Held v. Avondale Industries, Inc. (1996)

Our plain-English summary of Held v. Avondale Industries, Inc. (Louisiana Court of Appeals, April 3, 1996).

Mavis Held, a marine surveyor, developed pleural mesothelioma and sued several companies, including Avondale Industries, alleging he came into contact with asbestos while working on ships at Avondale. He died in 1992, and his wife and children continued the suit. The trial court granted summary judgment for Avondale, struck the jury trial request and other state-law remedies on the ground that the dispute was maritime, and found no genuine factual issue on whether asbestos at Avondale substantially caused his disease. The Court of Appeal reviewed the ruling anew and reversed. It held that Held was not a seaman, so maritime law did not bar Louisiana remedies, including a jury trial and strict liability claims. It found Avondale had raised causation in its motion. It then held that plaintiffs' expert Dr. Roggli's affidavit, saying even slight exposures contributed to the mesothelioma, together with Held's testimony about his frequent presence at Avondale from 1967 to 1992, created a genuine factual issue. Avondale offered no opposing affidavit. The case was remanded.

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: April 3, 1996
• Citation: 672 So.2d 1106
• Docket: No. 95-CA-1788
• Stage: Appeal from summary judgment
• State: Louisiana

Outcome. 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.

What the court held. A marine surveyor who is not a seaman is not barred by maritime law from asserting Louisiana state remedies, and a plaintiff's expert affidavit that any exposure contributed to mesothelioma raises a genuine issue of material fact on causation that prevents summary judgment.

Issues decided: Causation, Design Defect, Maritime Law and Navy Ships, Trial Procedure and Discovery.

Why this case is relevant

The Louisiana Fourth Circuit Court of Appeal reversed a summary judgment that had dismissed a family's mesothelioma claims against a shipyard. It held that a marine surveyor who was not a seaman was not barred by maritime law from Louisiana remedies, including a jury trial and strict liability claims. On causation, it held that two things together raised a genuine factual issue: an expert affidavit saying no asbestos level is known to be safe and that even slight exposures contributed, and the worker's testimony about his frequent presence at the shipyard. The shipyard offered no opposing affidavit.

Later decisions cite it mainly for that causation point. The Fifth Circuit relied on it for the rule that, to defeat an asbestos defendant's summary judgment motion, a plaintiff need only show a reasonable jury could find it more likely than not that the person inhaled the defendant's fibers, even if exposures were slight. Federal trial courts in the Eastern and Middle Districts of Louisiana have repeated that standard, in rulings both for and against plaintiffs. A later Louisiana appeals court cited its account of the expert's no-safe-level testimony.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Mavis Shubert Held: pleural mesothelioma; died

Who	Work	Where	When	Products
Mavis Shubert Held	marine surveyor (shipyards and maritime work)	Avondale Industries, Louisiana	1967-1992

The defendants

• Avondale Industries, Inc. (premises owner)

Later decisions citing this one

25 later decisions in our library cite this one:

