Comardelle v. Pennsylvania General Insurance Company (E.D. La., Nov. 21, 2014)

Our plain-English summary of Comardelle v. Pennsylvania General Insurance Company (U.S. District Court, Eastern District of Louisiana, November 21, 2014).

Michael Comardelle alleged that he was exposed to asbestos and asbestos-containing products during his employment from 1963 through 1979, and that he developed mesothelioma and lung cancer, first diagnosed in September 2013. He died in May 2014, and his widow and children took over the suit. Among many claims, they sought to hold executive officers of Avondale (now Huntington Ingalls), and the insurers of those officers, strictly liable under Article 2317 of the Louisiana Civil Code. The officers and insurers asked for partial summary judgment. The federal district court in the Eastern District of Louisiana granted it. It did not decide whether such claims can ever be brought against executive officers. Instead it found that plaintiffs offered no evidence that the officers had care, custody and control (garde) of the asbestos or asbestos-containing equipment. Plaintiffs' evidence showed only that the officers were responsible for employee safety, attended safety meetings and knew asbestos was a risk. The strict liability claims against the officers were dismissed with prejudice. The court also criticized plaintiffs' counsel for mischaracterizing exhibits.

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 21, 2014
• Docket: Civil Action No. 13-6555
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted partial summary judgment to the Avondale executive officers and their insurers and dismissed plaintiffs' Article 2317 strict liability claims against them with prejudice.

What the court held. Under Louisiana Civil Code Article 2317 (as it applied before 1996), a plaintiff must show the defendant had care, custody and control (garde) of the harmful thing; evidence of responsibility for employee safety and knowledge of asbestos risk does not show control of the asbestos itself.

Issues decided: Design Defect, Premises Owner Liability, Trial Procedure and Discovery.

The people and their exposure

• Michael Comardelle: mesothelioma, lung cancer; died

Who	Work	Where	When	Products
Michael Comardelle	employment (job not stated) (shipyards and maritime work)	Avondale, Louisiana	1963 through 1979

The defendants

• Albert L. Bossier, Jr. (employer)
• J. Melton Garrett (employer)
• OneBeacon America Insurance Company (insurer)
• Pennsylvania General Insurance Company (insurer)

Other decisions in this case

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

• Comardelle v. Pennsylvania General Insurance Company (March 18, 2014). The court denied plaintiff Comardelle's motion to remand, holding that Westinghouse (joined by Foster Wheeler and GE) properly removed the case to federal court under the federal officer removal statute.
• Comardelle v. Pennsylvania General Insurance Company (November 3, 2014). The court granted all defendants' motions for partial summary judgment and dismissed with prejudice the family's claims for bystander (Lejeune) damages for watching Comardelle's illness and death.
• Comardelle v. Pennsylvania General Insurance Company (November 18, 2014). The court granted Avondale's (Huntington Ingalls') motion for partial summary judgment and dismissed with prejudice the plaintiffs' Louisiana Civil Code Articles 1821-1823 claims based on the insurance buy-back agreements.
• Comardelle v. Pennsylvania General Insurance Company (December 15, 2014). The court granted P2S, LLC's motions for summary judgment, dismissing with prejudice the plaintiffs' claims and the Avondale Interests' crossclaims against P2S, and dismissed P2S's alternative motion as moot.
• Comardelle v. Pennsylvania General Insurance Company (December 15, 2014). The court denied Union Carbide's motion to exclude plaintiffs' pathology expert Dr. Hammar and for summary judgment on causation, so plaintiffs' claims against Union Carbide continued.
• Comardelle v. Pennsylvania General Ins. Co. (January 5, 2015). The district court granted Amchem's (Bayer CropScience's) motion and barred plaintiffs' expert Dr. Hammar from giving "every exposure" specific-causation testimony that Comardelle's mesothelioma was caused by Benjamin Foster 81-27 or any other particular exposure.
• Comardelle v. Pennsylvania General Insurance Company (January 5, 2015). The court granted Amchem's (Bayer CropScience) motion and excluded plaintiffs' expert Dr. Hammar's "every exposure" specific-causation testimony, including as to Benjamin Foster 81-27, while allowing his diagnosis and general-causation opinions.

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.

MICHAEL COMARDELLE,

v.

PENNSYLVANIA GENERAL INSURANCE COMPANY ET AL., Section I.

Civil Action No. 13-6555.

November 21, 2014.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Before the Court is a motion[1] filed by defendants, Albert L. Bossier, Jr., J. Melton Garrett, OneBeacon America Insurance Company, and Pennsylvania General Insurance Company (collectively, the "Avondale executive officers"),[2] for partial summary judgment regarding plaintiffs' strict liability claims. Plaintiffs oppose the motion.[3] For the following reasons, the motion is GRANTED.

BACKGROUND

Plaintiffs allege that decedent, Michael Comardelle ("Comardelle"), was "exposed to asbestos and asbestos-containing products manufactured, distributed, and sold" by defendants during the course of his employment from 1963 through 1979. [4] Plaintiffs allege, "As a result of these exposures to toxic substances, including asbestos, [Comardelle] contracted cancer, mesothelioma, and lung cancer, which was first diagnosed on approximately September 25, 2013."[5] Comardelle died on May 3, 2014, and his widow and children were substituted as plaintiffs.[6]

Among a myriad of other claims, plaintiffs seek to recover from Avondale's executive officers under a theory of strict liability pursuant to Article 2317 of the Louisiana Civil Code.[7] The Avondale executive officers assert that such claims are not cognizable against them as a matter of law,[8] and that even if such claims are cognizable, plaintiffs cannot meet their burden of proof.[9]

