Joseph Abate, Jr. et al. v. AAF (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 324.00)

FACTS

The plaintiff, Joseph Abate, Jr., surviving spouse and administrator of the estate of his decedent/spouse, Sharon Abate, brings this action against various defendants, including the moving defendant, GOJO Industries, Inc. (GOJO).  The fifth amended complaint, filed on August 17, 2011, alleges that “[t]he plaintiff was exposed to various asbestos containing products through direct and second-hand exposure while the spouse of the plaintiff's decedent was working in Connecticut as a professional auto mechanic from 1962–1990.   Decedent was also exposed to asbestos containing products while working alongside her husband at his garage.   Such exposure in Connecticut contributed in part or totally to the plaintiff's decedent's contraction of asbestos related [m]esothelioma and other asbestos-related pathologies.”

The first count alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and count two alleges a wrongful death claim under General Statutes § 52–555.   The third count alleges that the various defendants' conduct was grossly negligent, wilful and 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 a loss of consortium claim.

DISCUSSION

On August 17, 2012, the defendant, GOJO, filed its motion for summary judgment as to all claims brought against it by the plaintiff.   It moves on the ground that there are no genuine issues of material fact as to whether the plaintiff's spouse, Sharon Abate, inhaled respirable asbestos fibers from a GOJO product.

The defendant observes that the claims against it are based upon the decedent's alleged exposure to asbestos “from a Swiss Laboratory ‘Spray Under Coat’ “ from the plaintiff's use of this product.   The defendant acknowledges that it was the distributor of this product.   It argues that there is no evidence that the decedent was ever present during the use of a GOJO product and there is no evidence to support the plaintiff's claim that respirable asbestos fibers would have been released when the plaintiff used the product.   It maintains that, even if respirable fibers had been created during the plaintiff's use of the product, and the decedent was present during this use, the decedent would have been wearing a mask.   In his memorandum in opposition, filed on February 1, 2013, the plaintiff responds that the defendant has not proven the nonexistence of all genuine issues of material fact.   He claims that the decedent was exposed to asbestos in connection with the defendant's product and that no masks were worn.   The defendant responds, in its memorandum in reply to the plaintiff's opposition, that the plaintiff does not refute the defendant's position that the decedent was never in proximity to those using the defendant's product.   The defendant further contends that respirable asbestos fibers could not have been emitted during the plaintiff's use of the product and that the decedent would have worn a mask if she had been present during the product's usage.   In his supplemental memorandum in opposition, filed on March 4, 2013, the plaintiff maintains that his evidence demonstrates that the plaintiff frequently used the defendant's product, the defendant specifically failed to warn of the asbestos contained in its product and that, upon application, sealant products do release asbestos fibers.   Both the defendant and the plaintiff have filed various documents and case law in support of their respective positions with respect to the defendant's motion for summary judgment.

“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, 33 A.3d 205 (2012).   “Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

In support of its summary judgment motion, the defendant underscores excerpts of the plaintiff's deposition testimony, which was conducted on December 14, 2010.   The warnings on the front of the undercoating spray product were read into the record as follows:  “Danger, vapor harmful, extremely flammable, contents under pressure.   Read precautions on back panel.”   The warnings on the back panel continued as follows:  “Vapor harmful.   Avoid breathing of vapor or spray mist and prolonged contact with same.   Use with adequate ventilation.”   The plaintiff testified that he would have heeded the warnings by running a ceiling fan, cracking a window or door, and made sure his employees adhered to the same measures.   In addition, the plaintiff disclosed that he would have worn a dust mask and would have recommended that anyone working, or in the vicinity of, that type of product, should also wear a dust mask.   Further, the defendant argues that the plaintiff's evidence is insufficient because it fails to support the plaintiff's assertion that respirable asbestos fibers would have been released during the plaintiff's use of this product.   Rather, the defendant, citing to the plaintiff's expert, case law and certain federal regulations, maintains that the product at issue is “sticky” and “tar like” and that such asbestos-containing sealant products do not subject users, or those in proximity, to respirable asbestos fibers.   Referring again to the plaintiff's deposition testimony, the defendant insists that, even if respirable fibers had been created during the plaintiff's usage of the product, the decedent would have been wearing a mask.

The plaintiff notes that the decedent worked in the auto mechanic shop operated by the plaintiff, and that she worked in the front part of the shop and performed administrative, bookkeeping and reception duties for the business.   The plaintiff also cites to his deposition testimony, which indicates the following.   The plaintiff frequently used the product at issue for particular types of jobs and did not recall wearing a mask when he worked with the undercoating spray;  the only precautions taken to increase the ventilation around the product was to run a ceiling fan and to crack a window or door.   He also testified that “one of the hardest things to do is get the correct ventilation”;  and that the warning labels didn't “tell you how harmful these vapors are for how many feet away.   The man working in the next bay, is it going to affect him, you know, how about three bays down?”

The court finds that the defendant has not established the nonexistence of all genuine issues of material fact with respect to the adequacy of the warning on the product and, regardless of the adequacy, whether the decedent would have heeded that warning.   Further, the defendant has not established the nonexistence of genuine issues of material fact concerning whether the decedent's injuries could have been caused by the product, whether the decedent was in the presence of the product during its use, and, if so, whether she would have been wearing a mask.   Also, there remains a question of fact regarding whether respirable asbestos fibers would have been released during the plaintiff's use of the product.   The defendant has failed to dispel these genuine issues of material fact and, in addition, seeks to shift its burden to the plaintiff, claiming that the plaintiff's evidence is insufficient in this regard.   In its memoranda in support of its summary judgment, the defendant consistently argues that the plaintiff's evidence fails to dispel all factual issues with respect to the presence of the decedent during the use of the product, or that respirable fibers would have been released from the use of the product.

The defendant's arguments might be persuasive if the court were bound by Rule 56 of the Federal Rules of Civil Procedure, the federal rule governing summary judgments.   When explaining the movant's burden under Rule 56, the United States Supreme Court has observed that there is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.”   (Emphasis in original.)  Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 365 (1986).

Conversely, under Connecticut practice, the moving party has a heavier burden.   The movant has the burden to submit evidence to demonstrate the absence of all genuine issues of material fact and that it is entitled to judgment as a matter of law.   As set forth above, to satisfy this burden, the moving party must demonstrate “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., supra, 285 Conn. 11.

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

BELLIS, J.

Bellis, Barbara N., J.