Mary J. Russo v. A.O. Smith Corp. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 224.00)

FACTS

The plaintiff, Mary J. Russo, filed this four-count complaint on September 8, 2011, against various defendants, including the moving defendant, Riley Power Inc. Generally, she alleges that she “was secondarily exposed to various asbestos containing products through her father, brother and ex-husband's employment as insulators from 1946—1979.   Such exposure contributed in part or totally to the plaintiff's contraction of asbestos-related mesothelioma and other asbestos-related pathologies.”

Specifically, the first count alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq.   Count two alleges a conspiracy claim solely against the defendant Metropolitan Life Insurance Co. Count three 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 the plaintiff and to all humans who were exposed.   Count four asserts negligence pursuant to General Statutes § 52–577c(a) against Riley Power Inc and three other defendants.

DISCUSSION

On October 30, 2012, the defendant filed a motion for summary judgment and memorandum in support on the basis that summary judgment should be granted in its favor because the plaintiff has failed to offer any evidence that she was exposed to asbestos from a product that the defendant manufactured, distributed or sold that would have contributed to her injuries or medical condition.   The defendant observes that the plaintiff claims that she developed mesothelioma and other asbestos-related pathologies due to secondary exposure to asbestos-containing products through the employment of her father, brother and ex-husband as insulators.   The defendant argues, however, that the plaintiff has not produced any admissible evidence in support of her allegations, therefore, it concludes that it is entitled to judgment as a matter of law.   The defendant has attached several exhibits in support of its motion.

In her memorandum in opposition, filed on October 12, 2012,¹ the plaintiff responds that her father, George E. Bishop, was a union insulator and was employed by the defendant, who contracted with union insulators to insulate its boilers and boiler-related equipment.   The plaintiff contends that, as a result of employment with the defendant, the plaintiff's father worked with the defendant's asbestos-containing products.   She argues that because her father worked with such products, asbestos fibers were released from the defendant's products into her father's home through his work clothes.   The plaintiff also cites to the deposition testimony of George Close, a co-worker of the plaintiff's father.   Close testified that he and the plaintiff's father worked on or around one of the defendant's boilers while employed at American Cyanamid.   The plaintiff further emphasizes that there is no safe threshold for exposure to asbestos.   She concludes that a “reasonable jury could easily determine” that the plaintiff was exposed to asbestos as a result of the defendant's products, therefore, summary judgment must be denied.   The plaintiff has attached various exhibits in support of her opposition to the defendant's summary judgment motion.

The defendant filed a reply memorandum to the plaintiff's memorandum in opposition on December 7, 2012, responding to the plaintiff's claim that the plaintiff's father may have been exposed to asbestos through his work for the defendant, or while employed at the American Cyanamid facility.   The defendant argues that the plaintiff's evidence fails to reveal anything beyond the fact that the plaintiff's father was employed by the defendant from January 1949 through March 1949 and that American Cyanamid may have purchased one of the defendant's boilers.   Further, the defendant contends that the June 3, 1985 deposition testimony of Close is not admissible because it was taken in connection with another action and the defendant was neither a party to that case, nor represented by counsel at that deposition.   By way of a supplemental opposition memorandum, filed on February 26, 2013, the plaintiff emphasizes that it remains the defendant's burden to produce admissible evidence that dispels all genuine issues of material fact.   The defendant filed a reply memorandum to the plaintiff's supplemental opposition memorandum on March 1, 2013, in which it reiterated its previous position that there is an absence of evidence demonstrating that the plaintiff's father ever worked with asbestos-containing products while employed by the defendant.   On April 17, 2013, the plaintiff filed a supplemental omnibus opposition to all defendants' motions for summary judgment, attaching a certified copy of George E. Bishop's social security statement of earnings for the years 1937 through 1982.

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).

The defendant observes that the plaintiff relies upon the prior testimony of the defendant's designated corporate witness, J. Michael Smith, to establish that sometimes the defendant hired insulators to perform work on the defendant's boilers.   The defendant emphasizes, however, that the plaintiff ignores the detailed testimony that Smith provided at that deposition concerning the use of non-asbestos insulation.

The plaintiff submitted evidence that her father was employed as a union insulator, that the defendant contracted with union asbestos insulators to insulate its boilers and boiler-related equipment and that, in 1949, the plaintiff's father was employed by the defendant to perform insulation work.   In addition, the plaintiff's brother, George F. Bishop, testified at a deposition that their father brought his work clothes home to be laundered and he left them “smack next to the dinner table.   So the fact that [the plaintiff] has exposure is through this great proximity there with no exaggeration.   Other than my father, she was the one closest to the clothes.”

In the present case, the defendant's evidence fails to dispel all genuine issues of material fact concerning the alleged exposure of the plaintiff to the defendant's alleged asbestos-containing products.   The court is aware that “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 finds that the defendant has not met its burden and denies the defendant's motion for summary judgment.

BELLIS, J.

FOOTNOTES

FN1. The plaintiff's memorandum in opposition to this defendant's motion for summary judgment was filed prior to the filing of the defendant's actual summary judgment motion..  FN1. The plaintiff's memorandum in opposition to this defendant's motion for summary judgment was filed prior to the filing of the defendant's actual summary judgment motion.

Bellis, Barbara N., J.