Cortez v. Lamorak Insurance Company (E.D. La., Aug. 29, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, August 29, 2022).

Callen Cortez sued Hopeman Brothers and about thirty-four other defendants after being diagnosed with mesothelioma in June 2020. He died in May 2022, and his spouse and children took over the case. The opinion describes his exposure at Avondale Shipyards, where he worked as a welder and tacker helper from 1969 to 1974 near Hopeman employees cutting asbestos-containing wallboards. It also describes take-home exposure from his brother Daniel's work clothes while they shared a family home. Hopeman, a subcontractor, supplied and installed wallboards made of Marinite and Micarta on about 72 vessels. Hopeman asked for partial summary judgment that it was neither a manufacturer nor a professional vendor of the wallboards. The court granted the motion on manufacturer status. It had already rejected the alter ego theory against Hopeman, and Hopeman only furnished a component for vessels that Avondale built. The court denied the motion on professional vendor status. Evidence of Hopeman's control over components, its contracts and invoices, and its scale of sales raised fact issues.

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 29, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law a subcontractor that furnishes and installs a component in a vessel built by another is not a manufacturer of that component. A seller can be liable as a professional vendor if it controls product quality, holds the product out as its own, and sells on sufficient scale, and fact issues on those elements preclude summary judgment.

Issues decided: Successor Liability.

The people and their exposure

• Callen J. Cortez: mesothelioma; died

Who	Work	Where	When	Products
Callen J. Cortez	welder and tacker helper (shipyards and maritime work); worked near others using it	Avondale Shipyards, Westwego Yard, Westwego, Louisiana	1969-1974	Marinite board, Marinite boards (Johns-Manville), Micarta laminate (Westinghouse), Hopeman wallboards
Callen J. Cortez	household member of Avondale worker (shipyards and maritime work); dust brought home	Family home, Kraemer, Louisiana, Kraemer, Louisiana	1967-1968	Marinite board, Hopeman wallboards

The defendants

• Hopeman Brothers, Inc. (contractor)
• Huntington Ingalls, Inc. (Avondale) (employer)
• Wayne Manufacturing Corporation
• 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 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 (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.

August 29, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is the motion of defendant Hopeman Brothers, Inc. ("Hopeman") for partial summary judgment on the issues of whether Hopeman was a manufacturer or professional vendor of asbestos-containing products.[1] Plaintiffs and Huntington Ingalls, Inc. ("Avondale") oppose the motion.[2] For the following reasons, the Court grants in part and denies in part Hopeman's 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]

Hopeman is a subcontractor that performed marine carpentry or "joiner" work at Avondale Shipyards during the period in which Callen Cortez and his brother, Daniel Cortez, worked at Avondale.[6] Under its contracts with Avondale, Hopeman provided both marine carpentry services and the materials necessary to perform the work.[7] Wayne Manufacturing Corporation ("Wayne"), a now-dissolved Virginia corporation,[8] was a wholly-owned subsidiary of Hopeman during the relevant period.[9] Hopeman regularly purchased and supplied to Wayne Micarta laminate manufactured by Westinghouse and Marinite boards manufactured by Johns-Manville, both of which contained asbestos.[10] Wayne glued the Micarta laminate to the Marinite boards and sent the composite wallboards to Hopeman at Avondale for installation on vessels.[11] Hopeman worked on about 72 vessels constructed at Avondale shipyards during the twelve-year period it supplied asbestos wallboards to Avondale.[12]

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.[13] Daniel Cortez also lived in the home. Daniel began working at the Avondale Shipyards on August 29, 1967,[14] and lived with Callen Cortez until Daniel moved out in July of 1968.[15] Daniel testified that he was exposed to asbestos at Avondale when he worked around Hopeman's employees while they were cutting asbestos-containing wallboards.[16] He further testified that fibers released from the wallboards likely got onto his work clothes.[17] He also testified that when he came home from work each day, he removed his clothes, and, with Callen Cortez's help, beat the fibers off of them.[18]

From March 6, 1969 until May 31, 1974, Callen Cortez worked for Avondale as a welder and tacker helper, primarily at Avondale's Westwego Yard.[19] Cortez testified that when he worked at Avondale, he was exposed to asbestos dust generated by Hopeman's employees while they were cutting wallboards in his vicinity in ships' galleys, living quarters, and other areas.[20]

Cortez was diagnosed with mesothelioma on June 2, 2020.[21] On July 1, 2020, he sued Hopeman and approximately thirty-four other defendants, including former employers, manufacturers, and insurance companies.[22] In his petition, plaintiff

brought various negligence, products liability, and intentional tort claims against defendants.[23] He additionally asserted that Wayne was the alter ego of Hopeman during the relevant period.[24]

Callen Cortez passed away on May 26, 2022.[25] Cortez's surviving spouse and children filed an amended complaint on June 6, 2022,[26] substituting themselves as plaintiffs in a survival action and seeking additional damages arising from Cortez's alleged wrongful death.[27]

Hopeman is sued by plaintiffs in its capacity as a supplier of asbestos-containing wallboards.[28] Plaintiffs allege that Hopeman was a manufacturer, or alternatively, a professional vendor, of asbestos-containing wallboards.[29] Hopeman now moves for partial summary judgment on manufacturer and professional vendor liability.[30] Plaintiffs and Avondale oppose the motion.[31] The Court considers the motion below.

