Paul Hammer, Administrator to the Estate of Irving Hammer and Sylvia Hammer v. A.L. Burbank & Co., Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 532

The plaintiffs, Paul Hammer, administrator to the estate of Irving Hammer, and Sylvia Hammer, as surviving spouse of the decedent, Irving Hammer, filed a sixth amended complaint on June 6, 2013, against various defendants, including the moving defendant, Warren Pumps, LLC (“the defendant”).   Generally, the complaint claims that the decedent was exposed to various asbestos-containing products of the defendants “while working as a Merchant Marine during the years 1944–1979 and as an inspector during the 1950s.   Such exposure in Connecticut contributed in part or totally to the plaintiff's contraction of asbestos-related [m]esothelioma and other asbestos-related pathologies.”   Specifically, count one alleges liability pursuant to the Connecticut Product Liability Act, General Statutes § 52–572m et seq.   The second count alleges a claim under Connecticut's Wrongful Death Statute, General Statutes § 52–555 and Sylvia Hammer brings a loss of consortium claim in the third count.   Count four asserts that, since 1929, all of the defendants 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 decedent and to all human beings who were exposed to such products.   Accordingly, the plaintiffs allege that all of the defendants' misconduct was grossly negligent, wilful, wanton, malicious and/or outrageous.   Count five realleges the allegations contained in the preceding counts and is directed against, inter alia, Shipcentral, Ltd.

II

DISCUSSION

On July 27, 2012, the defendant filed its motion for summary judgment on the ground that the “[p]laintiff has not identified exposure to any product manufactured, sold, or distributed by Warren.   Without some showing of exposure to a product manufactured, sold, or distributed by Warren, the [p]laintiff cannot establish causation.”   The defendant also argues that under federal maritime law it is not liable for replacement asbestos-containing component parts that it did not manufacture, sell or distribute.   The defendant has filed several memoranda with accompanying documentation in support of its summary judgment motion.¹

The plaintiffs filed their initial memorandum in opposition, specifically directed at this defendant's summary judgment motion, on August 30, 2012, accompanied by various exhibits in support.²  The plaintiffs respond that the defendant has failed to establish the nonexistence of all genuine issues of material fact and that the evidence actually demonstrates that “[n]umerous pieces of substantial Warren Pumps equipment” were used aboard several steamships upon which the decedent served.   The plaintiffs further argue that the deposition testimony of their expert, Captain William Lowell, is admissible.   Finally, they maintain that the defendant is liable for asbestos component and replacement parts.

As a preliminary matter, this court previously concluded that federal maritime law would govern the substantive aspects of the defendant's motion for summary judgment.   See Memorandum of Decision Re Defendants' Motions for Determination of Choice of Law, July 8, 2013, Docket Item No. 752.   The court utilizes Connecticut law, however, when determining the procedural aspects of the defendant's motion;  see People's United Bank v. Kudej, 134 Conn.App. 432, 438, 39 A.3d 1139 (2012) (Connecticut imposes foreign substantive law upon matters brought here from another forum and applies Connecticut law to all procedural matters arising therefrom).   Accordingly, the court will apply the Connecticut standard relative to the parties' burdens on a motion for summary judgment.

Practice Book §§ 17–44 to 17–51 govern Connecticut's summary judgment procedure.   Specifically, “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 attaches an excerpt of Lowell's deposition testimony.   Lowell was asked whether he could provide any specific testimony about the work the decedent had performed on any given piece of equipment during the period of time he spent aboard a particular ship.   Lowell responded that “I would concede the point that I do not have any specific knowledge of what Mr. Hammer did on any given day that he was aboard those ships.   I can tell you what chief engineers would do and first engineers and second engineers and third engineers would do, and I can define and give you a description of a typical day.”   The defendant has also attached a copy of the plaintiffs' answers to the defendant's interrogatories and requests for production, which the court has reviewed.   The court concludes that this evidence does not dispel any genuine issue of material fact.

The plaintiffs allege that the decedent was exposed to asbestos-containing products while working as a merchant marine during the years 1944 to 1979 and as an inspector during the 1950s.   They argue that the defendant has admitted that its pumps contained a variety of asbestos-containing products, and that its products were aboard several ships upon which the decedent worked.   The plaintiffs, relying on Connecticut caselaw, emphasize that Lowell's deposition testimony is relevant and admissible.   See Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 530, 562 A.2d 1100 (1989) (despite lack of specific witness testimony, reasonably inferrable that decedent exposed to defendant's asbestos products based on work he engaged in and length of his employment).

In response, the defendant insists that the plaintiffs have failed to meet their evidentiary burden concerning whether the decedent was exposed to respirable asbestos from any product of the defendant.   As this court has consistently emphasized, 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).   Under Connecticut practice, however, 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.   In order 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.

Accordingly, for the reasons set forth above, the court denies the defendant's motion for summary judgment.

BELLIS, J.

FOOTNOTES

FN1. The defendant filed the following additional pleadings in support of its motion for summary judgment:  Docket Item No. 580 (filed 9/21/2012);  Docket Item No. 587 (filed 9/28/2012);  Docket Item No. 632 (filed 12/5/2012);  Docket Item No. 653 (filed 12/18/2012);  Docket Item No. 685 (filed 2/1/2013)..  FN1. The defendant filed the following additional pleadings in support of its motion for summary judgment:  Docket Item No. 580 (filed 9/21/2012);  Docket Item No. 587 (filed 9/28/2012);  Docket Item No. 632 (filed 12/5/2012);  Docket Item No. 653 (filed 12/18/2012);  Docket Item No. 685 (filed 2/1/2013).

FN2. The remainder of the plaintiffs' memoranda have been filed as “omnibus objections” and are directed at the motions for summary judgment filed by all of the defendants in this case:  Docket Item No. 552 (filed 8/16/2012);  Docket Item No. 608 (filed 11/9/2012);  Docket Item No. 623 (filed 12/3/2012);  Docket Item No. 668 (filed 1/3/2013);  Docket Item No. 670 (filed 1/7/2013);  Docket Item No. 671 (filed 1/15/2013)..  FN2. The remainder of the plaintiffs' memoranda have been filed as “omnibus objections” and are directed at the motions for summary judgment filed by all of the defendants in this case:  Docket Item No. 552 (filed 8/16/2012);  Docket Item No. 608 (filed 11/9/2012);  Docket Item No. 623 (filed 12/3/2012);  Docket Item No. 668 (filed 1/3/2013);  Docket Item No. 670 (filed 1/7/2013);  Docket Item No. 671 (filed 1/15/2013).

Bellis, Barbara N., J.