DOCKET NO. FBT-CV17-6066689-S
`
`ADAM M. BREAKELL,
`
`
`v.
`
`3M CO. (f/k/a Minnesota Mining & Manufacturing
`Co.), et al.
`
`
`
`
`SUPERIOR COURT
`
`J.D. OF FAIRFIELD
`
`AT BRIDGEPORT
`
`June 11, 2019
`
`PLAINTIFF’S OPPOSITION TO DEFENDANT THE GOODYEAR TIRE & RUBBER CO.’S MOTION FOR
`PROTECTIVE ORDER RE: NOTICE OF DEPOSITION OF CORPORATE DESIGNEE
`
`
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`Plaintiff respectfully requests that the court deny The Goodyear Tire & Rubber Co.’s
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`(“Goodyear”) motion for a protective order and allow the deposition of the corporate designee to
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`proceed forthwith. For reasons set forth below, Goodyear has failed to meet the burden of proof
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`necessary for the allowance of a protective order.
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`I. INTRODUCTION
`
`Plaintiff, Adam Breakell, who is currently living, was diagnosed with mesothelioma on or about
`
`July 27, 2016. On August 24, 2017, he commenced this action against various defendants, including
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`Goodyear. The most recent, operative complaint was filed on June 6, 2018. Exhibit A. In said complaint,
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`plaintiff makes allegations consistent with the Connecticut Products Liability Act and claims, inter alia,
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`that his mesothelioma was caused by exposure to asbestos.
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`Plaintiff worked at Goshen Tractor Co. in Goshen, Connecticut (“GTC”), in 1991 and 1992.
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`Exhibit B at T142:1-143:7. GTC had sold and repaired garden and agricultural equipment for many years
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`prior to when plaintiff began working there. Id. at T142:23-143:14.2 The equipment GTC sold and
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`repaired, which included “[a]gricultural tractors, lawn mowers, compact tractors, chainsaws, string
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`trimmers, push mowers, things of that nature,” was manufactured by various companies, such as Ford,
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`BCS, Briggs & Stratton, Craftsman, Gravely, Kioti, Kohler, Roper, Simplicity, Steiner, Stihl and Woods. Id.
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`at T143:22-146:6; 151:15-152:5; 189:12-17. Many repairs plaintiff and his coworkers performed involved
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`

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`the removal and replacement of engine gaskets. Id. at T153:22- 156:5; 157:24-159:18; 179:22-187:15.
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`The replacement components, including engine gaskets, used in repair work at GTC were generally
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`“original equipment” replacement parts. Id. at T173:7-178:13; T191:14-192:9. The equipment repaired
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`at GTC in 1991 and 1992 had been manufactured as early as the 1940s. See, e.g., id. at 176:12-177:6;
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`T263:16-24.
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`Goodyear manufactured numerous asbestos-containing products, including gasket material with
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`asbestos as an intentional constituent from 1914 until 1969.3 Exhibit C at p. 8. Goodyear’s gasket
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`material was marketed to be used “[f]or cutting into gaskets…that are used for extremely high-
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`temperature, high-pressure joints of all types on…internal combustion engines…” Exhibit D at p. 113.
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`II. ARGUMENT
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`
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`A. LEGAL STANDARD
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`The fundamental purpose of the discovery process is to “make a trial less a game of blindman’s
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`bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”
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`Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 50, 634 A.2d 870, 875 (1993) (citing United States
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`v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 986-87 (1958); Knock v. Knock, 224 Conn. 776, 782,
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`621 A.2d 267 (1993); Picketts v. Int’l Playtex Inc., 215 Conn. 490, 508, 576 A.2d 518 (1990)). The test for
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`whether information or documents are discoverable is, therefore, broader than the test for materiality
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`for admissibility at trial. See, e.g., Sanderson v. Steve Snyder Enterprises Inc., 196 Conn. 134, 139, 491
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`A.2d 389, 392 (1985). Accordingly, pursuant to Practice Book § 13-12,
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`a party may obtain…discovery of information or disclosure, production and inspection of
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`papers, books, documents and electronically stored information material to the subject
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`matter involved in the pending action, which are not privileged, whether the discovery
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`relates to the claim or defenses of the party seeking discovery or to the claim or defense
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`of any other party…It shall not be ground for objection that the information sought will
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`be inadmissible at trial if the information sought appears reasonably calculated to
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`lead to the discovery of admissible evidence…
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`Practice Book § 13-12 (emphasis added).
