Vedros v. Northrop Grumman Shipbuilding, Inc. (E.D. La., Mar. 7, 2014)

Our plain-English summary of Vedros v. Northrop Grumman Shipbuilding, Inc. (U.S. District Court, Eastern District of Louisiana, March 7, 2014).

Sally Gros Vedros died of mesothelioma. She and, after her death, her children sued Avondale (Northrop Grumman Shipbuilding), several of its executives and insurers. Her father worked as a welder at Avondale from 1943 to 1976, and she said she spent many years washing his work clothes, which she claimed exposed her to asbestos-containing insulation dust. She also worked in Avondale's purchase department from 1960 to 1963 and claimed direct exposure there. The defendants moved for partial summary judgment on the plaintiffs' intentional tort, fraud and conspiracy theories. The court granted both motions. On intentional tort, it held that even if the defendants knew of a major risk or probability of mesothelioma, the plaintiffs had not shown the disease was inevitable or substantially certain, so the claim sounded in negligence. On fraud, the plaintiffs bore the burden of proof and offered insufficient evidence. On conspiracy, Louisiana has no such tort. Those claims were dismissed with prejudice.

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 7, 2014
• Docket: Civil Action No. 11-1198
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law, an intentional tort requires proof that the harm was substantially certain to follow from the conduct, and mere knowledge of an asbestos risk is negligence, not intent. Louisiana recognizes no substantive tort of civil conspiracy.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Trial Procedure and Discovery, Take-Home Exposure.

The people and their exposure

• Sally Gros Vedros: mesothelioma; died

Who	Work	Where	When	Products
Sally Gros Vedros	purchase department (shipyards and maritime work)	Avondale, Louisiana	1960 to 1963
Sally Gros Vedros	welders (shipyards and maritime work); dust brought home	Avondale, Louisiana	1943 to 1976

The defendants

• Northrop Grumman Shipbuilding, Inc. (Avondale) (employer)
• Albert L. Bossier, Jr.
• J. Melon Garrett
• OneBeacon America Insurance Company (insurer)
• American Employers Insurance Company (insurer)
• James Bull
• Roy Barkdull
• C. Edwin Hartzman
• Hettie "Dawes" Eaves
• Henry "Zac" Carter
• Ewing Moore

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 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. Northrop Grumman (June 8, 2015). 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.
• 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:

• Zimko v. American Cyanamid (Louisiana Court of Appeals, 4th Circuit, 2005). The appeals court reversed the judgment against Tate & Lyle because workers' compensation exclusivity barred it, affirmed liability and the survival award against American Cyanamid, and cut the wrongful death award against American Cyanamid to 50% by allocating fault equally between the two companies.

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, ET AL

v.

NORTHROP GRUMMAN SHIPBUILDING, INC., ET AL, Section: J.

Civil Action No. 11-1198.

March 7, 2014.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court are two essentially identical Motions for Partial Summary Judgment filed by Defendant Northrop Grumman Shipbuilding, Inc. (hereinafter "Avondale") (Rec. Doc. 108) and Defendants Albert L. Bossier, Jr., J. Melon Garrett, OneBeacon America Insurance Company, American Employers Insurance Company, James Bull, Roy Barkdull, C. Edwin Hartzman, Hettie "Dawes" Eaves, Henry "Zac" Carter, and Ewing Moore (hereinafter "the Avondale Interests") (Rec. Doc. 109). Also before the Court is an Opposition to both motions (Rec. Doc. 126) filed by Plaintiffs, Sally Gros Vedros, Lori Vedros Kravet, Valerie Vedros White, and Gerald Vedros (hereinafter "Plaintiffs"), as well as a Reply filed by Avondale and the Avondale Interests (Rec. Doc. 191). Having considered the motion, the parties' submissions, the record, and the applicable law, the Court finds, for reasons expressed below, that both Motions for Partial Summary Judgment should be GRANTED.

