Lopez v. McDERMOTT, Inc. (E.D. La., Aug. 29, 2018)

Our plain-English summary of Lopez v. McDERMOTT, Inc. (U.S. District Court, Eastern District of Louisiana, August 29, 2018).

Federico Lopez sued a number of companies in Louisiana state court in 2017, alleging he contracted malignant mesothelioma from asbestos exposure. He alleged exposure from 1971 to 1973 as a gasket cutter for Lamons Gasket Company and from 1973 to 1986 as a welder/pipefitter for Kellogg Brown & Root. He died in November 2017, and his wife and son continued the case, including a wrongful death claim. The defendants removed the case to federal court, and the court denied remand. McDermott, Inc. moved for summary judgment, arguing there was no evidence Lopez was exposed to asbestos through its actions or on its premises. It pointed to his testimony that he was around McDermott employees on only one project and that their work produced no asbestos dust. It also noted there were no records that he worked for McDermott or at a McDermott facility. The plaintiffs did not respond. The court found no genuine factual dispute, because Lopez's own testimony showed no exposure at a McDermott facility or from McDermott employees. It granted the motion and dismissed the claims against McDermott with prejudice.

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
• Docket: Civil Action No. 17-8977
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted McDermott, Inc.'s unopposed motion for summary judgment and dismissed the Lopez plaintiffs' claims against McDermott with prejudice.

What the court held. Summary judgment is proper where the plaintiff's own testimony shows he was not exposed to asbestos at the defendant's facility or through the defendant's employees' actions, and there is no genuine issue of material fact.

Issues decided: Premises Owner Liability, Product Identification.

The people and their exposure

• Federico Lopez: mesothelioma; died

Who	Work	Where	When	Products
Federico Lopez	gasket cutter	Lamons Gasket Company	1971-1973	gaskets and packing
Federico Lopez	welder/pipefitter		1973-1986

The defendants

• McDermott, Inc. (contractor)

Other decisions in this case

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

• Lopez v. McDERMOTT, Inc. (January 24, 2018). The district court denied Federico Lopez's motion to remand, ruling that federal jurisdiction existed under OCSLA, so Shell Oil and Tennessee Gas Pipeline prevailed on removal.
• Lopez v. McDERMOTT, Inc. (June 21, 2019). The court found plaintiffs had not made a prima facie showing of personal jurisdiction over ConocoPhillips, deferred ruling on its motion to dismiss, and ordered limited jurisdictional discovery with a July 22, 2019 deadline, failing which the motion would be granted.
• Lopez v. McDERMOTT, Inc. (November 25, 2019). The court denied the motions to dismiss by Exxon Mobil, Marathon, Chevron, Texaco, Emerson Electric and General Electric, and granted Goulds and ITT's motion only as to the Soliz survival claim (barred by the earlier dismissal) while denying it as to the Soliz wrongful death claims.
• Lopez v. McDERMOTT, Inc (July 6, 2020). The court granted Exxon Mobil's motion for summary judgment, dismissing the Lopez plaintiffs' negligence and strict liability claims against Exxon as a premises owner, because Exxon owed no duty and had no care, custody or control of the asbestos.
• Lopez v. McDERMOTT, Inc (July 6, 2020). The court denied Crosby Valves' motion for summary judgment, finding Mr. Lopez's deposition admissible against Crosby and enough evidence of exposure and substantial-factor causation for the plaintiffs' claims to proceed.
• Lopez v. McDERMOTT, Inc. (July 13, 2020). The court denied Fisher Controls International's motion for summary judgment, so the Lopez plaintiffs' claims against Fisher go forward.

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.

FEDERICO LOPEZ et al.,

v.

McDERMOTT, INC. etal., Section "L" (5).

Civil Action No. 17-8977.

August 29, 2018.

United States District Court, E.D. Louisiana.

