Opinion
C. A. PC-2016-5339
01-13-2021
LESTER WALLACE, PERSONAL REPRESENTATIVE OF THE ESTATE OF GERARD WALLACE, DECEASED, AND RUTH WALLACE, HIS WIFE, PLAINTIFFS, v. TRANE COMPANY, SUCCESSOR-IN-INTEREST TO AMERICAN STANDARD, ET AL., DEFENDANTS.
Ruth Wallace • Vincent L. Greene, IV, Esq. Carrier Corp.; Electrolux Home Care Products; United Technologies Corp. • James A. Ruggieri, Esq. • Stephen P. Cooney, Esq. Cetrulo, LLP; Defendants' Liaison Counsel • Lawrence G. Cetrulo, Esq. • Stephen T. Armato, Esq. Ferguson Enterprises, Inc.; The Gage Company, Inc. • Anthony S. Aprea, Esq. • Stephen P. Harten, Esq. General Electric Co.; The Heil Company • Jeffrey M. Thomen, Esq. Metropolitan Life Insurance • Mary C. Dunn, Esq. R.W. Beckett Corp. • David H. Stillman, Esq. Sears, Roebuck & Co. • Margreta Vellucci, Esq. The Marley-Wylain Company • Jonathan F. Tabasky, Esq. • Kenneth R. Costa, Esq. • Paul E. Dwyer, Esq. • Michael F. McVinney, Esq. • Clint D. Watts, Esq. Thermo Products, LLC • Anthony J. Sbarra, Esq. • John R. Felice, Esq. Trane Company • Brian A. Fielding, Esq. Wayne/Scott Fetzer Company • Brian C. Newberry, Esq. • Adam Benevides, Esq.
Ruth Wallace • Vincent L. Greene, IV, Esq.
Carrier Corp.; Electrolux Home Care Products; United Technologies Corp. • James A. Ruggieri, Esq. • Stephen P. Cooney, Esq.
Cetrulo, LLP; Defendants' Liaison Counsel • Lawrence G. Cetrulo, Esq. • Stephen T. Armato, Esq.
Ferguson Enterprises, Inc.; The Gage Company, Inc. • Anthony S. Aprea, Esq. • Stephen P. Harten, Esq.
General Electric Co.; The Heil Company • Jeffrey M. Thomen, Esq.
Metropolitan Life Insurance • Mary C. Dunn, Esq.
R.W. Beckett Corp. • David H. Stillman, Esq.
Sears, Roebuck & Co. • Margreta Vellucci, Esq.
The Marley-Wylain Company • Jonathan F. Tabasky, Esq. • Kenneth R. Costa, Esq. • Paul E. Dwyer, Esq. • Michael F. McVinney, Esq. • Clint D. Watts, Esq.
Thermo Products, LLC • Anthony J. Sbarra, Esq. • John R. Felice, Esq.
Trane Company • Brian A. Fielding, Esq.
Wayne/Scott Fetzer Company • Brian C. Newberry, Esq. • Adam Benevides, Esq.
DECISION
GIBNEY, P.J.
The Defendant Wayne/Scott Fetzer Company (Defendant or Wayne) seeks summary judgment in this personal injury action brought by Plaintiffs Lester Wallace, Personal Representative of the Estate of Gerard Wallace, and Ruth Wallace, the Decedent's wife (Plaintiffs). The Defendant argues that there are no genuine issues of material fact remaining for trial, as the Plaintiffs have not offered evidence that Gerard Wallace (Mr. Wallace or the Decedent) was exposed to an asbestos-containing Wayne product. Plaintiffs object to the motion, arguing that there are genuine issues of material fact and that the use of third-party asbestos products in relation to Wayne's burners was foreseeable to the Defendant. Plaintiffs also raise a negligence claim based on Defendant's failure to warn of associated hazards. This Court's jurisdiction is pursuant to G.L. 1956 § 8-2-14.
