William Butler et al. v. A.O. Smith Corp. et al.
CV106011710S
Decided: January 13, 2012
William Butler and his spouse, Elaine Butler, filed this six-count complaint on August 3, 2010, against various defendants. ? This action arises out of the alleged exposure of the plaintiff, William Butler, to various asbestos-containing products during the years 1967?1979 while he was working in Connecticut as an insulator. ? According to the complaint, the alleged exposure contributed to William Butler’s mesothelioma and asbestos-related pathologies.
Counts one, three and four are applicable to this motion. ? Count one alleges a violation of the Connecticut Products Liability Act, General Statutes ??52?572m et seq., and count three alleges a loss of consortium on the part of Elaine Butler. ? Count four alleges that the various defendants’ conduct was grossly negligent, wilful, wanton, malicious and outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, studies and reports indicating that asbestos-containing products were hazardous to the health and safety of William Butler and other human beings.1??Ingersoll?Rand Co. filed its answer on September 17, 2010.
The defendant filed a motion for summary judgment on August 19, 2011, and the plaintiffs filed their memorandum in opposition on October 6, 2011. ? The matter was argued before the court at the short calendar conducted on November 7, 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. ? In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ? 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.) ?Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). ? ?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).
?In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. ? The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. ? The courts hold the movant to a strict standard. ? To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ? As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ? When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.? ?(Internal quotation marks omitted.) ?Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10?11, 938 A.2d 576 (2008).
In the present case, the defendant, Ingersoll?Rand Co., 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 show that a genuine issue of fact exists justifying a trial.? ?Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).
The defendant moves for summary judgment on the ground that the discovery in this case does not create a genuine issue of material fact with respect to whether the conduct of this defendant caused, or contributed to, William Butler’s alleged injury. ? The defendant maintains that, without evidence of exposure to asbestos respirable fibers released from a product manufactured, sold or distributed by it, the plaintiffs cannot establish causation, a duty of care or a breach of that duty. ? The defendant has attached numerous cases in support of its motion for summary judgment.
In their memorandum in opposition to the defendant’s summary judgment motion, the plaintiffs respond that the defendant has failed to prove the nonexistence of all genuine issues of material fact, and that the evidence establishes that William Butler was exposed to asbestos-containing products sold by the defendant. ? The plaintiffs have attached William Butler’s deposition testimony, a jobsite list, Millstone power plant documents and Ingersoll?Rand Co.’s responses to the plaintiffs’ interrogatories. ? In addition, the plaintiffs have attached the affidavit, and deposition excerpts, of Dr. Edwin C. Holstein, as well as depositions taken in other cases.
The plaintiffs’ evidence includes evidence that William Butler worked as an insulator from ?1969 to 2000,? and he recalled working at the Millstone power plant with asbestos-containing insulation around condensate and piping systems. ? The plaintiff submitted evidence that Ingersoll?Rand had been selected to provide the condenser, four circulating water pumps, air ejectors, cross connecting piping and valves for Millstone. ? In addition, the plaintiffs, citing to their exhibit 6, explain that the pumps were to contain graphite asbestos packing.
Although the defendant argues that discovery in this case does not create any issues of material fact, the court is not persuaded by its argument. ? Rather, the court finds that the defendant has failed to meet its burden under Connecticut’s standard for summary judgment
To make this point more forcefully, the court directs the parties to compare the difference between the federal standard for summary judgment, governed by Rule 56, and the standard under Connecticut law. ? When explaining the movant’s burden under Rule 56, the United States Supreme Court has explained that there is ?no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.? ?(Emphasis in original.) ?Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 365 (1986). ? Conversely, under Connecticut practice, the moving party has a heavier burden. ? The movant has the burden to submit evidence to demonstrate the absence of any genuine issues of material fact, and that it is entitled to judgment as a matter of law. ? As set forth above, to satisfy this burden, the moving party must demonstrate ?that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ? As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ? When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.? ?(Emphasis added; ?internal quotation marks omitted.) ?Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11 (2008).
The defendant here has simply not met its burden. ? Because the defendant in this case has failed to carry its burden of demonstrating the nonexistence of all genuine issues of material fact, the court denies the defendant’s motion for summary judgment.
By the Court,
BELLIS, J.
FOOTNOTES
FN1.?Count two is directed at the defendant, Metropolitan Life Insurance Co., and alleges a conspiracy involving, inter alia, fraudulent misrepresentations and alterations and deletions in various reports and studies concerning the dangers of asbestos and the relationship between asbestos and cancer. ? Counts five and six are directed solely to Bechtel Corp. and Acmat Corp., with count five alleging negligence and count six alleging loss of consortium..??FN1.?Count two is directed at the defendant, Metropolitan Life Insurance Co., and alleges a conspiracy involving, inter alia, fraudulent misrepresentations and alterations and deletions in various reports and studies concerning the dangers of asbestos and the relationship between asbestos and cancer. ? Counts five and six are directed solely to Bechtel Corp. and Acmat Corp., with count five alleging negligence and count six alleging loss of consortium.
Bellis, Barbara N., J.