Broussard v. Huntington Ingalls, Inc. (E.D. La., Nov. 22, 2021, order 2)

Our plain-English summary of Broussard v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, November 22, 2021).

Betty Ann Broussard was diagnosed with mesothelioma in 2018 and sued Huntington Ingalls (formerly Avondale Shipyards) and others. She died in November 2018, and her children continued the case. She alleged she was exposed by washing the work clothes of her ex-husband, Kenneth Guilbeau, who worked at Avondale in 1970 and 1971 as a pipe fitter's helper. Huntington Ingalls brought third-party claims against General Electric and Uniroyal, and plaintiffs also sued GE directly. Both companies moved for summary judgment. The court applied Louisiana law, which requires proof of significant exposure to the defendant's asbestos product. It granted GE's motion. Guilbeau spent at most about five hours near turbines that might have been GE's, and nothing showed they were being insulated then. It denied Uniroyal's motion. Witnesses described Uniroyal asbestos cloth as routinely used at Avondale, Guilbeau worked near insulators, and plaintiffs' expert linked such exposure to her mesothelioma. A jury could therefore find exposure to Uniroyal cloth.

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: November 22, 2021
• Docket: Civil Action No. 20-836
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted General Electric's motion for summary judgment and dismissed plaintiffs' claims against it with prejudice, and denied Uniroyal's motion for summary judgment on Huntington Ingalls' third-party claim.

What the court held. Under Louisiana law a plaintiff must show significant exposure to the defendant's asbestos-containing product, and mere presence of the product at the worksite is not enough. Circumstantial evidence that a worker regularly worked near a defendant's asbestos cloth can create a fact issue on take-home exposure.

Issues decided: Causation, Product Identification, Take-Home Exposure.

The people and their exposure

• Betty Ann Broussard (family member): mesothelioma; died

Who	Work	Where	When	Products
Betty Ann Broussard	laundered work clothes of ex-husband, a pipe fitter's helper at Avondale (shipyards and maritime work); dust brought home	Avondale Shipyards, Louisiana	1970-1971	asbestos textiles, Uniroyal asbestos cloth (distributed by Reilly-Benton)
Betty Ann Broussard	laundered work clothes of ex-husband, a pipe fitter's helper at Avondale (shipyards and maritime work); dust brought home	Avondale Shipyards, Louisiana	1970-1971	pipe and block insulation, General Electric turbines (asbestos insulation)

The defendants

• Huntington Ingalls, Inc. (premises owner)
• General Electric Company, Inc. (manufacturer)
• Uniroyal, Inc. (manufacturer)

Other decisions in this case

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

• Broussard v. Huntington Ingalls, Inc. (May 27, 2020). The district court denied the plaintiffs' motion to remand, so the case stayed in federal court and Avondale (Huntington Ingalls) and its co-defendants won on removal.
• Broussard v. Huntington Ingalls, Inc. (November 22, 2021). The court granted Huntington Ingalls' (as successor to Standard Paint and Varnish) motion for partial summary judgment and dismissed with prejudice the plaintiffs' claims relating to Standard Paint and Varnish, because exposure was not sufficiently shown.
• Broussard v. Huntington Ingalls, Inc. (November 22, 2021). The court granted in part the plaintiffs' motion for partial summary judgment, ruling that Avondale could not use the government contractor defense against state law failure-to-warn claims, and denied the motion in all other respects.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• McAskill v. American Marine Holding Co. (Louisiana Court of Appeals, 4th Circuit, 2009). The Louisiana Court of Appeal reversed the trial court's summary judgment for Eagle, Branton and Commercial Union and remanded for further proceedings, so plaintiff McAskill's claims go forward.
• Thibodeaux v. Asbestos Corp. Ltd. (Louisiana Court of Appeals, 4th Circuit, 2008). The Louisiana Court of Appeal affirmed the summary judgment that dismissed Eagle Asbestos & Packing Company and its insurer OneBeacon, so the Thibodeauxs lost their claims against those two defendants.
• Vodanovich v. AP Green Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed summary judgment for Sank, Inc. (formerly Buck Kreihs Co.) and Dixie Machine Welding and Metal Works, dismissing the wrongful death claim of the longshoreman's estate for lack of proof of exposure.
• Abadie v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, 5th Circuit, 2001). The appeals court reversed the trial judge's JNOVs that had raised the seven plaintiffs' damage awards and reinstated the jury's awards, affirmed liability of Asbestos Corporation Limited and four Avondale safety officers (O'Donnell, Kennedy, Chantrey, Territo; not Chantrey as to Badeaux), reversed liability of two other officers (Kelmell, Roberts), and recalculated each judgment by virile shares, including the Johns-Manville trust and four of the settling manufacturers.

