Opinion
X03CV126033069
02-11-2016
Danny Dougan et al. v. Sikorsky Airline Corp. et al
UNPUBLISHED OPINION
REVISED MEMORANDUM OF DECISION ON MOTION FOR CLASS CERTIFICATION
Grant H. Miller, J.
The court has revised its Memorandum of Decision dated February 4, 2016 for the sole Purpose of correcting a scrivener's error on page 17.
The plaintiffs, Danny Dougan, Philip Badorek, Michael Daley, William Grem, IV, and Fred Ferrara, on behalf of themselves and others similarly situated, have moved for certification as a class, submitting that this action meets the requirements of Practice Book § § 9-7 and 9-8, and of General Statutes § 52-105. The action arises out of the plaintiffs' twelve-count fourth revised complaint filed by the plaintiffs on April 1, 2013, against the defendants, Sikorsky Aircraft Corporation (Sikorsky), Carrier Corporation (Carrier), and URS Corporation AES (URS). The complaint essentially alleges that the defendants permitted the plaintiffs and others similarly situated to work on a major industrial renovation project in which the defendants knew or should have known the plaintiffs and other workers would be exposed to asbestos fibers during the period between March 2010 and July 2010. More specifically, the complaint alleges that the defendants " negligently, intentionally, and/or with reckless disregard for the health and safety of the [p]laintiffs . . . failed to remove asbestos from the work site . . . before the commencement of demolition and construction activities." The complaint alleges further that the plaintiffs " require medical surveillance, medical monitoring and future medical treatment because of their exposure to asbestos."
The complaint states sixty counts in total: twelve counts on behalf of each of the five individual plaintiffs. The various counts are substantially, if not entirely, similar with respect to each plaintiff, including their numerical order. Accordingly, any reference to " count 1, " etc., refers to that same count with respect to each of the five plaintiffs.
In addition to these three defendants, A/Z Corporation, Clean Harbors of Connecticut, Inc., and Clean Harbors Environmental Services, Inc., were also initially named as defendants in this action, but have since been removed. Where appropriate, Sikorsky, Carrier, and URS shall be referred to collectively as " the defendants."
" The rules of practice set forth a two-step process for trial courts to follow in determining whether an action or claim qualifies for class action status. First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity--that the class is too numerous to make joinder of all members feasible; (2) commonality--that the members have similar claims of law and fact; (3) typicality--that the [representative] plaintiffs' claims are typical of the claims of the class; and (4) adequacy of representation--that the interests of the class are protected adequately . . . Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book § 9-8 are satisfied. These requirements are: (1) predominance--that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority--that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Practice Book § 9-8[(3)]. Because our class certification requirements are similar to those contained in Rule 23 of the Federal Rules of Civil Procedure, and our jurisprudence governing class actions is relatively undeveloped, we look to federal case law for guidance in construing the provisions of Practice Book § § 9-7 and 9-8." (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Ins. Corp., supra, 277 Conn. 627-28; see also, General Statutes § 52-105 (" [w]hen the persons who might be made parties are very numerous, so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all").
" [C]lass actions serve a unique function in vindicating plaintiffs' rights. [C]lass action procedures . . . increase efficiencies in civil litigation by encouraging multiple plaintiffs to join in one lawsuit. Many jurisdictions have recognized that in certain situations, class action suits are superior to individual lawsuits . . . Connecticut's class action procedures . . . are designed to prevent the proliferation of lawsuits, and duplicative efforts and expenses . . . Accordingly, we have noted that class actions serve four essential and distinct functions, specifically, to: (1) promote judicial economy and efficiency; (2) protect defendants from inconsistent obligations; (3) protect the interests of absentee parties; and (4) provide access to judicial relief for small claimants." (Citations omitted; emphasis removed; internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 735, 818 A.2d 731 (2003).
Finally, " [The rule] governing class actions, is a procedural rule, not a matter of substantive law. This obvious underlying principle is important, because whether a class action is proper does not depend on the merits of the litigation. There will almost invariably be disputed questions of fact or law on the merits." (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., 244 Conn. 676, 680, 711 A.2d 700 (1998).
Which Legal Standard Applies?
The defendants base their opposition to the plaintiffs' motion on a factual standard contained in a recent decision of the United States Supreme Court: Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (Wal-Mart ). Therefore, the court must first determine whether to evaluate the plaintiffs' motion under the legal standard set forth in Collins I and Collins II, or that contained in Wal-Mart .