II. LEGAL STANDARD

Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would `entitle it 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) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). "[T]he nonmoving party can defeat the motion" by either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265. If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 `mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" (quoting Celotex, 477 U.S. at 322)). III. DISCUSSION

A. Manufacturer Liability

Plaintiffs argue that Hopeman is a manufacturer by attributing Wayne's assembly of the asbestos wallboards to Hopeman. [32] They contend that Wayne's actions are attributable to Hopeman because Wayne was the alter ego of Hopeman or that they were a single business enterprise.[33] The Court has already rejected liability for Hopeman under alter ego or single business enterprise theories in its August 10, 2022 Order and Reasons, which granted summary judgment to Hopeman against plaintiffs on these issues. See generally Cortez v. Lamorak Ins. Co., No 20-2389, 2022 WL 2714111 (E.D. La. July 13, 2022). That ruling forecloses plaintiffs' arguments here. Plaintiffs make the same arguments that the Court rejected in its

August 10, 2022 Order. Accordingly, the Court holds that Wayne's assembly of the wallboards did not render Hopeman a manufacturer of these asbestos-containing products.

Next, plaintiffs assert that Hopeman is liable under the Louisiana Products Liability Act's definition of a manufacturer.[34] But the "Louisiana Supreme Court has held that the LPLA does not apply retroactively because it is substantive." Moore v. BASF Corp., No. 11-1001, 2011 WL 5869597, at [*2] (E.D. La. Nov. 21, 2011) (internal quotation marks removed); see Gilboy v. Amer. Tobacco Co., 582 So.2d 1263, 1264-65 (La. 1991) (explaining that the LPLA "alters substantive rights" and "[a] statute that changes settled law relating to substantive rights only has prospective effect."); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th Cir. 1995) ("[T]he LPLA applies only to those causes of action that accrued on or after September 1, 1988."). Plaintiffs cite no authority that the LPLA's manufacturer definition is retroactive, and concede that the LPLA does not apply to this case because Cortez's toxic exposures occurred before its enactment.[35] Plaintiffs nevertheless argue that the LPLA's definition is germane here because the portion of the LPLA at issue merely restates preexisting law. And, plaintiffs contend, Hopeman satisfies that definition.

The Court need not decide whether the LPLA provision at issue merely restates preexisting law or otherwise applies retroactively, because the provision in question would not render Hopeman a manufacturer in any event. Plaintiffs rely on language in the LPLA that states that the term manufacturer includes a "manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer." La. Rev. Stat. § 9:2800.53(1)(b). Plaintiffs contend that Hopeman falls within this definition because it manufactured (at least, partially) the vessels at Avondale by virtue of installing the walls that separated various quarters in the vessels, and Hopeman incorporated another's product (the wallboard) into the vessels. The Court will not adopt the strained interpretation plaintiffs propose. The cited provision of the LPLA applies when a firm that manufactures a final product incorporates others' goods into it. Here, Hopeman was a subcontractor that merely furnished a component to Avondale, which was responsible for the final product, i.e., the vessels. Other courts agree that Hopeman was not a manufacturer of asbestos products. Numerous Louisiana courts have granted summary judgment or directed verdicts in Hopeman's favor on the issue of manufacturer liability. See, e.g., Buqoui v. Huntington Ingalls, Inc., No. 11-7786 (La. Civ. D. Ct. Apr. 2, 2012) (granting Hopeman's motion for summary on the issue of whether it was a manufacturer of asbestos-containing products); Becnel v. Am. Motorists Ins. Co, No. 12-6486 (La. Civ. D. Ct. May 9, 2013) (likewise); Cagle v. Huntington Ingalls, Inc., No. 16-1875 (La. Civ. D. Ct. Jan. 25, 2017) (same); Jones v. Am. Emp. Ins. Co., No. 14-6711 (La. Civ. D. Ct. Feb. 2, 2016) (granting Hopeman's motion for a directed verdict on whether it was a manufacturer of asbestos-containing products).