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.

BETTY ANN BROUSSARD, ET AL.,

v.

HUNTINGTON INGALLS, INC., ET AL. SECTION: "S" (5).

Civil Action No. 20-836.

November 22, 2021.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

MARY ANN VIAL LEMMON, District Judge.

IT IS HEREBY ORDERED that the Motion for Summary Judgment (Rec. Doc. 113) filed by defendant General Electric Company, Inc. is GRANTED and plaintiffs' claims against General Electric Company are DISMISSED with prejudice; IT IS FURTHER ORDERED the Motion for Summary Judgment (Rec. Doc. 108) filed by third-party defendant Uniroyal, Inc. is DENIED.

BACKGROUND

Plaintiff, Betty Ann Broussard, was diagnosed with mesothelioma in May 2018. On July 6, 2018, Broussard filed suit against Huntington Ingalls, Inc.[1] and other defendants, in the Civil District Court for the Parish of Orleans. Broussard alleged that she was exposed to asbestos through, among other things, laundering the clothes of her ex-husband, Kenneth Guilbeau, Sr., who worked around asbestos dust while employed at Avondale Shipyards ("Avondale") during their marriage. Subsequently, Huntington Ingalls, Inc. filed third party claims against General Electric Co. ("GE") and Uniroyal, Inc. ("Uniroyal) seeking virile share contributions for any amounts owed due to Broussard's alleged asbestos exposures from Guilbeau's employment at Avondale.

Broussard died in November 2018, and her children were substituted as plaintiffs in this case. On March 10, 2020, defendants removed this matter to federal court. Plaintiffs filed a Fourth Amended Complaint in which, inter alia, they named General Electric as a direct defendant. Plaintiffs filed a motion to remand, which the court denied, and subsequently, the matter was stayed for six months due to the liquidation of Huntington Ingalls, Inc.'s insurer, Lamorak Insurance Company. Following the lifting of the stay, GE and Uniroyal have re-urged their motions for summary judgment. GE argues that plaintiffs have put forth no evidence that Betty Broussard was exposed to asbestos attributable to GE. Plaintiffs argue that the evidence in this case that Guilbeau worked around asbestos-containing GE turbines while at Avondale is sufficient to create a fact issue preventing summary judgment.

Uniroyal argues that Avondale cannot prove Betty Broussard was exposed to a Uniroyal product, because it was not the sole supplier of asbestos cloth to Avondale. Plaintiffs argue that genuine issues of material fact exist as to whether Betty Broussard was exposed to asbestos from Uniroyal products, and whether such exposures were a substantial contributing cause of her mesothelioma.

Guilbeau testified in his 2003 deposition that he was employed as a pipe fitter's helper for a period of eight months to a year during 1970 and 1971. In that role, he would go and get things for the pipe fitter to which he was assigned. Guilbeau stated that he worked around people insulating the pipes, although he did not fit pipe, insulate pipe, or cut gaskets. He did not recall if he tore off insulation material for pipes, or if he handled asbestos-containing materials, but stated that he may have done so.

During his stint at Avondale, Guilbeau worked in the vicinity of turbines made by GE and Westinghouse in the Avondale yard for a total of one to two hours over the entire course of his employment. He did not work on the turbines. At the time he was working near the turbines, contractors were working on them, but Guilbeau did not know what the contractors were doing.

Also during his employment at Avondale, Guilbeau worked for a total of approximately two to three hours in the vicinity of turbines on ships, while the turbines were being installed. He did not know who manufactured the turbines being installed on the ships.

