Gooding v. Liberty Mutual Ins. Co. (E.D. La., Sept. 28, 2022)

Our plain-English summary of Gooding v. Liberty Mutual Ins. Co. (U.S. District Court, Eastern District of Louisiana, September 28, 2022).

James Grant Gooding was diagnosed with malignant pleural mesothelioma in January 2020 and died in March 2020. He had served as a Coast Guard marine inspector from 1967 to 1970, mostly at Avondale Shipyards, inspecting vessels' boilers. From 1970 until about 2005 he worked as a field surveyor for the American Bureau of Shipping, inspecting machinery, boilers and piping at many shipyards. He testified that he was frequently exposed to asbestos in these jobs. His heirs, Martha Gooding, Helen Leupold and Caroline Pendergast, continued the suit against premises owners, asbestos suppliers and manufacturers, and insurers; the case was removed to federal court under the federal officer removal statute. Seven defendants moved for summary judgment. The court stated the Louisiana rule that a plaintiff must show significant exposure to the defendant's asbestos product and that the exposure was a substantial factor in causing the mesothelioma. It found that factual issues remained in each instance, said a jury should decide whether each defendant's conduct was a substantial factor, and denied all seven motions.

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: September 28, 2022
• Docket: Civil Action No. 20-1133
• Stage: Summary judgment
• State: Louisiana

Outcome. The district court denied seven defendants' motions for summary judgment (Bayer CropScience, Swiftships, Foster Wheeler, General Electric, ViacomCBS, Bollinger Shipyards Lockport, Boland Marine), leaving the plaintiffs' claims for trial.

What the court held. Under Louisiana law, a plaintiff must show significant exposure to the defendant's asbestos product and that the exposure was a substantial factor in causing the mesothelioma; substantial factor is a jury question unless reasonable people could not differ.

Issues decided: Causation, Wrongful Death and Survival, Product Identification.

The people and their exposure

• James Grant Gooding: pleural mesothelioma; died

Who	Work	Where	When	Products
James Grant Gooding	Marine Inspector (Coast Guard officer) (shipyards and maritime work); military service	Avondale Shipyards, Louisiana	1967-1970
James Grant Gooding	field surveyor for American Bureau of Shipping (shipyards and maritime work)	scores of shipyards	1970-2005

The defendants

• Bayer CropScience (manufacturer)
• Swiftships, Inc. (premises owner)
• Foster Wheeler, LLC (manufacturer)
• General Electric (manufacturer)
• ViacomCBS Inc. (manufacturer)
• Bollinger Shipyards Lockport, LLC (premises owner)
• Boland Marine and Manufacturing Company, LLC (premises owner)
• Huntington Ingalls Incorporated (Avondale) (premises owner)

Other decisions in this case

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

• Gooding v. Liberty Mutual Ins. Co. (August 3, 2022). The court granted Travelers Indemnity Company's summary judgment motion and dismissed with prejudice the plaintiffs' direct-action claims against it, because there was no evidence the decedent was at Swiftships during Travelers' coverage period.
• Gooding v. Liberty Mutual Ins. Co. (August 17, 2022). The district court denied Buck Kreihs's motion for summary judgment against the plaintiffs' claims and Avondale's and Bossier's crossclaims, so the claims against Buck Kreihs go forward.
• Gooding v. Liberty Mutual Insurance Company (March 3, 2023). The court denied Swiftships, Inc.'s motion to reconsider its earlier denial of summary judgment, so the plaintiffs (Decedent's heirs) prevailed on the motion and the claims against Swiftships remain for trial.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Borel v. Fibreboard Paper Products Corporation (U.S. Court of Appeals, Fifth Circuit, 1973). The Fifth Circuit affirmed the jury verdict and judgment for Borel's widow against six asbestos insulation manufacturers, including Fibreboard, Johns-Manville, Pittsburgh Corning, Philip Carey, Armstrong Cork and Ruberoid, and denied rehearing.
• 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.
• Thibodeaux v. Asbestos Corp. Ltd. (Louisiana Court of Appeals, 4th Circuit, 2008). The Louisiana Court of Appeal affirmed the summary judgment that dismissed Eagle Asbestos & Packing Company and its insurer OneBeacon, so the Thibodeauxs lost their claims against those two defendants.
• Abadie v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, 5th Circuit, 2001). The appeals court reversed the trial judge's JNOVs that had raised the seven plaintiffs' damage awards and reinstated the jury's awards, affirmed liability of Asbestos Corporation Limited and four Avondale safety officers (O'Donnell, Kennedy, Chantrey, Territo; not Chantrey as to Badeaux), reversed liability of two other officers (Kelmell, Roberts), and recalculated each judgment by virile shares, including the Johns-Manville trust and four of the settling manufacturers.

