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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 448

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, FMC Corporation (“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 of 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 May 2, 2012, the defendant filed its motion for summary judgment as to all claims against it, accompanied by exhibits in support.   The defendant moves on the basis that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.   The defendant contends that the plaintiff's expert, Captain William Lowell, has testified that the decedent may have been exposed to the defendant's products, specifically pumps, but such testimony is insufficient to defeat the defendant's summary judgment motion.   In their July 9, 2012 memorandum filed in opposition to this defendant's summary judgment motion, the plaintiffs respond that the defendant has failed to demonstrate the nonexistence of all genuine issues of material fact.   The plaintiffs also have submitted various documents in support of their opposition memorandum.   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.¹  The defendant's reply to the plaintiffs' opposition memorandum emphasizes that “the speculative testimony of a paid expert witness that is unreliable and unsubstantiated” constitutes the plaintiffs' sole evidence in this case.   The defendant maintains that the plaintiffs, as the parties opposing summary judgment, have not met their affirmative obligation as the party opposing summary judgment.   Accordingly, it concludes that it is entitled to summary judgment.

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, the plaintiffs' expert witness disclosure document, the decedent's jobsite list, and an excerpt of Lowell's deposition testimony.   During his deposition, Lowell was asked whether he could specifically testify as to whether the decedent would have changed the packing on certain products, including the defendant's feed pumps, that were aboard the ships upon which the decedent served.   Lowell responded that he could not answer such questions because he did not know the decedent.

The plaintiffs respond that Lowell testified that the defendant's pumps were used aboard several ships upon which the decedent served, and that the decedent, in his capacity as an engineer, would have been responsible for conducting surveys upon, opening, and examining the defendant's feed pumps.   Lowell also explained that, when conducting such surveys, assuming the decedent was present, “more likely than not” the decedent was exposed to asbestos from such a process.   Lowell further elaborated that there were asbestos-containing materials associated with the defendant's feed pumps, the packing would have to be changed and the insulation would have to be disposed of, and that the decedent would, at least, have been responsible for overseeing that job.   The plaintiffs also emphasize that the defendant has admitted that some of its pumps incorporated encapsulated chrysotile asbestos.

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.   The defendant maintains that it “cannot show that [the decedent] did not work with or around an FMC product because there has been no evidence whatsoever that [the decedent] was around an FMC product in the first place ․ Therefore, FMC has met the summary judgment standard in Connecticut and FMC's motion for summary judgment must be granted.”   The court disagrees with the defendant's characterization of Connecticut's summary judgment standard.   As this court consistently has 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 work the decedent performed, or supervised, regarding the defendant's products while the decedent served as an engineer aboard the ships upon which the defendant's products were located.   In addition, there are genuine issues of material fact concerning the decedent's alleged 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 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)..  FN1. 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.