United States District Court, D. Massachusetts
RUTH BURLEIGH, as Personal Representative of the Estate of ERNEST BURLEIGH, Plaintiff,
ALFA LAVAL, INC., et al., Defendants.
MEMORANDUM AND ORDER RE: DEFENDANT GENERAL ELECTRIC
COMPANY'S MOTION TO APPLY MAINE SUBSTANTIVE LAW (DOCKET
ENTRY # 161)
MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE
General Electric Corporation (“GE”) seeks to
apply Maine law to a number of substantive issues in this
asbestos product liability and personal injury action.
(Docket Entry # 161). Plaintiff Ruth Burleigh, as personal
representative of the estate of Ernest Burleigh
(“plaintiff”), maintains that Massachusetts law
applies. (Docket Entry # 170).
out in the amended complaint, plaintiff, the widow of Ernest
Burleigh (“Burleigh”), alleges that Burleigh died
in July 2016 of mesothelioma as a result of exposure to
asbestos while working as a mechanic at the Portsmouth Naval
Shipyard (“the shipyard”) from 1960 to 1981.
(Docket Entry # 134, ¶¶ 2, 3, 4, 22). The amended
complaint, which seeks compensatory and punitive damages,
sets out counts against all defendants for
negligence; breach of express and implied warranties;
wrongful death; loss of consortium; and malicious,
willful, wanton, and reckless conduct or gross
negligence. GE filed an answer to the original
complaint asserting that it “adopts the master cross
claim against all defendants.” (Docket Entry # 22, p.
19). GE therefore asserted a crossclaim for contribution
against “co-defendants” as “joint
tortfeasors with regard to plaintiff's damages.”
Model Cross-Claim of Defendants, Massachusetts Asbestos
Litigation Pre-Trial Order No. 9, Amended June 27, 2010, Ex.
C. GE did not file an answer and crossclaim to either the
first or second amended complaints, which added the wrongful
death claim. (Docket Entry ## 84, 134).
of dismissal and a settlement order of dismissal leave GE,
defendant Crane Co. (“Crane”), defendant Warren
Pumps, LLC (“Warren”), and defendant
Ingersoll-Rand Company (“IR”) as the remaining
defendants. (Docket Entry ## 143, 146, 156, 190, 192). That
said, at the hearing on the motion to apply Maine law,
plaintiff represented she had settled her claims against IR
and, as a result, this court deemed IR's motion to join
GE's motion (Docket Entry # 167) moot. (Docket Entry #
186). Crane and Warren separately move to join GE's
motion (Docket Entry ## 181, 182) and plaintiff moves to
strike both motions (Docket Entry # 183).
plaintiff agree that GE is a New York corporation with a
principal place of business in Massachusetts. (Docket Entry #
162, p. 8) (Docket Entry # 170, p. 3). The amended complaint
alleges that Crane is a Delaware corporation with a principal
place of business in Connecticut and Crane describes itself
as “a Connecticut based company.” (Docket Entry #
134, ¶ 13) (Docket Entry # 184, p. 3). Warren is
purportedly a Delaware corporation with a principal place of
business in Massachusetts. (Docket Entry # 134, ¶ 13).
1931, Burleigh resided in Maine throughout his life except
for a four-year period in North Carolina from 1955 to 1959.
(Docket Entry # 161-1, pp. 2-3, 11-13, 15). Prior to working
in North Carolina, Burleigh worked in Maine at a movie
theater, a service station, a shoe factory where he did not
work in the vicinity of insulated piping, a textile mill, a
motor company changing oil and greasing cars, and another
motor company as a car salesman. (Docket Entry # 161-1, pp.
4, 6-11). In North Carolina, he worked at a textile mill
“as a loom fixer.” (Docket Entry # 161-1, p. 11).
He was not aware of any dyes or solvents applied to the
fabric at the mill. (Docket Entry # 161-1, p. 14). Upon his
return to Maine in 1959, he worked briefly at a few other
jobs, including one in New Hampshire for three months, before
beginning work at the shipyard in July 1960. (Docket Entry #
161-1, pp. 14-15, 18-20) (Docket Entry # 170-1, pp. 58-59,
62-69). He worked at the shipyard from 1960 until his
retirement in 1994. (Docket Entry # 161-1, p. 20). The
shipyard is located in Kittery, Maine, approximately 20 miles
from the Massachusetts border. (Docket Entry # 170-3).
an initial four-year apprenticeship at the shipyard, Burleigh
became a mechanic. During the apprenticeship, he worked
three-quarters of the time onboard four submarines being
built and one “quarter of the time in the shop.”
