IN RE: BRIDGEPORT ASBESTOS LITIGATION
`
`DOCKET NO.: FBT-CV-14-6043933-S
`
`JAMES TULLIE, ET AL
`
`
`
`V.
`
`A.O. SMITH CORPORATION, ET AL.
`
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`
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`:
`:
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`:
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`SUPERIOR COURT
`
`AT BRIDGEPORT
`
`OCTOBER 17, 2016
`
`DEFENDANT, FMC CORPORATION’S MOTION FOR
`PERMISSION WITH CONSENT
`TO FILE A MOTION FOR SUMMARY JUDGMENT
`
`Pursuant to Connecticut Practice Book § 17-44 et seq., the undersigned defendant, FMC
`Corporation on behalf of its former Northern Pump business, improperly sued as “FMC
`Corporation, individually and as successor in interest to Northern Pumps” (hereinafter
`“Defendant”), hereby moves for permission to file a Motion for Summary Judgment in the above
`captioned matter. The plaintiff consents to Defendant’s filing of a motion for summary
`judgment in this matter. Defendant’s Motion for Summary Judgement is attached hereto as
`Exhibit 1.
`Jury selection is currently scheduled to begin on January 10, 2016. The Court’s
`consideration of the Defendant’s Motion for Summary Judgment will therefore not unduly delay
`this matter, and may also be able to resolve issues of the case before trial begins. If granted, the
`Defendant’s Motion for Summary Judgment would considerably narrow and simplify the issues
`for trial. “One of the goals advanced by the summary judgment process is judicial efficiency.”
`Ocwen Federal Bank, FBS v. Charles, 95 Conn.App. 315, 331, cert. denied, 279 Conn. 909
`(2006).
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`AM 59099658.1
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`WHEREFORE, the Defendant respectfully requests that this Court grant this Motion for
`Permission to File a Motion for Summary Judgment.
`
`DEFENDANT,
`FMC Corporation on behalf of its former
`Northern Pump business, improperly sued as “FMC
`Corporation, individually and as successor in interest to
`Northern Pumps”
`
`
`
`BY /s/ Aubrey E. Blatchley
`Aubrey E. Blatchley
`Locke Lord LLP
`20 Church Street, 20th Floor
`Hartford, CT 06103
`Phone: (860) 541-7720
`Fax: (860) 527-4198
`Email: aubrey.blatchley@lockelord.com
`Its Attorneys
`
`CERTIFICATION
`
`I hereby certify that on this 17th day of October, 2016 I forwarded a true and accurate
`
`copy of the within via first class mail, postage prepaid, to the below individuals.
`
`Laura Vitale, Esquire
`Early Lucarelli Sweeney
` & Meisenkothen, LLC
`One Century Tower, 11th Floor
`265 Church Street
`P.O. Box 1866
`New Haven, CT 06510
`
`John Robinson, Esquire
`Gordon & Rees
`95 Glastonbury Blvd., Suite 206
`Glastonbury, CT 06033
`
`
`
`/s/ Pamela A. Carvalho
` Pamela A. Carvalho
`
`AM 59099658.1
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`

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`Exhibit 1
`
`Exhibit 1
`
`AM 59099658.1
`AM 59099658.1
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`IN RE: BRIDGEPORT ASBESTOS LITIGATION
`
`DOCKET NO.: FBT-CV-14-6043933-5
`
`SUPERIOR COURT
`
`JAMES TULLIE, ET AL
`
`AT BRIDGEPORT
`
`V
`
`A.O. SMITH CORPORATION, ET AL.
