Hope Olivar, Personal Executor of the Estate of Eldon C. Keener, Jr. v. Alfa Laval, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (MOTION # 206.00)

FACTS

The plaintiff, Hope Olivar, personal representative of the estate of Eldon C. Keener, Jr. filed an amended complaint on March 13, 2013, against various defendants.¹  The complaint alleges that the decedent, Eldon C. Keener, Jr., was exposed to various asbestos-containing products while working in the Navy as a machinist from 1938 to 1958 and as a technical writer and medical employee from 1958 through the late 1970s.   Such exposure allegedly contributed to the decedent's asbestos-related mesothelioma and other asbestos-related pathologies.   Each count is directed toward all of the named defendants and the plaintiff claims that these defendants were responsible for the decedent's injuries.

Count one alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and the second count alleges a wrongful death claim.   Count three claims that all of the defendants' conduct was grossly negligent, wilful, wanton, malicious and outrageous because, since 1929, the defendants allegedly 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.

II

DISCUSSION

The moving defendant, Crane Co., filed a motion for summary judgment on August 31, 2012, on the ground that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.   It claims that, following extensive discovery, the plaintiff has failed to produce any evidence from which a jury could conclude that the decedent, Eldon C. Keener, Jr., was exposed to respirable asbestos from any asbestos-containing product manufactured or sold by the defendant.

The plaintiff, in her memorandum in opposition, filed on March 8, 2013, counters that the defendant has failed to prove the nonexistence of all genuine issues of material fact.   She argues that the evidence establishes that the decedent was exposed to the defendant's asbestos-containing products while serving as a machinist mate in the United States Navy from 1939 to 1959.   She further maintains that the evidence demonstrates that the defendant supplied specific asbestos-containing products to at least five ships upon which the decedent served.

In its March 8, 2013 supplemental memorandum in support of its summary judgment motion, the defendant argues that specific evidence proffered by the plaintiff, such as ships' records and the testimony of Captain Woodruff, a maritime expert, fails to demonstrate that the decedent was exposed to asbestos from the defendant's products.   The plaintiff's supplemental memorandum in opposition, filed on March 21, 2013, emphasizes that ships' documents from the National Archives reveal that numerous products of the defendant were aboard ships upon which the decedent served and that the defendant's admissions further reveal that the defendant routinely incorporated asbestos into its valves and pumps.   Accordingly, the plaintiff concludes that there are genuine issues of material fact as to whether the decedent was exposed to asbestos from the defendant's ship equipment.

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 defendant primarily takes issue with the deposition testimony of Captain Woodruff, the plaintiff's maritime expert.   For example, the defendant claims that Woodruff's testimony is not evidence that the decedent was exposed to asbestos from the defendant's products because Woodruff had no information or firsthand knowledge with respect to the decedent's work with, or around, such products.   The plaintiff responds that direct evidence of exposure is not required to create a genuine issue of material fact for purposes of a motion for summary judgment.

Here, 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 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).

Here, the defendant seeks to shift its summary judgment burden to the plaintiff.   In addition, the defendant has not demonstrated the absence of all genuine issues of material fact.   For example, as the plaintiff observes, the evidence creates genuine issues of material fact concerning whether the decedent was exposed to asbestos from one of the defendant's alleged asbestos-containing products.   The court denies the defendant's summary judgment motion.

BELLIS, J.

FOOTNOTES

FN1. The plaintiff filed an amended complaint for the purpose of properly substituting the estate..  FN1. The plaintiff filed an amended complaint for the purpose of properly substituting the estate.

Bellis, Barbara N., J.