2005 Ct. Sup. 817
No. CV 00-037 42 98 SConnecticut Superior Court, Judicial District of Fairfield at Bridgeport
January 12, 2005
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT BY AMERICAN STANDARD (MOTION DATED OCTOBER 7, 2004)
DEWEY, JUDGE.
Before this court is the defendant American Standard’s Motion for Summary Judgment. The plaintiff, Wanda Ereshena, executrix of the estate of her late husband, Frank Ereshena, alleges that the decedent was exposed to asbestos when he renovated homes from 1964 to 1986. There is no testimony that the decedent installed any of the defendants’ products. There is no testimony that the decedent was in the vicinity of any products by the defendant that contained asbestos.
Connecticut 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. 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).
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 adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable 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 speculation.”Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). CT Page 818 Furthermore, “[o]nly 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 unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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 Electric Industrial Company v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Instead, that party must come forward with sufficient evidence to support a jury verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 263 (1986).
In the present case the plaintiff cannot rely on speculation or conjecture. “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, summary 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 [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, J.) (internal citations omitted, internal quotations omitted).
The case before this court alleges injury as a result of exposure to asbestos. “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 plaintiff’s injuries.” Haesche v. Kissner, 229 Conn. 213, 220, 640 A.2d 89
(1994). “In a products liability/asbestos claim 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.” Roberts v. Owens-Corning Fiberglas Corporation, 726 F.Sup. 172, 174 (W.D.Mich. 1989).
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 CT Page 819 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 (3rd Cir. 1990); quotin Zimmer v. Celotex Corporation, 192 Ill.App.3d 1088, 140 Ill.Dec. 230, 233, 549 N.E.2d 881 (1989). Under any causation test, “plaintiff still must produce evidence sufficient to support an inference that he inhaled asbestos dust from the defendant’s product.” Peerman v. Georgia-Pacific Corp., 35 F.2d 284, 287 (7th Cir. 1994). The jury cannot reach this inference unless there is evidence that the defendant’s product was used at the plaintiff’s work site during the plaintiff’s tenure or that the plaintiff was otherwise exposed.
There is no admissible evidence linking the defendants’ product to the decedent or the decedent’s work sites. The defendants’ motion for summary judgment is granted.
DEWEY, J. CT Page 820