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STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss . DOCKET NO. BCD-CV-2015-079 v"
SHARON RICKARDS , individually, ) and as personal representative of the ) Estate of BARRY RICKARDS, ) ) Plaintiff, ) COMBINED ORDER ON ) DEFENDANTS' MOTIONS FOR V. ) SUMMARY JUDGMENT ) 3M COMPANY ,·et al., ) ) Defendants. )
This matter comes before the Court on Defendants ArvinMeritor, Inc. ("ArvinMeritor"),
N .H. Bragg and Sons , Inc. ("Bragg"), and Dana Companies, LLC's ("Dana") motions for summary
judgment.• M.R . Civ. P . 56. Plaintiff opposes the motion. The Court heard oral argument on the
three pending motions on March 28, 2018. Attorney Tony Sbarra, Esq. appeared for ArvinMeritor,
Attorney Steven Wright, Esq. appeared for Bragg, and Attorney Kyle Bjornlund, Esq . appeared
for Dana. Plaintiff was represented by Donald Blydenburgh, Esq.
BACKGROUND
This lawsuit arises out of Barry Rickards ' alleged exposure to asbestos, which was
allegedly a direct and proximate cause of his malignant mesothelioma . (PJ's Compl. irn 3, 6.) Mr .
Rickards passed away during the pendency of this lawsuit; his widow Sharon Rickards has been
substituted as Plaintiff in her capacity as the personal representative of Mr. Rickards' estate. Ms.
llickards alleges that she too suffered damages as a result of Mr. Rickards' incapacitation and
death; she thus brings suit individually to recover for those damages. (PJ's Comp!.~~ 18-19.)
' Also pending is Plaintiff's recently fi led motion for leave to addend Ex hibit G lo Plnintiff 's opposition to Defendant ArvinMeri tor's moti on for summary j udgment wi th authenticating affidavit ("motion to addend"), which was fi led June 4, 2018. Defendant ArvinMerito r opposed the motion and Plain1 iff timely replied. Pursuant to its discretionary authorily, the Court mies on the motion to addcncl wi thout hearing. M.R. Ci v. P. 7(b)(7) .
1 Mr. Rickards is alleged to have been exposed to asbestos for many years, beginning in
approximately the mid-1970s. (Pl's Compl.1[ 3 .) At different periods of time, Mr. Rickards worked
as an automobile, vehicle, heavy equipment, and machinery mechanic or around others who
performed such work. (Pl' s Comp!. ~ 3 .) The Defendants who bring the instant motions were
suppliers or manufacturers for some of Mr. Rickards' employers and, in the case of Dana, also
supplied parts for Mr. Rickards' personal "shade tree" automotive work. (See PJ's Cornpl. ~ry 4, 5.)
Some of these parts allegedly included asbestos-containing components. On the instant motion the
Court is asked to determine whether there are genuine disputes of material fact regarding whether
Mr. Rickards was exposed to these Defendants' products or whether that exposure could have been
a proximate cause of his illness and death.
STANDARD OF REVIEW
Summary judgment is granted to a moving party where "there is no genuine issue as to any
material fact" and the moving party "is entitled to judgment as a matter of law .f, M.R. Civ. P.
56(c). "A material fact is one that can affect the outcome of the case, and there is a genuine issue
when there is sufficient evidence for a fact-finder to choose between competing versions of the
fact." Lougee Consen1ancy v. CityMortgage, Inc., 2012 ME 103, ~ 11, 48 A.3d 774 (quotation
omitted). A genuine issue exists where the jury would be required to "choose between competing
versions of the truth." MP Assocs. v. Liberty, 2001 ME 22, ~ 12, 771 A.2d 1040. To survive a
defendant's motion for summary judgment, the plaintiff must establish a prima facie case for every
element of the plaintiff's cause of action. See Savell, 2016 ME 139,, 18,147 A.3d 1179.
ANALYSIS
The Plaintiff's primary causes of action against all three Defendants are negligence and
strict products liability. (Pl 's Comp!.~, 10-14, 16-17 .) "Maine's strict liability statute, [14 M.R.S.
2 § 221], imposes Iiability on manufacturers and suppliers who market defective, unreasonably
dangerous products" and includes liability for defects based on the failure to warn of the product's
dangers. Bernier v. Raymark Indus., Inc., 516 A.2d 534,537 (Me. 1986).
"The essential elements of a claim for negligence are duty, breach, proximate causation,
and harm." Baker v. Farrand, 2011 ME 91, ~ 11, 26 A.3d 806. To ultimately prevail, a plaintiff
must demonstrate that "a violation of the duty to use the appropriate level of care toward another,
is a legal cause of harm to" the plaintiff because the defendant's "conduct [was] a substantial
factor in bringing about the harm." Spickler v. York, 566 A.2d 1385, 1390 (Me. 1993) (quoting
Wing v. Morse, 300 A.2d 491, 495-96 (Me. 1973)) (emphasis in original).
