William M. Rutan et al. v. Dunkirk Radiator Corp. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 140.00)

FACTS

This action arises out of the alleged exposure of the decedent, Charles Rutan, to asbestos-containing products.   The alleged exposure occurred while Charles Rutan worked as a plumber, installing and repairing boilers and oil burners at various jobsites during the years 1954 to 1972.   The plaintiffs, William M. Rutan, Catherine Goldhammer and Charles R. Rutan, co-executors of the estate of Charles Rutan, allege in count one of their complaint, dated January 27, 2004, that the defendant violated the Connecticut Product Liability Act, General Statutes § 52–572m et seq., § 52–240a, and § 52–240b.   Count two alleges a conspiracy among the named defendants involving, inter alia, fraudulent misrepresentations and alterations and deletions in various reports and studies concerning the dangers of asbestos and the relationship between asbestos and cancer.

Dunkirk Radiator Corp., the moving defendant, submitted an answer and special defenses, dated July 16, 2004.   It filed its motion for summary judgment on October 9, 2009, on the basis that the plaintiffs cannot establish causation.   The plaintiffs filed their objection to the defendant's motion for summary judgment on December 30, 2009, and the defendant filed a reply memorandum on February 16, 2010.

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 ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

The defendant argues that the plaintiffs have failed to produce evidence that Charles Rutan was exposed to asbestos as a result of contact with any of its products.   In support of its motion, it attaches the affidavit of Peter J. Desens, a technical support manager of ECR International, Inc., formerly known as Dunkirk Radiator Corp. The plaintiffs counter that their evidence amply supports their contention that Charles Rutan worked with Dunkirk Boilers.   In its reply memorandum, the defendant reiterates that the plaintiffs are unable to demonstrate that Charles Rutan was exposed to a Dunkirk product on more than one occasion.

To prevail on its summary judgment motion, this defendant must demonstrate that no genuine issue of material fact exists with respect to Charles Rutan's alleged exposure to any of its alleged asbestos-containing products.¹  As indicated above, the defendant has attached the affidavit of Peter J. Desens, the technical support manager of the defendant.   Desens attests that the defendant has manufactured residential boilers since 1928 and that it began manufacturing packaged boilers in the 1950s.   He further attests as to the dimensions of the boilers and he describes the asbestos components that were involved during the assembly of the boilers.   The sole reference to Charles Rutan occurs in paragraph 13 of the affidavit where Desens states that “Mr. Rutan recalled working with a Dunkirk boiler from which a soot expulsion occurred.” ²

Rather than producing, and relying upon, evidence that establishes the nonexistence of genuine issues of material fact, the defendant attacks the plaintiffs' evidence on the basis that the plaintiffs have failed to prove that a Dunkirk product caused or contributed to Charles Rutan's injuries.   To the extent that the defendant insists that the plaintiffs have failed to provide evidence of asbestos exposure from any of the defendant's products, however, it impermissibly attempts to shift its burden on summary judgment to the plaintiffs.   It is the defendant's burden to demonstrate that no issue of material fact exists with respect to Charles Rutan's alleged exposure to any of its products.   Connecticut law is clear that, on a defendant's motion for summary judgment, “the burden is on [that] 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).

To satisfy its burden, the defendant “must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Id.

Desen's affidavit fails to dispel the existence of a genuine issue of material fact with respect to Charles Rutan's alleged exposure to this defendant's products.   Accordingly, the court denies the defendant's motion for summary judgment.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. To prevail on a products liability claim in the context of asbestos litigation, this court has recognized that “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 [the] defendant's asbestos-containing product was a substantial factor in causing his damages.  (Internal quotation marks omitted.)   Mastroianni v. Acands Inc., Superior Court, judicial district of Fairfield, Docket No. CV 99 0362945 (May 17, 2011, Bellis, J.)..  FN1. To prevail on a products liability claim in the context of asbestos litigation, this court has recognized that “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 [the] defendant's asbestos-containing product was a substantial factor in causing his damages.  (Internal quotation marks omitted.)   Mastroianni v. Acands Inc., Superior Court, judicial district of Fairfield, Docket No. CV 99 0362945 (May 17, 2011, Bellis, J.).

FN2. Desens also attests that “A soot expulsion would not cause the release of any asbestos fibers.”   This does not negate questions of fact surrounding the issue of additional exposure that Charles Rutan may have experienced with respect to Dunkirk's products, however..  FN2. Desens also attests that “A soot expulsion would not cause the release of any asbestos fibers.”   This does not negate questions of fact surrounding the issue of additional exposure that Charles Rutan may have experienced with respect to Dunkirk's products, however.

Bellis, Barbara N., J.