U.S. District Court for the Eastern District of Louisiana, July 13, 2020
In the instant complaint, Marcela Lopez, the decedent’s wife and Federico Lopez III, the decedent’s surviving child, allege that Federico Lopez was exposed to asbestos-containing products while employed as a welder/pipefitter at Kellog Brown and Root between 1973 and 1986 and that he contracted malignant mesothelioma as a result of such exposure. Approximately one year later, plaintiffs Jessica and Alfred Soliz filed suit in the 19th Judicial Court for the Parish of East Baton Rouge asserting strict liability and negligence claims on behalf of Mr. Lopez, alleging they were also Mr. Lopez’s children.
Defendant Fisher Controls International, LLC filed a motion for summary judgment contending that the plaintiffs cannot demonstrate the causation element of their negligence claims because there is a lack of admissible evidence that a Fisher product exposed Mr. Lopez to asbestos. Additionally, Fisher avers it never manufactured the type of oil pipeline pumps described in Mr. Lopez’s testimony. Fisher also argues that the plaintiffs cannot demonstrate that exposure to a Fisher-manufactured asbestos-containing product was a substantial contributing cause of Mr. Lopez’s mesothelioma. Lastly, Fisher argues it cannot be liable for harm caused by components of its product that it did not manufacture or supply, such as flange gaskets.
The plaintiffs oppose Fisher’s motion and argue that Mr. Lopez’s testimony is admissible against Fisher because his deposition was attended by gasket and packing manufacturer defendants who had a similar motive and opportunity to cross-examine him; namely the motive to “limit or eliminate exposure to gaskets and packing. Moreover, the plaintiffs argue that even if Mr. Lopez’s testimony is inadmissible, the testimony of Mr. Lopez’s coworkers is sufficient to demonstrate exposure to a Fisher product. The plaintiffs argue that they have established that Mr. Mr. Lopez’s work with Fisher products was a substantial cause of his mesothelioma, citing the testimony of Mr. Ewing, who “quantified the exposure Mr. Lopez experienced through performing these tasks, and each of them resulted in an exposure above background,” and Dr. Abraham, who “opined that each of Mr. Lopez’s exposures to above normal background levels of asbestos including those he experienced while employed at Brown & Root, were substantial contributing factors in the development of his malignant mesothelioma.
The plaintiffs further argue that Fisher’s reliance on the “bare-metal defense” is unavailing. The plaintiffs argue that Fisher owed a duty to warn Mr. Lopez of the hazards of asbestos exposure from these component parts due to the following: 1) it sold its valves with asbestos- containing packing and gaskets included, 2) its valves would not function properly without the use of gaskets and packing, 3) the removal and replacement of gaskets and packing from its valves was foreseeable, and 4) Fisher sold asbestos- containing replacement parts for its valves.
The court noted that unsubstantiated assertions, conclusory allegations, and merely colorable factual bases are insufficient to defeat a motion for summary judgment. Moreover, under Louisiana law, a plaintiff must prove by a preponderance of evidence that: 1) his exposure to defendant’s asbestos product was significant, and 2) that this exposure caused or was a substantial factor in bringing about his mesothelioma. Fisher argued that the only evidence of exposure is found in Mr. Lopez’ deposition testimony, which constitutes inadmissible hearsay and further that Fisher never manufactured the types of oil pipeline pumps at issue in this matter. Turning to the hearsay issue, the court disagreed with Fisher and found that Lopez’s testimony is admissible against Fisher. Moreover, the court noted that a genuine question of fact exists regarding whether Fisher manufactured the very valves Mr. Lopez and his co-workers worked on and around while employed by Brown and Root.
Turning to the issue of causation, the court noted that Louisiana employees the “substantial factor” test to determine whether a particular source of exposure to asbestos was a cause-in-fact of a plaintiff’s asbestos-related disease. While plaintiff’s experts did not have sufficient data to perform dose reconstruction with respect to Fisher specifically, Mr. Lopez and his co-worker, Mr. Buchanan, both testified about repairing and replacing gaskets on Fisher valves using putty knives, scrapers, wire brushes, and electric wheels, in a fashion that created dusty conditions which affected their breathing and got on their clothes. The plaintiff’s expert reports were sufficient to indicate that a genuine question of material fact exists with respect to whether Mr. Lopez’s exposure to asbestos attributable to Fisher was a substantial contributing cause of his mesothelioma.
Consequently, the court denied Fisher’s motion for summary judgment.