Court of Appeal of Louisiana, Fourth Circuit
From 1975 to 1977, the decedent participated in the construction of a Marathon oil refinery while employed by Parsons Government Services, Inc. Parsons filed a motion for summary judgment, arguing the decedent could not establish that he was exposed to asbestos from his work as a pipefitter at the Marathon refinery during the aforementioned time period. One business day later, Marathon filed an ex parte motion to join in several motions. The plaintiff opposed Parsons and Marathon’s motions on procedural and substantive grounds. The trial court did not agree with the plaintiff’s procedural objections, and granted summary judgment to both Parsons and Marathon on the substantive issues. The plaintiff appealed the decision, arguing that the trial court erred in their procedural and substantive findings.
In a split decision, the Appeals Court affirmed the trial court. With regard to the procedural issues, the plaintiff argued that Marathon’s ex parte motion was not properly served. In writing for the court, Judge Ledet noted that the plaintiffs were properly served with Parsons summary judgment motion, and that Marathon’s joinder motion did not trigger separate service requirements under Article 1313 of the Louisiana Code of Civil Procedure. In addition, the plaintiffs were in possession of an amended scheduling order which set the hearing date for the motions. Judge Ledet also rejected the plaintiffs’ challenge that the trial court granted relief not requested in the motions.
With regard to the substantive issues, Louisiana tort law requires that the plaintiff show exposure to asbestos “for which the defendant is responsible” to prove causation. Judge Ledet set forth that the substantial factor causation standard is applicable in this matter. Parsons argued that the plaintiffs failed to establish that the decedent was exposed to asbestos while participating in the construction of the Marathon refinery for Parsons. In opposition, the plaintiffs contended that the decedent was exposed to asbestos from asbestos-containing materials used in the construction of the refinery. In support, the plaintiffs submitted deposition transcripts from other cases which showed that asbestos-containing gaskets, insulation, packing, gloves, and blankets were used at the refinery. Judge Ledet rejected the plaintiffs’ argument, setting forth that “[e]ven assuming Marathon’s refinery was constructed with some asbestos-containing materials, evidence of the mere physical presence of asbestos-containing materials at a particular job site is insufficient to defeat an employer’s or premises owner’s summary judgment motion.” After reviewing the aforementioned transcripts, the court also noted that the plaintiff failed to show any link between “the presence of asbestos-containing materials with the work that Mr. Steib performed for Parsons at Marathon during the relevant time window.” Parsons also submitted its construction plans for the refinery, which showed that they only called for the use of asbestos-containing gaskets in limited circumstances. There was no evidence that Parsons deviated from those plans.
In addition, the plaintiffs submitted three co-worker deposition transcripts, which they believed created a genuine issue of material fact to defeat summary judgment. However, the court found the plaintiffs’ assertion unpersuasive as the first co-worker did not work in the same unit as the decedent and did not observe the decedent’s work. Further, the second co-worker did not observe the decedent working with gaskets or around insulators. Finally, the court found that the third co-worker provided internally inconsistent testimony. The court noted that its finding was not one of credibility. Instead, inconsistent testimony is insufficient to create a triable issue of fact. As such, the Appeals Court affirmed the trial court’s grant of summary judgment.
In dissent, Judge Jenkins noted that the construction plans and co-worker deposition transcripts were sufficient to create an issue of material fact as to the presence of asbestos at the refinery, as well as the decedent’s exposure to asbestos at the refinery.