Burleigh v. General Electric Company et al
Filing
195
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Defendant General Electric Company's Motion to Apply Maine Substantive Law (Docket Entry # 161 ). The motion to apply Maine law (Docket Entry # 161 ) is ALLOWED. (Patton, Christine)
Case 1:16-cv-11030-RGS Document 195 Filed 05/09/18 Page 1 of 35
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RUTH BURLEIGH, as Personal
Representative of the Estate
of ERNEST BURLEIGH,
Plaintiff,
v.
CIVIL ACTION NO.
16-11030-RGS
ALFA LAVAL, INC., et al.,
Defendants.
MEMORANDUM AND ORDER RE:
DEFENDANT GENERAL ELECTRIC COMPANY’S MOTION
TO APPLY MAINE SUBSTANTIVE LAW
(DOCKET ENTRY # 161)
May 9, 2018
BOWLER, U.S.M.J.
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.
161).
(Docket Entry #
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.
22).
(Docket Entry # 134, ¶¶ 2, 3, 4,
The amended complaint, which seeks compensatory and
Case 1:16-cv-11030-RGS Document 195 Filed 05/09/18 Page 2 of 35
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 “codefendants” 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).
1
The negligence claim asserts a negligent failure to warn
about the dangers of asbestos-containing products as well as
negligent conduct in the manufacture and sale of asbestoscontaining products. (Docket Entry # 134).
2
Plaintiff brings the wrongful death claim “individually
and as personal representative of the estate of Ernest Burleigh”
along with “Robert Burleigh, Richard Burleigh, Randall Burleigh,
and Doris Edenfield” (Docket Entry # 134, ¶ 43) (capitalization
omitted), Burleigh’s children (Docket Entry # 170-1, pp. 12-15).
3
The amended complaint includes additional counts against
defendant Metropolitan Life Insurance Company (“MetLife”).
Plaintiff, however, settled the claims against MetLife. (Docket
Entry # 156).
4
In the event GE wishes to continue to assert the
crossclaims, it is directed to file a motion for leave to file an
answer to the amended complaint (Docket Entry # 134) with
crossclaims against any coparties. See generally Klunder v.
Brown University, 778 F.3d 24, 34 (1st Cir. 2015). This court
2
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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.
143, 146, 156, 190, 192).
(Docket Entry ##
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
Entry # 186).
(Docket
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
Entry # 162, p. 8) (Docket Entry # 170, p. 3).
(Docket
The amended
complaint alleges that Crane is a Delaware corporation with a
expresses no opinion on the merits of such a motion.
5
The docket does not reflect a stipulation of dismissal of
IR or a settlement order of dismissal. Plaintiff and IR are
therefore directed to file a stipulation of dismissal or a
proposed order of dismissal within 30 days of the date of this
opinion.
6
Neither Crane nor Warren filed an answer to the amended
complaint (Docket Entry # 134). In the event they wish to assert
crossclaims for contribution, they are directed to file motions
for leave to file an answer to the amended complaint (Docket
Entry # 134) with crossclaims against any coparties. This court
expresses no opinion on the merits of such a motion.
7
The amended complaint alleges that GE has a principal
place of business in Connecticut. (Docket Entry # 134, ¶ 15).
3
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principal place of business in Connecticut and Crane describes
itself as “a Connecticut based company.”
13) (Docket Entry # 184, p. 3).
(Docket Entry # 134, ¶
Warren is purportedly a Delaware
corporation with a principal place of business in Massachusetts.
(Docket Entry # 134, ¶ 13).
FACTUAL BACKGROUND8
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.
1, p. 14).
(Docket Entry # 161-
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.
8
Facts are recounted solely for purposes of determining
whether to apply Massachusetts or Maine law. A different
standard of review enures on summary judgment and a different
record will be present at trial. Accordingly, the facts in this
opinion as to causation and other matters are not the law of this
case.
4
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(Docket Entry # 161-1, pp. 14-15, 18-20) (Docket Entry # 170-1,
pp. 58-59, 62-69).
retirement in 1994.
He worked at the shipyard from 1960 until his
(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.”
1, pp. 73-75, 81, 103).
repaired valves.
(Docket Entry # 170-
In the shop, he made flange gaskets and
(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 # 1702, 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.
pp. 103-104).
(Docket Entry # 170-1,
Burleigh described his work in submarine engine
5
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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.
170-2, pp. 54-56, 73-74, 84-86)).
(Docket Entry #
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
6
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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.
30).
(Docket Entry # 170-4, pp. 29-
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.
# 170-4, p. 35).
(Docket Entry
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 noninsulated 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.
9
(Docket Entry # 170-4,
Burleigh recalls two other manufacturers that supplied
these turbines. (Docket Entry # 170-2, p. 76).
