Synopsis: The six year statute of repose barring negligent construction and design claims applies even in cases involving damages arising from diseases with extended latency periods such as mesothelioma. A recent decision from the Massachusetts Supreme Judicial Court (“SJC”) affirms the legislative intent and comprehensive reach of the statute of repose, G.L. c. 260, § 2B (“§ 2B”). The decision highlights the importance and need for certain defendants entrenched in personal injury asbestos litigation within Massachusetts to evaluate their potential standing under the statute.

Overview: In Stearns v. Metropolitan Life Ins. Co, SJC-12544 (March 1, 2018), the SJC was tasked with answering a certified question for the United States District Court for the District of Massachusetts. The federal district court initially denied a defendant’s motion for summary judgment based on the statute of repose in a sweeping opinion that sought to address a matter of first impression under state law. Following a motion for reconsideration and a request for certification pursuant to 28 U.S.C. § 1292(b), the federal district court appropriately yielded to the Commonwealth’s highest court and certified the question of whether § 2B “can be applied to bar personal injury claims arising from diseases with extended latency periods, such as those associated with asbestos exposure, where defendants had knowing control of the instrumentality of injury at the time of exposure.” Stearns v. Metropolitan Life Ins. Co., No. 15-13490 RWZ, 2018 WL 2227991 (D. Mass. May 12, 2018).

In response, the SJC issued a well-reasoned opinion drawing from past precedent and legislative intent of § 2B in concluding that the plain and unambiguous statutory language means what it says. Although the SJC recognized “the regrettable effect of barring all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits,” the SJC nonetheless upheld the viability of § 2B in finding that the statute “completely eliminates all tort claims arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property after the established time period has run, even if the cause of action arises from a disease with an extended latency period and even if a defendant had knowing control of the instrumentality of injury at the time of exposure.”

Background: During the 1970s, Wayne Oliver worked as pipe insulator for a construction company involved in the construction of two nuclear power plants in Massachusetts. Both power plants utilized custom-made turbine generators designed, engineered, and installed, in part, by General Electric Company (“GE”). The specifications for both generators apparently called for the use of asbestos-containing insulation materials. The plants opened for use in 1972 and 1975.

Approximately forty years later, Mr. Oliver filed his personal injury/negligence lawsuit in state court against numerous defendants, including GE. He alleged, in part, that he was exposed to asbestos through his work on the construction of both power plants from 1971 through 1978, and that such exposure caused or contributed to his diagnosis of malignant mesothelioma. The case was later removed to federal court. In 2017, GE moved for summary judgment on the basis that § 2B applied to bar the plaintiffs’ negligence claims. The plaintiffs opposed the motion arguing, in part, that § 2B was not intended to apply to cases involving asbestos exposure, as the application of § 2B would be unfair and against public policy. Specifically, the plaintiffs argued that applying § 2B would extinguish a claim long before a plaintiff could have ever discovered such an action.

District Court’s Opinion: The federal district court issued its decision on GE’s motion for summary judgment in 2018. Stearns v. Metropolitan Life Ins. Co., 308 F.Supp.3d 471 (D. Mass. 2018). While the court held that all factors of § 2B were satisfied – GE’s provision of turbines “indisputably” constituted improvement to real property, GE was a protected actor due to its role as a designer, and the requisite time period from the opening of the plants to the filing of suit had lapsed – it nonetheless rejected the application of § 2B to the plaintiffs’ asbestos negligence claim. Id.

In denying the motion for summary judgment, the federal district court expressly acknowledged the absence of binding state law on the application of § 2B in asbestos claims. Id. at 478-479. Nevertheless, the federal district court concluded that all factors previously analyzed in the SJC’s most thorough examination of § 2B were absent in the context of an asbestos claim. Id. at 479. That is, the federal court held that the balance between the public’s right to a remedy and the need to limit liability, the purpose of protecting actors with no continuing relationship to the site of injury, the proportion of meritorious claims likely to be excluded, and the problem of stale evidence were simply inapplicable in asbestos-related claims. In closing, the district court noted while GE appeared to be “facially covered” by § 2B, “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.” To hold otherwise, according to the federal district court “would transform a statute intended to limit liability into one that creates absolute immunity”. Id. at 480.

GE promptly sought reconsideration of the federal court’s order and also moved to have the question of the applicability of § 2B in asbestos related claims certified to the SJC.

SJC’s Clear and Consistent Decision: The SJC agreed to answer the certified question from the district court on June 28, 2018. In holding that § 2B completely eliminates all tort claims arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property, including personal injury asbestos exposure claims, the SJC relied on the history and intent of § 2B and the unambiguous statutory language.

First, with respect to the statutory intent of § 2B, the SJC highlighted the quintessential import of any statute of repose. Statues of repose are designed to eliminate “a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date.” Statutes of repose, unlike statutes of limitations, cannot be tolled for any reason and § 2B raises no such exception. In enacting § 2B, the Legislature’s primary objective was to limit the liability of architects, engineers, contractors, and others involved in the design, planning, construction, or general administration of an improvement to real property in the wake of case law abolishing the long-standing rule that once an architect or builder completed their work and the owner accepted the same, liability was cut off as a matter of law. Thus, § 2B sought to balance the certain hardship and prejudice resulting from perpetual liability for construction professionals in claims filed long after their involvement on the property ceased by limiting liability for certain protected actors to a six year window.

The very purpose and nature of a statute of repose, unlike a statute of limitation, precludes any inquiry into when or whether a plaintiff could have discovered an injury or basis for their claim. See also Sullivan v. Iantosca, 409 Mass. 796, 798 (1991) (forbidding consideration of the fact that a plaintiff did not discover or reasonably could not have discovered the harm before the six-year period of the statue of repose expired); Rudenauer v. Zafiropoulos, 445 Mass. 353, 358 (2005) (statutes of repose provide “a substantive right to be free from liability after a given period of time has elapsed from a defined event”). Accordingly, the SJC rejected the plaintiffs’ argument aimed at distinguishing asbestos-related injuries from other ‘typical’ personal injuries.

Second, the SJC found the clear and unambiguous language of § 2B to be controlling. The statute provides in relevant part:

Action[s] of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property … shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession of occupancy by the owner.”

G.L. c. 260, § 2B. While other similar statutes of repose contain certain exceptions, for example, the medical malpractice statute of repose excluding claims arising from foreign objects being left in a patient’s body, or G.L. c. 260, § 2D – an asbestos revival statue – excepting suits filed by the Commonwealth seeking to recover damages for the abatement of ACM in public buildings, § 2B contains no such exceptions for private actions alleging asbestos exposure such as those alleged in the underlying action. The SJC noted that for any exception to apply in the future, it would be incumbent upon the Legislature to address the issue.

Conclusion: The Stearns decision is one of numerous recent opinions suggesting legislative intervention in further defining the contours of § 2B. See e.g., Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349. 358, n. 9 (“[i]f the Legislature desires to narrow the applicable repose period … it may do so.”). Whether any such legislation is proposed in the coming months will be closely monitored. In the meantime, however, Stearns will likely lead to more defendants embattled in personal injury asbestos litigation seeking protection under the statute. Although a fresh look at the applicability of the defense should be performed on a case-by-case basis, § 2B is not a panacea for companies producing and introducing ACM products in the stream of commerce. Rather, § 2B’s application remains limited to those defendants with some manner of ‘specialized’ involvement requiring ‘individual expertise’ on a particular construction project that goes above and beyond simply selling or installing a stock product.