Carpin v. Vt. Yankee Nuclear Power Corp.

1

2024 VT 27

Shirley Ann Carpin v. Vermont Yankee Nuclear Power Corporation et al.

No. 23-AP-217

Supreme Court of Vermont

May 10, 2024

On Appeal from Superior Court, Chittenden Unit, Civil Division Helen M. Toor, J.

Kristin A. Ross of Rousseau & Ross, PLLC, Lebanon, New Hampshire, and Benjamin D. Braly and Todd Barnes of Dean Omar, Branham Shirley, LLP, Dallas, Texas, and Indianapolis Indiana, for Plaintiff-Appellant.

Hannah C. Waite and Matthew J. Greer of Sheehey Furlong & Behm P.C., Burlington, for Defendant-Appellee Vermont Yankee Nuclear Power Corporation.

Joseph Galanes of Phillips, Dunn, Shriver & Carroll, P.C. Brattleboro, and Maria E. DeLuzio and Melissa M. Malloy of Pierce Davis & Perritano LLP, Boston, Massachusetts, for Defendant-Appellee Clifton Associates, Inc.

Present: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Johnson, J. (Ret.), Specially Assigned

EATON J.

¶ 1. Plaintiff Shirley Ann Carpin sued defendants, Vermont Yankee Nuclear Power Corporation and Clifton Associates, on behalf of her mother's estate for negligence and wrongful death. Plaintiff alleged that defendants caused the asbestos exposure that led to her mother's mesothelioma and subsequent death. The civil division granted summary judgment to defendants based on the twenty-year statute of repose under 12 V.S.A. § 518(a), finding the "last occurrence" to which her mother's mesothelioma was attributed fell outside the repose period. On appeal, plaintiff argues that her claims are not barred by § 518(a)'s repose period and, in the alternative, that § 518(a) violates the Vermont Constitution. We affirm.

¶ 2. The following are the relevant, undisputed facts drawn from the record. Plaintiff's mother, Shirley Hilster, was exposed to asbestos (a hazardous material formerly used as an insulator) through her husband, who worked as a pipefitter and regularly came home with asbestos-contaminated clothes. For approximately eighteen months between 1971 to 1972, Hilster's husband worked for defendant Vermont Yankee Nuclear Power Corp., where defendant Clifton Associates had installed asbestos. Hilster's husband retired from pipefitting in 1995. Roughly twenty-five years after her husband's retirement, in July 2020, Hilster was diagnosed with mesothelioma, a cancer caused by asbestos exposure. Hilster died from mesothelioma three months later.

¶ 3. As the executrix of her mother's estate, plaintiff sued defendants in July 2021, alleging negligence and wrongful death. Plaintiff alleged that Hilster's death resulted from exposure to "asbestos . . . brought home on [her husband's] work clothes, vehicle and on his body." Three expert reports, produced during discovery and submitted in support of defendants' motions for summary judgment, discuss the nature and cause of mesothelioma at length. Relevant to this appeal, the report from Dr. Arnold Brody indicated that "[a]sbestos exposure is the only known environmental cause of mesothelioma" and that these exposures "induce the genetic errors" that result in cancer. He further explained that the cellular changes that occur after the asbestos exposure are not the cause of mesothelioma; rather, they are part of the "[l]atency . . . period" that culminates in the "clinical presentation of disease." The report from Dr. Edwin Holstein averred that "[m]esothelioma is a single indivisible injury . . . caused by . . . asbestos exposures." He concluded that, in Hilster's case, "asbestos exposures . . . constituted the direct and sole cause of her . . . mesothelioma." He also corroborated that exposure to "asbestos fibers set up an inflammatory reaction" that leads to the disease, but ultimately it is the "asbestos that the patient breathes that is the cause of the disease." Lastly, the report from Dr. Brent Staggs affirmed that "[a]sbestos fibers . . . caus[e] injury to the cells" but did not state whether mesothelioma had any proximate cause other than asbestos exposure.^[1]

¶ 4. Post-discovery, defendants moved for summary judgment, arguing that plaintiff's claims were barred by the twenty-year statute of repose, which provides that:

An action to recover for ionizing radiation injury or injury from other noxious agents medically recognized as having a prolonged latent development shall be commenced within three years after the person suffering the injury has knowledge or ought reasonably to have knowledge of having suffered the injury and of the cause thereof, but in no event more than 20 years from the date of the last occurrence to which the injury is attributed.

12 V.S.A. § 518(a) (emphasis added). Plaintiff agreed that asbestos was a "noxious agent" and that mesothelioma was an "injury . . . medically recognized as having a prolonged latent development." Nonetheless, plaintiff argued that § 518(a) did not bar her claim because the "last occurrence" to which Hilster's mesothelioma is attributed was the cellular changes that resulted in her 2020 mesothelioma diagnosis. She also argued that applying § 518(a)'s statute of repose to bar her claim violated the Vermont Constitution.

