Patricia Grant v. Foster Wheeler, LLC , 2016 Me. LEXIS 94 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 85
Docket: BCD-15-404
Argued: April 5, 2016
Decided: June 7, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
PATRICIA GRANT et al.
v.
FOSTER WHEELER, LLC, et al.
ALEXANDER, J.
[¶1] Patricia Grant and the Estate of Edward Grant (the Estate) appeal from
summary judgments entered against them in the Business and Consumer Docket
(Murphy, J.) on their complaint for negligence; failure to warn of defective,
unreasonably dangerous goods; and loss of consortium. The judgments were
entered upon the motions of New England Insulation Company (NEI); Foster
Wheeler, LLC; Warren Pumps, LLC; and Imo Industries, Inc. Because the Estate
was unable to produce evidence to establish a prima facie case that any of the
named defendants’ products were a proximate cause of the injuries, we affirm the
summary judgments.
2
I. CASE HISTORY
[¶2] Viewing the summary judgment records in the light most favorable to
the Estate, the following facts are undisputed for purposes of summary judgment.
See Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 18, 116 A.3d 466 (stating the
rule that on review of entry of a summary judgment, the record is considered in the
light most favorable to the nonprevailing party).
[¶3] Edward Grant worked for Bath Iron Works from August 19, 1964, to
June 9, 1970, and again from August 24, 1978, to February 1, 1994. During
Grant’s first period of employment, asbestos was a common component of the
insulation and other materials used at Bath Iron Works, including use in the
construction and renovation of ships.
[¶4] In the course of his employment, Grant worked in a variety of
positions, including as a ship cleaner. Cleaning included sweeping up debris—
sometimes including asbestos—that resulted from construction and maintenance
activities. Grant worked as a ship cleaner from February 1966 to January 1967 and
again from January 1969 to June 1970.
[¶5] Before his death, Grant testified at a deposition that he believed that he
was exposed to asbestos as a cleaner between 1966 and 1967, during which time he
recalled sweeping up asbestos resulting from pipe covering work. Grant testified
that he was unsure if he was exposed to asbestos at other times.
3
[¶6] NEI sold Bath Iron Works insulation manufactured by Owens-Corning
Fiberglas Corporation1 called “Kaylo pipe covering,” which contained asbestos
fibers and was used to insulate ships’ pipes. Foster Wheeler manufactured boilers
and air ejectors. Warren Pumps manufactured pumps. Imo Industries is the
successor to DeLaval, which manufactured pumps and turbines.
[¶7] In April 2011, Grant died of lung cancer. His cancer was caused by
exposure to asbestos.
[¶8] The complaint, later amended, was filed in the Superior Court
(Sagadahoc County) in March 2012, alleging negligence, violation of 14 M.R.S.
§ 221 (2015) (defective or unreasonably dangerous goods),2 and loss of
consortium. The amended complaint named fifteen defendants, including NEI,
1
Owens-Corning Fiberglas Corporation declared bankruptcy as a result of asbestos-related litigation,
and it was not named as a defendant in this action. A trust was established to compensate persons
exposed to and injured by Owens-Corning products, and Patricia Grant made a claim for compensation
from that trust.
2
Title 14 M.R.S. § 221 (2015) states, in full:
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.
4
Foster Wheeler, Warren Pumps, and Imo Industries.3 The case was transferred to
the Business and Consumer Docket in January 2013. See M.R. Civ. P. 131.