`
`ocToBER_,2016
`
`MOTION FOR SUMMARY JUDGMENT OF DEFENDANT FMC CORPORATION AS
`TO PLAINTIFFS' THIRD AMENDED COMPLAINT. ALL INTERVENING CLAIMS
`AND ALL CROSS.CLAIMS
`
`Pursuant to Practice Book ç 17-44 et seq., Defendant, FMC Corporation on behalf of its
`
`former Northern Pump business, improperly sued as "FMC Corporation, individually and as
`
`successor in interest to Northern Pumps" (hereinafter "Defendant"), through its undersigned
`
`counsel, hereby moves for summary judgment with respect to Counts I, III, IV and V of the
`
`Plaintiffs' Third Amended Complaint dated December 15, 2014, and with respect to all
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`intervening and third-party claims, cross-claims, or any other claims asserted against Defendant
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`in this action. As explained more fully in the accompanying memorandum of law, Plaintifß
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`have failed to identify exposure by Mr. Tullie to any product manufactured or distributed by
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`Defendant. Thus, there is no genuine issue of material fact as to whether Mr. Tullie was
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`exposed to an asbestos-containing product manufactured or distributed by Defendant. The
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`uncontroverted evidence is that no such exposure occurred. Without evidence of some
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`exposure to a product manufactured or distributed by Defendant, Plaintiffs have not-and
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`ORAL ARGUMENT REQUESTED
`TESTIMONY NOT REQUIRED
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`cannot----€stablish causation. Nor can Plaintiffs establish any duty of care owed to Plaintiffs by
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`Defendant or any breach thereof. Accordingly, as there are no genuine issues of material fact
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`with respect to the essential elements of causation, duty, and breach, Defendant is entitled to
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`judgment as a matter of law.
`
`WHEREFORE, Defendant respectfully requests that the Court grant its motion for
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`summary judgment as to all claims asserted by Plaintiffs, all intervening and third-party claims,
`
`all cross-claims, and any other claims whatsoever asserted against Defendant in this action.
`
`DEFENDANT
`
`FMC Corporation on behalf of its former
`Northern Pump business, improperly sued as "FMC
`Corporation, individually and as successor in interest ,
`Northern Pumps"
`
`BY /s/ Aubrey E. Blatchley
`Aubrey E. Blatchley
`Locke Lord LLP
`20 Church Street, 20th Floor
`Hartford, CT 06103
`Phone: (860) 541-7720
`Fax: (860) 527-4198
`Email : aubrey.blatchle)¡@lockelord.com
`Its Attorneys
`
`AM 57856947.2
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`2
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`CERTIFICATION
`
`I hereby certify that on this _
`
`day of October,2016I forwarded a true and
`
`accurate copy of the within via first class mail, postage prepaid, to the below individuals.
`
`Laura Vitale, Esquire
`Early Lucarelli Sweeney
`& Meisenkothen, LLC
`One Century Tower, l lth Floor
`265 Church Street
`P.O. Box 1866
`New Haven, CT 06510
`
`John Robinson, Esquire
`Gordon & Rees
`95 Glastonbury Blvd., Suite 206
`Glastonbury, CT 06033
`
`ls/ Aubrev E. Blatchlev
`Aubrey E. Blatchley
`
`AM s78s694'7.2
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`J
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`IN RE: BRIDGEPORT ASBESTOS LITIGATION
`
`DOCKET NO.: FBT-CV-14-6043933-5
`
`JAMES TULLIE, ET AL
`
`V
`
`SUPERIOR COURT
`
`AT BRIDGEPORT
`
`A.O. SMITH CORPORATION, ET AL.
`
`OCTOBER .2016
`
`MEMORANDUM OF LAW IN SUPPORT OF FMC CORPORATION'S
`MOTION F'OR
`Y JUDGMENT
`
`Pursuant to Practice Book ç 17-44 et seq., defendant FMC Corporation on behalf of its
`
`former Northern Pump business, improperly sued as "FMC Corporation, individually and as
`
`successor ín interest to Northern Pumps" (hereinafter "Defendant"), through its undersigned
`
`counsel, hereby submits this memorandum of law in support of its Motion for Summary
`
`Judgment of even date herewith. As explained in greater detail below, this Court should enter
`
`summary judgment in favor of Defendant because it is clear that Plaintiffs have no reasonable
`
`expectation of offering at trial: 1) product identification evidence against Defendant; andlor 2)
`
`evidence demonstrating that any of Defendant's products were a substantial contributing factor
`
`to causing the decedent's alleged injuries. As a result, because Defendant can demonstrate that
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`there are no genuine issues of material fact with respect to the essential elements of causation,
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`duty, and breach, Defendant is entitled to judgment in its favor as a matter of law. See Barry v.
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`Qualíty Steel Prods., lnc.,820 A.2d258,274 (Conn.2003).
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`I.
`
`UNDISPUTED FACTS.