In Maharv. Sullivan & Merritt, Inc., BCD-CV-10-21, 2012 Me. Bus. & Consumer LEXIS
35, at *6-7 (Bus. & Consumer Ct. July 26, 2012), on a motion for summary judgment this Court
endorsed and followed the standard adopted in Campbell v. H.B. Smith Co., LINSC-CV-2004-57
(Me. Super. Ct., Lin. Cty., Apr. 2, 2007) (Gorman, J.). Under this standard, to establish a prima
facie case for negligence in asbestos-exposure cases, a plaintiff must demonstrate:
(1) medical causation-that the plaintiff's exposure to the defendant's product was a substantial factor in causing that plaintiff's injury and (2) product nexus-that the defendant's asbestos-containing product was at the site where plaintiff worked or was present, and that the plaintiff was in proximity to that product at the time it was being used ... a plaintiff must prove not only that the asbestos products were used at the workslte, but that the employee inhaled the asbestos from the defendant's product.
Id. at 7 (quoting 63 Am. Jur. 2d Products Liability§ 72). This Court thus held
that in order to avoid summary judgment, in addition to producing evidence of medical. causation, a plaintiff must establish the product nexus through competent evidence. In particular, a plaintiff must demonstrate (1) that the defendant's product
3 was at the [plaintiff's] work place, (2) that the defendant's product contained asbestos, and (3) that the plaintiff had personal contact with the asbestos from the defendant's product.
Mahar, 2012 Me. Bus. & Consumer LEXIS 35, at *8-9; see also Rumery v. Garlock Sealing
Techs., No. 05-CV-599, 2009 Me. Super. LEXIS 73, at *7-9, *8 n.4 (Apr. 24, 2009) (applying
standard announced in Campbell and analyzing cases to determine that while plaintiff's burden on
summary judgment is to demonstrate "personal contact," "whether the defendant's product was a
'substantial factor' in causing the plaintiff's damages is for the jury").
Although the Mahar standard has been consistently applied at the trial level since Campbell
was decided in 2007, the Law Court has not yet had occasion to explicitly adopt or reject the
standard. See Grant v. Foster Wheeler, LLC, 2016 ME 85, ~ 20, 140 A Jd 1242. As the Court noted
in Grant, "jurisdictions differ as to what amount of product exposure a plaintiff's evidence must
demonstrate to survive summary judgment." Id.~ 17. Cf. 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 Coming Corp., 782 F.2d 1156 (4th Cir. 1986)). ln this case,
all Defendants argue that Plaintiff bas failed to carry her burden under the less-burdensome Mahar
standard. See Grant, 2016 ME 85, ~ 20, 140 A.3d 1242.
I. ARVINMERITOR
A. Facts
Defendant ArvinMeritor is responsible for Rockwell-branded truck component parts. (Pl's
Mot. Summ. J. 1 n.1.) Rockwell was one of several suppliers who supplied International-branded
dump trucks with brake components, including asbestos-containing brake linings. (Def's Supp' g
S.M.F. ~~ 24-25, 27; Pl's Add'l S.M.F., 34.) Mr. Rickards worked at the Boise Cascade Paper
Mill (the "Paper Mill") in Rumford, Maine for two distinct periods. At the oral argument,
4 Plaintiff's counsel conceded that the only relevant time period here is from February 1982 to
February 1983. During this time, the Paper Mill owned five to seven International dump trucks.
(Def's Supp' g S .M.F., 9.) Mr. Rickards "assisted and observed" brake work done on these trucks,
including the replacement of asbestos-containing brake linings, during this period of employment.
(Def's Supp'g S.M.F. ~~ 5, 7, 10; Pl's Add'l S.M.F. ~ 32.) The extent of Mr. Rickards' exposure
during this period is uncertain because his job had him out of the garage much of the time. (Def's
Supp'g S.M.F. !~ 6-8.) Nonetheless, while ArvinMeritor disputes the extent of Mr. Rickards'
exposure, it is undisputed that he was exposed to "brake dust" in the garage from the International
trucks during his employment. (PJ's Add'! S.M.F., 32.)
The International trucks Mr. Rickards worked on had been at the Paper Mill "for a while"
before Mr. Rickards began working at the garage, and he did not know the manufacturer of the
brakes removed from these trucks. (Def's S upp'g S .M.F. ~, 11, 13 .) Mr. Rickards also did not know
who manufactured the brakes installed in the International dump trucks he worked on, and never
mentioned "Rockwell" during his testimony . (Pl's Supp'g S.M.F. ~~ 14-15.) Furthermore, Mr.
Rickards did not know the brand name, trade name, or manufacturer of the brake parts installed on
the vehicles in the Paper Mill garage, nor did he know what any of those brakes were made of.
(Def's Supp'g S .M.F. ~ 16.) Mr. Rickards testified that replacement parts used by mechanics in the
Paper Mill garage were purchased from Morrison Motors, an International dealership in Mexico,
Maine: (Pl's Add'! S .M.F. , 33 .) The Rockwell Master Customer List, which reflects potential
customers between the late 1960s and 1995, does not include the Paper Mill or Morrison Motors
during or preceding Mr. Rickards' employment.' (Def's Supp'g S.M.F. ~ 26.)
