Elizabeth Selvidio et al. v. A.O.Smith Corporation et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 186.00)

FACTS

This action arises out of the alleged exposure of the decedent, Joseph Selvidio, while working as a Navy electrician from 1954 to 1956, as an electrician and ship inspector at Electric Boat in Connecticut from 1958 to 1973, and as an electrician from 1973 to 1979.   The complaint alleges that the decedent was exposed to, and inhaled and/or ingested, asbestos fibers and particles from various asbestos-containing products for which the defendants, including the present defendant, CBS Corp., were responsible.   By way of a third amended complaint filed on August 19, 2011, the plaintiff, Elizabeth Selvidio, as personal representative of the estate of Joseph Selvidio and as surviving spouse, alleges four counts against multiple defendants, including the defendant, CBS Corp. Count one alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and count two alleges a cause of action pursuant to General Statutes § 52–555, Connecticut's wrongful death statute, and/or General Statutes § 52–572m.   Count three alleges a loss of consortium, and the fourth count claims that the various defendants' conduct was grossly negligent, wilful, wanton, malicious and outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, as well as studies and reports, indicating that asbestos-containing products were hazardous to the health and safety of Joseph Selvidio and to all humans who were exposed.   The matter was argued before the court at the short calendar conducted on January 17, 2012.¹

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).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In the present case, the defendant CBS Corp. has moved for summary judgment.   Accordingly, “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 [its] 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.”  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

The defendant filed a motion for summary judgment on September 18, 2009 on the ground that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.   The defendant maintains that discovery reveals that Joseph Selvidio had failed to identify any exposure to any asbestos-containing product of this defendant.   Further, the defendant contends that the plaintiff has otherwise been unable to produce any evidence that Joseph Selvidio was exposed to any product manufactured or sold by this defendant.   Accordingly, in light of the plaintiff's unsupported allegations, the defendant argues that summary judgment should be granted in its favor.   The defendant has attached the affidavit of its attorney, the plaintiff's answers to its interrogatories and requests for production, as well as the plaintiff's supplemental answers.   The defendant has also attached various naval documents and case law.

In her memorandum in opposition filed on February 2, 2010, the plaintiff counters that the defendant has failed to prove the nonexistence of all genuine issues of material fact.   She maintains that the evidence reveals that Joseph Selvidio was exposed to the defendant's generators when he was stationed aboard the naval ship, the USS Tench, as a fireman apprentice, and then as a fireman.   The plaintiff emphasizes that Joseph Selvidio was exposed to the asbestos surrounding the defendant's generators while he was working on such products and when he was leaning against these products.   She contends that Joseph Selvidio also recalled working with the defendant's asbestos-containing control panels aboard the USS Tench and that he worked on asbestos-containing components, such as pumps, when he was aboard the USS Bang. The plaintiff argues that naval records indicate that the defendant's equipment, including pumps, were used aboard this ship.   She argues that the evidence reveals that various asbestos-containing products of the defendant were used at Electric Boat during the time of Joseph Selvidio's employment.   The plaintiff has attached excerpts of Joseph Selvidio's deposition testimony, naval records, as well as an affidavit and excerpts of deposition testimony of Dr. Edward C. Holstein.   In addition, the plaintiff has submitted Richard Kotecki's answers to interrogatories, an affidavit of Christopher K. Lane, P.E., the plaintiff's naval expert, and case law.

The defendant filed a reply memorandum to the plaintiff's opposition memorandum on April 23, 2010.   The defendant reemphasizes that the plaintiff's allegations against it are not supported by the evidence, and takes the position that the plaintiff has set forth the wrong standards for summary judgment.   Accordingly, the defendant concludes that it is entitled to summary judgment in its favor.

To prevail on its summary judgment motion, the defendant must establish that no issue of material fact exists concerning Joseph Selvidio's claimed exposure to any of its alleged asbestos-containing products.   The court has examined the evidence that has been submitted and finds that it does not dispel all genuine questions of material fact with respect to the plaintiff's claims that Joseph Selvidio was exposed to the defendant's asbestos-containing products on the USS Tench, the USS Bang and during his tenure at Electric Boat.

The defendant's arguments might be persuasive if the court were bound by Rule 56 of the Federal Rules of Civil Procedure, the federal rule governing summary judgments.   When explaining the movant's burden under Rule 56, the United States Supreme Court has observed that there is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.”   (Emphasis in original.)  Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 365 (1986).

Conversely, under Connecticut practice, the moving party has a heavier burden.   The movant has the burden to submit evidence to demonstrate the absence of any genuine issues of material fact and that it is entitled to judgment as a matter of law.   As set forth above, to satisfy this burden, the moving party must demonstrate “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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Emphasis added;  internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.

The defendant's evidence does not support its contention that Joseph Selvidio was not exposed to any of its asbestos-containing products.   Rather, the defendant has offered only mere assertions in its memoranda in support of its motion in an attempt to demonstrate the nonexistence of any genuine issues of material fact.   Such assertions are insufficient under Connecticut's standard for granting a summary judgment.

The court is aware that, in Connecticut, “the burden of proof on a motion for summary judgment remains with the moving party even when, as here, the nonmoving party will bear the burden of persuasion at trial.”  Maltas v. Maltas, 298 Conn. 354, 370, 2 A.3d 902 (2010).   Accordingly, for the reasons discussed above, the court denies the defendant's motion for summary judgment.

BELLIS, J.

FOOTNOTES

FN1. During the short calendar, the defendant sought permission to submit additional cases to the court.   The court granted permission, and the defendant submitted several cases via an e-mail attachment, dated January 26, 2012..  FN1. During the short calendar, the defendant sought permission to submit additional cases to the court.   The court granted permission, and the defendant submitted several cases via an e-mail attachment, dated January 26, 2012.

Bellis, Barbara N., J.