Margaret Bradley Executrix of the Estate of Craig Bradley et al. v. ACMAT (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 175.00)

I FACTS

On April 23, 2012, the plaintiff, Margaret Bradley, executrix to the estate of Craig Bradley, filed a fourth amended complaint against various defendants, including the moving defendant, Avon Products, Inc. The complaint generally claims that the decedent was exposed to, inhaled and/or ingested asbestos dust, fibers and particles from the defendant's products and such exposure contributed to his 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 Product Liability Act, General Statutes § 52–572m et seq., count two alleges a claim under General Statutes § 52–555, Connecticut's wrongful death statute, and the third count asserts a loss of consortium claim.   Count four claims that, since 1929, all of the defendants possessed medical and scientific data, as well as studies and reports, establishing 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.   Count five alleges negligence solely as to the defendant, ACMAT Corporation.

II

DISCUSSION

The defendant filed its summary judgment motion on December 10, 2012, on the ground that the plaintiff “cannot establish that Mr. Bradley was ever exposed to asbestos containing products designed, manufactured, packaged, labeled, distributed, transported, or sold by Avon as is required by the CPLA.” ¹ In its memorandum of support, the defendant argues that the plaintiff has not produced any evidence to establish that this defendant was the source of the decedent's alleged asbestos exposure and resultant injury.   On April 3, 2013, the plaintiff filed her memorandum in opposition to the defendant's motion.   She maintains that a genuine issue of material fact exists as to whether the decedent was exposed to the defendant's asbestos-containing products.   In its reply memorandum, filed on May 23, 2013, the defendant reiterates its position that the plaintiff's evidence is insufficient, inadmissible or irrelevant.   The plaintiff's reply memorandum, filed on July 1, 2013, insists that there are genuine issues of material fact as to whether the decedent was exposed to the talcum powder of the defendant, and whether such talcum powder was contaminated with asbestos.   Each party has submitted documentation to support their individual 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 relies heavily upon the deposition testimony of the decedent's sister who testified that she and the decedent played a “game,” whereupon the siblings threw various types of talcum powder in each others' faces, including Avon talcum powder.   In opposition to the defendant's summary judgment motion, the plaintiff also offers the deposition testimony of the decedent's sister in which she testified that her brother was exposed to the defendant's talcum powder at their own house and at the home of their grandparents.   The plaintiff also has attached reports demonstrating that certain Avon products contained tremolite asbestos and “trace” chrysotile asbestos.

The defendant insists that the plaintiff has failed to meet her evidentiary burden as to whether the decedent was exposed to respirable asbestos from the defendant's products.   The court disagrees with the defendant's interpretation 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 seeks to shift its burden on its motion for summary judgment to the plaintiff.   Further, the defendant has not demonstrated the absence of all genuine issues of material fact.   For example, as the plaintiff has emphasized, there are genuine issues of material fact surrounding whether the defendant was exposed to the defendant's product and whether the defendant's product contained asbestos.   Therefore, the court denies the defendant's summary judgment motion.

BELLIS, J.

FOOTNOTES

FN1. The products at issue in this case are Avon talcum products..  FN1. The products at issue in this case are Avon talcum products.

Bellis, Barbara N., J.