BRENDA HINKLEY, Personal Representative of the Estate of RUDOLPH ALLEN, Deceased and DOROTHY ALLEN, His Wife, in her own right, Plaintiffs,
A.O. SMITH CORPORATION, et al., Defendants.
County Superior Court
Plaintiff: Vincent L. Greene, IV, Esq.
Defendant: Monica R. Nelson, Esq. Andy McConnell, Esq. Andrew
R. McConville, Esq.
Defendant New England Insulation Company (Defendant or NEI)
seeks summary judgment in the above-entitled personal injury
matter brought by Plaintiffs Brenda Hinkley, Personal
Representative of the Estate of Rudolph Allen, and Dorothy
Allen, the Decedent's wife (Plaintiffs). The present
Defendant objects to the application of Maine law that was
previously requested by co-defendants on October 15, 2015 and
agreed to by the Plaintiffs on November 16, 2016.
Additionally, the Defendant argues that under either Maine or
Rhode Island law, the Plaintiffs have failed to provide
sufficient product identification to overcome summary
judgment. The Plaintiffs contend that the application of
Maine law is proper and that sufficient product
identification has been presented to survive summary
judgment. This Court exercises jurisdiction pursuant to G.L.
1956 § 8-2-14.
Decedent, Rudolph Allen (Mr. Allen or the Decedent), and his
wife, Dorothy Allen, filed this instant action on April 27,
2015 after the Decedent was diagnosed with mesothelioma on
March 11, 2015. The Plaintiffs allege that Mr. Allen worked
as a plumbing-heating tradesman from 1949 to 1959 and
subsequently worked as a plumber-pipefitter from 1960 to the
late 1970s. The Plaintiffs allege that Mr. Allen, while at
work, inhaled, absorbed, and came into contact with asbestos
and asbestos-containing products.
Allen was born in Maine, where he lived the majority of his
life, with the exception of the two and one-half years that
he served in the Navy beginning in 1943 and the nine years
that he lived on Long Island, New York. Following his time in
the Navy, Mr. Allen worked in New York and Maine on various
jobs which included plumbing, boiler and heating equipment
installation, and finally as a union pipefitter from 1963
through retirement. Mr. Allen's exposure allegations in
the present motion involve his employment in the fields of
plumbing, heating, and pipefitting at multiple paper mills,
the majority of which were located in Maine. In his
deposition testimony, Mr. Allen specifically testified to his
time working at International Paper Mill in Jay, Maine where
he worked around outside contractors who installed
asbestos-containing pipe covering.
Allen died in Auburn, Maine on October 10, 2015.
Subsequently, Mr. Richard R. Ouellette (Mr. Ouellette), a
co-worker of the Decedent, was deposed on July 6, 2016. Mr.
Ouellette worked with Mr. Allen at International Paper Mill
in Jay, Maine, and he testified that the Decedent was his
foreman. During this time, Mr. Ouellette worked with Mr.
Allen assisting in the construction of a new power house.
After this construction project was complete, Mr. Ouellette
continued to work alongside the Decedent for approximately
two months at the International Paper Mill on the digester
and pulp mill areas. Mr. Ouellette stated that outside
contractors installed and cut asbestos-containing pipe
covering in the power house, the pulp mill, and the digester
and that such cutting created dust which both he and the
Morin, a worker at International Paper Mill, testified in
another suit that he worked on the paper machines at the mill
from 1956 until 1972. Mr. Morin recalled NEI as the
insulation contractor that performed the insulation work at
International Paper Mill, since he remembers seeing its name
on the trucks. He testified that NEI installed pipe covering
and that this process created dust.
15, 2015, co-defendants Crane Co. and Kimberly-Clark
Corporation filed a Notice to Apply the Foreign Law of Maine
to the instant action. On July 21, 2015, the Plaintiffs
opposed that Notice to Apply Foreign Law. On November 13,
2015, co-defendant S.D. Warren motioned to join
Kimberly-Clark Corporation's notice. The Plaintiffs
initially objected to the defendants' motions to apply
foreign law on April 19, 2016. However, on or about November
16, 2016, the Plaintiffs filed a Notice of No Opposition and
agreed to apply the substantive Maine law to the case. The
Defendant on this present motion-NEI, which is a co-defendant
of the corporations noted above-filed its objection to the
Application of Foreign Law on January 18, 2017 and noted its
objection during oral arguments on summary judgment.
Defendant contends that the substantive law of Maine should
not apply to the instant action, despite co-defendants'
previous motions to apply foreign law and Plaintiffs'
assent thereto. The Defendant argues that the Plaintiffs
failed to comply with Super. R. Civ. P. 44.1, which states
that "[a] party who intends to raise an issue concerning
the law of a foreign country shall give notice by pleadings
or other reasonable written notice." The Defendant
argues that since the Plaintiffs failed to provide notice,
this Court should not entertain arguments on the application
of Maine law and should not apply Maine law to the present
Motion for Summary Judgment.
Defendant maintains that if Rhode Island substantive law
applies, summary judgment should be granted because
Plaintiffs have failed to provide product identification or
evidence of a causal connection. Further, the Defendant
contends that the Plaintiffs' claims are barred under
Rhode Island's Statute of Repose because the Defendant,
as an insulation contractor, clearly qualifies for protection
under the statute's language. Alternatively, the
Defendant argues that if this Court should determine that
Maine substantive law applies, the Plaintiffs' claims
similarly cannot survive summary judgment. The Defendant
argues that the Plaintiffs have failed to provide evidence
regarding product identification as required by Maine law in
the recent Grant v. Foster Wheeler, LLC decision
from the Supreme Judicial Court of Maine. 140 A.3d 1242 (Me.
the Plaintiffs contend that Maine substantive law applies to
the instant action because the Notice to Apply Foreign Law
brought by co-defendants applies to the entire action, not
just the motion between a particular co-defendant and a
plaintiff. Plaintiffs additionally claim that their filed
Objection to Apply Foreign Law constitutes Notice under
Super. R. Civ. P. 44.1 and that their filed Objection to the
Motion for Summary Judgment similarly provided sufficient
notice of the application of Maine law. Under Maine law, the
Plaintiffs maintain that they have offered sufficient
evidence of product identification in relation to NEI. They
contend that under Grant, they have provided
evidence to show proper product nexus in order to survive