Dougan v. Sikorsky Aircraft Corp.

• Decision Date: 14 September 2020
• Docket Number: SC 20271
• Court: Connecticut Supreme Court
• Parties: Danny DOUGAN v. SIKORSKY AIRCRAFT CORPORATION et al.

337 Conn. 27

251 A.3d 583

Danny DOUGAN

v.SIKORSKY AIRCRAFT CORPORATION et al.

SC 20271

Supreme Court of Connecticut.

Argued December 18, 2019

Officially released September 14, 2020^**

Keith Yagaloff, South Windsor, for the appellants (plaintiffs).

John W. Cerreta, with whom was James H. Rotondo, Hartford, for the appellees (named defendant et al.).

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^*

ROBINSON, C. J.

This appeal requires us to consider the proof necessary to establish a claim for medical monitoring, the availability of which is a question of first impression under Connecticut law. The plaintiffs Philip Badorek, Michael Daley, William Grem IV, and Fred Ferrara¹ appeal from the judgment of the trial court rendered in favor of the defendants Sikorsky Aircraft Corporation (Sikorsky) and Carrier Corporation (Carrier)² on their medical monitoring claims, which stemmed from a workplace asbestos exposure at Sikorsky's cogeneration project in Stratford. On appeal,³ the plaintiffs claim that the trial court improperly granted the defendants’ motion for summary judgment because (1) a genuine issue of material fact exists with respect to the issue of physical injury because the plaintiffs each currently suffer from a subclinical injury as a result of asbestos exposure, and (2) Connecticut law permits a cause of action⁴ for medical monitoring. We conclude that the trial court properly granted the defendants’ motion for summary judgment, albeit on alternative grounds, because, even if we were to recognize a medical monitoring claim in the absence of any physical manifestation of injury under Connecticut law, the plaintiffs nevertheless failed to establish a genuine issue of material fact as to certain elements of the claim, in particular, whether the provision of medical monitoring is reasonably necessary for them. Accordingly, we affirm the judgment of the trial court.

The record reveals the following undisputed relevant facts and procedural history. In September, 2009, Sikorsky began work on a cogeneration project at its manufacturing facilities in Stratford. Sikorsky hired Carrier as the general contractor responsible for the project, which involved building a new cogeneration plant and renovating Sikorsky's existing boiler house. Three of the plaintiffs, Badorek, Daley, and Grem, were employed by B-G Mechanical Contractors, Inc. (B-G Mechanical), one of Carrier's subcontractors on the cogeneration project. B-G Mechanical employees were responsible for removing pipe from Sikorsky's boiler house. As a result, these plaintiffs were present at various times at the site from March, 2010, to July, 2010. The fourth plaintiff, Ferrara, was employed by Tucker Mechanical, Inc., another subcontractor, and was present on site for a period of time in March, 2010.⁵

At some point during the project, some workers began to complain of sore throats. Then, on July 7 or 8, 2010, a B-G Mechanical employee discovered what he believed to be asbestos present in the boiler house. Sikorsky then performed testing that confirmed the presence of asbestos in the boiler house and in an exterior dumpster. As a result, Sikorsky halted the project on or about July 23, 2010, in order to remediate the asbestos. The plaintiffs asserted in their complaint that Sikorsky was aware of the presence of asbestos in the boiler house before work on the project began. In response, Sikorsky admitted that, after performing surveys in 2001 and 2008, asbestos had been discovered in a small amount of pipe insulation in the boiler house basement but averred that the Sikorsky employees in charge of the cogeneration project were unaware of this fact.

The named plaintiff, Danny Dougan; see footnote 1 of this opinion; brought a class action complaint in May, 2012, against Sikorsky, Carrier, and URS Corporation AES (URS).⁶ The operative complaint, filed on April 1, 2013, includes claims of negligence, battery, recklessness, and strict liability for violations of the federal Clean Air Act, 42 U.S.C. § 7401 et seq., on behalf of Dougan, Grem, Daley, Badorek, and Ferrara individually, as well as "all others similarly situated who were exposed to asbestos while working at the [Sikorsky cogeneration project in Stratford] from the period of approximately March, 2010, to mid-July, 2010, and who are now seeking to pursue remedies for said exposure." The plaintiffs sought compensatory damages, punitive damages, the costs of medical monitoring, and the establishment of a "court monitored fund" for the payment of medical monitoring of asbestos related diseases.⁷

