Stephen Mastroianni et al. v. Acands, Inc. et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 153.00)

FACTS

The plaintiffs, Stephen Mastroianni (Mastroianni) and Carol Mastroianni, filed a complaint dated May 3, 1999, alleging that Mastroianni was exposed to asbestos from products associated with multiple defendants, including H.B. Fuller Company (the defendant), and that as a result the plaintiffs suffered various damages.   The 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.   Mastroianni was exposed to asbestos or asbestos-containing products of the defendants while working in Connecticut as a tile setter from 1955 to 1968.   This exposure contributed to Mastroianni's contraction of asbestos-related pleural plaques and asbestosis and other asbestos-related ailments.   The complaint names the defendant in two counts.   In count one, Mastroianni claims damages under the Connecticut product liability statute, General Statutes §§ 52–572m et seq., 52–240a and 52–240b.   In count three, Carol Mastroianni alleges loss of consortium.

On October 15, 2009, the defendant filed a motion for summary judgment with a supporting memorandum of law and various exhibits.   The plaintiffs filed a memorandum in opposition with supporting exhibits on October 27, 2010.   The defendant filed a reply memorandum with additional exhibits on February 8, 2011.   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 Mastroianni 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 do not identify where or when Mastroianni was exposed to its products containing asbestos, do not state which of its particular products contained asbestos and do not establish that Mastroianni worked in close proximity to any such product.   Without adequately identifying an asbestos-containing product of the defendant that Mastroianni was exposed to, the plaintiffs fail to meet the basic requirements of a product liability action.   The defendant further argues that Carol Mastroianni's loss of consortium claim must be dismissed because it is derivative of Mastroianni's insufficient product liability claim.

In response, the plaintiffs counter that the motion for summary judgment must be denied because the defendant has failed to prove the nonexistence of all genuine issues of material fact, and claim that they have submitted evidence that presents a question of material fact as to whether Mastroianni was exposed to asbestos-containing products of the defendant.   The plaintiffs claim that there is evidence that Mastroianni used thinsets in his work as a tile setter, that Mastroianni identified “TEC/H.B. Fuller” as one brand of thinsets he used, and that “TEC/H.B. Fuller” manufactured thinsets containing asbestos.   The defendant's reply memorandum responds that the plaintiffs do not establish that Mastroianni used its products at a time when those products contained asbestos and, therefore, the plaintiffs have still failed to present enough evidence to create a question of material fact as to whether Mastroianni was exposed to asbestos from its products.

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, the defendant attached two exhibits with its supporting memorandum of law and eight additional exhibits with its reply memorandum ¹ to demonstrate that the plaintiffs have not established that Mastroianni was exposed to asbestos from its products and that there are no genuine issues of material fact on this issue.   The plaintiffs submitted eight exhibits with their memorandum in opposition.²

The plaintiff's complaint (exhibit A) alleges that Mastroianni was exposed to the defendants' asbestos-containing products between 1955 and 1968.   Mastroianni's Social Security Earnings Information (exhibit 2) consists of an itemized statement of Mastroianni's earnings and lists his employers from 1950 to 1995.   This exhibit lists “Marani” as an employer from 1954 to 1962, and indicates that Mastroianni was self-employed from 1963 to 1970.

The defendant's interrogatory responses (exhibit 3) indicate that TEC is or was a wholly owned division or subsidiary of the defendant, and that TEC produced several lines of thinset mortars, premixed mastic adhesives and premixed grouts containing asbestos until late 1977 or early 1978.   The deposition of Robert Wayne Broos, a retired H.B. Fuller chemist (exhibit 4), also states that the defendant probably sold thinsets containing asbestos until 1978.

