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STATE OF CONNECTICUT
IN RE: BRIDGEPORT ASBESTOS SUPERIOR COURT JUDICIAL
LITIGATION DISTRICT OF FAIRFIELD AT
BRIDGEPORT
DOCKET NO: FBT-CV19-6086883-S
__________________________________________
)
ANITA DUSTO, EXECUTOR OF THE )
ESTATE OF HAROLD DUSTO & )
ANITA DUSTO, SURVIVING SPOUSE )
)
Plaintiffs, )
)
VS. )
)
ROGERS CORPORATION, et al., )
Defendants. )
__________________________________________)
DEFENDANT ROGERS CORPORATION’S
MOTION TO BIFURCATE AND SEVER
I. INTRODUCTION
Defendant, Rogers Corporation (“Rogers”), hereby moves, pursuant to Connecticut
General Statutes § 52-205 and Practice Book § 15-1, et seq., this Honorable Court bifurcate the
trial in this case and respectfully request that the issue of whether Rogers engaged in intentional
conduct that it knew was substantially certain to cause Mr. Dusto’s injury be tried separately from
and prior to the issue of damages. Further, if a damages trial is necessary, Rogers requests that it
be conducted in two phases: compensatory damages first, followed by punitive damages if any.
This is a unique asbestos-related personal injury lawsuit in which the Plaintiffs claim that
decedent Harold Dusto contracted mesothelioma as a result of occupational exposures to asbestos
during the course of his employment at the Rogers Corporation facility in Manchester,
Connecticut. It is undisputed that the Plaintiffs claim that Mr. Dusto sustained his injury as a direct
result of his employment at Rogers. It is further undisputed that employers such as Rogers are
normally immune from civil litigation brought by employees, such as Mr. Dusto, who are injured
in the course of their employment. The Plaintiffs also concede in this case that they cannot avoid
pursuing their claims through the Connecticut workers’ compensation statutory scheme until and
unless they can demonstrate that Rogers engaged in intentional conduct which it knew was
substantially certain to cause employee injury. Short of meeting this very narrow exception to the
exclusivity rule that is applied “only in . . . rare cases”, all the Plaintiffs’ claims in this case would
be barred by the workers’ compensation statute. See Suarez v. Dickmont Plastics Corp.,229 Conn.
99, 117 (1994).
There are serious legal and factual disputes in this case as to whether Rogers’ conduct was
so egregious so as to defeat the workers’ compensation exclusivity provisions. See Lucenti v.
Laviero, 327 Conn. 764, 783 (2018). These legal and factual disputes must be resolved first and
done so without unnecessary and potentially prejudicial evidence and testimony regarding
Plaintiffs’ alleged damages.
II. ARGUMENT
A. It Is Within The Court’s Discretion To Separate Trials In The Interests Of
Convenience, Negation Of Prejudice, And Judicial Efficiency.
Connecticut General Statutes § 52-205 and Practice Book § 15-1, et seq., provide that the
trial court “may order that one or more issues joined be tried before the others.” This rule gives
the Court broad discretion to determine how the cases on its docket are to be tried in order to avoid
prejudice or when separate trials would be conducive to expedition and economy. See Barry v.
Quality Steel Prods., Inc., 263 Conn. 424, 449 (2003); Reichhold Chemicals, Inc. v. Hartford
Accident & Indem. Co., 243 Conn. 401, 423 (1997). “The interests served by bifurcated trials are
convenience, negation of prejudice and judicial efficiency…. Bifurcation may be appropriate in
cases in which litigation of one issue may obviate the need to litigate another issue.” See Barry v.
Quality Steel Prods., Inc., 263 Conn. 424, 449 (2003); Reichhold Chemicals, Inc. v. Hartford
Accident & Indem. Co., 243 Conn. 401, 423 (1997); see also Saczynski v. Saczynski, 109 Conn.
App. 426, 428 (2008).
“In a [civil] action . . . there are two parts to a trial, the trial as to liability and the trial as to
damages. The liability portion is concerned with the question or whether the defendant is
responsible for the injuries complained of, i.e.,if the cause of action has been proven. If the
defendant is found liable, the second part of the trial consists of determining the amount of
damages recoverable from the defendant.” Right v. Breen, 88 Conn. App. 583, 587 (2005), rev’d
on other grounds 277 Conn. 364 (2006). As the plaintiff’s damages do not affect the question of
whether the defendant is liable for the plaintiff’s injuries, Connecticut courts have regularly
bifurcated liability and damages issues. See Saczynski v. Saczynski, 109 Conn. App. 426, 429
(2008); Swenson v. Sawoska, 18 Conn. App. 597, 601 (1989).
