Defendant Fails to Establish Improper Joinder in Mesothelioma Case; Remand Granted U.S. District Court for the Eastern District of Louisiana, May 22, 2017
Plaintiff Ronald Smith sued multiple defendants, including Honeywell, alleging he developed mesothelioma from occupational exposure to asbestos. Honeywell removed the case the United States District Court, arguing that the plaintiff only joined defendant Taylor-Seidenbach Inc. to defeat diversity. The plaintiff moved to remand.
The case was originally set on an expedited trial date because of the mesothelioma diagnosis. Discovery was ongoing when the plaintiff produced his work history relied upon by the plaintiff’s expert, Dr. Arthur Frank. Honeywell took the position that the work history lacked mention of the plaintiff working with or around insulation. Further, the work history was absent as to the plaintiff working at a location where insulation was possibly present. Shortly after the work history was produced, Taylor served its answers to discovery propounded by the plaintiff. Taylor answered that it had nothing with respect to relationship between Smith and his employers or anything related to the plaintiff’s work around joint compound or roofing products. Three days after Taylor answered the plaintiff’s discovery, Smith answered discovery of Honeywell. Those answers confirmed that he lacked information as to his work around products furnished by the four Louisiana insulation contractors. Honeywell therefore argued that Taylor was improperly joined.
The court began its analysis by stating the standard for remand. The standard requires remand when “any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” The burden falls upon the removing defendant. Honeywell asserts that Taylor was only joined to defeat diversity. The two possible ways to establish improper joinder are 1) fraudulent joinder and 2) an utter inability to establish the cause of action against the allegedly wrongful joined defendant. Fraudulent joinder was not at issue according to the court. The only question to be resolved was whether the plaintiff could establish a cause of action against Taylor in state court. In order to do so, the plaintiff would have to show that “he was exposed to asbestos from the defendant’s product, and that he received an injury that was substantially caused by that exposure.” The plaintiff took the position that he can establish a cause of action against Taylor because of several sources of exposure which he possibly came into contact. For example, his testimony established that he worked as a roofer with asbestos shingles made by Johns Manville from 1969-1970’s. Another witness corroborated that his supply company sold Johns Manville roofing materials to the roofing company. Moreover, the corporate representative for Taylor previously testified in another matter that Taylor supplied Johns Manville roofing materials to the same company for which the plaintiff had been employed. Even a newspaper advertisement from the 1970’s listed Taylor as a supplier of Johns Manville products.
The plaintiff also worked at the Johns Manville and Celotex plants in Louisiana where he came into contact with asbestos from sweeping dust. Honeywell countered and argued that the plaintiff, by his own testimony, did not work at the Johns Manville Plant until after the plant had closed. Honeywell also argued the affidavit of a former employee of Taylor, relied upon by the plaintiff, did not specify where within the 75 sites the plaintiff actually worked. As for the Celotex plant, Honeywell argued that the cleanup work was also in the 1980’s and did not indicate proximity to asbestos. The court disagreed with Honeywell. According to the court, the plaintiff had put forth multiple potential sources of exposure to asbestos “connected” to Taylor especially the Johns Manville roofing material. Moreover, discovery had not concluded and was ongoing.
Consequently, the court granted the plaintiff’s motion for remand.