In the excerpts submitted from Mastroianni's deposition testimony (defendant's reply memorandum exhibits A–H, plaintiff's exhibit 1), Mastroianni indicated that he was exposed to asbestos on numerous jobs working for Marani, especially through thinsets and taping compounds.   Mastroianni believed that he began using thinsets working for Marani in the late 1950s.   Marani used thinsets from various manufacturers in the installation of tile, including “H.B. Fuller or TEC,” which “distributed a lot of [thinsets].”   Mastroianni could not specifically recall which thinset products he used while working for Marani, or pinpoint his use of a specific thinset product to “the Marani era,” but stated that the defendant's thinsets were among those that were used “around that time.”   After leaving Marani, Mastroianni started his own company in the early 1960s and continued to work on installation jobs.   Prior to the 1980s, Mastroianni recalled that he probably used fifty pound bags of the defendant's thinsets.   Mastroianni also indicated that he used mastics produced by the defendant, but was also uncertain as to the precise time frame or job sites where he used them.

Viewing the evidence in the light most favorable to the nonmoving party, the exhibits submitted by the parties establish that there are still questions of material fact as to whether Mastroianni was exposed to the defendant's asbestos-containing products.   The evidence submitted included evidence that Mastroianni worked for Marani and was self-employed during the time he was allegedly exposed to the defendant's products, that he was “exposed to asbestos on numerous jobs” beginning in the late 1950s while working for Marani as a tile setter, “especially in his work for the thinsets” and that his exposure to asbestos was much higher when he worked at Marani.   Additionally, the submissions included evidence that Mastroianni identified the defendant as a manufacturer of thinsets used by Marani, and that during this time period the defendant produced thinsets, mastics and other products that contained asbestos.   Although Mastroianni could not pinpoint which specific brand of thinset he used on particular jobs while working at Marani, Mastroianni does indicate that during this general time period his employment at Marani and self-employment immediately thereafter—he used products from the same half-dozen thinset manufacturers, including the defendant.   Accordingly, the defendant's motion for summary judgment as to the product liability count is denied.   Because the product liability count survives summary judgment, the motion for summary judgment as to the derivative loss of consortium count is also denied.

CONCLUSION

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

By the court

Bellis, J.

FOOTNOTES

FN1. The defendant submitted a copy of the plaintiffs' writ of summons and complaint (exhibit A) and a copy of the defendant's answer and special defenses (exhibit B) with its initial memorandum in support of its motion.   In its reply memorandum, the defendant submitted several excerpts from the deposition testimony of Stephen Mastroianni (exhibits A–H)..  FN1. The defendant submitted a copy of the plaintiffs' writ of summons and complaint (exhibit A) and a copy of the defendant's answer and special defenses (exhibit B) with its initial memorandum in support of its motion.   In its reply memorandum, the defendant submitted several excerpts from the deposition testimony of Stephen Mastroianni (exhibits A–H).

FN2. The exhibits submitted by the plaintiffs include excerpts from Mastroianni's deposition testimony (exhibit 1);  an itemized statement of Mastroianni's earnings between 1950 and 1995 from the Social Security Administration (Social Security Earnings Information, exhibit 2);  a set of interrogatory responses from the defendant, dated October 30, 2006 (exhibit 3);  the 1997 deposition testimony of Robert Wayne Broos (exhibit 4);  a 1999 affidavit and 1985 deposition testimony of Edward Holstein, M.D. (exhibits 5, 6);  the 2003 deposition of Richard Kradin, M.D. (exhibit 7);  and the 2002 deposition testimony of Dr. David Christiani (exhibit 8)..  FN2. The exhibits submitted by the plaintiffs include excerpts from Mastroianni's deposition testimony (exhibit 1);  an itemized statement of Mastroianni's earnings between 1950 and 1995 from the Social Security Administration (Social Security Earnings Information, exhibit 2);  a set of interrogatory responses from the defendant, dated October 30, 2006 (exhibit 3);  the 1997 deposition testimony of Robert Wayne Broos (exhibit 4);  a 1999 affidavit and 1985 deposition testimony of Edward Holstein, M.D. (exhibits 5, 6);  the 2003 deposition of Richard Kradin, M.D. (exhibit 7);  and the 2002 deposition testimony of Dr. David Christiani (exhibit 8).

Bellis, Barbara N., J.