The “liability” issues in the case at hand are complex and involved. As the issue of Rogers’
knowledge, intent and the question of substantial certainty of Mr. Dusto’s injury must clearly be
decided before the plaintiffs can even show that they are entitled to proceed with their case outside
the exclusivity provisions of the workers’ compensation statute, any trial of damages should be
bifurcated and presented to the jury only after the jury has addressed these knowledge, intent and
substantial certainty issues. Furthermore, any trial of punitive damages (if any) should be severed
and presented to the jury only after the jury has addressed any compensatory damages issues to
avoid prejudice to Rogers.
B. Bifurcation Promotes Judicial Efficiency And Economy And Avoids Prejudice And
Jury Confusion.
The instant case is particularly well-suited for bifurcation, because the evidence to be
offered by the parties in each phase of the trial will be distinct. In this case, the primary focus is
whether Rogers engaged in any intentional conduct knowing that Mr. Dusto’s injury was
substantially certain to occur. Answering this question first is critical as to whether or not plaintiffs
can even proceed with their claims outside the confines of the workers’ compensation statute.
The issues of whether Rogers is liable to the Plaintiffs for compensatory damages or
punitive damages are secondary to the issue of this knowledge and intent, and cannot be
determined until these initial issues are resolved. For this reason, the vast majority of evidence to
be presented by the parties will address the underlying issue of knowledge and intent (i.e., whether
or not Rogers knew that Mr. Dusto’s mesothelioma was substantially certain to occur). Allowing
bifurcated trial would permit the jury to arrive at a decision that determines whether or not the
plaintiffs’ claims as to Rogers are even viable ones before even contemplating damages is in the
interests of judicial economy and would serve to narrow the legal issues for the jury to consider.
Furthermore, Plaintiffs’ anticipated evidence related to non-economic damages is so
inherently sympathetic, that Rogers would be unfairly prejudiced by the simultaneous presentation
of both evidence regarding intent and substantial certainty and damages evidence, particularly as
there are significant and complex issues of legal liability in dispute. Importantly, the testimony
and evidence on damages is not relevant at all to the Plaintiffs’ claims in this case. Plaintiffs
allege that Mr. Dusto developed mesothelioma as a result of his occupational exposures to asbestos
fibers from his work inside the Rogers facility. To recover in this case, the Plaintiffs must prove
that Rogers intentionally engaged in conduct it subjectively believed was substantially certain to
cause employee injury. If they cannot prove this, and the plaintiffs will concede, their claims are
barred by the workers’ compensation statute. Mr. Dusto passed away on November 18, 2019 at
the age of 71, seven months after being diagnosed with mesothelioma. His medical records, along
with his and his family’s testimony, chronical the pain resulting from his illness and the treatment
for it. Furthermore, Mr. Dusto was married to Mrs. Dusto for approximately 48 years, and she
will likely have exceptionally sympathetic testimony to offer regarding the loss of her husband,
as would other members of the Dusto family. Allowing a severed trial in which damages issues
are presented to the jury only after the jury has addressed the knowledge, intent and substantial
certainty issues would serve to narrow the legal issues and avoid the risk of unfair prejudice to
Rogers. As the facts of this case reveal, Rogers faces the real risk that damages evidence will be
considered by a jury in determining whether or not Rogers engaged in intentional conduct that it
knew was substantially certain to cause Mr. Dusto’s illness should both conduct and knowledge
evidence be presented simultaneously with damages evidence.
Additionally, separate trials on these issues would provide a cogent and clear evidentiary
process, minimizing the risk of confusing a jury. Courts in other jurisdictions have found that
severing issues for trial is particularly appropriate in asbestos cases given the inherently complex
nature of these cases. See, e.g., Shetterly v. Raymark Indus., Inc., 117 F.3d 776, 782 (4th Cir.
1997) (bifurcating asbestos case because numerous causation issues had to be resolved before
legal theories and damages could be addressed). In Shetterly, “[t]he district court decided that
before moving to the question of negligence, strict liability, or damages, the court would first
determine whether the Plaintiffs even suffered from asbestosis, whether they inhaled asbestos
fibers from Raymark’s products, whether the inhalation was a substantial factor in their illness,
and whether each Plaintiff was entitled to any specific damages.” Shetterly, 117 F.3d at 782. In
upholding the district court’s decision, the Fourth Circuit reasoned that in complex tort cases, such
as this, bifurcation is appropriate to “ensure that the case is tried in an orderly fashion without
confusion to the jury.” Id. As discussed above, there are significant and complex legal and factual
issues of whether or not plaintiffs’ claims are even viable in this case. This Court should therefore
sever the trial of Rogers’ knowledge and conduct from the damages issues to “ensure that the case
is tried in an orderly fashion without confusion to the jury.”
