Cortez v. Lamorak Ins. Co. (E.D. La., Oct. 14, 2022)

Our plain-English summary of Cortez v. Lamorak Ins. Co. (U.S. District Court, Eastern District of Louisiana, October 14, 2022).

The family of Callen Cortez sued several defendants, including Hopeman Brothers and Lamorak Insurance Company, in federal court in Louisiana. They allege he died of mesothelioma caused by asbestos exposure during his career and by take-home exposure from his father's and brothers' work while the family shared a home. This order dealt only with a pretrial evidence dispute. Plaintiffs asked the court to strike eleven defense witnesses who were listed as experts but for whom no expert report had been produced. Only Hopeman objected, and only as to Max Richard, whom it described as a fact witness. Richard had done air-monitoring studies for Hopeman in 1972 on asbestos fiber release at Avondale, from cutting asbestos-containing wall panels. The court held that these studies involved technical and specialized knowledge, so his opinions were not lay opinion. Without an expert report, Hopeman could not offer them. His 1996 deposition from another case did not count as a report. The court granted the motion.

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 14, 2022
• Citation: 635 F. Supp. 3d 489
• Docket: CIVIL ACTION NO. 20-2389
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court granted plaintiffs' motion to strike eleven defense expert witnesses, including Hopeman Brothers' witness Max Richard, because no expert reports were produced.

What the court held. A witness who gives opinions based on technical or specialized knowledge, such as air-monitoring studies of asbestos fiber release, must be disclosed with an expert report under Rule 26(a)(2)(B). Such opinions cannot be offered as lay opinion under Rule 701, and a deposition from another case is not an expert report.

Issues decided: Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Callen Cortez: mesothelioma; died

Who	Work	Where	When	Products
Callen Cortez	; dust brought home

The defendants

• Hopeman Brothers, Inc.
• Lamorak Insurance Company (insurer)

