Hannibal Saldibar et al. v. A.O. Smith Corp. et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

FACTS

On July 24, 2009, the plaintiffs, Hannibal Saldibar and Eleanor Saldibar, filed their second amended complaint in this action, alleging that Hannibal Saldibar (Saldibar) was exposed to asbestos from products associated with multiple defendants, including H.B. Fuller Company (the defendant), and as a result suffered various damages.   The second amended complaint alleges the following facts.

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.   Saldibar was exposed to asbestos or asbestos-containing products of the defendants while working in Connecticut for the Navy from 1943 to 1946, and as a tile setter from 1946 to 1979.   This exposure contributed to Saldibar's contraction of mesothelioma and other asbestos-related ailments.

On April 29, 2009, the plaintiffs filed their original, four-count complaint naming the defendant in three counts.   In count one, Saldibar claims damages under Connecticut's product liability statute, General Statutes §§ 52–572m et seq., 52–240a and 52–240b.   Count three alleges that the defendants engaged in “grossly negligent, willful, wanton, malicious and/or outrageous” conduct.   Count four is a claim for loss of consortium by Eleanor Saldibar.   The plaintiffs demand relief in the form of monetary damages, exemplary damages, statutory punitive damages, attorneys fees and costs.

On September 15, 2009, the defendant filed a motion for summary judgment and a supporting memorandum of law as to counts one, three and four and any pending cross claims.¹  The plaintiffs filed a memorandum in opposition with supporting exhibits on June 8, 2010.   The defendant filed a reply memorandum on September 17, 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).

The defendant moves for summary judgment on the ground that the evidence submitted by the plaintiffs does not establish that Saldibar was exposed to asbestos from any of its products and, because there are no questions of material fact on this issue, it is entitled to judgment as a matter of law.   The defendant specifically argues that “the plaintiffs have failed to produce any competent evidence that identifies the presence of a product manufactured, distributed, and/or sold by [the defendant] that contained asbestos that was used by [Saldibar], or at any of [his] job sites.”   In addition, the complaint does “not specify where [Saldibar] was exposed to [the defendant's] product, nor do the plaintiffs specifically identify a product manufactured or sold by [the defendant].”   Without adequately identifying an asbestos-containing product of the defendant that Saldibar was exposed to, the defendant maintains that counts one and three are insufficient.   The defendant further argues that Eleanor Saldibar's loss of consortium claim must be dismissed because it is derivative of Saldibar's insufficient product liability claim.

In response, the plaintiffs argue that the defendant's motion should be denied because it fails to prove the nonexistence of all material facts and there is evidence supporting Saldibar's allegation that he was exposed to asbestos-containing products “manufactured by TEC, now known as H.B. Fuller.”   The defendant's reply memorandum reasserts that the plaintiffs have not submitted evidence that raises a genuine 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, 52–240b, 52–572m, to 52–572q, inclusive, and 52–577a 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.”  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 [a] 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, the defendant has attached four exhibits ² to demonstrate that the plaintiffs have failed to establish that Saldibar was exposed to asbestos from its products, and that there are no genuine issues of material fact on this issue.   The plaintiffs has submitted eleven exhibits with their memorandum in opposition.³  The defendant objected to five of the plaintiffs' exhibits at short calendar, essentially arguing that affidavits and depositions from other matters are not admissible evidence in this proceeding.   The court will first consider the exhibits that were not objected to, and, if these exhibits do not resolve the issue, the court will then consider the remaining exhibits and the defendant's objections.

In the plaintiffs' interrogatory responses (exhibit 1), Saldibar included a job site list, which identifies some thirty-eight sites where he worked from the 1940s to the 1990s where he supposedly used or was exposed to asbestos or asbestos-containing products.   Saldibar's production identification list (defendant's exhibit C, plaintiff's exhibit 2) identified products containing asbestos that Saldibar used in the course of his work.   The list does not name “H.B. Fuller,” but it does identify “TEC” under the subheading for mastics, thinsets and epoxies.   The list also identifies Standard Tile and Tile America as “retailers” where Saldibar purchased these products.   Interrogatory responses submitted by Tile America (exhibit 4) identify TEC as one of the manufacturers of wall mastics, thinsets and epoxies that it sold in Connecticut from 1950 to 1990.

The defendant's interrogatory responses (exhibit 5) first states that its responses relate to “its former division TEC, now known as Specialty Construction Brands, Inc., a wholly owned subsidiary of H.B. Fuller.”   The exhibit then notes that TEC produced thinset mortars containing asbestos and premixed mastic adhesives, some of which contained asbestos.   These responses further state that all asbestos was removed from these products by late 1977 to early 1978.

In the submitted excerpts of his deposition testimony (defendant's exhibit D, plaintiffs' exhibits 3, 7), Saldibar indicates that he used TEC mastics, thinsets and epoxies in the course of his work.   When asked which TEC products he used during the course of his career, Saldibar specifically answered that he “used a lot of [mastics]” but could not identify particular jobs where he used a particular brand of mastic.   Saldibar also states that he used TEC products probably “in about the late '60s probably to the '70s ․” When specifically asked if he used a TEC thinset, mastic or epoxy in the 1960s, Saldibar recalled using TEC mastics.   Later in his testimony, Saldibar indicates that he used thinsets for certain jobs, though he could not recall the thinset manufacturers of each brand he used.   Instead, Saldibar identified some of the distributors where he purchased thinsets, including Tile America.