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`Information that is “material to the subject matter” has been construed broadly by Connecticut
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`courts “to encompass any matter that bears on, or that reasonably could lead to other matter that could
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`bear on any issue that is or may be in the case.” Rosado v. Bridgeport Roman Catholic Diocesan Corp.,
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`Superior Court, Docket No. CV 93 302072, 1995 WL 348181 at *6 (May 31, 1995) (quoting Oppenheimer
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`Fund Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389-90 (1978)). Moreover, “the court should and
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`ordinarily does interpret ‘material’ very broadly to mean matter that is relevant to anything that is or
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`may become an issue in the litigation.” Id. (quoting 4 J. Moore, Federal Practice ¶ 26.56[1], p. 26-131 n.
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`34 (2d ed. 1976)).
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`Of course, whether to grant or deny a discovery request rests in the sound discretion of the trial
`
`court. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 459 A.2d. 503, 508 (1983) (citing Kiessling v.
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`Kiessling, 134 Conn. 564, 568, 59 A.2d 532 (1948)). “That discretion is limited, however, by the
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`provisions of the rules pertaining to discovery…[,] especially the mandatory provision that discovery
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`shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the
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`action.” Id. at 57-58.
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`Here Goodyear seeks to frustrate a routine deposition notice by filing a motion for a protective
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`order. Such motions are governed by Practice Book Section 13-5, which states in part that : “Upon
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`motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may
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`make any order which justice requires to protect a party from annoyance, embarrassment, oppression,
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`or undue burden or expense, including one or more of the following: (1) that the discovery not be had;
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`(2) that the discovery may be had only on specified terms and conditions.” (emphasis added). When
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`deciding on such motions, “the court is obligated to take a reasoned and logical approach to the
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`relevant contest between the parties.” Blumenthal v. Kimber Mfg. Inc., 265 Conn. 1, 7–8, 826 A.2d 1088
`
`(2003); accord Clarke v. Rieger, Superior Court, judicial district of New Haven at Meriden, Docket No. CV
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`05 4002565 (January 9, 2007, Rubinow, J.).
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`Reason and logic would dictate that Goodyear has not met its burden of proof as there is a lack
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`of good cause for the issuance of a protective order here. Goodyear’s basis for good cause here is based
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`on the argument that plaintiff’s request to depose its corporate representative is based on speculation
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`and that plaintiff has not produced evidence of his exposure to any Goodyear asbestos-containing
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`product. However, Goodyear has repeatedly acted in bad faith throughout the discovery process and
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`such a deposition is necessary to establish whether or not Goodyear supplied asbestos-containing
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`gaskets to the relevant equipment-manufacturer defendants or third parties.
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`B. PLAINTIFF’S REQUEST IS NOT SPECULATIVE BUT AN APPROPRIATE RESPONSE GOODYEAR’S
`BAD FAITH
`
`
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`As indicated above, Goodyear manufactured gasket material with asbestos as an intentional
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`constituent from 1914 until 1969. Exhibit C at p. 8. Goodyear’s previous attempt to resolve the parties’
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`disagreement as to the scope of appropriate discovery, by producing sales records dating back to
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`1986—more than twenty (20) years after Goodyear allegedly ceased manufacturing gasket material with
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`asbestos as an intentional constituent—was unequivocally designed to frustrate and forestall plaintiff’s
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`efforts to discover relevant information and documents and was, therefore, made in bad faith. Exhibit E.
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`Goodyear’s refusal to answer a very limited number of interrogatories and requests for production
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`prompted the service of a Notice of Deposition of Goodyear’s corporate representative in order to
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`resolve persisting dispute. Goodyear has, only recently, offered plaintiff access to its “Document
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`Repository.”1 Such documents may provide the link between plaintiff’s work and Goodyear’s asbestos-
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`containing gaskets.
