Michel v. Ford Motor Company (E.D. La., Jan. 7, 2019, summary judgment)

Our plain-English summary of Michel v. Ford Motor Company (U.S. District Court, Eastern District of Louisiana, January 7, 2019).

Victor Michel sued Ford Motor Company, Cummins Inc. and other companies in Louisiana state court, saying he developed peritoneal mesothelioma from asbestos exposure during his work as a mechanic and generator service technician. The case was removed to federal court. Michel died in June 2018, and his survivors were substituted as plaintiffs. Ford and Cummins moved for summary judgment, arguing the plaintiffs could not prove their products substantially contributed to his disease. Michel testified that he serviced brakes mostly on Ford trucks at Gulf Bottlers and Crescent Ford. He also testified that he rebuilt Onan engines and scraped, sanded and replaced Cummins gaskets at Menge Pump. A Cummins representative said some Cummins and Onan gaskets from that period contained asbestos. The court had already found the plaintiffs' causation experts admissible. It held that this evidence created disputed facts about exposure and substantial-factor causation for a jury, and it denied the motion.

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: January 7, 2019
• Docket: Civil Action No. 18-4738
• Stage: Summary judgment
• State: Louisiana

Outcome. The court denied Cummins Inc.'s and Ford Motor Company's joint motion for summary judgment, so the plaintiffs (Michel's survivors) keep their claims against both defendants.

What the court held. Plaintiffs must show exposure to asbestos from the defendant's products and an injury substantially caused by that exposure. Whether a particular exposure was a substantial contributing factor in causing mesothelioma is a question of fact for the jury.

Issues decided: Causation, Wrongful Death and Survival, Expert Testimony, Product Identification.

The people and their exposure

• Victor Michel: peritoneal mesothelioma; died

Who	Work	Where	When	Products
Victor Michel	mechanic (auto mechanics and brake work)	Gulf Bottlers and Crescent Ford		brakes, clutches and friction materials, Ford trucks brakes
Victor Michel	mechanic and generator service technician (auto mechanics and brake work)	Menge Pump		gaskets and packing, Cummins gaskets, Onan engine gaskets

The defendants

• Cummins Inc. (manufacturer)
• Ford Motor Company (manufacturer)

Other decisions in this case

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

• Michel v. Ford Motor Company (August 28, 2018). The district court denied the plaintiffs' motion to remand, finding Louisiana defendant Taylor-Seidenbach was improperly joined and Cummins' removal was timely, so the case stays in federal court.
• Michel v. Ford Motor Company (December 28, 2018). The court granted Cummins's and Ford's motion to exclude plaintiffs' experts Dr. Brody and Dr. Castleman for late disclosure of their reports and denied plaintiffs' motion to amend the scheduling order.
• Michel v. Ford Motor Company (January 7, 2019). The court denied Ford's and Cummins's motions to exclude or limit the expert testimony of Dr. Staggs, Dr. Finkelstein and Christopher Depasquale, so the plaintiffs' experts may testify.
• Michel v. Ford Motor Co. (February 20, 2019). The court granted Ford's motion to quash the trial subpoena to Matthew Fyie, granted plaintiffs leave to designate Fyie's deposition testimony, and granted Ford's motion to strike plaintiffs' late objections to Ford's counterdesignations of Victor Michel's testimony.
• Michel v. Ford Motor Co. (February 20, 2019). The court granted the plaintiffs' motion to amend their complaint to add survival, wrongful death, premises and employer liability claims against Ford, found strict products liability claims already pleaded, and said a continuance would cure prejudice to Ford.
• Michel v. Ford Motor Co. (May 23, 2019). The court granted Ford Motor Company's motion to dismiss only as to plaintiffs' wrongful death employer liability claim, which was dismissed with prejudice, and otherwise denied it, so plaintiffs' other wrongful death claims against Ford continue.
• Michel v. Ford Motor Company (January 21, 2020). The magistrate judge granted the Michel plaintiffs' motion for leave to file a second supplemental and amended complaint adding Ford Leasing Development Company, LLC as a defendant, over Ford Motor Company's opposition.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.

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.

VICTOR MICHEL,

v.

FORD MOTOR COMPANY, ET AL., SECTION "R" (4).

Civil Action No. 18-4738.

January 7, 2019.

United States District Court, E.D. Louisiana.

Keith Michel, On behalf of Victor Michel, Norbert Michel, On Behalf of Victor Michel & Vickie Michel, On Behalf of Victor Michel, Plaintiffs, represented by Alex S. Dunn, Jr., Gori, Julian & Associates, P.C., Ashley Lynette Page, Gori, Julian & Associates, P.C. & Christopher Thomas Layloff, Gori Julian and Associates PC, pro hac vice.