PROCEDURAL AND FACTUAL BACKGROUND

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 purchase 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, including Avondale and the Avondale Interests (collectively, "Defendants"). After Vedros died, her children joined the suit as plaintiffs. Defendants have filed the instant motions for partial summary judgment on Plaintiffs' claims that are based on theories of intentional tort, fraud, and conspiracy. PARTIES' ARGUMENTS

A. Intentional Tort

Defendants contend that the issue of intent is appropriate for resolution on summary judgment, but Plaintiffs argue that it is not. Plaintiffs also submit that Defendants have not brought any evidence that Avondale and its executives were not substantially certain that its practices would cause Vedros to contract mesothelioma, except for four affidavits that Defendants have submitted, which Plaintiffs claim are improper summary judgment evidence. Plaintiffs argue that Defendants were aware of the risks associated with asbestos and with unsafe working conditions at Avondale and that Defendants failed to remedy those conditions despite knowledge of the risks. Defendants counter that awareness of a risk does not rise to the level of intent that Plaintiffs must prove to succeed on their intentional tort claim. B. Fraud

Defendants argue that summary judgment should be granted in their favor on Plaintiffs' fraud claim because Plaintiffs have not brought evidence that Defendants told Vedros that asbestos was safe or that Defendants intended to harm Vedros or obtain an unjust advantage over her. Plaintiffs contend that Defendants' defrauded Vedros when they remained silent instead of warning her about the dangers of asbestos exposure of which Defendants were aware. Plaintiffs also maintain

that "defendants have not come forth with any evidence whatsoever that they either did not know of the hazards of asbestos ... or that they actually warned [Sally Vedros and Alton Gros] instead of remaining silent...." (Rec. Doc. 126, p. 28). C. Conspiracy

Defendants argue that civil conspiracy is not an actionable tort under Louisiana law, and therefore, Plaintiffs' action for conspiracy must be dismissed. Plaintiffs submit that their petition does not allege a claim for conspiracy and, therefore, summary judgment is inappropriate on a claim which they did not state. Defendants argue that given the standards of notice pleading, the language of Plaintiffs' complaint could be construed to attempt to state a claim for conspiracy and that if Plaintiffs believe they have no cause of action for conspiracy, they should not object to the dismissal of such a claim on summary judgment.

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.2d 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). The Court will examine the evidence in the light most favorable to the nonmoving party. Naquin v. Fluor Daniel Servs. Corp., 935 F. Supp. 847, 848 (E.D. La. 1996) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). While all reasonable inferences are drawn in favor of the nonmoving party, a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.2d 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.

DISCUSSION

A. Intentional Tort

Plaintiffs attempt to establish that Vedros's mesothelioma was caused by exposure to asbestos as a result of a dangerous working environment at Avondale, and to show that Defendants committed an intentional tort. To prove that Defendants committed an intentional tort, Plaintiffs must prove that Defendants either consciously desired the result (Vedros's contracting mesothelioma), or else knew that the result was "substantially certain to follow from [their] conduct." Zimko v. Am. Cyanamid, 2003-0658 (La. App. 4 Cir. 6/8/05); 905 So. 2d 465, 475, cert. denied, 2005-2102 (La. 3/17/06), 925 So. 2d 538 (internal citations omitted). Plaintiffs do not appear to argue that Defendants consciously desired that Vedros contract mesothelioma but instead argue that Vedros's mesothelioma was substantially certain to follow from Defendants' conduct. Substantial certainty "requires more than a reasonable probability that an injury will occur," and Plaintiffs must prove that Vedros's contracting mesothelioma was "inevitable or incapable of failing." Reeves v. Structural Pres. Sys., 98-1795 (La.

3/12/99); 731 So. 2d 208, 213 (internal citations omitted). It will not be sufficient for Plaintiffs to show that Defendants had knowledge that their practices were dangerous and created a high probability that someone would eventually be injured. Id. Defendants' "mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct." Id. (internal citations omitted). Defendants' "belie[f] that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of intentional tort, but instead falls within the range of negligent acts...." Id. at 214. Therefore, if Plaintiffs can only show that Vedros's contracting mesothelioma was a "possibility or risk," their claim is in negligence and not in the realm of intentional tort. Id. at 212. To prove a claim in the realm of intentional tort, Plaintiffs would have to prove that Defendants' "conduct [went] beyond knowingly permitting a hazardous work condition to exist, ordering an employee to perform an extremely dangerous job, or willfully failing to furnish a safe place to work ... ." Zimko, 905 So. 2d at 477 (internal citations omitted). It will be insufficient for Plaintiffs to merely show that Defendants failed to provide a safe workplace or to correct unsafe working conditions or that Defendants failed to provide requested safety equipment. Id.

