Opinion
No. CV09 5018435 S
July 1, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMIENT (Motion #267.00)
FACTS
On April 6, 2010, the plaintiffs, William Dinneen and Donna Anderson filed an amended complaint in this action, alleging that Dinneen was exposed to asbestos from products associated with multiple defendants and, as a result, the plaintiffs suffered various damages. The amended complaint alleges the following. Each of the defendants or their predecessors in interest conducted business in the state of Connecticut and produced, manufactured or distributed asbestos or products containing asbestos. Dinneen was exposed to asbestos-containing products with some connection to the defendants while working in Connecticut as an insulator in 1966-1967 and was secondarily exposed due to his father's work as an insulator from 1949-1970. This exposure contributed to Dinneen's contraction of asbestos-related mesothelioma and other asbestos-related pathologies. As a result of the defendants' activities, Dinneen has sustained permanent injuries and suffered from asbestos-related ailments.
The summons and original complaint identify the second named plaintiff as Donna Anderson; the amended complaints refer to her as "Denise Anderson," which appears to be a scrivener's error.
On September 8, 2008, the plaintiffs filed their original complaint in this action. The plaintiffs subsequently moved to cite in additional parties on October 30, 2008, and the subsequent amended complaint named Sun Chemical Corporation (the defendant) in three counts. In count one, Dinneen claims damages for product liability under General Statutes § 52-572m et seq. In count three, Anderson alleges loss of consortium. Count four alleges grossly negligent, willful, wanton, malicious and/or outrageous conduct for which Dinneen requests punitive damages under General Statutes §§ 52-240a and 52-240b.
On January 11, 2011, the defendant filed a motion for summary judgment along with a supporting memorandum of law and a supporting exhibit of the plaintiff's job site list. The plaintiffs filed a memorandum in opposition to the motion for summary judgment with supporting exhibits on February 3, 2011. The defendant filed a memorandum in reply with two additional supporting exhibits on March 30, 2011. The court heard oral argument at short calendar on April 11, 2011. The court allowed supplemental briefs to be filed with respect to the defendant's objections to the admissibility of the evidence. The defendant filed a supplemental reply on April 18, 2011.
DISCUSSION I
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "On a motion by [the] defendant for summary judgment the burden is on [the] 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 his 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." (Internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).
The defendant moves for summary judgment on the ground that the plaintiffs have submitted no evidence to establish that Dinneen was exposed to asbestos, including the inhalation of respirable asbestos fibers, from any of the defendant's products. The defendant maintains that there are no questions of material fact concerning Dinneen's exposure to any of its products and, therefore, the defendant is entitled to judgment as a matter of law. In response, the plaintiffs argue that the motion for summary judgment should be denied because, based on their six attached exhibits, the defendant does not "prove the nonexistence of all genuine issues of material fact." Further, the plaintiffs contend that they have provided admissible evidence that Dinneen was exposed to the defendant's asbestos-containing product while working for Cerro Wire and Cable, now known as Rockbestos, a nonparty in this case, and that they are entitled to their day in court. The defendant's reply memorandum and subsequent pleadings maintain that the plaintiffs still have not offered any admissible evidence as to the presence of the defendant's products at Dinneen's job sites. In the defendant's supplemental memorandum the defendant objects again, on the ground of hearsay, to the admissibility of discovery responses filed in another asbestos claim in 2002, by Rockbestos.
General Statutes § 52-572m(b) states that a product liability claim "includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent."
General Statutes § 52-572n(a) provides: "A product liability claim as provided in sections 52-240a [award of attorneys fees], 52-240b [punitive damages], 52-572m to 52-572q, inclusive, and 52-577a [statute of limitations] may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty for harm caused by a product."
"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 plaintiffs' injuries." (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 218, 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." (Internal quotation marks omitted.) Lee v. ACMAT Corp., Superior Court, judicial district of Fairfield, Docket No. CV 03 0403244 (September 3, 2004, Dewey, J.) citing Roberts v. Owens-Corning Fiberglass Corp., 726 F.Sup. 172, 174 (W.D.Mich. 1989).