7
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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
58, 60).
(Docket Entry # 170-4, pp. 35, 54-
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.
71).
(Docket Entry # 170-2, pp. 55-56, 60-61,
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
10
In addition, “the Navy maintained [its] own parts depot
facility where [it] tended to purchase” gaskets, nuts, and bolts
directly from different vendors. (Docket Entry # 170-4, p. 61).
8
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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.”
2, pp. 90-92).
(Docket Entry # 170-
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.
54).
(Docket Entry # 170-4, pp. 52-
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.
Entry # 170-7, pp. 25-27).
9
(Docket
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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).
for the condition in Maine.
He died in July 2016.
He received his medical treatment
(Docket Entry # 161-1, pp. 24-28).
(Docket Entry # 134, ¶ 4).
DISCUSSION
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”).
10
Maine also caps the
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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
11
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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
162, pp. 4-5).
(Docket Entry #
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:
11
Whereas plaintiff addresses the conflicts regarding the
wrongful death statutes (Docket Entry # 170, pp. 15-16), she does
not discuss the conflicts regarding contribution in the context
of joint and several liability.
12
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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 settlement
amount),” id. (citations omitted and emphasis added), or the
13
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“amount stipulated by the release[,]” whichever is greater.
Mass. Gen. Laws ch. 231B, § 4 (emphasis added).
The fact finder
does not assess the percentage of fault of the non-party
tortfeasors.
II.
Id. at 332-333.
Choice of Massachusetts or Maine Law (Wrongful Death Claim)
Where, as here, jurisdiction is based on the federal officer
removal statute, 28 U.S.C. § 1442(a)(1) (“section 1442(a)”),12 a
federal court adheres to the forum state’s choice of law rules to
determine the applicable substantive law.
See Baird v. Fed. Home
Loan Mortg. Corp., Civil Action No. 3:15CV00041, 2016 WL 6583732,
at *2 (W.D. Va. Nov. 4, 2016) (“‘federal court’s role under §
1442 is similar to that of a federal court sitting in diversity’”
with court applying “choice of law rule of the forum state”)
(citations omitted), aff’d, 706 Fed. Appx. 123 (4th Cir. 2017)
(unpublished); Baldonado v. Avrinmeritor, Inc., Civil Action No.
13-833-SLR-CJB, 2014 WL 2116112, at *3 (D. Del. May 20, 2014)
(applying “choice of law rule of the forum state” in action
removed under section 1442(a)).
In multidistrict litigation, the
choice of law rules of the transferor court, i.e., Massachusetts,
12
Plaintiff and Burleigh initially filed this action in
Massachusetts Superior Court (Middlesex County) prior to
Burleigh’s death. Thereafter, GE filed a timely notice of
removal to this court, see 28 U.S.C. § 1446(b)(1), on the basis
that it was acting under the direction of a federal officer at
the shipyard when it constructed and repaired the marine steam
turbines in compliance with Navy specifications and it has a
colorable defense based on federal law. See 28 U.S.C. §
1442(a)(1).
14
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likewise apply where, as here, the transferor court is the
location of the original suit and also the forum state.
See In
re Fresenius Granuflo/NaturaLyte Dialysate Products Liability
Litigation, 76 F. Supp. 3d 294, 300-301 305 (D. Mass. 2015).
“In Massachusetts, courts resolve choice-of-law questions
‘“by assessing various choice-influencing considerations,”
including those provided in the Restatement (Second) of Conflict
of Laws (1971).’”
McKee v. Cosby, 874 F.3d 54, 59–60 (1st Cir.
2017) (quoting Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d 832,
834 (Mass. 1994) (quoting Bushkin Assocs. v. Raytheon Co., 473
N.E.2d 662, 668 (Mass. 1985)).
With respect to torts and
personal injuries in particular, the Massachusetts Supreme
Judicial Court in Cosme identifies the following, applicable
sections in the Restatement (Second) of Conflict of Laws (1971)
(“the Restatement”):
Section 145 of the Restatement provides the general
principle “applicable to all torts and to all issues in
tort,” id. at § 145 comment a, and § 146 of the Restatement
provides a principle applicable in issues concerning causes
of action involving personal injury. Both sections require
an examination of the relevant issue in accordance with the
principles provided in § 6 of the Restatement.
Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d at 834–35
(footnotes omitted).
Section 146 specifically “applies to personal injuries that
are caused either intentionally or negligently and to injuries
for which the actor is responsible on the basis of strict
15
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liability.”
a (1971).
Restatement (Second) of Conflict of Laws § 146 cmt.
It therefore applies to this personal injury
negligence and product liability action.
