Dougan v. Sikorsky Airline Corp.

• Decision Date: 11 February 2016
• Docket Number: X03CV126033069
• Court: Connecticut Superior Court
• Parties: Danny Dougan et al. v. Sikorsky Airline Corp. et al

Danny Dougan et al. v. Sikorsky Airline Corp. et al

No. X03CV126033069

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Complex Litigation Docket

February 11, 2016

UNPUBLISHED OPINION

REVISED MEMORANDUM OF DECISION ON MOTION FOR CLASS CERTIFICATION

Grant H. Miller, J.

The court has revised its Memorandum of Decision dated February 4, 2016 for the sole Purpose of correcting a scrivener's error on page 17.

The plaintiffs, Danny Dougan, Philip Badorek, Michael Daley William Grem, IV, and Fred Ferrara, on behalf of themselves and others similarly situated, have moved for certification as a class, submitting that this action meets the requirements of Practice Book § § 9-7 and 9-8, and of General Statutes § 52-105. The action arises out of the plaintiffs' twelve-count^[1] fourth revised complaint filed by the plaintiffs on April 1, 2013, against the defendants, Sikorsky Aircraft Corporation (Sikorsky), Carrier Corporation (Carrier), and URS Corporation AES (URS).^[2] The complaint essentially alleges that the defendants permitted the plaintiffs and others similarly situated to work on a major industrial renovation project in which the defendants knew or should have known the plaintiffs and other workers would be exposed to asbestos fibers during the period between March 2010 and July 2010. More specifically, the complaint alleges that the defendants " negligently, intentionally, and/or with reckless disregard for the health and safety of the [p]laintiffs failed to remove asbestos from the work site . . . before the commencement of demolition and construction activities." The complaint alleges further that the plaintiffs " require medical surveillance, medical monitoring and future medical treatment because of their exposure to asbestos."

" The rules of practice set forth a two-step process for trial courts to follow in determining whether an action or claim qualifies for class action status. First, a court must ascertain whether the four prerequisites to a class action as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity--that the class is too numerous to make joinder of all members feasible; (2) commonality--that the members have similar claims of law and fact; (3) typicality--that the [representative] plaintiffs' claims are typical of the claims of the class; and (4) adequacy of representation--that the interests of the class are protected adequately . . . Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book § 9-8 are satisfied. These requirements are: (1) predominance--that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority--that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Practice Book § 9-8[(3)]. Because our class certification requirements are similar to those contained in Rule 23 of the Federal Rules of Civil Procedure, and our jurisprudence governing class actions is relatively undeveloped, we look to federal case law for guidance in construing the provisions of Practice Book § § 9-7 and 9-8." (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Ins Corp., supra, 277 Conn. 627-28; see also, General Statutes § 52-105 (" [w]hen the persons who might be made parties are very numerous, so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all").

" [C]lass actions serve a unique function in vindicating plaintiffs' rights. [C]lass action procedures . . . increase efficiencies in civil litigation by encouraging multiple plaintiffs to join in one lawsuit. Many jurisdictions have recognized that in certain situations, class action suits are superior to individual lawsuits . . . Connecticut's class action procedures . . . are designed to prevent the proliferation of lawsuits, and duplicative efforts and expenses . . . Accordingly, we have noted that class actions serve four essential and distinct functions, specifically, to: (1) promote judicial economy and efficiency; (2) protect defendants from inconsistent obligations; (3) protect the interests of absentee parties; and (4) provide access to judicial relief for small claimants." (Citations omitted; emphasis removed; internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 735, 818 A.2d 731 (2003).

Finally, " [The rule] governing class actions, is a procedural rule, not a matter of substantive law. This obvious underlying principle is important, because whether a class action is proper does not depend on the merits of the litigation. There will almost invariably be disputed questions of fact or law on the merits." (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., 244 Conn. 676, 680, 711 A.2d 700 (1998).

Which Legal Standard Applies?

The defendants base their opposition to the plaintiffs' motion on a factual standard contained in a recent decision of the United States Supreme Court: Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (Wal-Mart ). Therefore, the court must first determine whether to evaluate the plaintiffs' motion under the legal standard set forth in Collins I and Collins II, or that contained in Wal-Mart .

In Wal-Mart, the court stated: " Rule 23 [of the Federal Rules of Civil Procedure] does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule--that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common question of law or fact, etc." (Emphasis in original.) There, the court examined whether under FRCP 23, a certification of class action had been properly granted to a class of one and a half million plaintiffs who alleged a general policy of discrimination by their employer. Specifically, the representative plaintiffs, each of whom was female, alleged that the defendant possessed a corporate culture of discrimination that caused thousands of individual managers across the United States to discriminate against female employees, via either lower pay or the failure to recommend promotions. The Court concluded that the district court had improperly granted class certification because the representative plaintiffs had not provided " significant proof" that the defendant " operated under a general policy of discrimination." Wal-Mart, supra, 131 S.Ct. 2553.^[3]

This court finds that Wal-Mart does not control as to the factual showing required in the present case for the following four reasons.

First, the defendants have not shown that Wal-Mart has been adopted in Connecticut as the relevant pleading standard. Although it is true that Connecticut courts look to federal law for guidance on issues of class certification, Macomber v. Travelers Property & Casualty Ins. Co., supra, 277 Conn. 628; this does not mean that Connecticut courts are always bound by federal law regarding certification. Connecticut does have directly binding precedent regarding the factual showing for a motion for certification of a class action. See Collins I, supra, 266 Conn. 12; Collins II, supra, 275 Conn. 309; Macomber v. Travelers Property & Casualty Ins. Co., supra, 277 Conn. 617.

Second, the standard contained in the Collins decisions, especially Collins I, is based, in part, upon the policy of Connecticut courts to construe pleadings broadly and realistically with an eye toward sustaining their legal sufficiency. Thus, in Collins I the court stated: " A trial court does not improperly [shift] . . . the burden of establishing the class action requirements by accepting the substantive allegations of the complaint as true . . . Whether, ultimately, the plaintiffs' allegation[s] . . . will be supported by the evidence presented is a question on the merits of the plaintiffs' case. In determining the propriety of a class action . . . the question is not whether the plaintiff or plaintiffs . . . will prevail on the merits, but rather whether the requirements of [the class action rules] are met." (Internal quotation marks omitted.) Collins I, supra, 266 Conn. 38; accord Collins II, supra, 275 Conn. 318.

Based upon these principles, the court concluded that proof of the facts underlying the motion for certification of class action may be required in certain cases, but it is by no means required all the time. Collins I, supra, 266 Conn. 38. Thus, it is unlikely that the Connecticut Supreme Court would adopt the Wal-Mart standard. Wal-Mart does not address the certification of a class action within the context of the Practice Book or the general policy goals of the Connecticut Supreme Court but, rather, within the context of the Federal Rules of Civil Procedure, which " impose additional constraints on trial courts overseeing class actions beyond those imposed under [Connecticut's] rules." Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 738, 818 A.2d 731 (2003). The defendants have offered no rationale as to why the Connecticut Supreme Court might see fit to depart from Collins and adopt the stricter standard contained in Wal-Mart .

Third the Wal-Mart Court expressly concluded that under the Federal Rules, an examination of the merits of a claim was not only permissible, but very likely required in many cases. Thus, under Wal-Mart, evidence supporting the motion for class certification is typically required. In reaching this conclusion, the Court distinguished Eisen v. Carlisle &...