On May 10,2024, Partners Melissa Malloy and Maria DeLuzio obtained a decision by the Vermont Supreme Court unanimously affirming the trial court’s June 2023 summary judgment order in favor of PDP’s client Clifton Associates, Inc., a former insulation contractor. The appeal involved both the interpretation of and constitutional challenges to Vermont’s statute of repose,12 V.S.A. § 518(a), which states that “[a]n action to recover for ionizing radiation injury or injury from other noxious agents medically recognized as having a prolonged latent development shall be commenced . . . in no event more than 20 years from the date of the last occurrence to which the injury is attributed.”

Plaintiff alleged that her mother, the deceased wife of a former pipefitter, was diagnosed in July 2020 with mesothelioma as a result of exposure to asbestos fibers brought home on her husband’s clothes during his work at numerous sites across the country from 1957 to 1995. The alleged exposures included her husband’s brief work at a Vermont power plant, where Clifton was an insulation contractor 50 years before this action was filed in 2021. Plaintiff argued that, since mesothelioma is the result of ongoing cellular injuries occurring over a number of years that culminate in cancer, the statute of repose did not bar her claim, because “the last occurrence to which the injury is attributed "should be the date of the cellular injuries that occurred immediately prior to diagnosis. In concluding that “the last occurrence” statutory language means the latest proximate cause of the injury, the five Justices agreed with Defendants that Plaintiff’s expert reports failed to raise a genuine issue as to whether there was any proximate cause of her mother’s mesothelioma other than her asbestos exposures, which last occurred 26 years before she filed this action. The Court expressly agreed with Clifton’s argument that it was not bound by the “last occurrence” opinion of one of the experts upon which Plaintiff heavily relied, as it was a legal conclusion that is outside the purview of expert testimony. The Court also agreed with Defendants’ contention that, contrary to legislative intent, there would be no distinction between the3-year statute of limitations and the 20-year statute of repose if the last cellular changes before diagnosis of a latent injury could be considered “the last occurrence.”

Regarding Plaintiff’s constitutional challenges, as urged by Defendants, the Court declined to review her Article 4 Remedies Clause challenge because it was inadequately briefed. In rejecting her Article 7 Common Benefits Clause challenge, the Court agreed with Defendants that the 20-year repose period, which applies only to latent injuries caused by noxious agents, reflects just and reasonable legislative policy choices and that this case (involving the passage of more than 50 years since the alleged exposure related to Defendants) is a perfect example of the sort of stale claim that the Vermont Legislature intended to bar.

The brief was written by Melissa and Maria and argued by Melissa. The decision is captioned Shirley Ann Carpin v. Vermont Yankee Nuclear Power Corp., et al., 2024 VT 27, and can be found at https://www.vermontjudiciary.org/sites/default/files/documents/op23-217.pdf.

‍