Motion for Summary Judgment in MUNSELL, LUCILLE v. ROGERS CORPORATION Et Al| Trellis.Law

On March 22, 2022 a Motion,Ex Parte was filed involving a dispute between Lucille Munsell, and Gte Corporation, Metropolitan Life Insurance Company, Mine Safety Appliances Company, Llc, Rogers Corporation, Special Electric Company, Strathmore Paper Company, Inc., Union Carbide Corporation, for T20 - Torts - Products Liability - Other than Vehicular in the District Court of Fairfield County.

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____________________________________
FBT-CV22-6113987-S : SUPERIOR COURT
:
LUCILLE MUNSELL, executrix of the :
estate of STEPHEN MUNSELL, and :
LUCILLE MUNSELL, individually as : J.D. FAIRFIELD
surviving spouse, : AT BRIDGEPORT
:
Plaintiff, :
:
v. : JANUARY 11, 2023
:
ROGERS CORPORATION, et al., :
:
Defendants. :
____________________________________ :

MINE SAFETY APPLIANCES COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Practice Book § 17-44 et seq., Mine Safety Appliances Company, LLC

(hereinafter “MSA”), hereby moves for summary judgment on all claims asserted against it by

Plaintiff and Cross-Claim Plaintiffs. The claims against MSA relate to an alleged defect in

MSA’s Dustfoe 77 respirator, which defect allegedly caused Stephen Munsell to inhale asbestos

fibers during his employment at Rogers Corporation, and ultimately led to his lung cancer and

asbestosis. MSA moves on the following grounds: (1) Plaintiff has offered no evidence that

Stephen Munsell ever used a Dustfoe 77 respirator; (2) Plaintiff has not identified a specific

defect in the MSA Dustfoe 77 respirator; (3) Plaintiff has not offered evidence that such a defect

permitted Mr. Munsell to breathe in asbestos fibers above the level of protection for respirators

of its type; and (4) Plaintiff has offered no evidence that Mr. Munsell actually inhaled asbestos

fibers while wearing a Dustfoe 77 respirator, or that this alleged exposure caused his injuries.

Given these facts, no reasonable factfinder could find in favor of Plaintiff, and MSA is

entitled to judgment on all claims asserted against it by Plaintiff and Cross-Claim Plaintiffs as a
matter of law. In support of this motion, MSA respectfully submits the attached Memorandum

of Law.

MINE SAFETY APPLIANCES COMPANY, LLC,
By its Attorneys,

/s/ Brad W. Graham
John R. Felice, Juris No. 435040
jfelice@hermesnetburn.com
Brad W. Graham, Juris No. 438439
bgraham@hermesnetburn.com
HERMES, NETBURN, O'CONNOR & SPEARING, P.C.
265 Franklin Street, Seventh Floor
Boston, MA 02110-3113
(617) 728-0050
(617) 728-0052 (Fax)

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was mailed or electronically delivered to
Plaintiffs’ counsel of record, and notice of filing was sent via electronic mail to all defense
counsel on this 11th day of January, 2023.

/s/ Brad W. Graham
Brad W. Graham, Juris No. 438439

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____________________________________
FBT-CV22-6113987-S : SUPERIOR COURT
:
LUCILLE MUNSELL, executrix of the :
estate of STEPHEN MUNSELL, and :
LUCILLE MUNSELL, individually as : J.D. FAIRFIELD
surviving spouse, : AT BRIDGEPORT
:
Plaintiff, :
:
v. : JANUARY 11, 2023
:
ROGERS CORPORATION, et al., :
:
Defendants. :
____________________________________ :

MEMORANDUM OF LAW IN SUPPORT OF MINE SAFETY
APPLIANCES COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Mine Safety Appliances Company, LLC (hereinafter “MSA”), respectfully submits this

memorandum of law in support of its motion for summary judgment on all claims asserted

against it by Plaintiff and Cross-Claim Plaintiffs. Plaintiff has failed to offer, and has no

reasonable expectation of offering at trial, any evidence that Stephen Munsell ever used an MSA

Dustfoe 77 respirator, that the respirator was defectively designed, or that such defect led to

sufficient asbestos exposure to cause his disease. MSA is thus entitled to judgment in its favor

on all claims asserted against it by Plaintiff and Cross-Claim Plaintiffs as a matter of law.

II. FACTUAL BACKGROUND

Plaintiff alleges that Mr. Munsell had lung cancer and asbestosis caused by exposure to

asbestos during his employment at Rogers Corporation from 1951 to 1995. Pl.’s Revised Compl.

¶ 5 (Dkt. 133.00). The only testimony offered regarding Mr. Munsell’s work comes from the
Rogers corporate representative, David Sherman. Mr. Sherman testified that Mr. Munsell

worked as a truck driver in a Rogers warehouse from 1959 to his retirement in 1995, based on

personnel records. Sherman Dep. 54:3-19, relevant portions submitted herewith as Exhibit A.

