Cortez v. Lamorak Insurance Company (E.D. La., Feb. 7, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, February 7, 2022).

Callen Cortez sued several defendants, alleging he developed mesothelioma from asbestos exposure. The exposure he alleged came from his own work at Avondale, from his brothers' work at Avondale, and from his father's work at several places, including for Gabler Insulations. The Louisiana Insurance Guaranty Association (LIGA) is responsible for the obligations of Gabler's insolvent 1967 liability insurer. LIGA moved for summary judgment. It argued that Cortez lacked evidence that his father worked with asbestos for Gabler in 1967, and that the father's short employment made any take-home exposure too small to be a substantial factor in the disease. The court denied the motion. Cortez testified that his father, an insulator at the Nine Mile Point power plant, came home covered in white insulation dust. An Entergy corporate deposition said the plant's insulation contained asbestos. Expert reports supported take-home exposure and causation. The court said a short period of exposure does not alone defeat causation under Louisiana law. It left the disputed facts for trial.

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: February 7, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law, an asbestos claimant must show significant exposure and that the exposure was a substantial factor in causing his injury. A short period of exposure does not by itself entitle a defendant to summary judgment. Deposition testimony from another proceeding can be considered on summary judgment if it could be presented in admissible form at trial.

Issues decided: Causation, Expert Testimony, Insurance Coverage, Trial Procedure and Discovery, Take-Home Exposure.

The people and their exposure

• Callen J. Cortez: mesothelioma

Who	Work	Where	When	Products
Callen J. Cortez		Avondale
Callen J. Cortez	brothers' employment at Avondale; dust brought home	Avondale
Callen J. Cortez	father worked as an insulator (power plants and utilities); dust brought home	Nine Mile Point power plant	1967	pipe and block insulation

The defendants

• Louisiana Insurance Guaranty Association (LIGA) (insurer)
• Lamorak Insurance Company (insurer)
• Gabler Insulations, Inc. (contractor)
• Entergy New Orleans, Inc. (premises owner)
• Huntington Ingalls, Inc. (Avondale) (employer)

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 (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 Ins. Co. (October 14, 2022). The court granted plaintiffs' motion to strike eleven defense expert witnesses, including Hopeman Brothers' witness Max Richard, because no expert reports were produced.
• 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.
• Grant v. American Sugar Refining, Inc. (Louisiana Court of Appeals, 4th Circuit, 2007). The appeals court reversed the summary judgment for Eagle, Inc. and remanded to the trial court, ruling for plaintiff Thelonius Grant because genuine factual issues about exposure remained and the trial court misapplied the expert-evidence standard.
• Zimko v. American Cyanamid (Louisiana Court of Appeals, 4th Circuit, 2005). The appeals court reversed the judgment against Tate & Lyle because workers' compensation exclusivity barred it, affirmed liability and the survival award against American Cyanamid, and cut the wrongful death award against American Cyanamid to 50% by allocating fault equally between the two companies.
• Asbestos v. Bordelon, Inc. (Louisiana Court of Appeals, 4th Circuit, 1998). The court affirmed the jury verdicts for the plaintiffs against Owens-Corning Fiberglas (Kaylo insulation) and Rock Wool (One Shot cement), reversed the judgments against Garlock, A.W. Chesterton and Flexitallic, affirmed the judgments against Abadie, Naquin and Terrebonne and the dismissal of Plaisance's claim as prescribed, and ordered a virile-share reduction for Avondale's settlement that, on rehearing, applies only to Duronslet.

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.

CALLEN J. CORTEZ,

v.

LAMORAK INSURANCE COMPANY, ET AL., SECTION "R" (1).

Civil Action No. 20-2389.

February 7, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendant Louisiana Insurance Guaranty Association's ("LIGA") motion for summary judgment as to plaintiff Callen Cortez's claims arising out of American Mutual Liability Insurance Company ("AMLICO")'s insurance coverage of Gabler Insulations, Inc. ("Gabler").[1] Plaintiff opposes the motion.[2]

Because material facts remain in dispute, the Court denies LIGA's motion.

I. BACKGROUND

This is an asbestos exposure case. Plaintiff Callen Cortez alleges that he contracted mesothelioma as a result of direct exposure to asbestos during his employment at, inter alia, Huntington Ingalls, Inc. ("Avondale"),[3] as well as take-home exposure resulting from his brothers' employment at Avondale,[4] and his father's employment at, inter alia, Gabler.[5] The record indicates that plaintiff's father, Calise Cortez, worked for Gabler during the final quarter of 1967.[6] Plaintiff testified that he recalls his father coming home from work wearing a hardhat labeled "Gabler Insulation."[7] Plaintiff himself never worked for Gabler.

