Joseph Abate, Jr. et al. v. Advanced Auto Parts, Inc. et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 267.00)

FACTS

The plaintiff, Joseph Abate, Jr., surviving spouse and administrator of the estate of his decedent/spouse, Sharon Abate, brings this action against various defendants, including the moving defendant, Hennessy Industries, Inc. The second amended complaint, filed on June 16, 2010, alleges that “[t]he plaintiff was exposed to various asbestos containing products through direct and second hand exposure while the spouse of the plaintiff's decedent was working in Connecticut as a professional auto mechanic from 1962–1990.   Decedent was also exposed to asbestos-containing products while working alongside her husband at his garage.   Such exposure in Connecticut contributed in part or totally to the plaintiff's decedent's contraction of asbestos related [m]esothelioma and other asbestos-related pathologies.”

Count one alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., count two alleges a wrongful death claim under General Statutes § 52–555, and the third count alleges conspiracy solely against Metropolitan Life Insurance Company.   The fourth count claims that since 1929, the defendants possessed medical and scientific data, 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.   By failing to acknowledge or publish such material, the plaintiff alleges that the various defendants' conduct was grossly negligent, wilful, wanton, malicious and outrageous.   Count five asserts a loss of consortium claim.

DISCUSSION

On February 24, 2012, the defendant filed its initial motion for summary judgment on the ground that its products contained no asbestos and that it owed no duty to warn concerning the asbestos-containing products of others.   By a memorandum of decision, filed on May 7, 2013, this court denied the defendant's summary judgment motion on the basis that a question of fact remained concerning whether the defendant's products were meant to be used as multi-purposed grinders, to be used with both non-asbestos and asbestos-containing products, or whether the grinders were purposed solely to be used with asbestos-containing products.   See Memorandum of Decision, Abate v. Advanced Auto Parts, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–10–6005674–S (May 7, 2013, Bellis, J.) [56 Conn. L. Rptr. 94].

On August 30, 2013, the defendant filed a request for leave to file a renewed motion for summary judgment accompanied by the actual motion, and the plaintiff filed memoranda in opposition on September 25 and September 30, 2013, respectively.   The court heard argument on September 30, 2013.   At oral argument, the defendant represented that its argument was the same argument that it posited in its motion for summary judgment, also argued on September 30, 2013, in the case of Santino v. Borg–Warner Corp., Superior Court, judicial district of Fairfield, Docket No. CV–09–5027130–S.   In fact, the defendant requested the court to take judicial notice of the arguments that had just been presented concerning the Santino motion, and that it was renewing its summary judgment motion in the present case to include the affidavits of Craig Mountz, the defendant's corporate representative and Russell Darnell, an automotive expert.

In the Santino case, in support of its summary judgment motion the defendant had submitted, inter alia, the affidavits of Mountz and Darnell to demonstrate that the defendant's products were designed to be used with both asbestos-containing products and non-asbestos-containing products.   The court reviewed the defendant's evidence in the Santino case and analogized such evidence relative to the evidence provided in other “tool cases” in which the court had granted the defendants' motions for summary judgment.   The court denied the defendant's summary judgment motion in Santino on the ground that the defendant had not met its burden of establishing that its products were purposed for uses other than grinding metals that inevitably produced harmful dust, and as to whether it was the action of its products that caused the harmful dust to be released.   Memorandum of Decision, Santino v. Borg–Warner Corp., Superior Court, judicial district of Fairfield, Docket No. CV–09–5027130–S, (filed on January 21, 2014, Bellis, J.)

