Crossland v. Huntington Ingalls, Inc. (E.D. La., Feb. 17, 2023, as to Burmaster Land)

Our plain-English summary of Crossland v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, February 17, 2023).

Linda Crossland sued dozens of companies in Louisiana state court, alleging she developed mesothelioma, diagnosed in 2020, from asbestos exposure. She alleged exposure from several sources: asbestos-containing concrete that Burmaster Land and Development Co. delivered to her childhood home for a driveway, and fibers her father, uncle and husband brought home from work at Avondale shipyards and, for her husband, other worksites while employed by Carl Woodward. The case was removed to federal court. Burmaster moved for summary judgment, arguing there was no evidence she was exposed to asbestos through its activities. Crossland joined the motion and Avondale dropped its crossclaim against Burmaster, so the motion was unopposed. The court explained that an unopposed motion still requires the movant to show it is entitled to judgment. Under Louisiana law a claimant must show significant exposure to the defendant's product and that it was a substantial factor in causing the injury. The court found no evidence Burmaster delivered asbestos to her home or that she was exposed. It granted the motion.

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: February 17, 2023
• Docket: Civil Action No. 20-3470
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted defendant Burmaster Land and Development Co.'s unopposed motion for summary judgment against plaintiff Linda Crossland because she identified no evidence of exposure to asbestos from Burmaster's activities.

What the court held. Under Louisiana law, an asbestos claimant must show significant exposure to the defendant's product and that the exposure was a substantial factor in causing her injury; without evidence of any exposure from the defendant's activities, the claim fails even when the motion is unopposed.

Issues decided: Causation, Product Identification.

The people and their exposure

• Linda Crossland (family member): mesothelioma

Who	Work	Where	When	Products
Linda Crossland	child at home; lived nearby	family home driveway, Louisiana	childhood	asbestos-cement pipe and sheet, asbestos-containing concrete delivered by Burmaster
Linda Crossland	father, uncle and potentially others worked at Avondale shipyards (shipyards and maritime work); dust brought home	Avondale shipyards, Louisiana	1950s-1960s
Linda Crossland	husband worked at Avondale shipyards (shipyards and maritime work); dust brought home	Avondale shipyards, Louisiana	1970s
Linda Crossland	husband employed by Carl Woodward at various worksites; dust brought home	various worksites	1970s-1990s

The defendants

• Burmaster Land and Development Co., LLC (supplier)
• Huntington Ingalls, Inc. (Avondale) (employer)
• Albert L. Bossier

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Crossland v. Huntington Ingalls, Inc. (October 19, 2022). The court granted plaintiff Linda Crossland's motion for partial summary judgment, holding that defendants Avondale and Hopeman were not entitled to government contractor (Boyle) or Yearsley immunity against her failure-to-warn and safety claims.
• Crossland v. Huntington Ingalls, Inc. (February 17, 2023). The court granted Woodward Design & Build's summary judgment motion on the strict liability claim and on exposure to products other than joint compound and pipe insulation, denied it on the negligence claim based on those two products, and denied Woodward's motion to exclude the two causation experts.

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.
• McAskill v. American Marine Holding Co. (Louisiana Court of Appeals, 4th Circuit, 2009). The Louisiana Court of Appeal reversed the trial court's summary judgment for Eagle, Branton and Commercial Union and remanded for further proceedings, so plaintiff McAskill's claims go forward.
• 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.
• Labarre v. Bienville Auto Parts Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Bienville Auto Parts' summary judgment motion on the strict liability "professional vendor" claim, but denied it on the negligence claim against Bienville as a non-manufacturer seller and on its sophisticated-user defense, so plaintiff Birdsall kept those claims.

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.

LINDA CROSSLAND,

v.

HUNTINGTON INGALLS, INC., ET AL., SECTION "R" (2).

Civil Action No. 20-3470.

February 17, 2023.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendant Burmaster Land and Development Co., LLC's ("Burmaster") unopposed motion for summary judgment.[1] For the following reasons, the Court grants the motion.

I. BACKGROUND

This case arises from plaintiff's alleged exposure to asbestos. Plaintiff contends that she was exposed to asbestos from several different sources. She asserts that during her childhood, Burmaster delivered asbestos-containing concrete to her home that was used for her driveway.[2] Plaintiff alleges that during the 1950s and 1960s, her father, uncle, and "potentially others" inadvertently brought asbestos fibers into the family home from their work at defendant Huntington Ingalls, Inc.'s ("Avondale") shipyards.[3] She asserts that in the 1970s, her husband inadvertently carried asbestos fibers into her home from his work at Avondale's shipyards.[4] Finally, she contends that during the 1970s, 1980s, and potentially the 1990s, her husband inadvertently carried asbestos fibers into her home from his work on various worksites when he was employed by Carl Woodward.[5] She alleges that her exposure to asbestos dust caused her to develop mesothelioma, with which she was diagnosed in 2020.[6]

Plaintiff filed a petition for damages in the Civil District Court for the Parish of Orleans against dozens of employers, premises owners, contractors, suppliers, manufacturers, and professional vendors that were allegedly involved with her asbestos exposures.[7] In her petition for damages, plaintiff alleged that defendants negligently failed to warn about the hazards of asbestos.[8] She also brought premises liability claims against the defendants she classifies as employers, premises owners, and contractors,[9] as well as products liability claims against the defendants she classifies as suppliers, manufacturers, and professional vendors.[10]

