McAskill v. American Marine Holding Co. (2009)

Our plain-English summary of McAskill v. American Marine Holding Co. (Louisiana Court of Appeals, March 4, 2009).

Neil McAskill sued after developing malignant mesothelioma. He had worked as a mechanic for American Marine in New Orleans beginning in 1952, in a building containing the pipe shop. He testified that he worked with and around asbestos-containing pipe insulation and cloth and had applied insulation himself. He sued Eagle, Branton and Branton's insurer, Commercial Union. The trial court granted them summary judgment because there was no evidence that they supplied asbestos insulation to American Marine. The Court of Appeal reviewed the ruling fresh and reversed. A former American Marine purchasing employee, Robert Honold, testified that Eagle and Branton were insulation vendors and that the insulation, including Kaylo and Pabco, contained asbestos. Eagle's president said industrial pipe insulation contained asbestos until the early 1970s, and agreements showed Eagle distributed Pabco insulation. McAskill's wife recalled processing Branton invoices, and Branton had destroyed its records in 1982. The court held that this evidence let a reasonable person find the defendants sold asbestos insulation to American Marine, and the case was sent back for further proceedings.

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: Louisiana Court of Appeals, 4th Circuit
• Decided: March 4, 2009
• Citation: 9 So.3d 264
• Docket: No. 2007-CA-1445
• Stage: Appeal from summary judgment
• State: Louisiana

Outcome. 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.

What the court held. In a latent mesothelioma case, a plaintiff need show only that the defendant's asbestos-containing product was a substantial factor in causing the disease, which can be met by showing he actively worked with asbestos-containing materials; circumstantial evidence that the defendant supplied such insulation to the employer creates a genuine fact issue that precludes summary judgment.

Issues decided: Causation, Product Identification.

Why this case is relevant

The Louisiana Fourth Circuit Court of Appeal reversed a summary judgment for two insulation suppliers and an insurer. It held that a mechanic's testimony that he handled asbestos insulation, together with circumstantial evidence that the defendants sold such insulation to his employer, created a genuine factual dispute for trial. The court also said the worker could not be expected to produce records that one supplier had destroyed. On causation, the court applied rules from its earlier decisions rather than announcing new ones. A mesothelioma plaintiff need show only that the defendant's product was a substantial factor. That burden can be met by showing active work with asbestos-containing materials, and every non-trivial exposure contributes to the disease.

Later courts cite it mostly for these restated causation principles. Louisiana courts of appeal have quoted it for the medical link between asbestos and mesothelioma and for the active-work standard. Federal trial courts in the Eastern District of Louisiana cite it, often by way of an earlier ruling from that court, for the non-trivial exposure principle and for showing significant exposure at summary judgment. A Delaware trial court also cited it in a summary judgment ruling.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Neil C. McAskill: mesothelioma

Who	Work	Where	When	Products
Neil C. McAskill	mechanic (shipyards and maritime work)	American Marine facility, New Orleans, Louisiana	beginning in 1952	pipe and block insulation, asbestos textiles, Kaylo, Pabco

The defendants

• Eagle, Inc. (formerly Eagle Asbestos & Packing Co., Inc.) (supplier)
• Branton Insulations, Inc. (supplier)
• Commercial Union Insurance Company (insurer)
• American Marine Holding Company (employer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Thibodeaux v. Asbestos Corp. Ltd. (Louisiana Court of Appeals, 4th Circuit, 2008). The Louisiana Court of Appeal affirmed the summary judgment that dismissed Eagle Asbestos & Packing Company and its insurer OneBeacon, so the Thibodeauxs lost their claims against those two defendants.
• Grant v. American Sugar Refining, Inc. (Louisiana Court of Appeals, 4th Circuit, 2007). The appeals court reversed the summary judgment for Eagle, Inc. and remanded to the trial court, ruling for plaintiff Thelonius Grant because genuine factual issues about exposure remained and the trial court misapplied the expert-evidence standard.
• Torrejon v. Mobil Oil Co. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed the trial court's judgment notwithstanding the verdict for plaintiff Christina Torrejon against Mobil Oil Company, including the $1.8 million general damage award, and refused to reduce Mobil's liability for the settling manufacturers' fault.
• Vodanovich v. AP Green Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed summary judgment for Sank, Inc. (formerly Buck Kreihs Co.) and Dixie Machine Welding and Metal Works, dismissing the wrongful death claim of the longshoreman's estate for lack of proof of exposure.
• Hennegan v. Cooper/T. Smith Stevedoring Co. (Louisiana Court of Appeals, 4th Circuit, 2002). The Louisiana Court of Appeal affirmed the bench-trial judgment for Mary Hennegan and her late husband's estate against Garlock, Inc., which had to pay the damages less Cooper/T. Smith's 20 percent share.

