Jones v. Air & Liquid Systems Corp.

• Court: Superior Court of Maine
• Decided: April 22, 2015
• Docket: CUMbcd-cv-12-79
• Status: Unpublished

Opinion

STATE OF Ivl.AINE BUSINESS AND CONSUNIER COURT CUMBERLAND, ss Location: Portland / Docket No.: BCD-CV-12.· ·7 q

GLORIA JONES, Individually and as ) Personal Representative of the Estate of ) HAROLD M. JONES, ) ) Plni ntiff, ) ) ORDER ON DEFENDANTS' MOTIONS v. ) FOR SUl\rliVIARY JUDGlVlENT ) AIR & LIQUID SYSTEMS CORP., et al ) ) Defendnnts. )

I. INTRODUCTION

Defendants, Warren Pumps, LLC ("Warren"), Foster Wheeler, LLC ("Foster Wheeler"),

and !Jno Industries, Inc. ("llno") (collectively "Defendants"), move this Court for summary

judgment on all claims asserted against them respectively in the Plninlifrs Amended Compl11int.

The Plni ntiff has alleged negligence and strict Jinbility as well as Joss of consortium for the death

of her husband, Hnrold Jones, from asbestos-related mesothelioma. Specifically, the Defendants

contend that they are entitled to judgment as a matter of law as the Plaintiff has failed to

introduce admissible evidence proving that the decedent wns exposed to asbestos-containing

materials 11\lllllJfactured by the Defendants.

II. i'YIA TERTAL FACTS

Harold and Gloria Jones initiated this aclion via 11 Complaint filed on July 2, 2012,

therenfier amended on October 12, 2012, al!eging that Mr. Jones ("Decedent") was exposed to

asbestos' dust and fibers during his career at Bath lron Works' ("BIW"). Mr. Jones begnn his career at BIW on July 22, 1968, fiS an electrician. He was stJbsequently laid off on January 5,

1973, and retumed in April 1974 agnin as an electrician. Mr. Jones was laid off one more time

in 1975, but upon his return remained employed with BIW until Ws retirement in 2000.

During the Decedent's tenure at BIW, asbestos was used in the constn1ction of naval war

ships. Specifically, because of their steam power, the mach.ine1y generated high heat. To

combat this problem, asbestos-containing insulation was used to insulate pipes in the high-

temperah.1re machinery spaces to protect workers and sailors and to keep the ambient

temperah.1re at safe levels.' (Pl.'s Addt'l S.M.F. ~ 77; Warren's Rep. S.M.F. ~ 78; Foster

Wheeler's Rep. S.M.F. ~ 77; Imo's Rep. S.lVLF. ~ 78.) In the 1950s and 1960s, asbestos was a

common component of insulating 11111terinls used at BIW. It was not until 1973 that non-asbestos

contnining pipes were used on the premises. It was not until 1977 that exposure to asbestos was

"tightly managed." !d.

Plaintiff alleges that the Decedent WllS exposed to asbestos 11nd nsbestos-conlaining

products while employed at BIW. In his capacity as an electrician, the Decedent WllS involved in

working on conversions and overhauls. (Pl.'s Addt'l S.M.F. ~ 36; Warren's Rep. S.M.F. ~ 36;

Foster Wheeler's Rep. S.M.F. ,, 36; uno Rep. S.M.F. ,, 36.) Snid projects required old insulntion

and covering on piping ond other equipment to be removed nnd replaced. (Pl.'s Addt'l S.M.F. ~

38; W;men's Rep. S.M.F. ~ 38; Foster Wheelel"s Rep. S.M.F. ~ 38; Imo Rep. S.M.F. ~ 38.)

Specifically, the Decedent remembered working on a ship by the ncune of the "Yarnell."

The Yamell included four hnbines nlllllllfacturcd and said to BIW by Dei.nv11i. DeLnval

is the predecessor corporation of Defendant Imo. (Pl.'s Addt'l S.M.F. ~ 41; Warren's Rep.