To meet its initial burden for summary judgment and show that Dinneen has not established that he was exposed to one of its products containing asbestos, the defendant relies on the plaintiff's pleadings and has attached one exhibit, entitled "William Dinneen jobsite list." As stated previously, the factual allegations of the complaint allege that Dinneen suffered damages from exposure to asbestos or asbestos-containing products. The facts alleged, however, do not specifically identify any of the defendant's asbestos-containing products to which Dinneen was exposed. Because no products of the defendant are identified, the plaintiffs cannot demonstrate that they contained asbestos or that such products were a substantial factor in causing Dinneen's injuries. Likewise, the exhibit entitled "William Dinneen jobsite list," which purports to list the dates when Dinneen worked at particular job sites and what occupation Dinneen held while working at the specified job sites, does not include any reference to the defendant or any of the defendant's products. Based on the foregoing submissions, the defendant has established that Dinneen was not exposed to any products containing asbestos made by the defendant and there are no genuine issues of material fact with respect to this issue.
The job site list states that during 1970-1971 Dinneen worked as a computer operator. The only job site listed for these dates is at the Union Trust Bank in New Haven. The next job listed is Giant Shirt in 1974 where he worked as a computer programer; the Millstone plant in Waterford as a worker on steam generators for two weeks during 1974 or 1975; the Banking Center in Waterbury as a computer programer from 1974 through 1979; and the City Trust Bank in Trumbull as a computer programer from 1979 through 1988.
Viewing the factual allegations of the complaint and the attached exhibit in the light most favorable to the nonmovant, the defendant has met its initial summary judgment burden. The summary judgment burden now shifts to the plaintiffs to show the existence of some genuine issue of material fact.
II.
In order to establish that there are issues of material fact in dispute, the plaintiffs have submitted six evidentiary exhibits with their memorandum in opposition. The plaintiffs argue that these exhibits create a genuine issue of fact that Dinneen was exposed to asbestos from the defendant's products while working at Rockbestos. In particular, the plaintiffs contend that the evidence indicates that the defendant was a supplier of asbestos-containing tape during the time when Dinneen worked at Rockbestos, which raises an issue of fact that Dinneen could also have been exposed to the defendant's asbestos-containing products at his workplace.
These exhibits include an excerpt from Dinneen's deposition testimony, taken on November 3, 2008 (exhibit 1); the deposition testimony of Alphonse Lucibello, an exhibit of a separate legal proceeding and taken on April 16, 2001 (exhibit 2); the responses of Rockbestos-Suprenant Cable Corp. to interrogatories in the matter of Ciccomascolo v. Acands, Inc., Superior Court, judicial district of Fairfield, Docket No. BA 02 0390687, dated April 19, 2002 (exhibit 3); the deposition of Sun Chemical Corp's designee, Michael Gurrieri, taken in the matter of Boyle v. 84 Lumber Co., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001466, dated May 21, 2007 (exhibit 4); and the 1999 affidavit and 1985 deposition testimony of Edward Holstein, M.D. (exhibits 5 and 6).
For the plaintiffs to meet their burden of demonstrating the existence of a genuine issue of material fact, this court must determine whether the evidence upon which the plaintiffs rely is admissible. The plaintiffs have submitted six exhibits. The defendant has not objected to the admissibility of Dinneen's deposition. As to the affidavit and deposition of Dr. Holstein, who was engaged in asbestos-related disease research, including research on the aerodynamic features of asbestos fibers, the defendant merely maintains that this evidence is irrelevant "without other evidence to show that [the defendant's] products are involved."
The defendant argues in its reply memorandum, however, that none of the plaintiffs' evidence demonstrates that Dinneen had any contact at his work site with its products and that the plaintiffs "may not rely upon mere assertions of fact, conjecture or hearsay to support their [opposition to the defendant's motion]." Specifically, the defendant objects to the following evidence: (1) Plaintiffs' exhibit 2, the deposition testimony of a former client of the plaintiffs' counsel, Alphonse Lucibello, a nonparty from another lawsuit, whose statements are being offered to testify about the "air and conditions at Rockbestos"; and (2) Plaintiffs' exhibit 3, answers to discovery by Rockbestos, filed in another asbestos claim in 2002, offered to show that a division of the defendant's at one time known as the Facile Division did supply an asbestos containing tape between 1970 and 1986 to Rockbestos. The defendant argues that the statements for which these two exhibits are being offered are hearsay and inadmissible.
