Opinion
No. CV 04 040 92 53
January 12, 2005
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT BY DEFENDANT BIRD INCORPORATED (MOTION 180 DATED OCTOBER 7, 2004)
Before this court is the defendant Bird Incorporated's Motion for Summary Judgment. The plaintiff, Lise Cormier, executrix of the estate of her late husband, Robert Cormier, alleges that the decedent was exposed to asbestos from household exposure from 1952-1968 and during his employment as a construction worker from 1966-1996. The decedent gave a videotaped statement wherein he commented he "heard that [asbestos] was in the shingles we were working with . . . in the drywall . . . in the insulation . . . in the paint . . . in the caulking." Additionally, Ms Cormier stated at deposition, "I personally would not recognize a Bird product from anything else. I know Bird because [Robert] said he used it."
There is no statement from the decedent that he used products by the defendant that contained asbestos.
Connecticut 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. Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). However, "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Furthermore, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, that party must come forward with sufficient evidence to support a jury verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 263 (1986).
In the present case the plaintiff cannot rely on speculation or conjecture. "To establish a genuine issue of material fact, the party opposing summary judgment must produce specific facts indicating that a genuine factual issue exists . . . If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted . . . The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Bullock v. City of New York et al., Docket Number 02 CIV 7698(DC), District Court for the Southern District of New York. (March 12, 2004, Chin, J.) (internal citations omitted, internal quotations omitted).
The case before this court alleges injury as a result of exposure to asbestos. "In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff's injuries." Haesche v. Kissner, 229 Conn. 213, 220, 640 A.2d 89 (1994). "In a products liability/asbestos claim a plaintiff must 1) identify an asbestos-containing product for which a defendant is responsible, 2) prove that he has suffered damages, and 3) prove that defendant's asbestos-containing product was a substantial factor in causing his damages." Roberts v. Owens-Corning Fiberglas Corporation 726 F.Sup. 172, 174 (W.D.Mich. 1989).
Although other jurisdictions have struggled with the issue in relation to asbestos-related claims, there is no settled law in Connecticut concerning any of these three critical elements. Recognizing the high standards which the defendant must overcome, the "plaintiff must show that a particular defendant's product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used." Robertson v. Allied Signal, Inc., 914 F.2d 360 (3rd Cir. 1990); quoting Zimmer v. Celotex Corporation, 192 Ill.App.3d 1088, 140 Ill.Dec. 230, 233, 549 N.E.2d 881 (1989). Under any causation test "plaintiff still must produce evidence sufficient to support an inference that he inhaled asbestos dust from the defendant's product." Peerman v. Georgia-Pacific Corp., 35 F.2d 284, 287 (7th Cir. 1994). The jury cannot reach this inference unless there is evidence that the defendant's product was used at the plaintiff's work site during the plaintiff's tenure or that the plaintiff was otherwise exposed.
"It is fundamental in evidentiary law that an out-of-court statement that is offered to establish the truth of the facts contained in the statement is hearsay and is generally inadmissible unless an exception to the general rule applies." State v. Wargo, 255 Conn. 113, 127, 763 A.2d 1 (2000). The Dead Man's Statute is an exception to that rule. C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.47.2, p. 727.
In response to the motion for summary judgment, the plaintiff has provided a statement by the decedent which she claims is admissible under the terms of the Connecticut Dead Man's Statute. Connecticut General Statutes § 52-172 provides in relevant part:
In actions by or against the representatives of deceased persons, and by or against the beneficiaries of any life or accident insurance policy insuring a person who is deceased at the time of the trial the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence.
