Vedros v. Northrop Grumman (2015)

Our plain-English summary of Vedros v. Northrop Grumman (U.S. District Court, Eastern District of Louisiana, June 8, 2015).

Sally Gros Vedros died of mesothelioma. She sued many defendants, and after her death her children joined the suit. She said she was exposed to asbestos in two ways. She washed the work clothes of her father, who was a welder at the Avondale shipyard from 1943 to 1976. She also worked in Avondale's purchasing department from 1960 to 1963. The children claimed damages for the mental pain and anguish of watching their mother suffer and die. Avondale, Eagle, Eagle's insurers and McCarty moved for partial summary judgment on that claim. They argued that Louisiana law allows such bystander damages only to people who saw the accident or came upon the scene soon afterward. The court agreed. It relied on Lejeune, Louisiana Civil Code article 2315.6, and Trahan v. McManus. The children said only that they watched the mesothelioma progress, not the events that caused it. The court found Coates v. AC&S unpersuasive and granted the motions, dismissing the claim.

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: June 8, 2015
• Docket: Civil Action No. 11-1198
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted the defendants' motions for partial summary judgment, dismissing the plaintiff children's Lejeune (bystander) mental anguish damages claim against Avondale, Eagle, Eagle's insurers and McCarty.

What the court held. Under Louisiana Civil Code article 2315.6 and Lejeune, bystander mental anguish damages require that the claimant witness the injury-causing event or come upon its scene soon after; watching a relative's disease progress does not qualify.

Issues decided: Compensatory Damages, Wrongful Death and Survival.

The people and their exposure

• Sally Gros Vedros: mesothelioma; died

The defendants

• Northrop Grumman Shipbuilding, Inc. (Avondale) (employer)
• Eagle, Inc. (contractor)
• OneBeacon America Insurance Company (insurer)
• American Employers Insurance Company (insurer)
• McCarty Corporation (contractor)

Other decisions in this case

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

• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 7, 2014). The court granted Avondale's and the Avondale Interests' motions for partial summary judgment and dismissed with prejudice the plaintiffs' intentional tort, fraud and conspiracy claims.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 14, 2014). The district court granted General Electric's motion for summary judgment and dismissed the plaintiffs' claims against GE with prejudice, because the plaintiffs lacked evidence that GE supplied or attached any asbestos-containing material.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 17, 2014). The court granted Westinghouse's summary judgment motion on the turbine claims, dismissing them with prejudice, and denied it on the micarta claims, which go forward.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (April 24, 2014). The district court denied the plaintiffs' motion to remand and kept the case in federal court under supplemental jurisdiction, ruling for the defendants (Amchem, Continental, Westinghouse, Avondale and the Avondale Interests) and against the plaintiffs.
• Vedros v. Grumman (June 17, 2015). The court granted Avondale's motion for partial summary judgment, ruling that the plaintiffs had no claim against Avondale under Louisiana Civil Code articles 1821-1823 based on its insurance buy-back agreements.
• Vedros v. Grumman (June 18, 2015). The court denied the plaintiffs' motions to exclude the expert testimony of Danny Joyce and Dennis Paustenbach, so the defendants (Avondale and Amchem) won the motions.
• Vedros v. Grumman (June 18, 2015). The court denied Continental Insurance Company's motion in limine and ruled that Sally Gros Vedros's earlier deposition testimony could be used at trial against Continental, so the plaintiffs prevailed on the motion.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (June 25, 2015). The court denied Amchem's motion to exclude plaintiffs' industrial hygienist expert Frank Parker, so plaintiffs may present his testimony at trial; Amchem lost, and its motion for leave to reply was also denied.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (July 1, 2015). The court granted the plaintiffs' motion to strike seven opinions of Westinghouse's substitute expert, Dr. Gail Stockman, because they went beyond or contradicted the opinions of the deceased original expert, Dr. Sawyer; the plaintiffs won and Westinghouse lost.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (July 29, 2015). The court granted in part and denied in part the defendants' motions to strike opinions of Plaintiffs' substitute expert Dr. Kraus, striking several opinions and his rebuttal report to Dr. Stockman and keeping the rest.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (August 4, 2015). The court granted in part and denied in part the defendants' motions to exclude Dr. Kraus: he was qualified and could testify on diagnosis and general causation, but could not give specific causation opinions based on the "every exposure above background" theory.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Coates v. AC and S, Inc. (U.S. District Court, Eastern District of Louisiana, 1994). The court ruled before trial that pre-comparative-fault Louisiana law and virile-share apportionment governed the wrongful death claim, denied plaintiffs' per se unreasonably dangerous motion, admitted the OSHA and EPA publications, and denied Owens-Corning's motions on third-party medical payments, mental anguish and reverse bifurcation.

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.

VEDROS

v.

NORTHROP GRUMMAN ET AL.

Civil Action No. 11-1198.

June 8, 2015.

United States District Court, E.D. Louisiana.

ORDER & REASONS

CARL J. BARBIER, District Judge.

