007) (Gorman, J). 10 In rejecting
the Lohrmann standard, Justice Gorman wrote that to establish a prima facie case, a plaintiff
must demonstrate:
(1) medical causation - that the plaintiffs exposure to the defendant's product
was a substantial factor in causing the plaintiffs injury and (2) product nexus that the defendant's asbestos-containing product was at the site where plaintiff
worked or was present, and that the plaintiff was in proximity to that product at
the time it was being used ... a plaintiff must prove not only that the asbestos
products were used at the worksite, but that the employee inhaled the asbestos
from the defendant's product.
Id (quoting 63 A.M. JUR. 2D Products Liability§ 70 (2001) (emphasis added)).
Insofar as under Lohrmann a plaintiff must prove exposure to asbestos over a sustained
period of time while under the standard applied by Justice Gorman a plaintiff must only
demonstrate that plaintiff was in proximity to the product at the time that it was being used, the
Lohrmann standard imposes a higher threshold for claimants. The Court's decision as to the
applicable standard cannot, however, be controlled by the standard's degree of difficulty.
Instead, the standard must be consistent with basic principles of causation. In this regard, the
Court agrees with the essence of Justice Gorman's conclusion - to require a quantitative
assessment of a plaintiffs exposure to asbestos, as contemplated by Lohrmann, would usurp the
fact finder's province. Whether a defendant's conduct caused a particular injury is at its core a
question of fact. The Court perceives of no basis in law to deviate from this longstanding legal
10
Justice Gorman also rejected the Lohrmann standard for similar reasons in Boyden v. Tri-State Packing Supply, et
a!., Docket No. CV-04-452 (Me. Super. Ct., Feb. 28, 2007).
6
principle. The Court, therefore, concludes that in order to avoid summary judgment, in addition
to producing evidence of medical causation, a plaintiff must establish the product nexus through
competent evidence. In particular, a plaintiff must demonstrate (1) that the defendant's product
was at the defendant's work place, (2) that the defendant's product contained asbestos, (3) and
that the plaintiff had personal contact with the asbestos from the defendant's product.
If a
plaintiff produces such evidence, which can be either direct or circumstantial, the question of
whether the defendant's product was a "substantial factor" in causing the plaintiffs damages is
for the jury.
Thus, to survive the motion for summary judgment, the Plaintiffs must first demonstrate
that: (1) Crane's product was at Great Northern, (2) Crane's product at Great Northern contained
asbestos, and (3) the Decedent had personal contact with asbestos from Crane's product. "If a
plaintiff produces such evidence, which can be either direct or circumstantial, the question of
whether the defendant's product was a 'substantial factor' in causing the plaintiffs damages is
for the jury." Rumery v. Garlock Sealing Techs., 2009 Me. Super. LEXIS 73, at *8 (Apr. 24,
2009); see also Addy v. Jenkins, Inc., 2009 ME 46,' 19, 969 A.2d 935 ("Proximate cause is
generally a question of fact for the jury.").
C.
Product Nexus
In the present case, Plaintiffs are seeking damages for the Decedent's exposure to
asbestos material used in connection with Crane's products at Great Northern. Plaintiffs assert
that the Decedent's deposition establishes that he removed and replaced insulation on Crane Co.,
Chapman, and Jenkins valves. (Crane Opp. S.M.F. ' 9.) The deposition contains conflicting
testimony regarding all three types of valves. The deposition includes the following exchange:
Q
And what names do you recall from the valves that you put insulation on
and took insulation off of?
7
You mentioned Yarway, any others?
A
Yarnell, Chapman, Ingersoll-Rand. That's all I can recollect right now.
(Def.'s Exh. A (hereinafter, "Richards Depo .") 41:9-13 .)
The Decedent was subsequently
questioned about a list of other valve manufacturers, referred to as Exhib!t 2, which he prepared
with former Great Northern co-workers who "helped him remember" the manufacturers of
valves and pumps at the mill. 11 (Richards Depo. 273:25-274:7.)
Q
Let me ask you this. In looking at that list of product that you had
written down there, are there any that you didn't mention earlier?
Q
Does that refresh your recollection regarding the names of any
manufacturers that you had not mentioned previously?
On the pumps, Goulds, Ingersoll-Rand.
On the traps, Yarway,
A
Nicholson. And the valves I believe Hancock, Jenson 12 and Crane and Fairbanks.
That refreshes my mind.
(Richards Depo. 51:19-52:6 (objections omitted).)
Okay. I am going to ask you about a few of the valve products that you
Q
listed on Exhibit No.2. Excuse me.
One of the valves listed there I saw was Crane. Is that a product you
personally remember working with?
A
No, sir.
Q
And was that a name [referring to Jenkins on Exhibit 2] that you - was
that a valve you personally remember working with?
A
No, sir.
Q
All right. And is that -- is that a name that you have -- do you have a
personal memory of working with a Fairbanks Chapman valve?
A
No, sir. No.
(Richards Depo. 274:24-25; 275:1-2; 276:16-19.)
Crane maintains that the record citations are insufficient to sustain Plaintiffs' claim on
two grounds: personal knowledge and the contradiction analysis set forth in Zip Lube v. Coastal
11
12
The names of the former co-workers were set forth in Exhibit 1 at the deposition. (Richards Depo. 49:14-17 .)
Plaintiffs assert that the Decedent mistakenly referred to Jenkins as Jenson. (Crane Opp. S.M.F.' 9.)
8
Savings Bank, 1998 ME 81, 709 A.2d 733.
Simply stated, the Court finds Zip Lube
distinguishable given that the contradictory affidavit at issue in Zip Lube was created in response
to a summary judgment motion; the present situation is an inconsistency within the same
deposition. 1998 ME 81,' 10,709 A.2d 733. The fact that the testimony of a witness includes
inconsistent statements is not necessarily unusual and does not automatically invalidate the
witness' testimony. The possible inconsistencies in the Decedent's testimony present credibility
issues for the fact finder. Additionally, the Decedent's review of a list of valve manufacturers,
which list he created with assistance from co-workers, does not render his subsequent testimony
as lacking personal knowledge and thus inadmissible. Indeed, M.R. Evid. 612 contemplates that
a witness might review a document to refresh the witness's recollection during his testimony.
Contrary to Crane's argument, therefore, the record does not establish that the Decedent lacks
personal knowledge of the manufacturers of the valves at Great Northern. In short, Plaintiffs
have demonstrated the product nexus necessary to avoid summary judgment.
D.
Legal Theories of Recovery
Plaintiffs contend that Crane is liable in both strict liability and negligence.