Equally important is that the Plaintiffs will not suffer any similar prejudice should these
issues be severed. Bifurcation would allow all parties to present their evidence with respect to
Rogers’ knowledge and intent and ensure that the jury’s determination is based solely on the
evidence relating to this critical issue. Bifurcation would not disadvantage either the Plaintiffs or
the Defendants, but rather would allow the clearest and most straightforward presentation of the
evidence. If bifurcation occurs and the jury finds Rogers knew its intentional conduct was
substantially certain to cause Mr. Dusto’s injuries, then the case can seamlessly proceed to the
damages portion of the evidence. Conversely, should the jury find the Plaintiffs’ case with respect
to Rogers’ conduct and knowledge is insufficient, the plaintiffs’ claims are expressly barred and
a significant savings in court time would be achieved
III. CONCLUSION
WHEREFORE, and for the reasons stated above, the Defendant, Rogers Corporation,
respectfully requests that this Court grant its motion to bifurcate and sever, and order that trial shall
proceed in three phases: (1) First, the jury shall decide issues of whether or not Rogers engaged
in such intentional conduct that it knew was substantially certain to cause Mr. Dusto’s
mesothelioma and as such creates an exception to the exclusivity provision of the workers’
compensation statute; (2) Second, if a verdict is rendered in favor of the Plaintiffs against Rogers
after the first phase, the jury shall determine what, if any, compensatory damages Plaintiffs are
entitled to recover; and (3) Third, if compensatory damages are awarded, the Court shall determine
whether there is any basis for a further trial on any punitive damages sought by Plaintiffs, and, if
so, such issues shall be presented to the jury. Should the trial proceed in this fashion this Court
should preclude the Plaintiffs from any mention of damages (compensatory or punitive)
throughout this initial phase of the trial, including in any opening statement or closing argument.
Respectfully submitted,
The Defendant,
ROGERS CORPORATION,
By its attorneys,
/s/ Mark J. Hoover______________________
Mark J. Hoover
Pierce Davis & Perritano LLP
10 Post Office Square, Suite 1100N
Boston, MA 02109
(617) 350-0950
Juris No.: 410899
Dated: October 15, 2021
CERTIFICATION
I, Mark J. Hoover, hereby certify that a true copy of the above document was served
electronically via e-mail to all parties of record.
/s/ Mark J. Hoover
____________________________________
Mark J. Hoover
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STATE OF CONNECTICUT IN RE: BRIDGEPORT ASBESTOS SUPERIOR COURT JUDICIAL LITIGATION DISTRICT OF FAIRFIELD AT BRIDGEPORT DOCKET NO: FBT-CV19-6086883-S __________________________________________ ) ANITA DUSTO, EXECUTOR OF THE ) ESTATE OF HAROLD DUSTO & ) ANITA DUSTO, SURVIVING SPOUSE ) ) Plaintiffs, ) ) VS. ) ) ROGERS CORPORATION, et al., ) Defendants. ) __________________________________________) DEFENDANT ROGERS CORPORATION’S MOTION TO BIFURCATE AND SEVER I. INTRODUCTION Defendant, Rogers Corporation (“Rogers”), hereby moves, pursuant to Connecticut General Statutes § 52-205 and Practice Book § 15-1, et seq., this Honorable Court bifurcate the trial in this case and respectfully request that the issue of whether Rogers engaged in intentional conduct that it knew was substantially certain to cause Mr. Dusto’s injury be tried separately from and prior to the issue of damages. Further, if a damages trial is necessary, Rogers requests that it be conducted in two phases: compensatory damages first, followed by punitive damages if any. This is a unique asbestos-related personal injury lawsuit in which the Plaintiffs claim that decedent Harold Dusto contracted mesothelioma as a result of occupational exposures to asbestos during the course of his employment at the Rogers Corporation facility in Manchester, Connecticut. It is undisputed that the Plaintiffs claim that Mr. Dusto sustained his injury as a direct result of his employment at Rogers. It is further undisputed that employers such as Rogers are normally immune from civil litigation brought by employees, such as Mr. Dusto, who are injured in the course of their employment. The Plaintiffs also concede in this case that they cannot avoid pursuing their claims through the Connecticut workers’ compensation statutory scheme until and unless they can demonstrate that Rogers engaged in intentional conduct which it knew was substantially certain to cause employee injury. Short of meeting this very narrow exception to the exclusivity rule that is applied “only in . . . rare cases”, all the Plaintiffs’ claims in this case would be barred by the workers’ compensation statute. See Suarez v. Dickmont Plastics Corp.,229 Conn. 99, 117 (1994). There are serious legal and factual disputes in this case as to whether Rogers’ conduct was so egregious so as to defeat the workers’ compensation exclusivity provisions. See Lucenti v. Laviero, 327 Conn. 764, 783 (2018). These legal