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ASB-FBT-CV-22-6113982-S : SUPERIOR COURT
:
THOMAS TOMKO, et al. : J.D. OF FAIRFIELD
:
VS. : AT BRIDGEPORT
:
UNION CARBIDE CORP., et al. : April 12, 2023
PLAINTIFFS’ OBJECTION TO DEFENDANT, ROGERS CORPORATION’S, MOTION
FOR SUMMARY JUDGMENT
TABLE OF CONTENTS:
I. Introduction
II. Legal Standard
A. Summary judgment
B. “Suarez” claims and the Lucenti factors – Exceptions to the exclusivity of the
Workers’ Compensation Act
III. Argument
A. Rogers “intended the act” and knew “that the injury was substantially certain to occur
from the act.”
1. Rogers in its historical context – Rogers knew that asbestos was deadly
2. The Lucenti factors weigh heavily in the plaintiffs’ favor
a. Rogers has “prior similar accidents related to the conduct at issue that
have resulted in employee injury, death, or a near-miss”
b. There was “’deliberate deceit’ on the part of the employer with respect
to the existence of the dangerous condition.”
i. Deleting references to health and safety.
ii. Rogers deceived the workers and withheld vital information.
iii. Rogers intentionally deceived the workers’ representatives.
iv. Rogers intentionally deceived customers and the public.
v. Rogers intentionally deceived regulators.
c. Rogers had “’intentional and persistent’ violations of safety
regulations over a lengthy period of time.”
i. “In general, Rogers Corporation Manchester was a real mess.”
ii. Rogers failed to notify workers about excessive exposures.
iii. Rogers was handling one of the deadliest minerals on the
planet, yet its handling of crocidolite (blue asbestos) was
atrocious.
iv. Rogers failed to have a proper respirator program in
accordance with federal law.
v. Rogers gave workers, including Mr. Tomko, the wrong
respirators.
i. The Dustfoe 77 – an inappropriate respirator.
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ii. Improper respiratory protection.
vi. Rogers persisted in using dry sweeping to clean up asbestos
dust.
vii. Rogers’s housekeeping and asbestos bag disposal remained
persistent problems.
d. Rogers’s many safety violations can be broadly categorized as
“affirmative disabling of safety devices.”
B. The Suarez exceptions to the workers’ compensation exclusivity provision apply in
cases of “occupational disease.”
IV. Conclusion: Genuine issues of material fact remain.
I. Introduction.
This “Suarez claim” against the defendant-employer, Rogers Corporation (“Rogers”),
seeks to hold Rogers liable for the plaintiff-employee, Thomas Tomko’s, malignant
mesothelioma, caused by Rogers’s intentional conduct under the exceptions to the exclusivity
provision of the Workers’ Compensation Act.
Mr. Tomko worked as the plant maintenance electrician at Rogers Corporation in
Manchester, CT from June 25, 1973 through January 21, 1977. Tomko depo, 4/7/22, at 73-74
(Ex. 102); Tomko personnel file, at 1 (Ex. 116).
By the time Mr. Tomko started work in 1973, Rogers Corporation was operating two
plants in Connecticut, one in Manchester and one in the village of Rogers (part of the town of
Killingly). The Manchester plant had four main production departments operating under the
same roof: Matrix board (a/k/a “the paper side”), which made a compressed paperboard product
for the printing industry and used chrysotile (white asbestos); Extrusion, which made phenolic
molding compounds (a type of industrial plastic) and used both chrysotile and crocidolite (blue
asbestos); GLP, which also made phenolics and used chrysotile; and DAP, which made non-
phenolic molding compounds. Sherman depo (Dusto case), 3/11/21, at 18-19 (Ex. 2); Sherman
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depo (Gough case), 9/17/15, at 26, 30-31 (Ex. 5). The Manchester plant handled asbestos from
1936 to 1991.
Rogers’s workers handled thousands of tons of raw asbestos fiber in 50- and 100-pound
bags for 55 years in its manufacturing process. The earliest air sampling in the factory revealed
exposure levels as high as 140 times the exposure limit that was in effect at the time (and 7,000
times the modern limit).1 Rogers persistently, egregiously, and intentionally violated
occupational safety and health regulations, actively deceived employees and union
representatives, withheld crucial information from workers and customers, routinely exceeded
exposure limits for asbestos, and failed to notify workers of excessive exposures. In the words of
the first industrial hygienist to visit the factory in January of 1972: “In general, Rogers
Corporation Manchester was a real mess. Their housekeeping and attitude of the foremen as
well as the hourly people left a lot to be desired [in] the area of environmental control.” Johns-
Manville docs, at 175 (Ex. 6). In the milling area: “very poor housekeeping. . . . very dusty.”
Id. at 175. In the extrusion department: “General housekeeping poor. Ripped bags of blue fiber
as well as other raw materials. Floor, ceiling, and rafters very dirty.” Id. at 177 (emphasis in
original).
Rogers Corporation was a disaster. A total mess. A death trap. And the death trap
worked. It ensnared workers like Thomas Tomko (mesothelioma), Harold Dusto
(mesothelioma), Frank Bujaucius (mesothelioma), Roland Spearin (mesothelioma), William Lisk
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The Occupational Safety and Health Administration first published a permissible exposure limit for asbestos of 12
fibers/cc (or 2 million particles per cubic foot) in May of 1971. 29 C.F.R. § 1910 (May 29, 1971). Quickly
realizing that that limit was too high, OSHA issued a temporary emergency standard of 5 f/cc in December of 1971.
29 C.F.R. § 1910 (Dec. 7, 1971). That standard was made permanent in July of 1972 and remained in effect until
July 1976 when OSHA further reduced the standard to 2 f/cc. 29 C.F.R. § 1910 (Jun. 7, 1972). OSHA again
reduced the standard to 0.2 f/cc in 1986 and, finally, to the current limit of 0.1 f/cc in 1994, which was perceived at
the time to be the practical limit of light microscope counting techniques. 29 C.F.R. § 1910 (Jun. 20, 1986); 29
C.F.R. § 1910 (Aug. 10, 1994) (“The 0.1 f/cc level leaves a remaining significant risk. . . . OSHA believes this is the
practical lower limit of feasibility for measuring asbestos levels reliably”).
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(mesothelioma), Doris Hand (mesothelioma), Stephen Munsell (asbestosis and lung cancer),
Lloyd MacVane (asbestosis), Robert Jones (asbestosis), Donald Wilsey (asbestosis), and others.
Rogers knew this was going to happen. The epidemic of asbestos-related disease that has
occurred among its plantworkers was no accident. It was the inevitable outcome of years of
egregious, intentional conduct.
II. Legal standard.
A. Summary judgment.
A motion for summary judgment is appropriate only when the “pleadings, affidavits and
any other proof submitted show that there is no genuine issue of material facts and that the
moving party is entitled to judgment as a matter of law. Suarez v. Dickmont Plastics Corp., 229
Conn. 99, 105, 639 A.2d 507 (1994). . . . [Practice Book § 17-49.] A material fact is one that
will make a difference in the result of the case. Cummings & Lockwood v. Gray, 26 Conn. App.
293, 297, 600 A.2d 1040 (1991) . . . . ‘Issue of fact’ encompasses not only evidentiary facts in
issue but also questions as to how the trier would characterize such evidentiary facts and what
inferences and conclusions it would draw from them. [United Oil Co. v. Urban Redevelopment
Comm’n, 158 Conn. 364, 379, 260 A.2d 596 (1969)]. . . . The party seeking summary judgment
bears the burden of showing the nonexistence of any material fact. Cummings & Lockwood, 26
Conn. App. at 297. In deciding a motion for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving party. Scrapchansky v. Plainfield, 226
Conn. 446, 450, 627 A.2d 1329 (1993).” Belch v. Hartford Fire Insurance Co., Superior Court,
J.D. of Hartford-New Britain at Hartford, No. CV930523270 (12/6/94) (Sheldon, J.) (internal
quotation marks omitted). “The party seeking summary judgment has the burden of showing the
absence of any genuine issue as to all material facts . . . and the party opposing such a motion
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must provide an evidentiary foundation to demonstrate the existence of a genuine issue of
material fact. . . .” United Service Automobile Ass’n v. Marburg, 46 Conn. App. 99, 103, 698
A.2d 914 (1997) (emphasis added) (citations omitted).
B. “Suarez claims” and the Lucenti factors – Exceptions to the exclusivity
of the Workers’ Compensation Act.
Employers are normally immune from civil litigation brought by employees who are
injured in the course of their employment – the so-called “exclusivity provision” of the Workers’
Compensation Act. Conn. Gen. Stat. § 31-284(a). An employee’s only recourse against his or
her employer is to file a workers’ compensation claim and to pursue certain statutory benefits.
Our Supreme Court, however, has carved out exceptions to this general rule for “intentional”
injuries:
[T]o escape the exclusivity of the act, the victim of an intentional injury must rely
on the intended tort theory or the substantial certainty theory. Under the
former, the actor must have intended both the act itself and the injurious
consequences of the act. Under the latter, the actor must have intended the
act and have known that the injury was substantially certain to occur from
the act.
Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280 (1997) (emphasis added).
“[S]atisfaction of the substantial certainty exception requires a showing of the employer’s
subjective intent to engage in activity that it knows bears a substantial certainty of injury
to its employees.” Lucenti v. Laviero, 327 Conn. 764, 779 (2018).
In Lucenti, our Supreme Court favorably cited and analyzed New Jersey law on
“substantial certainty.” Lucenti, 327 Conn. at 780-786. The Court found New Jersey’s
conduct/context analysis persuasive and listed four non-exclusive factors for courts to consider
when evaluating an employer’s conduct under the conduct prong: 1) “prior similar accidents
related to the conduct at issue that have resulted in employee injury, death, or a near-miss;” 2)
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“’deliberate deceit’ on the part of the employer with respect to the existence of the dangerous
condition;” 3) “’intentional and persistent’ violations of safety regulations over a lengthy period
of time;” and 4) “affirmative disabling of safety devices.” Id. at 782. In dicta, the Supreme
Court explained that the context prong analyzes “as a matter of law [whether] an employee’s
injury and the circumstances in which the injury is inflicted are plainly beyond anything the
legislature could have contemplated as entitling the employee to recover only under [the Act].”
