Williams v. Boeing Co., 011222 FED5, 18-31158

Docket Nº18-31158
Opinion JudgeLeslie H. Southwick, Circuit Judge:
Party NameTarsia Williams; Breck Williams, Plaintiffs-Appellants, v. Boeing Company, Defendant-Appellee.
Judge PanelBefore Southwick, Graves, and Engelhardt, Circuit Judges.
Case DateJanuary 12, 2022
CourtUnited States Courts of Appeals, United States Court of Appeals (5th Circuit)

Tarsia Williams; Breck Williams, Plaintiffs-Appellants,

v.

Boeing Company, Defendant-Appellee.

No. 18-31158

United States Court of Appeals, Fifth Circuit

January 12, 2022

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CV-65

Before Southwick, Graves, and Engelhardt, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

This case involves mesothelioma, nationwide multidistrict litigation consolidated in Pennsylvania, and a plaintiff-decedent whose claim was rejected on summary judgment in the centralized litigation. The appeal follows a remand from the Pennsylvania district court to the Louisiana district court where this particular federal suit began over a decade ago.

Our task is to determine whether discovery was improperly judicially truncated and whether fact questions remain that should have prevented summary judgment. We conclude that the MDL court engaged in improper

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weighing of the evidence on summary judgment relative to the survival action. We therefore REVERSE IN PART and REMAND to the Louisiana district court. Further, we consider it appropriate case management for the Louisiana district court also to reconsider the Plaintiffs' motion for additional discovery. We AFFIRM the district court's dismissal of the wrongful death claim.

FACTUAL AND PROCEDURAL BACKGROUND

This MDL consolidated claims about asbestos exposure at a wide variety and large number of locations around the country. The district judge who has presided over this litigation since 2008 wrote a law journal article that provides useful background on how these myriad asbestos claims ended up in the MDL and what procedures the court followed.[1] Of some relevance, the article indicates that after common discovery in the MDL, cases are either resolved on summary judgment by that court and then remanded to the originating court for entry of final judgment, or - if they cannot be settled - are remanded to the originating district court for trial or other proceedings.2 This case was resolved by the MDL court on summary judgment, and we are giving appellate review to that judgment, which was entered as final by the Louisiana district court on remand from the MDL court.

The plaintiff-decedent, Frank Williams, worked at the Michoud Assembly Facility ("MAF") near New Orleans from 1974 to 2008 as an employee of Lockheed Martin Corporation and its predecessor corporation, Martin Marietta (together, "Lockheed"). The MAF is a design and

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manufacturing site for NASA. Such projects as the production of the first stage of the Saturn V rocket for the Apollo program and the external fuel tank for the Space Shuttle program were conducted at the MAF. While at the MAF, Williams worked as a mechanical engineer, primarily at a desk, "drafting and computing."

The record contains evidence that asbestos had been used in different locations in the facility, and that asbestos caused some workers to contract mesothelioma. The MDL court found that Williams failed to prove causation, specifically, that he did not prove when and where he was present in one of the buildings that would have exposed him to respirable asbestos.

There was some relevant evidence tending to show that Williams was exposed to asbestos. A co-worker testified that Williams worked "primarily on the second floor of Building 350, although he also frequently visited building 351 and the cafeteria, and sometimes visited Buildings 101, 102, and 103, and possibly others." The same co-worker testified that "during the mid-to-late 1980s, there was asbestos abatement work on the second floor of Building 350." A medical expert, Dr. K. Barton Farris, wrote a declaration and expert report stating that it was his opinion that Williams's exposures to asbestos at the MAF were "substantial contributing factors in the causation of [Williams's] mesothelioma." An affidavit and expert report from industrial hygienist Frank Parker stated that "the asbestos in the facility would have been deteriorating by the time [Williams] worked there, and that his employment would have exposed him frequently to above-average ambient background levels of asbestos." Additional evidence produced by the Plaintiffs included project proposals, contracts, reports, a solicitation for bids, and various other documents that the Plaintiffs "contend indicate that asbestos was used at the facility during the time of Boeing's custody."

