Opinion
No. HHD X04 CV-04-4034705 S
May 19, 2008
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
The following matters are before the court on the defendant Mine Safety Appliance Company's (MSA) motions for summary judgment concerning certain of the plaintiffs' allegations against MSA in consolidated cases: the above-captioned matter; Ronald Foular v. Mine Safety Appliances Company, Docket No. HHD X04 CV 04 4034597; David W. Karlson v. Mine Safety Appliances Company, Docket No. HHD X04 CV 04 4034641; and Richard Patterson v. Mine Safety Appliances Company, Docket No. HHD X04 CV 04 4034666. Since it was reported as settled, the court does not address MSA's motion in Walden J. Smolen v. Mine Safely Appliances Company, Inc., Docket No. HHD CV X04 04 4034730.
These cases have arisen from an explosion at a facility of Pfizer, Inc., in Groton, Connecticut, on June 25, 2002. Individual plaintiffs have brought actions against MSA, which supplied to Pfizer a number of cylinders containing a chemical reagent referred to as BTHF2M. Pfizer has brought an action for damages also.
The parties presented oral argument on April 14, 2008. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons set forth below, the motions are denied.
I STANDARD OF REVIEW
"To succeed on a motion for summary judgment, [t]he movant must show 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 . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[I]n 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[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id., 586.
"[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). A preliminary showing of genuineness is required. See id., 679, citing Conn. Code of Evidence § 9-1. However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).
The court notes that, in support of its motions, MSA has presented additional evidence with its reply, dated April 2, 2008 (#261), which it states is submitted in all of the cases. The plaintiffs objected to this belated presentation. "[I]t is improper to raise new issues or present new evidence in a reply brief, because the opponent has no fair opportunity to respond. See Collard Roe, P.C. v. Klein, CT Page 8310 87 Conn.App. 337, 343-44 n. 3, 865 A.2d 500, cert. denied, 274 Conn. 904, 876 A.2d 13 (2005)." Haynes Construction Co. v. Newtown, Superior Court, judicial district of Danbury at Danbury, Docket No. CV 04 0352007 (October 14, 2005, Schuman, J.), n. 8. Accordingly, the court has not considered the new evidence presented in MSA's reply.
II DISCUSSION A Product Liability
In its motions, MSA seeks partial summary judgments, as to portions of the counts of the complaints, which are premised on the Connecticut Product Liability Act (CPLA), General Statutes § 52-572m et seq. The allegations concern MSA's sale to Pfizer of a chemical substance, known as 2 Molar Borane-tetrahydrofuran Complex in a solution of Tetrahydofuran (BTHF2M), which allegedly exploded at Pfizer's Groton, Connecticut facility on June 25, 2002, causing Pfizer employees to suffer serious physical injuries and Pfizer to incur damages. In the motions, MSA asserts that (1)29 C.F.R. § 1910.1200 of the Occupational Safety and Health Act (OSHA) regulations preempts the provision of the CPLA associated with safety warnings for hazardous chemicals and preempts any warranty claims; (2) MSA did not breach its duty to provide adequate warnings and instructions; (3) MSA's warnings and instructions were not the proximate cause of the plaintiffs' damages and losses; and (4) the plaintiffs failed to disclose an expert with regard to their claims associated with the design of the cylinder in which the BTHF2M was provided.
The product liability counts in the complaints contain numerous allegations of claimed liability. For example, in the first count in the revised complaint in Ronald Foular v. Mine Safety Appliances Company, Docket No. HHD X04 CV 04 4034597, paragraph 34 concerns alleged representations made by MSA. Paragraph 36 contains 16 subparagraphs, with allegations concerning design, manufacture, warnings, labels, instructions, inadequate packaging, improper or inadequate testing, improper or inadequate fabrication, and inadequate or improper precautions concerning the cylinder. Paragraphs 38 through 43 allege breaches of express and implied warranties.
Except for its motion as to Pfizer, and except for its arguments that the plaintiffs have not disclosed an expert on their claims of defective cylinders, MSA's motions and MSA's memoranda do not specify which paragraphs of the product liability counts are intended to be the subjects of the motions, and, therefore, as to which parts of the counts MSA seeks the entry of judgment.
