Janice M. Murray, as Surviving Spouse and as Executrix of the Estate of Harold Wayne Murray

STATE OF RHODE ISLAND
PROVIDENCE, SC. SUPERIOR COURT
[Filed: November 9, 2023]
JANICE M. MURRAY, as Surviving :
Spouse and as Executrix of the Estate of :
HAROLD WAYNE MURRAY, :
Plaintiff, :
:
:
v. : C.A. No. PC-2016-0151
:
3M COMPANY, et al., :
Defendants. :
DECISION
GIBNEY, P.J. Before this Court for decision is Defendant Hajoca Corporation’s (Hajoca)
Motion to Dismiss. (Def.’s Mem. in Supp. Mot. to Dismiss (Def.’s Mot.) 1.) Hajoca contends
that the Complaint fails to state a claim because it does not provide notice of the legal grounds on
which Plaintiff is relying on. Id. at 4-6. As such, Hajoca asserts that the Tennessee Innocent
Retailer Statute, Tenn. Code § 29-28-106 (the TN Statute), protects Hajoca from liability. Id.
Plaintiff maintains that this Motion should be denied because Hajoca is aware of the specific
claims against it. (Pl.’s Mem. Opp’n to Hajoca’s Mot. Dismiss (Pl.’s Opp’n) 5-6.) Plaintiff
asserts that at least one of the TN Statute’s exceptions apply and do not bar Hajoca’s liability.
See generally id. The Court exercises jurisdiction pursuant to Rule 12(b)(6) of the Superior
Court Rules of Civil Procedure.

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I
Facts and Travel
Plaintiff alleges that her husband, Harold Wayne Murray, suffered personal injuries as a
result of his alleged exposure to asbestos-containing products. See Complaint (Compl.). Harold
and Janice Murray filed the original Complaint on January 12, 2016, prior to Harold’s death. See
Docket. After multiple amendments, Plaintiff filed the Seventh Amended Complaint (Am.
Compl.) on November 17, 2017 to name Janice as the surviving spouse and executrix of
Harold’s estate. See Am. Compl.
The Amended Complaint named approximately 267 Defendants, including Hajoca. Id. at
5. Hajoca is a “seller of plumbing and HVAC supplies.” (Def.’s Mot. 1.) The Amended
Complaint alleged that “[Harold Murray] was exposed to and did inhale and/or ingest asbestos
dust, fibers, and particles that came from the asbestos products that were contracted for, mined,
milled, processed, manufactured, designed, tested, assembled, fashioned, fabricated, packaged,
supplied, distributed, delivered, marketed and/or sold by the Defendants.” (Am. Compl. ¶ 6.)
Prior to filing the Amended Complaint, this Court granted Defendants’ Motion to Apply
Foreign Law of Tennessee on February 1, 2017. See Order. Some seven years later, on
September 25, 2023, Hajoca filed the instant Motion to Dismiss. See Docket. On October 5,
2023, Plaintiff filed their Opposition. Id. On October 26, 2023, this Court heard oral arguments
regarding this Motion to Dismiss (the Hearing). See generally Oct. 26 Transcript (Tr.).

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II
Standard of Review1
It is well settled that “the sole function of a motion to dismiss is to test the sufficiency of
the complaint.” Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi, 557
A.2d 1232, 1232 (R.I. 1989). In ruling on a Rule 12(b)(6) motion, “the trial justice must look no
further than the complaint, assume that all allegations in the complaint are true, and resolve any
doubts in a plaintiff’s favor.” Id. ‘“The motion may . . . only be granted if it appears beyond a
reasonable doubt that a plaintiff would not be entitled to relief under any conceivable set of
facts[.]”’ Pontarelli v. Rhode Island Department of Elementary & Secondary Education, 176
A.3d 472, 476 (R.I. 2018) (quoting Laurence v. Sollitto, 788 A.2d 455, 456 (R.I. 2002)). “[B]ut
unless amendment could avail the plaintiff nothing, the order of dismissal should usually be with
leave to amend.” Robert B. Kent et al., Rhode Island Civil Procedure, § 12:9.
III
Analysis
Plaintiff and Hajoca disagree as to whether the TN Statute bars Hajoca from liability. At
issue is whether the Amended Complaint sufficiently sets forth claims for the application of one
of the exceptions listed in the TN Statute. In relevant part, the TN Statute states:
“No product liability action, as defined in § 29-28-102, shall be
commenced or maintained against any seller, other than the
manufacturer, unless:
“(1) The seller exercised substantial control over that aspect of the
design, testing, manufacture, packaging or labeling of the product
that caused the alleged harm for which recovery of damages is
sought;
1 ‘“[T]he procedural law of the forum state applies even if a foreign state’s substantive law is
applicable.”’ McBurney v. The GM Card, 869 A.2d 586, 589 (R.I. 2005) (quoting Oyola v.
Burgos, 864 A.2d 624, 626, n.2 (R.I. 2005)) (internal citations omitted). Accordingly,
procedural law of Rhode Island is applicable.