`
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`1 However, this “offer” came only after Goodyear refused to comply with plaintiff’s reasonable requests and
`plaintiff was forced to file this motion, and it does not comply with the Practice Book, as Goodyear purports to
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`

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`Additionally, the deposition testimony of a corporate representative at issue here is undeniably
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`within the scope of discovery. If, for instance, Goodyear supplied asbestos-containing products to Ford
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`Motor Co.(“Ford”), Kohler Co. (“Kohler”) or Simplicity Manufacturing Inc. (“Simplicity”) in the 1960s,
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`such information and supporting documents (if any) could serve as direct or circumstantial evidence that
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`plaintiff was exposed to asbestos from a Goodyear product that had been incorporated into the Ford,
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`Kohler or Simplicity equipment that he repaired, or that was repaired in his presence, at GTC. Likewise,
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`such evidence would support plaintiffs’ allegations (and co-defendants’ cross claims) that the end-
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`product manufacturers, such as Ford, Kohler and Simplicity, utilized asbestos-containing components in
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`their equipment. Consequently, the deposition notice at issue here is not resting upon a bare hope that
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`a “thorough ransacking of any information and material which the defendant may possess would turn
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`up evidence helpful to [plaintiff’s] case.” Burger v. Cuomo, 644 A.2d 333, 337 (Conn. 1994). Rather,
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`despite Goodyear’s claims to the contrary, plaintiff has demonstrated a reasonable basis for his interest
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`in the deposition of Goodyear’s corporate representative, beyond mere speculation. Therefore,
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`Goodyear unquestionably failed to demonstrate that the testimony of a corporate representative at
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`issue herein warrants protection, given that such testimony and the documents relied upon therein will
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`largely relate to Goodyear’s sale of asbestos-containing products to the manufacturers of the equipment
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`that was in the presence of, or repaired by, plaintiff while he worked at GTC.
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`III. CONCLUSION
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`For all the foregoing reasons, plaintiff respectfully requests that the Court deny Goodyear’s
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`motion for a protective order and allow the deposition of Goodyear’s corporate representative.
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`
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`require plaintiff’s counsel to search through an unknown amount of potentially-disorganized documents at an
`undisclosed location subject to some vague “Goodyear Tire protocol for access, inspection and copying…”
`Plaintiff’s counsel has sought clarification and additional details regarding this offer but has not received a
`response. Exhibit F.
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`

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`Respectfully submitted,
`
`THE PLAINTIFF
`
`
`
`By: /s/ 437591
`Darron E. Berquist, Esq. (437591)
`THE LANIER LAW FIRM PLLC
`Attorneys for Plaintiff
`126 E. 56th St., 6th Fl.
`New York, NY 10022
`Tel.: (212) 421-2800
`darron.berquist@lanierlawfirm.com
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`CERTIFICATION
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`This is to certify that, on June 11, 2019, a copy of the foregoing will be served via email upon all
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`counsel and upon the following counsel via first class mail:
`
`
`
`Eric D. Eddy, Esq.
`Wolf Horowitz & Etlinger LLC
`750 Main St., Ste. 606
`Hartford, CT 06103
`
`THE PLAINTIFF
`
`
`
`
`
`/s/ 437591
`Darron E. Berquist, Esq. (437591)
`
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`EXHIBIT A 
`
`EXHIBITA
`
`

`

`SUMMONS - CIVIL
`JD-CV—1 Rev. 4-16
`cos.
`§ 51.346. 51-347. 51-349. 51-350. 5245a.
`52-40. 2-259. ea. §§ 3-1 through 521. s1. 10—13
`See other side for instructions
`
`STATE OF CONNECTICUT
`SUPERIOR COURT
`www.jud.cl.govV
`
`[:1 "X" if amount. legal interest or property in demand, not including interest and
`costs is less than $2,500.
`_
`.
`_
`E] "X" if amount. legal interest or property in demand, not including interest and
`costs is $2,500 or more.
`
`D "X" if claiming other relief in addition to or in lieu of money or damages.
`
`TO: Any proper officer; BY AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby commanded to make due and legal service of
`this Summons and attached Complaint.
`Return Date (Must be a Tuesday)
`Address of court clerk where writ and other papers shall be fixed (Number. street. town and zip code) Telephone number of clerk
`
`
`(0.6.3. 55 51-346. 51—350)
`(with area code)
`
`June
`28 , 2 018
`
`Wiri— Tia— W
`
`( 203 )579-6527
`1061 Main Street Bridgeport. CT 06604
`Case type code (See list on page 2)
`At (Town in which writ is reiumabie) (0.6.8. §§ 51-346. 51-349)
`E Judicial District
`
`
`
`I Housing Session
`Fairfield
`Number.
`Major: T
`Minor: 20
`For the Plaintiff(s) please enter the appearance of:
`Name and address of attorney law lirrn or plaintiff if sell-represented (Number, street. town and zip code)
`
`Juris number (to be entered byailomey only)
`
`
`
`Shannon K. Tully, The Lanier Law Firm. PLLC, 126 E. 56th Street, 6th Fl., New York. NY 10022
`Telephone number (with area code)
`Signature of Plaintiff (It seIfJepresented)
`
`439535
`
`( 212 ) 421-2800
`The Name), 0, law firm appearing for the plaintiff. of the plain“, it
`self-represented. agrees to accept papers (service) electronically in
`this case under Section 10-13 of the Connecticut Practice Book.
