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Federal Judge Asks SJC to Consider Asbestos Exception to Statute of Repose

A Massachusetts Federal judge has invited the state’s highest court to weigh in on her opinion that a statute of repose should not be applied to bar personal injury claims arising from asbestos exposure.  M.G.L. c. 260, § 2B extinguishes all claims arising out of a deficiency or neglect in the design, planning, construction or general administration of an improvement to real property, unless a lawsuit is filed within six years after the improvement is substantially completed or opened to use.  Because it is a statute of repose rather than a statute of limitations, § 2B operates as an absolute bar to tort claims, regardless of when the plaintiff’s injury occurred and/or the cause of that injury was discovered.  Despite acknowledging that asbestos liability claims asserted in Stearns v. Metropolitan Life Insurance Co., et al., No. CV 15-13490-RWZ, 2018 WL 1610539 (D.Mass. Mar. 30, 2018) fell within its language, U.S. District Court Judge Rya Zobel refused to apply the statute to bar those claims, holding that it would be unfair to grant defendants “absolute immunity” in cases involving diseases with extended latency periods.  Having reached this novel conclusion – effectively carving out an unwritten exception to the statute of repose on public policy grounds – Judge Zobel agreed to ask the Supreme Judicial Court to determine whether her analysis was correct.

The case concerns the death of Wayne Oliver, who was diagnosed with a rare form of lung cancer associated with exposure to asbestos.  During the 1970s, Mr. Oliver worked for an architect-engineer involved in the construction of the Pilgrim and Calvert Cliffs nuclear power plants, and was allegedly exposed to asbestos during the installation of thermal insulation for turbine generators.  General Electric Company (GE) designed, manufactured and sold the turbine generators, and supervised their installation – including the installation of the thermal insulation – at both sites.  Claiming that the generators were “improvements to real property” which were substantially completed decades before suit was filed, GE sought summary judgment on the grounds that the wrongful death claims asserted against it by Mr. Oliver’s estate were untimely.

Judge Zobel agreed with GE’s contention that the generators were permanent improvements to the power plants, and acknowledged that the claims arose from GE’s involvement in the “design, planning, construction, [and] general administration” of those improvements.  Thus, she conceded that “designers, engineers, and contractors like GE appear facially covered by the statute of repose.”  Nevertheless, the judge opined that “it is not at all clear that the six-year statute of repose was designed to bar a category of claims known uniformly to have a latency period of at least twenty years,” and that its application to claims involving long-latency asbestos-related disease would effectively “transform a statute intended to limit liability into one that creates absolute immunity.”  She therefore declined to apply the statute, and denied GE’s motion for summary judgment.

In reaching her decision, Judge Zobel relied on an analysis of the factors cited by the SJC in Klein v. Catalano, 386 Mass. 701 (1982), in which the Court ruled that the enactment of the statute was a constitutional exercise of legislative authority based on rational public policy concerns.  Distinguishing the facts at issue in Klein, which involved injuries caused by the shattering of plate glass door panels, Judge Zobel ruled that the public policy factors which were deemed to render the application of the statute “appropriate in ordinary personal injury cases” were absent in the Stearns case.  She emphasized the fact that GE was aware of the hazards associated with asbestos when the generators were installed, that the long latency period for asbestos-related disease would preclude virtually any claims from accruing within the six-year window, and that GE maintained a degree of control over the generators by performing ongoing maintenance and inspections.  While she stopped short of ruling that the statute would be unconstitutional if applied in the asbestos context, she concluded that the SJC’s reasoning in Klein was sufficiently “distinguishable” that the decision was not controlling, and that it would be inappropriate to apply the statute to protect GE against the estate’s claims.

Judge Zobel’s bold decision to carve out a judicially-created exception to the statute of repose, based on a case-by-case analysis of factual circumstances and public policy concerns, has potentially far-reaching implications, especially for asbestos, environmental and toxic tort claims.  While the decision does not constitute binding precedent in other cases, it will likely be cited by plaintiffs attempting to avoid the preclusive impact of the statute.  The validity of her ruling is open to question, until the SJC issues a ruling on her analysis.

If you have questions regarding the potential application of the statute of repose, or if you are facing a tort claim which might be deemed untimely, our attorneys are ready to assist you.


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