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Fifth Circuit Affirms District Court Decisions Excluding Appellants’ Experts Reports and Granting Summary Judgment

Court: United States Court of Appeals for the Fifth Circuit

Plaintiff Harry Marsh worked as a merchant mariner from 1944 to 1992. He was diagnosed with mesothelioma in 2018 and subsequently sued the owner of every vessel he worked on over his lengthy career. Defendants included appellees Chas Kurz & Co. Inc., Chiquita Brands International Inc., Farrell Lines, individually and as successor in interest to American Export Lines Inc., and National Bulk Carriers, Inc. (“appellees”). 

Plaintiff brought his action under the Jones Act and claimed the asbestos aboard each vessel caused his diagnosis. Plaintiff’s estate continued his claim after his passing in 2019.

Plaintiff worked continuously for settling defendant Lykes Bros. Steamship Co. Inc. from 1960-1992. In comparison, his work for the appellees was relatively limited, confined to the 1940s-1950s. Nevertheless, Marsh’s experts opined that asbestos aboard the appellee’s vessels contributed to his mesothelioma diagnosis. The appellees moved to exclude plaintiff’s expert reports, arguing that the expert conclusions were unsupported as no evidence showed the decedent was exposed to asbestos aboard their vessels. The appellees also moved for summary judgment. The district court agreed and granted both motions. Plaintiffs appealed.

The Fifth Circuit reviewed the expert testimony issue for abuse of discretion and the summary judgment issue de novo.  See Knight v. Kirby Inland Marine, Inc., 482 F.2d 347, 351 (5th Cir. 2007); Patel v. Tex. Tech. Univ., 941 F.3d 743, 747 (5th Cir. 2019); Fed. R. Civ. P. 56(a). The Fifth Circuit noted, “The Jones Act provides a cause of action in negligence for ‘any seaman’ injured ‘in the course of his employment.’”  Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (quoting 46 U.S.C. § 30104). Critically, it held “Although the Jones Act reduces the burden to prove a toxic substance caused a seaman’s illness, ‘summary judgment is nevertheless warranted when there is a complete absence of proof of an essential element of the nonmoving party’s case.’” United States Ct. of Appeals for the Fifth Cir. Harry F. Marsh v Chas Kurz & Co., Inc., 2024 U.S. App. LEXIS 5549, at *5 [5th Cir Mar. 7, 2024, No. 23-30460]; In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991). Moreover, “If a seaman cannot show he was exposed to a substance aboard a vessel, by definition he cannot show it caused his illness.” See, e.g., Schindler v. Dravo Basic Materials Co, Inc., 790 F. App’x 6221, 635 (5th Cir. 2019).

The Fifth Circuit affirmed the district court’s decision. The court determined the appellants failed to make the required threshold showing as they offered no evidence to establish the decedent was exposed to asbestos on the appellee’s vessels. In fact, prior to his death, the decedent testified he had no memory of working on the vessels in question or of any type of asbestos exposure upon said vessels.  Instead, he admitted he did not know whether asbestos was even present and that he “assum[ed] it probably was.” He based his assumption off his knowledge that asbestos was generally present aboard vessels. This assumption was insufficient and the court ruled the appellants failed to establish the decedent was exposed to asbestos aboard the appellees’ vessels. “A district court has broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert’s opinion.”  Knight, 482 F.3d at 354. 

As such, the district court had not abused its discretion in excluding Marsh’s expert reports as said reports were based on mere assumptions. The district court also did not err by granting summary judgment for appellees.

Read the full decision here.