S.M.F. ~ 42; Foster Wheeler's Rep. S.M.F. ~ 41; Imo Rep. S.M.F. ~ 43.) The DeLaval

1 There is n disputed issue ns to whether nsbestos wns ';required" by the Defendonts to remedy the high temperatures iu the mnchillery spnces.

2 equipment oil the YarneJI would have contnined external asbestos insulation. However, the

Defendants contend that any asbestos insulation on Defendants' products was applied after

leaving the manufact\lfers' control. (Pl.'s Addt'l S.M.F. ~ 43; Warren's Rep. S.M.F. ~ 43; Foster

Wheeler's Rep. S.M.F ~ 43; lmo Rep. S.M.F. ~ 44.) During said conversion, asbestos would

have been removed from DeLnval 's equipment and re-installed. Further, during the conversion

of the Ynrnell, tile Yarnell would have included 11 Foster Wheeler Boiler. (Pl.'s Addt'l S.M.F. ~

49; Foster Wheeler's Rep. S.M.F. ~ 49; Warren's Rep. S.M.F. 11 49.) The Foster Wheeler boiler

would have had extemnl asbestos insulation! (Pl.'s Addt'l S.M.F. ~50.)

DUling the construction of the Yarnell, two fire pumps and two main circulating ·pumps

would have been installed. Said pumps were manufactured by Defendant Warren and

subsequently sold to BTW. (Pl.'s Addt'l S.M.F. ~ 51; Warren's Rep. S.M.F. ~ 51; Foster

Wheeler's Rep. S.M.F. ~ 51.) The Plaintiff claims that the fire pumps and circulating pumps

installed in the Ynmell had exlernnlasbestos insulation on them. (Pl.'s Addt'l S.M.F. ~52.) The

Plaintiff contends thnt during the period of time Mr. Jones was at BIW working on conversions,

the Defendants all had products requiring asbestos insulatlon. 3 (Pl.'s Addt'l S.M.F. ~~54-56.)

Thus, the summary judgment record supports the preseuce of DeLavnl/lmo turbines, a

Foster Wheeler boiler, and Warren pumps at BIW during the time the Decedent was employed.

All of the mentioned products were externally covered with asbestos by BTW or other entities.

Although rv1r. Jones did not work directly with asbestos, he worked all around it. (Pl.'s Addt'l

S.M. F. ~ 37.) Bill Lowell, a former Chief Operoting Engineer at BIW reviewed Jones' work

hist01y nnd determined thnt he was likely exposed to asbestos while working at least until the

2 The Defendants reiternte thnt nuy iusnlation thnt m.ight hove been nssocintcd with the mentioned pumps would hove been provided and instnlled by BIW. (Foster Wheeler's Rep. S.M.F. 4J 50.) 3 The Defeudouts deny this nsscrtion noting they did not require tlleir respective equipment to be ex"ternnlly insuloted nnd nny decision to opply nsbestos insulntion would hove been mode by BIW. (Foster Wheeler's Rep. S.M.F. -;~;54-56.)

3 year 1977. Further, J:'fr. Lowell indicated that from pulling cable alone, Mr. Jones would have

been exposed to some level of asbestos until the early 1970s.' 1 (Pls.' Addt'l S.M. F. ~~ 64-66.)

The f11cts indicAte that Mr. Jones encountered dust associated with the insulation on the pipes

while perfonning his duties including pulling cables aboard the ships 5 (Pl.'s Addt'l S.M.F. ~59;

Warren's Rep. S.M.F. ~58; Foster Wheeler's Rep. S.M.F. ~59; Imo's Rep. S.M.F. ~59.) The

Defendants deny that fVJ..r. Jones worked nround asbestos and claim that the area in which Mr.

Jones predominnntly worked was aw11y from the machinery spaces. (Warren's Rep. S.M.F. ~57

Foster Wheelers Rep. S.M.F. ~ 57; lmo's Rep. S.M.F. ~ 57.) However, it is undisputed that

electricinns often worked in and around machinery spnces lhflt contained the Defendants'

equipment. (Pl.'s Addt'J S.M.F. ~ 93; Warren's Rep. S.M.F. ~51; Foster Wheeler's Rep. S.M.F.

