Partner Maria DeLuzio and Associate Noelle Phelan prevailed yesterday on a summary judgment motion in an asbestos-related “take-home "exposure action in the Vermont Superior Court on behalf of the firm’s client Clifton Associates, Inc., a former insulation contractor. The plaintiff file the action in 2021 alleging that the deceased wife of a former pipefitter had been exposed to asbestos brought home on the clothes of her husband during his work from 1970 to 1971 at a Vermont power plant. It was undisputed that the last year the claimant’s husband could have encountered asbestos products supplied or installed by the defendant was in 1971 – 50 years prior to the action being filed. Under Vermont’s statute of repose, 12 V.S.A. § 518(a), a latent injury action cannot be brought more than 20 years “from the date of the last occurrence to which the injury is attributed.”

In granting summary judgment, the Court confirmed that the statute applies to actions arising out of alleged exposure to asbestos and agreed with Maria and Noelle’s argument that the date of the “last occurrence” was the last date of potential exposure to a product sold or installed by the defendant. The Court rejected the plaintiff’s argument that, since mesothelioma is the result of ongoing cellular injuries occurring over a number of years that culminate in cancer, the “last occurrence” should be the date of the cellular injuries that occurred immediately prior to the onset of symptoms and/or diagnosis. The Court had reasoned that the plaintiff’s position rested on flawed logic that amounted to an argument that the injury itself was a cause of the injury; and it concluded that applying such logic would eviscerate the statute of repose.

The plaintiff had also argued that the statute of repose violated the Vermont Constitution’s Remedies Clause and Common Benefits Clause. Given the constitutional challenge, the Court had notified the State Attorney General’s office, as statutorily required; but the State declined to intervene. The Court ultimately concluded that the plaintiff had no vested cause of action that could form the basis for a Remedies Clause violation, and that there was no violation of the Common Benefits Clause because the 20-year statute of repose period strikes a reasonable balance between the competing interests of the injured party and those who must defend against claims based upon events from decades ago. The case was captioned Shirley Ann Carpin, as Independent Executor of the Estate of Shirley A. Hilster vs. Vermont Yankee Nuclear Power Corp., et al., Civ. No. 21-1818.