Cortez v. Lamorak Insurance Company (E.D. La., Sept. 9, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, September 9, 2022).

Callen Cortez sued Riley Power, Inc. and about thirty-four other defendants, claiming he developed mesothelioma from asbestos exposure during his career, and his family also alleged take-home exposure. He died in May 2022, and his spouse and children were substituted as plaintiffs in survival and wrongful death claims. In the early 1980s Cortez worked as a maintenance man at the Triad Nitrogen plant in Donaldsonville, Louisiana. He testified that he spent about a month and a half working on a Riley boiler, removing pipe insulation and replacing asbestos gaskets, which created dust he inhaled without respiratory protection or warnings. Riley moved for summary judgment, arguing that Louisiana's statute of repose barred the claims and that the exposure was too brief to cause mesothelioma. The court denied the motion. Riley had not shown with specific record citations that it was a contractor rather than a seller of boilers, so the repose statute was not established. Under Louisiana law, a jury could find even a brief exposure to be a substantial factor. The motion to strike was denied as moot.

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: September 9, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. A defendant asserting the Louisiana statute of repose, La. Rev. Stat. § 9:2772, bears the burden of showing it was a contractor rather than a seller, with specific record citations. Under Louisiana law, even a short exposure can be a substantial factor in causing mesothelioma if a jury could find the plaintiff inhaled the defendant's asbestos fibers.

Issues decided: Causation, Wrongful Death and Survival, Trial Procedure and Discovery, Statute of Repose.

The people and their exposure

• Callen J. Cortez: mesothelioma; died

• Cortez's father and brothers (take-home exposure alleged)

Who	Work	Where	When	Products
Callen J. Cortez	maintenance man	Triad Nitrogen LLC, Donaldsonville, Louisiana	early-1980s	gaskets and packing, pipe and block insulation, Riley boiler asbestos gaskets

The defendants

• Riley Power, Inc. (manufacturer)
• 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 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 (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 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:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.
• Williams v. Boeing Company (U.S. Court of Appeals, Fifth Circuit, 2022). The Fifth Circuit reversed summary judgment for Boeing on the survival action and remanded, directed the district court to reconsider the plaintiffs' request for more discovery, and affirmed dismissal of the wrongful death claims as time-barred.
• Vodanovich v. AP Green Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed summary judgment for Sank, Inc. (formerly Buck Kreihs Co.) and Dixie Machine Welding and Metal Works, dismissing the wrongful death claim of the longshoreman's estate for lack of proof of exposure.
• 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.
• Asbestos v. Bordelon, Inc. (Louisiana Court of Appeals, 4th Circuit, 1998). The court affirmed the jury verdicts for the plaintiffs against Owens-Corning Fiberglas (Kaylo insulation) and Rock Wool (One Shot cement), reversed the judgments against Garlock, A.W. Chesterton and Flexitallic, affirmed the judgments against Abadie, Naquin and Terrebonne and the dismissal of Plaisance's claim as prescribed, and ordered a virile-share reduction for Avondale's settlement that, on rehearing, applies only to Duronslet.
• Held v. Avondale Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 1996). The Louisiana Court of Appeal reversed the summary judgment that had dismissed the Held family's claims against Avondale Industries and remanded for further proceedings, so the plaintiffs prevailed on appeal.

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.

September 9, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendant Riley Power, Inc.'s ("Riley") motion to strike plaintiffs' summary-judgment evidence[1] as well as its motion for summary judgment on the grounds that La. Rev. Stat. § 9:2772 bars plaintiffs' claims, and that Callen Cortez's exposure to Riley's boilers was not sufficient to cause mesothelioma.[2] Plaintiffs and Huntington Ingalls, Inc. ("Avondale") oppose the summary judgment motion.[3] For the following reasons, the Court denies both motions. 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,[4] as well as take-home exposure resulting from his father's[5] and brothers' work when the family shared a home.[6]

