William Butler et al. v. A.O. Smith, Corp. et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 157

FACTS

William Butler and his spouse, Elaine Butler, filed this six-count complaint on August 3, 2010, against various defendants.   This action arises out of the alleged exposure of the plaintiff, William Butler, to various asbestos-containing products during the years between 1967–1979 while he was working in Connecticut as an insulator.   The complaint alleges that the exposure contributed to William Butler's mesothelioma and asbestos-related pathologies.

Count one alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and count three claims a loss of consortium on behalf of Elaine Butler against all of the defendants.   Count four alleges that the various 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 William Butler and other human beings.¹  The defendant Crane Co. filed its answer, special defenses and cross claims on August 18, 2011.   The defendant filed a motion for summary judgment on August 18, 2011, and the plaintiffs filed their memorandum in opposition on October 4, 2011.   The matter was argued before the court at the short calendar conducted on January 17, 2012.

DISCUSSION

“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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In the present case, the defendant Crane Co. has moved for summary judgment.   Accordingly, “the burden is on [that] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

The defendant moves for summary judgment on the ground that there are no genuine issues of material fact, and that it is entitled to judgment as a matter of law because, following extensive discovery, the plaintiffs have not produced any evidence from which a jury could conclude that William Butler was exposed to respirable asbestos from any asbestos-containing product manufactured or sold by this defendant.

The plaintiffs filed their opposition memorandum on October 4, 2011, arguing that the evidence reveals that William Butler was exposed to asbestos-containing products sold by Crane Co. In pertinent part, the plaintiffs have filed a copy of William Butler's deposition testimony, his job site list, a telegram indicating that Crane Co. was an approved supplier on the Millstone Project and evidence that Crane Co. was a supplier of valves.²  The plaintiffs further offer various pieces of Crane Co. literature, Crane Co.'s responses to plaintiffs' interrogatories, and evidence denoting Crane Co. on a list of “Millstone Point Unpaid Invoices.”

To prevail on its summary judgment motion, the defendant must establish that no issue of material fact exists concerning William Butler's alleged exposure to any of its products.   The defendant, however, fails to offer any evidence to support its assertion that William Butler was never exposed to any of this defendant's asbestos-containing products.  “Mere assertions of fact ․ are insufficient to establish the existence of a material fact ․” (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010).

Here, in fact, the defendant seeks to shift its burden on summary judgment to the plaintiff, claiming that the plaintiff has failed to produce evidence from which a jury could conclude that William Butler was ever exposed to asbestos from a Crane Co. product.   It is the movant's burden to demonstrate the absence of any issue of material fact.  “The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing 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., supra, 285 Conn. 11.

The defendant has offered only argument in its brief in support of its summary judgment motion regarding the lack of any genuine issues of material fact in this case.   In the absence of any evidence to support its motion, however, these assertions are insufficient to support a finding concerning the nonexistence of any genuine issues of material fact in this matter.   For the foregoing reasons, the court denies the defendant's motion for summary judgment as to counts one, three and four.

BELLIS, J.

FOOTNOTES

FN1. Count two is directed at the defendant, Metropolitan Life Insurance Co., and alleges a conspiracy involving, inter alia, fraudulent misrepresentations and alterations and deletions in various reports and studies concerning the dangers of asbestos and the relationship between asbestos and cancer.   Subsequently, the plaintiffs withdrew the action as to Metropolitan Life.Counts and five and six are directed specifically toward the defendants, Bechtel Corp. and ACMAT Corp. Count five alleges negligence on the part of these defendants due to exposure to asbestos and asbestos-containing products through William Butler's own work, or by his proximity to other workers working with such products at various job sites.   Count six realleges a loss of consortium on the part of Elaine Butler against Bechtel Corp. and ACMAT Corp..  FN1. Count two is directed at the defendant, Metropolitan Life Insurance Co., and alleges a conspiracy involving, inter alia, fraudulent misrepresentations and alterations and deletions in various reports and studies concerning the dangers of asbestos and the relationship between asbestos and cancer.   Subsequently, the plaintiffs withdrew the action as to Metropolitan Life.Counts and five and six are directed specifically toward the defendants, Bechtel Corp. and ACMAT Corp. Count five alleges negligence on the part of these defendants due to exposure to asbestos and asbestos-containing products through William Butler's own work, or by his proximity to other workers working with such products at various job sites.   Count six realleges a loss of consortium on the part of Elaine Butler against Bechtel Corp. and ACMAT Corp.

FN2. Millstone appears on William Butler's job site list.   The list indicates that he worked at Millstone as an insulator during the “1970s–1980s.”.  FN2. Millstone appears on William Butler's job site list.   The list indicates that he worked at Millstone as an insulator during the “1970s–1980s.”

Bellis, Barbara N., J.