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“(2) Altered or modified the product, and the alteration or
modification was a substantial factor in causing the harm for which
recovery of damages is sought;
“(3) The seller gave an express warranty as defined by title 47,
chapter 2;
“(4) The manufacturer or distributor of the product or part in
question is not subject to service of process in this state and the
long-arm statutes of Tennessee do not serve as the basis for
obtaining service of process; or
“(5) The manufacturer has been judicially declared insolvent.”
Tenn. Code § 29-28-106.
Essentially, “a plaintiff may not sue a seller in strict liability” unless an exception applies. Lind v.
Beaman Dodge, Inc., 356 S.W.3d 889, 899 (Tenn. 2011).
A
Parties’ Arguments
Hajoca contends that the Amended Complaint “fails to even mention – much less allege
facts to support the application of – any exception to the broad protection of the [TN Statute].”
(Def.’s Mot. 2-3.) At the Hearing, Hajoca asserted that the Amended Complaint “contains no
allegations regarding the [TN Statute]” and “no allegations with respect to Hajoca, the seller.”
(Oct. 26 Tr. 5:24-6:1.) Accordingly, Hajoca asserts that dismissal is warranted because Plaintiff
has failed to plead facts to support an exception to the TN Statute. (Def.’s Mot. 6.) Alternatively,
Hajoca insists that it will “incur substantial prejudice” if Plaintiff may amend their Complaint to
allege facts specific to Hajoca. Id. at 11. However, Hajoca urges that, if the Court permits re-
pleading, re-pleading must be done with specificity and within ten days. Id. at 11-12. Finally, at
the Hearing, Hajoca insisted that Plaintiff’s request is a motion for summary judgment because
of the extrinsic evidence relied upon in its Opposition and urged this Court to review only the
operative Complaint. See Oct. 26 Tr. 6:22-7:2.

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Plaintiff objects and insists that Hajoca is aware of the allegations against it. See Oct. 26
Tr. 11:3-4. At the outset, Plaintiff reminds this Court of the lengthy passage of time that has
occurred between the filing of Plaintiff’s Amended Complaint on November 17, 2017 and
Hajoca’s Motion to Dismiss on September 25, 2023. (Pl.’s Opp’n 2); see also Oct. 26 Tr. 10:15-
12:10.) Plaintiff maintains that Hajoca’s claim that it does not have sufficient notice to defend
itself is “absurd” because “Hajoca has been well aware of these specific facts and the claims
asserted against Hajoca.” (Pl.’s Opp’n 5-6.) Plaintiff additionally asserts that it can plead
sufficient facts to support that (1) Hajoca “exercised substantial control over that aspect of
the . . . packaging or labeling of the product that caused the alleged harm for which recovery of
“damages is sought” (TN Statute Exception 1); and (2) the manufacturers used by Hajoca have
been “judicially declared insolvent.” (TN Statute Exception 2). Id. at 3-5. As such, Hajoca is
neither protected from liability by the TN Statute, nor will Hajoca be prejudiced if this Court
finds that Plaintiff must re-plead allegations specific to Hajoca. Id. at 5-6.
B
Preliminary Issue: Extrinsic Documents
In its Opposition, Plaintiff directs this Court to review Exhibits 1 through 8.2 See Pl.’s
Opp’n 4-6. However, the Court need not reach this issue because the Amended Complaint, on
its own, satisfies the notice pleading requirement. See Mokwenyei v. Rhode Island Hospital, 198
A.3d 17, 22 (R.I. 2018) (noting that the motion to dismiss will not automatically convert to a
2 The exhibits include the following, as named by Plaintiff: Exhibit 1: April 15, 2011 Hajoca
PMK, William Mertz Deposition; Exhibit 2: Deposition Testimony of Harold Murray (Video);
Exhibit 3: Hajoca Industrial Equipment Catalog; Exhibit 4: Deposition Testimony of Harold
Murray; Exhibit 5: Deposition Testimony of Harold Murray (Discovery); Exhibit 6: Murray
Bankruptcy Creditors Matrix; Exhibit 7: Plaintiffs’ Request for Admission; and Exhibit 8: Notice
of Videotaped 30(b)(6) Deposition to Hajoca.