He also personally recalled Mr. Munsell from the period during which they overlapped at Rogers

from 1989 to 1995. Id. at 13:24-14:8. Mr. Sherman testified that he did not know when Rogers

began issuing respirators to truck drivers such as Mr. Munsell. Id. at 205:22-206:3. He also

confirmed that he had no information that Rogers ever issued Mr. Munsell a Dustfoe 77

respirator. Id. at 206:7-10. Plaintiff has offered no other evidence concerning Mr. Munsell’s

alleged use of a Dustfoe 77 respirator.

III. LAW AND ARGUMENT

A. Summary Judgment Standard

Connecticut Practice Book § 17-49 provides that summary judgment “shall be rendered

forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

Practice Book § 17-49. The party seeking summary judgment has “the burden of showing the

absence of any genuine issue as to all material facts which, under applicable principles of

substantive law, entitle him to a judgment as a matter of law.” Suarez v. Dickmont Plastics

Corp., 229 Conn. 99, 105 (1994). The party opposing the motion for summary judgment, in

turn, “must provide an evidentiary foundation to determine the existence of a genuine issue of

material fact.” Id. Further, a mere allegation of the existence of a genuine issue of material fact

is not enough to counter a motion for summary judgment. Miller v. United Technologies, Inc.,

233 Conn. 733, 745 (1995); Gianetti v. Anthem Blue Cross & Blue Shield of Conn., 111 Conn.

App. 68, 75 (2008). The test used by the courts in ruling on a summary judgment motion is to

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determine whether the moving party would be entitled to a directed verdict if the same set of

facts were presented at trial. Heisinger v. Cleary, 323 Conn. 765, 776 (2016); Connell v.

Colwell, 214 Conn. 242, 247 (1990). A directed verdict properly is rendered when the evidence,

viewed in the light most favorable to the non-moving party, is such that the “trier of fact could

not reasonably reach any other conclusion than that embodied in the verdict as directed.” United

Oil Co. v. Urban Redevelopment Comm., 158 Conn. 364, 380 (1969).

B. Standard for Connecticut Product Liability Claims

Plaintiff’s claims are brought pursuant to the Connecticut Product Liability Act, Conn.

Gen. Stats. §52-572m et seq. (“CPLA”). Pl.’s Revised Compl. ¶ 16 (Dkt. 133.00). The CPLA

only allows for recovery if Plaintiff proves:

(1) the defendant was engaged in the business of selling the product; (2) the
product was in a defective condition unreasonably dangerous to the consumer or
user; (3) the defect caused the injury for which compensation was sought; (4) the
defect existed at the time of the sale; and (5) the product was expected to and did
reach the consumer without substantial change in condition.

Bifolck v. Philip Morris, Inc., 324 Conn. 402, 434 (2016). Moreover, for Plaintiff to be

successful, she must “plead and prove that the product was defective and that the defect was the

proximate cause of the plaintiff’s injuries.” Haesche v. Kissner, 229 Conn. 213, 213 (1994)

(quoting Wierzbicki v. W.W. Grainger, Inc., 20 Conn. App. 332, 334 (1989)).

Plaintiff’s claims against MSA differ from those asserted against other defendants in a

typical asbestos product liability action, because there is no allegation that MSA’s Dustfoe 77

contained asbestos. Instead, Plaintiff is proceeding on the theory that, as a result of a design

defect, the Dustfoe 77 did not adequately protect Mr. Munsell from exposure to asbestos used in

Rogers’s operations. Although the Dustfoe 77 is not an asbestos-containing product – to the

contrary, it is a risk-reducing device that protects users from atmospheric contaminants –

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Plaintiff still needs to satisfy certain elements of traditional asbestos personal injury claims.

Plaintiff must prove that: (1) Mr. Munsell actually used the Dustfoe 77 respirator; (2) the Dustfoe

77 had a specific defect; (3) the specific defect led to asbestos exposure; and (4) this exposure

was a substantial factor in causing the alleged damages. See Cormier v. 3M Corp., No. CV

040409253S, 2005 WL 407587, at *2 (Conn. Super. Ct. Jan. 11, 2005). Expert testimony is

required to establish sufficient exposure. See Bagley v. Adel Wiggins Grp., 327 Conn. 89, 103

(2017) (concluding “that the plaintiff’s case lacked essential expert testimony to prove a vital

fact in support of her negligence and strict liability claims, namely, that respirable asbestos fibers

in a quantity sufficient to cause mesothelioma were released from [the defendant’s product]

when it was used in the manner that it was in the Sikorsky blade shop during the decedent’s

tenure there.”).

C. Plaintiff Has No Evidence That Mr. Munsell Used a Dustfoe 77 Respirator

The most basic element of any product liability claim is proof that the injured party

actually used, or interacted with, the product in question. Plaintiff has failed to offer any

evidence that Mr. Munsell ever wore a Dustfoe 77 respirator. Rogers corporate representative

David Sherman confirmed that he had no information that Rogers ever issued Mr. Munsell a

Dustfoe 77 respirator. Sherman Dep. 206:7-10 (Ex. A). Plaintiff has offered no other

testimonial or documentary evidence concerning Mr. Munsell’s alleged respirator use. Absent

such evidence, Plaintiff cannot prevail on her claims against MSA.

