DAVID W. SKOLNICK, Judge Trial Referee.
Plaintiff Dorothy Drucker and her husband Paul Drucker filed the instant claim against multiple defendants, including Viking Pump, Inc., the defendant herein, for personal injuries sustained as a result of Paul Drucker's exposure to asbestos containing products while in the Navy from 1943 to 1950. Thereafter, upon re-enlisting Mr. Drucker worked as a man-power and planning estimator at General Dynamics from 1950 to 1988. As a result of his exposure to asbestos while in the Navy and, while working for General Dynamics, he developed mesothelioma which caused his death on May 3, 2007.
There is no question but that Paul Drucker was exposed to asbestos while in the Navy and while working at General Dynamics locations in Groton, Connecticut and the Quincy Shipyard in Boston, and that such exposure was the course of his mesothelioma and death. The court, however, must determine whether there is admissible evidence before it that Viking Pumps contained asbestos and that Mr. Drucker was exposed to said asbestos which contributed ato causing his death.
The court has examined Viking Pump Inc.'s "Response to Plaintiffs' Request for Admission, Interrogatories and Requests for Production" dated September 16, 2009. Responses of said Request are material to the issue of whether asbestos containing products of Viking were present in Drucker's work area:
"2. Admit that the defendant specified, recommended and/or required that its equipment on board the following submarines utilize asbestos-containing gasket material:
a. USS Trutta e. USS Skate i. USS Tullibee b. USS Corsair f. USS Skipjack j. USS George Washington c. USS Nautilus g. USS Triton k. USS Patrick Henry d. USS Seawolf h. USS Scorpion l. USS Thomas Edison CT Page 3155 m. USS Lafayette n. USS Greenling o. USS Gato p. USS Sturgeon q. USS Flying Fish r. USS Philadelphia s. USS Albuquerque."
Referring to the above ships the defendant stated the following: "To the extent this Request asks for an admission that pumps that had asbestos containing gaskets manufactured by Viking Pump were approved for use on naval vessels, Viking Pump admits that such pumps were approved for use" on the above ships.
Furthermore, in admission #3 the defendant admitted that "Between 1911 and 1986," asbestos-containing packing" as well as "gasket material" "were used in some of the pumps as an internal component within the pump." According to plaintiff's memorandum in opposition, Drucker while working at General Dynamics worked aboard seventeen (17) different submarines doing overhaul and/or construction identified as the Nautilus, Seawolf, Skate, Skipjack, Triton, Scorpion, Tullibee, George Washington, Patrick Henry, Thomas Edison, Lafayette, Greenling, Gato, Sturgeon, Flying Fish, Philadelphia and Albuquerque.
Returning again to Viking's Response referred to above, the following occurs on page 16:
"Subject to and without waiver of the foregoing general objections . . . Viking sold some pumps to the Navy pursuant to government contracts. Viking drawings and/or other documents indicate that certain asbestos containing pumps manufactured by Viking Pump were approved for use on the following naval vessels identified in plaintiff's discovery responses:
USS Tullibee; USS Thomas Edison; USS Lafayette; USS Sturgeon; USS Flying Fish; USS Philadelphia; and, USS Albuquerque."
The court finds that Viking Pump's admissions as recounted, create a material issue of fact as to whether asbestos gaskets and/or asbestos packing in connection with their pumps contributed to the asbestos particles in the air in the work environment of the plaintiff during his Navy stint from 1943 to 1950 and his Work at General Dynamics from 1950 to 1988.
Such an issue of fact should be determined by the finder of fact at trial. As held by Rhode Island Superior Court Justice Alice Gibrey in the asbestos context.
"So extreme a remedy as summary judgment should not be CT Page 3156 used as a substitute for trial or as a device intended to place a difficult burden on nonmovmg parties to have his (or her) day in court unless it is clear that no genuine issue of fact remains to be tried."
North American Planning Corp. v. Guido, 289 A.2d 423, 110 R.I. (1972). "A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment."
Mitchell v. Mitchell, 756 A.2d 179 R.I. (2000).
Accordingly, the defendant Viking Pump Inc.'s motion for summary judgment is denied.
CT Page 3157