CTA v. A.L. Burbank & Co., Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 392.00)

FACTS

The plaintiffs, Paul Hammer, administrator CTA 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, Alfa Laval, Inc. 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 1950's.   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.   Sylvia Hammer brings a claim for a loss of consortium in count three.   Count four asserts that, since 1929, 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 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

The defendant filed its motion for summary judgment on April 20, 2012, accompanied by a memorandum of law and a number of exhibits in support.   It moves for summary judgment on the basis that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

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 argues that the plaintiffs have not created a material issue of fact with respect to whether the decedent was exposed to asbestos fibers from a product manufactured by this defendant.   The defendant contends that the plaintiffs have failed to produce any evidence that the decedent was exposed to respirable asbestos from any asbestos-containing product that it manufactured or sold.   Further, it maintains that the deposition testimony of Captain William Lowell, the plaintiffs' expert, does not constitute sufficient evidence that the decedent was exposed to asbestos from any Alfa Laval product.   As will be discussed, infra, the defendant also argues in its subsequent memoranda that, pursuant to maritime law, it is not liable for asbestos-containing parts manufactured or supplied by others.

The plaintiffs' opposition memorandum to the defendant's summary judgment motion, filed on August 30, 2012, counters that the defendant has not established the nonexistence of all genuine issues of material fact.   They maintain that, generally, steamships contained asbestos products that were released from ships' equipment during repairs and other stressors occurring while the ships were at sea.   They also contend that their evidence provides that the defendant's “Sharples and DeLaval” ¹ equipment were a substantial presence on several ships upon which the decedent served.

On October 2, 2012, the defendant filed a reply memorandum to the plaintiffs' opposition memorandum.   In this memorandum, the defendant moved “to adopt and incorporate by reference all the authorities cited and arguments made by Aurora Pump Company in [its] Motion for Summary Judgment dated August 7, 2012, and [its] Supplemental Memorandum of Law in Support of its Motion for Summary Judgment dated September 17, 2012.” ²  In a memorandum filed on December 18, 2012, the defendant refers to the ships' records and to the testimony of Lowell, the plaintiff's expert.   The defendant concludes that the plaintiffs rely on inadmissible and speculative evidence in support of their position that the decedent was exposed to asbestos-containing products of the defendant.   In addition, the defendant maintains that maritime law applies to this matter, and it emphasizes that it has no liability under maritime law because it is not liable for component parts that were manufactured or distributed by others.   Even if it were liable for such component parts, the defendant argues, there is no evidence of substantial asbestos exposure from such parts.

On January 25, 2013, the plaintiffs filed a supplemental opposition memorandum to the defendant's summary judgment motion.   They emphasize that new documents have been produced that highlight the decedent's daily activities, job responsibilities and resultant asbestos exposure.   According to the plaintiffs, such documents consist of letters to and from the decedent concerning ship issues and technical documents such as ships' engineering records and equipment manuals.

The defendant's memorandum in response to the plaintiffs' supplemental opposition memorandum, filed on January 30, 2013, asserts that “it lacked a duty to warn and therefore has no liability for any replacement component parts purportedly encountered by Mr. Hammer.”   It further observes that the newly-produced documents, referencing the defendant's “DeLaval oil purifier,” do not establish that the purifier was either manufactured by DeLaval or that the decedent suffered asbestos exposure from work performed on the purifier.

The plaintiffs filed several supplemental omnibus opposition memoranda on August 16, 2012, November 9, 2012 and December 3, 2012, respectively, as to each of the summary judgment motions filed by the various defendants.³  The memorandum filed on August 16, 2012, focuses on the “product identification” issues raised by each defendant.   They take the position that, given the nature of the decedent's work, coupled with the evidence presented, a reasonable trier of fact could infer that the decedent was exposed to the defendants' products.   The plaintiffs further argue that maritime law does recognize claims arising from external insulation and replacement parts.   Finally, they emphasize that the documents and evidence that they have submitted in support of their opposition to the defendants' motions are admissible and sufficient to create a genuine issue of material fact.   The omnibus memorandum filed by the plaintiffs on November 9, 2012, again, directed as to all of the moving defendants, reiterate their position that maritime law hold defendants liable for after-applied insulation as well as for replacement gaskets and packing.   The plaintiffs' December 3, 2012 omnibus memorandum solely addresses the choice of law issue, which this court has addressed, supra.

