Superior Court Presiding Justice Gibney, who manages Rhode Island's state court asbestos docket, has issued a decision denying a summary judgment motion filed by an alleged supplier of floor and ceiling tiles to which plaintiff's decedent was exposed. Pisano v. Alfa Laval, Inc., C.A. No. PC-13-5868, slip decision (R.I.Super. Nov. 2, 2016).
About the time decedent filed suit he executed three affidavits. The affidavits stated that he had purchased defendant's floor and ceiling tiles to install in his house, that he cut the tiles to install them, which created dust, that he had circled the items he purchased in a copy of defendant's 1964 catalog, that doctors had told him his condition was "incurable and inoperable," and that he was "making these statements with the understanding that I may not be well enough to survive through the time of a deposition or trial." A month later he passed away due to mesothelioma.
Judge Gibney held that the affidavits qualified as dying declarations because there was sufficient indicia that when decedent executed them he "stated his belief of impending death in an explicit mannter and through his own words." His belief proved to be accurate.
With respect to the product identification, defendant had argued that it sold a non-asbestos containing product that looked identical to the asbestos-containing product and that the affidavit did not sufficiently identify the product as teh asbestos-containing one. Judge Gibney held the affidavit created an issue of fact as to which product decedent had purchased.
With respect to the statute of respose, Judge Gibney reiterated a decision she has made previously, i.e., that a supplier of an "off-the-shelf" product that does not participate in its installation at the jobsite does not qualify as a materialman under the statute.
The key aspect of the decision addresses when an so-called product identification affidavit qualifies as a dying declaration. Here, Judge Gibney held that the PID affidavit qualifies when it specifically states decedent has been told that his condition is incurable, and that he may not live to give deposition or trial testimony, and where decedent dies within a month.
Pisano v. Alfa Laval, Inc., C.A. No. PC-13-5868, slip decision (R.I.Super. Nov. 2, 2016). The decision is available online at https://www.courts.ri.gov/Courts/SuperiorCourt/SuperiorDecisions/13-5868.pdf.
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