Cortez v. Lamorak Insurance Company (E.D. La., Aug. 23, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, August 23, 2022).

Callen Cortez, who died of mesothelioma, sued Hopeman Brothers and others, including insurers, claiming asbestos exposure caused his disease. The plaintiffs' industrial hygienist, Gerald Baril, said Cortez was exposed at Avondale Shipyards, directly and as a bystander, when Hopeman's workers cut asbestos wallboard in ships' living areas and galleys. He relied on testimony from Cortez, his brothers and other Avondale employees, and on six studies of exposure from cutting similar material. He compared the resulting fiber levels with occupational standards and concluded they were well above them. Hopeman and Liberty Mutual asked the court to exclude his testimony, arguing that he did not reliably measure exposure, assumed any exposure above background was harmful, and did not know Hopeman's operations or materials. The court denied the motion. It said plaintiffs need not show the precise amount of exposure, that Baril compared exposures with safety standards rather than background, and that his reliance on the studies had a factual basis. Hopeman's other criticisms could be raised on cross-examination.

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: August 23, 2022
• Docket: Civil Action No. 20-2389
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. 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.

What the court held. An expert may estimate asbestos exposure by applying published studies of similar activities to witness testimony and comparing the results with occupational standards, because plaintiffs need not prove the precise amount of toxic substance; challenges to the expert's factual basis go to cross-examination.

Issues decided: Expert Testimony.

The people and their exposure

• Callen Cortez: mesothelioma; died

The defendants

• Hopeman Brothers, Inc. (contractor)
• Liberty Mutual Insurance Co. (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 (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 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.

Civil Action No. 20-2389.

August 23, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Section "R" (1).

Hopeman Brothers, Inc. and Liberty Mutual Insurance Co. (together, "Hopeman") move to strike the testimony of Gerald Baril, plaintiff's expert industrial hygienist, under Federal Rule of Evidence ("FRE") 702, 703, and 403, as well as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).[1] For the reasons that follow, the Court denies the motion. I. BACKGROUND

Callen Cortez, now deceased, sued Hopeman, among others, for asbestos exposures causing him to develop mesothelioma.[2] Plaintiffs' industrial hygienist, Gerald Baril, opined that plaintiff suffered paraoccupational, direct, and bystander exposure to asbestos products from Hopeman that significantly contributed to his risk of developing mesothelioma.[3] Baril relies on testimony from Cortez's brothers, Daniel and Mitchell Cortez, that they worked around Hopeman's employees while the employees cut asbestos wallboard at Avondale Shipyards, as well as testimony from other Avondale employees that Hopeman's workers installed wallboard in living areas and galleys of ships at Avondale.[4] The testimony was that when Hopeman cut wallboards around the Cortez brothers, Hopeman exposed them to asbestos dust.[5] Baril also relied on Callen Cortez's testimony about his work around Hopeman's employees at Avondale, including that he worked next to Hopeman's employees while they cut asbestos wallboard in ships' galleys and living quarters.[6] Baril used six studies to determine the level of asbestos exposure Cortez experienced from Hopeman's cutting of wallboard.[7] The cited exposure levels ranged from 1.84 f/cc up to 112.2 f/cc. Baril then compared Cortez's exposures to current and historical occupational health standards for asbestos and found them to be well in excess of these standards and to present a significant risk of mesothelioma.[8]

II. DISCUSSION

Hopeman seeks to exclude Baril's testimony as unreliable and unhelpful. See Fed. R. Evid. 702 (requiring expert testimony to be reliable and helpful to the factfinder). Hopeman first contends that Baril did not reliably determine asbestos exposure levels.[9] This argument is without merit. Baril's methodology consisted of consulting scientific studies and literature that calculated asbestos exposure levels from activities like those identified by witnesses and comparing the resulting exposure levels to occupational standards establishing permissible exposure limits to asbestos. The law does not require plaintiffs to show the precise amount of a toxic substance to which they were exposed. Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 671 (5th Cir. 1999). In Curtis, supra, the Fifth Circuit upheld an expert's opinion that relied, inter alia, on testimony about the work practices at the workplace at issue, including testimony that witnesses became soaked in the relevant toxic material when they performed certain tasks. Id. This is similar to the evidence Baril relied on here. Hopeman also contends that Baril simply assumes that every exposure above background is harmful. But Baril has not opined that exposures from Hopeman

were harmful simply because they were above background. Rather, he concluded that they exceeded applicable safety standards. This argument is likewise without merit.

Hopeman's other argument, that Baril was unfamiliar with its operations or materials, also does not warrant exclusion of Baril's testimony. Baril's report discusses witness testimony that Hopeman's wallboard was made of Micarta and that Hopeman's workers cut the boards with skil saws, creating asbestos dust.[10] Baril relies on studies that evaluated asbestos fiber releases from cutting products with this material. Hopeman's arguments do not support a finding that Baril's opinion lacks a factual basis. Rather, these arguments are the proper subject of cross-examination.

Hopeman also argues that the Court should preclude plaintiffs from using a videotape of the Longo/Hatfield Micarta study at trial. This argument is moot, because plaintiffs stipulate that they will not attempt to use the video at trial. To the extent that Hopeman attacks the Longo/Hatfield study itself, its arguments lack merit. For example, Hopeman argues that the study simulated workers who stood still during exposures, while Cortez simply walked by Hopeman's workers in passing. But the record reflects that Callen Cortez also testified that he worked next to Hopeman's employees in ships' living quarters and galleys while they cut the dust-generating wallboards. Hopeman's argument does not warrant exclusion of this study. Hopeman also faults the Longo/Hatfield study because it uses a transmission electron microscopy ("TEM") method of measuring asbestos release, which Hopeman contends produces exaggerated results. But the study also uses the phasecontrast microscopy ("PCM") method, which Hopeman does not criticize. Baril relies only on the PCM test results in his report. For this reason, the use of the TEM method by Longo/Hatfield is not a basis to exclude Baril's testimony about the study, although this topic may be explored on cross-examination.

III. CONCLUSION

For the foregoing reasons, the Court DENIES Hopeman and Liberty Mutual's motion to exclude or limit Gerard Baril's testimony.

[1] R. Doc. 491.

[2] R. Doc. 1-1 at 1-3, 11-13 (Complaint ¶¶ 1-2, 25-29).

[3] See generally R. Doc. 491-7 (Baril Report).

[4] Id. at 17-44.

[5] Id. at 23-24, 27.

[6] Id. at 33.

[7] Id. at 43.

[8] Id. at 44.

[9] R. Doc. 491-1 at 6.

[10] R. Doc. 491-7 at (Baril Report).

Sources

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