I
Facts and Travel
The Decedent and his wife, Ruth Wallace, filed this instant action on November 16, 2016 after the Decedent was diagnosed with mesothelioma in September 2016. (Def.'s Mem. Supp. Mot. Summ. J. (Def.'s Mem.), Ex. B (Wallace Dep.), at 69:5-70:7.) The Plaintiffs allege that Mr. Wallace worked as a plumbing-heating installer-repairer for Portland Lehigh Fuel Company from 1949 to 1951, A.R. Wright from 1951 to 1953, Peterson Oil Company from 1954 to 1966, and Southern Maine Vocational Technical Institute from 1966 to 1985. Plaintiffs allege that Mr. Wallace, while at work, inhaled, absorbed, ingested, and came into contact with asbestos and asbestos-containing products.
Mr. Wallace grew up in Maine, where he resided for most of his life, with the exception of the three years that he served in the Navy beginning in 1943. (Wallace Dep. 13:6-11, 79:2-24, 87:4-21, 90:5-91:2, 95:12-16, 122:16-123:5.) Following his time in the Navy, Mr. Wallace worked in Maine on various jobs including work as a fuel truck driver, service technician, and finally as an instructor at Southern Maine Vocational Technical Institute (later known as Southern Maine Community College) (the College) from 1966 through his retirement in 1985. Id. at 14:11-15:15. Mr. Wallace's exposure allegations in the present motion arise exclusively from his employment at Portland Lehigh Fuel Company (Portland Lehigh), A.R. Wright, and Peterson Oil Company (Peterson Oil), all of which were located in Maine. Id. at 191:24-193:5. In his deposition testimony, Mr. Wallace testified to working with Wayne burners during his oil burner service work at Portland Lehigh, A.R. Wright, and Peterson Oil, which was "almost exclusively residential." Id. at 16:7-15, 191:24-192:23, 196:1-7.
Mr. Wallace testified to coming into contact with "a lot" of Wayne burners, which were "very popular," mostly doing work with burners used for conversion from coal to oil. Id. at 194:2-6, 199:5-7, 200:1-18. However, Mr. Wallace could not testify specifically as to how many Wayne burners he worked on, the jobs where he did so, nor could he recall the make or model of any of the boilers that used Wayne burners. Id. at 194:9-22, 195:21-24. Conversion jobs, according to Mr. Wallace's testimony, involved removing the doors and grates from the boiler or furnace, installing a combustion chamber, inserting a burner tube into the combustion chamber, and then sealing around the tube of the burner, potentially using asbestos-containing mud. Id. at 40:24-41:22, 200:24-201:5, 201:14-16, 204:3-4, 209:4-8, 278:13-279:10. Mr. Wallace stated that he would have performed "close to" a hundred conversion jobs over the years. Id. at 40:6-23. The removal and reinstallation of the sealing products during conversion caused dust that Decedent breathed. Id. at 43:4-11.
Sometimes, Mr. Wallace said, he would have to patch up the sealant on the yearly overhaul. Id. at 204:9-12, 22-23. Unless he was installing new equipment, Mr. Wallace had to supply the asbestos powder or mud used as a sealant, typically using Johns Manville 450 cement and Eagle 66 mud. Id. at 22:2-13, 24:24-25:6. Mixing this mud with water in preparation for its use also caused dust that Decedent breathed. Id. at 35:12-36:8, 278:13-279:10. While some type of sealant was provided with new burners, see id. at 43:12-19, Mr. Wallace stated that, to his knowledge, the mud he purchased was never provided by burner manufacturers, id. at 279:8-10. He could not testify to the date of manufacture, installation date, or service history of the Wayne burners he serviced, nor did he know whether any Wayne burners or other components were original to any boilers he serviced. Id. at 196:14-197:6, 198:10-13. However, during these years, Wayne produced an installation manual for its Model F Oil Burner, which states that an "insulating refractory type combustion chamber is recommended for use with this burner" and recommends seasonal inspection and service. (Pls.' Resp. to Def.'s Mem. (Pls.' Resp.), Ex. A, at 3, 12 ¶¶ E(1) & (2).)
