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Baumgartner v. American Standard INC.

Superior Court of Rhode Island

July 22, 2015

DENNIS R. BAUMGARTNER and GAIL L. BAUMGARTNER, Plaintiffs,
v.
AMERICAN STANDARD, INC., et al., Defendants.

Providence County Superior Court

For Plaintiff: Robert J. Sweeney, Esq.; Jeffrey S. Kanca, Esq.

For Defendant: Thomas W. Lyons, III, Esq.; Brian A. Fielding, Esq.;Bruce Gladstone, Esq.; Mark O. Denehy, Esq.; Victoria M. Almeida, Esq.; James R. Oswald, Esq.; Stephen T. Armato, Esq.; Lawrence G. Cetrulo, Esq.; David A. Goldman, Esq.; Christopher R. van Tienhoven, Esq.; Diane M. Kildea, Esq.; Mark J. Claflin, Esq.; Philip T. Newbury, Jr., Esq.; David A. Brosnihan, Esq.; Jessica L. Patch, Esq.; R. Bart Totten, Esq.; Elisar C. Hares, Esq.; Kenneth R. Neal, Esq.; Crystal L. Fraser, Esq.; Peter F. Mathieu, Esq.; Jason M. Saul, Esq.; Jeffrey M. Thomen, Esq.; James A. Ruggieri, Esq.; Christopher R. Howe, Esq.; Richard P. Campbell, Esq.; Kevin C. McCaffrey, Esq.; Todd S. Holbrook, Esq.; Zachary Weisberg, Esq.; Timothy M. Zabbo, Esq.; Cassandra L. Feeney, Esq.; Kathryn T. Rogers, Esq.; Theodorus Urbanski, Esq.; Mary C. Dunn, Esq. Danielle J. Mahoney, Esq.; Mark Nugent, Esq.; John B. Manning, Esq.; Jonathan F. Tabasky, Esq.

DECISION

GIBNEY, P.J.

Before the Court is a request by Defendants, pursuant to G.L. 1956 §§ 9-19-3 through 9-19-6 and Super. R. Civ. P. 44.1 (Rule 44.1), that it apply the substantive law of the states of Ohio and Michigan, taking judicial notice thereof to the above-captioned case.[1]Defendants also move for summary judgment pursuant to Super. R. Civ. P. 56 (Rule 56).[2] The Court addresses each matter in turn.

I

Facts & Travel

Plaintiffs, both of whom are Ohio residents, allege that Dennis R. Baumgartner (Mr. Baumgartner or Plaintiff) was exposed to Defendants' asbestos-containing products, which allegedly caused or contributed to his mesothelioma. Specifically, Plaintiffs allege, inter alia, that Mr. Baumgartner was exposed to asbestos-containing products during the course of his employment as an insulator helper and insulator at various jobsites located in Ohio and Michigan.

Mr. Baumgartner was born in Toledo, Ohio and has lived there his entire life. See Baumgartner Dep. Vol. I. 13:1-14:8, Oct. 15, 2013. On June 7, 2013, Mr. Baumgartner was diagnosed with mesothelioma at Toledo Hospital and he continues to receive treatment in Toledo. See Pl.'s Answers to Defs.' Interrog. ¶ 31. Even Mr. Baumgartner's discovery deposition occurred in Maumee, Ohio. Aside from the filing of the instant suit, there is no indication that Mr. Baumgartner has any relationship with the State of Rhode Island. Mr. Baumgartner has never lived, worked, or received medical treatment in Rhode Island.

II

Standard of Review

A

Choice of Law/Judicial Notice

Pursuant to §§ 9-19-3 through 9-19-6, 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.[3] 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 "[w]henever 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 relevant laws of that foreign state. "The determination of foreign laws shall be made by the court and not by the jury, and shall be reviewable." Sec. 9-19-5.