In the early-1980s, Callen Cortez worked at Triad Nitrogen LLC ("Triad") in Donaldsonville, Louisiana, as a maintenance man for about three years.[7] Cortez testified that when he worked at Triad, he performed work on a boiler manufactured by Riley.[8] According to Cortez, his work included removing insulation from piping on the equipment and replacing asbestos gaskets affixed to Riley's boilers.[9] Cortez testified that this work generated asbestos dust, which Cortez inhaled.[10] He further testified that he was not provided with respiratory protection or any warnings of asbestos hazard.[11] Cortez was diagnosed with mesothelioma on June 2, 2020.[12] On July 1, 2020, he sued Riley and approximately thirty-four other defendants, including former employers, manufacturers, and insurance companies.[13] In his petition, plaintiff brought various negligence, products liability, and intentional tort claims against defendants.[14]

Callen Cortez passed away on May 26, 2022.[15] Cortez's surviving spouse and children filed an amended complaint on June 6, 2022,[16] substituting themselves as plaintiffs in a survival action and seeking additional damages arising from Cortez's alleged wrongful death.[17]

Plaintiffs sue Riley in its capacity as a manufacturer of asbestoscontaining boilers.[18] Riley now moves for summary judgment on all of plaintiffs' claims.[19] Riley asserts that La. Rev. Stat. § 9:2772 bars plaintiffs' claims, and that Callen Cortez's exposure to Riley boilers was not sufficient to cause mesothelioma.[20] Plaintiffs and Avondale oppose the motion. [21] Riley also moves to strike summary-judgment evidence that plaintiffs and Avondale rely on in their respective oppositions. The Court considers the motions below.

II. RILEY'S MOTION TO STRIKE

In Riley's reply brief, it moves to strike several exhibits utilized by plaintiffs and Avondale in their respective oppositions. First Riley argues that the Court should strike the deposition transcript of Garlock's corporate representative, James Heffron,

because Riley was not present at the deposition.[22] Riley also contends that a deposition transcript of Triad's corporate representative, Richard Brantley, should be excluded as irrelevant because he did not have personal knowledge of whether the boilers at Triad were actually Riley's boilers.[23] Lastly, Riley moves to strike the deposition testimony of plaintiffs' three experts—Gerard Baril, Dr. Stephen Kraus, and Dr. Rodney Landreneau—as self-serving opinions that do not create material fact issues.

In resolving Riley's motion for summary judgment, the Court does not rely on any of the summary-judgment evidence Riley objects to. Accordingly, Riley's motion to strike is denied as moot. See Garris v. Pelonis Appliances, Inc., No. 10-1569, 2014 WL 1330063, at [*5] (E.D. La. Apr. 3, 2014) (denying a motion to strike summary-judgment evidence as moot where to Court did not rely on the evidence at issue).

II. RILEY'S MOTION FOR SUMMARY JUDGMENT

A. 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)). B. Discussion

1. La. Rev. Stat. § 9:2772

Riley moves for summary judgment on the grounds that La. Rev. Stat. § 9:2772 bars plaintiffs' claims, because the claims arise out of a defect in an immovable that Riley constructed. § 9:2772 provides, in relevant part, that: (A) No action. . . arising out of an engagement of planning, construction, design, or building immovable or movable property. . . shall be brought against any person performing or furnishing land surveying services, as such term is defined in [La. Rev. Stat. 37:682], including but not limited to those services preparatory to

construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property. . .: (1)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.

(1)(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.

La. Rev. Stat. § 9:2772.

The statute of repose in effect at the time of Cortez's exposures to asbestos precluded actions "based on the allegedly defective design or construction of an immovable from being brought more than ten years after the completion of the work performed." Harris v. Black Clawson Co., 961 F.2d 547, 551 (5th Cir. 1992). But "[t]he burden of demonstrating the applicability of [§ 9:2772] falls on the defendant seeking to invoke its protections." Moyer v. Siemens Vai Servs., LLC, No. 11-3185, 2013 WL 3293668, at [*13] (E.D. La. June 28, 2013) (citing DeWoody v. Citgo Petroleum Corp., 604 So. 2d 92, 99 (La. App. 3 Cir. 1992)). Further, "Louisiana courts hold that this provision applies to construction contracts but not to sales contracts." Summerfield v. Harnischfeger Indus., Inc., No. 97-3683, 1998 WL 726080, at [*4] (E.D. La. Oct. 13, 1998). Accordingly, Riley "must show that it was a contractor [as opposed to a seller] for [§ 9:2772] to apply." Id. (citing Jones v. Crane Co., 653 So. 2d 822 (La. App. 2 Cir. 1995)).

