Opinion
No. CV09 502 43 23 S
July 6, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #189
FACTS
The plaintiff, Donald Taska, filed his original complaint on April 22, 2009, naming various defendants, including Georgia-Pacific Corp. Subsequently, Taska filed an amended complaint on April 13, 2010.
The request to amend the complaint merely sought to add a defendant, ACMAT Corp., to the third count.
In the first count, directed to all defendants except for Park City Hospital, Taska alleges a products liability claim, claiming that he was exposed to, inhaled and ingested dust fibers and particles from various asbestos-containing products "secondarily through his mother's employment," as well as through his own employment, resulting in his contracting "asbestos related mesothelioma and other asbestos-related pathologies." He further alleges that the defendants were engaged in the business of "contracting for, mining, milling, processing, manufacturing, designing, testing, assembling, fashioning, fabricating, packaging, supplying, distributing, delivering, marketing, and/or selling asbestos and asbestos products."
The second count alleges that, for decades, the defendants possessed medical and scientific data, studies and reports establishing that asbestos and asbestos-containing products were hazardous to the safety and the health of those who were exposed but that the defendants failed to publish such information. Taska alleges that such conduct is "misconduct that is grossly negligent, willful, wanton, malicious and/or outrageous."
Count three alleges negligence solely as to Park City Hospital and ACMAT Corp. Taska claims that between 1978 through 1983, he regularly visited his mother, Irene Taska, and her boyfriend, Martin Slabey, both employees at Park City Hospital. He alleges that he was exposed to asbestos and asbestos-containing products when respirable asbestos fibers were liberated from asbestos and asbestos-containing products and materials during maintenance, renovation and abatement work at the hospital. Taska seeks money damages and attorneys fees for his injuries.
On August 16, 2010, Georgia-Pacific, LLC, filed a motion for summary judgment accompanied by a memorandum of law and a series of exhibits. Taska filed an objection to the motion on April 8, 2011, also accompanied by a memorandum of law and attached exhibits.
In support of its motion, Georgia-Pacific attaches deposition excerpts, portions of interrogatory responses, an intracompany memorandum, an affidavit and a series of cases. In support of his objection, Taska submits excerpts of deposition testimony, an intracompany memorandum, an affidavit, portions of responses to interrogatories and several cases.
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).
On a defendant's motion 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." (Internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).
In support of its contention that it is entitled to summary judgment, Georgia-Pacific argues that Taska cannot demonstrate that he ever worked with or was in close proximity to any Georgia-Pacific asbestos-containing products that were manufactured, supplied or sold by Georgia-Pacific. In addition, Georgia-Pacific emphasizes that it ceased the manufacture of all asbestos-containing joint compounds in 1977.
In his objection to Georgia-Pacific's motion for summary judgment, Taska responds that Georgia-Pacific has failed to establish the nonexistence of all genuine issues of material fact. Taska counters that the evidence provides that Georgia-Pacific's asbestos-containing products were at the Park City Hospital site and that its asbestos-containing joint compound was sold and distributed in 1978. Taska argues that he was exposed to fibers brought home on the work clothes of both his mother and her boyfriend, Martin Slabey. He further contends that exposure occurred during construction in 1978 when he visited his mother, a Park City Hospital employee.
In addition, Taska maintains that he was exposed to Georgia-Pacific's products by doing his mother's laundry, being in the vicinity of her boyfriend, Martin Slabey, and from exposure to "asbestos drift"—asbestos fibers lingering in the air for long periods, spreading diffusely throughout the working environment. Finally, Taska observes that summary judgment is inappropriate for complex cases and that, because genuine issues of material fact remain, summary judgment must be denied.
Exhibits submitted by the defendant include the following evidence. According to the defendant's submissions, Taska was diagnosed with peritoneal mesothelioma in 2008. Over the years, Taska had been employed at a variety of jobs. At his deposition, he answered with an unequivocal "no" when asked if he had been exposed to asbestos at any of his jobs, with the exception of his employment at the Mayport Naval Station where he worked on cleaning supply materials. When asked whether he was exposed to asbestos at this facility, Taska responded, "I really don't know."
Georgia-Pacific also attached the deposition testimony of Taska's mother, Irene Taska, and Martin Slabey. Irene Taska testified that a renovation project was underway at Park City Hospital when she began her employment in 1978, but that the first time she saw "GP bags" was the beginning in 1979. Primarily, she testified as to her exposure to dust that emanated from a compound that came in 20 or 25 pound bags that she knew—by the bags—had been manufactured by Georgia-Pacific. She had no knowledge of her son's possible exposure, nor did she know whether the Georgia-Pacific product contained any asbestos. Mr. Slabey, also a hospital employee, further testified that he knew Georgia-Pacific products were in the hospital because he saw the name on a bag.
In support of its summary judgment, Georgia-Pacific also provided "Master Interrogatories and Requests for Production" from the matter of Tatu v. Georgia-Pacific LLC., Rhode Island Superior Court, C.A. No. 06-2226. The responses to the interrogatories reveal that, in 1973, Georgia-Pacific began nationally distributing an all purpose joint compound and it introduced an asbestos-free formula in 1973 although "the availability of asbestos-free and asbestos-containing formulations may have varied from state to state during the years 1973-1977." Plaintiff's Exhibit 6, a Georgia-Pacific intracompany memorandum, provided by Taska, indicates that the Consumer Product Safety Commission had ruled that "joint treatment products containing asbestos shall not be manufactured or initially introduced into commerce after January 16, 1978. This applies to manufacturing plants and distribution centers. Retail sales from our dealer customers are to cease after June 12, 1978."
Both sides have submitted certain uncertified pieces of evidentiary material without objection. In such circumstances, however, the court may consider such submissions. In Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006), both parties submitted uncertified deposition transcripts and the Appellate Court emphasized that "a court properly could consider such a submission without objection."
The defendant's evidence further indicates that Georgia-Pacific last manufactured All Purpose Join Compound in approximately 1977, and that in May 1977, Georgia-Pacific's Gypsum Division ceased the manufacture of the last of its asbestos-containing products.
Taska argues that he was exposed to asbestos from the defendant's products through personal exposure at Park City Hospital when visiting his mother and Slabey, as well as through second hand exposure to asbestos residue brought into the family home by his mother, Irene Taska and her boyfriend, Martin Slabey, both of whom worked at Park City Hospital. With respect to exposure to residue, Taska offers portions of deposition testimony wherein he testified that he did the family laundry all the time and he helped his mother clean up the house.
Evidence has been submitted that during the period Taska visited his mother and Slabey at Park City Hospital, bags containing the name of Georgia-Pacific were located at Park City Hospital. There remains a question of fact, however, as to whether these bags actually contained asbestos-based products, given the evidence demonstrating that Georgia-Pacific ceased manufacturing asbestos-containing joint compound in 1977; and that Georgia-Pacific did not sell or distribute asbestos-containing joint compound in the year 1978. Accordingly, Georgia-Pacific's motion for summary judgment is denied on the basis that Georgia-Pacific has failed to meet its burden in that it has failed to dispel questions of material fact that go to the issue of whether it maintained asbestos-contained products in Park City Hospital during the period in question.