Id. at 781, n.7 (quoting Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449, 473
(2012)).
III. Argument.
An employer is responsible for the health and safety of its employees. When an
employee is injured in the course of his or her employment, the employee’s exclusive remedy is
to file a claim pursuant to the Workers’ Compensation Act (“the Act”). Conn. Gen. Stat. § 31-
284(a). However, there are exceptions to the exclusivity provision of the Act that apply in the
present case. Our Supreme Court has held that exceptions exist when a plaintiff-employee can
establish that the employer either:
1) actually intended to injure the employee (commonly referred to as the actual
intent standard); or
2) when the employer intentionally created a dangerous condition that the
employer believed would make the employee’s injuries substantially certain to
occur (commonly referred to as the substantial certainty standard).
As shown below, Rogers intentionally created a dangerous condition that it knew would
make its employees’ injuries substantially certain to occur. Viewing the evidence in a
light most favorable to the plaintiffs, a reasonable trier of fact could conclude that
Rogers:
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1. intentionally deceived workers by telling them that asbestos was only a
“nuisance dust;”
2. intentionally deceived the workers’ union representatives to cover up
OSHA violations and hazardous conditions;
3. intentionally deceived regulators;
4. knew by 1960 that asbestos was a serious health hazard but actively
participated in a scheme to suppress knowledge of the hazard;
5. intentionally deceived customers about its own effort and ability to control
asbestos exposures in its plants;
6. intentionally failed to comply with federal law, which required that Rogers
notify employees of over-exposures;
7. intentionally failed to enforce occupational safety standards that were
specifically meant to safeguard against the hazards of asbestos;
8. intentionally ignored damning information about asbestos and
mesothelioma hazards obtained over a period of years from various
sources;
9. “was a real mess.”
The staggering incidence of asbestos-related disease among Rogers’s workforce is
not just a testament to Rogers’s many failures, but also a strong indicator that this
outcome was inevitable. Rogers knew to a substantial certainty that its workers would be
here someday. Thomas Tomko’s mesothelioma was not an accident and Rogers’s
conduct over a period of years was not accidental. Thomas Tomko is the inevitable
outcome of Rogers’s active deceptions and callous disregard for its workers. The totality
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of the circumstances so obviously and intentionally created a danger to the employees
“that the employer cannot be believed if it denies that it knew the consequences were
certain to follow.” Lucenti, 327 Conn. at 790 (quoting Sorban v. Sterling Engineering
Corp., 79 Conn. App. 444, 455 (2003)) (internal quotation marks omitted).
A. Rogers “intended the act” and knew “that the injury was substantially certain
to occur from the act.”
It cannot be reasonably disputed that Rogers “intended the act.” From 1936 to
1991, the defendant was an asbestos product manufacturer, importing thousands of tons
of raw asbestos fiber, warehousing asbestos, handling asbestos, transporting asbestos,
using asbestos in extensive manufacturing operations, disposing of asbestos, and
employing workers whose jobs directly involved those activities. Sherman depo (Dusto
case), 3/11/21, at 110-111 (Ex. 2). Surviving air sampling from the factory includes over
500 personal and area samples (strikingly, however, none of Mr. Tomko himself),
demonstrating the entirely predictable, widespread contamination of every nook and
cranny of the Rogers operation. The air sampling repeatedly confirmed employee
exposures during their normal and intended job functions. Rogers knew and understood
that its workers were working directly with asbestos as part of their normal and intended
job functions, and it knew that those workers were being exposed to asbestos at
exceedingly dangerous levels.
The pivotal question for the Court is whether the legal standard requires that the
defendant knew to a substantial certainty that Thomas Tomko would get sick, or whether the
defendant knew to a substantial certainty that one or more of its workers would get sick. The
plaintiffs assert that it must be the latter. If it were the former, no plaintiff in any toxic tort case
would ever be able to meet the threshold. In any population of workers who are exposed to toxic
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substances, it is impossible to predict which workers will get sick, but it is entirely predictable
and knowable that some proportion of those workers will get sick. This was particularly true in
the case of asbestos in the 1970s, and even more so with the extremely potent blue asbestos –
crocidolite – that Rogers was using throughout this period.
Rogers Corporation had all the information it needed before Thomas Tomko ever stepped
foot in the Manchester factory. Rogers knew that asbestos was hazardous, that asbestos could
kill, that mesothelioma was a fatal asbestos-induced cancer, that even “slight” exposures could
cause fatal disease, that there were recommended exposure limits intended to reduce or eliminate
disease in exposed workers, that there were numerous engineering controls that could and should
be used to reduce worker exposures, and that there were impending regulations that would force
its hand. Rogers knew about contemporary, well known, peer-reviewed scientific publications
documenting the stubborn, persistent, predictable death toll among asbestos workers. Rogers has
stated, in its own words, that a company should use “exhaustive efforts” to research potential
health hazards and that “Rogers has an obligation to understand the health hazards of the
products that it uses.” Sherman depo (Dusto case), 3/11/21, at 131 (Ex. 2). Rogers failed to
even live up to its own standards.
1. Rogers in its historical context – Rogers knew that asbestos was deadly.
In 1957 (sixteen years before Thomas Tomko started work at Rogers), Rogers was noted
as attending a meeting of the Asbestos Technical and Standards Committee of the Society of the
Plastics Industry (“SPI”), an industry trade group. SPI Minutes, 7/19/57 (Ex. 7). Along with
other giants of the asbestos industry such as Raybestos-Manhattan, Johns-Manville (one of
Rogers’s significant asbestos suppliers), and North American Asbestos Corporation (another of
Rogers’s significant asbestos suppliers), the Committee discussed its goals and intentions,
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including obtaining information from the Asbestos Textile Institute (“ATI”) about “the types and
grades of asbestos,” obtaining “all published data on present forms of asbestos through the ATI
and leading companies in the field,” and bringing together “various companies in the asbestos
field [to] educate one another.” Id. at 178. The meeting minutes note that “the Committee could
keep itself apprised of the various specifications on asbestos, not only those which exist in the
United States but those from abroad, such as Great Britain.” Id. Rogers agrees that it had the
ability and the wherewithal to research the health hazards of asbestos in 1957 if it wanted to do
that. Sherman depo (Dusto case), 3/11/21, at 131 (Ex. 2).
By 1960 (thirteen years before Thomas Tomko started work at Rogers), Rogers expressly
learned that asbestos was hazardous. The Asbestos Committee of the SPI had researched and
prepared a Draft Bulletin containing various information about asbestos that it intended to
disseminate to the plastics industry. SPI Draft Bulletin (Ex. 8). The Draft Bulletin had a section
entitled “Health and Safety Factors,” which provided information about the health hazard of
asbestos, methods to control the problem, precautions for workers, and the importance of
controlling exposure. Id. at 16. Rogers knew from this information that asbestos could
contaminate the air; that it caused “hygienic problems” in the asbestos industry; that asbestos
dust could be harmful to people who were exposed to it; that asbestosis was a disease caused by
asbestos; that protective measures were necessary to safeguard workers; that the “passage of the
dust into lungs through the respiratory system is dangerous,” and that “[i]t is important that
proper precautions be taken by all companies which handle asbestos.” Id. at 16.
At its meeting on November 28, 1960, the Asbestos Committee of the SPI, again with
Rogers present, discussed the Draft Bulletin, suggested changes, and “[t]he Committee also
deleted all references to health and safety factors.” SPI Minutes, 11/28/60 (emphasis added) (Ex.
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9). The final version of the bulletin was bereft of any information on “Health and Safety
Factors.” Final Bulletin (Ex. 10).
In 1961 (twelve years before Thomas Tomko started work at Rogers), the State of
Connecticut adopted a threshold limit value for asbestos, capping exposures at 5 mppcf. 1961
Public Health Code, § 281 (Ex. 104). Rogers was subject to this law, but (as shown below)
Rogers never did any air sampling before 1972.
In 1968 (five years before Thomas Tomko started work at Rogers), one of Rogers’s
asbestos fiber suppliers, Johns-Manville, wrote to the company and provided important
information. 1968 letter from Johns-Manville (Ex. 11). First, it provided a copy of Paul
Brodeur’s opus, The Magic Mineral, from a recent edition of The New Yorker. The Magic
Mineral (Ex. 12). Second, it alerted Rogers about measures needed to be taken to control dust
and about the selection of appropriate respirators for workers, including the then-governing
federal regulation. Third, it explained that “[t]he best precaution is mechanical dust control
equipment designed to maintain the airborne concentration of asbestos fibers below the
Threshold Limit Value established by the American Conference of Governmental Industrial
Hygienists [‘ACGIH’],” and it explained that the newly proposed TLV for asbestos was 2
million particles per cubic foot or 12 fibers per cc.” Fourth, it provided resources for Rogers to
learn more about these issues, including information about measurement techniques, literature
from the U.S. Public Health Service, and information from the Department of Health, Education
and Welfare’s Occupational Health Program. Finally, it notified Rogers that “[a] competent,
experienced dust control engineer should be employed by your concern to design the dust control
system, including the hoods, duct work, fan and collector. It is essential that your dust control
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system employ a high efficiency dust collector to prevent external atmospheric dust
contamination.”
The Magic Mineral, published in October 1968, was a definitive exposé on the history of
asbestos and the contemporary scientific study of asbestos-related diseases, including
mesothelioma.2 The Magic Mineral (Ex. 12). If it didn’t before, Rogers now knew that
“[m]odern knowledge of asbestosis dates from the year 1900.” Id. at 124. Rogers knew that “the
first clear case of death due to asbestosis appeared in medical literature” in 1924. Id. at 126.
Rogers read about the pioneer, Dr. Merewether, in England in the 1920s and how “slightly more
than twenty-five percent [of asbestos textile workers] showed evidence of suffering from
pulmonary fibrosis” and how that number “increased in direct proportion to the number of years
of exposure, reaching eighty-one percent in the group of workers who had been employed in the
industry for twenty years or more.” Id. at 126. Dr. Merewether’s work resulted in Parliament
passing “legislation in 1931 that made asbestosis a compensable disease, required improved
methods of exhaust ventilation and dust suppression in asbestos-textile factories, and instituted
periodical medical examinations for workers engaged in particularly dusty processes in the
asbestos-textile industry.” Id. at 126. Rogers learned about the first published association
between asbestosis and cancer in 1935 and about the definitive link proven between asbestos and
lung cancer in 1955. Id. at 131-32. Rogers read about “[t]he most dramatic development [being]
the discovery of an association between exposure to asbestos and mesothelioma,” including
peritoneal mesothelioma. Id. at 132. Rogers read about the groundbreaking research of Dr.
