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

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

Plaintiffs sued Avondale, a shipyard operator, alleging that Callen Cortez developed mesothelioma and died from asbestos exposure. They claimed exposure during his own work at Avondale from 1969 to 1974 and take-home exposure from his father's and brothers' work. His brother Daniel testified he worked with asbestos cloth and insulation at Avondale in 1967-68, and that fibers on his work clothes were beaten off at home with Callen's help. By this point, all claims against Avondale except take-home claims tied to Avondale's role as Daniel's employer had been dismissed. Before the court was plaintiffs' motion to exclude testimony by Avondale's industrial hygienist, Danny Joyce, about conversations with government inspectors, and to bar Avondale's expert from relying on it. The court held Joyce's account was hearsay with no exception and excluded it. It allowed Avondale's hygienist expert to rely on the statements under Rule 703, because such experts reasonably rely on other on-site hygienists. It barred Avondale from disclosing the statements to the jury.

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: July 18, 2022
• Docket: Civil Action No. 20-2389
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. 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.

What the court held. Under Federal Rule of Evidence 703, an expert may rely on inadmissible facts or data that experts in the field reasonably rely on, but the proponent may not disclose them to the jury unless their probative value in evaluating the opinion substantially outweighs their prejudicial effect.

Issues decided: Expert Testimony, Take-Home Exposure.

The people and their exposure

• Callen J. Cortez: mesothelioma; died

Who	Work	Where	When	Products
Callen J. Cortez	(shipyards and maritime work)	Avondale Shipyards, Louisiana	1969-1974
Callen J. Cortez	(shipyards and maritime work); dust brought home	Family home in Kraemer, Louisiana, Kraemer, Louisiana	1967-1968	asbestos textiles, asbestos cloth

The defendants

• Huntington Ingalls, Inc. (Avondale) (employer)
• 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 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, ET AL.,

v.

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

Civil Action No. 20-2389.

July 18, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is plaintiffs' motion in limine to exclude factual testimony by Danny Joyce that is not based on personal knowledge and to exclude any expert from testifying about or relying on Joyce's hearsay testimony.[1] Defendant Huntington Ingalls, Inc. ("Avondale") opposes the motion.[2] For the following reasons, the Court grants in part and denies in part plaintiffs' motion.

I. BACKGROUND

This is an asbestos exposure case. Plaintiffs allege that 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[4] and brothers' work when the family shared a home.[5] Callen Cortez lived in his family home in Kraemer, Louisiana, starting from his birth in 1951, until he married and moved out in May of 1972.[6] Decedent's brother, Daniel Cortez, also lived in the home. Daniel began working at the Avondale Shipyards on August 29, 1967,[7] and lived with Callen Cortez until Daniel moved out in July of 1968.[8] Daniel testified that, during these first ten to eleven months at Avondale, he worked with asbestos cloth and other insulation materials, and that fibers released from cutting and tearing the cloth got onto his work clothes.[9] Additionally, Daniel testified that, after work each day, he would come home, hang up his clothes, and, with Callen Cortez's help, beat the fibers off his clothes.[10] Callen Cortez also worked at Avondale from March 6, 1969 until May 31, 1974, where he was allegedly exposed to asbestos.[11]

Plaintiffs sued Avondale in tort alleging that asbestos exposure at Avondale caused Cortez's mesothelioma and death.[12] On April 4, 2022, the Court Ordered all of Cortez's claims against Avondale dismissed, except the take-home-exposure claims arising from Avondale's capacity as Daniel Cortez's employer.[13]

Plaintiffs now move in limine to exclude factual testimony of Avondale witness, Danny Joyce, that is not based on personal knowledge and to exclude any expert from testifying about or relying on Joyce's hearsay testimony.[14] Avondale opposes the motion.[15]

The Court considers the parties' arguments below.

II. DISCUSSION

Danny Joyce is an Avondale industrial hygienist and corporate witness, who gave deposition testimony about conversation he had with Walsh-Healey Act inspectors Chuck Freeman and Mike Padilla. Plaintiffs seek to exclude this testimony as hearsay. This testimony is clearly hearsay for which no exception applies. Plaintiffs' motion to exclude it is granted. Plaintiffs also seek to preclude defendant's expert hygienist from relying on Joyce's hearsay accounts of conversations with the Walsh-Healey inspectors. This issue is governed by Rule 703 of the Federal Rules of Evidence. Rule 703 provides:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Fed. R. Evid. 703.

Avondale contends that its expert hygienist, James Shea, is entitled to rely on Joyce's statements because Joyce worked as a hygienist at Avondale, and Joyce's statements are the type of information that experts in Shea's field would reasonably rely on in forming their opinions.[16] Hence, Avondale argues, under the clear terms of Rule 703, Joyce's statements need not be admissible in evidence for Shea's opinion relying on them to be admitted.[17] Avondale also notes that Joyce's statements are not the sole basis of Shea's opinion.[18] Plaintiffs do not discuss Rule 703 or otherwise deal with Avondale's argument.

The Court finds that Shea's partial reliance on Joyce's statements does not render Shea's opinion inadmissible. This follows because expert hygienists could reasonably rely on information gathered by other hygienists working on-site in developing their opinions. See Fed. R. Evid. 703. But the Court holds that Avondale may not disclose Joyce's hearsay statements to the jury because they do not satisfy the requirements of Rule 703. Specifically, the probative value of the statements in helping the jury evaluate Shea's opinion does not substantially outweigh the prejudicial effect of the statements. Indeed, the 2010 Advisory Committee Notes to Rule 703 state that the Rule provides a presumption against allowing the proponent of an expert to disclose to the jury information used as a basis of the expert's option that is not admissible for any substantive purpose. Accordingly, plaintiffs' motion is denied to the extent that it seeks to prevent Avondale from relying on Joyce's testimony, but Avondale may not disclose Joyce's hearsay statements to the jury.

III. CONCLUSION

For the foregoing reasons, plaintiffs' motion is GRANTED to the extent that it seeks to exclude Joyce's hearsay statements, and DENIED to the extent that it seeks to prevent Avondale's expert from relying on Joyce's hearsay statements, with the caveat that Avondale may not disclose Joyce's hearsay statements to the jury.

[1] R. Doc. 510.

[2] R. Doc. 723.

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

[4] Id. at 7-9 (Complaint ¶¶ 11-16).

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

[6] R. Doc. 499-4 at 17-18 (Discovery Deposition of Callen Cortez at 100:11-101:8).

[7] R. Doc. 499-6 at 13 (Deposition of Daniel Cortez at 12:3-13).

[8] Id. at 12-13 (Deposition of Daniel Cortez at 11:21-12:2).

[9] Id. at 37 (Deposition of Daniel Cortez at 36:6-13).

[10] Id. at 18-19 (Deposition of Daniel Cortez at 17:16-18:17).

[11] R. Doc. 499-4 at 26-27 (Discovery Deposition of Callen Cortez at 108:25-109:9).

[12] R. Doc. 1-1 at 5-7 (Complaint ¶¶ 8-10).

[13] R. Doc. 886.

[14] R. Doc. 510.

[15] R. Doc. 723.

[16] R. Doc. 723 at 3-4.

[17] Id.

[18] Id.

Sources

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