McKinnon v. Air & Liquid Sys. Corp.

• Court: Superior Court of Maine
• Decided: September 5, 2013
• Docket: CUMcv-13-21
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD-CV-13-2) ~~ ,5 rJ ~ L rJ- C)J_M ~ 7JI5; :z_IO/

) NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (Union Carbide Corporation) v. ) ) AIR & LIQUID SYSTEMS CORP. et al., ) ) Defendants ) )

Defendant Union Carbide Corporation moves, pursuant to M.R. Civ. P. 12(b)(6), to

dismiss the three-count complaint filed by Plaintiff Naomi B. McKinnon, individually and on

behalf of the Estate of Charles L. McKinnon, on ground that the action is barred by the statute of

limitations. Plaintiff has not filed an opposition to the motion.

Plaintiff filed her Complaint on April 12, 2013, in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14 M.R.S. § 221 (2012) (Count II); and wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R.S. § 2-804 (2012), (Count III). The Complaint

asserts that while working in various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Campi. § II,~~ 2, 5-6, 15.) Although the Complaint identifies

Mr. McKinnon as "the Decedent" and is brought in the name of his estate, the Complaint does

not identify the date of his death or the discovery date of any asbestos-related diseases. See Bernier v. Raymark Indus. Inc., 516 A.2d 534, 542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transfer to the Business and Consumer Court

on May 24,2013.

A motion to dismiss pursuant to M.R. Civ. P. l2(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 (Me. 1996) (quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint in the

light most favorable to the plaintiff to determine whether it sets forth elements of a cause of

action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." ld.

Although pure motion to dismiss practice is generally limited to a consideration of the pleadings,

"official public documents, documents that are central to the plaintiff's claim, and documents

referred to in the complaint may be properly considered on a motion to dismiss ... when the

authenticity of such documents is not challenged." Moody v. State Liquor Comm'n, 2004 ME

20,' 20,843 A.2d 43.

Defendant asse1ts that the date of the Decedent's death is April 13,2007. The record in

this case supports that Mr. McKinnon died on April 13, 2007, from metastatic Iung cancer, the

onset of which was l 0 months before his death .1 Defendant asserts, and the Court agrees, that

the date of death and the onset of Mr. McKinnon's disease forecloses this action regardless of

whether the court applies the general six-year statute of limitations, see 14 M.R.S. § 752 (2012)

("All civil actions shall be commenced within 6 years after the cause of action accrues and not

1 Defendants Ingersoll-Rand Company and The Fairbanks Company atlached a certified copy of Mr. McKinnon's North Carolina death certificate to their motion to dismiss. Because the death certificate confirms the date of death as asserted by Union Carbide Corporation, and because Plaintiff has not opposed or countered that date of death, the Court considers the death certificate in the present motion as an official public record. See Moody v. State Liquor Comm '11, 2004 ME 20,9 20,843 A.2d 43.

2 afterwards"), or the two-year statute of limitations of the Wrongful Death Statute, see 18-A

M.R.S. § 2-804(b) ("An action under this section must be commenced within 2 years after the

decedent's death.").

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A .2d at 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendant's Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendant.

Pursuallt to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

the docket by reference.

Date: I 1/J, }f]

Coplossenl Yla MaH_ ~S j 3 Entered on tho Docket: '1 ~

3 STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD-CV-13-2~/ , J 0r A) c-- c<{ !h - 'l 151:' ~) '3 I

) NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (Goulds Pumps, Inc. ) v. ) ) AIR & LIQUID SYSTEMS CORP. et al., ) ) Defendants ) )

Defendant Goulds Pumps, Inc. moves, pursuant to M.R. Civ. P. l2(b)(6), to dismiss the

three-count complaint filed by Plaintiff Naomi B. McKinnon, individually and on behalf of the

Estate of Charles L. McKinnon, on ground that the action is barred by the statute of limitations.

Plaintiff has not filed an opposition to the motion.

Plaintiff filed her Complaint on April 12, 2013, in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14M .R.S. § 221 (2012) (Count II); and wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R.S. § 2-804 (2012), (Count Ill). The Complaint

asserts that while working in various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Campi. § II,~~ 2, 5-6, 15.) Although the Complaint identifies

Mr. McKinnon as "the Decedent" and is brought in the name of his estate, the Complaint does

not identify the date of his death or the discovery date of any asbestos-related diseases. See Bernier v. Raymark Indus. Inc., 516 A.2d 534, 542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transfer to the Business and Consumer Court

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 {Me. 1996) {quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint in the

light most favorable to the plaintiff to determine whether it sets fo1th elements of a cause of

action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." !d.