2
Even the defendant’s expert, Dr. Christy Barlow, has cited to The Magic Mineral (and other work by Paul
Brodeur) in her own peer reviewed research. Barlow et al. 2017, at 15-16 (Ex. 13); Barlow depo (Dusto case),
7/16/21, at 390-391, 407 (Ex. 14). The plaintiffs’ expert, Dr. Barry Castleman, has previously testified: “Paul
Brodeur’s article in the New Yorker had a tremendous effect nationwide on the asbestos industry.” Castleman depo
(Dusto case), 7/31/20, at 52-54 (Ex. 15).
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Chris Wagner, who identified a significant connection between crocidolite exposure and
mesothelioma in South Africa, many cases appearing in people who never worked in the mines
or mills and in situations where “the actual exposure appeared to have been slight.” Id. at 134-
37 (emphasis added). The article noted that “Wagner drew the chilling conclusion that
mesothelioma might result from an exposure to asbestos dust that was considerably less than that
needed to produce fibrosis.” Id. at 137. Rogers saw summaries of the seminal work of
researchers in Finland, South Africa, London and Pennsylvania. Id. at 137-38. Rogers read
about the international conference on asbestos held in New York City in 1964 sponsored by the
New York Academy of Sciences,3 and it saw a complete rundown of the pioneering work of Dr.
Irving Selikoff at Mount Sinai.4 Id. at 140-165.
Following the letter from Johns-Manville, Rogers knew about the ACGIH threshold limit
values. ACGIH had been publishing TLVs to guide industry, industrial hygienists and public
health workers for decades, including an asbestos TLV of 5 mppcf5 published and republished in
1958, 1962, 1966 and 1968. 1958 ACGIH TLV (Ex. 16); 1962 ACGIH TLV (Ex. 17); 1966
ACGIH TLV (Ex. 18); 1968 ACGIH TLV (Ex. 19). The 1968 TLV remained at 5 mppcf but, as
highlighted by Manville in its letter, there was a Notice of Intended Change, intending to reduce
the TLV to 2 mppcf or 12 fibers/cc (which was later codified as the first OSHA exposure limit).
3
The defendant’s expert, Dr. Christy Barlow, has called this conference a “landmark conference” that brought
“[p]hysicians, scientists, industrial and union representatives, and public health officials from around the world . . .
to discuss the accumulating knowledge linking occupational exposure to asbestos with various diseases.” Barlow et
al. 2017, at 13 (Ex. 13); Barlow depo (Dusto case), 7/16/21, at 380-382, 427 (Ex. 14). See also Castleman depo
(Dusto case), 7/31/20, at 19-20, 51 (Ex. 15).
4
The defendant’s expert, Dr. Christy Barlow, has noted the importance and widespread dissemination of Dr.
Selikoff’s work at the time, including coverage in the New York Times. Barlow et al. 2017, at 13-14 (Ex. 13);
Barlow depo (Dusto case), 7/16/21, at 380-383 (Ex. 14). See also Castleman depo (Dusto case), 7/31/20, at 19-22
(Ex. 15).
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Dust counts were originally taken using a device called a midget impinger, which reported results in millions of
particles of dust per cubic foot of air (expressed as “mppcf”). The more modern method (since the late 1960s and
the subsequent advent of OSHA) uses a membrane filter method and counts fibers per cubic centimeter of air
(expressed as fibers/cc or f/cc). Membrane filter results are also sometimes reported as fibers per milliliter of air
(f/ml), which is equivalent to f/cc.
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The Notice of Intent released by ACGIH at that time stated: “Crocidolite, however, has been
shown to produce, in addition to the asbestotic inflammation, also mesothelioma. Since no safe
limit can be established for this form of asbestos at this time, until more definitive data are
obtained, it is recommended that workers exposed to crocidolite be equipped with air-supplied
helmets.” 1968 Notice of Intent (emphasis added) (Ex. 20). Rogers never took any additional
precautions when handling crocidolite and it never gave its workers air-supplied helmets.
Sherman depo (Dusto case), 3/11/21, at 208 (Ex. 2); Sherman depo (Dusto case), 3/12/21, at 308-
309 (Ex. 21).
Following the letter from Johns-Manville, Rogers knew about the contemporary research
of Dr. Selikoff, which was discussed at length in The Magic Mineral. In 1964, Dr. Selikoff’s
team published “Asbestos Exposure and Neoplasia” in the Journal of the American Medical
Association, which reported 3 mesothelioma deaths and 12 asbestosis deaths among 255 total
deaths (5.9%) in a cohort of asbestos insulation workers (not including one additional case of
peritoneal mesothelioma that was reported in the paper but not included in the official count).
Selikoff et al. 1964 (Ex. 22). In 1965, Dr. Selikoff’s team published “Relation Between
Exposure to Asbestos and Mesothelioma” in The New England Journal of Medicine, which
reported 10 mesothelioma deaths and 17 asbestosis deaths among 307 total deaths (8.8%) in
another cohort of asbestos insulation workers. Selikoff et al. 1965 (Ex. 23). A cursory review of
the literature at that time would have revealed an important paper by Mancuso and Coulter
published in 1963 in Archives of Environmental Health, which reported 4 mesothelioma deaths
(all peritoneal) and 28 asbestosis deaths among 186 total deaths (17.2%) in a cohort of asbestos
factory workers. Mancuso and Coulter 1963 (Ex. 24). From Merewether in the 1920s to
Selikoff in the 1960s, there was a consistent thread that revealed a persistent, predictable,
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quantifiable death toll among asbestos workers. See Castleman depo (Dusto case), 7/31/20, at
97-100 (“these studies showed time and again that, as in other parts of the world, people who
worked in asbestos factories or who worked with asbestos products on a regular basis were at
risk of developing an extraordinary incidence of mesothelioma and quite an excess rate of cancer
of the lung as a consequence of their exposure, as well as asbestosis causing deaths as well”)
(Ex. 15).
Any reasonable observer would have seen that asbestos was consistently killing some
predictable percentage of workers exposed to the deadly material, even when exposures were
“slight.” Put another way, it was a “substantial certainty” that a predictable percentage of
exposed workers would die. Rogers was literally handed the necessary information and
resources to understand all of this.
The correspondence with Johns-Manville and The Magic Mineral provided Rogers with
everything it needed, giving Rogers a concise summary of asbestos history, science, medicine,
regulations and hazards that had been compiled by leading experts up to that point in time.
Given Rogers’s history with the SPI a decade earlier, it is entirely likely that Rogers knew much
of this information already, but the 1968 Manville letter and The Magic Mineral provide
irrefutable proof that Rogers was given all the information it needed to take action to protect its
workers, and it knew that fatal asbestos-related disease nipped at the heels of its employees (and,
in particular, those exposed to crocidolite).
In 1970 (three years before Thomas Tomko started work at Rogers), the Williams-Steiger
Occupational Safety and Health Act became law, creating the Occupational Safety and Health
Administration (“OSHA”). It is inconceivable that Rogers was unaware of the passage of this
groundbreaking new law that would undoubtedly affect Rogers and its entire industrial sector.
15
In May of 1971 (two years before Thomas Tomko started work at Rogers), OSHA
published its first permissible exposure limit (“PEL”) for asbestos of 12 f/cc, which was based on
the pre-existing ACGIH threshold limit value (2 mppcf or 12 f/cc). Quickly realizing the PEL
was too high, in December of that year OSHA promulgated an Emergency Standard for
Exposure to Asbestos Dust, reducing the PEL to 5 f/cc and capping short-term exposures at 10
f/cc. 29 C.F.R. 1910 (Dec. 7, 1971) (Ex. 26). OSHA explained:
In light of increasing information on the results of exposure of employees
to airborne asbestos dust, including recent studies by the National Institute for
Occupational Safety and Health and others, and recommendations by the
American Conference of Governmental Industrial Hygienists (ACGIH), it is
hereby determined that (1) exposure under the present standard for asbestos dust .
. . of 12 fibers per milliliter or 2 million particles per cubic foot of air . . .
constitutes a grave danger to employees exposed to this 8-hour time-weighted
average concentration; and that (2) . . . an emergency standard is necessary to
protect employees from this excessive exposure.
Id. (emphasis added). Rogers concedes, as it must, that it was aware of these regulations at the
time that they became federal law. The new regulations applied directly to Rogers’s factories
and Rogers was obligated to comply with these new federal laws. Sherman depo (Dusto case),
3/11/21, at 213, 217, 219-220 (Ex. 2).
In June of 1971, after the first OSHA PEL in May and before the Emergency Standard in
December, Johns-Manville again wrote to Rogers. 1971 letter from Johns-Manville (Ex. 27).
Manville explained that the new OSHA law “will require that the airborne levels of asbestos
fiber be below the established Threshold Limit Value,” which it reiterated was established under
prior federal law at 12 f/cc or 2 mppcf, and, in anticipating the December Emergency Standard,
noted it “is expected that shortly” the standard would be reduced to 5 f/cc. Echoing the
admonitions from its 1968 letter, Manville told Rogers: “An industrial hygiene survey using
proper measurement techniques is necessary to determine if the various workplaces in your
16
concern comply with standards.” Manville then offered the services of its Industrial Hygiene
Engineering Services Department to help Rogers conduct such a survey of its operations.
Rogers took Manville up on the offer and conducted its first-ever asbestos dust survey in
January of 1972, which yielded disturbing results. Of the 27 samples taken using the modern
method (f/cc), 9 (33%) exceeded the OSHA PEL of 5 f/cc and 3 exceeded the OSHA Ceiling
Limit of 10 f/cc (11%), including an area sample during a crocidolite operation measured at
“40.0+” where the operator in the area was listed as not wearing a mask. Johns-Manville docs, at
93, 170-171 (Ex. 6). The average of all 27 samples was 5.8 f/cc, which was over the OSHA
PEL. Of the 27 samples taken using the older method (mppcf), 25 (93%) exceeded the TLV of 2
mppcf. Johns-Manville docs, at 181-182 (Ex. 6). The average of all 27 samples was 9.2 mppcf,
well over the TLV of 2 mppcf.
