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 # 406.00)

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, CBS 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 April 20, 2012, the defendant “CBS Corporation (‘Westinghouse’)” ¹ filed a motion for summary judgment, accompanied by exhibits in support, on the basis that there are “no genuine issues of material fact in dispute.”   The crux of the defendant's argument is that it takes issue with the plaintiffs because the plaintiffs are “suggesting that merely because [the decedent] was on ships, which may have had Westinghouse equipment aboard, during a time when maintenance activities may have been done on equipment, they have created a question of fact as to whether [the decedent] was exposed to asbestos from a Westinghouse product.   Westinghouse submits that such evidence is far too speculative to survive summary judgment pursuant to maritime law—or any law for that matter.”   Specifically, with respect to the testimony of its naval expert, Captain William Lowell, the plaintiffs counter that “Captain Lowell's testimony is supported by admissible documents and records, and is grounded in the facts those documents establish.   Captain Lowell's testimony does not serve as the only factual predicate for the case ․ there is a significant amount of circumstantial evidence in addition to Captain Lowell's expert testimony which proves [the decedent] was onboard ships that utilized the defendant's asbestos-containing equipment;  that his job required him to work with or around the asbestos-containing equipment;  and, which creates a genuine issue as to whether he breathed the asbestos fibers in the air in the machinery space of each ship as a consequence of his work and presence on those ships.”  (Emphasis in original.)   The plaintiffs support their opposition to the defendant's summary judgment motion with various exhibits.   The defendant's September 21, 2012 response to the plaintiffs' opposition memorandum contends, in pertinent part, that Lowell's testimony concerning whether the decedent worked around or with Westinghouse equipment constitutes inadmissible speculation.   In their supplemental opposition memorandum filed on January 25, 2013, the plaintiffs counter that their documentary evidence affirms that the decedent “was intimately involved in the operation and maintenance of his vessels and had regular contact with the defendant's products and ample opportunity for exposure while working with and around this equipment.” ²

As an initial matter, 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, evidence has been submitted that the defendant manufactured, sold and distributed marine turbines for use on twelve ships upon which the decedent served.   Also, the defendant represents that it has supplied ships' documents relating to its products that were aboard these twelve ships.   The defendant maintains that the plaintiffs' naval expert “admitted that he had no knowledge or evidence of [the decedent's] day-to-day maintenance or repair activities or that [the decedent] actually worked with Westinghouse equipment or would have been involved in or present at their repair.”

The plaintiffs represent that they attached newly produced documents that they maintain “shed[s] additional light on [the decedent's] day-to-day activities, job responsibilities and asbestos exposure.   The documents largely consist of letters to and from [the decedent] regarding engineering issues on his ships and technical documents such as manufacturers' equipment manuals and ships' engineering records.”   Such documents contain requests from the decedent, in his capacity as chief engineer, requesting additional materials with respect to Westinghouse turbines, and a Westinghouse Turbine Manual that was found among the decedent's personal effects.   The plaintiffs emphasize that the court must view the evidence in the light most favorable to the nonmovant and that the evidence demonstrates that the decedent was closely involved with the operation and maintenance of the equipment on the vessels upon which he served and had the “opportunity for exposure while working” around such equipment.³

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 submitted does not 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 defendant states that “CBS Corporation (A Delaware corporation f/k/a Viacom, Inc.) is a successor by merger to CBS Corporation (a Pennsylvania corporation f/k/a Westinghouse Electric Corporation).”.  FN1. The defendant states that “CBS Corporation (A Delaware corporation f/k/a Viacom, Inc.) is a successor by merger to CBS Corporation (a Pennsylvania corporation f/k/a Westinghouse Electric Corporation).”

FN2. 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)..  FN2. 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).

FN3. Concerning the insulation vis a vis turbines, the evidence was submitted that Lowell testified with respect to external insulation during his April 13, 2011 deposition..  FN3. Concerning the insulation vis a vis turbines, the evidence was submitted that Lowell testified with respect to external insulation during his April 13, 2011 deposition.

Bellis, Barbara N., J.