Lopez v. McDERMOTT, Inc. (E.D. La., Nov. 25, 2019)

Our plain-English summary of Lopez v. McDERMOTT, Inc. (U.S. District Court, Eastern District of Louisiana, November 25, 2019).

Federico Lopez sued several companies in 2017, alleging he developed malignant mesothelioma from asbestos exposure while working at facilities owned or operated by the defendants. He died in November 2017, and his wife and son continued the case with a wrongful death claim. Jessica and Alfred Soliz later filed a separate suit claiming to be his children, and the cases were consolidated. Several defendants moved to dismiss, arguing the Soliz plaintiffs had not proven they were biologically related to Mr. Lopez and so lacked standing under Louisiana's survival and wrongful death statutes. Goulds and ITT also argued that their earlier settlement and dismissal in the Lopez case barred the Soliz claims. The court found that a DNA test showing over 99% probability of a shared parent, which was unrefuted, gave the Soliz plaintiffs standing. It held the earlier dismissal barred the Soliz survival claim against Goulds and ITT, since that claim is shared by all beneficiaries, though they could seek a share of the settlement from the Lopez plaintiffs. The wrongful death claims against Goulds and ITT could continue because each beneficiary has an individual claim.

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: November 25, 2019
• Docket: Civil Action No. 17-8977, No. CONS. W/ 19-9928
• Stage: Motion to dismiss
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law, alleged children have standing to bring survival and wrongful death claims if they are the decedent's biological children, shown by clear and convincing evidence. A survival action is a single shared claim, so a prior dismissal with prejudice binds later-joined beneficiaries, while each wrongful death beneficiary has an individual claim that others cannot settle.

Issues decided: Wrongful Death and Survival, Trial Procedure and Discovery, Settlements and Releases.

The people and their exposure

• Federico Lopez: mesothelioma; died

Who	Work	Where	When	Products
Federico Lopez	worked at unidentified facilities owned and/or operated by multiple defendants

The defendants

• Exxon Mobil Corp. (premises owner)
• Marathon Oil Corp. (premises owner)
• Chevron U.S.A., Inc. (premises owner)
• Texaco, Inc. (premises owner)
• Goulds Pumps LLC (manufacturer)
• ITT LLC (manufacturer)
• Emerson Electric (manufacturer)
• General Electric (manufacturer)

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. (August 29, 2018). The court granted McDermott, Inc.'s unopposed motion for summary judgment and dismissed the Lopez plaintiffs' claims against McDermott with prejudice.
• 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 (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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Palermo v. Port of New Orleans (Louisiana Court of Appeals, 4th Circuit, 2007). The appeals court reversed the trial court's bench-trial judgment for the plaintiffs, finding the Dock Board owed no duty and that the evidence did not show Dixie, Buck Kreihs and Eagle substantially contributed to the exposures.

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., ET AL., SECTION "L" (5).

APPLIES TO: ALL CASES.

Civil Action No. 17-8977, No. CONS. W/ 19-9928.

November 25, 2019.

United States District Court, E.D. Louisiana.

Federico Lopez, Maricela Lopez & Federico Lopez, III, Plaintiffs, represented by Lindsey A. Cheek, Christopher Joseph Fransen, The Cheek Law Firm, Rubiante Lolana Brown, Cheek Law Firm, LLC & Ryan M. Sweet, Flint Law Firm, LLC, pro hac vice.

Jessica Soliz & Alfred Soliz, Consol Plaintiffs, represented by Brian Francis Blackwell, Blackwell & Associates. 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, Sarah W. Anderson, Attorney at Law & Sean T. McLaughlin, Kean Miller LLP.

ExxonMobil Corporation, Incorrectly named Exxon Mobil Oil Corporation, Defendant, represented by David Mark Bienvenu, Jr., Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Erin Conner Percy, Liskow & Lewis, 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.

Marathon Oil Company, Defendant, represented by Alexander G. Calfo, King & Spalding, LLP, pro hac vice, Etienne Francis Rene, Pugh, Accardo, Haas, Radecker & Carey, Keith W. McDaniel, McCranie, Sistrunk, Anzelmo, Hardy, Mcdaniel, Melissa Desormeaux Fuller, Forman, Watkins & Krutz LLP, Michael H. Abraham, Forman, Watkins & Krutz LLP, Peter Sinnott Martin, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch & Troy D. McMahan, King & Spalding, LLP, pro hac vice. 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, Dogan & Wilkinson, PLLC, 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.

