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

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

Callen Cortez, who was diagnosed with mesothelioma in June 2020, sued Westinghouse (ViacomCBS), Lamorak Insurance and about thirty-four other defendants. He alleged exposure over his career and take-home exposure from his brother Daniel's work insulating Navy vessels at Avondale Shipyards. Callen also testified he worked with asbestos-containing gaskets on Westinghouse turbines at Avondale. Plaintiffs asked the court to exclude Westinghouse's expert, Dr. Samuel Forman, as irrelevant. The court had already granted summary judgment to Westinghouse on the insulation claims, so Forman's testimony on that issue was excluded. The gasket claim remained. The court allowed Forman, a qualified occupational medicine specialist and former Navy officer, to testify about naval and governmental asbestos safety requirements for commercial or contract shipyards, relevant to whether Avondale was a sophisticated purchaser. It excluded his opinions on general Navy requirements for naval shipyards and equipment makers and on non-maritime federal laws such as the Walsh-Healey Act.

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 29, 2022
• Docket: Civil Action No. 20-2389
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. 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.

What the court held. An expert's testimony is admissible if relevant to a pending issue, such as a shipyard's knowledge of asbestos hazards for a sophisticated-purchaser defense, but testimony on issues already resolved by summary judgment or outside the expert's field is excluded.

Issues decided: Expert Testimony, Failure to Warn, Government Contractor Defense and Removal, Sophisticated User and Intermediary Defenses, Take-Home Exposure.

The people and their exposure

• Callen Cortez: mesothelioma; died

Who	Work	Where	When	Products
Callen Cortez	worked with gaskets on Westinghouse turbines (shipyards and maritime work)	Avondale Shipyards, Louisiana		gaskets and packing, Westinghouse turbine gaskets
Callen Cortez	lived with brother who worked at Avondale (shipyards and maritime work); dust brought home	family home in Kraemer, Louisiana, Kraemer, Louisiana	1967-1968	pipe and block insulation, asbestos insulation on Westinghouse turbines

The defendants

• ViacomCBS Inc. (Westinghouse) (manufacturer)
• 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 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 (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.

September 29, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is plaintiffs' motion in limine to exclude testimony by Dr. Samuel Forman on the grounds that Forman's testimony fails the "fit" test imposed on such testimony by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that the testimony is irrelevant to any issue in the case under Rules 403 and 702 of the Federal Rules of Evidence.[1] Defendant ViacomCBS Inc. Westinghouse") opposes the motion.[2] For the following reasons, the Court grants in part and denies in part plaintiffs' motion.

I. BACKGROUND

This is an asbestos exposure case. Plaintiffs allege that decedent 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 brothers' work when the family shared a home.[4] 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.[5] Decedent's brother, Daniel Cortez, also lived in the home. Daniel began working at the Avondale Shipyards on August 29, 1967,[6] and remained living with Callen Cortez at their family home until Daniel married and moved out in July of 1968.[7] Daniel testified that he worked with asbestos insulation, and that fibers released from the cloth got onto his work clothes.[8] This work involved insulating Navy vessels which were equipped with Westinghouse turbines.[9] He further testified that, after work each day, he came home, hung up his clothes, and, with Callen Cortez's help, beat the fibers off his clothes.[10] Additionally, Callen Cortez testified that he worked with asbestos-containing gaskets on Westinghouse's turbines at Avondale.[11]

Callen Cortez was diagnosed with mesothelioma on June 2, 2020.[12] On July 1, 2020, he filed suit in the Civil District Court for the Parish of Orleans against Westinghouse and approximately thirty-four other defendants, including former employers, manufacturers, and insurance companies.[13] In their complaint, intiffs bring various products liability, negligence, and intentional tort claims.[14]

Relevant to the motion before the Court, plaintiffs seek to exclude Forman's testimony on the grounds that it lacks "fit" under Daubert as well as relevance under Rules 403 and 702 of the Federal Rules of Evidence. Specifically, plaintiffs assert that Forman's testimony should be excluded because Forman did not discuss Daniel Cortez or Avondale in his report, and Callen Cortez did not work on Navy vessels or at a naval shipyard. Westinghouse opposes the motion and contends that Forman's testimony goes to a potential government contractor defense and to Avondale's knowledge of asbestos hazards, which is relevant to Westinghouse's sophisticated-purchaser defense.[15]

The Court considers the parties' arguments below.

