August Cavallero, Executor of the Estate of Sumiko Cavallero et al. v. Agway, Inc. et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 209.00)

FACTS

This action arises out of Sumiko Cavallero's alleged secondary exposure to various asbestos-containing products during the 1960s and 1970s during her spouse's employment as a plant worker and various home repairs, renovations and upkeep.   The plaintiff ¹ claims that such exposure in Connecticut contributed to Sumiko Cavallero's asbestos-related mesothelioma and other asbestos-related pathologies.

By way of a second amended complaint filed on January 9, 2012, the plaintiff brings this action against numerous defendants in his capacities as executor of the estate of Sumiko Cavallero and as her surviving spouse.   Count one alleges a violation of the Connecticut Products Liability Act, General Statutes § 52–572m et seq., and the second count alleges a cause of action pursuant to General Statutes § 52–555, Connecticut's wrongful death statute, and/or General Statutes § 52–572m.   The third count claims a loss of consortium, and count four asserts 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 Sumiko Cavallero and to all humans who were exposed to such products.

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.)  Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).

The defendant Molex, Inc., moves for summary judgment on the ground that the plaintiff has failed to submit competent or admissible evidence to establish that Sumiko Cavallero was exposed to asbestos from any product manufactured, distributed or sold by it.   The defendant observes that the plaintiff has submitted certain evidence that the plaintiff contends demonstrates that products manufactured, sold or distributed by the defendant contained asbestos.   The defendant maintains that such evidence constitutes inadmissible hearsay.   In support of its motion, the defendant offers the plaintiff's discovery responses, deposition testimony, a chemical laboratory report, and case law.

In its memorandum in opposition, the plaintiff contends that the defendant has failed to carry its burden to prove the nonexistence of all genuine issues of material fact and that such issues remain with respect to whether the plaintiff worked around the defendant's products and whether the plaintiff's spouse was exposed to asbestos as a result.   The plaintiff adamantly concludes that it need not “lay out all of his evidence at the summary judgment stage or spoon feed his case-in-chief to the [defendant].”   In support of his opposition, the plaintiff has attached deposition testimony, a chemical laboratory report, and case law.

The defendant's reply brief reiterates that the plaintiff offers no evidence that the plaintiff worked on any of its products.   It observes that the plaintiff's attorney purchased a “vintage, Pepsi-licensed Vendolator vending machine” and has provided a ChemScope testing report that analyzes the machine.   The defendant objects to the vintage vending machine on the basis of irrelevance and inadmissibility.   It emphasizes that the plaintiff fails to offer evidence that the plaintiff worked on or with any of the defendant's products.   The defendant further maintains that, even if the vintage vending machine was relevant evidence, and the plaintiff worked with the exact model and type as that tested in the ChemScope report, “and assuming the machine he worked with contained the exact Molex product identified as asbestos-containing in the ChemScope report,” there is no evidence that Sumiko Cavallero was exposed to the defendant's product.

In the present case, as the defendant is the movant on 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 [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.”  (Internal quotation marks omitted.)  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).   Therefore, here, the defendant must establish that there are no genuine issues of material fact that the plaintiff was not exposed to a product of the defendant, and that Sumiko Cavallero was not exposed to asbestos as a result of the plaintiff's alleged contact.

The second amended complaint alleges that Sumiko Cavallero was exposed to various asbestos-containing products from the 1960s through the 1970s.   Evidence was submitted that from 1955 to 1965, the plaintiff was employed as a soda vending and fountain machine repairman in Pepsi–Cola's vending department.   The following evidence was also submitted.   Pepsi had several brands of vending machines out in the field at that time, including Choice Vend, Vendolator, Beverage–Air, Victor products and Booth.   Specifically, the plaintiff was involved in “refrigeration, [fixing] coin changers ․ locks, dispensing mechanisms inside the equipment.”  (Dft.Exh. C, p. 64.)   Although he was unsure as to whether the insulation inside the machines contained asbestos, the plaintiff explained that “[t]here's, I understand, stuff that went around the pipes where the evaporators were, that was like a gunk that had asbestos in it.”  (Dft.Exh. C, pp. 65–66.)   The plaintiff testified that, during the course of his work, he would have to disturb the pipes and the insulation on the pipes, including the “gunk” surrounding the evaporator pipes, while taking the machines completely apart in order to reengineer them.   While he worked as a repairman, the plaintiff testified that, at the beginning of his workday, he put his uniform on at home, and, at the end of the day, he removed his uniform at home.   He explained that the uniforms he wore from work to his home were extremely dirty, and, after removing his uniforms, he threw them in a hamper and his wife laundered them.   In 1965, the plaintiff was promoted to a vending manager, and he began wearing a suit to work, and rarely performed vending and fountain machine repair work.

The defendant takes the position that the court should grant its motion because the plaintiff has offered no evidence demonstrating that Sumiko Cavallero was exposed to asbestos from any products associated with this defendant.   However, it is the movant's burden to “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).   Here, the defendant has not removed all real doubt as to all genuine issues of material fact in this case that the plaintiff was not exposed to any asbestos-containing product associated with this defendant and that Sumiko Cavallero could have suffered exposure as a result.

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).   For the reasons discussed above, the court denies the defendant's motion for summary judgment.

BELLIS, J.

FOOTNOTES

FN1. August Cavallero will be referred to as the plaintiff..  FN1. August Cavallero will be referred to as the plaintiff.

Bellis, Barbara N., J.