In determining whether a contract is a construction contract or a sales contract, Louisiana courts generally weigh the economics of the transaction to determine whether the primary obligation is one "to give" or "to do." KSLA-TV, Inc. v. Radio Corp. of Am., 501 F. Supp. 891, 894 (W.D. La. 1980). When the primary obligation is "to give," the agreement is a sales contract; when the primary obligation is "to do," the transaction is a construction contract. Id.

Here, Riley asserts—without citation to the record—that its "boilers were specifically designed and constructed for the Triad plant in Donaldsonville, La."[24] Later in Riley's memorandum of law, it adds: "[a]s will be demonstrated, Riley supplied Triad planning, design, engineering, drawing, supervision, and construction services for the assembly of two (2) boilers, which was an improvement to the immovable property at the Triad facility at issue."[25] But Riley never points to specific evidence in support of any of those contentions. Nor does Riley explain how its lengthy and often barely-legible exhibits[26] support the assertions in its motion.

Riley's conclusory assertions notwithstanding, it is the party seeking summary judgment that bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; see also Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) ("[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.") (emphasis in original); 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727.1 (4th ed., 2015) ("[The movant] must lay out the elements of its claim, citing the facts it believes satisfies those elements, and demonstrating why the record is so one-sided as to rule out the prospect of the nonmovant prevailing. If the movant fails to make that initial showing, the court must deny the motion, even if the opposing party has not introduced contradictory evidence in response."). Further, to sustain its burden on summary judgment, the "movant must support its assertion[s] by `citing to particular parts or materials in the record.'" Tatum v. S. Co. Servs., Inc., 392 F. Supp. 3d 689, 695 (E.D. Tex. 2018), aff'd, Tatum v. S. Co. Servs., Inc., 930 F.3d 709 (5th Cir. 2019) (quoting Fed. R. Civ. P. 56(c)(1)).[27] "The citations to the summary judgment evidence should be specific." Id. (citing Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004)); see also 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2722 (4th ed., 2015) (noting that "a party desiring to use a document must cite to the particular part of the document that supports its assertions").

It is not the Court's responsibility to sift through the record to locate evidence supporting Riley's assertions; nor must the Court decipher and attach meaning to the exhibits that Riley does not supply. "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). See also Loiacano v. DISA Glob. Sols., Inc., 659 F. App'x 772, 775 (5th Cir. 2016) (per curiam) (noting that that Courts do not have "a duty to sift through the record in search of evidence" at the summary-judgment stage (quoting Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379-80 (5th

Cir. 2010)); Conerly v. Flores, No. 15-04069, 2016 WL 6892718, at [*5] (N.D. Cal. Nov. 23, 2016) ("the Court is not required to decipher and attach meaning to the exhibits that is not otherwise provided"). In light of the demands of Rule 56, Riley's conclusory assertions do not entitle it to summary judgment without reference to specific evidence supporting its claims. Because Riley has not established that it contracted to build boilers at Triad and not simply sell them, there are material fact issues as to whether Riley is entitled to peremption under § 9:2772, and the Court denies summary judgment on this issue. 2. Exposure Sufficiency

Riley also moves for summary judgment on whether Cortez's exposure to Riley's boilers was a substantial factor in bringing about Cortez's illness. Riley asserts that because Cortez worked on and around Riley's boilers for a month-and-a-half at most, such exposure could not have been a legal cause of Cortez's mesothelioma.

In an asbestos exposure case, a Louisiana claimant must show that (1) "he had significant exposure to the product complained of," and that (2) the exposure to the product "was a substantial factor in bringing about his injury." Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1091 (La. 2009) (quoting Asbestos v. Bordelon, Inc., 726 So. 2d 926, 948 (La. App. 4 Cir. 1998)). The plaintiff bears the burden of proof on both elements. Vodanovich v. A.P. Green Indus., Inc., 869 So. 2d 930, 932 (La. App. 4 Cir. 2004).