In summary, the defendant argues that the plaintiffs have failed to provide evidence establishing that the decedent was ever exposed to respirable asbestos from any asbestos-containing product manufactured and/or sold by it.   In addition, it argues that the plaintiffs' evidence (the ship records and Captain William Lowell's deposition testimony) are inadmissible and speculative.   Finally, the defendant contends that, even if the court admits the ships' records and the deposition testimony, the defendant is (1) not liable for asbestos-containing component parts that were manufactured by others, and, even if it were liable, (2) there is no evidence of a substantial asbestos exposure from such parts.

In support of its position, the defendant relies upon, inter alia, the deposition testimony of Lowell.   During the deposition, Lowell admitted that his knowledge concerning Alfa Laval products, including purifiers, that were aboard ships upon which the decedent served came from documents that been marked as exhibits in this case.   Lowell testified that DeLaval and Sharples purifiers had “some similarities” and were “uninsulated pieces of machinery.”   He stated that insulated heaters were connected or attached to the lube oil purifiers and the type of insulation utilized was “amosite felt.”   Lowell was asked:  “When there is a lube oil purifier heater with a lube oil purifier, are they generally paired?   And by that I mean made by the same manufacturer?”   Lowell responded:  “That's been my experience, yes.”   Lowell was then asked:  “So, if there was manufacturer A of the purifier, that same manufacturer would likely be the manufacturer of the heater?”   Lowell replied:  “Well, the heater comes with the purifier.”   Lowell was then asked:  “Okay. So your experience has been that they have come together or you have seen them together in place aboard ship?”   Lowell answered:  “Yes, sir.”   Further testimony was elicited concerning the normal operation of the purifiers and the heaters.   For example, when the purifiers were operating normally, the asbestos on the heaters was not disturbed;  in the event of an external leak, or a tube failure, however, the amosite felt would dampen.   Lowell was asked whether “in normal operation, not if you go in and do any maintenance and you may have to remove the amosite felt but just in the normal operation of a purifier that has a heater attached to it, is the amosite felt on the heater itself manipulated in any way during normal operation? ”   He responded that he “wouldn't say so.”   Again, Lowell was asked whether “the normal operation of the purifier itself [would] expose any of its operators to any asbestos” and he answered that he doubted it.   Nor did Lowell believe that a routine cleaning of a DeLaval purifier would expose its operator to any asbestos.   With respect to the decedent's activities, Lowell testified, for example, that the decedent, as a junior engineer on the vessel, the Pacific Victory, would have performed maintenance on the Sharple purifier on that ship.   Lowell, however, could not state with specificity what work the decedent may have performed on the purifier.   The court notes that Lowell was only queried concerning “routine cleanings” and the “normal operation” of the equipment at issues.

In its opposition memorandum to the defendant's summary judgment motion, the plaintiffs have enumerated fourteen ships, by name, and they indicate which of the defendant's lube oil purifiers and/or heaters were located aboard each ship.   The plaintiffs cite to the deposition testimony of their expert, Lowell, to demonstrate that the decedent served in various capacities, such as Chief Engineer, upon these ships and, for example, that he “would have spent a good deal of his time in the engine room ․ If there was any maintenance required, he might be supervising it, though it's entirely possible that he could still be doing hands-on maintenance.”

The defendant concludes that the plaintiffs have “provided no admissible evidence in support of her allegations that the decedent worked around products manufactured by Alfa Laval, asbestos-containing or otherwise.   The Alfa Laval products at issue in this motion do not contain asbestos.   The law is plain that Alfa Laval has no duty to warn arising out of products it did not manufacture.”