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.

GOODING,

v.

LIBERTY MUTUAL INS. CO. ET AL, SECTION "L" (3).

Civil Action No. 20-1133.

September 28, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

ELDON E. FALLON, District Judge.

Before the Court are multiple motions for summary judgment filed by Defendants and Cross-Defendants in this matter: — Bayer CropScience at Rec. Doc. 635

— Swiftships, Inc. at Rec. Doc. 638

— Foster Wheeler, LLC at Rec. Doc. 639

— General Electric at Rec. Doc. 640

— ViacomCBS Inc. at Rec. Doc. 641

— Bollinger Shipyards Lockport, LLC at Rec. Doc. 643

— Boland Marine and Manufacturing Company, LLC at Rec. Doc. 646

Each of these motions is opposed by Plaintiffs Martha Gooding, Helen Leupold, and Caroline Pendergast and/or Cross Claimant Huntington Ingalls Incorporated ("Avondale"). Considering the parties' briefing, the record, and the applicable law, the Court now rules as follows.

I. BACKGROUND

This litigation arises from alleged asbestos exposure sustained by Decedent James Grant Gooding ("Decedent") while he was employed at various shipyards between 1970 and 1979. R. Doc. 580; R. Doc. 1-1. Decedent allegedly contracted malignant pleural mesothelioma and, ultimately, died as a result of his occupational exposure to asbestos.

Plaintiffs in this survival action are Decedent's surviving heirs, Martha Gooding, Helen Leupold, and Caroline Pendergast (collectively, "Plaintiffs"). They assert wrongful death claims against a number of defendants who allegedly are responsible for exposing Decedent to, or failing to protect Decedent from exposure to, asbestos, and therefore are liable for his contracting and dying of malignant pleural mesothelioma. R. Doc. 580.

From June 1967 until January 1970, Mr. Gooding served as an officer in the Coast Guard. R. Doc. Gooding Dep. at Vol. I, pp. 105-09. During his military service, Mr. Gooding worked as a Marine Inspector assisting with vessel construction, maintenance, and repairs. Id. In particular, Decedent inspected vessels' boilers. Gooding Depo. at Vol. III, p.17. Decedent primarily worked at Avondale Shipyards but also spent time at other shipyards in Southeast Louisiana. Id. at Vol. I, pp. 112-14.

Following his honorable discharge from the Coast Guard, Decedent worked from 1970 until his retirement in around 2005 as a field surveyor for American Bureau of Shipping ("ABS"). In this role, Decedent performed vessel inspections, checking ships' machinery, boilers, and piping systems in order to determine whether they met ABS classification requirements. Decedent was assigned to scores of shipyards while employed at ABS. R. Doc. 1-1 at 10-11.

In January 2020, Decedent was diagnosed with mesothelioma. R. Doc. 580 at 2. Later, he was deposed and testified that, while working for the Coast Guard and ABS, he was frequently exposed to asbestos, resulting in his mesothelioma. R. Doc. 1-2; R. Doc. 1-3; R. Doc. 1-4; R. Doc. 1-5.

Subsequently, on March 4, 2020, Decedent filed this matter in the Civil District Court for the Parish of Orleans, naming the following four broad categories of defendants: (1) Premises Defendants, which he alleged were strictly liable and/or negligent;[1] R. Doc. 1-1; 1-10; (2) "Asbestos Suppliers" and (3) "Asbestos Manufacturers," which both allegedly breached warranties and are therefore negligent and/or strictly liable; R. Doc. 1-10 at 11-14;[2] and (4) "Insurance Defendant[s]," who allegedly are liable under the Louisiana Direct Action Statute for their insureds' acts and omissions. Id. at 18.[3] As relevant to the pending motion, Defendants Avondale and Albert L. Bossier, Jr., an alleged executive officer of Avondale, filed crossclaims against other parties, including Buck Kreihs. R. Doc. 3 (Avondale's crossclaims); R. Doc. 29-2 at 30-43 (Bossier, Jr.'s crossclaims). Avondale and Bossier, Jr. reallege Plaintiffs' allegations against Buck Kreihs and argue that, if they are found liable, then they are each entitled to a virile share contribution from Buck Kreihs. Id. at 17-18. On March 22, 2020, Decedent passed away. Plaintiffs, as Decedent's successors, were substituted in his place. They filed this survival action and asserted wrongful death claims. R. Doc. 580 at 2. Certain Defendants removed the matter to this Court on April 7, 2020 pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1).[4]

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). "Rule 56(c) 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 the party will bear the burden of proof at trial." Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.