At the time of plaintiff's father's employment with Gabler, Gabler held a policy of liability insurance with AMLICO.[8] AMLICO was declared insolvent and liquidated in 1989.[9] It is undisputed that, by state statute, LIGA is now responsible for AMLICO's insurance obligations to Gabler.[10]

On November 16, 2021, LIGA moved for summary judgment, seeking dismissal of plaintiff's claims against LIGA arising out of AMLICO's obligations to Gabler.[11] LIGA contends that plaintiff has not introduced sufficient evidence that his father worked with or was exposed to asbestos-containing products during his employment with Gabler in 1967.[12] LIGA further argues that any take-home exposure experienced by plaintiff would have been insubstantial in light of the brevity of his father's employment with Gabler, and that therefore, any exposure attributable to Gabler was not a substantial factor in causing plaintiff's injuries.[13] Plaintiff opposes the motion, contending that the record contains evidence sufficient to create an issue of fact as to plaintiff's claims regarding exposure by means of his father's employment with Gabler.[14] The Court considers the parties' arguments below.

II. LEGAL STANDARD

Summary judgment is warranted when "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." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported

allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would `entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). "[T]he nonmoving party can defeat the motion" by either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265. If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 `mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" (quoting Celotex, 477 U.S. at 322)). III. DISCUSSION

Under Louisiana law, in an asbestos-exposure case, the claimant must show that (1) "he had significant exposure to the product complained of," and that (2) the exposure to the product "was a substantial factor in bringing about his injury." Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1091 (La. 2009) (quoting Asbestos v. Bordelon, Inc., 726 So. 2d 926, 948 (La. App. 4 Cir. 1998)). The plaintiff bears the burden of proof on both elements. Vodanovich v. A.P. Green Indus., Inc., 869 So. 2d 930, 932 (La. App. 4 Cir. 2004).

LIGA contends that, with respect to Gabler, plaintiff is unable to meet his burden on either requirement. A. Significant Exposure

First, LIGA argues that plaintiff lacks adequate evidence that his father worked with asbestos insulation during his employment with Gabler, and that plaintiff was exposed to asbestos as a result.[15] This assertion is wrong. Plaintiff testified that his father, Calise Cortez, worked as an insulator for Gabler at the Nine Mile Point power plant in 1967.[16] Plaintiff also testified that, when his father returned home from his work for Gabler, his clothes were covered in white dust from insulation. [17] Specifically, plaintiff explained that his father "would come home covered with the dusty fiber," which "was on his clothes, on his skin, and in his hair and on his boots and his hands."[18] Plaintiff stated that he knew that his father was working with asbestos-containing products, because plaintiff himself worked as an insulator, and recognized the fibers.[19] See Francis v. Union Carbide Corp., 116 So. 3d 858, 863 (La. App. 4 Cir.), writ denied, 123 So. 3d 177 (La. 2013) (reversing summary judgment and finding an issue of material fact when the record indicated that "work with asbestos-containing materials was conducted at [defendant's plant] while [plaintiff]'s father worked there," and plaintiff's "deposition testimony places him around his father's `dusty' work clothing").

Furthermore, plaintiff submits testimony from a deposition of a corporate representative of Entergy New Orleans, Inc. ("Entergy"),[20] which owns and operates the Nine Mile Point plant. The deposition was taken as part of an asbestos case in Louisiana state court. In its reply memorandum, LIGA objects to the admissibility of this evidence under Rule 32(a)(8) of the Federal Rules of Civil Procedure.[21] It contends that there is no indication that the state-court litigation, in which Entergy's deposition was taken, involved the "same subject matter between the same parties, or their representatives or successors in interest." Fed. R. Civ. P. 32(a)(8). But this objection is misplaced. Rule 32 governs the use of deposition testimony "[a]t a hearing or trial." Fed. R. Civ. P. 32(a)(1). Evidence considered on summary judgment need not be presented in a form

actually admissible at trial, and instead must merely be capable of being presented in admissible form. Fed. R. Civ. P. 56(c) (2). Plaintiff could readily submit this evidence in admissible form at trial by, for instance, calling a corporate representative of Entergy, which is a named defendant in this matter. Moreover, many courts have approved of the use of sworn testimony on summary judgment, even if that testimony may not satisfy Rule 32(a)(8). See, e.g., Gamble v. FCA US LLC, 993 F.3d 534, 538 (7th Cir. 2021); Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415 n.12 (5th Cir. 1993) ("Although Rule 56 does not expressly contemplate the use of [testimony from a prior trial] in granting summary judgment, we find no error in relying upon such evidence. It is well-settled that a certified transcript of a judicial proceeding may be considered on a motion for summary judgment."); Tingey v. Radionics, 193 F. App'x 747, 765-66 (10th Cir. 2006) (finding that Rule 32 does not restrict summary-judgment evidence and permitting the consideration of a deposition from another proceeding as if it were an affidavit); Bingham v. Jefferson Cty., No. 11-48, 2013 WL 1312563, at [*6] (E.D. Tex. Mar. 1, 2013), report and recommendation adopted as modified, No. 11-48, 2013 WL 1312014 (E.D. Tex. Mar. 27, 2013) (same). Here, the corporate testimony submitted by plaintiff was given under oath as part of another asbestos matter in Louisiana state court. The Court finds that the deposition is proper summary-judgment evidence.