~ 93; Imo's Rep. S ..M.F. ~ 93.)

Througho~ll the course of his employment, Mr. Jones encountered asbestos panels

installed in the reefers. He also fabricated small foundations and ran a punch press when he was

in the electricnl shop. Mr. Jones identified working around asbestos while working in the shop,

but did not identify working around additiom1l machine1y or steam turbines. 6 Dana Delano. n

coworker of Mr. Jones, testified that the electricians would work alongside pipe-coverers who

were either removing or installing asbestos insulation. (Pis.' Addt'l S.M.F. ~ 88; Warren's Rep.

S.M.F. ~ 88; Foster Wheeler's Rep. S.M.F. ~ 88; Imo's Rep. S.M.F. ~ 89.) Mr. Delano further

4 Defendnnls contend thnt Mr. Lowell is not quolilled to testify obout U1c presence of cerlnil1 mnnufnct1.1rers' equipment on ships IHtd is not qnn!ified lo offer !lll opinion regarding e:-:posurc to asbestos. (Fosler Wheeler's Rep. S.M.F. ':166; Imo's Rep. S.M.F. ':165.) 1 While pulling cnblc the cable would mb up ngninst the nsbestos covering cnusiug dust. Sometimes, Mr. Joues would hove to rip asbestos coverings off pipes. (Pls.' Addt'l S.M. F. ~ 60; Foster Wheeler's Rep. S.M.F. ';160; l.u1o 's Rep. S.M.F. 'I 60; Wnrren's Rep. S.M.F. ~ 60.) Mr. Jones did not wear a respirotor when perfor111ing these tasks. {Pl.'s Addt'l S.l'vl.F. ~ 62; Foster Wheeler's Rep. S.M. F. 62; Imo's Rep. S.M.F. ~61; Wnrren's R!'P· S.M.F. ~62.) 6 Asbestos mnterinls were placed on the stenm hu·bines by BI\V personnel. The insulotion wns required to reduce the hent in the engine room nnd to protect workers. Foster Wheeler nnd lmo deny this nsscrtion nnd note lhnt nsbestos insulntion wns not reqnired. (Foster Wheeler's Rep S.M.F. ~ 76.)

4 testified that Mr. Jones would have been exposed to asbestos in the same way. (Pis.' Addt'l

S.M.F. ~ 89; Warren's Rep. S.M.F. ~ 91; Foster Wheeler's Rep. S.M.F. ~ 89; fmo's Rep. S.M.F.

~ 90.)

Co-worker Lyndon H(lrris worked at BIW as nn electrician like l'v1r. Jones. He knew Mr.

Jones nnd worked with him on occasion. (Pl.'s Addt'l S.M.F. ~ 78; Foster Wheeler's Rep.

S.M.F. ~ 78; Imo's Rep. S.M.F. ~ 79.) Mr. Harris testitied that he was exposed to asbestos while

working aboard ships and Mr. Jones would have been exposed during the re-installation of

equipment. (Pl.'s Addt'l S.M.F. ~ 82; Foster Wheeler's Rep. S.M.F. ~ 82; Imo's Rep. S.M.F. ~

82.) .W.lr. Harris further testified thnt all electricians were required to pull cable, including Mr.

Jones and that the job would be performed throughout the ship, including in the machinery 11reas.

(Pl.'s Addt'l S.M. F. ~ 85; Warren's Rep. S.M.F. ~ 85; Foster Wheeler's Rep. S.M.F. ~ 85; lmo's

Rep. S.M.F. 11 84.) Pulling cnble wns "dusty" and there was a good chance of exposure to

asbestos during that time.

Another coworker, Gary Freeman, testified that as an electrician he was reqt1ired to work

in machinery spaces nnd often worked while the pipe-coverers were teming ofT or installing

asbestos insulation. During that process dust would till the room. (Pl.'s Addt'l S.M.F. ~ 90;

Foster Wheeler's Rep. S.M.F. ~ 90; lmo's Rep. S.M.F. ~ 90.) Mr. Freeman testified that lvlr.