Additionally, none of the cases Hopeman points to is apposite. Radalec, Inc. v. Automatic Firing Corporation involved a defendant that manufactured air conditioners composed of parts fabricated by other concerns. 81 So. 2d 830, 833 (La. 1955). Unlike the present case, the relevant issue there was whether defendant may still be liable as a manufacturer when it did not manufacture the specific defective component in the air conditioning unit. Id. at 833 n.3. Likewise, in Spillers v. Montgomery Ward & Co., the defendant substantially modified a truck to carry pulpwood, which is dissimilar to the work that Hopeman did here. 294 So. 2d 803 (La. 1974). Further, in Spillers, the defendant had actually manufactured "the pulpwood loader and it did all the things necessary to adapt Spillers' truck for hauling pulpwood." Id. at 807. Here, Hopeman did not manufacture the wallboard, nor did it substantially modify the vessels it worked on by merely installing wallboard pursuant to contract specifications. For similar reasons, Winterrowd v. Travelers Indemnity Co. is inapposite. 452 So. 2d 269 (La. App. 2 Cir. 1984). Hopeman did not "substantially modif[y] or materially alter[ ] the product" at issue here. Id. at 273-74. LeBouef v. Goodyear Tire & Rubber Company is also distinguishable, because it involved an automaker seeking to avoid liability when one of the car's tires, manufactured by a separate concern, failed. 623 F.2d 985, 990 (5th Cir. 1980). Finally, Rasmussen v. Cashio Concrete Corporation is inapposite. 484 So. 2d 777, 779 (La. App. 1 Cir. 1986). In that case, Cashio Concrete Corporation's own president testified that the firm had manufactured the product at issue. Id. Further, the Rasmussen court found that "the components of the [product at issue] were purchased from various suppliers and integrated into a single, concrete unit by defendant." Id. There is no analogous assembly of a complete unit by Hopeman here. Accordingly, plaintiffs' authorities do not support their claims of manufacturer liability, and Hopeman is entitled to summary judgment on this issue. B. Professional Vendor Liability

Hopeman also moves for partial summary judgment on the issue of whether it was a professional vendor of asbestos-containing wallboards.[36]

Under Louisiana law, a "professional vendor" is held to the same standard of liability as a manufacturer. Chappuis v. Sears Roebuck & Co., 358 So. 2d 926, 930 (La. 1978). In order to be held liable as a professional vendor, a seller must: (1) hold a "product out to the public as its own" and (2) operate with the requisite "size, volume, and merchandising practices," such that the firm is presumed to know the defects of its wares. Id. Hence, "a professional vendor is a retailer who does more than simply sell a certain product or products; it must engage in practices whereby it is capable of controlling the quality of the product, such that the courts are justified in treating the retailer like a manufacturer." Nelton v. Astro-Lounger Mfg. Co., 542 So. 2d 128, 132 (La. App. 1 Cir. 1989). Because of the scale and merchandising requirements necessary for a finding that a firm is a professional vendor, a seller does not become a professional vendor just because it sells a product. Id. ("[W]e reject plaintiff's contention that Fraenkel is a professional vendor simply because it is in the business of selling sofa beds."). The facts relevant to Hopeman's sale of wallboards are as follows. Hopeman was engaged as a subcontractor at Avondale to provide the engineering services, labor, and materials necessary to install wallboards on 72 vessels constructed at the shipyard during the years 1961 and 1965 to 1976.[37] Under its contracts, Hopeman furnished and installed asbestos-containing wallboard in galleys and living quarters of the vessels.[38] John Baker, a former Hopeman executive, testified that Hopeman charged Avondale for the materials it furnished under its joiner contracts.[39] Bertram Hopeman, a former officer for Hopeman, confirmed that Hopeman's contracts with Avondale were for both services and materials.[40] Hopeman purchased the components of the wallboards from Johns-Manville, which sold a Marinite core, and from Westinghouse, which sold a Micarta veneer. Hopeman supplied these materials to its subsidiary, Wayne, which glued the two wallboard components together. Hopeman furnished the finished wallboards to Avondale and installed them on vessels being constructed at Avondale's shipyard.

Plaintiffs contend that, like the defendant in Chappuis who "was deemed a `professional vendor' due to the control it exercised over the design of the product," Shapiro v. Wal-Mart Stores, Inc., No. 93-3245, 1994 WL 577346, at [*3] n.3 (E.D. La. Oct. 17, 1994), Hopeman exercised significant control over the quality of the wallboards at issue and is therefore a professional vendor.[41] Hopeman does not contest that it selected and purchased the components of the wallboards that Wayne regularly assembled for Hopeman. Further, this Court previously deemed Hopeman a sophisticated purchaser of Micarta, one of the two asbestos-containing components of the wallboards.[42] The Court finds that Hopeman's familiarity with the products and its control over the selection of the wallboard components and its selection of the company that would assemble them raise an issue of fact as to whether Hopeman exerted sufficient control over the quality of the product for professional vendor liability.

