Gomez v. Aardvark Contractors, Inc. (2018)

Our plain-English summary of Gomez v. Aardvark Contractors, Inc. (U.S. District Court, Eastern District of Louisiana, November 1, 2018).

Carey Gomez sued Aardvark Contractors and many other defendants in Louisiana, alleging asbestos exposure caused his pleural mesothelioma. He said he was first exposed through his father's work at Avondale Shipyards in the 1960s. He was later exposed as a plumber for Aardvark from 1988 to 2011, including work at Nicholls State University, where he allegedly worked on materials believed to contain asbestos. Nicholls State moved to dismiss for failure to state a claim and insufficient service. The court held that pleading on information and belief was acceptable, because the makeup of the pipe insulation was within Nicholls State's control. It also held that the university, as premises owner, owed a duty to a contractor's employee and that a strict liability claim was plausibly alleged. It dismissed the executive officer liability, products liability and punitive damages claims, which no one opposed or which lacked a basis. The court ordered that the Office of Risk Management be served within 60 days.

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: November 1, 2018
• Docket: Civil Action No. 18-4186
• Stage: Motion to dismiss
• State: Louisiana

Outcome. The court granted Nicholls State's motion to dismiss the executive officer liability, products liability and punitive damages claims (the last two unopposed), denied it as to Gomez's negligence and strict liability claims, and ordered service on the Office of Risk Management within 60 days.

What the court held. A plaintiff may plead asbestos exposure on information and belief when the facts, such as the composition of pipe insulation, are within the defendant's control. A premises owner owes a duty of reasonable care to an independent contractor's employees, and a strict liability claim is plausibly pleaded when it alleges custody of defective asbestos products that caused the plaintiff's disease.

Issues decided: Premises Owner Liability, Trial Procedure and Discovery, Product Identification, Punitive Damages.

The people and their exposure

• Carey Gomez: pleural mesothelioma

Who	Work	Where	When	Products
Carey Gomez	son of an Avondale Shipyards employee (shipyards and maritime work); dust brought home	Avondale Shipyards, Louisiana	1960s
Carey Gomez	plumber (construction)	Nicholls State University, Thibodaux, Louisiana	1988-2011	pipe and block insulation

The defendants

• Board of Supervisors for the University of Louisiana System, through Nicholls State University at Thibodaux (premises owner)
• Huntington Ingalls Incorporated (f/k/a Avondale Shipyards, Inc.)
• Aardvark Contractors, Inc. (employer)

Other decisions in this case

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

• Gomez v. Aardvark Contractors, Inc. (December 13, 2019). The court granted Nicholls State's motion to dismiss the Jefferson Parish School Board's cross-claims on Eleventh Amendment immunity grounds and denied the motion as moot as to Huntington Ingalls, which had already dropped its cross-claims.
• Gomez v. Aardvark Contractors, Inc. (January 6, 2020). The court granted Nicholls State's unopposed motion to dismiss plaintiff Carey Gomez's claims against it on Eleventh Amendment immunity grounds.
• Gomez v. Aardvark Contractors, Inc. (January 22, 2020). The court granted Viking Pump's unopposed motion for summary judgment and dismissed, without prejudice, plaintiff Cary Gomez's claims and the cross-claims of Huntington Ingalls and Jefferson Parish School Board against Viking Pump.
• Gomez v. Aardvark Contractors, Inc. (January 22, 2020). The court granted plaintiff Cary Gomez's motion to extend the deadline for his industrial hygienist expert report to February 7, 2020, and gave the defendants until March 6, 2020 to submit opposing expert reports.
• Gomez v. Aardvark Contractors, Inc. (May 13, 2020). The district court denied the Jefferson Parish School Board's motion for partial summary judgment seeking an automatic virile share credit for the Johns-Manville Trust, and denied Huntington Ingalls' withdrawn part of the motion as moot, so the plaintiffs prevailed on the motion.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Savoie v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2016). The Fifth Circuit vacated the district court's order remanding the case to state court, holding the shipyard showed a causal nexus for the survival strict liability claims, and remanded for the district court to decide whether the shipyard has a colorable federal defense; the Savoie family lost on the remand ruling.
• Romano v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, 4th Circuit, 2017). The court affirmed the jury's liability and causation findings against Union Carbide and refused it a credit for Johns-Manville's fault, but reversed the damages ruling and raised the general damages award for the Romanos from $500,000 to $1,500,000.
• Thomas v. AP Green Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2006). The appeals court amended the judgment to cut the surviving spouse's wrongful death award against Entergy Louisiana from $2.75 million to $1 million, and otherwise affirmed the jury verdict for the plaintiffs, including the directed verdict for McCarty and the jury's finding of no fault by Johns Manville.

