Lukowicz v. General Electric Company et al

MOTION for Summary Judgment

D. Conn.December 1, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT JEANNE LUKOWICZ, PERSONALLY AND JEANNE LUKOWICZ, ADMINISTRATRIX OF THE ESTATE OF RONALD LUKOWICZ Plaintiff V. GENERAL ELECTRIC COMPANY, ET AL. Defendants CASE NO. 3:15-CV-01320(VAB) DECEMBER 1, 2016 DEFENDANT GENERAL ELECTRIC COMPANY'S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, General Electric Company ("GE") hereby moves for summary judgment as to all claims of the plaintiffs. The plaintiffs allege that Ronald Lukowicz contracted an asbestos-related illness due to contact with asbestos associated with equipment supplied by GE while employed at the Electric Boat Shipyard. However, GE is entitled to summary judgment under applicable federal maritime law because its marine steam turbines were delivered "bare metal" without any thermal insulation. Furthermore, the plaintiff has not offered any evidence that he was exposed to asbestos from a product manufactured by GE. As such, GE cannot be held liable for liable for the plaintiff's injury because it did not manufacture or distribute asbestos. For the reasons stated in the accompanying Memorandum of Law there is no genuine dispute as to any material fact and GE is entitled judgment as a matter of law. Case 3:15-cv-01320-VAB Document 40 Filed 12/01/16 Page 1 of 3 WHEREFORE, GE requests that this Motion for Summary Judgment be granted. THE DEFENDANT, GENERAL ELECTRIC COMPANY By: /s/ Brett M. Szczesny Brett M. Szczesny, Esq. Dan E. LaBelle, Esq. HALLORAN & SAGE, LLP Fed. Bar #ct 19560 315 Post Road West Westport, CT 06880 Telephone: (203) 227-2855 szczesny@halloransage.com - 2 - Case 3:15-cv-01320-VAB Document 40 Filed 12/01/16 Page 2 of 3 CERTIFICATION OF SERVICE This is to certify that on this 1st day of December, 2016, a copy of the foregoing was filed electronically on the Court's CM/ECF system. Notice of this filing will be sent to all counsel of record for viewing via the Court's ECF system. /s/ Brett M. Szczesny Brett M. Szczesny 4505879v.1 - 3 - Case 3:15-cv-01320-VAB Document 40 Filed 12/01/16 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT JEANNE LUKOWICZ, PERSONALLY AND JEANNE LUKOWICZ, ADMINISTRATRIX OF THE ESTATE OF RONALD LUKOWICZ Plaintiff V. GENERAL ELECTRIC COMPANY, ET AL. Defendants CASE NO. 3:15-CV-01320(VAB) DECEMBER 1, 2016 DEFENDANT GENERAL ELECTRIC COMPANY'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT General Electric Company ("GE") submits this memorandum of law in support of its Motion for Summary Judgment. For the reasons stated in the Memorandum, there is no genuine dispute as to any material fact and GE is entitled to judgment as a matter of law. I. INTRODUCTION AND STATEMENT OF FACTS The Plaintiff, Jeanne Lukowicz, personally and as Administratrix of the Estate of Ronald Lukowicz, alleges that the decedent Ronald Lukowicz contracted lung cancer and/or loss of lung function due to exposure to asbestos-containing products manufactured by the General Electric Company (hereinafter "GE") and the other named Defendants. (See Defendant's Local Rule 56(a)(1) Statement of Undisputed Facts, ¶ 1). Ronald Lukowicz was allegedly exposed to such asbestos-containing products while working at Electric Boat Corporation (hereinafter "EB") from 1959 until 1961. (Id. at 112). Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 1 of 44 GE manufactured steam turbines for the United States Navy to be used for propulsion and shipboard electricity during the time period in which Ronald Lukowicz was employed at EB. GE exited the naval steam turbine business in 1996. (Id. at 1113). Steam turbines built by GE for use in naval warships were built according to a very detailed set of military specifications known as "MilSpec". GE was required to comply with the MilSpec when it manufactured turbines for the Navy. (Id. at 115). The MilSpec governing naval propulsion turbines provided that heat insulation materials were to be provided by the shipbuilder. (Id. at 116). GE did not manufacture or sell steam turbines with insulation materials. (Id. at 117). GE shipped Navy turbines to the shipbuilder "bare metal," meaning they only had a coat of paint on the exterior surface. (Id. at '11 8). GE was not involved in the process of supplying and/or installing heat insulation materials. (Id. at 119). EB is shipbuilder in the business of constructing nuclear submarines, and GE furnishes equipment to EB in such regards. This type of equipment would generally be found in engine rooms or machinery spaces. (Id. at 11 10). No witnesses have been deposed in this case. (Id. at 11). The plaintiffs have not produced any product identification evidence, whether by documentary evidence or testimonial evidence, to support the claim that Ronald Lukowicz was exposed to any asbestos containing equipment that was manufactured, supplied and/or sold by GE. (Id. at 12). Furthermore, the plaintiffs cannot produce any evidence to establish that Ronald Lukowicz worked with, or in close proximity to, or was in any way exposed to Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 2 of 44 any asbestos containing products manufactures, supplied and/or sold by GE. (Id. at 13). In sum, the plaintiff has not offered any admissible evidence demonstrating that Mr. Lukowicz was exposed to any asbestos-containing product manufactured by GE. Accordingly, GE asks that summary judgment be entered in its favor pursuant to Fed. R. Civ. P. 56. 1 II. STANDARDS APPLICABLE TO RULE 56 SUMMARY JUDGMENT MOTIONS "A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." Bedor v. Friendly's Ice Cream Corp., 392 F.Supp.2d 367, 373 (2005); Fed. R. Civ. P. 56(c). Rule 56(c) "mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to a party's case, and on which that party will bear the burden of proof at trial." Bedor, 392 F.Supp.2d at 373 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). 1 In evaluating the merits of GE's summary judgment motion, this Court must view the evidence and all inferences arising reasonably therefrom in the light most favorable to Plaintiff. Lexington Ins. Co. v. Western Pa. Hosp., 423 F.3d 318, 322 n.2 (3d Cir. 2005); Hogston v. Allis-Chalmers Corp., 2009 WL 4583501 at *1 (E.D. Pa. Dec. 3, 2009). The Statement of Facts contained in this Memorandum is intended to reflect that particular standard and, as such, is offered solely for purposes of the instant motion and does not constitute GE's admission of any fact stated herein for any other purpose. GE also reserves to the time of trial any and all defenses it may have to plaintiff's claim, including, without limitation, the government contractor and/or the sophisticated user defenses. -3- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 3 of 44 When ruling on a motion for summary judgment, the court must respect the province of the jury. Bedor, supra. The court is not to try issues of fact. "It is well established that "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 3d. 2002, 106 S. Ct. 2505 (1986). The court's task is "carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined... to issue finding; it does not extend to issue resolution." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Summary judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Bedor, 392 F.Supp.2d at 374. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is 'genuine... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Bedor, supra (quoting Anderson, 477 U.S. at 248). "A material fact is one that would 'affect the outcome of the suit under the governing law." Id. "Only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. Immaterial or minor facts will not prevent summary judgment." Bedor, supra. (citations omitted.) The court, in reviewing evidence on a motion for summary judgment, must "assess the record in the light most favorable to the non-movant and... draw all -4-- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 4 of 44 reasonable inferences in [its] favor. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). "Nonetheless, inferences drawn in favor of the nonmovant must be supported by the evidence." Bedor, supra. "'Mere speculation or conjecture' is insufficient; there must be evidence on which a jury could reasonably find for the nonmovant." Anderson, 477 U.S. at 252. "The nonmoving party cannot simply rest on the allegations in its pleadings since the essence of summary judgment is to go beyond the pleadings to determine if a genuine issue of material facts exists." Bedor, supra (citing Celotex Corp., 477 U.S. at 324.) Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, Weinstock, 224 F.3d at 41, if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, which must demonstrate more than some metaphysical doubt as to the material facts... [and] must come forward with specific facts showing that there is a genuine issue for trial. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). If the nonmovant fails to meet this burden, summary judgment should be granted. Bedor, supra. Ill. ARGUMENT A. Maritime Law Applies To The Plaintiff's Claims. Because the plaintiffs allege asbestos exposure as a result of Mr. Lukowicz's employment at the EB shipyard such claims must fail under applicable maritime law. Under maritime law, a plaintiff must prove more than a "minimal" exposure from a Defendant's product. Lindstrom v. A-C Product Liability, 424 F.3d 488 (6th Cir. 2005) -5- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 5 of 44 Also under maritime law, an equipment manufacturer is not liable for any asbestos insulation used to insulate its equipment which it did not manufacture, sell or distribute, but was later placed on the equipment. Delatte v. A.W. Chesterton Co., 2011 WL 11439126 (E.D.Pa. 2011). 1. Maritime iurisdiction. The United States District Courts have original and exclusive jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction..." 28 U.S.C. § 1333(1). Maritime jurisdiction "[e]xtends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land." 46 U.S.C. § 30101(a). District courts must apply substantive maritime law if they have jurisdiction even where a plaintiff assets a state law claim. Preston v. Frantz, 11 F.3d 357, 358-59 (2d Cir. 1993) cert. dismissed, 512 U.S. 1279 (1994)(holding that maritime law governed Connecticut wrongful death claim). In order to invoke federal maritime jurisdiction over a tort claim, such as the subject claim, a party must establish that the activity giving rise to the alleged harm satisfies two criteria. Bray v. Ingersoll-Rand Co., 2015 WL 728515, *3 (D.Conn., Feb 19, 2015) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 532-34 (1995)). The two criteria to be satisfied are the "location" test and the "nexus" test. Id. "The location test requires that the invoking party demonstrate that the injury occurred on navigable waters or was caused by a vessel on navigable waters." Id. "The nexus test requires that the harm suffered have a potentially disruptive effect - 6 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 6 of 44 on maritime commerce and that the general character of the alleged tortious activity bears a 'significant relationship to traditional maritime activity." Id. The issue of whether maritime law governs shipyard workers' product liability claims based on asbestos exposure has been litigated numerous times. Due to the number of asbestos injury claims the United States Judicial Panel on Multidistrict Litigation (hereinafter "MDL") centralized all asbestos personal injury cases in the Eastern District of Pennsylvania. In re Asbestos Prods. Liab. Litig. (No. VI), 830 F. Supp. 2d 1377, 1377 (U.S. Jud. Pan. Mult. Lit. 2011). Because of the numerous cases that proceeded through the MDL, its decisions should be given particular deference. Id. at 1379. a. The location test. "In the case of asbestos related disease arising from work on or around ships... the locality test is satisfied as long as some portion of the asbestos exposure occurred on a vessel on navigable waters." Conner v. Alfa Laval, Inc., 799 F.SUpp. 2d 455, 466 (E.D. Pa 2011); Cabasug v. Crane Co., 956 F. Supp. 2d 1178, 1187 (D. Hawaii 2013). Vessels that are docked or in dry-dock qualify as vessels on "navigable waters" for purposes of maritime jurisdiction. See Sissson v. Ruby, 497 U.S. 358, 267 (1990) (holding that storage and maintenance of vessel docked at marina on navigable waters triggered maritime jurisdiction): Vasquez v. GMC Shipyard Corp., 582 F.3d 293, 299 (2d Cir. 2009)(holding that ship in dry-dock is still in "navigable waters' for purposes of maritime jurisdiction). - 7 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 7 of 44 In the instant action, the plaintiffs' claims of asbestos exposure by Mr. Lukowicz from GE products arise from his maintenance and repair work while employed at EB. These vessels qualify as "vessels on navigable waters." For the reasons stated above, this maintenance activity satisfies the location test. See John Crane Inc. v. Jones, 650 S.E.2d 851, 853-54 (Va. 2007) (holding "location test" satisfied where asbestos exposure occurred during construction and repair of United States Navy ships at Newport News Shipyard). b. The "nexus" test. The "nexus" test consists of two parts. The first part of the "nexus" test requires a determination "[w]hether the general type of incident involved has a potentially disruptive impact on maritime commerce." Tandom v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 248 (2d Cir. 2014) . In so doing, the court does not look to whether the particular facts of the case actually disrupted maritime commerce, but rather "[w[heter similar occurrences are likely to be disruptive." Id. at 249. The inquiry focuses on "[w]hether the incident could be seen within a class of incidents that pose[] more than a fanciful risk to commercial shipping." (Internal citations omitted.) Id. Injuries to sailors and shipyard workers engaged in building or repairing United States Navy vessels have the potential to disrupt maritime commerce. Id.2 2 See also Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 300 (2d Cir. 2009)( holding there is "little question" that "the death of persons repairing and refitting a vessel" has the potential to disrupt maritime commerce); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir. 1995) (Without a doubt, worker injuries, particularly those involved in repair and maintenance, can have a disruptive impact on maritime commerce by stalling or delaying the primary activity of the -8- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 8 of 44 The second part of the "nexus" test requires the court to determine "[w]hether the general character of the activity giving rise to the incident bears a substantial relationship to traditional maritime activity." Tandom, 732 F.3d at 248. Although "[t]he first part of the [nexus] test looks to the nature of the incident that immediatlely caused the underlying injury, the second part, by contrast, looks to the nature of the broader activity giving rise to the incident." Id. at 250-51. The second part of the "nexus" test looks "[m]broadly at the proximate cause of the event" to determine whether it "[o]riginated in the maritime activity of the tortfeasors." (Internal citations omitted.) Id. at 251. In the instant action, the plaintiffs' claims of asbestos exposure by Mr. Lukowicz from GE products arise from his maintenance and repair work aboard while employed at EB. This involved work while working on United States Navy ships. The nature of the activity giving rise to the incident is the manufacture or products that are essential to the ship's ability to function. This activity has a direct and inextricable link to maritime activity thereby and substantial relation to traditional maritime activity thereby satisfying the two prongs of the "nexus" test. For the reasons stated above both the "location" test and the "nexus" test are satisfied. Therefore, this court must apply federal maritime law to the plaintiff's claims. vessel"); Conner, 799 F. Supp.2d at 467 n. 14 (stating that shipyard workers' specific injury of asbestos exposure on or around United States Navy ships has the potential to disrupt maritime commerce.) -9- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 9 of 44 2. As a result substantive maritime law applies. Where maritime jurisdiction exists, maritime substantive law applies, not the substantive state law, or the choice of law, of the transferor jurisdiction or forum state. Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 132-133 (3rd Cir. 2002); East River Steamship Corp. v. Transamerica DeLeval, Inc., 476 U.S. 858, 864, 106 S. Ct. 2295 (1986)("with admiralty jurisdiction comes the application of substantive admiralty law . . . [a]bsent a relevant statute, the general maritime law, as developed by the judiciary applies"). This is true regardless of the initial contentions of the parties as to the applicable law. In Gibbs, where both parties initially relied only on the state law of the forum state, the Third Circuit held: "[s]ince we conclude that this case sounds in admiralty, we apply federal admiralty law and not the law of New Jersey or any other state." Gibbs, 314 F.3d at 132.. The fact that the District Court took this case under diversity jurisdiction rather than admiralty jurisdiction under 28 U.S.C. § 1333, does not affect this determination. See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410-11, 74 S.Ct. 202, 98 L.Ed. 143 (1953)(holding that courts apply substantive admiralty law to claims that sound in admiralty regardless of whether the complaint invokes diversity or admiralty jurisdiction); Edynak v. Atlantic Shipping, Inc., 562 F. 2d 215, 221 n. 11 (3d Cir. 1977). Thus, for cases such as this that sound in admiralty, we need not look to the general choice of law rules articulated in Erie R.R. Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and Klaxon, supra, that typically apply to suits brought in diversity jurisdiction. See Scott v. Eastern Air Lines, Inc. 399 F. 2d 14, 25 (3d Cir. Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 10 of 44 1968)(noting that "admiralty standards define liability for a maritime tort, whether the proceeding is instituted in admiralty or on the law side of the court"). B. The Bare Metal Doctrine In Maritime Law Bars Liability Against Military Suppliers Who Did Not Make Or Distribute Asbestos. As the United States Supreme Court has explained, "the fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce." Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608 (1991). Moreover, a hallmark of admiralty law is "its traditions of simplicity and practicality." Kermarec v. Compaanie Generale Transatlanticiue, 358 U.S. 625, 631 (1959) (citing The Lottawanna, 88 U.S. 558 (1874)). The need for simple and knowable rules that facilitate maritime commerce is particularly palpable in the context of the legal duties owed by suppliers of equipment to Navy warships. Maritime law bars liability against a bare metal military supplier who neither made nor distributed the asbestos at issue. This approach has been recognized in numerous well-reasoned decisions by the asbestos MDL court and other courts. It also is supported by cases outside the maritime context and by bedrock tort principles. The MDL court analyzed the application of the bare metal doctrine under maritime law in Conner, 842 F. Supp. 2d at 796-803.3 Conner examined the applicability of the three traditional tort theories of liability—manufacturing defect, design defect, and failure to warn—to maritime law, concluding that whether a plaintiff's theory 3 Conner involved, among other products, "GE manufactured marine turbines that required exterior insulation, which likely would have contained asbestos," as well as "asbestos-containing gaskets" that GE "supplied . . . to the Navy along with its turbines"; the seaman in Conner served on Navy ships from 1965-69. Conner, 842 F. Supp. 2d at 794. - 11- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 11 of 44 sounds in "strict liability or negligence, a plaintiff must establish causation with respect to each defendant manufacturer." 842 F. Supp. 2d at 797 (citing Lindstrom v. A-C Product Liab. Trust, 424 F.3d 488, 496 (6th Cir. 2005)). A plaintiff proves causation under maritime law by showing "(1) that the plaintiff was exposed to the defendant's product and (2) that the product was a substantial factor in causing the plaintiff's injury." Conner, 842 F. Supp. 2d at 797 (citing Lindstrom & Restatement (Second) of Torts § 431, cmt. a). Conner reviewed Lindstrom and Stark v. Armstrong World Indus., Inc., 21 F. App'x 371 (6th Cir.2001), observing that these decisions of "[t]he Sixth Circuit, the only federal court of appeals to consider this issue, confirmed that a manufacturer is not liable for asbestos-containing components and replacement parts it did not manufacture or distribute." 842 F. Supp. 2d at 797-98. Conner surveyed "[a] number of state courts . . . that have considered this issue [and] have similarly held that a defendant manufacturer is not liable for a third party's asbestos products when the defendant is not part of the 'chain of distribution' of the asbestos product." 842 F. Supp. 2d at 798- 800 (citing cases). Conner further observed that "the policy motivating products-liability law confirms that manufacturers in the chain of distribution can be liable only for harm caused by their own products." 842 F. Supp.2d at 800-01. Theories of product liability "rely on the principle that a party in the chain of distribution of a harm-causing product should be liable because that party is in the best position to absorb the costs of liability into the cost of production." Id. (citing Restatement (Second) of Torts § 402A, cmt. c (1965)). - 12 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 12 of 44 This consideration "weighs against holding manufacturers liable for harm caused by asbestos products they did not manufacture or distribute because those manufacturers cannot account for the costs of liability created by the third parties' products." Id. at 801 (citing cases). Thus, "under maritime law, a manufacturer is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the manufacturer did not manufacture or distribute." 842 F. Supp. 2d at 801. This approach follows "the development of products-liability law based on strict liability and negligence, relevant state case law, the leading federal decisions, and important policy considerations regarding the issue." Id. Moreover, because a defendant has no duty to warn unless it makes or distributes a product, Plaintiff's replacement-part type theories of liability as to such a defendant necessarily fail. Id. at 803. It would make no difference, the court concluded, if a defendant who itself was not in the chain of distribution "knew Navy sailors would be exposed to [another entity's] asbestos while repairing and maintaining [the d]efendants' products" or if a defendant's products "'required' asbestos insulation, gaskets, and packing." Id. Instead, the key inquiry remains "whether [the d]efendants manufactured or distributed the asbestos products to which [plaintiffs] were allegedly exposed." Id. The Sixth Circuit endorsed the bare metal doctrine in maritime law in Lindstrom explaining that a manufacturer is not liable under maritime law for asbestos-containing components and replacement parts it did not manufacture or distribute. In Lindstrom, the plaintiff worked in the engine rooms of various ships and allegedly developed - 13 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 13 of 44 mesothelioma as a result of exposure to asbestos during maintenance work on pumps and valves. The plaintiff claimed that he was exposed to asbestos while replacing gaskets on pumps manufactured by one defendant; but the replacement gaskets, in fact, were not manufactured by that defendant. Thus, the court concluded, the defendant "cannot be held responsible for the asbestos contained in another product." Id. at 496. The plaintiff also asserted that he was exposed to asbestos attached to pumps manufactured by another defendant. Here, again, the Sixth Circuit concluded that the defendant may "not be held responsible for asbestos-containing material [attached to its] products post-manufacture." Id. at 497. The Sixth Circuit explained that an equipment manufacturer "cannot be held responsible" merely because asbestos-containing materials were "attached or connected" to its equipment after sale. 424 F.3d at 495. If a plaintiff cannot show exposure to asbestos-containing materials that the defendant itself either manufactured or supplied, the plaintiff has failed to establish a prima facie products liability claim under maritime law. "The information presented establishe[d] that the only asbestos- contain ing products . . . to which [plaintiff] was exposed in connection with" the defendant's products "were not manufactured by" the defendant, "but rather products from another company that were attached to" the defendant's product. Id. at 496. Thus, the defendant "cannot be held responsible for the asbestos contained in another product." Id.; see also Lindstrom v. A-C Prods. Liab. Trust, 264 F. Supp. 2d 583, 595 (N.D. Ohio 2003), aff'd, 424 F.3d 488 (6th Cir. 2005) ("A manufacturer is responsible only for its own products and 'not for products that may be attached or connected' to the - 14- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 14 of 44 manufacturer's product. . . . Since the insulation on the pump exterior was not a . . . product [of the defendant] and was put on by the shipyard, [the defendant] cannot be held responsible for exposure to the exterior insulation."). Similarly, in Stark v. Armstrong World Indus., Inc., 21 F. App'x 371 (6th Cir. 2001), on which Lindstrom relies, the Sixth Circuit rejected the plaintiff's claims that ship turbine and boiler manufacturers should be held liable because their equipment "is integrated into the machinery of the vessel, much of which uses and may release asbestos," observing that "[t]his form of guilt by association has no support in the law of products liability." Id. at 381. The court noted that to rule otherwise (which would have imposed liability on equipment manufacturers for all products "attached" to their equipment) would be to expand greatly the scope of a maritime defendant's legal duty, since "[o]n a ship most things are connected to other things . . . ." Id. Numerous courts have adopted the bare metal doctrine discussed in Conner, Lindstrom, and Stark in maritime cases. Indeed, Conner "has been cited as persuasive through[out the Third] Circuit." Shearer v. A.W. Chesterton Co., 2015 WL 3889366, at *5 (D.N.J. June 24, 2015) (following Conner and citing cases); see, e.g., Hammell v. Air & Liquid Svs. Corp., 2015 WL 3935166, at *3-*5 (D.N.J. June 26, 2015) (holding that, under the bare metal doctrine, "a defendant owes no duty to warn of the hazards inherent in asbestos products that it did not manufacture, distribute, sell, or place into the stream of commerce").4 4 Numerous cases are to this effect. E.g., Mortimer v. A.O. Smith Corp., 2015 WL 1606149, at *1 (E.D. Pa. Jan. 6, 2015); Ferguson v. Air & Liquid Svs. Corp., 2014 WL 7652953, at *5 (E.D. Pa. Dec. 3, 2014); Kilgore v. Allen-Bradley Co., 2014 WL 7648956, at *1 (E.D. Pa. Nov. 12, - 15 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 15 of 44 Likewise, numerous courts in other jurisdictions have followed this approach. See, e.g., Faddish v. Buffalo Pumps, 881 F. Supp. 2d 1361, 1374 (S.D. Fla. 2012) ("Because defendants were not in the chain of distribution of the dangerous asbestos- containing products causing injury to [plaintiff], they cannot be charged with a duty to warn under negligence or strict liability theory.").5 2014); Festa v. Worthington Pumps, Inc., 2014 WL 6746840, at*1 (E.D. Pa. Oct. 10, 2014); Carper v. Gen. Elec. Co., 2014 WL 6736227, at *1 (E.D. Pa. Sept. 5, 2014); Robbins v. Air & Liquid Sys. Corp., 2014 WL 6746796, at *1 (E.D. Pa. Aug. 25, 2014); Duenas v. Gen. Elec. Co., 2014 WL 6747102, at *1 (E.D. Pa. Aug. 21, 2014); Kelly v. CBS Corp., 2014 WL 6735115, at *1 (E.D. Pa. Aug. 18, 2014); Radzwilowicz v. Gen. Elec. Co., 2014 WL 6736336, at *1 (E.D. Pa. Aug. 14, 2014); Kite v. Bill Vann Co., Inc., 2014 WL 6735046, at *1 (E.D. Pa. Aug. 13, 2014); Barnes v. Foster Wheeler Corp., 2014 WL 2965699, at *4-*5 & n.7 (D.N.J. June 30, 2014); Dalton v. 3M Co., 2013 WL 4886658, at *6-*7 (D. Del. Sept. 12, 2013); Donn v. A.W. Chesterton Co. Inc., 2013 WL 2477049, at *1 (E.D. Pa. May 9, 2013); Wingfield v. Ga. Pacific Corp., 2012 WL 7760174, at*1 (E.D. Pa. Nov. 7, 2012); Campbell v. A.W. Chesterton, 2012 WL 5392873,*1 (E.D. Pa. Oct. 16, 2012); Deuber v. Asbestos Corp., Ltd., 2012 WL 7761244, *1 (E.D. Pa. Oct. 15, 2012); Wannall v. Alfa-Laval, Inc., 2012 WL 5389824, *1 (E.D. Pa. Oct. 5, 2012); Cardaro v. Aerojet Gen. Corp., 2012 WL 3536243, at *1 (E.D. Pa. July 27, 2012); Hughes v. Foster Wheeler, LLC, 2012 WL 2914276, at *1 (E.D. Pa. June 6, 2012); Riddle v. Foster Wheeler, LLC, 2012 WL 2914222, at *1 (E.D. Pa. May 25, 2012); Miller v. A.W. Chesterton Co., 2012 WL 2914180, at *1 (E.D. Pa. May 14, 2012); Hays v. A.W. Chesterton, Inc., 2012 WL 3096621 (E.D. Pa. May 1, 2012); Lvautey v. Alfa Laval, Inc., 2012 WL 2877377, at *1 (E.D. Pa. Mar. 20, 2012); Serini v. A.W. Chesterton Co., 2012 WL 2914188 (E.D. Pa. May 14, 2012); Abbay v. Armstrong Intl, Inc., 2012 WL 975837, at *1 (E.D. Pa. Feb. 29, 2012); Floyd v. Air & Liquid Sys. Corp., 2012 WL 975615 (E.D. Pa. Feb. 8, 2012); Various Pls. v. Various Defs., 856 F. Supp. 2d 703, 709 (E.D. Pa. 2012); see also In re Asbestos Prods. Liab. Litiq. (No. VI) (Sweeney v. Saberhaqen Holdings, Inc.), 2011 WL 346822, at *7 (E.D. Pa. Jan. 13, 2011), report and rec. adopted, 2011 WL 359696 (E.D. Pa. Feb. 3, 2011). 5 E.g., Thurmon v. A.W. Chesterton, Inc., 61 F. Supp. 3d 1280, 1284, 1286 (N.D. Ga. 2014); Nelson v. Air & Liquid Sys. Corp., 2014 WL 6982476, at *13 (W.D. Wash. Dec. 9, 2014); Henry v. Am. Honda Motor Co., 2014 WL 6910490, at *7 (D.R.I. Dec. 3, 2014); Oneal v. Alfa Laval, Inc., 2014 WL 5341878, at *5 (S.D. Fla. Oct. 19, 2014); Vedros v. Northrop Grumman Shipbuilding, Inc., 2014 WL 1093678, at *3 (E.D. La. Mar. 14, 2014); Crews v. Air & Liquid Sys. Corp., 2014 WL 639685, at *5 (N.D.N.Y. Feb. 18, 2014); Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1041 (D. Haw. 2013); Morgan v. Bill Vann Co., Inc., 2013 WL 4657510, at *6- *7 (S.D. Ala. Aug. 30, 2013). - 16 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 16 of 44 Adopting a post-sale duty to warn would be inconsistent with maritime law's "previous[] adopt[ion] [of §] 402A of the Restatement (Second) of Torts in the context of product liability claims." Mack v. Gen. Elec. Co., 896 F. Supp. 2d 333, 339 n.2 (E.D. Pa. 2012) (citing East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 865 (1986); Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 879 (1997)); see also Conner, 842 F. Supp. 2d at 796 (applying Restatement (Second) of Torts § 402A). Under these traditional principles of tort law, the duty to warn extends to the maker or distributor of a product—not to a third party. See Restatement (Second) of Torts § 402A cmt. f (1965) (§ 402A applies to "any person engaged in the business of selling" the product causing harm); see also Restatement (Third) of Torts: Prods. Liab. § 1 (1998) ("One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.").6 Analogously, outside the maritime context, the application of § 402A to a purported post-sale duty to warn was addressed by the Tenth Circuit in Romero v. International Harvester Co., 979 F.2d 1444 (10th Cir. 1992). There, a farm worker was killed in a tractor roll-over accident. Id. at 1446. The plaintiff alleged that the tractor maker had failed to include a roll bar in its tractor design and failed to warn of the dangers of operating the tractor without such a device. 6 GE denies that any GE turbine that Mr. Smith may have encountered was defective or unreasonably dangerous, due to lack of warning or otherwise, either at the time of sale or at any time thereafter. - 17 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 17 of 44 The court concluded that Colorado law—which, like maritime law, has adopted § 402A—would not recognize a post-sale duty to warn because the imposition of a duty to warn (post-sale or otherwise) would demand proof that the defendant's tractor was "defective and unreasonably dangerous at the time it was manufactured and sold." Id. at 1450. The court specifically rejected the notion that a duty to warn could attach which would provide that "a manufacturer of a non-defective product, under then-current standards, must warn previous purchasers when a new safety device is developed." Id. at 1450-51; see also, e.g., Sexton v. Bell Helmets, Inc., 926 F.2d 331, 337 (4th Cir. 1991) (similarly holding under Kentucky law that a product's defectiveness—and, thus, any duty to warn—is to be determined by "measuring the product against a standard articulated expressly by government or industry or established by society in its expectations held about the product at the time of its sale") (emphasis added). That maritime law has adopted § 402A supports declining Plaintiff's invitation to impose a duty to warn users of previously sold products about newly discovered defects in those products and/or newly developed safety devices where the products at issue were non-defective as measured against the defendant's actual or constructive knowledge as of the date of sale. Romero, 979 F.2d at 1449-51. Numerous state court cases outside the maritime context likewise have upheld the traditional rule that only the maker or distributor of a product may be liable. For example, as the asbestos MDL court recognized in Conner, holdings of the Washington Supreme Court and the California Supreme Court support application of the bare metal - 18- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 18 of 44 doctrine. See Simonetta v. Viad Corp., 197 P.3d 127, 138 (Wash. 2008) (en banc) (refusing to hold defendant liable for failure to warn because it was not within the chain of distribution of asbestos components); Braaten v. Saberhagen Holdings, 198 P.3d 493, 501 (Wash. 2008) (quoting Restatement (Second) of Torts § 402A for the proposition that "'a manufacturer does not have an obligation to warn of the dangers of another manufacturer's product"); O'Neil v. Crane Co., 266 P.3d 987, 361, 365 (Cal. 2012) (noting that "California law does not impose a duty to warn about dangers arising entirely from another manufacturer's product, even if it is foreseeable that the products will be used together" because "expansion of the duty of care as urged here would impose an obligation to compensate on those whose products caused the plaintiffs no harm," which "would exceed the boundaries established over decades of product liability law"). C. Extending A Post-Sale Maritime Duty To Warn Would Contravene Fundamental Tort Principles And Lead To Anomalous Results. As shown, the bare metal doctrine is supported by fundamental tort principles. Plaintiff's third-party replacement part liability theory, in contrast, "would make all manufacturers the guarantors not only of their own products, but also of each and every product that could conceivably be used in connection with or in the vicinity of their product." John W. Petereit, The Duty Problem With Liability Claims Against One Manufacturer for Failing to Warn About Another Manufacturer's Product, Toxic Torts & Envtl. L. Newsl. at 4 (DRI Toxic Torts & Envtl. L. Comm. 2005). Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 19 of 44 Such a broad notion of foreseeability would lead to absurd results in a variety of contexts in which it may be foreseeable, in some sense, that a defendant's product may be used with a product supplied by another. By logical implication, under this approach, "a syringe manufacturer would be required to warn of the danger of any and all drugs it may be used to inject, and the manufacturer of bread [or jelly] would be required to warn of peanut allergies, as a peanut butter and jelly sandwich is a foreseeable use of bread." Thomas W. Tardy, Ill & Laura A. Frase, Liability of Equipment Manufacturers for Products of Another: Is Relief in Sight? at 6, HarrisMartin Columns: Asbestos (May 2007); Petereit, supra, at 4 ("Can't you just see a smoker with lung cancer suing manufacturers of matches and lighters for failing to warn that smoking cigarettes is dangerous to their health?"). Manufacturers would be placed in the untenable position of trying to predict what other products might be used with theirs in the future. The risk of a cacophony of overwarning would be palpable. See, e.g., Straley v. United States, 887 F. Supp. 728, 747 (D.N.J. 1995) Mt is unreasonable to impose a duty upon a manufacturer to warn of all possible dangers posed by all possible uses of a product because such 'billboard' warnings would deprive the user of an effective warning."). Imposing liability on a defendant for asbestos replacement parts made by third- parties also would not serve the tort policy of preventing future harm: It is doubtful respondents had any ability to control the types of products that were used with their equipment so long after it was sold. They delivered various parts to the Navy during World War II and had no control over the materials the Navy used with their products twenty years later when [plaintiff] was exposed to - 20 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 20 of 44 asbestos. Indeed, imposing a duty to warn on respondents now will do nothing to prevent the type of injury before us—latent asbestos- related disease resulting from exposure four decades ago. Such exposures have already taken place, and in light of the heavily regulated nature of asbestos today, it is most unlikely that holding respondents liable for failing to warn of the danger posed by other manufacturers' products will do anything to prevent future asbestos-related injuries. Taylor v. Elliott Turbomachinery Co., Inc., 90 Cal. Rptr. 3d 414, 439 (Ct. App. 2009). Nor is there a compelling need to stretch traditional tort law to ensure a means of redress for plaintiffs claiming an asbestos injury. Such plaintiffs typically will have other potential avenues of recovery against the actual makers of asbestos products. Indeed, many former asbestos makers "have emerged from the [federal] bankruptcy process leaving in their place dozens of trusts funded with tens of billions in assets to pay claims." Marc C. Scarcella & Peter R. Kelso, Asbestos Bankruptcy Trusts: A 2013 Overview of Trust Assets, Compensation & Governance, 12:11 Mealey's Asbestos Bankr. Rep. 33, 33-34 (June 2013). "These trusts answer for the tort liabilities of the great majority of the historically most-culpable large manufacturers that exited the tort system through bankruptcy over the past several decades." William P. Shelley et al., The Need for Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update—Judicial and Legislative Developments and Other Changes in the Landscape Since 2008, 23 Widener L.J. 675, 675-76 (2014). Asbestos litigation in recent years has been described as an "endless search for a solvent bystander." Richard Scruggs & Victor Schwartz, Medical Monitoring and Asbestos Litigation'—A Discussion with Richard Scruggs and Victor Schwartz, 17:3 -21- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 21 of 44 Mealey's Litig. Rep.: Asbestos 19 (Mar. 1, 2002) (quoting Mr. Scruggs). Novel and expansive theories of causation have arisen after most major manufacturers of asbestos-containing products have filed bankruptcy and given that the Navy generally enjoys sovereign immunity.' "As a substitute, plaintiffs seek to impose liability on solvent manufacturers for harms caused by products they never made or sold." Victor E. Schwartz, A Letter to the Nation's Trial Judges: Asbestos Litigation, Major Progress Made Over the Past Decade and Hurdles You Can Vault in the Next, 36 Am. J. of Trial Advoc. 