¶ 5. The trial court disagreed and granted summary judgment in favor of defendants. Specifically, the court determined that § 518(a) barred plaintiff's claims because the "last occurrence" to which Hilster's mesothelioma was attributed was her last known exposure to asbestos in 1995. The court further concluded that the statute was constitutional. Plaintiff filed a motion to reconsider, which the court denied, reiterating its conclusion that Hilster's "cellular damage . . . from the asbestos exposure is not an 'occurrence' to which [her] injury is attributed." Plaintiff appeals, arguing that § 518(a) does not bar her claim and, alternatively, that § 518(a) violates the Vermont Constitution.

I. Standard of Review

¶ 6. We review motions for summary judgment using the same standard as the trial court and draw all reasonable inferences in the light most favorable to the nonmoving party to determine "whether there are genuine issues of material fact." Carr v. Peerless Ins. Co., 168 Vt. 465, 466, 724 A.2d 454, 455 (1998); see V.R.C.P. 56(a) (stating summary judgment standard).^[2] We review constitutional challenges de novo and place the burden on the challenger by presuming that statutes are constitutional. State v. Labrecque, 2020 VT 81, ¶ 18, 213 Vt. 635, 249 A.3d 671 (mem.); Vt. Hum. Rts. Comm'n v. State Agency of Transp., 2012 VT 88, ¶ 12, 192 Vt. 552, 60 A.3d 702; see Badgley, 2010 VT 68, ¶ 20 (explaining that "the proponent of a constitutional challenge" like plaintiff here "has a very weighty burden to overcome").

II. Application of the Statute of Repose

¶ 7. Plaintiff first argues that § 518(a) does not bar her claim. Section 518(a) provides both a three-year statute of limitations, which runs from the time the victim's injury is discovered, and a twenty-year statute of repose, which runs from the "last occurrence to which the [victim's] injury is attributed." 12 V.S.A. § 518(a). Only the latter is relevant to plaintiff's appeal. Specifically, plaintiff argues that § 518(a)'s statute of repose has not yet expired because the "last occurrence" to which Hilster's injury is attributable is the cellular injuries that resulted in Hilster's mesothelioma, which arose within twenty years of plaintiff's claim.

¶ 8. This Court has interpreted the meaning of "last occurrence" in one prior decision, Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154 (1985). There, we held that the plaintiff had successfully identified a last occurrence that fell within twenty years of her claim. The plaintiff had been exposed to a synthetic hormone in utero. Id. at 520-21, 496 A.2d at 157. At approximately thirteen-years-old, she began menstruating. Id. At age twenty-two, she was diagnosed with vaginal adenocarcinoma, a form of cancer. Id. The plaintiff sued the hormone manufacturers for negligence. Id. The defendants moved for summary judgment, arguing that more than twenty years had passed since the plaintiff's exposure to the synthetic hormone and, therefore, her claim was barred. Id. We disagreed. We found "no ambiguity in the . . . statute of repose [under] 12 V.S.A. § 518(a)" and therefore applied § 518(a) according to its plain meaning. Id. at 529, 496 A.2d at 162.^[3] Based on that plain meaning, we concluded that the "last occurrence" was the most recent proximate cause that resulted in the victim's injury, regardless of whether it was "related to a defendant's negligent act." Id. As to the plaintiff in Cavanaugh, a medical expert's affidavit indicated there were multiple causes of the plaintiff's adenocarcinoma, including her in utero synthetic hormone exposure and her onset of menstruation years later. Id. at 519, 496 A.2d at 156-57. Because the latter proximate cause occurred less than twenty years before the plaintiff filed suit, § 518(a) did not bar the plaintiff's claims. Id. at 530, 496 A.2d at 157, 163.

¶ 9. In this case, plaintiff identifies no proximate cause of Hilster's mesothelioma that arose within twenty years of plaintiff's claim. Unlike in Cavanaugh, where the record indicated that there were multiple proximate causes of the plaintiff's adenocarcinoma, see 145 Vt. at 519-21, 530496 A.2d at 157, 163 the record here indicates no proximate cause of Hilster's mesothelioma other than her asbestos exposures. Rather, the three reports from the medical experts all corroborate that "[a]sbestos exposure is the only known . . . cause of mesothelioma" and thus the "sole cause" of Hilster's mesothelioma was her "ongoing asbestos exposures," which the parties agree occurred no later than 1995. Because the most recent proximate cause of her mesothelioma, her final exposure to asbestos in 1995, occurred more...