Richards v. Armstrong Int'l, Inc., Docket No.: BCD-CV-10-19

CourtSupreme Judicial Court of Maine (US)
Writing for the CourtMaine Business
PartiesGWENDOLYN 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 THE NASH ENGINEERING CO., Defendants
Decision Date05 April 2012
Docket NumberDocket 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 THE NASH ENGINEERING CO., Defendants

Docket No.: BCD-CV-10-19

STATE OF MAINE CUMBERLAND BUSINESS AND CONSUMER COURT

Dated: April 5, 2012


Location: Portland

DECISION AND ORDER
(Armstrong International, Inc.)

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

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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. ¶ 6; Opp. S.M.F. ¶ 6; A.S.M.F. ¶ 5; Reply S.M.F. ¶ 5.) Until the 1970s, the insulation used at the mill contained asbestos. (A.S.M.F. ¶ 10; Reply S.M.F. ¶ 10.) Removal of the insulation created a significant amount of dust. (A.S.M.F. ¶ 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. ¶ 4; Reply S.M.F. ¶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'l Indem. v. Knowles Indus. Svcs., 2005 ME 29, ¶ 9, 868 A.2d

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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.2 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.

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"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).

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.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"

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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 H.B. 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 -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

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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...

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