Paul Hammer, Administrator to the Estate of Irving Hammer et al. v. A.L. Burbank & Co., Inc. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 393.00)

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, Crane Co. (“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, Crane Co., filed a motion for summary judgment, accompanied by exhibits in support, on the basis that there is no issue of material fact and that the defendant is entitled to judgment as a matter of law.   It contends that the plaintiff has not produced any evidence from which a jury reasonably could conclude that the decedent was ever exposed to respirable asbestos from any “asbestos-containing product manufactured and/or sold by Crane Co.” The defendant emphasizes that the deposition testimony of the plaintiffs' naval expert, Captain William Lowell, does not constitute evidence that the decedent was exposed to asbestos from a Crane Co. product.   It insists that such testimony is no substitute for the factual evidence that the decedent actually performed work on a Crane Co. product.

Conversely, the plaintiffs, in their August 15, 2012 memorandum in opposition, maintain that the defendant has failed to meet its burden to prove the absence of all genuine issues of material fact.   They argue that they have produced a plethora of documents, which provide the factual underpinnings for this case.   Further, they contend that Lowell's testimony, supported by admissible documents, is grounded in the facts established by those documents and is buttressed by other circumstantial evidence produced in this matter.¹

On October 2, 2012, the defendant filed a reply memorandum in which it adopted the arguments and authorities relied upon by the defendant, Aurora Pump Company, in Aurora Pump's memoranda in support of its own summary judgment motion.   On December 17, 2012, the defendant filed a supplemental memorandum in support of its motion wherein it concludes that, as an equipment manufacturer, it is not liable for replacement parts or after-applied insulation, either under Connecticut state law or under federal maritime law.

This court has concluded that federal maritime law governs 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 the present case, the defendant argues that the plaintiffs have not produced any evidence to establish that the decedent was exposed to respirable asbestos fibers from any Crane Co. products.   Specifically, the defendant refers to products such as Deming water pumps, Crane valves, Crane steel needle valves, and Cochrane de-aerating tanks.   The defendant emphasizes that the plaintiffs' documents do not contain information concerning the maintenance history of the products.   It further emphasizes that the plaintiff's expert, Lowell, had no knowledge as to who would have maintained the equipment, or what would have been done with respect to maintaining the equipment.

The plaintiffs represent that the defendant's equipment was on board several vessels upon which the decedent served as the chief engineer.   For example, “[t]here were miscellaneous Chapman and Crane valves in the engine room aboard the Thomas Lynch.”   In addition, “[t]here were bronze and steel needle Crane valves onboard the Aloha State, which Captain Lowell testified were in the engine room and had external insulation.”   The decedent also worked aboard the S.S. Defiance for which “Crane supplied the main circulation system valves, turbine bleed valves and check valves ․” Also with respect to the S.S Defiance, the plaintiffs emphasize that Lowell had explained that all of the Crane valves on that ship would have been externally insulated and that, in his opinion, the decedent would have worked with and/or around those Crane valves during his tenure on that vessel.

The defendant insists that the plaintifs 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.