In July of 1972 (less than a year before Thomas Tomko started work at Rogers), OSHA
made permanent the 5 f/cc PEL and the 10 f/cc Ceiling Limit and mandated a future reduction of
the PEL to 2 f/cc by July 1, 1976. 29 C.F.R. 1910 (Jun. 7, 1972) (Ex. 28). OSHA explained:
In view of the undisputed grave consequences from exposure to asbestos
fibers, it is essential that the exposure be regulated now, on the basis of the best
evidence available now, even though it may not be as good as scientifically
desirable. An asbestos standard can be re-evaluated in the light of the results of
ongoing studies, and future studies, but cannot wait for them. Lives of employees
are at stake.
It is concluded that there should be one minimum standard of exposure to
asbestos applicable to all workplaces exposed to any kind, or mixture of kinds, of
asbestos. Reasons of practical administration preclude a variety of standards for
different kinds of asbestos and of workplaces. Also, while the evidence tends to
show that crocidolite, for instance, is more harmful than chrysotile, the evidence
is not sufficient to establish separate standards for varieties of asbestos.
***
[I]t appears that levels of exposure which may be safe with regard to
asbestosis are not safe with regard to mesothelioma.
17
Id. (emphasis added). Asbestos was dangerous, it was to be taken deadly serious, and lives of
employees were at stake. Rogers knew this. They had to know it. It was federal law. They
concede as much. Sherman depo (Dusto case), 3/11/21, at 213, 217, 219-220 (Ex. 2).
In 1976 (three years into Thomas Tomko’s employment and well after the OSHA
asbestos regulations were in place), the National Institute for Occupational Safety and Health
(“NIOSH”) concisely summarized the historical research and the then-current state of
knowledge. 1976 Revised Recommended Asbestos Standard (Ex. 29). NIOSH noted that
epidemiological studies of asbestos-exposed workers reported cases of mesothelioma “with
exposures as brief as 1 day.” Id. at 32 (emphasis added). NIOSH cited a number of studies in
the published literature: “Among a number of occupationally exposed groups studied,
approximately 5-7% of deaths have been from mesothelioma. More recently, however, an
estimate has projected that 11% of asbestos workers’ deaths in England will be from
mesotheliomas.” Id. at 32. The 127 references cited by NIOSH were a veritable encyclopedia of
the seminal asbestos health studies dating back to the 1920s, including the work of Drs. Selikoff,
Doll, Newhouse and Thompson, Wagner, Kiviluoto, Mancuso and Coulter, McDonald, and
many others. Id. at 43-52. Any reasonable person would have concluded that it was a
“substantial certainty” that some percentage of Rogers’s workers would develop asbestos-related
disease.
By 1978, researchers studying the effects of crocidolite exposure in a cohort of Canadian
factory workers had concluded that “the continued use of crocidolite would appear difficult to
justify except under the strictest possible control.” McDonald and McDonald 1978, at 345 (Ex.
30). They found that “mesothelioma clearly occurred after very short total exposures to asbestos
– not more than 3 years in 6 of the 9 cases and only 4 and 6 months in two cases.” Id. at 345.
18
Nine of the fifty-six deaths (16%) in that factory were from mesothelioma. Id. at 342. Rogers
continued using crocidolite and selling crocidolite-containing products for four more years.
Sherman depo (Dusto case), 3/11/21, at 29 (Ex. 2); Sherman depo (Dusto case), 3/12/21, at 486-
487 (Ex. 21).
Rogers acknowledged much of this information after-the-fact in 1979 when it submitted a
commentary to the State of Connecticut to lobby against newly proposed asbestos emission
standards. 1979 Commentary (Ex. 31). Rogers noted the unique hazard posed by crocidolite:
“To be sure, asbestos, and especially the variety crocidolite, has been factually associated with
the development of human mesothelioma.” Id. at 3. Rogers noted the industry’s early
knowledge about recommended exposure limits: “It is well known that the first recommendation
for limiting occupational exposure to asbestos was made in 1938 by the U.S. Public Health
Service. This recommendation wasn’t generally accepted until 1964 and wasn’t mandated until
the passage of the Occupational Safety and Health Act of 1970.” Id. at 5. Rogers acknowledged
that “no threshold level has been found, below which asbestos does not create lung cancer.” Id.
at 7. Rogers continued using crocidolite and selling crocidolite-containing products for three
more years, and chrysotile and chrysotile-containing products for over a decade.
2. The Lucenti factors weigh heavily in the plaintiffs’ favor.
As noted above, our Supreme Court has endorsed four non-exclusive factors to consider
when weighing “substantial certainty” claims. Viewing the evidence in a light most favorable to
the plaintiffs, Rogers’s conduct satisfies all of these factors. The totality of the circumstances so
obviously and intentionally created a danger to the employees “that the employer cannot be
believed if it denies that it knew the consequences were certain to follow.” Lucenti, 327 Conn. at
19
790 (quoting Sorban v. Sterling Engineering Corp., 79 Conn. App. 444, 455 (2003)) (internal
quotation marks omitted).
a. Rogers has “prior similar accidents related to the conduct at
issue that have resulted in employee injury, death, or a near-
miss.”
Rogers unquestionably has “prior similar accidents related to the conduct at issue.” As
noted above, there is a staggeringly high incidence of asbestos-related disease, including
mesothelioma, in the Rogers workforce. Through discovery in this and other cases, Rogers has
produced a list of workers’ compensation claims brought against it for asbestos-related disease.
Rogers workers’ comp list (Ex. 32). That list includes six mesothelioma cases and twenty-four
asbestosis cases, among others.6 And we know that the overall list of asbestos-related disease is
not complete. It does not include Thomas Tomko’s or Harold Dusto’s recent diagnoses with
mesothelioma (bringing the mesothelioma total to eight). It lists Saul Ahola as asbestosis, but
Mr. Ahola died from mesothelioma (bringing the mesothelioma total to nine). Ahola records
(Ex. 34). It lists William Lisk as a pleural effusion, but Mr. Lisk died from mesothelioma
(bringing the mesothelioma total to ten). Lisk death certificate (Ex. 35). It lists Lloyd MacVane
as “unknown,” but Mr. MacVane’s death certificate lists “asbestos exposure” as a significant
condition contributing to his death and his medical records note a history of asbestosis (bringing
the asbestosis total to twenty-five). MacVane records (Ex. 36). It lists Robert Jones as
6
Rogers may argue that the list includes two different factories – one in Manchester, CT and one in Rogers, CT –
but the two factories handled asbestos in similar ways, including receiving the asbestos in bags and dumping the
asbestos into mixing devices. The differences in end-products being made at the two plants is irrelevant. Both
factories used the same types of asbestos – chrysotile and crocidolite. Both factories had high exposure levels, and
both factories had virtually identical OSHA, housekeeping and respirator problems. See, e.g., Rogers Plant Air
Survey, 11/10/72 (Ex. 33). Johns-Manville even felt that the two operations were substantially similar. Johns-
Manville docs, at 155 (Ex. 6) (“In regard to asbestos emissions at your Rogers Plant, I looked at the operation with
Dennis Harmyk and being as this set up is similar to the conditions at Manchester, I would recommend we see what
these test results show”). Even if the cases from Rogers, CT were excluded, the list would still include 10 cases
from Manchester, including two cases of mesothelioma.
20
“unknown”, but Mr. Jones had asbestosis (bringing the asbestosis total to twenty-six). Jones
depo, 6/17/96 (Ex. 37). It fails to list Donald Wilsey at all, but Mr. Wilsey died from asbestosis
(bringing the asbestosis total to twenty-seven). Wilsey records (Ex. 38). Likewise, it fails to list
Donald Duley, who died from mesothelioma (bringing the mesothelioma total to eleven). Duley
records (Ex. 25). See also Christiani Report (Dusto case), at 11 (Ex. 39) (“The epidemiological
context for mesothelioma reveals 5 known cases of this usually rare disease among the Rogers
Corporation Manchester plant; an extraordinarily elevated prevalence”); Dr. Finkelstein Report
(Dusto case), at 7 (Ex. 40) (“[Rogers] would have known that a certain percentage of their
workforce were probably going to develop one or more asbestos diseases. This has come to pass
with the diagnosis of asbestosis and mesothelioma among their employees”).
b. There was “’deliberate deceit’ on the part of the employer with
respect to the existence of the dangerous condition.”
Rogers engaged in “deliberate deceit” with respect to the existence of the dangerous
conditions in its plant and with respect to the health hazards of asbestos. This intentional pattern
of deception continued for decades.
i. Deleting references to health and safety.
As discussed above, Rogers was part of the Asbestos Committee for the Society of the
Plastics Industry. At their meeting in November of 1960, the Committee (with Rogers
participating) voted to delete all references to health and safety from the Society’s bulletin on
asbestos. SPI Minutes, 11/28/60 (Ex. 9); SPI Draft Bulletin (Ex. 8). This was intentional
conduct. Rogers engaged in an active scheme to suppress knowledge of the health hazards of
asbestos and the ways in which the industry needed to protect themselves and their workers.
ii. Rogers deceived the workers and withheld vital
information.
21
Long-time Rogers plantworker (and mesothelioma victim), Harold Dusto testified in his
own case that Rogers told him that “they were testing for nuisance dust. . . . Just the dust that’s in
the air. . . Yeah. I know it was normal asbestos. I was always told they’re testing for nuisance
dust.” Dusto depo (Dusto case), 7/8/19, at 207, 256-257 (Ex. 4). As shown above by the
historical context, by 1970 it was clear to Rogers that asbestos was absolutely not just a nuisance
dust.
Mr. Dusto did not recall Rogers ever notifying him of any testing results. Id. at 207-208.