I.
Strict Liability- 14 M.R.S. § 221
Maine's product liability statute, 14 M.R.S. § 221, 13 lays out the essential elements ofthe
cause of action asserted against a seller:
13
In full, the statute provides:
One who sells any goods or products in a defective condition unreasonably dangerous to the user
or consumer or to his property is subject to liability for physical harm thereby caused to a person
whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be
affected by the goods, or to his property, if the seller is engaged in the business of selling such a
product and it is expected to and does reach the user or consumer without significant change in the
condition in which it is sold. This section applies although the seller has exercised all possible
care in the preparation and sale of his product and the user or consumer has not bought the product
from or entered into any contractual relation with the seller.
9
(1) the named defendant sold the goods or products;
(2) those goods or products were in a defective condition unreasonably dangerous
to the user or consumer or the user or consumer's property;
(3) the plaintiff might reasonably have been expected to use, consume, or be
affected by the goods or products;
(4) the defendant was engaged in the business of selling the goods or products;
(5) the goods or products were expected to, and did, reach the user or consumer
without significant change in the condition in which they were sold; and
(6) the plaintiff or the plaintiff's property suffered physical harm.
Burns v. Architectural Doors & Windows. 2011 ME 61,
~
23 n.7, 19 A.3d 823.
Plaintiffs
maintain that Crane's products were defective because Crane failed to warn of the products'
hazards associated with the asbestos material used in connection with the products.
In a
defective product case based on a failure to warn, a plaintiff must also show that "(1) the
defendant had a duty to warn the plaintiff of the product hazard; (2) any actual warning on the
product was inadequate; and (3) the inadequate warning or absence of a warning proximately
caused the plaintiff's injury." See id. ~ 23.
Crane asserts that because asbestos insulation was added to its valves after they left
Crane's control, Plaintiffs can neither show that the valves were unreasonably dangerous to the
Decedent nor show that the valves were without significant change from the condition in which
they were sold. Plaintiffs counter that they need not show the valves themselves were defective;
Plaintiffs assert that the valves, when put to the foreseeable use of being packed in asbestos
insulation, became dangerous and Crane had a duty to warn of those dangers. Plaintiffs cite
Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195 (Me. 1990), for this proposition.
14 M.R.S. § 221 (2011).
10
In Lorfano, the Law Court stated:
It is now clear that a product, "although faultlessly made, may nevertheless be
deemed 'defective' under the [statute] and subject the supplier thereof to strict
liability if it is unreasonably dangerous to place the product in the hands of a user
without a suitable warning and the product is supplied and no warning is given."
569 A.2d at 196 (quoting Canifax v. Hercules Powder Co., 46 Cal. Rptr. 552, 558 (Cal. Ct. App.
1965)). Plaintiffs interpret Lorfano as to require, under Maine law, a supplier or seller to warn
about the dangers of a third party's product when the third party's product is used in conjunction
with the supplier or seller's product.
Thus, Plaintiffs assert that the valves at issue were
defective because Crane failed to warn about the dangers of asbestos insulation.
The Law Court, however, only has described a manufacturer's duty to warn of dangers
that are inherent in the manufacturer's own products. See Pottle v. Up-Right, Inc., 628 A.2d 672,
675 (Me. 1993) ("Strict products liability attaches to a manufacturer when by ... the failure to
provide adequate warnings about its hazards, a product is sold in a condition unreasonably
dangerous to the user."; Bernier, 516 A.2d at 537 (discussing whether "a manufacturer's actual or
constructive knowledge of his product's danger" is relevant (emphasis added)); cf. Bouchard v.
Am. Orthodontics, 661 A.2d 1143, 1145 (Me. 1995) (rejecting plaintiff's argument that "the
supplier of a safe product has a duty to warn against another supplier's dangerous product" as
unsupported by legal authority or the evidence in the record). The Law Court has never directly
held that a manufacturer of a product has a duty to warn of dangers inherent in a third party's
product.
The issue is whether given its prior comment on the scope of the duty to warn, the Law
Court would impose a duty upon manufacturers to warn of dangers that might be inherent in
products that are used in conjunction with the manufacturer's product. Courts in some other
jurisdictions have recently concluded that an equipment manufacturer is under no obligation to
11
warn of the dangers of asbestos insulation that might be used in conjunction with the
manufacturer's product.
See O'Neil v. Crane Co., 53 Cal. 4th 335 (Cal. 2012); Braaten v.
Saberhagen Holdings, 198 P.3d 493 (Wash. 2008); Simonetta v. Viad Corp., 197 P.3d 127
(Wash. 2008). Such a conclusion arguably would be consistent with the Law Court's focus in
Pottle upon the hazards of the manufacturer's product.
In addition, to hold a manufacturer strictly liable for a defect in another party's product
would be contrary to the purpose of strict liability. Strict products liability attaches to a seller (or
manufacturer), in part, because of the seller's superior knowledge of the attributes and risks of
his own product. See Bernier, 516 A.2d at 538 (holding that the manufacturer's knowledge of
the dangers of its own product is relevant in establishing a duty to warn).
[T]he justification for the strict liability has been said to be that the seller, by
marketing his product for use and consumption, has undertaken and assumed a
special responsibility toward any member of the consuming public who may be
injured by it; that the public has the right to and does expect, in the case of
products which it needs and for which it is forced to rely upon the seller, that
reputable sellers will stand behind their goods; that public policy demands that the
burden of accidental injuries caused by products intended for consumption be
placed upon those who market them, and be treated as a cost of production against
which liability insurance can be obtained; and that the consumer of such products
is entitled to the maximum of protection at the hands of someone, and the proper
persons to afford it are those who market the products.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. c (1965). 14 Holding sellers responsible for the
dangerous characteristics of their own products places the burden on the appropriate party.
The Court believes that the Law Court's prior decisions as to the scope of a
manufacturer's duty, and sound public policy (i.e., a manufacture is appropriately responsible for
any dangers inherent in its product) militate against the adoption of a general rule that requires a
14
Maine's strict liability statute is derived from section 402A of the RESTATEMENT (SECOND) OF TORTS. See
Bernier, 516 A.2d at 537-38 (relying on the comments to section 402A in interpreting Maine's strict liability
statute).
12
manufacture to warn about the hazards of a product that might be used in connection with the
manufacturer's product.