, Although ArvinMeritor "deni es" Pl's Add'I S.M.F.1/ 33, its denial is not directed at this assertion contained therein. (See Def's Opp'g S.M.F. ~ 33.) • As qualif ied by Pl aintiff, this fact' s probative value is severely undercut. (Pl's Opp'g S.M.F. Y26; see also PJ's Add'! S.M .f. ~ 39.) ArvinMeritor's corp~!ate rcpresenlative's own deposition testimony in prior litigation shows that
5 Mr. Rickards also testified that although some of the parts that he saw in the garage were
branded "International," those parts were not brakes. (Def's Opp'g S.M.F. ~ 33.) Notwithstanding
Mr. Rickard's lack of personal knowledge of who manufactured the brakes installed on the
International trucks, the dust of which he was indisputably exposed to, Plaintiff has proffered
documentary evidence to establish that the brakes were manufactured by Rockwell. (Pl's Add'l
S.M.F. ~~ 31, 34-40 see Pl's Bxs. F, G.) ArvinMerito11 denies that Rockwell brakes were ever
install ed on the International trucks at the Paper Mill and objects to much of Plaintiff's evidence
on the grounds that the exhibits containing it are inadmissible hearsay and/or irrelevant. (Pl's Reply
Mot. Summ. J. 1-2.)
B. Analysis
As a threshold matter, Plaintiff has met her burden of showing that Mr. Rickards had
personal contact with asbestos during his work at the Paper Mill. See Mahar, 2012 Me. Super.
LEXIS 129, at *8-9 . It is undisputed that Mr. Rickards worked at the Paper Mill from 1982 to 1983
and that at least some of the time was spent in the garage either observing or assisting in the
removal and replacement of brakes and that during this brake work Mr. Rickards was exposed to
brake dust. How this compares in intensity or duration to other instances of occupational exposure,
or how much of his time was spent in the garage versus out of the garage, is irrelevant at the
summary judgment stage under the Mahar standard. The Plaintiffs' burden is only to demonstrate
product nexus through "personal contact," and that burden has been met. To the extent that
ArvinMeritor is suggesting that Mr. Rickards' purported personal contact with asbestos-containing
beca use the M aster Customer Lisl does not reflect sales by authori zed dea lers, and dea lerships ty picall y purchased ori ginal equipment manufaclllrcr 's replacement parts fro m the truck manufacturer (i.e. International), the fact cannot su pport the proposition that Rockwell replacement parts were not used by the Paper M il I. (See Pl 's Ex. C, I 02: 13-23 , 103:21-104:13 .)
6 Rockwell brake parts was not a "substantial factor" in bringing about his asbestos-caused disease,
that is an argument for the jury. See Rumery, 2009 Me. Super. LEXIS 73, *8 .
Plaintiff has also met her burden at this stage of demonstrating that Rockwell sold asbestos
containing components and replacement parts to original equipment manufacturers ("OEM") for
International trucks and asbestos-containing brake assemblies to some aftermarket dealers . (Pl's
Add' I S .M.F. ~~ 34-35 .) If the brnke assemblies that Mr. Rickards encountered were indeed
supplied by Rockwell, Plaintiff has demonstrated that components of those brake assemblies
would have contained asbestos. (Pl's Add'l S.M.F. ~ 36.)' The only issue on this motion for
summary judgment is thus whether Plaintiff has met her burden of demonstrating that
ArvinMeritor supplied Rockw ell-branded brake components that contained the asbestos to which
Mr. Rickards was exposed during his employment at the Paper Mill . See Mahar, 2012 Me. Super.
LEXIS 129, at *8-9.
Much of Plaintiff's evidence on this point is objected to by ArvinMeritor. Specifically,
ArvinMeritor objects to Exhibit F (LexisNexis Maine Motor Vehicle Registrations for six
International Harvester vehicles), Exhibit G (Line Setting Tickets, ostensibly for five of the Paper
Mill's International-branded dump trucks), Exhibit H (technical specifications for several air brake
assemblies), Exhibit I (Material Safety Data Sheet from the Abex Corporation for multiple
"Identities," listed by number), Exhibit L (Deposition transcript of James Shuman, corporate
representative of Navistar, in In Re: Asbestos Litigation, C.A. Nos. 08C-10-I01 & 09C-07-252
(Del. Super. Ct.) dated April 15, 2011) Exhibit M (Deposition transcript of James Shuman,
corporate representative of Navistar, in In Re: Asbestos Litigation, C.A. No. NlOC-08-307 (Del.
· Al 1ho11 gh Lhis facl is denied by A rvinM eritor, the Court's rev iew of Plainti ff' s Exhibi rs J and O makes il reasonably clear that Rockwell brake assemblies woul d have con tained asbestos betw een l982 and 1983 . To che extent that there is any doubt on that point, th e inf erence must be made in favor of Pl aintiff. See, e .g., Lightfoot v. Sch. Admiti. Dist. No . 35, 2003 ME 24, ~ 6,8 16 A.2d 63.
