Murphy v. Alcatel-Lucent USA Inc. (2017)

Our plain-English summary of Murphy v. Alcatel-Lucent USA Inc. (U.S. District Court, Eastern District of Louisiana, February 16, 2017).

Robin Murphy sued numerous companies over mesothelioma he allegedly developed from asbestos exposure between 1964 and 2000 while working for BellSouth and AT&T at offices in and around New Orleans. His roles included frameman, installer, switchman, foreman, and electronics technician. After his death, his wife and children joined the suit. Plaintiffs alleged that Rohm and Haas and Allied Chemical (whose successor is Honeywell) supplied asbestos-containing phenolic molding compounds to Alcatel-Lucent and/or AT&T. Rohm and Haas moved to dismiss for lack of personal jurisdiction, and Honeywell moved to dismiss for failure to state a claim, both arguing the allegations were conclusory. The federal district court denied both motions. It reasoned that plaintiffs may not yet have had access to information held by the defendants. It gave plaintiffs 60 days of jurisdictional discovery on Rohm and Haas, without prejudice to renewing its motion. It also ordered a Fourth Amended Complaint giving more detail on Murphy's work periods, roles, exposures and the defendants' connection to the molding compounds.

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: February 16, 2017
• Docket: Civil Action No. 15-5566
• Stage: Motion to dismiss
• State: Louisiana

Outcome. The court denied Rohm and Haas's motion to dismiss for lack of personal jurisdiction (allowing 60 days of jurisdictional discovery) and Honeywell's Rule 12(b)(6) motion, and ordered plaintiffs to file a more detailed Fourth Amended Complaint.

What the court held. Where plaintiffs have not yet had access to information held by defendants, a court may deny motions to dismiss for lack of personal jurisdiction or failure to state a claim, allow jurisdictional discovery, and order a more definite statement of the factual basis for the claims.

Issues decided: Personal Jurisdiction, Trial Procedure and Discovery, Successor Liability.

The people and their exposure

• Robin Murphy: mesothelioma; died

Who	Work	Where	When	Products
Robin Murphy	frameman, installer, switchman, foreman, electronics technician, and computer system maintenance	BellSouth and AT&T offices (Hancock/Riverside, White Hall, Seabrook, Michoud, Chalmette, and others), New Orleans, Louisiana	1964-2000	asbestos-reinforced plastics, phenolic molding compounds (PLENCO, DUREZ, ROGERS)

The defendants

• Rohm and Haas Company (manufacturer)
• Honeywell International, Inc. (manufacturer)
• Alcatel-Lucent USA Inc. (manufacturer)
• AT&T Corp. (employer)
• BellSouth Telecommunications, LLC (employer)

Other decisions in this case

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

• Murphy v. Alcatel-Lucent USA Inc. (June 7, 2016). The court denied plaintiff Carolyn Murphy's motion to remand, finding the non-diverse Louisiana defendants improperly joined and no waiver of removal by Rohm and Haas, so the case stayed in federal court.

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.

ROBIN MURPHY, ET AL.,

v.

ALCATEL-LUCENT USA INC., ET AL., SECTION "N" (5).

Civil Action No. 15-5566.

February 16, 2017.

United States District Court, E.D. Louisiana.

Carolyn Lanoue Murphy, Plaintiff, represented by Mickey P. Landry, Landry, Swarr & Cannella, LLC.

Carolyn Lanoue Murphy, Plaintiff, represented by Aaron M. Heckaman, Bailey Peavy Bailey PLLC, pro hac vice, Amanda Jones Ballay, Landry, Swarr & Cannella, LLC, Donald Douglas Grubbs, Bailey Peavy Bailey PLLC, pro hac vice, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr & Cannella, LLC, Jason Kyle Beale, Bailey Peavy Bailey PLLC, pro hac vice, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C. Hoffman, Landry, Swarr & Cannella, LLC.

Irvin D. Murphy, Plaintiff, represented by Mickey P. Landry, Landry, Swarr & Cannella, LLC, Aaron M. Heckaman, Bailey Peavy Bailey PLLC, pro hac vice, Amanda Jones Ballay, Landry, Swarr & Cannella, LLC, Donald Douglas Grubbs, Bailey Peavy Bailey PLLC, pro hac vice, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr & Cannella, LLC, Jason Kyle Beale, Bailey Peavy Bailey PLLC, pro hac vice, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C. Hoffman, Landry, Swarr & Cannella, LLC.

