Richard Carroll et al. v. A.W. Chesteron Company et al. (2010)

MEMORANDUM OF DECISION RE DEFENDANT NELES-JAMESBURY, INC'S MOTION FOR SUMMARY JUDGMENT

The plaintiffs instituted the present action for personal injuries sustained as a result of Richard Carroll's occupation exposures to asbestos and asbestos containing products.   Mr. Carroll developed malignant mesothelioma which was diagnosed on or about November 21, 2007 and lead to his death on September 13, 2008.

Before the court is the motion for summary judgment filed by the defendant claiming that the “plaintiffs cannot prove that Richard Carroll was ever exposed to asbestos products manufactured, distributed or sold by Neles Jamesbury” and that said defendant is entitled to judgment as a matter of law.   In ruling on a motion for summary judgment, the judge must examine deposition transcripts, answers to interrogatories, any admissions on file and affidavits of the parties and coworkers, if any, to determine whether these documents reveal potential evidence which would create a genuine issue of fact which would be in the province of a jury to determine at trial.

In the deposition of Richard Carroll on April 28, 2008, he testified as follows with respect to his work as a welder and fabricator from 1950 to 1987:

Q. Do you recall the manufactures of the valves that you installed in the machines at Purvel Industries?

A. “Well, we used all kinds of valves.”

The only valve which he could recall the name of was a “Jenkins” valve.   In this case, however, the plaintiff has the benefit of the testimony of a fellow worker, Edmond Fournier, who worked in the inspection department of Pervel from 1953 until 1955, in the stockroom from 1958 to 1966 and as an engineering purchasing agent from 1966 until 1987.   Edmund Fournier Depo. July 8, 2008 vol. 1 pg.19. These years coincide with the years of Richard Carroll's employment at Pervel.   Mr. Fournier testified as follows:

Q. Did you purchase and stock Jamebury valves at Purvel?

A. Yes. (Depo p. 72.)

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 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 products.”  Champagne v. Raybestos-Manhattan, 212 Conn. 509, 530 (1989).

In Exhibits 3 and 4 attached to plaintiff's objection there are bulletins published by the defendant Jamesbury.   Bulletin 213 concerns “style B Swing-seal, Screwed End/Socket Weld three-Piece Ball valves;  “This design incorporates secondary metal seats and an auxillary asbestos stem seal in the event of fire and loss of polymetric seats ․” in describing VI Globe Control Valves Jamesbury states:  A spiral wound gasket of stainless steel and RFE or asbestos under compression form a tight seal between the cage retained seal ring and the value body.   Wide temperature fluctuations are compensated for easily without leakage.”

The court believes that evidence exists with respect to defendant's valves being present in the work environment of Richard Carroll and that one or more such valves contained asbestos.   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 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. 22 (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).

The court finds that material issues of fact exist for the trier of fact to determine in this case.

Accordingly, Neles-Jamesbury, Inc.'s motion for summary judgment is denied.

Skolnick, J.T.R.

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