Asbestos litigants face setback

A decision by the Supreme Judicial Court of Massachusetts concerning the state’s six-year statute of repose effectively bars all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits.

Behind the headlines

Wayne Oliver died in 2016 of mesothelioma after exposure to asbestos during the construction of two nuclear power plants in the 1970s. The General Electric Company (“GE”) had designed, manufactured and sold steam turbine generators for installation at each of the plants and had supervised the installations. GE’s installation specifications at the time called for the use of asbestos-containing insulation materials.

Oliver worked as a pipe inspector for a third-party, and was present while the insulation was cut, mixed and applied to certain piping systems and equipment in the turbine halls of both plants, exposing him to the toxic asbestos particles within. He came into contact with the tainted insulation between 1971 and 1978, received his malignant mesothelioma diagnosis in April 2015, and filed a lawsuit against GE in August 2015.

Oliver alleged, among other things, that GE had negligently exposed him to asbestos during the construction of the two power plants and had caused him to contract mesothelioma. The plaintiff died in July 2016. The co-executors of his estate submitted an amended complaint and continued the litigation.

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GE moved for summary judgment on the ground that the plaintiffs’ claims against it were barred by a Massachusetts law that sets a six-year time limit for tort actions arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property.

The plaintiffs disputed that the law was intended to apply to cases involving diseases with extended latency periods, arguing that, if it applied, it would have the effect of extinguishing meritorious claims before they even came into existence.

A federal district court in Massachusetts ruled that GE’s turbine generators, including their insulation materials, were “indisputably” improvements to real property.

Notwithstanding this finding, the district court denied GE’s motion as to the claims arising from the alleged asbestos exposure because it was “not at all clear” that the statute was designed to bar a category of claims “known uniformly to have a latency period of at least [20] years,” particularly where “GE had control of the site at the time of [Mr.] Oliver’s asbestos exposure, conducted regular on-site maintenance and inspections for at least two decades after construction was complete, and continues . . . to perform [routine] refueling outages,” removing it from the category of defendants customarily protected by the statute.

Case law in question

The district court then certified the following question to the Supreme Judicial Court of Massachusetts: “[W]hether or not the Massachusetts statute of repose, [G. L. c.] 260, § 2B, can be applied to bar personal injury claims arising from diseases with extended latency periods, such as those associated with asbestos exposure, where defendants had knowing control of the instrumentality of injury at the time of exposure.”

Massachusetts law provides: Action[s] of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property . . . shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.

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The court answered the certified question in the affirmative, concluding that the law, “Completely eliminates all tort claims arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property after the established time period has run, even if the cause of action arises from a disease with an extended latency period and even if a defendant had knowing control of the instrumentality of injury at the time of exposure.”

In its decision, the court explained that it was “well established” that a statute of repose eliminated a cause of action at a specified time, regardless of whether an injury had occurred or a cause of action had accrued as of that date. The court added that a statute of repose placed “an absolute time limit on the liability of those within its protection” and abolished a plaintiff’s cause of action thereafter, even if the plaintiff’s injury did not occur, or was not discovered, until after the statute’s time limit had expired.

The court said that, in contrast to statutes of limitation, “statutes of repose may not be ‘tolled’ for any reason.”

The court’s verdict explained

The court rejected the plaintiffs’ contention that the law did not shield a defendant that was in control of the improvement to real property at the time of the incident giving rise to the cause of action, and did not apply to diseases with extended latency periods, such as those associated with asbestos exposure.

According to the court, the language of the law was “unequivocal,” providing that “in no event shall [an action of tort for damages covered herein] be commenced more than six years” after the earlier of two specified dates: “(1) the opening of the improvement to use; or (2) the substantial completion of the improvement and the taking of possession . . . by the owner.”

Setting precedent

The court said that the legislature’s apparent intent “was to place an absolute time limit on the liability of those protected by the statute.”

The court found further support for its conclusion in the fact that the legislature had expressly provided for an exception in another, similar statute of repose, applicable to medical malpractice actions arising from a foreign object left in a body.

The court held that the law “completely” eliminated all tort claims arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property after the established time period had run, even if the cause of action arose from a disease with an extended latency period and even if a defendant had knowing control of the instrumentality of injury at the time of exposure.

The “appropriate recourse,” the court concluded, was in the legislature, “not this court.”

The case is Stearns v. Metropolitan Life Insurance Co., No. SJC-12544 (Mass. March 1, 2019).

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