Nevertheless, the Court is not prepared to enter summary judgment at this time. The
record generates an issue as to whether the Court should recognize an exception to the general
rule that a manufacturer of a product is not required to warn of dangers inherent in another's
product. More specifically, the issue is whether the same policy considerations that support the
general rule justify the imposition of a duty to warn of another's product where a manufacturer's
product must incorporate another's product in order to have any practical use for the intended
user, and the other's product is inherently dangerous, and the manufacturer knew or should have
known of the hazards inherent in the other's product. Because the state of the record on this
issue is uncertain, and because the parties have not directly addressed the issue, the Court will
deny Crane's motion for summary judgment. However, the Court will confer with the parties to
determine whether further briefing on or consideration of Crane's request for summary judgment
is warranted. The Court, therefore, will schedule a telephonic conference with the parties to
discuss the future course of the case.
2.
Negligence
Plaintiffs' principal negligence claim is based on Defendant's alleged breach of its duty
to warn of the dangers of the asbestos containing insulation.
In negligence, the duty of a
manufacturer to warn of the dangers of its products is similar to the duty to warn in strict
products liability actions. See Bernier, 516 A.2d at 540 ("A strict liability failure-to-warn case
does resemble a negligence action because the reasonableness of the manufacturer's conduct is
the critical issue.") The Law Court has applied section 388 of the RESTATEMENT (SECOND) OF
13
TORTS to negligence actions for the breach of a duty to warn of dangerous propensities of
products:
One who supplies directly or through a third person a chattel for another to use is
subject to liability to those whom the supplier should expect to use the chattel
with the consent of the other or to be endangered by its probable use, for physical
harm caused by the use of the chattel in the manner for which and by a person for
whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel Is or is likely to be
dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied
wiii realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous
condition or of the facts which make it likely to be dangerous.
Bonin, 2005 ME 59,' 10, 873 A.2d 346 (quoting RESTATEMENT (SECOND) OF TORTS§ 388).
In their written submissions, the parties understandably do not distinguish between the
duty to warn in strict liability or the duty to warn in negligence. 16 Indeed, the Court perceives no
appreciable difference between a manufacturer's duty to warn in strict liability and negligence.
As explained above, therefore, the Court determines that summary judgment on the duty issue is
not appropriate at this time. 17
16
Many of the recent actions brought in negligence based on the duty to warn involve the failure to warn a minor of
dangerous propensities in a product. Compare Bonin, 2005 ME 59, ' 1 873 A.2d 346 (articulating the issue as
"whether [the defendant] may be found negligent for supplying dangerous machinery to a minor"), and Dickinson v.
Clark, 2001 ME 49,' 9, 767 A.2d 303 (discussing whether the dangers of a wood splitter would be obvious to a
teenager in evaluating whether the supplier had a duty to warn), with Cuthbertson v. Clark Equip. Co., 48 A.2d 315
(Me. 1982) (applying section 388 to a supplier of farm equipment after the death of an adult operator).
17
In their Complaint, Plaintiffs do not limit their negligent theories to the alleged failure to warn. For instance,
Plaintiffs allege that the Defendants failed "to properly test said asbestos-containing products or machinery before
they were released for consumer use." (Campi.' 31(g).) In addition, in their statement of material facts, Plaintiffs
assert that Crane manufactured asbestos-containing products. However, based on the summary judgment filings, the
Court understands that the theory of liability against all of the Defendants in this case is based on exposure to
asbestos from exterior insulation, and not from internal components or packing materials. (See, e.g., A.S.M.F.
" 16- 18.) Further, although Plaintiffs assert Crane sold asbestos insulation, there is no evidence in the record to
suggest that Great Northern ever purchased asbestos insulation from Crane Co., Chapman, or Jenkins. The Court
anticipates discussing the scope of Plaintiffs' negligence claim with the parties during the telephonic conference
referenced herein.
14
III.
CONCLUSION
Based on the foregoing analysis, the Court denies Crane's motion for summary judgment.
As set forth in this Decision and Order, the Court will schedule a conference with the parties to
discuss the future course of the case, including the extent to which further consideration of
Crane's request for summary judgment is warranted.
Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into
the docket by reference.
Date:
'fjt'jt:J-
t, - I~
Entered on the Docket: ' ( •
Copies sent via Mail ___ Electronically :;....
15
CV-10-19
Gwendolyn Richards v. Armstrong International et al
Parties
Counsel
Plaintiffs
Daniel Kagan, Esq
Berman & Simmons
129 Lisbon St. PO Box 961
Lewiston ME 04243
Armstrong Internatinal
Francis Lynch Esq.
Keegan Werlin
265 Franklin Street Ste 600
Boston MA 02110
Crane Co.
David McConnell Esq
Perkins Thompson
One Canal Plaza Ste 900 PO Box 426
Portland ME 04112
Goulds Pumps
Jeff Edwards Esq
Preti Flaherty
One City Center PO Box 9546
Portland ME 04112
Nash Engineering
Brita Forssberg Esq
Bernstein Shur
100 Middle St PO Box 9729
Portland ME 04104
Datron
Christine Kennedy Jensen Esq
Douglas Denham
103 Exchange St PO Box 7108
Portland ME 04112
STATE OF MAINE
CUMBERLAND, ss
BUSINESS AND CONSUMER COURT
Location: Portland
Docket No.: BCD-CV-W-1~
,J tJ- L' A-',' / 1 -, ,~ 1 ;}JJ , ~
r
v
c
'
~
j
)
GWENDOLYN RICHARDS, Individually
and as Personal Representative of the
ESTATE OF AUSTIN RICHARDS, JEAN
ANN NOONAN, JEFFREY RICHARDS,
JERRY RICHARDS, and JOEL
RICHARDS,
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
DECISION AND ORDER
(Crane Co.)
)
)
ARMSTRONG INTERNATIONAL, INC.,
CRANE CO., DATRON INC.
LIQUIDATING TRUST, GOULDS
PUMPS, INC., and NASH ENGINEERING
co.,
)
)
)
)
)
)
Defendants
)
)
This matter is before the Court on the renewed motion for summary judgment of
Defendant Crane Co. (Crane).
In this action, Plaintiffs seek to recover damages allegedly
resulting from the death of Austin Richards (the Decedent) due to his exposure from asbestos
during the course of his employment at the Great Northern Paper Company (Great Northern).
Plaintiffs allege that as a result of exposure to asbestos insulation used with products
manufactured by each of the Defendants, the Decedent contracted mesothelioma, which resulted
in his death.
I.
