2011 Ct. Sup. 19051
No. CV 08-5017803 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
September 7, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion #178.00)
BELLIS, J.
FACTS
The plaintiffs, Donald and Greta Accurso, filed their original complaint on August 12, 2008, against numerous defendants, including Rockwell Automation, Inc. (Rockwell). 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 Products 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 job sites 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 CT Page 19052 products, Donald Accurso alleges that he has suffered severe, painful, permanent injuries and other asbestos-related pathologies.
The second count of the fourth amended complaint, brought by Greta Accurso, alleges loss of consortium. Count three is directed to all defendants, alleging 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. On September 16, 2008, Rockwell filed an answer and special defenses.
On September 22, 2009, Rockwell filed a motion for summary judgment as to the “plaintiffs’ complaint and on any intervening complaints and cross-claims that have been or will be filed.” The motion was accompanied by a memorandum of law in support and two exhibits: a document entitled “PLAINTIFFS’ ANSWERS TO DEFENDANTS’ STANDARD INTERROGATORIES AND REQUESTS FOR PRODUCTION,” and another document, entitled “PRELIMINARY PRODUCT ID. DISCLOSURE — DONALD ACCURSO.” The Accursos filed their opposition memorandum on December 21, 2009, and Rockwell filed a reply to the Accursos’ opposition on January 8, 2010.
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. “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).
Rockwell contends that there is no evidence to indicate that Donald Accurso had been exposed to an asbestos-containing CT Page 19053 product manufactured by Rockwell, or by its alleged corporate predecessor, the Timken Company. Given the lack of evidence as to any exposure to a product manufactured or sold by Rockwell, Rockwell contends that the Accursos will be unable to prove any of the elements required by Connecticut’s Product Liability Act, [1] and that it is entitled to judgment as a matter of law.
The Accursos respond that Donald Accurso was, indeed, exposed to Rockwell’s asbestos-containing products and that Rockwell remains responsible for all reasonably foreseeable applications of asbestos to its products. Also, the Accursos emphasize that Rockwell has assumed liability for the Timken brand through corporate succession. The Accursos maintain that Donald Accurso also would have been exposed to the asbestos contained in Rockwell’s products through the asbestos fibers that lingered throughout the workplace, and, finally, they conclude that summary judgment is inappropriate in complex cases, such as the present case.
In its reply memorandum to the Accursos’ opposition memorandum, Rockwell argues that although Donald Accurso contends that he utilized asbestos-containing cement while performing repairs on Timken burners, the Accursos have not produced any evidentiary foundation to support their claim. It further maintains that the furnace cement used by Donald Accurso was neither manufactured nor sold by Rockwell or Timken. Rockwell also contends that there is no evidence demonstrating that Rockwell has assumed successor liability for the Timken products.
Rockwell has attached a copy of a document entitled “PRELIMINARY PRODUCT ID. DISCLOSURE — DONALD ACCURSO” to its summary judgment motion. This document enumerates products that “[t]he plaintiff, Donald Accurso, worked with and/or around . . . during his life,” and Item 15 on this list reads “Timken — burners.”
The Accursos have also attached exhibits to their opposition memorandum. With respect to the connection between Rockwell and Timken, the Accursos have provided Rockwell’s responses to interrogatories in a case entitled Caswell v. Acmat Corporation, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412434. Rockwell’s response to these interrogatories reveals that the “[d]efendant has been sued in this case as a result of plaintiff’s alleged exposure to asbestos-containing components in `Timken’ residential heating products. Accordingly, defendant responds to these interrogatories . . . in its capacity as successor to the Timken heating business CT Page 19054 . . .”
In his deposition testimony taken on August 21, 2008, Donald Accurso testified as follows. He had worked for a company called Lock City Oil “sometime in the 60s.” He was involved in the repair and maintenance of Timken products, which he described as noiseless furnaces containing a “rotary motor under the unit that shot oil up into the unit and spread it around the exterior walls, and on the walls [were] little cages that the oil would end up on and it had an igniter, a 10,000-volt igniter spark that would light the ring up, and that would heat the water.” When repairing or maintaining the Timken products, Donald Accurso explained that “they had a floor inside that was made of like an asbestos product. In other words, where it came up from the center, they had a little hole in the middle with a — it wasn’t a nozzle, it was some kind of a centrifugal force type thing, and then from there over to where those little cages were all around the outside there was a base, a floor base. It went in with a hard material, circular, then they would put asbestos on top of that to insulate it so it wouldn’t burn through to the floor to the outside.” When asked who was responsible for putting the asbestos “on top of that,” Accurso responded that “[w]e would when we would repair them.” He explained that, when replacing a particular part of the unit, he would open the unit, and put in a “sectional,” then asbestos would be placed on top of that. The existing “floor” was replaced by turning it up and pulling it out of the opening. He emphasized that “[s]ometimes it would break if it was there for a long time; it would just fall apart on you.” Accurso characterized the flooring as comprised of dry asbestos that would be packed “down on top of that hard stuff . . . Once the heat got to it, then it would harden.” He further explained that “[t]hat’s what [he] put in.” As far as the removal process, he stated that he took out the “[s]ame stuff, only it would be years of use and dried out . . . Putting it back in, it would be wet. Taking it out, it would be dry.” After removing the old floor, Accurso would reinstall, a floor piece and put back the asbestos, “usually about an inch thick . . . molding it so it looked neat . . .” Accurso further testified that the underlying material used in the floor reinstallation process was a “Timken floor” made of some sort of composite material. Donald Accurso’s deposition testimony, taken on September 16, 2008, further reveals that he worked on a furnace with the Timken name affixed to the unit when working at his cousin’s father’s home. It is unclear, however, from the testimony excerpts provided by the plaintiff, to what extent asbestos was involved in this activity.
CT Page 19055 Here, the defendant Rockwell has moved for summary judgment; accordingly, “the burden is on [that] 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 [its] 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). Notwithstanding the relative uncertainty permeating Donald Accurso’s deposition testimony with respect to the asbestos product identification vis a vis Timken products, Rockwell has failed to meet the burden necessary to establish its right to obtain summary judgment. It has failed to provide documentation negating a connection between itself and Timken and it has failed to offer evidence demonstrating that Donald Accurso did not come into contact with any asbestos-containing product manufactured by either Rockwell or Timken. Accordingly, because questions of material fact remain with respect to Rockwell’s relationship to Timken and concerning Donald Accurso’s claimed exposure to Rockwell’s alleged asbestos-contained products, Rockwell’s motion for summary judgment is denied.
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