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From Products Liability Law Daily, August 10, 2016

Non-conflicting statutes of repose bar inadequate warning claims against asbestos products makers

By Pamela C. Maloney, J.D.

After determining that Washington’s statute of repose did not apply to personal injury actions, a court of appeals in Washington held, in an unpublished opinion, that Alaska’s 10-year repose period did not bar failure-to-warn and gross negligence claims arising out of a worker’s take-home and workplace exposure to asbestos (Hoffman v. General Electric Co., August 9, 2016, Johanson, J.).

The worker, who was diagnosed with mesothelioma in 2013, was exposed to asbestos as a child from his father’s work clothing and during his own employment at a pulp mill operated by Ketchikan Pulp Company. During his employment, the worker worked on or near power-generating turbines that were covered by thermal insulation material containing asbestos and that required a certain type of asbestos-containing gasket manufactured by General Electric Co. After his diagnosis, he filed a personal injury lawsuit against Ketchikan and GE, alleging theories of products liability and negligence for failure to warn, among other counts. Finding that there was a conflict of law between Washington’s repose period and Alaska’s statute of repose (the location of the pulp mill), the superior court applied the most significant relationship test in determining that Alaska law governed this issue. Agreeing with Ketchikan and GE that the worker’s claims were barred by the Alaska statute of repose, the superior court dismissed the claims. The worker appealed, arguing that the superior court erred in finding that a conflict existed and that Alaska’s substantive law, including the statute of repose, applied to the action. In the alternative, the worker argued that if the Alaska repose period applied, several exceptions to the procedural bar of the statute of repose applied to his claims.

Statutes of repose at issue. Alaska’s statute of repose provides, in pertinent part, that an action for personal injury, death, or property damage must be commenced within 10 years of the earlier of the date of the last act alleged to have caused the personal injury, death, or property damage. Washington’s equivalent statute of repose, and the only one that could govern the worker’s claims in this case, applies only to claims or causes of action brought against construction, engineering, and design professionals and does not contain any provision relating to personal injuries. As a result, the parties agreed that under Washington’s statute of repose, the worker’s claims were not barred.

However, the parties disagree as to whether Alaska’s statute of repose barred these claims. The worker argued that his claims were exempt from Alaska’s repose period because his injuries were the result of (1) prolonged exposure to hazardous waste, (2) the presence of "foreign bodies," (3) defective products, and (4) intentional acts or gross negligence. The defendants argue to the contrary that the worker’s claims did not fall under these exceptions. The appellate court concluded that the worker’s allegations supported the conclusion that one or more of the four cited exceptions apply and, therefore, the superior court erred in dismissing the claims as barred by the Alaska statute of repose.

Defective product. Setting aside the question of whether the turbines manufactured by GE for the pulp mill were "products," the court found that the worker presented sufficient evidence that GE had sold or facilitated the supply of gaskets used in the turbines and that GE had suggested or specified that asbestos insulation be used with its turbines. There was also evidence to support a finding that the worker and his father had worked around the GE turbines equipped with GE-supplied asbestos gaskets and that this work had exposed him or his father to asbestos. Thus, GE could be liable to the worker as the supplier of defective products.

However, there was no evidence that the worker’s injuries were caused by the pulp mill operator’s defective products and thus, the "defective product" exception did not apply to the worker’s claims against the pulp mill operator.

Gross negligence. In support of his contention that the exception to the statute of repose for intentional acts and gross negligence also precluded dismissal of his claims, the worker alleged that GE knew of the dangers associated with asbestos as early as the 1930s, but purposefully disregarded or ignored that knowledge by continuing to send asbestos materials to the mills where the worker and his father were employed. There was also testimony in the record that the pulp mill operator might have known of the dangers of asbestos in the 1950s, yet failed to protect the worker from those hazards. Presuming these facts to be true, as required when reviewing the record in response to a motion to dismiss, the court concluded that the gross negligence exception would apply and the worker’s claims would not be barred by Alaska’s statute of repose.

The case is No. 47439-5-II.

Attorneys: John Wentworth Phillips (Phillips Law Group PLLC) for Larry Hoffman. Christopher S. Marks (Sedgwick LLP) for General Electric Co. David Albert Shaw (Williams, Kastner & Gibbs PLLC) for Ketchikan Pulp Co. G. William Shaw (K&L Gates LLP) for Alaskan Copper Companies, Inc. d/b/a Alaska Copper and Brass. William Edward Fitzharris, Jr. (Preg, O'Donnell & Gillett) for Armstrong International, Inc. Mark Bradley Tuvim (Gordon & Rees LLP) for Asbestos Corp. Ltd.

Companies: General Electric Co.; Ketchikan Pulp Co.; Alaskan Copper Companies, Inc. d/b/a Alaska Copper and Brass; Armstrong International, Inc.; Asbestos Corp. Ltd.

MainStory: TopStory WarningsNews SofLReposeNews SCLIssuesNews AsbestosNews AlaskaNews WashingtonNews

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