PROCEDURAL BACKGROUND
In its original motion for summary judgment, Crane cited two principal bases in support
of its request for judgment. First, Crane argued that Plaintiffs could not establish the requisite
../
product nexus. That is, Crane maintained that Plaintiffs could not demonstrate that the Decedent
had sufficient contact with Crane's product to permit a rational fact finder to impose liability
upon Crane. Second, Crane argued that summary judgment was appropriate because Crane did
not have a duty to warn about the inherent dangers in products that might be used in connection
with Crane's products, but were not manufactured by Crane.
Upon review of the summary judgment record, the Court found that Plaintiffs had
established a prima facie case for product nexus, and concluded that the factual record generated
a possible basis for Plaintiffs to prevail under a duty to warn theory. The Court, therefore,
denied Crane's motion for summary judgment.
As to the possible basis for Crane's liability under a duty to warn theory, in its decision
denying summary judgment, the Court wrote,
the issue is whether the same policy considerations that support the general rule
[imposing liability on a manufacturer for dangers inherent in its own product]
justify the imposition of a duty to warn of another's product where a
manufacturer's product must incorporate another's product in order to have any
practical use for the intended user, and the other's product is inherently
dangerous, and the manufacturer knew or should have known of the hazards
inherent in the other's product. Because the state of the record on this issue is
unce1tain, and because the parties have not directly addressed the issue, the Court
will deny Crane's motion for summary judgment. However, the Court will confer
with the parties to determine whether further briefing on or consideration of
Crane's request for summary judgment is warranted. The Court, therefore, will
schedule a telephonic conference with the parties to discuss the future course of
the case.
(Decision and Order dated April 2, 2012 (hereinafter, "MSJ Decision"), at 13).
During a
subsequent conference with the parties, Crane requested, and was granted, leave to renew its
motion for summary judgment, and to file a supplement memorandum in support of the motion.
2
II.
DISCUSSION
A.
Standard of Review
Pursuant to M.R. Civ. P. 56(c), a moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in those
statements and that [the] party is entitled to a judgment as a matter of law." A party wishing to
avoid summary judgment must present a prima facie case for each element of a claim or defense
that is asserted. See Reliance Nat'llndem. v. Knowles Indus. Svcs., 2005 ME 29,
~
9, 868 A.2d
220. At this stage, the facts in the summary judgment record are reviewed "in the light most
favorable to the nonmoving party." Lightfoot v. Sch. Admi11. Dist. No. 35,2003 ME 24, ~ 6, 816
A .2cl 63. A material fact is a fact that has "the potential to affect the outcome of the suit."
Burdzelv. Sobus, 2000 ME 84,
~
6, 750 A.2d 573. "If material facts are disputed, the dispute
must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158, ~ 7, 784 A .2d 18.
A factual issue is genuine when there is sufficient supporting evidence for the claimed
fact that would "require a fact-finder to choose between competing versions of the truth at trial."
lnkel v. Livingston, 2005 ME 42,
~
4, 869 A.2d 745. "Neither party may rely on conclusory
allegations or unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact." Kenny v. Dep't of Human Svcs., 1999 ME
!58,~3,740A.2d560(quoting
B.
Vinickv.Comm'r, IIOF.3d 168,171 (lstCir.1997)).
Duty to Warn
Plaintiffs contend that Crane had a duty to warn of tbe dangers of asbestos insulation
because the utilization of asbestos insulation with Crane's product was a reasonably foreseeable
3
use of its product that rendered the products dangerous. Plaintiffs assert that Crane had a duty to
warn under theories of negligence and strict liability.
1.
Strict Liability - 14 M .R.S. § 221
The alleged defect in the present case is the failure to warn of the dangers of asbestos
used in connection with Crane's valves. Maine's product liability statute, 14 M.R.S. § 221
(20 12), 1 lays out the essential elements of the cause of action asserted against a seller:
(1) the named defendant sold the goods or products;
(2) those goods or products were in a defective condition unreasonably dangerous
to the user or consumer or the user or consumer's property;
(3) the plaintiff m.ight reasonably have been expected to use, consume, or be
affected by the goods m· products;
(4) the defendant was engaged in the business of selling the goods or products;
(5) the goods or products were expected to, and did, reach the user or consumer
without significant change in the condition in which they were sold; and
(6) the plaintiff or the plaintiff's property suffered physical harm.
Bums v. Architectural Doors & Windows. 2011 ME 61,
~
23 n.7, 19 AJd 823. Fmther, in a
defective product case based on a failure to warn, a plaintiff must also show that "(I) the
defendant had a duty to warn the plaintiff of the product hazard; (2) any actual warning on the
1
In full, the statute pro\•ides:
One who sells any goods or products in a defective condition unreasonably dangerous to the user
or consumer or to his property is subject to liability for physical harm thereby caused to a person
whom the manufacturer, seller or supplier might reasonably have expected to usc, consume or be
affected by the goods, or to his property, if the seller is engaged in the business of selling such a
product and it is expected to and does reach the user or consumer without significant change in the
condition in which it is sold. This section applies although the seller has exercised all possible
care In the preparation and sale of his product and the user or consumer has not bought the product
from or entered into any contractual relation with the seller.
14 M.R.S. § 221 (2012).
4
product was inadequate; and (3) the inadequate warning or absence of a warning proximately
caused the plaintiffs injury." !d. Y23.
Crane asserts that it cannot be liable for the harm caused by asbestos fiber because Crane
did not manufacture or supply the asbestos and the asbestos was added after the valves left
Crane's control. Crane contends that it has no duty to warn of the dangerous propensities of a
third party's products. Plaintiffs counter that they need not show the valves themselves were
defective; Plaintiffs assert that the valves, when put to the foreseeable use of being wrapped in
asbestos containing material, became dangerous and Crane had a duty to wam of those dangers.
Plaintiffs cite Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195 (Me. 1990), for this proposition.
In LOJfano, the Law Court stated:
It is now clear that a product, "although faultlessly made, may nevertheless be
deemed 'defective' under the [statute] and subject the supplier thereof to strict
liability if it is unreasonably dangerous to place the product in the hands of a user
without a suitable warning and the product is supplied and no warning is given."
569 A.2d at 196 (quoting Canifax v. Hercules Powder Co., 46 Cal. Rptr. 552,558 (Cal. Ct. App.
1965)). Plaintiffs interpret Lorfano as to require, under Maine law, a supplier or seller to warn
about the dangers of a third party's product when the third party's product is used in conjunction
with the supplier or seller's product. Thus, Plaintiffs asse1t that the valves at issue were
defective because Crane failed to warn about the dangers of asbestos insulation. As explained
below, given the circumstances in this case, the Colllt does not believe that Crane was obligated
to warn of the danger·s of the asbestos containing material.