Kelly Murphy Ricks, Plaintiff, represented by Mickey P. Landry, Landry, Swarr & Cannella, LLC, Aaron M. Heckaman, Bailey Peavy Bailey PLLC, pro hac vice, Amanda Jones Ballay, Landry, Swarr & Cannella, LLC, Donald Douglas Grubbs, Bailey Peavy Bailey PLLC, pro hac vice, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr & Cannella, LLC, Jason Kyle Beale, Bailey Peavy Bailey PLLC, pro hac vice, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C. Hoffman, Landry, Swarr & Cannella, LLC.

Robin S. Murphy, Jr., Plaintiff, represented by Mickey P. Landry, Landry, Swarr & Cannella, LLC, Aaron M. Heckaman, Bailey Peavy Bailey PLLC, pro hac vice, Amanda Jones Ballay, Landry, Swarr & Cannella, LLC, Donald Douglas Grubbs, Bailey Peavy Bailey PLLC, pro hac vice, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr & Cannella, LLC, Jason Kyle Beale, Bailey Peavy Bailey PLLC, pro hac vice, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C. Hoffman, Landry, Swarr & Cannella, LLC.

April Ann Irons, Plaintiff, represented by Mickey P. Landry, Landry, Swarr & Cannella, LLC, Amanda Jones Ballay, Landry, Swarr & Cannella, LLC, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr & Cannella, LLC, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C. Hoffman, Landry, Swarr & Cannella, LLC.

Alcatel-Lucent USA Inc., Defendant, represented by Kay Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

Certainteed Corporation, Defendant, represented by William Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Deutsch Kerrigan LLP & Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP.

General Electric 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., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C..

Metropolitan Life Insurance Company, Defendant, represented by Jay Morton Jalenak, Jr., Kean Miller & Patrick Dale Roquemore, Kean Miller.

Eagle, Inc., Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP & James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP.

Reilly-Benton Company, Inc., Defendant, represented by Thomas L. Cougill, Willingham Fultz & Cougill, Jamie M. Zanovec, Willingham Fultz & Cougill, Jeanette Seraile-Riggins, Manion Gaynor Manning LLP & Jennifer D. Zajac, Willingham Fultz & Cougill.

Honeywell International, Inc., Defendant, represented by Stephen Rodney Whalen, Breazeale, Sachse & Wilson, L. L. P. Plastics Engineering Company, Defendant, represented by William Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Deutsch Kerrigan LLP & Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP.

Rogers Corporation, Defendant, represented by Leigh Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC, Joseph Henry Hart, IV, Kuchler Polk Schell Weiner & Richeson, LLC, Lori Allen Waters, Irpino, Avin & Hawkins, Magali Ann Puente-Martin, Frilot L.L.C. & Thomas A. Porteous, Kuchler Polk Schell Weiner & Richeson, LLC.

Rohm & Haas Company, Defendant, represented by Tyson B. Shofstahl, Adams & Reese, LLP.

Special Electric Company, Inc., Defendant, represented by Kay Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

Cooper Industries LLC, Defendant, represented by William Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP. Eaton Corporation, Defendant, represented by Robert E. Barkley, Jr., Barkley & Thompson, L.C., Mark Powell Seyler, Barkley & Thompson, L.C. & Thomas E. Schwab, Barkley & Thompson, L.C..

Graybar Electric Company, Inc., Defendant, represented by Cynthia Cleland Roth, Blue Williams, LLP & Paul D. Palermo, Blue Williams, LLP.

CBS Corporation, 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., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.. BellSouth Telecommunications, LLC, Defendant, represented by Nancy Cundiff, Cotten, Schmidt & Abbott, LLP & Christine Changho Bruneau, Cotten, Schmidt & Abbott, LLP.

AT&T Corp., Defendant, represented by Nancy Cundiff, Cotten, Schmidt & Abbott, LLP.

AT&T Corp., Defendant, represented by Christine Changho Bruneau, Cotten, Schmidt & Abbott, LLP.

Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Anne Elizabeth Medo, Deutsch Kerrigan LLP, David C. Bach, Hailey, McNamara, Hall, Larmann & Papale LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale.

Honeywell International, Inc., Defendant, represented by Glenn B. Adams, Porteous, Hainkel & Johnson, Stephen Rodney Whalen, Breazeale, Sachse & Wilson, L. L. P, Leandro Ryan Area, Porteous, Hainkel & Johnson & Nancy Lee Cromartie, Porteous, Hainkel & Johnson.

Schneider Electric USA, Inc., Defendant, represented by Stacey Leigh Strain, Hubbard, Mitchell, Williams & Strain, PLLC. Occidental Chemical Corporation, 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., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C..

ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

In this action, Plaintiff Robin Murphy ("Murphy") sued Defendants for damages arising from his alleged occupational exposure to asbestos-containing materials between 1964 and 2000.[1] During that time, Murphy was employed by Defendants Bellsouth and AT&T at various locations owned, leased, or operated by them in and around New Orleans, Louisiana.[2] He worked in varying roles including, but not limited to, frameman, installer, switchman, foreman, electronics technician, and computer system maintenance.[3] Following Murphy's death, Carolyn Murphy, Murphy's surviving spouse, and his children (collectively, "Plaintiffs") were added as plaintiffs.[4]

Following the Court's denial of Plaintiffs' previously filed motion for remand,[5] Defendants Rohm and Hass Company ("RH") and Honeywell International, Inc. ("Honeywell") filed the two motions to dismiss presently before the Court. Having carefully considered the parties' submissions, the record in this matter, and applicable law, IT IS ORDERED that the motions to dismiss (Rec. Docs. 58 and 76) are DENIED for the reasons stated herein.

Plaintiffs allege that Murphy's mesothelioma was caused by occupation exposure to various asbestos-containing products that Defendants Alcatel-Lucent and/or AT&T distributed or manufactured for use in his work at Bellsouth and AT&T facilities. [6] Plaintiffs attribute that exposure to products that RH, Allied Chemical, and other defendants "manufactured, sold, designed, supplied, distributed, mined, milled, relabeled, resold, process, applied, or installed,"[7] and/or "supplied, distributed, applied, installed, removed, or manipulated."[8] More specifically, Plaintiffs allege that Defendants RH and Allied Chemical "manufactured and/or supplied asbestos-containing phenolic molding compounds" to Defendants Alcatel-Lucent and/or AT&T.[9]

RH's motion to dismiss (Rec. Doc. 58), filed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, contends that in personam jurisdiction over it is lacking because Plaintiffs' allegations are impermissibly "general" and "conclusory," and because it "has never owned or operated a business that manufactured or sold asbestos-containing phenolic molding compounds."[10] Thus, RH argues that "it would be impossible for Robin Murphy's claims to have `arisen out of' or `relate to' a product that [RH] has never manufactured or sold," such that Plaintiffs have not and can not satisfy their burden of establishing the existence of personal jurisdiction.[11] In support of these assertions, RH points to several affidavits from current and former RH employees denying the existence of asbestos in resins and/or other products produced by RH during their respective terms of employment.[12]

If the affidavits submitted by RH are correct, Plaintiffs seemingly will not easily establish the factual connexity necessary for specific personal jurisdiction to exist. At the same time, however, is not apparent that Plaintiffs have thus far had adequate access to pertinent information known or held by only one or more of the defendants, and/or been in a position to test the credibility and knowledge of the affiants on which RH has relied. For that reason, considering the preliminary posture of this matter, and the nature of the evidentiary showing made, RH's motion, as stated above, is denied.[13] IT IS FURTHER ORDERED that Plaintiffs shall have sixty (60) days to conduct jurisdictional discovery.[14]

Unlike RH's motion, Honeywell's motion to dismiss (Rec. Doc. 76) is not asserted on personal jurisdiction grounds. Rather, it was filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and asserts that Plaintiffs have failed to allege facts sufficient to state a legally viable claim against it. Specifically, Honeywell contends:

The Third Amended Complaint contains boilerplate language and conclusory allegations, but provides no specific facts or details regarding Honeywell's liability in this matter, nor does it demonstrate that plaintiffs have a factual basis for their claims.

No facts are pled identifying the brand, trade name, product number, product identifier, or other description of the molding compound(s) allegedly sold by Allied to Alcatel-Lucent or AT&T.

No facts are plead which demonstrate that Plaintiffs have any evidence that the alleged molding compounds contained asbestos instead of cellulose, wood, glass, fiberglass, or other non-asbestos filler materials more commonly used by Allied in the manufacture of molding compounds.

No facts are plead identifying the end-product(s) allegedly manufactured by Alcatel-Lucent and/or AT&T utilizing Allied molding compound(s). In fact, plaintiffs' Third Amended Complaint does not even generically

describe the type of products allegedly manufactured by Alcatel-Lucent and/or AT&T with Allied molding compound(s).

No facts are plead regarding the dates of manufacture, location of manufacture, or any other manufacturing details that might take the guesswork out of the operative pleading.

No facts are plead indicating the manner, method, or circumstances of any alleged exposure to friable asbestos as the result of the handling of end-product molded components that were manufactured using Allied molding compounds that may or may not have been asbestos-containing.