`
`Yes
`
`[2]
`
`No
`
`E]
`
`Email address for delivery of papers under Section 10-13 (if agreed to)
`.
`.
`shannon.tul ly@|anlerlawfirm.com
`
`Number of Plaintiffs:
`[3 Form JD-CV-2 attached for additional parties
`3
`Number of Defendants:
`1
`Name (Last, First, Middle Initial) and Address of Each party (Number; Street; P.O. Box: Town; State; Zip; Country, if not USA)
`
`
`Name: Adam M. Breakell
`9-01
`Address: 86735 N. State Highway 289, Pottsboro, Texas
`Name: N/A
`Addie“: NIA
`
`PM
`
`Additional
`Plaintiff
`F I rst
`Defendant
`
`Additional
`Defendant
`
`Additional
`Defendant
`Additional
`Defendant
`
`C prus Mines Corp.
`Name:
`Addressz c o Corporation Service Co., 251 Little Falls Drive, Wilmington, DE 19808
`Name:
`lme
`s Talc Vermont inc.
`
`Address: clo T Corporation System, 17 G.W. Tatro Dr., Jeffersonville, VT 05464
`
`s USA Inc,
`Ime
`Name:
`Addressz clo he Corporation Trust Co., Corporation Trust Center. 1209 Orange St. Wilmington, DE 19801
`Name:
`Address;
`
`0.04
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`Notice to Each Defendant
`
`1. YOU ARE BEING SUED. This paper is a Summons in a lawsuit. The complaint attached to these papers states the claims that each plaintiff is making
`against you in this lawsuit.
`2. To be notified of further proceedings. you or your attorney must file a form called an "Appearance" with the clerk of the above-named Court at the above
`Court address on or before the second day after the above Return Date. The Return Date is not a hearing date. You do not have to come to court on the
`Return Date unless you receive a separate notice telling you to come to court.
`3. If you or your attorney do not file a written "Appearance" form on time. a judgment may be entered against you by default. The "Appearance" form may be
`obtained at the Court address above or at www.jud.ct.gov under “Court Forms.“
`4. If you believe that you have insurance that may cover the claim that is being made agalnst you in this lawsuit. you should immediately contact your
`insurance representative. Other action you may have to take is described in the Connecticut Practice Book which may be found in a superior court law
`library or on.line at www.jud.ct.gov under "Court Rules.“
`5. If you have questions about the Summons and Complaint. you should talk to an attorney quickly. The Clerk of Court is not allowed to give advice on
`legal questions.
`ommissioner 0
`Signed (Sign and 'X" proper box)
`Superior Court
`
`
`, 06/06/2018
`I “5,5,3,“ cm
`Shannon K. Tully
`i a“ .
`
`
`
`
`
`
`
`For Court Use Only
`t
`If this Summons is signed by a C 3‘
`File Date
`
`
`a. The signing has been done so ,hat the Plaintifl(s) will not be denied access to the courts.
`
`b. It is the responsibility of the Plaintiff(s) to see that service is made in the manner provided by law.
`0. The Clerk is not permitted to give any legal advice in connection with any lawsuit.
`
`d. The Clerk signing this Summons at the request of the Plaintiff(s) is not responsible in any way for any errors or omissions
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`in the Summons. any allegations contained in the Complaint. or the service of the Summons or Complaint.
`
`
`
`
`Name of Person Signing at Left
`
`_.. Date signed
`
`
`
`
`I certify l have read and
`
`
`understand the above:
`
`Signed (Self-Represented Plaintiff)
`
`Date
`
`Docket Number
`
`(Page 1 of 2)
`
`
`
`

`

`SUPERIOR COURT
`
`J.D. OF FAIRFIELD
`
`AT BRIDGEPORT
`
`June 6, 2018
`
`RETURN DATE: June 28, 2018
`ADAM M. BREAKELL
`
`
`v.