In Wal-Mart, the court stated: " Rule 23 [of the Federal Rules of Civil Procedure] does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule--that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common question of law or fact, etc." (Emphasis in original.) There, the court examined whether under FRCP 23, a certification of class action had been properly granted to a class of one and a half million plaintiffs who alleged a general policy of discrimination by their employer. Specifically, the representative plaintiffs, each of whom was female, alleged that the defendant possessed a corporate culture of discrimination that caused thousands of individual managers across the United States to discriminate against female employees, via either lower pay or the failure to recommend promotions. The Court concluded that the district court had improperly granted class certification because the representative plaintiffs had not provided " significant proof" that the defendant " operated under a general policy of discrimination." Wal-Mart, supra, 131 S.Ct. 2553.
The plaintiffs in Wal-Mart, supra, 131 S.Ct. 2541, did, in fact, submit evidence in support of their motion to grant class certification. Specifically, they relied upon statistical analysis, anecdotal evidence, and the report of an expert in sociology who concluded that the defendant had a corporate culture of discrimination. The Supreme Court concluded that the evidence presented either did not go to the proper issue on certification or was insufficient to support certification.
This court finds that Wal-Mart does not control as to the factual showing required in the present case for the following four reasons.
First, the defendants have not shown that Wal-Mart has been adopted in Connecticut as the relevant pleading standard. Although it is true that Connecticut courts look to federal law for guidance on issues of class certification, Macomber v. Travelers Property & Casualty Ins. Co., supra, 277 Conn. 628; this does not mean that Connecticut courts are always bound by federal law regarding certification. Connecticut does have directly binding precedent regarding the factual showing for a motion for certification of a class action. See Collins I, supra, 266 Conn. 12; Collins II, supra, 275 Conn. 309; Macomber v. Travelers Property & Casualty Ins. Co., supra, 277 Conn. 617.
Second, the standard contained in the Collins decisions, especially Collins I, is based, in part, upon the policy of Connecticut courts to construe pleadings broadly and realistically with an eye toward sustaining their legal sufficiency. Thus, in Collins I the court stated: " A trial court does not improperly [shift] . . . the burden of establishing the class action requirements by accepting the substantive allegations of the complaint as true . . . Whether, ultimately, the plaintiffs' allegation[s] . . . will be supported by the evidence presented is a question on the merits of the plaintiffs' case. In determining the propriety of a class action . . . the question is not whether the plaintiff or plaintiffs . . . will prevail on the merits, but rather whether the requirements of [the class action rules] are met." (Internal quotation marks omitted.) Collins I, supra, 266 Conn. 38; accord Collins II, supra, 275 Conn. 318.
Based upon these principles, the court concluded that proof of the facts underlying the motion for certification of class action may be required in certain cases, but it is by no means required all the time. Collins I, supra, 266 Conn. 38. Thus, it is unlikely that the Connecticut Supreme Court would adopt the Wal-Mart standard. Wal-Mart does not address the certification of a class action within the context of the Practice Book or the general policy goals of the Connecticut Supreme Court but, rather, within the context of the Federal Rules of Civil Procedure, which " impose additional constraints on trial courts overseeing class actions beyond those imposed under [Connecticut's] rules." Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 738, 818 A.2d 731 (2003). The defendants have offered no rationale as to why the Connecticut Supreme Court might see fit to depart from Collins and adopt the stricter standard contained in Wal-Mart .
Third, the Wal-Mart Court expressly concluded that under the Federal Rules, an examination of the merits of a claim was not only permissible, but very likely required in many cases. Thus, under Wal-Mart, evidence supporting the motion for class certification is typically required. In reaching this conclusion, the Court distinguished Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). In Eisen the court had stated: " We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained in a class action." Id., 177. The Supreme Court of Connecticut, however, continues to hold that an inquiry into the merits is improper when considering a motion to certify a class action. See, e.g., Collins I, supra, 266 Conn. 25; Collins II, supra, 275 Conn. 321 (although it is sometimes necessary to probe beyond the pleadings, a merits analysis is improper). In addition, because the rule governing class actions is a procedural rule, the court should follow Connecticut precedent.