Section 146 instructs
that the “law of the state where the injury occurred determines
the rights and liabilities of the parties, unless, with respect
to the particular issue, some other state has a more significant
relationship under the principles stated in § 6 to the occurrence
and the parties . . ..”13
Restatement (Second) of Conflict of
Laws § 146 cmt. a (1971).
The principles or “factors” in section six are:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum, (c) the relevant
policies of other interested states and the relative
interests of those states in the determination of the
particular issue, (d) the protection of justified
expectations, (e) the basic policies underlying the
particular field of law, (f) certainty, predictability and
uniformity of result, and (g) ease in the determination and
application of the law to be applied.
Restatement (Second) of Conflict of Laws § 6 (1971).
13
In
Although not cited by the parties, section 175 of the
Restatement applies the same rule in section 146 to wrongful
death actions. First, the language of section 175 tracks the
language of section 146. Second, the comments to section 175
cross reference sections 145 and 146, including the comments
applicable to when the conduct and the injury occur in different
states. See, e.g., Cohen v. McDonnell Douglas Corp., 450 N.E.2d
581, 586 n.10 (Mass. 1983). In fact, the first comment in
section 175 unequivocally states that, “the law applicable to
wrongful death is selected by the same principles as control the
law applicable to personal injuries in general (see § 146).”
Restatement (Second) of Conflict of Laws § 175 cmt. a (1971).
Accordingly, it is not necessary to address section 175
separately from section 146.
16
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balancing the section six factors, section 145(2) of the
Restatement also comes into play in a personal injury action.
See Robidoux v. Muholland, 642 F.3d 20, 25–26 (1st Cir. 2011)
(quoting and applying section 145(2) in personal injury case).
As stated by the First Circuit in Robidoux, in balancing the
section six factors:
courts should consider various “contacts,” including: “(a)
the place where the injury occurred, (b) the place where the
conduct causing the injury occurred, (c) the domicile,
residence, nationality, place of incorporation and place of
business of the parties, and (d) the place where the
relationship, if any, between the parties is centered.”
Id. (emphasis added) (quoting section 145(2)); see also Geshke v.
Crocs, Inc., 889 F. Supp. 2d 253, 260 (D. Mass. 2012) (product
liability action applying section 145).
Moreover, the comments
to section 146 repeatedly cross-reference the comments to section
145.
See Restatement (Second) of Conflict of Laws § 146 cmt. c-h
(1971).
Both plaintiff and GE devote a substantial portion of their
briefs addressing the various contacts in section 145(2).
Adhering to their framework and thereafter considering the
relevant contacts in determining, with respect to the particular
issues GE identifies vis-à-vis the wrongful death claim, whether
Massachusetts has a more significant relationship to the
occurrence and the parties than Maine under the principles in
section six pursuant to section 146, this court turns to the
analysis.
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First and foremost, Maine is the place of injury because it
is the location of Burleigh’s exposure to asbestos.
the place where he received the diagnosis.
It is also
See New v.
Borg-Warner Corp., 13-00675-CV-W-DGK, 2015 WL 5167643, at *3
(W.D. Mo. Sept. 3, 2015) (noting that “[s]ome courts have held
that the injury occurs where the diagnosis is made, not where the
plaintiff is exposed to asbestos” but deeming it unnecessary to
decide which controls because “place of exposure and diagnosis
are the same”).
Indeed, plaintiff acknowledges that, “Maine is
where Mr. Burleigh resided, and was injured and treated.”
(Docket Entry # 170, p. 7).
In cases involving personal
injuries, “the place where the injury occurred is a contact that,
as to most issues, plays an important role.”
Restatement
(Second) of Conflict of Laws § 145 cmt. e (1971).
This case is
no exception.
Turning to the second section 145(2) contact, GE maintains
that the conduct causing the injury was Burleigh’s exposure to
asbestos in the vicinity of GE products and turbines in Maine.
(Docket Entry # 162, p. 8).
To the contrary, the second contact
addresses the conduct of the defendant, i.e., GE.
See
Restatement (Second) of Conflict of Laws § 145 cmt. e (1971)
(referring to “the defendant’s conduct” in discussing “[t]he
place where conduct occurred”); see also In re Fresenius
Granuflo/NaturaLyte Dialysate Products Liability Litigation, 76
18
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F. Supp. 3d at 307 (“Massachusetts courts have ‘considered the
location of events that constitute the alleged wrongdoing as
essential for the substantial interest analysis”).
The wrongful
conduct of GE occurred primarily in Massachusetts where GE
designed, manufactured, and then shipped the turbines to the
shipyard in Maine or a Navy storage facility.