Although pure motion to dismiss practice is generally limited to a consideration of the pleadings,

"official public documents, documents that are central to the plaintiff's claim, and documents

referred to in the complaint may be properly considered on a motion to dismiss ... when the

authenticity of such documents is not challenged." Moody v. State Liquor Comm'n, 2004 ME

20, ~ 20,843 A.2d 43.

Defendant asserts that the date of the Decedent's death is April 13, 2007. The record in

tllis case supports that Mr. McKinnon died on April 13,2007, from metastatic lung cancer, the

onset of which was 10 months before his death.' Defendant asserts, and the Court agrees, that

the date of death and the onset of Mr. McKinnon's disease forecloses this action regardless of

whether the court applies the general six-year statute of limitations, see 14 M.R.S. § 752 (2012)

("All civil actions shall be commenced within 6 years after the cause of action accrues and not

1 Defendants Ingersoll-Rand Company and The Fairbanks Company attached a certified copy of Mr. McKinnon's North Carolina death certificate to their motion to dismiss. Because the death certificate confirms the date of death as asserted by Goulds Pumps, Inc., and because Plaintiff has not opposed or countered that date of death, the Court considers the death certificate in the present motion as an official public record. See Moody v. Stare Liquor Comm '11, 2004 ME 20, Y20,843 A.2d 43.

2 afterwards"), or the two-year statute of limitations of the Wrongful Death Statute, see 18-A

M.R.S. § 2-804(b) ("An action under this section must be conunenced within 2 years after the

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A .2d at 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendant's Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendant.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

Date: ( jtJ. };3

3 STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland ,. J DocketNo.: BCD-CV-13-21 /_.. . r--1 (y _ /,I ,/Vl .- 7/1 I./fA{ r ' >/. 2 0 JJ ) NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (Gardner Denver, Inc.) v. ) ) AIR & LIQUID SYSTEMS CORP. et at., ) ) Defendants ) )

Defendant Gardner Denver, Inc. moves, pursuant to M.R. Civ. P. 12(b)(6), to dismiss the

three-count complaint filed by Plaintiff Naomi B. McKinnon, individually and on behalf of the

Estate of Charles L. McKinnon, on ground that the action is barred by the statute of limitations.

Plaintiff filed her Complaint on April 12,2013, in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14 M.R.S. § 221 (2012) (Count II); and wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R.S. § 2-804 (2012), (Count III). The Complaint

asserts that while working in various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Campi. § II, ' ' 2, 5-6, 15 .) Although the Complaint identifies

Mr. McKinnon as "the Decedent" and is brought in the name of his estate, the Complaint does

not identify the date of his death or the discovery date of any asbestos-related diseases. See Bernier v. Raymark Indus. Inc., 516 A.2d 534, 542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transfer to the Business and Consumer Court

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 (Me. 1996) (quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint in the

light most favorable to the plaintiff to determine whether it sets forth elements of a cause of

action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." /d.

Although pure motion to dismiss practice is generally limited to a consideration of the pleadings,

"official public documents, documents that are central to the plaintiff's claim, and documents

referred to in the complaint may be properly considered on a motion to dismiss ... when the

authenticity of such documents is not challenged." Moody v. State Liquor Comm'n, 2004 ME

Defendant asset1s that the date of the Decedent's death is April 13, 2007. The record in

this case supports that Mr. McKinnon died on April 13, 2007, from metastatic lung cancer, the

onset of which was 10 months before his death. 1 Defendant asserts, and the Court agrees, that

the date of death and the onset of Mr. McKinnon's disease forecloses this action regardless of

whether the court applies the general six-year statute of limitations, see 14 M.R.S. § 752 (2012)

("All civil actions shall be commenced within 6 years after the cause of action accmes and not

1 Defendancs Ingersoll-Rand Company and The fairbanks Company attached a certified copy of Mr. McKinnon's North Carolina death certificate to their motion to dismiss. Because the death certificate confirms the dale of death as asserted by Gardner Denver, Inc., and because Plaintiff has not opposed or countered that date of death, the Court considers che death certificale in the present motion as an official public record. See Moody v. State Liquor Comm'n, 2004 ME 20,, 20,843 A.2d 43.

