Bedford v. American Honda Motor Company (2020)

Our plain-English summary of Bedford v. American Honda Motor Company (U.S. Court of Appeals, Fifth Circuit, December 17, 2020).

William Bedford and Kim Waddle, co-executors of Beverly Bedford's estate, sued American Honda Motor Company. They alleged that Honda products exposed Ms. Bedford to asbestos and caused her death from mesothelioma. The district court in Mississippi granted Honda summary judgment. The plaintiffs then filed a motion for reconsideration and, two days later, a notice of appeal; the district court later denied reconsideration. On appeal they argued the district court should have applied the Lohrmann Test, which looks at the frequency, regularity and proximity of asbestos exposure. The Fifth Circuit noted they had not mentioned that test in their response to the summary judgment motion and first raised it in the motion for reconsideration. Arguments raised that way are deemed waived, so the court declined to consider it. With no other arguments for reversal, the court affirmed the judgment for Honda. The opinion is marked unpublished and not precedent.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. Court of Appeals, Fifth Circuit
• Decided: December 17, 2020
• Docket: No. 20-60214
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Mississippi

Outcome. The Fifth Circuit affirmed summary judgment for American Honda Motor Company, refusing to consider the plaintiffs' Lohrmann Test argument because they first raised it in a motion for reconsideration.

What the court held. An argument raised for the first time in a motion for reconsideration in the district court is generally deemed waived and will not be considered on appeal.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Beverly Bedford: mesothelioma; died

The defendants

• American Honda Motor Company, Incorporated (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
• Smith v. Union Carbide Corp. (U.S. District Court, Eastern District of Louisiana, 2013). The federal district court denied Miriam Smith's motion to remand, finding the removal timely and not waived and Louisiana defendant Taylor-Seidenbach improperly joined, so the Removal Defendants (Dow, Ethyl, Union Carbide) prevailed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

WILLIAM BEDFORD, INDIVIDUALLY, AND AS CO-EXECUTOR OF THE ESTATE OF BEVERLY

BEDFORD, DECEASED, AND KIM WADDLE AS CO-EXECUTOR OF THE ESTATE OF BEVERLY

BEDFORD, DECEASED, Plaintiffs-Appellants,

v.

AMERICAN HONDA MOTOR COMPANY, INCORPORATED, Defendant-Appellee.

No. 20-60214.

December 17, 2020.

United States Court of Appeals, Fifth Circuit.

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:18-CV-175. Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge:[*]

Appellants William Bedford and Kim Waddle, as co-executors of the estate of Beverly Bedford, brought a tort suit against Appellee American Honda Motor Company, Inc. ("Honda") alleging that Honda products exposed Ms. Bedford to asbestos and caused her death from mesothelioma. Honda filed a motion for summary judgment, which the district court granted. Appellants then filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e), asking the district court to revisit its summary judgment decision. Two days later, while that motion was still pending, Appellants filed a timely notice of appeal of the district court's summary judgment order. The district court subsequently denied the motion for reconsideration.

Here, Appellants argue that the district court erred by failing to apply the "Lohrmann Test,"[1] which they assert is the proper standard under Mississippi law for evaluating summary judgment motions in asbestos-related products liability cases. Had the district court done so, they argue, it might have denied Appellee's motion.

The main problem with this argument is that it comes too late. As Appellee notes, Appellants first raised their argument concerning the Lohrmann Test in their motion for reconsideration. They make no mention of the Lohrmann Test in their response to Appellee's motion for summary judgment, which is the subject of their appeal.

"This court will typically not consider an issue or a new argument raised for the first time in a motion for reconsideration in the district court." U.S. Bank Nat'l Ass'n v. Verizon Commc'ns, Inc., 761 F.3d 409, 425 (5th Cir. 2014) (citing Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501 F.3d 436, 442 (5th Cir. 2007)); see also LaClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005) ("A motion for reconsideration may not be used to rehash rejected arguments or introduce new arguments." (citing Westbrook v. C.I.R., 68 F.3d 868, 879 (5th Cir. 1995))). Such arguments are deemed to have been waived. U.S. Bank, 761 F.3d at 425; see also Mungo v. Taylor, 355 F.3d 969, 978 (7th Cir. 2004) ("Arguments raised for the first time in connection with a motion for reconsideration, however, are generally deemed to be waived.").

We therefore decline to consider Appellants' argument concerning the Lohrmann Test. As they present no other arguments supporting reversal, their appeal fails.

AFFIRMED.

[*] Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

[1] First stated in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), the Lohrmann Test looks to the "frequency, regularity, and proximity" of asbestos exposure in order to determine if a plaintiff has established a prima facie causal connection in asbestos-related tort litigation. See Smith v. Union Carbide Corp., 130 So.3d 66, 70 (Miss. 2013).

Sources

• The opinion on Google Scholar
• Mississippi asbestos laws
• Mississippi asbestos exposure sites