Craft v. Eagle, Inc. (2024)

Our plain-English summary of Craft v. Eagle, Inc. (Louisiana Court of Appeals, September 27, 2024).

Climmie Craft sued several stevedoring companies and their insurers. She alleged she developed asbestos-related lung cancer from household exposure, which came from washing the asbestos-contaminated work clothes of her husband, Jerry Craft. The opinion says he died of asbestos-related mesothelioma and was exposed while working for stevedoring companies, including the defendants. To show that both his workplace exposure and her household exposure were significant and above background levels, she offered Kenneth Garza, a certified industrial hygienist. The defendants moved to exclude his testimony, arguing it rested on insufficient facts and data. The trial court barred him from testifying about the Crafts' exposures and allowed only general industrial hygiene opinions. It later denied her motion to reconsider in part. She sought emergency review from the Louisiana Fourth Circuit Court of Appeal. The appeals court held that the evidence Garza relied on, which included depositions of both Crafts, affected only the weight of his conclusions, not their admissibility. It granted the writ, reversed the trial court's rulings and remanded for further proceedings.

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: Louisiana Court of Appeals, 4th Circuit
• Decided: September 27, 2024
• Docket: No. 2024-C-0616
• Stage: Appeal from discovery or evidence ruling
• State: Louisiana

Outcome. The Louisiana Fourth Circuit granted Climmie Craft's writ application, reversed the trial court's rulings limiting her industrial hygiene expert Kenneth Garza to general opinions, and remanded, ruling against the defendants (Ports America Gulfport, Crowley Marine Services and their insurers).

What the court held. Under Daubert and La. C.E. art. 702, the character of the evidence an expert relies on goes to the weight of the opinion, not its admissibility. Challenges to the facts underlying an expert's opinion are for cross-examination and the jury.

Issues decided: Expert Testimony.

The people and their exposure

• Climmie Craft (family member): lung cancer

• Jerry Craft: mesothelioma; died

Who	Work	Where	When	Products
Jerry Craft	stevedoring work
Climmie Craft	household member laundering husband's work clothes; dust brought home

The defendants

• Ports America Gulfport Inc. (employer)
• Crowley Marine Services, Inc. (employer)
• Certain Underwriters at Lloyd's London (insurer)
• Hartford Accident and Indemnity Company (insurer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Allen v. Eagle Inc. (Louisiana Court of Appeals, 4th Circuit, 2022). The appeals court granted the insurers' writ applications but denied relief, leaving in place the trial court's denial of summary judgment and of the motions in limine, so plaintiffs' claims against Lykes' insurers (Hartford, Lloyd's, Edinburgh) continue.

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.

CLIMMIE CRAFT,

v.

EAGLE, INC., ET AL.

No. 2024-C-0616.

September 27, 2024.

Court of Appeal of Louisiana, Fourth Circuit.

ON SUPERVISORY WRIT FROM THE CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2023-11586, DIVISION "B",

Honorable Marissa Hutabarat.

WRIT GRANTED; REVERSED AND REMANDED.

Christopher C. Colley, Kristopher L. Thompson, Emily C. LaCerte, BARON & BUDD, P.C., 2600 Citiplace Drive, Suite 400, Baton Rouge, Louisiana 70808, And 909 Poydras Street, Suite 2100, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF-

RELATOR.

Leigh Ann Schell, Raymond P. Ward, Luke G. Lahaye, ADAMS & REESE, LLP, 701 Poydras Street, Suite 4500, New

Orleans, LA 70139.

McCready L. Richeson, Lawrence G. Pugh, PUGH ACCARDO, 1100 Poydras Street, Suite 3600, New Orleans, LA 70163.

Kevin J. Lavie, Joseph E. Lee, III, PHELPS DUNBAR, LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130,

COUNSEL FOR DEFENDANTS-RESPONDENTS.

Court composed of Judge Paula A. Brown, Judge Dale N. Atkins, Judge Karen K. Herman.

KAREN K. HERMAN, Judge.

Plaintiff, Climmie Craft ("Mrs. Craft"), seeks emergency supervisory review of the trial court's August 22, 2024 ruling,[1] which partially granted a Daubert[2] Motion in Limine to Exclude and/or Limit the Testimony of Plaintiff's Expert, Kenneth Garza ("Mr. Garza"), filed by Defendants, Ports America Gulfport Inc., and joined by Defendants, Certain Underwriters at Lloyd's London, Crowley Marine Services, Inc., and Hartford Accident and Indemnity Company, (collectively, "Defendants"). Mrs. Craft also seeks review of the trial court's September 25, 2024 judgment, which partially denied her Motion for Reconsideration of the August 22, 2024 ruling.

For the following reasons, we grant the writ application, reverse the trial court's rulings, and remand for further proceedings. [3] FACTUAL AND PROCEEDURAL HISTORY Mrs. Craft filed suit in this matter asserting that she contracted asbestos-related lung cancer as a consequence of her household exposure ("take-home") to asbestos while laundering the asbestos-contaminated clothing of her husband, Jerry Craft ("Mr. Craft"). Mrs. Craft alleges that her husband was exposed to asbestos while employed by various stevedoring companies, including Defendants. Mr. Craft died from asbestos-related mesothelioma.