7 Super. Ct.) dated June 1, 2011), and Exhibit N (International Truck and Engine Corporation's
Amended Objections and Responses to Plaintiffs' Master Interrogatories and Requests for
Production Propounded to Defendants in In Re: All Asbestos-Related Personal Injury or Death
Cases Filed or to Be Filed in Dallas County, Texas, e-served January 26, 2004). ArvinMeritor
objects to all of the above-listed exhibits on hearsay grounds. See M.R. Evid. 803, 804. (Def's
Reply Br. Mot. Summ. J. 1-2.) ArvinMeritor further objects to Exhibits F and G on the grounds
that they are irrelevant. See M.R. Evid.401, 402. (Id.)
Plaintiff filed her motion to addend Exhibit G on June 4, 2018. (See this Order at 1 n.l,
supra.) See Contractor's Crane Serv. v. CPM Constr'rs, 1999 Me. Super. LEXIS 142 at *1 n.1
(May 14, 1999); see also M.R. Civ. P. 56(e) ("The court may permit affidavits to be supplemented
....). ArvinMeritor opposes the motion, arguing that the motion should be denied for procedural
deficiencies and furthermore that the addendum would do nothing to remedy the exhibit's
irrelevancy. (Def's Opp. Mot. Addend.~~ 6, 9-18.) Plaintiff has not brought any motion with
regards to the remaining exhibits, although Plaintiff's counsel argued for the exhibits' admission
at the oral argument.
The Court grants Plaintiff's motion to addend. At the oral argument, Plaintiff's counsel
represented that the line setting tickets were self-authenticating as ancient documents pursuant to
M.R. Civ. P. 90l(b)(8) because they were obt,ained by him from the Wisconsin Historical Society
and that the Wisconsin Historical Society obtained the line setting tickets directly from
International. Moreover, Plaintiff claims that Exhibit G is self-authenticating to the extent that it
maintains the appearance, contents, substance, internal patterns, and other distinctive
characteristics of a line setting ticket. M.R. Evid. 901(b)(4). Plaintiff's motion to addend therefore
merely provides "additional foundational support for facts previously offered[.]" See City of
8 Augusta v . Me. Att'y Gen., 2008 ME 51,, 25,943 A.2d 582. The Court finds that the statements
included in Exhibit G are admissible notwithstanding the rule against hearsay as statements in
ancient documents under M.R. Evid. 803(16), its authenticity being established pursuant to M.R.
Evid. 901(b)(l),(4),(8).'
ArvinMeritor further claims that Exhibit G itself is inscrutable even if the Court considers
it. (Def's Opp. Mot. Addend~ 2, 6.) In her statement of material facts, Plaintiff titles Exhibit G
"Line setting tickets for trucks at the Paper Mill," and Plaintiff's counsel asserted that the line
setting tickets show that at least five of the six International trucks at the Paper Mill were equipped
with asbestos-containing Rockwell brake assemblies. (Pl 's Mot. Addend~ 1.) The Court agrees
with ArvinMedtor that Exhibit G is difficult to comprehend, but disagrees that it requires
additional testimony for elucidation. Plaintiff's counsel's interpretation of the line setting tickets
is sufficiently plausible that the Court is persuaded this is an issue of credibility and weight that
should be resolved by a jury.
ArvinMeritor next argues that even if the line setting tickets show how the International
trucks at the Paper Mill were equipped at the time of manufacture in 1977 or 1978, they are
irrelevant to the determination of how they were equipped in 1982 when Mr. Rickards encountered
them, (Def's Reply Mot. Summ J. 4.) The Court disagrees. Although it is not conclusive evidence
for the proposition that the brake assemblies ·Mr. Rickards encountered were Rockwell brake
assemblies, it does tend to make it more probable that they were. See M.R. Evid. 401.
· ArvinMeritor points out that the authenticating witness's affidavit suffers from certain technical deficiencies, as it is sworn "on information and belief" as well as personal knowledge. See M.R. Civ. P. 56(e). (Def's Opp. Mot. Addend ~ 18.) However, the affidavit opens with the promise that the statements therein arc made on personal knowledge. In context, it is clear that the statements in the affidavit crucial to establishing its authenticity are made on personal knowledge . ArvinMeritor also notes that the affidavit does not seem to include a jurat certificate signed by the officer who took the affidavit under oath. See id. (Id.) Nonetheless, as noted, even disregarding the affidavit, Exhibit G is self-authenticating pursuant to M.R. Evict. 90I(b)(4),(8) .
9 In any event, Plaintiff next argues that even if the brake assemblies on the International
trucks Mr. Rickards encountered were not the original brake assemblies, any replacement
assemblies would have nonetheless been supplied by Rockwell, the OEM. Notwithstanding Mr.
