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

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

Callen Cortez sued in Louisiana state court in 2020, alleging he developed mesothelioma from asbestos exposure during his career and from take-home exposure through his father's and brothers' work. He sued Avondale and about thirty-four other defendants, including employers, manufacturers and insurers. The case was removed to federal court. Cortez died in May 2022, and his family took over the suit and added wrongful death claims. Plaintiffs allege that Eagle and McCarty, suppliers of asbestos-containing insulation, put their own names on boxes of other makers' products and so are liable as manufacturers. Eagle and the Louisiana Insurance Guaranty Association asked the court to limit the testimony of plaintiffs' industrial hygienist, Gerard Baril. The court ruled that Baril could say he would look to the company named on a product for hazard information. He could not testify that a supplier who puts its name on a box should be considered the manufacturer, because whether a supplier is a professional vendor is a legal question. The motion was granted in part and denied in part.

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 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.

What the court held. An expert may not give legal conclusions, so an industrial hygienist cannot testify that a supplier is a manufacturer or professional vendor under Louisiana law, though he may say he would look to the company named on the product for hazard information.

Issues decided: Expert Testimony, Failure to Warn.

The people and their exposure

• Callen Cortez: mesothelioma; died

Who	Work	Where	When	Products
Callen Cortez	; dust brought home

The defendants

• Eagle, Inc. (supplier)
• McCarty Corporation (supplier)
• Louisiana Insurance Guaranty Association (insurer)
• Lamorak Insurance Company (insurer)
• 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 (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 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:

• Hoerner v. Anco Insulations, Inc. (Louisiana Court of Appeals, 4th Circuit, 2002). The appeals court affirmed most of the jury verdict for the Hoerners but reversed liability for McCarty as employer of other insulators, for Mr. Schuber III, Mr. McCarty and Home Insurance, and four settling-defendant credits, and amended the judgment to $306,111.07.

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.

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 a motion in limine to limit the testimony of Gerard L. Baril filed by Eagle, Inc. ("Eagle") and Louisiana Insurance Guaranty Association ("LIGA"), as alleged statutory obligor for policies issued to Eagle and the McCarty Corporation ("McCarty").[1] Plaintiffs oppose the motion.[2] For the following reasons, defendants' motion is granted in part. 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 was diagnosed with mesothelioma on June 2, 2020.[6] On July 1, 2020, he filed suit in the Civil District Court for the Parish of Orleans against Avondale and approximately thirty-four other defendants, including former employers, manufacturers, and insurance companies.[7] In his complaint, plaintiff brought various products liability, negligence, and intentional tort claims.[8] As it pertains to the present motion, plaintiff alleges that Eagle and McCarty, among others, were former suppliers and distributors of asbestos-containing products.[9] Plaintiff specifically alleges that Eagle and McCarty "would package [asbestos-containing] products from other distributors and manufacturers. . . in their own boxes and packaging, and hold out the products as their own, thus making them liable as the manufacturer under Louisiana law."[10] On August 31, 2020, the case was removed to federal court.[11] Callen Cortez passed away on May 26, 2022.[12] Cortez's surviving spouse and children subsequently filed an amended complaint on June 6, 2022,[13] substituting themselves as plaintiffs in a survival action and seeking additional damages arising from Cortez's wrongful death.[14] Defendants now move to limit the testimony of plaintiffs' expert industrial hygienist, Gerard L. Baril.[15] Specifically, defendants ask the Court to prevent Mr. Baril from testifying or making a legal determination as to the definition of a manufacturer under Louisiana law.[16] Plaintiffs oppose the motion, asserting that Mr. Baril does not opine on the definition of a manufacturer under Louisiana law.[17] The Court considers the parties' arguments below.

II. DISCUSSION

The district court has considerable discretion to admit or exclude expert testimony under Federal Rule of Evidence 702. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000). Rule 702, which governs the admissibility of expert witness testimony, provides that an expert witness "qualified. . . by knowledge, skill, experience, training, or education may testify" if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. But experts may not provide "legal conclusions or. . . simply tell the jury what result to reach." Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983); McBroom v. Payne, 478 F. App'x 196, 200 (5th Cir. 2012) (per curiam). Similarly, a court "should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject." Huss v. Hayden, 571 F.3d 442, 452 (5th Cir. 2009). Here, defendants seek to prevent plaintiffs' expert industrial hygienist, Mr. Baril, from testifying or making a legal determination as to the definition of a manufacturer under Louisiana law.[18] Based on testimony that Mr. Baril has given in other asbestos cases, defendants anticipate that plaintiffs will offer testimony from Mr. Baril that a supplier that places its name on a box with asbestos-containing products is considered a manufacturer.[19] Defendants note that Mr. Baril has previously given the following testimony:

A. Every manufacturer, supplier, distributor, equipment manufacturer, if they had materials, products which had asbestos as a component, asbestos probably would be released as a result of activities being

performed, then yes, they needed to provide a hazard warning.