GE also applied
the asbestos-containing gaskets to turbines in Massachusetts and
then shipped the gaskets and the turbines to the shipyard in
Maine or a Navy storage facility.
It additionally shipped
asbestos-containing packing and asbestos-containing gaskets as
loose parts from Massachusetts to the shipyard or a Navy storage
facility.
Notably, whereas the “[c]hoice of the applicable law becomes
more difficult in situations where,” as here, “the defendant’s
conduct and the resulting injury occurred in different states,”
Restatement (Second) of Conflict of Laws § 145 cmt. e (1971),
comment e to section 146 explains that the law of the state where
the injury occurred “usually” applies in such circumstances.
Restatement (Second) of Conflict of Laws § 146 cmt. e (1971)
(when conduct and personal injury “occur in different states, . .
. the local law of the state of injury will usually be applied”)
(citing to section 145).
Furthermore, the law where the injury
occurred carries even greater weight “when the injured person has
a settled relationship to that state, either because he is
19
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domiciled or resides there or because he does business there.”
Id.
Conversely, the law of the place of injury might not play an
important role “when the place of injury” is “fortuitous,”
Restatement (Second) of Conflict of Laws § 145 cmt. e (1971),
such as in a car accident when the non-resident plaintiffs are
“merely passing through” the state where the accident occurred.
Kramer v. Acton Toyota, Inc., No. 993733, 2004 WL 2697284, at *3
(Mass. Super. Ct. Nov. 2, 2004).
applies.
Here, the former principle
With the exception of four years in North Carolina and
a short time working at a job in New Hampshire, Burleigh resided,
lived, and worked in Maine.
His settled relationship to Maine
renders it all the more likely that Maine law applies.
See
Restatement (Second) of Conflict of Laws § 146 cmt. e (1971).
As indicted above, the third contact weighs in favor of
applying Maine law because Maine was Burleigh’s domicile,
residence, and place of business throughout the relevant time
period and up until his death.
GE’s recent change of its primary
place of business to Massachusetts (Docket Entry # 22, ¶ 2K)
(Docket Entry # 162, p. 8) (Docket Entry # 170, p. 3) does not
override Burleigh’s consistent and enduring presence and
connection to Maine.
See In re Fresenius Granuflo/NaturaLyte
Dialysate Products Liability Litigation, 76 F. Supp. 3d at 307
(“mere fact that a . . . defendant is a resident of Massachusetts
does not create a substantial interest”).
20
It is true that GE’s
Case 1:16-cv-11030-RGS Document 195 Filed 05/09/18 Page 21 of 35
purportedly wrongful conduct in Massachusetts lends additional
weight to GE’s place of business contact in Massachusetts.
See
Restatement (Second) of Conflict of Laws § 145 cmt. e (1971)
(importance of domicile, residence, and place of business
“depends largely upon the extent to which they are grouped with
other contacts” and “state where these contacts are grouped is
particularly likely to be the state of the applicable law if
either the defendant’s conduct or the plaintiff’s injury occurred
there”).
Burleigh’s workplace at the shipyard for more than two
decades and his lifelong domicile and residence in Maine,
however, carry greater weight when grouped with the place of
injury in Maine than GE’s wrongful conduct in Massachusetts when
grouped with its principal place of business in that state.
See
id.
It is also true that Massachusetts has an interest in
holding its resident defendant accountable for its conduct that
took place in Massachusetts and caused an injury to a
Massachusetts resident.
See Cosme v. Whitin Mach. Works, Inc.,
632 N.E.2d at 836; Restatement (Second) of Conflict of Laws § 145
cmt. d (1971) (“a state has an obvious interest in regulating the
conduct of persons within its territory and in providing redress
for injuries that occurred there”).14
14
Here, although
Citing the above two sources and Watkins v. Omni Life
Science, Inc., 692 F. Supp. 2d 170 (D. Mass. 2010) (“Watkins”),
plaintiff overstates Massachusetts’ interest in regulating the
21
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Massachusetts has an interest in holding GE accountable for its
conduct, the injury took place in Maine and involved a Maine
resident.
These latter contacts reduce the comparative weight of
Massachusetts’ above-noted interest vis-à-vis Maine’s interest in
providing reasonable compensation for the wrongful death of a
Maine resident injured at his workplace in Maine.
Further,
Burleigh’s beneficiary is herself a longtime Maine resident.
As to the fourth contact, plaintiff submits that the
relationship between the parties is centered in Massachusetts.
(Docket Entry # 170, p. 8).