2 afterwards"), or the two-year statute of limitations of the Wrongful Death Statute, see 18-A

M.R.S. § 2-804(b) ("An action under this section must be commenced within 2 years after the

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A .2d at 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendant's Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendant.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

aine Business & Consumer Court

3 STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Do.cket No.: BCD-CV-13-21 .1 .z..

) _I (Jc N - UA{}'I 7/15 tf71-" ,. / . 1 NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (Ingersoll-Rand Company and v. ) The Fairbanks Company) ) AIR & LIQUID SYSTEMS CORP. et al., ) ) Defendants ) )

Defendants Ingersoll-Rand Company and The Fairbanks Company move, pursuant to

M.R. Civ. P. 12(b)(6), to dismiss the three-count complaint filed by Plaintiff Naomi B.

McKinnon, individually and on behalf of the Estate of Charles L. McKinnon, on ground that the

action is barred by the statute of limitations. Plaintiff has not filed an opposition to the motion.

Plaintiff filed her Complaint on April 12, 2013, in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14 M.R.S. § 221 (2012) (Count II); and wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R.S. § 2-804 (2012), (Count III). The Complaint

asserts that while working in various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Compl. § II,~~ 2, 5-6, 15.) Although the Complaint identifies

Mr. McKinnon as "the Decedent" and is brought in the name of his estate, the Complaint does

not identify the date of his death or the discovery date of any asbestos-related diseases. See Bemier v. Raymark Indus. Inc., 516 A.2d 534,542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transfer to the Business and Consumer Court

on May 24, 2013.

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 (Me. 1996) (quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint in the

light most favorable to the plaintiff to determine whether it sets forth elements of a cause of

action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." !d.

Although pure motion to dismiss practice is generally limited to a consideration of the pleadings,

"official public documents, documents that are central to the plaintiff's claim, and documents

referred to in the complaint may be properly considered on a motion to dismiss ... when the

authenticity of such documents is not challenged." Moody v. State Liquor Comm'n, 2004 ME

Defendants assert that the date of the Decedent's death is April 13,2007. The certified

death certificate attached to Defendants' motion, which the Court considers as an official public

record, see id., confirms that Mr. McKinnon died on April 13,2007, from metastatic lung cancer,

the onset of which was 10 months before his death. Defendants assert, and the Court agrees, that

the date of death and the onset of Mr. McKinnon's disease forecloses this action regardless of

whether the court applies the general six-year statute of limitations, see 14 M.R.S. § 752 (2012)

("All civil actions shall be commenced within 6 years after the cause of action accrues and not

afterwards"), or the two-year statute of limitations of the Wrongful Death Statute, see 18-A

2 M.R.S. § 2-804(b) ("An action under this section must be commenced within 2 years after the

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A .2d at 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendants' Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendants.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

Date: ,;,;J ju

- ....... _,~!2 Coplos sent via Mall_ e · ly

3 STATE OF MAINE BUSINESS AND CONSUMER COURT I CUMBERLAND, ss Location: Portland Docket No.: BCD-CV-I~-1 J \JL.N ~ UJLrf'l·ljJGtfJI} ) NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (Flowserve US Inc.) V. ) ) AIR & LIQUID SYSTEMS CORP. et al., ) ) Defendants ) )

Defendant Flowserve US Inc. moves, pursuant to M.R. Civ. P. 12(b)(6), to dismiss the

three-count complaint filed by Plaintiff Naomi B. McKim1on, individually and on behalf of the

Estate of Charles L. McKinnon, on ground that the action is barred by the statute of limitations.

Plaintiff filed her Complaint on April 12, 2013, in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14 M.R.S. § 221 (2012) (Count II); and wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R.S. § 2-804 (2012), (Count Ill). The Complaint

asserts that while working in various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Compl. § II, 11112, 5-6, 15.) Although the Complaint identifies

Mr. McKinnon as "the Decedent" and is brought in the name of his estate, the Complaint does

not identify the date of his death or the discovery date of any asbestos-related diseases. See Bernier v. Raymark Indus. Inc., 516 A.2d 534,542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transfer to the Business and Consumer Court

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Comm. Sclt. Dist., 683 A.2d 502, 503 (Me. 1996) (quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint in the

light most favorable to the plaintiff to determine whether it sets forth elements of a cause of

action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." ld.