Mr. Wallace died on August 19, 2017. See Pls.' Resp. ¶ 2. The operative Fifth Amended Complaint was filed on November 15, 2017, after his death. Defendant filed its motion for summary judgment on July 9, 2019. Plaintiffs filed their objection on July 29, 2019. Defendant subsequently filed a reply on August 13, 2019. Hearing on this matter was held on August 19, 2019. Plaintiffs subsequently filed a motion to dismiss all loss of consortium claims on October 1, 2019.
II
Parties' Arguments
Defendant moves for summary judgment under Maine law, pursuant to Rule 56 of the Maine Rules of Civil Procedure. Def.'s Mem. 1-2; see also Def.'s Mot. Apply Foreign Law. Defendant argues that Plaintiffs have failed to produce evidence showing that Mr. Wallace worked with or around asbestos-containing components manufactured, sold, supplied, or in any way original to any Wayne product. (Def.'s Mem. 2, 10-17.) Defendant states that if Plaintiffs cannot prove that asbestos exposure occurred due to Mr. Wallace's exposure to asbestos-containing products original to a Wayne product (i.e., not replacement mud or cement manufactured or sold by third parties), then Plaintiffs have not made out a prima facie case under Maine law, and Defendant is entitled to summary judgment. Id. at 15-16. Assuming Defendant is entitled to summary judgment on the personal injury claim, Defendant argues that Plaintiff Ruth Wallace's loss of consortium and conspiracy claims (which are dependent upon the underlying tort liability asserted through her late husband's claim) are similarly barred. Id. at 17-18.
As explained previously in Wallace v. Trane Co., No. PC-2016-5339, 2020 WL 6470890 (R.I. Super. Oct. 27, 2020), although this Court applies Rhode Island's procedural law even where it applies foreign substantive law, the summary judgment standard is sufficiently comparable between the states such that further briefing is unnecessary. Wallace, 2020 WL 6470890, at *2 n.2.
Plaintiffs do not contest the application of Maine law, nor the propriety of summary judgment as it relates to their conspiracy claim. (Pls.' Resp. 12.) They oppose summary judgment on their other claim, arguing that inferences reasonably drawn from the evidence in the record create a dispute of material fact as to whether Mr. Wallace's asbestos-related disease was caused by exposure to asbestos while working with Wayne's products. Id. at 13. Plaintiffs contend that, under a strict liability theory, the foreseeable and recommended use of asbestos refractory material in relation to the combustion chambers of its oil burners creates liability for Wayne even where no evidence of exposure can be linked to Wayne's original products. Id. at 14-15. Plaintiffs also argue that Wayne was negligent, as it had a duty to warn of asbestos used in conjunction with its products. Id. at 15-16.
In its Reply to Plaintiffs' Response, Defendant argues that this Court has rejected foreseeability and an attendant duty to warn under similar circumstances. (Def.'s Reply 7-9.) Defendant also states that "recommending a category of heat insulating material cannot be construed as advocating the use of asbestos. . . ." Id. at 9 n.2. Defendant reiterates that it is entitled to summary judgment, because inferences from circumstantial evidence must be established beyond mere speculation, which Defendant claims Plaintiffs have not done. Id. at 9-11.
III
Standard of Review
Initially, the Rhode Island Supreme Court has said that "[w]e apply our own procedural law, . . . 'even if a foreign state's substantive law is applicable.'" DeFontes v. Dell, Inc., 984 A.2d 1061, 1067 (R.I. 2009) (quoting McBurney v. The GM Card, 869 A.2d 586, 589 (R.I. 2005)). "'Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.'" DeMaio v. Ciccone, 59 A.3d 125, 129-30 (R.I. 2013) (quoting Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I. 2008)). Therefore, "only if the case is legally dead on arrival should the court take the drastic step of administering last rites by granting summary judgment." Mitchell v. Mitchell, 756 A.2d 179, 185 (R.I. 2000).