Submitted with the defendant's reply memorandum are excerpts from the deposition testimonies of Michael Gurrieri, dated May 21, 2007 (Defendant's exhibit 1) and Martin Healy, a former employee at Sun Chemical, dated September 26, 2007 (Defendant's exhibit 2). Both of these excerpts were originally exhibits in another matter, entitled Boyle v. 84 Lumber Co., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001466. The defendant maintains that it has submitted these exhibits to provide the court with a complete rendering of a "slightly misleading" deposition excerpt submitted of Gurrieri by the plaintiffs in their exhibit four. The defendant argues that the additional excerpts clarify that the only asbestos-containing product that was mentioned in the defendant's document was known as "Lamiglas," a "shielding tape product," and sold only under that name. There was no testimony or evidence, the defendant asserts, that the "AM asbestos mylar tape," referenced in the plaintiff's opposition memorandum, was the same product as "Lamiglas," and therefore, a product of the defendant's. Moreover, based on his records, Gurrieri testified that there was no reference to Rockbestos as a customer of the Facile Division. To bolster Gurrieri's testimony, the defendant also included excerpts from Healy's deposition. Healy testified that the only asbestos containing product sold by Facile would have been called "Lamiglas," that he had no knowledge of the AM asbestos mylar product as one of the defendant's products, and that Rockbestos was not a former client. Thus, the defendant maintains that the plaintiffs cannot establish that any of its asbestos-containing tape was sold to or used at Dinneen's workplace with Cerro Wire and Cable.
At oral argument, the defendant again objected to the use of the Rockbestos answers to interrogatories as hearsay. The defendant argued that the plaintiffs were offering these responses as evidence that this product existed and was used at the time that the plaintiff worked at Cerro Wire and Cable. In addition, the defendant again objected to the use of the deposition of Gurrieri taken in another asbestos case and offered by the plaintiffs to show that a division of the defendant's sold an asbestos containing product. The defendant reiterated that because the deposition excerpt was misleading, it included the additional pages from that deposition testimony as its exhibit one.
At oral argument, the plaintiffs took the position that Rockbestos' old answers to interrogatories were not hearsay, but are statements against interest by a third party that were sworn and attested to under penalty of perjury. The plaintiffs maintained that because Rockbestos had "provided these answers to interrogatories in other cases [and] [t]hese [were its] standard answers . . . in every jurisdiction," they were admissible. As to the deposition testimony of Gurrieri, a corporate representative of the defendant, the plaintiffs argued that his testimony was an admission by a party opponent, regardless of whether it was taken in another lawsuit. The plaintiffs also argued that the issues about asbestos drift were relevant to establish that if asbestos was being used in one area it would diffuse throughout the entire plant exposing everyone to it. Therefore, the plaintiffs concluded that asbestos drift and exposure to it is a question for the jury to determine. The defendant's rebuttal to the drift argument was that the plaintiffs provided no evidence that it was the defendant's product that was being released in the air for Dinneen to breathe.
From what the defendant argued at short calendar, it does not appear that the defendant is objecting to the court's consideration of Gurrieri's deposition. Although this deposition testimony has not been properly authenticated, the court in its discretion may consider this evidence because both parties have relied upon it to support their arguments and the defendant appeared to withdraw the objection at oral argument. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (holding court may consider "uncertified deposition transcripts" that both parties submitted where neither party objected to their admission).
I will first consider the objections to the plaintiffs' exhibits and then address whether the plaintiff has met its burden to show that an issue of material fact exists such that summary judgment should be denied. With respect to plaintiff's exhibit two, the deposition testimony of Lucibello taken on April 16, 2001 in another case, whose statements are being offered for the truth of the matter concerning the air and conditions at Rockbestos to show that Dineen was exposed to the defendant's alleged asbestos products at his job site, the defendant's hearsay objection is well-taken.