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.

CAREY GOMEZ,

v.

AARDVARK CONTRACTORS, INC. ET AL., SECTION "L" (4),

Civil Action No. 18-4186.

November 1, 2018.

United States District Court, E.D. Louisiana.

Cary Gomez, Plaintiff, represented by Damon R. Pourciau, Ardoin Law Firm & Scott Michael Galante, Galante & Bivalacqua LLC.

Anco Insulations Inc, Defendant, represented by Jamie Hebert Baglio, Pugh, Accardo, LLC, Douglas R. Elliott, Pugh, Accardo, LLC & Margaret M. Joffe, Pugh, Accardo, LLC.

Bayer CropScience, Inc., as successor to Rhone Poulene AG Company, Defendant, represented by McGready Lewis Richeson, Pugh, Accardo, Haas, Radecker & Carey, Francis Xavier deBlanc, III, Pugh, Accardo, Haas, Radecker & Carey, Kathleen Erin Jordan, Pugh, Accardo, Haas, Radecker & Carey, Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey & Perrey S. Lee, Kuchler Polk Weiner, LLC.

Bexar Canyon Management, Inc., formerly known as H.B. Zachry Company, Defendant, represented by David A. Barfield, Pettis, Barfield & Hester P.A.

Burmaster Land & Development Co., LLC, formerly known as E.F. Burmaster & Sons formerly known as Burmaster Land & Development Company, Inc., Defendant, represented by Kevin John Webb, Litchfield Cavo, LLP.

CBS Corporation, A Delaware Corporation, A successor by merger to CBS Corporation, a Pennsylvania Corporation, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.

Certain-Teed Corporation, formerly known as Certain-Teed Products Corporation, Atwood & Morrill & Atwood & Morrill, incorrectly named Weir Valves and Controls, USA, Inc., f/k/a Atwood & Morrill, Defendants, represented by Jennifer E. Adams, Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch Kerrigan LLP. Crane Company & Crescent Materials Service Inc, Defendants, represented by Lawrence G. Pugh, III, Pugh, Accardo, LLC, Donna M. Young, Pugh, Accardo, LLC, Jacqueline Romero, Pugh, Accardo, LLC & Shelley L. Thompson, Pugh, Accardo, LLC.

FMC Corporation, Individually and as successor in interest to Crosby Valve, Inc. and Peerless Pump Corporation, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Dogan & Wilkinson, PLLC, James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Lacey Taylor McCoy, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C.

Foster Wheeler Corporation & General Electric Company, Defendants, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Lacey Taylor McCoy, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C. Goulds Pumps LLC, Defendant, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius & Mitchell F. Tedesco, Morgan, Lewis & Bockius.

Grefco, Inc. & Viking Pump, Inc., incorrectly named as IDEX Corporation f/k/a Viking Pump, Inc., Defendants, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC & James Matthew Matherne, Courington, Kiefer & Sommers, LLC.

Huntington Ingalls Incorporated, formerly known as Northrop Grumman Shipbuilding, Inc. formerly known as Northrop Grumman Ship Systems, Inc. formerly known as Avondale Industries, Inc. formerly known as Avondale Shipyards, Inc., Defendant, represented by Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson, Irwin Fritchie Urquhart & Moore, LLC, Alison A. Spindler, Irwin Fritchie Urquhart & Moore, LLC, Christopher Thomas Whelen, Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC.

IDEX Corporation, formerly known as Viking Pump, Inc., Defendant, represented by James Matthew Matherne, Courington, Kiefer & Sommers, LLC.

Ingersoll-Rand Company, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Dogan & Wilkinson, PLLC, James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Lacey Taylor McCoy, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.

