ACCURSO v. A.O. SMITH CORP., No. CV 08-5017803 S (Jul. 21, 2011)

2011 Ct. Sup. 16108
No. CV 08-5017803 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
July 21, 2011

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion 152)
BELLIS, J.

FACTS
The plaintiffs, Donald and Greta Accurso, filed their original complaint on August 12, 2008, against numerous defendants, including Armstrong International, Inc. (Armstrong). Subsequently, the Accursos filed a fourth amended complaint on January 25, 2011. Count one of this complaint is directed to all defendants and alleges a claim pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m et seq. Specifically, the Accursos allege that Donald Accurso’s employers were engaged in various businesses in which they bought and/or installed asbestos products and materials. Further, they allege that Donald Accurso “was exposed to various [asbestos-containing] products while working in Connecticut as a plumber from the early 1950’s through the late 1970’s. Such exposure in Connecticut contributed in part or totally to the plaintiff’s contraction of asbestos-related [l]ung [c]ancer and other asbestos-related pathologies.” The Accursos also claim that the various defendants “mined, processed, manufactured, designed, tested and/or packaged various asbestos-containing products, and supplied, distributed, delivered, marketed and/or sold said asbestos-containing products to the employer(s) of the plaintiff or to others working at the various jobsites in Connecticut where the plaintiff was employed . . .” The Accursos contend that while Donald Accurso was working, he was exposed to asbestos materials and forced to “breathe, inhale, and ingest asbestos fibers and particles coming from said asbestos products and materials.” The Accursos claim that the asbestos-containing products were unavoidably unsafe, failed to carry adequate, correct warnings, and failed to apprise users of the “full hazards and dangers of coming in contact with said products, including the risk of cancer.” As a result of the unreasonably defective asbestos-containing products, Donald Accurso alleges that he has suffered severe, painful, permanent injuries and other asbestos-related pathologies.

CT Page 16109 The second count of the fourth amended complaint, brought by Greta Accurso, alleges loss of consortium. Count three is directed to all defendants, and alleges that, for decades, the defendants possessed medical and scientific material establishing that asbestos and asbestos-containing products were hazardous to the health and safety of all humans exposed to such products. The Accursos maintain that the defendants failed to publish such studies and reports, known throughout the industry, and still committed the alleged wrongful acts and/or omissions. Such acts and omissions, the Accursos allege, constitute grossly negligent, willful, wanton, malicious and outrageous misconduct.

Armstrong filed its motion for summary judgment, with a memorandum of law in support, on July 21, 2009, and attached excerpts of Donald Accurso’s deposition testimony taken on August 21, 2008[1] arguing that there is no evidence that Donald Accurso was ever exposed to any products manufactured, distributed or sold by Armstrong. The Accursos filed their opposition on December 2, 2009, with a number of exhibits, and Armstrong filed a reply brief on February 24, 2010, accompanied by further excerpts of Donald Accurso’s deposition testimony.

DISCUSSION
“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347
(2010). “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Id., 210. “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.” (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

Armstrong contends that the Accursos have failed to produce evidence establishing the elements of a products liability action. It maintains that Donald Accurso’s deposition testimony does not establish that he worked with or in the vicinity of an asbestos-containing product manufactured, sold or distributed by Armstrong.

The Accursos respond that Armstrong has failed to establish the nonexistence of all genuine issues of material fact and that Donald Accurso was exposed to Armstrong’s asbestos containing products. In addition, the Accursos insist that summary judgment is not well-suited CT Page 16110 in complex cases, such as the present case.

In its reply brief, Armstrong reiterates that the plaintiffs have failed to present sufficient evidence from which a reasonable jury could conclude that Mr. Accurso was exposed to, and inhaled, asbestos from an Armstrong product.

Armstrong submitted a deposition transcript of Donald Accurso, which includes the following excerpts. When Donald Accurso was asked whether he had worked with any Armstrong steam traps, he replied “[w]e used those.” After Donald Accurso explained the function of a steam trap, he offered that “[w]e used more Sarco than we did Armstrong.” When he was further questioned concerning the manufacturers of the steam traps he worked with, he responded, “Sarco and — ABSCO? I forget what the other one was. There was two.” When reminded that Armstrong was one of the names on his (Accurso’s) “list,” and whether that was the “name of a steam trap that [he had] ever worked with or around,” he agreed that the name Armstrong was on his “list” and that Armstrong “[c]ould have been a [steam] trap or something related to high-pressure steam . . . I remember that name.” Further colloquy revealed that Donald Accurso was asked whether it was “fair to say that you just can’t tell me one way or another whether you ever worked with or around an Armstrong steam trap?” Accurso responded with a simple “[n]o.”

The Accursos offer excerpts from the same deposition testimony as quoted above, as well as interrogatory responses from an entity known as Armstrong Pumps, Inc.[2] In addition, the Accursos attached the affidavit and excerpts of deposition testimony of Edwin C. Holstein, M.D., an authority in the field of asbestos exposure.

When a defendant moves for summary judgment, “the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff” to demonstrate the existence of a genuine issue of fact that would justify a trial. Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

In this case, the defendant, Armstrong, has not met the requisite burden necessary to establish its entitlement to summary judgment. It has failed to negate the Accursos’ allegations that Donald Accurso came into contact with an asbestos-containing product manufactured by Armstrong. The deposition transcript of Donald Accurso, submitted by Armstrong, merely demonstrates that a question of fact remains with respect to whether Donald Accurso was actually exposed to an asbestos-containing CT Page 16111 Armstrong product. Armstrong International, Inc.’s motion for summary judgment is therefore denied.

CT Page 16112