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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 410

FACTS

On June 6, 2013, 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 against various defendants, including the moving defendant, Electrolux Home Products, 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 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 April 20, 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 the plaintiffs have “not identified exposure to any product manufactured, sold, or distributed by Electrolux.”   The defendant maintains that the plaintiffs' expert, Captain William Lowell, testified that he had no information as to whether the defendant's products, “Copes–Vulcan soot blowers,” were the soot blowers on “LASH vessels” upon which the decedent served, nor did Lowell have knowledge as to whether the decedent was present when work was performed on gaskets or packing on soot blowers that were located on ships upon which the decedent served.   The defendant concludes that the plaintiffs have “failed to produce any evidence to establish that [the decedent] was exposed to asbestos dust from a product manufactured, sold, or supplied by Electrolux.”   In their memorandum in opposition, filed on July 3, 2012, the plaintiffs argue that the defendant has failed to establish the nonexistence of all genuine issues of material fact.   The plaintiffs also have submitted various documents in support of their opposition memorandum.¹  The defendant's reply to the plaintiffs' opposition memorandum, filed on July 18, 2012, reiterates its original position that the plaintiffs have “not produced any evidence to show that Copes–Vulcan is a substantial contributing factor to the development of [the decedent's] mesothelioma.”   On January 30, 2013, the defendant filed a consolidated memorandum in support of its motion in which it “endorses” the court's decision that maritime law governs the substantive issues of this case.

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.  [56 Conn. L. Rptr. 424] 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 and the plaintiffs' answers to the defendant's interrogatories.   The defendant has also attached an excerpt of Lowell's deposition testimony during which Lowell testified generally with respect to the defendant's equipment aboard “LASH vessels.”   A “Delta Mar article” was referred to during Lowell's deposition that contained the phrase “Soot blower panel, Copes–Vulcan.”   When Lowell was asked about the distinction between soot blower panels and soot blowers, he replied that “My interpretation is if I've got a soot blower control panel by Copes–Vulcan, it's talking to Copes–Vulcan soot blowers.”   Citing to the plaintiffs' answers to the defendant's interrogatories, the defendant argues that the plaintiffs fail to identify Electrolux as either a manufacturer or seller of an asbestos-containing product to which the decedent may have been exposed.   The court has examined this exhibit and observes that the plaintiffs did not identify Electrolux, or any other defendant, as a manufacturer or seller of any asbestos-containing product because they objected to such queries as “[o]verly broad, unduly burdensome and invades attorney work product.”   This does not mean, however, that the plaintiffs cannot identify the defendant as such a manufacturer or seller.

The plaintiffs respond that the evidence establishes that the defendant's products, Copes–Vulcan soot blowers, were located aboard a number of ships upon which the decedent served.   Each steamship boiler “contained six to a dozen soot blowers per boilers ․” Relying on their expert, Lowell, the plaintiffs contend that the decedent, as a junior engineer, would have assisted the second and third engineers on working on boilers, fixing pumps and valves, and working on pipefitting.   The plaintiffs conclude that “even if [the decedent] did not personally repair one of the numerous Copes–Vulcan soot blowers on board, he would have at least worked around them and breathed the asbestos-contaminated air of the engine room when a Copes–Vulcan soot blower was used or repaired.”   The plaintiffs further represent that the defendant has admitted in another case that between 1966 and 1986 Cope Vulcan's soot blowers “commonly” contained asbestos packing and gaskets;  and that from 1974 to 1981 all Copes–Vulcan soot blowers incorporated asbestos-containing packing, gaskets and valves.   Both in its reply memorandum and in its consolidated memorandum, the defendant restates its initial position, and further emphasizes that it does not have the duty to warn with respect to the harm caused by the other products that may have been used on its soot blowers after their sale.

The court finds that the defendant has not met its burden with respect to its motion for summary judgment.   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 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 with respect to the defendant's products during his service 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 in those areas in which the products were located.   Accordingly, for the reasons discussed, the court denies the defendant's motion for summary judgment.

BELLIS, J.

FOOTNOTES

FN1. 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 all of the defendants in this case, including the present defendant.   See 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 remainder of the plaintiffs' memoranda are characterized as “omnibus objections” and are directed at the motions for summary judgment that have been filed by all of the defendants in this case, including the present defendant.   See 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.