McAllister v. McDERMOTT, Inc. (2018)

Our plain-English summary of McAllister v. McDERMOTT, Inc. (U.S. District Court, Middle District of Louisiana, July 31, 2018).

James T. McAllister, Jr. sued McDermott, Inc. and about two dozen other defendants over mesothelioma he said was caused by asbestos exposure. He filed in state court in January 2018, and the case was removed to federal court in Baton Rouge in March 2018. Citing his rapidly declining health, he asked the court for an expedited trial date. He relied on a Louisiana rule giving scheduling preference to people who are very ill or over seventy, and on the federal statute allowing expedited consideration for good cause. Air & Liquid Systems Corporation opposed, noting that the case had twenty-seven defendants, was at an early stage of discovery, and still lacked expert reports from at least eleven experts. The court denied the motion. It said it was sympathetic but that a trial within months would unfairly prejudice the defendants. It also said its docket had no openings until spring 2019 and that criminal cases take precedence over civil ones.

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, Middle District of Louisiana
• Decided: July 31, 2018
• Docket: Civil Action No. 18-361-SDD-RLB
• Stage: Other
• State: Louisiana

Outcome. The court denied plaintiff James McAllister's motion for an expedited trial setting, which Air & Liquid Systems Corporation had opposed.

What the court held. A plaintiff's failing health did not establish good cause to expedite trial under 28 U.S.C. § 1657(a) or Rule 16 where discovery was at an early stage, the court's docket was full, and an expedited trial would prejudice the defendants.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• James T. McAllister, Jr.: mesothelioma

The defendants

• Air & Liquid Systems Corporation (manufacturer)
• McDermott, Inc., f/k/a J. Ray McDermott & Co., Inc.

Other decisions in this case

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

• McAllister v. McDERMOTT, Inc. (May 19, 2020). The court denied defendant Nash Engineering's motion for partial summary judgment on the McAllister plaintiffs' damages claims, but limited recovery of loss of income and household services to the surviving spouse as executrix of the estate.
• McAllister v. McDERMOTT, Inc. (August 14, 2020). The court granted summary judgment to Tate Andale (no successor liability) and Velan Valve (no evidence of exposure) and denied it to Spirax Sarco, Air & Liquid Systems and Flowserve, so the plaintiffs' claims against those three 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.

JAMES T. McALLISTER, JR.,

v.

McDERMOTT, INC., f/k/a J. RAY McDERMOTT & CO., INC., ET AL.

Civil Action No. 18-361-SDD-RLB.

July 31, 2018.

United States District Court, M.D. Louisiana.

James T. McAllister, Jr., Plaintiff, represented by Frank J. Swarr, Landry & Swarr, LLC, Amanda Jones Ballay, Landry & Swarr, Jean-Michel LeCointre, Simmons Hanly Conroy, pro hac vice, Jeffrey A. O'Connell, The Nemeroff Law Firm, Matthew C. Clark, Sher, Garner, Cahill, Richter, Klein, McAlister & Hilbert, Melissa C. Schopfer, Simmons Hanly Conroy, pro hac vice, Mickey P. Landry, Landry & Swarr, LLC & Philip Charles Hoffman, Landry & Swarr, LLC.

Air & Liquid Systems Corporation, Defendant, represented by Jeffrey P. Hubbard, Hubbard Mitchell Williams and Strain, PLLC, pro hac vice & Stacey Leigh Strain, Hubbard, Mitchell, Williams, and Strain, PLLC.

Armstrong International, Inc., Defendant, represented by Robert E. Peyton, Christovich & Kearney & James A. Holmes, Christovich & Kearney.

Anco Insulations, Inc., Defendant, represented by Jamie H. Baglio, Pugh, Accardo, Haas, Radecker & Carey, LLC, Donna Mannina Young, Pugh Accardo Haas Radecker Carey and Hymel LLC, Douglas R. Elliott, Pugh, Accardo, Haas, Radecker & Carey, LLC & Margaret Moran Joffe, Pugh, Accardo, Haas, Radecker & Carey, LLC.

Aurora Pump Company, Defendant, represented by Brandie Mendoza Thibodeaux, MG+M Law Firm, Glenn Lyle Maximilian Swetman, Manion Gaynor & Manning, LLC & Helen Meredith Buckley, Manion Gaynor & Manning LLP.

Carrier Corporation, Defendant, represented by Joseph M. Guillot, Christovich & Kearney.

