Mahar v. Sullivan & Merritt, Inc., BCD-CV-10-21

CourtSuperior Court of Maine
Writing for the CourtJohn C. Nivison, Justice
PartiesMICHAEL MAHAR, Personal Representative of the ESTATE OF MYRTLE J. MAHAR, Plaintiff, v. SULLIVAN & MERRITT, INC., DEZURIK, INC., F.W. WEBB CO., GENERAL ELECTRIC CO., CBS CORP., THOMAS DICENZO, INC., GOULDS PUMPS, INC., WARREN PUMPS, LLC, JOS. A. BERTRAM, INC., PEARSE-BERTRAM, LLC, and BERTRAM CONTROLS CORP., LLC, Defendants
Decision Date18 July 2013
Docket NumberBCD-CV-10-21

MICHAEL MAHAR, Personal Representative of the ESTATE OF MYRTLE J. MAHAR, Plaintiff,
v.

SULLIVAN & MERRITT, INC., DEZURIK, INC., F.W. WEBB CO., GENERAL ELECTRIC CO., CBS CORP., THOMAS DICENZO, INC., GOULDS PUMPS, INC., WARREN PUMPS, LLC, JOS. A. BERTRAM, INC., PEARSE-BERTRAM, LLC, and BERTRAM CONTROLS CORP., LLC, Defendants

No. BCD-CV-10-21

Superior Court of Maine, Cumberland

July 18, 2013


For plaintiff: Paul Boots, Esq. (local counsel) Paul Boots, PA Joseph Cirilano, Esq. (out-of state counsel) Goldberg, Persky & White

CBS Corp: Elizabeth Stouder, Esq. Richardson, Whitman, Large & Badger

DeZurk Inc. & Warren Pumps: Steven Wright, Esq. Wright & Associates

Thomas Dicenzo Inc. David C. King, Esq. Rudman & Winchell

Goulds Pumps: Jeffrey Edwards, Esq. Preti Flaherty

General Electric Alex Toribio, Esq. McCarter & English

Michael Mahar Local Counsel: Paul Boots, Esq. Paul M. Boots P A

Out of State Counsel Joseph Cirilano, Esq. Goldberg, Persky & White, P.C.

Sullivan & Merritt, Inc. Michael E. Saucier, Esq. Thompson Bowie, LLP.

DECISION AND ORDER (General Electric Co.)

John C. Nivison, Justice

In this action, Plaintiff seeks to recover damages allegedly resulting from the death of Myrtle J. Mahar (the Decedent) due to her exposure to asbestos during the course of her employment at the Georgia-Pacific mill (now the Domtar mill) in Woodland, Maine (hereinafter, the "Woodland mill"). Plaintiff alleges that as a result of exposure to asbestos used with products manufactured by or removed by the Defendants, the Decedent contracted mesothelioma, which resulted in her death. The matter is before the Court on the summary judgment motion of General Electric, Co. (GE).

I. FACTUAL BACKGROUND

The Decedent began working at the Woodland mill in April 1977, initially working as a spare in the yard crew at various locations throughout the Woodland mill. (Supp. S.M.F. ¶¶ 3-4; Opp. S.M.F. ¶¶ 3-4.) As a spare, the Decedent cleaned up debris from alleyways, cleaned spills, and checked tank levels. (Supp. S.M.F. ¶ 4; Opp. S.M.F. ¶ 4.) The Decedent became a spare janitor in 1979 and began performing janitorial duties such as sweeping, scrubbing, stripping, and waxing floors, and cleaning offices and bathrooms; she became a permanent janitor in 1981. (Supp. S.M.F. ¶ 5; Opp. S.M.F. ¶ 5.)

GE manufactured the No. 10 turbine at the Woodland mill. (Supp. S.M.F. ¶¶ 17, 47; Opp. S.M.F. ¶¶ 17, 47; A.S.M.F. ¶ 6; Reply S.M.F. ¶ 6.) The Decedent did not directly work on the steam turbines located at the mill, other to wipe them off and sweep around them; she never assisted others who worked on the steam turbines. (Supp. S.M.F. ¶¶ 7, 23; Opp. S.M.F. ¶¶ 7, 23; Def.'s Exh. B 82:1-2.) The Decedent cleaned after work had been done on the turbine. (A.S.M.F, ¶ 10.) As a janitor, the Decedent passed by steam turbines on her way to offices and bathrooms for which she was responsible to clean. (Supp. S.M.F. ¶¶ 10, 13-14, 23, 49; Opp. S.M.F. ¶¶ 10, 13-14, 23, 49). Most of the time, a bare metal cover protected the turbines when she passed by them. (Supp. S.M.F. ¶¶ 14, 18, 33, 47; Def.'s Exh. E 136:21-22; Opp. S.M.F. ¶¶ 18, 33, 47.) When the turbines were undergoing maintenance, the cover was off and the Decedent walked past them. (Opp. S.M.F. ¶ 14; A.S.M.F. ¶¶ 10-12; Reply S.M.F. ¶¶ 10-12.)

The Decedent and Mary Austin, a co-worker, passed by the No. 9 and No. 10 turbines when they were torn apart and when there were asbestos gaskets and blankets around; the Decedent and Austin cleaned up this debris. (A.S.M.F. ¶¶ 12, 14.)[1] In 1991, asbestos was removed from the steam line, caustic soda line, and a fuel oil supply line of the No. 10 turbine pursuant to an asbestos removal work plan. (A.S.M.F. ¶ 8.)[2] GE generally disputes whether there is sufficient, relevant evidence to show that the GE turbine, as opposed to the piping connected to the turbine, was insulated with asbestos and whether those asbestos materials originated with GE. (Reply S.M.F. ¶¶ 1-5, 8-9.)

II. PROCEDURAL BACKGROUND

Myrtle J. Mahar filed suit in Washington County Superior Court. The amended complaint asserts eight causes of action. The only counts relevant to the present motion are: negligent failure to warn (Count I); strict liability failure to warn, see 14 M.R.S. § 221 (2011), (Count II); and punitive damages (Count IV), which Plaintiff asserted against all named Defendants.

In Counts I and II, Plaintiff relies on the Defendants' sale of asbestos containing equipment to the Woodland mill without adequate warning of the dangers of asbestos. Count IV seeks punitive damages for the Defendants' willful and malicious actions that were "in total disregard of the health and safety of the users and consumers of their products." (Compl. ¶ 40.) The Decedent passed away on October 1, 2009. (See Sugg, of Death, filed Mar. 29, 2010.) The present Plaintiff was substituted for the Decedent on July 11, 2011.

III. 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. "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 Substantive Law

Plaintiff's primary causes of action against GE are negligence and strict liability. Plaintiff alleges that GE manufactured asbestos containing products, that the Decedent was exposed to asbestos from those products in her work at the Woodland mill, and that the Decedent's exposure to asbestos from GE's products was a substantial factor in bringing about her death from mesothelioma.

"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. Rayrnark Indus., Inc., 516 A.2d 534, 537 (Me. 1986); see also Pottle v. Up-Right, Inc., 628 A.2d 672, 674-75 (Me. 1993).

As the asbestos litigation has evolved both nationally and within Maine, the level of proof necessary to establish the requisite relationship between a plaintiff's injuries and a defendant's product has been subject of much debate. 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.[3] 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." 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. 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[4]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 H.B. Smith Co., Inc., Docket No. LINSC-CV-2004-57, at 7 (Me.Super.Ct., Lin. Cty., Apr. 2, 2007) (Gorman, J).[5] 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
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