McElwee v. Anco Insulations, Inc. (2024)

Our plain-English summary of McElwee v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, March 26, 2024).

Robert McElwee sued Anco Insulations and other defendants in March 2023, alleging that exposure to asbestos caused his mesothelioma. The case was removed to federal court in August 2023. Defendant Huntington Ingalls (referred to in the opinion as Avondale) asked the court to compel McElwee's deposition, saying he had twice cancelled it without justification. It argued that being unable to depose him hurt its defense, including its ability to identify other responsible parties, and that the aggressive nature of mesothelioma called for speed. McElwee answered that scheduling had been hard because of his health and doctor's appointments, and that his deposition was already set for April 1, 2024, so the motion was moot. The magistrate judge found the request reasonable and within Rule 26. Although mindful of his health, the judge noted the case had been pending over a year and discovery had to proceed. The motion was granted, and McElwee was ordered to appear on April 1, 2024. The opinion describes no specific workplace or product exposure.

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: March 26, 2024
• Docket: Civil Action No. 23-3137
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The magistrate judge granted Huntington Ingalls' motion to compel and ordered plaintiff Robert McElwee to appear for deposition on April 1, 2024, as scheduled.

What the court held. A defendant's request to depose the plaintiff is reasonable and within Rule 26, and the plaintiff's health difficulties do not excuse delay in a case pending over a year.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Robert J. McElwee: mesothelioma

The defendants

• Huntington Ingalls Incorporated
• Anco Insulations, Inc.

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.

ROBERT J. McELWEE,

v.

ANCO INSULATIONS, INC., ET AL.

Civil Action No. 23-3137.

March 26, 2024.

United States District Court, E.D. Louisiana.

SECTION "G" (2)

DONNA PHILLIPS CURRAULT, Magistrate Judge.

ORDER AND REASONS

Pending before me on an expedited basis is Defendant Huntington Ingalls Incorporated's Motion to Compel Plaintiff's Deposition. ECF Nos. 95-97. Plaintiff timely filed an Opposition Memorandum. ECF No. 98. No party requested oral argument in accordance with Local Rule 78.1, and the court agrees that oral argument is unnecessary.

Having considered the record, the submissions and arguments of counsel, and the applicable law, the Motion to Compel is GRANTED for the reasons stated herein.

I. BACKGROUND

Plaintiff filed suit on March 7, 2023, against Defendants alleging exposure to asbestos which resulted in mesothelioma. ECF No. 1-1. Defendants removed the case to this court on August 4, 2023. ECF No. 1. The January 17, 2024 Scheduling Order establishes a November 4, 2024 discovery deadline. ECF No. 69.

On March 19, 2024, Defendant Huntington Ingalls Incorporated filed this motion to compel alleging that Plaintiff has twice cancelled his scheduled deposition without justification after lengthy efforts to schedule same. ECF No. 95-1 at 2-3. Avondale argues that the inability to depose Plaintiff is prejudicial to its defense, including denying it the opportunity to determine whether there are other potentially responsible parties. Id. at 5. It also argues that the aggressive form of mesothelioma requires proceeding expeditiously. Id. at 6. Avondale asks for an order directing Plaintiff to appear for deposition within 15 days or be sanctioned. Id.

In response, Plaintiff states that scheduling has been difficult due to Plaintiff's health issues and doctor's appointments. ECF No. 98 at 1. Plaintiff indicates that his deposition is currently scheduled for April 1, 2024 and, therefore, the motion is moot. Id.

II. ANALYSIS

Defendant's request to depose Plaintiff is eminently reasonable and well within the parameters of Rule 26. While the Court is mindful of the difficulties faced by Plaintiff due to his health conditions, this matter has been pending for over a year and the parties must proceed with discovery.

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that the Motion to Compel (ECF No. 95) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff appear for deposition on April 1, 2024, as scheduled.

Sources

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