(Docket Entry # 170-1, pp. 73-75, 81, 103). In the shop, he
made flange gaskets and repaired valves. (Docket Entry #
170-1, pp. 75-80). Onboard the submarines, he fitted doors
and worked on valves and pipes. In an engine room onboard one
of the submarines, he worked on steam turbines and generators
(“SSTGs”) manufactured by GE. (Docket Entry #
170-1, pp. 82-86, 89, 91-93).
Burleigh became a mechanic in 1964, he performed the same
work in the shop. (Docket Entry # 170-1, pp. 103-104, 107).
He also worked in the engine room and the auxiliary machine
room (“AMR”) onboard submarines being overhauled.
(Docket Entry # 170-1, pp. 91-92, 107-108, 111-112, 114-116)
(Docket Entry # 170-2, pp. 27, 30-31). The temporal breakdown
of his work remained about the same, i.e., approximately
three quarters onboard submarines and one quarter in the
shop. (Docket Entry # 170-1, pp. 103-104). Burleigh described
his work in submarine engine rooms as “all around
engine room work, ” including work on SSTGs. (Docket
Entry # 170-1, p. 106-107, 110). His work in engine rooms and
AMRs involved, inter alia, working on a number of different
kinds of pumps, such as those manufactured by Warren. (Docket
Entry # 170-2, pp. 33, 35-37, 39-42). When an existing pump
was beyond repair, Burleigh installed a new pump, a process
that generated dust. (Docket Entry # 170-2, pp. 42-46).
Burleigh's exposure to dust additionally occurred when he
repaired existing pumps, including when he removed the
packing or replaced the gaskets. (Docket Entry # 170-2, pp.
46-50). Burleigh does not “recall seeing warnings
regarding the dangers of asbestos on any [of the] pumps [he]
installed or repaired” at the shipyard. (Docket Entry #
170-2, pp. 53-54). In fact, he does not remember seeing
warnings regarding the dangers of asbestos on any of the
products he worked with at the shipyard or in
manufacturer-supplied manuals that he used. (Docket Entry #
170-2, pp. 54-56, 73-74, 84-86)). Burleigh's removal and
replacement of asbestos-containing gaskets on pipes that led
to turbines in the engine room similarly generated dust.
(Docket Entry # 170-2, pp. 76, 79-81) (Docket Entry # 170-4,
pp. 54, 56).
this time period, GE designed and supplied steam turbines to
the shipyard for a number of the submarines where Burleigh
worked. (Docket Entry # 170-2, p. 76) (Docket
Entry # 170-4, pp. 27-29). GE factories in Lynn and
Fitchburg, Massachusetts manufactured all of GE's marine
steam turbines during the relevant time period. (Docket Entry
# 170-4, pp. 29-30). The United States Navy (“the
Navy”) initially supplied GE with specifications for
the design of a steam turbine tailored for a particular ship.
(Docket Entry # 170-4, p. 34). “Once the design was
complete and approved, then GE would commence the
manufacture, order materials, ” and then produce and
assemble the turbine in one of the two Massachusetts
factories. (Docket Entry # 170-4, p. 35). After assembling
the turbine, GE tested “the turbine with steam and
speed” to ensure it met the design specifications.
(Docket Entry # 170-4, p. 35). Thereafter, GE disassembled
the turbine and shipped it from the Massachusetts factory to
either a Navy storage facility or a Navy shipyard. (Docket
Entry # 170-4, pp. 35-36).
not provide insulation for the turbines. Rather, it shipped
the marine steam turbines to the shipyard in a non-insulated
state. (Docket Entry # 170-4, pp. 48-49, 51). With respect to
construction of new submarines, workers installed the
insulation at the shipyard in Maine around all or a portion
of the exterior casings of GE's turbines. (Docket Entry #
170-4, pp. 46-48). GE did not provide the insulation, whether
composed of asbestos or other material such as ceramic wool,
for its rebuilt turbines as well as its new turbines. (Docket
Entry # 170-4, pp. 48-50).
