United States District Court for the Eastern District of Louisiana, September 8, 2022
Plaintiff Ora Jean Adams alleges she developed lung cancer from secondhand asbestos exposure from laundering the clothing of her deceased husband. Decedent worked at Avondale in the 1970s as a pipefitter and welder on various vessel construction projects. The plaintiff contends that defendant Hopeman Brothers Inc. was an Avondale subcontractor that performed marine carpentry or “joiner” work while decedent worked at Avondale, and that Hopeman provided both marine carpentry services and the materials necessary to perform the work, including asbestos-containing Micarta laminate and Marinite board.
Avondale asserted a third-party claim against Hopeman and the plaintiff later named Hopeman as a direct defendant, based on negligence and strict liability as a manufacturer and/or professional vendor of asbestos-containing products.
Hopeman filed a motion for partial summary judgment, arguing that it cannot be held strictly liable under Louisiana law because it is neither a “manufacturer” of asbestos-containing products, nor a “professional vendor.”
The court reviewed the summary judgment standard and the underlying facts of this matter. Hopeman argues that it did not hold the wallboard out to the public as its own, and that it never promoted the wallboards for sale through advertising. However, both the plaintiff and Avondale dispute these claims, relying on deposition testimony from former Hopeman and Avondale employees, and on billing invoices. The court ultimately determined that these facts were both disputed and material with respect to the instant motion.
Hopeman seeks summary judgment that it was not a manufacturer of asbestos during the relevant period of exposure because it was an end-user of the wallboards that were glued together by Wayne Manufacturing Corporation, a wholly-owned subsidiary of Hopeman during the relevant period.
The plaintiff argued that Hopeman is a manufacturer under an alter-ego theory of liability, and the court reviewed the plaintiff’s pleadings to determine that the plaintiff did not allege this alter-ego theory of liability in her complaint. The court did not allow the plaintiff to pursue this theory for the first time in the summary judgment proceedings, and accordingly found that Wayne’s assembly of the wallboards did not ipso facto render Hopeman a manufacturer of these asbestos-containing products.
The plaintiff also argued that Hopeman is a manufacturer as defined in the Louisiana Product Liability Act (“LPLA”). However, the LPLA was enacted in 1988, years after the decedent’s work at Avondale ended.
The court considered proclamations of the Louisiana Supreme Court that the LPLA does not apply retroactively because it alters substantive rights, and ultimately determined that it did not need to determine whether the LPLA’s definition of ‘manufacturer’ merely restates preexisting law because, even if applied, the provision in question would not render Hopeman a manufacturer.
In Cortez v. Lamorak Insurance Company, another asbestos exposure case involving Avondale, Hopeman, and Wayne, a different section of this court recently held Hopeman, as a subcontractor of Avondale, was not a manufacturer of asbestos-containing products by virtue of the language in the LPLA. Cortez, et al. v. Lamorak Insurance Co., et al., 20-cv-2389, R. Doc. 1179 at p. 10 (8/29/22). This court found the Cortez reasoning on point and persuasive, holding that Hopeman is entitled to summary judgment as a matter of law that it is not a manufacturer.
Finally, the court examined whether Hopeman was a professional vendor and should, therefore, be held to the same standard of liability as a manufacturer under pre-LPLA law. Hopeman argues that it is not a professional vendor under pre-LPLA law because the plaintiff cannot establish the existence of the requisite elements because Hopeman is more akin to an end-user or installer of asbestos-containing products.
Under pre-LPLA law, to classify Hopeman as a professional vendor, the plaintiff must prove that: (1) Hopeman was capable of controlling the quality of the product at issue, (2) Hopeman held the products out to the public as its own, and (3) the size, volume, and merchandising practices of Hopeman bring it within the class of professional vendors who are presumed to know the defects in their wares. Dempster v. Lamorak Ins. Co., 2020 U.S. Dist. LEXIS 174317, 2020 WL 5659546 *3 (E.D. La. 9/21/20).
The court considered two similar matters in which it was determined that genuine disputes of material fact preclude summary judgment as to whether Hopeman was a professional vendor. See Becnel v. Lamorak Ins. Co., et al., 2022 U.S. Dist. LEXIS 145993, 2022 WL 3369163 (E.D. La. 8/16/22); Cortez, et al., 20-cv-2389, R. Doc. 1179 (8/29/22). In those matters, after reviewing the plaintiffs’ evidence, the court held that a reasonable jury could conclude that Hopeman was capable of controlling the quality of the product at issue and that Hopeman held the products it sold out as its own. Further, in Cortez, the judge determined that there was an issue of material fact as to whether Hopeman operated on the requisite scale to be a professional vendor.
In the matter at hand, the court applied the Becnel and Cortez reasoning to the evidence before it, concluding that there are genuine factual disputes as to whether Hopeman was a professional vendor of the wallboards at issue. Accordingly, genuine disputes of material fact exist as to each essential element of the plaintiff’s claim for professional vendor liability, and Hopeman is not entitled to summary judgment on that issue.
Ultimately, the court granted Hopeman’s motion for summary judgment in part, holding that it is not a manufacturer, and denied it in part, as genuine issues of material fact exist with respect to whether Hopeman is a professional vendor.
Read the full decision here