[¶9] In July 2014, NEI, Foster Wheeler, Warren Pumps, and Imo Industries
filed separate motions for summary judgment supported by statements of material
fact. See M.R. Civ. P. 7(b), 56(b), (h)(1). The Estate opposed each motion,
responded to the statements of material fact, and offered additional statements of
material fact. See M.R. Civ. P. 7(c), 56(c), (h)(2). Each defendant replied. See
M.R. Civ. P. 7(e), 56(h)(3). Four sizeable summary judgment records were
generated. The parties dispute whether the plaintiffs had established a prima facie
case that Grant ever breathed asbestos from the defendants’ products.4
[¶10] The court entered summary judgment in favor of NEI, Warren Pumps,
Foster Wheeler, and Imo Industries on each of the Estate’s claims. Upon motions
3
Seven defendants were individually dismissed from the action between 2012 and 2015. Each
dismissal was uncontested or with the Estate’s consent, and two were on the Estate’s motion. Not subject
to individual dismissals were NEI, Foster Wheeler, Warren Pumps, Imo Industries, Air & Liquid Systems
Corp., Aurora Pump Company, Bayer Cropscience Inc., and Rapid-American Corp. Air & Liquid
Systems Corp., Aurora Pump Company, Bayer Cropscience, and Rapid-American have not participated in
this appeal.
4
NEI also argued that its duty to warn Edward Grant of any danger present in Kaylo was relieved by
the sophisticated user doctrine, an affirmative defense not yet recognized in Maine. See Townsend v.
Chute Chem. Co., 1997 ME 46, ¶ 11 n.4, 691 A.2d 199 (declining to reach the issue). NEI argued that
Bath Iron Works was the end user of Kaylo and that Bath Iron Works was a sophisticated user of asbestos
products. See Taylor v. Am. Chemistry Council, 576 F.3d 16, 24-31 (1st Cir. 2009) (applying
Massachusetts law). Although the trial court granted summary judgment to NEI on this ground and
others, we need not reach this issue today, as we conclude that summary judgment in favor of NEI was
appropriate on other grounds.
5
by those four defendants, the court entered a final judgment in the matter pursuant
to M.R. Civ. P. 54. The Estate timely appealed.
II. LEGAL STANDARDS FOR REVIEW
[¶11] The Estate argues that the court erred when it entered summary
judgments in favor of NEI, Foster Wheeler, Warren Pumps, and Imo Industries.
[¶12] “We review the grant of a motion for summary judgment de novo,
and consider both the evidence and any reasonable inferences that the evidence
produces in the light most favorable to the party against whom the summary
judgment has been granted in order to determine if there is a genuine issue of
material fact.” Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484.
“A fact is material if it has the potential to affect the outcome of the suit, and a
genuine issue of material fact exists when a fact-finder must choose between
competing versions of the truth, even if one party’s version appears more credible
or persuasive.” Angell v. Hallee, 2014 ME 72, ¶ 17, 92 A.3d 1154. However,
“when the matter remains one of pure speculation or conjecture, or even if the
probabilities are evenly balanced, a defendant is entitled to a judgment.” Crowe v.
Shaw, 2000 ME 136, ¶ 10, 755 A.2d 509.
[¶13] “When the moving party is the defendant, the burden rests on that
party to show that the evidence fails to establish a prima facie case for each
element of the cause of action.” Budge, 2012 ME 122, ¶ 12, 55 A.3d 484. “When
6
the material facts are not in dispute, we review de novo the trial court’s
interpretation and application of the relevant statutes and legal concepts.”
Remmes, 2015 ME 63, ¶ 19, 116 A.3d 466.
[¶14] A claim for negligence and a claim for violation of section 221 both
require proof of causation.5 “A prima facie case of negligence requires a plaintiff
to establish . . . an injury to the plaintiff that is proximately caused by a breach of
[a] duty” owed to the plaintiff by the defendant. Mastriano v. Blyer, 2001 ME 134,
¶ 11, 779 A.2d 951 (citation omitted).
[¶15] “Evidence is sufficient to support a finding of proximate cause if the
evidence and inferences that may reasonably be drawn from the evidence indicate
that the negligence played a substantial part in bringing about or actually causing
the injury or damage and that the injury or damage was either a direct result or a
reasonably foreseeable consequence of the negligence.” Crowe, 2000 ME 136,
¶ 10, 755 A.2d 509. “The mere possibility of such causation is not enough, and
when the matter remains one of pure speculation or conjecture, or even if the
probabilities are evenly balanced, a defendant is entitled to a judgment.” Id.
