Jurisdiction: Superior Court of Rhode Island, Providence
Plaintiffs alleged decedent Peter A. Lowe Sr. was exposed to asbestos while employed with his father’s company – Lowe Excavating and Construction – from approximately 1965 until the late-1970s. Plaintiffs allege this exposure resulted in Mr. Lowe being diagnosed with malignant mesothelioma in 2018, which ultimately caused him to pass away in August 2019. Plaintiffs initiated litigation asserting several theories of liability, including failure to warn, negligence, strict liability, breach of express and implied warranty, and other related claims, against approximately 70 defendants. Kamco Supply Corporation of New England was one of the defendants named in this matter.
Mr. Lowe appeared for a deposition prior to passing away. He initially testified that Lowe Excavating performed “all types of excavation, [and] water/sewer connections” on roads, dams, ponds, commercial buildings, and residential homes. Its services also included demolition and septic work. Mr. Lowe specifically alleged having asbestos exposure due to his work with sizing and cutting concrete pipes — which are alleged to have contained asbestos — while employed with Lowe Excavating between 1965 until the late 1970s. Mr. Lowe would specifically use a grinding wheel to cut the cement pipe, which created dust, that he would subsequently breathe in.
Mr. Lowe identified three brands of cement pipe that he would regularly install and/or otherwise work with: Italit, Johns-Manville, and CertainTeed. Regularly supplying those brands of concrete pipes to Lowe Excavating were Helm Construction, Colony Lumber, and Superior Products Distributors Inc. (SPDI). Mr. Lowe testified that Colony Lumber may have supplied CertainTeed cement pipes, however, he also said that Colony Lumber and SPDI both sold Johns-Manville cement pipes. Other discovery produced revealed asbestos composed one-fifth of the make-up of Johns-Manville cement pipes used for sewerage, including 7 percent crocidolite and 13 percent chrysotile, in 1972. Certified answers to interrogatories further revealed that Colony Lumber sold Johns-Manville products and marketed “J.M. SEWER PIPE” on receipts it issued to its customers.
In 1976, Colony Lumber had ceased selling Johns-Manville’s asbestos-containing cement pipes. In 1979, though, a fire had destroyed most of Colony Lumber’s records. By the end of 1998, Colony Lumber had merged with Kamco. Kamco ultimately filed a motion for summary judgment after discovery concluded. Kamco argued that plaintiffs have failed to present evidence demonstrating Mr. Lowe was exposed to its asbestos-containing products. Plaintiffs opposed Kamco’s motion for summary judgment.
“‘Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.'” Cruz v. DaimlerChrysler Motors Corporation, 66 A.3d 446, 451 (R.I. 2013) (quoting DeMaio v. Ciccone, 59 A.3d 125, 129 (R.I. 2013)). “[S]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the Court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education, 93 A.3d 949, 951 (R.I. 2014) (internal quotation omitted); see also Super. R. Civ. P. 56. “‘The moving party bears the initial burden of establishing the absence of a genuine issue of fact.'” McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting Robert B. Kent et al., Rhode Island Civil Procedure § 56:5, VII-28 (West 2006)). Then, the burden shifts—”[t]he party opposing summary judgment bears the burden of proving, by competent evidence, the existence of facts in dispute. The opposing party will not be allowed to rely upon mere allegations or denials in the pleadings but rather, by affidavits or otherwise the opposing party has an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact.” Henry v. Media General Operations, Inc., 254 A.3d 822, 834 (R.I. 2021) (internal citations omitted). “In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party.” Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013). In doing so, the Court “does not pass upon the weight or the credibility of the evidence[.]” Palmisciano v. Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992).