The purpose of the Dead Man's Statute "is to create an equal footing between the living and the dead parties . . . Although it is to be interpreted liberally, every utterance of a deceased person is not automatically entitled to come into evidence solely because the speaker has died." (Citation omitted; internal quotation marks omitted.) Kalas v. Cook, 70 Conn.App. 477, 486, 800 A.2d 553 (2002); see also Pender v. Matranga, 58 Conn.App. 19, 752 A.2d 77 (2000). "[S]ection 52-172 is not a carte blanche for the admission of statements by a decedent in an action brought by or against a representative of the decedent." Kalas, 70 Conn.App. at 488. "This is particularly true where its admission would violate another well established rule of evidence." Rosales v. Lupien, 50 Conn.App. 405, 408, 717 A.2d 821 (1998) (offer of compromise excluded). See also Plisko v. Morgan, 148 Conn. 510, 511-12, 172 A.2d 621 (1961) (although decedent's oral statements admissible, opinion concerning causation properly excluded).
In essence, the plaintiff attempts to oppose the motion for summary judgment with a statement replete with hearsay. "`Hearsay' means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Conn. Code Evid. § 8-1(3). "Hearsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book." Id., § 8-2.
"Hearsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception." Id., § 8-7. State v. Aaron L., 79 Conn.App. 397, 415, 830 A.2d 776 (2003). "When a statement is offered that contains hearsay within hearsay, each level of hearsay must itself be supported by an exception to the hearsay rule in order for that level of hearsay to be admissible." State v. Lewis, 245 Conn. 779, 802, 717 A.2d 1140 (1998); State v. Merriam, 264 Conn. 617, 826 A.2d 1021 (2003); State v. Soto, 59 Conn.App. 500, 506, 757 A.2d 1156 (2000).
The Dead Man's Statute, as an exception to the hearsay rule, evidences a reasoned judgment that in certain situations cross-examination of the decedent is not required for the fair administration of justice. The rule and all other hearsay exceptions are rooted in the notion that they contain a sufficient guarantee of trustworthiness to serve as a sufficient surrogate for cross-examination of testimony in court. However, cross-examination is not abolished.
The very purpose of the rules of evidence is to bar unreliable evidence offered to influence the trier of fact. Although an ancient doctrine, the hearsay rule is based on the sound principle that all testimony is best considered if subject to cross-examination, our law's means to arrive at the truth." For two centuries, common law judges and lawyers have regarded the opportunity of cross-examination as an essential safeguard of the accuracy and completeness of testimony." 1 C. McCormick, Evidence (4th Ed. 1992) § 19, p. 78. Cross-examination" is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, Evidence (4th Ed. 1974) § 1367, p. 32.
Pagano v. Ippoliti, 245 Conn. 640, 656, 716 A.2d 848 (1998) (McDonald, dissenting) (admission of double hearsay not harmless).
The entire statement the plaintiff relies upon does not meet any exception to the hearsay rule. There was no indicia of trustworthiness, reliability or corroboration. Hearsay statements are insufficient to contradict facts offered by a moving party "and if an affidavit contains inadmissible evidence it will be disregarded . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." 2830 Whitney Avenue v. Heritage Can. Development Association, 33 Conn.App. 563, 567, 636 A.2d 1377 (1994). See also Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
"An affidavit is defined as a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." State v. Colon, 230 Conn. 24, 37, 644 A.2d 877 (1994) (citations omitted).
Generally speaking, affidavits are used for, and should contain, a presentation of facts by a person having knowledge of those facts, and the facts recited must be those requisite to establish the principal facts sought to be maintained . . . Specifically, as to summary judgment, [s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . . If, as one court has said, [a]n affidavit should set forth the factual picture by a person who knows the facts.
(Internal citations omitted) Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 8-9, 513 A.2d 1218 (1986).
The statements provided in the present case fail to meet the personal knowledge requirement of an affidavit. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (affidavit based on "information and belief" was insufficient). They do not indicate that the declarant possessed personal knowledge regarding the matters set forth. In short the plaintiff has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 324 (1986).
The decedent's statements were elicited prior to the commencement of this litigation. None of the defendants received notice of this procedure.
Plaintiff's counsel controlled the nature, scope and duration of the statement. It was within counsel's ability to elicit relevant, probative information. Having failed to do so, they cannot now complain of the inadequacies of a procedure they initiated.
The defendant's motion for summary judgment is granted.
DEWEY, J.