• Williams v. Boeing Company (U.S. Court of Appeals, Fifth Circuit, 2022). The Fifth Circuit reversed summary judgment for Boeing on the survival action and remanded, directed the district court to reconsider the plaintiffs' request for more discovery, and affirmed dismissal of the wrongful death claims as time-barred.
• Torrejon v. Mobil Oil Co. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed the trial court's judgment notwithstanding the verdict for plaintiff Christina Torrejon against Mobil Oil Company, including the $1.8 million general damage award, and refused to reduce Mobil's liability for the settling manufacturers' fault.
• Meredith v. Asbestos Corp., Ltd. (Louisiana Court of Appeals, 4th Circuit, 1998). The court granted the supervisory writs, reversed the denial of summary judgment for Todd and its insurers on the wrongful death actions and dismissed them, but affirmed the denial of summary judgment on the Meredith survival action, which was remanded.
• Crossland v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 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.
• Crossland v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). 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.
• Hutchins v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The district court denied the Hutchins plaintiffs' motions for partial summary judgment on exposure and causation as to A.W. Chesterton, Babcock & Wilcox, Combustion Engineering, Dixie Machine, Foster Wheeler and International Paper, so Continental Insurance and Avondale (Huntington Ingalls) prevailed on the motions.
• Hutchins v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court granted summary judgment to Huntington Ingalls (as successor to Ingalls Shipyard), Redco, Sank, Inc. and Bayer CropScience for lack of evidence that Mr. Hutchins was exposed to their asbestos, and denied John Crane's motion, so claims involving John Crane's gaskets and packing proceed.
• King v. Metropolitan Life Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2023). The court granted Union Carbide's unopposed motion for summary judgment and dismissed plaintiff Glen King's claims against it, because he could not link any asbestos exposure to a Union Carbide product.
• Ragusa v. Louisiana Guaranty Insurance Association (U.S. District Court, Eastern District of Louisiana, 2023). The court denied all nine summary judgment motions by premises owners and product companies, so Ragusa's asbestos claims against Pharmacia, Legacy Vulcan, Syngenta, Marathon, Murphy Oil, International Paper, Westinghouse and Riley Power continue.
• Robichaux v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court denied Huntington Ingalls' (Avondale's) motion for partial summary judgment on the Robichaux family's take-home exposure claim, so that claim goes forward.
• Robichaux v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court denied the summary judgment motions of Uniroyal Holdings and Foster Wheeler, leaving the survivors' and Avondale's claims against them for trial.
• Adams v. Eagle, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court denied third-party defendant Amchem's motion for summary judgment against Avondale (Huntington Ingalls), finding genuine factual disputes on exposure and causation.
• Adams v. Eagle, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court denied Westinghouse's (ViacomCBS) motion for summary judgment against third-party plaintiff Avondale, finding genuine disputes of fact on exposure to Westinghouse's Micarta and on substantial-factor causation.
• Becnel v. Lamorak Insurance Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court denied the summary judgment motions of BMW, Ford, General Electric, Foster Wheeler, ViacomCBS (Westinghouse), Morse TEC (BorgWarner) and Navistar, so the plaintiffs' claims against them continue.
• Becnel v. Lamorak Insurance Co. (U.S. District Court, Eastern District of Louisiana, 2022). The district court denied the summary judgment motions of BMW, Volkswagen and Honeywell (joined by Ford, Pneumo Abex and Morse TEC) and denied the defendants' motions in limine, so the plaintiffs' causation experts could testify, limited to opinions on cumulative asbestos exposure.
• Becnel v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, 2022). The court denied, without prejudice, defendant American Insurance Company's two summary judgment motions (products hazard exclusion and no exposure during the policy period), leaving plaintiffs' claims against AIC as Eagle's alleged insurer in place.
• Cortez v. Lamorak Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Westinghouse (ViacomCBS) partial summary judgment on claims about asbestos insulation used on its turbines and denied it on claims about asbestos gaskets it supplied or specified for those turbines.
• Cortez v. Lamorak Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Westinghouse (ViacomCBS) partial summary judgment dismissing the failure-to-warn claims, but denied it on the Halter Marine exposure and on whether its FRDM was a substantial factor in causing Cortez's mesothelioma.
• Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, 2022). The court denied Riley Power, Inc.'s motion for summary judgment on the statute of repose and exposure-sufficiency grounds, and denied its motion to strike as moot, so plaintiffs (the Cortez family) prevailed over Riley at this stage.
• Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, 2022). The court granted summary judgment to Entergy, First State, USF&G, Berkshire and Insulations, LLC, granted GE's motion in part (insulation claims) and denied it in part (asbestos gasket claims), and denied Foster Wheeler's motion; it also granted LIGA's motion in limine excluding hearsay.
• Falgout v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted summary judgment to third-party defendants Foster Wheeler, GE and Amchem and dismissed Avondale's cross-claims against them.
• King v. Metropolitan Life Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Shreveport Rubber & Gasket Co.'s unopposed motion for summary judgment and dismissed plaintiff Glen King's claims against it, because he could not show exposure to asbestos from its products.
• Reulet v. Lamorak Ins. Co. (U.S. District Court, Middle District of Louisiana, 2022). The court denied the summary judgment motions of General Electric and ViacomCBS/Westinghouse, so the plaintiffs' claims against the two turbine manufacturers go forward.
• Reulet v. Lamorak Ins. Co. (U.S. District Court, Middle District of Louisiana, 2022). The court granted in part and denied in part Berkshire's summary judgment motion: claims tied to the second policy period and to the father's second-hand exposure were dismissed with prejudice, while the claim of direct exposure during the first policy period survived for Plaintiffs and Avondale.
• Hayes v. Asbestos Corp. Ltd. (U.S. District Court, Western District of Louisiana, 2015). The court granted summary judgment to Honeywell (successor to Bendix) and Ford, dismissing plaintiffs' claims against them with prejudice for lack of product identification evidence.

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.

672 So.2d 1106 (1996)

Mavis Shubert HELD, etal.

v.

AVONDALE INDUSTRIES, INC., etal.

No. 95-CA-1788.

April 3, 1996.

Court of Appeal of Louisiana, Fourth Circuit.

[*1107] Plauche, Maselli & Landry, Robert E. Caraway, III, New Orleans, for Appellees.

Martzell and Bickford, Scott R. Bickford, M. Suzanne Montero, New Orleans, for Appellants.

Before KLEES, BYRNES and MURRAY, JJ.

BYRNES, Judge.

This is an appeal by the plaintiffs from a summary judgment rendered by the trial court dismissing plaintiffs' claims against Avondale Industries, Inc. We reverse and remand.[1]

Plaintiff allegedly died of mesothelioma, a form of cancer associated with exposure to asbestos. Prior to his death he and his wife filed this suit against numerous defendants, including Avondale Industries, Inc. As against Avondale Held alleged that he came into contact with asbestos while working on ships there in his capacity as a marine surveyor. Following his death in 1992, this suit was continued by his wife and children. Their right to do so is not contested on this appeal. I. STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180; Schroeder v. Board of Sup'rs of Louisiana State University, [*1108] 591 So.2d 342, 345 (La.1991). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion. Carr v. City of New Orleans, 622 So.2d 819, 822 (La.App. 4th Cir.1993) and Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 680 (La.App. 4th Cir. 1993). To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). The papers supporting the position for the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. Vermilion, supra.

Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits, exhibits, and depositions, reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc. 396 So.2d 1268 (La.1981). No summary judgment will be granted even if the trial court has grave doubts regarding a party's ability to establish disputed facts. Aydell v. Charles Carter & Co., Inc., 388 So.2d 404 (La.App. 1st Cir.), writ denied 391 So.2d 460 (La.1980). The fact that a party is unlikely to prevail at a trial on the merits is an insufficient basis for rendering a summary judgment against that party. Chapeuis v. Cassimano, 568 So.2d 606 (La.App. 4th Cir.), writ denied 571 So.2d 629 (La.1990). This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La. App. 5 Cir.), writ denied 588 So.2d 1117 (La.1991). It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Morris v. Louisiana Coca-Cola Bottling Co., Ltd., 354 So.2d 659 (La.App. 1st Cir.1977). The weighing of conflicting evidence on a material fact has no place in summary judgment procedure. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La. App. 3rd Cir.1974), writ denied 302 So.2d 308 (La.1974). Testimony should neither be received nor

considered, even with the consent of counsel, to decide a motion for summary judgment. Urban Management Corp. v. Burns, 427 So.2d 1310 (La.App. 2 Cir.1983); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976), writ denied 343 So.2d 1072 (La.1977). Making evaluations of credibility has no place in determining a summary judgment. Dixie Buick, Inc. v. Lockett, 263 So.2d 56 (La.App. 4th Cir.1972). A motion for a summary judgment is not to be used as a substitute for trial on the merits. Oller v. Sharp Elec., Inc., 451 So.2d 1235, 1237 (La. App. 4th Cir.), writ denied 457 So.2d 1194, appeal after remand 514 So.2d 176, writ denied 519 So.2d 117.

Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4th Cir.), writ denied 572 So.2d 68 (La.1991). II. IT WAS ERROR FOR THE TRIAL COURT TO DENY PLAINTIFFS' THEIR

REMEDIES UNDER LOUISIANA LAW.

The trial court granted Avondale's "motions to strike the jury trial request and other state remedies unavailable in a maritime dispute which this case is held to be." This was error. Mavis Held was not a seaman. He was a marine surveyor. The fact that the trial court may have been correct in its finding that Held was engaged in a bona fide maritime activity because the ships in question at Avondale had already been launched does not deprive Held of his state remedies. Yamaha Motor Corporation, U.S.A v. Calhoun, ___ U.S. ___, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996).

[*1109] Therefore, we hold that the plaintiffs are not barred by maritime law from asserting Louisiana state remedies, including, but not limited to, plaintiffs' jury trial request and strict liability claims under LSA-C.C. art. 2317. Avondale is free, however, to assert any other timely objections or defenses it may have to plaintiffs state remedies.

III. AVONDALE'S MOTION FOR SUMMARY JUDGMENT RAISED THE

QUESTIONS OF CAUSATION AND THE EXISTENCE OF GENUINE ISSUES OF

MATERIAL FACT.

The trial court found that plaintiffs failed to show that there was a genuine issue of material fact concerning whether asbestos containing material at Avondale was a substantial factor in causing plaintiffs pleural mesothelioma. Plaintiffs contend that Avondale's motion for summary judgment did not raise the questions of causation and lack of genuine issues of material fact and that it was error for the trial court to base its ruling on those issues when they were not raised in Avondale's motion.

Avondale's motion for summary judgment specifically asserts that there are no genuine issues of material fact. Avondale also incorporates by reference the summary judgment motion of Bethlehem Steel Corporation which addresses at length the lack of evidence to support the causation element of plaintiffs' claim. There is no merit to plaintiffs' contention that Avondale failed to raise these issues in its motion for summary judgment.

IV. THE QUESTION OF CAUSATION CREATES A GENUINE ISSUE OF

MATERIAL FACT.

The question of causation is a material issue. In this case it is also a genuine issue. Plaintiffs' expert, Dr. Victor Roggli asserts in his affidavit that there is no known level of asbestos which would be considered safe with regard to the development of mesothelioma. Dr. Roggli further opined that "any of Mr. Held's exposure, even slight exposures, to asbestos and/or asbestos containing products from 1944 to 1980 to be a significant contributing cause of the malignant pleural mesothelioma which he developed in 1992 and which subsequently caused his death." Avondale introduced no countervailing affidavits. Even had it done so it is difficult to see how this Court could resolve conflicting expert evidence on motion for summary judgment.

Mr. Held testified in his deposition that he was present at Avondale during the period from 1967 to 1992 with such frequency and under such conditions that we cannot determine with certainty absent a trial on the merits that he had no contact with

asbestos that could have been a contributing cause of his mesothelioma in view of Dr. Roggli's affidavit. We find that plaintiffs have raised a genuine issue of material fact.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

[1] Bethlehem Steel Corporation was dismissed as a defendant by judgment of voluntary dismissal.

Sources

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