Paul Hammer et al. v. A.L. Burbank & Co., Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 411

FACTS

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, Spirax Sarco, Inc. (“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.”   All the individual counts are directed toward each of the named defendants, including the moving defendant.   Count one alleges liability pursuant to the Connecticut Product Liability Act, General Statutes § 52–572m et seq.   The second count alleges claims under General Statutes § 52–555, Connecticut's wrongful death statute, 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 their 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 April 20, 2012, the defendant filed its motion for summary judgment as to all claims against it on the basis that “the [p]laintiff has not identified exposure to any product manufactured, sold, or distributed by Spirax Sarco.   Without some showing of exposure to a product manufactured, sold, or distributed by Spirax Sarco, the [p]laintiff cannot establish causation.”   The defendant contends that the testimony of the plaintiff's expert, Captain William Lowell, that the decedent may have been exposed to the defendant's products, specifically steam traps, is insufficient to defeat the defendant's summary judgment motion.   The defendant further argues that, pursuant to maritime law, it is not liable for harm caused by products 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 June 28, 2012, accompanied by various exhibits in support.   The remainder of the plaintiffs' memoranda are characterized as “omnibus objections” and are directed at the motions for summary judgment that have been filed by the other defendants in this case.²  The plaintiffs respond that the defendant has failed to establish the nonexistence of all genuine issues of material fact.

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 has attached a copy of the complaint, the plaintiffs' answers to the defendant's interrogatories and production requests and an excerpt of Lowell's deposition testimony.   During his deposition, Lowell was asked about the presence of the defendant's steam traps on certain ships upon which the decedent served.   Lowell responded that the “backup data” indicated that the defendant's steam traps were located on two of the ships, and Lowell testified that such steam traps “more likely than not ․ [were] insulated, unless somebody can show me something to the contrary.”   The defendant argues further that the plaintiffs “[have] failed to establish crucial facts which are necessary to show that Spirax Sarco was a substantial contributing factor of Mr. Hammer's mesothelioma.”

The plaintiffs' complaint alleges 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 maintain that the defendant's steam traps were present in the engine rooms of several ships upon which the decedent served as an engineer and as a chief engineer.   The plaintiffs emphasize that their evidence demonstrates that the traps located in the engine room were insulated, and that the defendant's steam traps contained asbestos, and that the decedent was exposed to the asbestos from the defendant's products.

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 of the defendants' products.   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.

The evidence presented by the defendant in this case fails to establish the absence of all genuine issues of material fact.   For example, there are genuine issues of material fact concerning the type of maintenance required by the steam traps aboard the ships upon which the decedent served, and with respect to the decedent's exposure to the respirable asbestos fibers from the defendant's products.   Accordingly, for the reasons discussed, 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 Nos. 518, 522 (filed 7/17/2012);  Docket Item No. 652 (filed 12/18/2012);  Docket Item No. 679 (filed 1/30/2013).   The court has not referenced the defendant's memoranda filed in support of its motion for a determination of law because the court previously has rendered a decision with respect to that issue..  FN1. The defendant filed the following additional pleadings in support of its motion for summary judgment:  Docket Item Nos. 518, 522 (filed 7/17/2012);  Docket Item No. 652 (filed 12/18/2012);  Docket Item No. 679 (filed 1/30/2013).   The court has not referenced the defendant's memoranda filed in support of its motion for a determination of law because the court previously has rendered a decision with respect to that issue.

FN2. The plaintiffs also have filed the following memoranda in opposition:  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 plaintiffs also have filed the following memoranda in opposition:  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.