First, the Law Court has only described a manufacturer's duty to wam in terms of
dangers that are inherent in the manufacturer's own products. See Pottle v. Up-Right, Inc., 628
A .2d 672, 675 (Me. 1993) ("Strict products liability attaches to a manufactmer when by ... the
failure to provide adequate warnings about its /w'(,ards, a product is sold in a condition
5
unreasonably dangerous to the user." (emphasis lidded)); Bernier, 516 A.2d at 537 (discussing
whether "a manufacturer's actual or constructive knowledge of his product's danger" is relevant
(emphasis added)); cf. Bouchard v. Am. Orthodollfics, 661 A.2d 1143, 1145 (Me. 1995)
(rejecting piRintiff's argument that "the supplier of a safe product has a duty to warn against
another supplier's dangerous product" as unsupported by legal authority or the evidence in the
record). The Law Court has never held that a manufacturer of products has a duty to warn of
dangers inherent in a third party's product. The Court notes that this conclusion is consistent
with other recent strict liability cases involving the duty of equipment manufacturers to warn of
the dangers of asbestos insulation. See O'Neil v. Crane Co., 53 Cal. 4th 335 (Cal. 2012);
Braaten v. Saberhagen Holdings, 198 P.3d 493 (WasiL 2008); Simonelta v. Viad Corp., 197 PJd
127 (WasiL 2008).
In addition, holding a manufacturer liable for defects in another party's product is
contrary to the purpose of strict liability.
Strict products liability attaches to a seller (or
manufacturer), in part, because of the seller's superior knowledge of the attributes and risks of its
own product. See Bernier, 516 A.2d at 538 (holding that the manufacturer's knowledge of the
dangers of its own product is relevant in establishing a duty to warn).
fT]he justification for the strict liability has been said to be that the seller, by
marketing his product for use and consumption, has undertaken and assumed a
special responsibility toward any member of the consuming public who may be
injured by it; that the public has the right to and does expect, in the case of
products which it needs and for which it is forced to rely upon the seller, that
reputable sellers will stand behind their goods; that public policy demands that the
burden of accidental injuries caused by products intended for consumption be
placed upon those who market them, and be treated as a cost of production against
which liability insurance can be obtained; and that the consumer of such products
is entitled to the maximum of protection at the hands of someone, and the proper
persons to afford it are those who market the products.
6
RESTATEMENT(SECOND)OFTORTS § 402A cmt. c (1965). 2
The reasoning of the Restatement is sound, and is consistent with the Law Court's
decision in Pottle v. Up-Right, Inc., 628 A.2d 672, 675 (Me. 1993) ("Strict products liability
attaches to a manufacturer when by ... the failure to provide adequate warnings about its
hazards, a product is sold in a condition unreasonably dangerous to the user." (emphasis added)).
Indeed, as the Comt stated in its Decision and Order, "the Law Court's prior decisions as to the
scope of a manufacturer's duty, and sound public policy (i.e., a manufacture[r] is appropriately
responsible for any dangers inherent in its product) militate against the adoption of a general rule
that requires a rnanufacture[r] to warn about the hazards of a product that might be used in
connection with the manufacturer's product." (MSJ Decision 12-13). Nevertheless, as explained
in the MSJ Decision, this case and the asbestos litigation generally cause the Court to consider
whether
the same policy considerations that support the general rule justify the imposition
of a duty to warn of another's product where a manufacturer's product must
incorporate another's product in order to have any practical use for the intended
user, and the other's product is inherently dangerous, and the manufacturer knew
or should have known of the hazards inherent in the other's product.
(MSJ Decision 13 ).
The question, as posed by the Court in the MSJ Decision, was purposefully narrow. That
is, the Court questioned whether a manufacturer should have a duty to warn of danger's inherent
in another product where the manufacturer's product must use the other product. The Court
believes that many of the policy considerations that require a manufacturer to warn of dangers to
its product would support the imposition of a duty on a manufacturer to warn of dangers that
might be inherent in another product that must be used iu order for the manufacturer's product to
Maine's stricl liability slatule is derived from section 402A of lhe REsTATEMENT (SECOND) OF TORTS. See
Bemier, 516 A.2d at 537-38 (relying on the comments to seclion 402A in inlerpreling Maine's slrict liability
statute).
~
7
function properly. In other words, if a product could only function if incorporated with another
product, the public could reasonably expect the manufacturer to be aware of the inherent dangers
of the other product and to warn of those dangers.
The circumstances under which the law should recognize the duty are, however, limited.
To require manufacturers to be aware of and warn of dangers inherent in every product that
could be used with, but is not required to be used with, the manufacturer's product would not
only be unreasonable, but would be inconsistent with the bases for the imposition of the duty to
warn as set forth in the Restatement.
In this case, the Court is not convinced that the duty to warn should be extended to Crane.
The record establishes that Crane's valves do not require the external insulation (i.e., the asbestos
containing product) in order to function properly. To the contrary, the valves can pe1form their
job regardless of whether the insulation is applied. There is no record evidence to suggest
otherwise. Thus, even if the Court were to recognize a basis for requiring the manufacturer of
one product to warn of the dangers of another product, the circumstances of this case do not
warrant the imposition of 11 duty upon Crane.
2.
Negligence
In negligence, the duty of a manufacturer to warn of the dangers of its products is similar
to the duty to warn in strict products liability actions. See Bernier, 516 A.2d at 540 ("A strict
liability failure-to-warn case does resemble a negligence action because the reasonableness of the
manufacturer's conduct is the critical issue.") The Law Court has applied the section 388 of the
RESTATEMENT (SECOND) OF TORTS
to negligence actions for the breach of a duty to warn of
dangerous propensities of products:
One who supplies directly or through a third person a chattel for another to use is
subject to liability to those whom the supplier should expect to use the chattel
8
with the consent of the other or to be endangered by its probable use, for physicnl
hnrm caused by the use of the chattel in the manne•· for which and by n person for
whose use it is supplied, if the supplier
(a) knows or has reftson to know that the chattel is or is likely to be
dangerous for the use for which it is supplied, and
(b) has no renson to believe thnt those for whose use the chattel is supplied
will realize its dangerous condition, and
(c) fnils to exercise reasonable care to inform them of its dangerous
condition OJ' of the fncts which mnke It likely to be dangerous.
Bonin, 2005 ME 59,1110,873
A.2d 346 (quoting RESTATEMENT (SECOND) OFTORTS § 388).
In their briefing, the parties draw no distinction between the duty to warn in strict liability
or the duty to wm·n In negligence? The Court also sees no appreciable difference between the
two and adopts its analysis regarding strict Uability duty to warn.
