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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 211.00)

FACTS

The plaintiffs, Richard and Susan Tangari, filed a four-count complaint on July 14, 2006.   The complaint generally claims that the plaintiff, Richard Tangari, was exposed to, inhaled and/or ingested asbestos dust, fibers and particles from the defendant's products when he worked as a welder in Connecticut and as a mechanic “during the years 1972 through the present (2006) ․” It is alleged that 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., and, in the second count, Richard Tangari alleges conspiracy solely as to the Metropolitan Life Insurance Co. The third count 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 plaintiffs allege that all of the defendants' misconduct was grossly negligent, wilful, wanton, malicious and/or outrageous.   Count four, brought by Susan Tangari, asserts a loss of consortium claim.

II

DISCUSSION

On May 20, 2013, the defendant filed its summary judgment motion on the ground that there is no question of material fact that the plaintiff ¹ was exposed to any asbestos-containing products manufactured, distributed or sold by this defendant.   In their opposition memorandum, filed on July 2, 2013, the plaintiff responds that the defendant has not established the nonexistence of all genuine issues of material fact, and, in its July 15, 2013 reply memorandum, the defendant counters that the plaintiff relies upon incomplete, irrelevant and mischaracterized testimony and documents to create illusory issues of material fact.   In a supplemental opposition to the defendant's summary judgment motion, filed on July 15, 2013, the plaintiff responds to the defendant's assertions that the plaintiff has made “brazen representations” in its previous memoranda.   Finally, in its July 16, 2013 supplemental reply to the plaintiff's memorandum, the defendant argues that the plaintiff has submitted no evidence that he “worked with a Zoom clutch that had a Pyrotorq clutch facing.  [Plaintiff has] further submitted no evidence that any Pyrotorq clutch facing contained asbestos during the time of Mr. Tangari's work.”   The defendant concludes that the plaintiff has failed to identify a genuine issue of material fact and, therefore, summary judgment is precluded in this matter.   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).

The plaintiff alleges, in relevant part, that he was exposed to the defendant's asbestos-containing products when he worked as a welder and as a mechanic during the years “1972 through the present (2006) ․” The defendant claims that, to date, the plaintiff has not offered any evidence to establish that the plaintiff has ever worked with an asbestos-containing Perfection or Zoom clutch.   The plaintiff counters that his evidence supports his belief that he was exposed to asbestos from working with the Perfection clutches contained in his own Chevelle.   In addition, he argues that his deposition testimony reflects that the many Perfection clutches he installed while employed at Tony's Garage also contained asbestos.²

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 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 shoulders 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 summary judgment burden onto the plaintiff.   Further, the defendant has not demonstrated the absence of all genuine issues of material fact with respect to the plaintiff's exposure to the alleged asbestos-containing products of this defendant.   Therefore, the court denies the defendant's summary judgment motion.

BELLIS, J.

FOOTNOTES

FN1. Although there are two named plaintiffs in this case, Richard and Susan Tangari, to avoid confusion the court will refer to “the plaintiff” in the singular throughout its memorandum of decision.   When referring to “the plaintiff,” the court is referencing Richard Tangari, only..  FN1. Although there are two named plaintiffs in this case, Richard and Susan Tangari, to avoid confusion the court will refer to “the plaintiff” in the singular throughout its memorandum of decision.   When referring to “the plaintiff,” the court is referencing Richard Tangari, only.

FN2. In its July 15, 2013 memorandum in reply to the plaintiff's opposition to its summary judgment motion, the defendant also argues that it “should at minimum be granted partial summary judgment as to the 1988–2006 time period.”   It claims that “the plaintiff has not opposed the defendant's summary judgment motion as it relates to the plaintiff's work with Perfection or Zoom clutches during the time period extending from 1988–2006.”   The defendant neither cites to supporting documentation nor case law authority in support of its contention, accordingly, the court does not find this argument persuasive..  FN2. In its July 15, 2013 memorandum in reply to the plaintiff's opposition to its summary judgment motion, the defendant also argues that it “should at minimum be granted partial summary judgment as to the 1988–2006 time period.”   It claims that “the plaintiff has not opposed the defendant's summary judgment motion as it relates to the plaintiff's work with Perfection or Zoom clutches during the time period extending from 1988–2006.”   The defendant neither cites to supporting documentation nor case law authority in support of its contention, accordingly, the court does not find this argument persuasive.

Bellis, Barbara N., J.