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Maine Supreme Court Decision Clarified Causation in Asbestos Cases And Leaves Window Open for Sophisticated User Doctrine

For the first time in decades, the Maine Supreme Court ruled upon critical issues affecting all future asbestos and toxic tort cases in Maine. In Patricia Grant v. Air & Liquid Systems Corp., et al., the Maine Supreme Court upheld the lower court’s grant of summary judgment for multiple defendants who had faced liability to the Plaintiff for alleged asbestos exposure at the historic Bath Iron Works shipyard that purportedly caused Edward Grant’s death from lung disease. The Court clarified the causation standard for asbestos cases in Maine, held that Plaintiffs did not establish a prima facie case that Edward Grant ever breathed asbestos from the defendants’ particular products at Bath Iron Works, and left open the possibility that defendants could apply the sophisticated user doctrine as a defense to failure to warn liability, under certain circumstances.

Edward Grant worked for Bath Iron Works from 1964 to 1970, and again from 1978 to 1994. During his first period of employment, asbestos was a common component of the insulation and other materials used at Bath Iron Works in the construction and renovation of ships. In April 2011, Grant died from lung cancer caused by exposure to asbestos. In March 2012, Grant’s wife, Patricia, and Estate filed a lawsuit for negligence, failure to warn of defective, unreasonably dangerous goods, and loss of consortium.

Among the defendants were New England Insulation (a supplier of Kaylo pipe covering, which contained asbestos fibers and was used to insulate ships’ pipes), Foster Wheeler (a manufacturer of boilers and air ejectors), Warren Pumps (a manufacturer of pumps) and Imo Industries (a manufacturer of pumps and turbines), all of which were granted summary judgment by the trial court. Lewis Brisbois represented New England Insulation in the appeal.

Jurisdictions differ in regards to the amount of product exposure plaintiffs must bring forth to survive summary judgment. In this case, the trial court and in turn the Maine Supreme Court, applied the less burdensome test articulated in Mahar v. Sullivan & Merritt, Inc., No. BCD-CV-10-21, 2012 Me. Super. LEXIS 129, at *9 (July 31, 2012). In order to demonstrate product nexus, the court required Plaintiffs to “prove not only that the asbestos products were used at the worksite, but that the employee inhaled the asbestos from the defendant’s product.” (Quoting Mahar, 2012 Me. Super. LEXIS 129, at *9). The court examined the evidence against each defendant separately in order to examine the specific evidence Plaintiff put forth in regards to Defendants’ specific products.

Plaintiffs produced evidence that New England Insulation sold Kaylo pipe covering to Bath Iron Works on three occasions in 1969, which fell during Grant’s first period of employment at Bath Iron Works. Grant testified in a Workers’ Compensation deposition that he did “mostly all painting” during the applicable timeframe. He did not recall working near pipe coverers and did not have a memory of cleaning asbestos debris during or after the New England Insulation sales. In an attempt to establish evidence of asbestos exposure by New England Insulation’s products, Plaintiff provided the testimony of three witnesses who also worked at Bath Iron Works during the period when New England Insulation had supplied Kaylo to Bath Iron Works. The first witness testified that Grant likely would have been directed to perform cleaning duties after insulation was installed by pipe coverers, however, the witness could not remember Grant personally. A second witness worked in the same 600 person department as Grant and testified that he had been exposed to asbestos from cleaning up pipe covering debris while working in the department. However, he also had no recollection of working nearby Grant at the site. A third witness from Grant’s department testified that it was possible that he and Grant worked on the same crew, and that one of the main duties the witness performed was cleaning up asbestos fibers and dust from pipe covering insulation. This witness had a specific memory of Grant sweeping, however, it was prior to the period when New England Insulation supplied Kaylo to Bath Iron Works.

The Maine Supreme Court held that the evidence presented against New England Insulation was too speculative to support a prima facie showing that Grant encountered asbestos fibers from New England Insulation-supplied Kaylo at Bath Iron Works. Although proximate causation may be proved by circumstantial evidence, the evidence must support inferences rather than mere speculation. The court determined that the evidence presented above did not rise above mere speculation and therefore summary judgment was appropriate.

Interestingly, New England Insulation set forth two arguments for summary judgment in its appellate brief. The first, the “product nexus” argument that Plaintiffs provided no evidence to support a finding that Grant breathed any asbestos in products sold by New England Insulation, was addressed and affirmed by the Maine Supreme Court in its written decision. The second argument, the Sophisticate User Doctrine, was not addressed by the Maine Supreme Court decision. New England Insulation argued that Bath Iron Works was a Sophisticated User of asbestos products (including Kaylo) given its knowledge of the dangers of asbestos products and its extensive efforts to limit its employees’ exposure to asbestos. Therefore, New England Insulation had no duty to warn Bath Iron Works or Grant of the danger associated with Kaylo, and thus, summary judgment was proper. “The sophisticated user doctrine relieves a manufacturer of liability for failing to warn of a product’s latent characteristics or dangers when the end user knows or reasonably should know of a product’s dangers.” Taylor v. Airco, Inc., 503 F. Supp. 2d 432, 443 (D. Mass. 2007) aff’d sub nom. Taylor v. Am. Chemistry Council, 576 F.3d 16 (1st Cir. 2009). Bath Iron Works, as a sophisticated user, was “in a superior position to issue directly all product-related warnings.” Id., 503 F. Supp. 2d at 444.

Whether the Maine Supreme Court will apply the Sophisticated User Doctrine in the future remains undecided and is likely to provide additional fodder for future summary judgment motions and appellate discussions. 

[About the Author: Victoria W. Smith is a partner in the Boston office and a member of the Toxic Tort & Environmental Litigation Practice. Her additional areas of practice include general liability, medical malpractice, nursing home defense, wrongful death, premises liability, toxic tort and asbestos litigation.]

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