U.S. District Court for the Eastern District of Louisiana, March 14, 2022
The plaintiff, Marsha Roussell, filed an asbestos-related lawsuit alleging that she was secondarily exposed to asbestos via work performed by her father, Asward Theriot, and her uncle, Tracy Theriot, which caused her to be diagnosed with mesothelioma. Plaintiff alleged her father and uncle worked with products manufactured by defendant ViacomCBS, Inc., f/k/a CBS Corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation, f/k/a Westinghouse Electric Corporation while employed at Avondale Shipyard at various times.
The plaintiff was deposed on July 21, 2020, and January 8, 2021, but had no personal knowledge of her father or uncle’s work with asbestos-containing products, and did not know the manufacturer or brand name of any of the equipment her father or uncle may have worked with.
Based on the plaintiff’s testimony, Westinghouse filed a motion for summary judgment arguing that there was no evidence that asbestos dust related to Westinghouse was a substantial contributing factor in causing the plaintiff’s mesothelioma.
The plaintiff opposed the motion with circumstantial evidence from other asbestos-related lawsuits evidencing that Westinghouse products were on site at Avondale. However, as the court noted, none of that evidence connected the Westinghouse products to the plaintiff’s father or uncle.
In reply, Westinghouse argued that none of the evidence offered by the plaintiff raised a genuine issue of material fact regarding whether she was exposed to asbestos dust attributable to Westinghouse, much less that it was substantial factor in bringing on her mesothelioma. Westinghouse argued that the plaintiff failed to cite any testimony connecting her father or uncle to Westinghouse-related asbestos dust.
The court noted that summary judgment is proper “if 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 a judgment as a matter of law.” CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.
To prevail in an asbestos case under Louisiana law, a plaintiff must prove by a preponderance of the evidencethat she was exposed to asbestos from the defendant’s product and the exposure was a substantial cause of her injury. Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1088 (La. 2009).
The court found that the plaintiff in this case provided no direct evidence that she was exposed to asbestos dust attributable to Westinghouse, therefore, the question presented was whether there was sufficient circumstantial evidence to create a fact issue as to such exposure. Again, the court found that there was not. None of the evidence cited by the plaintiff even circumstantially connected the plaintiff’s father or uncle to Westinghouse-related asbestos products, much less the plaintiff herself.
In sum, the court held that the plaintiff offered no evidence—director circumstantial—that she was exposed to asbestos from Westinghouse products, much less that any such exposure was a substantial cause of her mesothelioma. Therefore, Westinghouse’s motion for summary judgment was granted.