Federico Lopez, Plaintiff, represented by Lindsey A. Cheek & Ryan M. Sweet, Flint Law Firm, LLC, pro hac vice. Maricela Lopez & Federico Lopez, III, Plaintiffs, represented by Ryan M. Sweet, Flint Law Firm, LLC, pro hac vice. Shell Oil Company & Tennessee Gas Pipeline Company, LLC, formerly known as Tenneco Inc., Defendants, represented by Gregory M. Anding, Kean Miller, Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Anthony M. Williams, Kean Miller LLP, Bradley Joseph Schlotterer, Kean Miller LLP, Gayla M. Moncla, Kean Miller, Jay Morton Jalenak, Jr., Kean Miller, Robert E. Dille, Maron Marvel Bradley Anderson & Tardy LLC, Sarah W. Anderson, Kean Miller & Sean T. McLaughlin, Kean Miller LLP.

Boardwalk Petrochemical Pipeline LLC, formerly known as Chevron Petrochemical Pipeline LLC, formerly known as Texaco Petrochemical Pipeline LLC, Defendant, represented by Terrence Kent Knister, Gordon, Arata, Montgomery & Barnett, Ewell E. Eagan, Jr., Gordon, Arata, Montgomery & Barnett & James D. Rhorer, Gordon, Arata, Montgomery & Barnett. ExxonMobil Corporation, Incorrectly named Exxon Mobil Oil Corporation, Defendant, represented by David Mark Bienvenu, Jr., Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Erin Percy Tadie, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Anthony John Gambino, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, James McClendon Williams, Chehardy,Sherman,Williams,Murray,Recile,Stakelum&Hayes, LLC, John Allain Viator, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Lexi T. Holinga, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC & Melissa Jade Shaffer, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC.

Foster Wheeler, LLC, as the survivor to the merger with 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. & Magali Ann Puente-Martin, Frilot L.L.C. Goulds Pumps LLC & ITT LLC, formerly known as ITT Industries, Inc., Defendants, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius & Mitchell F. Tedesco, Morgan, Lewis & Bockius.

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, Lacey Sarver Goss, Lacey Sarver Goss, Attorney at Law, Lauren B. Dietzen, Plauche, Maselli, Parkerson, LLP & Scott H. Mason, Plauche, Maselli, Parkerson, LLP.

Marathon Oil Company, Defendant, represented by Tim Gray, Forman, Watkins & Krutz LLP, Amy Louise Maccherone, Forman, Watkins & Krutz LLP, Etienne Francis Rene, Forman, Watkins & Krutz LLP, Melissa Desormeaux Fuller, Kuchler Polk Weiner, LLC, Michael H. Abraham, Forman, Watkins & Krutz LLP & Michelle Miller Roy, Forman, Watkins & Krutz LLP. Otto Candies, L.L.C., Defendant, represented by Rufus C. Harris, III, Harris & Rufty, LLC, Alfred Jackson Rufty, III, Harris & Rufty, LLC & Cindy Galpin Martin, Harris & Rufty, LLC.

Reilly-Benton Co., Inc., Defendant, represented by Thomas L. Cougill, Willingham Fultz & Cougill, LLP, Jamie M. Zanovec, Willingham Fultz & Cougill, LLP, Jennifer H. McLaughlin, Willingham Fultz & Cougill, LLP & Jennifer D. Zajac, Willingham Fultz & Cougill, LLP.

Taylor-Seidenbach, Inc., 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.

Crosby Valves, LLC, A Wholly owned subsidiary of Emerson Electric Co., Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, 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.

Chevron U.S.A. Inc., Defendant, represented by Tim Gray, Forman, Watkins & Krutz LLP, Amy Louise Maccherone, Forman, Watkins & Krutz LLP, Melissa Desormeaux Fuller, Kuchler Polk Weiner, LLC, Michael H. Abraham, Forman, Watkins & Krutz LLP & Michelle Miller Roy, Forman, Watkins & Krutz LLP.