III.
CONCWSION
Based on the foregoing analysis, the Court GRANTS Cmne Co.'s motion summary
judgment and enters judgment in favor of Crane Co. on nil counts of Plaintiffs' complnint.
Pursunnt to M.R. Civ. P. 79(n), the Clerk shall incorporate this Decision and Order into
the docket by reference.
3
Mnn)' of the recentncllons brought in negligence bnsed on the duty to warn involve the fnllure to worn n minor of
dflngerous propensities In n product. Compare Bonin, 2005 ME 59, 9 I 873 A.2d 3<16 (nrtlculnling the Issue ns
"whether [lhe defendnnt] rnny be found negligent for supplying dangerous mnchincry to a minor"), and Dickinso11 v.
Clark, 2001 MB 49, 9 9, 767 A.2d 303 (discussing whether the dnngers of n wood spllller would be obvious ton
teenuger in evaluntlng whether the supplier had n duty to warn), with Cuthbertson''· Clark Equip. Co., 48 A.2d 315
(Me. 1982) (applying section 388 ton supplier of farm equipment after the denth of nn ndult operntor).
9
BCD-CV-10-19
Gwendolyn Richards, Indiv.
& as PR of the Estate of Austin
Richards et al
Attorney for Plaintiff:
Daniel Kagan, Esq.
Berman & Simmons
POBox 961
Lewiston ME 04243-0961
Attorney for Goulds Pumps:
I effrey Edwards, Esq
Preti Flaherty
POBox 9546
Portland ME 04112
Attorney for Crane Co:
David McConnell, Esq.
Perkins Thompson
POBox426
Portland ME 04112-0426
v.
Armstrong Int'l et al
STATE OF MAINE
CUMBERLAND, ss
BUSINESS AND CONSUMER COURT
Location: Portland
/
1
DocketNo.: BCD-CV-10-1~
1
JtN
GWENDOLYN RICHARDS, Individually
and as Personal Representative of the
ESTATE OF AUSTIN RICHARDS,JEAN
ANN NOONAN, JEFFREY RICHARDS,
JERRY RICHARDS, and JOEL
RICHARDS,
Plaintiffs,
v.
)
)
)
)
)
)
)
)
)
)
)
)
ARMSTRONG INTERNATIONAL, INC.,
CRANECO.,DATRON INC.
LIQUIDATING TRUST, GOULDS
PUMPS, INC., and NASH ENGINEERING
I
DECISION AND ORDER
(Goulds Pumps, Inc.)
)
)
)
)
co.,
-Cut'V1- I d-5/(90!3
)
Defendants
)
)
)
This matter is before the Court on the renewed motion for summary judgment of
Defendant Goulds Pumps, Inc. (Goulds). In this action, Plaintiffs seek to recover damages
allegedly resulting from the death of Austin Richards (the Decedent) due to his exposure from
asbestos during the course of his employment at the Great Northern Paper Company (Great
Northern). Plaintiffs allege that as a result of exposure to asbestos insulation used with products
manufactured by each of the Defendants, the Decedent contracted mesothelioma, which resulted
in his death.
I.
PROCEDURAL BACKGROUND
In its original motion for stlmmary judgment, Goulds cited two principal bases in support
of its request for judgment. First, Goulds argued that Plaintiffs could not establish the requisite
product nexus.
That is, Goulds maintained that Plaintiffs could not demonstrate that the
Decedent had sufficient contact with Goulds' product to permit a rational fact finder to impose
liability upon Goulds. Goulds also argued that summary judgment was appropriate because
Goulds did not have a duty to warn about the dangers that might be inherent in products that
might be used in connection with Goulds' product. Upon review of the summary judgment record, the Court found that Plaintiffs had
established a prima facie case for product nexus, and concluded that the factual record generated
a possible basis for Plaintiffs to prevail under a duty to warn theory. The Court, therefore,
denied Goulds' motion for summary judgment.
As to the possible basis for Goulds' liability under a duty to warn theory, in its decision
denying summary judgment, the Court wrote,
the issue is whether the same policy considerations that support the general rule
[imposing liability on a manufacturer for dangers inherent in its own product]
justify the imposition of a duty to warn of another's product where a
manufacturer's product must incorporate another's product in order to have any
practical use for the intended user, and the other's product is inherently
dangerous, and the manufacturer knew or should have known of the hazards
inherent in the other's product. Because the state of the record on this issue is
uncertain, and because the parties have not directly addressed the issue, the Court
will deny Goulds' motiol} for sununary judgment. However, the Court will confer
with the parties to determine whether further briefing on or consideration of
Goulds' request for summary judgment is warranted.
(Decision and Order dated April 5, 2012 (hereinafter, "MSJ Decision"), at 11-12). During a
subsequent conference with the parties, Goulds requested, and was granted, leave to renew its
motion for summary judgment, and to file a supplement memorandum in support of the motion.
II.
DISCUSSION
A.
Standard of Review
Pursuant to M.R. Civ. P. 56(c), a moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in those
2
statements and that [the] party is entitled to a judgment as a matter of law." A party wishing to
avoid summary judgment must present a prima facie case for each element of a claim or defense
that is asserted. See Reliance Nat'llndem. v. Knowles Indus. Svcs., 2005 ME 29,
~
9, 868 A.2d
220. At this stage, the facts in the summary judgment record are reviewed "in the light most
favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No. 35,2003 ME 24, ~ 6, 816
A .2d 63. A material fact is a fact that has "the potential to affect the outcome of the suit."
Burdzel v. Sobus, 2000 ME 84, ~ 6, 750 A.2d 573. "If material facts are disputed, the dispute
must be resolved through fact-finding." Curtis v. Porter, 2001 ME
158,~
7, 784 A.2d 18.
A factual issue is genuine when there is sufficient supporting evidence for the claimed
fact that would require a fact-finder to choose between competing versions of the facts at trial.
See lnkel v. Livingston, 2005 ME 42,9 4, 869 A.2d 745. "Neither party may rely on conclusory
allegations or unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits to. demonstrate
either the existence or absence of an issue of fact." Kenny v. Dep't of Human Svcs., 1999 ME
158, ~ 3, 740 A.2d 560 (quoting Vinick v. Comm'r, 110 F.3d 168, 171 (lst Cir. 1997)).
B.
Duty to Warn
Plaintiffs contend that Goulds had a duty to warn of the dangers of asbestos insulation
because the utilization of asbestos insulation with Goulds's product was a reasonably foreseeable
use of its product that rendered the products dangerous. Plaintiffs asse1t that Goulds had a duty
to warn under theories of negligence and strict liability.