Later decisions citing this one

23 later decisions in our library cite this one:

• Pete v. Boland Marine and Manufacturing Company, LLC (Louisiana Court of Appeals, 4th Circuit, 2023). The appeals court affirmed the judgment on the jury verdict against Ports America Gulfport, Inc. (with Cooper T. Smith and Safmarine) for Henry Pete's take-home asbestos exposure and his mesothelioma, including the $10,351,020 award, and rejected Ports America's challenges.
• Steib v. Lamorak Insurance Company (Louisiana Court of Appeals, 4th Circuit, 2021). The court of appeal affirmed the summary judgment dismissing Parsons Government Services and Marathon Petroleum from the Steib family's wrongful death and survival suit, so the plaintiffs lost against those two defendants.
• Oddo v. Asbestos Corporation Ltd. (Louisiana Court of Appeals, 4th Circuit, 2015). The appeals court reversed the judgment against Clariant/Southern Talc, affirmed Ford's liability, reallocated fault to Ford 65%, Union Carbide 25% and Higgins 10%, and amended the survival damages award against Ford, so the plaintiffs lost against Southern Talc but kept their judgment against Ford.
• Francis v. Union Carbide Corporation (Louisiana Court of Appeals, 4th Circuit, 2013). The appeals court reversed the trial court's summary judgment for Continental Insurance Company (Pendleton Shipyard's insurer) and remanded for further proceedings, ruling for plaintiff Rendon Francis.
• Robertson v. Doug Ashy Building Materials, Inc. (Louisiana Court of Appeals, 1st Circuit, 2011). The appeals court reversed the summary judgment that had dismissed Union Carbide, and reversed the order striking part of Dr. Mark's testimony, so the plaintiffs (Harris Robertson's wife and children) won and the case was sent back to the trial court.
• Crossland v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court granted Woodward Design & Build's summary judgment motion on the strict liability claim and on exposure to products other than joint compound and pipe insulation, denied it on the negligence claim based on those two products, and denied Woodward's motion to exclude the two causation experts.
• Crossland v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court granted defendant Burmaster Land and Development Co.'s unopposed motion for summary judgment against plaintiff Linda Crossland because she identified no evidence of exposure to asbestos from Burmaster's activities.
• Hutchins v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The district court denied the Hutchins plaintiffs' motions for partial summary judgment on exposure and causation as to A.W. Chesterton, Babcock & Wilcox, Combustion Engineering, Dixie Machine, Foster Wheeler and International Paper, so Continental Insurance and Avondale (Huntington Ingalls) prevailed on the motions.
• Hutchins v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court granted summary judgment to Huntington Ingalls (as successor to Ingalls Shipyard), Redco, Sank, Inc. and Bayer CropScience for lack of evidence that Mr. Hutchins was exposed to their asbestos, and denied John Crane's motion, so claims involving John Crane's gaskets and packing proceed.
• King v. Metropolitan Life Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2023). 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.
• Ragusa v. Louisiana Guaranty Insurance Association (U.S. District Court, Eastern District of Louisiana, 2023). The court denied all nine summary judgment motions by premises owners and product companies, so Ragusa's asbestos claims against Pharmacia, Legacy Vulcan, Syngenta, Marathon, Murphy Oil, International Paper, Westinghouse and Riley Power continue.
• King v. Metropolitan Life Ins. Co. (U.S. District Court, Eastern District of Louisiana, 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.
• 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.
• Roussell v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted summary judgment to General Electric and Foster Wheeler because Roussell did not oppose the motions, and dismissed her claims against them with prejudice.
• Roussell v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Westinghouse's motion for summary judgment and dismissed Marsha Roussell's claim against it with prejudice, because she offered no evidence of exposure to Westinghouse-related asbestos.
• Sampey v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted the unopposed summary judgment motions of Grefco and Viking Pump and dismissed the claims against them by the plaintiffs and crossclaimant Avondale with prejudice.
• Sampey v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted the unopposed summary judgment motions of Goulds Pumps and Crown Cork & Seal and dismissed the plaintiffs' claims against them with prejudice.
• Sampey v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Crescent Materials' unopposed motion for summary judgment and dismissed the plaintiffs' claims against it with prejudice.
• Sentilles v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted the unopposed summary judgment motions of Union Carbide, Amchem, Zurich (as alleged insurer of Marquette) and John Crane, and dismissed Sentilles's and Huntington Ingalls (Avondale)'s claims against them with prejudice.
• Broussard v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2021). The court granted Huntington Ingalls' (as successor to Standard Paint and Varnish) motion for partial summary judgment and dismissed with prejudice the plaintiffs' claims relating to Standard Paint and Varnish, because exposure was not sufficiently shown.
• Broussard v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2021). The court granted General Electric's motion for summary judgment and dismissed plaintiffs' claims against it with prejudice, and denied Uniroyal's motion for summary judgment on Huntington Ingalls' third-party claim.
• Laurent v. New Orleans City (U.S. District Court, Eastern District of Louisiana, 2015). The court granted summary judgment to GE, CBS and Foster Wheeler because the plaintiff, Scott Laurent, did not produce evidence that his father was exposed to asbestos from their products; the defendants' motions for leave to reply were denied as moot.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (Delaware Superior Court, 2011). The court granted CertainTeed Corp.'s motion for summary judgment, ruling against plaintiffs Raymond and Sussanah Foucha because they lacked evidence that he was exposed to an asbestos-containing CertainTeed product.

