Cortez v. Lamorak Insurance Company (E.D. La., Apr. 18, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, April 18, 2022).

Callen Cortez sued several companies, including Huntington Ingalls (Avondale), Westinghouse, Foster Wheeler, General Electric, Goodrich, Amchem and the Hopeman interests, over his mesothelioma. He asked the federal district court in Louisiana for partial summary judgment on two points: that he has mesothelioma and that asbestos caused it. His treating physician diagnosed the disease in June 2020. Other doctors, including defense experts, agreed that he has mesothelioma and that asbestos exposure caused it. Most defendants said they did not contest these points. Goodrich and Amchem cited scientific evidence about different asbestos fiber types and other possible causes of mesothelioma. The court found this beside the point, because they offered no evidence that anything other than asbestos caused Cortez's disease. The court granted the motion. It stated that the ruling does not stop any defendant from presenting evidence to the jury on specific causation, including fiber type, amount of exposure, and which products or defendants are responsible.

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: April 18, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. A plaintiff is entitled to summary judgment that he has mesothelioma and that asbestos caused it when the medical evidence, including defense experts' testimony, is undisputed; arguments about fiber type, sources and specific causation do not defeat that limited motion.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Callen J. Cortez: mesothelioma

The defendants

• Huntington Ingalls, Inc. (Avondale)
• ViacomCBS, Inc. (Westinghouse) (manufacturer)
• Foster Wheeler, LLC (manufacturer)
• General Electric Company (manufacturer)
• Goodrich Corporation
• Bayer CropScience, Inc. (Amchem)
• Hopeman Brothers, Inc.
• Liberty Mutual Insurance Company (insurer)
• 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 (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.

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.

Civil Action No. 20-2389.

April 18, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is plaintiff Callen Cortez's motion for summary judgment that (1) he has mesothelioma, and that (2) asbestos was the cause of his mesothelioma.[1] Opposition memoranda were filed by defendants Huntington Ingalls, Inc. ("Avondale"),[2] ViacomCBS, Inc. ("Westinghouse"), Foster Wheeler, LLC, and General Electric Company ("GE"),[3] Goodrich Corporation ("Goodrich"),[4] Bayer CropScience, Inc. ("Amchem"),[5] and Hopeman Brothers, Inc. and third-party defendant Liberty Mutual Insurance Company as the alleged insurer of Wayne Manufacturing Corporation (collectively, "the Hopeman Interests").[6] The Court considers the motion below.

The record in this case contains undisputed medical evidence indicating that plaintiff, Callen Cortez, has mesothelioma. Plaintiff's treating physician, Dr. Johnny Perez, diagnosed plaintiff with mesothelioma on June 10, 2020.[7] Dr. Rodney Landreneau testified that he agreed with the diagnosis.[8] Dr. Stephen Kraus testified that plaintiff has mesothelioma, and that his mesothelioma was caused by asbestos exposure.[9] Defense expert, Dr. Brent Staggs, similarly testified that plaintiff has malignant mesothelioma, and that his mesothelioma was caused by asbestos exposure.[10] Based on these opinions from multiple doctors, the Court finds that plaintiff has "come forward with evidence which would `entitle [him] 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) (citations omitted). Plaintiff has therefore discharged his burden as the summary-judgment movant. While eight defendants collectively filed five oppositions to plaintiff's motion, a review of their memoranda reveals that they do not oppose summary judgment on these issues. Avondale writes on the first page of its memorandum that it "does not contest that Mr. Cortez has been diagnosed with mesothelioma or that exposure to asbestos caused his illness."[11] Westinghouse, Foster Wheeler, and GE write that they "do not oppose Plaintiff, Callen Cortez's contention that he has mesothelioma."[12] The Hopeman Interests write that they "take no position regarding Callen J. Cortez's assertion that he has mesothelioma and that it was caused by asbestos."[13] Instead, the parties generally note that facts remain in dispute regarding specific causation, i.e., the sources of plaintiff's exposure, the asbestos fiber types to which he was exposed, and whether particular products or defendants are responsible for causing his mesothelioma. But plaintiff does not seek summary judgment on any of this. The Court need not deny the "portion"[14] of plaintiff's motion regarding specific causation, because his motion contains no such portion. The opposing parties' arguments regarding specific causation do not warrant a denial of plaintiff's motion for summary judgment as filed.

The only parties that seemingly take issue with general causation are Goodrich and Amchem, who filed largely identical opposition memoranda. These parties cite scientific evidence generally indicating that there are different types of asbestos fiber types with different implications for the development of mesothelioma, and that other factors, such as natural cell mutation, radiation, and a virus, can also cause mesothelioma.[15] But this evidence is beside the point. Plaintiff contends that his mesothelioma was caused by asbestos, not because mesothelioma is caused only by asbestos exposure, but instead because the record in this case, as to this plaintiff, indicates that asbestos exposure caused his mesothelioma. Goodrich and Amchem have not suggested, much less pointed to any evidence, that something other than asbestos caused plaintiff's mesothelioma. Indeed, Amchem's own medical expert, Dr. Gail Stockman, testified at her deposition that plaintiff has mesothelioma, and that, in her opinion, asbestos caused his mesothelioma.[16] And as to fiber type, the Court again

notes that plaintiff does not seek summary judgment on this issue. Establishing that "asbestos" in general caused his mesothelioma does not preclude defendants from distinguishing among the different forms of asbestos as they see fit. Goodrich's and Amchem's attempts to create an issue of fact fail.

Because plaintiff has "come forward with evidence which would `entitle [him] to a directed verdict if the evidence went uncontroverted at trial,'" id., and because none of the multiple defendants who filed oppositions to his motion has attempted to controvert this evidence, plaintiff is entitled to summary judgment on these issues. See Minute Entry at 2, Savoie v. Huntington Ingalls, Inc., No. 15-1220 (E.D. La. Dec. 20, 2017) (granting plaintiffs' motion for summary judgment that decedent had mesothelioma, that it was caused by asbestos, and that it caused his death) (Barbier, J.). For the foregoing reasons, the Court GRANTS plaintiff's motion for summary judgment that (1) Callen Cortez has mesothelioma, and that (2) his mesothelioma was caused by asbestos.[17] The Court makes clear that this ruling does not prevent any defendant from presenting to the jury evidence or arguments regarding specific causation of plaintiff's mesothelioma, including but not limited to issues of fiber type, toxicity of exposure, amounts of exposure, and the products and/or defendants to which his exposures may be attributed.

[1] R. Doc. 504.

[2] R. Doc. 708.

[3] R. Doc. 756.

[4] R. Doc. 802.

[5] R. Doc. 812.

[6] R. Doc. 816.

[7] R. Doc. 504-4 at 2 (Diagnosis Report of Johnny Perez, MD).

[8] R. Doc. 504-6 at 5 (Deposition of Dr. Rodney Landreneau at 39:7-9).

[9] R. Doc. 504-5 at 4 (Deposition of Dr. Stephen Kraus at 297:10-15).

[10] R. Doc. 504-7 at 2 (Deposition of Dr. Brent Christopher Staggs at 17:1-6).

[11] R. Doc. 708 at 1.

[12] R. Doc. 756 at 1.

[13] R. Doc. 816 at 2.

[14] R. Doc. 756 at 2.

[15] See R. Doc. 802 at 4-5.

[16] R. Doc. 832-1 at 2 (Deposition of Dr. Gail D. Stockman at 23:1-8,:22-25).

[17] R. Doc. 504.

Sources

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