STATE OF CONNECTICUT
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`IN RE: BRIDGEPORT ASBESTOS
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` LITIGATION
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`SUPERIOR COURT JUDICIAL
`DISTRICT OF FAIRFIELD AT
`BRIDGEPORT
`DOCKET NO: FBT-CV23-6120092S
`__________________________________________
`CONRAD JOHNS and ELIZABETH JOHNS )
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`Plaintiffs,
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`VS.
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`ALFA LAVAL, INC., individually And as
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`successor in interest to DeLaval Purifier and
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`Sharples Corp., et al.,
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`Defendants.
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`__________________________________________)
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`DEFENDANT INTERNATIONAL BUSINESS MACHINES CORPORATION’S
`MOTION TO STRIKE PLAINTIFFS’ COMPLAINT
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`Pursuant to Conn. Prac. Book §10-39 et seq. the Defendant, International Business
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`Machines Corporation (“IBM”) respectfully moves to strike all Counts of the Plaintiffs’ Complaint
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`against IBM. As more fully set forth in the attached memorandum of law, the Plaintiffs’ claims
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`as to IBM are legally insufficient to the extent they arise from plaintiff Conrad John’s alleged
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`exposure to asbestos during the course of his employment by IBM. Accordingly, any such claims
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`are barred by the exclusivity provision of the Connecticut Workers’ Compensation Act, Conn.
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`Gen. Stat. Ann. §31-284(a). Furthermore, as any loss of consortium claims are derivative of Mr.
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`John’s claims against IBM, they too should be stricken. In addition, IBM seeks a protective order
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`staying any discovery against it pending the resolution of the within Motion to Strike.
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`WHEREFORE, IBM respectfully requests that this Court strike all Counts against it and
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`issue a protective order staying any discovery against IBM pending the resolution of this motion.
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`Respectfully submitted,
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`The Defendant,
`INTERNATIONAL BUSINESS MACHINES
`CORPORATION,
`By its attorneys,
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`/s/ Mark J. Hoover______________________
`Judith A. Perritano
`Mark J. Hoover
`Pierce Davis & Perritano LLP
`10 Post Office Square, Suite 1100N
`Boston, MA 02109
`(617) 350-0950
`Juris No.: 440446
`Juris No.: 410899
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`CERTIFICATION
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`Dated: March 3, 2023
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`I, Mark J. Hoover, hereby certify that a true copy of the above document was served
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`electronically via e-mail to all parties of record.
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`/s/ Mark J. Hoover
`____________________________________
`Mark J. Hoover
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`STATE OF CONNECTICUT
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`IN RE: BRIDGEPORT ASBESTOS
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` LITIGATION
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`SUPERIOR COURT JUDICIAL
`DISTRICT OF FAIRFIELD AT
`BRIDGEPORT
`DOCKET NO: FBT-CV23-6120092S
`__________________________________________
`CONRAD JOHNS and ELIZABETH JOHNS )
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`Plaintiffs,
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`VS.
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`ALFA LAVAL, INC., individually And as
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`successor in interest to DeLaval Purifier and
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`Sharples Corp., et al.,
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`Defendants.
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`__________________________________________)
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`INTERNATIONAL BUSINESS MACHINES CORPORATION’S
`MEMORANDUM IN SUPPORT OF MOTION TO STRIKE AND FOR ISSUANCE OF
`PROTECTIVE ORDER
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`INTRODUCTION
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`Defendant
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`International Business Machines Corporation
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`(“IBM”) submits
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`this
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`Memorandum in Support of its Motion to Strike plaintiffs’ claims against it. IBM so moves on
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`the grounds that to the extent that plaintiffs’ claims arise from plaintiff Conrad John’s alleged
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`exposure to asbestos during the course of his employment by IBM, those claims are barred by the
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`Workers’ Compensation exclusivity defense. IBM further moves for a protective order staying
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`discovery against it pending the resolution of this motion.
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`FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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`Plaintiffs Conrad Johns and Elizabeth Johns commenced this action on or about December
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`13, 2022, naming thirty (30) defendants, including IBM. Plaintiffs brought this action to recover
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`for personal injuries allegedly caused by plaintiff Conrad Johns’ exposure to asbestos.1
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`The Nature of the Matter Before the Court:
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`A)
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`This is an action to recover damages for injuries arising from plaintiff Conrad Johns’
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`alleged exposure to asbestos while working in the Navy, during his employment by IBM, and
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`through non-occupational automotive repair work. See plaintiffs’ complaint, a copy of which is
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`annexed hereto as Exhibit “A,” at ¶ 5.