II. DISCUSSION

Plaintiffs rely on Daniel Cortez's exposure to asbestos-containing insulation used by Avondale on Westinghouse turbines when he worked on Navy ships at Avondale, contending that Callen Cortez experienced take-home exposure from this source when he lived with his brother in the family home.[16] The parties dispute whether Forman's proposed expert testimony is relevant as to Westinghouse's duty to warn about the hazards of this exposure.[17] The Court finds that this issue is now off the table, because the Court has granted summary judgment to Westinghouse on plaintiff's claims arising from exposure to asbestos-containing insulation used on its turbines. Cortez v. Lamorak Ins. Co., No. 20-2389, 2022 WL 2643867, at [*8] (E.D. La. July 8, 2022). Since the Court will not allow testimony from plaintiffs on this issue, it likewise finds that the proffered expert testimony from Westinghouse on a nonissue will not be allowed.

Plaintiffs also rely on Callen Cortez's exposure to asbestos from gaskets used in connection with Westinghouse turbines at Avondale. The Court denied summary judgment to Westinghouse on this issue. Id. at [*7]-8. In this regard, Westinghouse contends that Forman's testimony about the knowledge of commercial and naval-contract shipyards about the hazards of asbestos, by virtue their dealings with naval and U.S. Federal Maritime Commission safety requirements for shipyards, is relevant to whether Avondale was a sophisticated purchaser of asbestos products and thus was not owed a duty to warn from Westinghouse. The Court finds that Westinghouse's proffered expert testimony is relevant and admissible for the forgoing purpose.

Plaintiffs' argument that Callen Cortez did not work on Navy ships does not alter this conclusion. Forman's testimony goes to what Avondale would have known about the hazards of asbestos from working as a Navy shipbuilding contractor. Forman, an occupational medicine specialist and former Navy officer, is qualified to testify on this issue based on his training and experience, and he relies on reliable sources for his opinion. He was tasked by the Navy with reviewing naval knowledge and practices in industrial hygiene, including its awareness of and response to asbestos hazards.[18] The Court nevertheless limits Forman's testimony to naval and related governmental asbestos safety requirements for commercial or contract shipyards, including communications to shipyards about the hazards of asbestos or required protections or procedures for handling asbestos products before and during the period of Cortez's exposure.[19] His opinions regarding the Navy's requirements for aval shipyards (unless specifically identified as applicable to contractors) and the Navy's expectations of equipment manufacturers are irrelevant to Avondale's knowledge. Further, his opinions as to the applicability of non-maritime related federal laws like the Walsh-Healey Act are not linked to his specific area of expertise and are excluded.

III. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART plaintiffs' motion in limine. The Court GRANTS plaintiffs' motion to the extent Forman's testimony addresses the nonissue of Westinghouse's duty to warn of the hazards of insulation d on Westinghouse turbines, general Navy requirements for naval shipyards and equipment manufacturers, unless specifically identified as applicable to contractors and commercial shipyards, and the applicability of general, nonmaritime related federal laws such as the Walsh-Healey Act. The Court DENIES plaintiffs' motion to the extent Forman's testimony goes naval and related governmental asbestos safety requirements for commercial or contract shipyards, including communications to shipyards about the hazards of asbestos or required protections or procedures for handling asbestos products before and during the period of Cortez's exposure.

[1] R. Doc. 632.

[2] R. Doc. 733.

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

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

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

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

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

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

[9] Id. at 32 (Deposition of Daniel Cortez at 31:5-16).

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

[11] R. Doc. 499-4 at 63-64 (Discovery Deposition of Callen Cortez at 146:6-147:10).

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

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

[14] R. Doc. 1-1.

[15] R. Doc. 733.

[16] R. Doc. 149 at 1-6 (Second Amended Complaint ¶¶ 94-101).

[17] R. Docs. 632 & 733.

[18] R. Doc. 632-4 at 4 (Forman Report ¶¶ 9-10).

[19] Id. at 14-15, 52, 56 (Forman Report ¶¶ 34, 35, 36, 133, 134, and 149).

Sources

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