WAYNE F. JONES and ROBERTA JONES, Plaintiffs,
84 LUMBER COMPANY, et. al., Defendants.
Providence County Superior Court
For Plaintiff: John E. Deaton, Esq.
For Defendant: Lawrence G. Cetrulo, Esq. Lawrence J. Sugarman, Esq.
Before the Court are the Defendants' motions, pursuant to G.L. 1956 §§ 9-19-3 et seq. and Super. R. Civ. P. 44.1 (Rule 44.1), requesting that this Court take judicial notice of Tennessee law. For the reasons set forth below, these motions are granted.
I Facts & Travel
Plaintiffs allege that Wayne F. Jones (Plaintiff or Mr. Jones) was exposed to asbestos-containing products manufactured or sold by Defendants, which caused Mr. Jones' mesothelioma. With the exception of one year in Maryland-where Mr. Jones worked at Bethlehem Steel-he has lived in the State of Tennessee for his entire life. Accordingly, the majority of Mr. Jones' alleged asbestos exposure occurred in Tennessee. Furthermore, Mr. Jones was diagnosed in, and is being treated in, Tennessee.
On December 17, 2014, this Court granted the Defendants' motion to apply Tennessee law to the instant case. See Jones v. 84 Lumber Co., et al., No. 13-2485, Dec. 17, 2014 (Order) Gibney, P.J. Defendants now ask this Court to take judicial notice of four areas where they contend that Tennessee substantive law should apply.
II Standard of Review
"At common law the laws of foreign nations as well as sister states, not being laws of the forum, could not be judicially noticed." C.T. Drechsler, Annotation, Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437, at § 1 (1952). However, in "1936[, ] the National Conference of Commissioners on Uniform State Laws adopted the Judicial Notice of Foreign Law Act, the purpose of which was to standardize and simplify the proof of laws of foreign states." Id. In 1940, the Rhode Island General Assembly enacted a revised form of the Judicial Notice of Foreign Law Act, P.L. 1940, chap. 939. Id.; see Cliff v. Pinto, 74 R.I. 369, 375, 60 A.2d 704, 707 (1948) (finding that "[t]he object of the act undoubtedly was to provide a simple method of enabling the courts of the forum to ascertain the law of every state, territory and other jurisdiction of the United States"); Eric D. Green and Robert G. Flanders, Rhode Island Evidence Manual § 201.02 (2005) ("[J]udicial notice of the law of sister states and of foreign law is fully governed by the Uniform Judicial Notice of Foreign Law Act, R.I.G.L §§ 9-19-2 through 9-19-8. This Act makes the determination of foreign law a question for the court and not the jury.").
Pursuant to §§ 9-19-3 et seq., a party relying on foreign law may ask the court to take judicial notice of foreign statutory law and may introduce into evidence statutes or cases to prove the foreign law. See §§ 9-19-3 through 9-19-6. Section 9-19-3 provides that "[e]very court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States." Sec. 9-19-3 (emphasis added). Furthermore, § 9-19-6 provides:
"[a]ny party may . . . present to the trial court any admissible evidence of foreign laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise." Sec. 9-19-6.
Our Supreme Court has held that "whenever there is a case . . . in which it is undisputed and agreed that the law of a sister state applies, the trial court [is] . . . required to take judicial notice of all statutes and judicial decisions of that state relevant to the issue presented under [Rhode Island's] Uniform Judicial Notice of Foreign Law Act, (G.L. 1956) [§§] 9-19-2 to 9-19-8[.]"
Clougherty v. Royal Ins Co, 102 RI 636, 648, 232 A.2d 610, 616 (1967) (Kelleher, J, concurring) (internal citations omitted and emphasis added). Thus, once the court has determined that the law of a foreign state shall be applied, any party may ask the court to take judicial notice of the law of that foreign state. Accordingly, "[t]he determination of foreign laws shall be made by the court and not by the jury, and shall be reviewable." Sec. 9-19-5.
Plaintiffs have brought claims based upon 1) the Defendants' failure to warn; 2) negligence; 3) strict product liability; 4) breach of warranty; 5) civil conspiracy; and 6) loss of consortium. See Pls.' Compl. Defendants ask this Court to take judicial notice of Tennessee common and statutory law as it relates to 1) Tennessee's modified comparative fault doctrine; 2) a statutory $750, 000 cap on noneconomic damages; 3) whether nonparties, including bankrupt companies, may be included on the verdict sheet; and 4) the innocent retailer statute.,  Plaintiffs agree that Tennessee law should be applied; however, they caution that it is premature for this Court to state that specific rules of law apply prior to hearing any testimony. Essentially, Plaintiffs contend that the facts will determine the application of the law and at this stage of the litigation-prior to trial-it is too early to say what laws will or will not be applied.
A Substantive Versus Procedural Law
Defendants have asked this Court to take judicial notice of several areas of Tennessee substantive law, which they contend are relevant and applicable to the case at hand. Preliminarily, this Court must determine whether the stated areas of law are substantive or procedural in nature. If a law is determined to be procedural in nature then this Court shall apply Rhode Island law. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 n.10 (1984) ("Under traditional choice of law principles, the law of the forum State governs on matters of procedure."). On the other hand, if a law is found to be substantive, then the Court-having previously determined that Tennessee law shall govern-will apply Tennessee substantive law. See Harodite Indus., Inc., 24 A.3d at 536 ("'[O]nce a forum has established sufficient interests to warrant applying its own substantive laws to a given issue, . . . it follows that the forum is warranted in applying its own substantive laws whether those laws are based on common-law rights, or whether they depend totally upon statutory enactment for their existence.'") (quoting Woodward v. Stewart, 104 R.I. 290, 298, 243 A.2d 917, 922 (1968)); 1 Wigmore, Evidence § 5 at 358 n. 11 (Tillers rev. 1983) ("Burdens of proof, sufficiency of evidence . . . and presumptions are sometimes treated as substantive and sometimes as procedural, with burdens of proof and those evidentiary rules thought to affect burdens of proof being most often treated as substantive.").
In determining whether a law is substantive or procedural, "the meaning of those terms is instructive." Harodite Indus., Inc., 24 A.3d at 537. Substantive law is "[t]he part of the law that creates, defines, and regulates the rights, duties, and powers of parties." Black's Law Dictionary 1658 (10th ed. 2014); see John Salmond, Jurisprudence 476 (Glanville L. Williams ed. 10th ed. 1947) ("So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other."). Procedural law, on the other hand, is defined as the "rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves." Black's Law Dictionary, supra, at 1398; see 16 Am. Jur. 2d Conflict of Laws ...