International Paper Company, formerly known as Champion International Corporation formerly known as U. S. Plywood Corporation, Defendant, represented by Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP, Jason K. Elam, Forman, Watkins & Krutz LLP, Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP & Thomas Peyton Smith, Forman, Watkins & Krutz LLP.

Jefferson Parish School Board, Defendant, represented by E. John Litchfield, Berrigan & Litchfield, LLC & Kathy L. Torregano, Berrigan & Litchfield, LLC.

John Crane Inc, Defendant, represented by Kenan Slade Rand, Jr., Plauche, Maselli, Parkerson, LLP, Elizabeth Attie Babin Carville, Plauche, Maselli, Parkerson, LLP, Katelyn W. Harrell, Plauche, Maselli, Parkerson, LLP, Lauren B. Dietzen, Plauche, Maselli, Parkerson, LLP & Scott H. Mason, Plauche, Maselli, Parkerson, LLP.

Metropolitan Life Insurance Company, Defendant, represented by Jay Morton Jalenak, Jr., Kean Miller & Patrick Dale Roquemore, Kean Miller.

Owens-Illinois Inc, doing business as O-I, Defendant, represented by Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP & Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP. McCarty Corporation, Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon, Peragine, Smith & Redfearn, LLP, Janice M. Culotta, Simon, Peragine, Smith and Redfearn, LLP, Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP & Nicole M. Loup, Simon, Peragine, Smith & Redfearn, LLP. Warren Pumps, LLC, Defendant, represented by Joseph Henry Hart, IV, Pugh, Accardo, LLC, Daniel E. Oser, Pugh, Accardo, LLC & Thomas A. Porteous, Pugh, Accardo, LLC.

World Trade Center of New Orleans, Inc., Defendant, represented by Timothy S. Madden, King, Krebs & Jurgens, PLLC & Nicole M. Babb, King, Krebs & Jurgens, PLLC.

A.W. Chesterton Company, Defendant, represented by Glenn Lyle Maximilian Swetman, MG+M The Law Firm, Bradley Adam Hays, MG+M The Law Firm, Brandie Mendoza Thibodeaux, MG + M The Law Firm & Helen Meredith Buckley, MGM The Law Firm.

Board of Supervisors for the University of Louisiana System, through Nicholls State University at Thibodaux, incorrectly named University of Louisiana System Board of Supervisors through Nicholls State University, Defendant, represented by Erin Casey Hangartner, Hangartner, Rydberg, Terrell & Hart, LLC, Alan Dean Weinberger, Hangartner, Rydberg, Terrell & Hart, LLC & Mitchell P. Hasenkampf, Hangartner, Rydberg, Terrell & Hart, LLC.

Zurich American Insurance Company, as successor by merger to Maryland Casualty Company and incorrectly sued as Maryland Casualty Company, Defendant, represented by Edward T. Hayes, Leake & Andersson, LLP, Lee M. LeBouef, Leake & Andersson, LLP & Marc E. Devenport, Leake & Andersson, LLP.

John Crane Inc, Third Party Plaintiff, represented by Kenan Slade Rand, Jr., Plauche, Maselli, Parkerson, LLP, Elizabeth Attie Babin Carville, Plauche, Maselli, Parkerson, LLP, Katelyn W. Harrell, Plauche, Maselli, Parkerson, LLP, Lauren B.

Dietzen, Plauche, Maselli, Parkerson, LLP & Scott H. Mason, Plauche, Maselli, Parkerson, LLP.

Huntington Ingalls Incorporated, Third Party Plaintiff, represented by Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson, Irwin Fritchie Urquhart & Moore, LLC, Alison A. Spindler, Irwin Fritchie Urquhart & Moore, LLC, Christopher Thomas Whelen, Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC.

Eagle, Inc., formerly known as Eagle Asbestos & Packing Company, Third Party Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon, Peragine, Smith & Redfearn, LLP, Janice M. Culotta, Simon, Peragine, Smith and Redfearn, LLP, Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP & Nicole M. Loup, Simon, Peragine, Smith & Redfearn, LLP.

Uniroyal Holding, Inc., Third Party Defendant, represented by Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP & Amy Louise Maccherone, Forman, Watkins & Krutz LLP.