The exhibits submitted by the plaintiffs establish that questions of material fact remain as to whether Saldibar was exposed to the defendant's asbestos-containing products.   Viewing the evidence in the light most favorable to the nonmoving party, TEC's status as a division or subsidiary of the defendant, the presence of asbestos in TEC mastics and thinsets prior to 1977 or 1978, Saldibar's use of TEC thinsets and mastics at identified but unspecified job sites from the 1940s to the 1990s, Saldibar's specific statements that he used TEC mastics during the 1960s and 1970s, and his additional exposure to TEC thinsets and mastics at retailers such as Standard Tile and Tile America, present issues of material fact as to whether Saldibar was exposed to asbestos from the defendant's products.   Accordingly, the defendant's motion for summary judgment is denied without the need for the court to consider the remaining exhibits.

CONCLUSION

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

By the Court,

BELLIS, J.

FOOTNOTES

FN1. When the defendant filed its motion for summary judgment on September 15, 2009, the operative complaint was the plaintiffs' second amended complaint, dated July 24, 2009.   The plaintiffs have since amended their complaint several times, most recent on August 4, 2010.   The defendant did not replead its motion after making these amendments, therefore, the second amended complaint remains the operative pleading with respect to this motion..  FN1. When the defendant filed its motion for summary judgment on September 15, 2009, the operative complaint was the plaintiffs' second amended complaint, dated July 24, 2009.   The plaintiffs have since amended their complaint several times, most recent on August 4, 2010.   The defendant did not replead its motion after making these amendments, therefore, the second amended complaint remains the operative pleading with respect to this motion.

FN2. The defendant's exhibits include a copy of the plaintiffs' original complaint, dated April 13, 2009 (exhibit A);  the defendant's short-form answer and special defenses, dated May 11, 2009 (exhibit B);  a list of products identified by Saldibar, dated May 1, 2009 (exhibit C);  and an excerpt from the deposition of Saldibar, volume V, dated August 4, 2009 (exhibit D)..  FN2. The defendant's exhibits include a copy of the plaintiffs' original complaint, dated April 13, 2009 (exhibit A);  the defendant's short-form answer and special defenses, dated May 11, 2009 (exhibit B);  a list of products identified by Saldibar, dated May 1, 2009 (exhibit C);  and an excerpt from the deposition of Saldibar, volume V, dated August 4, 2009 (exhibit D).

FN3. The plaintiffs' exhibits include:  the plaintiffs' second supplemental answers to interrogatories and “second amended job site list,” dated June 3, 2009 (exhibit 1);  a product identification list included in the plaintiffs' supplemental answers to interrogatories, dated May 4, 2009 (exhibit 2);  an excerpt from the deposition of Saldibar, volume II, dated June 1, 2009 (exhibit 3);  responses to the plaintiffs' interrogatories and requests for production by Standard Tile Distributors of New Haven d/b/a Tile America, dated November 30, 2009 (exhibit 4);  the defendant's responses and objections to interrogatories from Vicari v. Bondex International, Inc., Docket No. L–3904–06AS (N.J.Super.Ct. Law Div.), dated October 30, 2006 (exhibit 5);  the deposition of Robert Wayne Broos, dated February 19, 1997 (exhibit 6);  a second excerpt from the deposition of Saldibar, volume V, dated August 9, 2009 (exhibit 7);  the deposition of Edwin C. Holstein, MD, November 16, 1999 (exhibit 8);  the affidavit of Edwin C. Holstein, MD, dated October 25, 1985 (exhibit 9);  the deposition of Richard Kradin, M.D., taken on June 5, 2003 (exhibit 10);  the deposition of Dr. David Christiani, taken on November 11, 2002 (exhibit 11).   The defendant objected to exhibits 6, 8, 9, 10 and 11 at short calendar..  FN3. The plaintiffs' exhibits include:  the plaintiffs' second supplemental answers to interrogatories and “second amended job site list,” dated June 3, 2009 (exhibit 1);  a product identification list included in the plaintiffs' supplemental answers to interrogatories, dated May 4, 2009 (exhibit 2);  an excerpt from the deposition of Saldibar, volume II, dated June 1, 2009 (exhibit 3);  responses to the plaintiffs' interrogatories and requests for production by Standard Tile Distributors of New Haven d/b/a Tile America, dated November 30, 2009 (exhibit 4);  the defendant's responses and objections to interrogatories from Vicari v. Bondex International, Inc., Docket No. L–3904–06AS (N.J.Super.Ct. Law Div.), dated October 30, 2006 (exhibit 5);  the deposition of Robert Wayne Broos, dated February 19, 1997 (exhibit 6);  a second excerpt from the deposition of Saldibar, volume V, dated August 9, 2009 (exhibit 7);  the deposition of Edwin C. Holstein, MD, November 16, 1999 (exhibit 8);  the affidavit of Edwin C. Holstein, MD, dated October 25, 1985 (exhibit 9);  the deposition of Richard Kradin, M.D., taken on June 5, 2003 (exhibit 10);  the deposition of Dr. David Christiani, taken on November 11, 2002 (exhibit 11).   The defendant objected to exhibits 6, 8, 9, 10 and 11 at short calendar.

Bellis, Barbara N., J.