Aurora Pump Company & Borg-Warner Morse Tec LLC, As successor-by-merger to Borg-Warner Corporation, Defendants, represented by Glenn Lyle Maximilian Swetman, MG+M The Law Firm, Bradley Adam Hays, MG+M The Law Firm, Brandie Mendoza Thibodeaux, MG + M The Law Firm, Christopher O. Massenburg, MG+M The Law Firm, Danielle Mikel Sczesny, Garrison, Yount, Forte & Mulcahy, LLC, David R. Frohn, MGM Law Firm, Helen Meredith Buckley, MG+M The Law Firm, Jeanette Seraile-Riggins, MG+M The Law Firm, Meghan B. Senter, MG+M The Law Firm, Natasha Amber Corb, MG+M The Law Firm & Quinn Kelcie Brown, MG+M The Law Firm.

Cummins Inc, Defendant, represented by Joseph Henry Hart, IV, Pugh, Accardo, LLC, Daniel E. Oser, Pugh, Accardo, LLC & Thomas A. Porteous, Pugh, Accardo, LLC.

Dana Companies LLC, formerly known as DCO, LLC & Pneumo Abex Corporation, Defendants, represented by Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, William Claudy Harrison, Jr., Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP & Jennifer E. Adams, Deutsch Kerrigan LLP. Dap, Inc., Defendant, represented by Kay Barnes Baxter, Foley & Mansfield, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Forman, Watkins & Krutz LLP, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

Ford Motor Company, Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Weiner, LLC, Amber B. Barlow, Kuchler Polk Weiner, LLC, Janika D. Polk, Kuchler Polk Weiner, LLC, Lee Blanton Ziffer, Kuchler Polk Weiner, LLC, Monique M. Weiner, Kuchler Polk Weiner, LLC, Terrence M.R. Zic, Whiteford, Taylor & Preston, LLP, pro hac vice & William L. Mennucci, Thompson Coe Cousins & Irons, LLP, pro hac vice.

Honeywell International, Inc., in its capacity as successor to Bendix and successor in Interest to AlliedSignal, Inc., Defendant, represented by Eric Shuman, McGlinchey Stafford, PLLC & Sarah Elizabeth McMillan, McGlinchey Stafford, PLLC.

Bridgestone Americas, Inc., Incorrectly named in the Plaintiff's petition as Bridgestone-Firestone America's Holding, Inc, Defendant, represented by Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP & John J. Simpson, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendants Cummins Inc.'s and Ford Motor Company's motion for summary judgment.[1] Because disputed issues of material fact exist as to whether Victor Michel was exposed to asbestos from defendants' products, the Court denies the motion.

I. BACKGROUND

This case arises out of Victor Michel's asbestos exposure during his work as a mechanic and generator service technician. [2] Michel contracted peritoneal mesothelioma after a career that included performing work as a mechanic on engines and brakes.[3] He filed this action in state court on July 28, 2017, claiming, inter alia, that defendants failed to warn him of the hazards of their products, failed to adopt proper safety policies and procedures, failed to provide Michel with a safe work environment, and failed to follow applicable governmental regulations regulating exposure to asbestos.[4] The complaint seeks damages for past, present, and future medical expenses, lost earnings, pain and suffering, mental anguish, physical impairment, disfigurement, loss of quality of life, costs, attorneys fees, and interest.[5]

Defendants removed the case to federal court on May 8, 2018.[6] On June 12, 2018, Michel died.[7] The Court substituted his survivors as plaintiffs on July 10, 2018.[8] Defendants have now filed a motion for summary judgment on the basis that plaintiffs cannot show that their products substantially contributed to Michel's mesothelioma.[9] Plaintiffs oppose the motion. [10] II. LEGAL STANDARD Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. A dispute about a material fact is genuine "if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 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 that party will bear the burden of proof at trial." (quoting Celotex, 477 U.S. at 322).