Huntington Ingalls Incorporated, Cross Claimant, represented by Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson, Irwin Fritchie Urquhart & Moore, LLC, Alison A. Spindler, Irwin Fritchie Urquhart & Moore, LLC, Christopher Thomas Whelen, Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC.

FMC Corporation, Ingersoll Rand Company & FMC Corporation, Individually and as successor in interest to Crosby Valve, Inc. and Peerless Pump Corporation, Cross Defendants, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Dogan & Wilkinson, PLLC, James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Lacey Taylor McCoy, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C. Foster Wheeler Corporation & General Electric Company, Cross Defendants, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C., Lacey Taylor McCoy, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C. Goulds Pumps LLC, Cross Defendant, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius & Mitchell F. Tedesco, Morgan, Lewis & Bockius.

Hopeman Brothers, Inc., Cross Defendant, represented by Brittney Bullock Ankersen, Courington, Kiefer & Sommers, LLC, Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

Grefco, Inc. & Viking Pump, Inc., incorrectly named as IDEX Corporation f/k/a Viking Pump, Inc., Cross Defendants, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC & James Matthew Matherne, Courington, Kiefer & Sommers, LLC.

Jefferson Parish School Board, Cross Defendant, represented by E. John Litchfield, Berrigan & Litchfield, LLC & Kathy L. Torregano, Berrigan & Litchfield, LLC.

Owens Illinois, Inc & Owens-Illinois Inc, Cross Defendants, represented by Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP & Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP. Taylor Seidenbach, Inc., Cross Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP.

World Trade Center of New Orleans, Inc., Cross Defendant, represented by Timothy S. Madden, King, Krebs & Jurgens, PLLC & Nicole M. Babb, King, Krebs & Jurgens, PLLC.

Bexar Canyon Management, Inc., Cross Defendant, represented by David A. Barfield, Pettis, Barfield & Hester P.A.

Zurich American Insurance Company, as Successor in Merger to Maryland Casualty Insurance Company, Cross Defendant, represented by Edward T. Hayes, Leake & Andersson, LLP, Lee M. LeBouef, Leake & Andersson, LLP & Marc E. Devenport, Leake & Andersson, LLP.

Jefferson Parish School Board, Cross Claimant, represented by E. John Litchfield, Berrigan & Litchfield, LLC & Kathy L. Torregano, Berrigan & Litchfield, LLC.

A.W. Chesterton Company, Cross Defendant, represented by Glenn Lyle Maximilian Swetman, MG+M The Law Firm, Bradley Adam Hays, MG+M The Law Firm, Brandie Mendoza Thibodeaux, MG + M The Law Firm & Helen Meredith Buckley, MGM The Law Firm.

Anco Insulations Inc, Cross Defendant, represented by Jamie Hebert Baglio, Pugh, Accardo, LLC, Douglas R. Elliott, Pugh, Accardo, LLC & Margaret M. Joffe, Pugh, Accardo, LLC.

Bayer CropScience, Inc., as successor to Rhone Poulene AG Company, Cross Defendant, represented by McGready Lewis Richeson, Pugh, Accardo, Haas, Radecker & Carey, Francis Xavier deBlanc, III, Pugh, Accardo, Haas, Radecker & Carey, Kathleen Erin Jordan, Pugh, Accardo, Haas, Radecker & Carey, Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey & Perrey S. Lee, Kuchler Polk Weiner, LLC.

Board of Supervisors for the University of Louisiana System, through Nicholls State University at Thibodaux, incorrectly named University of Louisiana System Board of Supervisors through Nicholls State University, Cross Defendant, represented by Erin Casey Hangartner, Hangartner, Rydberg, Terrell & Hart, LLC, Alan Dean Weinberger, Hangartner, Rydberg, Terrell & Hart, LLC & Mitchell P. Hasenkampf, Hangartner, Rydberg, Terrell & Hart, LLC.

Burmaster Land & Development Co., LLC, Cross Defendant, represented by Kevin John Webb, Litchfield Cavo, LLP. CBS Corporation, A Delaware Corporation, A successor by merger to CBS Corporation, a Pennsylvania Corporation, Cross Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.

Certain-Teed Corporation, Cross Defendant, represented by Jennifer E. Adams, Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch Kerrigan LLP.