He testified that Rogers never told him that Rogers knew that asbestos could be fatal as early as
1960. Id. at 254. Rogers never told him that it knew that asbestos could cause mesothelioma at
least by 1960. Id. at 255. Rogers never told him that blue asbestos (crocidolite) was particularly
potent at causing mesothelioma. Id. at 255. Rogers never gave him any information about
OSHA asbestos standards and how they changed over time. Id. at 255-256. Rogers never told
him that blue asbestos causes the highest rate of mesothelioma in people who are exposed to it.
Id. at 256. Rogers never notified him that he was over OSHA’s Ceiling Limit for asbestos. Id. at
264-266. He did not recall any of his co-workers ever being notified by Rogers that they were
over OSHA’s Ceiling Limit for asbestos. Id. at 264-265. While Mr. Dusto knew there was a
dust problem in the plant from his own general observations, Rogers never informed him that
this was a problem or that various workers were over the OSHA exposure limits. Id. at 265.
Rogers never explained to the employees the significance of the terrible exposure levels. Id. at
280-294. Rogers never told Mr. Dusto that he was measured over
Preview
ASB-FBT-CV-22-6113982-S : SUPERIOR COURT : THOMAS TOMKO, et al. : J.D. OF FAIRFIELD : VS. : AT BRIDGEPORT : UNION CARBIDE CORP., et al. : April 12, 2023 PLAINTIFFS’ OBJECTION TO DEFENDANT, ROGERS CORPORATION’S, MOTION FOR SUMMARY JUDGMENT TABLE OF CONTENTS: I. Introduction II. Legal Standard A. Summary judgment B. “Suarez” claims and the Lucenti factors – Exceptions to the exclusivity of the Workers’ Compensation Act III. Argument A. Rogers “intended the act” and knew “that the injury was substantially certain to occur from the act.” 1. Rogers in its historical context – Rogers knew that asbestos was deadly 2. The Lucenti factors weigh heavily in the plaintiffs’ favor a. Rogers has “prior similar accidents related to the conduct at issue that have resulted in employee injury, death, or a near-miss” b. There was “’deliberate deceit’ on the part of the employer with respect to the existence of the dangerous condition.” i. Deleting references to health and safety. ii. Rogers deceived the workers and withheld vital information. iii. Rogers intentionally deceived the workers’ representatives. iv. Rogers intentionally deceived customers and the public. v. Rogers intentionally deceived regulators. c. Rogers had “’intentional and persistent’ violations of safety regulations over a lengthy period of time.” i. “In general, Rogers Corporation Manchester was a real mess.” ii. Rogers failed to notify workers about excessive exposures. iii. Rogers was handling one of the deadliest minerals on the planet, yet its handling of crocidolite (blue asbestos) was atrocious. iv. Rogers failed to have a proper respirator program in accordance with federal law. v. Rogers gave workers, including Mr. Tomko, the wrong respirators. i. The Dustfoe 77 – an inappropriate respirator. 1 ii. Improper respiratory protection. vi. Rogers persisted in using dry sweeping to clean up asbestos dust. vii. Rogers’s housekeeping and asbestos bag disposal remained persistent problems. d. Rogers’s many safety violations can be broadly categorized as “affirmative disabling of safety devices.” B. The Suarez exceptions to the workers’ compensation exclusivity provision apply in cases of “occupational disease.” IV. Conclusion: Genuine issues of material fact remain. I. Introduction. This “Suarez claim” against the defendant-employer, Rogers Corporation (“Rogers”), seeks to hold Rogers liable for the plaintiff-employee, Thomas Tomko’s, malignant mesothelioma, caused by Rogers’s intentional conduct under the exceptions to the exclusivity provision of the Workers’ Compensation Act. Mr. Tomko worked as the plant maintenance electrician at Rogers Corporation in Manchester, CT from June 25, 1973 through January 21, 1977. Tomko depo, 4/7/22, at 73-74 (Ex. 102); Tomko personnel file, at 1 (Ex. 116). By the time Mr. Tomko started work in 1973, Rogers Corporation was operating two plants in Connecticut, one in Manchester and one in the village of Rogers (part of the town of Killingly). The Manchester plant had four main production departments operating under the same roof: Matrix board (a/k/a “the paper side”), which made a compressed paperboard product for the printing industry and used chrysotile (white asbestos); Extrusion, which made phenolic molding compounds (a type of industrial plastic) and used both chrysotile and crocidolite (blue asbestos); GLP, which also made phenolics and used chrysotile; and DAP, which made non- phenolic molding compounds. Sherman depo (Dusto case), 3/11/21, at 18-19 (Ex. 2); Sherman 2 depo (Gough case), 9/17/15, at 26, 30-31 (Ex. 5). The Manchester plant handled asbestos from 1936 to 1991. Rogers’s workers handled thousands of tons of raw asbestos fiber in 50- and 100-pound bags for 55 years in its manufacturing process. The earliest air sampling in the factory revealed exposure levels as high as 140 times the exposure limit that was in effect at the time (and 7,000 times the modern limit).1 Rogers persistently, egregiously, and intentionally violated occupational safety and health regulations, actively deceived employees and union representatives, withheld crucial information from workers and customers, routinely exceeded exposure limits for asbestos, and failed to notify workers of excessive exposures. In the words of the first industrial hygienist to visit the factory in January of 1972: “In general, Rogers Corporation Manchester was a real mess. Their housekeeping and attitude of the foremen as well as the hourly people left a lot to be desired [in] the area of environmental control.” Johns- Manville docs, at 175 (Ex. 6). In the milling area: “very poor housekeeping. . . . very dusty.” Id. at 175. In the extrusion department: “General housekeeping poor. Ripped bags of blue fiber as well as other raw materials. Floor, ceiling, and rafters very dirty.” Id. at 177 (emphasis in original). Rogers Corporation was a disaster. A total mess. A death trap. And the death trap worked. It ensnared workers like Thomas Tomko (mesothelioma), Harold Dusto (mesothelioma), Frank Bujaucius (mesothelioma), Roland Spearin (mesothelioma), William Lisk 1 The Occupational Safety and Health Administration first published a permissible exposure limit for asbestos of 12 fibers/cc (or 2 million particles per cubic foot) in May of 1971. 29 C.F.R. § 1910 (May 29, 1971). Quickly realizing that that limit was too high, OSHA issued a temporary emergency standard of 5 f/cc in December of 1971. 29 C.F.R. § 1910 (Dec. 7, 1971). That standard was made permanent in July of 1972 and remained in effect until July 1976 when OSHA further reduced the standard to 2 f/cc. 29 C.F.R. § 1910 (Jun. 7, 1972). OSHA again reduced the standard to 0.2 f/cc in 1986 and, finally, to the current limit of 0.1 f/cc in 1994, which was perceived at the time to be the practical limit of light microscope counting techniques. 29 C.F.R. § 1910 (Jun. 20, 1986); 29 C.F.R. § 1910 (Aug. 10, 1994) (“The 0.1 f/cc level leaves a remaining significant risk. . . . OSHA believes this is the practical lower limit of feasibility for measuring asbestos levels reliably”). 3 (mesothelioma), Doris Hand (mesothelioma), Stephen Munsell (asbestosis and lung cancer), Lloyd MacVane (asbestosis), Robert Jones (asbestosis), Donald Wilsey (asbestosis), and others. Rogers knew this was going to happen. The epidemic of asbestos-related disease that has occurred among its plantworkers was no accident. It was the inevitable outcome of years of egregious, intentional conduct. II. Legal standard. A. Summary judgment. A motion for summary judgment is appropriate only when the “pleadings, affidavits and any other proof submitted show that there is no genuine issue of material facts and that the moving party is entitled to judgment as a matter of law. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). . . . [Practice Book § 17-49.] A material fact is one that will make a difference in the result of the case. Cummings & Lockwood v. Gray, 26 Conn. App. 293, 297, 600 A.2d 1040 (1991) . . . . ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them. [United Oil Co. v. Urban Redevelopment Comm’n, 158 Conn. 364, 379, 260 A.2d 596 (1969)]. . . . The party seeking summary judgment bears the burden of showing the nonexistence of any material fact. Cummings & Lockwood, 26 Conn. App. at 297. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993).” Belch v. Hartford Fire Insurance Co., Superior Court, J.D. of Hartford-New Britain at Hartford, No. CV930523270 (12/6/94) (Sheldon, J.) (internal quotation marks omitted). “The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts . . . and the party opposing such a motion 4 must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . .” United Service Automobile Ass’n v. Marburg, 46 Conn. App. 99, 103, 698 A.2d 914 (1997) (emphasis added) (citations omitted). B. “Suarez claims” and the Lucenti factors – Exceptions to the exclusivity of the Workers’ Compensation Act. Employers are normally immune from civil litigation brought by employees who are injured in the course of their employment – the so-called “exclusivity provision” of the Workers’ Compensation Act. Conn. Gen. Stat. § 31-284(a). An employee’s only recourse against his or her employer is to file a workers’ compensation claim and to pursue certain statutory benefits. Our Supreme Court, however, has carved out exceptions to this general rule for “intentional” injuries: [T]o escape the exclusivity of the act, the victim of an intentional injury must rely on the intended tort theory or the substantial certainty theory. Under the former, the actor must have intended both the act itself and the injurious consequences of the act. Under the latter, the actor must have intended the act and have known that the injury was substantially certain to occur from the act. Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280 (1997) (emphasis added). “[S]atisfaction of the substantial certainty exception requires a showing of the employer’s subjective intent to engage in activity that it knows bears a substantial certainty of injury to its employees.” Lucenti v. Laviero, 327 Conn. 764, 779 (2018). In Lucenti, our Supreme Court favorably cited and analyzed New Jersey law on “substantial certainty.” Lucenti, 327 Conn. at 780-786. The Court found New Jersey’s conduct/context analysis persuasive and listed four non-exclusive factors for courts to consider when evaluating an employer’s conduct under the conduct prong: 1) “prior similar accidents related to the conduct at issue that have resulted in employee injury, death, or a near-miss;” 2) 5 “’deliberate deceit’ on the part of the employer with respect to the existence of the dangerous condition;” 3) “’intentional and persistent’ violations of safety regulations over a lengthy period of time;” and 4) “affirmative disabling of safety devices.” Id. at 782. In dicta, the Supreme Court explained that the context prong analyzes “as a matter of law [whether] an employee’s injury and the circumstances in which the injury is inflicted are plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under [the Act].” Id. at 781, n.7 (quoting Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449, 473 (2012)). III. Argument. An employer is responsible for the health and safety of its employees. When an employee is injured in the course of his or her employment, the employee’s exclusive remedy is to file a claim pursuant to the Workers’ Compensation Act (“the Act”). Conn. Gen. Stat. § 31- 284(a). However, there are exceptions to the exclusivity provision of the Act that apply in the present case. Our Supreme Court has held that exceptions exist when a plaintiff-employee can establish that the employer either: 1) actually intended to injure the employee (commonly referred to as the actual intent standard); or 2) when the employer intentionally created a dangerous condition that the employer believed would make the employee’s injuries substantially certain to occur (commonly referred to as the substantial certainty standard). As shown below, Rogers intentionally created a dangerous condition that it knew would make its employees’ injuries substantially certain to occur. Viewing the evidence in a light most favorable to the plaintiffs, a reasonable trier of fact could conclude that Rogers: 6 1. intentionally deceived workers by telling them that asbestos was only a “nuisance dust;” 2. intentionally deceived the workers’ union representatives to cover up OSHA violations and hazardous conditions; 3. intentionally deceived regulators; 4. knew by 1960 that asbestos was a serious health hazard but actively participated in a scheme to suppress knowledge of the hazard; 5. intentionally deceived customers about its own effort and ability to control asbestos exposures in its plants; 6. intentionally failed to comply with federal law, which required that Rogers notify employees of over-exposures; 7. intentionally failed to enforce occupational safety standards that were specifically meant to safeguard against the hazards of asbestos; 8. intentionally ignored damning information about asbestos and mesothelioma hazards obtained over a period of years from various sources; 9. “was a real mess.” The staggering incidence of asbestos-related disease among Rogers’s workforce is not just a testament to Rogers’s many failures, but also a strong indicator that this outcome was inevitable. Rogers knew to a substantial certainty that its workers would be here someday. Thomas Tomko’s mesothelioma was not an accident and Rogers’s conduct over a period of years was not accidental. Thomas Tomko is the inevitable outcome of Rogers’s active deceptions and callous disregard for its workers. The totality 7 of the circumstances so obviously and intentionally created a danger to the employees “that the employer cannot be believed if it denies that it knew the consequences were certain to follow.” Lucenti, 327 Conn. at 790 (quoting Sorban v. Sterling Engineering Corp., 79 Conn. App. 444, 455 (2003)) (internal quotation marks omitted). A. Rogers “intended the act” and knew “that the injury was substantially certain to occur from the act.” It cannot be reasonably disputed that Rogers “intended the act.” From 1936 to 1991, the defendant was an asbestos product manufacturer, importing thousands of tons of raw asbestos fiber, warehousing asbestos, handling asbestos, transporting asbestos, using asbestos in extensive manufacturing operations, disposing of asbestos, and employing workers whose jobs directly involved those activities. Sherman depo (Dusto case), 3/11/21, at 110-111 (Ex. 2). Surviving air sampling from the factory includes over 500 personal and area samples (strikingly, however, none of Mr. Tomko himself), demonstrating the entirely predictable, widespread contamination of every nook and cranny of the Rogers operation. The air sampling repeatedly confirmed employee exposures during their normal and intended job functions. Rogers knew and understood that its workers were working directly with asbestos as part of their normal and intended job functions, and it knew that those workers were being exposed to asbestos at exceedingly dangerous levels. The pivotal question for the Court is whether the legal standard requires that the defendant knew to a substantial certainty that Thomas Tomko would get sick, or whether the defendant knew to a substantial certainty that one or more of its workers would get sick. The plaintiffs assert that it must be the latter. If it were the former, no plaintiff in any toxic tort case would ever be able to meet the threshold. In any population of workers who are exposed to toxic 8 substances, it is impossible to predict which workers will get sick, but it is entirely predictable and knowable that some proportion of those workers will get sick. This was particularly true in the case of asbestos in the 1970s, and even more so with the extremely potent blue asbestos – crocidolite – that Rogers was using throughout this period. Rogers Corporation had all the information it needed before Thomas Tomko ever stepped foot in the Manchester factory. Rogers knew that asbestos was hazardous, that asbestos could kill, that mesothelioma was a fatal asbestos-induced cancer, that even “slight” exposures could cause fatal disease, that there were recommended exposure limits intended to reduce or eliminate disease in exposed workers, that there were numerous engineering controls that could and should be used to reduce worker exposures, and that there were impending regulations that would force its hand. Rogers knew about contemporary, well known, peer-reviewed scientific publications documenting the stubborn, persistent, predictable death toll among asbestos workers. Rogers has stated, in its own words, that a company should use “exhaustive efforts” to research potential health hazards and that “Rogers has an obligation to understand the health hazards of the products that it uses.” Sherman depo (Dusto case), 3/11/21, at 131 (Ex. 2). Rogers failed to even live up to its own standards. 1. Rogers in its historical context – Rogers knew that asbestos was deadly. In 1957 (sixteen years before Thomas Tomko started work at Rogers), Rogers was noted as attending a meeting of the Asbestos Technical and Standards Committee of the Society of the Plastics Industry (“SPI”), an industry trade group. SPI Minutes, 7/19/57 (Ex. 7). Along with other giants of the asbestos industry such as Raybestos-Manhattan, Johns-Manville (one of Rogers’s significant asbestos suppliers), and North American Asbestos Corporation (another of Rogers’s significant asbestos suppliers), the Committee discussed its goals and intentions, 9 including obtaining information from the Asbestos Textile Institute (“ATI”) about “the types and grades of asbestos,” obtaining “all published data on present forms of asbestos through the ATI and leading companies in the field,” and bringing together “various companies in the asbestos field [to] educate one another.” Id. at 178. The meeting minutes note that “the Committee could keep itself apprised of the various specifications on asbestos, not only those which exist in the United States but those from abroad, such as Great Britain.” Id. Rogers agrees that it had the ability and the wherewithal to research the health hazards of asbestos in 1957 if it wanted to do that. Sherman depo (Dusto case), 3/11/21, at 131 (Ex. 2). By 1960 (thirteen years before Thomas Tomko started work at Rogers), Rogers expressly learned that asbestos was hazardous. The Asbestos Committee of the SPI had researched and prepared a Draft Bulletin containing various information about asbestos that it intended to disseminate to the plastics industry. SPI Draft Bulletin (Ex. 8). The Draft Bulletin had a section entitled “Health and Safety Factors,” which provided information about the health hazard of asbestos, methods to control the problem, precautions for workers, and the importance of controlling exposure. Id. at 16. Rogers knew from this information that asbestos could contaminate the air; that it caused “hygienic problems” in the asbestos industry; that asbestos dust could be harmful to people who were exposed to it; that asbestosis was a disease caused by asbestos; that protective measures were necessary to safeguard workers; that the “passage of the dust into lungs through the respiratory system is dangerous,” and that “[i]t is important that proper precautions be taken by all companies which handle asbestos.” Id. at 16. At its meeting on November 28, 1960, the Asbestos Committee of the SPI, again with Rogers present, discussed the Draft Bulletin, suggested changes, and “[t]he Committee also deleted all references to health and safety factors.” SPI Minutes, 11/28/60 (emphasis added) (Ex. 10 9). The final version of the bulletin was bereft of any information on “Health and Safety Factors.” Final Bulletin (Ex. 10). In 1961 (twelve years before Thomas Tomko started work at Rogers), the State of Connecticut adopted a threshold limit value for asbestos, capping exposures at 5 mppcf. 1961 Public Health Code, § 281 (Ex. 104). Rogers was subject to this law, but (as shown below) Rogers never did any air sampling before 1972. In 1968 (five years before Thomas Tomko started work at Rogers), one of Rogers’s asbestos fiber suppliers, Johns-Manville, wrote to the company and provided important information. 1968 letter from Johns-Manville (Ex. 11). First, it provided a copy of Paul Brodeur’s opus, The Magic Mineral, from a recent edition of The New Yorker. The Magic Mineral (Ex. 12). Second, it alerted Rogers about measures needed to be taken to control dust and about the selection of appropriate respirators for workers, including the then-governing federal regulation. Third, it explained that “[t]he best precaution is mechanical dust control equipment designed to maintain the airborne concentration of asbestos fibers below the Threshold Limit Value established by the American Conference of Governmental Industrial Hygienists [‘ACGIH’],” and it explained that the newly proposed TLV for asbestos was 2 million particles per cubic foot or 12 fibers per cc.” Fourth, it provided resources for Rogers to learn more about these issues, including information about measurement techniques, literature from the U.S. Public Health Service, and information from the Department of Health, Education and Welfare’s Occupational Health Program. Finally, it notified Rogers that “[a] competent, experienced dust control engineer should be employed by your concern to design the dust control system, including the hoods, duct work, fan and collector. It is essential that your dust control 11 system employ a high efficiency dust collector to prevent external atmospheric dust contamination.” The Magic Mineral, published in October 1968, was a definitive exposé on the history of asbestos and the contemporary scientific study of asbestos-related diseases, including mesothelioma.2 The Magic Mineral (Ex. 12). If it didn’t before, Rogers now knew that “[m]odern knowledge of asbestosis dates from the year 1900.” Id. at 124. Rogers knew that “the first clear case of death due to asbestosis appeared in medical literature” in 1924. Id. at 126. Rogers read about the pioneer, Dr. Merewether, in England in the 1920s and how “slightly more than twenty-five percent [of asbestos textile workers] showed evidence of suffering from pulmonary fibrosis” and how that number “increased in direct proportion to the number of years of exposure, reaching eighty-one percent in the group of workers who had been employed in the industry for twenty years or more.” Id. at 126. Dr. Merewether’s work resulted in Parliament passing “legislation in 1931 that made asbestosis a compensable disease, required improved methods of exhaust ventilation and dust suppression in asbestos-textile factories, and instituted periodical medical examinations for workers engaged in particularly dusty processes in the asbestos-textile industry.” Id. at 126. Rogers learned about the first published association between asbestosis and cancer in 1935 and about the definitive link proven between asbestos and lung cancer in 1955. Id. at 131-32. Rogers read about “[t]he most dramatic development [being] the discovery of an association between exposure to asbestos and mesothelioma,” including peritoneal mesothelioma. Id. at 132. Rogers read about the groundbreaking research of Dr. 2 Even the defendant’s expert, Dr. Christy Barlow, has cited to The Magic Mineral (and other work by Paul Brodeur) in her own peer reviewed research. Barlow et al. 2017, at 15-16 (Ex. 13); Barlow depo (Dusto case), 7/16/21, at 390-391, 407 (Ex. 14). The plaintiffs’ expert, Dr. Barry Castleman, has previously testified: “Paul Brodeur’s article in the New Yorker had a tremendous effect nationwide on the asbestos industry.” Castleman depo (Dusto case), 7/31/20, at 52-54 (Ex. 15). 