Cleaver-Brooks, Inc., General Electric Company & Trane US, Inc., Defendants, represented by John J. Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Frilot, LLC, James H. Brown, Jr., Frilot, Partridge, LC, Kelly Lorraine Long, Frilot LLC, Kelsey Anne Eagan, Frilot L.L.C., Lacey T. McCoy, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot LLC.

Crane Co., Defendant, represented by Donna Mannina Young, Pugh Accardo Haas Radecker Carey and Hymel LLC, Jacqueline Romero, Pugh, Accardo, Haas, Radecker, Carey, Loeb & Hymel, Lawrence G. Pugh, III, Pugh, Accardo, Haas, Radecker & Carey, LLC & Shelley L. Thompson, Pugh, Accardo, Haas & Radecker, LLC.

Flowserve US, Inc., Defendant, represented by Stacey Leigh Strain, Hubbard, Mitchell, Williams, and Strain, PLLC. Goodyear Tire & Rubber Company, Defendant, represented by Gregory E. Bodin, Baker, Donelson, Bearman, Caldwell & Berkowitz, Christopher Michael Vitenas, Baker Donelson Bearman Caldwell & Berkowitz PC & Robert S. Emmett, Baker, Donelson, Bearman, Caldwell & Berkowitz.

The Gorman-Rupp Company, Defendant, represented by Donna Mannina Young, Pugh Accardo Haas Radecker Carey and Hymel LLC, Jacqueline Romero, Pugh, Accardo, Haas, Radecker, Carey, Loeb & Hymel & Lawrence G. Pugh, III, Pugh, Accardo, Haas, Radecker & Carey, LLC.

Goulds Pumps, LLC & ITT CORPORATION, Defendants, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius LLP & Mitchell F. Tedesco, Morgan, Lewis & Bockius.

McCarty Corporation, Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April A. McQuillar, Simon, Peragine, Smith & Redfearn, L.L.P., Douglas R. Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas W. Redfearn, Simon, Peragine, Smith & Redfearn, LLP, Janice Marie Culotta, Simon, Peragine, Smith & Redfearn, LLP & Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP.

McDermott, Inc., Defendant, represented by Joseph J. Lowenthal, Jr., Jones Walker LLP & Madeleine Fischer, Jones Walker LLP.

The Nash Engineering Company, Defendant, represented by Paul D. Palermo, Blue Williams, LLC, Brett Tweedel, Blue Williams LLP, Craig V. Sweeney, Blue Williams, L.L.P. & Cynthia Cleland Roth, Blue Williams, LLP.

Powell Valves, formerly known as The William Powell Company, Defendant, represented by Paula M. Wellons, Taylor, Wellons, Politz & Duhe & Desiree W. Adams, Taylor, Wellons, Politz & Duhe, APLC.

Spirax-Sarco, Inc., Defendant, represented by Ralph H. Wall, Couhig Partners, LLC.

Tate Andale, Inc., Defendant, represented by Lawrence G. Pugh, III, Pugh, Accardo, Haas, Radecker & Carey, LLC & Kathleen Jordan, Pugh Accardo Haas Radecker & Carey, LLC.

Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larman, Papale & Richard J. Garvey, Jr., Hailey McNamara Hall Larmann & Papale LLC.

Travelers Insurance Company, Defendant, represented by Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Annissa M. Alario, Garrison Yount Forte & Mulcahy, Darrin L. Forte, Garrison, Yount, Lormand, Forte & Mulcahy, LLC, Katherine L. Osborne, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Kevin Truxillo, Garrison, Yount, Forte & Mulcahy, LLC & Lyon H. Garrison, Garrison, Yount, Forte & Mulcahy, LLC.

Velan Valve Corporation, Defendant, represented by Robert E. Dille, Maron Marvel Bradely Anderson & Tardy & Shelley Kathryn Napolitano, Maron Marvel Bradley Anderson & Tardy.

York International Corporation, Defendant, represented by Rocky Wayne Eaton.

Warren Pumps, LLC, Defendant, represented by Joseph Henry Hart, IV, Pugh, Accardo, Daniel Edwin Oser, Duncan Courington & Rydberg LLC, Kathleen Jordan, Pugh Accardo Haas Radecker & Carey, LLC & Thomas A. Porteous, Pugh Accardo.

Weir Valves & Controls USA, Inc., Defendant, represented by Jennifer E. Adams, Deutsch, Kerrigan & Stiles, Arthur Wendel Stout, III, Deutsch, Kerrigan & Stiles, Barbara Bourgeois Ormsby, Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Deutsch Kerrigan, LLP & William C. Harrison, Jr., Deutsch, Kerrigan & Stiles.