However, prior to taking judicial notice of a foreign state's laws, this Court must first determine if the laws of a foreign state are to be applied. In order to do so, this Court must conduct a choice-of-law analysis. Such a choice-of-law analysis consists of two steps. First, the Court must determine whether the laws of the forum and that of the foreign state are in conflict, i.e., a "true conflict" exists. See Nat'l Refrigeration, Inc. v. Standen Contracting Co., 942 A.2d 968, 973-74 (R.I. 2008) (noting that it is well established that "[a] motion justice need not engage in a choice-of-law analysis when no conflict-of-law issue is presented to the court"); Peavey Co. v. M/V ANPA, 971 F.2d 1168, 1171 (5th Cir. 1992) (holding that "the first inquiry [in a choice-of-law analysis] is whether there is a true or false conflict of interest"). On one hand, a "true conflict" exists when each state retains an interest in the application of its contradictory laws. Peavey Co., 971 F.2d at 1172. On the other hand, a "false conflict[]" is present when either "(1) there is no true conflict of laws because only one state is interested in the application of its law or (2) the laws of the two states are found to be compatible." Engine Specialties, Inc. v. Bombardier Ltd., 605 F.2d 1, 19 n.26 (1st Cir. 1979) (emphasis added). If a false conflict is found, i.e., there is no conflict, then the law of the interested state shall prevail.[4]However, if the laws are found to be in "true conflict, " then this Court shall apply Rhode Island's "interest-weighing approach." See Peavey Co., 971 F.2d at 1172 (finding that a "true conflict" exists when each state retains an interest in the application of its contradictory laws); Erwin v. Cotter Health Ctrs., 167 P.3d 1112, 1120 (Wash. 2007) (concluding that "[i]f the result for a particular issue is different under the law of the two states, there is a 'real' conflict").

In Harodite Indus., 24 A.3d at 534, the majority of the Rhode Island Supreme Court adopted the "interest-weighing approach" with respect to choice of law questions. In doing so, the majority reaffirmed its holding in Cribb v. Augustyn, 696 A.2d 285, 288 (R.I. 1997), that the lex loci delicti conflict-of-law doctrine[5] had been abandoned in Woodward v. Stewart, 104 R.I. 290, 299, 243 A.2d 917, 923 (1968).[6] Under the "interest-weighing approach[, ] . . . an action is separated into its various elements and each individual element or issue is governed by the law of the jurisdiction that has the most significant contacts relative thereto." Harodite Indus., 24 A.3d at 536.

In applying the "interest-weighing approach" this Court "'look[s] at the particular . . . facts and determine[s] therefrom the rights and liabilities of the parties in accordance with the law of the state that bears the most significant relationship to the events and the parties.'" Id. at 534 (quoting Cribb, 696 A.2d at 288). In an action sounding in tort, the following four factors shall be taken into account:

(1)the place where the injury occurred;
(2)the place where the conduct causing the injury occurred;
(3) the domicile, residence, nationality, place of corporation and place of business of the parties; and
(4)the place where the relationship, if any, between the parties is centered. See Harodite Indus., 24 A.3d at 526; Brown v. Church of the Holy Name of Jesus, 105 R.I. 322, 326–27, 252 A.2d 176, 179 (1969).

In addition, the policy considerations which must be taken into account in making this determination are as follows:

"(1) [P]redictability of result;
"(2) [M]aintenance of interstate and international order;
"(3) [S]implification of the judicial task;
"(4) [A]dvancement of the forum's governmental interests; and
"(5) [A]pplication of the better rule of law." Id.

Moreover, our Supreme Court has held, "'in an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship . . . .'" Najarian v. Nat'l Amusements, Inc., 768 A.2d 1253, 1255 (R.I. 2001) (quoting Restatement (Second) Conflict of Laws § 146).

B

Summary Judgment

"[S]ummary judgment is an extreme remedy that warrants cautious application." Gardner v. Baird, 871 A.2d 949, 952 (R.I. 2005). Pursuant to Rule 56(c), "[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001).