Rickards' testimony that the International-branded parts in the Paper Mill garage were not brakes
(see Def's Opp'g S.M.F. ~ 33), Plaintiff asserts that "Navistar"• acknowledges that its rebranded
replacement parts were manufactured by the same companies that manufactured the original
equipment installed on its chassis and that Navistar' s service manuals recommended the user
purchase from these brake suppliers because the user would only get the same high-quality
replacement parts by purchasing such brake parts from an International dealer. (PJ's Add'l S.M.F.
i 37 .) Plaintiff's evidence for this assertion is Exhibits L, M, and N. As noted above, ArvinMeritor
argues these exhibits are inadmissible hearsay and no exception applies. See M.R. Evid. 801(c),
802. At the oral argument, counsel for Plaintiff argued that the exhibits are highly reliable, but did
not argue that the statements therein are not hearsay, or that an exception to the rule against hearsay
app Iles. See M.R. Evid. 801(d), 803, The exhibits therefore do not "set forth such facts as would
be admissible in evidence" in contravention of M.R. Civ. P. 56(e).
However, as Plaintiff's counsel pointed out at the oral argument, there is nonetheless
admissible evidence in the record that supports the proposition that Rockwell supplied the OEM
replacement brake assemblies that were installed on the Paper Mill's International-branded trucks.
(See Pl's Ex.Cat 37:21-38:1; 93:10-12; 105:23-106:10; Def's Ex. 3 ~ 5.) ArvinMeritor argues
that this evidence, at most, identifies that Rockwell was one supplier of brake assemblies for
International trucks. As such, ArvinMeritor claims that Plaintiff has failed to carry her burden
· Navistar is apparently a successor corporation of International. (See Pl 's Ex. L.)
10 under Mahar to demonstrate that the brake assemblies Mr. Rickards encountered were supplied by
Rockwell.
The Court disagrees. There is sufficient circumstantial evidence for a reasonable factfinder
to infer that the replacement brakes on these International trucks were supplied by Rockwell. See,
e.g. Lightfoot, 2003 ME 24, f 6,816 A.2d 63 (reasonable inferences made in favor of nonmovant
on summary judgment), see also Rumery, 2009 Me. Super. LEXIS 73, *8 ("direct or
circumstantial" evidence of personal contact sufficient). Essentially, this Court would be weighing
the evidence-the job of the factfinder-if it were to decide that Mr. Rickards' testimony at his
deposition establishes that the replacement brake assemblies were not provided by Rockwell
notwithstanding the evidence cited by Plaintiff showing that Rockwell probably did supply the
replacement brake assemblies. Cf. Mahar, No. BCD-CV-10-21, 2012 Me. Bus. & Consumer
LEXIS 35, * 10 (July 26, 2012) (summary judgment properly entered in favor of defendant where
"there is not direct or circumstantial evidence from which a fact finder could reasonably conclude
that the [dJecedent was exposed to [defendant's] product that contained asbestos"). ArvinMeritor's
argument regarding the weakness of Plaintiff's circumstantial case must be made to the jury.
By reason of the foregoing, ArvinMeritor's motion for summary judgment is DENIED.
II. BRAGG
Bragg is a supplier of industrial, automotive, and welding products. (Def's Supp'g S.M.F.
~ 14.) Bragg supplied auto parts for Clifford Lowe, d/b/a/ Lowe's Sand and Gravel (Lowe's) in
Sumner, Maine while Mr. Rickards was employed there in 1986 and 1987. (Def's Supp'g S.M.F.
~~ 5, 9-13.) Mr. Rickards worked as a mechanic at Lowe's, maintaining Mr. Lowe's dump trucks
as well as servicing customers' automobiles. (Def's Supp'g S.M.F. ~~ 5-8.) ·Some of this work
11 involved "brake jobs." (Def's Supp'g S.M.F. f 7.) Mr. Rickards testified that "a lot of times [the
brakes] were either Wagner or Bendix," and that they "mostly came" from Bragg. (Def's Supp'g
S .M.F. ~~ 9-22, 13 .) Mr. Rickards testified that other companies also supplied automotive parts to
Lowe's, but that he remembered that the Bendix brakes delivered to Lowe's came from Bragg.
(Def' s S upp'g S .M.F. ,, 10-11.) A former president of Bragg as well as Bragg's current president
(and former industrial products manager) submitted affidavits swearing that Bragg has never sold
or supplied Bendix or Wagner brakes or brake parts, and exclusively sold automotive brake parts
manufactured by Raybestos. (Def's Supp'g S .M.F. ! 15-16; Def's Exs, 5-6.)
Bragg downplays the extent of Mr. Rickards' exposure to asbestos at Lowe's as compared
to the rest of his career; as noted above, this argument is not relevant at the summary judgment
stage under the Mahar standard. (Def's Mot. Sumrn. J. 6-7.) See Mahar, 2012 Me. Super. LEXIS
129, at *8-9; see also Rumery, 2009 Me. Super. LEXIS 73, *8. Bragg's principle argument is that
the evidence before the Court demonstrates that there is no genuine factual dispute that whatever
asbestos-containing brake components Mr. Rickards' may have been exposed to at Lowe's were
not supplied by Bragg. Id. (Def's Mot. Summ. J. 6-7.) Bragg claims that Mr. Rickards "simply
misremembered who may have supplied the Bendix and Wagner brakes to" Lowe's, and that the
Court can conclude as such because "[t]he two most knowledgeable individuals of the product
Ii nes sold by Bragg" are the affiants in Plaintiff's Exhibits 5 and 6. (Def .'s Mot. Summ. J. 7 .) Bragg
further argues that paragraphs 15 and 16 of its statement of material facts, which claim that Bragg
never carried Wagner or Bendix, shm1Id be deemed admitted under M.R. Civ. P. 56(h)(4) because
Plaintiff's denial of those facts lacked record citations. M.R. Civ. P. 56(h)(2). (Def's Reply Br. 2
3 .) Bragg also objects to Plaintiff's Exhibits C and D on the grounds that they are hearsay and
12 irrelevant. M.R. Civ. P. 56(e); M.R. M.R. Evid . 801-802, 401-403. These exhibits are Honeywell
International, Inc.' s discovery responses in 2010 New York state litigation and Moog
Automotive's material safety data sheet for brake shoe lining containing chrysotile asbestos,
respectively. Plaintiff relies on these exhibits for the proposition that Bendix and Wagner
manufactured asbestos-containing brakes. (Pl's Add'! S.M.F. !! 3-5.)