Jones would have been exposed to asbestos in the same way. (Pl.'s Addt'l S.M.F. ~ 91; Foster

Wheeler's Rep. S.M. F. ~ 91; Imo's Rep. S.M.F. ~ 91.) Steven Paskal, a certified industrial

hygienist stated in hi:. deposition that there is no dose of asbestos known thfll does not pose an

increased risk of cancer. 7 Mr. Paskal contends that ifMr. Jones had any exposure to asbestos his

risk of cancer increased. The Decedent's doctor. Michael A. Jones, Chief of Pathology at Maine

7 ' Defendonts deny that tvlr. Pnskal is qualified to testify regarding a medical issue os he his neither u doctor nor a medical export.

5 Medical Center, will testify that i\!Ir. Jones died fl-om malignant mesothelioma. He will fl1rther

testify that said illness was contracted as a result of being in "proximity to those working with

asbestos products."

The pa11ies vigorously dispute whether there is sufficient admissible evidence on the

record to support the assertion that the Decedent was exposed to asbestos as a result of the

presence of the Defendants' respective products at BIW.

ill. STANDARD OF REVIEvV

A. Swnnu11y Judgment

To survive n motion for sumnHuy judgment on a claim, "the [party nsset1ing the claim]

nntst establish a prima facie case for each element of {its] cause of action." Bonin v. Crepeau,

2005 ME 59, ~ 8, 873 A.2d 346. Summary judgment is

issue as to any material fact nnd the moving party is entitled to judgment as a matter of

law. M.R. Civ. P. 56(c). Any findings for the plaintiff' may not be based upon conjecture or

speculation. !d. A "materi11l fact" is one that can affect the outcome of the case, and a genuine

issue exists when there is Sllfficient evidence for a factfinder to choose between competing

versions of the fact. r.augee Conservancy v. Citilvlortgage, Inc., 2012 ivffi 103, ~ I 1, 48 A. 3d

774. The Court views the evidence i11 the light most fnvorable to the non-moving pnrty. Webb v.

Ilcras, 1999 ME 74, ~ 18, 728 A.2d 1261.

Rule 56 requires pcu1ies "to come forward with affidavits or other mnterials setting fortb

by competent proof specific facts that would be admissible in evidence to show ... that a

genuirte issue of fact exists." Bangor & Aroostook R.R. Co. v. Daigle, 607 A.2d 533, 535-36

(Me. 1992). "When there is so little evidence tending to show a critical element of a plaintiffs J •

claim that the jury would have to speculate in order to retum a verdic1 for the plaintiff, a

6 defendant is entitled to summnry judgment. Beaulieu v. Aube C01p., 2002 l'vfE 79, ~ 14, 796

A.2d 683. However, no matter how improbnble a party opposing summary judgment's chances

of prevailing at ttial seem, a court may not decide an issue of fact; it is only permitted "to

determine whether a genuine question of fact exists." Searles v. Trustees ofSt. Joseph's College,

!997 ME !28, ,16, 695 A.2d 1206.

B. Applicable LRw

Plaintiff's primary causes of action against the Defendants Rre negligence and strict

liability. Plaintiff 11lleges that the Defendants manufactured asbestos containing products that the

Decedent wfts exposed to asbestos from those products in ltis work at BIW, and thnt the

Decedent's exposure to asbestos from the Defendants' products was a substantial factor in

bringing about his death from mesothelioma.