Once a summary judgment motion is made, "[t]he burden rests upon the nonmoving party 'to prove the existence of a disputed issue of material fact by competent evidence; it cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.'" Mut. Dev. Corp. v. Ward Fisher & Co., 47 A.3d 319, 323 (R.I. 2012) (quoting Hill v. Nat'l Grid, 11 A.3d 110, 113 (R.I. 2011)). Thus, "by affidavits or otherwise[, ] [opposing parties] have an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998). Accordingly, in order for a plaintiff to survive a defendant's summary judgment motion as to a particular claim, the plaintiff must "produce evidence that would establish a prima facie case for [that] claim . . . ." DiBattista v. State, 808 A.2d 1081, 1089 (R.I. 2002). Conversely, summary judgment is proper where the plaintiff is unable to establish a prima facie case. Kelley v. Cowesett Hills Assocs., 768 A.2d 425, 430 (R.I. 2001).

III

Analysis

A

Choice-of-Law Analysis/Judicial Notice

To resolve the procedural snarl that is this case's conflicts-of-law question, this Court shall address four issues. First, this Court will examine whether Rhode Island has adopted the doctrine of depecage and, if so, whether the doctrine would permit the application of different state laws to different Defendants named in this suit. Second, this Court must determine whether Rhode Island's laws are in conflict with those of Ohio and Michigan. Third, if the laws are found to be in conflict, the Court shall apply Rhode Island's "interest-weighing approach" by separating the instant action into its various elements and then determining which state law bears the most significant relationship to the Plaintiffs' case. Fourth, and finally, the Court shall take judicial notice of the relevant and applicable foreign laws.

1

Depecage

"In legal parlance, depecage erects the framework under which different issues in a single case, arising out of a common nucleus of operative facts, may be decided according to the substantive law of different states." Putnam Res. v. Pateman, 958 F.2d 448, 465 (1st Cir. 1992) (emphasis added). "Although the Rhode Island Supreme Court has yet to pledge express allegiance to the principle of depecage, the court's [prior] decisions make it clear that Rhode Island, like most other jurisdictions, adheres to the principle in the tort context." Id. Here, Defendants urge this Court to apply the principle of depecage in a manner that would parcel out applicable laws to different Defendants depending upon the location in which Mr. Baumgartner came into contact with their products.

This Court, however, "find[s] no precedent to support [the Defendant's] use of depecage, that is, on a defendant-by-defendant basis." Gregory v. Beazer E., 892 N.E.2d 563, 580 (Ill.App. 2008). Rather, "it is the issues presented in a case to which depecage applies, not the different defendants in a case." Id. (emphasis added); see La Plante v. Am. Honda Motor Co., 27 F.3d 731, 741 (1st Cir. 1994) (concluding that "[u]nder the doctrine of depecage, different substantive issues in a tort case may be resolved under the laws of different states where the choices influencing decisions differ"). Furthermore, "[a]s the court recognized in Gregory, depecage is inappropriate in the context of multi-defendant asbestos litigation because, inter alia, 'applying different legal standards to each joint tortfeasor-defendant in a multi-defendant suit alleged to have caused a single injury could lead to inconsistent results.'" Bootenhoff v. Hormel Foods Corp., 2014 WL 3810383, at *4, n.8 (W.D. Okla. Aug. 1, 2014) (quoting Gregory, 892 N.E.2d at 580).

2

Whether the Laws are in Conflict

Having determined that different state laws shall not be applied to different Defendants, this Court shall now analyze whether the enumerated laws of Rhode Island and Ohio are in conflict.[7] If the laws are not found to be in conflict, then the laws of Ohio shall be applied; however, if there is a "true conflict, " then the Court shall apply its "interest-weighing approach." See Avco Corp. v. Aetna Cas. & Sur. Co., 679 A.2d 323, 330 (R.I. 1996) (holding that plaintiff's choice-of-law contention was "feckless" because the trial justice's finding would have been the same regardless of law applied). The Defendants have advised this Court of the evident conflict of laws between Rhode Island and Ohio, including (1) defenses, inter alia, the bare-metal defense, the sophisticated user defense, the state-of-the-art defense, the open-and-obvious hazard doctrine, and the nonparty defense; (2) the statute of repose; (3) joint and several liability; (4) statutory caps on damages; and (5) standards of proof for product identification in asbestos cases.