purchased asbestos-containing gaskets as finished pieces,
applied or installed them on the exterior of turbines, and
shipped the gaskets along with the turbines to the shipyard
or a Navy storage facility. (Docket Entry # 170-4, pp. 35,
54-58, 60). In addition to installing the gaskets, GE
supplied asbestos-containing gaskets as “loose part[s,
]” which it shipped with the turbines to a Navy
shipyard or a Navy storage facility. (Docket Entry # 170-4,
pp. 35, 56, 60).
additionally worked on certain kinds of valves onboard
submarines and remembers seeing the name Crane on
“steam or hot water” valves. (Docket Entry #
170-2, pp. 55-56, 60-61, 71). Installing a new valve
“[s]ometimes” entailed cutting the packing or
installing a gasket, which, in turn, generated dust that
Burleigh breathed. (Docket Entry # 170-2, pp. 64-67). At
times, Burleigh's work repairing valves involved removing
old packing and inserting new packing, which again generated
dust. (Docket Entry # 170-2, pp. 67-69). GE's marine
turbine expert described the valves as sealed by
asbestos-containing packing at the interface of the valve
stem and the turbine's steel casing. (Docket Entry #
170-4, pp. 58-59). GE supplied the asbestos-containing
packing along with a GE turbine when it shipped the turbine
“out to a shipyard or the Navy.” (Docket Entry #
170-4, pp. 58, 60).
Burleigh's work at the shipyard, a GE representative,
Carl Tidd (“Tidd”), at times worked at the
shipyard as “a liaison between General Electric and the
shipyard.” (Docket Entry # 170-2, pp. 90-92). As a
general rule, GE representatives were usually at a shipyard
to supervise the installation of a turbine. (Docket Entry #
170-4, pp. 38-39). “Typically, ” a GE field
representative would not be present or “called
in to supervise” the insulation of a GE turbine.
(Docket Entry # 170-4, pp. 52-54). As indicted, insulating a
turbine with asbestos, if any, took place at the shipyard as
opposed to one of GE's plants in Massachusetts. (Docket
Entry # 170-4, pp. 45-46, 48-49). Although Tidd was at the
shipyard for “quite a while, ” Burleigh did not
get to know him. (Docket Entry # 170-2, p. 92). In addition
to the on-site representative during the installation
process, GE had a customer service department in
Massachusetts as the single point of contact to answer
questions throughout the life of a turbine. If needed, a
member of the department would travel to the shipyard to
provide technical support. (Docket Entry # 170-7, pp. 25-27).
October 1981, Burleigh left his job as a mechanic and began
working as an equipment specialist at the shipyard. (Docket
Entry # 170-1, pp. 73-74). Once he became an equipment
specialist in 1981, Burleigh no longer worked onboard
submarines and eventually retired in 1994. (Docket Entry #
170-1, pp. 73-74, 116, 122) (Docket Entry # 161-1, p. 20).
2015, Burleigh was diagnosed with mesothelioma. (Docket Entry
# 170-2, p. 93). He received his medical treatment for the
condition in Maine. (Docket Entry # 161-1, pp. 24-28). He
died in July 2016. (Docket Entry # 134, ¶ 4).
The Conflicts at Issue
first step in a choice of law analysis is to determine
whether an actual conflict exists between the substantive
laws of the interested jurisdictions.” Reicher v.
Berkshire Life Ins. Co. of Am., 360 F.3d 1, 4 (1st Cir.
2004). Seeking to apply Maine law, GE identifies various
conflicts with Maine law including caps on damages and the
burden of proof in a wrongful death claim. Plaintiff submits
that Massachusetts law applies to the issues regarding the
wrongful death claim.
limits the amount of punitive damages in a wrongful death
action to $250, 000. Me. Rev. Stat. Ann. tit. 18-A, §
2-804(b) (“jury may also give punitive damages not
exceeding $250, 000” in “wrongful death
action”). Maine also caps the amount of non-economic,
compensatory damages in a wrongful death action at $500, 000.