1, 24-25 (2012).8 This Court should decline the invitation to stretch traditional tort law principles to extend a theory of liability against the bare metal suppliers of non- asbestos equipment. D. Even if maritime law does not apply the Plaintiff has failed to raise a genuine issue of fact as to whether asbestos attributable to GE equipment was a proximate cause of his injury. Under Connecticut tort law, proximate cause is defined as "an actual cause which is a substantial factor in the resulting harm." The "proximate cause" requirement tempers the "expansive view of causation [in fact] by the pragmatic shaping of rules which are feasible to administer, and yield a workable degree of certainty. Remote or trivial [actual ] causes are generally See also Paul Riehle et al., Product Liability for Third Party Replacement or Connected Parts: Changing Tides From the West, 44 U.S.F. L. Rev 33, 38 (2009) ("Unable to collect against insolvent manufacturers, asbestos personal injury attorneys began searching for alternative and ancillary sources of recovery."). 8 See Riehle, supra, at 38 ("Not content with the remedies available through bankruptcy trusts and state and federal worker compensation programs, claimants' lawyers have extended the reach of products liability law to 'ever-more peripheral defendants' who used asbestos- containing materials on their premises or contemplated the use of asbestos-containing parts in connection with their products.") (quoting Alan Calnan & Byron G. Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459, 463 (2008)). - 22 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 22 of 44 rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. Doe v. Manheimer, 212 Conn. 748, 757-8 (1989). Proof of causation in any product- related claim under Connecticut law demands, at a minimum, that "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." Heilweil v. ABB, Inc., 2004 Conn. Super. LEXIS 2643, *2 (Conn. Super. Sept. 14, 2004) quoting Roberts v. Owens- Corning Fiberglas Corp., 726 F.Supp. 172, 174 (W.D.Mich.1989) (attached hereto as Exhibit A). In asbestos cases, in order to show that the asbestos containing product was a substantial factor in causing a plaintiff's damages, 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." Casella v. American Olean Tile, 2005 Conn. Super. LEXIS, *5 (Conn. Super. Jan. 11, 2005) quoting Robertson v. Allied Signal, Inc., 914 F.2d 360 (3rd Cir.1990), quoting Zimmer v. Celotex Corp., 192 III.App.3d 1088 (1989) ) (attached hereto as Exhibit B.) Since identification and proximity are essential factors to a product liability/asbestos claim, a plaintiff's failure to present proof of these elements, "renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Norwich Say. Society v. Hunter, 1996 Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 23 of 44 Conn. Super. LEXIS 920, *6 (Conn. Super. April 2, 1996) (attached hereto as Exhibit C.) A mere allegation of exposure fails to establish the fact of exposure. (See Miller v. United Technologies, Inc., 233 Conn. 732, 745 (1995)). The plaintiff "must produce evidence sufficient to support an inference that he inhaled asbestos dust from the defendant's product." Casella v. American Olean Tile, 2005 WL 407633 at *2 (Conn. Super. Jan. 11, 2005) quoting Peerman v. Georgia-Pacific Corp., 35 F.2d 284, 287 (7th Cir.1994); see also Jackson v. Anchor Packing Co., 994 F.2d 1295, 1303 (8th Cir. 1993) ("an asbestos plaintiff must show that the defendant's asbestos products were used with sufficient frequency and regularity in locations from which asbestos fibers could have traveled [sic] to the plaintiff's work areas that it is probable that the exposure to the defendant's asbestos products caused the plaintiffs injuries") (emphasis added). Stated simply, mere proof of spatial proximity between an asbestos-containing product and a person who later develops an asbestos-related illness is insufficient, in and of itself, to give rise to a genuine issue as to causation. Rather, plaintiffs bear the burden of proving that a GE asbestos-containing product, "'as it was used during [Lukowicz's] tenure could possibly have produced a significant amount of asbestos dust and that the asbestos dust might have been inhaled by [Lukowicz].'" Peerman v. Georgia-Pacific Corp., 35 F.3d 284, 287 (7th Cir. 1994)). See also, Henderson v. Allied Signal, Inc., 373 S.C. 179, 185, 644 S.E.2d 724, 727 (2007) (holding that "presence in the vicinity of static asbestos is not exposure to asbestos"); Benshoof v. National - 24 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 24 of 44 Gypsum Co., 978 F.2d 475, 477 (9th Cir. 1992) (noting the insufficiency of the plaintiffs' evidence which established "only that [the defendant's] asbestos may have been present at locations where [they] worked, but not that it was disturbed and or could have been inhaled at that time"). Even if Plaintiff could show some amount of exposure to GE-attributable asbestos on the part of Mr. Lukowicz, she must still show that such exposure "contributed substantially to producing the injury complained of." Reaves v. Armstrong World Indus., 569 So.2d 1307, 1309 (Fla. App. [4th Dist.] 1990), review denied, 581 So.2d 166 (Fla. 1991). It is the plaintiff's burden to prove that he was exposed to asbestos from a GE product and that the exposure contributed substantially to his injury. In this case, the plaintiff has failed to offer sufficient evidence to meet his burden with respect to GE. There is simply no evidence from which one could conclude that Mr. Lukowicz was exposed to asbestos from a GE product. There is no evidence identifying any asbestos containing products manufactured by GE. There is no evidence that Mr. Lukowicz ever worked with or around any asbestos containing products manufactured by GE. There is no testimonial evidence of any kind explaining Mr. Lukowicz's work functions and history at EB. Without having testimony stating that Mr. Lukowicz worked upon or was in the area when others were working on GE equipment the plaintiffs cannot possibly prove that he suffered any injury as a result of exposure to asbestos. Furthermore, the plaintiffs cannot demonstrate that any potential exposure to any GE product, which is denied by GE, was a substantial contributing factor to the - 25 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 25 of 44 development of Mr. Lukowicz's injury as they have not identified any activity or event that would have resulted in an exposure to asbestos stemming from a GE product. It is clear that there is no evidence whatsoever that Ronald Lukowicz ever worked on any GE equipment at any time. Similarly, there is no evidence that Mr. Lukowicz ever worked in a compartment containing GE equipment with any sufficiency or regularity from which it could be concluded that any exposure to a GE product contributed substantially to the development of his asbestos related illness. As such, there is no genuine issue of material fact to be tried as to the plaintiffs' claims and summary judgment is appropriate. E. The Result Would Be The Same If Plaintiff's Claims Proceed Under The Connecticut Product Liability Act. Under the Connecticut Product Liability Act a 'Manufacturer' includes "product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer. It includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer." Conn. Gen. Stat. Ann. § 52-572m. Bedrock principles of tort law impose product liability, whether sounding in strict liability or negligence, only on parties who themselves manufactured, distributed, or sold the defective product in question. Accord 63 Am. Jur. 2d Prod. Liab. § 157 (2d ed. 2011) ("A fundamental principle of traditional products liability law is that the plaintiff must prove that the defendant manufacturer made the product which caused the injury."); Restatement (Second) of Torts § 402A cmt. f (1965) (strict liability applies to - 26 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 26 of 44 "any person engaged in the business of selling" harm-causing product); id. § 388 (negligence extends to "[o]ne who supplies directly or through a third person a chattel" that caused harm); Restatement (Third) of Torts: Prods. Liab. § 1 (1998) ("One . . . who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect."). In keeping with these principles, courts historically have limited a manufacturer's liability for third-party products, permitting only a narrow "assembler's liability" theory. Accordingly, a manufacturer may be liable for a third-party's defective part on if it actually incorporates the part into the finished product during the manufacturing process and places the product into the stream of commerce—and that product causes injury. See, e.q., Baughman v. Gen. Motors Corp., 780 F.2d 1131, 1132-33 (4th Cir. 1986). But where, as here, a manufacturer "did not incorporate the defective component part into its finished product and did not place the defective part into the stream of commerce," there is no liability against the manufacturer even if the use of the defective component part is foreseeable. Id. Thus, in Baughman, GM was not liable for injuries caused by a defective replacement tire rim supplied by a third-party even if the part was similar to the original tire rim GM had distributed because GM had not itself incorporated the defective replacement part and put it in the stream of commerce. Id. at 1133. As the Fourth Circuit explained, imposing liability based on a third-party's component or replacement part would be inherently unfair and excessively burdensome, because the defendant has no opportunity "to test, evaluate, and inspect the component," nor has it "derived [any] benefit from its sale" or "represented to the - 27 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 27 of 44 public that the component part is its own." Id. Thus, "[w]hile a manufacturer can be fairly charged with testing and warning of dangers associated with components it decides to incorporate into its own product, it cannot be charged with testing and warning against any of a myriad of replacement parts supplied by any number of manufacturers." Id.; see, e.g., Firestone Steel Prods Co. v. Barajas, 927 S.W.2d 608, 615-16 (Tex. 1996) (under either strict liability or negligence, "manufacturer does not have a duty to warn or instruct about another manufacturer's products, though those products might be used in connection with the manufacturer's own products"); Walton v. Harnischfeger, 796 S.W.2d 225, 227-28 (Tex. Ct. App. 1990) (applying Baughman to hold that manufacturer had no duty to warn and instruct about a third-party rigging product it did not manufacture or distribute but that was used with its crane). Relying on these foundational principles, courts in the asbestos context have for years recognized that a manufacturer that supplies equipment in "bare metal" form without any asbestos is not liable in strict liability or negligence for harm caused by a third-party asbestos product attached after manufacture. In O'Neil v. Crane Co., 266 P.3d 987 (Cal. 2012), for instance, the California Supreme Court, invoking Baughman, concluded that manufacturers of valves and pumps used on an aircraft carrier were not liable for alleged injuries caused by "asbestos released from external insulation and [replacement] internal gaskets and packing, all of which were made by third parties and added to the pumps and valves postsale." Id. at 991. Even under a negligence theory, the manufacturers had no liability "arising entirely from another manufacturer's product, even if it is foreseeable - 28- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 28 of 44 that the products will be used together." Id. 1004-05. Such "expansion of the duty of care . . . would impose an obligation to compensate on those whose products caused the plaintiffs no harm," which "would exceed the boundaries established over decades of product liability law." Id. The rationale for this limitation on liability is especially robust where there is "no evidence . . . that the design of defendants' products required the use of asbestos"; but even if the use of an asbestos part is required, "the policy rationales [for limiting liability] would remain." Id. 996 & n.6. Numerous cases are to this effect. E.a., Simonetta v. Viad Corp., 197 P.3d 127, 138 (Wash. 2008) (en banc) (defendant not liable for failure to warn because it was not within the chain of distribution of asbestos components); Braaten v. Saberhagen Holdings, 198 P.3d 493, 501 (Wash. 2008) ("a manufacturer does not have an obligation to warn of the dangers of another manufacturer's product") (quoting Restatement (Second) of Torts § 402A). In this case, the alleged defective product is asbestos. GE did not manufacture or otherwise distribute asbestos. (See Local Rule 56(a)(1) Statement at 7 6 — 9). Thus there can be no liability imposed upon GE for Mr. Lukowicz's injuries and summary judgment is appropriate. F. Summary judgment must be granted with respect to Jeanne Lukowicz's claim for loss of consortium since an action for loss of consortium is dependent on the existence of a predicate action. Additionally, since there is not a scintilla of evidence that Mr. Lukowicz's alleged injuries are the result of working with or near a GE product, Jeanne Lukowicz's derivative cause of action for loss of consortium is barred. Under Connecticut law, a - 29 - 4496812v.1 Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 29 of 44 loss of consortium is dependent on the existence of an underlying action. See Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 (2005). "As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action ... That is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." Id. Here, the predicate action is Mr. Lukowicz's claim that a GE product proximately caused his injuries. However, as stated earlier in this memorandum, the Plaintiffs have produced no evidence that Mr. Lukowicz worked with or in proximity to an asbestos- containing GE product. Further, the Plaintiffs have failed to produce evidence that Mr. Lukowicz inhaled asbestos dust from a GE product. As such, there is no doubt that Mr. Lukowicz's claims against GE are deficient and summary judgment should be granted in favor of GE. Since summary judgment should be granted in favor of the defendant in the predicate action, Jeanne Lukowicz's claim for loss of consortium cannot survive a motion for summary judgment. IV. CONCLUSION Because the available evidence fails to show that any GE equipment was a "substantial factor" in the causation of Mr. Lukowicz's injury, GE respectfully requests that its motion for summary judgment be granted, that all claims in this action be dismissed with prejudice and that it be afforded any and all further relief deemed appropriate by this Court. Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 30 of 44 THE DEFENDANT, GENERAL ELECTRIC COMPANY By: /s/ Brett M. Szczesny Brett M. Szczesny, Esq. Dan E. LaBelle, Esq. HALLORAN & SAGE, LLP Fed. Bar #ct 19560 315 Post Road West Westport, CT 06880 Telephone: (203) 227-2855 szczesny@halloransage.com Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 31 of 44 CERTIFICATION OF SERVICE This is to certify that on this 15t day of December, 2016, a copy of the foregoing was filed electronically on the Court's CM/ECF system. Notice of this filing will be sent to all counsel of record for viewing via the Court's ECF system. /s/ Brett M. Szczesny Brett M. Szczesny 4506051v.1 - 32 - Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 32 of 44 EXHIBIT Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 33 of 44 Lexisi\exis' Page 1 LEXSEE 2004 CONN SUPER La's 2643 Sidney Heilweil v. ABB, Inc. et 21. CV0303998975 SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIR- FIELD, AT BRIDGEPORT 2004 Conn. Super. LEXIS 2643 September 7, 2004, Deeided September 14, 2004, Filed NOTICE: [1] THIS DECISION IS UNRE- PORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF MS CASE. JUDGES: Dewey, J. OPINION BY: Dewey OPINION - MEMORANDUM OF DECISION RE MOTION FOR. SUMMARY JUDGMENT BY DEFENDANT BAYER CROPSCIENCE (MOTION DATED JUNE 24, 2004) Before this court is the defendant Bayer Crop- science's June 24, 2004 Motion for Summary Judgment The plaintiff Sidney HeiUna alleges that he was ex- posed to asbestos from the defendant's product because of this defendant's presence at one of the plaintiffs job sites, Electric Boat in Groton, Connecticut. Practice Book § 17-49 provides that summary judg- ment shall be rendered forthwith if the pleadings, affida- vits 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. 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 ad- verse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Practice [12] Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Coon. 451, 455, 472 A.24 1257 (1984). In deciding a motion for sum- mary judgment, the trial court must view the evidence in the light moat favorable to the nonmoving party. Strada v. Connecticut Newspapers, Ina, 193 Conn. 313, 317, 477 A.2d 1005 (1984). 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), "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 illin- ries." Mucha v. Mutter, 229 Corm. 213, 220, 640 A.2d 89 (1994). "Tn a products liability/asbestos claim a plain- tiff must I) 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- contain' ing product was a substantial factor in causing his damages." Roberts v. Owens-Corning Fiberglas Corp., 726 F. Supp. 172, 174 (W.D.Nfich. 1989). Although [1] other jurisdictions have struggled with the issue in rela- tion to asbestos-related claims, there is no settled law in Connecticut concerning any of these three critical ele- ments. 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, (3n1 Cir. 1990), quoting Zimmer v. Celotes Corp., 192 III. App. 3d 1088, 140 EL Dec, 230, 233, 549 N.E.2d 881, 884 (1989). Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 34 of 44 2004 Coon. Super. LEAS 2643, * Page 2 The plaintiff cannot rely on speculation or conjec- ture. "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, sum- mary judgment may be granted . . . The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nen- movant]." Bullock [*4] v. Clty of New York et al., Docket Number 02 CIV 7698 (DC), District Court for the Southern District of New York. (March 12, 2004, Chin, I.) (internal citations omitted, internal quotations omitted). 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 Elea. Indut Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 891... Ed. 2d 538, 106 S. Ct. 1348 (1986). Instead, that party must come forward with sufficient evidence to support a jury verdict in his favor. Anderson v. Liberty Lobby, Ina, 477 U.S. 242, 263, 91 L Ed. 2d 202, 106 S. Ct 2505 (1986). Under any causation test, "plaintiff still must pro- duce evidence sufficient to support an inference that he inhaled asbestos dust from the defendants product" Feerman v. Georgia-Pacific Corp., 35 F.3d 284,187 (7th Cir. 1994). The jury cannot reach this inference unless there is evidence that the defendant's product was used at the plaintiffs work site during the plaintiffs tenure. The testimony of other individuals at other work sites is in- sufficient The plaintiff suggests that the defendants motion [*5] is improper inaannirh as the defendant has not re- sponded to the plaintiffs requests for admission dated July 9, 2003. This court preliminarily notes that these requests for admission were filed Well after the date set for discovery in this matter. ' Although the plaintiff "ear- nestly hopes that something helpful may tarn up in fur- ther discovery"; Goodell v. Rehrig International, Inc., 683 F. Supp. 1051, 1054 (E.D.Va. 1988), affil, 865 F.2d 1257 (4th Cir. 1989); a mete hope of this sort is insuffi- cient See Burlington Coat Factory Warehouse Carp. v. Esprit de Corp., 769 F.2d 919, 925, 927 (2d Cir. 1985). 1 The plaintiff suggests that the standing orders in this asbestos litigation are inapplicable. He provides no support for this extraordinary conten- tion. The plaintiff has failed "to make a showing suffi- cient to establish the mistletoe of an element essential to that party's case, and on which that party will bear the burden of proof at triaL" Celotet v. Catrett, 477 U.S. 317, 322, 324, 91 L Ed. 2d 265, 106 S. Ct 2548 (1986). NI The defendant's motion for summary judgment is granted. Dewey, J. Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 35 of 44 Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 36 of 44 LexisNexie Page 1 1 of 1 DOCUMENT Antoinette Cassette et rd. v. American Olean Tile et aL CY0003728805 SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIR- FIELD, AT BRIDGEPORT 2005 Coen. Super. LEXCS 125 January 3, 2005, Decided Jannery 11, 2005, Filed NOTICE: Co 11 TILLS DECISION IS 'UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OP TEE STATUS OF THIS CASE. RIDGES: DEWEY, I. OPINION BY: Dewey OPINION MEMORANDUM OF DECISION Motion for Summary Judgment by Defendant Bil- trite Corporation (Motion dated October 7, 2004) Before this court is the defendant Biltrite Corpora- tion's October 7, 2004 Motion fur Summary lodgment The plaintiff Antoinette Casella, executrix of the estate of lames Cas=dalln, alleges that the decedent was exposed to the defendant's products at various times from 1947- 1975. According to an affidavit from the decedent's daughter, Patricia Kapavitch, an affidavit dated October 4, 2004, the daughter "was present while my father con- ducted [home] renovations and I witnesses him cut and lay vinyl asbestos floor tile while I believe was raanufac- trued by American Bfltrite." 1 There was a court-ordered srheritiling order far product identification. This affidavit was un- timely. Connecticut Practice Book § 17-49 provides ['II] that summary judgment chai1 be rendered forthwith litho pleadings, affidavits end any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is =titled to judgment as a matter of law. Sumremy judgment is "designed to eliminate the delay and expanse of litigating an issue where there is no real issue to he 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 aunt substan- tiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclos- ing the existence of such an issue. Practice Book §§ 17- 45, 17-46; Burns v. Hortfind HospitaL 192 Corm. 451, 455, 472 Aid 1257 (1984). In deciding a motion for stuumary judgment, the trial court must view the evidence in the light most fa- vorable 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 ('3] specula- tors" Scotto v. Alrnenas, 143 F3d 105, 114 (2d Cir. 1998). Furthermore, "only 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 =mar/ will not be counted." Anderson v. Liberty Lobby, Ina, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct 2505 (1986). Ta defeat a motion for summary judgment, the nonmov- ing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Mat- sushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Instead, that party must come forward with Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 37 of 44 2005 Conn. Super. LEXIS 125, * Page 2 sufficient evidence to support a jury verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 263, 91 L. Ed. 2d 202, 106 S. Ct. 2.505 (1986). In the present case the plaintiff cannot rely on specu- lation or conjecture. "To establish a genuine issue of ma- terial fact, the party opposing summary judgment must produce specific facts indicating that a genuine factual issue exists . . . If the evidence [produced by the non- moving party] is merely colorable, [414] or is not sig- nificantly probative, summary judgment may be granted . . . The mere existence of a scintilla of evidence in sup- port of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasona- bly 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, I.) (internal citations omitted, internal quota- tions omitted)). The case before this court alleges injury as a result of exposure to asbestos. "In a products liability action, the plaintiff mutt plead and prove that the product was defective and that the defect was the proximate cause of the plaintiffs injuries." Hisesche v. Kissner, 229 Corm. 213, 220, 640 A.2d 89 (1994). "Ia a products liabil- ity/asbestos claim a plaintiff must 1) identify an asbes- tos-containing product for which a defendant is reapansi- ble, 2) prove that he has suffered damages, and 3) prove that defendant's asbestos-containing product was a sub- stantial factor in causing his damages." Roberts v. Owens-Corning Fiberglas Corporation, 726 F. Supp. 172,174 (W.D.Mich. 1989). [*5] 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 prrocimity to that product at the time it was being used." Robertson v. Allied Sig- nal, Inc., 914 F.2d 360 (3rd Cir. 1990); quoting Zimmer v. Celotex Corporation, 192 M. App. 3d 1088, 140 111. Dec. 230, 233, 549 N.E.2d 881 (1989). Under any causa- tion test, "plaintiff still must produce evidence sufficient to support an inference that he inhaled asbestos dust from the riefeedeet's product" Peertnan v. Georgia-Pacific Corp., 35 F3d 284, 287 (7th Cir. 1994). The jury cannot reach this inference unless there is evideate that the de- fendant's product was used at the plaintiffs work site dieing the plaintiffs tenure or that the plaintiff was oth- erwise exposed. The plaintiff alleges that the decedent was exposed to asbestos during home renovations sometime in the 1970s. In [*6] response to the motion for mammy judgment, the plaintiff has provided a statement by her daughter. However, "Only evidence that would be ad- missible at trial may be used to support or oppose a mo- tion far summary judgment" (Internal quotation marks omitted.) Great CounbyBankv. Pastore, 241 Cam. 423, 436, 696 Aid 1254 (1997). Affidavits are required. "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 of- ficiarly certified to by the officer under his seal of of- fice."' State v. Colon, 230 Conn. 24, 37, 644 Aid 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 InsartfAiTird . Specifi- cally, as to summary judgment, support- ing and opposing affidavits shall be made on personal knowledge, shall set forth such filets as would be admissible in evi- dence, and shall show affirmatively that the afEent is competent to testify to the [47] matters stated therein . . . lf, as one court has said, an affidavit Amid set forth the factual picture by a person who }mows the facts. (?eternal citations omitted.) Brookfield v. Candlewood Shares Estates, Ina, 201 Conn, 1, 8-9, 513 Aid 1218 (1986). The statements provided in the present case fail to meet the personal knowledge requiremmt of an affidavit. Sellers v. MC. Floor Crafters, Inc., 842 F.2d 639, 643 (2d. Cir. 1988) (affidavit based on "IllforMaliDll and be- lief' was insufficient). It does not indicate that the decla- rant pessAsed personal knowledge regarding the matters set forth. In short the plaintiff has failed "to make a showing sufficient to establish the existence of an ele- ment essential to that party's case, and on which that party will bear the burden of proof at trial° Ce/otex v. Catret4 477 U.S. 317, 322, 324, 91 L. Ed 2d 265, 106 S. Ct. 2548 (1986). 2 2 The decedent's statements were elicited prior to the commencement of this litigation. None of the defendants received notice of this procedure. Plaintiffs counsel controlled the nature, scope and duration of the statement It was within counsel's ability to elicit relevant, probative in- formation. Having failed to do so, they cannot Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 38 of 44 Page 3 2005 Cam Super. LEGS 125, * now complain of the inadequacies of a procedure [*83 The defendants motion fur summary judgment they initiated. is granted, DEWEY, J. Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 39 of 44 EX513BT C Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 40 of 44 LexisNexis' Page 1 1 of 2 DOCUMENTS THE NORWICH SAVINGS SOCIETY, SUCCESSOR-1N-INTEREST TO THE BANK OF MYSTIC v. EDGAR W. HUNTER AND JOYCE M. HUNTER NO. 108808 SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW LONDON, AT NORWICH 1996 Corm. Super. LUIS 920 April 1, 1996, Decided April 2, 1996, FILED NOTICE: (+1] THIS DECISION IS UNRE- PORTED AND MAY BE SUBJECT TO FURTHER. APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAICE AN 1NDF2ENDENT DETERMINATION OF THE STATUS OF THIS CASE. JUDGES: Walsh, John F., L OPINION BY: loimP. Walsh OPINION ORDER The foregoing Motion for Summary Judgment hav- ing been duly heard and reviewed, it is hereby OR- DERED that said Motion be: GRANTED. Memorandum of Decision Re: Motion for Stirrirnsity Judgment #119, Events occurring post-default cannot form the bases of an affirmative defense to foreclose because they do not render the note itself invalid or unenforceable. This court adopts the reasoning and opinions expressed by F. Owen Egan v. U.S. Magistrate in the U.S. District Court of Connecticut, Civil Action No. 3:95CV0491, First Ma- dams! Association, as Dustee v, Dwight Owen Scheitzer, et al. A copy of that decision is attached. BY TEE COURT: Walsh, John, F., I. EIETIBIT UNTIED STATES DISTRICT COURT DLSTRICT OP CONNECTICUT FIRST TRUST NATIONAL ASSOCIATION, AS TRUSTEE, Plaintiff v. DWIGHT OWEN SCHWEITZER, El' AL, Defendants, CIVIL ACTION NO. 3:95CV0491 (AFIN) FILED MAR 18 1996 NEW LONDON JUDICIAL DISTRICT AT NORWICH (2] RECOMMENDED RULING ON PLAIN- TIFF'S MOTION FOR SUAIMARY JUDGMENT (#30) The plAtnNFF, First Trust National Association As Trustee, has moved for summary judgment is this fare- closure action. against the defendant, Pamela Blair Schweitzer, pursuant to Federal Rule of Civil Procedure 56. Because no genuine issue of material fact exists, and the affirmative defense raised by the defendant is invalid as a matter °flaw, the plaintiffs motion is GRANTED. FACTS Upon review of the submissions of the parties, the court finds the following facts. See Local Rule 9(c). On August 22, 1988, Dwight Owen Schweitzer and Pamela Blair Schweitzer executed a promissory note to the Prudential Insurance Company of America C'Pradela- Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 41 of 44 1996 Coma. Super. LEXIS 920, * Page 2 dal") in the principal amount of $ 390,000.00. On that same date the Schweitzers granted a mortgage to Pruden- tial on real property located at 371 Simsbury Road, Bloomfield, Connecticut The Schweitzer note and mortgage was eventually sold and assigned by the Prudential Home Securities Company to the rust Trust National Association on No- vember 14, 1988. Mr. Schweitzer transferred any interest in the mort- gaged premises to Ms. Schweitzer by a quit-claim deed [*I] dated May 30, 1990. Thereafter, Ms. Schweitzer quit-claimed her interest in the property to the Schweitzer Family Limited Partnership by a deed exe- cuted on. February 19, 1992. On March 1, 1993, the Schweitzers defaulted on the payments, and under the terms of the note and mortgage the entire balance together with interest was declared due and payable. Dwight Owen Schweitzer was discharged from bankruptcy on September 25, 1994. The plaintiff was granted relief from the automatic stay on October 31, 1994, to foreclose its mortgage on the Bloomfield prop- erty, On April 14, 1994, First Trust National assigned the asset to First Trust National, as Trustee ("First Trust"). On March 1, 1995, First Trust brought an. action in the state court to foreclose on the Bloomfield property. The complaint named both Dwight Owen Schweitzer and Pamela Blair Schweitzer as defendants. On March 16, 1995, the Schweitzere removed the suit to this federal court because the Federal Deposit Insurance Corporation ("FDIC"), as receiver of the Cen- tral Bank, was named as a party. See 12 U.S.C. Seodon 1819(b)(1)(A). The FDIC is a junior encumbrancer by virtue of a mortgage given by the Schweitzers to Central [*4] Bank dated January 27, 1989. In an answer dated August 24, 1995, the defendant, Pamela Blair Schweitzer, raised as an affirmative de- fense the equitable doctrine of unclean hands. The de- fense is based on allegedly improper conduct on. the part of plaintiffs attorney in litigating this foreclosure suit. The defendant alleges: In the case at bar the Plaintiff does not have clean bands in that they sued the former husband of the Defendant knowing that he was no longer responsible for this debt having been previously discharged in bankruptcy on or about September 24th 1994... By improperly suing Dwight Owen Schweitzer in. his personal capacity the Plaintiff has effectively prevented him from being able to refinance the subject property, in that this litigation has caused him injury to his credit which he is trying to rebuild as his name has now appeared in the Commercial record soon after being discharged in B ankreptcY. Defendant's Answer, P 4-5. On page 3 of the memorandum of law in objection to the motion for summary judgment, the defendant states: Despite Dwight Owen Schweitzer's hav- ing been discharged in bankruptcy, the plaintiff filed a Motion far Relief from [41] the Automatic Stay with the U.S. Banlauptoy► court for the District of Con- necticut on October 31, 1994. However, by this time all of Mr. Schweitzer's dis- chargeable debts had been discharged for marts than a month... At the time the ora- tion was filed, Mr. Schweitzer was not a record owner of the property in question, and the protections of the U.S. bankruptcy laws barred the plaintiff front proceeding against this particular defendant The factual allegations supporting the defendant's af- fumative defense are focused on the plaintiffs conduct after the Schweitzer's defaulted an their obligations un- der the note and mortgage. LEGAL STANDAAD As the moving party, First Trost has the initial re- sponsibility of informing the cleat of the basis far its motion, and identifying those parts of the record it be- lieves demonstrate the absence of a genuine issue of ma- terial fact See Latimer v. anithIcline dc French Labora- tories, 919 F.2d 301, 303 (5th Cir. 1990), citing Colorer Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In cases where there is an absence of evidence to support an essential element of a defense "there can be no genuine issue as to [*6] any material fact since a complete failure of proof concerning an es- sential element of the [defendant's affirmative defense] necessarily renders all other facts immaterial." Federal Deposit Insurance Corporation v. Gianunette4 34 F3d 51, 54 (2nd Cir. 1994). Where, as here, a. motion for summary judgment is supported by affidavits and other documentary evidence, Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 42 of 44 1996 Conn. Super. LEXIS 920, Page 3 the party opposing the motion must set forth specific facts showing that there is a genuine, material issue for trial. See King Service, Inc v. Gulf Oil Corp., 834 F.2d 290, 295 (2nd Cir. 1987). The defrirlannig cannot defeat First Trust's motion by merely presenting a metaphysical doubt, conjecture or surmise concerning the facts, See Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct 1348 (1986). "Only disputes over facts that might affect the outcome of the suit wider the governing law will properly pre- clude the entry of summary judgment" Anderson v. Lib- erty Lobby, Inc., 477 U.S. 242, 248, 91 I.. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis added). • DISCUSSION The defendant argues the inequitable conduct of the plaintiff in litigating ['7] this suit should serve as a bar to the foreclosure of the mortgaged property in Bloom- field. The Schweitzer's affirmative defense is insufficient under Connecticut law. Generally, the only affirmative defenses to a fore- closure action in Connecticut are payment, discharge, release, satisfaction or invalidity of a lien. See Petterson v. Weinstock 106 Coon. 436, 441, 138 A. 433 (1927); Connecticut Savings Bank v. Reilly, 12 Conn. Supp. 327 (1944). However, "Becatiae a mortgage foreclosure is an equitable proceeding, the trial court may consider all relevant circumstences to ensure complete justice is done." Reynolds v. Ramos, 188 Conn. 316, 320, 449 A2d 182 (1982). Courts have recognized certain equitable defenses to foreclosure, when they "attack the making, validity or enforcement of the lien, rather than some act or proce- dure of the lienholder." Morgan Guaranty Trust Co. v. Davis, 1995 WI.. 656769 (Oct 27, 1995, Nadeau, I.); National Mortgage Co. v. McMahon, 9 CS CA 300 (Feb. 18,1994, Celotto, J.); Great Country Bank v. Kiely, 1995 WE. 625917 (Jan. 19, 1995, Curran, J.). "The rationale behind this limitation is that counterclaims and special defenses which [41] are not limited to the making, valid- ity or enforcement of the note or mortgage fail to assert any connection with the subject of the foreclosure action and as such do not arise ant of the same transaction as the foreclosure action." Citizens Mortgage Corp. v. Perez 1995 WI. 656887 (Nov. 2, 1995, Stodolink, 3.). The rtefense of unclean hands to a mortgage foreclo- sure has generally been disallowed in this state. See Me- chanics & Fanners Savings Bank FSB v. Delco Devel- opment Co., Inc., 43 Conn. Supp. 408, 420, 656 A2d 1075 (1993); Gateway Bank v. Racquetball Spa Inc., 10 CTLIt. 