Crane Company, Cross Defendant, represented by Lawrence G. Pugh, III, Pugh, Accardo, LLC, Donna M. Young, Pugh, Accardo, LLC, Jacqueline Romero, Pugh, Accardo, LLC & Shelley L. Thompson, Pugh, Accardo, LLC.

Crescent Materials Service Inc, Cross Defendant, represented by Lawrence G. Pugh, III, Pugh, Accardo, LLC & Donna M. Young, Pugh, Accardo, LLC.

Huntington Ingalls Incorporated, Cross Defendant, represented by Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson, Irwin Fritchie Urquhart & Moore, LLC, Alison A. Spindler, Irwin Fritchie Urquhart & Moore, LLC, Christopher Thomas Whelen, Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC.

IDEX Corporation, Cross Defendant, represented by James Matthew Matherne, Courington, Kiefer & Sommers, LLC. Ingersoll-Rand Company, Cross Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Dogan & Wilkinson, PLLC, James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Lacey Taylor McCoy, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.

International Paper Company, Cross Defendant, represented by Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP, Jason K. Elam, Forman, Watkins & Krutz LLP, Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP & Thomas Peyton Smith, Forman, Watkins & Krutz LLP.

John Crane Inc, Cross Defendant, represented by Kenan Slade Rand, Jr., Plauche, Maselli, Parkerson, LLP, Elizabeth Attie Babin Carville, Plauche, Maselli, Parkerson, LLP, Katelyn W. Harrell, Plauche, Maselli, Parkerson, LLP, Lauren B. Dietzen, Plauche, Maselli, Parkerson, LLP & Scott H. Mason, Plauche, Maselli, Parkerson, LLP.

Liberty Mutual Group, Inc., as the Insurer of Wayne Manufacturing Co., Cross Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP, Janice M. Culotta, Simon, Peragine, Smith and Redfearn, LLP & Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP.

McCarty Corporation, Cross Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon, Peragine, Smith & Redfearn, LLP, Janice M. Culotta, Simon, Peragine, Smith and Redfearn, LLP, Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP & Nicole M. Loup, Simon, Peragine, Smith & Redfearn, LLP. Metropolitan Life Insurance Company, Cross Defendant, represented by Jay Morton Jalenak, Jr., Kean Miller & Patrick Dale Roquemore, Kean Miller.

Warren Pumps, LLC, Cross Defendant, represented by Joseph Henry Hart, IV, Pugh, Accardo, LLC, Daniel E. Oser, Pugh, Accardo, LLC, Kathleen Erin Jordan, Pugh, Accardo, Haas, Radecker & Carey & Thomas A. Porteous, Pugh, Accardo, LLC. Hopeman Brothers, Inc., Cross Claimant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Brittney Bullock Ankersen, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court is a motion to dismiss for failure to state a claim and insufficient service of process filed by Defendant Board of Supervisors for the University of Louisiana System through Nicholls State University at Thibodaux ("Nicholls State"). R. Doc. 38. Defendant Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., and f/k/a Avondale Shipyards, Inc.) (hereinafter "Avondale") opposes the motion. R. Doc. 112. Plaintiff does not oppose.

I. BACKGROUND

Plaintiff Carey Gomez filed this suit on March 7, 2018, alleging severe asbestos exposure from a number of sources throughout his life. R. Doc. 1-2. Plaintiff claims he was exposed to asbestos first as a consequence of his father's employment at Avondale Shipyards in the 1960s, and later as a result of Plaintiff's work as a plumber for Aardvark Contractors, Inc. ("Aardvark") from 1988-2011. Plaintiff worked for Aardvark at a variety of locations, including Nicholls State University, where he allegedly "worked on materials believed to be asbestos or asbestos containing." Id. As a result of his repeated exposure to asbestos, Plaintiff was allegedly diagnosed with malignant pleural mesothelioma. Defendant Avondale filed cross-claims against all other named defendants, including Nicholls State, adopting Plaintiff's allegations in the petition. R. Doc. 17-1 at 281-2.

