Leech v. 3M Company (E.D. La., Aug. 29, 2018)

Our plain-English summary of Leech v. 3M Company (U.S. District Court, Eastern District of Louisiana, August 29, 2018).

Margaret Leech and her adult children sued several companies over the death of William Leech. They alleged he was diagnosed with malignant mesothelioma on January 11, 2016, and died on January 14, 2016, and that asbestos was a cause. They said he was a construction engineer who was exposed to asbestos at many sites in Louisiana, California, Arizona, Virginia and other states from about 1965 to 1992. They brought survival and wrongful death claims, including negligence and strict liability claims against Taylor-Seidenbach, Inc. The case was filed in New Orleans state court and removed to federal court. Taylor-Seidenbach moved for summary judgment, arguing the plaintiffs had no evidence that Leech worked with or around any product it sold or used. It also submitted an affidavit from its president. The plaintiffs did not oppose the motion. The court found the motion had merit because, under Louisiana law, the plaintiffs had to show the company's conduct was a substantial factor in the injury, and they offered no evidence of that. The court granted the motion.

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: August 29, 2018
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted Taylor-Seidenbach, Inc.'s unopposed motion for summary judgment, dismissing the plaintiffs' claims against it for lack of evidence that it caused the decedent's mesothelioma.

What the court held. A defendant moving for summary judgment may show an absence of evidence of exposure to its product, and an unopposed motion with merit may be granted. Under Louisiana law, plaintiffs must show the defendant exposed the decedent to asbestos and that the exposure was a substantial factor in causing the injury.

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

The people and their exposure

• William Leech: mesothelioma; died

Who	Work	Where	When	Products
William Leech	construction engineer (construction)		1965-1992

The defendants

• Taylor-Seidenbach, Inc. (contractor)
• 3M Company (manufacturer)
• Honeywell International Inc. (manufacturer)

Other decisions in this case

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

• Leech v. 3M Company (September 29, 2017). The court denied plaintiff Margaret Leech's motion to remand and her request for attorneys' fees, holding Honeywell's removal before any defendant was served was proper, so Honeywell and the other defendants prevailed.
• Leech v. 3M Company (August 15, 2018). The court granted Honeywell International Inc.'s unopposed motion for summary judgment, dismissing the plaintiffs' claims against Honeywell as successor to Bendix, because plaintiffs offered no evidence that Honeywell was a cause-in-fact of the decedent's injury.

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.

LEECH, etal.,

v.

3M COMPANY, etal., SECTION: "G"(4).

Civil Action Case No. 17-446.

August 29, 2018.

United States District Court, E.D. Louisiana.

Margaret A. Leech, individually and on behalf of Decedent, William Leech, Thomas Leech, individually and on behalf of Decedent, William Leech & Sarah Leech, individually and on behalf of Decedent, William Leech, Plaintiffs, represented by Lindsey A. Cheek & Rubiante Lolana Brown, Cheek Law Firm, LLC.

Air & Liquid Systems Corporation, Successor by Merger to Buffalo Pumps, Inc., Defendant, represented by Stacey Leigh Strain, Hubbard, Mitchell, Williams & Strain, PLLC.

Calaveras Asbestos Ltd., Defendant, represented by Kay Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Cosmich Simmons & Brown, PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

CBS Corporation, Successor by Merger to CBS, Corp a Pennsylvania Corp. & 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. & Magali Ann Puente-Martin, Frilot L.L.C.

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

Foster Wheeler LLC, as Survivor to the Merger with Foster Wheeler 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. Georgia Pacific LLC, Defendant, represented by Gayla M. Moncla, Kean Miller, Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Barrye Panepinto Miyagi, Taylor, Porter, Brooks & Phillips LLP, Gregory M. Anding, Kean Miller, Jay Morton Jalenak, Jr., Kean Miller, Robert E. Dille, Maron Marvel Bradley Anderson & Tardy LLC & Sarah W. Anderson, Kean Miller.

Goulds Pumps LLC, formerly known as Goulds Pumps, Incorporated & Grinnell LLC, Defendants, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius.

Hajoca Corp, Defendant, represented by Kay Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Cosmich Simmons & Brown, PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr.,

Cosmich Simmons & Brown, PLLC.

Union Carbide Corporation, Defendant, represented by McGready Lewis Richeson, Pugh, Accardo, Haas, Radecker & Carey, Francis Xavier DeBlanc, III, Pugh, Accardo, Haas, Radecker & Carey & Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey.

Morton Salt, Inc., Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery Davis, Liskow & Lewis.

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

Dow Chemical Company, individually and as Successor to Morton International, Inc, Defendant, represented by David Mark Bienvenu, Jr., Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Anthony Joseph Lascaro, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Colin Patrick O'Rourke, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Erin Percy Tadie, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, John Allain Viator, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Katie Dampier Chabert, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC & Lexi T. Holinga, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC.

Rohm and Haas Chemicals LLC, incorrectly sued as Rohm & Haas, Individually and as Successor to Morton International, Inc., Defendant, represented by Tyson B. Shofstahl, Adams & Reese, LLP.

ORDER

NANNETTE JOLIVETTE BROWN, Chief District Judge.

Pending before the Court is Defendant Taylor-Seidenbach, Inc.'s ("Taylor-Seidenbach") unopposed "Motion for Summary Judgment."[1] Having considered the motion, the memorandum in support, the record, and the applicable law, the Court will grant the motion.