The Court agrees that under M.R. Civ. P. 56(h)(2),(4) Plaintiff's denials of paragraphs 15
and 16 improperly lack record citations. However, the Court is hesitant to grant summary judgment
in favor of Bragg based only on the affidavits of two former presidents of the Defendant company.
See Cach, LLC v. Kulas, 2011 ME 70, ~, 9-10, 21 A.3d 1015 (affidavit from company officer
alone inadequate to support factual assertion favorable to the company; fact could not be deemed
admitted despite being inadequately denied under M.R. Civ. P. 56(h)). Contrary to Bragg's claim
that these affidavits "stand uncontroverted ," they are controverted by Mr. Rickards' testimony.
Regardless, it is plausible that Mr. Rickards correctly remembered that Bragg supplied the brakes
but misremembered the brand name of those brakes. This is not inconsistent with Mr. Rickards'
testimony as he said that "a lot of times they were either Wagner or Bendix." Of course, Mr.
Rickards also testified that the brakes "mostly came" form Bragg; it is plausible that another
supplier provided the Wagner and Bendix brake parts that he remembered. A factfinder will
ultimately be asked to weigh the evidence and decide whether Bragg's affiants are more credible
than Mr. Rickards' memory. In sum, there is a genuine dispute of fact as to whether Bragg supplied
Wagner and Bendix (or some other brand) of brake parts to Lowe's.
The Court also agrees that Plaintiff's Exhibits C and Dare hearsay. See M.R. Evid. 801(c),
802. However, as noted above, Mr. Rickards' testimony does not foreclose the possibility that
Bragg supplied brakes other than Wagner or Bendix to Lowe's. Furthermore, Defendants do not
13 deny that Wagner and Bendix-branded brakes contained asbestos; they merely qualify the
proposed facts and note the objection to the exhibits. The Court thus rules that viewing the
evidence in a light most favorable to her, Plaintiff has adduced sufficient evidence that Mr.
Rickards was exposed to asbestos from brake components supplied by Bragg while employed at
Lowe's.
Defendant Bragg's motion for summary judgment is therefore DENIED.
III. DANA
Mr. Rickards was potentially exposed to asbestos from head gaskets manufactured by Dana
from two sources: (I) "Victor"-branded gaskets from his "shade tree" automotive work from the
rnid-1970s to 2001 and (2) through his employment at a John Deere ("Deere") dealership for two
discrete periods, first from 1976-1978 and then from 1987-1991. (Def's Supp'g S .M.F. ~~ 14-16,
18 .) In his deposition, Mr. Rickards recalled using Victor gaskets specifically on three "shade tree"
projects; in 1976, 1980, and 2001. (Def's Supp'g S.M.F. ~~ 14-16.) During Mr. Rickard's first
period of employment the Deere dealership was called W.S. Abbot; during the second it was called
Metco. (Def's Supp'g S .M.F. ~ 18.) Mr. Rickard's work at the Deere dealership during both periods
involved regularly removing and replacing head gaskets from Deere equipment. (Def's Supp'g
S .M.F. ~ 20; Pl's Opp'g S.M.F. ~ 20.) This work exposed him to particles from the removed gasket
material. (PJ's Add'! S.M.F., 30; Def's Opp'g S.M.F. ~ 30.) Mr. Rickards would then install a
new, pre-cut gasket that was "partly metal and partly gasket." (Def's Supp'g S .M.F. j 20; Pl's Opp'g
S.M.F. ~ 20.) Mr. Rickards testified that be used OEM parts to replace head gaskets. (Id.) Dana
supplied gaskets for Deere equipment, some of which gaskets contained asbestos, during the time
of Mr. Rickards' employment at the dealership. (Def's Supp'g S.M.F. ~ 21; PJ's Opp'g S.M.F.,
14 21.) The parties dispute whether Dana was the exclusive provider for any of the Deere OEM
gaskets that Mr. Rickards would have removed or replaced. (Def's Supp'g S.M .F. 11 21-22; Pl's
Add'[ S.M.F. n 27-29.) Dana objects to several of the exhibits proffered by Plaintiff in her opposition to this motion on the ground that they are irrelevant and/or hearsay. (Pl's Reply Mot.