Other decisions in this case

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

• Cortez v. Lamorak Insurance Co. (November 23, 2020). The court denied Callen Cortez's motion to remand, holding that Avondale (Huntington Ingalls, Lamorak Insurance and Albert Bossier) timely and properly removed the case under the Federal Officer Removal Statute.
• Cortez v. Lamorak Insurance Co. (May 20, 2021). The court granted Lamorak's motion and stayed and administratively closed the whole case until September 12, 2021, over plaintiff Cortez's objection that he needed an expedited trial.
• Cortez v. Lamorak Insurance Company (February 7, 2022). The court denied the Louisiana Insurance Guaranty Association's motion for summary judgment, so plaintiff Callen Cortez's claims arising from the Gabler Insulations insurance coverage go forward.
• Cortez v. Lamorak Insurance Company (April 4, 2022). The court granted Avondale's summary judgment motion in part, dismissing Cortez's tort claims against Avondale as his employer and his intentional-tort claim, but denied it as to his take-home exposure claims against Avondale as his brother's employer.
• Cortez v. Lamorak Insurance Company (April 18, 2022). The court granted plaintiff Callen Cortez's motion for summary judgment that he has mesothelioma and that asbestos caused it, over the defendants' oppositions, while leaving specific causation issues for the jury.
• Cortez v. Lamorak Insurance Company (May 3, 2022). The court granted summary judgment to Entergy, First State, USF&G, Berkshire and Insulations, LLC, granted GE's motion in part (insulation claims) and denied it in part (asbestos gasket claims), and denied Foster Wheeler's motion; it also granted LIGA's motion in limine excluding hearsay.
• Cortez v. Lamorak Insurance Company (May 11, 2022). The district court denied as moot plaintiff Cortez's motion for review of the Magistrate Judge's order allowing Eagle, Inc. to file a supplemental answer, because Eagle's later answer to the third amended complaint made the earlier order irrelevant.
• Cortez v. Lamorak Insurance Company (May 11, 2022). The court granted insurer USF&G's unopposed motion for partial summary judgment and dismissed plaintiff Callen Cortez's punitive-damages claims against it.
• Cortez v. Lamorak Ins. Co. (May 19, 2022). The court granted Continental Insurance Company's summary judgment motion, holding the LHWCA preempted Cortez's state-law tort claims against it as Halter Marine's insurer and that his intentional-tort claims failed for lack of evidence, and dismissed Continental's two other summary-judgment motions as moot.
• Cortez v. Lamorak Insurance Company (May 19, 2022). The court granted Trinity's summary judgment motion and the motions to dismiss by Continental, Liberty Mutual and Travelers, dismissing with prejudice Albert Bossier's third-party claims because no substitution was made within 90 days after notice of his death.
• Cortez v. Lamorak Ins. Co. (July 8, 2022). The court granted Westinghouse (ViacomCBS) partial summary judgment on claims about asbestos insulation used on its turbines and denied it on claims about asbestos gaskets it supplied or specified for those turbines.
• Cortez v. Lamorak Ins. Co. (July 13, 2022). The court granted Westinghouse (ViacomCBS) partial summary judgment dismissing the failure-to-warn claims, but denied it on the Halter Marine exposure and on whether its FRDM was a substantial factor in causing Cortez's mesothelioma.
• Cortez v. Lamorak Insurance Company (July 18, 2022). The court granted plaintiffs' motion to exclude Danny Joyce's hearsay testimony about Walsh-Healey inspectors, but denied it as to Avondale's expert relying on that testimony, so long as Avondale does not disclose the hearsay to the jury.
• Cortez v. Lamorak Insurance Company (July 20, 2022). The court denied as premature the motion in limine by Foster Wheeler, GE and Westinghouse to exclude plaintiffs' two medical causation experts as cumulative, leaving defendants free to object at trial.
• Cortez v. Lamorak Insurance Company (July 20, 2022). The court granted in part the motion by Eagle and LIGA to limit plaintiffs' industrial hygienist Gerard Baril, barring him from testifying that a supplier who puts its name on an insulation box should legally be considered its manufacturer, and denied the motion otherwise.
• Cortez v. Lamorak Insurance Company (July 25, 2022). The court granted partial summary judgment for Westinghouse (ViacomCBS), General Electric and Foster Wheeler, dismissing the plaintiffs' intentional-tort and fraud claims, and dismissed the punitive-damages part of the motion as moot.
• Cortez v. Lamorak Insurance Company (July 27, 2022). The court denied Goodrich's motion for summary judgment (joined by several co-defendants) on Callen Cortez's claim for loss of personal household services, so plaintiffs kept that claim.
• Cortez v. Lamorak Insurance Company (July 28, 2022). The court granted Travelers' summary judgment motion only on whether B&B was a professional vendor of asbestos (and so on strict products liability) and denied it on negligence duty and breach and on Article 2317 liability, so plaintiffs' other claims continued.
• Cortez v. Lamorak Insurance Company (August 10, 2022). The court granted Hopeman Brothers' motion for partial summary judgment, dismissing the plaintiffs' intentional-tort claims and their claims that Wayne Manufacturing was Hopeman's alter ego or part of a single business enterprise.
• Cortez v. Lamorak Insurance Company (August 16, 2022). The court granted third-party defendant Liberty Mutual's unopposed motion for partial summary judgment, ruling that Wayne Manufacturing was not a professional vendor of asbestos-containing wallboards, against third-party plaintiff Avondale; plaintiffs were found to lack standing to oppose.
• Cortez v. Lamorak Insurance Company (August 23, 2022). The court denied Hopeman Brothers and Liberty Mutual's motion to exclude or limit the testimony of plaintiffs' industrial hygienist Gerald Baril, so the plaintiffs' expert may testify.
• Cortez v. Lamorak Insurance Company (August 29, 2022). The court granted Hopeman Brothers partial summary judgment that it was not a manufacturer of the asbestos wallboards, but denied summary judgment on whether it was a professional vendor, so that question goes to trial against the Cortez plaintiffs and Avondale's opposition.
• Cortez v. Lamorak Insurance Company (September 9, 2022). The court denied Riley Power, Inc.'s motion for summary judgment on the statute of repose and exposure-sufficiency grounds, and denied its motion to strike as moot, so plaintiffs (the Cortez family) prevailed over Riley at this stage.
• Cortez v. Lamorak Insurance Company (September 29, 2022). The court granted in part and denied in part plaintiffs' motion in limine, excluding most of Westinghouse's expert Dr. Forman's testimony on insulation and general Navy requirements but allowing his testimony on shipyard asbestos-safety requirements relevant to the sophisticated-purchaser defense.
• Cortez v. Lamorak Insurance Company (October 4, 2022). The court denied Certain London Market Insurers' motion for partial summary judgment on the plaintiffs' claims arising from Avondale exposures after January 21, 1970, so the plaintiffs prevailed on the motion.
• Cortez v. Lamorak Insurance Company (October 7, 2022). The court granted defendants' motion for partial summary judgment, ruling that plaintiffs could not recover pre-death lost income or pre-death expenses as wrongful death damages.
• Cortez v. Lamorak Insurance Company (October 12, 2022). The court denied plaintiffs' Daubert motion in limine to limit the testimony of Hopeman Brothers' toxicologist, Dr. Brent Finley, so Hopeman prevailed on the motion.
• Cortez v. Lamorak Insurance Company (October 24, 2022). The court granted in part and denied in part defendants' omnibus motion in limine, barring terms like "asbestos industry" and the Bair memorandum, while allowing the "asbestos victim" label and lay testimony about dust.
• Cortez v. Lamorak Insurance Company (October 24, 2022). The court granted Travelers Indemnity Company's unopposed motion to quash the plaintiffs' trial subpoena, ruling against the plaintiffs.