But the Fifth Circuit has explained, "[e]ven if the plaintiff was only exposed to asbestos for a `short period for an employer[,] and he had longer exposure working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor in causing his mesothelioma.'" Williams v. Boeing Co., 23 F.4th 507, 512 (5th Cir. 2022) (quoting Rando, 16 So. 3d at 1091). To defeat an asbestos defendant's motion for summary judgment, a plaintiff "need only show that a reasonable jury could conclude that it is more likely than not that [plaintiff] inhaled defendant's asbestos fibers, even if there were only `slight exposures.'" Id. (citing Held v. Avondale Indus., Inc., 672 So. 2d 1106, 1109 (La. App. 4 Cir. 1996)). Here, Cortez testified that he worked as a maintenance man at Triad in Donalsonville, Louisiana for several years in the mid-1980s.[28] Though he did not recall precisely who his employer was, Cortez testified that he was engaged to work at Triad through his union membership in Local 102.[29] During his engagement at Triad, Cortez worked on one of Riley's boilers for about a month-and-a-half.[30] The work involved replacing asbestos gaskets on the boilers, and Cortez testified that the process generated asbestos dust.[31] Cortez further testified that he inhaled the asbestos dust.[32] Lastly, Cortez recalled that was not given any respiratory protective equipment or any warnings about the hazard that the asbestos posed. [33] Plaintiffs' evidence is sufficient to create a material fact issue. The "frequent and regular" requirement for asbestos exposure that Riley cites "refers to the quality of the exposure during the employment period, not to the length of that period." Hoerner v. ANCO Insulations, Inc., 812 So. 2d 45, 64 (La. App. 4 Cir. 2002), writ denied, 819 So. 2d 1023 (La. 2002). The "de minimis" argument that Riley puts forth is incorrect and has been rejected by this Court and Louisiana appellate courts. See, e.g., Cortez v. Lamorak Ins. Co., No. 20-2389, 2022 WL 2643867, at [*7] (E.D. La. July 8, 2022) (noting that frequent and regular exposure refers to the quality of plaintiff's exposure and does not establish a minimum acceptable level of exposure); Hoerner, 812 So. 2d at 64 (likewise). It is enough that plaintiffs point to evidence on which a reasonable jury could conclude that Cortez inhaled Riley's asbestos fibers, which plaintiffs have done here. See Williams, 23 F.4th at 512. Riley cites no Louisiana mesothelioma cases that reach the result it seeks here. Further, the cases that Riley cites from other jurisdictions are neither persuasive nor binding in light of the relevant authorities contradicting Riley's positions. Because Cortez testified that he inhaled asbestos dust generated by his work for a month-and-a-half on Riley's boiler, there is a material fact issue on whether that exposure was a substantial factor giving rise to Cortez's mesothelioma. Accordingly, summary judgment is denied.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES AS MOOT Riley's motion to strike. The Court also DENIES Riley's motion for summary judgment.

[1] R. Doc. 862.

[2] R. Doc. 469.

[3] R. Docs. 679 & 638.

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

[5] Id. at 7-9 (Complaint ¶¶ 11-16).

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

[7] R. Doc. 469-10 at 29-30 (Discovery Deposition of Callen Cortez at 199:12-201:23).

[8] Id. at 59 (Discovery Deposition of Callen Cortez at 318:24-319:10).

[9] Id. at 30 (Discovery Deposition of Callen Cortez at 201:5-23).

[10] Id.

[11] Id.

[12] R. Doc. 1-1 at 10 (Complaint ¶ 17).

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

[14] R. Doc. 1-1.

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

[16] Id.

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

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

[19] R. Doc. 469.

[20] Id.

[21] R. Docs. 666 & 691.

[22] R. Doc. 862 at 2.

[23] Id. at 2.

[24] R. Doc. 469-1 at 1.

[25] Id. at 7.

[26] Riley attaches to its motion, but never cites to, over 1,000 pages of materials that are often illegible or barely legible. [27] The Court also gave similar instructions in its September 24, 2021 Scheduling Order. See R. Doc. 280 at 5 ("[E]ach party shall make specific reference to record evidence supporting its statement of material facts. Citations to record evidence shall indicate, whenever applicable, an exhibit reference, page reference, and record document number reference. Record evidence not specifically referred to by the parties may not be considered by the Court.").

[28] R. Doc. 469-10 at 29-30 (Discovery Deposition of Callen Cortez at 199:12-201:23).

[29] Id. at 59 (Discovery Deposition of Callen Cortez at 318:24-319:10).

[30] Id.

[31] Id.

[32] Id.

[33] Id.

Sources

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