Summ J. 3-6.)
The Court again notes that the extent of Mr. Rickards' exposure to asbestos at W.S.
A bbot/Metco and from "shade tree" work as compared to the rest of his career is not relevant under
the Mahar standard. See Mahar, 2012 Me. Super. LEXIS 129, at *8-9. (See Def's Supp'g S.M.F.
~~ 1-12.)
Dana objects to multiple exhibits that Plaintiff cites in her proposed additional statements
of fact on hearsay and relevancy grounds. (See Pl's Exs. D, E, F, G, H, I, L.) Several of these
exhibits include statements that were made by Dana in some capacity: viz. Plaintiff's Exhibit D
(Dana's Objections and Responses to Plaintiff's Interrogatories in In Re: Asbestos Litigation, No.
77C-ASB-2 (Del. Super. Ct.) dated April 7, 2008), Exhibit F (Transcript of the Deposition of Gary
Austin, Corporate Representative of Dana, in Pyle v. Able Supply Co., No. OlCVl 140 (Tex. Dist.
Ct.) dated September 16, 2003), Exhibit G ("News Release" from Dana dated June 12, 1980 titled
"Victor Asbestos Free Gaskets"), and Exhibit H (advertisement for Victor gaskets). These exhibits
are exempted from the definition of hearsay by M.R. Evid. 801(d)(2)(A) as admissions by a party
opponent. On the other hand, while Plaintiff's Exhibit E (John Zeitz, What Will Replace Asbestos
Gaskets?, DIESEL & GAS TURBINE PROGRESS, July 1980) was authored by the division chief
engineer at the Victor Products Division of Dana, Mr. Zeitz makes no statements on behalf of
Dana in the article; the language is couched exclusively in terms of general industry practices.
15 Nothing in the article could be read as an admission on behalf of Dana. No exception to the rule
against hearsay applies. See M.R. Evict. 803.
The remaining exhibits are not exempted from the definition of hearsay, and no exceptions
to the rule against hearsay applies. See id. However, as explained below, even if these other
exhibits are not considered Plaintiff has nonetheless met her burden of showing that'Dana supplied
asbestos-containing gaskets and that Mr. Rickards had personal contact with those gaskets through
his employment at W.S. Abbot/ Metco and his own personal "shade tree" automotive work.
As a threshold matter, Dana is the only Defendant referenced in this Order who argues that
Plaintiff has failed to adduce prima facie evidence of medical causation. Dana argues that
Plaintiff's expert report of Dr. Steven Compton is limited to friction materials such as brake
linings. (See Def 1s Supp'g S.M.F. ~ 25.) Although Plaintiff denies this fact, her denial is grounded
only on the proposition that the opinions expressed in the expert's report are with regard to friction
materials generally. (PJ's Opp 1g S.M.F., 25.) The Court notes that gaskets, by definition, are not
"friction materials;" their purpose is to make a joint fluid-tight. See Gasket, MERRIAM-WEBSTER
(June 12, 2018), https://www.merriam-webster.com/dictionary/gasket.
However, Dr. Compton is not the only expert who has been disclosed in this case. (See
Def's Ex. L.) Plaintiff points out that industrial hygienist William Ewing has also been disclosed
as an expert, and that he will testify to the significant levels of asbestos to which Mr. Rickards'
mechanical work with Victor and Deere OEM gaskets exposed him. (Pl.'s Opp'n to Def.'s Mot.
Sumrn. J. 3-4; see Pl's Add'! S.M.F. ~ 37.) Even ignoring Mr. Ewing's prior testimony, which is
hearsay (see PJ's Ex. K), Plaintiff disclosed that Mr. Ewing would "testify about the science of
industrial hygiene and its application to asbestos and asbestos-containing materials ... [and] the
hazards associated with the cutting, abrading, sanding, manipulation and/or grinding of asbestos
16 containing materials .... Mr. Ewing may testify about the asbestos exposures of Decedent based
on his review of deposition testimony and other available materials ...." (Def's Ex. L.) Contrary
to Dana's position, Plaintiff's claims regarding Mr. Ewing's expected testimony in opposition to
the instant motion is consistent with, and not a "drastic departure" from, this disclosure. (Def's
Reply Mot. Summ. J. 2.) The cases cited by Dana do not support the proposition that Plaintiff
failed to meet her continuing obligation to identify and provide expert testimony under M.R. Civ.
P. 26. See Beaudin v. Beaulieu, 472 A.2d 426,428 (Me. 1984) (holding that non-compliance with
explicit court order that plaintiff provide expert report to defendant justified trial comi in excluding
expert testimony); Johnson v. Carleton, 2001 ME 12, ~ 8, 765 A.2d 571 (holding that trial court
did not err in striking plaintiff's untimely expert witness designation). (Def's Reply Mot. Summ.
J. 2.) The Court therefore rules that Plaintiff has met her burden to adduce prima facie evidence of
medical causation .