5
Without proof of causation on the negligence and section 221 claims, Patricia Grant’s loss of
consortium claim is also foreclosed. Although the loss of consortium claim is an independent, statutorily
created action ultimately aimed at compensating a person’s injuries that resulted from his or her spouse’s
injury, Patricia Grant’s claim necessarily arises from tortious conduct committed against Edward Grant.
See Steele v. Botticello, 2011 ME 72, ¶ 17, 21 A.3d 1023; Macomber v. Dillman, 505 A.2d 810, 813
(Me. 1986). Thus, without proof that any of the defendants caused Edward Grant’s injury, Patricia Grant
cannot recover for loss of consortium.
7
[¶16] To establish a prima facie case in personal injury asbestos litigation, a
plaintiff must demonstrate both product nexus, meaning that the plaintiff was
exposed to the defendant’s asbestos-containing product, and medical causation,
meaning that such exposure was a substantial factor in causing the plaintiff’s
injury. See, e.g., Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1206-07
(Cal. 1997).
[¶17] Jurisdictions differ as to what amount of product exposure a plaintiff’s
evidence must demonstrate to survive summary judgment. Compare, e.g., Welch
v. Keene Corp., 575 N.E.2d 766, 769 (Mass. App. Ct. 1991) (“It is enough,
however, to reach the jury that [the plaintiff] show that he worked with, or in close
proximity to, the defendants’ asbestos products.”), with, e.g., Henderson v. Allied
Signal, Inc., 644 S.E.2d 724, 727 (S.C. 2007) (expressly adopting the “frequency,
regularity, and proximity test” announced in Lohrmann v. Pittsburgh Corning
Corp., 782 F.2d 1156 (4th Cir. 1986)).
[¶18] In Lohrmann, an asbestos personal injury case, the United States
Court of Appeals for the Fourth Circuit held: “To support a reasonable inference of
substantial causation from circumstantial evidence, there must be 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.” 782 F.2d at 1162-63.
8
[¶19] In the present case, referencing prior trial court opinions, the trial
court applied a test that is less burdensome to a plaintiff. In order to demonstrate
product nexus, the trial court required the plaintiff to show “[t]hat the defendant’s
asbestos-containing product was at the site where the plaintiff worked or was
present, and that the plaintiff was in proximity to that product at the time it was
being used.” (Emphasis in original) (quoting Mahar v. Sullivan & Merritt, Inc.,
No. BCD-CV-10-21, 2012 Me. Super. LEXIS 129, at *9 (July 31, 2012)). The
court required the plaintiff to “prove not only that the asbestos products were used
at the worksite, but that the employee inhaled the asbestos from the defendant’s
product.” (Quoting Mahar, 2012 Me. Super. LEXIS 129, at *9).
[¶20] Because we conclude that the Estate has not offered evidence to
satisfy even the less burdensome standard applied by the trial court, we need not
decide whether Maine should utilize the greater Lohrmann standard. Utilizing the
less burdensome standard applied by the trial court, we turn to the Estate’s
evidence regarding the individual defendants.
III. APPLICATION OF LEGAL STANDARDS TO THE FACTS
A. New England Insulation
[¶21] Edward Grant worked as a cleaner from February 1966 to
January 1967 and again from January 1969 to June 1970. Bath Iron Works began
using Kaylo pipe covering sometime in 1967 and discontinued its use after 1973.
9
The Estate has produced evidence that NEI sold Kaylo pipe covering to Bath Iron
Works on three instances in 1969. There is no evidence that NEI sold Kaylo to
Bath Iron Works during the first timeframe when Grant worked as a cleaner. It is
only during the second timeframe—January 1969 to June 1970—that Grant might
have been exposed to asbestos from Kaylo sold by NEI. Therefore, we examine
what admissible evidence the Estate has offered to show that Grant swept up
asbestos debris and might have inhaled asbestos fibers after pipe coverers had
installed Kaylo between January 1969 and June 1970.
