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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 592

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, General Electric Company (“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

The defendant filed its motion for summary judgment on October 1, 2012, accompanied by a memorandum of law.   It moves for summary judgment on the basis that there are no genuine issues of material fact that the decedent inhaled respirable fibers from one of its products.   In its accompanying memorandum of law, the defendant adopts the memoranda of law submitted by the defendant Aurora Pump Company and IMO Industries.   In addition, the defendant states that “[w]ith respect to the questions relating to the testimony of Capt. Lowell, GE is similarly situated and adopts the arguments advanced by these co-defendants.” ¹

On December 17, 2012, the defendant filed a supplemental memorandum of law addressing the issues of choice of law and after-applied insulation to its products.   The defendant emphasizes that, under federal maritime law, it is only liable for its own products that it has placed into the stream of commerce and is not liable for insulation later affixed by the shipbuilder or owner, even if the defendant had knowledge that its equipment later would be insulated.   The defendant maintains that the products at issue are “bare metal marine turbines” and it emphasizes that it “cannot be held liable for any defects in after-applied insulation made by another company.”

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, through adopting its codefendants' arguments, the defendant argues that the plaintiffs have not produced any evidence establishing that the decedent inhaled respirable asbestos from any of its products.   In addition, it argues that the testimony of the plaintiffs' expert, Captain William Lowell, is derived from his review of unauthenticated documents.   The defendant contends that the plaintiffs have failed to produce any evidence that the decedent was exposed to respirable asbestos from any of its products.   Further, it maintains that Lowell's deposition testimony does not constitute sufficient evidence that the decedent was exposed to asbestos from the defendant's products.   It further contends that, pursuant to maritime law, it is not liable for insulation applied by shipowners or others.

The court observes that the moving defendant represents that the products at issue are bare metal marine turbines.   This defendant relies upon its codefendants' memoranda and exhibits, however, which are specific as to the products of those codefendants.   The defendant has not provided the court with any evidence that would assist the court in determining whether there exists a genuine issue of material fact with respect to whether the decedent could have been exposed to respirable asbestos fibers from one of its products.   This brings the court to the defendant's argument that, under maritime law, it is not liable for after-applied insulation to one of its products.   Unfortunately, the court is unable to apply maritime law to this issue given the present state of the record before it.   The defendant has not provided the court with a factual predicate, i.e., any evidence with respect to the nature of its products, to which the court may apply the precepts of maritime law.

Through the auspices of its adoptive memoranda, the defendant also argues 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 court has reviewed the record and, based upon the defendant's memorandum of law, the court concludes that the defendant has adopted the following pleadings:  Aurora Pump Company, Docket Item Nos. # 538 (filed 8/7/2012);  # 539 (filed 8/7/2012);  # 570 (filed 9/17/2012);  and IMO Industries, Docket Item No. # 495 (filed 6/22/2012)..  FN1. The court has reviewed the record and, based upon the defendant's memorandum of law, the court concludes that the defendant has adopted the following pleadings:  Aurora Pump Company, Docket Item Nos. # 538 (filed 8/7/2012);  # 539 (filed 8/7/2012);  # 570 (filed 9/17/2012);  and IMO Industries, Docket Item No. # 495 (filed 6/22/2012).

Bellis, Barbara N., J.