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Turcotte v. 3M Co.

Superior Court of Rhode Island, Providence

June 5, 2018

3M COMPANY, ET AL. Defendants.

          For Plaintiff: John E. Deaton, Esq.

          For 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. Guilmartin, Esq.


          TAFT-CARTER, J.

         Before this Court for decision are several Defendants'[1] (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 § 8-2-14.


         Facts and Travel

         In the 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.)

         Mr. 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.

         In 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.



         The 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.


         Conflict of Law

         This 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 instant matter.

         The Plaintiffs ask this Court to apply New Hampshire law, and the majority of the Defendants request the application of Florida law.[2] 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 source payments).


         Interest-Weighing Analysis

         Having 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)).

         Additionally, 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 Pa ...

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