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.

635 F.Supp.3d 489 (2022)

Callen J. CORTEZ, etal.

v.

LAMORAK INSURANCE COMPANY, etal.

CIVIL ACTION NO. 20-2389.

Signed October 14, 2022.

United States District Court, E.D. Louisiana.

[*490] SECTION "R" (1)

ORDER AND REASONS

SARAH S. VANCE, UNITED STATES DISTRICT JUDGE.

Before the Court is plaintiffs' motion to strike eleven witnesses for the defense.[1] Hopeman Brothers, Inc. ("Hopeman") opposes the motion.[2] For the following reasons, the Court grants plaintiffs' motion.

I. BACKGROUND

This is an asbestos exposure case. Plaintiffs allege that decedent Callen Cortez contracted mesothelioma as a result of exposure to asbestos over the course of his career,[3] as well as take-home exposure resulting from his father's and brothers' work when the family shared a home.[4] Defendants are sued in a variety of capacities, including as manufacturers, premises owners, or employers allegedly responsible for Cortez's exposure to asbestos.[5] In the present motion, plaintiffs seek to strike defense witnesses listed as experts but for whom no expert report has been produced.[6] Hopeman opposes the motion only as to Max Richard.[7]

The Court considers the motion below.

II. DISCUSSION

Plaintiffs seek to strike eleven witnesses for the defense listed as experts for whom no expert witness report was produced. None of the defendants filed oppositions to any of the witnesses identified in plaintiffs' motion except for Hopeman, who opposed the exclusion of Max Richard. Hopeman contends that Richard was properly identified as a fact witness. Plaintiffs assert that Hopeman intends to elicit expert testimony from Richard as demonstrated by the excerpts of his deposition Hopeman proposes to use at trial.

Hopeman concedes that it proposes to offer opinions Richard gave about air-monitoring testing he performed at the behest of Hopeman. He apparently rendered opinions about asbestos fiber release at Avondale generated by the cutting of asbestos-containing wall panels. Under Rule 701 of the Federal Rules of Evidence, if a witness is not testifying as an expert, he may offer opinion testimony only if it is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and [*491] (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701.

From 1970 to 1979, Richard was Director of the Occupational Health and Safety program at Tulane University.[8] He also worked as a consultant for Hopeman while at Tulane.[9] While Richard pursued a master's degree in occupational health, he apparently conducted studies for Hopeman on asbestos fiber release at Avondale in 1972.[10] These studies involve technical and specialized knowledge and are not the province of lay opinion.

Hopeman may not offer opinion testimony from Richard without an expert report. See Fed. R. Civ. P. 26(a)(2)(B)(i) (providing that parties seeking to introduce expert testimony must produce a written report by their expert witnesses containing "a complete statement of all opinions the witness will express and the basis and reasons for them"); see also Dockery v. Hall, No. 13-326, 2018 WL 11424795, at [*2] (S.D. Miss. Mar. 12, 2018) (noting that "the rules of civil procedure preclude an expert witness from offering testimony regarding opinions that are not timely disclosed"). And contrary to Hopeman's contentions, Richard's 1996 deposition from another case is not the equivalent of an expert report. Plaintiffs' motion is granted. III. CONCLUSION

For the foregoing reasons, the Court GRANTS plaintiffs' motion to strike certain expert witnesses. [1] R. Doc. 528.

[2] R. Doc. 689.

[3] R. Doc. 1-1 at 3-6 (Complaint ¶¶ 3, 8).

[4] R. Doc. 149 at 1-2 (Second Amended Complaint ¶¶ 94-95).

[5] See generally R. Doc. 1-1.

[6] R. Doc. 528.

[7] R. Doc. 689.

[8] R. Doc. 689-4 at 4.

[9] Id.

[10] Id.

Sources

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