William Dinneen and Donna Anderson v. A.O. Smith Corp. et al (2010)

MEMORANDUM OF DECISION RE NEW ENGLAND INSULATION COMPANY'S MOTION FOR SUMMARY JUDGMENT

The plaintiff William Dinneen claims that he was exposed to asbestos as a result of living at home with his now deceased father who contracted mesothelioma and died after working for the defendant in 1970.   The claim is that the father brought asbestos home on his work clothes.   As a result the son William is now suffering from mesothelioma.

The defendant New England Insulation has argued that the plaintiffs cannot prove that the father, Mr. Dinneen's exposure was to an asbestos-containing product manufactured, sold or used by defendant, as required by the Connecticut Products Liability Act. Conn. Gen.Stat. § 52-572m.   A “product seller” means any person or entity, including a manufacturer, wholesaler, distributor or retailer “in the business of selling such products, whether the sale is for resale, or for use or consumption.”   And a “manufacturer” as defined “includes product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product ․ prior to sale to a user or consumer.”   Section (e).

Section 52-572n(b) states that a products liability claim “may be asserted successfully ․ notwithstanding the claimant did not buy the product from or enter into any contractual relationship with the product seller” or manufacturer.

The plaintiffs in this action fit within the definition of “claimant” provided by Section 52-572n(b).  Furthermore, plaintiff's second supplemental objection contains the following excerpt from the deposition of Theodore H. Brodie, former president and CEO of NEI:

Q. Let me ask you this-what timeframe did New England Insulation either distribute or install asbestos containing products?

A. To the best of my ability, you know, from my own personal knowledge, from May of 1956 through sometime in the seventies.   I would not know the exact date that the manufacturers told us that they were selling us asbestos-free ․

Q. Do you say in the early seventies is where you think-

A.  I thought we were cut off in '71.   I've subsequently been told by other people that some of the manufacturers on primary products were clearing their warehouses as late as '72.

Furthermore, Ted Brodie testified that NEI used several products from Owens Corning which contained asbestos including “Kalo” an insulation which was known to contain asbestos from 1958 to November 1972.

As for the issue of whether William Dinneen, Sr. was or was not employed at New England Insulation Co. the court has examined “Social Security Itemized Statement of Earnings” which reveal that, for the year 1970, William Dinneen, Sr. earned $1,871.22 during the months of January-March, and 1,797.03 in earnings while working at NEI Co. during the months of April-June in 1970.

The standard of proof burdening the plaintiff was enunciated by the Connecticut Supreme Court in the case of Champagne v. Raybestos-Manhattan wherein the majority stated:  “Although no witnesses testified that they saw the plaintiff (decedent) handle the defendant's products, the jury could have found or inferred that he was exposed to the defendant's products based on (a) the work that he was engaged in;  (b) the length of time he was employed;  and (c) the fact that coworkers who performed similar work testified that they handled the defendant's product.”  Champagne v. Raybestos-Manhattan, 212 Conn. 509, 530 (1989).

As held by Rhode Island Superior Court Justice Alice Gibney in the asbestos context:

So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on nonmoving parties to have his (or her) day in court unless it is clear that no genuine issue of fact remains to be tried.  North Am. Planning Corp. v. Guido, 289 A.2d 423, 110 R.I. (1972).  A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried;  rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment.”  Mitchell v. Mitchell, 756 A.2d 179 R.I. (2000).

Accordingly, the court finds that an issue of fact exists as to whether William Dinneen, Sr. was exposed to asbestos while employed at New England Insulation Co. in 1970, and, therefore, the motion of the defendant New England Insulation Co. for summary judgment is denied.

David W. Skolnick

Judge Trial Referee

Skolnick, David W., J.T.R.