Relying on state court cases in
Texas and Washington, she contends that the relationship centers
around the wrongful conduct of GE in Massachusetts that caused
the injury, namely, the defective manufacturing and selling of
conduct of resident defendants as “strong.” (Docket Entry # 170,
pp. 9-10). Watkins is distinguishable because the case concerned
a putative class action. Defendant Omni Life Science, Inc.
manufactured and designed the defective product, a replacement
hip, in Massachusetts and the named plaintiffs were Oklahoma
residents who underwent their hip replacement surgeries in
Oklahoma. Id. at 174. Recognizing, as does this court,
Massachusetts’ interest in regulating the conduct of businesses
operating under its laws, id. at 175, the court found that the
interest trumped “any interest that Oklahoma might have because,
“[i]f this case were to achieve class action status, some 1,500
class members representing all fifty states would be affected”
and, “among this geographically diverse group, Massachusetts is
the only state that would have a substantive tie to all of the
class members.” Id. This case does not involve a putative class
action with class members scattered across the United States.
Rather, it involves the estate of a decedent with strong,
longstanding ties to Maine who worked on products that GE shipped
for an extended time period to the shipyard in Maine or to a Navy
storage facility for use on a submarine at the shipyard.
22
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asbestos and asbestos-containing products as well as the failure
to provide adequate instructions and warn foreseeable users of
the dangers of exposure to its asbestos-containing products.
(Docket Entry # 170, pp. 7-8) (Docket Entry # 134, ¶¶ 28-31, 35,
41).
An illustration in the Restatement demonstrates that the
plain meaning of the “relationship . . . between the parties,”
Restatement (Second) of Conflict of Laws § 145 (1971) (emphasis
added), does not necessarily incorporate a requirement to
consider the defendant’s causative conduct exclusive of the
defendant’s interactions with the plaintiff that form the
relationship.
See id. § 145 cmt. e, ill. 1 (1971).
The
illustration exemplifies that, even though the wrongful conduct
consisting of negligence and the injury took place in one state,
i.e., state Y, the parties’ relationship was centered in another
state, i.e., state X.
Id.; see, e.g., Harrigan v. New England
Dragway, Inc., Civil Action No. 13-10132-JCB, 2014 WL 12589625,
at *5 (D. Mass. Jan. 2, 2014) (“relationship between the parties
is centered on Dylan’s participation in motocross activities at
Dragway’s MX101 track”); Ogburn-Sisneros v. Fresenius Med. Care
Holdings, Inc., 2013-05050, 2015 WL 6437773, at *3 (Mass. Super.
Oct. 19, 2015) (products liability claims involving failure to
warn in which parties’ relationship centered in Colorado “given
that the only connection between Fresenius and the decedent was
GranuFlo, which was administered during the decedent’s dialysis
23
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treatment in Colorado” notwithstanding manufacture of “GranuFlo
in Ohio and Texas”).
Finally, in a failure to warn and product
design defect case involving an injured plaintiff, the parties
may lack any “prexisting relationship.”
La Plante v. Am. Honda
Motor Co., Inc., 27 F.3d 731, 741–42 (1st Cir. 1994); see also
Restatement (Second) of Conflict of Laws § 145 (1971) (factor in
choice-of-law analysis is place where the relationship, “if any,”
of the parties is centered).
In the case at bar, Burleigh worked at the shipyard in Maine
and recalls working on GE turbines.
Although Burleigh did not
know Tidd, the relationship between Burleigh and GE centered
around his work on GE products for two decades at the shipyard.
On balance, the fourth contact favors the application of Maine
law.
In sum, the contacts in section 145(2) weigh heavily in
favor of Maine.
Overall, section 146 requires considering whether a state
other than Maine, i.e., the place where the injury occurred, has
a more significant relationship under the principles in section
six with respect to the occurrence and the parties vis-à-vis the
particular issue.
(1971).
Restatement (Second) of Conflict of Laws § 146
The analysis entails considering the interests of Maine
and Massachusetts “on the basis, among other things, of the
purpose sought to be achieved by their relevant local law rules
and of the particular issue.”
Id. § 146 cmt. c; accord
24
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Restatement (Second) of Conflict of Laws § 145 cmt. c (1971)
(“interest of a state in having its tort rule applied” to
determine “a particular issue will depend upon the purpose sought
to be achieved by that rule and by the relation of the state to
the occurrence and the parties”).
The “principles in section
six,” id. § 146, similarly include the “policies of other
interested states and the relative interests of those states in
the determination of the particular issue.”
Id. § 6(2)(c).
Plaintiff argues that the absence of a cap on punitive
damages, one among several issues here, see, e.g., Robidoux v.
Muholland, 642 F.3d at 27 (determining choice of law and stating
that, “the issue here pertains to the application of workers’
compensation immunity rules”), evidences Massachusetts’ interest
in punishing and deterring malicious conduct.
170, p. 16).