`
`
`3M CO. (f/k/a Minnesota Mining & Manufacturing
`Co.);
`A.O. SMITH CORP.;
`AGCO CORP. (individually and as successor to
`Massey-Ferguson Ltd. and Massey-Ferguson
`Inc.);
`AGWAY INC.;
`ALTICOR INC. (individually and d/b/a Amway);
`AMWAY CORP.;
`BASF CATALYSTS LLC (individually and as successor
`to Engelhard Corp., Engelhard Minerals &
`Chemicals Corp., and Minerals & Chemicals
`Corp.);
`BCS AMERICA LLC;
`BORGWARNER MORSE TEC INC.;
`(individually, as
`BRENNTAG SPECIALTIES
`INC.
`successor to, and f/k/a Mineral & Pigment
`Solutions Inc. and Whittaker, Clark & Daniels
`Inc.);
`BRIDGESTONE AMERICAS INC.;
`(individually and as
`BRIGGS & STRATON CORP.
`successor to Simplicity Manufacturing Inc.);
`BURNHAM LLC;
`CARGILL INC.;
`CARLISLE COMPANIES INC.;
`CAROLINA EASTERN-VAIL INC. (d/b/a CaroVail);
`CATERPILLAR INC.;
`CBS CORP. (f/k/a Viacom Inc., successor by merger
`to CBS Corp., f/k/a Westinghouse Electric Corp.);
`CNH INDUSTRIAL AMERICA LLC (f/k/a CNH Americas
`LLC);
`CONTINENTAL AUTOMOTIVE SYSTEMS INC. (f/k/a
`Continental Teves Inc.);
`CRANE CO.;
`CUMMINS INC. (f/k/a Cummins Engine Co. Inc.);
`CYPRUS AMAX MINERALS CO. (individually, as
`successor to and d/b/a to Metropolitan Talc Co.
`Inc. and Charles Mathieu Inc.);
`DANA COMPANIES LLC;
`DAP PRODUCTS INC.;
`DEERE & CO.;
`
`1366424_3
`
`

`

`E. I. DUPONT DE NEMOURS & CO.;
`EATON CORP.;
`ELECTROLUX HOME PRODUCTS INC. (individually and
`as successor to American Yard Products and
`George D. Roper Co.);
`ELECTROLUX USA INC. (individually and as successor to
`American Yard Products and George D. Roper Co.);
`EMERSON ELECTRIC CO.
`(individually and as
`successor to Lipe-Rollway Co.);
`FORD MOTOR CO.;
`GENERAL ELECTRIC CO. (individually and as successor
`to George D. Roper Co.);
`GENUINE PARTS CO.;
`GOODRICH CORP.;
`HART BUILDING & ROOFING SUPPLIES INC.;
`HENNESSY INDUSTRIES LLC;
`HONEYWELL INTERNATIONAL INC. (f/k/a AlliedSignal
`Inc., as successor to the Bendix Corp.);
`HUBBELL INC. (individually and as successor to FCI
`Americas Inc., d/b/a Burndy);
`HUSQVARNA CONSUMER OUTDOOR PRODUCTS N.A.
`INC. (individually and as successor to American
`Yard Products, George D. Roper Co., and Tecumseh
`Products Co.);
`INC.
`PRODUCTS
`HUSQVARNA
`PROFESSIONAL
`(individually and as successor to American Yard
`Products, George D. Roper Co., and Tecumseh
`Products Co.);
`IFFLAND LUMBER CO. INC.;
`IMERYS TALC AMERICA INC. (f/k/a Luzenac America
`Inc.);
`INDIAN HEAD
`Gasket);
`JOHNSON & JOHNSON;
`INC. (f/k/a
`JOHNSON & JOHNSON CONSUMER
`Johnson & Johnson Consumer Companies Inc.);
`KENT NUTRITION GROUP
`INC.
`(individually, as
`successor to and d/b/a Blue Seal Inc.);
`KOHLER CO.;
`KOMATSU AMERICA CORP.;
`LEAR SIEGLER DIVERSIFIED HOLDINGS CORP.;
`LIPE-ROLLWAY CORP.;
`MACK TRUCKS INC. (individually and as successor to
`Brockway Motor Co.);
`MAREMONT CORP.;
`MARJAM SUPPLY CO. INC.;
`
`INC. (d/b/a Detroit
`
`INDUSTRIES
`
`1366424_3
`
`

`

`INC.