170 (Nov. 15, 1993, Lager, J.). However, some courts have recognized it as a valid defense where it is directed at the validity or enforceability of the note and mortgage. In Morgan Guaranty Ilust Ca. v. Nadeau, 1995 WI. 656769 (Oct. 27, 1995, Nadeau, I.), the defendant= mortgagor raised as a special defense the doctrine of unclean hands. The defendant alleged that the plaintiff's failure to act in good faith in a prior bankruptcy proceed- ing should serve as an equitable bar to foreclosure. Granting plaintiffs motion for summary judgment, the court concluded, "The alleged failure by the plaintiff (49] to act in good faith in the bankruptcy proceeding is not a special defense in the present action because it does not 'attack the making, validity or enforcement of the lien,' but instead relates to the subsequent actions of the plaintiff." a Similarly, in Citizens Mortgage Corporation v. Perez 1995 WL 656887 (Nov. 2, 1995, Stodolink, I.), the mortgagor-defendant alleged unclean hands es a spe- cial defense, based on the plaintiffs failure to abide by a loan workout agreement The court struck the special defense as legally insufficient because it was predicated on the conduct of the mortgagee subsequent to the execu- tion of the note and mortgage. In Glastonbury Bank & Dust Co. v. Corbett Con- struction Co., Inc., 7 CILR 519 (October 15, 1992), the defendant-mortgagor raised a special defense based on slanderous statements made after the defendant's default on the mortgage. The court struck this special defense because it did not arise out of the transaction at issue, namely the execution of the mortgage in favor of the plaintiff and the subsequent default by the defendant The Schweitrars argue that an equitable defense predicated on the mortgagee's less than scrupulous [*10] litigation strategy is valid because it relates to the "en- forcement" of the lien. Yet, to successfully assert the doctrine of unclean bands as an affirmative defense to foreclosure, the mort- gagor must allege inequitable conduct occurred during the actual transaction, meaning prior to the default by the mortgagor. Events occurring post-default and during the comae of litigation cannot form the basis of an affirma- tive defense to foreclosure because they do not render the note itself invalid or unenforceable. Because the defendant's affirmative defense is predi- cated on events occurring post-default and challenges a subsequent act by the lienholder it fails as a matter of law. Furthermore, the defendant does not raise a material question of fact regarding the plaintiffs right, as a holder of the note and mortgage in default, to foreclose on the subject property. CONCLUSION Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 43 of 44 1996 Conn. Super. LEXLS 920, " Page 4 The plaintiff's motion for summary judgment is GRANTED. Any objections to this report and recommendation must be filed with the Clerk of Courts within ten (10) days of receipt. Failure to abject within ten (10) days may preclude appellate review. See 28 U.S.C. 4 636(b)(1); Rules 72, 6(a) and 6(e) of {9'113 the Federal Rules of Civil Procedure, Rule 2 of the Local Rules for United States Magistrates; Small u. Secretary of ARS, 892 F.2d 15, 16 (2nd Cir. 1989). Dated at Hartford, Connecticut, this 19th day of De- cember, 1995. F. Owen Eagan. United States Magistrate Judge 1/17/96. Afar review and over objection, the Magis- trate Judge's Recommended Ruling is approved, adopted and ratified. SO ORDERED. Alan H. Mevas, U.S.D.J. Case 3:15-cv-01320-VAB Document 40-1 Filed 12/01/16 Page 44 of 44 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT JEANNE LUKOWICZ, PERSONALLY AND JEANNE LUKOWICZ, ADMINISTRATRIX OF THE ESTATE OF RONALD LUKOWICZ Plaintiff V. GENERAL ELECTRIC COMPANY, ET AL. Defendants CASE NO. 3:15-CV-01320(VAB) DECEMBER 1, 2016 DEFENDANT GENERAL ELECTRIC COMPANY'S LOCAL RULE 56(a)(1) STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNDISPUTED FACT # 1: The Plaintiff, Jeanne Lukowicz, personally and as Administratrix of the Estate of Ronald Lukowicz, alleges that the decedent Ronald Lukowicz contracted lung cancer and/or loss of lung function due to exposure to asbestos-containing products manufactured by the General Electric Company (hereinafter "GE") and the other named Defendants. (See Complaint, dated July 30, 2015, attached hereto as "Exhibit 1," at Count 1 I] 12). UNDISPUTED FACT # 2: Ronald Lukowicz was allegedly exposed to such asbestos- containing products while working at Electric Boat Corporation (hereinafter "EB") from 1959 unti11961. (See Exhibit 1 at Count 1 ll 2; Plaintiff's Responses to Defendant's Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 1 of 52 Standard Interrogatories and Requests for Production, dated September 3, 2015, attached hereto as "Exhibit 2," at pp. 11). UNDISPUTED FACT # 3: GE manufactured steam turbines for the United States Navy to be used for propulsion and shipboard electricity during the time period in which Ronald Lukowicz worked at EB. GE exited the naval steam turbine business in 1996. (See Affidavit of David Skinner, attached hereto as "Exhibit 3," at 11111, 2). UNDISPUTED FACT # 4: Mr. David Skinner is a former GE employee with a Bachelor of Science degree and a Master of Science degree in Mechanical Engineering. Mr. Skinner worked in the contracting process, design, manufacture, installation, operation and maintenance of all types of GE steam turbines, including those that were manufactured for the United States Navy. (See Exhibit 3 at 111). UNDISPUTED FACT #_5: Steam turbines built by GE for use in naval warships were built according to a very detailed set of military specifications known as "MilSpec". GE was required to comply with the MilSpec when it manufactured turbines for the Navy. (See Exhibit 3 at 113). UNDISPUTED FACT # 6: The MilSpec governing naval propulsion turbines provided that heat insulation materials were to be provided by the shipbuilder. (See Exhibit 3 at 11 4). 2 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 2 of 52 UNDISPUTED FACT # 7: GE did not manufacture or sell steam turbines with insulation materials. (See Id.). UNDISPUTED FACT # 8: GE shipped Navy turbines to the shipbuilder "bare metal," meaning they only had a coat of paint on the exterior surface. (See Id.). UNDISPUTED FACT # 9: GE was not involved in the process of supplying and/or installing heat insulation materials. (See Id.). UNDISPUTED FACT # 10: EB is shipbuilder in the business of constructing nuclear submarines, and GE furnishes equipment to EB in such regards. This type of equipment would generally be found in engine rooms or machinery spaces. (See Exhibit 3 at In 1, 2, 4; Canty v. Electric Boat Corp., 151 F.Supp.2d 159, 161 (D.Conn. 2001), attached hereto as "Exhibit 4," ("Electric Boat [is] a division of General Dynamics Corporation. Electric Boat designs and builds nuclear submarines for the United States Navy. Engineering design, final assembly and testing of the submarines is performed at the main shipyard in Groton, Connecticut.")). UNDISPUTED FACT # 11: No witnesses have been deposed in this case. 3 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 3 of 52 UNDISPUTED FACT # 12: The plaintiffs have not produced any product identification evidence, whether by documentary evidence or testimonial evidence, to support the claim that Ronald Lukowicz was exposed to any asbestos containing equipment that was manufactured, supplied and/or sold by GE. UNDISPUTED FACT # 13: Furthermore, the plaintiffs cannot produce any evidence to establish that Ronald Lukowicz worked with, or in close proximity to, or was in any way exposed to any asbestos containing products manufactures, supplied and/or sold by GE.. THE DEFENDANT, GENERAL ELECTRIC COMPANY By: /s/ Brett M. Szczesny Brett M. Szczesny, Esq. HALLORAN & SAGE, LLP Fed. Bar #ct 19560 315 Post Road West Westport, CT 06880 Telephone: (203) 227-2855 labelle@halloransage.com 4 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 4 of 52 CERTIFICATION OF SERVICE This is to certify that on this 1st day of December, 2016, a copy of the foregoing was filed electronically on the Court's CM/ECF system. Notice of this filing will be sent to all counsel of record for viewing via the Court's ECF system. /s/ Brett M. Szczesny Brett M. Szczesny, Esq. 4505955v.1 5 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 5 of 52 EXHIBIT 1 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 6 of 52 Return Date: AUGUST 18, 2015 JEANNE LUKOWICZ, PERSONALLY AND JEANNE LUKOWICZ, ADMINISTRATRIX OF THE ESTATE OF RONALD LUKOWICZ, Plaintiffs, VS. GENERAL ELECTRIC COMPANY CBS CORPORATION f/k/a VIACOM INC., successor-by-merger with CBS CORPORATION f/k/a WESTINGHOUSE ELECTRIC CORPORATION; FOSTER WHEELER, LLC; • AIR & LIQUID SYSTEMS CORPORATION as successor-by-merger to BUFFALO PUMPS, INC.; Defendants SUPERIOR COURT J.D. NEW LONDON AT NEW LONDON July 30, 2015 COMPLAINT CLAIM ON BEHALF OF JEANNE LUKOWICZ ADMINISTRATRIX OF THE ESTATE OF RONALD LUKOWICZ AND JEANNE LUKOWICZ, PERSONALLY FIRST COUNT BASED ON PRODUCTS LIABILITY, CONN GEN. STAT. & 52-572m 1. The Plaintiff, JEANNE LUKOWICZ, was appointed ADMINISTRATRIX for the Estate of Ronald Lukowicz in the State of Rhode Island Court of Probate, District of Kent County, on or about December 26, 2014. 2. From approximately 1959 until approximately1961, the decedent Ronald Lukowicz worked as an Electrical Mechanic for General Dynamics Company/Electric Boat Corporation at Electric Boat Corporation, Groton, CT. His duties, work and activities 1 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 7 of 52 caused him to work in areas where he and others were handling and working with asbestos products or products containing, involving or requiring the use of asbestos and was exposed to asbestos fibers and materials manufactured by the defendants and otherwise placed into the stream of commerce by the defendants. During his employment, he was around and with the Defendants' products, which were designed to require or incorporate asbestos for use, operation or function. 3. The Defendants who are successor corporations have assumed the assets and liabilities of their predecessors, and they are responsible for the liabilities of the predecessors. As used in this Complaint, "Defendant(s)" includes, unless expressly stated to the contrary above, all predecessors for whose actions plaintiff claims the named Defendant(s) is(are) liable. 4. The Defendants were either in the business of manufacturing, distributing, selling or otherwise placing into the stream of commerce various products or they manufactured, distributed, sold or otherwise placed into the stream of commerce products which contained, required, or incorporated asbestos for use, operation or function; or they acted jointly with companies and corporations that were either in the business of manufacturing, distributing, selling or otherwise placing into the stream of commerce various products or that manufactured, distributed, sold or otherwise placed into the stream of commerce products which contained, required, or incorporated asbestos for use, operation or function to withhold or prevent information from reaching the 2 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 8 of 52 consumers and public. During the relevant periods of time, each corporation was doing business in the State of Connecticut. 5. During the decedent's employment and in his duties, work and activities, he was exposed to the asbestos, asbestos products or products containing, involving or requiring the use of asbestos manufactured by the Defendants and otherwise placed into the stream of commerce by the Defendants. As part of his employment and in his work, duties and activities, he was forced to come in contact with asbestos fibers and dust coming from said asbestos products. 6. At all relevant times, the asbestos, asbestos related insulation products, asbestos- containing products, and the asbestos which was installed or used for the operation or function of the Defendants' products, were used and employed for the purpose for which they were manufactured, sold and intended to be used, in a manner foreseeable to the Defendants. 7. The Defendants' actions were wrongful under Connecticut Products Liability law, Conn. Gen. Stat. § 52-572m, et seq., in one or more of the following ways: a. the Defendants' products were designed so as to represent an inherent risk of harm to the Decedent. At all times said asbestos, asbestos related products, and asbestos required for the use, operation or function of the Defendants' products were so intrinsically dangerous so as to necessarily expose users of the materials to probable injury and were ultra hazardous. The Defendants were aware or should have been aware that asbestos would be applied to their products or recommended or required that asbestos would be used on their products; b. the Defendants, as part of their business, manufactured, sold and delivered products that contained, required or involved asbestos for use, operation or 3 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 9 of 52 function into the stream of commerce in a defective, unsafe and inherently dangerous condition as described above, and the asbestos products were expected to and did reach such persons, as the Decedent, without substantial change in the condition in which they were sold; c. the Defendants failed to advise the Decedent of the dangerous characteristics of their asbestos, asbestos, asbestos related insulation products, asbestos-containing products, products that contained, required or involved asbestos for use, operation or function, or for their products for which they recommended the use of the asbestos for insulation and other purposes; d. the Defendants failed or omitted to provide the Decedent with the knowledge as to what would be reasonably safe and sufficient wearing apparel and protective equipment and appliances to prevent him from being exposed to such deleterious and harmful asbestos related insulation materials, asbestos-containing products, and products that contained, required or involved asbestos for use, operation or function; e. the Defendants failed and omitted to place any warnings or sufficient warnings on their asbestos, asbestos related insulation products, asbestos- containing products, and products that contained, required or involved asbestos for use, operation or function to warn the handlers thereof of the dangers to health in coming in contact with said asbestos, asbestos related insulation products, asbestos-containing products, and products requiring or involving asbestos and failed to warn of the risks and dangers associated with installation and removal of asbestos on their products; f. the Defendants failed and omitted to take reasonable precautions or to exercise reasonable care to publish, adopt and enforce a safety plan and a safe method of handling and installing said asbestos, asbestos related insulation products, asbestos containing-products, and products which required or involved asbestos for use, operation or function; g. the Defendants failed to warn or inadequately warned persons such as the Decedent of the dangers to their health from coming in contact with and breathing said asbestos, asbestos related insulation products, asbestos- containing products, and of the dangers involved in installing and removing asbestos from their products; 4 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 10 of 52 h. the Defendants failed to warn of the dangers of asbestos to cigarette smokers including the synergistic relationship between cigarette smoking, asbestos exposure and cancer; i. the Defendants failed to recommend or require methods to improve the work environment; j. the Defendants failed to properly test and investigate the safety of the asbestos Defendants were manufacturing, selling and distributing or requiring in the use, operation or function of their products or to develop alternative products; k. the Defendants failed to provide adequate safety instructions for persons who would reasonably and foreseeably come into contact with their products and the asbestos which would be used in the operation or function of their products; 1. the Defendants failed to properly investigate and comply with reasonable standards and regulations relating to the health of those exposed to asbestos products; m. the Defendants failed to eliminate or reduce the amount of asbestos contained in their products and failed to take steps to reduce the amount of asbestos dust released into the air during the use and operation of their products; n. the Defendants continued to use or require use of a known cancer-causing product, to wit, asbestos; o. the Defendants intentionally misrepresented that their asbestos, asbestos related insulation products, asbestos-containing products, or products they knew or should have known required or involved asbestos for use, operation or function were reasonably safe for their intended use and fraudulently concealed information about them which fraudulent concealment caused Decedent injuries stated herein; p. the Defendants expressly or impliedly warranted that said asbestos, asbestos related insulation products, asbestos-containing products, and products that required or involved asbestos for use, operation or function were of merchantable quality, fit and safe for the purpose for which they were manufactured, sold or used; and 5 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 11 of 52 q. The Defendants breached the said warranties in that their asbestos, asbestos related insulation products, asbestos-containing products, and products that required or involved asbestos for use, operation or function were not fit and safe for the purposes for which they were manufactured, sold and used so that they could not be used without extreme danger to those who breathed the dust coming from their products. 8. All or some of the Defendants became aware of the dangers of breathing asbestos that decedent was exposed to Defendants' asbestos, asbestos related insulation products, asbestos-containing products, and products that required or involved asbestos for use, operation or function but they intentionally and fraudulently concealed the danger from the decedent and the public or conspired to do the same and intentionally misrepresented the information they caused to be published concerning the dangers of asbestos. 9. Some or all of the Defendant corporations were aware or should have been aware of medical and scientific data, studies and reports since approximately 1929, which information clearly indicated that asbestos and asbestos containing products were hazardous to the health and safety of the decedent and other human beings. 10. The Defendants jointly, and each individually, have at alI relevant times consistently failed to acknowledge, publish, or in any way advise of the studies and reports known throughout the industry since the 1920's, including studies conducted by or on behalf of various Defendants in the asbestos industry. 11. It was the continuing duty of the Defendants to advise and warn purchasers, consumers, users and those exposed to the products, and prior purchasers, consumers 6 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 12 of 52 and users of all dangers, characteristics and defects discovered subsequently to their initial marketing or sale of their asbestos, asbestos related insulation products, asbestos-containing products, and products that required or involved asbestos for use, operation or function, which duty the Defendants breached. 