Plaintiffs Granted Partial Summary Judgment Based on “Substantial Factor” Standard

United States District Court for the Middle District of Louisiana, October 21, 2022

The plaintiffs allege that Decedent Kirk Reulet was asbestos to asbestos throughout his 45-year career. The plaintiffs seek summary judgment on two issues: First whether Decedent developed mesothelioma prior to his death; and second, whether mesothelioma resulted in his death.

In December 2018, Decedent was diagnosed with peritoneal mesothelioma. Decedent died two weeks later on January 2, 2019. Decedent’s death certificate lists four “diseases, injuries, or complications … that directly caused the death”: septic shock, aspiration pneumonia, multi-organ failure, and peritoneal mesothelioma. The plaintiffs’ medical experts each reviewed Decedent’s medical records and testified at their respective depositions that mesothelioma caused Decedent’s death. Defendants’ medical experts also reviewed Decedent’s medical records and ultimately agreed with this assessment, testifying that mesothelioma was at least “a contributor” to Decedent’s death, as it is an underlying cause of septic shock, aspiration pneumonia, and multi-organ failure.

Under Louisiana law, “causation” does not require the plaintiff to show that the defendant’s conduct was the sole or exclusive factor resulting in his injury. Rather, “conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.” Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So. 3d 1065, 1089. In an asbestos case, the “substantial factor” test extends even to the issue of what ultimately caused the decedent’s death. A plaintiff is entitled to summary judgment on the issue of whether mesothelioma caused the decedent’s death if the plaintiff shows that there is no material dispute that mesothelioma was a “substantial factor” in the decedent’s death, even if additional medical conditions contributed to the decedent’s death. See, e.g., Landry v. Avondale Indus., Inc., 2012-0950 (La. App. 4 Cir. 3/6/13), 111 So. 3d 508, 512.

Defendants argue that the plaintiffs cannot prevail on their motion for summary judgment because the evidence creates a question of fact regarding whether mesothelioma was the single or sole cause of Decedent’s death. However, such an argument is not in line with Louisiana law. The plaintiffs need only show that mesothelioma was a “substantial factor” resulting in decedent’s death. See id. Based on Decedent’s death certificate and the testimony of the experts on both sides, there is no material dispute that mesothelioma was a substantial factor in Decedent’s death. Accordingly, the plaintiffs were granted summary judgment that Decedent had mesothelioma and that such mesothelioma resulted in his death.

Defendant American Insurance Company (“American”), which is alleged to have insured Co-Defendant Eagle, Inc., f/k/a Eagle Asbestos & Packing Company, Inc. (“Eagle”), also moved for summary judgment, claiming that there is no evidence that American ever issued a policy to Eagle. However, Eagle’s discovery responses indicate that it was insured by American during relevant times, and Plaintiffs produced a purported Certificate of Insurance showing that Eagle was insured by American during the policy period.

To withstand summary judgment on this issue, the plaintiffs must produce evidence establishing a material dispute as to the existence of the underlying American insurance policy. Fed. R. Civ. P. 56(a). Based on the record, the Court found that the plaintiffs have plainly carried their burden to produce competent evidence establishing a genuine contest as to the existence of an underlying insurance policy, particularly in light of Eagle’s repeated statements in prior litigation that it was insured by American during the Policy Period, and Eagle’s prior authentication of the certificate of insurance. Accordingly, the Court denied the motion for summary judgment. Further, based on their apparent lack of candor, and failure to disclose Eagle’s prior discovery responses in their initial summary judgment papers, the Court ordered counsel for American to show cause why sanctions should not be imposed against them pursuant to Federal Rule of Civil Procedure 11(b), Local Civil Rule 83(b)(6), and Louisiana Professional Conduct Rules 1.1, 1.3, 3.3, 3.4, and 8.4(c).

Read the full decision here