Q. And did you see testimony, for example, Mr. Comardelle, he identified several of these suppliers to

Avondale. For example, Eagle, McCarty, . . .

A. That's right.

Q. Did you see where Mr. Comardelle indicated that these suppliers would put their names on the boxes of the insulation?

A. Yes, he stated that.

. . .

Q. And as an industrial hygienist, what does that indicate to you when a supplier is placing its name on a box?

A. It means if a supplier, distributor puts their name on the box, the ownership of that product is theirs. That makes the warning information—hazard warning their responsibility.

Q. So essentially they're holding out to the public that they're an actual manufacturer of the product, correct? A. Right. That's correct.[20]

Defendants now move to prevent Mr. Baril from giving similar testimony at this trial, asserting that Mr. Baril fails to meet the Daubert criteria to qualify as an expert about the definition of a manufacturer under Louisiana law.[21] In response, plaintiffs assert that defendants are seeking to exclude an opinion that Mr. Baril has not offered here, noting that defendants have not cited to any statement in Mr. Baril's report or deposition in this case, and instead rely on Mr. Baril's deposition from a previous asbestos case.[22] Additionally, plaintiffs assert that even if Mr. Baril were to offer the testimony cited by defendants in the present case, it would be admissible under Rule 702 because Mr. Baril's testimony does not purport to opine on Eagle's or McCarty's legal status as manufacturers under Louisiana law.[23] Instead, plaintiffs represent that Mr. Baril opines that when a company places its name on a box of insulation, it is "holding the product out as its own," and that, as an industrial hygiene professional, Mr. Baril "looks to that company to obtain information regarding the hazards of the product." [24] Plaintiffs seek to hold Eagle and McCarty liable as professional vendors. Under Louisiana law, a supplier of a product can be held strictly liable as a manufacturer if the plaintiff proves that the seller qualifies as a "professional vendor." Dempster v. Lamorak Ins. Co., No. 20-95, 2020 WL 5659546, at [*3] (E.D. La. Sept. 21, 2020) (citing Hoerner v. ANCO Ins., Inc., 812 So. 2d 45, 59 (La. App. 4 Cir. 2002)). "To prevail against a professional vendor of asbestos-containing products, a plaintiff must

show: (1) the defendant held the products out to the public as its own, and (2) the size, volume, and merchandising practices of the defendant bring it within the class of professional vendors, who are presumed to know the defects in their wares." Id. (citing Hoerner, 812 So. 2d at 60).

The Court finds Mr. Baril qualified to offer testimony that as an industrial hygienist, he would look to the company whose name is on the product for information regarding the hazardous nature of the product. But Mr. Baril may not testify that a supplier or distributor that places its name on a box containing insulation should be considered a manufacturer of that product because they are holding the product out to the public as their own. The determination of whether suppliers, such as Eagle and McCarty, are "professional vendors," which includes the question of whether Eagle and McCarty held out the products as their own to the public, are legal questions, and are not a proper subject for the testimony of an expert industrial hygienist. Accordingly, the Court grants defendants' motion to the extent it seeks to prohibit Mr. Baril from testifying that a supplier that places its name on a box of insulation should be considered the manufacturer of that insulation. III. CONCLUSION

For the foregoing reasons, defendants' motion to limit Mr. Baril's testimony is GRANTED to the extent that Mr. Baril is precluded from testifying that a supplier that places its name on a box containing insulation should legally be considered the manufacturer of that insulation.

To the extent defendants seek to limit Mr. Baril's testimony beyond this, the motion is DENIED.

[1] R. Doc. 447.

[2] R. Doc. 662.

[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. 1-1 at 10 (Complaint ¶ 17).

[7] Id. at 1-3 (Complaint ¶¶ 1-2); id. at 45-48.

[8] R. Doc. 1-1.

[9] R. Doc. 447-2 at 2; see also R. Doc. 1-1 at 24-25 (Complaint ¶ 53).

[10] Id.

[11] R. Doc. 1 (Notice of Removal).

[12] R. Doc. 1026 at 2 (Fourth Amended Complaint ¶ 111).

[13] Id.

[14] Id. at 2-3 (Fourth Amended Complaint ¶¶ 111-114).

[15] R. Doc. 447.

[16] Id. at 1.

[17] R. Doc. 662 at 1.

[18] R. Doc. 447 at 1.

[19] R. Doc. 447-2 at 5.

[20] R. Doc. 447-4 at 229:22-230:24 (Deposition testimony of Gerard L. Baril, Tregre v. Penn. Gen. Ins. Co., No. 15-4474 (Civ. Dist. Ct. for the Par. of Orleans, Feb. 4, 2016)).

[21] R. Doc. 447-2 at 4.

[22] R. Doc. 662 at 1.

[23] Id. at 3.

[24] Id.

Sources

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