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.

9 So.3d 264 (2009)

Neil C. McASKILL

v.

AMERICAN MARINE HOLDING COMPANY, etal.

No. 2007-CA-1445.

March 4, 2009.

Court of Appeal of Louisiana, Fourth Circuit.

[*265] Mickey P. Landry, Frank J. Swarr, David R. Cannella, Landry & Swarr, L.L.C., New Orleans, LA, for Plaintiff/Appellant. Susan B. Kohn, Douglas R. Kinler, Michael D. Harold, James R. Guidry, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, LA, for Defendant/Appellee (Eagle, Inc.).

Samuel M. Rosamond III, Adam DeMahy, Crawford Lewis, PLLC, New Orleans, LA, for Defendant/Appellee (Commercial Union Insurance Company).

David J. Bourgeois, Corey M. Oubre, Jaime M. Cambre, Duplass Zwain Bourgeois Morton Pfister & Weinstock, Metairie, LA, for Defendant/Appellee (Branton Insulations, Inc.).

(Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).

MICHAEL E. KIRBY, Judge.

Plaintiff appeals the trial court's granting of defendants' motion for summary judgment.

This litigation arises out of a claim for personal injuries filed by Neil McAskill for his contraction of malignant mesothelioma while he worked at the American Marine facility in New Orleans. Defendants Eagle, Inc. (formerly known as "Eagle Asbestos & Packing Co., Inc." hereinafter "Eagle"), Branton Insulations, Inc., (hereinafter "Branton"), and Commercial Union, liability insurer of Branton, moved for summary judgment, arguing that there was no evidence that Eagle or Branton ever supplied asbestos insulation to American Marine, plaintiff's employer.

In opposition to those motions for summary judgment, plaintiff offered the following items of evidence: 1. Neil McAskill's November 28, 2006 deposition.

2. Robert Honold's September 24, 2007 deposition.

3. Sworn testimony of Fred Schuber, President of Eagle.

4. A Letter dated October 5, 1972, from Fred Schuber to Frenchie Bordelon, the insulation Superintendent of Avondale Shipyards.

5. Documents establishing that Eagle was the authorized insulation contractor for PABCO in Louisiana in the 1950's-'60's.

6. A Fiberboard document dated September 29, 1971, in which this manufacturer of PABCO, announced a

new [*266] asbestos-free version of its previously asbestos-containing PABCO.

7. Sworn testimony of Eagle, as represented by Fred Schuber.

8. Sworn testimony of Tom Branton, President of Branton Insulations.

9. The affidavit of plaintiff's wife, Barbara, who worked at American Marine in the accounting department for roughly ten years beginning in August of 1969, which states she recalls processing invoices from Branton Insulations.