"[H]earsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein . . ."(Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 757, 680 A.2d 301 (1996). Hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment; Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007); and is "insufficient to contradict facts offered by the moving party . . ." 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, CT Page 14731 636 A.2d 1377 (1994).
The deposition testimony of Lucibello consists of two pages, pages 17 and 18. Page 17 starts in the middle of an answer and page 18 ends with an answer. The deponent states that he worked respooling wire for Rockbestos on Chapel Street in New Haven. The job then moved to Canner Street. Later when an "asbestos job opened," he worked on coating wire with asbestos. He further testified that the asbestos came from a "blue box" from a ship from South America. The plaintiffs do not provide any evidence as to when this deponent, Lucibello, worked at Rockbestos, whether he worked with Dinneen at Rockbestos and how these statements are relevant to the air and conditions at Rockbestos and Dinneen's proximity to the machines on the first floor and to any asbestos containing products used by Rockbestos at the time of Dinneen's employment. Nonetheless, if the plaintiffs are offering the statements for the truth of the matter therein, they are inadmissible as hearsay. At oral argument the plaintiffs failed to offer a nonhearsay basis or hearsay exception under which these statements could be admitted.
With respect to plaintiffs' exhibit three, answers to interrogatories by Rockbestos prepared on April 19, 2002 for another asbestos case, Ciccomascolo v. Acands, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 02 0390687, the plaintiff argues that these answers are not hearsay but statements against interest by a third party and, therefore, admissible. At issue is Rockbestos' answer that lists the manufacturers and the time periods in which it was provided with "raw chrysotile asbestos fiber to be bonded, saturated, and encapsulated into its asbestos-containing wire and cable products." One of the manufacturers is "Facile Division of Sun Chemical Corp. supplied AM asbestos mylar tape between 1970 and 1986." The interrogatory answers are signed and certified by the Vice President of Finance and current consultant of Rockbestos that the answers are true and correct to the best of his knowledge.
For a statement to be admissible under the hearsay exception as a statement against civil interest, the declarant must be unavailable as a witness; the declarant must have personal knowledge of the facts in the statement; the statement must be against pecuniary, proprietary or penal interest at the time the statement was made; and the statement must be trustworthy. Conn. Code Evid. § 8-6(3). Even if this court were to conclude that under the circumstances, Rockbestos is unavailable, it is not clear how this statement was against the pecuniary interest of Rockbestos and how this statement is being used against Rockbestos. As such, the statements are inadmissible hearsay.
In the present case the admissible exhibits supplied by the plaintiffs provide the following relevant information. In the two-page excerpt of Dinneen's deposition testimony, taken on November 3, 2008, Dinneen described the Cerro Wire and Cable facility where he worked. Dinneen described "braider machines" that coated electrical cords and other "heavy machinery." Dinneen worked on the second floor separate from the manufacturing area on the first floor, but these areas were connected by a large "unsealed" stairwell. Dinneen stated that he periodically went to the first floor to observe the machines. Dinneen appeared to be unaware that any asbestos was used in the manufacture of the wire and cable on the first floor.
In Gurrieri's deposition, he testifies that "Lamiglas," a shielding tape, was the only product which contained asbestos that was manufactured by the Facile Division and that the AM asbestos mylar tape was not made by Facile. There was no evidence submitted by the plaintiffs that Dinneen was ever exposed to Lamiglas and, in fact, Dinneen testified that he was unsure whether Cerro Wire and Cable ever used any asbestos in the manufacture of its wire and cable. The deposition and affidavit of Holstein consist of expert testimony on the harmful nature of asbestos and the behavior of airborne asbestos fibers. These exhibits do not address or add anything to the factual allegations to this cause of action; they neither make mention of the defendant, nor identify any of the defendant's products as containing asbestos.
The exhibits properly submitted by the plaintiffs do not present any genuine issues of material fact as to whether the defendant's products contained asbestos, whether Dinneen was exposed to or came into contact with the defendant's asbestos-containing products or whether such an exposure was a substantial factor in causing the plaintiffs' injuries. This is true even when viewed in the light most favorable to the nonmoving party. Accordingly, the defendant's motion for summary judgment is granted.