a

Defenses

i

Bare-Metal and Replacement Component Defenses

Defendants have advised this Court that the so-called "bare-metal defense" is recognized in Ohio, but not in Rhode Island. Generally,

"'[t]he clear thrust of the bare metal defense is that a manufacturer cannot be held liable for asbestos-containing products used in conjunction with its bare metal [product], absent evidence that the manufacturer was part of the chain of distribution for those products.' Morgan v. Bill Vann Co., Inc., 969 F.Supp.2d 1358, 1369 (S.D. Ala. 2013). In other words, the bare metal defense stands for the proposition that a manufacturer is not liable for injuries caused by asbestos products, such as insulation, gaskets, and packing, that were incorporated into their products or used as replacement parts, but which they did not manufacture or distribute. Conner v. Alfa Laval, Inc., 842 F.Supp.2d 791, 793 (E.D. Pa. 2012)." Thurmon v. A.W. Chesterton, 2014 WL 6621262, at *3 (N.D.Ga. Nov. 21, 2014) (internal quotations omitted); see generally 4 Toxic Torts Litigation Guide § 33:18 ("The 'bare metal' defense shifts the burden of proof to the plaintiffs and requires them to prove more than just exposure to products that contained asbestos.").

This Court shall now examine whether Rhode Island or Ohio has adopted the "bare-metal defense."

The Rhode Island Supreme Court has yet to be presented with the issue of whether the "bare-metal defense" is recognized in Rhode Island. However, in Sweredoski v. Alfa Laval, Inc., this Court declined to adopt the "bare-metal defense, "[8] finding that "Rhode Island tort law requires a more fact-specific and nuanced analysis to determine whether liability in negligence or strict liability may attach for third-party replacement parts." 2013 WL 5778533, at *4 (R.I. Super. Oct. 21, 2013) (Gibney, P.J.). Accordingly, the Court found that a defendant manufacturer could be held liable for the plaintiff's exposure to asbestos-even if the plaintiff's exposure was due to a replacement part-under the principles of negligence and strict product liability.[9] As such, it appears that Rhode Island jurisprudence, although not precedential, has rejected the "bare-metal defense" and supports recovery against a manufacturer of a product even where the manufacturer's original product did not contain asbestos. See Sweredoski, 2013 WL 5778533, at *4.

Similarly, the Ohio Supreme Court has not directly resolved the question of whether the "bare-metal defense" is available in asbestos cases under state law.[10] However, more generally, "Ohio law is settled that a component part manufacturer has no duty to warn end-users of the finished product of the potentially dangerous nature of its parts in that product." Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1236 (6th Cir. 1995). "In Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977), the Ohio Supreme Court held that the supplier of operating buttons in a power press, which when assembled and modified by third parties caused serious injuries to the plaintiff, did not have a duty to warn end-users of the dangers posed by the inclusion of those buttons in the final power press." Id. Specifically, the court held:

"In our opinion, the obligation that generates the duty to warn does not extend to the speculative anticipation of how manufactured components, not in and of themselves dangerous or defective, can become potentially dangerous dependent upon the nature of their integration into a unit designed and assembled by another. Because of limited contact with [the power press manufacturer] there is no indication that [the operating button supplier] could have known that its components were to be fashioned or fabricated into the power press in the particular manner that they were." Temple, 364 N.E.2d at 272. See also Searls v. Doe, 29 Ohio App.3d 309, 505 N.E.2d 287, 290 (1986) ("[D]efendants, as manufacturers of component parts, had no duty to warn plaintiff of a potentially dangerous or defective design of a [beer can ejection system], where defendants were not responsible for the design and manufacture of the entire system and where the component parts, not in and of themselves dangerous or defective, were manufactured in accordance with [the purchaser/manufacturer's] specifications.").