The defendant here has not established the nonexistence of all genuine issues of material fact with respect to whether the decedent allegedly was exposed to any of its asbestos-containing products.   For example, there are genuine issues of material fact with respect to whether the decedent suffered exposure from nonroutine work performed on the defendant's lube oil purifiers and/or heaters and whether the defendant even manufactured, distributed or sold the heaters that were attached to the lube oil purifiers aboard the ships upon which the decedent served.   In addition, the defendant impermissibly seeks to shift its evidentiary burden to the plaintiffs in this regard by arguing that the plaintiffs' evidence fails to dispel all factual issues with respect to whether the decedent was exposed to the defendant's alleged asbestos-containing products.   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.

In a supplemental memorandum in opposition, the plaintiffs have also submitted documents which reference DeLaval purifiers located on the ship, the SS Pine Tree State.   One exhibit consists of a letter from the decedent in his capacity as Chief Engineer on the SS Pine Tree State to his employer, indicating that “(o)ur only real problems are the seals in the boilers, the carbon packing on the main unit, and the need to clean the lube oil tanks.   We are using fine mesh strainers and are catching just about all there is, and the [p]urifier is on continuously.”   The second document is an Engineer's Passage Report which observes that the ship had a problem with a purifier seal.   The defendant responds to these “newly-discovered” documents as follows.   With respect to the letter, the defendant emphasizes that “[a]ssuming the original purifier remained on board, the documents do nothing to indicate that more than cleaning or routine maintenance to the purifiers was ongoing.”   Concerning the engineering report, the defendant observes that, “[t]here is nothing to indicate what was done to contain this purported leak.   Nor is there an indication as to which, if any, component parts were installed or replaced due to same, and that said components contained asbestos.

This brings the court to the defendant's argument that, under maritime law, it is not liable for asbestos-containing component parts manufactured or supplied by others, after-applied insulation and replacement gaskets and packing.   Unfortunately, the court is unable to apply maritime law to this issue given the present state of the record before it.   After a thorough review of the defendant's numerous briefs and hundreds of pages of documents in support, the court has not been able to discern to what component parts the defendant is referring.   The defendant has failed to provide the court with a factual predicate to which it may apply the precepts of maritime law.

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

BELLIS, J.

FOOTNOTES

FN1. The plaintiffs represent that Alfa Laval, Inc. is the successor to DeLaval and Sharples..  FN1. The plaintiffs represent that Alfa Laval, Inc. is the successor to DeLaval and Sharples.

FN2. The defendant, Aurora Pump Company, filed a motion for summary judgment on August 7, 2012, on the basis that the plaintiffs did not produce evidence to create an issue of fact with respect to the decedent's alleged asbestos exposure to a product manufactured, sold or distributed by Aurora Pump. The memoranda accompanying Aurora Pump's motion, and the record in support, are specific as to Aurora Pump's product—a pump allegedly located aboard ships upon which the decedent served during his career as a merchant marine..  FN2. The defendant, Aurora Pump Company, filed a motion for summary judgment on August 7, 2012, on the basis that the plaintiffs did not produce evidence to create an issue of fact with respect to the decedent's alleged asbestos exposure to a product manufactured, sold or distributed by Aurora Pump. The memoranda accompanying Aurora Pump's motion, and the record in support, are specific as to Aurora Pump's product—a pump allegedly located aboard ships upon which the decedent served during his career as a merchant marine.

FN3. In addition, the plaintiffs filed a Caseflow Request on October 2, 2012, asking the court to consider a series of exhibits;  (Entry No. 594);  that they had filed on October 1, 2012..  FN3. In addition, the plaintiffs filed a Caseflow Request on October 2, 2012, asking the court to consider a series of exhibits;  (Entry No. 594);  that they had filed on October 1, 2012.

Bellis, Barbara N., J.