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motion for summary judgment if the hearing justice “explicitly exclude[s] them from
consideration”).
C
Notice Pleading
Pursuant to Rhode Island’s notice pleading standard, “[a]ll that is required is that the
complaint give the opposing party fair and adequate notice of the type of claim being asserted.”
Haley v. Town of Lincoln, 611 A.2d 845, 848 (R.I. 1992). Rule 8(a) of the Superior Court Rules
of Civil Procedure provides that a claim for relief shall contain “[a] short and plain statement of
the claim showing that the pleader is entitled to relief[.]” Super. R. Civ. P. 8(a). As such, “one
drafting a compliant [sic] in a civil action is not required to draft the pleading with a high degree
of factual specificity.” Hyatt v. Village House Convalescent Home, Inc., 880 A.2d 821, 824 (R.I.
2005). If the complaint does not show the plaintiff is entitled to relief, dismissal is warranted
under Rule 12(b)(6). See Super. R. Civ. P. 8(a). For example, “[a]lthough a statement of
circumstances and occurrences in support of the claim being presented is plainly contemplated in
order to provide such notice, great generality in such a statement is allowed as long as defendant
is in fact given fair notice of what is claimed.” Haley, 611 A.2d at 848 (citing 5 Wright & Miller,
Federal Practice and Procedure: Civil 2d § 1215 at 145 (West 1990)).
This Court has reviewed the Amended Complaint as set forth by Plaintiff. See Cipolla v.
Rhode Island College, Board of Governors for Higher Education, 742 A.2d 277, 280 (R.I. 1999)
(“A motion to dismiss must be made strictly on the pleadings[.]”) This Court is not sympathetic
to Hajoca’s claims that it does not “know what products it’s being sued for, the alleged products
that would take the plaintiff’s claim outside of the presumptive protection of the [TN Statute].”
(Oct. 26 Tr. 7:12-15.) The Amended Complaint named Hajoca as one of the Defendants and

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states how it allegedly contributed to Mr. Murray’s injuries. See Am. Compl. ¶¶ 2, 6-7, 9-10, 17-
19, 21-27, 30-32, 34, 36-39, 47. Any further details regarding specific products or the TN
Statute are for discovery to uncover. See United States v. Procter & Gamble Co., 356 U.S. 677,
682 (1958) (“Modern instruments of discovery serve a useful purpose . . . They together with
pretrial procedures make a trial less a game of blind man’s buff [sic] and more a fair contest with
the basic issues and facts disclosed to the fullest practicable extent.”)
In Bresnick v. Baskin, our Supreme Court addressed a similar pleading issue. See
Bresnick v. Baskin, 650 A.2d 915, 916 (R.I. 1994). The complaint attempted to raise assertions
of adverse-possession. Id. at 915. The complaint “alleged trespass, willful destruction of trees
and shrubbery, conversion . . . , and wrongful erection of the chainlink fence.” Id. at 916. The
Court determined that such a complaint failed to “put defendants on fair notice of an adverse-
possession claim” because [t]he plaintiffs failed to use the well-known language of the adverse-
possession statute, . . . [particularly,] ‘actual, open, notorious, hostile, under claim of right,
continuous, and exclusive.’” Id.
Here, Plaintiff has asserted sufficient claims to put “[Hajoca] on fair notice” of a TN
Statute exception. See id. Indeed, the Amended Complaint does not mention the TN Statute.
Nonetheless, Plaintiff is not required to plead with a “high degree of factual specificity.” See
Hyatt, 880 A.2d at 824-25 (remanding dismissal of count entitled “Intentional Interference with
Contract and Prospective Economic Relations” because Court concluded “[i]t alleges (albeit just
barely) that the ‘agents and/or servants’ . . . actually committed the intentional tort that is the
subject of this count”). Whereas in Bresnick, 650 A.2d at 916, the plaintiff failed to plead any
language attributable to an adverse-possession claim, the Amended Complaint provided
sufficient language. The allegations are sufficient to warn Hajoca of its alleged contribution to