Fisher Controls International 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., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, 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 D. Gray, Forman, Watkins & Krutz LLP, Amy Louise Maccherone, Forman, Watkins & Krutz LLP, Melissa Desormeaux Fuller, Forman, Watkins & Krutz LLP, Michael H. Abraham, Forman, Watkins & Krutz LLP & Michelle Miller Roy, Forman, Watkins & Krutz LLP.

Air & Liquid Systems, formerly known as Buffalo Pumps, Defendant, represented by Stacey Leigh Strain, Hubbard, Mitchell, Williams & Strain, PLLC & Jeffrey P. Hubbard, Hubbard, Mitchell, Williams & Strain, PLLC, pro hac vice. Guard-Line, Inc., Defendant, represented by Kevin M. Melchi, Dogan & Wilkinson, PLLC, Robert W. Wilkinson, Dogan & Wilkinson, PLLC, pro hac vice & Will R. Norman, Dogan & Wilkinson, PLLC, pro hac vice.

Ingersoll-Rand Company, 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., Lacey Taylor McCoy, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C.

McMaster-Carr Supply Company, Defendant, represented by Kay Barnes Baxter, Foley & Mansfield & Jonathan David Lewis, Foley & Mansfield.

Texaco, Inc., Defendant, represented by Tim D. Gray, Forman, Watkins & Krutz LLP, Amy Louise Maccherone, Forman, Watkins & Krutz LLP, Chelsea Elizabeth Gaudin, Forman, Watkins & Krutz LLP, Melissa Desormeaux Fuller, Forman, Watkins & Krutz LLP, Michael H. Abraham, Forman, Watkins & Krutz LLP & Michelle Miller Roy, Forman, Watkins & Krutz LLP.

Uniroyal Holding, Inc., as Successor to Uniroyal, Inc., formerly known as U.S. Rubber Company, Defendant, represented by Mary Reeves Arthur, Forman, Watkins & Krutz LLP & Amy Louise Maccherone, Forman, Watkins & Krutz LLP.

Chevron U.S.A. Inc., Consol Defendant, represented by Tim D. Gray, Forman, Watkins & Krutz LLP, McCann Elizabeth LeFeve, Forman, Watkins & Krutz LLP, Melissa Desormeaux Fuller, Forman, Watkins & Krutz LLP, Michael H. Abraham, Forman, Watkins & Krutz LLP & Michelle Miller Roy, Forman, Watkins & Krutz LLP.

Emerson Electric Co & General Electric Company, Consol Defendants, represented by Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., John Joseph Hainkel, III, 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.

Marathon Oil Company, Consol Defendant, represented by Keith W. McDaniel, McCranie, Sistrunk, Anzelmo, Hardy, Mcdaniel & Peter Sinnott Martin, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch.

Shell Oil Company, Consol Defendant, represented by Gregory M. Anding, Kean Miller, Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Anthony M. Williams, Kean Miller LLP, Gayla M. Moncla, Kean Miller, Jay Morton Jalenak, Jr., Kean Miller & Karli Glascock Johnson, Kean Miller, LLP.

Goulds Pumps LLC, formerly known as Goulds Pumps, Incorporated & ITT LLC, formerly known as ITT Water Technology, Inc., Bell & Gossett Company, Consol Defendants, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius & Mitchell F. Tedesco, Morgan, Lewis & Bockius.

Exxon Mobil Corporation, Consol Defendant, represented by David Mark Bienvenu, Jr., Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Anthony Joseph Lascaro, 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.

El Paso Energy, E.S.T., as trustee for EPEC Oil Liquidating Trust, Consol Defendant, represented by Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Gayla M. Moncla, Kean Miller, Gregory M. Anding, Kean Miller, James McClendon Williams, Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLC, Jay Morton Jalenak, Jr., Kean Miller & Karli Glascock Johnson, Kean Miller, LLP.

Texaco Inc, formerly known as ChevronTexaco Corporation, Consol Defendant, represented by Tim D. Gray, Forman, Watkins & Krutz LLP, Natasha Amber Corb, MG+M The Law Firm, Melissa Desormeaux Fuller, Forman, Watkins & Krutz LLP, Michael H. Abraham, Forman, Watkins & Krutz LLP & Michelle Miller Roy, Forman, Watkins & Krutz LLP. ConocoPhillips Company, Consol Defendant, represented by Tyson B. Shofstahl, Adams & Reese, LLP & Taylor Edward Brett, Adams & Reese, LLP.

