Everett v. Air Prods. & Chemicals
| Docket Number | 2022-CA-0539,2022-CA-0540,2022-CA-0541 |
| Decision Date | 02 May 2023 |
| Parties | EMILY EVERETT v. AIR PRODUCTS AND CHEMICALS, INC., ET AL. EMILY EVERETT v. AIR PRODUCTS AND CHEMICALS, INC., ET AL. EMILY EVERETT v. AIR PRODUCTS AND CHEMICALS, INC., ET AL. |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-05845 DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
Lewis O. Unglesby Lance C. Unglesby Jamie F. Gontarek UNGLESBY LAW FIRM
Thomas M. Flanagan Anders F. Holmgren
FLANAGAN PARTNERS, LLP
Lindsey A. Cheek THE CHEEK LAW FIRM COUNSEL FOR PLAINTIFFS/APPELLANTS
John J. Hainkel, III Kelly L. Long FRILOT, LLC COUNSEL FOR DEFENDANT-APPELLEE, FOSTER WHEELER, LLC
(Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown Judge Dale N. Atkins)
PAB
TFL
This civil action arises from a claim of household exposure to asbestos, which later resulted in a diagnosis of mesothelioma. Appellants, Paula Everett ("Paula") and William Everett, Jr. ("William") (collectively the "Everetts"), individually and as representatives of the decedent, Emily Everett ("Mrs. Everett"), filed separate appeals from two May 4, 2022 judgments of the district court, which granted motions for summary judgment in favor of Appellees, Foster Wheeler LLC ("Foster Wheeler") and Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k/a Peter Kiewit Sons ("Peter Kiewit"), dismissing all claims against them with prejudice. Additionally, the Everetts seek to appeal the May 13, 2022 denial of their motion for a new trial. These matters have all been consolidated into the instant appeal. For the reasons that follow, we dismiss the answers of Foster Wheeler and Peter Kiewit, which sought a reversal of the district court's denial of Union Carbide's objection to the Everetts' untimely supplemental opposition; we reverse the district court's judgment that granted summary judgment in favor of Peter Kiewit; we affirm the district court's judgment, granting summary judgment in favor of Foster Wheeler; and we reverse the district court's denial of the Everetts' motion for new trial and remand this matter back to the district court for a contradictory hearing on the motion for new trial on Foster Wheeler's motion for summary judgment.
According to her deposition testimony, sometime around April of 2018 Mrs. Everett presented to her primary care physician, Dr. Escipion Pedroza, complaining of severe abdominal swelling. After an examination, Dr. Pedroza scheduled a CT scan for Mrs. Everett and referred her to Dr. Fuentes[1]. The CT scan revealed an accumulation of fluid, which prompted Dr. Fuentes to take a sample of the liquid and send it for testing in the lab. Lab results revealed the presence of cancer cells which, in turn, resulted in Dr. Fuentes diagnosing Mrs. Everett with peritoneal mesothelioma.
In her consultation with Dr. Fuentes, Mrs. Everett explained that while she had never personally worked directly with or in proximity to asbestos, her former spouse, William Everett, Sr. ("Mr. Everett"), had been a journeyman welder and boilermaker throughout their twenty-year marriage and had worked at various plants and locations that potentially exposed him to asbestos. Mrs. Everett described her role in the household as being responsible for laundering all of the family's clothing, including Mr. Everett's work clothing that he wore throughout the work day and until he returned home. There was routinely so much dust in Mr. Everett's work clothing that Mrs. Everett was required to sweep or vacuum up the piles that accumulated and, inevitably, inhaled some of this dust. Mrs. Everett's narrative led Dr. Fuentes to conclude that it was this repeated household exposure to the potentially asbestos-laden dust that was the cause of Mrs. Everett's mesothelioma.
Dr. Pedroza then referred Mrs. Everett to an oncologist, Dr. Thomas Cosgriff. It was Dr. Cosgriff's opinion that Mrs. Everett was already too ill to receive treatment for the mesothelioma, which led Mrs. Everett to seek a second opinion from another oncologist, Dr. Zoe Larned. After reviewing Mrs. Everett's medical history, Dr. Larned agreed that the cause of Mrs. Everett's mesothelioma was her exposure to asbestos through laundering Mr. Everett's clothing; however, Dr. Larned disagreed that Mrs. Everett was too ill to receive treatment and began Mrs. Everett on a regimen of chemotherapy. After three cycles of chemotherapy,[2]Mrs. Everett developed pancytopenia, a condition which inhibits bone-marrow production of blood cells, and it was determined that it was no longer safe for her to continue therapy. Mrs. Everett was placed into hospice care where, on April 11, 2019, she died from complications caused by mesothelioma.