12 Chris Wagner, who identified a significant connection between crocidolite exposure and mesothelioma in South Africa, many cases appearing in people who never worked in the mines or mills and in situations where “the actual exposure appeared to have been slight.” Id. at 134- 37 (emphasis added). The article noted that “Wagner drew the chilling conclusion that mesothelioma might result from an exposure to asbestos dust that was considerably less than that needed to produce fibrosis.” Id. at 137. Rogers saw summaries of the seminal work of researchers in Finland, South Africa, London and Pennsylvania. Id. at 137-38. Rogers read about the international conference on asbestos held in New York City in 1964 sponsored by the New York Academy of Sciences,3 and it saw a complete rundown of the pioneering work of Dr. Irving Selikoff at Mount Sinai.4 Id. at 140-165. Following the letter from Johns-Manville, Rogers knew about the ACGIH threshold limit values. ACGIH had been publishing TLVs to guide industry, industrial hygienists and public health workers for decades, including an asbestos TLV of 5 mppcf5 published and republished in 1958, 1962, 1966 and 1968. 1958 ACGIH TLV (Ex. 16); 1962 ACGIH TLV (Ex. 17); 1966 ACGIH TLV (Ex. 18); 1968 ACGIH TLV (Ex. 19). The 1968 TLV remained at 5 mppcf but, as highlighted by Manville in its letter, there was a Notice of Intended Change, intending to reduce the TLV to 2 mppcf or 12 fibers/cc (which was later codified as the first OSHA exposure limit). 3 The defendant’s expert, Dr. Christy Barlow, has called this conference a “landmark conference” that brought “[p]hysicians, scientists, industrial and union representatives, and public health officials from around the world . . . to discuss the accumulating knowledge linking occupational exposure to asbestos with various diseases.” Barlow et al. 2017, at 13 (Ex. 13); Barlow depo (Dusto case), 7/16/21, at 380-382, 427 (Ex. 14). See also Castleman depo (Dusto case), 7/31/20, at 19-20, 51 (Ex. 15). 4 The defendant’s expert, Dr. Christy Barlow, has noted the importance and widespread dissemination of Dr. Selikoff’s work at the time, including coverage in the New York Times. Barlow et al. 2017, at 13-14 (Ex. 13); Barlow depo (Dusto case), 7/16/21, at 380-383 (Ex. 14). See also Castleman depo (Dusto case), 7/31/20, at 19-22 (Ex. 15). 5 Dust counts were originally taken using a device called a midget impinger, which reported results in millions of particles of dust per cubic foot of air (expressed as “mppcf”). The more modern method (since the late 1960s and the subsequent advent of OSHA) uses a membrane filter method and counts fibers per cubic centimeter of air (expressed as fibers/cc or f/cc). Membrane filter results are also sometimes reported as fibers per milliliter of air (f/ml), which is equivalent to f/cc. 13 The Notice of Intent released by ACGIH at that time stated: “Crocidolite, however, has been shown to produce, in addition to the asbestotic inflammation, also mesothelioma. Since no safe limit can be established for this form of asbestos at this time, until more definitive data are obtained, it is recommended that workers exposed to crocidolite be equipped with air-supplied helmets.” 1968 Notice of Intent (emphasis added) (Ex. 20). Rogers never took any additional precautions when handling crocidolite and it never gave its workers air-supplied helmets. Sherman depo (Dusto case), 3/11/21, at 208 (Ex. 2); Sherman depo (Dusto case), 3/12/21, at 308- 309 (Ex. 21). Following the letter from Johns-Manville, Rogers knew about the contemporary research of Dr. Selikoff, which was discussed at length in The Magic Mineral. In 1964, Dr. Selikoff’s team published “Asbestos Exposure and Neoplasia” in the Journal of the American Medical Association, which reported 3 mesothelioma deaths and 12 asbestosis deaths among 255 total deaths (5.9%) in a cohort of asbestos insulation workers (not including one additional case of peritoneal mesothelioma that was reported in the paper but not included in the official count). Selikoff et al. 1964 (Ex. 22). In 1965, Dr. Selikoff’s team published “Relation Between Exposure to Asbestos and Mesothelioma” in The New England Journal of Medicine, which reported 10 mesothelioma deaths and 17 asbestosis deaths among 307 total deaths (8.8%) in another cohort of asbestos insulation workers. Selikoff et al. 1965 (Ex. 23). A cursory review of the literature at that time would have revealed an important paper by Mancuso and Coulter published in 1963 in Archives of Environmental Health, which reported 4 mesothelioma deaths (all peritoneal) and 28 asbestosis deaths among 186 total deaths (17.2%) in a cohort of asbestos factory workers. Mancuso and Coulter 1963 (Ex. 24). From Merewether in the 1920s to Selikoff in the 1960s, there was a consistent thread that revealed a persistent, predictable, 14 quantifiable death toll among asbestos workers. See Castleman depo (Dusto case), 7/31/20, at 97-100 (“these studies showed time and again that, as in other parts of the world, people who worked in asbestos factories or who worked with asbestos products on a regular basis were at risk of developing an extraordinary incidence of mesothelioma and quite an excess rate of cancer of the lung as a consequence of their exposure, as well as asbestosis causing deaths as well”) (Ex. 15). Any reasonable observer would have seen that asbestos was consistently killing some predictable percentage of workers exposed to the deadly material, even when exposures were “slight.” Put another way, it was a “substantial certainty” that a predictable percentage of exposed workers would die. Rogers was literally handed the necessary information and resources to understand all of this. The correspondence with Johns-Manville and The Magic Mineral provided Rogers with everything it needed, giving Rogers a concise summary of asbestos history, science, medicine, regulations and hazards that had been compiled by leading experts up to that point in time. Given Rogers’s history with the SPI a decade earlier, it is entirely likely that Rogers knew much of this information already, but the 1968 Manville letter and The Magic Mineral provide irrefutable proof that Rogers was given all the information it needed to take action to protect its workers, and it knew that fatal asbestos-related disease nipped at the heels of its employees (and, in particular, those exposed to crocidolite). In 1970 (three years before Thomas Tomko started work at Rogers), the Williams-Steiger Occupational Safety and Health Act became law, creating the Occupational Safety and Health Administration (“OSHA”). It is inconceivable that Rogers was unaware of the passage of this groundbreaking new law that would undoubtedly affect Rogers and its entire industrial sector. 15 In May of 1971 (two years before Thomas Tomko started work at Rogers), OSHA published its first permissible exposure limit (“PEL”) for asbestos of 12 f/cc, which was based on the pre-existing ACGIH threshold limit value (2 mppcf or 12 f/cc). Quickly realizing the PEL was too high, in December of that year OSHA promulgated an Emergency Standard for Exposure to Asbestos Dust, reducing the PEL to 5 f/cc and capping short-term exposures at 10 f/cc. 29 C.F.R. 1910 (Dec. 7, 1971) (Ex. 26). OSHA explained: In light of increasing information on the results of exposure of employees to airborne asbestos dust, including recent studies by the National Institute for Occupational Safety and Health and others, and recommendations by the American Conference of Governmental Industrial Hygienists (ACGIH), it is hereby determined that (1) exposure under the present standard for asbestos dust . . . of 12 fibers per milliliter or 2 million particles per cubic foot of air . . . constitutes a grave danger to employees exposed to this 8-hour time-weighted average concentration; and that (2) . . . an emergency standard is necessary to protect employees from this excessive exposure. Id. (emphasis added). Rogers concedes, as it must, that it was aware of these regulations at the time that they became federal law. The new regulations applied directly to Rogers’s factories and Rogers was obligated to comply with these new federal laws. Sherman depo (Dusto case), 3/11/21, at 213, 217, 219-220 (Ex. 2). In June of 1971, after the first OSHA PEL in May and before the Emergency Standard in December, Johns-Manville again wrote to Rogers. 1971 letter from Johns-Manville (Ex. 27). Manville explained that the new OSHA law “will require that the airborne levels of asbestos fiber be below the established Threshold Limit Value,” which it reiterated was established under prior federal law at 12 f/cc or 2 mppcf, and, in anticipating the December Emergency Standard, noted it “is expected that shortly” the standard would be reduced to 5 f/cc. Echoing the admonitions from its 1968 letter, Manville told Rogers: “An industrial hygiene survey using proper measurement techniques is necessary to determine if the various workplaces in your 16 concern comply with standards.” Manville then offered the services of its Industrial Hygiene Engineering Services Department to help Rogers conduct such a survey of its operations. Rogers took Manville up on the offer and conducted its first-ever asbestos dust survey in January of 1972, which yielded disturbing results. Of the 27 samples taken using the modern method (f/cc), 9 (33%) exceeded the OSHA PEL of 5 f/cc and 3 exceeded the OSHA Ceiling Limit of 10 f/cc (11%), including an area sample during a crocidolite operation measured at “40.0+” where the operator in the area was listed as not wearing a mask. Johns-Manville docs, at 93, 170-171 (Ex. 6). The average of all 27 samples was 5.8 f/cc, which was over the OSHA PEL. Of the 27 samples taken using the older method (mppcf), 25 (93%) exceeded the TLV of 2 mppcf. Johns-Manville docs, at 181-182 (Ex. 6). The average of all 27 samples was 9.2 mppcf, well over the TLV of 2 mppcf. In July of 1972 (less than a year before Thomas Tomko started work at Rogers), OSHA made permanent the 5 f/cc PEL and the 10 f/cc Ceiling Limit and mandated a future reduction of the PEL to 2 f/cc by July 1, 1976. 