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`The complaint does not provide much in the way of factual detail beyond the brief summary
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`provided above. Indeed, the specifics – such as they are -- of plaintiffs’ claims are quoted below
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`in their entirety:
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`The Plaintiff, CONRAD JOHNS, was exposed to asbestos-containing products
`while serving in the Navy from approximately 1959-1963, during his employment
`with International Business Machines Corporation in the mid-to-late 1960s, and
`through the performance of automotive repair work on his family’s personal
`vehicles. Such exposure contributed in part or totally to the Plaintiff’s contraction
`of asbestos-related mesothelioma and other asbestos-related pathologies.
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`Id.
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`There are, literally, no other specific factual allegations regarding the details of plaintiff’s
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`alleged exposure, only boilerplate and conclusory allegations of the various legal elements of the
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`counts (product liability against all defendants; recklessness as to all defendants; and loss of
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`consortium) thereafter alleged. The exact nature of the claims against IBM is, therefore,
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`necessarily somewhat ill-defined and undetermined at this juncture.
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`1 As plaintiff Elizabeth Johns’ claim for loss of consortium is purely derivative, all references to “plaintiff,”
`singular, will be to plaintiff Conrad Johns.
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`Nonetheless, a fair reading of the allegations presented in paragraph 5 of plaintiffs’
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`complaint suggests that plaintiff alleges three distinct sources of exposure:
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`1)
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`2)
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`exposure from some unknown source or sources during his Naval service
`from 1959 to 1963;
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`exposure from some unknown source or sources while employed by IBM
`in the mid-to-late 1960s; and
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`3)
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`exposure from automotive repair work during some unknown period of
`time.
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`Stated otherwise, the most reasonable interpretation of paragraph 5 is that plaintiffs’
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`claims against IBM arise out of, and in the course of his employment by IBM, since it is hard to
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`see why plaintiffs would claim that IBM should be held responsible for plaintiff’s alleged
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`exposure to asbestos “during his employment with” IBM unless said exposure arose out of his
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`employment by IBM in some fashion. But if that is, in fact, the basis for plaintiffs’ claims
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`against IBM, then those claims are barred by Connecticut’s Workers’ Compensation exclusivity
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`defense.
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`Thus, under long-settled Connecticut law, IBM is entitled to the dismissal of any claims
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`against it arising from plaintiff’s employment by IBM. IBM also respectfully submits that a
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`protective order staying discovery against it should be granted pending the resolution of this
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`motion.
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`SUMMARY OF THE ARGUMENT
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`1. Plaintiffs’ claims are barred by the Workers’ Compensation exclusivity defense
`of Connecticut:
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`Under a fair reading of the complaint, plaintiffs’ claims against IBM arise from his
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`alleged employment by IBM. Connecticut Courts have interpreted the exclusivity provision of
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`the Workers’ Compensation Act very strictly, and there is no allegation to support any exception
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`to that defense. Therefore, plaintiffs’ claims, to the extent they arise from his alleged
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`employment by IBM, are barred by Connecticut Workers’ Compensation exclusivity bar.
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`2. This Court should issue a protective order staying discovery from IBM pending
`the resolution of this motion:
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`Connecticut’s Practice Book § 13-5 embodies the general principle that the court may limit
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`discovery so as to protect a party from annoyance, embarrassment, oppression, undue burden, or
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`expense. It is beyond reasonable dispute that requiring a party to respond to discovery when there
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`is no viable cause of action against it results in oppression, undue burden, and expense.
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`Consequently, where, as here, a plaintiff does not appear to have stated a viable cause of action, a
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`protective order staying discovery is a reasonable case management tool to prevent such
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`oppression, undue burden, and expense. See, Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8,
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`14 –15, 961 A.2d 1016 (2009); see also, Rosado v. Bridgeport Roman Catholic Diocesan, 276
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`Conn. 168, 221 n.59, 884 A.2d 981 (2005) (“Although a protective order is indeed a case
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`management tool, it most frequently is used to remediate the unduly harsh or unfair consequences
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`that otherwise might result from a party's obligation, arising under our rules of practice, to
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`divulge information of a particularly private or sensitive nature”).
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`In this instance, plaintiffs’ claims against IBM are not viable because plaintiff’s claims, to
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`the extent they arise from his alleged employment by IBM, are barred by the Connecticut Workers’
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`Compensation exclusivity bar. Discovery from IBM will not alter that fact. To require IBM to
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`produce responses to discovery requests that are ultimately irrelevant because plaintiffs’ claims
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`against IBM are barred by the Connecticut Workers’ Compensation exclusivity bar would,
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`therefore, subject IBM to “annoyance, . . . oppression, . . . undue burden [and] expense.”
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`Connecticut Practice Book § 13-5 (2023). Accordingly, this Court should issue a protective order
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`staying discovery from IBM pending the resolution of the instant motion.
