Morin v. Autozone Northeast, Inc., et al., Civ. A. No. 09-P-1816 (Mass. App. Ct. March 14, 2011).

On March 14, 2011, the Appeals Court of Massachusetts reversed the Superior Court’s (J. Charles J. Hely) grant of summary judgment for defendants Autozone Northeast, Inc. (“Autozone”) and Orleans Auto Supply, Inc. (“Orleans”)(collectively “Defendants”). In reversing, the Appeals Court concluded that sufficient evidence existed that asbestos fibers from Defendants’ products contributed to the cause of Geraldina Medeiros’s death so as to present an issue of fact for the jury. In the same decision, the Appeals Court upheld the lower court’s granting of Great Dane Trailers, Inc.’s (“Great Dane”) motion for summary judgment.

Summary of facts. Plaintiff, Kathleen Morin, brought a wrongful death claim against Defendants for negligence and breach of implied and express warranties of merchantability alleging that Defendants’ products contributed to cause the death of her mother, decedent. From 1952 to 1991, decedent ran Bedford Fruit, a company that supplied fruit and operated out of a facility in Hyannis. Bedford Fruit owned a fleet of trucks and maintained same – brake and clutch jobs –in their own facility. Plaintiff claims that decedent, who had an office near the garage, was exposed to asbestos fibers during the replacement and installation of brakes and clutches sold by Defendants. Plaintiff further claims that said exposure to asbestos caused decedent’s development of mesothelioma.

Causation in asbestos claims. The Appeals Court relied on Welch v. Keene Corp., 31, Mass. App. Ct. 157 (1991) for the standard of review to establish causation in asbestos cases. Thus, a plaintiff must establish (1) the defendant’s product contained asbestos; (2) the victim was exposed to the asbestos in the defendant’s product; and (3) such exposure was a substantial contributing factor in causing the injury. To raise a triable issue of sufficient exposure, the standard is not “but for” causation on the part of the targeted defendant but, rather, that the product contributed to cause the injury. The Appeals Court warned that the standard of proof of causation does not relax to a level of speculation and re-affirmed the Welch Court’s standard that a plaintiff must produce evidence of a degree of exposure greater than insignificant or de minimis.

Reversal of Autozone and Orleans motion. The Appeals Court’s causation analysis for Defendants was similar. The Appeals Court concluded that (1) product identification evidence existed to establish that the brakes and clutches purchased from Defendants contained asbestos; (2) the decedent was in close proximity to asbestos-containing products purchased from Defendants as expert witnesses testified that asbestos fibers from Defendants’ products may have remained airborne for long periods of time and drifted from the garage to decedent’s office; and (3) Plaintiff’s expert testified that each and every asbestos fiber contributed to cause decedent’s mesothelioma as her disease was caused by the cumulative effect of all asbestos dust inhaled.

Upholding Great Dane’s motion. The Appeals Court upheld the Superior Court’s grant of summary judgment to Great Dane because Plaintiff could not establish that the brakes removed from Bedford Fruit’s Great Dane trailer were manufactured by Great Dane and not by another brake manufacturer. Bedford Fruit purchased the Great Dane trailer used in 1984. The Great Dane trailer had been built in 1977 with Great Dane asbestos-containing brakes. The evidence suggested that the brakes on the Great Dane trailer would have been changed prior to Bedford Fruit’s purchase of the vehicle in 1984; however, Plaintiff could not establish that the brakes removed by Bedford Fruit after its purchase were manufactured by Great Dane and not by another company. The Appeals Court concluded, therefore, that the Plaintiff had no reasonable expectation of proving that the trailer at the time purchase in 1984 or throughout the period of maintenance post-1984 contained asbestos-bearing brakes manufactured by Great Dane. Therefore, Plaintiff could not prove product identification against Great Dane.

Exposure to asbestos: Insignificant or de minimis. Although the Appeals Court held that Plaintiff could not satisfy product identification, the Court waded into the discussion of whether the brake work performed to the Great Dane trailer constituted an insignificant or de minimis exposure to asbestos. The Court noted that Bedford Fruit changed the brakes on the Great Dane trailer once per year over a seven-year span, and that it was not known whether the brakes removed and installed contained asbestos. Additionally, the Great Dane truck was one of the 15 vehicles in the building garage and it was not known whether decedent came into contact with asbestos fibers from Great Dane trailer’s annual brake replacement. “While the standard of proof is generous, it has typically required evidence of greater exposure than appears from the Great Dane trailer.” Notably, in a footnote, the Court held that the evidentiary requirement of more than insignificant or de minims exposure and the characterization of a single inhalation as a substantial contributing factor are not inconsistent. As for Great Dane, the Court concluded that the evidence that decedent took a single breath of asbestos fibers from a Great Dane brake job was a “speculative possibility” and “conjectural.”

Dicta on duty to warn. The Appeals Court considered the Plaintiff’s claim that Great Dane breached its duty to warn Bedford Fruit about the dangers of using compressed air during the removal of asbestos brakes from the trailer. The Appeals Court recognized that Massachusetts law leaves unanswered the question of whether a manufacturer owes a duty to warn if a potential danger, though created solely by a third party, is associated with a foreseeable use of the manufacturer’s product. The Appeals Court believed that it was foreseeable to Great Dane that Bedford Fruit might repair the trailer with asbestos brakes from other manufacturers; however, the Court declined to rule on this issue citing Plaintiff’s failure to establish product identification as grounds enough to uphold Great Dane’s summary judgment.