(Docket Entry #
She correctly points out that, if the purpose of
the tort law involved “is to punish the tortfeasor and thus to
deter others from following his example, there is better reason
to say that the state where the conduct occurred is the state of
dominant interest.”
Restatement (Second) of Conflict of Laws §
146(2) cmt. e (1971).
The absence of a cap on the recovery of punitive damages in
the Massachusetts wrongful death statute undeniably serves the
purposes of condemnation and deterrence.
See Aleo v. SLB Toys
USA, Inc., 995 N.E.2d 740, 754 & n.19 (Mass. 2013) (“statute . .
25
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. does not set a maximum award.
We have stated that the purposes
of punitive damages include ‘condemnation and deterrence’” and
“‘there is nothing wrong with making it very expensive to kill
people’”); see also Santos v. Lumbermens Mut. Cas. Co., 556
N.E.2d 983, 990 (Mass. 1990) (“‘purposes underlying the allowance
of punitive damages . . . are punishment of the defendant and
deterrence of future wrongdoing’”) (citing Mass. Gen. Laws ch.
229, § 2); Kowalski v. Gagne, 914 F.2d 299, 302 (1st Cir. 1990)
(acknowledging “punitive nature of the statute”).
The $500,000
limit for punitive damages in the Maine wrongful death statute,
in turn, prevents a limitless recovery.
See generally Tuttle v.
Raymond, 494 A.2d at 1361 (rejecting imposition of punitive
damages for reckless conduct to avoid, in part, allowing
“‘limitless imposition of punitive damages’”).
The purpose for the provision in Maine’s punitive damages
statute that restricts actionable conduct to malice rather than
gross negligence is also deterrence and condemnation of
reprehensible conduct.
See Tuttle v. Raymond, 494 A.2d at 1361.
More specifically, the reason for limiting the misconduct to
malicious activity is because expanding the actionable conduct
lessens “and dulls the potentially keen edge of the [punitive
damages] doctrine as an effective deterrent of truly
reprehensible conduct.”
Id.
The purpose of Maine’s punitive
damages law therefore reinforces the need for deterrence by
26
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limiting the conduct to a defined and precise category of
misconduct.
Id.
Maine’s imposition of a clear and convincing
standard of proof fosters a similar purpose of avoiding a loose
assessment of punitive damages in light of their serious
potential consequences.
See id. at 1363 (“although punitive
damages serve an important function in our legal system, they can
be onerous when loosely assessed” and their “potential
consequences . . . warrant a requirement that the plaintiff
present proof greater than a mere preponderance of the
evidence”); see also Batchelder v. Realty Resources Hosp., LLC,
914 A.2d 1116, 1124 (Me. 2007) (purpose of higher standard is to
“avoid[] an overbroad application of an extreme remedy for
egregious cases”).
Because the misconduct of applying asbestos-containing
gaskets to turbines and the decision not to warn workers at the
shipyard of the dangers posed by asbestos occurred in
Massachusetts, the deterrent and condemnation purposes of the
unlimited recovery in the Massachusetts statute are well served
thereby strengthening Massachusetts’ interest in regulating the
conduct of its resident defendant.
See Restatement (Second) of
Conflict of Laws § 146 cmt. e (1971).
On the other hand, Maine
has an interest in protecting its citizens from egregious
misconduct, which it deters in an assertedly more effective
manner than Massachusetts with a narrower and more precise malice
27
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standard in the Maine statute.
Another related and relevant issue is the statutory cap
Maine imposes on non-economic, compensatory damages in a wrongful
death action.
The underlying basis for the cap is “to establish
a reasonable limit on the damages in wrongful death cases.”
Carter v. Williams, Civil Action No. 98-24, 2001 WL 1736582, at
*10 (Me. Super. June 19, 2001) (examining prior version that
increased statutory limit from $75,000 to $150,000) (emphasis
added), aff’d in part, vacated in part, 792 A.2d 1093 (Me. 2002);
see generally Batchelder v. Realty Resources Hosp., LLC, 914 A.2d
at 1121 (malice standard avoids “‘allow[ing] virtually limitless
imposition of punitive damages,’” and “‘overextend[ing] the
availability of punitive damages’”).
The purpose of the absence
of a statutory maximum for such compensatory damages under the
Massachusetts statute is to redress the loss to the plaintiff.
Aleo v. SLB Toys USA, Inc., 995 N.E.2d at 753 (“‘compensatory
damages are intended to redress the concrete loss that the
plaintiff has suffered by reason of the defendant’s wrongful
conduct’”); Matsuyama v. Birnbaum, 890 N.E.2d 819, 835 (Mass.