29 C.F.R. 1910 (Jun. 7, 1972) (Ex. 28). OSHA explained: In view of the undisputed grave consequences from exposure to asbestos fibers, it is essential that the exposure be regulated now, on the basis of the best evidence available now, even though it may not be as good as scientifically desirable. An asbestos standard can be re-evaluated in the light of the results of ongoing studies, and future studies, but cannot wait for them. Lives of employees are at stake. It is concluded that there should be one minimum standard of exposure to asbestos applicable to all workplaces exposed to any kind, or mixture of kinds, of asbestos. Reasons of practical administration preclude a variety of standards for different kinds of asbestos and of workplaces. Also, while the evidence tends to show that crocidolite, for instance, is more harmful than chrysotile, the evidence is not sufficient to establish separate standards for varieties of asbestos. *** [I]t appears that levels of exposure which may be safe with regard to asbestosis are not safe with regard to mesothelioma. 17 Id. (emphasis added). Asbestos was dangerous, it was to be taken deadly serious, and lives of employees were at stake. Rogers knew this. They had to know it. It was federal law. They concede as much. Sherman depo (Dusto case), 3/11/21, at 213, 217, 219-220 (Ex. 2). In 1976 (three years into Thomas Tomko’s employment and well after the OSHA asbestos regulations were in place), the National Institute for Occupational Safety and Health (“NIOSH”) concisely summarized the historical research and the then-current state of knowledge. 1976 Revised Recommended Asbestos Standard (Ex. 29). NIOSH noted that epidemiological studies of asbestos-exposed workers reported cases of mesothelioma “with exposures as brief as 1 day.” Id. at 32 (emphasis added). NIOSH cited a number of studies in the published literature: “Among a number of occupationally exposed groups studied, approximately 5-7% of deaths have been from mesothelioma. More recently, however, an estimate has projected that 11% of asbestos workers’ deaths in England will be from mesotheliomas.” Id. at 32. The 127 references cited by NIOSH were a veritable encyclopedia of the seminal asbestos health studies dating back to the 1920s, including the work of Drs. Selikoff, Doll, Newhouse and Thompson, Wagner, Kiviluoto, Mancuso and Coulter, McDonald, and many others. Id. at 43-52. Any reasonable person would have concluded that it was a “substantial certainty” that some percentage of Rogers’s workers would develop asbestos-related disease. By 1978, researchers studying the effects of crocidolite exposure in a cohort of Canadian factory workers had concluded that “the continued use of crocidolite would appear difficult to justify except under the strictest possible control.” McDonald and McDonald 1978, at 345 (Ex. 30). They found that “mesothelioma clearly occurred after very short total exposures to asbestos – not more than 3 years in 6 of the 9 cases and only 4 and 6 months in two cases.” Id. at 345. 18 Nine of the fifty-six deaths (16%) in that factory were from mesothelioma. Id. at 342. Rogers continued using crocidolite and selling crocidolite-containing products for four more years. Sherman depo (Dusto case), 3/11/21, at 29 (Ex. 2); Sherman depo (Dusto case), 3/12/21, at 486- 487 (Ex. 21). Rogers acknowledged much of this information after-the-fact in 1979 when it submitted a commentary to the State of Connecticut to lobby against newly proposed asbestos emission standards. 1979 Commentary (Ex. 31). Rogers noted the unique hazard posed by crocidolite: “To be sure, asbestos, and especially the variety crocidolite, has been factually associated with the development of human mesothelioma.” Id. at 3. Rogers noted the industry’s early knowledge about recommended exposure limits: “It is well known that the first recommendation for limiting occupational exposure to asbestos was made in 1938 by the U.S. Public Health Service. This recommendation wasn’t generally accepted until 1964 and wasn’t mandated until the passage of the Occupational Safety and Health Act of 1970.” Id. at 5. Rogers acknowledged that “no threshold level has been found, below which asbestos does not create lung cancer.” Id. at 7. Rogers continued using crocidolite and selling crocidolite-containing products for three more years, and chrysotile and chrysotile-containing products for over a decade. 2. The Lucenti factors weigh heavily in the plaintiffs’ favor. As noted above, our Supreme Court has endorsed four non-exclusive factors to consider when weighing “substantial certainty” claims. Viewing the evidence in a light most favorable to the plaintiffs, Rogers’s conduct satisfies all of these factors. The totality of the circumstances so obviously and intentionally created a danger to the employees “that the employer cannot be believed if it denies that it knew the consequences were certain to follow.” Lucenti, 327 Conn. at 19 790 (quoting Sorban v. Sterling Engineering Corp., 79 Conn. App. 444, 455 (2003)) (internal quotation marks omitted). a. Rogers has “prior similar accidents related to the conduct at issue that have resulted in employee injury, death, or a near- miss.” Rogers unquestionably has “prior similar accidents related to the conduct at issue.” As noted above, there is a staggeringly high incidence of asbestos-related disease, including mesothelioma, in the Rogers workforce. Through discovery in this and other cases, Rogers has produced a list of workers’ compensation claims brought against it for asbestos-related disease. Rogers workers’ comp list (Ex. 32). That list includes six mesothelioma cases and twenty-four asbestosis cases, among others.6 And we know that the overall list of asbestos-related disease is not complete. It does not include Thomas Tomko’s or Harold Dusto’s recent diagnoses with mesothelioma (bringing the mesothelioma total to eight). It lists Saul Ahola as asbestosis, but Mr. Ahola died from mesothelioma (bringing the mesothelioma total to nine). Ahola records (Ex. 34). It lists William Lisk as a pleural effusion, but Mr. Lisk died from mesothelioma (bringing the mesothelioma total to ten). Lisk death certificate (Ex. 35). It lists Lloyd MacVane as “unknown,” but Mr. MacVane’s death certificate lists “asbestos exposure” as a significant condition contributing to his death and his medical records note a history of asbestosis (bringing the asbestosis total to twenty-five). MacVane records (Ex. 36). It lists Robert Jones as 6 Rogers may argue that the list includes two different factories – one in Manchester, CT and one in Rogers, CT – but the two factories handled asbestos in similar ways, including receiving the asbestos in bags and dumping the asbestos into mixing devices. The differences in end-products being made at the two plants is irrelevant. Both factories used the same types of asbestos – chrysotile and crocidolite. Both factories had high exposure levels, and both factories had virtually identical OSHA, housekeeping and respirator problems. See, e.g., Rogers Plant Air Survey, 11/10/72 (Ex. 33). Johns-Manville even felt that the two operations were substantially similar. Johns- Manville docs, at 155 (Ex. 6) (“In regard to asbestos emissions at your Rogers Plant, I looked at the operation with Dennis Harmyk and being as this set up is similar to the conditions at Manchester, I would recommend we see what these test results show”). Even if the cases from Rogers, CT were excluded, the list would still include 10 cases from Manchester, including two cases of mesothelioma. 20 “unknown”, but Mr. Jones had asbestosis (bringing the asbestosis total to twenty-six). Jones depo, 6/17/96 (Ex. 37). It fails to list Donald Wilsey at all, but Mr. Wilsey died from asbestosis (bringing the asbestosis total to twenty-seven). Wilsey records (Ex. 38). Likewise, it fails to list Donald Duley, who died from mesothelioma (bringing the mesothelioma total to eleven). Duley records (Ex. 25). See also Christiani Report (Dusto case), at 11 (Ex. 39) (“The epidemiological context for mesothelioma reveals 5 known cases of this usually rare disease among the Rogers Corporation Manchester plant; an extraordinarily elevated prevalence”); Dr. Finkelstein Report (Dusto case), at 7 (Ex. 40) (“[Rogers] would have known that a certain percentage of their workforce were probably going to develop one or more asbestos diseases. This has come to pass with the diagnosis of asbestosis and mesothelioma among their employees”). b. There was “’deliberate deceit’ on the part of the employer with respect to the existence of the dangerous condition.” Rogers engaged in “deliberate deceit” with respect to the existence of the dangerous conditions in its plant and with respect to the health hazards of asbestos. This intentional pattern of deception continued for decades. i. Deleting references to health and safety. As discussed above, Rogers was part of the Asbestos Committee for the Society of the Plastics Industry. At their meeting in November of 1960, the Committee (with Rogers participating) voted to delete all references to health and safety from the Society’s bulletin on asbestos. SPI Minutes, 11/28/60 (Ex. 9); SPI Draft Bulletin (Ex. 8). This was intentional conduct. Rogers engaged in an active scheme to suppress knowledge of the health hazards of asbestos and the ways in which the industry needed to protect themselves and their workers. ii. Rogers deceived the workers and withheld vital information. 21 Long-time Rogers plantworker (and mesothelioma victim), Harold Dusto testified in his own case that Rogers told him that “they were testing for nuisance dust. . . . Just the dust that’s in the air. . . Yeah. I know it was normal asbestos. I was always told they’re testing for nuisance dust.” Dusto depo (Dusto case), 7/8/19, at 207, 256-257 (Ex. 4). As shown above by the historical context, by 1970 it was clear to Rogers that asbestos was absolutely not just a nuisance dust. Mr. Dusto did not recall Rogers ever notifying him of any testing results. Id. at 207-208. He testified that Rogers never told him that Rogers knew that asbestos could be fatal as early as 1960. Id. at 254. Rogers never told him that it knew that asbestos could cause mesothelioma at least by 1960. Id. at 255. Rogers never told him that blue asbestos (crocidolite) was particularly potent at causing mesothelioma. Id. at 255. Rogers never gave him any information about OSHA asbestos standards and how they changed over time. Id. at 255-256. Rogers never told him that blue asbestos causes the highest rate of mesothelioma in people who are exposed to it. Id. at 256. Rogers never notified him that he was over OSHA’s Ceiling Limit for asbestos. Id. at 264-266. He did not recall any of his co-workers ever being notified by Rogers that they were over OSHA’s Ceiling Limit for asbestos. Id. at 264-265. While Mr. Dusto knew there was a dust problem in the plant from his own general observations, Rogers never informed him that this was a problem or that various workers were over the OSHA exposure limits. Id. at 265. Rogers never explained to the employees the significance of the terrible exposure levels. Id. at 280-294. Rogers never told Mr. Dusto that he was measured over