United States District Court for the Eastern District of Louisiana, June 8, 2022
In April 2022, Hopeman filed the instant motion for partial summary judgment arguing that the plaintiffs’ intentional tort claim must be dismissed because they cannot provide evidentiary support that it consciously desired to afflict the decedent with primary lung cancer or knew that his cancer was substantially certain to follow from its actions. The plaintiffs opposed, arguing that Hopeman knew of the hazards of asbestos and that the decedent’s disease was substantially certain to occur.
This suit arises from decedent James Becnel’s alleged exposure to asbestos-containing products on the premises of Avondale Shipyards in 1965 during his employment. Becnel died from asbestos-related lung cancer. In July 2019, the plaintiffs filed suit in the Civil District Court for the Parish of Orleans against several defendants, including Hopeman Brothers, Inc. In the complaint, the plaintiffs asserted several negligence claims against the defendants. The plaintiffs claimed that Hopeman was liable for manufacturer and vendor strict liability, intentional tort, and alter ego liability.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As such, the court should view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixon Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006).
When the movant bears the burden of proof, it must “demonstrate the absence of a genuine issue of material fact” using competent summary judgment evidence. Celotex, 477 U.S. at 323. However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Should the movant meet its burden, the burden shifts to the non-movant, who must show by “competent summary judgment evidence” that there is a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986); Lindsey, 16 F.3d at 618. However, “a party cannot defeat summary judgment with conclusory [*5] allegations, unsubstantiated assertions, or only a scintilla of evidence.” See Sec. & Exch. Comm’n v. Arcturus Corp., 912 F.3d 786, 792 (5th Cir. 2019).
To prove an intentional tort, plaintiffs must show that Hopeman either consciously desired that the decedent contract primary lung cancer or knew that the result was substantially certain to follow from its conduct. Zimko v. Am. Cyanamid, 905 So. 2d 465, 475 (La. App. 4 Cir. 2005), cert. denied, 925 So. 2d 538 (2006). “Substantial certainty requires more than a reasonable probability that an injury will occur,” and plaintiff must prove that his contracting lung cancer was “inevitable or incapable of failing.” Cortez v. Lamorak Ins. Co., No. CV 20-2389, 2022 WL 1001445, *11 (E.D. La. Apr. 4, 2022); Reevesv. Structural Pres. Sys., 731 So. 2d 208, 213 (La. 1999). The “belie[f] that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of intentional tort, but instead falls within the range of negligent acts …” Reeves, 731 So. 2d at 214; Dempster, 2020 WL 1984327 at *10 (quoting Reeves, 731 So. 2d at 214).
Here, the court found that the plaintiffs failed to provide sufficient evidence whereby a reasonable jury could conclude that the decedent’s lung cancer was “inevitable or incapable of failing” and was thus substantially certain to result from the defendants’ conduct. Accordingly, the plaintiffs’ intentional tort claim was dismissed.
With regard to the plaintiffs’ alter ego claim, the court found that the single business enterprise theory applies, rather than the alter ego claim. “While the single business enterprise theory seeks to hold an affiliated corporation liable, the alter ego doctrine defendant cites is applied to hold officers, directors, or shareholders of a corporation liable. See Andretti Sports Mktg. Louisiana, LLC v. Nola Motorsports Host Comm., Inc., 147 F. Supp. 3d 537, 563 (E.D. La. 2015). Because plaintiffs are seeking to do the former, the single business enterprise theory is applicable to this matter.”
On this issue, the court found there are genuine issues of material fact only a jury can decide and denied the defendant’s motion as to alter ego liability.