Plaintiff alleges that Nicholls State "designed, evaluated, manufactured, packaged, furnished, stored, utilized, handled, transported, installed, distributed, sold and/or supplied asbestos-containing products." R. Doc. 1-2 at 8. Plaintiff seeks to hold Nicholls State and its executive officers liable for various acts of negligence, including the failure to maintain the premises in a safe condition and the failure to warn of a hazardous condition. The petition also includes allegations of strict liability and products liability against Nicholls State, and Plaintiff seeks to recover punitive damages. II. PRESENT MOTION

Nicholls State moves for dismissal under Rule 12(b)(6). Specifically, Nicholls State argues (1) the petition fails to plausibly allege exposure to asbestos at Nicholls State University; (2) it cannot be subject to products liability claims because it is not a manufacturer; (3) it is not Plaintiff's employer and therefore is not subject to executive officer liability claims; (4) Plaintiff fails to plausibly allege a strict liability claim; (5) Plaintiff fails to plausibly allege negligence claims against Nicholls State; and (6) punitive damages are unavailable as a matter of law. R. Doc. 38. Avondale opposes arguments (1), (4), and (5). R. Doc. 112 at 1.

III. LAW & ANALYSIS

The Federal Rules of Civil Procedure permit a defendant to seek a dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This standard is met when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard requires more than a sheer possibility that the defendant acted unlawfully, and Plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The district court must construe the facts in the light most favorable to the nonmoving party and must accept as true all factual allegations contained in the complaint. " [L]egal conclusion[s] couched as. . . factual allegation[s]" are not given such deference — a plaintiff must provide the grounds of his entitlement to relief beyond mere "labels and conclusions." Id.

a. Asbestos Exposure

To prevail in an asbestos case under Louisiana law, a plaintiff "must prove by a preponderance of the evidence that: (1) his exposure to the defendant's asbestos product was significant; and (2) that this exposure caused or was a substantial factor in bringing about his mesothelioma." Romano v. Metro Life Ins. Co., 2016-0954 (La. App. 4 Cir. 5/24/17), 221 So.3d 176, 182. Nicholls State contends that Plaintiff's allegation that he "worked on materials believed to be asbestos or asbestos containing at Nicholls State University" fails to state a claim because it does not "raise a right to relief above the speculative level" as required by Iqbal and Twombly. R. Doc. 38-1 at 5.

Plaintiff alleges that as a plumber for Aardvark he worked with and around asbestos and asbestos-containing materials at a number of jobsites, including Nicholls State University. Plaintiff claims he was exposed to and inhaled asbestos particles and dust at these jobsites, and that this cumulative exposure caused his mesothelioma. These allegations, taken as true for the purposes of a 12(b)(6) motion, state a claim against Nicholls State under Louisiana law.

This is so even though Plaintiff alleges that he "worked on materials believed to be asbestos or asbestos containing." Iqbal and Twombly do not prevent a plaintiff from pleading upon information and belief, "so long as the allegations in the pleading raise a facially plausible claim." Barnett v. Patwardhan, No. 12-1576, 2013 WL 1290201, at [*2] (W.D. La. Mar. 28, 2013). Moreover, the Fifth Circuit has noted that information and belief pleading is acceptable "where the facts are peculiarly within the possession and control of defendant." Innova Hosp. San Antonio, Ltd. P'ship v. Blue Cross & Blue Shield of Georgia, Inc., 892 F.3d 719, 730 (5th Cir. 2018) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)). Because the facts about composition of the insulation on the pipes at Nicholls State University are within the control of Nicholls State and likely cannot be known to Plaintiff without discovery, his information and belief pleading in this instance is permissible. b. Negligence

Next, Nicholls State seeks to dismiss Plaintiff's negligence claims because it owed no duty to Plaintiff. Louisiana law is clear that Nicholls State, as the premises owner, owed a duty to Plaintiff. "In general, the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. Mundy v. Dep't of Health & Human Res., 620 So.2d 811, 813 (La. 1993). "This duty extends to employees of independent contractors for whose benefit the owner must take reasonable steps to ensure a safe working environment." Thomas v. A.P. Green Indus., Inc., 2005-1064 (La. App. 4 Cir. 5/31/06), 933 So.2d 843, 852. See also Terese v. 1500 Lorene LLC, No. 09-4342, 2010 WL 4702369, at [*3] (E.D. La. Nov. 12, 2010); Smith v. Union Carbide Corp., No. 13-6323, 2014 WL 4930457, at [*4] (E.D. La. Oct. 1, 2014).