As to the substance of the deposition, Entergy's corporate representative testified that the insulation used in the construction of all of the units of the Nine Mile Point power plant contained asbestos.[22] Specifically, Entergy testified that there was asbestos in the insulation on pipes, boilers, and gaskets in Units 1 and 2 of the plant.[23] This corporate testimony, and plaintiff's testimony that his father came home from his Gabler work covered in dust, create a genuine issue of fact as to whether plaintiff's father was exposed to asbestos during his employment with Gabler at Nine Mile Point. Moreover, the record contains evidence that plaintiff suffered take-home exposure by virtue of his father's asbestos exposure at that plant. On this issue, the parties dispute at length whether plaintiff had laundry duties involving his father's work clothes during his father's employment with Gabler. Although proof of such laundry duties would tend to strengthen plaintiff's case, at this juncture, resolution of this issue is unnecessary. The record contains evidence suggesting that Calise Cortez came home with white dust on his clothes during the relevant period, and thus exposed his household to asbestos. And the evidence of household exposure goes beyond the disputed laundry duties. For instance, plaintiff testified that when his father came home from work, he would take off his shirt, but would otherwise stay in his work clothes as he ate dinner with the family, and would stay in those clothes until his evening bath.[24] Plaintiff also testified that all of the family's clothes were washed together.[25]

Furthermore, plaintiff submits expert evidence indicating that he and his family suffered take-home asbestos exposure as a result of his father's exposure at work. The Court notes that, on this issue, plaintiff attaches to his opposition declarations from two of his experts: (i) Gerard Baril, an industrial hygienist,[26] and (ii) Dr. Stephen Terry Kraus, a radiation oncologist. [27] While LIGA does not object to these expert declarations, the Court declines to consider them on summary judgment. Plaintiff is not entitled to buttress his experts' opinions by way of affidavits generated in response to a motion for summary judgment. See Cleave v. Renal Care Grp., Inc., No. 04-161, 2005 WL 1629750, at [*1] (N.D. Miss. July 11, 2005) ("A new expert affidavit which is submitted to rebut a summary judgment motion should be stricken if the new opinions differ from the earlier Rule 26 report."); Brumley v. Pfizer, Inc., 200 F.R.D. 596, 603 (S.D. Tex. 2001) (same); Shelter Mut. Ins. Co. v. Culbertson's Ltd., Inc., No. 97-1609, 1999 WL 135297, at [*4] (E.D. La. Mar. 11, 1999) (striking a supplemental expert report that "touche[d] upon nothing. . . mentioned in the first report"); cf. AIG Eur., Ltd. v. Caterpillar, Inc., 831 F. App'x 111, 116 (5th Cir. 2020) (per curiam) (affirming the district court's exclusion of plaintiff's supplemental expert report on causation). The parties have not briefed whether the expert declarations differ from or discuss issues not addressed in Barile's and Dr. Kraus's original Rule 26 reports. But plaintiff includes as attachments to the expert declarations these experts' original reports. LIGA has not objected to these experts' qualifications, their methodology, or their reliability. The Court therefore confines its summary-judgment inquiry to the original expert reports submitted by Barile and Dr. Kraus. In reviewing the reports, the Court finds that they create an issue of fact as to whether plaintiff was exposed to asbestos by virtue of Calise Cortez's work at Gabler. Specifically, Barile indicates in his expert report that, "[b]ased on the condition of Calise Cortez'[s] clothing[,] as reported by [plaintiff], an insulator working at Nile Mile Point would have had his clothing contaminated with asbestos[-]containing insulation materials," and that, therefore, "[plaintiff] and his family were para-occupationally exposed to asbestos."[28] Barile further opines that "the family home was contaminated with asbestos."[29] Similarly, Dr. Kraus opines that plaintiff "had significant paraoccupational asbestos exposure through the work of his father while working at. . . Nine Mile Point power plant."[30]

Accordingly, the Court finds that material facts remain in dispute as to whether plaintiff was exposed to asbestos through his father's work for Gabler in 1967. See, e.g., Francis, 116 So. 3d at 863 (reversing summary judgment in light of evidence that plaintiff's father worked at a plant where asbestos-containing materials were used, and plaintiff was around his father's "dusty" clothing); Zimko v. Am. Cyanamid, 905 So. 2d 465, 491 (La. App. 4 Cir. 2005), writ denied, 925 So. 2d 538 (2006) ("In the absence of any testimony that conditions at [defendant]'s. . . plant differed from the industry norm, [plaintiff's expert]'s knowledge of prevailing industry practices and conditions constitutes competent, indeed compelling, evidence that he could rely upon to infer that [plaintiff]'s household exposure to asbestos fibers was sufficient to cause malignant mesothelioma."); Grant v. Am. Sugar Ref., Inc., 952 So. 2d 746, 749-50 (La. App. 4 Cir. 2007) (finding an issue of material fact based on evidence that plaintiff's father worked at a plant where asbestos-containing products were used, and that plaintiff washed his father's work clothes during that time).