Plaintiffs argue that Defendants were aware of the risks associated with asbestos and with the unsafe working conditions at Avondale and that Defendants failed to remedy those conditions despite their knowledge of the risks. Defendants counter that an awareness of risk does not rise to the level of intent that Plaintiffs must prove. The Court agrees with Defendants. Even considering the facts in the light most favorable to Plaintiffs[1] and assuming that Defendants were aware that there was a major risk, or even a probability, that Vedros would contract mesothelioma, Plaintiffs have failed to bring sufficient evidence whereby a reasonable jury could conclude that Vedros's contracting mesothelioma was "inevitable or incapable of failing" and was thus substantially certain to result from Defendants' conduct. In fact, it has been established that "it is [not] common human experience... that mesothelioma is known certainly or inevitably to follow from asbestos exposure." Zimko, 905 So. 2d at 479. Therefore, Plaintiffs' claim against Defendants lies in the realm of negligence, not in the realm of intentional tort. For these reasons, the Court finds that Plaintiffs' intentional tort claims against Avondale and the Avondale Interests should be dismissed with prejudice.

B. Fraud

To succeed on a tort claim for fraud, Plaintiffs must prove that: (1) Defendants misrepresented a material fact, (2) with the intent to deceive, and (3) caused justifiable reliance and resultant injury. Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 627 (5th Cir. 1999). Plaintiffs must show that Defendants either intended that their misrepresentation would induce Vedros to take action that involved an unreasonable risk of harm, or else realized that their misrepresentation would be likely to induce such action. Id.

Plaintiffs argue that "defendants have not come forth with any evidence whatsoever that they either did not know of the hazards of asbestos ... or that they actually warned [Sally Vedros and Alton Gros] instead of remaining silent...." (Rec. Doc. 126, p. 28). Plaintiffs' argument is based on a fundamental misunderstanding of the shifting burdens of proof involved in the Court's determination of this motion for summary judgment. Plaintiffs would bear the burden of proof at trial to establish all of the elements of a fraud claim, including the fact that Defendants remained silent about risks of asbestos about which they were aware, and with the intent to deceive Vedros. Because Plaintiffs would bear the burden of proof at trial, Defendants may satisfy their burden on this motion for summary judgment by merely pointing out that the evidence in the record is insufficient with respect to any element of the fraud claim. Defendants have done just that here. The burden then shifts to Plaintiffs to set out facts showing that a genuine issue of material fact exists such that a reasonable jury could conclude that all of the elements of a fraud claim are met. Plaintiffs have failed to submit sufficient evidence and have thus failed to satisfy their burden of proof. Therefore, Plaintiffs' fraud claims against Avondale and the Avondale Interests should be dismissed with prejudice.

C. Conspiracy

There is no substantive tort for civil conspiracy in Louisiana. Ross v. Conoco, Inc., 2002-0299 (La. 10/15/02); 828 So.2d 546, 551-52. Therefore, to the extent that Plaintiffs' complaint attempts to state a cause of action for conspiracy, their conspiracy claims against Avondale and the Avondale Interests should be dismissed with prejudice.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the Motions for Partial Summary Judgment filed by Avondale (Rec. Doc. 108) and the Avondale Interests (Rec. Doc. 109) are GRANTED.

IT IS FURTHER ORDERED that Plaintiffs' claims against Avondale and the Avondale Interests based on theories of intentional tort, fraud, and conspiracy are hereby DISMISSED WITH PREJUDICE.

[1] The Court finds that it may determine the issue of intent on summary judgment in this case. Summary judgment is generally disfavored when issues of intent or state of mind are involved. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1265-66 (5th Cir. 1991). However, if a court draws every reasonable inference in favor of the nonmoving party, summary judgment can be appropriate where the nonmoving party has failed to present evidence whereby a reasonable jury could find in its favor on the issue of intent. Id. at 1266. Summary judgment is especially appropriate where, as here, Plaintiffs face such a daunting burden to prove that Vedros's mesothelioma was substantially certain to result from Defendants' conduct. See id. (internal citations omitted).

Sources

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