In this litigation, Plaintiffs Margaret A. Leech and her adult children (collectively, "Plaintiffs") allege that Decedent William Leech ("Decedent") was diagnosed with malignant mesothelioma on January 11, 2016, and that asbestos-related mesothelioma was a cause of William Leech's death on January 14, 2016.[2] According to Plaintiffs, Decedent was a construction engineer who worked with and was exposed to asbestos at numerous sites in Louisiana, California, Arizona, Virginia, and other states from approximately 1965 through 1992.[3] Plaintiffs bring survival and wrongful death claims against various defendants, including Taylor-Seidenbach.[4]

Plaintiffs originally filed the petition in this matter on January 10, 2017, in the Civil District Court for the Parish of Orleans, State of Louisiana.[5] On January 19, 2017, Defendant Honeywell International Inc. removed the action to this Court.[6] On March 3, 2018, Taylor-Seidenbach filed the instant motion, which was set for submission on April 25, 2018.[7] Plaintiffs have filed no opposition to the motion, and therefore Taylor-Seidenbach's motion is deemed to be unopposed. District courts may grant an unopposed motion, as long as the motion has merit.[8]

Taylor-Seidenbach argues that Plaintiffs' claims against Taylor-Seidenbach should be dismissed because Plaintiffs have presented no evidence to show that Decedent worked with or around any product sold or used by Taylor-Seidenbach.[9] Taylor-Seidenbach asserts that Plaintiffs' petition does not recite any facts against Taylor-Seidenbach, but only alleges that Decedent generally was exposed to asbestos in his work as a construction engineer at various work sites from 1965 to 1992.[10] Taylor-Seidenbach also presents an affidavit that from Hal M. Shepard, the president of Taylor-Seidenbach, which states that he has no knowledge of Taylor-Seidenbach selling or using any asbestos containing insulation products at these work sites.[11]

Moreover, according to Taylor-Seidenbach, Plaintiffs did not provide any initial disclosures to Taylor-Seidenbach, so there is no evidence to be found in that manner.[12] Taylor-Seidenbach further avers that Plaintiffs have not identified any witnesses or produced any documents that state that Decedent worked with any product sold or used by Taylor-Seidenbach.[13] Taylor-Seidenbach argues that because Plaintiffs cannot cite any evidence that shows that Decedent worked with a product made or sold by Taylor-Seidenbach, Plaintiffs cannot meet their burden of proving that Taylor-Seidenbach's products were a cause-in-fact of Decedent's injuries.[14]

Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[15] If the record, as a whole, could not lead a rational trier of fact to find for the non-moving party, then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.[16] On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.[17] Where the non-moving party bears the burden of proof at trial, as here, the party moving for summary judgment may meet its burden by showing the Court that there is an absence of evidence to support the non-moving party's case.[18] Thereafter,

if the moving party satisfies its initial burden, the burden shifts to the non-moving party to "identify specific evidence in the record, and articulate" precisely how that evidence supports her claims.[19]

Plaintiffs bring claims against Taylor-Seidenbach for negligence and strict liability.[20] Under Louisiana law, to recover against Taylor-Seidenbach, Plaintiffs must show that Taylor-Seidenbach exposed Decedent to asbestos and that the exposure caused Plaintiffs' injury.[21] "[C]ause-in-fact is found when defendant's conduct was a substantial factor in the injury; it need not be the sole cause."[22]

Here, Taylor-Seidenbach has identified portions of the record that demonstrates the absence of a genuine issue of material fact. Plaintiffs have filed no opposition to the pending motion. Therefore, Plaintiffs have come forward with no evidence to show that Taylor-Seidenbach was a cause-in-fact of Plaintiffs' injury. As a result, there are no material facts at issue, and the Court finds that Taylor-Seidenbach's motion has merit.

Accordingly,

IT IS HEREBY ORDERED that Defendant Taylor-Seidenbach, Inc.'s "Motion for Summary Judgment" is GRANTED.

[1] Rec. Doc. 126.

[2] See Rec. Doc. 42-1 at 1.

[3] Id. at 2.

[4] Rec. Doc. 1-1 at 3; Rec. Doc. 126.

[5] Rec. Doc. 1-1.

[6] Rec. Doc. 1.

[7] Rec. Doc. 126.

[8] See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001); John v. State of La. (Bd. Of Trustees for State Colleges and Universities), 757 F.2d 698, 709 (5th Cir. 1985).

[9] Rec. Doc. 126-1 at 2.

[10] Id. at 2.

[11] Id. (citing Rec. Doc. 126-6 at 2).

[12] Id.

[13] Id. at 6.

[14] Id. at 7-8.

[15] 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).

[16] Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

[17] Celotex, 477 U.S. at 323.

[18] Id. at 325.

[19] Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

[20] Rec. Doc. 1 at 4.

[21] Although Plaintiffs assert both negligence and strict liability claims against Taylor-Seidenbach, "the standards for deciding causation are the same [for each claim]." Jones v. Peyton Place, Inc., 95-0574 (La. App. 4 Cir. 5/22/96); 675 So. 2d 754, 762 (citing Fontenot v. Fontenot, 93-2479 (La. 4/11/94); 635 So. 2d 219, 221).

[22] Manuel v. Shell Oil Co., 94-590 (La. App. 5 Cir. 10/18/95); 664 So. 2d 470, 475 (citations omitted) (applying the substantial factor causation standard for benzene exposure).

Sources

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