Furthermore, Ohio trial courts have addressed the issue of liability for after-applied, third party asbestos-containing products. Generally, such courts have "acknowledged that certain factual scenarios may arise under Ohio law where liability may attach to manufacturers of products for injuries caused by a plaintiff's exposure to a different manufacturer's asbestos-containing products." Fischer v. Armstrong Int'l, Case No. 07-615514 (Ohio Com. Pl. Feb. 14, 2008) (Sweeney, J.). For instance, in Perry v. Allis-Chalmers Corp. Prods. Liab. Trust, Case No. 608652 (Ohio Com. Pl. Oct 26, 2007) (Hanna, J.), the court denied summary judgment because the defendant specified replacement parts must contain asbestos. Nevertheless, the courts have held that a plaintiff must produce some evidence indicating that the original manufacturer recommended or required the use of asbestos insulation upon its products. Fischer, Case No. 07-615514, at 3; see Cupp v. Anchor Packing Co., Case No. 541307 (Ohio Com. Pl. June 20, 2008) (Hanna, J.) (requiring that there be some evidence that manufacturer specified that an asbestos-containing gasket must be installed on the compressor to enable it to function in its normal intended use). Put another way, the fact that the defendant manufacturer may have foreseen that asbestos products could later have been used in conjunction with the original product, standing alone, is not sufficient to impose liability. See Davis v. Bondex Int'l, Case No. 629433 (Ohio Com. Pl. Feb. 13, 2009) (Hanna, J.) (holding that while "[d]efendants might have foreseen that the products could have been . . . utilized [with asbestos products], that alone does not impose liability upon them"); Fischer v. Armstrong Int'l, No. 07-615514 (Ohio Com. Pl. Jan. 2, 2008) (Sweeney, J.) (finding that a supplier of valves and steam traps had no duty to warn of exposure to after-applied asbestos products where there was no evidence that plaintiff came into contact with internal asbestos gaskets).

Here, the trial court decisions indicate that the Ohio Supreme Court, if faced with the question, would recognize a "bare-metal defense." Therefore, this Court finds that Ohio and Rhode Island law differ as to whether a product seller may be held liable for the injuries suffered as a result of a plaintiff's exposure to asbestos in the seller's product when that asbestos came from non-original, replacement components.

ii

Sophisticated User Defense

Defendants contend that Ohio courts recognize and apply the "sophisticated user" or "knowledgeable purchaser" doctrine.

"Under the sophisticated-or-knowledgeable-purchaser doctrine, a manufacturer's duty to warn may be discharged by providing the information about the dangers of the product to a third person upon whom it can reasonably rely to communicate the warning to the ultimate users of the product. The question is whether the manufacturer was reasonable in relying on an employer to convey the necessary information to its employees. The reasonableness of the manufacturer's reliance on the employer to convey the warning involves a fact-specific evaluation." Doane v. Givaudan Flavors Corp., 919 N.E.2d 290, 297 (Ohio App. 2009); see Mary-Christine (M.C.) Sungaila & Kevin C. Mayer, Limiting Manufacturers' Duty to Warn: The Sophisticated User and Purchaser Doctrines, 76 Def. Couns. J. 196 (2009) (The [sophisticated user] doctrine negates a manufacturer's duty to warn of a potential danger posed by a product where the plaintiff (or present user) has, or should have had, advance knowledge of a product's inherent hazards).

In support, Defendants rely upon the case of Roberts v. George V. Hamilton, Inc., 2000 WL 875324, at *1 (Ohio Ct. App. June 30, 2000).

"Roberts involved a claim against a manufacturer of asbestos-containing insulation brought by the widow of a man who had formerly been employed by an industrial company that used the insulation, and the plaintiff alleged that the manufacturer had failed to warn her deceased husband's employer about the risks associated with the insulation." Eastman v. Stanley Works, 907 N.E.2d 768, 782 (Ohio App. 2009) (citing Roberts, 2000 WL 875324, at *1).

