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Stearns v. Metropolitan Life Insurance Co.

United States District Court, D. Massachusetts

March 30, 2018

JUNE STEARNS AND CLIFFORD OLIVER, as Co-Executors of the Estate of WAYNE OLIVER
v.
METROPOLITAN LIFE INSURANCE CO., et al.

          MEMORANDUM OF DECISION

          DATERYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiffs bring this wrongful death case on behalf of the estate of decedent Wayne Oliver, who died in 2016 of mesothelioma after exposure to asbestos during construction of two power plants, Pilgrim Nuclear Power Station and Calvert Cliffs Nuclear Power Plant, between 1971 and 1978.[1] Defendant NSTAR Electric, formerly Boston Edison Company (“BECO”), owned Pilgrim Station during the relevant time period. Oliver was an employee of non-party Bechtel Corp., which acted as BECO's architect-engineer with responsibility for construction at both plants. Defendant General Electric Company (“GE”) designed, manufactured, and sold steam turbine generators for installation at both plants and its engineers supervised each installation. Other than the insulated turbine-generators and nuclear steam systems supplied by GE, all construction materials and supplies were specified and procured by Bechtel. Before the court are GE and NSTAR's motions for summary judgment. (Docket ## 314, 307).

         I. Factual Background[2]

         I summarize the relevant facts in the light most favorable to plaintiffs, the nonmoving party. See Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 172 (1st Cir. 2015).

         A. Construction of Pilgrim Station

         Pilgrim Station, as a nuclear power plant, was subject to the ultimate oversight of the United States Atomic Energy Commission (“AEC”), with BECO responsible for obtaining all required permits and approvals. BECO's onsite inspectors “maintained an overall surveillance of construction activities by means of audit-oriented field inspections in support of quality documentation auditing.” Docket # 307-23, at 14 (Amendment 15 to AEC License Application). Bechtel and GE, however, directed the engineering and construction and monitored on-site compliance with their designs and specifications. GE was responsible for Pilgrim Station's nuclear steam supply system, nuclear fuel, and turbine-generator; everything else fell to Bechtel. Consistent with that division of labor, Bechtel hired and supervised all subcontractors except GE, including subcontractor New England Insulation (“NEI”). NEI was responsible for installing thermal system insulation pursuant to the specifications and direction provided by both Bechtel and GE. BECO retained authority to conduct inspections at any time and to stop any work it deemed improper.[3]

         Absent specific instructions from BECO, Bechtel was to “employ its own standards and . . . perform the work or cause the work to be performed in accordance with its best engineering skill and judgment; provided, however, that all such work shall be subject to [BECO's] review and approval.” Docket # 353-4, at 6. Explicitly excepted from Bechtel's engineering authority were “the nuclear steam supply system, nuclear fuel, the turbine-generator and related services already selected by [BECO] to be performed by [GE].” Id., at 5.

         Pursuant to its contract with BECO, GE was responsible both for technical direction of installation of Pilgrim's turbine generator and for procuring the turbine's thermal insulation material. GE's specifications called for the use of asbestos-containing insulation materials, and NEI's attempt to persuade GE to use a non-asbestos alternative was unavailing. The extent to which asbestos-containing insulation was used at Pilgrim Station is disputed; BECO contends asbestos products were limited to the plant's drywell containment area, while plaintiff points to evidence suggesting that asbestos was used throughout the facility.

         As a pipe inspector at Pilgrim Station, Oliver worked throughout the facility. He was present in both the nuclear reactor building and on the turbine floor when insulation work was being performed. Although he did not personally handle, install, remove, or repair any thermal insulation at Pilgrim Station, he was present while asbestos-containing insulation was cut, mixed, and applied to piping systems and equipment at Pilgrim. Plaintiff and both of his supervisors recalled this process as a dusty one during which employees took no respiratory precautions.

         B. Construction of Calvert Cliffs

         As with BECO at Pilgrim Station, GE contracted with Baltimore Gas & Electric at Calvert Cliffs Nuclear Power Plant to supply both the turbine generator and its thermal insulation material. As it had at Pilgrim, at Calvert Cliffs GE included asbestos-containing insulation in its specifications; it also rejected a more expensive proposal providing asbestos-free materials in favor of a cheaper bid.

         Oliver's job at Calvert Cliffs involved substantially the same duties he had performed at Pilgrim Station and he was similarly present in the turbine hall during the insulation process. GE representatives were on-site during the turbine work at Calvert Cliffs, and had a satellite office in the turbine room.

         C. Post-Construction Events

         Pilgrim Station and Calvert Cliffs opened commercial operations by July 1972 and March 1975 respectively. At least as to Pilgrim Station, however, GE's role extended well beyond installation to include regular maintenance, inspections, and refueling that continues to the present.

         As a Bechtel employee, Oliver was exposed to asbestos insulation during the new construction of Pilgrim Station from approximately May 21, 1971 through July 7, 1972, and of Calvert Cliffs from July 7, 1972 until 1978. He was for much of his life in excellent physical shape, doing daily pushups and pull-up exercises until his diagnosis of malignant mesothelioma on April 20, 2015. He commenced this action on August 25, 2015, and died on July 25, 2016. Plaintiffs filed the operative Third Amended Complaint (“TAC”) on February 17, 2017.

         II. Legal Standard

         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue is ‘genuine' for purposes of summary judgment if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ' and a ‘material fact' is one which ‘might affect the outcome of the suit under the governing law.'” Poulis-Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004) (quoting Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)). In determining whether a genuine issue of material fact exists, “a court must view the evidence ‘in the light most favorable to the opposing party.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).

         In the particular context of asbestos litigation, the standard of proof has been somewhat relaxed. See Morin v. Autozone Northeast, Inc., 943 N.E.2d 495, 499 (Mass. App. Ct. 2011), and cases cited. “Because the resulting injury may not emerge for years or decades after exposure . . . [e]vidence will be sufficient to reach the fact finder if it permits the reasonable inference of the presence at a work site of both the plaintiff and the defendant's asbestos-containing product for an appreciable period of exposure.” Id.

         III. Analysis

         Defendants move for summary judgment on plaintiffs' various claims associated with their wrongful death action in Count X: negligence and breach of warranty for non-naval exposure (Counts I and II); negligence and breach of warranty for naval exposure (Counts III and IV); gross negligence (Count IX); punitive damages (Count XI); and as to NSTAR only, strict liability (Count VII) and negligence (Count VIII).

         As a threshold matter, both defendants invoke the protection of the Massachusetts statute of repose. Mass. Gen. Laws ch. 260, § 2B (hereafter “Section 2B, ” or “the statute of repose”).[4] The statute of repose sets a six-year limit before which any tort action alleging deficiency or neglect in “the design, planning, construction, or general administration of an improvement to real property” must be commenced. Id. The six-year clock begins to run upon substantial completion of the improvement, and unlike an ordinary statute of limitations, cannot be tolled. See Sullivan v. Iantosca, 569 N.E.2d 822, 823-24 (Mass. 1991); McDonough v. Marr Scaffolding Co., 591 N.E.2d 1079, 1081-82 (Mass. 1992). The discussion below proceeds by defendant, but begins as to both GE and NSTAR/BECO with analysis of the statute's application.

         A. GE

         1. Application of the Statute of Repose

         a. “Improvement to ...


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