Cortez v. Lamorak Ins. Co.
| Docket Number | Civil Action 20-2389 |
| Decision Date | 03 August 2022 |
| Parties | CALLEN J. CORTEZ, ET AL. v. LAMORAK INSURANCE COMPANY, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “R” (1)
ORDER AND REASONS
Before the Court is defendant Legacy Vulcan, LLC's (“Vulcan”) motion for summary judgment.[1] Plaintiffs, Huntington Ingalls, Inc. (“Avondale”), and Continental Insurance Company (“Continental”) oppose the motion.[2]Because material facts remain in dispute, the Court denies Vulcan's motion.
This is an asbestos exposure case. Plaintiffs allege that Callen Cortez contracted mesothelioma as a result of, inter alia, working with asbestoscontaining insulation and removing and installing asbestos-containing gaskets at Vulcan's facility in Geismar, Louisiana.[3] On July 1, 2020 Cortez sued Vulcan, and approximately thirty-four other defendants, including former employers, manufacturers, and insurance companies.[4] In his petition, Cortez alleged various negligence and strict liability claims against Vulcan as a premises owner.[5] Callen Cortez passed away on May 26, 2022.[6]Cortez's surviving spouse and children filed an amended complaint on June 6, 2022,[7] substituting themselves as plaintiffs in a survival action and seeking additional damages arising from Cortez's alleged wrongful death.[8]
Vulcan now moves for summary judgment, seeking the dismissal of plaintiffs' negligence and strict liability claims against it.[9] Plaintiffs, Avondale, and Continental oppose the motion.[10] The Court considers the parties' arguments below.
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.'” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F.Supp. 948, 951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by either countering with evidence sufficient to demonstrate the “existence of a genuine dispute of material fact,” or by “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g., id.; Little, 37 F.3d at 1075 .
Vulcan seeks summary judgment on plaintiffs' negligence and strict liability claims for three reasons: (1) Cortez's alleged exposure to asbestos at Vulcan was not a substantial contributing factor to his mesothelioma; (2) Vulcan did not owe a duty to Cortez as an employee of an unknown independent contractor; and (3) Vulcan, as a premises owner, cannot be strictly liable for a dangerous condition on its premises that is temporary in nature.
Under Louisiana law, in an asbestos exposure case, the claimant must show that (1) “he had significant exposure to the product complained of,” and that (2) the exposure to the product “was a substantial factor in bringing about his injury.” Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1091 (La. 2009) (quoting Asbestos v. Bordelon, Inc., 726 So.2d 926, 948 (La.App. 4 Cir. 1998)). The plaintiff bears the burden of proof on both elements. Vodanovich v. A.P. Green Indus., Inc., 869 So.2d 930, 932 (La.App. 4 Cir. 2004). When there are multiple causes of injury, “a defendant's conduct is a cause in fact if it is a substantial factor generating plaintiff's harm.” Adams v. Owens-Corning Fiberglas Corp., 923 So.2d 118, 122 (La.App. 1 Cir. 2005) (citing Vodanovich, 969 So.2d at 932). “Because there is a medically demonstrated causal relationship between asbestos exposure and mesothelioma, every non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma.” Labarre v. Bienville Auto Parts, Inc., No. 21-89, 2022 WL 293250, at *3 (E.D. La. Feb. 1, 2022) (citing McAskill v. Am. Marine Holding Co., 9 So.3d 264, 268 (La.App. 4 Cir. 2009)). Thus, as the Fifth Circuit has explained, “[e]ven if the plaintiff was only exposed to asbestos for a ‘short period for an employer[,] and he had longer exposure working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor in causing his mesothelioma.'” Williams v. Boeing Co., 23 F.4th 507, 512 (5th Cir. 2022) (quoting Rando, 16 So.3d at 1091). To defeat an asbestos defendant's motion for summary judgment, a plaintiff “need only show that a reasonable jury could conclude that it is more likely than not that [plaintiff] inhaled defendant's asbestos fibers, even if there were only ‘slight exposures.'” Id. (citing Held v. Avondale Indus., Inc., 672 So.2d 1106, 1109 (La.App. 4 Cir. 1996)).
Vulcan asserts that it is entitled to summary judgment because plaintiffs have not produced sufficient evidence that Cortez had significant exposure to asbestos during his “very short job” at Vulcan, let alone that the exposure was a substantial factor in causing Cortez's injuries.[11] Vulcan asserts that plaintiffs cannot meet their burden on either requirement because the “only evidence in this matter is the extremely limited testimony” provided by Cortez, who had a “poor memory” of the nature of his work at Vulcan.[12]
First, Vulcan argues that plaintiffs lack evidence that Cortez had significant exposure to asbestos at Vulcan. In support of its assertion, Vulcan notes that Cortez testified that he “never saw any of the Vulcan specifications”[13] for the gaskets or insulation that he worked with, and “couldn't tell how old [the insulation] was,” or the date that the gaskets were originally installed.[14] Vulcan also cites to the deposition of plaintiffs' industrial-hygiene expert, Gerard Baril, who testified that he “can[not] say one way or the other . . . whether any insulation [Cortez] may have removed [at Vulcan] contained asbestos.”[15] Vulcan further contends that even if the gaskets and insulation did contain asbestos, Vulcan had safety procedures in place during the 1980s for handling asbestos-containing products.[16]Defendant specifically points to the deposition testimony of its corporate representative, Rodney Gremillion, who testified that when he arrived at the plant in 1984, Vulcan provided written instructions to maintenance contractors on the appropriate procedure for handling asbestos-containing insulation and gaskets, and Gremillion speculated that “most” of these procedures “extended back to about [the] mid-seventies.”[17]
Plaintiffs have cited sufficient evidence to create an issue of material fact that Cortez was exposed to asbestos-containing gaskets and insulation at the Vulcan plant. Specifically, plaintiffs cite Cortez's testimony that he was exposed to asbestos at Vulcan from changing asbestos-containing gaskets and removing old asbestos-containing insulation. Plaintiffs submit the following description from Cortez's deposition:
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