John Crane Inc & Lamons Gasket Company, Third Party Plaintiffs, 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, Lacey Sarver Goss, Lacey Sarver Goss, Attorney at Law, Lauren B. Dietzen, Plauche, Maselli, Parkerson, LLP & Scott H. Mason, Plauche, Maselli, Parkerson, LLP.

ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court is Defendant McDermott, Inc.'s motion for summary judgment, R. Doc. 108. Plaintiff has failed to respond to the motion. Considering the briefs and the applicable law, the Court issues the following Order & Reasons. I. BACKGROUND

In June 2017, Plaintiffs brought this lawsuit for asbestos exposure in Orleans Parish Civil District Court. R. Doc. 1-2 at 2. In September 2017, Defendants removed the suit arguing that Plaintiffs claims are based on Defendants' activities on the Outer Continental Shelf. R. Doc. 1. Plaintiff Federico Lopez alleges that he was exposed to asbestos by Defendants and contracted malignant mesothelioma. R. Doc. 1-2 at 4. Plaintiff alleged that he was exposed to asbestos from 1971-1973 while working as a gasket cutter for Defendant Lamons Gasket Company and then again from 1973-1986 while working for Kellogg Brown & Root as a welder/pipefitter. R. Doc. 61 at 2. Plaintiff brings strict liability/negligence claims against the Defendants as miners/manufacturers/sellers/suppliers distributors, premises owners, contractors, or employers. R. Doc. 61. Plaintiff Federico Lopez died on November 9, 2017 after filing this claim. R. Doc. 61 at 1. His surviving spouse, Maricela Lopez, and surviving child, Federico Lopez III, assert a wrongful death claim on behalf of Plaintiff Federico Lopez. R. Doc. 61 at 1. Plaintiffs also ask for damages for medical expenses, lost earnings, pain and suffering, loss of consortium, and loss of quality of life. R. Doc. 61 at 16.

This case was initially assigned to Judge Vance but was reassigned to Chief Judge Engelhardt due to a conflict of interest. R. Doc. 3. In October 2017, Plaintiffs filed a motion to remand. R. Doc. 15. In January 2018, Plaintiffs filed their first amended complaint. R. Doc. 30. On January 24, 2018, this Court denied Plaintiffs' motion to remand. R. Doc. 42. In May 2018, the case was reassigned to Judge Vance because Judge Engelhardt moved to the Fifth Circuit. R. Doc. 52. The case was immediately reassigned to Judge Morgan because of Judge Vance's previously stated conflict of interest. R. Doc. 53. In June 2018, Plaintiffs filed their second amended complaint. R. Doc. 61. On July 26, 2018, the Judge Morgan was recused and the case was reassigned to Judge Fallon. R. Doc. 101.

II. PRESENT MOTION

Defendant McDermott, Inc. ("McDermott") has filed a motion for summary judgment. R. Doc. 108. Defendant McDermott argues that Plaintiffs have no facts supporting that Mr. Lopez was exposed to asbestos by their actions or on their premises. R. Doc. 108-2 at 1. Mr. Lopez testified that he was only around McDermott employees on one project and that those employees' activities did not generate asbestos dust. R. Doc. 108-2 at 7. Furthermore, there are no records indicating that Mr. Lopez was ever an employee of McDermott or at a McDermott facility. R. Doc. 108-2 at 7. Accordingly, Defendant McDermott argues that Plaintiffs cannot sustain a claim against it for exposure to asbestos. R. Doc. 108-2.

III. LAW & ANALYSIS

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, Tex., 246 F.3d 500, 502 (5th Cir. 2001); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).

Here, Defendant's motion is unopposed and the Court finds that there are no genuine issues of material fact. By Plaintiff's own testimony he was not exposed to asbestos at a McDermott facility or because of the actions of McDermott employees. Accordingly, Plaintiffs' claims against Defendant McDermott should be dismissed.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant McDermott's motion for summary judgment, R. Doc. 108, is hereby GRANTED and Plaintiffs' claims against McDermott are DISMISSED WITH PREJUDICE.

Sources

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