The Connecticut Product Liability Act is the starting point for product liability actions in this state.   Specifically, General Statutes § 52–572q governs the liability of a product seller for the lack of adequate warnings or instructions.  Section 52–572q(a) provides that “[a] product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided.”   Pursuant to this statute, “a product may be defective solely because a manufacturer or seller has failed to provide adequate warnings or instructions to a claimant who has suffered harm because of the absence of such warnings or instructions.”  Gajewski v. Pavelo, 236 Conn. 27, 28–29, 670 A.2d 318 (1996) (per curiam).   Previously, in deciding summary judgment motions filed in the context of asbestos-related “tool cases” however, this court has found the cases from foreign jurisdictions instructive, such as the California Supreme Court case of O'Neil v. Crane Co., 53 Cal.4th 335, 266 P.3d 987, 135 Cal.Rptr.3d 288 (2012).   The issue in O'Neil was whether a product manufacturer was liable for injuries caused by asbestos-containing replacement parts, manufactured by others and used in conjunction with the defendant's own product.   The O'Neil court outlined several public policy concerns with respect to holding non-asbestos product manufacturers liable for the products of manufacturers of asbestos-containing products.   The court emphasized that “it is unfair to require manufacturers of nondefective products to shoulder a burden of liability when they derived no economic benefit from the sale of the products that injured the plaintiff.   A contrary rule would require manufacturers to investigate the potential risks of all other products and replacement parts that might foreseeably be used with their own product and warn about all of these risks.”  O'Neil v. Crane Co., supra, 53 Cal.4th 363.   This court adopted the expression of such public policy considerations as articulated by the California Supreme Court in O'Neil v. Crane Co., supra.   The O'Neil court further cited to a California Court of Appeals case, Tellez–Cordova v. Campbell–Hasfield/Scott Fetzger Co., 129 Cal.App.4th 577, 28 Cal.Rptr.3d 744 (2004), however, as providing an example of an exception to the general “no duty to warn” rule.   The O'Neil court emphasized that a duty to warn existed in Tellez–Cordova because the sole purpose of the power tools in that case was to grind metals in such a way that harmful dust was the inevitable result, and the action of the power tool did, indeed, cause the dust.  O'Neil v. Crane Co., supra, 53 Cal.4th 361.   As it had in the Santino case, the defendant in the present case submitted, inter alia, the affidavits of Mountz, the defendant's corporate representative, and Darnell, an automotive expert.   Mountz attested that “brake shoe arcing machines and brake lathes, as manufactured and supplied with Ammco replacement parts, did not contain asbestos-containing parts nor did they contain respirable asbestos.”   Mountz attested that Ammco brake shoe arcing machines were “designed to reshape any brake shoe friction material, whether composed of asbestos or not.   Ammco brake shoe arcing machines were not specifically designed or intended to be used solely with asbestos-containing brake linings, or any other type of brake shoe lining.”   Mountz further testified that Ammco brake lathes were “designed to reshape brake drums and brake rotors, regardless of the brake drum or rotor's composition, or whatever type of dust or dirt that may be on the brake drum or rotor ․ Ammco brake lathes do not require asbestos in order to operate ․” Darnell, the automotive expert, testified “that non-asbestos metallic brake shoe linings were commercially available, installed and used in both the United States and European markets during the 1950s, 1960s, 1970s [and] 1980s.”   Darnell also testified that he was personally familiar with the defendant's products and that he was personally aware that “non-asbestos metallic brake shoe linings could be and were in fact ground on Ammco arcing machines during the 1950s, 1960s and 1970s.”

Previously, this court has granted defendants' motions for summary judgment in cases involving power tools on the basis that the evidence established that the defendants owed no duty to warn because the power tools at issue were multi-purposed tools, intended for uses other than uses solely associated with asbestos-containing products.   See, e.g., Abate v. AAF–McQuay, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–10–6006228–S (April 1, 2013, Bellis, J.) [55 Conn. L. Rptr. 794] (defendant Milton Industries, Inc.'s catalogs advertised blow guns could be used in garages, gas stations, farms, homes and industry);  Abate v. AAF–McQuay, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–10–6006228–S (March 22, 2013, Bellis, J.) [55 Conn. L. Rptr. 783] (deposition testimony and responses to interrogatories provided that defendant Snap-on, Inc.'s air-vented tool used for various purposes in plaintiff's automotive garage);  Abate v. AAF–McQuay, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–10–6006228–S (January 29, 2013, Bellis, J.) [55 Conn. L. Rptr. 415] (deposition testimony demonstrated defendant Black & Decker grinder and shop vacuum were multi-purposed products).

“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 the present case, however, the court finds that the defendant has not met its burden of establishing that its grinders and lathes were purposed for uses other than grinding metals that inevitably produced harmful dust, and whether it was the action of its products that caused the release of the harmful dust.   The court finds that the facts as presented in this case do not entitle the defendant to summary judgment, accordingly, the court denies the defendant's motion.

BELLIS, J.

Bellis, Barbara N., J.