Everett v. Air Products & Chemicals, Inc. (2022)

Our plain-English summary of Everett v. Air Products & Chemicals, Inc. (Louisiana Court of Appeals, September 16, 2022).

Emily Everett's husband was a worker exposed to asbestos. Decades later she developed malignant mesothelioma, sued several companies, and died about a year after her diagnosis. Her children, Paula Everett and William Everett, Jr., took over the suit. The trial court granted summary judgment to Union Carbide, Foster Wheeler and Riley Power. It found the plaintiffs lacked sufficient evidence of causation tied to those defendants' products. It also dismissed Peter Kiewit (now Level 3 Holdings), which had joined Union Carbide's motion the day before the hearing. The plaintiffs' new trial motion was denied, and they appealed. Before the appeals court ruled on the merits, the plaintiffs and Riley Power filed a joint motion to dismiss the appeal as to Riley Power. The Louisiana Fourth Circuit granted it. The court said the appeals concerning Foster Wheeler and Peter Kiewit stayed pending and were not affected. The opinion notes that the appeal against Union Carbide had already been dismissed in a separate order. The court did not decide the causation question.

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 16, 2022
• Citation: 349 So.3d 592
• Docket: NO. 2022-CA-0539, NO. 2022-CA-0540, NO. 2022-CA-0541
• Stage: Appeal from summary judgment
• State: Louisiana

Outcome. The appeals court granted the joint motion of the plaintiffs and Riley Power and dismissed the plaintiffs' appeal as to Riley Power, leaving the appeals against Foster Wheeler and Peter Kiewit (Level 3) pending.

What the court held. On a joint motion of the parties, the court dismissed the appeal as to one defendant and left the appeals as to the other parties undisturbed.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Emily Everett (family member): mesothelioma; died

The defendants

• Riley Power, Inc. (manufacturer)
• Foster Wheeler LLC (manufacturer)
• Union Carbide Corporation (manufacturer)
• Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k/a Peter Kiewit Sons Co.

Other decisions in this case

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

• Everett v. Air Products and Chemicals, Inc. (May 2, 2023). The court reversed summary judgment for Peter Kiewit, affirmed summary judgment for Foster Wheeler, reversed the denial of the Everetts' motion for new trial and remanded for a contradictory hearing, and dismissed the defendants' answers to the appeal as moot.

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.

349 So.3d 592 (2022)

Emily EVERETT

v.

AIR PRODUCTS AND CHEMICALS, INC., etal.

Emily Everett

v.

Air Products and Chemicals, Inc., etal.

Emily Everett

v.

Air Products and Chemicals, Inc., etal.

NO. 2022-CA-0539, NO. 2022-CA-0540, NO. 2022-CA-0541.

September 16, 2022.

Court of Appeal of Louisiana, Fourth Circuit.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2018-05845, DIVISION "G-11", Honorable Robin M. Giarrusso, Judge.

APPEAL DISMISSED AS TO RILEY POWER, INC.

Lewis Owens Unglesby, Lance C. Unglesby, Jamie F. Gontarek, UNGLESBY LAW FIRM, 246 Napoleon Street, Baton Rouge, LA 70802, Thomas More Flanagan, Anders F. Holmgren, FLANAGAN PARTNERS, LLP, 201 St. Charles Avenue, Suite 3300, New Orleans, LA 70170, Lindsey A. Cheek, THE CHEEK LAW FIRM, 650 Poydras Street, Suite 2310, New Orleans, LA 70130, COUNSEL FOR PLAINTIFFS/APPELLANTS.

Douglas Richard Elliott, Jamie H. Baglio, H. Philip Radecker, Jr., McGready Lewis Richeson, Milele N. St. Julien, Francis Xavier deBlanc, III, PUGH ACCARO HAAS RADECKER & CAREY, LLC, 1100 Poydras Street, Suite 3300, New Orleans, LA 70163, COUNSEL FOR APPELLEE.