2008) (“purpose of the wrongful death statute is ‘to compensate a
decedent’s survivors for the loss of the decedent’s life’”).
Massachusetts’ interest in applying this rule is greatly reduced,
however, because Burleigh as well as his widow and beneficiary
are not Massachusetts residents and Burleigh’s injuries occurred
28
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in Maine.
Moreover, it would be anomalous for Maine to insist on
providing greater benefits to its citizens under another state’s
law than it provides to its citizens under its own law.
See
generally Burgio v. McDonnell Douglas, Inc., 747 F. Supp. 865,
872–73 (E.D.N.Y. 1990) (“state’s interest is not merely that
which will bring its citizens the greatest benefits” and “it
would be anomalous for New York to insist on greater benefits for
its plaintiffs abroad than it allows them at home”) (applying New
York law to loss of consortium claim and damages in wrongful
death action).
On balance, Massachusetts’ interest in regulating
the conduct of businesses operating in its state and deterring
their misconduct is furthered by applying the Massachusetts
statute somewhat more than Maine’s interest in awarding a
reasonable amount to its resident or deterring others is
furthered by applying the Maine wrongful death statute.
See
generally Restatement (Second) of Conflict of Laws § 146 cmt. e
(1971).
Having considered the policies of the forum and the
interests of Massachusetts and Maine, the remaining factors in
section six are either not particularly relevant, neutral, or
favor the application of Maine’s wrongful death statute.
See
generally Bushkin Associates, Inc. v. Raytheon Co., 473 N.E.2d at
670 (“borrow[ing] from any of the various lists to help focus our
attention on the considerations particularly relevant to the case
29
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before us”); accord Robidoux v. Muholland, 642 F.3d at 27
(“‘[b]ecause some of the relevant factors are either redundant or
not determinative, we focus on considerations particularly
relevant to the case’”) (quoting Jasty v. Wright Med. Tech.,
Inc., 528 F.3d 28, 40 (1st Cir. 2008), with brackets omitted).
The parties had a justified expectation that Maine law would
apply.
The injury took place in Maine at a workplace where GE
had a longtime presence and where Burleigh worked for more than
two decades on, inter alia, GE turbines.
Burleigh had no contact
with GE products in Massachusetts.
In addition, “the state where the injury occurred will
usually be readily ascertainable” thereby fostering “the choiceof-law values of certainty” and predictability.
Restatement
(Second) of Conflict of Laws § 146 cmt. c (1971).
The uniformity
of result slightly favors Massachusetts because GE manufactured
the turbines and applied the gaskets to the turbines and, as
reasoned by plaintiff, presumably sold them in several different
states.
The uniformity of result, however, is also served by
applying the law of the state where the injury occurred.
See id.
(“rule furthers the choice-of-law values of . . . uniformity of
result and, since the state where the injury occurred will
usually be readily ascertainable, of ease in the determination
and application of the applicable law”).
The ease in determining
Massachusetts or Maine law is neutral inasmuch as the contours of
30
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the law in both states is well established.
As a final matter, plaintiff contends that Ristaino v. D.C.
Bates Equip. Co., Inc., No. 03-1178, 2004 WL 1171247 (Mass.
Super. Ct. May 12, 2004) (“Ristaino”), involves the same facts as
the case at bar and warrants the same result, namely, application
of Massachusetts law to a non-resident plaintiff injured outside
of Massachusetts by a product sold and installed in Massachusetts
by a Massachusetts corporation.
(Docket Entry # 170).
Notwithstanding these similar facts, Ristaino is distinguishable
for a number of reasons.
First, Ristaino involved applying a
statute of limitations under section 142 of the Restatement,
which presents a somewhat different legal analysis than section
146.
See id. at *1-2; Restatement (Second) of Conflict of Laws §
142 (1971) (“section 142”).
Section 142 provides that:
under choice of law principles set forth in § 6, the forum
State generally will apply its own statute of limitations to
permit a claim unless: “(a) maintenance of the claim would
serve no substantial interest of the forum; and (b) the
claim would be barred under the statute of limitations of a
state having a more significant relationship to the parties
and the occurrence.”
Nierman v. Hyatt Corp., 808 N.E.2d 290, 292 (Mass. 2004) (quoting
section 142).
The correct focus is “‘on the statute of
limitations issue, and not on the underlying tort.’”
Id. at 293.
Second, the Ristaino court deemed it significant that the
Massachusetts resident defendant defended the Ristainos’ first
lawsuit brought in New Jersey on a jurisdictional basis that it
31
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lacked minimum contacts with New Jersey and the second lawsuit
brought in Massachusetts on the basis that New Jersey’s statute
of limitations applied.
Ristaino, 2004 WL 1171247, at *1, 3.