In March, 2016, Carrier and Sikorsky moved for summary judgment on all counts of the plaintiffs’ complaint.⁸ The defendants contended that the plaintiffs had not suffered actual injuries and, instead, sought medical monitoring for a risk of future injury, which they claimed is not a cognizable claim under Connecticut law. Specifically, they argued that (1) the court should not recognize a remedy for medical monitoring based on exposure alone, (2) even under the plaintiffs’ theory of recovery, summary judgment is appropriate because Dougan could not prove that his need for medical monitoring resulted from asbestos exposure, and because the other four plaintiffs failed to produce any expert testimony demonstrating their need for medical monitoring, and (3) certain claims failed as a matter of law, specifically, the plaintiffs’ claims for battery, strict liability, and punitive damages. The defendants filed numerous exhibits in support of their motion, including excerpts of deposition transcripts of the plaintiffs’ two medical experts, M. Saud Anwar and Oyebode Taiwo, and the defendants’ medical expert, Barry W. Levine. Levine's deposition testimony discussed his examination of Dougan and the general effects of asbestos exposure, including the long latency period before asbestos related diseases manifest. In their depositions, both Anwar and Taiwo stated that they had not formed any opinions regarding the claims of Grem, Badorek, Daly, or Ferrara. Additionally, Anwar acknowledged that "a significant percentage of people who are exposed to and inhale asbestos ... never develop clinical symptoms ...."

The plaintiffs filed an objection to the summary judgment motion, contesting the defendants’ characterization of their knowledge of the presence of asbestos, the current status of the law of medical monitoring, and the public policy reasons against extending liability. Along with their objection, the plaintiffs included an affidavit from Anwar. Anwar's three page affidavit specifically addressed his treatment of Dougan and concluded that Dougan suffered from a "significantly increased risk of contracting a serious disease," and also discussed generally the risks of asbestos, such as the injuries asbestos fibers cause to a person's lungs when inhaled. Additionally, the affidavit stated that "[o]ther individuals who were exposed to asbestos during the demolition work at Sikorsky should be monitored for the early detection and intervention of an asbestos related disease ...." The plaintiffs also submitted other exhibits concerning the presence of asbestos at Sikorsky and the defendants’ actions surrounding the incident, but they provided no further expert testimony.

On March 28, 2017, the trial court granted the defendants’ motion for summary judgment. See footnote 8 of this opinion. In its memorandum of decision, the trial court reviewed the evidence in the record and determined that no expert had examined or reviewed the medical records of any of the plaintiffs other than Dougan and that all of the plaintiffs admitted that they had not been diagnosed with an asbestos related disease, specifically, "mesothelioma

, lung cancer, asbestosis, or pleural effusions." As a result, the trial court determined that the plaintiffs had not presented evidence demonstrating a genuine issue of material fact as to physical injury. The trial court then applied the public policy test outlined in Lawrence v. O & G Industries , Inc. , 319 Conn. 641, 650–51, 126 A.3d 569 (2015), and declined to recognize a cause of action for medical monitoring under Connecticut law that would allow recovery for an increased risk of future injury rather than a present injury. Accordingly, the court granted the defendants’ motion for summary judgment, vacated the class certification order, and rendered judgment for the defendants on the remaining counts. See footnotes 7 and 8 of this opinion. The trial court later denied the plaintiffs’ motion for reargument or reconsideration. This appeal followed. See footnotes 1 and 3 of this opinion.

On appeal, the plaintiffs argue that the trial court incorrectly concluded that medical monitoring claims in the absence of clinical symptoms should not be permitted under Connecticut tort law. The plaintiffs further argue that the trial court incorrectly determined that there was no genuine dispute of material fact as to their injuries because they suffer from subclinical injuries as a result of their asbestos exposure. In response, the defendants counter that the trial court properly declined to create a medical monitoring remedy for asymptomatic plaintiffs exposed to toxic substances in the absence of physical harm. As an alternative ground for affirming the judgment of the trial court, the defendants argue that, even if this court were to recognize medical monitoring as a cause of action, the plaintiffs’ claims would still fail because they are not supported by "reliable, scientific evidence ...."⁹ We agree with the defendants that, even if we were to recognize a remedy in Connecticut for medical monitoring in the absence of the present manifestation of physical harm, the plaintiffs’ claims would still fail as a matter of law because the plaintiffs failed to prove that monitoring was medically necessary.

We first set forth the applicable standard of review. " Practice Book [§ 17-49 ] provides...