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Burleigh v. General Electric Co., Inc.

United States District Court, D. Massachusetts

May 9, 2018

RUTH BURLEIGH, as Personal Representative of the Estate of ERNEST BURLEIGH, Plaintiff,
ALFA LAVAL, INC., et al., Defendants.



         Defendant 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).

         As set 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;[1] breach of express and implied warranties; wrongful death;[2] loss of consortium; and malicious, willful, wanton, and reckless conduct or gross negligence.[3] 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.[4] (Docket Entry ## 84, 134).

         Stipulations 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.[5] (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).[6]

         GE and plaintiff agree that GE is a New York corporation with a principal place of business in Massachusetts.[7] (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).


         Born in 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).

         After 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).

         When 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).

         During this time period, GE designed and supplied steam turbines to the shipyard for a number of the submarines where Burleigh worked.[9] (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).

         GE did 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).

         GE also 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.[10] (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).

         Burleigh 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).

         During 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).

         In 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).

         In late 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).


         I. The Conflicts at Issue

         “The 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.

         Maine 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.

         Maine's 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.[11] (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).

         In 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 emphasis ...

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