To demonstrate that her household exposure to asbestos and her husband's workplace exposure to asbestos was

substantial and significantly above background levels, Mrs. Craft offered the expert opinion of Mr. Garza, a Certified Industrial Hygienist. Mr. Garza has rendered an opinion that Mr. Craft suffered significant occupational exposures to asbestos while employed by Defendants and that Mrs. Craft suffered significant household exposures to asbestos while laundering her husband's work clothing.[4]

Defendants filed motions in limine seeking to exclude and/or limit the testimony of Mr. Garza. Defendants argued therein that Mr. Garza's opinion is based on insufficient facts and data.

The trial court granted Defendants' motion, in part, precluding Mr. Garza "from offering testimony regarding the asbestos exposures by Jerry Craft and/or Climmie Craft. The Court will allow Kenneth Garza to testify about general industrial opinions, only." Following the denial of Mrs. Craft's Motion for Reconsideration as to Mr. Garza, this writ application followed. LAW & DISCUSSION

Mrs. Craft argues that the trial court erred in prohibiting Mr. Garza from testifying that her husband's exposures to asbestos while employed by each Defendant were significant and above background, and that her "take-home" asbestos exposures from her husband's employment by each Defendant were significant and above background. Mrs. Craft claims that Mr. Garza has sufficiently testified as to the frequency Mr. Craft was exposed to asbestos because of the work he performed for each Defendant.

"Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by our Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La. 1993), the trial court is required to perform a `gatekeeping' function to `ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" Allen v. Eagle Inc., XXXX-XXXX, 0387, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d 808, 814-15, writ denied, 2022-01373 (La. 11/16/22), 349 So.3d 998 (quoting Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5 (La. App. 4 Cir. 7/29/09), 17 So.3d 459, 463.

La. C.E. art. 702(A) addresses the standard for admissibility of expert testimony and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in

the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not

that:

(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

This Court in Allen, 2022-0386, p. 9, 346 So.3d at 815, recognized that the character of the evidence upon which an expert bases his opinion affects only the weight to be afforded to the expert's testimony and does not make his opinion evidence inadmissible pursuant to Daubert. This Court stated:

The [Louisiana] Supreme Court, in Certain Underwriters at Lloyd's London v. United States Steel Corp.,

20[19]-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122, (quoting Lafayette City-Parish Consol. Gov't v. Person,

[20] 12-0307, p. 8 (La. 10/16/12), 100 So.3d 293, 298), found that an "expert may provide testimony based

on information obtained from others, and the character of the evidence upon which the expert bases an

opinion affects only the weight to be afforded the expert's conclusion." See also MSOF Corp. v. Exxon Corp.,

[20]04-0988, p. 16 (La. App. 1 Cir. 12/22/05), 934 So.2d 708, 720 (wherein the First Circuit held that "the

character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the

expert's conclusion ... and may serve as a basis for attack by defendants on cross-examination at trial, but it

does not make his opinion evidence inadmissible under Daubert.'").

Id.

Based on the record before us, we find that the evidence upon which Mr. Garza based his opinion affects only the weight afforded Mr. Garza's conclusions.[5] Therefore, Mr. Garza's evidence and testimony should be weighed by the jury. Accordingly, Mrs. Craft's writ application is granted. Further, we reverse the trial court's rulings, which found that Mr. Garza

would be limited to offering only general industrial hygiene opinions at trial and denied the motion to reconsider in part. The matter is remanded to the trial court for further proceedings.

WRIT GRANTED; REVERSED AND REMANDED.

[1] The record contains an unsigned judgment on the motion in limine as well as a separate signature page indicating that the judgment was signed on September 9, 2024.

[2] Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).

[3] As a preliminary matter, we note that Defendants raise an objection as to the timeliness of the motion to reconsider. Defendants contend that pursuant to La. C.C.P. art 1425(F)(2) the trial court was required to hold a hearing and render its decision on expert testimony no later than 30 days prior to trial. However, the trial court timely heard and ruled on the expert testimony on August 22, 2024 under La. C.C.P. art. 1425(F)(2). Moreover, Defendants did not raise the timeliness of the motion to reconsider under La. C.C.P. art. 1425(F)(2) in the opposition filed in the trial court. Accordingly, we do not find this argument persuasive.

[4] In his April 11, 2024 report, Mr. Garza indicated that he "provided estimated exposure rates to both Mr. Craft and Mrs. Craft based on the exposure evidence in this case and the relevant epidemiological studies, and based on this, opined to a reasonable degree of scientific certainty that `Ms. Climmie Craft had exposures above background that increased her risk for [asbestos-related] disease.'" [5] Mr. Garza stated in his report that his review of case specific information included: "Deposition of Climmie Craft, dated December 8, 2023; Deposition of Jerry Craft, dated November 10, 2006; Deposition of Jerry Craft, dated January 23, 2017; Discovery Deposition of Jerry Craft, dated July 19, 2017; and/or other case-specific information."

Sources

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