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`James Tullie ("Mr. Tullie") and his wife, Mildred Tullie ("Mrs. Tullie"), originally
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`brought this action against a number of defendants by way of a complaint dated June 24, 2014.
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`It is alleged therein that Mr. Tullie contracted an asbestos-related lung disease caused by the
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`inhalation of asbestos fibers released from the products of various defendants. Mr. Tullie died
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`on October 14,2014. Following Mr. Tullie's death, Michael J. Tullie, Personal Representative
`
`of the Estate of James Tullie, was substituted as the party plaintiff in place of Mr. Tullie. See
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`Motion to Substitute fDocket Entry No. 140.00] and Second Amended Complaint [Docket Entry
`
`No. 141.001. On December 15,2014, Plaintiffs sought leave to amend the complaint for a third
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`time to change the party-defendant "FMC Corporation, individually and as successor in interest
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`to Northern Pumps and Crosby Valve to FMC Corporation, Individually and as successor in
`
`interest to Northern Pump." See Request þr Leave to Amend, dated December 14,2014 [Docket
`
`Entry No. 142.001. Plaintiffs also filed a Third Amended Complaint on that date improperly
`
`naming "FMC Corporation, individually and as successor in interest to Northern Pumps" as a
`
`party-defendant in this matter. Id. at Third Amended Complaint (a true and correct copy of
`
`which is attached hereto as Exhibit A) (the "Complaint").
`
`In the Complaint, Plaintiffs assert claims pursuant to the Connecticut Product Liability
`
`Act, Conn. Gen. Stat. $$ 52-240a, 52-240b, and 52-512m et seq. ("CPLA"), a related loss of
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`consortium claim by Mrs. Tullie, what is presumably a "gross negligence claim," and a wrongful
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`death claim on behalf of the beneficiaries of the Estate of James Tullie pursuant to Conn. Gen.
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`Stat. $ 52-555,1in addition to claims for punitive damages. In his Complaint, Plaintiffs' allege
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`that Mr. Tullie sustained injuries as a result of Mr. Tullie's alleged exposure to asbestos while he
`
`performed research and development from 1953 through 1973, presumably while he worked for
`
`Electric Boat and the Town of Stonington. ,See Complaint at TIT 5-6;2 see also Jobsite List,
`
`attached as Exhibit B. It is further alleged that:
`[T]he defendants . . mined, processed, manufactured, designed, tested
`andlor packaged various asbestos-containing products, and supplied,
`distributed, delivered, marketed and/or sold said asbestos-containing
`products to the employer(s) of [Mr. Tullie] or to others working at the
`various funidentified] jobsites in Connecticut where the plaintiff was
`employed, or to third persons who, in turn, delivered and sold such
`products and materials to such employers or to other workers at such
`jobsites for use by employees, including [Mr. Tullie].
`Id. atl7. The Complaint is devoid of any allegation as to how or when Mr. Tullie was exposed
`
`to a defective product sold, manufactured, or distributed by Defendant. Aside from merely
`
`naming Defendant in the case caption, three is not a single allegation directed to Defendant in the
`
`Complaint.
`
`I The Complaint asserts derivative claims on behalf of Plaintiff Mildred Tullie and the beneficiaries of the Estate of
`James Tullie. See Complaint, at Counts III and V. Because Plaintiffs' claims for the injuries to Mr. Tullie fail for
`the reasons discussed below, Plaintiffs' derivative claims must also fall. See Voris v. Molinaro,3l A.3d 363,365-
`66 (Conn. 20ll) ('[A] 'consortium claim [is] barred when the suit brought by the injured spouse has been
`terminated by settlement or by an adverse judgment on the merits."' (quoting Hopson v. St. Mary's Hosp.,408 A.2d
`260,264 (Conn. 1979)); see also id. at367 n.7.
`2 In Plaintiff s Jobsite List, a true and correçt copy of which is attached hereto as Exhibit B, Mr. Tullie indicates
`that he was employed at Electric Boat from 1953-1971and for the Town of Stonington, 'Water Pollution Control
`Authority, from 197l-1987. The Complaint alleges exposure to asbestos during the years 1953-19'73. The
`Complaint disclaims any occupational exposure to asbestos-containing products during Mr. Tullie's service in the
`U.S. Navy from 1943-1946, although his original complaint made such a claim. ^lee Original Complaint, at Jl 5
`("The plaintiff was occupationally exposed to various asbestos containing products through his work in the US Navy
`from 1943-1946 and while in research and development from 1953-1973"); Third Amended Complaint, at fl 5a
`("The plaintiff s [sic] expressly disclaim any cause of action for exposure allegedly arising out of the plaintifls
`service in the United States Navy from 1943-1946").