John Crane Inc, Third Party Plaintiff, represented by Kenan Slade Rand, Jr., Plauche, Maselli, Parkerson, LLP, Lauren B. Dietzen, Plauche, Maselli, Parkerson, LLP & Scott H. Mason, Plauche, Maselli, Parkerson, LLP.

Lamons Gasket Company, Third Party Plaintiff, represented by Kenan Slade Rand, Jr., 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.

Jessica Soliz & Alfred Soliz, Interested Partys, represented by Brian Francis Blackwell, Blackwell & Associates. ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court are motions to dismiss filed by Defendants Exxon Mobil Corp., Marathon Oil Corp., Chevron U.S.A., and Texaco, Inc., R. Doc. 352, Goulds Pumps LLC ("Goulds") and ITT LLC ("ITT"), R. Doc. 356, Emerson Electric, R. Doc. 357, and General Electric, R. Doc. 358, with respect to the Soliz matter. All the motions are opposed. R. Docs. 380-83. I. BACKGROUND

In June 2017, Plaintiff Federico Lopez brought this lawsuit for asbestos exposure in Orleans Parish Civil District Court. R. Doc. 1-2 at 2. On September 13, 2017, the case was removed to this Court. In his petition, Plaintiff referenced his work at unidentified facilities owned and/or operated by multiple defendants, alleging he was exposed to asbestos by Defendants and contracted malignant mesothelioma as a result. R. Doc. 1-2 at 4. Mr. Lopez died on November 9, 2017 after filing this claim. R. Doc. 61 at 1. Thereafter, his surviving spouse, Maricela Lopez, and surviving child, Federico Lopez III, maintained the case on Mr. Lopez's behalf and asserted a wrongful death claim. R. Doc. 61 at 1.

On November 8, 2018, Plaintiffs Jessica and Alfred Soliz filed suit in the 19th Judicial Court for the Parish of East Baton Rouge asserting strict liability and negligence claims on behalf of Mr. Lopez, alleging they were also Mr. Lopez's children. No. 19-9928, R. Doc. 1-2. This case was transferred to this Court on March 8, 2019, R. Doc. 1, and consolidated with the Lopez matter on June 10, 2019, R. Doc. 21.

Early on in the litigation, the Lopez Plaintiffs began settling with and dismissing claims against certain defendants. Relevant to the present motions are settlements executed on June 14 and 16, 2018, between the Lopez Plaintiffs and Defendants Goulds and ITT, whose motion to dismiss is pending before the Court. R. Doc. 356, 356-1 at 2. On January 11, 2019, the Court granted joint motions to dismiss all claims against Goulds and ITT with prejudice in the Lopez matter. R. Doc. 163, 164. The effect of these settlements and dismissals on the Soliz Plaintiffs is an issue the Court must now consider. II. PRESENT MOTION

Defendants Exxon Mobil Corp., Marathon Oil Corp., Chevron U.S.A., Inc., and Texaco Inc. filed a motion to dismiss, arguing that the Soliz Plaintiffs lack statutory standing to bring wrongful death and survival action claims. R. Doc. 352. These Defendants argue that the Soliz Plaintiffs lack standing under Louisiana Civil Code articles 2315.1, governing survival actions, and 2315.2, governing wrongful death actions, because they have not proven their biological relationship to the decedent, Federico Lopez. R. Doc. 352-1 at 3. These statutes, they argue, provided causes of action to specific, statutorily designated beneficiaries who are biologically related to the tort victim. In their petition, the Soliz Plaintiffs assert that they are the children of Federico Lopez but concede that paternity had not been established at the time of filing. R. Doc. 352-1 at 4. Accordingly, without a determination of a biological relationship between the Soliz Plaintiffs and the decedent, Defendant argue the Soliz Plaintiff are unable to state a claim for recovery under these statutes. R. Doc. 352-1. The motions filed by General Electric Co., R. Doc. 358, and Emerson Electric, Co., R. Doc. 357, are identical.