III. DISCUSSION

Defendants argue jointly that they are entitled to summary judgment because plaintiffs cannot meet their burden of proving that their products caused Michel's mesothelioma if the Court grants defendants' motions in limine seeking to exclude plaintiffs' experts Dr. Brody, Dr. Castleman, Dr. Staggs, Dr. Finkelstein, and Mr. Depasquale.[11] But, as explained in the order denying the motions against Dr. Staggs, Dr. Finkelstein, and Depasquale, the Court finds their causation opinions admissible.[12] These experts will testify that the asbestos in defendants' products can cause peritoneal mesothelioma generally, and that Michel's disease was caused by his exposure to defendants' products.[13] In addition, the Court's review

of the record in connection with the motions in limine reveals that Michel's employment history, medical history, and his testimony regarding the types of tasks he performed at work provide a reliable factual basis for the expert opinions and create a disputed issue of material fact as to whether Michel was exposed to asbestos from defendants' products that substantially contributed to his mesothelioma. Michel testified to servicing automotive brakes on mostly Ford trucks during his time at Gulf Bottlers and Crescent Ford,[14] and he testified to replacing gaskets on Cummins and Onan engines during his time at Menge Pump.[15] Dr. Finkelstein and Depasquale opine that these activities would have exposed Michel to significant amounts of asbestos.[16] The premise of defendants' argument for summary judgment having failed, the Court denies defendants' motion for summary judgment.

Cummins alone argues that plaintiffs have not met their burden of proving that Michel was exposed to levels of asbestos from Cummins or Onan products sufficient to make its products a substantial cause of his mesothelioma.[17] To prove its case against Cummins and Onan, plaintiffs must show "that [Michel] was exposed to asbestos from the defendant's products and that he received an injury that was substantially caused by that exposure." Robertson v. Doug Ashy Bldg. Mats., Inc., 77 So. 3d 360, 371 (La. App. 1 Cir. 2011) (citing Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1088 (La. 2009)).

Michel testified that he often worked with Cummins and Onan products, and, specifically, that he rebuilt many Onan diesel engines from scratch,[18] performed maintenance on Cummins engines on Onan generators,[19] and scraped, sanded, and replaced Cummins gaskets.[20] Cummins' corporate representative testified that some of Cummins's and Onan's gaskets contained asbestos during the time that Michel was working with their products as a mechanic.[21] In addition, plaintiffs' will present expert testimony that Michel's work with gaskets, much of which involved Cummins and Onan products, exposed him to asbestos.[22] This evidence is sufficient to create a material factual dispute as to whether Michel was exposed to asbestos from Cummins and Onan products. See id. at 374 ("[P]laintiffs' failure to offer affirmative evidence pinpointing a specific product, at a specific time, and at a specific location, to which [plaintiff] had been exposed, does not entitle [a defendant] to summary judgment.").

On the issue of causation, plaintiffs will present expert testimony that exposure to these products was a substantial causative factor in Michel's mesothelioma.[23] Whether to credit this testimony is a question of fact for the jury. Id. at 375 ("Whether a particular exposure constitutes a substantial contributing factor in the development of the disease of mesothelioma is a question of fact."). Thus, whether Michel's exposure to asbestos from Cummins or Onan products substantially contributed to his mesothelioma raises a material issue of fact that precludes summary judgment. IV. CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is DENIED.

[1] R. Doc. 70.

[2] R. Doc. 1 at 2; R. Doc. 70-2 at 1 ¶ 1.

[3] R. Doc. 70-2 at 1 ¶ 1.

[4] R. Doc. 1-2 at 13-14 ¶ 14.

[5] Id. at 17-18 ¶ 21.

[6] R. Doc. 1.

[7] R. Doc. 21.

[8] Id.

[9] R. Doc. 70.

[10] R. Doc. 77.

[11] R. Doc. 70-1 at 3; R. Doc. 95 at 1-2. Defendants also argue that plaintiffs' experts improperly relied on certain studies in their causation opinions. See R. Doc. 70-1 at 19-21. In addition to failing to specify exactly which opinions or sources they find unreliable, defendants' arguments are inappropriate for a summary judgment motion, in which the Court does not evaluate the credibility of witness opinions or

testimony. See Delta & Pine Land, 530 F.3d at 398-99 (explaining that courts must "refrain from making credibility determinations or weighing the evidence" on summary judgment).

[12] R. Doc. 124.

[13] See id.; R. Doc. 77-5; R. Doc. 77-3.

[14] R. Doc. 77-6 at 49-50.

[15] Id. at 96.

[16] R. Doc. 77-5 at 4-8; R. Doc. 77-3 at 7-15.

[17] R. Doc. 70-1 at 12-14, 18. Cummins has acquired Onan since Michel's alleged asbestos exposure. See R. Doc. 70-11 at 38. [18] R. Doc. 77-6 at 399-400.

[19] Id. at 396.

[20] Id. at 401-402, 429-431.

[21] R. Doc. 70-11 at 47-48, 62, 97; see also id. at 113 (citing a study concluding that one in every eight Cummins gaskets from this period contained asbestos).

[22] R. Doc. 77-5 at 7-8.

[23] See R. Doc. 77-3.

Sources

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