In sum, plaintiffs have alleged no specific facts to support the conclusion that Honeywell caused or contributed to Robin Murphy's alleged exposure to asbestos and/or asbestos-containing products, or any resulting injuries. For the reasons more fully discussed below, Honeywell's motion should be granted, and plaintiffs' claims against Honeywell should be dismissed.[15]

On the present showing made by Honeywell, it is not apparent to the Court that Plaintiffs necessarily would or should have known or had access to the entirety of the specific information referenced by Honeywell at the pleading stage of this proceeding. Thus, as set forth above, Honeywell's motion to dismiss is also denied. On the other hand, at least some of this information is likely now known, or is such that Plaintiffs have (or should have) a reasonable basis for believing further investigation and discovery will provide the requisite evidentiary support.[16]

Accordingly, to facilitate Defendants' preparation of responsive pleadings and to streamline and focus discovery and motion practice in this matter, IT IS FURTHER ORDERED that Plaintiffs are to file a Fourth Amended Complaint, no later than fifteen (15) days from entry of this Order and Reasons, providing a more detailed explanation of the specific factual bases for their claims against Defendants to this action.[17] The Fourth Amendment Complaint is to address, at a minimum: (1) to the best of Plaintiffs' present knowledge, information, and belief, the approximate order and time period(s) during which Murphy worked at various facilities set forth in paragraph 29 of the Third Amended Complaint;

(2) to the best of Plaintiffs' present knowledge, information, and belief, the approximate order and time period(s) during which Murphy worked in the varying roles set forth in paragraph 28 of the Third Amended Complaint, as well as a brief description of the alleged asbestos-containing products to which Murphy would have been exposed in the course of each of those roles and the manner in which that exposure likely occurred;

(3) to the best of Plaintiffs' present knowledge, information, and belief, the alleged role and connection of Defendants relative to the phenolic molding compounds bearing the trade names PLENCO, DUREZ, and ROGERS referenced in paragraph 31(c) of the Third Amended Complaint; and

(4) to the best of Plaintiffs' present knowledge, information, and belief, the factual bases for Plaintiffs' assertions that phenolic molding compounds not bearing the trade names identified in paragraph 31(c) of the Third Amended Complaint, i.e., PLENCO, DUREZ, and ROGERS, were manufactured and/or supplied by, or otherwise associated with, Defendants RH and/or Honeywell.

Given the foregoing, IT IS FINALLY ORDERED that responsive pleadings to the Fourth Amended Complaint are to be filed no later than fifteen (15) days from the filing date of the Fourth Amended Complaint; and upon the filing of responsive pleadings, a scheduling conference with Section "N" Case Manager Cherie Stouder shall be promptly scheduled and held. [1] See Third Amended Complaint ("TAC"), Rec. Doc. 47, ¶ 28.

[2] Id. at ¶29 ( "Hancock/Riverside office[,] White Hall office, Seabrook office, Michoud office, Chalmette office, Pointe a La Hache office, Delacroix office, St. Bernard office, Yscloskey office, Metairie Road office, Poydras office, and Hammond office"). [3] Id. at ¶28.

[4] Id. at ¶¶ 20-22.

[5] See Rec. Doc. 40.

[6] See TAC, Rec. Doc. 47, ¶ 31.

[7] See Rec. Doc. 47, ¶35; Id. at ¶36.

[8] Plaintiffs' claims against Honeywell are asserted against it as "successor-in-interest to Allied Chemical Corporation ("Allied Chemical")." See Rec. Doc. 47, ¶13.

[9] Id. at ¶¶ 40 and 44 (emphasis added).

[10] See Rec. Doc. 58-1, pp. 3 and 18.

[11] Id., p. 18.

[12] See Rec. Doc. 58-2, pp. 1-7.

[13] This ruling is without prejudice to RH's right to re-urge its request for dismissal (by properly supported motion) upon completion of this preliminary discovery.

[14] The parties are to confect a mutually acceptable limited discovery schedule that will ensure that the necessary discovery is completed within this time period. They likewise are to promptly seek the assistance of the assigned magistrate judge with discovery disputes that cannot be amicably resolved in a timely manner.

[15] See Rec. Doc. 76, pp. 3-4.

[16] See Fed. R. Civ. P. 11(b)(3)(filing attorney's certification regarding evidentiary support for factual assertions in pleadings). [17] In short, the Fourth Amended Complaint is intended to provide a more definite statement of the factual bases for the claims asserted herein as contemplated by Rule 12(e) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(e).

Sources

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