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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 412

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, Elliott 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.”   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 claimants “have failed to identify any product of this [d]efendant to which [the decedent] was allegedly exposed.”   The defendant observes that the plaintiffs offer the testimony of their expert, Captain William Lowell, to offer “opinion testimony” about asbestos-containing equipment aboard ships upon which the decedent served.   It emphasizes that Lowell's testimony is not helpful to the plaintiffs' case, however, because Lowell either had no opinion or no knowledge as to what extent, or even whether, the decedent would have worked upon “Elliott-brand equipment” aboard the ships upon which the defendant's equipment was located.   The plaintiffs counter that the defendant has failed to establish the nonexistence of all genuine issues of material fact.   The plaintiffs have also 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 all of the defendants in this case, including the present defendant.¹  The defendant's reply to the plaintiffs' omnibus opposition memorandum responds that, under maritime law, it owes no duty to the plaintiffs concerning materials it did not manufacture, deliver or otherwise place into the stream of commerce, including after-applied insulation packing or gaskets.

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 attached, in relevant part, excerpts of Lowell's deposition testimony.   The deposition excerpts provided by the defendant reveal that Lowell was asked about the work the decedent would have done on Elliott external desuperheaters, Elliott de-aerating tanks and de-aerating feed heaters that were aboard certain ships.   Generally, in the deposition excerpts supplied by the defendant, Lowell had no opinion with respect to some of the above-mentioned equipment.   Concerning the de-aerating heater, however, Lowell testified that “I have an opinion that [the decedent] would have gone inside that tank during the lengthy period of time that he was aboard ship, so that he would have done some work around it.   And probably my opinion would be more likely than not that he watched the tank opened up and would have gone in and personally inspected the interior of that tank.”   When asked for the basis of his opinion, Lowell responded that, “Well, that tank is not opened often, but it does have to get opened periodically and it even has to be tested periodically for the Coast Guard.   And certainly if a de-aerating feed tank was opened up, the chief engineer should be one of the people who look at the interior of that tank.”   Lowell had previously testified that the de-aerating tanks were insulated externally.

The plaintiffs counter that the evidence establishes that the defendant supplied asbestos-containing equipment to various ships upon which the decedent served.   In addition, they emphasize that the American Bureau of Shipping has produced numerous documents enumerating a series of inspections and surveys that occurred on the decedent's ships.   The plaintiffs observe that the decedent, in his capacity as a senior engineer, or chief engineer, would have been “right in the middle of” such inspections and surveys.   Citing to Lowell's use of the word “opened” when referencing work on equipment, the plaintiffs explain that the word is a term of art to marine engineers.   Citing to Lowell's deposition testimony, the plaintiffs observe that the word means that, if the equipment contains insulation, such insulation must be removed and the unit would have to be opened up and inspected internally.   The equipment would then be closed, tested, and the insulation would have to be replaced.

As stated previously, in its reply memorandum the defendant also argues that federal maritime law applies with respect to the issue of after-applied insulation to their equipment vis a vis the decedent's alleged asbestos exposure.   At this stage of the proceedings, however, the court does not have to reach the application of federal maritime law to the facts presented in this case because the defendant has not met its threshold burden under Connecticut's summary judgment practice and procedure.   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, 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.