Court Declines to Address Causation Standard In Upholding Summary Judgment on Trial Court’s Less Burdensome Standard

Plaintiff Patricia Grant and the Estate of Edward Grant appealed from summary judgments entered against them on their complaint for damages for Edward Grant’s lung cancer and death based on negligence, failure to warn of defective, unreasonably dangerous goods, and loss of consortium. Summary judgment was granted on the motions of New England Insulation Company (NEI); Foster Wheeler, LLC; Warren Pumps, LLC; and IMO Industries, Inc. The plaintiff’s decedent Edward Grant worked for Beth Iron Works from 1964 to 1970 and again from 1978 to 1994 in a variety of positions, including as a ship cleaner. Cleaning included sweeping up debris — sometimes including asbestos — that resulted from construction and maintenance activities. At his deposition, Grant testified that he believed he was exposed to asbestos as a cleaner between 1966 and 1967, during which time he recalled sweeping up asbestos resulting from pipe covering work but he was unsure if he was exposed to asbestos at other times.

NEI, Foster Wheeler, Warren, and IMO filed motions for summary judgment on the basis that the plaintiff had not established a prima facie case that Grant ever breathed asbestos from the defendants’ products. The trial court granted these motions and the plaintiffs appealed arguing that the court erred in its decision.

The Supreme Judicial Court of Maine reviewed and upheld the granting of the motions for summary judgment. The court was faced with the question of what amount of product exposure a plaintiff’s evidence must demonstrate to survive summary judgment. The trial court required plaintiff to show that the defendant’s asbestos-containing product was at the site where the plaintiff worked or was present, and that the plaintiff was in proximity to that product at the time it was being used. The court compared that standard to the Lohrmann “frequency, regularity, and proximity test,” which requires that there must be “evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked” in order to support a reasonable inference of substantial causation. The court, however, did not reach the question of the appropriate standard as it found that the plaintiff’s evidence did not meet even the less burdensome standard stating “because we conclude that [plaintiff] has not offered evidence to satisfy even the less burdensome standard applied by the trial court, we need not decide whether Maine should utilize the greater Lohrmann standard.”

Read the full decision here.