[¶22] Before his death, Grant was deposed for his workers’ compensation
claim pursuant to the Longshore and Harbor Workers’ Compensation Act,
see 33 U.S.C.S. §§ 901-950 (LEXIS through PL 114-152).6 There, Grant testified
that when he worked as a cleaner from January 1969 to June 1970, he did “mostly
all painting.” He testified that his only memory of cleaning up asbestos debris was
when he first worked as a cleaner, from February 1966 to January 1967. He stated
that when he did do “cleaning” in 1969-1970, “it seemed different” than the
cleaning he had done before, and he did not recall working near pipe coverers.
6
Enacted in 1927, the Longshore and Harbor Workers’ Compensation Act has been amended since
Grant filed his claim pursuant to it. See Pub. L. No. 69-803, 44 Stat. 1424 (1927); see, e.g., Pub. L. No.
111-5, sec. 803, 123 Stat. 187 (2009) (codified at 33 U.S.C. § 902(3)(F)). Because neither the Act nor
Grant’s workers’ compensation claim is relevant to this appeal, we cite the current iteration of the Act.
10
[¶23] In support of its claim, the Estate offered the testimony of several
witnesses who worked at Bath Iron Works in 1969 and 1970 to attempt to
demonstrate that Grant’s memory was wrong and that he swept up asbestos that
might have come from Kaylo pipe covering in 1969 or 1970.
[¶24] The first witness opined in reports and at deposition that Grant likely
would have been directed to perform cleaning duties during January 1969 to June
1970 after insulation was installed by pipe coverers. His opinion was based upon
his knowledge that Bath Iron Works undertook conversion projects during that
timeframe and that most of the people in Grant’s department were needed to clean
up after those projects. The witness also testified, however, that most people either
“generally” cleaned or “generally” painted, although there was some
“cross-pollination.” The witness testified that he could not remember Grant
personally, and he could not testify to seeing Grant working at any particular time.
[¶25] The second witness worked in the same department as Grant, and he
estimated that there were 600 people in that department. The second witness
testified that he had been exposed to asbestos from cleaning up pipe covering
debris while working in that department, but he had no recollection of working
alongside Grant or seeing Grant working near any particular equipment. The
second witness testified that their department’s primary role was painting and
cleaning.
11
[¶26] A third witness testified that he had worked in Grant’s department,
and thought it was possible that he and Grant worked on the same crew. He
testified that cleaning up asbestos fibers and dust from pipe covering insulation
was one of the “main things” their department did. The third witness remembered
seeing Grant sweeping a ship’s passageway on one occasion sometime between
1966 and 1968, but he could not be more specific. The time period referenced
necessarily would have been during Grant’s 1966-1967 period of employment as a
cleaner, before NEI sold Kaylo to Bath Iron Works.
[¶27] This constitutes all of the Estate’s evidence that Grant’s injury was
caused by Kaylo. This evidence is too speculative to support a prima facie
showing that Grant encountered asbestos fibers from NEI-supplied Kaylo in 1969
or 1970. None of the witnesses could place Grant in proximity to Kaylo during the
1969-1970 cleaning period from their own, personal knowledge of his work.
Given the size of the department, Grant’s own testimony that he almost exclusively
painted during 1969-1970, Grant’s testimony that when he did clean it was
different than his prior time in that department (when he remembered sweeping up
asbestos), and the first witness’s testimony acknowledging that most workers
generally either painted or cleaned, the evidence is too speculative to allow a fact-
finder to find that Grant swept up asbestos from NEI-supplied Kaylo. Although
proximate causation may be proved by circumstantial evidence, the evidence must
12
support inferences rather than mere speculation. The evidence regarding causation
by NEI-supplied Kaylo does not rise above speculation. See Crowe, 2000 ME 136,
¶ 10, 755 A.2d 509.
