Burner Defendant Granted Summary Judgment; No Evidence of Product Nexus

Superior Court of Rhode Island, Providence

In this matter, the decedent alleged asbestos exposure from his work as a plumbing and heating installer/repairer in the state of Maine from 1949 until 1966. Specific to this motion, the decedent installed Wayne burners, and converted Wayne burners from coal to oil. During this work, the decedent mixed asbestos powder and applied asbestos-containing mud to seal the tube of the burner.

With regard to the choice of law analysis, both parties agreed that Maine law should be applied to this action. The court also found that Maine bore the most significant relationship to this matter. As the court set forth from Harodite Industries:

Our Supreme Court has confirmed that Rhode Island courts must consider the following factors when evaluating choice of law in tort matters: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil[e], residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.

Here, the decedent lived in Maine for most of his life, the alleged asbestos exposure associated with Wayne burners occurred in Maine, and he was treated for mesothelioma in Maine. Given this analysis, coupled with the court’s note that Maine law was also applied in a separate decision in this case, the court held that Maine law would apply.

In addition, the defendant argued that they were entitled to summary judgment under both strict liability and failure to warn theories as the plaintiffs could not point to an asbestos-containing product that Wayne manufactured, sold, supplied, or recommended. The plaintiffs opposed the motion, contending that genuine issues of material fact remain, as well as that the use of third-party asbestos products associated with Wayne burners was foreseeable to the defendant. The court first set forth that a defendant’s product must be defective in order for a plaintiff to recover against that defendant pursuant to Rumery v. Garlock Sealing Technologies. Further, the court cited to Grant v. Foster Wheeler while stating that “Maine law also calls for evidence that an asbestos-containing product originated with the defendant, pursuant to 14 M.R.S. § 221.” After analyzing Grant, the court instructed that “the necessary showing of product nexus means … evidence of 1) a defendant’s asbestos-containing product, 2) at the site where the plaintiff worked or was present, and 3) where the plaintiff was in proximity to that product at the time it was being used.”    

The court found that the plaintiffs could not establish the decedent was exposed to an asbestos-containing product that originated with the defendant. The court further stated that no link between the sealants and Wayne could be inferred from the record. Of note, the decedent testified that the mud was never provided by the burner manufacturers, as he supplied the mud while performing conversions. In addition, the decedent:

could not specifically testify about the location or model of any particular Wayne burner or to individual models or boilers serviced … This means that he could not testify about any sealant that might have been provided with a specific new Wayne burner, nor about the content or origin of the extant sealant that might have been disturbed when doing a conversion job. 

Moreover, the court rejected the plaintiffs’ foreseeability argument, noting that “‘Maine courts have rejected foreseeability arguments in relation to the dangers of a third-party product.'” Further, while Wayne’s installation manual recommended an “insulating refractory type combustion chamber,” Wayne did not explicitly recommend using an asbestos-containing mud or combustion chamber. Therefore, the court granted the defendant’s motion, holding that “Plaintiffs have not met their burden on product nexus, failing to provide sufficient evidence of either an original Wayne product or a third-party product actually distributed or recommended by Wayne to Decedent.”