Bell v. Foster Wheeler Energy Corp. (E.D. La., Oct. 12, 2016)

Our plain-English summary of Bell v. Foster Wheeler Energy Corp. (U.S. District Court, Eastern District of Louisiana, October 12, 2016).

William Bell and other plaintiffs sued Foster Wheeler Energy Corp. and a number of other companies in federal court in Louisiana. Mr. Bell died of mesothelioma during the case. Before the court was the defendants' motion to strike witnesses from the plaintiffs' witness list. By the time of the ruling, the dispute covered only John Croix, a sailor who, according to Mr. Bell's deposition, was the only sailor Mr. Bell stayed in touch with. The plaintiffs had listed "any witness identified in the deposition of William Bell." The court warned that future litigants should follow that kind of disclosure at their own risk. It found the defendants knew or should have known Croix might testify, because the deposition discussed him at length. It also held that any disclosure error was harmless, since the defendants could have deposed him and the trial had been continued. The court denied the motion. It let the defendants depose Croix before October 31, 2016, and seek leave to supplement their expert reports.

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. District Court, Eastern District of Louisiana
• Decided: October 12, 2016
• Docket: Civil Action No. 15-6394
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court denied the defendants' motion to strike John Croix from the plaintiffs' witness list, allowed defendants to depose him, and allowed them to seek leave to supplement their expert reports.

What the court held. A vaguely worded witness disclosure was enough where defendants were or should have been alerted to the witness, and any disclosure error was harmless under Rule 37(c) given minimal prejudice and the opportunity to depose the witness.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• William C. Bell: mesothelioma; died

The defendants

• Foster Wheeler Energy Corp. (manufacturer)
• CBS Corporation (manufacturer)
• York International Corporation (manufacturer)
• General Electric Company (manufacturer)
• IMO Industries, Inc. (manufacturer)
• Warren Pumps, LLC (manufacturer)
• Crane Company (manufacturer)
• Air & Liquid Systems Corporation (manufacturer)
• Aurora Pump Company (manufacturer)
• Atwood & Morrill Co., Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Bell v. Foster Wheeler Energy Corp. (October 4, 2016). The court denied without prejudice the ten defendants' summary judgment motions, set out its own maritime-law standard for manufacturer liability for asbestos it did not add to its product, and ordered the defendants to re-file briefs under that standard.
• Bell v. Foster Wheeler Energy Corp. (October 6, 2016). The court granted in part and denied in part the defendants' motions in limine: it excluded the plaintiffs' experts' specific causation opinions as unreliable but allowed them to testify on Mr. Bell's mesothelioma and general causation, and refused to strike Dr. Kradin or disqualify Dr. Kraus.
• Bell v. Foster Wheeler Energy Corp. (October 11, 2016). The court granted in part and denied in part the pump and valve defendants' motion to exclude studies and videos from plaintiffs' expert Dr. James Millette: most of his study testimony was allowed, but he may not call a study representative of Mr. Bell's likely exposure without a threshold showing, and the challenge to his videos was denied as premature.
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court ruled that, for the Idaho exposures, Louisiana law governs the survival claim (favoring the Bell plaintiffs) and Idaho law governs punitive damages on the wrongful death claim (favoring the defendants).
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court granted summary judgment to York International and Foster Wheeler Energy and dismissed the claims against them with prejudice, and denied summary judgment to General Electric, Crane, Air & Liquid Systems (Buffalo), Aurora Pump, Atwood & Morrill, CBS, IMO Industries and Warren Pumps.
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court denied the plaintiffs' motion for reconsideration, leaving in place its exclusion of their experts' specific causation opinions, and clarified what the experts may say at trial.
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court granted in part and denied in part the plaintiffs' Daubert motions: defense experts Dr. Graham and Dr. Taragin may give general causation testimony but not specific causation opinions that the defendants' products did not cause Mr. Bell's mesothelioma.
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court granted in part and denied in part the defendants' partial summary judgment motion: it dismissed Vickie Campos's individual claims and John Bell's nonpecuniary wrongful death damages, but allowed the survival claim, Bell's pecuniary wrongful death claim, and the decedent's pre-death pain and suffering damages to proceed.
• Bell v. Foster Wheeler Energy Corp. (March 13, 2017). The court ruled that Louisiana law, not Idaho law, governs both the survival claim and the wrongful death claim (including punitive damages) for the alleged Idaho exposures, favoring the plaintiffs' position on choice of law.

