Blockbuster Decision from Massachusetts’ Highest Court Hands Massive Victory to Toxic Tort Defendants in Construction Cases
On March 1, 2019, the Massachusetts Supreme Judicial Court (“SJC”) issued a decision that it recognized will bar “all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits.”1 In answering a certified question from the U.S. District of Massachusetts, the SJC held that the state’s six-year statute of repose governing construction related tort claims applies with equal force to such claims arising from asbestos exposure.2 Although the time period between asbestos exposure and the manifestation of an asbestos related illness is typically many decades, the SJC determined that it was constrained to apply the statute as written, and noted that any perceived inequities had to be dealt with legislatively.3
The plaintiff in Stearns v. Metropolitan Life Insurance Company developed mesothelioma in 2015, allegedly as a result of being exposed to asbestos in the 1970s.4 The alleged exposure occurred during the installation of steam turbine generators at two nuclear power plants while the plants were under construction.5 The installation process involved the use of asbestos-containing insulation which was recommended by General Electric (“GE”), who manufactured the generators.6 Following his mesothelioma diagnosis, plaintiff sued GE in state court for negligently exposing him to asbestos.7 The action was later removed to federal district court.8
GE then moved for summary judgment based upon the six-year statute of repose set forth in G.L. c. 260, § 2B, which provides that:
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 for occupancy by the owner.9
GE contended that the generators were improvements to real property within the meaning of the statute — “and indeed were [the plants’] raison d’etre.”10 GE therefore argued that because the exposure occurred in the 1970s, the plaintiff’s 2015 lawsuit was time barred.11 The plaintiff’s principal argument in opposition was that the statute of repose was not “intended to apply to cases involving diseases with extended latency periods because it otherwise would have the effect of extinguishing meritorious claims before they even come into existence.”12
The district court denied GE’s motion.13 Although it agreed that the generators were improvements to real property for the purposes of the statute, the district court determined that it was unlikely “that the statute [of repose] was designed to bar a category of claims known uniformly to have a latency period of at least twenty years . . . .”14 GE then moved for permission to file an interlocutory appeal to the First Circuit.15 In lieu of such an appeal, the district court certified the following question to the SJC:
[W]hether or not the Massachusetts statute of repose, [G. L. c.] 260, § 2B, can be applied to bar personal injury claims arising from diseases with extended latency periods, such as those associated with asbestos exposure . . . .16
Contrary to the district court’s holding, the SJC answered the question in the affirmative.17 The SJC first explained that a statute of repose is an absolute bar to a cause of action once the prescribed time period has elapsed.18 The SJC emphasized that “[i]n stark contrast to statutes of limitation, statutes of repose may not be tolled for any reason”19 Turning to the statute in question, the SJC held:
[G.L. c. 260, § 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 after the established time period has run, even if the cause of action arises from a disease with an extended latency period . . . .20
The SJC found the statute unambiguous and clear as to the legislative intent.21 Indeed, the SJC noted that the Legislature had created carve outs in other similar statutes of repose, evidencing an intent not to include any carve outs in G.L. c. 260, § 2B.22 The SJC responded to the plaintiff’s various arguments by describing them as “requests that we imply exceptions to [the statute] where there are none. We decline to do so.”23 The SJC concluded by stating that any hardships created by the application of G.L. c. 260, § 2B is an issue for the Legislature — not the court.24
As the SJC itself recognized, Stearns will dramatically alter the asbestos litigation landscape in Massachusetts. Although G.L. c. 260, § 2B does not protect suppliers or manufacturers of fungible products,25 the pool of viable defendants in actions involving exposure from sheetrock, insulation, tile, shingles, wiring and many other materials will nevertheless be significantly curtailed. The same should hold true of actions involving fixtures and other permanent additions, which are generally considered subject to the statute of repose.26 These are some of the most oft-litigated exposure allegations in all of asbestos litigation, representing a huge portion of asbestos claims nationwide. The decision, of course, is not confined to asbestos. Claims arising out of exposure to lead paint, silica dust and other toxic substances all have the potential to be impacted by Stearns. Although these substances may not have the extended latency period associated with asbestos, the six year statute of repose is measured from “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 for occupancy by the owner.”27 Thus, in many instances, a claim will already be barred by the time exposure occurs.
In a litigation that hands few wins to defendants, Stearns is one of the most substantial victories in recent memory. Only time will tell if the legislature will seek to reverse its impact.
ABOUT THE AUTHOR
Michael Tripicco is an associate in Hawkins Parnell & Young, LLP’s New York City office. He is a multi-jurisdictional litigator who focuses his practice on toxic tort, professional liability and commercial litigation matters.
 Id. at *1-2, *16-17.
 Id. at *1-2, *14-16.
 Id. at *2-4.
 Id. at *4.
 Stearns v. Metro. Life Ins. Co., 308 F. Supp. 3d 471, 478 (D. Mass. 2018); accord Stearns, 2019 Mass. LEXIS 105, at *4.
 Stearns, 2019 Mass. LEXIS 105, at *4.
 Id. quoting Stearns, 308 F. Supp. 3d at 480 (internal quotations omitted).
 Id. at *5.
 Id. at *1-2, *16-17.
 Id. at *6-7 citing, inter alia, Sisson v. Lhowe, 460 Mass. 705, 709 (2011) (statute of repose focuses on date defendant's negligent acts or omissions were alleged to have occurred regardless of whether cause of action has accrued or whether any injury has resulted).
 Id. at *7 quoting Nett v. Bellucci, 437 Mass. 630, 635 (2002) (quotations omitted, emphasis in original).
 Id. at *2 (emphasis added).
 Id. at *10-13.
 Id. at *13-14.
 Id. at *11 (emphasis added).
 Id. at *13-16.
 Id. at *9, n. 7; see also Fine v. Huygens, 57 Mass. App. Ct. 397, 403 (2003) (manufacturer of materials specially made for project protected by statute of repose).
 See, e.g., Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796, 800 (2002) (lift deemed an improvement subject to the statute of repose); Snow v. Harnischfeger Corp., 823 F. Supp. 22, 28 (D. Mass. 1993) (permanent crane deemed subject to statute of repose).
 G.L. c. 260, § 2B.