12. As a result of the acts of the Defendants as aforesaid and the decedent's exposure to asbestos, asbestos related insulation products, asbestos-containing products, and products that required or involved asbestos for use, operation or function that were manufactured, sold and distributed by the Defendants, the decedent was diagnosed as suffering from Lung Cancer and, consequently, loss of lung function. He endured significant pain and mental anguish. He was severely restricted in his usual activities. He was required to spend large sums of money for medical care and treatment. He suffered grief, fear and anguish over the effect of his illness; the pain caused by his symptoms; the worsening of his symptoms, condition, and disease; his premature death; and the effect his illness had, and his premature death would have, on his family. As a consequence of his asbestos-related injuries, Ronald Lukowicz died on or about October 20, 2014, and he and his estate were denied life's enjoyment, earnings, and incurred expenses for medical care and treatment and funeral bills, for which just compensation is sought. SECOND COUNT FOR LOSS OF CONSORTIUM ON BEHALF OF JEANNE LUKOWICZ 13. Paragraphs 1 through 12 are hereby repeated and realleged as if fully set forth. 7 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 13 of 52 14. At all relevant times, JEANNE LUKOWICZ was the spouse of the Decedent, Ronald Lukowicz. 15. The illness and injuries Ronald Lukowicz suffered prior to his death resulting from exposure to asbestos products deprived his spouse, JEANNE LUKOWICZ, of the comfort, support, service and consortium to which she is entitled. 16. As a result of Ronald Lukowicz's exposure to asbestos products produced or supplied by Defendants and his resulting injuries and damages, JEANNE LUKOWICZ has been deprived of the comfort, support, and consortium to which she was entitled. Pursuant to C.G.S.A. 52-555a&b, Ronald Lukowicz's death resulting from his asbestos-induced injuries has denied his spouse, JEANNE LUKOWICZ, his society, affection, moral support, service, and companionship, resulting in injuries and damages to her. 17. The injuries and damages suffered by JEANNE LUKOWICZ were caused by the Defendants jointly and severally as aforesaid. THIRD COUNT FOR EXEMPLARY OR PUNITIVE DAMAGES PURSUANT TO CONN. GEN. STAT. 52-240b 18. Paragraphs 1 through 17 are hereby repeated and realleged as if fully set forth. 19. The injuries and damages were caused by the Defendants in that their actions constituted wanton, willful and malicious misconduct and demonstrated a reckless disregard for the consequences the Defendants knew or should have known would result. 8 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 14 of 52 20. The Defendants, after they learned or should have learned of the dangers of asbestos exposure, failed or refused to notify the Plaintiff of the dangers of his exposure and of the need for continuing medical surveillance and conspired to keep such knowledge from the public, and the Plaintiff. 21. The Defendants, after they learned of some of the dangers of asbestos exposure after others became ill, failed to promptly act to protect the Plaintiff from the known dangers of asbestos. RESPECTFULLY SUBMITTED, THE PLAINTIFFS BY: 424685 Amity L. Arscott, Esq. Embry & Neusner P.O. Box 1409 Groton, CT 06340 (860) 449-0341 alarscott@embryneusner.com 9 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 15 of 52 WHEREFORE, the Plaintiff, JEANNE LUKOWICZ, personally and JEANNE LUKOWICZ as ADMINISTRATRIX for the Estate of RONALD LUKOWICZ, claim against the Defendants jointly and severally: 1. Money damages. 2. The amount in demand is greater than $15,000.00 3. Punitive and exemplary damages. 4. Such other relief as the Court may deem proper. Dated at Groton, Connecticut on this 30th day of July, 2015. THE PLAINTIFFS, By: 424685 Amity L. Arscott, Esq. Embry & Neusner P.O. Box 1409 Groton, CT 06340 (860) 449-0341 alarscott@embryneusner.com 10 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 16 of 52 EXHIBIT 2 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 17 of 52 DOCKET NO. KNL-CV-15-6024708-S JEANNE LUKOWICZ, EXECUTRIX OF TEE ESTATE OF RONALD LUKOWICZ, PLAINTIFF V. GENERAL ELECTRIC CO., ET AL. DEFENDANTS SUPERIOR COURT J.D. OF FAIRFIELD AT BRIDGEPORT SEPTEMBER 3, 2015 & DOCKET NO. KNL-CV-15-6024700-S JEANNE LUKOWICZ, EXECUTRIX OF THE ESTATE OF RONALD LUKOWICZ, PLAINTIFF V. INGERSOLL-RAND CO., ET AL. DEFENDANTS SUPERIOR COURT J.D. OF FAIRFIELD AT BRIDGEPORT SEPTEMBER 3, 2015 PLAINTIFF'S RESPONSE TO DEFENDANTS' STANDARD INTERROGATORIES AND REQUESTS FOR PRODUCTION 1. Please provide the following information pertaining to the Plaintiff: Full name; Current address; Social Security number; Date of birth; Place of birth; Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 18 of 52 (f) Marital status; (g) Medicare number; (h) Name of spouse; (i) Age of spouse; (j) Name(s) of child(ren); (k) Age(s) of child(ren). ANSWER: a. Ronald J. Lukowicz, deceased b. N/A c. Objection. This interrogatory is not relevant, nor is it likely to lead to the discovery of relevant or admissible evidence. d. Will be provided under separate cover. e. Providence, RI f. Married g. Objection. This interrogatory is not relevant, nor is it likely to lead to the discovery of relevant or admissible evidence. h. Jeanne M. Lukowicz i. 75 years old j. & k. Ronald J. Lukowicz Jr.-51, John J. Lukowicz-48, Steven M. Lukowicz-42 2. If the Plaintiff is deceased, please provide the following information: (a) Date of death; (b) Age at death; (c) The decedent's residence at the time of death; 2 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 19 of 52 (d) Was an autopsy performed on the Plaintiff and, if so, identify the doctor who performed the autopsy and the hospital where the autopsy was performed; (e) What is the name and capacity of any representative appointed to the Plaintiff's estate; (f) The cause of death as listed on the death certificate. ANSWER: a. October 20, 2014 b. 75 years old c. 1898 Victory Highway, Coventry, RI 02816 d. None e. Jeanne M. Lukowicz, Executor f. Small Cell Lung Cancer due to Pulmonary Asbestosis 3. If the Plaintiff is currently employed, please provide the following information: (a) Name of employer; (b) Current wage/salary; (c) Location of employer; (d) Job title. ANSWER: N/A 4. If the Plaintiff is no longer working, please provide the following information: (a) Name of last employer; 3 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 20 of 52 (b) Location of last employer; (c) Date of retirement; (d) Reason for retirement; (e) Job title at the time of retirement; (f) Wage/salary at the time of retirement. ANSWER: a. Cherenzia Excavation b. Westerly, RI c. On or about 2006 d. To more fully enjoy life. e. Excavator f. No claim for lost wages. 5. List the names and addresses of persons who will testify as an expert witness on your behalf. As to each such witness, set forth: (a) the expert's qualifications and field of specialization, including details as to the expert's personal experience; (b) the expert's residence and business address; (c) as to each such expert, state the substance of the facts to which the expert is expected to testify; (d) set forth a summary of the factual grounds of each opinion, including any text or other manual or regulation which the expert relies on. ANSWER: Expert witness information will be provided in accordance with the pre-trial procedures and schedules. 6. If there are persons who have been partially or totally dependent upon Plaintiff for financial support and/or assistance during the last ten (10) years, please provide the following information: (a) The name(s) of the dependent person(s); 4 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 21 of 52 (b) The relationship to the Plaintiff of each dependent; (c) The amounts, per year, that Plaintiff has contributed to each dependent. ANSWER: N/A 7. If the Plaintiff is claiming economic damages, other than lost wages, which Plaintiff contends they have incurred as a result of the injuries alleged in the complaint, please provide the following information: (a) Dollar amount of hospital charges; (b) Dollar amount of other medical charges; (c) Dollar amount of funeral expenses; (d) If the Plaintiff claims lost wages as a result of the injuries alleged in the complaint, please provide the following information: (i) The dollar amount of wages which you claim have been lost; (ii) How the lost wages were calculated; (iii) The date on which you became unable to work as a result of the injuries alleged in your complaint; (iv) The amount of gross income reported by Plaintiff on his/her Federal Income Tax Returns for the three (3) years preceding the date on which Plaintiff claims he/she was unable to work as a result of injuries alleged in the complaint. (e) Any other economic damages claimed and dollar amount of each damage claimed. ANSWER: The plaintiff is not claiming lost wages. See attached Funeral Bill of the Decedent. Additional information has been requested and will be forthcoming. 8. If the Plaintiff has ever been a member of any union, please provide the following information for each union: 5 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 22 of 52 (a) The name of the union and local number•, (b) The address of the union; (c) The time period the Plaintiff was a member; (d) Any offices held by the Plaintiff. ANSWER: N/A 9. If the Plaintiff' has ever smoked a cigarette, pipe, cigar, or used any other tobacco product, please provide the following information: (a) The period of time during which Plaintiff smoked/chewed tobacco; (b) The number of cigarettes or pack(s) of cigarettes, pipes or containers of tobacco, Plaintiff smoked/chewed per day during that time period (if the quantity varies during the time period, please indicate quantities specific to each year); (c) The brand of tobacco product used, and if cigarettes, whether they were filtered or non-filtered; (d) Whether the Plaintiff was ever advised by a physician to stop smoking or using tobacco products and, if so, identify the physician and the approximate date(s) on which such advice was given. ANSWER: a. From on or about 1955-1972 b. Approximately 1 pack per day c. Various Non-Filtered cigareftes d. None 10. If a spouse or other household member of the Plaintiff ever smoked tobacco products, please answer questions 9(a) through 9(c) as they apply to the spouse/member of household. 6 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 23 of 52 ANSWER: N/A 11. If the Plaintiff was ever enlisted in a branch of the United States military, please provide the following information: (a) Years of service; (b) Military identification number; (c) Branch of service; (d) Rankings held; (e) Names of naval ships and/or submarines upon which the Plaintiff served and the corresponding years of service; (f) Whether the Plaintiff has filed a claim for veteran's benefits and, if so, for what injuries, when was the claim filed, and does or did the Plaintiff receive any veteran's benefits as a result of the claim. ANSWER: N/A 12. If the Plaintiff has ever made a claim for Workers' Compensation benefits, please provide the following information: (a) Date of the claim(s); (b) The injury or injuries for which each claim was filed; (c) The employer(s) subject to each claim; (d) The place where each claim was filed; (e) The outcome of each claim; (f) Whether the Plaintiff ever testified with respect to any claim and, if so, please provide the date of his/her testimony and the nature of the testimony. 7 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 24 of 52 ANSWER: Objection. This interrogatory is overly broad, vague and not likely to lead to the discovery of relevant or admissible evidence. Notwithstanding, the plaintiff filed claims for injuries to his lungs on or about December 5, 2014. 13. If the Plaintiff has ever given sworn testimony or an oral statement under oath in any form on any subject in any place or for any purpose, please provide the following information: (a) The date(s) of the sworn testimony; (b) The location(s); (c) The reason for giving the sworn testimony or statement; (d) Caption of case (if applicable); (e) Name of court reporter (if applicable); (f) Whether a transcript exists of the testimony or statement. ANSWER: Objection. This interrogatory is overly broad, vague and not likely to lead to the discovery of relevant or admissible evidence. Notwithstanding, see response to interrogatory No. 12. 14. With respect to the injuries alleged in the Plaintiffs complaint, please provide the following information: (a) State all injuries and physical abnormalities for which Plaintiff is claiming compensation in this lawsuit; (b) Describe any pain, incapacity, inability to work, or disability alleged to have resulted from the injuries and physical abnormalities Plaintiff sustained; (c) Set forth the date when Plaintiff first noticed any symptoms which are believed to be related to the disease or injury alleged in the complaint and describe the nature of those symptoms; (d) Identify the doctor or physician who first diagnosed the Plaintiff with his/her illness and/or abnormality; 8 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 25 of 52 Identify the doctor or physician who first diagnosed the Plaintiff's condition as being related to asbestos and state the date when such diagnosis was made; Identify the Plaintiff's primary care physician; Identify any treatments, including radiation, chemotherapy and surgery, that the Plaintiff has undergone or will undergo as a result of the injuries alleged in the complaint and for each, describe the duration and location of the treatment(s) . (h) Identify any drugs that the Plaintiff has been prescribed as a result of the injuries alleged in the complaint. ANSWER: See attached medical reports. 15. If the Plaintiff has reached a settlement with an entity or person, whether or not named in the complaint, please provide the following information: (a) Identify each settling entity or person; (b) State the amount received for each settlement; (c) Describe the alleged injury or damage subject of each settlement. ANSWER: No monies received to date. 16. If Plaintiff has made or will make a claim against an allegedly bankrupt entity (whether or not that entity has been named as a party Defendant in this action) including, but not limited to trusts related to, A C and S, Inc.; A.P. Green Industries, Inc.; A.P. Green International, Inc.; A.P. Green Refractories; A.P. Green Services, Inc.; Artra Group (Synkoloid); Armstrong World Industries, Inc. ; ASARCO Incorporated (Capco Pipe Company, Inc./Lake Asbestos of Quebec); Babcock & Wilcox Company; Celotex Corporation; Combustion Engineering, Inc.; Congoleum Corporation; Federal—Mogul Corporation; Fibreboard Corporation; Flintkote Company, 9 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 26 of 52 G—I Holdings Inc. (formerly GAF Corp.); Gasket Holdings Inc.; J.T. Thorpe, Inc.; Kaiser Aluminum & Chemical Corporation; Keene Corporation; Lake Asbestos of Quebec, Ltd.; National Gypsum (Asbestos Claims Management Corp.); North American Refractories Company; Owens Corning; Pittsburgh Coming Corporation; Quigley Company, Inc.; Schutte & Koerting, Inc.; T&N, Ltd. (part of Federal—Mogul Bankruptcy); United States Gypsum Company; United States Mineral Products; USG Corporation; and W.R. Grace and Company, please list each such claim (made or intended) separately in response to this Interrogatory. ANSWER: Celotex Bankruptcy, Raymark/Raybestos Bankruptcy, Fibreboard Bankruptcy, Armstrong Bankruptcy, Keene Bankruptcy, G.A.F. Bankruptcy, Babcock & Wilcox Bankruptcy, Combustion Engineering Bankruptcy, Owens-Corning Fiberglass Bankruptcy, Pittsburgh Corning Bankruptcy, United States Gypsum Bankruptcy, National Gypsum Bankruptcy, Congoleum Bankruptcy, ARTRA Bankruptcy, AC and S Bankruptcy, THAN Bankruptcy, A.P. Green Refractories, Artra Group(Synkoloid), ASARCO Incorporated (Capco Pipe Company, Inc./Lake Asbestos of Quebec), Federal-Mogul Corporation, Flintkote Company, Quigley Company, T&N, Ltd. (part of Federal-Mogul Bankruptcy), United States Mineral Products, USG Corporation, W.R. Grace and Company, and other bankruptcy trusts as they organize, and as information is discovered. 17. If the Plaintiff has filed a civil lawsuit for any purpose in any location (other than this lawsuit), please provide the following information: (a) Type of claim; (b) Case caption of claim; (c) Court location of claim; (d) Name of Plaintiff's attorney; (e) Name of adverse attorney(s); (f) Date of filing; (g) Describe the status of the claim. 10 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 27 of 52 ANSWER: Objection. This interrogatory is overly broad, vague and not likely to lead to the discovery of relevant or admissible evidence. 18. If the Plaintiff has ever undergone any company, union, or other screening for lung or respiratory disease, please provide the following information: (a) The company, union or other entity sponsoring the screening; (b) The date and location of each screening; (c) Identify the name and location of the practitioner or health care provide under whose supervision the screening was conducted; (d) Describe the nature and results of each screening. ANSWER: N/A 19. For each and every employer that the Plaintiff has had from the time he/she was first employed and until the present set forth the following (using the chart provided): Objection. The plaintiff cannot be expected to recall each and every employer throughout his whole life. Notwithstanding: Dates of Name and Job/Position Asbestos products Other asbestos Employment Address of used by you products which Employer (including name allege you were and Jobsite of manufacturer if known) exposed to (including name of manufacturer if known) 1959-1961 General Dynamics / Electric Electrician Insulation, gaskets, packing, blankets See Exhibit A Boat- Groton, CT 11 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 28 of 52 1964-1967 Lachance Enterprises — West Warwick, RI Construction Unaware Unaware 1962-1975 Ideal Cab, Inc.