This Court will grant summary judgment "when no genuine issue of material fact is evident from 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' and the motion justice finds that the moving party is entitled to prevail as a matter of law." Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011) (internal quotation omitted)). The moving party "bears the initial burden of establishing the absence of a genuine issue of fact." McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (citation omitted). The Court "views the evidence in the light most favorable to the nonmoving party[, ]" Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013), and "does not pass upon the weight or the credibility of the evidence[, ]" Palmisciano v. Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992). Thereafter, "'the nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.'" Mruk, 82 A.3d at 532 (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)).
In this context, "'material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). Consequently, only when the facts reliably and indisputably point to a single permissible inference can this process be treated as a matter of law. Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981). Furthermore, "'summary judgment should enter against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.'" Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007) (further internal quotation omitted)).
IV
Choice of Law Analysis
Defendant argues that Maine substantive law should govern adjudication of this matter. (Def.'s Mem. 1 n.1.) On August 13, 2019, Defendant filed a motion to apply foreign law and supporting memorandum. (Def.'s Mot. Apply Foreign Law; Def.'s Mem. Supp. Mot. Apply Foreign Law (Def.'s Foreign Law Mem.).) Plaintiffs "agree with Wayne that this Court should apply Maine law in relation to this action." (Pls.' Resp. 12.) Our Supreme Court has stated that, "[g]enerally, 'parties are permitted to agree that the law of a particular jurisdiction will govern their transaction.'" DeFontes, 984 A.2d at 1066 (quoting Terrace Group v. Vermont Castings, Inc., 753 A.2d 350, 353 (R.I. 2000)).
Defendant states that it served a notice of intent to apply foreign law on June 4, 2019. See Def.'s Mem. 3. That notice is provided as an exhibit to Defendant's memorandum. See Def.'s Mem., Ex. E (Notice of Intent). However, that notice does not seem to be on file with the Superior Court.
Moreover, under Rhode Island's "interest-weighing" approach to choice of law issues, Maine is the state that "'bears the most significant relationship to the event and the parties.'" Harodite Industries, Inc. v. Warren Electric Corp., 24 A.3d 514, 534 (R.I. 2011) (quoting Cribb v. Augustyn, 696 A.2d 285, 288 (R.I. 1997)) (emphasis added by Harodite court). Our Supreme Court has confirmed that Rhode Island courts must consider the following factors when evaluating choice of law in tort matters: "'(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil [sic], 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.'" Harodite Industries, 24 A.3d at 534 (quoting Brown v. Church of the Holy Name of Jesus, 105 R.I. 322, 326-27, 252 A.2d 176, 179 (1969) (internal quotation omitted)). Mr. Wallace's contacts with Maine give that state a strong interest in and relationship with this matter. It was in Maine that Mr. Wallace lived most of his life and worked with the Wayne burners at issue here. See Wallace Dep. 79:2-24, 191:24-193:5, 196:1-7. It was also in Maine that Mr. Wallace was treated for mesothelioma and later died. See id. at 62:1-20, 68:21-70:7; Def.'s Mem. 1. This Court has applied Maine law under similar circumstances in the past, including in a recent decision granting summary judgment in this same matter to another defendant. See Wallace, 2020 WL 6470890, at *3-4; Hinkley v. A.O. Smith Corp., No. PC-15-1722, 2017 WL 1046587, at *3 (R.I. Super. Mar. 13, 2017). It will do so here as well.
V
Analysis
In order for a plaintiff to survive a defendant's motion for summary judgment as to a particular claim, the plaintiff must "produce evidence that would establish a prima facie case for [that] claim . . . ." DiBattista v. State, 808 A.2d 1081, 1089 (R.I. 2002).