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Decedent’s injury. For example, the TN Statute’s first exception provides that “[t]he seller
exercised substantial control over that aspect of the design, testing, manufacture, packaging or
labeling of the product that caused the alleged harm for which recovery of damages is sought[.]”
TN Code § 29-28-106 (emphasis added). The Amended Complaint alleged that the Defendants
“manufactured,” “packaged,” and “marketed” products. (Am. Compl. ¶¶ 6-7, 10, 25.)
Accordingly, such a pleading was sufficient notice of the applicability of the TN Statute pursuant
to Rhode Island’s notice pleading standard. See Super. R. Civ. P. 8(a).
Hajoca directs this Court to rely on Woods v. Tom Williams BMW, No. 18-cv-1110-STA-
jay, 2019 WL 3462550, at *1 (W.D. Tenn. July 31, 2019). The Tennessee District Court
explained that “Courts applying [the TN Statute] and its bar on seller liability have granted
sellers’ Rule 12(b)(6) and 12(c) motions where a plaintiff alleged a products liability claim
against the seller but failed to allege any facts to establish one of [the TN Statute’s] exceptions.”
Id. at *3; see also Def.’s Mot. 5. Importantly, the cases relied upon by the Tennessee District
Court are cases in which the operative complaint alleged no facts whatsoever showing that an
exception was applicable. See Woods, 2019 WL 3462550, at *3. Here, the Amended Complaint
is distinguishable. The assertions put Hajoca on notice that at least one exception to the TN
Statute may be invoked. Thus, the allegations in the Amended Complaint, taken as true, are
sufficient to withstand a motion to dismiss.
D
Re-Pleading and Prejudice
Pursuant to Rule 15 of the Superior Court Rules of Civil Procedure, after a party has once
amended a pleading as a matter of course, “[a] party may amend the party’s pleading only by
leave of court or by written consent of the adverse party[.]” Super. R. Civ. P. 15(a). “[T]rial

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justices should liberally allow amendments to the pleadings.” Serra v. Ford Motor Credit Co.,
463 A.2d 142, 150 (R.I. 1983). The trial justice has “the sound discretion” to “permit a party to
amend his or her pleading[.]” Normandin v. Levine, 621 A.2d 713, 715 (R.I. 1993). “The
question of prejudice to the party opposing the amendment is central to the investigation into
whether an amendment should be granted.” Faerber v. Cavanagh, 568 A.2d 326, 329 (R.I.
1990).
As explained above, this Court is satisfied that the Amended Complaint sufficiently sets
forth allegations to put Hajoca on notice that an exception to the TN Statute may apply.
Accordingly, re-pleading by Plaintiff is not necessary. However, this Court notes that even if re-
pleading were allowed, such amendments will not prejudice Hajoca. Hajoca is responsible for
the passage of time between the Amended Complaint and the Motion to Dismiss. Hajoca did not
raise the Rule 12(b)(6) issue until the instant Motion to Dismiss in September 2023. See Docket.
Its Motion to Dismiss comes approximately six years after the Amended Complaint. See id. Had
Hajoca brought this issue before the Court sooner, the prejudice it now alleges—namely, that
trial is two months away—would be moot. See Def’s Mot. 11. Accordingly, Hajoca’s claims
that it will suffer prejudice from amendment of the Amended Complaint fail.
IV
Conclusion
For the reasons set forth herein, Hajoca’s Motion to Dismiss is denied. Counsel shall
prepare the appropriate order for entry.

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RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: Janice M. Murray, as Surviving Spouse and as
Executrix of the Estate of Harold Wayne Murray
CASE NO: PC-2016-0151
COURT: Providence County Superior Court
DATE DECISION FILED: November 9, 2023
JUSTICE/MAGISTRATE: Gibney, P.J.
ATTORNEYS:
For Plaintiff: John E. Deaton, Esq.
For Defendant: Mark O. Denehy, Esq.