Me. Rev. Stat. Ann. tit. 18-A, § 2-804(b) (“jury
may give damages not exceeding $500, 000 for the loss of
comfort, society and companionship of the deceased, including
any damages for emotional distress”). In contrast, the
Massachusetts wrongful death statute has no monetary
limitations. Mass. Gen. Laws ch. 229, § 2.
wrongful death statute also imposes a higher standard of
liability and burden of proof than Massachusetts'
wrongful death statute. Specifically, Maine law allows
recovery of punitive damages if the plaintiff establishes by
clear and convincing evidence that the defendant acted with
malice. Tuttle v. Raymond, 494 A.2d 1353, 1361, 1363
(Me. 1985) (punitive damages available if plaintiff
“can prove by clear and convincing evidence that the
defendant acted with malice” and not available for
gross negligence); Me. Rev. Stat. Ann. tit. 18-A, §
2-804(b). Massachusetts' wrongful death statute provides
for the recovery of punitive damages upon a lesser showing of
gross negligence and a lower burden of proof than clear and
convincing evidence. See Mass. Gen. Laws ch. 229,
§ 2 (punitive damages allowed when “decedent's
death was caused by the malicious, willful, wanton or
reckless conduct of the defendant or by the gross negligence
of the defendant”); Santos v. Chrysler Corp.,
No. 921039, 1996 WL 1186818, at *3 (Mass. Super. Sept. 18,
1996) (rejecting argument that jury must find misconduct
“by clear and convincing evidence” to award
punitive damages based on gross negligence), aff'd
and remanded, 715 N.E.2d 47 (Mass. 1999). These
differences in the wrongful death claim therefore warrant a
choice of law analysis. The other conflicts GE identifies
include the reduction of the amount paid by a joint and
severally liable, settling defendant from the amount of a
non-settling defendant's share of adjudicated damages
based on the settling defendant's proportionate degree of
fault under Maine law. (Docket Entry # 162, pp. 4-5).
GE's position that Maine law always requires a reduction
based on proportionate fault (Docket Entry # 162,
pp. 4-5) (citing Lavoie v. Celotex Corp., 505 A.2d
481, 483 (Me. 1986), and Me. Rev. Stat. Ann. tit. 14, §
156) as opposed to the dollar amount of the
settlement, is not entirely accurate. See Me. Rev.
Stat. Ann. tit. 14, § 163; Barclay v. Gressit,
2:12-CV-156-JHR, 2013 WL 3819937, at *3 (D. Me. July 24,
2013) (discussing Me. Rev. Stat. Ann. tit. 14, §§
156 and 163); Stacey v. Bangor Punta Corp., 108
F.R.D. 72, 75-76 (D. Me. 1985) (explaining interplay between
Me. Rev. Stat. Ann. tit. 14, §§ 156 and 163);
see also Goodwill v. Beaulieu, 166 A.3d 127, 129
(Me. 2017). In Maine:
the nonsettling joint tortfeasor against whom a verdict is
entered possesses two distinct statutorily-based adjudicative
options in respect to his contribution right: (1) the right
to have the court precisely adjudicate the respective levels
of the causative fault of all joint tortfeasors causing the
plaintiff's entire damage under 14 M.R.S.A. § 156;
or (2) the right to have any verdict rendered against him
reduced by the amount of the plaintiff's settlement with
other joint tortfeasors under 14 M.R.S.A. § 163.
Stacey v. Bangor Punta Corp., 108 F.R.D. at 75. In
addition, “Contribution is denied in cases of
intentional wrong and is permitted only where liability is
imposed for conduct that is not morally blameworthy.”
Bedard v. Greene, 409 A.2d 676, 677 (Me. 1979).
contrast, the statutory right of contribution in
Massachusetts “does not distinguish between intentional
torts and negligence.” Thomas v. EDI Specialists,
Inc., 773 N.E.2d 415, 417 (Mass. 2002). In addition,
Massachusetts' regime of joint and several liability
allows “a plaintiff injured by more than one
tortfeasor” to “sue any or all of them for [his]
full damages.” Shantigar Found. v. Bear Mt.
Builders, 804 N.E.2d 324, 332 (Mass. 2004).
“Tortfeasors who pay more than their ‘pro
rata' (equal) share of damages may” seek
contribution “from other joint tortfeasors, ” but
“tortfeasors who settle with the plaintiff prior to
entry of judgment are insulated from claims for contribution
from the remaining defendants (who are then entitled to a
setoff in the judgment equal to the settlementamount), ” id. (citations omitted and