U.S. District Court for the Eastern District of Louisiana, August 2, 2021
In August 2019, plaintiff Patricia Jackson brought a lawsuit for asbestos exposure in Orleans Parish Civil District Court against a number of defendants. On March 25, 2020, the case was removed to the U.S. District Court for the Eastern District of Louisiana by the Avondale defendants following the United States Court of Appeals for the Fifth Circuit’s decision in Latiolais v. Huntington Ingalls, Inc., which held that removal under section 1442(a) is appropriate when a defendant shows it acted pursuant to a federal officer’s directions. 951 F.3d 286, 296 (5th Cir. 2020) Shortly thereafter, the plaintiff settled her claims against the Avondale defendants and the court remanded the case. Defendant Hopeman then filed a motion for reconsideration where the court found that Hopeman was entitled to federal officer removal.
Ms. Jackson died on July 30, 2021, after filing this claim. Thereafter, her surviving child and heir, Dielda Robertson, maintained the case on Ms. Jackson’s behalf. The plaintiff alleges that Ms. Jackson was exposed to asbestos fibers from her father’s dusty work clothing as a result of his work at Avondale Shipyard. The plaintiff contends these exposures caused her to contract malignant mesothelioma. The plaintiff asserts negligence claims against defendants Hopeman and Wayne as manufacturers, sellers, users, distributors, and professional vendors of asbestos-containing wallboard.
Hopeman filed a motion for summary judgment on the grounds that there was no evidence to prove that the decedent sustained asbestos exposure from a product operation attributable to Hopeman. In particular, the defendants argue that there is no evidence that Mr. O’Neal Dumas, Ms. Jackson’s father, was in close proximity to Hopeman’s operations involving asbestos-containing wallboard at Avondale Shipyard. First, Hopeman argues that Mr. Dumas worked exclusively pre-launch, while Hopeman’s joiner work installing the asbestos- containing wallboard took place post-launch once the completed ships were in the water. Second, Hopeman maintained that Mr. Davison, the decedent’s co-worker at Avondale, also failed to identify any Hopeman products near Mr. Dumas as he testified only that they worked in proximity to wall and pipe insulation, which consisted of fiberglass and did not contain asbestos. In sum, the defendants argue this is a case of “wrong place, wrong time” for the plaintiff in her case against Hopeman.
The plaintiff opposed the motion and argued that there was sufficient evidence that 1) Mr. Dumas worked for years in close proximity to Hopeman employees at Avondale Shipyard who were cutting its asbestos wallboard, (2) cutting asbestos wallboard with a Skilsaw created asbestos dust that Mr. Dumas took home on his person and clothing, (3) Ms. Jackson breathed the asbestos dust when she laundered her father’s work clothes and cleaned their laundry shed, and (4) the asbestos exposures Ms. Jackson experienced from Hopeman Interests’ asbestos wallboard were significant and a substantial contributing factor in her development of mesothelioma.
The court noted that in order to prevail in an asbestos case under Louisiana law, a plaintiff “must prove by a preponderance of the evidence that: (1) his exposure to the defendant’s asbestos product was significant; and (2) that this exposure caused or was a substantial factor in bringing about his mesothelioma” (known as the “substantial factor” test). The court held that the plaintiff has succeeded in raising a genuine issue of material fact with respect to exposure as two other Avondale employees testified that in 1969 and 1972, Hopeman employers were cutting asbestos wallboard at Wet Dock No. 2 pre-launch while the ships were on land. Further, Mr. Davison similarly testified that, to his knowledge, Mr. Dumas worked all around the areas where ships were being assembled, including Wet Dock No. 2, and that Mr. Dumas was cleaning up the dust behind people installing flat sheetrock.
Ultimately, the court concluded whether Ms. Jackson was exposed to asbestos fibers through her father’s cleanup work at Avondale, and whether such exposures substantially caused her mesothelioma, are questions best answered by the trier of fact, thereby denying Hopeman’s motion for summary judgment.