`
`(d/b/a
`
`MCCORD CORP.;
`MERITOR INC. (individually and as successor to
`Rockwell International Corp.);
`MTD PRODUCTS CO. (f/k/a Modern Tool & Die Co.);
`NATIONAL AUTOMOTIVE PARTS ASSOCIATION INC.;
`NAVISTAR INC. (f/k/a International Truck and Engine
`Co.);
`INTERNATIONAL TRUCKS
`NUTMEG
`Nutmeg Truck Centers);
`PLATINUM EQUITY LLC (d/b/a Tecumseh Power,
`individually and as successor to Tecumseh
`Products Co.);
`PNEUMO-ABEX LLC (individually and as successor to
`Abex Corp.);
`ROGERS MANUFACTURING CO. INC.;
`SCHILLER GROUNDS CARE INC. (individually and as
`successor to Steiner Co.);
`SEARS HOLDINGS MANAGEMENT CORP.
`Craftsman);
`SEARS, ROEBUCK & CO. (d/b/a Craftsman);
`SOUTHERN STATES COOPERATEIVE INC. (individually,
`as successor to and d/b/a Agway Inc.);
`STANLEY BLACK & DECKER INC.;
`TECUMSEH PRODUCTS COMPANY LLC (f/k/a Tecumseh
`Products Co.);
`THE GOODYEAR TIRE & RUBBER CO.;
`THE ROWEN-LEAHY CO.;
`THE TORO CO.;
`TRANE U.S. INC. (f/k/a American Standard Inc.);
`UNITED STEEL INC.;
`VANDERBILT MINERALS LLC (individually and as
`successor to Gouverneur Talc Co., International
`Talc Co. and R.T. Vanderbilt Co.);
`VENTURE PRODUCTS INC. (f/k/a Steiner AG Products
`Inc., individually and as successor to Steiner Corp.);
`WEIL-MCLAIN (a division of The Marley-Wylain Co.);
`WHITTAKER, CLARK & DANIELS INC;
`BCS S.P.A.;
`CNH INDUSTRIAL N.V.;
`HUSQVARNA AB (individually and as successor to
`American Yard Products and George D. Roper
`Co.);
`KOMATSU LTD.;
`(individually and as
`INC.
`BURNDY AMERICAS
`successor to FCI Americas Inc., d/b/a Burndy);
`BUSH HOG INC. (individually and as successor to
`
`(d/b/a
`
`1366424_3
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`

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`Bush Hog LLC);
`DUROC LLC (f/k/a Bush Hog LLC);
`KELSEY-HAYES CO. (individually and as successor to
`Frehauf Trailer Corp.);
`UNION CARBIDE CORP.;
`WOODS EQUIPMENT CO;
`INC. (f/k/a Windsor
`IMERYS TALC VERMONT
`Minerals Inc., f/k/a Cyprus Minerals Windsor
`Corp., f/k/a Windsor Minerals Inc., successor to
`and f/k/a Eastern Magnesia Talc Co. Inc.);
`Cyprus Mines Corp. (individually, doing business as,
`and successor to, Sierra Talc Company, Amoco
`Minerals Co., Cyprus Industrial Minerals Co.,
`and Cyprus Georesearch Co., a wholly-owned
`subsidiary of Cyprus Mines Corp. and successor
`to Charles Mathieu Inc. (d/b/a Charles Mathieu
`& Co. and Chas. Mathieu Inc.), American Talc
`Company Inc., Metropolitan Talc Company Inc.,
`Imperial Products Co.
`Inc., and Resource
`Processors Inc.);
`Imerys USA Inc. (individually and as successor to
`Imerys Refractory Minerals USA Inc., Imerys
`Carbonates USA Inc., Imerys Clays Inc., Imerys
`Minerals California Inc., S&B Industrial Minerals
`North America Inc., Kentucky Tennessee Clay
`Co., and Imerys Talc America Inc.),
`
`1366424_3
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`

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`THIRD AMENDED COMPLAINT
`
`Plaintiff, ADAM M. BREAKELL, resides at 86735 N. State Highway 289, Pottsboro,
`
`1.
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`Texas. Plaintiff resided in Connecticut from his birth on May 17, 1975, until approximately 1997;
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`from approximately 2003 until approximately 2005; and from approximately 2016 until November
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`2017.
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`2.
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`This Court has general jurisdiction over those defendants that (i) are Connecticut
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`corporations, (ii) have a principal place of business in Connecticut, or (iii) are presently, or during
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`the relevant time periods, registered to do business in Connecticut.1, 2
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`3.
