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In re Asbestos Litigation

Superior Court of Rhode Island

November 2, 2016

In Re: Asbestos Litigation
ALFA LAVAL, INC., Individually and as Successor in Interest to SHARPLES CORP., et al. Defendants. CHARLES P. PISANO AND MARY ANN B. GRAHAM, individually and as Co-Executors of the Estate of JOHN A. PISANO Plaintiffs,

         Providence County Superior Court

          For Plaintiff: Plaintiff, John A. Pisano Elizabeth Murray Tavelli, Esq., Brian P. Kenney, Esq., Robert J. Sweeney, Esq., Donni Young, Esq.

          For Defendant American Standard Ingersoll-Rand Company The Trane Company Cassandra L. Feeney, Esq., Atwood & Morrill Kathryn Rogers O'Brien, Esq., Theodorus Urbanski, Esq., Cleaver-Brooks Company, Inc. Peter F. Mathieu, Esq., Gould Pumps, Inc. Howden Buffalo, Inc. Kevin C. McCaffrey, Esq., Lucent Technologies, Inc. James J. McKenna, Esq., Metropolitan Life Insurance Co. Mary C. Dunn, Esq., Sears Roebuck & Co. Jason Caron, Esq., Margreta Vellucci, Esq., Verizon Pennsylvania LLC Holly M. Polglase, Esq., Warren Pumps, Inc. Zachary Weisberg, Esq.


          GIBNEY, P.J.

         The Defendant Sears, Roebuck and Co. (Sears or Defendant) seeks summary judgment in the above-entitled personal injury matter. Defendant argues that there are no genuine issues of material fact, that there is insufficient product identification, that the Decedent's affidavits offered to defeat summary judgment contain inadmissible hearsay, and that Defendant is exempt from liability under Rhode Island's Statute of Repose. Plaintiffs object to the motion and argue that there are genuine issues of material fact for trial, that prior to his death the Decedent provided sufficient product identification via his affidavits, that the affidavits meet the dying declaration exception to the hearsay rule, and that the Defendant is not exempt from liability under the Statute of Repose. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

          I Facts and Travel

         In September of 2013, John A. Pisano (Mr. Pisano or the Decedent) was diagnosed with asbestos-related mesothelioma. In late October and early November, Mr. Pisano executed three affidavits (the Sears Affidavits) relating to his exposure to asbestos and asbestos-containing products sold in part by Defendant. In November of 2013, Mr. Pisano filed an asbestos-related personal injury action asserting claims of negligence, failure to warn, strict liability, and breach of warranty against Defendant. Three months after his diagnosis, Mr. Pisano died in December of 2013 as a result of his illness. He was never deposed.

         In the Sears Affidavits, Mr. Pisano alleged that in 1964, he installed asbestos-containing tiles in his home using mastic purchased from Sears. He alleged that these tiles and mastic came from the Sears Company and remembers the appearance, color, and size of the tiles installed. In the first affidavit, executed on October 25, 2013, Mr. Pisano made statements regarding the installation of asbestos-containing floor tiles in the basement of his home. He recounted that a neighbor helped him with installation and that they had cut the tiles to fit around the edge of the room. The Decedent and his neighbor used a hand saw to cut the tiles, which in turn produced dust that the Decedent inhaled. Mr. Pisano stated that the tiles were 10x10 inches with a "speckled pattern and black and white in color." Pls.' Ex. 1.

         A second affidavit executed on November 1, 2013 recounts that same event and stated that the tiles were 9x9 inches and were "black and white in color." Pls.' Ex. 2. Mr. Pisano advised that he had circled a description of the installed tiles, which can be found in the Sears catalog for Spring and Summer of 1964. Finally, the third affidavit executed on November 1, 2013 stated that Mr. Pisano participated in the installation of ceiling tiles in his home. He recalls the size and description of these tiles, which again were sold by Sears. The Decedent stated that the ceiling tiles were 12x12 inches and were an "off white color" with an "egg shell appearance." Pls.' Ex. 3. While there is no direct mention that these ceiling tiles may have contained asbestos, Mr. Pisano stated that he had attached and circled the product in question in a copy of the Sears 1964 catalog. Following Mr. Pisano's death in December of 2013, Plaintiffs brought this action for personal injury against Sears and present all three Sears Affidavits in order to overcome Defendant's Motion for Summary Judgment.

         II Standard of Review

         "[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 presented, "[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 motion for summary judgment 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). "A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is legally dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment." Mitchell v. Mitchell, 756 A.2d. 179, 185 (R.I. 2000).

         III Parties' Arguments

         Defendant argues that the Plaintiffs have failed to offer, and have no expectation of offering at trial, proper product identification. Defendant alleges that Plaintiffs cannot demonstrate any causal connection between Mr. Pisano's medical condition and the installation of asbestos-containing tiles, which were sold by Sears during the 1960s. Sears contends that during that time period, Sears sold two nearly identical floor tiles, one which contained asbestos, while the other was solid vinyl. Sears asserts that to the naked ...

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