Defendants' Motion for Summary Judgment argued that plaintiff presented no evidence that Mr. McAskill was exposed to any specific Eagle or Branton asbestos products by way of sale, distribution, supply and/or installation. The trial court granted Eagle and Branton's motions.

DISCUSSION

Our review of this grant of summary judgment is de novo but governed by La. C.C.P. art. 966. Shambra v. Roth, 04-0467, p. 2 (La.App. 4 Cir. 9/29/04), 885 So.2d 1257, 1259.

Summary judgments are favored and factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponents' favor. Willis v. Medders, 00-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1050; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 17 (La.2/29/00), 755 So.2d 226; Berthelot v. Avondale Industries, Inc., 2002-1779, (La.App. 4 Cir. 2/26/03), 841 So.2d 91; writ denied, 854 So.2d 368.

The trial court is not permitted to make credibility determinations on a motion for summary judgment. Independent Fire Insurance Co., supra p. 16, at 236. It is not the function of the district court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure. Knowles v. McCright's Pharmacy, Inc., 34, 559, p. 3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103.

In the instant matter, the plaintiff asserts that the district court erred by granting summary judgment in favor of Eagle and Branton. Appellant asserts that he presented evidence that a genuine issue of material fact exists, and that such evidence should be evaluated by a trier of fact to determine whether plaintiff was exposed to Eagle's asbestos containing products and/or Branton's. Specifically, as regards Branton, he contends purging of sales records constitutes an attempt to conceal asbestos information so as to avoid liability.

It is scientifically proven, and legislatively recognized, that a causal relationship exists between asbestos exposure and the occurrence of mesothelioma.

The deposition of Mr. Robert J. Honold identifies both Eagle and Branton as insulation vendors to American Marine, plaintiff's employer, and states that the insulation products sold to American Marine, especially the insulation for the exhaust systems, contained asbestos. Mr. Honold knew the plaintiff as an employee of American Marine, a fact that is not contested. Mr. Honold stated that he was familiar with both Kaylo and Pabco (asbestos containing insulation products of the time) and that they were used at American Marine.

As to the basis for Mr. Honold's testimony that Eagle was a vendor to American Marine, Mr. Honold's responded: When I got involved in the purchasing side of it, the customer relationships were already established. The vendors and so forth were all there. You used the same people mostly over and over.

[*267] Moreover, Mr. Honold related that American Marine got mostly pipe insulation from Eagle, that he was put in charge of phasing out the asbestos containing insulation.

The record contains the sworn testimony of Fred Schuber, the President of Eagle, who acknowledged that prior to the early 1970s, all industrial pipe insulation contained asbestos. As corporate representative of Eagle, he believed the switch from the old asbestos pipe insulation to the asbestos-free pipe insulation to have been made around the mid-seventies. The record also contains an October 5, 1972 letter from Mr. Schuber, to Frenchie Bordelon, the Insulation Superintendent of Avondale Shipyards, in which Mr. Schuber states:

As you are well aware, the use of asbestos-free insulation materials is something that is fairly new and, while all of the recognized manufacturers are in the process of developing asbestosfree products, it will probably be some time before full production is attained.

This October 5, 1972 letter also acknowledges that Eagle represented Pabco Manufacturers. Substantiating this statement, plaintiff also includes in the record a January 10, 1953 Agreement establishing Eagle Asbestos & Packing Co., Inc, as a Pabco Engineering Service Unit, thereby giving Eagle, inter alia, some distributing rights for Pabco's asbestos-containing

insulation products. The record also includes another Authorized Insulation Contractor Agreement dated August 22, 1961, between Eagle and another manufacturer, Phillip-Carey Manufacturing Co., of asbestos containing insulation. Also in the record is a September 29, 1971 document from Fiberboard, the manufacturer of Pabco, announcing a new asbestos-free version of its previously asbestos-containing Pabco. This announcement artfully notes the change in phasing out the asbestos containing insulation and limiting its future sale to present inventory if and only if written request is also made for it by the buyer. The announcement goes on to state that if it generates questions, to call the regional sales managers. Not once in the announcement are health concerns raised as the motivation for the change.