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`This Court has specific jurisdiction over the non-resident defendants3, pursuant to
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`General Statutes § 52-59b, because they (1) transact (and/or during the relevant time period
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`transacted) business within Connecticut, including business directly related to plaintiff’s allegations
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`herein; (2) caused plaintiff to be exposed to asbestos in Connecticut and/or otherwise committed a
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`tortious act within the state; and/or (3) committed a tortious act outside Connecticut that caused or
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`contributed to plaintiff’s exposure to asbestos in Connecticut or otherwise caused him to suffer
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`injuries in Connecticut, and said acts were directed in whole or in part toward the state.
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`Furthermore, each of the non-resident defendants: (A) (i) regularly does or solicits (and/or during
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`1 See, e.g., Bush v. Price Reit Inc., 2015 WL 4173676 (Conn. Sup. Ct. 2015) (citing Talenti v. Morgan & Brother
`Manhattan Storage Co., 113 Conn.App. 845, 855, 968 A.2d 933 (2009), cert. denied, 292 Conn. 908, 973 A.2d 105
`(2009).
`2 3M Co.; A. O. Smith Corp.; AGCO Corp.; BASF Catalyst LLC; Bridgestone Americas Inc.; Briggs & Stratton Corp.;
`Cargill Inc.; Carolina Eastern-Vail Inc.; Caterpillar Inc.; CBS Corp.; Crane Co.; Cummins Inc.; DAP Products Inc.; E. I.
`Du Pont de Nemours & Co.; Eaton Corp.; Electrolux Home Products Inc.; Electrolux USA Inc.; Emerson Electric Co.;
`Ford Motor Co.; General Electric Co.; Genuine Parts Co.; Georgia-Pacific LLC; Goodrich Corp.; Hart Building &
`Roofing Supplies Inc.; Honeywell International Inc.; Iffland Lumber Co. Inc.; Johnson & Johnson Consumer Inc.;
`Kelsey-Hayes Co.; Kent Nutrition Group Inc.; Kohler Co.; Komatsu America Corp.; Mack Trucks Inc.; Marjam Supply
`Co. Inc.; Meritor Inc.; MTD Products Co.; Navistar Inc.; Nutmeg International Trucks Inc.; Platinum Equity LLC; Sears
`Holdings Management Corp.; Sears, Roebuck & Co.; Southern States Cooperative Inc.; Stanley Black & Decker Inc.;
`The Goodyear Tire & Rubber Co.; The Rowen-Leahy Co.; Trane U.S. Inc.; Union Carbide Corp.; United Steel Inc.;
`Vanderbilt Minerals LLC.
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`the relevant time period did or solicited) business; (ii) engages (and/or during the relevant time
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`period engaged) in one or more other persistent courses of conduct, including conduct related to
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`plaintiff’s allegations herein; and/or (iii) derives (and/or during the relevant time period derived)
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`substantial revenue from goods used or consumed or services rendered in the state, including from
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`products and/or services at issue herein; or (B) expected or should reasonably have expected
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`(and/or during the relevant time period expected or should have reasonably expected) its acts to
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`have consequence in Connecticut, and derives (and/or during the relevant time period derived)
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`substantial revenue from interstate or international commerce.
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`4.
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`This Court also has specific jurisdiction over the non-resident defendants (i)
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`pursuant to General Statutes § 52-59 because they owned, used, possessed or otherwise controlled
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`real property situated within Connecticut; and/or (ii) pursuant to General Statutes §§ 53-451(a)(1)
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`and 53-451(a)(3) because they utilized a computer or computer network
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`located within
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`Connecticut.
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`FIRST COUNT – PRODUCT LIABILITY
`(General Statutes §§ 52-240a, 52-240b, 52-572m, et seq.)
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`Plaintiff repeats, reiterates and incorporates herein the prior and subsequent
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`5.
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`allegations of this complaint with the same force and effect as if hereinafter set forth at length.
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`6.
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`Defendants’ actions and omissions, as more fully described below, were carried out
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`by and through their authorized officers, agents, servants and employees who were acting in the
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`course of their employment, with authority (actual or apparent), and in furtherance of defendants’
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`business and profit.
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`3 All defendants except Crane Co.; Hart Building & Roofing Supplies Inc.; Hubbell Inc.; Iffland Lumber Co. Inc.;
`Marjam Supply Co. Inc.; Nutmeg International Trucks Inc.; The Rowen-Leahy Co.; United Steel Inc.; and Vanderbilt
`Minerals LLC.
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`7.