Defendants Goulds and ITT also filed a motion to dismiss. R. Doc. 356. Like the other Defendants, Goulds and ITT challenge the Soliz Plaintiffs' standing to bring wrongful death and survival action claims in light of the lack of established paternity. R. Doc. 356-1 at 11. In addition, Goulds and ITT argue the Soliz claims against them must be dismissed because these same claims had already been dismissed with prejudice in the Lopez matter. R. Doc. 356-1 at 3. Goulds and ITT argue that they had already settled with the Lopez Plaintiffs when the Soliz Plaintiffs filed suit. R. Doc. 356-1 at 3. They contend that a survival action involves the substitution of new parties for an original plaintiff, and that when such substitution occurs, "the lawsuit continues in the procedural posture existing at the time the substitution became necessary." R. Doc. 356-1 at 4 (quoting Rainey v. Entergy Gulf States, Inc., 2001-2414 (La. App. 1 Cir. 6/25/04); 885 So. 2d 1193, 1204). Defendants concede that the substitution of the Lopez Plaintiffs for the decedent, Federico Lopez, was proper under the survival action statute. However, they argue that even if the Soliz Plaintiffs have standing, their survival action claim is consolidated with the Lopez's survival action claim, such that "any changes to the procedural posture of this case have res judicata effect as to the Soliz Plaintiffs." R. Doc. 356-1 at 5. Accordingly, Defendants argue that their dismissal in the Lopez matter should preclude the Soliz Plaintiffs from asserting new claims against them. R. Doc. 356-1 at 6. Similarly, Defendants Goulds and ITT also argue that the Soliz Plaintiffs' wrongful death action must be dismissed because a wrongful death action must be joined by all survivors of the decedent entitled to recover damages. R. Doc. 356-1 at 6.

Defendants contend that instead of joining the wrongful death action already initiated by the Lopez Plaintiffs, the Soliz Plaintiffs initiated a "separate and duplicative" claim that must be dismissed. R. Doc. 356-1 at 7.

III. LAW & ANALYSIS

A. Standing

Motions to dismiss for lack of statutory standing are considered under Federal Rule of Civil Procedure 12(b)(6). Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 (5th Cir. 2011). This is in contrast to challenges to constitutional standing, which are governed by Rule 12(b)(1). Id.

The Federal Rules of Civil Procedure permit a defendant to seek dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 47 (1957). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The district court must construe facts in the light most favorable to the nonmoving party and must accept as true all factual allegations contained in the complaint. Iqbal, 556 U.S. at 678. A court "do[es] not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions." Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). Louisiana Civil Code articles 2315.1, governing survival actions, and 2315.2, governing wrongful death claims, provide a cause of action to certain classes of individuals who survive a tort victim. These causes of action operate in favor of the following exclusive, hierarchical list of beneficiaries:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children. (2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. (3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

La. Civ. Code arts. 2315.1, 2315.2. This hierarchy of beneficiaries must be strictly construed. Craig v. Scandia, Inc., 634 So. 2d 944, 945 (La. Ct. App.).

An essential element of a claim under articles 2315.1 and 2315.2 is a particular biological relationship between the plaintiff and the decedent. In the various motions to dismiss, Defendants all argue that the Soliz Plaintiffs have failed to state a claim under either statute because, at the time of filing, their relationship to the decedent was in question. For the purpose of the statutes, "children" means "those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law." La. Civ. Code art. 3506(8); Williams v. Board of Supervisors of Univ. of Louisiana Sys., 48,763 (La. App. 2 Cir. 2/26/14), 135 So. 3d 804, 819. "The critical requirement for classification of a person as a child under article 2315.2 is the biological relationship between the tort victim and the child." Jenkins v. Mangano Corp., 2000-0790 (La. 11/28/00), 774 So. 2d 101, 103. The Louisiana Supreme Court has held that "[i]t is of no consequence that the child is legitimate or illegitimate for purposes of deciding whether the child may bring an action under Article 2315, all children have the right to bring an action for wrongful death and survival action." Id. at 103. This is because "it is the biological relationship and dependency which is determinative of the child's rights in these cases, and not the classification into which the child is placed by the statutory law of the State." Warren v. Richard, 296 So. 2d 813, 817 (La. 1974).

Accordingly, the Soliz Plaintiffs have standing to bring survival and wrongful death claims if they are determined to be the biological children of Federico Lopez. Louisiana Civil Code article 197, governing filiation, provides that when a parent is

deceased, alleged children must demonstrate paternity with clear and convincing evidence. La. Civ. Code art. 197 rev. cmt. (d). All relevant evidence is admissible for this purpose. Id. cmt. (c). Although their standing was uncertain at the time they filed suit, Plaintiffs have provided the results of a DNA test that indicates that the probability of sharing a biological parent with Federico Lopez, III, one of the Lopez Plaintiffs, exceeds 99%.[1] R. Docs. 381-1. The evidence has not been refuted. Having demonstrated that it is highly probable that they are the biological children of the decedent, the Soliz Plaintiffs have standing to bring their survival action and wrongful death claims.