and factual disputes must be resolved first and done so without unnecessary and potentially prejudicial evidence and testimony regarding Plaintiffs’ alleged damages. II. ARGUMENT A. It Is Within The Court’s Discretion To Separate Trials In The Interests Of Convenience, Negation Of Prejudice, And Judicial Efficiency. Connecticut General Statutes § 52-205 and Practice Book § 15-1, et seq., provide that the trial court “may order that one or more issues joined be tried before the others.” This rule gives the Court broad discretion to determine how the cases on its docket are to be tried in order to avoid prejudice or when separate trials would be conducive to expedition and economy. See Barry v. Quality Steel Prods., Inc., 263 Conn. 424, 449 (2003); Reichhold Chemicals, Inc. v. Hartford Accident & Indem. Co., 243 Conn. 401, 423 (1997). “The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency…. Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue.” See Barry v. Quality Steel Prods., Inc., 263 Conn. 424, 449 (2003); Reichhold Chemicals, Inc. v. Hartford Accident & Indem. Co., 243 Conn. 401, 423 (1997); see also Saczynski v. Saczynski, 109 Conn. App. 426, 428 (2008). “In a [civil] action . . . there are two parts to a trial, the trial as to liability and the trial as to damages. The liability portion is concerned with the question or whether the defendant is responsible for the injuries complained of, i.e.,if the cause of action has been proven. If the defendant is found liable, the second part of the trial consists of determining the amount of damages recoverable from the defendant.” Right v. Breen, 88 Conn. App. 583, 587 (2005), rev’d on other grounds 277 Conn. 364 (2006). As the plaintiff’s damages do not affect the question of whether the defendant is liable for the plaintiff’s injuries, Connecticut courts have regularly bifurcated liability and damages issues. See Saczynski v. Saczynski, 109 Conn. App. 426, 429 (2008); Swenson v. Sawoska, 18 Conn. App. 597, 601 (1989). The “liability” issues in the case at hand are complex and involved. As the issue of Rogers’ knowledge, intent and the question of substantial certainty of Mr. Dusto’s injury must clearly be decided before the plaintiffs can even show that they are entitled to proceed with their case outside the exclusivity provisions of the workers’ compensation statute, any trial of damages should be bifurcated and presented to the jury only after the jury has addressed these knowledge, intent and substantial certainty issues. Furthermore, any trial of punitive damages (if any) should be severed and presented to the jury only after the jury has addressed any compensatory damages issues to avoid prejudice to Rogers. B. Bifurcation Promotes Judicial Efficiency And Economy And Avoids Prejudice And Jury Confusion. The instant case is particularly well-suited for bifurcation, because the evidence to be offered by the parties in each phase of the trial will be distinct. In this case, the primary focus is whether Rogers engaged in any intentional conduct knowing that Mr. Dusto’s injury was substantially certain to occur. Answering this question first is critical as to whether or not plaintiffs can even proceed with their claims outside the confines of the workers’ compensation statute. The issues of whether Rogers is liable to the Plaintiffs for compensatory damages or punitive damages are secondary to the issue of this knowledge and intent, and cannot be determined until these initial issues are resolved. For this reason, the vast majority of evidence to be presented by the parties will address the underlying issue of knowledge and intent (i.e., whether or not Rogers knew that Mr. Dusto’s mesothelioma was substantially certain to occur). Allowing bifurcated trial would permit the jury to arrive at a decision that determines whether or not the plaintiffs’ claims as to Rogers are even viable ones before even contemplating damages is in the interests of judicial economy and would serve to narrow the legal issues for the jury to consider. Furthermore, Plaintiffs’ anticipated evidence related to non-economic damages is so inherently sympathetic, that Rogers would be unfairly prejudiced by the simultaneous presentation of both evidence regarding intent and substantial certainty and damages evidence, particularly as there are significant and complex issues of legal liability in dispute. Importantly, the testimony and evidence on damages is not relevant at all to the Plaintiffs’ claims in this case. Plaintiffs allege that Mr. Dusto developed mesothelioma as a result of his occupational exposures to asbestos fibers from his work inside the Rogers facility. To recover in this case, the Plaintiffs must prove that Rogers intentionally engaged in conduct it subjectively believed was substantially certain to cause employee injury. If they cannot prove this, and the plaintiffs will concede, their claims are barred by the workers’ compensation statute. Mr. Dusto passed away on November 18, 2019 at the age of 71, seven months after being diagnosed