Robertson ex rel. Husband v. Doug Ashybuilding Materials, Inc.

• Decision Date: 23 December 2014
• Docket Number: No. 2014 CA 0141.,2014 CA 0141.
• Parties: Frances ROBERTSON, Phillis Castille, Leslie Robertson, and Stewart Robertson, Individually and on Behalf of their Deceased Husband and Father Respectively, Harris J. Robertson v. DOUG ASHYBUILDING MATERIALS, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

168 So.3d 556

Frances ROBERTSON, Phillis Castille, Leslie Robertson, and Stewart Robertson, Individually and on Behalf of their Deceased Husband and Father Respectively, Harris J. Robertson

v.DOUG ASHY¹ BUILDING MATERIALS, INC., et al.

No. 2014 CA 0141.

Court of Appeal of Louisiana, First Circuit.

Dec. 23, 2014.

Rehearing Denied Jan. 23, 2015.

Robert E. Arceneaux, Metairie, LA, Damon R. Pourciau, Kenner, LA, Susannah B. Chester, Dallas, TX, for Appellants, Plaintiffs–Frances Robertson, et al.

Dwight C. Paulsen, III, David E. Redmann, Jr., Michael C. Mims, New Orleans, LA, Edward M. Slaughter, Dallas, TX, for

Appellee Defendant, The Sherwin–Williams Company.

Before KUHN, PETTIGREW, and WELCH, JJ.

Opinion

WELCH, J.

The plaintiffs, Frances Robertson, Phillis Castille, Leslie Robertson, and Stewart Robertson, appeal a judgment that granted summary judgment in favor of defendant, The Sherwin–Williams Company (“Sherwin–Williams”) and dismissed their survival and wrongful death claims against Sherwin–Williams and a judgment rendered following a “Daubert hearing”² that prohibited certain testimony from the plaintiffs' expert on causation, Dr. Eugene J. Mark. For reasons that follow, we reverse both judgments of the trial court and remand for further proceedings.³

I. FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history of the current dispute is so closely intertwined with our earlier opinion involving essentially the same issues, Robertson v. Doug Ashy Bldg. Materials, Inc., 2010–1552 (La.App. 1st Cir.10/4/11), 77 So.3d 339, writs denied, 2011–2468, 2011–2430 (La.1/13/12), 77 So.3d 972, 973, writs not considered, 2011–2433, 2011–2432 (La.1/13/12), 77 So.3d 973, 974 (“Robertson III ”⁴ ), that it is necessary to set forth in detail the relevant factual, procedural, and legal history from our earlier opinion prior to setting forth the factual and procedural history of the present appeal.

A. Robertson III, 77 So.3d at 342–345(footnotes renumbered):

On June 30, 2004, Harris Robertson was diagnosed with mesothelomia and on November 27, 2004, he died from the disease. On May 26, 2005, the plaintiffs, Harris Robertson's wife and children, filed this lawsuit against a host of defendants that they claimed were responsible for manufacturing, supplying, selling, or exposing Harris Robertson to asbestos-containing products, including but not limited to Georgia–Pacific Corporation (“Georgia–Pacific”)⁵ , Union Carbide Corporation (“Union Carbide”) and Sherwin–Williams. ⁶ Essentially, the plaintiffs alleged that Georgia–Pacific manufactured and sold asbestos-containing products, that Union Carbide sold, distributed, and supplied raw asbestos, and that Sherwin–Williams was a supplier or distributor of asbestos-containing products.

In the plaintiffs' petition, they alleged that Harris Robertson's fatal disease was caused in part by his exposure to asbestos and asbestos-containing products through his work for V.P. Pierret Construction Company from approximately 1960–1970. Specifically, the plaintiffs asserted that during this time frame, Harris Robertson installed sheetrock and was regularly exposed to friable asbestos and asbestos-containing products, which were present in the joint compounds used to finish or float the sheetrock, and as a result of that exposure, asbestos dust and fibers were inhaled or otherwise ingested by Harris Robertson.⁷

On October 8, 2008, Sherwin–Williams filed a motion for summary judgment, asserting that plaintiffs had “no evidence” that Harris Robertson “had any, much less substantial, asbestos exposure from products bought at ‘Sherwin–Williams' stores, or indeed that [Sherwin–Williams] owned the stores in question.” Thereafter, the plaintiffs filed ... a response to Sherwin–Williams' motion for summary judgment.

.... In response to Sherwin–Williams' motion for summary judgment, the plaintiffs contended that there were genuine issues of material fact as to whether Harris Robertson was exposed to significant amounts of asbestos as a result of the asbestos containing joint compound sold or distributed by Sherwin–Williams.

Additionally, on December 18, 2009, Sherwin–Williams filed a motion to strike portions of the opinion of the plaintiffs' expert, Dr. Mark, a practicing pathologist and a Harvard Medical School professor of pathology. Specifically, Sherwin–Williams sought an order precluding Dr. Mark from offering what it claimed to be “unreliable testimony that ‘any fiber’ or ‘every exposure above background’ was a substantial contributing factor” in causing Harris Robertson's mesothelioma

.