Although pure motion to dismiss practice is generally limited to a consideration of the pleadings,

"official public documents, documents that are central to the plaintiff's claim, and documents

referred to in the complaint may be properly considered on a motion to dismiss ... when the

authenticity of such documents is not challenged." Moody v. State Liquor Comm'n, 2004 ME

Defendant asserts that the date of the Decedent's death is April 13,2007. The record in

this case supports that Mr. McKinnon died on April 13,2007, from metastatic lung cancer, the

onset of which was 10 months before his death. 1 Defendant asset1s, and the Court agrees, that

the date of death and the onset of Mr. McKinnon's disease forecloses this action regardless of

whether the court applies the general six-year statute of limitations, see 14 M.R.S. § 752 (2012)

("All civil actions shall be commenced within 6 years after the cause of action accrues and not

1 Defendants Ingersoll-Rand Company and The Fairbanks Company attached a certified copy of Mr. McKinnon's North Carolina death certificate to their motion to dismiss. Because the death certificate confirms the date of death as asserted by Flowserve US Inc., and because Plaintiff has not opposed or countered that date of death, the Court considers the death certificate in the present motion as an official public record. See Moody v. Stare Liquor Comm'n, 2004 ME 20,' 20,843 A.2d 43.

2 afterwards"), or the two-year statute of limitations of the Wrongful Death Statute, see 18-A

M.R.S. § 2-804(b) ("An action under this section must be commenced within 2 years after the

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A.2d at 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendant's Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendant.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

Date: I (1:LjJ 3

3 ./

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND,ss Location: Portland Docket No.: BCD-CV-13-21 /, . / "I , ',,.JCIV ·'- ~~AA m--- 7; 1:5/.L~; 1 7 3 ) NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (CBS Corporation) v. ) ) AIR & LIQUID SYSTEMS CORP. et al., ) ) Defendants ) )

Defendant CBS Corporation moves, pursuant to M.R. Civ. P. l2(b)(6), to dismiss the

three-count complaint filed by Plaintiff Naomi B. McKinnon, individually and on behalf of the

Estate of Charles L. McKinnon, on ground that the action is barred by the statute of limitations.

Plaintiff filed her Complaint on April 12, 2013, in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14 M.R.S. § 221 (2012) (Count II); and wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R.S. § 2-804 (2012), (Count III). The Complaint

asserts that while working in various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Compl. § II,'' 2, 5-6, 15.) Although the Complaint identifies

Mr. McKinnon as "the Decedent" and is brought in the name of his estate, the Complaint does

not identify the date of his death or the discovery date of any asbestos-related diseases. See Bernier v. Raymark lndus.lnc., 516 A.2d 534, 542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transfer to the Business and Consumer Court

A motion to dismiss pursuant to M .R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 (Me. 1996) (quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint in the

light most favorable to the plaintiff to determine whether it sets forth elements of a cause of

action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." /d.

Although pure motion to dismiss practice is generally limited to a consideration of the pleadings,

"official public documents, documents that are central to the plaintiff's claim, and documents

referred to in the complaint may be properly considered on a motion to dismiss ... when the

authenticity of such documents is not challenged." Moody v. State Liquor Comm'n, 2004 ME

Defendant asserts that the date of the Decedent's death is April 13,2007. The record in

this case supports that Mr. McKinnon died on April 13, 2007, from metastatic lung cancer, the

onset of which was 10 months before his death. 1 Defendant asserts, and the Com1 agrees, that

the date of death and the onset of Mr. McKinnon's disease forecloses this action regardless of

whether the court applies the general six-year statute of limitations, see 14 M.R.S. § 752 (2012)

("All civil actions shall be commenced within 6 years after the cause of action accrues and not

1 Defendants Ingersoll-Rand Company and The Fairbanks Company attached a certified copy of Mr. McKinnon's North Carolina death certificate to their motion 10 dismiss. Because the death certificate confirms the dare of death as asserted by CBS Corporation, and because Plaintiff has no! opposed or countered that dale of death, the Court considers the death certificate in the present motion as an official public record. See Moody v. State Liquor Comm '11, 2004 ME 20,9 20,843 A.2d 43.