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`Defendant has not received, nor is it aware of any discovery responses, document
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`production, deposition testimony, jobsite lists or product identification lists that identifu
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`Northern pumps as an asbestos-containing product that Mr. Tullie worked with or near such that
`he became exposed to asbestos fibers released from it. It is clear that Plaintiffs simply cannot
`
`establish any exposure of Mr. Tullie to asbestos that is in any way related to Defendant or any
`
`product sold, manufactured or distributed by it.
`
`In their responses to written discovery, Plaintiffs produced a jobsite list showing the years
`
`and jobsites over the course of Mr. Tullie's career. See Exhibit B. Mr. Tullie does not identify
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`any products manufactured, sold or distributed by Defendants on his jobsite list.
`
`Mr. Tullie was subsequently deposed on August 27, 2014 and August 28, 2014. See
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`Transcript of Deposition of James Tullie conducted on August 27, 2014, Volume I, a true and
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`correct copy of which is attached hereto as Exhibit C and Volume II, dated August 28, 2014, a
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`true and correct copy of which is attached hereto as Exhibit D (collectively "Tullie Transcript").
`
`Mr. Tullie never testified or presented any other evidence demonstrating that he worked with or
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`around any Northern pumps at any time during his career. Mr. Tullie certainly never testified or
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`presented any other evidence demonstrating that he worked with or around any asbestos
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`containing products manufactured, distributed or sold by Defendant. Indeed, Mr. Tullie initially
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`could not recall the brand name, trade name, or manufacturer's name of any pumps on any
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`submarine that he worked aboard while employed at Electric Boat nor at any Sewage Treatment
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`Plant while he was employed by the Town of Stonington as Superintendent. See Tullie Depo., at
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`pp. 128:5-9; 16l:2-9; 246:4-15. Mr. Tullie could not recall whether any pump aboard any
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`submarine he worked on was insulated. Id. at pp.246:17-247:7. Furthermore, Mr. Tullie
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`testified that he never installed, repaired, or performed maintenance on any pump aboard any
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`submarine he worked on, had no particular memory of being around anybody installing a pump
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`on any submarine, nor could he recall any instance of testing a fuel oil pump. Id. at pp. 248:l-
`
`249:15.
`
`Thus, the undisputed evidence points to one conclusion: Mr. Tullie was not exposed to
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`any asbestos-containing product manufactured, sold, or distributed by, or otherwise connected to,
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`Defendant at any of the jobs throughout his career. Accordingly, the undisputed facts
`
`demonstrate that Mr. Tullie's alleged asbestos exposure was not the result of any asbestos-
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`containing products manufactured, sold, or supplied by Defendant. Defendant is therefore
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`entitled to summary judgment as a matter of law.
`
`II.
`
`LEGAL STANDARI)
`
`The standard for summary judgment is well known. "fS]ummary judgment shall be
`
`rendered forthwith if the pleadings, affrdavits 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." Ryan Transport., Inc. v. M & G Assoc.,832 A.2d 1180, 1184 (Conn.2003) (citing
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`Barry, 820 A2d at 274); see also Practice Book ç l7-49. "Although the party seeking summary
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`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
`
`."
`
`Bqttistoní v. Weatherking Prods., Inc., 676 A.2d 890, 894 (Conn. 1996). Plaintiffs cannot rely
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`on speculation or conjecture in opposing Defendant's motion, but must instead produce specific
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`evidence showing that a genuine issue of material fact exists because "merely colorable
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`evidence" or evidence that "is not significantly probative" does not defeat a motion for summary
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`judgment. Andersonv. LibertyLobby, únc.,477U.5.242,249-50 (1986). Acourtneednotgive
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`weight to or rely on interrogatory evidence, which is not made upon "personal knowledgef,] or
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`those fevidentiary materials] which are . . . patently inadmissible attnal." Garside v. Osco Drug,
`1nc.,895 F.2d 46,49 (lst Cir 1990). "In summary judgment proceedings, answers to
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`interrogatories are subject to exactly the same infirmities as affidavits." Id.
