William Dinneen et al. v. A.O. Smith Corp. et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 242.00)

FACTS

On June 4, 2009, the plaintiffs, William Dinneen and Donna Anderson, filed their second amended complaint in this action, alleging that Dinneen was exposed to asbestos from products associated with multiple defendants, including General Electric Co. (GE), and as a result the plaintiffs suffered various damages.   The second amended complaint alleges the following.

Each of the defendants or their predecessors in interest conducted business in the state of Connecticut and produced, manufactured or distributed asbestos or products containing asbestos.   Dinneen was exposed to asbestos-containing products with some connection to the defendants while working in Connecticut as an insulator in 1966–1967 and was secondarily exposed due to his father's work as an insulator from 1949–1970.   This exposure contributed to Dinneen's contraction of asbestos-related mesothelioma and other asbestos related pathologies.   As a result of the defendants' activities, Dinneen has sustained permanent injuries and suffered from asbestos-related ailments.

On September 8, 2008, the plaintiffs filed their original complaint in this action, which named GE in three counts.   In count one, Dinneen claimed damages for products liability under General Statutes § 52–572m et seq.   In count three, Anderson alleged loss of consortium.   Count four alleged grossly negligent, willful, wanton, malicious and/or outrageous conduct for which Dinneen requests punitive damages under General Statutes §§ 52–240a and 52–240b.

On January 15, 2010, GE filed a motion for summary judgment on the plaintiffs' complaint ¹ along with a supporting memorandum of law and various exhibits.   The plaintiffs filed a memorandum in opposition to the motion for summary judgment with supporting exhibits on March 2, 2010.   The defendants filed a memorandum in reply on April 22, 2010.   The court heard oral argument at short calendar on February 14, 2011.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

GE moves for summary judgment on the ground that the evidence submitted by the plaintiffs does not establish that Dinneen was exposed to asbestos from a GE product and, because there are no questions of material fact on this issue, GE is entitled to judgment as a matter of law.   GE specifically argues that the plaintiffs have not established that Dinneen worked in close proximity to an asbestos-containing product made by GE and that there is no evidence to support even an inference that Dinneen was exposed to or inhaled asbestos dust from a GE product.   GE further argues that Anderson's loss of consortium claim must be dismissed because it is derivative of Dinneen's insufficient products liability claim.   In response, the plaintiffs counter that they have submitted evidence that presents questions of material fact as to whether Dinneen was exposed to GE products containing asbestos either at his workplace, or from his father's workplace.   GE's reply memorandum reasserts that the plaintiffs have not submitted evidence that raises an issue of material fact.

General Statutes § 52–572m(b) states that a product liability claim “includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.”

General Statutes § 52–572n(a) provides:  “A product liability claim as provided in sections 52–240a [award of attorneys fees], 52–240b [punitive damages], 52–572m to 52–572q, inclusive, and 52–577a [statute of limitations] may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty for harm caused by a product.”

“In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff's injuries.”  (Internal quotation marks omitted.)  Haesche v. Kissner, 229 Conn. 213, 218, 640 A.2d 89 (1994).  “In a products liability/asbestos claim a plaintiff must 1) identify an asbestos-containing product for which a defendant is responsible, 2) prove that he has suffered damages, and 3) prove that defendant's asbestos-containing product was a substantial factor in causing his damages.”   Lee v. ACMAT Corp., Superior Court, judicial district of Fairfield, Docket No. CV 03 0403244 (September 3, 2004, Dewey, J.) citing Roberts v. Owens–Corning Fiberglass Corp., 726 F.Sup. 172, 174 (W.D.Mich.1989).

In support of its motion for summary judgment, GE has attached five exhibits ² to demonstrate that the plaintiffs have not established that Dinneen was exposed to asbestos from a GE product and that there are no genuine issues of material fact on this issue.   Relying on an excerpt from Dinneen's deposition, taken on November 13, 2008, GE claims that Dinneen neither testified that he was exposed to asbestos from a GE product while working at Bridgeport Harbor Station, nor that he did work insulating the turbine at Bridgeport Harbor Station during the time he was employed there.   In addition, GE points out that Dinneen did not identify any asbestos-containing GE products that his father had worked with over his career and that the 1985 product identification list, which identified products with asbestos that Dinneen's father was exposed to, did not name any GE products.

The plaintiffs submitted seven exhibits with their memorandum in opposition.³  GE objected to four of the plaintiffs' exhibits at short calendar, essentially arguing they were hearsay or lacked a proper foundation.   The court will first consider the plaintiffs' exhibits that were not objected to and, if these exhibits do not resolve the issue, will then consider the remaining exhibits and GE's objections.