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 C. BELL ET AL.,

v.

FOSTER WHEELER ENERGY CORP. ET AL.

Civil Action No. 15-6394.

October 12, 2016.

United States District Court, E.D. Louisiana.

Vickie G. Campos, Plaintiff, represented by Gerolyn Petit Roussel, Roussel & Clement.

Vickie G. Campos, Plaintiff, represented by Benjamin Peter Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement.

John A. Bell, Jr., Plaintiff, represented by Gerolyn Petit Roussel, Roussel & Clement, Benjamin Peter Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement.

Foster Wheeler Energy Corporation, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., David S. Blow, Sedgwick LLP, pro hac vice, James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C..

CBS Corporation, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Christopher Conley, Evert Weathersby Houff, pro hac vice, James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C., Peter R. Tafaro, Frilot L.L.C., Robert P. Morgan, Eckert Seamans Cherin & Mellott, LLC, pro hac vice & William Davis Harvard, Evert Weathersby Houff.

York International Corporation, Defendant, represented by Rocky Wayne Eaton, Tyner, Eaton & Fulce, PLLC & Thomas W. Tyner, Tyner, Eaton & Fulce, PLLC, pro hac vice.

General Electric Company, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Erik Nadolink, Wheeler Trigg O'Donnell, LLP, pro hac vice, James H. Brown, Jr., Frilot L.L.C., John M. Fitzpatrick, Wheeler Trigg O'Donnell, LLP, pro hac vice, John A. Heller, Sidley Austin, LLP, pro hac vice, Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C., Nathan P. Murphy, Wheeler Trigg O'Donnell, LLP, pro hac vice & Peter R. Tafaro, Frilot L.L.C.. IMO Industries, Inc., Defendant, represented by Leigh Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC, Bobbie Bailey, Leader and Berkon LLP, pro hac vice, Caroline Curtiss Marino, Leader & Berkon LLP, pro hac vice, Joseph Henry Hart, IV, Kuchler Polk Schell Weiner & Richeson, LLC, Lori Allen Waters, Kuchler Polk Schell Weiner & Richeson, LLC, Magali Ann Puente-Martin, Kuchler Polk Schell Weiner & Richeson, LLC & Thomas A. Porteous, Kuchler Polk Schell Weiner & Richeson, LLC.

Warren Pumps, LLC, Defendant, represented by Leigh Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC, Joseph Henry Hart, IV, Kuchler Polk Schell Weiner & Richeson, LLC, Judith Ann Perritano, Pierce Davis & Perritano LLP, pro hac vice, Lori Allen Waters, Kuchler Polk Schell Weiner & Richeson, LLC, Magali Ann Puente-Martin, Kuchler Polk Schell Weiner & Richeson, LLC, Maria E. DeLuzio, Pierce Davis & Perritano LLP, pro hac vice & Thomas A. Porteous, Kuchler Polk Schell Weiner & Richeson, LLC.

Crane Company, Defendant, represented by Aleta W. Barnes, Dogan & Wilkinson, PLLC, Barry C. Campbell, Dogan & Wilkinson, PLLC, Hanson Douglas Horn, Dogan & Wilkinson, PLLC, Kevin M. Melchi, Dogan & Wilkinson, PLLC & Michael J. Sechler, K&L Gates LLP, pro hac vice.

Air & Liquid Systems Corporation, Defendant, represented by Stacey Leigh Strain, Hubbard, Mitchell, Williams & Strain, PLLC, Brady L. Green, Wilbraham, Lawler & Buba, PC, pro hac vice, Edward Joseph White, Wilbraham, Lawler & Buba, PC, pro hac vice & Jeffrey P. Hubbard, Hubbard, Mitchell, Williams & Strain, PLLC, pro hac vice.