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`Under this Court's recent decisions, "[o]n a motion by [the] defendant for summary
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`judgment the burden is on [the] defendant to negate each claim as framed by the complaint."
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`Dinneenv. A.O. Smith Corp., No. CV 0950184353S,2011 Conn. Super. LEXIS 1705, at*3
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`(Conn. Super. Ct. July I,2011) (Bellis, J.) (quoting Gianetti v. United Healthcqre,9l2 A.2d
`
`1093, 1097 (Conn. App. Ct. 2007)) (copy attached hereto as Exhibit E). To satisfy this burden,
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`this Court requires the moving party to "demonstrate 'that it is quite clear what the truth is, and
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`that excludes any real doubt as to the existence of any genuine issue of material fact."' Bard v.
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`A.W. Chesterton Co., No. CV065004545S, 2013 Conn. Super. LEXIS 2102, at *5 (Conn. Super.
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`Ct. Sept. 19,2013) (Bellis, J.) (quoting Ramirez v. Health Net of Northeast, lnc.,938 A.2d 576,
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`584 (Conn. 2008)) (copy attached hereto as Exhibit F).
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`Finally, it is well settled that summary judgment is appropriate when the undisputed
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`material facts show thata plaintiff cannot establish an essential element of the cause of action.
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`See, e.g., Abrahams v. Young & Rubicam, 692 A.2d 709, 712 (Conn. 1997) ("[S]ummary
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`judgment may be granted based on a failure to establish causation."); Anderson v. Shoenhorn,
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`87 4 A.2d 798, 804 (Conn. App. Ct. 2005) ("fS]ummary judgment was appropriate on the ground
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`that the plaintiff failed to provide sufficient evidence of breach of duty[.]"); Mozeleski v.
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`Thomas, 818 A.2d 893, 891 (Conn. App. Ct. 2003) ("[T]he issue of whether a defendant owes a
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`duty of care is an appropriate matter for summary judgment because the question is one of law."
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`(quoting Pion v. S. New England Tele. Co.,69l A.2d 1107, 1110 (Conn. App. Ct. 1997)).
`
`Indeed, the Connecticut Supreme Court recently held that "if a plaintiff is unable to present
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`sufficient evidence in support of an essential element of his cause of action at tnal, he cannot
`prevail as a matter of law . . . . To avert these types of ill-fated cases from advancing to trial,
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`following adequate time for discovery, a plaintiff may properly be called upon at the summary
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`judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine
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`issue of material fact as to any, or even all, of the essential elements of his cause of action."
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`Stuart v. Freiberg, 301 Conn. 809, 823 (2015). [f "a defendant's well-supported motion for
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`summary judgment shows that there is no genuine factual dispute as to multiple essential
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`elements of a plaintiff s cause of action, such that none of them reasonably could be resolved in
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`the plaintiff s favor at tnal, the viability of that plaintiff s case is not improved if he only
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`responds with sufficient counterevidence to call some of those essential elements back into
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`question." Id. at 823-24.
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`Within this legal framework, Defendant is clearly entitled to summary judgment as a
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`matter of law.
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`III. ARGUMENT.
`A.
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`Plaintiffs Cannot Establish
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`Asainst Defendant-
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`The CPLA is a plaintiff s exclusive remedy for claims brought against product sellers for
`
`personal injuries or property damage caused by a defective product and is, therefore, Plaintiffs'
`
`exclusive remedy in this case. ,S¿¿ Conn. Gen. Stat. S 52-572n(a); Gerríty v. R.J. Reynolds
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`Tobacco Co., 818 A.2d 769, 774 (Conn. 2003). In a products liability action, a plaintiff must
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`plead and prove that 1) the product was defective; and 2) that such defect was the proximate
`
`cause of the plaintiff s injuries. See id. $ 52-572m; see also Battistoni, 676 A.2d at 894; Sharp v.