Mr. Neil McAskill testified by deposition that beginning in 1952 he was exposed to asbestos as a mechanic working for American Marine in one building that contained the pipe shop and other facilities. This exposure was by virtue of working with and around asbestos containing insulation products including pipe insulation and cloth. Moreover, he testified he had hands on experience applying insulation.

Additionally, the affidavit of Barbara McAskill establishes that she worked in the accounting department at American Marine for approximately ten (10) years beginning in August of 1969, and she recalls processing invoices from Branton Insulations. In essence, Eagle argues that Mr. Honold's response is based upon circumstantial evidence and he has no documents to confirm his belief. Branton makes similar arguments, akin to asserting that the plaintiff/deceased employee need prove exactly what the corporate offices knew. This is not the test for summary judgment. Here, plaintiff has put forth evidence that permits a reasonable mind to conclude that Eagle and Branton sold asbestos containing insulation products to American Marine. Thus, American Marine employees, such as Mr. McAskill, were exposed to their asbestos containing products. Also, in Branton's case, the employee cannot be expected to produce documents from Branton when its corporate representative testified that Branton had "purged"/destroyed relevant documents/evidence in 1982.

[*268] Defendants raise the applicability of Thibodeaux v. Asbestos Corp. Limited, etal., 2007-0617 (La.App. 4 Cir. 2/20/08), 976 So.2d 859. We find Thibodeaux distinguishable in that this Court found that the plaintiffs neither produced evidence that asbestos was used by the defendant while Mrs. Thibodeaux worked in the facility, nor produced evidence to show that Mrs. Thibodeaux was exposed to asbestos if it was present. Thibodeaux, 07-0617, p. 13, 976 So.2d at 867. In the case sub judice, the plaintiff has presented evidence to substantiate that he was actively engaged in working with and actually handling asbestos insulation.

Vodanovich v. A.P. Green Industries, Inc., 03-1079 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, stands for the proposition that in latent mesothelioma cases, where the human body is injured over time due to chemical exposure, the plaintiff need show only that the defendant's asbestos-containing product was a substantial factor in causing his alleged disease. This burden can be met by simply showing that he was actively working with asbestos-containing materials, such as insulating pipes or exhaust systems. Grant v. American Sugar Refining, Inc., 06-1180 (La.App. 4 Cir. 1/31/07), 952 So.2d 746. Moreover, Vodanovich, supra, is likewise distinguishable because that record lacked evidence that the plaintiff was exposed to any asbestos fibers as a result of any repair work done by the ship repair companies.

Medical science has proven a causal relationship between asbestos exposure and mesothelioma above background levels. Thus, such asbestos exposure is a causative factor in producing the disease. Torrejon v. Mobil Oil Co., 03-1426 (La.App. 4 Cir. 6/2/04), 876 So.2d 877.

In Hennegan v. Cooper/T. Smith Stevedoring Co., 2002-0282 (La.App. 4 Cir. 12/30/02), 837 So.2d 96, we acknowledged certain medical principles regarding asbestos cases. First, brief exposures to asbestos have caused mesothelioma in persons decades later. Second, every non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma. Hennegan, supra, p. 8-17, at 103-107.

It is reasonable to conclude that plaintiff's work in the shipyard with asbestos-containing insulation actively exposed him to greater than a background level.[1] At any rate, this creates a genuine issue of material fact that is not proper for summary judgment.

The standard of review for granting summary judgment is whether there exist genuine issues of material fact and, in this matter, any doubt must be resolved in favor of the non-moving party. La. C.C.P. art. 966. Here, whether the depositions in the record and circumstantial evidence can convince a trier of fact that plaintiff, Mr. McAskill, was exposed sufficiently to asbestos containing materials sold by Eagle and Branton is one upon which reasonable minds may disagree. Grant v.

American Sugar Refining, Inc., 06-1180 (La.App. 4 Cir. 1/31/07), 952 So.2d 746, [analyzed the sufficiency aspect to the test for asbestos exposure]. Therefore, it is not susceptible to summary judgment.

For the aforementioned reasons, we reverse the trial court's granting of summary judgment and remand for further proceedings in accord with this opinion.

REVERSED AND REMANDED.

[1] We take judicial notice of the facts that led to the promulgation of OSHA regulations which were enacted to cease the use of asbestos because of the adverse health consequences that inflicted those who were exposed to it.

Sources

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