"[D]efendants are entitled to summary judgment on [a] count only if they can show lack of a genuine issue of material fact and that they are entitled to judgment as a matter of law. A defendant who successfully defends against some — but not all — of the allegations of a cause of action does not become entitled to judgment. This is so because a plaintiff who alleges multiple transgressions in a single count is not obliged to prove them all. The plaintiff is entitled to judgment on that count so long as at least one specification of the cause of action is proved . . . For that reason it has been held that Connecticut does not have a procedure for rendering judgment for a defendant on part of a count unless it disposes of all the issues in a count." (Footnote omitted; internal quotation marks omitted.) Lee v. BSB Greenwich Mortgage, LP, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV04 0200344 (August 31, 2007, Jennings, J.).
Whether or not summary judgment may be granted as to part of a count in a complaint has been addressed by numerous Superior Court decisions over many years. "The court has found no appellate authority which permits summary judgment in favor of the defendant against the plaintiff for a portion of a count in the complaint. At the Superior Court level, there is some division of authority about the issue. The better reasoned opinions, however, conclude that it is not possible to render summary judgment on part of a count of a complaint." Cave v. Farm Family Mutual Insurance Co., Superior Court, judicial district of Waterbury, Docket No. CV 95 0125978 (December 31, 1996, Vertefeuille, J.) ( 18 Conn. L. Rptr. 396). See Smith v. New Milford Hospital, Inc., Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 00 0081384 (July 13, 2001, DiPentima, J.) (same). "[S]ummary judgment may not be granted only as to some issues of liability within the count." Bank of Boston Conn. v. Southbury Hotel Associates, Superior Court, judicial district of Waterbury, Docket No. 111813 (July 18, 1994, Pellegrino, J.).
While there still appears to be no definitive appellate authority and there continues to be a split in the Superior Court, "the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment." (Footnote omitted.) Snodgrass v. Mulhearn, Superior Court, judicial district of New Britain at New Britain, Docket No. HHB CV 03 0523029 (May 18, 2006, Shaban, J.) (noting absence of appellate authority and collecting cases). A recent explanation stated, "the majority rule . . . is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore, will not allow entry of judgment on that claim. See generally Practice Book § 17-51." (Footnote omitted.) Bridgeport Harbor Place I, LLC v. Ganim, Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. X06 CV 04 0184523 (October 5, 2007, Stevens, J.).
MSA relies on Practice Book § 17-51, which provides, "[i]f it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim." "Practice Book § 17-51 . . . permits discretionary severance of so much of a claim as a defense does not apply to, so as to permit partial summary judgment for a moving plaintiff, but there is no equivalent provision applicable to a moving defendant, who is obliged to negate each and every claim within a count in order to be entitled to judgment on that count." Lee v. BSB Greenwich Mortgage, LP, supra, Superior Court, Docket No. X08 CV04 0200344, n. 5.
MSA's motions admittedly seek summary judgment as to only part of the product liability counts of the complaints. While, except as to Pfizer's complaint and except as to its arguments that the plaintiffs have not disclosed an expert on their claims of defective cylinders, MSA does not state precisely to which parts of the counts such judgments would apply, what is clear is that segments of the plaintiffs' product liability claims would remain to be adjudicated thereafter. Even if the court had the authority to do so, MSA has not shown how various aspects of the counts as to which it seeks judgment against the individual plaintiffs would be severed from what would remain.
For the foregoing reasons, the motions must be denied as to these counts. Accordingly, the court need not address the individual bases of the motions as they pertain to the product liability counts. In addition, in view of the lack of appellate authority and the split of authority in the Superior Court, which are discussed above, the court is unpersuaded that the plaintiffs have shown that MSA's motions for partial summary judgment are procedurally improper.
B Recklessness
MSA also seeks summary judgment as to the plaintiffs' recklessness claims. MSA asserts that the gravamen of these claims is that MSA failed to warn of the alleged propensities of BTHF2M to explode under certain environmental conditions and that MSA failed to warn others regarding storage of BTHF2M with respect to these alleged propensities. MSA contends that it is undisputed that MSA had no knowledge of the alleged propensities of BTHF2M to explode under such circumstances and, therefore, MSA could not specifically warn Pfizer regarding storage of BTHF2M with respect thereto. It argues that it is undisputed that MSA did not act recklessly, maliciously or wantonly and, therefore, as a matter of law, the recklessness claims must fail.