Such circumstances do not exist in the case at bar.
Third, the
absence of a New Jersey forum appeared to strengthen
Massachusetts’ interest in providing a forum for persons injured
by the conduct of its resident defendant.
See id. at *3.
Here,
plaintiff has an alternative forum for a wrongful death claim by
filing an action in her own state.
Fourth, unlike GE which had a
longstanding connection to the shipyard in Maine, the resident
defendant in Ristaino installed a winch on a truck, “delivered
the truck to Mass. Electric in Boston[,]” and thereafter had no
“involvement with the truck or with the New Jersey construction
project on which Mr. Ristaino was injured” when his hand became
entangled in the winch.
Id. at *1.
In sum, although the purposes served by the two laws gives
this court pause, on balance Massachusetts does not have a more
significant relationship than Maine to the occurrence and the
parties under the principles in section six with respect to the
amount of non-economic compensatory and punitive wrongful death
damages; the burden of proof in a wrongful death action; and the
standard of conduct required to recover punitive damages in a
wrongful death action.
III.
Choice of Massachusetts or Maine Law (Contribution)
32
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The remaining joint and several liability issues relative to
contribution implicate the apportionment of liability and amount
of damages between the remaining defendants (GE, Crane, and
Warren) and potentially the settling defendants, particularly in
the event Maine law applies.
See Me. Rev. Stat. Ann. tit. 14, §
156; cf. Shantigar Found. v. Bear Mt. Builders, 804 N.E.2d at332334 & n.12 (citing, inter alia, Me. Rev. Stat. Ann. tit. 14, §
156).
GE, Crane, and Warren seek to apply Maine law.
Plaintiff
does not address or discuss the joint and several liability
issues relative to contribution.15
She therefore waives any
opposition to GE’s argument to apply Maine law to the
contribution issues.
See Coons v. Industrial Knife Co., Inc.,
620 F.3d 38, 44 (1st Cir. 2010) (“district court was ‘free to
disregard’ the state law argument that was not developed in
Coons’s brief”).
Section 173 of the Restatement dictates that section 145
“determines whether one tortfeasor has a right of contribution or
indemnity against another tortfeasor.”
Restatement (Second) of
Conflict of Laws § 173 (1971) (“section 173”).
to settling tortfeasors.
The rule applies
See id., § 173 cmt. a (law selected
under section “145 determines whether contribution can
successfully be sought against a joint tortfeasor who has been
given a release by the plaintiff”).
15
See footnote 11.
33
Contacts consisting of the
Case 1:16-cv-11030-RGS Document 195 Filed 05/09/18 Page 34 of 35
place of the injury and the domicile, residence, and workplace in
Maine create the justified expectation that Maine law would
apply.
Certainty, predictability, and uniformity are well served
by applying the law of the place of the injury.
As discussed
previously, the contacts in section 145 favor the application of
Maine law.
In Massachusetts, contribution “is designed equitably to
distribute damages among all those liable in tort for the same
offense.”
Berube v. City of Northampton, 602 N.E.2d 560, 562
(Mass. 1992) (discussing Massachusetts General Laws chapter 231,
section one); McGrath v. Stanley, 493 N.E.2d 832, 835 (Mass.
1986) (“contribution statute is aimed at eliminating” unfairness
of one tortfeasor bearing disproportionate share of a plaintiff’s
recovery).
In Maine, contribution serves a similar purpose of
“ensur[ing] fairness between joint tortfeasors whose negligence
caused a third party harm.”
Estate of Dresser v. Maine Medical
Ctr., 960 A.2d 1205, 1207 (Me. 2008).
Massachusetts thus has a
greater interest than Maine in applying its contribution laws to
GE because the company has its principal place of business in
Massachusetts.
The facts regarding the location of the
manufacturing, design, and sale by Crane and Warren of their
products; GE’s application, if any, of those products to the
steam turbines GE manufactured in Massachusetts and shipped to
Maine; and Burleigh’s use of Crane and Warren products at the
34
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shipyard, however, are not well developed.
At this juncture, in light of the weight of the section
145(2) contacts and considering the interests of the two states
in applying their respective law, Maine appears to have the more
significant relationship with the parties and the occurrence than
Massachusetts.16
As urged by the remaining defendants, this
court therefore concludes that Maine law applies to the
contribution issues at this point in the proceedings.
CONCLUSION
In accordance with the foregoing discussion, the motion to
apply Maine law (Docket Entry # 161) is ALLOWED.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
16
As facts develop, however, Massachusetts’ interest visà-vis Maine’s interest may override the weight of the forgoing
contacts and factors that favor the application of Maine law such
that the trial judge may deem it more appropriate to apply
Massachusetts law.
35
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