Mrs. Everett filed a petition for damages on June 13, 2018, wherein she alleged that more than thirty (30) named defendants were liable for damages for Mr. Everett's exposure to asbestos, which resulted in her own exposure. Shortly after Mrs. Everett's death, on April 15, 2019, a third supplemental and amending petition was filed, which substituted her two natural children, Paula and William, as plaintiffs in her stead and added allegations of wrongful death. Nearly three years later, following a series of dismissals, consent judgments and settlements, a few of the remaining defendants in the case filed motions for summary judgment. mesothelioma was a result of asbestos exposure, the Everetts had not provided any proof of specific causation that could directly attribute that exposure to Union Carbide, Riley Power or Foster Wheeler.
The Everetts timely filed an Opposition to Summary Judgment in Causation by Foster Wheeler, Union Carbide and Riley Power on March 23, 2022. In their opposition, the Everetts pointed out that the defendants had taken the deposition of Dr. Larned on April 12, 2019, in which she espoused the opinion that Mrs. Everett's mesothelioma was caused by asbestos exposure, thereby, they argued, creating a genuine issue of material fact.[3] The Everetts also noted in the opposition that the defendants would be taking the deposition of Dr. Victor Roggli prior to the new hearing date and that the Everetts intended to supplement their opposition.
Union Carbide and Foster Wheeler each filed a reply memorandum on April 08, 2022, while Riley Power filed a motion to join and adopt Foster Wheeler's reply, which was granted by the district court on April 12, 2022. These reply memoranda again re-urged the argument that the Everetts had failed to provide any proof as to specific causation, although they conceded that Dr. Larned's deposition testimony potentially spoke to the issue of general causation. Also on April 12, 2022, the Everetts filed a Supplemental Opposition to Union Carbide's Motion for Summary Judgment on Causation. Here, the Everetts used the deposition testimony of Dr. Roggli to bolster their assertion that there could be a causal connection between Mr. Everett's possible asbestos exposure and Mrs. Everett's subsequent mesothelioma diagnosis. More importantly, the Everetts explained that their industrial hygienist, Gerald Baril, had been deposed by Union Carbide on April 7, 2022, but that his testimony had not yet been transcribed. According to the Everetts, Mr. Baril's testimony would demonstrate that "[n]o counsel will deny Baril identified exposure from their fault as a substantial contributing factor."
On April 13, 2022, one day before the hearing on the other motions for summary judgment, Peter Kiewit, Mr. Everett's former employer, filed a motion to join Union Carbide's motion for summary judgment. The hearing on the rule to show cause for the motion to join was set for 9:00 a.m. on April 14, 2022, the same day as the hearing set for Union Carbide, Riley Power and Foster Wheeler's motions for summary judgment. Additionally, on April 13, 2022, Union Carbide filed an objection to plaintiffs' untimely supplemental opposition, arguing that its filing two days before the hearing did not comport with the directives of La. C.C.P. art 966(B)(2). On the morning of the hearings, before argument commenced on the motions for summary judgment, the district court denied Union Carbide's objection. After hearing the arguments of counsel, the court rendered judgment in favor of Union Carbide, Riley Power and Foster Wheeler, dismissing all claims against those parties with prejudice. This judgment was signed on May 4, 2022. A separate judgment was signed on May 4, 2022, which granted Peter Kiewit's motion to join Union Carbide's motion for summary judgment, and dismissed all claims against them with prejudice.
The Everetts filed a motion for new trial on May 12, 2022. Amongst the various exhibits attached to this motion, the Everetts included portions of the deposition transcript of Mr. Baril, the industrial hygienist, as well as a report produced by Mr. Baril. In this report, Mr. Baril opined that "Union Carbide, Peter Kiewit, Riley Power, and Foster Wheeler failed to take necessary and required actions to protect William Everett during the years that he was exposed to asbestos." Further, "[a]s a result of the inaction of these companies, Emily Everett sustained para-occupational exposures to asbestos that significantly increased her risk of developing mesothelioma." On May 13, 2022, the district court summarily denied the Everetts' motion for new trial.
A Motion for Devolutive Appeals was timely filed by the Everetts on June 7, 2022. The Everetts sought to appeal the summary judgments in favor of Union Carbide, Riley...
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