WSHB’s Connecticut Partner Kate Adams has demonstrated her exceptional legal prowess in the recent appellate decision of Harold Dusto et. al. v. Rogers Corporation et. al., No.45341, 2023 WL 6964115 (Conn. App. Ct. Oct. 24, 2023). The court, relying on Kate's analysis presented before the Connecticut Supreme Court in the groundbreaking 2018 case, Lucenti v. Laviero, 327 Conn. 764, 176 A.3d 1 (2018), adopted the factors she put forth to determine whether a plaintiff employee has sufficient evidence to fall within a narrow exception to workers' compensation immunity.

In Lucenti, Kate skillfully briefed and argued for the defense before the Connecticut Supreme Court, demonstrating that the Workers’ Compensation Act exclusivity provision barred plaintiff’s claims and that the narrow intentional tort/substantial certainty exception to exclusivity was inapplicable as a matter of law. In so arguing, Kate focused on the public policy behind the Act, the subjective nature of the relevant inquiry, and the significant threshold a plaintiff must satisfy to establish an exception to immunity. In adopting the defendant’s position, the Lucenti Court incorporated what is now known as the Lucenti factors to determine if a plaintiff employee has enough evidence to meet the stringent criteria for the narrow exception. Ultimately, the Lucenti Court agreed with the defense, affirming the trial court's decision to grant the employer's motion for summary judgment and establishing the employer's immunity as a matter of law. This victory not only secured a favorable outcome for the client but also showcased Kate's legal expertise and unparalleled abilities on esteemed legal platforms.

Recently, the Appellate Court applied the Lucenti factors in the Dusto case, finding that the lower court erred in granting the employer's motion for summary judgment. The court determined that there were genuine issues of fact pertaining to whether the plaintiff's claims satisfied the substantial certainty exception to the Act's exclusivity. The case, Harold Dusto et. al. v. Rogers Corporation et. al., No.45341, 2023 WL 6964115 (Conn. App. Ct. Oct. 24, 2023), stands as a testament to Kate's impact and thought leadership. Numerous amicus briefs were filed, expressing significant concerns about the plaintiff's appellate position, including arguments that the plaintiff was seeking to unduly expand the substantial certainty exception and weaken employers' immunity.

The Dusto case involved an appeal from a summary judgment in favor of Rogers Corporation, which allegedly sold materials containing asbestos. The decedent, who was exposed to these materials, ultimately succumbed to mesothelioma. The estate claimed that the employer was aware of the asbestos but failed to inform employees and downplayed the number of asbestos-related complaints. The employer argued that it was entitled to summary judgment based on the exclusivity provision of the Connecticut Workers' Compensation Act.

Implementation of the Lucenti Factors by the Court

The court used the Lucenti factors in analyzing the opposing arguments. It considered the following four factors to determine whether an employee plaintiff has met the substantial certainty test:

  • “Prior similar accidents related to the conduct at issue that have resulted in employee injury, death, or a near-miss;
  • Deliberate deceit on the part of the employer with respect to the existence of a dangerous condition,
  • Intentional and persistent violations of safety regulations over a lengthy period of time, and
  • Affirmative disabling of safety devices.”

After considering these factors, the trial court ruled that the estate did not satisfy the substantial certainty test in order to avoid the Act’s exclusive remedy provision. It found only nine cases relating to workers’ compensation claims for asbestos exposure in the facility during the 1970s and early 1980s. As for deliberate deceit, the court did concede that Rogers was not forthcoming with information regarding potentially dangerous conditions, but it did begin to implement safety measures in the 1970s. The court did not find any affirmative disablement of any safety devices. Based on these conclusions, the lower court found that the claim should be dismissed.

On appeal, however, the Appellate Court disagreed and found that the plaintiff had satisfied the Lucenti factors. It pointed to evidence presented by the plaintiffs that the employer was aware of the risks of asbestos and that approximately ten employees had filed asbestos-related claims by the early 1980s. It also showed that the employer did not inform its employees of the risks of exposure to asbestos or that they regularly tested the levels at the facility. It concluded that the case should be examined by a finder of fact to determine if they had a viable claim.

Notably, the dissenting opinion, authored by Judge Prescott, focused on factors that were highlighted by the defense in Lucenti, including the subjective nature of the governing standard, public policy considerations, and the exception’s narrow scope. The dissent also questioned whether there should be a distinct analysis with respect to occupational diseases caused by long-term exposure to dangerous substances in the workplace. The dissenting opinion provides a roadmap for briefing to the Connecticut Supreme Court in the event the Court grants a petition for certification.

Regardless of the ultimate outcome, this case illustrates factors that Connecticut courts assess in determining the scope of an employer’s immunity and provides guidance to employers regarding important considerations for developing workplace policies, as well as practices. The analysis for this tricky area of the law was guided in part by WSHB’s own Kate Adams. For more information on Kate Adams and her practice as well as WSHB's Hartford, Connecticut office, please visit

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