In Dinneen's deposition, he stated that in 1966 he worked as an assistant to mechanics at Bridgeport Harbor Station.   The mechanics' duties included installing insulation on piping using asbestos.   Dinneen noted that he assisted mechanics who were insulating “the turbine,” and on one occasion he was sent inside the turbine, and steam began to “gush up through the turbine.”   In his testimony, Dinneen identified GE as the manufacturer of the turbine.

GE stated in a “technical information letter,” Exhibit 4, that there was asbestos in GE gas and steam turbines, generators and various parts and components associated therewith prior to 1987.   GE's responses to the plaintiffs' interrogatories also stated that GE “manufactured and sold certain product lines which may have contained asbestos, or been used in connection with products that contained asbestos ․ including turbines and other power generating equipment ․”

The exhibits submitted by the plaintiffs establish that there are still questions of material fact with respect to whether Dinneen was exposed to GE products containing asbestos.   Specifically, the technical information letter states that asbestos-containing material existed in GE turbines and its associated parts and components.   GE's interrogatory responses likewise state that GE turbines and associated equipment may have contained asbestos.   In his deposition testimony, Dinneen also identified GE as the manufacturer of the turbine at his workplace, Bridgeport Harbor Station.

Dinneen's deposition also describes how he worked closely with mechanics who worked on and insulated the GE turbine at Bridgeport Harbor Station.   Although GE argues that Dinneen could not specify whether the mechanics were insulating the pipes to the turbine or the turbine itself, the technical information letter specifically mentions casings and piping among the asbestos-containing materials associated with GE turbines.   Moreover, Dinneen stated that he went inside the asbestos-containing GE turbine, and that the turbine apparently activated while he was inside of it.

Viewing the evidence in the light most favorable to the nonmoving party, the evidence of the presence of the asbestos-containing GE turbine and its piping, casing and other components at Dinneen's workplace, as well as Dinneen's close proximity to both the turbine and the mechanics replacing the outer casing or piping associated therewith, present issues of material fact as to whether Dinneen was exposed to asbestos from a GE product.   Accordingly, I need not consider the plaintiffs remaining exhibits.

CONCLUSION

For the foregoing reasons, GE's motion for summary judgment is denied.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. When GE filed its motion for summary judgment on January 15, 2010, the operative complaint was the plaintiffs' second amended complaint, filed on June 4, 2009.   The plaintiffs subsequently filed a third amended complaint on March 17, 2010, followed by a fourth amended complaint on April 6, 2010.   The second amended complaint remains the operative pleading with respect to this motion..  FN1. When GE filed its motion for summary judgment on January 15, 2010, the operative complaint was the plaintiffs' second amended complaint, filed on June 4, 2009.   The plaintiffs subsequently filed a third amended complaint on March 17, 2010, followed by a fourth amended complaint on April 6, 2010.   The second amended complaint remains the operative pleading with respect to this motion.

FN2. GE's exhibits include three excerpts from Dinneen's deposition testimony (exhibits A through C), the plaintiffs' list of lay witnesses (exhibit D), and a product identification list (exhibit E)..  FN2. GE's exhibits include three excerpts from Dinneen's deposition testimony (exhibits A through C), the plaintiffs' list of lay witnesses (exhibit D), and a product identification list (exhibit E).

FN3. The plaintiff's exhibits include an excerpt from Dinneen's deposition testimony (exhibit 1);  a 1984 set of answers to interrogatories by Dinneen's father (exhibit 2);  an excerpt from the North American Power Plant Database of the Utility Data Institute (exhibit 3);  a 1990 “technical information letter” from GE (exhibit 4);  answers to interrogatories by GE to the plaintiffs (exhibit 5);  and the 1999 affidavit and 1985 deposition testimony of Edward Holstein, M.D. (exhibits 6 and 7).   GE objected to exhibits 2, 3, 6 and 7 at short calendar..  FN3. The plaintiff's exhibits include an excerpt from Dinneen's deposition testimony (exhibit 1);  a 1984 set of answers to interrogatories by Dinneen's father (exhibit 2);  an excerpt from the North American Power Plant Database of the Utility Data Institute (exhibit 3);  a 1990 “technical information letter” from GE (exhibit 4);  answers to interrogatories by GE to the plaintiffs (exhibit 5);  and the 1999 affidavit and 1985 deposition testimony of Edward Holstein, M.D. (exhibits 6 and 7).   GE objected to exhibits 2, 3, 6 and 7 at short calendar.

Bellis, Barbara N., J.