In particular, MSA relies on the affidavit of its Director of Environmental Affairs, Lawrence Berger, who avers that, based on commercial experience with 1 Molar Boranetetrahydrofuran (BTHF1M), and on laboratory experiments with BTHF2M, and relevant scientific literature, there was no evidence on or before June 25, 2002 that BTHF2M posed a risk of a self-accelerating decomposition temperature (SADT) or a boiling liquid expanding vapor explosion (BLEVE) at ambient temperatures. He states that there was no knowledge at MSA of such risks prior to the incident.
The court is unpersuaded by these statements. Berger's affidavit does not state the bases for his conclusions. A conclusory affidavit is insufficient to support summary judgment. See Scinto v. Stamm, 224 Conn. 524, 533, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.E.2d 136 (1993).
MSA also cites the deposition testimony of Dr. David Ripin, a former Pfizer chemist, and of Peter Thompson, a Pfizer employee. Originally, objection was made to the court's consideration of Thompson's deposition on the ground that it was not certified. A certification was subsequently provided. Objections were also presented to consideration of Ripin's and Thompson's deposition testimony on the grounds that their depositions were not completed.
Practice Book § 17-45 states that a motion for summary judgment may be supported by "certified transcripts of testimony under oath . . ." A motion for summary judgment can be supported by deposition testimony. See Tryon v. Town of North Branford, 58 Conn.App. 702, 716-17, 755 A.2d 317 (2000). As discussed below, here the plaintiffs presented evidence in support of their opposition to MSA's motions. The plaintiffs have not shown that they are unfairly prejudiced or surprised by the deposition testimony on which MSA relies. See Connecticut Code of Evidence § 4-3. Under these circumstances, the court has considered the incomplete deposition testimony.
Ripin stated, in his deposition testimony, that, in a post-incident literature search, he found nothing that would call to Pfizer's attention to the potential of an explosion occurring because of storage of BTHF2M at ambient temperature. Thompson's deposition testimony is also cited concerning the absence of such information in the literature.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).
"Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277-78, 823 A.2d 1172 (2003).
The plaintiffs have presented evidence which shows that there are genuine issues of material fact concerning their recklessness claims. For example, in a memorandum, Dr. Elizabeth Burkhardt, MSA's former research and development supervisor for the Callery Chemical division, reported that she had reviewed the literature in 1998, including a report which stated that, while BTHF2M "can be made, but above 1M is not stable enough to store for commercial purposes." See Patterson Exh. M, p. 4348. Similarly, a communication from Burkhardt, dated February 11, 1998, expressed concern about the "potential liability" involved in "shipping in a warm environment." See Pfizer's Exhibit 14, page Jones 484.
Also, a message from Joe Barendt at Callery to Burkhardt, dated October 21, 1996, stated that inquiry had been received concerning BTHF2M. He noted that, in the past "we've said that it is not stable enough, since it is less stable than the 1M material." See Patterson Exh. M, p. 4160.
In addition, Beverly Jones testified at her deposition that, prior to preparing a material safety data sheet (MSDS) for BTHF, she reviewed literature, including an entry in "Sax," which stated that Borane-Tetrahydrofuran "is an unstable explosive in tetrahydrofuran at room temperature." See Patterson Exh. L, pp. 463, p. BASF-BJ 0212. Andrew Babij, Jr., a corporate designee of defendant Onyx Environmental Services, LLC, testified that "Sax" was a resource in making hazard assessments concerning chemicals. See Patterson Exh. S, pp. 39-40.
In a related matter, involving the same explosion, Patterson v. Onyx Environmental Services, LLC, Superior Court, judicial district of Middlesex, Complex Litigation Docket at Middletown, Docket No. X 04 CV 05 4004137 (November 30, 2007, Beach, J.) ( 44 Conn. L. Rptr. 602), the plaintiff brought a recklessness claim against the named defendant (Onyx), as to which Onyx's motion for summary judgment was denied. The allegations included: "[t]he cylinders allegedly were stored in Building 196 at the direction of Onyx; even if Onyx did not specifically direct the place of storage, it allegedly failed to provide proper advice regarding storage." Id.
