Opinion
No. CV98-035 29 53 S
September 15, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT UTICA BOILER MOTION DATED JUNE 24, 2004
Before this court is the defendant Utica Boiler's June 24, 2004 Motion for Summary Judgment. The plaintiff Lee Ann Stevenson alleges that she was exposed to asbestos as a result of her father's and her husband's use of the defendant's products and her general exposure to the product.
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. 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). 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).
"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 Corp., 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 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); quoting Zimmer v. Celotex Corp., 192 Ill.App.3d 1088, 140 Ill.Dec. 230, 233, 549 N.E.2d 881, 884 (1989).
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)).
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 Elec. Indus. Co. 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).
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. The testimony of other individuals at other work sites is insufficient.
The plaintiff suggests that the defendant's motion is improper inasmuch as the defendant has not responded to the plaintiff's requests for admission dated July 9, 2003. This court preliminarily notes that these requests for admission were filed well after the date set for discovery in this matter. Although the plaintiff "earnestly hope that something helpful may turn up in further discovery"; Goodell v. Rehrig International, Inc., 683 F.Sup. 1051, 1054 (E.D.Va. 1988), aff'd, CT Page 13522 865 F.2d 1257 (4th Cir. 1989); a mere hope of this sort is insufficient. See Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 925, 927 (2d Cir. 1985).
The plaintiff suggests that the standing orders in this asbestos litigation are inapplicable. He provides no support for this extraordinary contention.
The plaintiff has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 324 (1986).
The defendant's motion for summary judgment is granted.
Dewey, J.