B. Foster Wheeler, Warren Pumps, and Imo Industries
[¶28] It is undisputed that products—pumps, boilers, turbines, etc.—
manufactured by Foster Wheeler, Warren Pumps, and Imo Industries were present
on naval ships constructed or converted at Bath Iron Works during the period when
Grant worked at Bath Iron Works. Therefore, we examine what evidence the
Estate offered to demonstrate that these products contained asbestos originating
with the defendants and that Grant had contact with that asbestos.
[¶29] The first witness who had testified as to his general knowledge of
cleaning activities in 1969-1970 also stated in a report that most equipment arrived
at Bath Iron Works with gaskets and packing already installed, and averred in an
affidavit that Foster Wheeler’s, Warren Pumps’, and Imo Industries’ gaskets and
packing contained asbestos. In addition, Bath Iron Works employees covered the
products with asbestos, but that covering was not asbestos that originated with
Foster Wheeler, Warren Pumps, or Imo Industries products.
[¶30] Pursuant to 14 M.R.S. § 221, the seller of a product is liable for injury
if the product “is expected to and does reach the user or consumer without
significant change in the condition in which it is sold.” For this reason, our
13
analysis is confined to the evidence regarding Grant’s potential exposure only to
the asbestos contained in the products’ original gaskets and packing.
[¶31] The only evidence offered regarding Grant’s potential contact with
asbestos originating with the defendants’ products was the first witness’s statement
that when ships were constructed or older naval ships were converted “some of the
asbestos swept up [would] also come from gaskets and packing in the pumps and
valves.” That witness had opined that Grant likely would have cleaned up this
asbestos, as a function of his job in the cleaning department. The witness testified
at deposition that he could not be any more specific about a particular
manufacturer’s product releasing asbestos debris from its gaskets or packing. He
also conceded that “the [manufacturers’ original] gaskets and packing may have
been changed out in a number of cases.”
[¶32] The evidence the Estate offered to demonstrate product nexus as to
Foster Wheeler, Warren Pumps, and Imo Industries does not specifically identify
any of those manufacturers’ products as a potential source of the asbestos to which
Grant was exposed. As with the evidence regarding the Kaylo products, the
evidence tying Grant’s condition to these products does not rise above speculation
and is not sufficient to create a prima facie case for causation or liability.7
7
Similarly, any claim of a duty to warn on the part of any of the defendants would fail.
14
C. Conclusion
[¶33] Summary judgment was appropriate on each of Patricia Grant’s and
the Estate’s three claims as to NEI, Foster Wheeler, Warren Pumps, and Imo
Industries because the plaintiffs did not offer evidence that was more than
speculation and that would permit a fact-finder to find that Edward Grant had
inhaled asbestos from these particular defendants’ products.
The entry is:
Judgment affirmed.
On the briefs:
Kevin M. Noonan, Esq., McTeague Higbee, PA, Topsham, for
appellants Patricia Grant and the Estate of Edward Grant
Kip Adams, Esq., and Christopher Tauro, Esq., Lewis Brisbois
Bisgaard & Smith, LLP, Boston, Massachusetts, for appellee
New England Insulation Company
Steven F. Wright, Esq., Wright & Associates, P.A., Portland,
for appellees Foster Wheeler, LLC, and Imo Industries, Inc.
Steven F. Wright, Esq., Wright & Associates, P.A., Portland,
and Laurie J. Hepler, Esq., Carroll Burdick & McDonough
LLP, San Francisco, California, for appellee Warren Pumps,
LLC
15
At oral argument:
Kevin M. Noonan, Esq., for appellants Patricia Grant and the
Estate of Edward Grant
Kip Adams, Esq., for appellee New England Insulation
Company
Steven F. Wright, Esq., for appellees Foster Wheeler, LLC,
Warren Pumps, LLC, and Imo Industries, Inc.
Laurie J. Hepler, Esq., Greines, Martin, Stein & Richland LLP,
San Francisco, California, for appellee Warren Pumps, LLC
Business and Consumer Docket docket number CV-2013-2
FOR CLERK REFERENCE ONLY