"The essentinl elements of a claim for negligence are duty, breach, proximate causation,

and harm." Baker v. Farmnd, 201 I rvm 91, ~ I I. 26 A.3d 806. A plaintiff must demonstrate

thnt "a violation of the duty to use the npproptinte level of care towards another is the legnl cause

of harm to" the plaintiff and that the defendant's "conduct [was) a substantial factor in bringing

about the harm." S/;ickler v. York, 566 A.2d 1385, 1390 (Me. 1993) (internal citations omitted);

see also Bonin ''· Crepecw, 2005 ME 59, ~ 10, 873 A.2d 346 (outlining negligence cause of

action for supplying a product without adequate warnings to the user). "Maine's strict liability

statute, [14 M.R.S. § 221 (2011)), imposes liability on manufacturers and suppliers who market

defective, unreasonably dangerous products,'' inciuding iinbility for defects based on the failure

to warn of the product's dangers. See Bernier v. Rayrrmrk fndus., Inc., 516 A.2d 534, 537 (Me.

1986); see also Pottle v. L~J-Right, Inc., 628 A.2d 672, 674-75 (Me. 1993 ); 1vlahar v. Sullivan &

Merrilf, Inc;., BCD-CV-1 0-21 (Bus. & Consumer Ct. Sept. 18, 20 I:j, Nivison, J.)

7 This Court has had the opportunity to evaluate the level of proof necessary to establish

the req\Jisite relationship between a plaintiff's injuries and a defendant's product in asbestos

litigation. Mahar v. Sul/ivau & i\4errill, Inc., BCD-CV -10-21 (Bus. & Consumer Ct. Sept. 18,

2013, Niviso11, J). To be successful, a plaintiff lll\JSL establish prima jacie evidence of causation.

1n actions concerning strict liability or negligence resulting from contact witll asbestos, such

showing is made when a plaintiff demonstrates both medical causation nnd product neX\.JS.

Medical causation requires that "plaintiff's exposure to the defendant's product was a substantial

factor in causing the plaintiff's injury." !d. (quoting 63 Am. Jur. 2d Products Liabilify § 70

(200 1)). Product nexus requires:

[T)hat the defendant's asbestos-containing product wns at the site where plaintijf worked or was present, and thai the plaintiff was in proximity lo thai product at the time it was being used ... a plaintiff must prove not only that the asbestos prodticts were used at the worksite, but that the employee inhnlcd the asbestos from the defendant's product.

!d.

IV. DISCUSSION A. Product-Nexus

The issue in tbis case is whether the Plaintiff has presented prima facie evidence that tbc

Decedent had sufficient contRc! with the Defendants' prodLJcts to support an inference that those

products caused harm to him. To survive the Defendants' motions for swnma1y judgment, the

Plftintiff must demonstrate that: (I) the Defendants' products were nt BIW at the time of the

Decedent's employment; (2) The Defendants' products cotl!ftined asbestos; and (3) the Decedent

had personal contact with asbestos from the Defendants' product. "If a plaintiff produces such

evidence, which can be either direct or circumstantial, the

8 product(s] w[ere] a 'substantial factor' 8 in causing the Plaintiff's damages is for the jury." 9

Rumery v. Garlock Sealing Techs., 2009 Me. Super. LEXIS 73, at *8 (Apr. 24, 2009); see also

Addy v. Jenkins, l11c., 2009 rvrn 46, ~ 19, 969 A2d 935 (noting "(p]roximate cause is generally a

question of fact for the jury").

In support of Plaintiff's contention that the Defendant's products arc lcgnlly responsible

for the Decedent's illness and death, Plaintiff relies on the testimony of severn! BIW employees.

However, only two employees could recall working with the Decedent. 10 Viewing the

undisputed facts of tltis case in a light most favorable to the Plaintiff, 11 the record indicates: (1)

the Decedent worked at BlW for pe1iods of time between 1968 and 2000; (2) Defendants

produced vorious products that were utilized at BIW during the Decedent's employment; 12 (3)

Said products were subsequently covered with asbestos insulation; and (4) Decedent contracted

an asbestos-related illness. However, the Plnintiff has fniled to present evidence demonstrating

that the Decedent had personal contact with the Defendnnts' asbestos-containing products.