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`Defendants mined, milled, processed, produced, manufactured,
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`fabricated,
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`assembled, designed, packaged, marketed, advertised, supplied, distributed, supplied, delivered,
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`sold or otherwise placed in the stream of commerce (hereinafter “manufactured”): (i) asbestos4
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`fibers; (ii) asbestos-containing products (including products that caused or otherwise contributed to
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`the production of asbestos fibers); (iii) equipment or other products that specified, required or
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`otherwise necessitated the use of asbestos-containing components or for which asbestos or
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`asbestos-containing replacement components were otherwise reasonably foreseeable; (iv)
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`equipment or other products that were designed to be used or commonly used in connection or
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`conjunction with products and materials that defendants knew or should have known contained
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`asbestos and that, when used as designed, intended or commonly utilized, generated asbestos
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`dust; and (v) respiratory protection equipment that failed to protect users from exposure to
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`asbestos.
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`8.
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`Plaintiff was regularly and frequently exposed to asbestos from the use or other
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`exposure to defendants’ products from approximately the date of his birth until approximately
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`2016. Such exposure caused plaintiff’s malignant mesothelioma and consequential injuries.
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`Negligence
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`9.
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`Defendants had a duty to manufacture products that were not unreasonably
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`dangerous or defective when used as intended or in a reasonably foreseeable manner.
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`10.
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`Defendants had a duty to warn plaintiff of the hazards and defects that defendants
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`created, knew of and, within the exercise of reasonable care, should have known about.
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`4 “Asbestos” shall be interpreted in the broadest sense and include non-regulated and non-commercial forms of
`asbestos, cleavage fragments and transition/transitional fibers, without specific limitation as to regulatory
`definitions, fiber size, dimension or ratio. “Asbestos” also includes “fibrous talc.”
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`11.
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`During the time that defendants manufactured the products at issue, they knew,
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`and in the exercise of reasonable care should have known, that said products were defective,
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`ultrahazardous, dangerous and otherwise highly harmful to the public, including plaintiff.
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`12.
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`Defendants knew, and in the exercise of reasonable care should have known, that
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`their products would be used, manipulated, consumed or otherwise handled, resulting in the
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`release of asbestos fibers and thereby creating a dangerous and unreasonable risk of injury to users
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`and others coming into contact with said products, including plaintiff, either directly or indirectly.
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`13.
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`Plaintiff did not know the nature and extent of the injuries that would result from
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`contact with and exposure to asbestos from use of or exposure to defendants’ products.
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`14.
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`Defendants knew, and in the exercise of reasonable care should have known, that
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`plaintiff would come into contact with and be exposed to asbestos from use of or exposure to their
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`products and would inhale and/or otherwise ingest asbestos as a result of the ordinary and
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`foreseeable use of said products.
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`15.
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`Despite the facts as set forth above, defendants negligently, recklessly, intentionally
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`and with wanton disregard for plaintiff’s rights, safety or health:
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`(a)
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`(b)
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`(c)
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`(d)
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`manufactured products that defendants knew, and in the exercise of reasonable
`care should have known, were defective, dangerous, ultrahazardous and otherwise
`unreasonably harmful to plaintiff as a result of exposure to asbestos;
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`failed to take reasonable precautions or exercise reasonable care to adequately
`warn individuals, including plaintiff, of the risks, dangers and harms to which they
`would be subjected by exposure to asbestos from the use of or other exposure to
`defendants’ products;
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`failed to provide information or reasonably safe and sufficient safeguards necessary
`to protect plaintiff from being injured as a result of exposure to asbestos from the
`ordinary and foreseeable use of or other exposure to defendants’ products;
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`failed to place, post or otherwise convey any warnings (or sufficient warnings)
`regarding the health hazards associated with exposure to asbestos from the use of or
`other exposure to their products;
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`(e)
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`(f)
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`(g)
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`(h)
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`(i)
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`(j)
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`(k)
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`(l)
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`(m)
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`(n)
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`(o)
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`(p)
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`failed to test or analyze (or adequately test or analyze) their products in order to
`ascertain the extent of potential asbestos hazards related therewith;
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`failed to recommend methods, procedures, practices and protocols to prevent or
`minimize exposure to asbestos from the use of or other exposure to their products;
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`misrepresented or failed to disclose that their products contained asbestos or
`otherwise caused, permitted or exacerbated exposure to asbestos, thus denying
`plaintiff and the public of the knowledge required to take necessary safety
`precautions while using or otherwise being exposed to defendants’ products;
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`continued to manufacture products despite knowing of the asbestos-related health
`hazards associated therewith;
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`failed to conduct research that should have been con