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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 181.00)

FACTS

The plaintiff, Mary J. Russo, filed this four-count complaint on September 8, 2011 against various defendants, including the moving defendant, ADC Supply Co. Generally, she alleges that she was “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 four other defendants.

DISCUSSION

On August 17, 2012, the defendant filed a motion for summary judgment and memorandum in support on the basis that “summary judgment must be granted in favor of ADC Supply Co. because there is no evidence in this case that the [p]laintiff was exposed to any asbestos-containing product manufactured, sold, or supplied by ADC Supply Co., or that any such product was a substantial factor in causing her alleged illness.”   For example, the defendant emphasizes that the deposition testimony in this case fails to establish that the plaintiff's ex-husband, brother or father were exposed to any asbestos-containing products manufactured sold or supplied by this defendant.   The defendant has attached several exhibits in support of its motion.

In her memorandum in opposition, filed on October 9, 2012, the plaintiff contends that the defendant has failed to negate all questions of material fact.   She emphasizes that the defendant is the last in a line of ADC entities and that it bears responsibility for the previous ADC entities.   She argues that the connection between herself and the defendant arises from the work her father, George E. Bishop, performed as an asbestos insulator for Asbestos Distributors Corp. and from the work of her brother, George F. Bishop, with asbestos-containing products distributed by the defendant.   The plaintiff has attached various exhibits in support of her opposition to the defendant's summary judgment motion.

The defendant filed a reply memorandum on December 5, 2012, and it attached several exhibits in support.   The defendant relies on a previous decision by this court, Dineen v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. 09 5018435 (July 1, 2011, Bellis, J.), for the proposition that when a plaintiff has failed to identify any of the defendant's products, particularly in the complaint or on a jobsite list, as either asbestos-containing or as a substantial factor in causing the plaintiff's harm, a defendant prevails on its summary judgment motion.¹  In addition, the defendant claims that the plaintiff's evidence reveals that neither the plaintiff nor her brother had knowledge of the products with which her father worked.   The defendant further contends that the plaintiff has failed to establish successor liability with respect to its relationship with previous entities.   Finally, the defendant opposes the plaintiff's evidence on the basis that it is inadmissible hearsay.

On April 17, 2013, the plaintiff filed a supplemental omnibus objection to all of the defendants' motions for summary judgments.   The plaintiff attached an exhibit to her supplemental objection—a certified copy of George E. Bishop's social security statement of earnings for the years 1937 through 1982.   As stated above, George E. Bishop is the plaintiff's father.

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 submitted evidence that the plaintiff testified that she did not have personal knowledge regarding any of the products with which her father had worked.   She recalled that, during the 1960s and the 1970s, her father had worked at a few sites such as Macy's and Malley's in New Haven, the Bridgeport Powerhouse, the Nautilus in New London and some sites in Greenwich.   In addition, the defendant claims that the plaintiff's brother, George F. Bishop, had no knowledge of the products with which his father may have worked.

The plaintiff submitted evidence demonstrating that her father had worked as an asbestos insulator for Asbestos Distributors Inc. during the 1940s, for Asbestos Distributors Corp, during the 1940s, 1950s and the 1960s, and for ADC Supply Corp. during the 1960s and the 1970s.   The plaintiff has also attached the deposition testimony of John Lujick, a former employee of Asbestos Distributors Corp. and of ADC Contracting and Supply Corp. Lujick testified that when he was employed at Asbestos Distributors Corp., from the years 1954 or 1955 to 1964 or 1965, the company's business was “[d]istributing asbestos.”   Lujick explained that “[a]t that time all the pipe covering was made out of asbestos and all the things that are made out of fiberglass now were made out of asbestos then.”   He elaborated that ADC insulators always used ADC-supplied products.   In addition, the deposition of the plaintiff's brother, George F. Bishop, demonstrates 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. In Dineen v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. 09 5018435 (July 1, 2011, Bellis, J.), the court determined that “[t]he exhibits properly submitted by the plaintiffs do not present any genuine issues of material fact as to whether the defendant's products contained asbestos, whether [the plaintiff] was exposed to or came into contact with the defendant's asbestos-containing products or whether such exposure was a substantial factor in causing the plaintiff's injuries.”  Id. Conversely, in the present case, the totality of the evidence demonstrates that there are questions of material fact with respect to whether the asbestos-containing products supplied by the defendant were present at the job sites where the plaintiff's father worked and whether the plaintiff suffered exposure when her father brought his alleged asbestos-laden work clothing home to be laundered..  FN1. In Dineen v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. 09 5018435 (July 1, 2011, Bellis, J.), the court determined that “[t]he exhibits properly submitted by the plaintiffs do not present any genuine issues of material fact as to whether the defendant's products contained asbestos, whether [the plaintiff] was exposed to or came into contact with the defendant's asbestos-containing products or whether such exposure was a substantial factor in causing the plaintiff's injuries.”  Id. Conversely, in the present case, the totality of the evidence demonstrates that there are questions of material fact with respect to whether the asbestos-containing products supplied by the defendant were present at the job sites where the plaintiff's father worked and whether the plaintiff suffered exposure when her father brought his alleged asbestos-laden work clothing home to be laundered.

Bellis, Barbara N., J.