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`Wyatt, Inc., 627 A.2d 1347,1352 (Conn. App. Cr. 1993); Ilierzbicki v. W.W. Grainger, Inc., 566
`
`A.2d 1369, 1370 (Conn. App. Ct. 1989). Moreover, a products liability claim becomes a
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`question of law "when the mind of a fair and reasonable person could reach only one
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`conclusion." Battistoni, 676 A.2d at 895. Importantly, a court, in considering an action brought
`
`under the CPLA, must assess a plaintiff s theories of recovery in light of Connecticut common-
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`law requirements.3 See LaMontagne v. E.I. Du Pont de Nemours & Co, Inc., 4l F.3d 846, 856
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`(2dCir. 1994). It is also imperative that a plaintiff presents evidence that would permit a trier of
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`fact to "reasonably infer that the plaintiff was exposed to the defendant's products." Champagne
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`v. Raybestos-Manhattan, lnc.,562 A.2d 1100, 1112 (Conn. 1989).
`
`3 Uttd". Connecticut law, a product liability claim "includes all claims or actions brought for personal injury, death
`or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation,
`testing, warnings, instructions, marketing, packaging or labeling of any product. 'Product liability claim' shall
`include, but is not limited to, all actions based on the following theories: strict liability in tort; negligence; breach of
`warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or
`irurocent, misrepresentation or nondisclosure, whether negligent or innocent." Conn. Gen. Stat. $ 52-572m(b).
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`In a case such as this, the "plaintiff must show that a particular product was used at the
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`jobsite and that the plaintiff was in proximity to that product at the time it was being used."
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`Robertson v. Allied Sígnal, Inc.,9l4 F.2d 360,368 n.5 (3d Cir. 1990) (quoting Zímmer v.
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`Celotex Corp.,549 N.E.2d 881, 884 Gl. App. Ct. 1989)). A mere allegation of exposure,
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`without more, is not sufficient to establish exposure. See Miller v. United Techs. Corp., 660
`
`A.2d 810, 814 (Conn.1995).
`
`In the case sub judice, Plaintiffs have failed to offer and have no reasonable expectation
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`of offering at tnal any evidence that Mr. Tullie \ryas ever exposed to asbestos attributable to a
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`particular product manufactured or distributed by Defendant. As a result, Plaintifß cannot
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`proffer sufficient evidence demonstrating that any of Defendant's products were a substantial
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`contributing factor to Mr. Tullie's alleged injuries.
`
`This Court's recent decision in Dinneen, 20ll Conn. Super. LEXIS 1705, at *6-7, is
`
`instructive in this regard. In that case:
`
`To meet its initial burden for summary judgment and show that Dinneen
`ha[d] not established that he was exposed to one of its products containing
`asbestos, the defendant reliefd] on the plaintiffs pleadings and
`attached one exhibit, entitled 'William Dinneen jobsite list.' . . . The facts
`alleged fin the plaintiffls complaint] . . . d[id] not specifically identify any
`of the defendant's asbestos-containing products to which Dinneen was
`exposed. Because no products of the defendant [were] identified, the
`plaintiffs [could not] demonstrate that they contained asbestos or that such
`products were a substantial factor in causing Dinneen's injuries.
`Likewise, the exhibit entitled "William Dinneen jobsite list," which
`purports to list the dates when Dinneen worked at particular job sites and
`what occupation Dinneen held while working at the specified job sites,
`[did] not include any reference to the defendant or any ofthe defendant's
`products. Based on the foregoing submissions, the defendant has
`established that Dinneen \¡/as not exposed to any products containing
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`asbestos made by the defendant and there are no genuine issues of material
`fact with respect to this issue.
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`Id. So it is here. The facts alleged in Plaintiffs' Complaint do not identify any product of
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`Defendant, and Mr. Tullie's jobsite list similarly does not include any reference to Defendant or
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`any of Defendant's products. Thus, as in Dinneen, "lb]ecause no products of fDefendant] are
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`identified, the plaintiff[s] cannot demonstrate that they contained asbestos or that such products
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`were a substantial factor in causing [Mr. Tullie]'s injuries." Dinneen,20lI Conn. Super. LEXIS
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`1705, at*6-7.
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`B.
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`Plaintiffs' Negligence Claim Fails as a Matter of Law Because Defendant
`Owed No Dutv of Care to Plaintiff.
