Mesothelioma

Third-Parties Prevail on Summary Judgment Thanks to Employer’s Lack of Evidence

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U.S. District Court for the Eastern District of Louisiana, October 24, 2022

Plaintiff Ronald John Falgout, as the independent executor and successor of decedent Ruby Lee Marie Falgout, brought this action in October 2022 after Falgout succumbed to the fatal effects of mesothelioma in August 2022. The plaintiff alleged that the decedent’s secondary exposure from asbestos fibers on his work clothes caused her cancer diagnosis. The plaintiff worked as a laborer, operator, oil king, and rainmaker at the Avondale Shipyards from 1965 to 1979. He purportedly used, handled, or was in the vicinity of others using or handling asbestos-containing products throughout his employment at Avondale. 

Third parties Foster Wheeler, General Electric, and Bayer CropScience, Inc. as successor to Rhone Poulenc AG Company, f/k/a Amchem Products, Inc. f/k/a Benjamin Foster Company (Amchem) filed respective motions for summary judgment. They all alleged that the plaintiff failed to produce evidence sufficient to sustain his burden to demonstrate the decedent had exposure to asbestos fibers attributed to them. Defendant Huntington Ingalls, Inc. (Avondale) opposed each motion. The plaintiff did not name Foster Wheeler, GE, or Amchem in his original or amended complaint. They became involved in the matter after Avondale filed complaints against each for their share of any damages owed to the plaintiff. 

Courts recognize that summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Falgout v. Anco Insulations, Inc., 2022 US Dist. LEXIS 193817, at *2 [ED La Oct. 24, 2022, No. 21-1443]; citing Celotex Corp. v. Catlett, 477 U.S. 317, 322 (1986) (citing FED R. CIV. P. 56); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Although courts consider all evidence contained in the record, they do not evaluate credibility or weigh said evidence. In addition, “[a]ll reasonable inferences are drawn in favor of the nonmoving party,” however the nonmoving party “cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions.” Falgout, 2022 US Dist. LEXIS 193817 at *3; Little, 37 F.3d at 1075. 

In order to prevail in an asbestos case in the State of Louisiana, a plaintiff must establish (1) “he had significant exposure to the product complained of,” and that (2) the exposure “was a substantial factor in bringing about his injury.” Falgout, 2022 US Dist. LEXIS 193817 at *2; Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1091 (La. 2009) (quoting Asbestos v. Bordelon, Inc., 726 So. 2d 926, 948 (La. App. 4 Cir. 1998)). A plaintiff “need only show that a reasonable jury could conclude that it is more likely than not that [plaintiff] inhaled defendant’s asbestos fibers, even if there was only slight exposures.” Held v. Avondale Indus., Inc., 672 So.2d 1106, 1009 (La. App. 4 Cir. 1996). 

Foster Wheeler supported its motion contending Avondale submitted no evidence or witness testimony that its boilers caused the decedent’s asbestos exposure. The court referred to Cortez v. Lamorak Ins. Co., where it granted summary judgment to a third party who argued that the plaintiff failed to produce any evidence connecting his asbestos exposure to its products. See No. CV 20-2389, 2022 WL 1230429 (E.D. La. May 3, 2022). The court ruled testimony recounting working in the same general area as asbestos products was insufficient. Here, the plaintiff could not identify the brand of equipment or boilers situated near his workstation. Crucially, he had no recollection of the name Foster Wheeler. The court granted Foster Wheeler’s motion, finding “[e]ven if all factual inferences were construed in favor of Avondale, the record lacks evidence upon which reasonable minds could differ substantiating whether [plaintiff] and subsequently [decedent] were exposed to asbestos attributable to Foster Wheeler.” Falgout, 2022 US Dist. LEXIS 193817 at *7. 

Similarly, GE asserted the plaintiff presented no evidence to demonstrate the decedent had exposure through any of its products or equipment. Avondale’s witness testimony that GE turbines were present in “nearly [all] various vessels constructed at Avondale,” was inadequate. Moreover, the plaintiff testified he never witnessed turbine asbestos insulation application. The court again found Avondale failed to create an issue of fact as to whether the plaintiff was exposed from GE equipment, and likewise granted GE’s motion for summary judgment. 

Lastly, Amchem also asserted the plaintiff failed to present evidence to support his exposure claims as to their product. Avondale countered that Amchem’s asbestos-containing adhesive “was used extensively in the engine room of nearly every vessel constructed at Amchem.” However, Amchem was not the only adhesive supplier during the plaintiff’s employment and the plaintiff could not recall any specific encounter with Amchem adhesive. The court again determined Avondale produced no evidence to establish the plaintiff’s contact with Amchem and granted summary judgment as well. 

Read the full decision here