May 8, 2018
In a rare turn of events, on April 30 2018, Judge Alice B. Gibney vacated her prior judgment denying G.E.’s motion for summary judgment when presented with a Rule 60(b) Motion for Relief from Order filed by the defeated Defendant. Contrary to her earlier stance, Judge Gibney, when faced with the same arguments again, ruled that the “record lacks any evidence beyond conjecture that Plaintiff was exposed to any G.E. asbestos-containing materials.” Suprey v. CBS Corp. f/k/a Viacom, Inc., et al., 2018 R.I. Super. LEXIS 41.
In this asbestos liability action, Plaintiff contended that Paul F. McCarthy, the Decedent, was exposed to asbestos-containing G.E. turbines while serving four years in the U.S. Navy in the early to mid 1950s and living aboard the U.S.S. Glennon.In furtherance of this argument Plaintiff presented historical documents to the Court alleging the Glennon was a G.E. turbine destroyer. Plaintiff also presented former testimony from a G.E. corporate representative that G.E. turbines need insulation to function properly. Lastly, in his sworn statement, Mr. McCarthy stated he was a member of the deck force for approximately two years, during which time his responsibilities included painting, scraping paint and washing equipment; following his position on the deck force, he was a quartermaster and took care of the logbooks, flag duties and general clean-up on ship; his final designation onboard the Glennon included an assignment as a metalsmith, a position he held for one year; as a metalsmith, Mr. McCarthy fixed ladders and helped other crewmembers, which in one instance included helping a welder in the boiler room where alleged asbestos-containing equipment was located.
G.E. argued that Plaintiff failed to present evidence that Mr. McCarthy had any contact with G.E. turbines. Therefore, G.E. argued Plaintiff failed to present sufficient, competent evidence regarding the frequency, regularity and proximity of the alleged exposure. Judge Gibney initially disagreed.
Indenying the motion for summary judgment, the Court relied on Welch v. Keen Corp., 575 N.E. 2d 766 (Mass.App.Ct. 1991) which identifies ways that a plaintiff may “sufficiently allege contact with a defendant’s asbestos-containing product.” Among other reasons, the Court denied the motion for summary judgment because the plaintiff had “offered historical documents to show a range of years during which the Defendants supplied equipment to the Glennon and Mr. McCarthy’s sworn statement described his contact and proximity to those products and areas of the ship that allegedly contained asbestos.”
Upon reconsideration, Judge Gibney agreed with G.E. that the Plaintiff had not provided any evidence to show that Mr. McCarthy had regular, frequent and proximate exposure to a particular G.E. product. She noted that Mr. McCarthy’s statement was silent as to his contact with any G.E. product – much less the regularity, frequency and proximity of such contact – and did not state he was ever present in the engine room in which G.E. turbines were located. She further noted that Plaintiff’s evidence that the turbines likely contained asbestos insulation failed to prove exposure to the turbines. Given the lack of any exposure evidence beyond mere conjecture, Judge Gibney held that the circumstances in the case were extraordinary enough for the Court to grant G.E.’s Motion for Relief.
This latest ruling is grounds for Defendants to have considerable optimism when seeking summary judgment in cases in which exposure is speculative at best. It could also reshape the landscape of asbestos litigation in Rhode Island where a downturn in monetary payouts is realized by Plaintiffs as justice for Defendants with limited identification is procured.