B. Res Judicata

Defendants Goulds and ITT additionally argue that even if the Soliz Plaintiffs have standing, they should be precluded from asserting claims against Goulds and ITT specifically. They argue that survival actions and wrongful death actions must be joined by all surviving beneficiaries with the right to bring suit, and that any litigants who join such an action "inherit the action as they find it." R. Doc. 356-1 at 6. Goulds and ITT further explain that because the Lopez Plaintiffs' claims against them were dismissed prior to the consolidation of the Soliz Plaintiffs' lawsuit, the Soliz Plaintiffs' claims against them must also be dismissed.[2]R. Doc. 356-1 at 6.

At the outset, the Court notes that survival actions and wrongful death claims "are separate and distinct causes of action." Ayo v. Johns-Manville Sales Corp., 771 F.2d 902, 906 (5th Cir. 1985) (citing Guidry v. Theriot, 377 So.2d 319, 322 (La. 1979)). A survival action is an action brought by a decedent's statutorily designated beneficiaries to recover the damages the decedent himself could have recovered. Id. In contrast, a wrongful death claim permits the same beneficiaries to recover damages the beneficiaries themselves sustained as a result of the decedent's death. Id. Accordingly, the Court considers these causes of action separately.

A. Survival Action

Article 801 of the Louisiana Code of Civil Procedure provides that "[w]hen a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party." La. Code Civ. Proc. 801. In relevant part, a "legal successor" is defined as those individuals "designated in Article 2315.1 of the Civil Code." Id. As previously explained, Article 2315.1 provides a cause of action to, among others, the surviving spouse and children of a deceased tort victim, allowing them to recover for the injuries suffered by the tort victim prior to his death. "A survival action permits recovery of the damages suffered by a tort victim from the time of injury until the moment of death." Palermo v. Port of New Orleans, 2004-1804 (La. App. 4 Cir. 1/19/07), 951 So. 2d 425, 433. Accordingly, a survival action is a single cause of action jointly shared by all members of the class statutorily authorized to recover. Id. Under Louisiana law, when a tortfeasor owes a performance for the common benefit of multiple individuals, the obligation is divisible and "each joint obligee is entitled to receive[] only his portion." La. Civ. Code arts. 1788-89. Because a tortfeasor in a survival action owes a performance to the entire class of beneficiaries, "[a]ny judgment for the payment of money damages is a divisible obligation." Gibbs v. Magnolia Living Ctr., Inc., 38,184 (La. App. 2 Cir. 4/7/04), 870 So. 2d 1111, 1115, writ denied, 2004-1148 (La. 7/2/04), 877 So. 2d 146.

When Mr. Lopez passed away, his surviving spouse and children, legitimate and illegitimate alike, were authorized to pursue a survival action under article 2315.1. The Court construes the involvement of both the Lopez and Soliz Plaintiffs in this matter as a proper substitution under article 801. "Ordinarily, when substitution of a party pursuant to [Louisiana Code of Civil Procedure 801] is necessary, the lawsuit continues in the procedural posture existing at the time substitution became necessary." Rainey, 885 So. 2d at 1204. Typically, in a survival action, a judgement rendered "prior to the substitution of parties, . . . will be res judicata with respect to the substituted successors." Id. A dismissal with prejudice is considered a final judgement for the purposes of preclusion. See Sims v. American Ins. Co., 2012-0204 (La. 10/16/12), 101 So. 3d 1, 7. Accordingly, the dismissal of claims against Goulds and ITT with prejudice in the survival action have a preclusive effect on the claims of the Soliz Plaintiffs because the claims were settled and dismissed prior to the Soliz's consolidation in this matter.

