John Rogers, Executor of the Estate of Patricia Rogers v. Advanced Auto Parts et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 186.00)

FACTS

On June 26, 2013, John Rogers, the executor of the estate of Patricia Rogers, filed a second amended complaint against various defendants, including the moving defendant, Avon Products, Inc. Generally, the complaint claims that the decedent was exposed to, inhaled and/or ingested asbestos dust, fibers and particles from the defendants' products and such exposure contributed to her asbestos-related mesothelioma and other asbestos-related pathologies.   Each count is directed toward all of the named defendants, including the moving defendant.   Count one alleges liability pursuant to the Connecticut Products Liability Act, General Statutes § 52–572m et seq., and the second count alleges a claim under General Statutes § 52–555, Connecticut's wrongful death statute.   The third count asserts that, since 1929, all of the defendants possessed medical and scientific data, as well as studies and reports, indicating that asbestos-containing products were hazardous to the health and safety of the decedent and to all humans who were exposed to such products.   Although they possessed this information, the defendants committed the wrongful acts or omissions as alleged in the first count.   Accordingly, the plaintiff alleges that all of the defendants' misconduct was grossly negligent, wilful, wanton, malicious and/or outrageous.

II

DISCUSSION

On December 11, 2012, the defendant filed its motion for summary judgment “on the grounds that [p]laintiff cannot establish that she was ever exposed to asbestos-containing products designed, manufactured, packaged, labeled, distributed, transported, or sold by Avon, as is required under the CPLA.” In its memorandum of support, the defendant argues that the plaintiff has not offered any competent, credible evidence that the plaintiff was ever exposed to an asbestos-containing product that was manufactured, distributed or sold by this defendant.   In his memorandum in opposition, filed on April 5, 2013, the plaintiff counters that his evidence establishes that some of the defendant's products contained tremolite asbestos and chrysotile asbestos.   In addition, the plaintiff contends that his evidence also demonstrates that the decedent used the defendant's talcum powder on her body.   The defendant's reply to the plaintiff's opposition memorandum, filed on May 28, 2013, insists that the plaintiff relies on conjecture and speculation when asserting that the decedent may have used asbestos-containing talcum powder of the defendant.   It concludes that the plaintiff has failed to create an issue of material fact as to causation, therefore, the court should grant summary judgment in favor of the defendant.   On July 13, 2013, the plaintiff filed its response to the defendant's reply memorandum.   He emphasizes that his evidence, although circumstantial in nature, is sufficient to raise genuine issues of material fact with respect to whether the decedent used the defendant's talcum powder and whether such talcum powder contained asbestos.   Both parties have submitted documentation in support of their respective positions.

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).

In support of its summary judgment motion, the defendant primarily relies upon the deposition testimony of the decedent's family members.   In opposition to the defendant's summary judgment motion, the plaintiff cites, in pertinent part, to an FDA-sponsored study involving the presence of asbestos in cosmetic powders, and a report issued by MVA Scientific Consultants.

The defendant claims that the depositions of the decedent's offspring revealed that they bought the defendant's products as gifts for the decedent, and that the decedent told them that she used the products.   The defendant emphasizes, however, that the siblings were unsure as to the specifics of the decedent's usage of such products.   The plaintiff counters that the studies, particularly the MVA report, demonstrated that a particular Avon's men's talc showed a trace to 1% of tremolite asbestos.   The plaintiff further emphasizes that articles published in professional journals indicate that frequently talc is known to be contaminated with asbestos, particularly with tremolite asbestos.   The defendant takes issue with the plaintiff's studies, pronouncing the studies “ill-fated” and “irrelevant.”

The defendant insists that the plaintiff has failed to meet his evidentiary burden as to whether the decedent was exposed to respirable asbestos from the defendant's products.   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., 285 Conn. 1, 11, 938 A.2d 576 (2008).

The defendant has not demonstrated the absence of all genuine issues of material fact.   For example, as the plaintiff observes, there are genuine issues of material fact concerning the decedent's usage of the defendant's talcum powder and whether such talcum powder contained asbestos.   Accordingly, the court denies the defendant's summary judgment motion.

BELLIS, J.

Bellis, Barbara N., J.