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From Products Liability Law Daily, March 4, 2019

Massachusetts draws hard line on time-barred asbestos exposure tort suits

By Georgia D. Koutouzos, J.D.

Six-year repose period applies even if diseases have extended latency periods.

Massachusetts’ statute of repose applies to tort claims arising from latent diseases where the defendants had knowing control of the injurious instrumentality at the time of exposure, the commonwealth’s highest court advised, recognizing that nearly all tort claims arising from negligence in the use or handling of asbestos would be barred in construction-related lawsuits but asserting that the appropriate recourse for rectifying that problem lies with the legislature (Stearns v. Metropolitan Life Insurance Co., March 1, 2019, Cypher, E.).

A pipe inspector who had been present when asbestos-containing insulation was cut, mixed, and applied to certain piping systems in the steam turbine generators at two nuclear power plants in the 1970s was diagnosed with mesothelioma in 2015 and perished from that disease the following year. After his diagnosis, the ailing man filed suit in Massachusetts commonwealth court against the turbine manufacturer, General Electric Co., and its liability insurer, alleging that the company had negligently exposed him to asbestos during the plants’ construction and had caused his illness. The case was removed to federal court, and the executors of his estate continued the litigation after his death.

GE moved for summary judgment, arguing that the representatives’ claims were barred by Massachusetts’ 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 (Mass. G. L. c. 260, §2B). The representatives disputed that the repose period established by the provision was intended to apply to cases involving diseases with extended latency periods because it otherwise had the effect of extinguishing meritorious claims before they even came into existence.

The trial court found that GE’s turbine generators—including their insulation materials—were "indisputably" improvements to real property under the statute. Nevertheless, the court denied the company’s motion with respect to the claims arising from the alleged asbestos exposure on the basis that it was unclear whether §2B was designed to bar a category of claims known to have a latency period of at least 20 years, particularly where GE had control of the site at the time of the decedent’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 (thus removing the company from the category of defendants customarily protected by the provision).

GE moved for reconsideration of the decision or certification of the ruling for interlocutory appeal to a federal appellate panel. The judge denied the company’s motion and certified to Massachusetts’ highest court the question of whether the at-issue repose provision could be applied to bar personal injury claims arising from diseases with extended latency periods such as those associated with asbestos exposure, where the defendants had knowing control of the instrumentality of injury at the time of exposure.

Applicability of statute. A statute of repose eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date, the state’s highest court instructed, adding that the statute places an absolute time limit on the liability of those within its protection and abolishes a plaintiff’s cause of action thereafter, even if the plaintiff’s injury does not occur, or is not discovered, until after the statute’s time limit has expired.

Additionally, in contrast to statutes of limitation, statutes of repose may not be tolled for any reason. Indeed, the only way to satisfy the absolute time limit of a statute of repose is to commence the action prior to the expiration of that time limit. The at-issue provision is no exception to those rules, the court held, reasoning that limiting the duration of liability serves a legitimate public purpose even though it may abolish a plaintiff’s cause of action without providing any alternative remedy.

The language of the provision is unequivocal, stating 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."

The legislature’s apparent intent was to place an absolute time limit on the liability of those protected by the statute, the court opined, concluding that §2B 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 establishing the six-year limit, the legislature struck what it considered to be a reasonable balance between the public’s right to a remedy and the need to place an outer limit on the tort liability of those involved in construction, the high court held, noting that the appropriate recourse for addressing any inequities imposed by the time limit is in the legislature and not in the courts.

The case is No. SJC-12544.

Attorneys: Michael J. McCann (Shepard Law) for June Stearns. John A. Heller (Sidley Austin LLP) for Metropolitan Life Insurance Co. and General Electric Co.

Companies: Metropolitan Life Insurance Co.; General Electric Co.

MainStory: TopStory SofLReposeNews AsbestosNews MassachusettsNews

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