Multiple Defendants Successful on Motions for Summary Judgment on Plaintiffs’ Intentional Tort and Fraud Claims

U.S. District Court for the Eastern District of Louisiana, July 25, 2022

As previously reported on the Asbestos Case Tracker, this matter stems from decedent Callan Cortez’s take-home exposure to asbestos, from his brother, Daniel, who lived with the decedent while he worked at Avondale Shipyards in 1967-68. Most recently, defendants ViacomCBS Inc. (Westinghouse), General Electric Company, and Foster Wheeler, LLC filed motions for partial summary judgment, seeking to dismiss the plaintiffs’ intentional-tort and fraud claims.

Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)

The plaintiffs asserted that Westinghouse, General Electric, and Foster Wheeler committed intentional torts because they were “well aware” of the hazards of asbestos, and what precautionary measures should be taken for people working with and around their asbestos-containing products, but they failed to implement these precautionary measures.

To prove an intentional tort, the plaintiffs must show that each defendant either “(1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” Batiste v. Bayou Steel Corp., 45 So. 3d 167, 168 (La. 2010). Substantial certainty “requires more than a reasonable probability that an injury will occur,” and plaintiffs must prove that Callen Cortez’s contracting mesothelioma was “inevitable or incapable of failing.” Reeves v. Structural Pres. Sys., 731 So. 2d 208, 213 (La. 1999) (internal citations omitted).

Here, the plaintiffs argued that Westinghouse, General Electric, and Foster Wheeler “knew [that] asbestos would cause disease yet chose to conceal these hazards” and proceeded to expose workers to asbestos. As noted above, a defendant’s “mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Reeves, 731 So. 2d at 213 (citations omitted). Therefore, the court found that the plaintiffs’ evidence did not raise a material issue for an intentional-tort claim.

As for the plaintiff’s fraud claim, under Louisiana law, “[f]raud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. Civ. Code art. 1953. “Fraud may also result from silence or inaction.” Id. The elements of a Louisiana fraud and intentional misrepresentation claim are: “(1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to the circumstance substantially influencing the victim’s consent to (a cause of) the contract.” Jones v. Wells Fargo Bank, N.A., 626 F. App’x 500, 505 (5th Cir. 2015) (quoting Shelton v. Standard/700 Assocs., 798 So. 2d 60, 64 (La. 2001)).

The court here found because the plaintiffs did not produce any evidence raising a genuine issue of material fact with respect to the defendants’ fraudulent intent, they did not raise an issue of material fact as to a requisite element of fraud. Accordingly, the court granted the defendants’ motions for partial summary judgment.

Read the full decision here