2 afterwards"), or the two.year statute of limitations of the Wrongful Death Statute, see 18-A

M.R.S. § 2-804(b) ("An action under this section must be commenced within 2 years after the

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A .2d at 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendant's Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendant.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

Date: 7(/J../tJ

-~~~ Entjll'e(l on the Docket: '/ / Copies senl via MaR_~

3 STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland ../ Dock.· ~t No.: BCD-CV-13 21 1 uc rJ -c LJl (}\---; )!)/;JJI3 0 ) 1 NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (Aumra Pump Company, Foster Wheeler v. ) Energy Corporation, Georgia Pacific, LLC, ) lmo Industries, Inc., and Warren Pumps, Inc. ) AIR & LIQUID SYSTEMS CORP. et al., ) ) Defendants ) )

Defendants Aurora Pump Company, Foster Wheeler Energy Corporation, Georgia

Pacific, LLC, Imo Industries, Inc., and Warren Pumps, Inc. move, pursuant to M.R. Civ. P.

12(b)(6), to dismiss the three-count complaint filed by Plaintiff Naomi B. McKinnon,

individually and on behalf of the Estate of Charles L. McKinnon, on ground that the action is

barred by the statute of limitations. Plaintiff bas not filed an opposition to the motion.

Plaintiff filed her Complaint on April 12, 2013, in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14 M.R.S. § 221 (2012) (Count II); and wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R.S. § 2-804 (2012), (Count III). The Complaint

asserts that while working in various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Campi. § II,'' 2, 5-6, 15.) Although the Complaint identifies

Mr. McKinnon as "the Decedent" and is brought in the name of his estate, the Complaint does not identify the date of his death or the discovery date of any asbestos-related diseases. See

Bernier v. Raymark Indus. Inc., 516 A.2d 534, 542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transfer to the Business and Consumer Court

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 (Me. 1996) (quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint in the

light most favorable to the plaintiff to determine whether it sets forth elements of a cause of

action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." /d.

Although pure motion to dismiss practice is generally limited to a consideration of the pleadings,

"official public documents, documents that are central to the plaintiff's claim, and documents

referred to in the complaint may be properly considered on a motion to dismiss ... when the

authenticity of such documents is not challenged." Moody v. Swte Liquor Comm'n, 2004 ME

20, 1f 20, 843 A .2d 43 .

Defendants assert that the date of the Decedent's death is April 13, 2007. The record in

this case supports that Mr. McKinnon died on April 13,2007, from metastatic lung cancer, the

onset of which was 10 months before his death. 1 Defendants assert, and the Court agrees, that

the date of death and the onset of Mr. McKinnon's disease forecloses this action regardless of

whether the com1 applies the general six-year statute of limitations, see 14 M.R.S. § 752 (2012)

1 Defendants Ingersoll-Rand Company and The Fairbanks Company attached a certified copy of Mr. McKinnon's North Carolina death certificate to their motion to dismiss. Because the death certificate confirms the date of death as asserted by the Defendants, and because Plaintiff has not opposed or countered that date of deatb, the Court considers the death certificate in the present motion as an official public record. See Moody v. Slate Liquor C0111111 '11, 2004 ME 20, 9 20, 843 A.2d 43.

2 ("All civil actions shall be commenced within 6 years afte1· the cause of action accrues and not

afterwards"), or the two-year statute of limitations of the Wrongful Death Statute, see 18-A

M.R.S. § 2-804(b) ("An action under this section must be commenced within 2 years after the

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A .2d at 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendants' Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendants.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

En!emd on Ihe Docket: '1/r$'J,_ Copies sent via Mall_ Eleclronlcally X

3 I STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD-CV-13-2l,r j_ 0(.tV - . C,1 .·n- 7J':z5(2 or> ) NAOMI B. McKINNON, Individually and ) as Personal Representative for the ) ESTATE OF CHARLES L. McKINNON, ) ) Plaintiff, ) DECISION AND ORDER ) (Motion for Summary Judgment/Defendant v. ) Tri-State Packing Supply Co.) ) AIR & LIQUID SYSTEMS CORP. et at., ) ) Defendants ) )

This matter is before the Court on Defendant Tri-State Packing Supply Co.'s Motion for

Summary Judgment. In this aclion, Plaintiff contends that Charles McKinnon (the Decedent)

was exposed to asbestos, .which ultimately. caused Ws death, -Through ·il8 motion 1 Defendnnt - -- ·-· ·-

asserts that Plaintiff's claim is barred by the statute of limilnlions, nnd that Plaintiff cannot

establish the required relationship between Defendant's product and the Decedent's exposure to

asbestos. Defendant riled its motion on June 26, 2013. Defendant did not rile an opposition to

the motion and, therefore, has waived opposition to the motion. M.R. Civ. P. 56(c); M.R. Civ. P.