However, in Roberts, the "sophisticated user" was the employer, not the plaintiff's decedent. Eastman, 907 N.E.2d at 782. Thus, this Court finds that Ohio law has yet to recognize the application of the "sophisticated user" doctrine to an individual employee.[11] Nevertheless, the Defendants are entitled to present evidence that Mr. Baumgartner's employers had knowledge of the dangers of asbestos. See Aikins v. Gen. Elec. Co., 2011 WL 6415117, at *1 (E.D. Pa. Dec. 9, 2011) (citing In re Related Asbestos Cases, 543 F.Supp. 1142, 1151-52 (N.D. Cal. 1982)) (allowing "the manufacturer defendant's assertion of the sophisticated user defense on grounds of the Navy's having knowledge of asbestos-related hazards, without even considering the level of sophistication of the individual plaintiff").

As to Rhode Island, this Court has found no case law indicating that the "sophisticated user" doctrine is recognized in this jurisdiction. Generally, "'[i]n negligence, the defendant only has a duty to warn if he had reason to know about the product's dangerous propensities which caused plaintiff's injuries . . . . Under strict liability, a seller need only warn of those dangers that are reasonably foreseeable. If he [or she] does not provide such a warning, then the product is rendered defective.'" Raimbeault v. Takeuchi Mfg. (U.S.), Ltd., 772 A.2d 1056, 1063-64 (R.I. 2001) (quoting Thomas v. Amway Corp., 488 A.2d 716, 722 (R.I. 1985)). Because this Court finds that Rhode Island does not recognize the "sophisticated user" doctrine, there is a conflict of laws.

iii

State-of-the-Art Defense

Defendants argue that the state-of-the-art defense is recognized in Ohio, but not in Rhode Island. Section 2307.75(f) of the Revised Ohio Code provides:

"A product is not defective in design or formulation if, at the time the product left the control of its manufacturer, a practical and technically feasible alternative design or formulation was not available that would have prevented the harm for which the claimant seeks to recover compensatory damages without substantially impairing the usefulness or intended purpose of the product." Ohio R.C. § 2307.75 (West 2015).

Rhode Island, in contrast, has not enacted a statute providing for the so-called "state-of-the-art defense, " nor has such a defense been recognized by our Supreme Court. See generally Fortier v. Olin Corp., 840 F.2d 98, 101 (1st Cir. 1988) (holding that the "'state of the art' defense, which is predicated upon the theory that the defendant manufacturer should not be held liable for risks that were 'scientifically unknowable' at the time of manufacture, but only for risks then discoverable, which should be measured by the state of the art at the time of distribution or sale"). Therefore, this Court finds the two laws are in conflict.

iv

Open-and-Obvious Hazard Doctrine

Defendants point out that the Ohio General Assembly has passed a statute explicitly recognizing the open-and-obvious hazard doctrine. Section 2307.76(B) of the Revised Ohio Code provides, in full:

"[a] product is not defective due to lack of warning or instruction or inadequate warning or instruction as a result of the failure of its manufacturer to warn or instruct about an open and obvious risk or a risk that is a matter of common knowledge." Ohio R.C. § 2307.76(B).

As such, "[u]nder Ohio statute, [d]efendants do not have a duty to warn where the risks of injury are open and obvious or are a matter of common knowledge. Likewise, [d]efendants cannot be liable for negligent failure to warn if the risk is open and obvious. McConnell v. Cosco, Inc., 238 F.Supp.2d 970, 977-78 (S.D. Ohio 2003) (internal citations omitted). "In considering whether a product presents an open-and-obvious risk, it is necessary to determine whether the particular hazard giving rise to the subject injury was obvious or commonly known." Lykins v. Fun Spot Trampolines, 874 N.E.2d 811, 816 (Ohio 2007).