Asbestos cloth was used to insulate steam pipes on the ships built by Avondale. Uniroyal was a manufacturer of asbestos cloth, which was distributed by Reilly-Benton. Seventy-five to ninety percent of all asbestos cloth distributed by Reilly-Benton went to Avondale, including all of the Uniroyal cloth sourced by Reilly-Benton. Uniroyal's corporate representative acknowledged that cutting the cloth released asbestos, and asbestos powder was released when the cloth was touched. While Uniroyal cloth was not used exclusively, Avondale employee Kevin Cortez testified that he routinely saw it used, and that when he worked in the insulation department, most of the rolls of asbestos cloth had Uniroyal tags attached to them. Michael Comardelle testified that Uniroyal cloth was used "a good bit." Avondale employee Joseph Granier, who worked as an insulator, testified that he did not recall seeing any other brands of asbestos cloth other than Uniroyal. Plaintiffs' expert pathologist, Dr. Richard Kradin, testified that workers in the presence of insulators during the application of asbestos cloth would have their clothes contaminated with asbestos fibers that would then be brought home. He further opined that considering Guilbeau's testimony that he worked in engine rooms as insulators were doing their work, if the insulators were installing asbestos cloth, Broussard would be exposed to asbestos from Guilbeau's clothes when laudering them, and that the exposure was a significant contributing factor in causing her mesothelioma.

LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Granting a motion for summary judgment is proper if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits filed in support of the motion demonstrate that there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law. FED. R. CRT. P. 56(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The court must find "[a] factual dispute ... [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party ... [and a] fact ... [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson, 477 U.S. 242 (1986).

If the moving party meets the initial burden of establishing that there is no genuine issue, the burden shifts to the non-moving party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-movant cannot satisfy the summary judgment burden with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the opposing party bears the burden of proof at trial, the moving party does not have to submit evidentiary documents properly to support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).

DISCUSSION

To prevail in an asbestos case under Louisiana law, a plaintiff must establish by a preponderance of the evidence that he was exposed to asbestos and the exposure was a substantial cause of his injury. Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1088 (La. 5/22/09). The plaintiff bears the burden of proof, which can be made by direct or circumstantial evidence. Vodanovich v. A.P. Green Indus., Inc., 869 So.2d 930, 933-34. (La. App. 4 Cir. 3/3/2004). A possibility, or an "unsupported probability," is insufficient to support a judgment in the plaintiffs favor. Id. at 434.

Plaintiff must show "significant exposure" to asbestos-containing products. Lucas v. Hopeman Bros, Inc., 60 So.3d 690, 700 (La. App. 4 Cir. 2/16/2011). "Exposure" means the "inhalation of asbestos fibers into the lungs." Abadie v. Metro. Life Ins. Co., 784 So.2d 46, 93 (La. App. 5 Cir. 3/28/2001). "Significant" exposure may be shown by demonstrating that the plaintiff actively worked with asbestos-containing materials. See McAskill v. Am. Marine Holding Co., 9 So.3d 264, 268. (La. App. 4 Cir. 2/20/2008). To defeat summary judgment, the plaintiff must point to specific evidence showing potential exposure to asbestos-containing products in order to create a genuine issue of material fact. See Thibodeaux v. Asbestos Corp., Ltd., 976 So.2d 859, 867 (La. App. 4 Cir. 2/20/2008). Evidence of the mere physical presence of the defendant's asbestos-

containing products at the claimant's place of employment will not suffice to establish liability or defeat the defendant's motion for summary judgment. Id.

Once it is established that a plaintiff was exposed to asbestos-containing products, the plaintiff must show that the product was a substantial factor in causing the plaintiffs injury. The causal relationship between asbestos exposure and mesothelioma has been recognized by Louisiana courts. McAskill, 9 So.3d at 268. Any non-trivial exposure to asbestos is deemed a substantial factor and a cause of mesothelioma, Id.

ANALYSIS

G.E.'s Motion

In this case, Guilbeau testified that he had no specific recollection of handling asbestos containing materials attributable to GE during his employment as a pipe fitter's helper. Accordingly, the question before the court is whether there is sufficient circumstantial evidence to create a fact issue as to whether Guilbeau was exposed to asbestos by GE as plaintiffs allege, and that the exposure was a substantial factor in causing Broussard's injury.