Before the Court are Motions for Partial Summary Judgment on Plaintiffs' Claim for Lejeune Damages filed by Northrop Grumman Shipbuilding, Inc. (n/k/a Huntington Ingalls Incorporated, f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc., f/k/a Avondale Marine Ways, Inc.)("Avondale") (Rec. Doc. 415); OneBeacon America Insurance Company and American Employers Insurance Company, as alleged insurers of Eagle, Inc. ("Eagle's Insurers") (Rec. Doc. 418); McCarty Corporation ("McCarty") (Rec. Doc. 419); and Eagle, Inc. ("Eagle") (Rec. Doc. 420) as well as Plaintiffs Gerald Vedros, Lori Vedros Kravet, and Valerie Vedros White's opposition thereto. (Rec. Doc. 433) Having considered the motion and memoranda of the parties, the record, and the applicable law, the Court finds that the motions should be GRANTED for the reasons set forth more fully below.

FACTS AND PROCEDURAL BACKGROUND

The Court is familiar with the facts of the case and so will provide only a brief recitation here. This action arises from the death of Sally Gros Vedros ("Vedros") due to mesothelioma. Alton Gros, Vedros's father, worked at Avondale as a welder from 1943 to 1976, and Vedros claims to have spent many years washing her father's work clothes, which allegedly resulted in Vedros's secondary exposure to insulation dust containing asbestos. Vedros also worked at Avondale from 1960 to 1963 in the purchasing department, and she claims that she was directly exposed to asbestos while she worked at Avondale. Before her death, Vedros filed suit against many defendants, and after her death, her children joined the suit as Plaintiffs. In their First Amended and Supplemental Petition, Plaintiffs asserted a claim for the "mental pain and anguish [that they] endured from watching the suffering and death of their mother," among others. See (Rec. Doc. 57, p. 8). Although Plaintiffs filed suit in state court, Defendants removed the matter to this Court on May 20, 2011.

Avondale filed its Motion for Partial Summary Judgment on Plaintiffs' Claim for Lejeune Damages (Rec. Doc. 415) on May 13, 2015. Eagle's Insurers (Rec. Doc. 418), McCarty (Rec. Doc. 419), and Eagle (Rec. Doc. 420) followed suit on May 15, 2015. On May 25, 2015, Plaintiffs opposed the motions. (Rec. Doc. 433)

LEGAL STANDARD

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)); 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 refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that "a reasonable jury could not return a verdict for the nonmoving party." Delta, 530 F.3d at 399.

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, 1263-64 (5th Cir. 1991) (citation omitted). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, 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. at 325; Little, 37 F.3d at 1075.

PARTIES' ARGUMENTS AND DISCUSSION

Avondale, Eagle's Insurers, McCarty, and Eagle (collectively, "movants") all argue that Plaintiffs' claim for Lejeune damages must be dismissed. Movants generally argue that Plaintiffs cannot establish the elements for a Lejeune claim, because Plaintiffs did not observe any traumatic accident or come upon the scene soon after such an accident. Plaintiffs counterargue that mental anguish damages are available here as established by Coates v. AC&S, 844 F. Supp. 1126 (E.D. La. 1994).

The Louisiana Supreme Court recognized in 1990 a cause of action for the recovery of damages for mental anguish arising from witnessing serious injury to a third party of close relation against the party who negligently caused that third party relative's injury. See Lejeune v. Rayne Branch Hosp., 556 So. 2d 559 (La. 1990). In 1991, the Louisiana Legislature delineated the very limited circumstances under which a claimant is entitled to bystander damages when it passed Louisiana Civil Code article 2315.6, which largely codified the holding of Lejeune. See LA. CIV. CODE art. 2315.6; 12 La. Civ. L. Treatise, Tort Law § 28:5 (2d ed.). Therein, the Legislature clearly provides that "[d]amages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article." Id. Since that time, courts have emphasized that a claimant for bystander recovery must either view the accident giving rise to his or her close relative[1] or come upon the scene of the accident soon thereafter. See, e.g., Trahan v. McManus, 1997-1224 (La. 3/2/99), 728 So. 2d 1273. The court in Trahan in particular stressed that there must be a "temporal proximity between the tortious event, the victim's observable harm, and the plaintiff's mental distress arising from an awareness of the harm caused by the event." Trahan, 728 So. 2d at 1279. Indeed, "Recovery of damages for mental anguish has almost never been extended to one who observed the victim's suffering at a place other than where the injury-causing event occurred or at a time not closely connected to the event." Trahan, 728 So.2d at 1279." Here, even assuming that the alleged negligent acts could give rise to a claim for bystander damages, Plaintiffs allege only that they witnessed "the progression of the mesothelioma," but not the acts giving rise to it. (Rec. Doc. 433, p. 5) Therefore, under the facts of this case, the Court concludes that Plaintiffs lack a valid claim for bystander damages under Lejeune and Louisiana Civil Code article 2315.6.[2] Accordingly,

IT IS HEREBY ORDERED that the motions (Rec. Docs. 415, 418, 419, 420) are GRANTED.

IT IS FURTHER ORDERED that the Motion for Leave to Reply is DENIED as moot. (Rec. Doc. 439)

[1] The classes of individuals who may assert claims for bystander damages are limited to the spouse, children, grandchildren, parents, siblings, or grandparents of the party who suffered the physical injury. See LA. CIV. CODE art. 2315.6. [2] For the same reasons announced in Comardelle v. Pennsylvania General Ins. Co., No. 13-6555, 2014 WL 5762841, at [*3] (E.D. La. Nov. 3, 2014)(Africk, J.), Coates is unpersuasive and inapplicable here.

Sources

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