1.
Strict Liability- 14 M.R.S. § 221
3
The alleged defect in the present case is the failure to warn of the dangers of asbestos
used to insulate Goulds' pumps. Maine's product liability statute, 14 M.R.S. § 221 (2012), 1 lays
out the essential elements of the cause of action asserted against a seller:
· · -- -- -"· (-I) ·the -named· defendant-sold -the-goods-or· products;·--.,--,--·-,----,-,,:,,.,_.
(2) those goods or products were in a defective condition unreasonably dangerous
to the user or consumer or the user or consumer's property;
(3) the plaintiff might reasonably have been expected to use, consume, or be
affected by the goods or products;
(4) the defendant was engaged in the business of selling the goods or products;
(5) the goods or products were expected to, and did, reach the user or consumer
without significant change in the condition in which they were sold; and
(6) the plaintiff or the plaintiff's property suffered physical harm.
Bums v. Architectural Doors & Windows. 2011 ME 61,
~
23 n.7, 19 A.3d 823. Further, in a
defective product case based on a failure to warn, a plaintiff must also show that "(1) the
defendant had a duty to warn the plaintiff of the product hazard; (2) any actual warning on the
product was inadequate; and (3) the inadequate warning or absence of a warning proximately
caused the plaintiffs injury." See id. ~ 23.
Goulds asserts that it cannot be liable for the harm caused by asbestos fiber because
Goulds did not manufacture or supply the asbestos and the asbestos was added after the pumps
left Goulds's control. Goulds contends that it has no duty to warn of the dangerous propensities
1
In full, the slatute provides:
One who sells any goods or products in a defective condition unreasonably dangerous to the user
or consumer or to his property is subject to liability for physical harm !hereby caused to a person
whom !he manufacturer, seller or supplier mighl reasonably ha\'e expected to use, consume or be
affected by the goods, or to his property, if the seller is engaged in !he business of selling such a
product and it is expected to and does reach the user or consumer without significant change in the
condition in which it is sold. This section applies although the seller has exercised all possible
care in the preparation and sale of his product and the user or consumer has not bought the product
from or entered Into any contractual relation with the seller.
14 M.R.S. § 221 (2012).
4
of a third party's products. Plaintiffs counter that they need not show the pumps themselves
were defective; Plaintiffs assert that the pumps, when put to the foreseeable use of being
wrapped in asbestos insulation, became dangerous and Goulds had a duty to warn of those
dan gers;--Pl aintiffs- cite-Lorfano ·v;-Dura-Stone-Steps,--Inc;;-569-A--:-2d~195-(Me;-1990)ofor-this~--~proposition.
In LO!fano, the Law Comt stated:
It is now clear that a product, "although faultlessly made, may nevertheless be
deemed 'defective' under the [statute] and subject the supplier thereof to strict
liability if it is unreasonably dangerous to place the product in the hands of a user
without a suitable warning and the product is supplied and no warning is given."
569 A.2d at 196 (quoting Canifax v. Hercules Powder Co., 46 Cal. Rptr. 552,558 (Cal. Ct. App.
1965)). Plaintiffs interpret Lorfano as to require, under Maine Jaw, a supplier or seller to warn
about the dangers of a third party's product when the third party's product is used in conjunction
with the supplier or seller's product.
Thus, Plaintiff asserts that the pumps at issue were
defective because Goulds failed to warn about the dangers of asbestos insulation. As explained
below, the Comt does not believe that Goulds was obligated to warn of the dangers of the
asbestos containing material.
First, the Law Comt has only described a manufacturer's duty to warn in terms of
dangers that are inherent in the manufacturer's own products. See Pottle v. Up-Right, Inc., 628
A.2d 672,675 (Me. 1993) ("Strict products liability attaches to a manufacturer when by ... the
failure to provide adequate warnings about its hazards, a product is sold in a condition
unreasonably dangerous to the user." (emphasis added)); Bernier, 516 A.2d at 537 (discussing
whether "a manufacturer's actual or constructive knowledge of his product's danger" is relevant
(emphasis added)); cf. Bouchard v. Am. Orthodollfics, 661 A.2d 1143, 1145 (Me. 1995)
(rejecting plaintiff's argument that "the supplier of a safe product has a duty to warn against
5
another supplier's dangerous product" as unsupported by legal authority or the evidence in the
record). The Law Court has never held that a manufacturer of products has a duty to warn of
dangers inherent in a third party's product. The Court notes that this conclusion is consistent
----·~-with- other-recent-strict-I ia bi Iity-cases-invol vi ng-the-duty-of-equi pment·man ufacturers
to warn-of· - · ·
the dangers of asbestos insulation. See O'Neil ''· Crane Co., 53 Cal. 4th 335 (Cal. 2012);
Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wasil. 2008); Simonetta v. Viad Corp., 197 P.3d
127 (Wash. 2008).
In addition, holding a manufacturer liable for defects in another party's product is
contrary to the purpose of strict liability.
Strict products liability attaches to a seller (or
manufacturer), in part, because of the seller's superior knowledge of the attributes and risks of its
own product. See Bernier, 516 A.2d at 538 (holding that the manufacturer's knowledge of the
dangers of its own product is relevant in establish.ing a duty to warn).
[T]he justification for the strict liability has been said to be that the seller, by
marketing his product for use and consumption, has undertaken and assumed a
special responsibility toward any member of the consuming public who may be.
injured by it; that the public has the right to and does expect, in the case of
products which it needs and for which it is forced to rely upon the seller, that
reputable sellers will stand behind their goods; that public policy demands that the
burden of accidental injuries caused by products intended for consumption be
placed upon those who market them, and be treated as a cost of production against
which liability insurance can be obtained; and that the consumer of such products
is entitled to the maximum of protection at the hands of someone, and the proper
persons to afford it are those who market the products.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. C (1965). 2
The reasoning of the Restatement is sound, and is consistent with the Law Court's
decision in Pottle v. Up-Right, Inc., 628 A.2d 672, 675 (Me. 1993) ("Strict products liability
attaches to a manufacturer when by ... the failure to provide adequate warnings about its
2
Maine's strict liability statute is derived from section 402A of the RESTATEMENT (SECOND) OF TORTS. See
Bernier, 516 A.2d at 537-38 (relying on the comments to section 402A in interpreting Maine's strict liability
statute).
6
hazards, a product is sold in a condition unreasonably dangerous to the user." (emphasis added)).