The most compelling evidence offered by Plaintiff was testimony by William Lowell, an

experienced engineer and BIW employee. It is undisputed that Mr. Lowell had no recollection

--·---·-·------ 8 lu Moine, to prove cnusntiou, n plni.ntiff mnst prove tl1nt U1e defendont's conduct "is n substontial foetor in bringing nbout the hnrm." Spickler v. York, 566 A.2d 1385, 1390 (Me. J989); see a!.l'o Wing v. Aloi'Se, 300 A.2d 491, 495-96 (Me. 1973). 9 The court in Boyden v. Tri-State Pac~1ng Supply noted, "whether thnt evidence is sufficient to prove thnt the mnnufnct\1rers products were n substnutinl foetor in cnusing the decedent's illness [wns) o question thnt requires n compnrisou ond weighing of tile c\•idcnce, o function left to the trier of foct." 2007 Me. Super. LEXIS 47, 13 (Me. Super. Ct. Feb. 28, 2007). 1 " Dono Delono recoiled working nt the snmc time ns U1e Decedent on the U.S.S. Brumby in !975. However, De limo oud tile Decedeul hod different jobs oud the two typicolly only interacted durlug hmch l>reoks. (Wnrren's Rep. S.M.F. ~~ 18-19; Foster Wheeler's Rep. S.M.F. f!~ 18-19; lmo's Rep. S.M.F. f.~ 18-19.) Former BJW employee Lyudon Hnrris remembered the Decedent working in the elcctricnl shop, but does not recoil Mr. Jones working on or with nny of the Defendants' products, 11 Under Moine's stnndnrd for stunmnry judgmeut, the "opposing pnrty ton suuunnry judgment is given the benefit of"ony inferences which might rensonnbly be drown from the evidence." Despres v. Atfoyer, 2003 ME 41, ~ J I, 827 A.2d 61. I 12 See (Worrcn's Rep. S.M. F. ~i~! •17,48, 98,99; Foster Wheeler's Rep. S.M.F. ~~ 47,48, 98, 99; lmo's Rep. S.M.F. ~~ 47,48, 98,99.)

9 of the Decedent or the Decedent's tenure at Bl W. (Pl. Opp. S.M.F ~ 24.) He could not recall

nny particular ship that the Decedent worked on or any particular timeframe that the Decedent

was employed. Rather, he was able to describe the products an

ships as well the duties and responsibilities of electricians employed at BIW. In fact, through

Mr. Lowell's testimony, one could deduce that the Decedent's exposure wns from products other

thnn those manufactured by the Defendants. 13

The Defendants cite Buck v. EasTern Reji·actories Co., Inc., for the notion that under

Maine law, proof that the Defendants' products and equipment were present at BIW nl the time

the Decedent was employed is insufficient to establish product nexus. OXFSC-CV-04-15 (Me.

Super. Ct., Oxf. Cnty., Jul. 23, 2007) (Gonnan, J.). In Buck, the court gmnted summary

judgment where the plaintiff presented no evidence that the decedent had contact wi1h the

contaminated products or thnt the defendants' products coused the injury complained of.

In this case, mere evidence that the Decedent worked at BfW at the time the Defendants'

asbestos-containing products were used, docs not establish prima facie proof of causation. !d.

The testimony of Mr. Lowell indicates that while he wns not familiar with wlr. Jones' exact work

history, he was fnmiliar with the types of work undertaken by electlicians aboard the various

ships. The record indicates that the Decedent worked overhauls and conversions and likely

removed asbestos from DeLnval/Imo's products on the Yamell. (Pl.'s Addt'l S.M.F. ~ 46.)

Further, Warren pumps 11nd Foster Wheeler boilers would have been instnlled dming said

conversion.

The evidence presented by the Plaintiff is high1y speculative as there is no evidence on

the record that the Decedent came into contact witJ1 the Defendant's products. The testimony by -----·········-····-·-·--·-- 13 For exomple, mo!eriul found in the electcicol cnble or covering on vorio\IS pipes.