Lawrence G. Pugh, III, PUGH ACCARDO HAAS, RADECKER & CAREY, LLC, 1100 Poydras Street, Suite 3600, New Orleans, LA 70163, John J. Hainkel, III, Kelly L. Long, Angela M. Bowlin, Kelsey A. Eagan, Magali A. Puente-Martin, FRILOT L.L.C., 1100 Poydras Street, Suite 3700, New Orleans, LA 70163, Mary S. Johnson, Kimberly Wicker Jones, JOHNSON GRAY MCNAMARA, LLC, 21357 Marion Lane, Suite 300, Mandeville, LA 70471, S. Suzanne Mahoney, Nichole M. Gray, JOHNSON GRAY McNAMARA, [*593] LLC, 650 Poydras Street, Suite 1201, New Orleans, LA 70130, Michael R. Denton, BERNARD, CASSISA, ELLIOTT & DAVIS, 3838 N. Causeway Blvd., Suite 3050, Metairie, LA 70002, Timothy William Hassinger, GALLOWAY JOHNSON TOMPKINS BURR & SMITH, 701 Poydras Street, 40th Floor, New Orleans, LA 70139, Glen E. Mercer, Kourtney T. French, SALLEY, HITE, MERCER & RESOR, LLC, 365 Canal Street, Suite 1710, New Orleans, LA 70130, Kelly B. Becker, Kathryn Z. Gonski, Mark R. Deethardt, LISKOW & LEWIS, 701 Poydras Street, Suite 5000, New Orleans, LA 70139-5099, COUNSEL FOR DEFENDANTS/APPELLEES.

(Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Pro Tempore James F. McKay, III). Chief Judge Terri F. Love.

This is an asbestos action. Plaintiffs/Appellants, Paula Everett and William Everett, Jr., individually and as representatives of the decedent, Emily Everett ("Plaintiffs"), lodged an appeal from two May 4, 2022 judgments of the trial court. The first judgment granted summary judgment in favor of Defendants/Appellees, Union Carbide Corporation ("Union Carbide"), Foster Wheeler LLC, and Riley Power, Inc. ("Riley Power"), dismissing all claims of Plaintiffs. The second judgment granted summary judgment and dismissed all of Plaintiffs' claims against defendants, Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k//a Peter Kiewit Sons Co.

On appeal, Plaintiffs and Riley Power filed a Joint Motion to Dismiss Appeal as to Riley Power on September 13, 2022. For the reasons that follow, we grant the motion to dismiss Plaintiffs' appeal as to Riley Power, reserving unto Plaintiffs the right to proceed with their appeals as to any other parties not dismissed, including Foster Wheeler, LLC ("Foster Wheeler') and Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k/a Peter Kiewit Sons ("Peter Kiewit").[1]

FACTUAL AND PROCEDURAL HISTORY

The decedent, Emily Everett, was the spouse of a worker who was exposed to asbestos. Decades later, Mrs. Everett contracted malignant mesothelioma and filed suit against numerous parties, including Union Carbide, Riley Power, Foster Wheeler, and Level 3 Holdings. Mrs. Everett died a year after her diagnosis. Her children, Paula Everett and William Everett, Jr., were substituted as party plaintiffs.

Defendants, Union Carbide, Foster Wheeler, and Riley Power, moved for summary judgment, seeking relief on the grounds that Plaintiffs lacked evidence of causation to show that Mrs. Everett's mesothelioma was related to their specific products. On the day before the summary judgment hearing, Peter Kiewit moved to join Union Carbide's motion. At the summary judgment hearing, the trial court determined that Plaintiffs had failed to present sufficient evidence of causation to defeat summary judgment and granted the defendants' motion for summary judgment. Over Plaintiffs' objections, the trial court also signed a judgment granting Peter Kiewit's motion to join and dismissed Peter Kiewit with prejudice.

[*594] Plaintiffs' motion for a new trial was denied by the trial court. Plaintiffs timely filed an appeal of the judgments. DISCUSSION

Following the lodging of the record on appeal, Plaintiffs and Riley Power filed a Joint Motion to Dismiss Appeal as to Riley Power. Considering the joint motion to dismiss appeal, we grant the motion and order the dismissal of Plaintiffs' appeal as to Riley Power. We further find that Plaintiffs' appeals with respect to any other party and/or any other Docket Number (including as to Foster Wheeler and Peter Kiewit in Docket No. 2022-CA-0539, Docket No. 2022-CA-0540, and Docket No. 2022-CA-0541) are not impacted by the joint motion to dismiss Riley Power and order that the appeals not specifically dismissed remain pending.

APPEAL DISMISSED AS TO RILEY POWER, INC.

[1] Plaintiffs and Union Carbide also filed a Joint Motion to Dismiss Appeal as to Union Carbide. This Court granted the motion and ordered Plaintiffs' appeal dismissed as to Union Carbide. See Everett v. Air Products and Chemicals, Inc. etal (La. App. 4 Cir. 9/8/2022).

Sources

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