ACCURSO v. A.O. SMITH CORP., No. CV 08-5017803 S (Jul. 15, 2011)


DONALD ACCURSO ET AL. v. A.O. SMITH CORP. ET AL.

2011 Ct. Sup. 15757
No. CV 08-5017803 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
July 15, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion #148.00)
BELLIS, J.

FACTS
The plaintiffs, Donald and Greta Accurso, filed their original complaint on August 12, 2008, against various defendants, including A.O. Smith Corp. (A.O. Smith). 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 Connecticut’s products liability statute, General Statutes § 52-572m et seq. Specifically, the Accursos allege 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 . . . working at . . . various job sites in Connecticut . . .” The Accursos alleged 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 has suffered severe, painful, permanent injuries and other asbestos-related pathologies. The second count, brought by Greta Accurso, alleges loss of consortium. Count three is directed to all defendants, and alleges that, from the 1930s, 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. CT Page 15758

A.O. Smith filed a motion for summary judgment on July 15, 2009, on the basis that no substantive evidence exists that “the plaintiff was exposed to respirable asbestos emanating from products produced, manufactured or sold by [A.O. Smith].” The motion is accompanied by a memorandum of law and an affidavit. On October 6, 2009, the Accursos filed a memorandum in opposition to the motion, with various evidentiary submissions. A.O. Smith filed a reply to the Accursos’ opposition on May 4, 2011.

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).

A.O. Smith argues that the affidavit of its product safety manager establishes uncontroverted facts demonstrating that its products could not be the source of any asbestos that the plaintiff was exposed to. It maintains that the evidence clearly demonstrates that Donald Accurso is mistaken in identifying the undersigned party’s products as being those he was exposed to. A.O. Smith concludes that its documentary evidence, and the lack of evidence submitted by the Accursos, conclusively demonstrates that there is no genuine issue of material fact that the plaintiff’s health conditions were any way related to any alleged exposure to asbestos-containing products over his lifetime that were manufactured, sold, distributed or installed by A.O. Smith.

The Accursos counter that A.O. Smith has failed to prove the nonexistence of all genuine issues of material fact. They claim that Donald Accurso was exposed to A.O. Smith’s asbestos-containing products through work on an A.O. Smith boiler and through asbestos drift. Further, they emphasize that complex cases, such as the present case, are inappropriate for summary judgment.

A.O. Smith’s reply to the Accursos’ opposition indicates that Donald Accurso died on January 20, 2011, and, as a result, the court has before CT Page 15759 it all of Donald Accurso’s testimony that will ever be presented in support of his claim concerning exposure to asbestos-containing products attributed to A.O. Smith. A.O. Smith reiterates its position that such evidence is insufficient for purposes of its summary judgment and that, therefore, its motion should be granted.

A.O. Smith provides an affidavit from its product safety manager, Bradley N. Plank, that indicates the following. Plank was employed by a division of A.O. Smith from 1993 through 2007. In this capacity, the affiant was responsible for “maintaining all engineering drawings, product certifications, instruction manuals, and engineering parts lists for water products manufactured by A.O. Smith.” Accordingly, Plank was familiar with, and had knowledge of, the products that A.O. Smith manufactured and supplied. Plank attested that A.O. Smith’s boilers did not contain asbestos in any external parts but, rather, that it was located “in internal, self-contained parts.” He attested that A.O. Smith’s products “were pre-assembled before being delivered to its customers.” Plank claimed that the water products “were never manufactured or sold with prefabricated sections that had to be assembled.” He avers that the pre-assembled water products were “never manufactured or sold with any asbestos on the exterior,” nor did A.O. Smith “supply or specify the use of asbestos-containing materials in conjunction with their product.” Further, the affiant attested that A.O. Smith never manufactured commercial sectional boilers, and during the times relevant to the Accursos’ complaint, independent corporations — with no affiliation to A.O. Smith — manufactured boilers under the name “Smith.”

A.O. Smith also attached an uncertified copy of excerpts of Donald Accurso’s deposition transcripts.[1] This testimony reveals that Donald Accurso was a plumber pipefitter and, while employed at Karnes Heating and Plumbing, had occasion to take on a side job involving the removal of a big boiler which involved exposure to A.O. Smith products. According to the transcript, the removal process involved first eliminating “the asbestos and . . . the chicken wire from the outside . . . Then we went in the side with chisels and hammers and forced the sections apart so the push nipples would open. And then if we could, we’d carry it out. If not, we’d break it up with a sledgehammer.” When asked how he knew the sectional boiler was an A.O. Smith product, Donald Accurso responded: “I can remember. The only time I remember, H.B. Smiths were smaller than the A.O. Smiths, that I remember. They were an older unit.” He also recalled that the A.O. Smith name was on a metal piece affixed to one, or both, of the unit’s doors. With respect to the removal of the chicken wire that went over the cast iron, he testified that the asbestos was stuck to the wire and he removed the asbestos with a hammer, chisel or trowel without CT Page 15760 wearing either gloves or a face mask. When describing the removal of the boiler, Donald Accurso explained that “[w]e tore out an old boiler, the boiler, itself, the piping, put a new boiler in and re-piped it. And we took all the asbestos off. Back in those days all the cast iron boilers we shrouded in chicken wire, blocks of asbestos, and asbestos made into a putty and spread around . . .”

The Accursos, in turn, offered Donald Accurso’s deposition testimony that basically mirrors that provided by A.O. Smith. The Accursos also attached the deposition of Bradley N. Plank, A.O. Smith’s product safety manager. Plank testified that, to his “knowledge of A.O. Smith boilers having asbestos is that there were small components of the copper boilers that we made, and that [in 1980] we stopped putting those asbestos components in . . .” Further, the Accursos provide an affidavit and a deposition taken from Edwin C. Holstein, M.D., an expert in the field of asbestos drift and “fugitive dust.” Holstein testified that “based on the studies conducted by affiant, affiant has found that exposure to `fugitive dust’ has been associated with asbestosis; in particular, that he has personally found asbestosis in individuals whose only known exposure to asbestos occurred as a result of working approximately 500 feet from a source of asbestos dust.”

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

In the present case, A.O. Smith has not met its burden of establishing its entitlement to summary judgment. There is conflicting evidence, raising a question of material fact, as to whether Donald Accurso, was exposed to an A.O. Smith boiler that contained asbestos components. Therefore, A.O. Smith has failed to negate the claims raised in the complaint as those allegations are directed to it. Accordingly, A.O. Smith’s motion for summary judgment is denied.

[1] Both the Accursos and A.O. Smith have submitted various pieces of uncertified evidence but neither side raises an objection. In the absence of an objection, the court may consider such evidence. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

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