Nicholls State argues that it did not have a duty to protect against a hazard created by an independent contractor. This assertion asks the Court to first answer a preliminary question — whether the presence of the asbestos insulation was due to actions attributable to Nicholls State or to an independent contractor. Since the petition can be construed to allege that the presence of asbestos insulation was due to Nicholls State's own actions, and not those of an independent contractor, Nicholls State's no-duty argument must also be rejected.

c. Strict Liability

Under pre-1996 Louisiana law, a plaintiff asserting a strict liability action must prove that the asbestos-containing products (1) were in the "care, custody, and control" of the defendant; (2) contained a "vice, ruin, or defect that presented an unreasonable risk of harm;" and (3) "that the vice, ruin, or defect was the cause-in-fact of the plaintiff's damages." Savoie v. Hunnington Ingalls, Inc., 817 F.3d 457, 464 (5th Cir. 2016). "[E]very non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma." Landry v. Avondale Industries, Inc., 2012-0950, p. 6 (La. App. 4 Cir. 3/6/13), 111 So.3d 508, 511.

The petition plausibly alleges all three elements. First, it states that Nicholls State "furnished, stored, handled, [and] transported" asbestos-containing products on its premises. Second, the "vice or defect" of the asbestos products that caused the unreasonable risk of harm is its alleged cancer-causing characteristics. Lastly, the petition states that Plaintiff's work on those products exposed him to asbestos and caused his mesothelioma. The petition thus plausibly alleges the elements of a strict liability claim.

d. Products Liability

Plaintiff alleges that Nicholls State and other "manufacturers" "designed, manufactured, fabricated, assembled, supplied, sold, marketed, warranted and/or advertised asbestos and/or asbestos containing products or material." R. Doc. 1-2 at 13. Nicholls State argues that it is not subject to products liability claims because it is not a "manufacturer." Neither Plaintiff nor Avondale oppose dismissal of this claim.

e. Executive Officer Liability

Nicholls State argues that it cannot be subject to executive officer liability because it is not Plaintiff's employer. Neither Avondale nor Plaintiff oppose dismissal of this claim. Louisiana's executive officer liability doctrine is not limited to the employment context — it applies more broadly to principal-agent relationships. See Canter v. Koehring Co., 283 So.2d 716, 718 (La. 1973). However, Canter and its progeny apply to individual employees or agents. Since there is no individual named as a defendant who is alleged to be an "executive officer" of Nicholls State, Plaintiff has failed to state a claim of executive officer liability.

f. Punitive Damages

Plaintiff seeks punitive damages from Nicholls State and other named Defendants "to punish and deter Defendants. . . from like conduct in the future." Punitive damages were formerly available upon proof that "plaintiff's injuries were caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances." La. Civ. Code art. 2315.3. That article was repealed in 1996. Neither Plaintiff nor Avondale oppose dismissal of Plaintiff's punitive damages claims for post-1996 exposure.

g. Insufficient Service of Process

Finally, Nicholls State asserts that service was insufficient. As an arm of the state, La. R.S. 39:1538 requires that service be made upon three parties: "the head of the department concerned, the office of risk management, and the attorney general." See Kooros v. Nicholls State Univ., 379 F. App'x 377, 379 (5th Cir. 2010). Here, Plaintiff's complaint was served upon the Board and the attorney general, and not the office of risk management. But since La. R.S. 39:1538 does not provide for dismissal or require that service be made within a certain amount of time, any insufficiency "can be cured by subsequent

service on those entities not previously served." Whitley v. State ex rel. Bd. Of Sup'rs of Louisiana State Univ. Agr. Mech. Coll., 2011-0400 (La. 7/1/11), 66 So.3d 470, 482.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendant Nicholls State's Motion to Dismiss (R. Doc. 38) is hereby GRANTED IN PART and DENIED IN PART. Defendant's motion is GRANTED as to Plaintiff's claims of executive officer liability, products liability, and punitive damages, and is DENIED as to Plaintiff's claims of negligence and strict liability. IT IS FURTHER ORDERED that service shall be effected upon the Office of Risk Management in 60 days.

Sources

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