10 tvlr. Lowell does not provide evicleuce of what products the Decedent was exposed to, but what

products he likely would have been exposed to. In Lewis v. A. W. Chesterton, this Court had the

opportunity to analyze similar evidence offered to establish product nexus. In Lewis, the plaintiff

sought recovery for damctges flssociated from the decedent's exposure to asbestos during the

course of his employment nt BIW. The decedent served as n pipefitter and alleged that he

contracted !Ill asbestos-related illness nfter he wns exposed to asbestos from products of the

defendant manufacturer. The plaintiff principally relied on the testimony of a co-worker nnd the

decedent's son. The wilnesses did not obse1ve the decedent working on or around the

defendant's products. Rather, the testimony merely placed the defendant's products at the

decedent's place of employment. The court determined that:

[T]he plaintiff fniled to produce any evidence upon which a fact finder could conclude that the decedent was exposed to or had contact with pumps manufactured by defendant .... First, the record is devoid of any direct evidence that the decedent had contact with the pumps mnnufactured by Defendant .... [A Witness) upon whom the Plaintiff relies primarily, did not observe the decedent working on or nround Defendant's products. In fact, [the witness's] testimony, while sufficient to piRce Defendnnt's pumps at Bath Iron Works for summary judgment purpose is not pnrticulnrly strong. 1 ~

Lewis v. A. W Chesterton Co., L/NSC-05-CV-043 (Me. Super. Ct. Yor. Cnty ., Apr. 2tl, 2009).

The record evidence and matmial facts in this case provide si~nilllf spec\dative evidence.

While Mr. Lowell recalls the types of work and activities Mr. Jones would have been doing, he

does not recall Mr. Jones specificnlly. Without the testimony of Mr. Lowell, there is no evidence

that the decedent worked near any of the Defendants' products or equipment. In RumciJ' ''·

Garlock Sealing Tech., Inc., the plaintiff relied on the testimony of severn! fonuer employees of

the decedent's employer. The court noted "[t]o avoid summary judgment, Plaintiff must produce

11 ' The court noted thnt the defendont wos not the sole mouufacturer of pumps nt the workploce 1111d no

evidence wns presented .indicotiug thnttbe defendont supplied n majority of the pumps on the premises. Hnd tlte plaintiff demonstrnted such, the court might hove been persuaded thnt n rnctfinder could infer thnt the decedent hnd contoct with the defendnnt's product.

II evidence from which a reasonable fact finder could conclude that the decedent had contact with

1111 asbestos-containing product manut~1ctured by [the] Defendant." However, the court rensoned

that the evidence in the case was too speculative. The court held:

Although a party can prove the necessary relationship between a claimant and a patiicular product by circumstnntial evidence, the mere fact that a product was present fit a pnrlicular site, and might have contained llSbestos materit~l, is insufficient to satisfy the party's burden at this stage of the proceedings. At best, the evidence in this case suggest that the decedent might have had contact with a pump manufactured by one of several entities, which might have contained asbestos material. On this evidence, a fnct finder would, therefore, have to speculate ns to whether the decedent hod contact with Defendant's product.

Rwlwly, 2009 Me. Super. LEXIS 73, *6 (Apr. 24, 2009).

Accordingly, Plaintiff cannot, as a matter of law, prevail on her claim. Thus, the court GRAl\'TS

Defendants', Warren, Foster Wheeler, and Jmo's, Motions for Summary Judgment as to the

negligence claim.

B. Strict Liability

Maine's strict liability statute imposes liability on manufacturers and suppliers who

market defective, unreasonably dangerous products. "The Law Comi has adopted the majority

view that a product though faultlessly made, may nevertheless be deemed defective [under 14

M.R.S.A. § 221) 15 and subject the supplier thereof to strict liability if it is unreasonably

15 Moine's product liobility statute, l

(I) the uomcd defeudnut sold the goods or products; (2) those goods or products wore in n defective condition unreosouobty dongerous to the user or consumer or the user or consumer's property; (3) the plaintiff might rensonnbly hove been expected to use, consume, or be affected by the goods or products; (4) the dcfcudnut wos engaged in the business of selling the goods or products; (5) the goods or products were e:-.:pccted to, nnd did, reoch !he user or consumer withotlt significnnt ch(U]ge i.u the couditiou in which they were sold; oud (6) the plointiff or the plnintifrs property suffered physico I horm.