As to causation in the asbestos context: “All cognizable negligence claims in Rhode Island must set forth four essential elements: duty, breach, causation, and damages.” Sweredoski v. Alfa Laval, Inc., No. PC-2011-1544, 2013 R.I. Super. LEXIS 111, 2013 WL 3010419, at *2 (R.I. Super. June 13, 2013) (citing Santana v. Rainbow Cleaners, 969 A.2d 653, 658 (R.I. 2009)). “In the asbestos context, plaintiffs must present both product identification and exposure evidence to satisfy the causation element.” Id. The Court also noted: “Historically, however, asbestos plaintiffs have struggled to ‘fairly meet the burden of production with regard to causation,’ owing to such factors as the prevalence of second-hand exposure to airborne asbestos dust, the indistinguishable nature of asbestos fibers from different manufacturers’ products, the long latency of asbestos-related diseases, and the difficulty of obtaining witnesses and other probative evidence of exposure years after the fact.” Id. (quoting Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 603 N.E.2d 449, 455-56, 177 Ill. Dec. 379 (Ill. 1992)). As a result of those challenges, Rhode Island has adopted the “frequency, regularity, proximity” test as the standard for proving causation in the asbestos context, because it “strikes the appropriate balance between ‘the rights and interests of the manufacturer [and] those of the claimants . . .” Id. at *5 (quoting Holcomb v. Georgia Pacific, LLC, 128 Nev. 614, 289 P.3d 188, 196 (Nev. 2012)).
“To satisfy the ‘frequency, regularity, proximity’ test, plaintiffs must present evidence showing ‘(1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked.'” Id. (quoting Chavers v. General Motors Corp., 349 Ark. 550, 79 S.W.3d 361, 368 (Ark. 2002)). Both direct and circumstantial evidence are sufficient to meet the elements of that test. Id. It is not a rigid test, and its factors “should be tailored to the facts and circumstances of the [particular] case at hand.” Id. at *6 (quoting Holcomb, 289 P.3d at 196) (internal quotation marks omitted). Further, “in cases alleging that the plaintiff developed mesothelioma as a result of exposure to a particular defendant’s product” the “frequency, regularity, proximity” test is slightly relaxed “because medical evidence has established that mesothelioma can develop from less intense exposures to asbestos than other asbestos-related diseases, such as asbestosis.” Id. “When applying the ‘frequency, regularity, proximity’ test . . . courts must ‘make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury.'” Id. (quoting Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216, 227 (Pa. 2007)).
In view of the above, the court agreed with Kamco’s one position that there is no proof that it sold CertainTeed asbestos-containing cement pipes. This claim asserted by plaintiffs was, therefore, dismissed against Kamco. In dispute, though, was Kamco’s contention that plaintiffs have failed to present evidence showing Mr. Lowe was exposed to Johns-Manville cement pipes supplied by it and, as such, plaintiffs are unable to prove Kamco’s products were a cause of his malignant mesothelioma.
Kamco’s motion for summary judgment specifically argued that Mr. Lowe’s deposition testimony, based solely upon his memory, was insufficient to present a genuine issue of material fact as to the identification of Kamco’s products. Kamco further argued that Mr. Lowe’s failure to state a specific date for when he was exposed to asbestos was fatal to plaintiffs’ claims. The Rhode Island Court disagreed with Kamco’s arguments regarding Johns-Manville cement pipes. In that regard, the court cited to evidence, including Mr. Lowe’s deposition testimony, in which Mr. Lowe testified to working with three (3) specific brands of cement pipes that contained asbestos, including Johns-Manville’s cement pipes. Mr. Lowe further testified that he knew which brand of pipe he was working with because the brand name was stamped on the side of each pipe. Mr. Lowe also testified that he regularly worked with asbestos-containing cement pipes from “[a]bout 1965” until “about the late ’70s.” Lastly, Mr. Lowe identified three (3) companies which regularly supplied those pipes, including Colony Lumber being a supplier of Johns-Manville cement pipes.
In addition, plaintiffs provided receipts issued by Colony Lumber to Mr. Lowe between 1976 and 1982. Those receipts feature “J.M. SEWER PIPE,” marketing it as a product available for sale, along with general categories such as “TOOLS” and “HARDWARE. While those receipts do not reflect Mr. Lowe’s actual purchase(s) of the Johns-Manville pipes, they do serve as circumstantial evidence that Colony Lumber was selling them, and they are of particular importance considering that Colony Lumber’s records were destroyed in a fire in 1979 as highlighted above.
For all the foregoing reasons, Kamco’s motion for summary judgment was granted in part and denied in part. The court ultimately held that plaintiffs have failed to show there is a genuine issue of material fact that Kamco sold the CertainTeed cement pipes that Mr. Lowe is alleged to have had asbestos exposure. However, the court also held that plaintiffs have shown that there is evidence in the record for a trier of fact to conclude Kamco supplied the Johns-Manville cement pipes.
Read the full decision here.