Sampey v. Anco Insulations, Inc. (2021)

Our plain-English summary of Sampey v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, November 2, 2021).

Ethel Sampey sued Anco Insulations and a number of other defendants, claiming she developed malignant mesothelioma from asbestos exposure. She alleged second-hand exposure from her uncle's work at Avondale Shipyard from 1957 to 1965, and further exposure from 1966 to 1979 while working as a bartender at bars frequented by Avondale workers right after their shifts. After she died, Darren Folse and Mark Sampey were substituted as plaintiffs. Hopeman Brothers moved to dismiss her claims for loss of consortium, service and society, and Avondale, Travelers, International Paper and Amchem joined the motion. The plaintiffs did not oppose it. The federal court in Louisiana granted the motion and dismissed those claims with prejudice. It reasoned that a consortium claim exists when someone else is injured in a way that harms the plaintiff. Because Ethel Sampey's complaint sought damages for her own injuries, Louisiana law does not recognize those claims.

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: November 2, 2021
• Docket: Civil Action No. 20-2779
• Stage: Motion to dismiss
• State: Louisiana

Outcome. The court granted Hopeman's unopposed motion, joined by Avondale, Travelers, International Paper and Amchem, and dismissed with prejudice Ethel Sampey's loss of consortium, service and society claims against them.

What the court held. Under Louisiana law, a plaintiff has no loss of consortium, service or society claim based on her own injuries, because such a claim depends on another person having been injured.

Issues decided: Loss of Consortium, Trial Procedure and Discovery.

The people and their exposure

• Ethel Sampey (family member): mesothelioma; died

The defendants

• Hopeman Brothers, Inc.
• Huntington Ingalls Incorporated (Avondale) (employer)
• The Travelers Indemnity Company (insurer)
• International Paper Company
• Bayer CropScience, Inc., as successor to Rhone-Poulenc AG Company, f/k/a Amchem Products, Inc., f/k/a Benjamin Foster Company (manufacturer)

Other decisions in this case

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

• Sampey v. Huntington Ingalls Inc. (December 7, 2020). The court denied plaintiff Ethel Sampey's motion to remand, holding that the Avondale Interests' federal-officer removal was timely and rested on a colorable Boyle defense.
• Sampey v. Anco Insulations, Inc. (April 28, 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. (May 26, 2022). The court granted Crescent Materials' unopposed motion for summary judgment and dismissed the plaintiffs' claims against it with prejudice.
• Sampey v. Anco Insulations, Inc. (June 23, 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.

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.

ETHEL SAMPEY,

v.

ANCO INSULATIONS, INC., etal.

Civil Action No. 20-2779.

November 2, 2021.

United States District Court, E.D. Louisiana.

ORDER

BARRY W. ASHE, District Judge.

SECTION M(1)

Before the Court is a motion of defendant Hopeman Brothers, Inc. ("Hopeman") to dismiss for failure to state a claim upon which relief can be granted.[1] Defendants Huntington Ingalls Incorporated ("Avondale"), The Travelers Indemnity Company ("Travelers"), International Paper Company ("IP"), and Bayer CropScience, Inc., as successor to Rhone-Poulenc AG

Company, f/k/a Amchem Products, Inc., f/k/a Benjamin Foster Company ("Amchem") have joined and adopted Hopeman's

motion and memorandum in support.[2] Hopeman's motion was set for submission on November 4, 2021. Local Rule 7.5 of

the United States District Court for the Eastern District of Louisiana requires that a memorandum in opposition to a motion be filed no later than eight days before the noticed submission date, which in this case was October 27, 2021. Plaintiffs Darren J. Folse and Mark A. Sampey,[3] who are represented by counsel, filed no opposition. Accordingly, because the

motion to dismiss is unopposed, and it appearing to the Court that the motion has merit,[4]

IT IS ORDERED that Hopeman's motion to dismiss (R. Doc. 107) is GRANTED, and Ethel Sampey's loss of consortium,

service, and society claims against Hopeman, Avondale, Travelers, IP, and Amchem are DISMISSED WITH PREJUDICE.

[1] R. Doc. 107.

[2] R. Docs. 117; 118; 121; 123; 124; 126.

[3] Folse and Mark Sampey were substituted for the original plaintiff, Ethel Sampey, upon her death. R. Doc. 68.

[4] This case concerns the malignant mesothelioma that Ethel Sampey allegedly contracted as a result of second-hand exposure to asbestos and asbestos-containing products from her uncle's work at Avondale Shipyard from 1957 until 1965. R. Docs. 1 at 3; 1-2 at 4. She alleged additional exposure between approximately 1966 and 1979 as a result of her employment as a bar tender at bars frequented by a significant population of Avondale workers directly after their work in the shipyard. Id. She seeks damages for (1) physical pain and suffering; (2) mental pain and anguish; (3) loss of enjoyment of life; (4) medical expenses and funeral expenses; (5) loss of wages, past and future; (6) loss of wage earning capacity; (7) fear of death; (8) loss of service and society; (9) loss of consortium; and (10) any and all damages which shall be shown at the trial of this matter. R. Doc. 1-2 at 14. "A loss of consortium claim includes elements of loss of service, loss of love and affection, loss of society and companionship, loss of sexual relations, loss of support, and loss of felicity." Abdullah v. Simmons, 772 So. 2d 698, 704 (La. App. 2000).

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court employs the two-pronged approach utilized in Twombly. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). The court "can choose to begin by identifying pleadings that, because they are no more than conclusions [unsupported by factual allegations], are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "`[The] task, then, is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.'" Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 385 (5th Cir. 2017) (quoting Doe ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 854 (5th Cir. 2012)).

Ethel Sampey had no legally cognizable claims for loss of consortium, service, and society. "[T]he nature of a loss of consortium, service, and society claim is that another person has been injured, in a manner that, in turn, injures the plaintiff." Sanchez v. Anco Insulations, Inc., 2021 WL 1564575, at [*3] (E.D. La. Apr. 21, 2021) (collecting cases) (emphasis in original). A plaintiff does not have a colorable claim for loss of consortium, service, and society related to his or her own alleged injuries. See id. In her complaint, Ethel Sampey seeks redress for injuries to herself, see R. Doc. 1-2 at 14, so her claims for loss of consortium, service, and society relate to her own alleged injures and are not recognized under Louisiana law. See Sanchez, 2021 WL 1564575, at [*3] (concluding that where plaintiff's complaint contained no allegations indicating another person's injury so as to give rise to the claimed loss of consortium, service, and society, plaintiff impermissibly sought such damages for the alleged injuries he himself sustained). Accordingly, Ethel Sampey's loss of consortium, service, and society claims are untenable as a matter of law and must be dismissed.

Sources

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