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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 192.00)

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.   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 plaintiffs allege a violation of the Connecticut Products 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.   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.)  Grimm v. Fox, 303 Conn. 322, 329 (2012).

The defendant General Electric (“GE”) moves for summary judgment on the basis that the discovery in this case does not create an issue of fact as to whether GE's conduct caused or contributed to Donald Taska's alleged injury.   The defendant contends that the plaintiff has failed to come forward with any admissible evidence establishing Donald Taska's exposure to an asbestos-containing product manufactured or distributed by this defendant.   The defendant has attached Donald Taska's jobsite list, an excerpt from David Raschke's deposition transcript, and case law.

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 insists 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 attached depositions from Donald Taska and Martin Slabey, who were both employed in the maintenance department of the hospital.   She has also attached the deposition testimony of David Raschke and Ed Wise, co-workers of Martin Slabey's in the maintenance department of Park City Hospital.   In addition, she has attached the defendant's answers to interrogatories, a deposition and affidavit from Dr. Edward C. Holstein, and case law from various jurisdictions.

In its reply memorandum, the defendant observes that although the plaintiff's evidence reveals that David Raschke testified that there were GE motors at the hospital in the “boiler room where ․ Irene Taska worked,” he further testified that neither the motors nor the attached pumps were insulated.   The defendant emphasizes that David Raschke later revised his testimony to testify that he had no idea whether any of the pumps were GE pumps.   Further, it claims that there is no evidence to support the conclusion that Irene Taska carried asbestos fibers from a GE product home where Donald Taska was exposed by inhaling such fibers, nor is there evidence that Donald Taska could have inhaled fibers from Martin Slabey's clothing.   The defendant has attached excerpts of Donald Taska's and David Raschke's deposition testimony to its reply memorandum.

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).   Accordingly, the defendant must establish the nonexistence of any genuine issues of material fact concerning Donald Taska's claimed exposure to the defendant's alleged asbestos-containing products in existence at Park City Hospital.

The defendant's responses to interrogatories indicates that it manufactured many types of electric motors, “a small fraction of which (less than one percent) may have contained certain internal component materials that may have contained some quantity of encapsulated chrysotile.”   The defendant also responded that “GE's electric motors were not insulated with thermal insulation materials, asbestos-containing or otherwise.”   It further answered that “to the best of GE's knowledge, no warning regarding the encapsulated chrysotile-containing components that may have been contained within some GE motors appeared on the surface of the motors.”   David Raschke's deposition testimony indicates that GE motors were housed at the hospital but were not insulated on the outside.   He indicated that GE pumps were “on the units, on the AC units and heating units, the motors.”   Upon further questioning, David Raschke expressed uncertainty as to whether the pumps were GE pumps, but, shortly thereafter, he responded “[y]eah, to the pump itself, it could be a GE pump.   I know the motors were Westinghouse and GE.” Ed Wise, another hospital maintenance worker, testified that when he removed the packing from these pumps, a great deal of dust and fibers was created.   The old packing would break apart and then would be thrown into buckets for subsequent disposal.

There was testimony that Martin Slabey, Irene Taska's boyfriend, who was employed as a maintenance worker at Park City Hospital, did not change from his work uniform when he left for the day.   Evidence was submitted that at the end of her work day, Irene Taska often remained with Martin Slabey in his work areas, including the maintenance shop and the boiler room while she waited for him to finish his duties.   There was also evidence that he often gave her a ride home and would stop in and stay for dinner.   The evidence also indicates that at times, Donald Taska also would ride home with Martin Slabey at the end of Martin Slabey's work day.   Donald Taska testified that he often visited his mother at the hospital and had breakfast with her in the hospital cafeteria.   The hospital kitchen and dining room were located near the boiler room and, during the spring and summer months, the boiler room door was often left open.   Finally, Donald Taska, who lived with his mother, Irene Taska, testified that he was responsible for doing the family's laundry.

“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).

At the summary judgment stage of the proceedings, 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.   Here, the evidence produced by the defendant does not exclude doubt and demonstrate the truth of the matter concerning whether one of its motors, containing a quantity of encapsulated chrysotile, existed at the Park City Hospital site, and, if so, whether such chrysotile may have impacted Donald Taska's alleged condition.  “[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.

BELLIS, J.

Bellis, Barbara N., J.