Summary Judgment Granted, Court Requires Proof of “Significant” Exposure

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U.S. District Court for the Eastern District of Louisiana

Plaintiff Krutz filed suit inLouisiana state court on April 29, 2020, against a number of defendants, including Amchem, as a result of his alleged asbestos exposures. The case was removed to federal court on June 15, 2020. On Nov. 9, 2020, Krutz died, allegedly as a result of mesothelioma. During his deposition, Krutz testified that he began working for the Avondale Shipyard in 1968 as an interior communications electrician. He testified that during his forty-year career with Avondale, he worked on almost every vessel Avondale built, including commercial vessels and naval vessels, further testifying that his responsibilities included installation, maintenance, and repair of electrical cable components throughout the ships. Krutz alleged that he was exposed to asbestos on numerous occasions while working for Avondale.

On Jan. 21, 2021, the plaintiffs filed an amended complaint asserting an additional claim for wrongful death under Louisiana law. On June 8, 2021, the plaintiffs’ survival action against Amchem was dismissed without prejudice. Amchem moved for summary judgment on the plaintiffs’ remaining claim of wrongful death and the plaintiffs did not oppose the motion.

In the Fifth Circuit, a district court may not grant a “default” summary judgment on the ground that it is unopposed. See Morgan v. Federal Exp. Corp., 114 F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases). Even in the context of unopposed motions for summary judgment, the movant must still show that there is no genuine issue of material fact, and that it is entitled to summary judgment as a matter of law. See Hetzel v. Bethlehem Steel Corp., F.3d 360, 362 n.3 (5th Cir. 1995).

To succeed on their claim against Amchem under Louisiana law, the plaintiffs had to show that (1) Krutz’s exposure to the defendant’s asbestos products was significant, and (2) the exposure caused or was a substantial factor in bringing about his disease. See Robertson v. Doug Ashy Bldg. Materials, Inc., 77 So.3d 360, 372 (La. App. 1 Cir. 2011), writ denied, 77 So.3d 973 (La. 2012); see also Rando v. Anco Insulations Inc., 16 So.3d 1065, 1088, 1091 (La. 2009) (“To prevail in an asbestos case a plaintiff must show … he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.”)

Amchem argued that the evidence in the record was insufficient to create an issue of material fact that Krutz was exposed to any of Amchem’s asbestos products, nor that any such exposure was “significant.” Krutz was deposed three separate times regarding his work in the electrical department at Avondale, and never testified that he worked with Amchem’s products, or even the sort of products that Amchem manufactured. Specifically, he testified that he did not remember seeing the insulators use any type of glue or mastic product around the insulation piping. Instead, throughout his deposition, Krutz attributed his asbestos exposure to various “insulation products.” In response to the defendant’s motion, the plaintiffs submitted no evidence that Krutz was exposed to Amchem’s products. Therefore, the court granted the defendant’s motion for summary judgement and dismissed the plaintiffs’ wrongful death claims.