Conversely, the Rhode Island General Assembly has not enacted an analogous statute; however, "[i]n Rhode Island the defense of assumption of risk remains viable in products-liability cases." Mignone v. Fieldcrest Mills, 556 A.2d 35, 41 (R.I. 1989); see Gentile v. Vecchio, 92 R.I. 38, 41, 166 A.2d 126, 127 (1960) (holding that "where a risk incident to the employment is obvious or is as apparent to the employee as to the employer, an employee who undertakes to work under such conditions assumes the risk of the perils involved"). Here, there is a conflict in the respective laws because Rhode Island, although it recognizes an analogous doctrine, does not explicitly allow for an exception to the duty to warn based upon an open or obvious danger.

v

Nonparty Defense

Defendants have advised this Court that the nonparty defense is recognized in Ohio, but not Rhode Island. Under Ohio law, the trier of fact may allocate fault to a nonparty to the suit. See Fisher v. Beazer E., Inc., 138 Ohio St.3d 1469 ("The statute provides for the apportionment of fault to others, including persons or entities not present at the time of trial."). Ohio R.C. § 2307.23 sets forth the requirements when determining percentage of tortious conduct attributable to a party and provides as follows:

"(A) In determining the percentage of tortious conduct attributable to a party in a tort action . . . the jury in a jury action shall return a general verdict accompanied by answers to interrogatories, that shall specify all of the following:
"(1) The percentage of tortious conduct that proximately caused the injury or loss to person or property or the wrongful death that is attributable to the plaintiff and to each party to the tort action from whom the plaintiff seeks recovery in this action;
"(2) The percentage of tortious conduct that proximately caused the injury or loss to person or property or the wrongful death that is attributable to each person from whom the plaintiff does not seek recovery in this action.
"(B) The sum of the percentages of tortious conduct as determined pursuant to division (A) of this section shall equal one hundred per cent.
"(C) For purposes of division (A)(2) of this section, it is an affirmative defense for each party to the tort action from whom the plaintiff seeks recovery in this action that a specific percentage of the tortious conduct that proximately caused the injury or loss to person or property or the wrongful death is attributable to one or more persons from whom the plaintiff does not seek recovery in this action . . . ." Ohio R.C. § 2307.23 (emphasis added).

Pursuant to Ohio R.C. § 2307.011(G), "Persons from whom the plaintiff does not seek recovery in this action" include, but are not limited to, the following:

"(1) Persons who have entered into a settlement agreement with the plaintiff;
"(2) Persons whom the plaintiff has dismissed from the tort action without prejudice;
"(3) Persons whom the plaintiff has dismissed from the tort action with prejudice;
"(4) Persons who are not a party to the tort action whether or not that person was or could have been a party to the tort action if the name of the person has been disclosed prior to trial." Ohio R.C. 2307.011(G).

In contrast, the Rhode Island General Assembly has not enacted a statute that provides for a nonparty defense, nor has our Supreme Court recognized such a defense. Thereby, there is a conflict between Ohio and Rhode Island law.

b

Statutes of Repose

Both Ohio and Rhode Island have enacted statutes which provide a ten-year statute of repose for any claims related to damages arising out of the defective or unsafe condition of an improvement to real property.[12] Preliminarily, Plaintiffs argue that the statute of repose is inapplicable to asbestos-related injuries because Ohio R.C. § 2305.10-the applicable statute of limitations for asbestos-related injuries-should be construed to supersede the statute of repose. Ohio R.C. § 2305.10(A) and (C) provide:

"(A) Except as provided in division (C) or (E) of this section, an action based on a product liability claim and an action for bodily injury or injuring personal property shall be brought within two years after the cause of action accrues. . . .
"(C)(1) Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6), and (7) of this section or in section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly, or rebuilding of another product. . . .
"(C)(6) Division (C)(1) of this section does not bar an action for bodily injury caused by exposure to asbestos if the cause of action that is the basis of the action accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an ...

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