Finally, the defendants' reading of Wal-Mart goes too far. A fair reading of the Court's holding is that proof is required in the context of complaints based upon allegations of subjective, systemic wrongdoing. The United States Supreme Court in Wal-Mart was particularly concerned with the fact that the representative plaintiffs alleged a corporate culture of discrimination that, in turn, caused thousands of managers to make biased, discretionary decisions. At the same time the representative plaintiffs were unable to offer any statistical evidence establishing the likely percentage of hiring and promotion decisions that actually were caused by the alleged discriminatory culture. Wal-Mart, supra, 131 S.Ct. 2553-54. However, the court's analysis implies that the result could have been different had the representative plaintiffs alleged that the discriminatory hiring practices were based, for example, on an objectively discriminatory hiring or promotion examination, as opposed to the subjective discretionary decisions of individual managers. Id., 2554. (" Wal-Mart has no testing procedure or other company-wide evaluation method that can be charged with bias.") For all of the foregoing reasons, Collins I and Collins II control.
It is also worth noting that in setting a stricter factual standard for federal class actions, Wal-Mart, supra, 131 S.Ct. 2541, did so in the context of the requirement of commonality. Meanwhile, the law in Connecticut is that " [t]he threshold of commonality is not high." (Internal quotation marks omitted.) Peruta v. Outback Steakhouse of Florida, Inc., 50 Conn.Supp. 51, 55, 913 A.2d 1160 (2006).
Requirements of Practice Book § 9-7
Practice Book § 9-7 provides: " One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
Numerosity
Practice Book § 9-7 provides " One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable . . ." Connecticut law surrounding the requirement of numerosity is sparse. New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 475, 970 A.2d 592 (2009). Nevertheless, " it is clear that a proper determination of numerosity does not require application of any rigid formula, but rather, by a flexible inquiry taking into account the entirety of the particular action. There is no magic number for determining whether, in a particular case, joinder of all putative parties will be impracticable . . . [Rather] [t]he issue is one to be resolved in light of the facts and circumstances of the case . . . Furthermore, [the numerosity requirement . . . does not mandate that joinder of all parties be impossible--only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 475-76. " Though speculation about the size of the class will not suffice . . . an estimate based on reasonable inferences drawn from available facts satisfies the requirement--particularly where . . . more precise information is within the defendant's control." (Citations omitted; internal quotation marks omitted.) Peruta v. Outback Steakhouse of Florida, Inc., supra, 50 Conn.Supp. 54; accord Arduini v. Automobile Ins. Co. of Hartford, Connecticut, 23 Conn.App. 585, 590, 583 A.2d 152 (1990).
" Courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement." Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Rather, the number of potential plaintiffs can range from very small to very large. See, e.g., Peruta v. Outback Steakhouse of Florida, Inc., supra, 50 Conn.Supp. 51 (several hundred potential plaintiffs satisfies numerosity requirement); Toms v. Physicians Health Services, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-01-0167077-S, (October 24, 2002) (sixty-four potential members sufficient); Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D.Pa. 1990) (a court " may certify a class even if it is composed of as few as 14 members"); Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y. 1980) (" hundreds" of welfare recipients).
" Decisions of the Second Circuit Court of Appeals, although not binding on [Connecticut courts], are particularly persuasive." (Internal quotation marks omitted.) Collins I, supra, 266 Conn. 34 n.17.
Numbers are not the only consideration. Robidoux v. Celani, supra, 987 F.2d 936. The numerosity inquiry must take stock of all the circumstances surrounding the case. New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 476. " Relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members." Robidoux v. Celani, supra, 987 F.2d 936.
In this case, the number of plaintiffs, combined with the allegation that the defendants miscommunicated important facts to the class members, are major factors in this court's finding that the numerosity prong is satisfied. The plaintiffs here allege on information and belief that there are approximately forty members, comprised of individuals working for several different contractors as well as several employees of Sikorsky. Based upon the arguments made in their brief, the plaintiffs appear to have arrived at this number by looking to the number of companies involved in the renovation project and the number of employees from each company present on the work site. In addition, the plaintiffs contend that the defendants were selective in their notification of the various workers at the work site concerning the presence of asbestos there. These allegations are sufficient to satisfy the requirement of numerosity.
The defendants rely upon Campbell v. New Milford Board of Education, 36 Conn.Supp. 357, 423 A.2d 900 (1980), for the proposition that an evidentiary showing of the number of potential plaintiffs is required before a court may make a finding that numerosity has been satisfied. Given that Collins I and Collins II were decided subsequent to the decision in Campbell, to the extent Campbell stands for the proposition that evidence is required as to numerosity, that case is no longer good law.
Adequacy of Counsel
The court has carefully considered the performance of plaintiffs' counsel to date, and has found that they are thoroughly qualified to represent any class which the court certifies in this case.
