Plaintiff: John E. Deaton, Esq.
Defendant: Andrew R. McConville, Esq.; Jason Caron, Esq.;
Brian D. Gross, Esq.; Kenneth R. Costa, Esq.; Carolyn E.
Riggs, Esq.; Stephanie M. Batchelder, Esq.; Jonathan F.
Tabasky, Esq.; Shannon M. O'Neil, Esq.; Nancy Kelly,
Esq.; David A. Goldman, Esq.; Jennifer A. Whelan, Esq.;
Michael F. McVinney, Esq.; Matthew T. Giardina, Jr., Esq.;
Timothy M. Zabbo, Esq.; Stephen M. Prignano, Esq.; Robert S.
Parker, Esq.; Craig Waksler, Esq.; Ryan M. Murphy, Esq.;
Jeffrey M. Thomen, Esq.; James R. Oswald, Esq.; Kendra A.
Bergeron, Esq.; Eric J. Robbie, Esq.; Margreta Vellucci,
Esq.; Mark O. Denehy, Esq.; Lawrence G. Cetrulo, Esq.;
Stephen T. Armato, Esq.; Kelly Kincaid, Esq.; Kathryn T.
O'Brien, Esq.; Jennifer E. Wheelock, Esq.; Wayne E.
George, Esq.; Audrey L. Bradley, Esq.; Alex A. Romano, Esq.;
Theodorus Urbanski, Esq.; Mark J. Claflin, Esq.; Philip
Newbury, Jr., Esq.; Alan Wong, Esq.; Anthony J. Sbarra, Esq.;
John R. Felice, Esq.; Marisa K. Roman, Esq.; James A.
Ruggieri, Esq.; Stephen P. Cooney, Esq.; Crystal L. Cooke,
Esq.; Mitchell Edwards, Esq.; John A. Caletri, Esq.; Matthew
C. Oleyer, Esq.; Monica R. Nelson, Esq.; Cullen W.
this Court for decision are several
Defendants' (collectively referred to as the
Defendants) motions to apply foreign law: the motions of
Defendants CBS Corporation/Westinghouse Electric Corporation
(Westinghouse) and General Electric Company (GE) to apply the
substantive laws of New Hampshire as to liability and Florida
as to damages, the motions of the remaining Defendants to
apply Florida law, as well as the motion of the Plaintiffs
Gerard Turcotte and Alicia Turcotte (collectively Plaintiffs)
to apply New Hampshire law. The Plaintiffs object to
Defendants' motions. A hearing was held on December 13,
2017. The Court exercises jurisdiction pursuant to G.L. 1956
instant lawsuit, the Plaintiffs allege that Gerard Turcotte
(Mr. Turcotte) was exposed to asbestos-containing products
predominantly through his career as an electrician and
through improvements to property, including his family's
motel, which caused and/or contributed to his development of
mesothelioma. The majority of the alleged exposure to the
toxin occurred when Mr. Turcotte worked in New Hampshire,
although the additional exposure occurred when Mr. Turcotte
briefly worked on projects in other states. One such
additional exposure was during a three-month construction
project in Florida in 1973. (Dep. of Gerard Turcotte, Vol. I
at 175:4-23, Nov. 7, 2016.)
Turcotte lived in New Hampshire from his birth in 1947 until
1996, when he and his wife moved to Florida during
retirement. (Dep. of Gerard Turcotte Vol. II at 129:8-23,
Nov. 9, 2016.) They purchased a house in 1997 and a second
house in 2000. Id. at 90:8-17, 129:20-130:15. During
that time, Mr. Turcotte and his wife continued to own
property in Shelburne, New Hampshire. Id. at 90:3-6.
In February 2016, while living in Florida, Mr. Turcotte began
to experience symptoms commonly associated with mesothelioma.
Thereafter, Mr. Turcotte underwent diagnostic procedures at
Fawcett Memorial Hospital in Florida and was given a
preliminary diagnosis of mesothelioma by Dr. Ronald Smith.
Mr. Turcotte's medical file was sent to Dr. Jeffrey L.