7(c)(3).

Summary judgment is appropriate where there are no genuine issues of material fact and

the moving party is entitled to judgment ns n matter of law. M.R. Civ. P. 56(c); Lev/ue v. R.B.K.

Caly Corp., 2001 ME 77, ' 4, 770 A.2d 653, 655. An issue of "fact exists when there is

sufficient e\'idence to require a fact-finder to choose between competing versions of the tntth at

trial." lnkel v. Livingston, 2005 ME 42, Y4, 869 A.2d 745,747 (quoting Lever v. Acadia HojJJ. Corp., 2004 ME35, 9 2, 845 A.2d 1178, 1179). Any ambiguities "must be resolved in favot· of

the non-moving party." Beauflett v. Tile Aube Corp., 2002 ME 79, Y 2, 796 A.2d 683, 685

(citing Green v. Cessna Aircraft Co., 673 A.2d 216, 218 (Me. 1996)). To withstand a

defendant's motion for summary judgment, "the plaintiff must establish a prima facie case for

each element of her cause of action. lf a plaintiff does not present sufficient evidence on the

essential elements ... the defendant is entitled to a summary judgment!' Blake v. State, 2005

MB32, Y4, 868 A.2d 234,237 (quotation marks omitted).

The summary judgment record establishes that the Decedent was diagnosed with lung

cancer in June 2006, and died on April 13, 2007. Plaintiff filed the Complaint in this action on

April 11, 2013.. Defendant asserts, and the Court agree:;, that the date of death and the onset of

Mr. McKinnon's disease forecloses this action regardless of whether the Court applies the

general six-yeat· statute of limitalions, see 14 M.R.S. § 752 (2012) ('cAll civil actions shall be

statute of limitations of the Wrongful Death StaMe, see 18-A M.R.S. § 2-804(b) C'An action

under this section must be commenced within 2 years after the decedent's death.").

The Court, therefore, grants Defendant's Motion for Summary Judgment, and enters

judgment in favor of Defendant Tri-State Packing Supply Co. and against Plaintiff. 1

Pursuant to M.R. Civ. P. 79(n), the Clerk shall incorporate this Decision and Order into

Date: 1 {J-f /t3 siness & Consumer Court

1 Because the Court has concluded that the record estnblishos that lhc Plaintiff's claim is barred by the statute of limHallons, the Court does uot address Plaintiff's other Argwncnts in support of ils request for smumary judgmcm.

1 1- ~ I~ 2

Mall_~ ,.... ..... 1Jod

) Plaintiff, ) DECISION AND ORDER ) (General Electric Company) v. ) ) AIR & LIQUID SYSTEMS CORP. et al., ) ) Defendants ) )

Defendant General Electric Company moves, pursuant to M.R. Clv. P. 12(b)(6), to

dismiss the three-count complaint flied by Plaintiff Naomi B. McKinnon, Individually and on

behalf of the Estate of Chades L. McKinnon, on ground that the action is barred by the statute of

limitations. Plaintiff ltas not filed an opposition to the motion.

Plaintiff filed her Complaint on April 121 2013,in Cumberland County Superior Court,

alleging three causes of action against all named Defendants: negligence (Count I); strict

products liability pursuant to 14 M.R,S. § 221 (2012) (Count II); Rl)d wrongful death pursuant to

Maine's Wrongful Death Statute, 18-A M.R,S. § 2-804 (2012), (Count III). The Complaint

assea·ts that while working Jn various positions for various employers from the late 1940s until

1993, Charles L. McKinnon (the Decedent) was exposed to asbestos and contracted lung cancer

and asbestos-related diseases. (Compl. § II I~~ 2, 5-6, 15 .) Although the Complaint identifies

Mr. McKinnon as 11 the Decedent" and is brought in the name of his estate, the Complaint does

not Identify the date of his death or the discovery date of any asbestos-related diseases. See Bemler v. Raymark Indus. Inc., 516 A.2d 534, 542-43 (Me. 1986) (declaring that the actionable

event in asbestos exposure cases is the date of the manifestation of asbestos related disease, not

the date of exposure). The matter was approved for transkr to the Business and Consumer Court

A motion to dismiss pursuant to M.R. Clv. P. 12(b)(6) "tests the lagal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted!' Sllaw v. S. Aroostook Comm. Scli. Dist ..• 683 A.2d 502, 503 (Me. 1996) (quotation

marks omitted). When reviewing a motion to dismiss, this court examines "the complaint In the

light most favorable to the plaintiff to determine whether It sets forth elements of a cause of

action or alleges facts that would entltle the plaintiff to relief pursuant to some legal theory.n /d.