Atwood & Merrill, Defendant, represented by Jason P. Franco, Deutsch Kerrigan, LLP.

RULING

SHELLY D. DICK, Chief District Judge.

This matter is before the Court on the Motion for Expedited Trial Setting filed by Plaintiff, James T. McAllister ("Plaintiff").[1] Defendant Air & Liquid Systems Corporation ("Defendant") has filed an Opposition[2] to this motion. Counsel for Plaintiff recently filed correspondence in this matter updating the Court on Plaintiff's failing health.[3]

This lawsuit was filed by Plaintiff in state court on January 8, 2018 and was removed to this Court on March 29, 2018. This case arises out of Plaintiff's diagnosis of mesothelioma allegedly caused by his exposure to asbestos. Plaintiff sat for a deposition on February 27 and 28, 2018. On May 14, 2018, Plaintiff filed the pending motion seeking an expedited trial date due to his rapidly declining health.

Defendant opposes this motion noting that this case involves twenty-seven defendants, remains in the very early stages of discovery, and expert reports for at least eleven identified experts have yet to be exchanged.

Both Parties cite to 28 U.S.C. § 1657(a), which provides, in pertinent part: "each court of the United States shall determine the order in which civil actions are heard and determined, except that the court shall expedite the consideration of any action. . . if good cause therefor is shown." The statute states that "good cause" is shown "if a right under the Constitution of the United States or a Federal Statute. . . would be maintained in a factual context that indicates that a request for

expedited consideration has merit." Additionally Rule 16 of the Federal Rules of Civil Procedure grants courts wide discretion in managing their dockets.

Plaintiff relies on La Code Civ. Pro. Art. 1573, which provides:

The court shall give preference in scheduling upon the motion of any party to the action who presents to the court documentation to establish that the party has reached the age of seventy years or who presents to the court medical documentation that the party suffers from an illness or condition because of which he is not likely to survive beyond six months, if the court finds that the interests of justice will be served by granting such preference.

Defendant notes that there is no similar provision in the Federal Rules of Civil Procedure which apply here; however, Plaintiff maintains that "the spirit of this rule is embodied within 28 U.S.C. § 1657(a)."[4]

The Court is not without compassion for Plaintiff's circumstances; however, the Court must deny Plaintiff's motion for a number of reasons. First, the Court has an obligation to ensure a fair trial for all parties involved. Considering the procedural posture of this litigation, it would be highly prejudicial to all Defendants, considering what remains to be accomplished through discovery, to force them to go to trial in a matter of months. Second, the Court's docket simply has no availability to set this trial, or any other trial, until the spring of 2019.[5] Third, the Court maintains an active criminal docket, with several criminal cases involving multi-defendant drug conspiracy charges, and criminal matters and settings take precedence over all civil matters as a matter of law.

In short, while the Court is sympathetic to Plaintiff's failing health, the Court is unable to provide Plaintiff with an expedited trial date. As the District Court for the Eastern District of Louisiana recently stated: "Many litigants have compelling reasons to desire a speedy remedy, however, and the Court's schedule does not permit expedited consideration of all these cases." [6] Further, the Court finds that it would not be in the interests of the justice to force the Defendants to an expedited trial without adequate time for discovery and preparation.

Accordingly, Plaintiff's Motion for Expedited Trial Setting[7] is DENIED.

IT IS SO ORDERED.

[1] Rec. Doc. No. 30.

[2] Rec. Doc. No. 42.

[3] Rec. Doc. No. 53.

[4] Rec. Doc. No. 30-1, pp. 3-4.

[5] The Court notes that, following the untimely passing of United States Senior Judge James Brady in December 2017, who maintained an active docket as a senior judge, the three active district judges of the Middle District of Louisiana each absorbed one-third of Judge Brady's pending criminal and civil dockets along with all hearing and trial dates previously set therein.

[6] Berensen v. Administrators of the Tulane University Educational Fund, No. , 2017 WL 3480794 at [*2] (E.D. La. Aug. 14, 2017)(citing Achagzai v. Broad. Bd. of Governors, 109 F. Supp. 3d 67, 72 (D.D.C. 2015) (finding that plaintiffs' interest in prompt resolution of the litigation did not constitute good cause to expedite trial, where plaintiffs were all at least 60 years old and some were in poor health)). [7] Rec. Doc. No. 30.

Sources

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