In Rumery v. Garlock Sealing Technologies, Inc., the Maine Superior Court stated that "[s]trict liability pursuant to 14 M.R.S. § 221 may arise under any of three different theories: (1) a defect in the manufacture of a product; (2) a defect in the design of a product; or (3) a failure of the manufacturer to adequately warn with respect to danger in the use of a product." Rumery, No. 05-CV-599, 2009 WL 1747857 (Me. Super. Apr. 24, 2009) (citing Bernier v. Raymark Industries, Inc., 516 A.2d 534, 537 n.3 (Me. 1986); Walker v. General Electric Co., 968 F.2d 116, 119 (1st Cir. 1992)). As the Rumery court noted, the "basis for imposing strict liability on a particular defendant is that 'the product must be in some respect defective.'" Rumery, 2009 WL 1747857 (quoting Bernier, 516 A.2d at 537). Maine law also calls for evidence that an asbestos-containing product originated with the defendant, pursuant to 14 M.R.S § 221. See Grant v. Foster Wheeler, LLC, 140 A.3d 1242, 1248 (Me. 2016).
Additionally, a claim for negligence under Maine law requires proof of causation as a main element. See Mastriano v. Blyer, 779 A.2d 951, 954 (Me. 2001). Consequently, a plaintiff must prove that their injury was proximately caused by a breach of duty owed to the plaintiff by the defendant. Id. The Supreme Judicial Court of Maine stated in Grant that:
"Evidence is sufficient to support a finding of proximate cause if the evidence and inferences that may reasonably be drawn from the evidence indicate that the negligence played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably foreseeable consequence of the negligence." Grant, 140 A.3d at 1246.
Therefore, to establish a case in personal injury asbestos litigation, a plaintiff must demonstrate not only product nexus-that the decedent was exposed to the defendant's asbestos- containing product-but also medical causation, i.e., that such exposure was a substantial factor in causing the plaintiff's injury. Id. Furthermore, "[t]he mere possibility of … causation" is not enough. Id. When the matter remains one of "pure speculation or conjecture, or even if the probabilities are evenly balanced," summary judgment is appropriate. Id.
A
Product Nexus
The Supreme Judicial Court of Maine stated in the Grant case that a plaintiff must provide sufficient evidence of product nexus in order to survive summary judgment. Grant, 140 A.3d at 1248-49. The Grant court held that the necessary showing of product nexus means, at minimum, evidence of 1) a defendant's asbestos-containing product, 2) at the site where the plaintiff worked or was present, and 3) where the plaintiff was in proximity to that product at the time it was being used. See id. at 1246 (detailing the "less burdensome standard applied by the trial court" in that case, which the plaintiff did not satisfy) (also citing to Welch v. Keene Corp., 31 Mass.App.Ct. 157, 575 N.E.2d 766, 769 (1991)). A plaintiff must not only prove that the asbestos product was used at the worksite, but also that the employee inhaled the asbestos from the defendant's product. See id.
For purposes of this motion, Plaintiffs have established that: (1) the decedent worked at Portland Lehigh, A.R. Wright, and Peterson Oil for a period of seventeen years (Wallace Dep. 16:7-15, 297:23-298:23), (2) Defendant Wayne manufactured burners that would have been installed during the conversion of boilers or furnaces from coal to oil and serviced by Decedent during his employment as a service technician (Wallace Dep. 191:24-192:23, 194:2-6, 196:1-7, 199:5-7, 200:1-18), (3) asbestos-containing material, including Johns Manville and Eagle 66 mud, was used to provide a seal when inserting a burner tube into the combustion chamber during conversion (Wallace Dep. 22:2-13, 24:24-25:6, 200:24-201:5, 201:14-16, 204:3-4, 209:4-8, 278:13-279:10), (4) the Decedent did conversion jobs and yearly maintenance of burners (Wallace Dep. 194:2-6, 199:5-7, 200:1-18, 204:9-12, 22-23), (5) yearly maintenance included the patching of sealant that had shrunk (Wallace Dep. 204:9-12, 22-23), and (6) dust from the asbestos-containing material was generated when Decedent mixed the powdered mud with water for use (Wallace Dep. 36:4-8).