with mesothelioma. His medical records, along with his and his family’s testimony, chronical the pain resulting from his illness and the treatment for it. Furthermore, Mr. Dusto was married to Mrs. Dusto for approximately 48 years, and she will likely have exceptionally sympathetic testimony to offer regarding the loss of her husband, as would other members of the Dusto family. Allowing a severed trial in which damages issues are presented to the jury only after the jury has addressed the knowledge, intent and substantial certainty issues would serve to narrow the legal issues and avoid the risk of unfair prejudice to Rogers. As the facts of this case reveal, Rogers faces the real risk that damages evidence will be considered by a jury in determining whether or not Rogers engaged in intentional conduct that it knew was substantially certain to cause Mr. Dusto’s illness should both conduct and knowledge evidence be presented simultaneously with damages evidence. Additionally, separate trials on these issues would provide a cogent and clear evidentiary process, minimizing the risk of confusing a jury. Courts in other jurisdictions have found that severing issues for trial is particularly appropriate in asbestos cases given the inherently complex nature of these cases. See, e.g., Shetterly v. Raymark Indus., Inc., 117 F.3d 776, 782 (4th Cir. 1997) (bifurcating asbestos case because numerous causation issues had to be resolved before legal theories and damages could be addressed). In Shetterly, “[t]he district court decided that before moving to the question of negligence, strict liability, or damages, the court would first determine whether the Plaintiffs even suffered from asbestosis, whether they inhaled asbestos fibers from Raymark’s products, whether the inhalation was a substantial factor in their illness, and whether each Plaintiff was entitled to any specific damages.” Shetterly, 117 F.3d at 782. In upholding the district court’s decision, the Fourth Circuit reasoned that in complex tort cases, such as this, bifurcation is appropriate to “ensure that the case is tried in an orderly fashion without confusion to the jury.” Id. As discussed above, there are significant and complex legal and factual issues of whether or not plaintiffs’ claims are even viable in this case. This Court should therefore sever the trial of Rogers’ knowledge and conduct from the damages issues to “ensure that the case is tried in an orderly fashion without confusion to the jury.” Equally important is that the Plaintiffs will not suffer any similar prejudice should these issues be severed. Bifurcation would allow all parties to present their evidence with respect to Rogers’ knowledge and intent and ensure that the jury’s determination is based solely on the evidence relating to this critical issue. Bifurcation would not disadvantage either the Plaintiffs or the Defendants, but rather would allow the clearest and most straightforward presentation of the evidence. If bifurcation occurs and the jury finds Rogers knew its intentional conduct was substantially certain to cause Mr. Dusto’s injuries, then the case can seamlessly proceed to the damages portion of the evidence. Conversely, should the jury find the Plaintiffs’ case with respect to Rogers’ conduct and knowledge is insufficient, the plaintiffs’ claims are expressly barred and a significant savings in court time would be achieved III. CONCLUSION WHEREFORE, and for the reasons stated above, the Defendant, Rogers Corporation, respectfully requests that this Court grant its motion to bifurcate and sever, and order that trial shall proceed in three phases: (1) First, the jury shall decide issues of whether or not Rogers engaged in such intentional conduct that it knew was substantially certain to cause Mr. Dusto’s mesothelioma and as such creates an exception to the exclusivity provision of the workers’ compensation statute; (2) Second, if a verdict is rendered in favor of the Plaintiffs against Rogers after the first phase, the jury shall determine what, if any, compensatory damages Plaintiffs are entitled to recover; and (3) Third, if compensatory damages are awarded, the Court shall determine whether there is any basis for a further trial on any punitive damages sought by Plaintiffs, and, if so, such issues shall be presented to the jury. Should the trial proceed in this fashion this Court should preclude the Plaintiffs from any mention of damages (compensatory or punitive) throughout this initial phase of the trial, including in any opening statement or closing argument. Respectfully submitted, The Defendant, ROGERS CORPORATION, By its attorneys, /s/ Mark J. Hoover______________________ Mark J. Hoover Pierce Davis & Perritano LLP 10 Post Office Square, Suite 1100N Boston, MA 02109 (617) 350-0950 Juris No.: 410899 Dated: October 15, 2021 CERTIFICATION I, Mark J. Hoover, hereby certify that a true copy of the above document was served electronically via e-mail to all parties of record. /s/ Mark J. Hoover ____________________________________ Mark J. Hoover