King v. Metropolitan Life Ins. Co. (2023)

Our plain-English summary of King v. Metropolitan Life Ins. Co. (U.S. District Court, Eastern District of Louisiana, January 13, 2023).

Glen E. King sued Union Carbide and other defendants in Louisiana state court, alleging he developed mesothelioma from asbestos exposure during his work with the U.S. Navy, Louisiana State University and BASF Corporation. He claimed Union Carbide supplied asbestos-containing products to his worksites and failed to warn him of the hazards. Another defendant removed the case to federal court. Union Carbide moved for summary judgment, arguing King could not show he worked with a product it sold or made, or that any such product substantially caused his disease. King did not oppose the motion. The court noted it cannot grant summary judgment merely because a motion is unopposed, but it found the movant's showing sufficient. King had testified that he was exposed to joint compound as a teenager on construction projects, and Union Carbide conceded selling asbestos fibers to makers of joint compound. But King could not identify the brand or manufacturer of the joint compound and offered no other evidence linking his exposure to Union Carbide. The court granted the motion and dismissed his claims against Union Carbide.

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: January 13, 2023
• Docket: Civil Action No. 21-2006
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law, an asbestos plaintiff must show significant exposure to the defendant's product and that the exposure was a substantial factor in causing the injury. Even when a motion is unopposed, the movant must show it is entitled to judgment.

Issues decided: Causation, Failure to Warn, Product Identification.

The people and their exposure

• Glen E. King: mesothelioma

The defendants

• Union Carbide Corporation (supplier)
• Metropolitan Life Ins. Co.

Other decisions in this case

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

• King v. Metropolitan Life Ins. Co. (December 27, 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.

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.
• 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.
• 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.

GLEN E. KING,

v.

METROPOLITAN LIFE INS. CO., ET AL., SECTION "R" (3).

Civil Action No. 21-2006.

January 13, 2023.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendant Union Carbide Corporation's ("Union Carbide") 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 during the course of his employment with the United States Navy, Louisiana State University, and BASF Corporation.[2] Plaintiff contends that these exposures caused him to develop mesothelioma.[3] He sued Union Carbide, among others, for negligence in the Civil District Court for the Parish of Orleans.[4] In particular, plaintiff alleged that Union Carbide supplied asbestos-containing products to plaintiff's worksites, and that it failed to adequately warn him of the presence of asbestos and the health hazards associated with it.[5] Another defendant removed the case to this Court on November 1, 2021.[6]

Union Carbide now moves for summary judgment on the grounds that plaintiff has failed to meet his burden of proving that he worked with an asbestos-containing product that was sold, supplied, distributed, or manufactured by Union Carbide, or that his use of such product was a substantial cause of his mesothelioma.[7] Plaintiff does not oppose Union Carbide's motion. 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, the 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). In this case, plaintiff has failed to meet his burden on both elements. To defeat an asbestos defendant's motion for summary judgment, a plaintiff "need only show that a reasonable jury could conclude that it is more likely than not that [plaintiff] inhaled defendant's asbestos fibers.'" Williams, 23 F.4th at 512 (citing Held v. Avondale Indus., Inc., 672 So. 2d 1106, 1109 (La. App. 4 Cir. 1996)). Plaintiff has made no such showing here. Although plaintiff testified that he was exposed to joint compound while working on construction projects as a teenager,[8] and Union Carbide concedes that it sold asbestos fibers to third parties for the production of joint compound, plaintiff was unable to identify the brand name or manufacturer of the joint compound to which he was exposed.[9] Plaintiff has come forward with no other evidence that he was ever exposed to any asbestos fibers emanating from a product linked to Union Carbide. Because plaintiff cannot establish that he had any exposure to asbestos-containing products linked to Union Carbide, much less "significant exposure," Rando, 16 So. 3d at 1091, he cannot meet his burden of demonstrating that Union Carbide's alleged negligence was a "substantial factor generating [his] harm," Adams, 923 So. 2d at 122. Accordingly, plaintiff's claims against Union Carbide must be dismissed. IV. CONCLUSION

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

[1] R. Doc. 97.

[2] R. Doc. 1-1 ¶ 9.

[3] Id. ¶ 19.

[4] Id. at 7.

[5] Id. ¶¶ 12, 21.

[6] R. Doc. 1.

[7] R. Doc. 97 at 1.

[8] R. Doc. 97-4 at 5 (King Dep. Tr. Vol. 1 25:5-9).

[9] R. Doc. 97-4 at 8 (King Dep. Tr. Vol. II 157:22-158:5); id. at 11 (King Dep. Tr. Vol. III 298:13-20).

Sources

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