LIGA is not entitled to summary judgment as to whether plaintiff was exposed to asbestos as a result of his father's work for Gabler.

B. Substantial Factor in Causing Injury

LIGA also contends that, even if plaintiff were exposed to asbestos through his father's work at Gabler, he cannot show that the exposure was a substantial factor in causing his injury.[31] LIGA emphasizes that Calise Cortez's employment with Gabler lasted for only a short period of time, and argues that, accordingly, any contact would have been "extremely minimal."[32]

This argument fails for two reasons. First, the brevity of plaintiff's asbestos exposure does not alone warrant summary judgment for the defendant. As the Louisiana Supreme Court has explained, "[s]imply because a plaintiff suffered asbestos exposure while working only a short period for an employer," and "had longer exposure working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor in causing his mesothelioma." Rando, 16 So. 3d 1065 at 1091. Second, plaintiff's two experts each opine that plaintiff's exposure through his father's work at Gabler contributed to his mesothelioma. Specifically, Baril states that Gabler's failure to take precautions to "prevent [its] workers from wearing asbestos-contaminated clothing to their homes significantly increased [plaintiff's] risk of developing mesothelioma."[33] Similarly, Dr. Kraus opines that plaintiff's "significant paraoccupational asbestos exposure through the work of his father" at Nine Mile Point was "a significant contributing favor to the development of [plaintiff's] mesothelioma."[34] Accordingly, LIGA is not entitled to summary judgment as to whether plaintiff's exposure through his father's work for Gabler was a substantial factor in causing his mesothelioma.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES LIGA's motion for summary judgment.

[1] R. Doc. 327.

[2] R. Doc. 344.

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

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

[5] R. Doc. 1-1 at 7-8 (Complaint ¶¶ 11-12).

[6] R. Doc. 327-3 at 5 (Social Security Statement of Earnings, Calise Cortez).

[7] R. Doc. 344-4 at 7-8 (Deposition of Callen Cortez at 422:24-423:11).

[8] R. Doc. 327-1 ¶ 8 (Declaration of Malcolm Twiner, Jr.).

[9] Id. ¶ 5.

[10] R. Doc. 327-9 at 1.

[11] R. Doc. 327.

[12] R. Doc. 327-9 at 4.

[13] Id. at 8.

[14] R. Doc. 344 at 3-22.

[15] R. Doc. 327-9 at 6-7.

[16] See R. Doc. 344-4 at 7, 17 (Deposition of Callen Cortez at 422:8-423:11, 834:6-19).

[17] Id. at 19 (Deposition of Callen Cortez at 836:3-23).

[18] Id.

[19] Id.

[20] R. Doc. 344-8 (Corporate Deposition of Entergy New Orleans, Inc. through Gustave VonBodungen, McCord, etal. v. Asbestos Defendants, etal., Civ. Dist. Ct. Par. of Orleans, No. 2008-4457) (May 20, 2009).

[21] R. Doc. 357 at 2.

[22] See R. Doc. 344-8 (Corporate Deposition of Entergy New Orleans, Inc. through Gustave VonBodungen). [23] Id. at 8-12 (Corporate Deposition of Entergy New Orleans, Inc. through Gustave VonBodungen at 134:16-136:6, 139:16-140:23). [24] R. Doc. 344-5 at 2 (Perpetuation Deposition of Callen Cortez at 68:2-14).

[25] Id. (Perpetuation Deposition of Callen Cortez at 68:15-17).

[26] R. Doc. 344-9 at 1-2 (Declaration of Gerard Baril, CIH).

[27] R. Doc. 344-11 at 1-4 (Declaration of Dr. Stephen Terry Kraus).

[28] R. Doc. 344-9 at 25-26 (Barile Report).

[29] Id. at 26.

[30] R. Doc. 344-11 at 13 ¶ 46 (Kraus Report).

[31] R. Doc. 327-9 at 4, 8-9.

[32] Id. at 4.

[33] R. Doc. 344-9 at 26 (Barile Report).

[34] R. Doc. 344-11 at 13 ¶ 46 (Kraus Report).

Sources

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