Dana is also the only of these three Defendants to raise an argument for summary judgment
aimed specifically at the "failure to warn" component of Plaintiff's statutory strict products
liability claim. (Pt's Comp!.~~ 9, lla-b, 16-17.) For Plaintiff to establish that Dana's products
were defective due to a failure to warn, she must prove the following elements: (1) Dana had a
duty to warn Mr. Rickards of its product hazard; (2) any actual warning on the product was
inadequate, and (3) the inadequate warning or absence of a warning proximately caused Mr.
Rickard's injuries. See Bums v. Arch'l Doors & Windows, 2011 ME 61, ~ 23, 19 A.3d 823. Dana
argues that Mr. Rickards testified that he observed warnings in Victor product packages and the
Deere equipment manuals and that Plaintiff has failed to adduce any evidence that Dana had a duty
to warn Mr. Rickards, the warnings Mr. Rickards observed were inadequate, or that Dana's failure
to warn was a proximate cause of Mr. Rickards' illness and subsequent death. (Def.'s Mot. Summ.
17 J, 13-14.) In opposition, Plaintiff argues that the evidence shows that Dana did have a duty to warn
Mr. Rickards of the hazard posed by its product, but does not address the remaining two elements
in argument. (Pl .'s Opp'n to Def.'s Mot. Summ. J. 5 .) The Court nonetheless declines to grant Dana
summary judgment on this claim, Although Plaintiff's burden in defense of summary judgment is
to adduce prima facie evidence of each element of its cause of action, "failure to warn" is not a
cause of action. See" 14 M.R.S. § 221. It is a way a plaintiff can prove entitlement to recovery
pursuant to a strict product liability action. To the extent that Burns, 2011 ME 61, ~123-27, 19
A.3d 823, supports a different outcome, the Court notes that that case was decided on a different
procedural posture. There, the trial court had allowed the plaintiff to proceed on his strict product
liability cause of action on summary judgment, but ultimately declined to give the plaintiff's
requested jury instruction because "no evidence of a warning had been presented" at trial. Id. ~~
6-9, 23-25. The trial court denied the defendant's motion for summary judgment in the first
instance. Id.~ 9.
Finally, Dana argues that Plaintiff has failed to demonstrate that Mr. Rickards had
"personal contact" with asbestos from a Dana-supplied product. (Def.'s Mot, Sumrn. J. 10-11.) In
its motion, Dana concedes that Mr. Rickards testified that he used Victor gaskets for three engine
rebuilds in 1976, 1980, and 2001. (Def's Supp'g S M.F. ~i 13-16.) As noted above, notwithstanding
Dana's arguments to the contrary, there is evidence that Mr. Rickards' limited exposure to these
asbestos-containing gaskets could have been a medical cause of his illness and subsequent death.
Whether this exposure was a "substantial'factor" in bringing about Mr. Rickards' disease sufficient
to impose liability on Dana is a question for the jury. See Rumery, 2009 Me. Super. LEXIS 73, at
8-9; see also Grant, 2016 ME 85, ~ 19, 140 A.3d 1242. Mr. Rickards' undisputed personal contact
18 with Dana-manufactured Victor-branded gaskets forecloses a summary judgment being granted in
its favor.
Dana concedes that it supplied gaskets to Deere dealerships during the time periods that
Mr. Rickards was employed at W.S. Abbot/ Metco. (Def's Supp'g S.M.F. f 21.)• However, Dana
claims that it was not the sole supplier for any gaskets to Deere, and did not supply any gaskets
for at least two models of Deere-branded skidders that Mr. Rickards specifically testified to
removing and replacing the gaskets of. (Id.~~ 21-22.)Dana also admits that some-but not all
of the gaskets it sold to Deere contained asbestos. (Id. f 22.) Dana thus argues that Plaintiff can
only establish that Dana supplied some gaskets, which may not have contained asbestos, to some
Deere dealerships; she cannot demonstrate that Dana supplied the gaskets Mr. Rickards was
exposed to, or that if it did , that those gaskets contained asbestos.
Plaintiff claims that in fact Dana was the sole supplier of several asbestos-containing OEM
gaskets for Deere equipment during the timeframe in which Mr. Rickards worked on Deere
equipment at W.S. Abbot/ Metco. (Pl's Add'! S.M.F. ~~ 27-28.) Plaintiff points out that Deere's
corporate representative testified that Deere would "attempt" to approve three different suppliers
for each part, but that "there were certain suppliers that characteristically supplied certain
products." (Def's Ex. I at 98: 1-2, 101: 14-21.) Plaintiff further points out that Deere's interrogatory
responses in this lawsuit suggest that Dana was the exclusive provider of gaskets for some of the
Deere equipment Mr. Rickards testified that he performed engine work on, which would have
involved removing and replacing gaskets. (Def's Ex. H at Pl 's Interrog. No. 1.) With regards to
whether the gaskets Dana would have supplied to W.S. Abbot/ Metco contained asbestos, Plaintiff
points out that Mr. Rickards testified that the gaskets he installed were "partly metal and partly
, Although Plaintiff denies this fact, the denial lacks proper record citation. M.R. Civ. P. 56(h)(4). Fu1thermore, it is clear from context that Plaintiff only denies the proposition that Dana was not a sole supplier of any gaskets to Deere.