Louisiana District Court Denies Summary Judgment on Plaintiffs’ Intentional Tort, Fraud, and Concealment Claims

U.S. District Court for the Eastern District of Louisiana, April 27, 2020

The plaintiffs alleged the decedent, Callen L. Dempster was exposed to asbestos and asbestos-containing products while employed at the Avondale Shipyards from 1962 to 1994. Defendant Huntington Ingalls Incorporation (f/k/a Avondale Shipyards, Inc.) (Avondale) moved for partial summary judgment on the plaintiffs’ intentional tort, fraud, and concealment claims, arguing the plaintiffs could not show that Avondale either consciously desired the decedent contract lung cancer, or knew that his lung cancer was substantially certain to occur. Avondale argued that in order to prevail on an intentional tort claim under Louisiana law, the plaintiffs must show either: “(1) that the defendant consciously desired the result or (2) that the defendant knew that the result was substantially certain to follow from its conduct.” Avondale argued the plaintiffs had no evidence to satisfy either prong of the test. Avondale also argued the plaintiffs’ fraud and concealment claims constituted intentional torts, and were therefore governed by the same standard. Finally, Avondale argued the plaintiffs’ wrongful death claims should have been dismissed under the Longshore and Harbor Workers’ Compensation Act (LHWCA), pursuant to its exclusive remedy provision that eliminates all causes of action other than the narrow judicially created intentional tort exception, which requires a showing of specific intent to injure the employee. Notably, Avondale filed this motion in state court prior to the removal of the case to the Eastern District of Louisiana, and the state court denied the motion.

In opposition, the plaintiffs argued that a motion for summary judgment was inappropriate in a case that turned on intent and knowledge, which are inherently questions of fact. Additionally, the plaintiffs argued that the Fifth Circuit had recognized that intent is established when an employer continues to expose an employee to a toxic substance while that employee was already suffering from a lung disease. The plaintiffs further argued that a hostile intent is not required under Louisiana law, but merely “an intent to bring about a result which will invade the interests of another in a way that the law forbids.” The plaintiffs contended that Avondale knew of the hazards of asbestos and were substantially certain that disease would occur, citing to the testimony of Avondale’s corporate representative and industrial hygiene experts, who confirmed that Avondale had knowledge of government regulations as early as the 1940s regarding the dangers associated with asbestos. The plaintiffs also referenced the testimony of various Avondale executives and employees, arguing that they disregarded the hazards of asbestos and failed to take precautions necessary to protect workers from exposure, instead forcing employees to work with and around asbestos without precautions. With regard to Avondale’s LHWCA argument, the plaintiffs responded they had elected Louisiana state law remedies, rather than workers’ compensation benefits, and therefore the LHWCA did not preempt the plaintiffs’ state law claims.

The court first considered whether Avondale was entitled to reconsideration of the state court’s order originally denying its motion for partial summary judgment prior to the removal of the case to federal court, finding that Avondale had not presented any newly discovered or previously unavailable evidence, or identified any change in the law that would warrant granting the motion. Therefore, the court held that Avondale had not shown any substantial reasons to warrant reconsideration of the state court’s ruling. Notwithstanding, the court held that even if it were considering the motion for the first time, genuine issues of material fact existed to precluded summary judgment.

With regard to the plaintiffs’ intentional tort claims, the court found that questions of fact existed as to whether Avondale knew that it was substantially certain the decedent would contract lung cancer, as the plaintiffs had presented evidence to show that Avondale and its executive officers knew of the hazards of asbestos. The court noted that under Louisiana law, “Plaintiffs must prove that Avondale either consciously desired that Decedent would contract lung cancer, or knew that result was ‘substantially certain to follow from [their] conduct.’” The court held that this “substantial certainty” requires more than a reasonable probability that an injury would occur, and instead requires a showing the decedent’s lung cancer was “inevitable or incapable of failing.” The court noted that “knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct.”

With regard to the plaintiffs’ fraud claims, the court held the plaintiffs were required to prove (1) that Avondale misrepresented a material fact, (2) with the intent to deceive, and (3) caused justifiable reliance and resultant injury, though the court also noted that fraud may result from silence or inaction. The court found the plaintiffs had presented evidence to suggest that Avondale and its executive officers were aware of the hazards of asbestos and remained silent or did not act.

Finally, with regard to the plaintiffs’ wrongful death claims, the court recognized that the LHWCA contains an exception for intentional torts, but found questions of fact regarding Avondale’s specific intent to injure the decedent, and as such, held that the issue could not be determined at the summary judgment stage.

Read the case decision here.