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`ARGUMENT
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`1. PLAINTIFFS’ CLAIMS AGAINST IBM ARE BARRED BY THE WORKERS’
`COMPENSATION EXCLUSIVITY DEFENSE
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`Under the Connecticut Workers' Compensation Act (WCA), “[a]n employer who
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`complies with the requirements of subsection (b) of this section shall not be liable for any action
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`for damages on account of personal injury sustained by an employee arising out of and in the
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`course of his employment or on account of death resulting from personal injury so sustained . . .
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`.” See, Conn. Gen. Stat. Ann. § 31-284 (a). The Act is designed to hold the employer liable for
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`most job-related injuries to employees without regard to fault, so that injured employees have
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`quick and certain access to compensation, while relieving the employer of the burdens associated
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`with tort actions. See, Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 114-15 (1994) (Suarez
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`I); see also, Mingachos v. CBS, Inc., 196 Conn. 91, 97 (1985).
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`Accordingly, the WCA is generally the exclusive remedy for personal injuries arising out
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`of and in the course of employment. See, Conn. Gen. Stat. § 31-284(a), supra. The Connecticut
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`Supreme Court interprets “the exclusivity provision of the act, General Statutes § 31-284(a), as a
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`total bar to common law actions brought by employees against employers for job related injuries
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`with one narrow exception that exists when the employer has committed an intentional tort or
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`where the employer has engaged in wilful or serious misconduct.” See, Suarez I at 106 (Conn.
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`1994), supra; see also, Lucenti v. Laviero, 327 Conn. 764 (2018); Hassiem v. O&G Industries,
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`197 Conn. App. 631 (2020) (affirming the grant of summary judgment because there was no
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`genuine issue of material fact as to whether the employer intentionally created a dangerous
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`condition that made the employee’s injuries substantially certain to occur). See, Jett v. Dunlap,
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`179 Conn. 215, 217 (1979).
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`This is a very limited exception, and is strictly construed. In 1994, the Court ruled in
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`Suarez I that to overcome the exclusivity bar an employee must plead and prove that the
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`employer (1) actually intended to cause the injury or (2) intentionally created a dangerous
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`condition that made the injury substantially certain to occur. See, Suarez I, 229 Conn. at 102,
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`supra.
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`In 1997, the Court revisited this exception in Suarez II. The Court explained that a
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`plaintiff may escape the exclusivity of the Act and maintain a civil suit against his employer only
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`by demonstrating either (1) that the employer intended both the act itself and its injurious
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`consequences (“the intended tort theory”), or (2) that the employer intended the act and knew
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`that it was substantially certain to cause the injury (“the substantial certainty theory”). See,
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`Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280 (1997) (Suarez “II”); see also, Reliance
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`Nat. Ins. Co. v. Vitale, 183 F. Supp.2d 506 (D.Ct. 2001).
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`In this case, plaintiffs’ complaint alleges exposure to asbestos while working in the Navy,
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`during his employment for IBM, and through non-occupational automotive repair work. See, Ex.
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`A at ¶ 5. While there are almost no specific factual details in plaintiffs’ complaint, the only
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`allegation that even names IBM is that plaintiff Conrad Johns “was exposed to asbestos-
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`containing products . . . during his employment with International Business Machines (“IBM”) in
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`the mid-to-late 1960s.” See, Ex. A at ¶ 5. The most reasonable interpretation of that allegation
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`against IBM is that the alleged exposure somehow arose out of, and in the course of, his
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`employment by IBM, since there would be little purpose to be served in mentioning that
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`employment in that context otherwise. As such, plaintiffs’ claims against IBM are subject to,
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`and barred by, the exclusivity provision of the WCA.
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`Notably, there are no allegations in the complaint that any such alleged exposure during
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`his employment by IBM occurred because IBM intended both the exposure and its injurious
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`consequences (“the intended tort theory”), or (2) that the IBM intended the exposure and knew
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`that it was substantially certain to cause the injury, as required under Suarez “II.” And in this
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`regard, the procedural history in Hassiem v. O & G Industries, Inc., 232 A.3d 1139, 197 Conn.
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`App. 639 (2020) bears noting.
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`In that case, the defendant initially filed a motion to strike the plaintiff’s original
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`complaint on the grounds that it failed to allege facts in support of an intentional act, and the
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`court granted the motion. The plaintiff subsequently filed a revised complaint, presumably
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`adding such allegations. The later grant of summary judgment dismissing the revised pleading
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`was the subject of the appeal. Hassiem, 197 Conn. App. 631 at 1143, n.2
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`Here too, as in the original complaint in Hassiem, there are no alleged facts in support of
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`any intentional act(s) by IBM. Therefore, as in Hassiem, plaintiffs have failed to state a claim
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`under the requirements set forth in Suarez II, and IBM’s motion to strike should be granted.
