Cortez v. Lamorak Insurance Company (E.D. La., July 20, 2022, as to Foster Wheeler)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, July 20, 2022).

Callen Cortez and other plaintiffs sued in an asbestos case, alleging he developed mesothelioma from asbestos exposure over his career and from take-home exposure through his father's and brothers' work when the family shared a home. Defendants Foster Wheeler, General Electric and ViacomCBS (Westinghouse) asked the court before trial to exclude part of the testimony of plaintiffs' two medical causation experts, Dr. Rodney Landreneau and Dr. Stephen Terry Kraus. They argued that the two would give duplicative, cumulative opinions that Federal Rule of Evidence 403 allows a court to exclude. Plaintiffs responded that the doctors come from different specialties, even though they reach a common conclusion. The court denied the motion as premature. It cited other decisions holding that concerns about cumulative evidence should not be decided before trial based only on what a party expects will be offered. The court said defendants may object to specific testimony from these witnesses under Rule 403 at 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: July 20, 2022
• Docket: Civil Action No. 20-2389
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. 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.

What the court held. A motion to exclude expert testimony as cumulative under Federal Rule of Evidence 403 is premature before trial, and the objection can be raised at trial to specific testimony.

Issues decided: Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Callen Cortez: mesothelioma

The defendants

• Foster Wheeler, LLC (manufacturer)
• General Electric Company (manufacturer)
• ViacomCBS, Inc. (Westinghouse) (manufacturer)

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 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.

July 20, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendants Foster Wheeler, LLC, ("Foster Wheeler"), General Electric Company ("GE"), and ViacomCBS, Inc.'s ("Westinghouse") motion in limine to exclude all duplicative and cumulative opinions by plaintiffs' experts, Dr. Rodney Landreneau and Dr. Stephen Terry Kraus.[1] Plaintiffs oppose the motion.[2] For the following reasons, defendants' motion in limine is denied.

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] In support of this assertion, plaintiffs seek to introduce Dr. Landreneau and Dr. Kraus as medical causation experts at trial.[6] Defendants allege that these two experts will present cumulative testimony that should be excluded pursuant to Federal Rule of Evidence 403.[7] In response, plaintiffs contend that Drs. Kraus and Landreneau offer expert testimony from different specialties, even though they reach a common conclusion.[8] The Court considers the parties' arguments below.

II. DISCUSSION

Under Federal Rule of Evidence 403, the Court may exclude relevant evidence when its probative value is substantially outweighed by the danger of "needlessly presenting cumulative evidence." Fed. R. Evid. 403; see also Leefe v. Air Logistics, Inc., 876 F.2d 409, 410 (5th Cir. 1989) (affirming the district court's ruling at trial to exclude the testimony by a second expert doctor as cumulative).

The Court denies defendants' motion in limine as premature. See In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mex. on Apr. 20, 2010, No. MDL 2179, 2012 WL 395048, at [*3] (E.D. La. Feb. 7, 2017) (denying BP's motion in limine under Rule 403 as "premature" because "any ruling regarding concerns of cumulative evidence. . . should not be made before trial based only on the consideration of evidence that BP anticipates will be introduced"); Marquette Transportation Co. Gulf-Inland, LLC v. Navigation Mar. Bulgarea, No. 19-10927, 2022 WL 158681, at [*5] (E.D. La. Jan. 18, 2022) (denying defendant's motion in limine because defendant's "concerns about the allegedly cumulative nature of Marquette's expert testimony can be addressed at trial"). At trial, defendants may object to specific testimony from these witnesses under Rule 403.

III. CONCLUSION

For the foregoing reasons, defendants' motion is DENIED.

[1] R. Doc. 438.

[2] R. Doc. 697.

[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. 697 at 1-2.

[7] R. Doc. 438-1 at 1.

[8] R. Doc. 697 at 3.

Sources

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