Commonality and Typicality
The two requirements of commonality and typicality have much in common, and it is useful to address them at the same time. Both serve as guideposts for determining whether, under the circumstances confronting the court maintenance of a class action is economical and whether the named plaintiff[s'] claim [for which the court has granted class certification] and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence . . . These requirements effectively limit the class claims to those fairly encompassed by the named plaintiff[s'] claims." (Citation omitted; footnote omitted; internal quotation marks omitted.) Collins I, supra, 266 Conn. 33-34.
As discussed below, if a court concludes that it is appropriate to certify a class action as to certain issues only--that is to say, as a partial class action the named plaintiffs' claims need only be typical of the issues certified. Collins I, supra, 266 Conn. 33 n.16.
Practice Book § 9-7(2) provides: " One or more members of a class may sue or be sued as representative parties on behalf of all only if . . . (2) there are questions of law or fact common to the class . . ." The commonality requirement " is easily satisfied because there need only be one question common to the class." Collins II, supra, 275 Conn. 323; Peruta v. Outback Steakhouse of Florida, Inc., supra, 50 Conn.Supp. 55 (" [t]he threshold of commonality is not high" [internal quotation marks omitted]).
" [T]he commonality requirement is met if [the] plaintiffs' grievances share a common question of law or of fact." (Internal quotation marks omitted.) Collins I, supra, 266 Conn. 34. " In short, commonality is satisfied where the question of law linking the class members is substantially related to the resolution of the litigation even though individuals are not identically situated." (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., supra, 244 Conn. 682. " [Each] common [issue] [however] must be one the resolution of which will advance the litigation. The commonality requirement is satisfied as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation." (Internal quotation marks omitted.) Collins II, supra, 275 Conn. 324.
For example, Connecticut courts have looked to whether resolution of the issues in the action will require the presentation of common evidence. Id. Under Wal-Mart Stores, Inc. v. Dukes, supra, 131 S.Ct. 2551, the relevant inquiry is " not the raising of common 'questions'--even in droves--but, rather, the capacity of a class-wide proceeding to generate common ' answers ' apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." (Emphasis in original.)
Despite the earlier conclusion that Wal-Mart does not provide the correct legal standard as to the facts of the case, that conclusion does not preclude the court from looking to Wal-Mart in other respects.
Furthermore, it is settled law in Connecticut that the mere fact that the issue of damages may vary from plaintiff to plaintiff within a class is not grounds to deny class certification. See, e.g., Collins II, supra, 275 Conn. 326 (" [t]he fact that class members must individually demonstrate their right to recover, or that they may suffer varying degrees of injury, will not bar a class action [on commonality grounds]" [internal quotation marks omitted]); Collins I, supra, 266 Conn. 36 (" [t]hat there may be individual consideration of the issue of damages has never been held to bar certification of a class" [internal quotation marks omitted]); accord, Marr v. WMX Technologies, Inc., supra, 244 Conn. 682 (same).
In addition, Connecticut recognizes the validity of partial class actions, in which the court certifies a class action as to certain issues only. Collins I, supra, 266 Conn. 25-28.
The court finds that there are enough significant similarities between the likely class members' claims that the typicality requirement has been met.
Practice Book § 9-7(3) provides " One or more members of a class may sue or be sued as representative parties on behalf of all only if . . . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class . . ." " Typicality . . . requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class members makes similar legal arguments to prove the defendant's liability . . . The typicality criterion does not require that the factual background of each named plaintiff's claim be identical to that of all class members; rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." (Citation omitted; internal quotation marks omitted.) Collins I, supra, 266 Conn. 34. In this case, there are disputed issues, such as the nature and extent of exposure of each plaintiff, and whether, as is presently alleged, that one or more defendants concealed from class members that asbestos had not been removed from the worksite before their work began, which are central to every plaintiff's case.
Thus, " [w]hen it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." (Internal quotation marks omitted.) Peruta v. Outback Steakhouse of Florida, Inc., supra, 50 Conn.Supp. 56.
Practice Book § 9-7(3) provides " One or more members of a class may sue or be sued as representative parties on behalf of all only if . . . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class . . ." " Typicality . . . requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class members makes similar legal arguments to prove the defendant's liability . . . The typicality criterion does not require that the factual background of each named plaintiff's claim be identical to that of all class members; rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." (Citation omitted; internal quotation marks omitted.) Collins I, supra, 266 Conn. 34.