Defendants Avondale and Albert L. Bossier, an executive officer of Avondale, asserted crossclaims against numerous defendants, including Burmaster, in which they asserted that in the event they are deemed liable to plaintiff, they are entitled to virile share contributions.[11] Avondale then removed the action to federal court.[12]

Burmaster now moves for summary judgment on the grounds that plaintiff has failed to identify any evidence that plaintiff was exposed to asbestos as a result of Burmaster's activities.[13] After Burmaster filed its motion, plaintiff moved for leave to join Burmaster's motion,[14] and Avondale voluntarily dismissed its crossclaim against Burmaster.[15] Burmaster's motion is thus unopposed. 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)). In the Fifth Circuit, a district court may not grant a "default" summary judgment on the ground that it is unopposed. Morgan v. Fed. Express Corp., 114 F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases). Even in the context of unopposed motions for summary judgment, the movant must still show that there is no genuine issue of material fact, and that it is entitled to summary judgment as a matter of law. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 363 n.3 (5th Cir. 1995). When a motion for summary judgment is unopposed, a court may accept the movant's evidence as undisputed. Morgan, 114 F. Supp. 3d at 437 (quoting UNUM Life Ins. Co. of Am. v. Long, 227 F. Supp. 2d 609 (N.D. Tex. 2002)). Nevertheless, if the moving party fails to meet its burden, the Court must deny its motion for summary judgment. Hetzel, 50 F.3d at 362 n.3. III. DISCUSSION

Under Louisiana law, in an asbestos exposure case, a 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).

When there are multiple causes of injury, "a defendant's conduct is a cause in fact if it is a substantial factor generating plaintiff's harm." Adams v. Owens-Corning Fiberglas Corp., 923 So. 2d 118, 122 (La. App. 1 Cir. 2005) (citing Vodanovich, 969 So. 2d at 932). "Because there is a medically demonstrated causal relationship between asbestos exposure and mesothelioma, every non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma." Labarre v. Bienville Auto Parts, Inc., No. 21-89, 2022 WL 293250, at [*3] (E.D. La. Feb. 1, 2022) (citing McAskill v. Am. Marine Holding Co., 9 So. 3d 264, 268 (La. App. 4 Cir. 2009)). Thus, as 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 claimant "need only show that a reasonable jury could conclude that it is more likely than not that [plaintiff] inhaled defendant's asbestos fibers.'" Id. at 512 (citing Held v. Avondale Indus., Inc., 672 So. 2d 1106, 1109 (La. App. 4 Cir. 1996)).

No such showing has been made here. Plaintiff alleged in her complaint that Burmaster delivered asbestos scrap to her family home that was used to construct her driveway, but Burmaster contends, and plaintiff does not dispute, that this allegation is unsupported by any evidence.[16] Specifically, Burmaster contends that there is no evidence that plaintiff was exposed to asbestos scrap, nor is there any evidence that Burmaster ever delivered asbestos scrap to her home.[17] Neither plaintiff nor her husband identified Burmaster as a source of asbestos exposure in their depositions, nor did plaintiff's or Avondale's experts implicate Burmaster in their causation reports.

Burmaster contends that it broke down and buried asbestoscontaining pipe in a lot adjacent to a Johns-Manville plant roughly four miles from plaintiff's home, but plaintiff does not allege that she was exposed to asbestos through this activity. [18] Further, Burmaster's expert opined, and plaintiff does not contest, that this activity was performed too far from plaintiff's home for her to be exposed to a quantity of asbestos fibers capable of being a substantial contributing cause of her mesothelioma.[19]

Because plaintiff has not identified any evidence that she had any exposure, much less "significant exposure," Rando, 16 So. 3d at 1091, to asbestos fibers resulting from Burmaster's activities, she cannot meet her burden of demonstrating that its conduct was a "substantial factor generating [her] harm," Adams, 923 So. 2d at 122. The Court thus grants Burmaster's motion for summary judgment.

IV. CONCLUSION

For the foregoing reasons, Burmaster's motion for summary judgment is GRANTED.

[1] R. Doc. 302.

[2] R. Doc. 227 ¶ 4.

[3] Id.

[4] Id.

[5] Id. Plaintiff initially also brought claims based on exposures through her own work at Avondale and through asbestos fibers floating from Avondale into her neighborhood, but she voluntarily dismissed the claims premised on these theories. R. Doc. 154. [6] R. Doc. 1-2 ¶ 8.

[7] Id. ¶ 2.

[8] R. Doc. 1-2 ¶ 12.

[9] Id. ¶¶ 16-20.

[10] Id. ¶¶ 21-22.

[11] On February 1, 2023, the Court dismissed Bossier's crossclaims pursuant to Fed. R. Civ. P. 25(a)(1) because Bossier died and no party timely moved for substitution. R. Doc. 333 at 7.

[12] R. Doc. 1.

[13] R. Doc. 302.

[14] R. Doc. 312.

[15] R. Doc. 321.

[16] R. Doc. 302-1 at 5.

[17] Id.

[18] Id. at 10.

[19] R. Doc. 302-23 at 8.

Sources

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