Aurora Pump Company, Defendant, represented by Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP, Arthur Wendel Stout, III, Deutsch, Kerrigan & Stiles, LLP, Barbara Bourgeois Ormsby, Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP.

Atwood & Morrill Co., Inc., Defendant, represented by Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP, Arthur Wendel Stout, III, Deutsch, Kerrigan & Stiles, LLP, Barbara Bourgeois Ormsby, Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP.

ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Before the Court is defendants' motion to strike witnesses from the plaintiffs' witness list.[1] Since defendants filed their motion, the parties have narrowed their dispute to the question of whether John Croix may testify. As such, the Court focuses exclusively on that issue.

On January 7, 2016, plaintiffs identified as potential witnesses "Any witness identified in the deposition of William Bell."[2] While plaintiffs' disclosure is one that future litigants should follow at their own risk, the Court is convinced, in these circumstances, that the defendants were—or at least fairly should have been—fully alerted as to the possibility of Mr. Croix being a witness. Cf. Transcenic, Inc. v. Google Inc., No. 11-582, 2014 WL 7478028, at [*1] (D. Del. 2014) ("The witnesses Transcenic describes as previously undisclosed were adequately disclosed by Defendant Google, Inc. . . . including by incorporating by reference a former defendant's initial disclosures, which included "authors of prior art publications or inventors of patents relevant to the subject matter of the RE '289 patent. . . ."). That is all the more true given that a review of the deposition makes clear that there was a multi-page discussion of Mr. Croix, which established that Mr. Croix is the only sailor that Mr. Bell testified he remained in touch with. See Bell Dep. 125:4-127:4. This is not a situation where the plaintiff is engaged in ambush litigation, and the Court declines to treat it as a case where a plaintiff is plucking a name of which the defendants had no awareness of out of a lengthy record.

Further, even if the disclosure technically fell short, the Court concludes that any error is "harmless," Fed. R. Civ. 37(c), and that permitting Mr. Croix to testify is fully justified, see, e.g., Bailey v. Shell Western E&P, Inc., 609 F.3d 710, 729 (5th 2010). Mr. Croix's testimony has gained importance to the plaintiffs' case since Mr. Bell, through no fault of plaintiffs, succumbed to mesothelioma, and there will be minimal prejudice to the defendants because they were plainly aware of Mr. Croix and could have deposed him. In addition, any prejudice that exists is further minimized by the Court's recent (and unrelated) permission to refile summary judgment briefs and six month continuation of the trial date. Further, to additionally minimize any prejudice, the Court will grant permission to depose Mr. Croix even though discovery has ended.[3] Finally, plaintiffs' explanation of their conduct, though by no means ideal, does not convince the Court that this is a situation where plaintiffs are engaged in any sort of malfeasance where stricter sanctions would be necessary to deter future misconduct. Therefore, the Court will permit Mr. Croix to remain on the plaintiffs' witness list.

Accordingly,

IT IS ORDERED that defendants' motion to strike John Croix from plaintiffs' witness list is DENIED.

IT IS FURTHER ORDERED that, should the defendants so request, defendants have permission to depose Mr. Croix before October 31, 2016. Should the parties be unable to arrange a deposition for before October 31, 2016, they should alert the Court no later than October 19, 2016.

IT IS FURTHER ORDERED that, to the extent that defendants seek to supplement their expert reports to account for the testimony of Mr. Croix, any defendant may file a motion for leave with the Court to supplement their expert reports no later than November 7, 2016. Any motion must include, as an exhibit, the proposed supplementation. Plaintiffs' opposition to any motion to supplement is due by November 14, 2016, though the Court observes that it likely behooves the plaintiffs to be cooperative.

[1] R. Doc. No. 249.

[2] R. Doc. No. 249-2, at 6. Mr. Bell's deposition had already occurred on December 2, 2015.

[3] Defendants' claims of serious prejudice related to their export reports strains credulity given the general nature and brevity of the reports that the Court has reviewed.

Sources

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