The plaintiffs opposed the motion to strike, essentially arguing Dr. Mark had not opined that “any fiber” or “every exposure above background” was a substantial contributing factor in causing Harris Robertson's mesothelioma

, as suggested by Sherwin–Williams, and that Dr. Mark's testimony and conclusions regarding the cause of Harris Robertson's mesothelioma had been made using valid methodology and was supported by, and consistent with, generally-accepted scientific and medical literature.

After a hearing on January 19, 2010, the trial court denied Sherwin–Williams' motion for summary judgment and granted Sherwin–Williams' motion to strike.⁸ On February 2, 2010, the trial court signed a judgment denying Sherwin–Williams' motion for summary judgment,⁹ and on February 23, 2010, the trial court signed a judgment granting Sherwin–Williams' motion to strike.

On January 25, 2010, Sherwin–Williams filed a motion for new trial on the denial of its motion for summary judgment, contending that it was entitled, under La. C.C.P. art.1973[,] to a new trial because the “plaintiffs cannot establish that any asbestos exposure for which Sherwin–Williams is responsible was a substantial contributing factor in causing” Harris Robertson's mesothelioma

. Specifically, Sherwin–Williams argued that after the trial court denied its motion for summary judgment, the trial court granted Sherwin–Williams' motion to strike portions of the testimony of Dr. Mark, and without Dr. Mark's opinion on specific or medical causation, the plaintiffs had no other expert testimony establishing specific or medical causation, i.e., that the alleged asbestos exposure from products purchased at Sherwin–Williams was a substantial contributing factor in causing Harris Robertson's mesothelioma.

Additionally, on February 19, 2010, the plaintiffs filed a motion for new trial on the grant of Sherwin–Williams' motion to strike portions of the opinion of Dr. Mark.¹⁰ At a hearing on March 2, 2010, the trial court denied the plaintiffs' motion for new trial on the motion to strike, granted Sherwin–Williams' motion for new trial on its motion for summary judgment, and granted Sherwin–Williams' motion for summary judgment “regarding substantial contributing cause,” thereby dismissing the plaintiffs' claims against Sherwin–Williams.¹¹

On April 6, 2010, the trial court signed a judgment denying the plaintiffs' motion for new trial on the motion to strike, granting Sherwin–Williams' motion for new trial on its motion for summary judgment, and granting Sherwin–Williams' motion for summary judgment “regarding substantial contributing cause,” and on April 5, 2011, the trial court signed a supplemental judgment, which in addition to containing the provisions set forth in the April 6, 2010 judgment, also dismissed the plaintiffs' claims against Sherwin–Williams with prejudice.¹²

The plaintiffs ... appealed the April 5, 2011 judgment granting Sherwin–Williams' motion for new trial on its motion for summary judgment and granting Sherwin–Williams' motion for summary judgment, the February 23, 2010 judgment granting Sherwin–Williams' motion to strike the testimony of Dr. Mark, and the April 6, 2010 judgment denying their motion for new trial on Sherwin–Williams' motion to strike.¹³

On appeal, this court reversed both the February 23, 2010 and April 5, 2011 judgments of the trial court.¹⁴ Robertson III, 77 So.3d at 352 and 359–360. In reversing the April 5, 2011 judgment granting Sherwin–Williams' motion for new trial on its motion for summary judgment and granting the motion for summary judgment, this court initially noted that the trial court erred in granting summary judgment on the issue of “substantial cause” (i.e., whether the exposure to asbestos-containing products purchased at or sold by Sherwin–Williams was a substantial factor in bringing about Harris Robertson's mesothelioma

) because that issue was not raised in the underlying motion for summary judgment.¹⁵

Robertson III, 77 So.3d at 349 ; see also La. C.C.P. art. 966(E). On de novo review of the issue actually raised by Sherwin–Williams in its motion summary judgment (i.e., whether Harris Robertson had substantial asbestos exposure from products bought at Sherwin–Williams' stores or that Sherwin–Williams owned the stores in question), this court determined that the plaintiffs put forth sufficient evidence establishing that there were genuine issues of material fact as to whether “Gold Bond” was an asbestos containing joint compound, whether Harris Robertson routinely and regularly used and inhaled (and was thus significantly exposed to) the asbestos-containing “Gold Bond” joint compound in his dry wall finishing

work, and whether Harris Robertson (or other people with whom he worked) purchased the asbestos-containing joint compound “Gold Bond” from Sherwin–Williams' stores. Robertson III, 77 So.3d at 349–352. Accordingly, this court determined that Sherwin–Williams was not entitled to summary judgment or to a new trial on its motion for summary judgment. Id.

With respect to the February 23, 2010 judgment granting Sherwin–Williams' motion to strike the testimony of Dr. Mark, this court determined that the trial court, when it concluded that Dr. Mark's expert opinion was unreliable, failed to comply with La. C.C.P. art. 1425(F) and failed to evaluate or analyze Dr. Mark's expert opinion under the standards set forth by the Unites...