Cortez v. Lamorak Insurance Company (E.D. La., Oct. 12, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, October 12, 2022).

The estate and family of Callen Cortez sued over his mesothelioma, which they say came from asbestos exposure during his career and from take-home exposure through his brother Daniel's work when they shared a family home. Hopeman Brothers is sued as an alleged professional vendor of asbestos-containing wallboard. Plaintiffs asked the court to limit the testimony of Hopeman's toxicologist, Dr. Brent Finley. He estimated Cortez's cumulative exposure from Hopeman's wallboard at a level below exposure limits and below the threshold for increased mesothelioma risk. Plaintiffs argued his opinion was unreliable because he relied on studies of sawing boards with vacuum systems, while Cortez and his brother testified no such controls were used. The court denied the motion. It noted Hopeman would present witnesses saying dust collection was used, that Finley also relied on studies without dust collection, and that studies need only afford a fair comparison. Plaintiffs could challenge his conclusions through 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: October 12, 2022
• Docket: Civil Action No. 20-2389
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. 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.

What the court held. A study an expert relies on need not replicate the exact conditions of the plaintiff's exposure; it need only afford a fair comparison, and disputes over the bases of an expert's opinion go to weight and are addressed through cross-examination.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Callen J. Cortez: mesothelioma; died

Who	Work	Where	When	Products
Callen J. Cortez	; worked near others using it			joint compound, Hopeman asbestos-containing wallboard
Callen J. Cortez	household member of brother Daniel Cortez; dust brought home	family home		joint compound, Hopeman asbestos-containing wallboard

The defendants

• Hopeman Brothers, Inc. (supplier)
• 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 (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 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:

• Boudreaux v. Bollinger Shipyard (Louisiana Court of Appeals, 4th Circuit, 2016). The appeals court affirmed the trial court's exclusion of the plaintiffs' pathologist and its summary judgment dismissing the Boudreaux family's claims against Trinity Industries and its insurers, so Trinity and the insurers won and the family lost.

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, SECTION "R" (1) ET AL.

Civil Action No. 20-2389.

October 12, 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 limit testimony by Dr. Brent Finley pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).[1] Defendant Hopeman Brothers, Inc. ("Hopeman") opposes the motion.[2] For the following reasons, the Court denies 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] Hopeman is sued as an alleged professional vendor of asbestos-containing wallboard.[5] In the present motion, plaintiffs seek to limit the testimony of Dr. Brent Finley, an expert toxicologist, on the grounds that his opinion on whether asbestos exposure from Hopeman's wallboard was a substantial factor in bringing about Cortez's mesothelioma is unreliable under Daubert and therefore inadmissible.[6] Specifically, plaintiffs assert that Finley's opinion is inadmissible because he relied on studies that were conducted utilizing vacuum systems while measuring the level of asbestos released by sawing asbestos-containing boards, whereas Hopeman assertedly did not use protective measures during the period of Callen Cortez's exposure.[7] Hopeman opposes the motion and contends that the use of vacuums is in issue, and Finley's testimony should not be limited merely because he relies on studies that did not exactly replicate the conditions of plaintiffs' exposures.[8]

The Court considers the parties' arguments below.

II. DISCUSSION

Plaintiffs' claims rely on Callen Cortez's workplace exposures to Hopeman's asbestos-containing wallboard, as well as take-home exposure through Daniel Cortez's work when the two lived in the family home.[9] The parties dispute the admissibility of Finley's proposed expert testimony, which goes to the degree of the asbestos exposures from Hopeman's wallboard and therefore whether such expo sures were a substantial factor in causing Cortez's mesothelioma.[10] Finley estimated Cortez's potential cumulative exposure from Hopeman's wallboard to be between 0.0005 f/cc-years to 0.0022 f/cc-years, which he asserts is well below current exposure limits as well as the threshold exposure level for increased risk of mesothelioma.[11] Plaintiffs contend that Finley's testimony should be excluded on this issue because he relied on incomplete materials. Specifically, they assert that Finley only relied on studies where vacuums were used, whereas Callen Cortez and Daniel Cortez testified that no such preventative measures were used by the Hopeman employees that cut wallboard in their vicinity. Plaintiffs contend that Finley's reliance on purportedly inapposite studies results in an underestimate of Cortez's actual exposure, which compromises the reliability and relevance of Finley's opinion.

In response, Hopeman represents that it will present fact witnesses at trial who will testify that dust-collecting systems were used during the relevant period, in direct contradiction of plaintiffs' evidence. Because defendants may provide evidence at

trial that Hopeman used such measures, plaintiffs' argument about the nonuse of vacuums does not require exclusion of Finley's opinion. Further, Finley also relied on studies that did not use dust-collecting measures. For example, Finley cites the June 1999 Longo study in estimating the length of the asbestos fibers generated by sawing Hopeman's wallboard.[12] Further, even if Finley relies on studies conducted under somewhat different conditions than Cortez's exposures, this does not, by itself, demand exclusion of Finley's opinion. A study need not be conducted under the exact conditions as the facts of the case to be admissible. Rather, the study must afford a fair comparison. See Williams v. Briggs Co., 62 F.3d 703, 707 (5th Cir. 1995) (to be admissible, testing must be "substantially similar" to the incident); Barnes v. Gen. Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977) (to be substantially similar, a test must only "afford a fair comparison in respect to the particular issue to which the test is directed" (quoting Ill. Cent. Gulf R.R. Co. v. Ishee, Miss., 317 So.2d 923, 926 (Miss. 1975)). Plaintiffs point to Finley's deposition testimony for the proposition that the presence vel non of vacuum systems is critical in determining whether a study affords a fair comparison; but what Finley actually stated was that "if you assume the vacuums are effective, then [the] values [derived from studies that do not utilize vacuum systems] would be underestimating."[13] In the cited testimony, Finley did not endorse the effectiveness of the vacuums, and defendant notes that Finley assumed the worst-case scenario about Cortez's exposures to compensate for the limitations of the studies that he relied on.[14] Therefore, the Court is unpersuaded by plaintiffs' contentions that the studies Finley relies on are so dissimilar from Cortez's exposure that the opinion must be excluded.

Lastly, plaintiffs' citation to Boudreaux v. Bollinger Shipyards is unpersuasive. That case dealt with an expert who was excluded because he relied on incomplete medical records and exposure history while opining on the plaintiff's condition. Boudreaux v. Bollinger Shipyards, 197 So. 3d 761, 770 (La. App. 4 Cir. 2016). Boudreaux is inapposite here, where the issue is the similarity of the studies Finley relies on to actual exposure conditions.

Plaintiffs may challenge Finley's conclusions or interpretation of the facts through cross-examination. Primrose Operation Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir.2004) (noting that "[a]s a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.") (quoting United States v. 14.38 Acres of Land, More or Less Sit. in Leflore, Cnty., Miss., 80 F.3d 1074, 1077 (5th Cir. 2004)). As the Supreme Court noted in Daubert, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)). Accordingly, the Court denies plaintiffs' motion.

III. CONCLUSION

For the foregoing reasons, the Court DENIES plaintiffs' motion in limine.

[1] R. Doc. 509.

[2] R. Doc. 716.

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

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

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

[6] R. Doc. 509.

[7] R. Doc. 509-1 at 2-4.

[8] R. Doc. 716.

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

[10] R. Docs. 509 & 716.

[11] R. Doc. 716-1 at 37 (Finley Report).

[12] Id. at 40 (Finley Report).

[13] R. Doc. 509-8 at 5 (Deposition of Brent Finley at 131:2-11).

[14] R. Doc. 716-1 at 37 (Finley Report).

Sources

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