Vexing Statute of Repose Question Sent to Massachusetts Supreme Judicial Court United States District Court, District of Massachusetts, May 14, 2018

MASSACHUSETTS  — The plaintiffs sued multiple defendants in the United States District Court, District of Massachusetts, alleging that the plaintiffs’ decedent, Wayne Oliver, was exposed to asbestos during the construction of two nuclear power plants.  Defendant General Electric (GE) filed a motion for summary judgment on counts I,II,IX, and X in the plaintiffs’ Third Amended complaint; both parties agreed that the affected counts were governed by the substantive law of the Commonwealth of Massachusetts.

GE invoked the Massachusetts statute of repose for improvements to real property, and the court stated that although the GE turbine-generators at issue, including their insulation materials, were improvements to real property under the statute, “the more vexing is the question whether the statute of repose applies in the context of a contractor like GE’s asbestos-related work.”  The court found the issue vexing because GE had control of the site at the time of Oliver’s alleged exposure, conducted regular on-site maintenance and inspections for at least two decades after the construction was complete, and continued to be present to perform refueling outages every 18 months.

The District Court held that GE was not entitled to the protection of the statute and denied the motion for summary judgment.  The court also noted that the Massachusetts Supreme Judicial Court “has not considered the application of the statute of repose to asbestos claims” and that the matter “presents a state law issue without controlling precedent whose resolution may be determinative.”

GE moved the District Court to certify its appeal to the United States Courts of Appeals for the First Circuit; the plaintiffs opposed but in the event of an appeal being granted, requested that the appeal be certified to the Massachusetts Supreme Judicial Court.

The District Court held that the case should be certified to the Massachusetts Supreme Judicial Court to determine the following: “whether or not the Massachusetts statute of repose can be applied to bar personal injury claims arising from diseases with extended latency periods, such as those associated with asbestos exposure, where the defendants had knowing control of the instrumentality of injury at the time of exposure.”

Read the full decision here.


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