The defendants argue that the potential class members here include a significant number of Sikorsky and Carrier employees whose exclusive remedy here would be the Workers' Compensation Act. General Statutes. § 31-284. Plaintiffs respond that the exclusivity provisions of § 31-284 do not apply to claims against parent or subsidiary corporations.
The court finds that the requirement of typicality has generally been satisfied by the plaintiffs. In this case, the named plaintiffs' claims each allege that the defendants negligently, recklessly, or intentionally allowed the plaintiffs to be exposed to asbestos fibers when the defendants knew or should have known of the presence of such fibers at the work site and nevertheless misrepresented that the work site was free of asbestos. These claims are typical of the claims of the prospective class in that the same allegedly unlawful conduct is the centerpiece of each class members claim. That is to say, the representative plaintiffs' claims involve the same central allegations of fact as the claims of each likely class member.
Defendants' arguments on the commonality argument are another matter. They submit that the plaintiffs' claims cannot be common to all class members because the class includes a number of Sikorsky and Carrier employees, for each of whom the Workers' Compensation Act provides the exclusive remedy. General Statutes § 31-284. The plaintiffs respond that the exclusivity provision of § 31-284 does not apply to claims against parent or subsidiary corporations. The plaintiffs also argue that because the defendants intentionally misled the employees about asbestos exposure, public policy concerns weigh in favor of class certification, in part because Sikorsky and Carrier employees may not be aware of their exposure to asbestos.
Furthermore, the plaintiffs submit that, if some of their putative class members qualify as " employees" subject to the Workers' Compensation " exclusive remedy" rule, that this bar does not apply to them.
Defendants also argue that the various, putative members of the class may well have had very different exposures to asbestos while working on the Sikorsky Plant and would therefore have very different needs for medical monitoring
Section 31-284(a) provides in relevant part: " An employer . . . shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees . . . All rights and claims between an employer . . . and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter . . ."
The only decision in Connecticut which appears to have addressed the effect of the exclusivity provision of the Workers' Compensation Act upon a motion for class certification is Hawks v. Light, Superior Court, judicial district of Fairfield, Docket No. CV-97-0348494, (April 6, 1998). There, the plaintiff brought causes of action for negligence, recklessness, and lack of informed consent against a medical doctor and the town of Monroe, alleging that she received an inoculation against influenza via a syringe that had been used on previous patients. In response to the plaintiff's motion for certification of class action, the town contended that there was no numerosity or typicality because many plaintiffs within the purported class were town employees whose causes of action fell within the exclusivity provision of the Workers' Compensation Act. The court, agreeing that individuals whose claims were covered by the Workers' Compensation Act could not be members of the class, concluded that the plaintiff's motion had to be dismissed without prejudice because the court lacked sufficient evidence by which to conclude the proportion of potential plaintiffs who were employees.
This case is not as straightforward as Hawks due to the relationship of the defendants involved. More particularly, the plaintiffs are correct that various putative class members, who are, for example, employees of Sikorsky, may nonetheless have claims against subsidiary corporations such as Carrier because " [a]s a matter of law, a parent corporation cannot ordinarily claim the workers' compensation defense for an employee who works for a subsidiary corporation . . . The mere fact that a plaintiff's employer is a subsidiary of a defendant corporation does not compel the court to treat the defendant as the plaintiff's employer for the purpose of the act. See Wheeler v. New York, N.H. & H.R. Co., 112 Conn. 510, 153 A. 159 (1931). In fact, the courts of Connecticut and other states do not allow the parent corporation to claim the workers' compensation defense by claiming that it is the alter ego of a subsidiary, by a reverse application of the doctrine of piercing the corporate veil, or that the parent and subsidiary corporations are so intertwined as to be a single entity . . . The doctrine of piercing the corporate veil is not customarily used for the benefit of the corporations involved." (Citations omitted; internal quotation marks omitted.) Amburn v Kindred Healthcare Operating, Inc., Superior Court, judicial district of New London, Docket No. CV-4002335 (December 13, 2006) (42 Conn. L. Rptr. 469, 470, *10) .
In addition, the plaintiffs' claims for recklessness and battery each allege serious misconduct that they argue may qualify for the willful/intentional misconduct exception to exclusivity. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) See also; Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 924 A.2d 150 (2007); Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 666, 613 A.2d 838 (1992) (" intentional torts committed by an employer constitute an exception to the exclusivity of the workers' compensation remedy"), overruled on other grounds by, Hart v. Carruthers, 77 Conn.App. 610, 618-19 n.5, 823 A.2d 1284 (2003).