D. Plaintiff Has Failed to Identify a Product Defect

Even assuming Mr. Munsell wore a Dustfoe 77, Plaintiff still must establish that the

Dustfoe 77 “was in a defective condition unreasonably dangerous to” Mr. Munsell. Bifolck, 324

Conn. at 434. Not only has Plaintiff failed to do that, she has not identified any specific

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defective condition. Plaintiff’s Revised Complaint is silent as to any specific defect. The only

sections of the Revised Complaint referencing MSA or its products merely state that MSA made

and sold the Dustfoe 77. See Pl.’s Revised Compl. ¶¶ 3a, 7a (Dkt. 133.00). The only other

statement Plaintiff has made regarding the Dustfoe 77 appears in her disclosure of expert witness

Jerome Spear. Even that disclosure fails to identify a specific defect. It merely states that Mr.

Spear “may testify that the Dustfoe 77 was defectively designed,” without further detail. Pl.’s

Expert Witness Disclosure 49 (Dkt. 134.00) (emphasis added). If Plaintiff cannot even identify a

specific potential defect, she cannot possibly meet her burden of proving an actual “defective

condition unreasonably dangerous to” Mr. Munsell. Bifolck, 324 Conn. at 434. Thus, MSA is

entitled to summary judgment.

E. Plaintiff Cannot Prove a Product Defect Caused Mr. Munsell’s Injuries

Plaintiff also has the burden of proving that a specific product defect resulted in asbestos

exposure, and that this exposure caused Mr. Munsell’s injuries. Bifolck, 324 Conn. at 434; see

Cormier, 2005 WL 407587, at *2. To meet that burden, presumably Plaintiff would be required

to offer evidence of the following, among others:

1. The manner in which Mr. Munsell wore/used the respirator. Plaintiff must show that the

defect – and not misuse, product damage, etc. – resulted in asbestos exposure. See Norrie

v. Heil Co., 203 Conn. 594, 601 (1987); Elliot v. Sears, Roebuck and Co., 30 Conn. App.

664, 670 (1993).

2. The atmospheric conditions during Mr. Munsell’s use of the respirator. Simply wearing a

respirator, even a defective one, does not result in asbestos exposure if there are no

asbestos fibers in the air at the time of use.

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3. The amount of exposure Mr. Munsell experienced as a result of the defect. If the defect

only resulted in de minimis exposure, that would not be considered a substantial factor in

causing his injuries. Cormier, 2005 WL 407587, at *2; see Bagley, 327 Conn. at 103.

Plaintiff has not offered any evidence whatsoever on these issues. Plaintiff’s mere allegations of

defect and causation do not create genuine issues of material fact, and cannot defeat summary

judgment. Miller, 233 Conn. at 745; Gianetti, 111 Conn. App. at 75.

F. Co-Defendants’ Cross-Claims Fail

Various co-defendants in this case have filed cross-claims against MSA seeking

contribution for Plaintiff’s alleged damages pursuant to Conn. Gen. Stat. § 52-572o. In addition,

co-defendants seek equitable contribution for any judgment rendered in Plaintiff’s favor. MSA

repeats the arguments set forth above. For those same reasons, MSA is entitled to summary

judgment on all cross-claims against it.

IV. CONCLUSION

Plaintiff has no evidence that Mr. Munsell ever used a Dustfoe 77, or any other MSA

product. She has not identified a specific design defect in the Dustfoe 77. She has not offered

any evidence to prove that a specific design defect led to Mr. Munsell’s asbestos exposure and

eventual injuries. In light of this lack of evidence, no reasonable factfinder could reach any

conclusion other than a verdict for MSA. Therefore, MSA’s Motion for Summary Judgment

should be granted, and an order awarding summary judgment in its favor on all claims against it

by Plaintiff and Cross-Claim Plaintiffs should be entered.

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MINE SAFETY APPLIANCES COMPANY, LLC,
By its Attorneys,

CERTIFICATE OF SERVICE

/s/ Brad W. Graham
Brad W. Graham, Juris No. 438439

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EXHIBIT A
BACON vs David Sherman
ROGERS CORP 30(b)(6) November 18, 2022

Page 1
Volume 1
Pages 1-216
Exhibits: 1-19

IN RE: ASBESTOS LITIGATION
------------------------------
ASB-FBT-CV22-6114158-S SUPERIOR COURT
J.D. OF FAIRFIELD
AT BRIDGEPORT
------------------------------
WESLEY BACON

vs.

ROGERS CORPORATION, ET AL.
------------------------------
(CAPTIONS CONTINUED NEXT PAGE)

VIDEOTAPED VIDEOCONFERENCE 30(b)(6) DEPOSITION OF
ROGERS CORPORATION BY DAVID C. SHERMAN
Friday, November 18, 2022, 10:04 a.m. Eastern Time

---Reporter: Joan M. Cassidy, CSR, RPR, RMR, CRR---
LEXITAS
508.478.9795 ~ 508.478.0595 Fax
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