— Warwick, RI Dispatcher Unaware Unaware 1976-1978 Merchants Overseas — Providence, RI Associate Unaware Unaware 1972-1994 Self - Employment Land Clearing / Property Sales Unaware Unaware 1995-1996 Winthrop Old Farm Nurseries — Middletown, RI Home Building Unaware Unaware 1997-2006 Cherenzia Excavation — Westerly, RI Machine Operator Unaware Unaware 12 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 29 of 52 20. Identify each doctor or other healthcare professional whom the Plaintiff consulted with during his/her life for any reason, including each time the Plaintiff was a patient in a hospital, and set forth the following (using the chart provided): Objection. The plaintiff cannot be expected to recall each and every medical provider throughout his whole life. Notwithstanding: Physician, Health Care Provider or Hospital Name and Address Date of consultation or admission Reason for consultation or admission Kent Pulmonary, Asthma, and Sleep Medicine, LLC 215 Toll Gate Rd. Warwick, RI 02886 Various Dates Pulmonology Rhode Island Cardiology 1377 S County Trail East Greenwich, RI 02818 Various Dates Pulmonary and heart Dr. Michael Conway 85 Seymour St # 923 Hartford, CT 06106 8/5/10 & 7/27/13 Respondent's Medical Examination Kent County Memorial Hospital 455 Toll Gate Road Warwick, RI 02886 Various Dates Orthopedic, lung and general health VNA of Care New England 51 Health Lane Warwick, RI 02886 Various Dates Home Health Aide /Hospice 21. Please state whether the Plaintiff or Plaintiff's Decedent has ever undergone any physical examination or any other examination otherwise known as an Independent Medical Examination ("IME") at the request of his or her present or former employer (or the present or former employer's insurance carrier) or for any reason whatsoever. If so, please provide the following information: (a) The name and address of the physician(s) who conducted the ME; 13 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 30 of 52 (b) The date(s) the IME(s) were conducted. ANSWER: a. Dr. Michael Conway, Connecticut Multispecialty Group, PC b. On or about 8/5/2010 & 7/27/13 22. If the Plaintiff ever worked at or was employed by General Dynamics/Electric Boat, please provide the following information: (a) The dates the Plaintiff worked for Electric Boat; (b) The positions Plaintiff held at Electric Boat and corresponding years the Plaintiff held each position; (c) The Plaintiff's employee number; (d) The submarines on which the Plaintiff worked. ANSWER: a. 1959 to 1961 b. Learner / Electrician c. 245 25314 d. 571, 597, 598, 610 23. If the Plaintiff ever worked at or was employed by Pratt & Whitney, please provide the following information: (a) The dates the Plaintiff worked for Pratt & Whitney; (b) The positions Plaintiff held at Pratt & Whitney and corresponding years the Plaintiff held each position; (c) The Plaintiff's employee number; 14 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 31 of 52 ANSWER: N/A 24. If the Plaintiff ever worked at or was employed by Pfizer, Inc., please provide the following information: (a) The dates the Plaintiff worked for Pfizer, Inc.; (b) The positions Plaintiff held at Pfizer, Inc. and corresponding years the Plaintiff held each position; (c) The Plaintiff's employee number; ANSWER: N/A 25. If the Plaintiff ever worked at or was employed by any powerhouse, please provide the following information: (a) The name and location of each powerhouse; (b) The years Plaintiff worked at each powerhouse; (c) The employer of the Plaintiff at the time he/she worked at each powerhouse; (d) The job duties of the Plaintiff at each powerhouse; (e) The unit(s) of each powerhouse in which the Plaintiff worked. ANSWER: N/A 26. If any member of the Plaintiff's immediate family has ever been diagnosed with any form of cancer, please provide the following information: (a) The type of cancer; (b) When the cancer was first diagnosed; 15 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 32 of 52 (c) The course and outcome of the cancer. ANSWER: N/A 27. If any member of the Plaintiff's immediate family has ever been diagnosed with an asbestos-related disease, please provide the following information: (a) Identify the family member; (b) Describe the nature of the asbestos-related disease; (c) Describe the family member's employment history; (d) Identify the diagnosing doctor; (e) Has the family member filed a complaint or workers' compensation claim for their alleged injuries and if so, when and where; (f) Has the family member ever been deposed or given sworn testimony relating to their complaint or claim and, if so, when. ANSWER: N/A 16 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 33 of 52 REQUESTS FOR PRODUCTION A. Any and all documents in the Plaintiff's possession relating to any naval vessel and/or submarine upon which the Plaintiff worked or served aboard. Response: Attached, if additional information is provided it will be provided. B. Any and all documents relating to the Plaintiff's military service and/or claim for veteran's benefits. Response: N/A C. If the Plaintiff worked for Electric Boat/General Dynamics, Pratt & Whitney, Pfizer, Inc. or any powerhouse, any and all documents relating to Plaintiff's work for Electric Boat/General Dynamics, Pratt & Whitney, Pfizer, Inc. and at any applicable powerhouse. Response: See response to A. D. Any and all proofs of claims filed in connection with a claim to any asbestos- related trust. Response: Attached E. Any and all documents, photographs, samples, depiction of product labels, instruction sheets, brochures, videos, and/or packaging of products from which the Plaintiff alleges he was exposed to asbestos which are in the possession of the Plaintiff Response: Plaintiff's counsel has thousands of documents which are available for inspection at counsel's office at an agreed upon time. F. Any and all documents, invoices, purchase orders, correspondence, shipping records, or other documents which you contend support the presence of any asbestos-containing product at any worksite at which the Plaintiff worked. Response: See E. G. If the Plaintiff has ever undergone a physical examination or Independent Medical Examination ("IME") as stated in Interrogatory Number 21, provide copies of the reports generated as a result of said examination(s). 17 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 34 of 52 Response: Attached. H. If you are claiming that the Plaintiff incurred medical expenses as a result of the injuries alleged in the complaint, provide copies of itemized bills covering all such expenses. Response: Information has been requested and will be forthcoming. An authorization will be provided to allow the defendant to conduct its own investigation. I. If you are claiming that the Plaintiff lost wages as a result of the injuries alleged in the complaint, provide copies of his/her income tax returns for the past three (3) years. Response: N/A J. Copies of all documents, reports, correspondence, and records from each doctor, physician, hospital, or other health care provider where or by whom Plaintiff has been seen or treated at any time. Response: See objection to Interrogatory No. 20; see attached. K. If the Plaintiff has filed a claim for Workers' Compensation benefits, please provide all documents relating to that claim, including, but not limited to, the application, supporting physicians' reports, supporting medical records, transcripts of hearings, and copies of depositions relating to that claim. Response: See objection to Interrogatory No. 12; see attached. L. Any and all copies of applications for disability claims or disability pensions made by Plaintiff during the course of his/her lifetime. Response: Objection. This request is overly broad, vague and not likely to lead to the discovery of any relevant or admissible evidence. Notwithstanding, Not applicable. M. Any and all documents, notes or records relating to Plaintiffs employment, including, any notes or records kept by him/her and prepared by him/her during the course of his/her employment. 18 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 35 of 52 Response: Objection. This request is overly broad, vague and not likely to lead to the discovery of any relevant or admissible evidence. Notwithstanding, none aware of. N. Any and all employment or personnel files, records or documents in the Plaintiff's possession. Response: Objection. This request is overly broad, vague and not likely to lead to the discovery of any relevant or admissible evidence. Notwithstanding, none aware of. 0. A copy of the Plaintiffs social security records. Response: The plaintiff is not in possession of said records. An authorization will be provided if requested to enable the defendant to conduct its own investigation. P. A copy of the Plaintiff's autopsy report, if any. Response: N/A Q. A copy of the Plaintiff's death certificate, if any. Response: Attached R. A copy of any transcripts of sworn testimony given by the Plaintiff. Response: See objection to Interrogatory No. 12. S. Any and all transcripts of deposition testimony or oral statements given by any member of the Plaintiffs immediate family who was diagnosed with an asbestos- related disease. Response: N/A T. Any and all transcripts of lay witnesses to be relied upon by the Plaintiff in this matter. Response: Plaintiff's counsel has thousands of pages of transcripts which are available for inspection at counsel's office at an agreed-upon time. U. If the Plaintiff has filed a claim for Workers' Compensation benefits please sign Exhibit A. 19 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 36 of 52 Response: Attached V. If the Plaintiff worked for Electric Boat/General Dynamics, Pratt & Whitney, Pfizer, Inc. or at any powerhouse please sign Exhibit B. Response: Attached W. Please sign the HIPAA medical authorization attached hereto as Exhibit C. Response: Attached The Plaintiff; By his Attorneys, By: 424685 Amity L. Arscott Embry and Neusner P.O. Box 1409 Groton, CT 06340 Telephone (860) 449-0341 Facsimile (860) 449-9070 20 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 37 of 52 PLAINTIFF'S CERTIFICATION I, Jeanne Lukowicz, hereby certify that I have reviewed the above Interrogatories and the responses thereto and that they are true and accurate to the best of my knowledge and belief. t it conrya., A6 GOZA Jrme Lukowicz, Executrix of thW Estate of Ronald Lukowicz Subscribed and sworn to before me this day of , 2015. Notary Public / Commissioner of the Superior • Court My Commission Expires: 34./.2o 7 28 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 38 of 52 EXHIBIrT 3 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 39 of 52 AFFIDAVIT OF DAVID IL SKINNER; STATE OF NEW YORK COUNTY OF SCIIENECTADY David R. Skinner states us follows: 1. I am a mechanical engineer, with a Bachelor of Science degree in Engineering Mechanics from Lehigh University and a Master of Science degree in Mechanical Engineering from the University of Vermont. I was employed by General Electric Company ("GE") in various engineering positions from 1967 until my retirement in 2005. More than 30 of those years were spent in GE's steam turbine business. Of those 30 plus years in the steam turbine business, approximately 15 of them were spent working in components of that business that designed and manufactured steam turbines for the United States Navy. Since August 2005, I have continued to perform consulting work for GE in connection with cases involving GE steam turbines. During my more than three decades of work in GE's steam turbine busine.ss.and my subsequent years of steam turbine consulting, I have studied GE steam turbines and the steam turbine business and have gained substantial experience and knowledge about those subjects, including the contracting process, design. manufacture, installation. operation, and maintenance of all types of GE steam turbines. Most Navy warships built since the Wnrld War tt cm have used steam turbines for propulsion. Even today, although other technologies are increasingly used for naval propulsion. nil nuclear powered war ships employ steam turbines fur propulsion. Smaller steam turbines are also employed aboard steam ships in the generation of shipboard electricity. these Navy turbines die mechanical devices made of steel, Their purpose is to convert the heat ,nur, y Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 40 of 52 contained in steam into mechanical energy that can he harnessed to drive a ship's propellers or to turn a generator to make electricity for shipboard use. Inside the hull of each steam powered warship. the Navy designs and installs a complex steam system using components procured from numerous manufacturers. Navy turbines are one such component that the Navy incorporates into its overall shipboard steam system. Nuvy turbines have been manufactured by various American companies over the decades. GE was one such company until it exited the Navy turbine business in 1996. 3. The design and construction of a Navy warship is a complex process that takes years. To carry out this project. the Navy has its own engineers. both naval officers and civilian employees, and also engages the services of outside naval architecture firms, such as Gibbs & Cax. who collaborate to translate the concept for the new ship into a design that can be constructed by a shipyard under the Navy's direction. The Navy, working in conjunction with the shipyard it has contracted the build the ship, then acquires from a multitude of vendors the thousands of pieces of equipment needed to build the ship. Those acquisitions are accomplished through a government contracting process. The heart of that process is the Military Specification ("MilSpee"). There are thousands of MilSpee.s. and they specify in minute detail the Navy's requirements for shipboard equipment. Vendors MEM comply with applicable NlilSpees for the equipment they provide, and the MilSpecs become part of the government contract for all major equipment purchases by the Navy, including steam to 4. The MilSpcc governing Navy propulsion turbines provide', "[Feat insulation and lagging will be provided by the shipbuilder.' ht compliance with this Navy specification. Navy turbines manufactured by GE did not have any heat insulation materials (whether containing she,!, ,s nthermse) installed un them at the time they left GE's control upon 1,,ritt h]pped Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 41 of 52 from the GE plant. GE did not manufacture or sell Navy turbines with heat insulation. Navy turbines manufactured by GE left the GE factory and were shipped "bare metal," meaning they had only a coat of paint on the exterior surface. Any heat insulation materials that were applied to Navy turbines manufactured by GE would have been supplied and installed by the Navy's shipbuilder after those turbines had left GE's manufacturing plant. had been delivered to the shipyard, and had been installed aboard ship and tested. The process may be summarized as follows: (a) a Navy turbine would be manufactured by GE in compliance with the governing MilSpecs, pursuant to a government contract; (b) that Navy turbine would leave the GE factory in a "bare metal" condition and would be shipped to the Navy's designated shipyard where the ship was to be constructed; (c) at thut shipyard. the Navy turbine would he placed into storage by the shipbuilder until ship construction reached the point where it was time to install the turbine aboard ship; (d) ut that point, the shipbuilder's personnel would use a crane to lift the Navy turbine into the ship's hull and install it on a foundation that had been constructed in the engine room to receive it; (c) sometime thereafter, once all the other necessary steam system components had been installed and were online, such as boilers. condensers, and piping, the turbine would be tested by the shipbuilder; and n sometime after that, assuming the test of alt systems was satisfactory, heat insulation materials would be applied to certain components of the turbine, Is well as to numerous other pieces of equipment and piping systems throughout the engine room. rite nature of those heat insulation materials would be specified by the Navy to its shipbuilder through a set of MilSpees overlong such materials. Those heat insulation material, would he supplied by the Navy's shipbuilder in compliance with those MilSpecs, and the application of those materials would be carried out by the Navy's shipbuilder's personnel. GE was not involved ra this process of supplying and installing heat insulation materials Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 42 of 52 5. I have personal knowledge at the foregoing matters and am competent to testify thereto. l ticclarc under penally of perjury that the foregoing it true and correct. )1t David R. Skinner Executed on: February k8, 2015. Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 43 of 52 EXHIBIT 4 Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 44 of 52 Canty v. Electric Boat Corp., 151 F.Supp.2d 159 (2001) 151 F.Supp.2d 159 United States District Court, D. Connecticut. Dorenda T. CANTY, Plaintiff, v. ELECTRIC BOAT CORP., Defendant. No. 3:98CV2201. GLG. June 22, 2001. Unsuccessful applicant for engineering position brought Title VII sex and race discrimination claims against employer. Employer moved for summary judgment. The District Court, Goettel, J., held that: (1) applicant satisfied qualification prong for establishing prima facie case by showing that many of positions for which employer was hiring required only B.S. degree in engineering, which she possessed, and (2) material issue of fact existed as to whether employer's proffered reasons for rejecting applicant were pretextual. Motion denied. Attorneys and Law Firms *161 Dorenda T. Canty, Washington, DC, pro se. Douglas McClain Peachey, General Dynamics/ Electric Boat Division, Groton, CT, Neal J. McNamara, Holland & Knight, Providence, RI, for defendant. GOETTEL, District Judge. In this hiring discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e etseq., defendant has moved for summary judgment [Doc. # 321. For the reasons set forth below, defendant's motion is denied. SUMMARY JUDGMENT STANDARD 111 In ruling on a motion for summary judgment, the Court is tasked with determining whether a genuine dispute over material facts exists between the parties that must properly be submitted to a jury, or, where no issues of material fact are found, whether the moving party is entitled to judgment as a matter of law. Byrnie v. Town of Cromwell Bd. v/ Eder . 243 F.3d 93. 101 (2d Cir.2001). When examining the evidence, this Court is required to resolve all ambiguities and draw all inferences in favor of the non-moving party. Moreover, in a case such as this where the plaintiff is pro se, the Court is required to read the pleadings of a pro se plaintiff liberally and interpret them "to raise the strongest arguments that they suggest." Burgos v. Hopkins. 14 F.3d 787, 790 (2d Cir.1994). Thus, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party, summary judgment is improper. Howley v. Town of Small rd. 217 F.3d 141. 