It is very difficult to prevail on a Suarez claim. The undersigned, who was the trial judge affirmed in Martinez, supra, has concluded that a plaintiff who tries to maintain a Suarez cause of action has to date had an extremely heavy burden of proof, nearly indistinguishable from proving intentional, tortious conduct.
It is not this court's present responsibility to decide a Suarez claim by any current or likely future member of this potential class. What is important is for the court and counsel to understand that some of the now and potentially future class members may well have to litigate this fairly complex issue while other class members will not.
Defendants also argue that the various, putative members of the class may well have had very different exposures to asbestos while working on the Sikorsky Plant and would therefore have very different needs for medical monitoring.
The nature of the relief sought works against the plaintiffs on this issue. While the plaintiffs here seek only medical monitoring, this hardly streamlines the process. In order to decide the particulars as to what kind of medical monitoring a class member needs, and how often, a factfinder would have to make several conclusions from the evidence, including, but not limited to, the following:
1. The nature and extent of exposure while working on the defendants' premises;
2. The class member's current medical condition;
3. What kind of medical monitoring does the class member need now, how often would he or she need it and what would it probably cost?
4. What is the class member's long-term medical prognosis with respect to the development or aggravation of any disease related to exposure to asbestos?
5. Was an exposure to asbestos at the Sikorsky facility a proximate cause of each plaintiff's future need for medical monitoring?
6. Is there anything else in each plaintiff's medical and/or employment and/or social (i.e. smoking) history which could be another/the only proximate cause of any lung-related medical problem which is revealed by medical monitoring?
This list, which is obviously not meant to be exhaustive, lists some of the major issues which could very well confront every member of the class. If the existence of these issues required a trial for each class member, this would not be conducive to the efficient resolution of the various, putative class members' claims.
This court has therefore concluded that plaintiffs have not demonstrated, for purposes of this motion, the requisite commonality which courts in this state have generally required before certifying a class and allowing a class action to continue.
This finding does not require the court to deny this motion, because it has been the law in Connecticut at least since our Supreme Court recognized the " partial class action" as a potential remedy in Collins I, supra, 266 Conn. 25-28. Justice Borden went on to state that this doctrine allowed a court to certify a class only for the claims and issues for which the § § 9-7 and 9-8 requirements have otherwise been met.
Before addressing this idea further, the court must first address the additional requirements found in § 9-8(3). The issue of " predominance, " requires a finding that the factual and legal issues which apply to the class predominate over those applying to individual members. At this point in the life of this case, it is not clear just how issues pertaining to some, but not all class members will be litigated. It may become necessary to create subclasses, such as, speaking theoretically all plaintiffs who were employees of Sikorsky or Carrier when exposed or, if applicable, class members who have medical problems which they attribute to this exposure, or many other potential factors which cannot yet be determined.
In any event, any claim brought by any person entitled to join this class will still have to establish many facts which are common to all members of the class. The court therefore finds that plaintiffs have established the necessary predominance.
The court must also find, under section 9-8(3), that " a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Although this is hardly a textbook example of what a class action lawsuit should look like, the court finds that plaintiffs have met their burden on this issue. Counsel here are extremely well qualified to work with the court to devise a framework for this litigation which will classify the individual claims by the alleged injuries and unique facts which may exist, in order to create subclasses or identify " bellwether" cases which are substantially similar to other cases. If there are a significant number of defendants' employees in the class, it might be advisable to litigate the " exclusive remedy" issues in those cases--via dispositive motions--before other things happen.
None of this is anything more than a random thought at this point, but it is clear that the parties and the court can still benefit from considerable efficiencies and economies if this matter is handled as a class action.
ORDER
For all of the foregoing reasons, the Motion for Class Certification is granted in part and denied in part as follows:
1. Plaintiff's motion is Denied insofar as it seeks class status on the following issues:
A. For each class member employed by either Sikorsky Aircraft Corporation or Carrier Corporation, the issue of whether the class member is barred from proceeding with this action because of the " exclusive remedy" provisions of the Workers' Compensation Act; and
B. For each class member, the nature and extent of his or her present or future need for medical monitoring, insofar as the need for such monitoring was proximately and proportionately caused in one or more ways alleged by the class (or any subclass thereof).
2. The motion is Granted in all other respects.
The court will arrange a status conference as soon as possible to discuss this decision and plan a course for future action.