Onyx argued that it had no knowledge of the danger supposedly to be the subject of the warning. See id. The court found that "[f]acts have been presented which suggest that Onyx should have been aware of the danger." Id. In finding that there was a genuine issue as to whether Onyx had facts available from which it should have known of the danger, and, therefore, acted recklessly, the court stated, "facts existed from which it could have inferred that a boiling liquid expansion vapor explosion could occur." Id.
Here, similarly, there are genuine issues of fact concerning whether MSA recklessly failed to account for relevant safety and storage information in its evaluation of and its disclosure of the risks involved in transport and storage of BTHF2M at ambient temperatures. Accordingly, MSA's motions for summary judgment as to the recklessness counts are denied.
C Loss Of Consortium CT Page 8316
MSA also has moved for summary judgment as to the loss of consortium claims alleged by the plaintiffs. See Mazurek v. Great American Insurance Co., 284 Conn. 16, 32 n. 13, 930 A.2d 682 (2007) (derivative cause of action is barred since it is dependent on the predicate action). Since, as discussed above, the court has denied MSA's motions as to the predicate claims, its motions are also denied as to the loss of consortium claims which are based thereon.D Breach of Warranties
In addition, MSA seeks summary judgment as to Pfizer's claims in the third count of its third amended complaint, in which it is alleged that MSA breached express and implied warranties. MSA contends that any express and implied warranties were disclaimed pursuant to General Statutes § 42a-2-316, since the MSDS which it provided to Pfizer conspicuously and unambiguously disclaimed any and all express and implied warranties.
The decisional law cited by MSA involved attempts at disclaimers of warranty which were contained in purchase orders. In Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 353, 525 A.2d 57 (1987), the Supreme Court found that the trial "court's conclusion that no implied warranty of merchantability existed, however, is adequately supported by the record because the purchase order . . . contained a provision expressly disclaiming any implied warranty of merchantability. This provision was conspicuously placed in large type on the reverse side of the purchase order. See General Statutes 42a-2-316(2)." Similarly, in Acme Pump Co v. National Cash Register Co., 32 Conn.Sup. 69, 73-4, 337 A.2d 672 (1974), the attempted disclaimer of warranty was contained in the seller's order form.
In response to MSA's argument, Pfizer presents its November 2001 purchase order for the materials, which followed an October 2001 price quote from MSA. See Pfizer Exhibits 19-20. The purchase order states that an MSDS "must accompany shipment and be faxed prior to or at time of shipment . . ." The BTHF2M arrived at Pfizer's Groton, Connecticut facility months later, on March 6, 2002. In his affidavit, Lawrence Berger of MSA avers only that MSA also provided an MSDS to Pfizer. MSA has not shown that the terms of the MSDS were incorporated by reference into the offer and acceptance documents through which Pfizer and MSA reached agreement concerning the terms of the sale.
J. White R. Summers, Uniform Commercial Code (5th Ed. 2006) (White Summers) addresses this issue, citing Connecticut decisional law. The Supreme Court repeatedly has cited this treatise. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 495, 646 A.2d 1289 (1994) (White Summers referred to as "[heading commentators").
"In a more common situation the buyer might be given a disclaimer at the time of the delivery of the goods. That disclaimer may be printed on a label, in an owner's manual, or on an invoice. According to most pre-Code law, [i]f a bargain with even an implied warranty has once arisen, a subsequent disclaimer of warranty when the goods are delivered will not avail the seller. The same rule has generally prevailed under the Code. For example, in Koellmer v. Chrysler Motors Corp. [, 6 Conn. Cir. 478, 276 A.2d 807 (1970), pet. for appeal denied, 160 Conn. 590, 274 A.2d 884 (1971),] a properly worded disclaimer clause was contained in the operator's manual for a new truck. A Connecticut court held this clause ineffective because the manual was delivered after the sale had been consummated." (Footnotes omitted.) White Summers, § 12-6, pp. 801-02.
On the record before the court, MSA has not shown that the claimed disclaimer of warranties contained in the MSDS was part of the Pfizer-MSA sale agreement. Accordingly, this aspect of MSA's motion is also denied. In view of this determination, there is no need to address other arguments made by Pfizer on the disclaimer of warranties issue.
CONCLUSION
For the reasons stated above, MSA's motions for summary judgment are denied.
It is so ordered.