The Court notes, however, that the Lopez and Soliz Plaintiffs are members of the same class of beneficiaries who are each entitled to recover their individual portion of damages. When there are multiple members of a recovering class of beneficiaries, the award in a survival action is equally shared among them. Austrum v. City of Baton Rouge, 282 So. 2d 434,

439 (La. 1973). In the instant case, the surviving spouse and siblings are each entitled to recover one-fourth of the proceeds from the survival action. To the extent that the Soliz Plaintiffs are now precluded from pursuing a survival action against Goulds and ITT directly, they may seek recovery of their share of settlement proceeds from the Lopez Plaintiffs. B. Wrongful Death

With respect to wrongful death claims, the Louisiana Supreme Court has explained that "[a]ll beneficiaries in the same dominant class have the right to bring their own individual wrongful death action even though all the beneficiaries seek recovery for the damages they individually sustained as a result of the death of the same person."[3] Lockett v. State, Dep't of Transp. & Dev., 2003-1767 (La. 2/25/04), 869 So. 2d 87, 94, overturned due to legislative action. These separate actions may, but are not required to be, "cumulated in a single suit when there is a community of interest." Id. (citing La. Civ. Code art. 463).

Under Louisiana law, when an obligation is owed to multiple persons, the obligation is severable, such that a tortfeasor owes a separate performance to each member of a class of beneficiaries entitled to bring a wrongful death claim. La. Civ. Code art. 1787. A wrongful death claim seeks to compensate a beneficiary for "their own individual injury" resulting from a tort victim's death. Gibbs, 870 So. 2d at 1114 (emphasis added). The damages elements of a wrongful death claim may involve "loss of love, affection, companionship, services, support, medical expenses, and funeral expenses. . . [as well as] the mental pain, suffering, and distress resulting from the death of the victim."[4] Hill v. Shelter Mut. Ins. Co., 2005-1783 (La. 7/10/06), 935 So. 2d 691, 695. The amount of general damages recoverable by each beneficiary depends on "the differing degrees of affection which existed between the deceased and the different members of the class." Gibbs, 870 So. 2d at 1114. Accordingly, Goulds and ITT both conceivably owe separate obligations to the Soliz Plaintiffs, and the Lopez Plaintiffs have no right or ability to settle the Soliz Plaintiffs' individual wrongful death claims.

IV. CONCLUSION

For the foregoing reasons,

IT IS ORDERED that Defendants Exxon Mobil Corp., Marathon Oil Corp., Chevron U.S.A., Inc., and Texaco Inc.'s, R. Doc. 352, Emerson Electric's, R. Doc. 357, and General Electric's, R. Doc. 358, motions to dismiss are DENIED. IT IS FURTHER ORDERED that Defendants Goulds Pumps, LLC, and ITT, LLC's motion to dismiss, R. Doc. 356, is DENIED IN PART and GRANTED IN PART. It is denied with respect to the wrongful death claims and granted with respect to the survival claim.

[1] According to the DNA Test Report provided by Plaintiffs in their reply memorandum, the probability of half-siblingship between Alfred Soliz and Federico Lopez III is 99.5%, and the likelihood that they share a biological parent is 221 to 1. The same test reveals that the probability of Jessica Soliz and Federico Lopez being half-siblings is 99.8%, and their likelihood of sharing a biological parent is 620 to 1. R. Doc. 380-2.

[2] Goulds Pumps, LLC and ITT, LLC represent that they settled with the Lopez Plaintiffs on June 14 and 16, 2019. R. Doc. 356-1 at 2. On January 11, 2019, the Court granted joint motions to dismiss all claims against Goulds Pumps, LLC and ITT, LLC with prejudice. R. Doc. 163, 164. The Soliz matter was filed in state court on November 8, 2018 and removed to federal court on March 8, 2019. On June 9, 2019, the Soliz matter was consolidated with the Lopez matter. R. Doc. 268.

[3] The Court notes that Defendants cite numerous cases that hold, contrary to Lockett, that a survival action must be joined by all entitled beneficiaries. See e.g., Morrison v. New Orleans Pub. Serv. Inc., 415 F.2d 419, 424 (5th Cir. 1969) ("In short, the law of Louisiana is that a single wrongful death results in a single cause of action belonging jointly to all survivors of the decedent who are entitled by statute to damages."). The Court is unable to explain the disparity between these cases and Lockett but notes that the cases cited by Plaintiff were decided over forty-years ago. Accordingly, the Court will apply the reasoning from Lockett, the Louisiana Supreme Court's most recent and clear pronouncement on the topic.

[4] In contrast, a wrongful death claimant may not recover special damages for his or her own post-accident medical or psychological care. See Transco Leasing Corp. v. United States, 896 F.2d 1435, 1455 (5th Cir.), amended on reh'g in part, 905 F.2d 61 (5th Cir. 1990).

Sources

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