`
`In addition to the above-referenced ground for summary judgment in Defendant's favor,
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`another ground is equally apparent. In the instant case, Plaintiffs base their claims on the theory
`
`of negligence. "The essential elements of a cause of action in negligence are well established:
`
`duty; breach of that duty; causation; and actual injury." Ryan Transport., lnc.,832 A.2d at 1184
`
`(quoting LePage v. Home,809 A.2d 505, 511 (Conn. 2002)). Moreover, "there can be no
`
`actionable negligence unless there exists a cognizable duty of care." 1d. (quoting Waters v.
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`Autuori, 676 A.2d357,360 (Conn. 1996)). Connecticut courts have further established that "the
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`test for the existence of alegal duty of care entails (l) a determination of whether an ordinary
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`person in the defendant's position, knowing what the defendant knew or should have known,
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`would anticipate that harm of the general nature of that suffered was likely to result, and (2) a
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`determination, on the basis of a public policy analysis, of whether the defendant's responsibility
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`for its negligent conduct should extend to the particular consequences or particular plaintiff in
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`the case." Id. (quoting Gazo v. Stamþrd,765 A2d 505, 509 (Conn. 2001)). In order for a count
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`sounding in negligence to survive, "there must be sufficient evidence of the defendant's
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`negligence to remove the issue from the field of surmise and conjecture." O'Brien v. Crodova,
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`370 A.2d 933, 934 (Conn. 1976) (citing Chasse v. Albert, 166 A.2d 148, 149 (Conn. 1960);
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`Palmieri v. Macero,I55 A.2dl50,l5I-52 (Conn. 1959)).
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`Plaintiffs' claims are premised on the theory that Defendant's negligent actions resulted
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`in Mr. Tullie's exposure to asbestos. Yet, as was explained above, see Arglment, Part A, supra,
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`Plaintiffs offer no proof showing that Mr. Tullie was exposed to Defendant's products.
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`Therefore, there is no genuine issue of material fact on the issue of duty; rather, the undisputed
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`facts clearly show that there is no cognizable duty of care that extends from Defendant to
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`Plaintiffs. Accordingly, Defendant is entitled to summary judgment on all claims asserted in
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`Plaintiffs' Complaint.
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`C
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`Plaintiffs' Failure to Warn Claim Fails as a Matter of Law Because There
`Was No Exposure to Defendant's Products.
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`Plaintiffs also base their claims on the theory that Defendant failed to warn Mr. Tullie of
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`the potenti al hazards associated with coming into contact with and/or being exposed to asbestos.
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`For a defendant to be held liable for failing to warn in a products liability action, a plaintiff must
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`demonstrate that "the product was defective in that adequate warnings or instructions were not
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`provided," Conn. Gen. Stat. $ 52-572q(a), and that "if adequate warnings or instructions had
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`been provided, the claimant would not have suffered the harm." Conn. Gen. Stat. $ 52-572q(c).
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`Here, as explained above, see Argamen! Part A, supra, Plaintiffs have offered no evidence
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`indicating that, at any point in time, Mr. Tullie handled, used or was even in the presence of any
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`asbestos-containing product associated with Defendant. Therefore, it is impossible for Plaintiffs
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`to contend that Defendant failed to adequately warn Mr. Tullie of the potential harm associated
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`with exposure to any such product. Accordingly, summary judgment is proper and should be
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`granted.
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`D. Plaintiffs' Claim in Count IV Fails as a Matter of Law
`It is not clear what legal theory of liability is being asserted in Count IV of the
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`Complaint. In Count IV, Plaintiffs allege that unidentified "defendants" possessed unspecified
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`"data, studies and reports since approximately 1929" indicating that asbestos was hazardous to
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`the "health and safety of the plaintiff and other human beings," failed to "acknowledge, publish,
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`or in any way advise of studies and reports," and thereafter committed unspecified "wrongful
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`acts and/or omissions," which in turn "constitute misconduct that is grossly negligent, willful,
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`wanton, malicious andlor outrageous." Complaint, at tffl 36, 38-40. Once again, there are no
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`allegations specifically directed at Defendant, such as that Defendant allegedly failed to
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`"acknowledge, publish, or advise" Plaintiffs' of the unidentified reports and data referred to. As
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`previously discussed, Plaintiffs have offered no evidence indicating that, at any point in time,
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`Mr. Tullie handled, used or was even in the presence of any asbestos-containing product
`
`associated with Defendant. Therefore, it is impossible for Plaintiffs to contend that Defendant
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`failed to adequately "advise" Mr. Tullie of "reports" regarding the potential harm associated with
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`exposure to any such product. For these reasons, Count IV fails.
