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In re Asbestos Litigation

Superior Court of Rhode Island

June 27, 2017

In Re: Asbestos Litigation
v.
ALFA LAVAL, INC., et al., Defendants. MARY SUPREY, individually and as the Personal Representative of the Estate of PAUL F. McCARTHY Plaintiff, MARY SUPREY, individually and as the Personal Representative of the Estate of PAUL F. McCARTHY Plaintiff,
v.
CBS CORPORATION F/K/A VIACOM, INC., et al. Defendants.

         Providence County Superior Court

          For Plaintiff: Robert J. Sweeney, Esq.

          For Defendant: Jeffrey M. Thomen, Esq.; Zachary Weisberg, Esq.; Shannon Marie O'Neil, Esq.; Andrew R. McConville, Esq.

          DECISION

          GIBNEY, P.J.

         The Defendants-Warren Pumps, LLC (Warren), Gardner Denver, Inc. (Gardner Denver), and General Electric Company (GE) (collectively, Defendants)[1]-seek summary judgment in the above-entitled asbestos litigation matter. Defendants argue that there are no genuine issues of material fact, and that there is insufficient product identification with respect to each Defendant in order for this matter to survive summary judgment. The Plaintiff objects, arguing that there are genuine issues of material fact for trial, that prior to his death, Paul F. McCarthy, the Decedent, provided sufficient product identification via his sworn statement, and that the sworn statement meets exceptions to the hearsay rule and should therefore be admissible. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

         I

         Facts and Travel

         Mr. McCarthy initiated this action via two Complaints dated July 17, 2013, after being diagnosed with malignant mesothelioma on or around May 23, 2013.[2] In his Complaints, Mr. McCarthy alleged that he was exposed to asbestos-containing products manufactured, sold, or distributed by the named Defendants beginning in the 1950s and ending in 1979. Mr. McCarthy further alleged that this exposure occurred during his time working with the U.S. Navy and with the U.S. Postal Services as a warehouse laborer. On July 1, 2013-before the filing of this action and prior to his death on November 13, 2013-Mr. McCarthy provided a sworn statement under oath regarding his work history and alleged exposure to asbestos-containing products. In that sworn statement, Mr. McCarthy stated that he served in the Navy for four years, from June of 1951 until June of 1955, and that following basic training in Newport, Rhode Island, he was assigned to the U.S.S. Glennon, DD-840 (the Glennon).

         Initially, Mr. McCarthy was a member of the deck force for approximately two years, during which time his responsibilities included painting, scraping paint, and washing equipment. Following his position on the deck force, Mr. McCarthy was a quartermaster and took care of the logbooks, flag duties, and general clean-up on the ship. In his sworn statement, Mr. McCarthy further stated that his final designation aboard the Glennon included an assignment as a metalsmith, a position he held for a year. As a metalsmith, Mr. McCarthy fixed ladders and helped other crewmembers, which in one instance included helping a welder in the boiler room where alleged asbestos-containing equipment was located. Mr. McCarthy stated that he lived aboard the Glennon for at least a month while it was docked in the Boston Naval Shipyard in Charlestown for repairs. During this period, Mr. McCarthy was tasked with working around the ship and cleaning dust out of the vents. Finally, Mr. McCarthy stated in his sworn statement that when the Glennon went on training cruises, the guns were fired and dust would come loose as a result of the vibrations caused by the firing of the guns.

         II

         Parties' Arguments

         Defendants contend that there are no genuine issues of material fact for a jury's consideration, and that, therefore, summary judgment is appropriate. They maintain that the Plaintiff has failed to allege sufficient product identification and exposure evidence with respect to each of the named Defendants. They argue that such product identification must be established as a prima facie element of any asbestos litigation. In order to establish causation in asbestos exposure cases, the Defendants contend that the Plaintiff must present sufficient, competent evidence regarding the frequency, regularity, and proximity of the alleged exposure, which the Plaintiff, they contend, has not successfully established.

         Alternatively, the Plaintiff contends that she has alleged sufficient product identification with respect to Defendants-through exhibits establishing the existence of asbestos-containing products sold, manufactured, or distributed by each of the Defendants and located on Mr. McCarthy's ship, the Glennon. The Plaintiff argues that there are sufficient issues of material fact regarding product identification, exposure evidence, and causal connection to survive summary judgment. Further, the Plaintiff argues that Mr. McCarthy's sworn statement provides evidence of such factual issues ...


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