Although pure motion to dismiss practice Is generally limited to a consideration of the pleadings,

nofflcial public documents, documents that are central to the plaintiff•s claim, and documents

referred to ln the complaint may be properly considered on a motion to dismiss ... when the

atathentlcity of such documents Is not challenged!' Moody v. State Liquor Comm'n, 2004 MB

20,!20,843 A,2d43.

Defendant asserts that the date of the Decedent's death is Aprll 13. 2007. The recot'd in

this case supports that Mr. McKinnon died on April 13,2007, from metastatic lung cancer, the

onset of which was 10 months before Ills deRth. 1 Defendant asserts, and the Court agrees, that

the date of death and the onset of Mt·. McKinnon's disease forecloses this action regardless of

whethet· the court applies the general slx-yeat· statute of ihnitatlons, see 14 M.R.S. § 752 (2012)

e'AII civil actlons shall be commenced within 6 years after the cause of action acca11es and not

1 Defendants Jngcrsoii-Rnnd Company and The Falrbttnks Company nllached a cerllfled copy of Mr. McKinnon's North Cftrollna death cerllflcate to tholr motion to dismiss. Becn1tse the death certlncnte conOrms tho dnlo of death as asserted by General Blectrlc Company, and because Plaintiff has not opposed or countered that date or death, tho Court considers the death eorllflcatc ln the present motion as an official public record. See Mood-, v. State Liquor Conrm'11, 2004MB 20,9 20,843 A.2d 43. .

2 afterwa1·ds"), Ol' tho two-year statute of limitations of the Wrongful Death Statute, see 18·A

M.R.S. § 2-804(b) ("An action under this section must be commenced within 2 years after the

Accordingly, because there is no set of facts that would entitle Plaintiff to relief, see

Shaw, 683 A.2d nt 503, and in light of the fact that Plaintiff has not filed any opposition to the

motion, the Court GRANTS Defendant's Motion to Dismiss all counts of Plaintiff's Complaint.

The Court, therefore, dismisses Plaintiff's Complaint against Defendant.

Pursuant to M.R. Clv. P. 79(a), the Clerk shall incorporate this Decision and Order Into

the docket by refe1·ence.

.. ,.__

l:nleroo on tho Ooclcet· Copies sent via Mall~ U·l3 E @Cally~

3 BCD-CV-13-21 Naomi McKinnon v. Air & Liquid Systems Corp et al Attorney List Counsel for Plaintiff: Naomi McKinnon (Estate of Charles) Thomas Scott (local counsel)/ Erik Karst (out of state counsel) Basham & Scott, LLC, 4 Main St. Brunswick ME 04011

Air & Liquid Systems David McConnell. Esq. Perkins Thompson One Canal Plaza Ste 900 Portland ME 04112-0426

Armstrong International Francis Lynch, Esq. Cetrulo & Capone Two Seaport Lane Boston MA 02110

Aurora Pump, Foster Wheeler, Gardner Denver, Flowserve Corp., IMO Industries, Warren Pumps & Georgia Pacific Steven Wright, Esq. Wright & Associates 615 Congress St, Ste 15 Portland ME 041 01

CBS Corporation Elizabeth Stouder, Esq. Richardson, Whitman Large & Badger 465 Congress St Portland ME 04112-9545

Flowserve Corp. B. Forsberg, Esq. Bernstein Shur 100 Middle St Portland ME 041 04

General Electric Kara Lynch, Esq. McCarter & English Cityplace I 185 Asylum St., 36ht Floor Hartford CT 061 03 Goulds Pumps Jeffrey Edwards, Esq. Preti Flaherty One City Center Portland ME 04112

Honeywell Int'l Stephen Whiting, Esq. The Whiting Law Firm 75 Pearl St, Ste 207 Portland ME 041 01

Ingersoll Rand & The Fairbanks Company Heidi Bean, Esq. Verrill Dana One Portland Square Portland ME 04112

Tri State Packing Christine Kennedy-Jensen, Esq. 103 Exchange St Portland ME 04112

Union Carbide Katherine Perry, Esq. Adler Pollock & Sheehan 175 Federal St, 1oth Floor Boston MA 02110