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`2. THE COURT SHOULD STAY DISCOVERY PENDING RESOLUTION OF THE
`INSTANT MOTION
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`IBM’s motion for a protective order is founded upon the proposition that, in the absence
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`of a viable cause of action, a plaintiff should not be allowed to subject a defendant to discovery
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`because there can be no relevant facts to discover. That proposition is derived from the
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`definition of the scope of permissible discovery as defined in the Practice Book.
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`Section 13-2, Scope of Discovery, provides in pertinent part that
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`a party may obtain in accordance with the provisions of this chapter discovery of
`information . . . material to the subject matter involved in the pending action . . . .
`Discovery shall be permitted if the disclosure sought would be of assistance in the
`prosecution or defense of the action and if it can be provided by the disclosing
`party or person with substantially greater facility than it could otherwise be
`obtained by the party seeking disclosure. It shall not be ground for objection that
`the information sought will be inadmissible at trial if the information sought
`appears reasonably calculated to lead to the discovery of admissible evidence.
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`Practice Book § 13-2 (emphasis added). Where, as here, the plaintiff’s cause of action is subject
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`to a statutory bar, it necessarily follows that – unless there is good reason to believe that the
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`information sought would support an exception to the statutory bar –any disclosure sought would
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`not “be of assistance in the prosecution . . . of the action” because the plaintiff has no cause of
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`action that any requested facts might be “material to.” To permit general discovery under such
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`circumstances would be an abuse of the discovery process.
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`A protective order is well suited to prevent such abuse. Pursuant to Practice Book § 13-5,
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`“[u]pon motion by a party from whom discovery is sought, and for good cause shown, the
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`judicial authority may make any order which justice requires to protect a party from annoyance,
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`embarrassment, oppression, or undue burden or expense, including one or more of the following:
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`(1) that the discovery not be had [. . .].” See, Conn. Practice Book § 13-5. To subject an
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`employer to discovery where the Workers’ Compensation exclusivity defense bars the action and
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`renders the discovery sought irrelevant is to subject that employer to “annoyance, oppression, . . .
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`undue burden [and] expense.”
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`The party seeking a protective order under Practice Book § 13-5 bears the burden of
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`establishing the required “good cause.” Welch v. Welch, 48 Conn. Supp. 19, 20 (Super. Ct.
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`2003) (quoting Practice Book § 13-5). “Good cause has been defined as ‘a sound basis or
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`legitimate need to take judicial action.’” Id. It “must be based upon a particular and specific
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`demonstration of fact, as distinguished from stereotyped and conclusory statements.” Id.
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` In this case, IBM submits that the high cost of participating in discovery, combined with
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`the futility of conducting discovery in light of IBM’s meritorious motion to strike, supplies
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`“good cause” for the issuance of a protective order. Plaintiffs’ claims against IBM insofar as
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`arising from plaintiff’s employment by IBM are barred by the Connecticut Workers’
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`Compensation exclusivity defense. See supra. There is no reason to believe – and certainly
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`nothing in plaintiffs’ complaint to suggest -- that discovery from IBM will produce any evidence
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`that IBM intentionally exposed plaintiff to asbestos and intended to cause his asbestos-related
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`injuries, as would be required to support an exception to the Workers’ Compensation exclusivity
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`defense. Any discovery, therefore, would necessarily subject IBM to “annoyance, . . .
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`oppression, . . . undue burden [and] expense.” Connecticut Practice Book § 13-5 (2023).
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`Accordingly, it is respectfully requested that this Court issue an Order, pursuant to Conn.
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`Practice Book § 13-5 (2023) staying discovery pending resolution of IBM’s meritorious motion
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`for dismissal of the claims against it.
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`CONCLUSION
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`WHEREFORE, for the reasons set forth above, it is respectfully submitted that IBM is
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`entitled to: a) an order staying discovery pending the determination of this motion; and b) dismissal
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`of all claims against IBM that are predicated upon plaintiff’s alleged employment by IBM because
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`they are barred by the Connecticut Workers’ Compensation exclusivity bar.
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`Respectfully submitted,
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`The Defendant,
`INTERNATIONAL BUSINESS MACHINES
`CORPORATION,
`By its attorneys,
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`/s/ Mark J. Hoover______________________
`Judith A. Perritano
`Mark J. Hoover
`Pierce Davis & Perritano LLP
`10 Post Office Square, Suite 1100N
`Boston, MA 02109
`(617) 350-0950
`Juris No.: 440466
`Juris No.: 410899
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`CERTIFICATION
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`Dated: March 3, 2023
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`I, Mark J. Hoover, hereby certify that a true copy of the above document was served
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`electronically via e-mail to all parties of record.
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`/s/ Mark J. Hoover
`____________________________________
`Mark J. Hoover
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