United States District Court for the Eastern District of Louisiana, Jan. 13
Plaintiff Glen King alleged that his exposure to asbestos during the course of his employment with the United States Navy, Louisiana State University, and BASF Corporation caused him to develop mesothelioma. He sued various defendants including Union Carbide, alleging in his negligence claim that Union Carbide supplied asbestos-containing products to his worksites and failed to adequately warn him of the presence of asbestos and the health hazards associated therewith. This matter was removed to federal court and Union Carbide moved for summary judgment, arguing that Plaintiff failed to meet his burden of proving that he worked with an asbestos-containing product that was sold, supplied, distributed, or manufactured by Union Carbide, or that his use of such product was a substantial cause of his mesothelioma. Plaintiff does not oppose Union Carbide’s motion, but the Court considered it before issuing a ruling, as in the Fifth Circuit, a district court may not grant a “default” summary judgment on the ground that it is unopposed. Morgan v. Fed. Express Corp., 114 F. Supp. 3d 434, 437 (S.D. Tex. 2015).
The Court first examined the applicable legal standard, specifically that summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). However, when a motion for summary judgment is unopposed, a court may accept the movant’s evidence as undisputed. Morgan, 114 F. Supp. 3d at 437 (quoting UNUM Life Ins. Co. of Am. v. Long, 227 F. Supp. 2d 609 (N.D. Tex. 2002)). Nevertheless, if the moving party fails to meet its burden, the Court must deny its motion for summary judgment. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995).
Under Louisiana law, in an asbestos exposure case, the plaintiff must show that (1) he had significant exposure to the product complained of, and that (2) the exposure to the product “was a substantial factor in bringing about his injury.” Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1091 (La. 2009) (quoting Asbestos v. Bordelon, Inc., 726 So. 2d 926, 948 (La. App. 4 Cir. 1998)). When there are multiple causes of injury, “a defendant’s conduct is a cause in fact if it is a substantial factor generating plaintiff’s harm.” Adams v. Owens-Corning Fiberglass Corp., 923 So. 2d 118, 122 (La. App. 1 Cir. 2005) (citing Vodanovich v. A.P. Green Indus., Inc., 869 So. 2d 930, 932 (La. App. 4 Cir. 2004). Specifically, because there is a “medically-demonstrated causal relationship between asbestos exposure and mesothelioma, every non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma.” Labarre v. Bienville Auto Parts Inc., No. 21-89, 2021 U.S. Dist. LEXIS 252281, 2022 WL 293250, at *3 (E.D. La. Feb. 1, 2022) (citing McAskill v. Am. Marine Holding Co., 9 So. 3d 264, 268 (La. App. 4 Cir. 2009)).
In the matter at hand, the Court determined that Plaintiff failed to meet his burden on both elements. To defeat an asbestos defendant’s motion for summary judgment, a plaintiff “need only show that a reasonable jury could conclude that it is more likely than not that [plaintiff] inhaled defendant’s asbestos fibers.'” Williams v. Boeing Co., 23 F.4th 507, 512 (5th Cir. 2022) (citing Held v. Avondale Indus., Inc., 672 So. 2d 1106, 1109 (La. App. 4 Cir. 1996)). However, Plaintiff has made no such showing. Although Plaintiff testified that he was exposed to joint compound while working on construction projects as a teenager and Union Carbide conceded that it sold asbestos fibers to third parties for the production of joint compound, Plaintiff was unable to identify the brand name or manufacturer of the joint compound to which he was exposed. Plaintiff has produced no other evidence that he was ever exposed to any asbestos fibers emanating from any product linked to Union Carbide. Ultimately, because Plaintiff could not establish that he had any exposure to asbestos-containing products linked to Union Carbide, much less significant exposure, he could not meet his burden of demonstrating that Union Carbide’s alleged negligence was a “substantial factor” generating harm to Plaintiff. The Court accordingly granted Union Carbide’s Motion for Summary Judgment and dismissed Plaintiff’s claims against Union Carbide.
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