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`To the extent Plaintiffs are attempting to assert a claim for "gross negligence," such a
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`cause of action is not recognized in Connecticut. Hanlrs v. Powder Ridge Restaurant Corp.,276
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`Conn. 3I4, 337, 885 A.2d 734 (2005) ("Connecticut does not recognize degrees of negligence
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`and, consequently, does not recognize the tort of gross negligence as a separate basis of
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`liability")." As a result, Count IV fails as a matter of law for this reason as well.
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`If, on the other hand, Plaintiffs reference to "willful, wonton, malicious and outrageous"
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`conduct by "defendants" is an attempt to assert a claim for fraudulent misrepresentation, their
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`claim also fails as a matter of law because Plaintiff cannot offer evidence to satisfy any of the
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`necessary elements and because the claim is time-barred. To make out a claim for fraudulent
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`misrepresentation, a plaintiff must allege "(l) a false representation was made as a statement of
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`fact1' (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce
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`the other party to act upon in; and (4) the other party did so act upon the false representation to
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`his injury." Solano v. Calegar¿ 108 Conn. App.73l,74l (2008) (citation omitted). Mr. Tullie
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`must further have relied on the representation and suffered harm as a result of the reliance.
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`Davis v. Connecticut Community Bank,937 F.Supp.2d 2I7,240 (D. Conn. Mar.26,2013).
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`Unlike a negligent representation, a fraudulent representation "is one that is knowingly untrue, or
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`made without belief in its truth, or recklessly made and for the purpose of inducing action upon
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`it." Id. "This is because fraudulent misrepresentation is an intentional tort." Id. "The absence
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`of any element of a claim of fraud is fatal to the plaintiff s recovery." Id. (emphasis added).
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`Furthermore, to constitute fraud by nondisclosure or suppression, there must be a failure to
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`disclose known facts, . . . a request or an occasion or a circumstance which imposes a duty to
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`speak. . . [and] the nondisclosure must be by a person intending or expecting thereby to cause a
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`mistake by another to exist or to continue, in order to induce the latter to enter into or refrain
`from entering into a transaction." Wedig v. Brínster, I Conn. App. 123, 130 (1983) (citation
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`omitted).
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`Plaintiffs have offered no evidence demonstrating that Mr. Tullie used or was otherwise
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`exposed to any asbestos-containing product associated with Defendant. Therefore, it would be
`
`impossible for Plaintiff to establish that Defendant made a fraudulent misrepresentation or
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`nondisclosure to Mr. Tullie, let alone that it misrepresented or withheld a faú it knew to be
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`untrue to Mr. Tullie with the intention of inducing him to act, and that he did in fact rely on
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`Defendant's misrepresentation or nondisclosure. Plaintiff simply cannot adduce any evidence
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`establishing that Defendant made a fraudulent misrepresentation or nondisclosure with respect to
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`Mr. Tullie.
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`E.
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`To the Extent Plaintiffs Assert a Strict Liabilitv Claim, it Fails as a Matter of
`Law Because There is No Causal Connection Between Defendant's Products
`and Plaintiffs' Iniuries.
`
`To the extent Plaintiffs also assert claims against Defendant on the theory of strict tort
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`liability, those claims fail. To succeed on a claim for strict tort liability, a plaintiff is required to
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`prove that: 1) the defendant was engaged in the business of selling the producf; 2) the product
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`was in a defective condition unreasonably dangerous to the consumer or user; 3) the defect
`
`caused the injury for which compensation is sought; 4) the defect existed at the time of the sale;
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`and 5) the product was expected to and did reach the consumer without substantial change in
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`condition. See Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 468 A.2d 292,293 (Conn.
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`App. Ct. 1983). In the instant case, as explained above, see Argwent, Part A, supra, Plaintiffs
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`have failed to adduce any admissible evidence showing that any particular product o