GE acknowledges that during the relevant time period, it manufactured turbines that were installed on ships built at Avondale, including the States Lines vessels SS MONTANA and SS IDAHO, upon which Guilbeau worked. Because the turbines can reach temperatures as high as 875 degrees Fahrenheit, insulating them was necessary. It is undisputed that for GE turbines, asbestos-containing materials were used to insulate them, in a process overseen by GE "installation engineers." Testimony of other Avondale employees who worked at Avondale during the relevant time period (although they did not work with Guilbeau and were never present while he was working), establishes that the insulation process created dust.

Plaintiff's contend that because GE's products were present in the workplace and Guilbeau worked near them, it is likely that he was exposed. However, "[a] plaintiff must establish his claim to a reasonable certainty, [sic] mere possibility, and even unsupported probability, are not sufficient to support a judgment in the plaintiffs' favor." Vodanovich. 869 So.2d at 933-34. While the evidence places Guilbeau at a worksite with asbestos-containing products manufactured by multiple vendors including GE, it does not specifically place him around asbestos fibers from the GE turbines. To succeed in their claims, plaintiffs must show that in the three to five hours total in which Guilbeau worked near turbines, that at least one was a GE turbine and that it was being insulated.

The evidence presented is that during the entire course of his employment, Guilbeau worked for a maximum of five hours in the vicinity of what might have been GE turbines. There is no evidence that the turbines were being insulated during those five hours. The fact that Guilbeau stated he did not know what the contractors were doing to the turbines on the occasions he worked nearby, suggests otherwise. Presumably, as a pipe fitter's helper, he would recognize if the contractors were insulating the turbines.

This evidence is insufficient to place Guilbeau around asbestos fibers emanating from a GE product that he could have transported home to Broussard. Accordingly, summary judgment in favor of GE is appropriate. Because the court finds that exposure is not sufficiently established, it does not reach the question whether exposure was substantial. Uniroyal's Motion

Uniroyal has moved for summary judgment seeking dismissal of Avondale's third-party claim, arguing that Avondale cannot prove Betty Broussard was exposed to a Uniroyal product, because it was not the sole supplier of asbestos cloth to Avondale.

The evidence submitted reflects that asbestos cloth manufactured by Uniroyal was regularly and frequently used in the environment in which Guilbeau worked. Guilbeau testified that he worked near insulators while they were insulating pipe. And while admittedly, Uniroyal was not the exclusive supplier of the asbestos cloth used for insulation, they provided the cloth in such quantities that employees described its use as routine, and in one case could not recall seeing any other brand. The court finds that this evidence creates a fact issue as to whether Guilbeau was exposed to asbestos from a Uniroyal product, which he transported to his home on his clothing.

Broussard laundered all of Guilbeau's work clothes during the relevant time period. Thus, if she was exposed to asbestos from laundering clothes, a reasonable jury could infer that some dust came from Uniroyal asbestos cloth. Further, the expert pathologist's testimony is that such an exposure would substantially contribute to Broussard's mesothelioma. The court therefore finds that plaintiff has pointed to evidence that creates a fact issue on the question of whether Uniroyal's product caused plaintiffs' injuries. Summary judgment in Uniroyal's favor is inappropriate. Accordingly,

IT IS HEREBY ORDERED that the Motion for Summary Judgment (Rec. Doc. 113) tiled by third-party defendant General Electric Company, Inc. is GRANTED and plaintiffs' claims against General Electric Company are DISMISSED with prejudice; IT IS FURTHER ORDERED the Motion for Summary Judgment (Rec. Doc. 108) filed by third-party defendant Uniroyal, Inc. is DENIED.

[1] Huntington Ingalls, Inc., f/k/a Northrop Grumman Shipbuilding, Inc., f/k/al Northrop Grumman Ship Systems, Inc., f/k/a/ Avondale Industries, Inc., and f//k/a Avondale Shipyards, Inc.

Sources

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