STANDARD OF LAW

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine issue of material fact. See Fed. R. Civ. P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence

negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its burden pursuant to Rule 56, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating "`some metaphysical doubt as to the material facts,' by `conclusory allegations,' by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The nonmoving party's evidence, however, "is to be believed,

and all justifiable inferences are to be drawn in [the nonmoving party's] favor." Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

DISCUSSION

Although strict liability has been abolished by the Louisiana legislature,[10] "`[i]n an action asserting liability under [Article 2317] before 1996, the plaintiff bore the burden of proving three elements: (1) that the thing which caused the damages was in the care, custody, and control (garde) of the defendant; (2) that the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and (3) that the vice, ruin, or defect was the cause-in-fact of the plaintiff's damages.'" Cologne v. Shell Oil Co., No. 12-735, 2013 WL 5781705, at [*5] (E.D. La. Oct. 25, 2013) (Fallon, J.) (quoting Dupree v. City of New Orleans, 765 So. 2d 1002, 1008 (La. 2000)). "Louisiana courts have generally held that (1) ownership of a thing establishes a rebuttable presumption of custody or `garde,'[11] and (2) in a case of non-ownership, a defendant may be found to have custody over property when he exercises direction and control of the thing and derives some benefit from it." Coulter v. Texaco, Inc., 117 F.3d 909, 914 (5th Cir. 1997). "Whether the law imposes a duty of garde. . . is a factual inquiry" that requires a court to "determine 1) what benefit [the person] received from the [thing] and 2) what kind of direction and control [the person] had over it." Doughty v. Insured Lloyds Ins. Co., 576 So. 2d 461, 464 (La. 1991).

In Vedros v. Northrop Grumman, Civil Action No. 11-1198, another section of this Court recently granted a substantially similar motion filed by the same Avondale executive officers (including all the defendants described in note 2, supra) regarding substantially similar claims by another asbestos plaintiff.[12] As U.S. District Judge Carl Barbier concluded during oral argument in that other case on March 26, 2014,[13] this Court need not decide whether strict liability claims are ever appropriate against executive officers[14] because plaintiffs have not produced any evidence that raises a genuine issue of material fact as to whether the Avondale executive officers had care, custody, and control (garde) over any asbestos or asbestos-containing equipment.

The evidence produced by plaintiffs suggests that the Avondale executive officers had responsibility for their employees' safety, attended meetings where safety policy was discussed, and knew that asbestos poses a safety risk.[15] However, plaintiffs' evidence says nothing about the Avondale executive officers' control of the asbestos material itself. See also Patterson v. Radiator Specialty Co., No. 10-2007, 2012 WL 1565286, at * (E.D. La. May 2, 2012) (Duval, J.) ("Plaintiff has cited no case and the Court is unaware of one that finds executive officers having the requisite control to state a cause of action against them under art. 2317. Indeed, it would seem that the `control' would be as to the corporation. . . ."). Accordingly,

IT IS ORDERED that the motion is GRANTED and that plaintiffs' strict liability claims against the Avondale executive officers are DISMISSED WITH PREJUDICE.

[1] R. Doc. No. 246.

[2] Albert L. Bossier, Jr. and J. Melton Garrett are living former executive officers of the company that is now called Huntington Ingalls Incorporated, a defendant that is referred to in the context of this litigation as "Avondale." OneBeacon America Insurance Company and Pennsylvania General Insurance Company are the alleged insurers of both living and deceased Avondale executive officers. See R. Doc. No. 1-2, ¶ 3.

[3] R. Doc. No. 294.

[4] R. Doc. No. 1-2, ¶ 6.

[5] R. Doc. No. 1-2, ¶ 9.

[6] R. Doc. No. 100.

[7] See R. Doc. No. 1-2, ¶¶ 12-15; see also R. Doc. No. 294, at 5-7.

[8] R. Doc. No. 246-1, at 5-8.

[9] R. Doc. No. 246-1, at 8-10.

[10] Tort Reform—Elimination of Strict Liability, 1996 La. Sess. Law Serv. 1st Ex. Sess. Act 1 (H.B. 18) (West) (effective April 16, 1996); see also, e.g., Small v. Baloise Ins. Co. of Am., 753 So. 2d 234, 240 (La. App. 4 Cir. 1998) ("By requiring knowledge or constructive knowledge

under Article 2317.1, the Legislature effectively eliminated strict liability under Article 2317, turning it into a negligence claim. This substantive change should not apply retroactively. . . .") (internal quotation marks omitted), writ denied, 724 So. 2d 733 (La. 1998). [11] Plaintiffs do not present any evidence that the Avondale executive officers had ownership over the asbestos. See R. Doc. No. 294-2, ¶ 1.

[12] Vedros involved the same counsel representing the plaintiffs and the same counsel representing the Avondale executive officers. The Vedros motion was substantively identical, with the same underlying claims in the complaint and the same supporting evidence. [13] See R. Doc. No. 496, at 52-53.

[14] The Court notes the scholarly and persuasive opinion by U.S. District Judge Fallon, which suggests that such actions were permissible under Louisiana law on or about the time of Comardelle's exposure. See Cologne, 2013 WL 5781705, at [*3]-6.

[15] See R. Doc. No. 294, at 9-21. The Court also notes that in Vedros, Judge Barbier stated to plaintiffs' counsel in open court that "I was a little disappointed in your briefs because you in some cases either grossly overstated or you flatly misrepresented what was in the record." When reviewing plaintiff's opposition, this Court identified at least 14 instances where cited exhibits were either grossly mischaracterized and/or failed to support the proposition for which they were cited. Unprofessional conduct and substandard effort is unacceptable, sanctionable, and will not be tolerated in the future.

Sources

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