A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). "[U]nsubstantiated assertions," "conclusory allegations," and merely colorable factual bases are insufficient to defeat a motion for summary judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994); Anderson, 477 U.S. at 249-50. In ruling on a summary judgment motion, a court may not resolve credibility issues or weigh evidence. See Int'l Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). Furthermore, a court must assess the evidence, review the facts and draw any appropriate inferences based on the evidence in the light most favorable to the party opposing summary judgment. See Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).

B. Analysis

Under Louisiana law, a plaintiff in an asbestos case "must prove. . . 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; accord Abadie v. Metro. Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So. 2d 46, 89-90. In asbestos cases, "`exposure' refers to `inhalation of asbestos fibers into the lungs.'" Laurent v. New Orleans City, No. CIV.A. 14-2022, 2015 WL 5254723, at [*2] (E.D. La. Sept. 9, 2015) (quoting Abadie, 784 So.2d at 93). Plaintiffs can demonstrate Decedent's "significant" exposure by showing that he actively worked with asbestos-containing materials. Id. To survive summary judgment, "the plaintiff must submit specific evidence showing potential exposure to the defendant's asbestos-containing products." Id. (citing Thibodeaux v. Asbestos Corp., Ltd.,

20071445, p. 14 (La. App. 4 Cir. 2/20/2008); 976 So.2d 859, 867). Turning to the latter prong of the pertinent test, "[w]hether the defendant's conduct was a substantial factor is a question for the jury, unless the court determines that reasonable men could not differ." Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1094 (5th Cir. 1973).

In the above-referenced motions, the movants have failed to show that there is "no genuine issue as to any material fact," Celotex 477 U.S. at 322, regarding their liability for Grant's occupational exposure to asbestos. In each instance, factual issues abound, and it is appropriate for a jury to determine "[w]hether the defendant's conduct was a substantial factor" in bringing about the Plaintiff's mesothelioma.

III. CONCLUSION

For these reasons,

IT IS ORDERED that the following motions for summary judgment are denied:

— Rec. Doc. 635

— Rec. Doc. 638

— Rec. Doc. 639

— Rec. Doc. 640

— Rec. Doc. 641

— Rec. Doc. 643

— Rec. Doc. 646

[1] Namely: (1) Boland Marine & Industrial, LLC; (2) Marine and Manufacturing Company, LLC; (3) Defendant-Cross Defendant Sank Inc.; (4) Bollinger Shipyards Lockport, LLC; (5) Main Iron Works, LLC; (6) Swiftships Inc., to which Teledyne Inc. and Cross Defendant UNC Capital Corporation are predecessors in interests; (6) Delta Machine & Ironworks LLC; (7) Defendant-Cross Defendant American Marine Corporation; (8) Huntington Ingalls Incorporated, and its former executive officer, Albert Bossier; (9) Tidewater Inc.; (10) Trinity Industries Inc.; and (11) American Marine Corporation; (12) International Paper Company).

[2] Namely: (1) Hopeman Brothers Inc.; (2) Eagle Inc.; (3) McCarty Corporation; (4) General Electric Company; (5) Foster Wheeler LLC; (6) Viacom CBS Inc.; (7) Bayer CropScience; and (8) Taylor-Seidenbach, Inc.; (8) General Electric Company; (9) Foster Wheeler LLC; and (10) Bayer CropScience.

[3] Namely: (1) Liberty Mutual Insurance Company, as the alleged insurer of Hopeman Brothers Inc.; (2) Zurich American Insurance Company, as the alleged insurer of Terminated-Defendant Marquette Insulations, Inc.; (3) Travelers Indemnity Company, as the alleged insurer of Swiftships, Inc.; (4) Certain Underwriters at Lloyds, London; (5) Berkshire Hathaway Specialty Insurance Company, as an alleged insurer of Eagle, Inc.; (6) United States Fidelity and Guaranty Company, as another alleged insurer of Eagle, Inc.; (7) Maryland Casualty & Surety Company, as the alleged insurer of Marquette Insulations, Inc.; (8) Aetna Casualty & Surety Company, as an alleged insurer of Trinity Industries, Inc.; (9) Employers Insurance Company of Wausau, as another alleged insurer of Trinity Industries, Inc.; (10) Fidelity and Casualty Insurance Company of New York, as another alleged insurer of Trinity Industries, Inc; and (11) Hartford Accident and Indemnity Company, as another alleged insurer of Trinity Industries, Inc.

[4] The matter was originally allotted to Chief Judge Brown, who later recused herself on February 15, 2022. R. Doc. 611.

Sources

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