Indeed, as the Court stated in its Decision and Order, "the Law Court's prior decisions as to the
scope of a manufacturer's duty, and sound public policy (i.e., a manufacturer is appropriately
responsible for any dangers inherent in its product) militate against the adoption of a general rule
that requires a manufacturer to warn about the hazards of a product that might be used in
connection with the manufacturer's product." (MSJ Decision 11). Nevertheless, as explained in
the MSJ Decision, this case and the asbestos litigation generally cause the Court to consider
whether
the same policy considerations that support the general rule justify the imposition
of a duty to warn of another's product where a manufacturer's product must
incorporate another's product in order to have any practical use for the intended
user, and the other's product is inherently dangerous, and the manufacturer knew
or should have known of the hazards inherent in the other's product.
(Decision and Order, pp.ll-12).
The question, as posed by the Court in the MSJ Decision, was purposefuiJy narrow. That
is, the Court questioned whether a manufacturer should have a duty to warn of danger's inherent
in another product where the manufacturer's product must use the other product. The Court
believes that many of the policy considerations that require a manufacturer to warn of dangers to
its product would support the imposition of a duty on a manufacturer to warn of dangers that
might be inherent in another product that must be used in order for the manufacturer's product to
function properly. In other words, if a product could only function if incorporated with another
product, the public could reasonably expect the manufacturer to be aware of the inherent dangers
of the other product and to warn of those dangers.
The circumstances under which the Jaw should recognize the duty are, however, limited.
To require manufacturers to be aware of and warn of dangers inherent in every product that
could be used with, but is not required to be used with, the manufacturer's product would not
7
only be unreasonable, but would be inconsistent with the bases for the imposition of the duty to
warn as set forth in the Restatement.
In this case, the Court is not convinced that the duty to warn as to another's product
should be extended to Goulds. The record establishes that Goulds pumps do not require the
external insulation (i.e., the asbestos containing product) in order to function properly. In other
words, the pumps can perform their job (i.e., move fluids) regardless of whether the insulation is
applied.
On the record before the Court, however, the Court's analysis does not end with the
Court's assessment of whether Goulds had a duty to warn of the dangers of asbestos containing
material manufactured by another manufacturer.
In opposing the motion for summary
judgment, Plaintiffs cite testimony from a Goulds corporate representative (Eugene Bradshaw) in
which he testifies that some Goulds pumps, specifically model 3196, were insulated by Goulds
before leaving a Goulds facility. (Opp. S .M.F.
~
3; Henderson Aff. Ex h. F, at 163-67 .) Great
Northern did order several model 3196 Goulds pumps. (A.S.M.F.
~
23.) Viewing the Goulds
corporate representative testimony in the light most favorable to Plaintiffs, the testimony
generates an material issue of fact as to whether asbestos containing material was included as
part of some of the Goulds pumps when Goulds shipped the pumps to Great Northern. fnsofar as
the Comt has previously determined that Plaintiffs have demonstrated the necessary product
nexus to establish a prima facie case, the factual dispute regarding the inclusion of asbestos
containing material on the model 3196 pumps prevents the entry of summary judgment.
The Court recognizes that Goulds challenges the quality of the evidence, and maintains
that Plaintiffs cannot establish that the model 3196 pumps that might have been delivered to
8
Great Northern contained asbestos material. These questions are, however, for the fact finder to
assess.3
2.
Negligence
In negligence, the duty of a manufacturer to warn of the dangers of its products is similar
to the duty to warn in strict products liability actions. See Bernier, 516 A.2d at 540 ("A strict
liability failure-to-warn case does resemble a negligence action because the reasonableness of the
manufacturer's conduct is the critical issue.") The Law Court has applied the section 388 of the
RESTATEMENT (SECOND) OF TORTS to negligence actions for the breach of a duty to warn of
dangerous propensities of products:
One who supplies directly or through a third person a chattel for another to use is
subject to liability to those whom the supplier should expect to use the chattel
with the consent of the other or to be endangered by its probable use, for physical
harm caused by the use of the chattel in the manner for which and by a person for
whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be
dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied
will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous
condition or of the facts which make it likely to be dangerous.
Bonin, 2005 ME 59,~ 10, 873 A.2d 346 (quoting RESTATEMENT (SECOND) OF TORTS § 388).
In their briefing, the parties draw no distinction between the duty to warn in strict liability
or the duty to warn in negligence.'' The Court also perceives no appreciable difference between
3
Among other things, the fact finder will have to assess Mr. Bradshaw's credibility as a witness, and whether it is
reasonable to infer from Mr. Bradshaw's testimony and the documentary evidence that the Decedent was exposed to
asbestos particles from asbestos containing material incorporated In or applied to Goulds' pumps before the pumps
left Goulds' control.
4
Many of the recent actions brought in negligence based on the duty to warn Involve the failure to warn a minor of
dangerous propensities In a product. Compare Bonin, 2005 ME 59, 9 l 873 A.2d 346 (articulating the issue as
"whether [the defendant) may be found negligent for supplying dangerous machinery to a minor"), and Dickinson v.
Clark, 2001 ME 49, ~ 9, 767 A.2d 303 (discussing whether the dangers of a wood splitter would be obvious to a
9
the two and adopts its analysis regarding strict liability duty to warn. Similarly, the Court adopts
its analysis regarding the material issue of fact in dispute as to the presence of asbestos
containing material in Goulds' products.
III.
CONCLUSION
Based on the foregoing analysis, the Court determines that Goulds Pumps, Inc. did not
have a duty to warn of the dangers inherent in asbestos containing material that might have been
applied to the Goulds' products after Goulds shipped the products. The Comt otherwise denies
Goulds Pumps, Inc.'s motion for summary judgment.
Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into
the docket by reference.
Date:
1j;r(:s
Entered on thn Docket: /
·J3/~-·
Copies sent via Mail ·- Electronically
Y.
teenager in evaluating whether the supplier had a duty to warn), with Cllthbertson v. Clark Equip. Co., 48 A.2d 315
(Me. 1982) (applying section 388 to a supplier of farm equipment after I he death of an adult operator).
10
BCD-CV-10-19
Gwendolyn Richards, Indiv.
& as PR of the Estate of Austin
Richards et al
Attorney for Plaintiff:
Daniel Kagan, Esq.
Berman & Simmons
POBox 961
Lewiston ME 04243-0961
Attorney for Goulds Pumps:
Jeffrey Edwards, Esq
Preti Flaherty
POBox 9546
Portland ME 04112
Attorney for Crane Co:
David McConnell, Esq.
Perkins Thompson
POBox426
Portland ME 04112-0426
v.
Armstrong Int'l et al
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