Plaintiffs allege that the Decedent's exposure arose from his employment servicing oil burners at Portland Lehigh, A.R. Wright, and Peterson Oil. (Wallace Dep. 191:24-193:5.) Plaintiffs have not alleged that any Wayne burners themselves contained asbestos, instead arguing that the sealant necessary to install and maintain the burners contained the asbestos, causing Decedent's exposure. See Pls.' Resp. 7, 10 ¶¶ 2-6; Wallace Dep. 200:14-201:22. While some type of sealant was provided with new burners, see Wallace Dep. 43:12-19, Mr. Wallace stated that, to his knowledge, the mud he purchased was never provided by burner manufacturers, see Wallace Dep. 279:8-10. Additionally, although the Decedent testified that he worked on "a lot" of Wayne burners, based on their popularity, he could not specifically testify about the location or model of any particular Wayne burner, either from memory or records. Id. at 194:2-6, 9-22, 195:21-24, 199:5-7, 200:1-18. This was partially a function of the work Decedent did for these companies, servicing residential boilers and furnaces. Id. at 16:7-15. Consequently, Plaintiffs have not established that Mr. Wallace installed a new Wayne burner that came with an asbestos-containing sealant. This means that Plaintiffs cannot establish that Mr. Wallace was exposed to an asbestos-containing product that originated with Defendant. See Grant, 140 A.3d at 1248-49.
Plaintiffs argue that Decedent's exposure to the sealant required when installing Wayne burners on conversion jobs and patching it during yearly maintenance provides a plausible theory of product nexus. See Pls.' Resp. 14-16. Mr. Wallace testified that conversion jobs required the use of sealant (either cement or mud) when installing burners into combustion chambers. Id. at 40:24-41:22, 200:24-201:5, 201:14-16, 204:3-4, 209:4-8, 278:13-279:10. Mr. Wallace also stated that he would sometimes have to patch up the sealant on the yearly overhaul. Id. at 204:9-12, 22-23. On those yearly maintenance calls, Mr. Wallace supplied the asbestos powder or mud he used as a sealant, typically using Johns Manville 450 cement and Eagle 66 mud. Id. at 22:2-13, 24:24-25:6. Decedent breathed dust caused by the removal and reinstallation of the sealing products during conversion and the patching with mud as part of the yearly maintenance. Id. at 35:12-36:8, 43:4-11, 278:13-279:10. Consequently, that work could have constituted exposure if and when the sealant contained asbestos.
However, Mr. Wallace could not specifically testify about the location or model of any particular Wayne burner or to individual models or boilers serviced, either from memory or records. Id. at 146:13-148:10, 155:12-156:10, 194:2-22, 195:21-24, 199:5-7, 200:1-18, 300:11-19, 301:24-302:3. This means that he could not testify about any sealant that might have been provided with a specific new Wayne burner, nor about the content or origin of the extant sealant that might have been disturbed when doing a conversion job. He did testify to his regular practice of using Johns Manville 450 cement and Eagle 66 asbestos powder "mud" when he had to provide his own sealant for use with burners, either during installation on conversion jobs or for patching during yearly maintenance. Id. at 22:2-13, 24:24-25:6, 204:9-205:3, 278:13-279:10, 383:13-22. However, Plaintiffs have not offered any evidence that would link Wayne with these products. Even granting Plaintiffs, as nonmoving party, the benefit of inferences reasonably drawn from the record, no link between Wayne and these sealants can be inferred here. As in Grant, Plaintiffs' evidence has failed to adequately link his exposure to "asbestos that originated with [Defendant]." Grant, 140 A.3d at 1248.
