Irene Taska, Administratrix of the Estate of Donald Taska v. ACMAT (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 155.00)

FACTS

On January 9, 2012, the plaintiff, Irene Taska, in her capacity as administratrix of the estate of Donald Taska, filed a third amended complaint in four counts against various defendants.¹  The complaint arises from Donald Taska's alleged second-hand exposure to various asbestos-containing products through his mother's employment and from his exposure, personally, as part of his own employment.

In count one, which is addressed to all of the defendants except for Park City Hospital, the plaintiff alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq, and the second count alleges a violation of Connecticut's wrongful death statute, General Statutes § 52–555.   Count three alleges that the various defendants' conduct was grossly negligent, wilful, wanton, malicious and/or outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, studies and reports all indicating that asbestos-containing products were hazardous.   Despite the existence of this information, the defendants allegedly failed to acknowledge or publish this information.   The fourth count alleges negligence as to the defendant Park City Hospital only.

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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “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.)  Id. “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)   Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

The defendant CBS Corporation moves for summary judgment on the basis that there are no genuine issues of material fact in dispute, and it is entitled to judgment as a matter of law.   The defendant contends that the plaintiff has failed to come forward with any admissible evidence establishing exposure to an asbestos-containing product.   The defendant has attached the plaintiff's answers to its interrogatories and requests for production in support of its motion for summary judgment.

The plaintiff, in her opposition memorandum, counters that the defendant has failed to establish the nonexistence of all genuine issues of material fact.   The plaintiff claims that Donald Taska was exposed to asbestos from the defendant's products through personal exposure at Park City Hospital and from second-hand exposure to asbestos residue brought home by his mother, Irene Taska, and her boyfriend, Martin Slabey.   The plaintiff has produced deposition excerpts from Donald Taska, Martin Slabey, Edward Wise, a co-worker of Martin Slabey, and David Raschke, a witness who saw Irene Taska in the vicinity of the boiler room.   The plaintiff also has attached the defendant's responses to interrogatories and an affidavit and deposition testimony from Dr. Edward C. Holstein.

In its reply memorandum, the defendant reiterates that it is entitled to judgment as a matter of law because the plaintiff's claim that Donald Taska was exposed to, and inhaled, asbestos dust from one of its products is not supported by the record.   The defendant has attached an excerpt of the deposition testimony of Edward Wise.

In this case, the defendant 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 demonstrate the existence of a genuine issue of fact that would justify a trial.  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).   Given this standard, the defendant in this case has failed to meet its burden on its motion for summary judgment.

The defendant's evidence has failed to eliminate every genuine issue of material fact with respect to establishing the absence of any of its allegedly asbestos-containing products at Park City Hospital.   For example, when Donald Taska was asked to identify and describe any samples, photographs or other depictions relating to the defendant's products that were within his custody or control, he objected to this interrogatory on several grounds and did not respond to this inquiry.   Similarly, the deposition testimony excerpt of Edward Wise is not particularly helpful to the defendant.   The deponent described the physical aspects of the defendant's pumps located at the hospital and merely attested that as far as he knew the pumps lacked asbestos coverings.   He further described some asbestos packing that he identified as coming “from Garlock.”   This evidence does not dispel all genuine issues of material fact, such as the issue of the existence of additional products of the defendant at Park City Hospital, i.e., air conditioning window units that one of the maintenance workers, Martin Slabey, “would have to say” contained asbestos insulation.

“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 him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant 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 ․ 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.  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In this case, the defendant impermissibly seeks to shift the burden of summary judgment to the plaintiffs by taking the position that the plaintiff has failed to meet her burden on summary judgment.   At the summary judgment stage of the proceedings, however, it is the movant's burden to establish that no genuine issue of material fact exists here with respect to Donald Taska's claimed exposure to any of this defendant's alleged asbestos-containing products, and the defendant has failed to meet its burden.  “[T]he 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 set forth above, the court denies the defendant's motion for summary judgment.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. The Case Detail lists “CBS Corporation” as the named defendant in this matter, and, as such, it moves for summary judgment in the following capacity:  “The defendant, CBS Corporation, a Delaware corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation (‘Westinghouse’ or ‘Defendant’), hereby moves for summary judgment ․.  FN1. The Case Detail lists “CBS Corporation” as the named defendant in this matter, and, as such, it moves for summary judgment in the following capacity:  “The defendant, CBS Corporation, a Delaware corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation (‘Westinghouse’ or ‘Defendant’), hereby moves for summary judgment ․

Bellis, Barbara N., J.