Richard Tangari v. American Optical Corp. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 207.00)

FACTS

On July 14, 2006, the plaintiffs, Richard and Susan Tangari, filed a complaint against various defendants, including the moving defendant, Carlisle Co. Generally, the complaint claims that the “plaintiff, [Richard Tangari], was exposed to various asbestos-containing products while working in Connecticut as a welder and mechanic during the years 1972 through the present (2006), and such exposure in Connecticut contributed in part or totally to the plaintiff's contraction of asbestos-related [a]sbestosis, pleural plaques, and other asbestos-related pathologies.”   Count one alleges liability pursuant to the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and count two, directed solely against the defendant, the Metropolitan Life Insurance Company, sounds in conspiracy.   Count three claims 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 plaintiff 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.   The plaintiff, Susan Tangari, alleges a loss of consortium claim in count four.

II

DISCUSSION

On March 11, 2013, the defendant, the Carlisle Co., filed a motion for summary judgment, accompanied by supporting documentation, on the grounds that “the proofs submitted thus far demonstrate that there exists no genuine issue of material fact as to whether the [p]laintiff, Richard Tangari, inhaled respirable asbestos fibers from a Carlisle product.”   In their memorandum in opposition, filed on May 20, 2013, the plaintiffs argue that this defendant has failed to dispel the nonexistence of all genuine issues of material fact.

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).

The defendant contends that Richard Tangari's deposition testimony reveals that he may have worked with “Carlisle products infrequently for a limited time period during his work career.   He testified that he may have worked with Carlisle brakes or other products at Tony's Garage.”   With respect to his use of, or work with, Carlisle products, the defendant characterizes Richard Tangari's deposition testimony as “vague.”

The plaintiffs respond that its evidence establishes that Carlisle has admitted that its brake linings contained chrysotile asbestos during the seven years that Richard Tangari worked at Tony's Garage and, further, that “brake jobs were among Mr. Tangari's responsibilities.”   The plaintiffs represent that their evidence provides that Richard Tangari worked directly with Carlisle brakes for at least forty-two hours and they argue that “[t]his time does not account for Mr. Tangari's exposure to the dust remaining in the garage after the brake job was complete.”

The defendant concludes, however, that “the plaintiffs have failed to present any credible evidence which creates a genuine issue of fact as to whether Mr. Tangari worked with or in proximity to an asbestos-containing product manufactured, sold, or distributed by Carlisle.”  (Emphasis added.)   The court disagrees with the defendant's characterization of Connecticut's summary judgment standard.   As this court has emphasized consistently, 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 plaintiff performed with respect to the defendant's products during his employment at Tony's Garage.   Accordingly, for the reasons discussed, the court denies the defendant's motion for summary judgment.

BELLIS, J.

Bellis, Barbara N., J.