Myers of the University of Michigan, who issued the final
diagnosis on June 22, 2016. Mr. Turcotte received initial
treatment in Florida and underwent surgery at Duke University
Medical Center in Durham, North Carolina. Presently, the
Plaintiffs reside in Berlin, New Hampshire, and Mr. Turcotte
receives immunotherapy treatment for mesothelioma at
Dartmouth-Hitchcock Medical Center in New Hampshire.
their motions, the majority of the Defendants contend that
this Court should apply Florida substantive law to this claim
because the law of Florida bears the most significant
relationship to the parties and to the event under Rhode
Island's interest-weighing approach. However, Defendants
Westinghouse and GE contend that New Hampshire law should
apply as to liability and Florida law as to damages in the
Plaintiffs' claims against them and cite the doctrine of
depecage. The Plaintiffs object to the Defendants'
motions and move for an application of New Hampshire law.
Court is asked to address several issues in this case. First,
this Court will resolve whether there is a true conflict
between the laws of the jurisdictions involved. Second, this
Court will engage in an interest-weighing approach to resolve
which state's laws should apply to this matter. Finally,
this Court will address the doctrine of depecage.
Court turns to the two-step choice-of-law analysis, beginning
with whether the laws of the two states in question are in
conflict. Turcotte v. Ford Motor Co., 494 F.2d 173,
177 (1st Cir. 1974); Nat'l Refrigeration, Inc. v.
Standen Contracting Co., Inc., 942 A.2d 968, 973-74
(R.I. 2008). Here, neither the Defendants nor the Plaintiffs
argue that Rhode Island law should apply. Although Rhode
Island is the forum state, Rhode Island's only interest
in the matter is the "generalized interest that is
constant throughout the entire United States and beyond,
viz., the interest in preventing asbestos-related
diseases." Kedy v. A.W. Chesterton Co., 946
A.2d 1171, 1188 (R.I. 2008); Carlson v. 84 Lumber
Co., No. PC 2009-3298, 2011 WL 1373508, *4 (R.I. Super.
Apr. 7, 2011) (Gibney, P.J.). This Court therefore only
considers whether New Hampshire or Florida law applies to the
Plaintiffs ask this Court to apply New Hampshire law, and the
majority of the Defendants request the application of Florida
After reviewing the relevant laws of Florida and New
Hampshire, this Court finds that true conflicts exist.
See, e.g., Fla. Stat. § 768.81(3) (pure
comparative fault in negligence cases); N.H. Rev. Stat. Ann.
§ 507:7-e (1997) (joint and several liability for
defendants who are fifty percent at fault and several
liability for those who are less than fifty percent at
fault); Fla. Stat. § 95.11(3)(c) (ten-year statute of
repose for improvements to real property); N.H. Rev. Stat.
Ann. § 508:4-b(I) (eight-year statute of repose for
improvements to real property); Fla. Stat. §§
768.76(1), 774.207(2) (setoffs are required for collateral
determined that there is a conflict between the applicable
Florida and New Hampshire laws, this Court moves to the
second step of the Rhode Island conflict-of-laws analysis:
interest-weighing. Under this step of the analysis, the Court
will determine which state has the more significant interest.
Woodward v. Stewart, 104 R.I. 290, 299, 243 A.2d
917, 923 (1968). Courts are instructed to "'look at
the particular . . . facts and determine therefrom the rights
and liabilities of the parties in accordance with the law of
the state that bears the most significant
relationship to the event and the parties.'"
Harodite Indus., Inc. v. Warren Elec. Corp., 24 A.3d
514, 534 (R.I. 2011) (quoting Cribb v. Augustyn, 696
A.2d 285, 288 (R.I. 1997)) (ellipses and emphasis in
original). In tort actions, the Court must evaluate the
following four specific factors: (1) "'the place
where the injury occurred'"; (2) "'the
place where the conduct causing the injury
occurred'"; (3) "'the domicil
[sic], residence, nationality, place of
incorporation and place of business of the
parties'"; and (4) "'the place where the
relationship, if any, between the parties is
centered.'" Id. (quoting Brown v.
Church of the Holy Name of Jesus, 105 R.I. 322, 326-27,
252 A.2d 176, 179 (1969)).
policy considerations under the interest-weighing analysis
must be taken into account. These considerations include:
"'(1) predictability of result; (2) maintenance of
interstate and international order; (3) simplification of the
judicial task; (4) advancement of the forum's
governmental interests; and (5) application of the better
rule of law.'" Najarian v. Nat'l Amusements,
Inc., 768 A.2d 1253, 1255 (R.I. 2001) (quoting