Plaintiffs advance a foreseeability argument to bridge the gap here, arguing that Wayne either foresaw or should have foreseen that their burners would require the use of third-party sealant. See Pls.' Resp. 14-15. This foreseeability argument was raised by these same Plaintiffs against another defendant in this matter under Maine law. See Wallace, 2020 WL 6470890, at *5. However, it remains true that "'Maine courts have rejected foreseeability arguments in relation to the dangers of a third-party product.'" Id. (quoting Hinkley, 2017 WL 1046587, at *4, n.3).
A theory based on the foreseeable ancillary use of a defective or toxic third-party product, which would subject a manufacturer to liability by way of a duty to warn, is also not applicable here. See id., at *6 (citing Richards v. Armstrong International, Inc., No. BCD-CV-10-19, 2013 WL 1845826, at *25 (Me.B.C.D. Jan. 25, 2013)); see also Marois v. Paper Converting Machine Co., 539 A.2d 621, 624 (Me. 1988). This is because there is no evidence that the actual third-party product used was supplied or recommended for use with its products by the Defendant.
Here, Mr. Wallace did testify that sealant was necessary when installing a burner into a combustion chamber during conversion jobs, to "keep the poisonous flue gases out of the house." (Wallace Dep. 40:24-42:6.) Moreover, Plaintiffs provided evidence that Wayne had recommended the use of "insulating refractory type combustion chamber" with its Model F Oil Burner, as well as recommending seasonal inspection and service. (Pls.' Resp., Ex. A, at 3, 12 ¶¶ E(1) & (2).) However, the use of a particular combustion chamber has not been argued here as part of Decedent's exposure, and the mere fact that Wayne recommended seasonal inspection and service cannot be construed or extended to infer a recommendation that those performing such service use asbestos-containing sealant during their repairs. Consequently, Plaintiffs have not met their burden on product nexus, failing to provide sufficient evidence of either an original Wayne product or a third-party product actually distributed or recommended by Wayne to Decedent, and summary judgment is appropriate.
B
Loss of Consortium and Conspiracy
The Defendant also moves for summary judgment on Plaintiffs' loss of consortium and conspiracy claims, alleging that when an underlying personal injury claim fails, these derivative claims fail as well. (Def.'s Mem. 17-18.) The Supreme Judicial Court of Maine has stated that both a loss of consortium claim and a personal injury claim are subject to the same defenses since both claims arise from the same set of facts, and the spouse's loss of consortium injury derives from the other spouse's bodily injury. See Steele v. Botticello, 21 A.3d 1023, 1027-28 (Me. 2011); see also Hardy v. St. Clair, 739 A.2d 368 (Me. 1999); Brown v. Crown Equipment Corp., 960 A.2d 1188 (Me. 2008); Parent v. Eastern Maine Medical Center, 884 A.2d 93 (Me. 2005). However, Plaintiffs' loss of consortium claims were collectively dismissed on October 1, 2019.
Under Maine law, civil conspiracy is not an independent tort, and so "absent the actual commission of some independently recognized tort, a claim for civil liability for conspiracy fails." Potter, Prescott, Jamieson & Nelson, P.A. v. Campbell, 708 A.2d 283, 286 (Me. 1998) (citing Cohen v. Bowdoin, 288 A.2d 106, 110 (Me. 1972)). Furthermore, Plaintiffs do not contest the motion for summary judgment on their conspiracy claim. (Pls.' Resp. 12.) Because this Court has granted summary judgment on the underlying personal injury claim, Plaintiffs' conspiracy claim must fail.
VI
Conclusion
This Court finds that the Defendant has met its summary judgment burden and that the Plaintiffs have failed to produce sufficient evidence of product nexus. While the Plaintiffs' claims for loss of consortium were previously dismissed, the remaining conspiracy claim fails here for want of an underlying tort basis. Therefore, the Defendant's motion for summary judgment is granted as to all counts of Plaintiffs' Fifth Amended Complaint. Counsel shall submit the appropriate order for entry.