The evidence also raises an issue of material fact as to whether Hopeman held itself out as the supplier of the wallboard. First, Hopeman's contracts identified Hopeman as the supplier of the wallboard.[43] Additionally, Hopeman purchased the wallboard components, directed Wayne to assemble the wallboard, and had the wallboard sent to Avondale. Further, Hopeman's invoices to Avondale for the wallboards listed Hopeman as the vendor.[44] Finally, a number of individuals over the years, including Callen Cortez and his brothers, associated the wallboards with Hopeman.[45] In sum, Hopeman's invoices, its contracts, and the identification of Hopeman with the wallboards by the workers on-site together support an inference that Hopeman held the wallboards out as its own.

Further, there is evidence supporting an inference that Hopeman's sales were on a scale sufficient to be deemed a professional vendor. Hopeman admits that it performed joiner work at Avondale beginning in 1961 until the mid-1990s, with continuous operations from 1965 onward.[46] Additionally, Hopeman furnished asbestos-containing products for installation on approximately 72 vessels at Avondale until the mid-1970s.[47] Callen Cortez testified that he also worked around Hopeman's employees who cut wallboards at Halter Marine's Lockport shipyard in the mid-1970s. This evidence, that Hopeman operated at multiple sites and furnished asbestos wallboard for over a decade on 72 ships, creates an issue of material fact as to whether Hopeman operated on the requisite scale to be a professional vendor.

As plaintiffs have created material fact issues on whether Hopeman had control over the quality of the product, held it out as its own, and operated with the scale necessary to be deemed a professional vendor, the Court denies summary judgment on whether Hopeman was a professional vendor of asbestos-containing products.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Hopeman's motion for partial summary judgment.

[1] R. Doc. 494.

[2] R. Docs. 666 & 691.

[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. 494-1 at 1 (Hopeman's Statement of Uncontested Material Facts ¶ 4).

[7] R. Doc. 666-15 at 2 (Deposition of John Baker at 78:17-22).

[8] R. Doc. 498-15 (Wayne Articles of Incorporation).

[9] R. Doc. 498-1 at 2 (Hopeman's Statement of Uncontested Material Facts ¶ 17).

[10] R. Doc. 494-2 at 2 (Deposition of Charles Johnson at 115:17-22).

[11] R. Doc. 498-1 at 3 (Hopeman's Statement of Uncontested Material Facts ¶ 10).

[12] R. Doc. 494-1 at 1-2 (Hopeman's Statement of Uncontested Material Facts ¶ 4 n.4).

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

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

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

[16] Id. at 58-63 (Deposition of Daniel Cortez at 57:23-62:18).

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

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

[19] Id. at 26-27 (Discovery Deposition of Callen Cortez at 108:25-109:9).

[20] R. Doc. 666-4 at 2-3 (Discovery Deposition of Callen Cortez at 120:20-121:2); see also R. Doc. 494-2 at 2. [21] R. Doc. 1-1 at 10 (Complaint ¶ 17).

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

[23] R. Doc. 1-1.

[24] Id. at 43 (Complaint ¶ 90).

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

[26] Id.

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

[28] R. Doc. 1-1 at 11-12 (Complaint ¶ 25-29).

[29] Id.

[30] R. Doc. 493.

[31] R. Docs. 666 & 691.

[32] R. Doc. 666 at 3.

[33] Id. at 1-3.

[34] Id.

[35] R. Doc. 666 at 3 n.17.

[36] R. Doc. 493.

[37] R. Doc. 494-1 at 1-2 (Hopeman's Statement of Material Facts ¶ 4 n.4).

[38] See R. Doc. 494-2 at 2.

[39] R. Doc. 666-15 at 2 (Deposition of John Baker at 78:17-22).

[40] R. Doc. 691-7 at 14 (Deposition of Bertram Hopeman at 336:10-21).

[41] R. Doc. 666 at 6-8.

[42] See Cortez v. Lamorak Ins. Co., No 20-2389, 2022 WL 2714111, at [*8] (E.D. La. July 13, 2022).

[43] See R. Doc. 691-7 at 14 (Deposition of Bertram Hopeman at 336:10-21); R. Doc. 666-15 at 2 (Deposition of John Baker at 78:17-22); R. Doc. 691-17.

[44] R. Doc. 691-17.

[45] See R. Doc. 691-15 at 2-3 (Deposition of Logan Lefort at 54:1-55:15) & R. Doc. 691-16 at 3-5 (Deposition of Donald Rome at 64:1-66:16); Avondale also asserts that the wallboard arrived in Hopeman's trucks with Hopeman's logo displayed prominently on the vehicles, but there is no mention of this in the exhibit to which Avondale points. See R. Doc. 691-20 at 2 (Deposition of Jose Cochran at 35-36). [46] R. Doc. 494-1 at 1 (Hopeman's Statement of Uncontested Material Facts ¶ 4).

[47] Id. (Hopeman's Statement of Uncontested Material Facts ¶ 5).

Sources

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