151 (al Cir.2000). MEMORANDUM DECISION FACTUAL BACKGROUND Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 45 of 52 Canty v. Electric Boat Corp., 151 F.Supp.2d 159 (2001) At all times relevant to plaintiff's complaint, defendant Electric Boat was a division of General Dynamics Corporation. Electric Boat designs and builds nuclear submarines for the United States Navy. Engineering design, final assembly and testing of the submarines is performed in the main shipyard at Groton, Connecticut. In 1994, General Dynamics sought to hire additional engineers. As part of this effort, the company placed an advertisement in the Washington Post in July, 1994 for designers and engineers in the following categories: mechanical, marine/ nay-arch, electrical, software, civil/structural, and aerospace. Applicants were to apply at the Hyatt Regency, Crystal City, Arlington, Virginia. In response to this advertisement, on July 15, 1994, the plaintiff, Dorenda Canty, who is an African—American, went to the Hyatt Regency to apply for an engineering position. She spoke with a recruiter and gave him her resume and her college transcripts. Her resume indicated that she received a B.S. degree in Nautical Science/Marine Transportation from the United States Merchant Marine Academy in 1979 and a B.S. degree in Civil Engineering from Savannah State College in *162 1987. Her work experience included work as a Junior Engineer with Sherikon, Inc. (1994), as a Drainage Engineering Technician with the City of Savannah (1988-92), as a Shelter Survey Technician with the Federal Emergency Management Division in Oregon (1986), as an Engineering Aide with the Army Corps of Engineers in Savannah (1985), and as a Technical Hull Surveyor with the American Bureau of Shipping in New York (1979-81). Her college transcripts showed that plaintiff had an overall grade point average of 3.25 from Savannah State but that she had received C's and D's in several structural engineering and naval architectural courses. Following this initial interview, plaintiff was invited by defendant for a subsequent plant interview at Groton. The letter from General Dynamics, Electric Boat Division, to the plaintiff stated in relevant part: The review of your resume has prompted us to invite you to a plant interview at our Groton facility to further explore your interest and discuss the details of your qualifications. In response to this letter, plaintiff contacted the Groton facility and arranged for an interview to take place on October 11, 1994. She was told that she would be considered for a position in Department 491, which was responsible for engineering for the New Attack Submarine's forward end, and was given a schedule for her interviews. Plaintiff states that, prior to her interview, she was told that the "focuses" of Department 491, System Engineering, included development and design studies, systems, components, mechanical, weapons, hull structure, naval architecture, and fluid mechanics, and that she interviewed for an engineering position "without specificity." Pl.'s Mem. at 4. On October 11, 1994, as arranged, plaintiff went to Electric Boat's Groton facility for her interview. After filling out an employment application, plaintiff interviewed with Andrew Bliss, a supervisor of the Internal Structure Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 46 of 52 Canty v. Electric Boat Corp., 151 F.Supp.2d 159 (2001) Group within Department 491. He testified in his affidavit that, although he found plaintiff to be a very pleasant, personable person, her background did riot fit their requirements. He felt that she had insufficient education and no work experience in structural analysis and that her grades were low in the relevant subject matters. She next interviewed with Brian Pringer, a line level engineer in Department 491. Again, plaintiff made a very good impression in terms of "interpersonal skills," but he, too, noted that she lacked the "design/analysis experience required for this position." Plaintiff's final interview was with Thomas Yankura, an engineering project specialist for Department 470. Plaintiff was not originally scheduled to interview with Yankura, but according to defendant, Human Resources arranged this interview because of her "poor initial interviews." Department 470 was recruiting structural/naval architectural engineers. He determined that she was not qualified for these positions because of her work experience and academic credentials. After the interviews, Pringer and Bliss met with Department Manager Hesch and completed an Interview Report Form which indicated that the final department decision was not to hire her. It notes "varied background, but not suitable fit to available positions." The Form was signed by the Department Head, James Macaulay, who never met plaintiff and, thus, was not aware of her race. On December 15, 1994, Electric Boat wrote plaintiff that there was no position available that matched her abilities. The letter stated: The results of your recent interview with Dept. 470 and NAS, Dept. 491 have *163 been reviewed at considerable length. Although your qualifications are substantial, we do not currently have a position that directly matches your abilities. Plaintiff quickly responded to this rejection letter with her own letter, suggesting that she be considered for a term assignment as a junior engineer for six months "in recognition that the dilemma appears to be how to place/use my demonstrated applicable skills versus my abilities which have not been allowed true demonstrable opportunity." It does not appear that defendant responded to this suggestion. On February 1, 1995, plaintiff filed a complaint of discrimination with the Department of Labor. She alleged that defendant discriminated against her based on her race and sex. This was referred to the Equal Employment Opportunity Commission, which issued a right-to-sue letter, following which, plaintiff filed the instant complaint in this Court. DISCUSSION Plaintiff has not produced any direct evidence of discrimination against her. She denies that any employee of defendant made any derogatory remarks of a racial nature to her. Rather, she complains of the overall interviewing process and the nature of the questions that she was asked, as well as the interviewers themselves and what she Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 47 of 52 Canty v. Electric Boat Corp., 151 F.Supp.2d 159 (2001) perceived to be their lack of qualifications. She also cites the under-representation of African—Americans in defendant's employ. She complains that she was never told that she would be interviewed for a particular engineering position and was never given a job description. Instead, she understood that she was being interviewed for a broad range of engineering jobs, not a specific structural engineering position. Finally, she challenges defendant's evaluation of her experience. She notes that defendant hired a white, female engineer the same day plaintiff was refused an offer, which she interprets as a willful and intentional decision to obstruct the entry of a black female into the department. Defendant has moved for summary judgment on the grounds that there is no claim of gender discrimination in plaintiffs complaint; that plaintiff cannot make out a prima facie case of discrimination because she cannot show that she was qualified for the position of structural engineer; and that, even assuming plaintiff carries her prima facie burden, she cannot prove that defendant's articulated non- discriminatory reasons for not hiring her were pretextual. I. Plaintiffs Sex Discrimination Claim Defendant first argues that, although plaintiff checked the box on the EEOC form indicating that her charge of discrimination was based upon race and sex, plaintiff has made no allegations of sex discrimination and therefore this claim should be dismissed. We disagree. While the major focus of plaintiffs lengthy complaint is her race discrimination claim, plaintiff has also included claims of gender discrimination. She mentions "gender stereotyping" (Pl.'s Mem. at 23), disparate treatment of plaintiff as compared to white males (Pl.'s Mem. at 21-22), and she points to the under-representation of females in defendant's workforce. Therefore, it appears that plaintiff is, in fact, pursuing both sex and race discrimination claims. IL Plaintiff's Prima Facie Case of Discrimination Defendant asserts that plaintiff cannot demonstrate a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792. 802, 93 S.Ct. 1817. 36 I..Ed.2d 668 (1973), in that she cannot establish that she was qualified for the position of structural engineer in Department *164 491. Defendant asserts that the structural engineering position for which Plaintiff interviewed required a "strong educational background or work experience in structural engineering," and that she possessed neither. [2J The difficulties that we have with defendant's position are two-fold: first, defendant challenges plaintiffs qualifications for a particular, specialized engineering position. Yet, defendant's advertisement, its correspondence to plaintiff inviting her for an interview, and its correspondence rejecting her referenced a wide range of positions. The parties have produced personnel requisition forms indicating that defendant was attempting to hire well over 100 engineers. 1 Thus, we do not view this case as narrowly as defendant. This is not a case of failure to hire for one specific opening. Second, defendant has interpreted the qualification prong of Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 48 of 52 Canty v. Electric Boat Corp., 151 F.Supp.2d 159 (2001) McDonnell Douglas as requiring the plaintiff to disprove the employer's proffered legitimate reason for not hiring her as part of her prima facie case. This burden is far too stringent. 131 The Second Circuit has repeatedly emphasized the minimal burden that a plaintiff must carry in establishing a prima facie case of discrimination. See, e.g., Byrnie. 243 F3(.1 at 101 02; James tit. New York Racing Asset', 233 F.3d 149, 153-54 (2d Cir.2000); Hollander v. Am. Cyanamid C'o., 172 F.3d 192. 199 (2d Cir.1999). All that is required is a showing that (1) plaintiff is a member of a protected group; (2) that she was qualified to perform the duties of the position; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination based on the Plaintiffs membership in the protected class. Austin v. Ford Models, Inc.. 149 F.3d 148, 152 (2d Cir.1998); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir.1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 351. 139 L.Ed.2d 752 (1998). In the recent case of Slattery v. Swiss Reinsurance Am. Corp.. 248 F.3d 87 (2d Cir.2001), amended by (June 6, 2001), the Second Circuit addressed the required showing a plaintiff must make with respect to the "qualification prong," stressing that the plaintiffs burden is only "minimal." "Plaintiff must show only that [s]he 'possesses the basic skills necessary for performance of [the] job.' " Id. at 91 (quoting Owens v. New York City Housing Auth., 914 F.2d 405. 409 (2d Cir.1991 )). "The qualification prong must not ... be interpreted in such a way as to shift onto the plaintiff an obligation to anticipate and disprove, in [her] prima facie case, the employer's *165 proffer of a legitimate, non- discriminatory basis for its decision." Id. 141 In this case, many of the engineering positions for which defendant was hiring required only a B.S. degree in engineering, which plaintiff possessed. Additionally, plaintiff went through an initial screening process at her walk-in interview in Crystal City before she was invited to Groton for additional interviews. A jury could reasonably infer that defendant found her minimally qualified for the jobs it was attempting to fill or it would not have invited her for a plant interview. Accordingly, we find that plaintiff has satisfied her minimal burden of showing that she was qualified for an engineering position, and we reject defendant's argument that it is entitled to summary judgment based on plaintiff's failure to meet her prima facie burden. III. Proof that Defendant's Stated Reasons Were Pretextual Defendant next asserts that, assuming arguendo, plaintiff can establish a prima facie case of discrimination, it has articulated a nondiscriminatory reason for not hiring her, i.e., that she was less qualified. Defendant argues that there is no evidence that plaintiff can point to that even suggests that Electric Boat's proffered reason is false and that discrimination was more likely than not the real reason she was not hired. [51 At the summary judgment stage in an employment discrimination case, the Court is required to examine the record as a Next Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 49 of 52 Canty v. Electric Boat Corp., 151 F.Supp.2d 159 (2001) whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of the employer. Burnie, 243 F.3d at 102. "A motion for summary judgment may be defeated 'where a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." ' Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc.. 530 U,S. 133. 120 S.Ct. 2097. 2109. 147 1...Fd.2d 105 (2000)). Viewing the facts in the light most favorable to the plaintiff, we find that plaintiff has offered enough evidence to allow a reasonable jury to conclude that defendant's reason for not hiring her for any available engineering position was a pretext for discrimination. 161 As defendant correctly points out, the purpose of Title VII is to prevent unlawful discrimination, not to limit an employer's ability to choose. Moreover, this Court does not sit as a super-personnel agency second-guessing employment decisions of an employer. Additionally, there is nothing unlawful about an employer's basing its hiring decision on subjective criteria, such as the impression an individual makes during an interview. f3yruie, 243 F.3d at 104. The Second Circuit, however, in discouraging the use of "wholly subjective and unarticulated standards" for judging an applicant's or employee's performance, has instead urged employers to give "clear and specific" explanations for their employment decisions in order to afford the employee a "full and fair opportunity to demonstrate pretext." Id. at 10-1 05. In reviewing the entire record to determine whether plaintiff has carried her burden of showing pretext, we are again confronted with the problem that this case is not as narrow as defendant suggests. Defendant urges us to look at one engineering position in one department, the position of structural engineer for Department 491, and to hold that plaintiff has offered no evidence to contradict its assessment of her qualifications. Defendant argues: *166 Here, all who interviewed Canty had the same uniform impression: that she had little or no knowledge or experience related to structural engineering, she was unfamiliar with the essential structural concepts of nuclear submarines, and she was not able to demonstrate to her interviewers that she had the ability, interest, or determination needed to be a successful structural engineer in Department 491. Def.'s Mem. at 9. Contrary to defendant's position, plaintiff was not rejected solely as a candidate for a structural engineering position with Department 491. She was rejected from all positions at Electric Boat. Yet, there is no evidence that she was even considered for any other position. Nevertheless, defendant writes: "Although your qualifications are substantial, we do not currently have a position that directly Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 50 of 52 Canty v. Electric Boat Corp., 151 F.Supp.2d 159 (2001) matches your abilities." Letter of Dec. 15, 1994 from Norris to Canty (emphasis added). Moreover, the professional interview report form completed after plaintiffs interview belies defendant's negative, after-the-fact assessment of plaintiffs qualifications. On a 1—to-10 scale, with 10 being the highest rating, plaintiff received the following ratings: Maturity-6 Interpersonal Skills-7 Knowledge of/Interest in EB-4 Potential for Significant Contribution to EB —4 Leadership/Potential for Supervision-3 Desire for Personal/Professional Growth-5 Confidence in Self/Attitude-6 Overall Assessment-5 (Average) Although these are not stellar ratings, all ratings except one were average or above average and certainly are stronger than defendant's present appraisal of plaintiff would indicate. (We note that all of the successful applicants had interview ratings higher than plaintiffs total score of 40, although four had total ratings between 41 and 49. We also note, however, that twenty of the successful applicants had grade point averages lower than plaintiffs from Savannah State College.) Further, the form states that plaintiff was found best suited for "project management/ administration, engineering task management." Nevertheless, despite the fact that defendant was looking to fill well over 100 engineering positions, there is no evidence that she was considered for any of these positions for which defendant considered her "best suited." A final department decision was made not to hire her because of "varied background, but not suitable fit to available positions." However, it is not clear that she was even considered for any position other than structural engineer. Thus, defendant's proffered justification for not hiring plaintiff—that Electric Boat did "not currently have a position that directly matches" the plaintiffs abilities —raises credibility problems. Additionally, the credibility of defendant's current reason for not hiring plaintiff (her lack of qualifications) is undermined by the justification it initially offered—that despite her "substantial qualifications," no position was available that matched her qualifications. 171 We agree with defendant that plaintiff's employment statistics carry little, if any, weight. Plaintiff has not provided any applicant pool data nor has she provided any evidence that Electric Boat's selection process screened out a higher percentage of African—American applicants than any other racial group or a higher percentage of female than male candidates. We also give little weight to plaintiffs concerns over who interviewed her and *167 their individual assessment of her interview performance. 181 191 Nevertheless, the Second Circuit has repeatedly admonished the District Courts to give substantial deference to pro se Case 3:15-cv-01320-VAB Document 40-2 Filed 12/01/16 Page 51 of 52 Canty v. Electric Boat Corp., 151 F.5upp.2d 159 (2001) litigants and to use extreme caution when granting summary judgment in employment CONCLUSION discrimination cases where intent is at issue. Given the credibility concerns raised by Therefore, Defendant's Motion for Summary defendant's proffered reasons for its hiring Judgment [Doc. # 32J is DENIED. decisions, we find that plaintiff has presented sufficient evidence to defeat defendant's SO ORDERED. summary judgment motion. All Citations 151 F.Supp.2d 159 Footnotes 1 The personnel requisition forms from Electric Boat show that, in the few months prior to plaintiffs interview at Electric Boat, hiring for more than 100 engineering positions had been approved Ninety (90) engineering positions were approved in March, 1994, for all R & E Departments for positions of associate engineers through pnncipal engineers. The job requirements attached to the personnel requisition form Indicate that far associate engineers, the minimum qualifications were a B.S. degree in an engineering discipline, as well as 'little technical experience (zero to nine months)." In June, forty (40) more engineering positions were approved for hiring for Department 491, including associate engineers, engineers. senior engineers, engineering specialists, and principal engineers. The minimum requirements for these positions were a B.S. degree In engineering and/or five years of related experience In one of the designated "focus" areas. Another personnel requisition form approved on August 9, 1994, for Department 491, shows that an additional 25 positions had been approved for the same type of engineering positions. A B.S. degree is listed as the minimum requirement for the associate engineering and engineering positions. End of DocumonI 2015 ihomion ii,:utt:in Un (turn lir criumal Goverinnold k-. 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