12 dangerous to place the product in the hands of a user without a suitable warning and no warning

is given." Bums v. Wayne-Dalton C01p., 2009 WL 3754132 (citing L01j'ano v. Dura Stone

Steps, Inc., 569 A.2d I 95, 196 (Me. 1990) (citation omitted). The theory developed by the

Plaintiff is that the use of asbestos insulation in conjunction with the Defendants' products was

foreseeable to the Defendants. Thus, liability for the failure to wnrn of the dangers of as~estos

should attach. For the reasons below, the Court disagrees.

In a defective product case based on a failure to warn, a plaintiff nn.tst show that "(I) the

defendant had a duty to wam the plaintiff of the product hazard; (2) any acll.tal waming on the

product was irHldequnte; and (3) the inadequate warning or Hbsence of a warning proximately

caused the pl11intiff's injury." See id. (citing Burns v. Architectural Doors & Windows, 201 I ME

61, ~ 23 n.7, 19 A.3d 823). Such an at1iculation of the duty to warn would, nt first, seem to

indicate that any foreseeable use of asbestos in conjunction with Defendants' products would be

a fundamental issue in determining whether there is a duty to warn. The Maine Superior Court in Rume~y v. Garlock Sealing Technologies, Inc. noted:

Importantly, however, the issue of knowledge or foreseeability relates to whether a manufacll.Jrer or supplier knew of the dangers of its own product at the time of distribution. Although the Law Court does not appear to have addressed this issue directly, the Law Court has described a manufacturer's liability for failure to warn in terms of the manufacll.1rer's responsibility to alert consumers of defects inherent in the manufacturer's own products.

2009 Me. Super. LEXIS 73, at *15 (Apr. 24, 2009).

In this case the there is no evidence upon which a reasonable factflnder court conclude

that the Defendants products contained asbestos material when they left the Defendants'

respective mauufactwing facilities. The undisputed facts indicate that it was not the Defendants'

See Ric:hards v. Armsn·ong /nt 'I, Inc., BCD-CV -I 0-19 (Bus. & Consumor Ct. Jnu. 25, 20 13, Nivison J) l•l.

l3 products, but the dangers inherent in the asbestos-containing insulAtion, a product that the

Defendants did not nHmutacturer or supply, tbat proximately cause the Plaintiffs damages. In

Maine, there is no dL1ty imposed on a mnnufacturer to "warn about the dangerous propensities of

other mnnufacturer' s products." Jd.; see ctlso Richards v. Arms/rang Int '/, Inc., BCD-CV -10-19

(Bus. & Consumer Ct. Jan. 25, 2013, Niviso11 J.) (In Maine, manufacturers do not owe a duty to

warn of the dangers inherent in third-party pi'Oducts). Thus, the Defendants cnnnot be held

legally responsible for dnmnges caused by asbestos-material incorporated in or applied to their

respective products after said products left the Defendants' control.

V. CONCLUSION

Based on the foregoing, the entry shall be:

Defendants' respective motions for summary judgment are GRANTED as to all claims in

Plaintiffs Complaint.

This Order may be noted on the docket by reference pursuant to Rule 79(a) of the Maine

Rules of Civil Procedure.

DATE M. iviichncln Murphy, Ju:fti e BUSINESS AND CONSUiYIER COURT

/a 'I£< ' Entered on the Docket: 1/ Copies sent via Maii_Eiectronically~

14 Gloria Jones, Individually and as Personal Representative of the Estate of Harold M. Jones v. Air & Liquid Systems Corp., et al.

BCD-CV-2012-79

Gloria Jones, Individually and as Personal Representative of the Estate of Harold M. Jones

Plaintiff

Counsel: Kevin Noonan, Esq. Four Union Park PO Box 5000 Topsham, ME 04086-5000

Air & Liquid Systems Corp., et al.

Defendant

Counsel: Steven Wright, Esq. 615 Congress Street Suite 15 PO Box 4077 Portland, ME 04101