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In August 2008, Williams was diagnosed with mesothelioma. In November 2008, he filed suit in Civil District Court for the Parish of Orleans asserting claims arising from his alleged exposure to asbestos at the MAF against Lockheed and other defendants. Lockheed removed to the United States District Court, Eastern District of Louisiana under the Federal Officer Removal Statute. Early in the litigation, Frank Williams died. His children Tarsia and Breck Williams initially proceeded with the case without filing a formal substitution. On February 6, 2009, the Plaintiffs filed their first motion in the Eastern District of Louisiana to remand to state court. At that point, the Plaintiffs stated that they wished to amend their complaint, but they did not do so. The Judicial Panel on Multidistrict Litigation then transferred the action to the Asbestos MDL court in the Eastern District of Pennsylvania. In 2011, the Plaintiffs finally filed a motion to substitute themselves for Williams, which the MDL court granted in May 2012. In early 2013, after several years of proceedings in the MDL court, the Plaintiffs filed an amended pleading for damages that named Boeing as a defendant for the first time.3

On February 13, 2013, the MDL court set a date of June 30, 2013 for the close of discovery. The Plaintiffs finally obtained service on Boeing on April 12, two months after the February 13 scheduling order and two months before the June 30 scheduled close of discovery. The Plaintiffs served their first set of interrogatories and document requests on Boeing on May 24. Then, on June 14, they noticed Boeing's deposition for a date of June 24 - one week prior to the scheduled close of discovery. At the time Boeing's deposition was noticed, Boeing's motion to dismiss - filed on February 14

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- was pending, so Boeing sought a protective order and stay of discovery. The MDL court granted Boeing's motion to dismiss on June 24. Despite the Plaintiffs' pending motion for reconsideration, the court subsequently granted the protective order on July 22, 2013, as Boeing was dismissed at that time. Upon reconsideration, the MDL court reinstated the suit against Boeing. When the Plaintiffs sought to reopen discovery and reconsider the deadlines pertaining to Boeing, though, the magistrate judge found the first set of discovery requests "overly broad and improper" and declined to reopen discovery.

Subsequently, the MDL court granted motions for summary judgment as to several defendants, including Boeing. In particular, the MDL court concluded that Boeing was entitled to summary judgment on the survival action since "no reasonable jury could conclude from the evidence that [Williams] was exposed to asbestos at the Michoud Assembly Facility such that it was a substantial factor in the development of [his] illness," and that Boeing was entitled to summary judgment on the Plaintiffs' wrongful death claims because they were time-barred. Thereafter, the case was returned to the Eastern District of Louisiana for entry of judgment.

Upon remand to the Eastern District of Louisiana, the Plaintiffs sought entry of final judgments for their claims against Boeing and other defendants in order to allow this appeal to be taken. Their efforts were initially unsuccessful. See Williams v. Seidenbach, 748 Fed.Appx. 584, 585 (5th Cir. 2018). After considerable maneuvering by the Plaintiffs to remedy their jurisdictional defects, we placed this case in abeyance pending the resolution of similar jurisdictional appeals concerning other defendants. The Plaintiffs' jurisdictional issues were ultimately resolved favorably by Williams v. Seidenbach, Inc., 958 F.3d 341 (5th Cir. 2020) (en banc). We removed this case from abeyance in March 2021 and now consider the merits of the Plaintiffs' appeal.

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DISCUSSION

I.

Summary judgment on the survival action

This court reviews a district court's summary judgment decision de novo, applying the same legal standards employed by the trial court. Mills v. Davis Oil Co., 11 F.3d 1298, 1301 (5th Cir. 1994). To be clear, it is the Pennsylvania MDL court's summary judgment that we review, but Louisiana substantive law controls. Under Louisiana law, to prevail in an asbestos injury case, "the claimant must show . . . he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury." Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1091 (La. 2009). A claimant's evidence may be direct or circumstantial. Id. at 1089. Even 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." Id. at 1091.

The plaintiff has the burden of proof and "must establish his claim to a reasonable certainty[;] mere possibility, and even unsupported probability, are not sufficient to support a judgment in plaintiff's favor." Vodanovich v. A.P. Green Indus., Inc., 2003-1079, p. 6 (La.App. 4 Cir. 3/3/04); 869 So.2d 930, 934. To defeat an asbestos defendant's motion for summary judgment, which is the relevant motion here, the Plaintiffs need only show that a reasonable jury could conclude that it is more likely than not that Williams inhaled defendant's asbestos fibers, even if there were only "slight exposures." See Held v. Avondale Indus., Inc., 95-1788, p. 5 (La.App. 4 Cir. 4/3/96); 672 So.2d 1106, 1109.

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