Vedros v. Northrop Grumman Shipbuilding, Inc. (E.D. La., Mar. 14, 2014)

Our plain-English summary of Vedros v. Northrop Grumman Shipbuilding, Inc. (U.S. District Court, Eastern District of Louisiana, March 14, 2014).

Sally Gros Vedros died of mesothelioma. She and, after her death, her children sued several defendants, including General Electric (GE). The opinion says her father worked as a welder at Avondale from 1943 to 1976 and she spent many years washing his work clothes, which allegedly exposed her to insulation dust containing asbestos. She also worked in Avondale's purchase department from 1960 to 1963 and claimed direct exposure there. The plaintiffs alleged that GE made metal turbines used at Avondale, including on Lykes vessels. GE moved for summary judgment. Its testimony was that the turbines were delivered as bare metal and that insulation was installed afterward. The plaintiffs offered no evidence that GE made or supplied asbestos insulation, and the court found that Avondale's insulators, not GE employees, applied it. The court relied on Sixth Circuit and other decisions holding that a manufacturer is not liable for asbestos products made by others and attached to its equipment. It granted summary judgment and dismissed the claims against GE 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 14, 2014
• Docket: Civil Action No. 11-1198
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. A turbine manufacturer is not liable for asbestos-containing insulation that third parties made and applied to its bare metal turbines after delivery, absent evidence that it made, sold, supplied or distributed the insulation or that its employees attached it.

Issues decided: The Bare-Metal Defense, Failure to Warn, Product Identification.

The people and their exposure

• Sally Gros Vedros: mesothelioma; died

Who	Work	Where	When	Products
Sally Gros Vedros	purchase department worker (shipyards and maritime work)	Avondale, Louisiana	1960-1963
Sally Gros Vedros	washed her father's work clothes (father was a welder) (shipyards and maritime work); dust brought home	Avondale, Louisiana	1943-1976	pipe and block insulation, insulation on GE turbines

The defendants

• General Electric Company (manufacturer)
• Northrop Grumman Shipbuilding, Inc. (premises owner)

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 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:

• Braaten v. Saberhagen Holdings (Washington Supreme Court, 2008). The Washington Supreme Court reversed the Court of Appeals and reinstated the trial court's summary judgment orders in favor of pump and valve manufacturers Buffalo Pumps, IMO, Crane and Yarway, against the Braaten estate.
• Conner v. Alfa Laval, Inc. (U.S. District Court, Eastern District of Pennsylvania, 2012). The court granted summary judgment to General Electric, Crane, Foster Wheeler, Warren Pumps, IMO Industries, Buffalo Pumps, Armstrong International and CBS, and denied the plaintiffs relief on their strict liability and negligence claims.

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 14, 2014.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court is a Motion for Summary Judgment filed by Defendant General Electric Company ("GE) (Rec. Doc. 204), as well as Plaintiffs' Opposition (Rec. Doc. 246) and GE's Reply (Rec. Doc. 271). Having considered the motion, the parties' submissions, the record, and the applicable law, the Court finds, for the reasons expressed below, that the Motion for 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 GE, and after Vedros's death, her children joined the suit as plaintiffs.

PARTIES' ARGUMENTS

Plaintiffs allege that GE manufactured metal turbines that were used at Avondale and that were specifically used in Lykes vessels, upon which Vedros's father worked. GE has provided deposition testimony that the turbines provided to Avondale were bare metal turbines and that any asbestos-containing insulation used in the turbines was installed after the turbines were delivered to Avondale. GE contends that it did not manufacture, sell, supply, or distribute any asbestos-containing insulation to Avondale, only the metal turbines, and Plaintiffs do not offer evidence to dispute this. Plaintiffs do not appear to allege that GE manufactured, sold, supplied, or distributed asbestos-containing insulation, but Plaintiffs do allege that GE employees were sometimes present and observed Avondale employees installing asbestos-containing insulation onto or around the turbines, and that GE employees themselves may have installed some insulation in the turbines while at Avondale.

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©); 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

The Court finds that Plaintiffs have failed to present sufficient evidence that Vedros was exposed to asbestos that was manufactured, sold, supplied, or distributed by GE. Plaintiffs have not submitted any evidence to rebut GE's evidence that GE only manufactured and distributed bare metal turbines and not asbestos-containing insulation. Counsel for Plaintiffs make a number of vague and conclusory statements in the Opposition that are not supported by the affidavits or depositions to which Plaintiffs' Counsel cites. It appears that, despite the vague and conclusory allegations of Plaintiffs' Counsel, any asbestos-containing materials applied to the GE turbines were applied by insulators employed by Avondale, not by employees of GE. Based on the deposition testimony, it appears that GE inspectors may have been present during the installation of the GE turbines. This is not sufficient to hold GE liable for the acts of Avondale's insulators. It therefore appears that Plaintiffs' only viable argument is that GE, as the manufacturer or distributer of the turbines, should be held liable for the asbestos-containing materials that were manufactured, distributed, and attached to the turbines by third parties.

The Sixth Circuit appears to be "the only federal court of appeals to consider" the liability of defendants for asbestos-containing products manufactured or distributed by third parties. Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 797 (E.D. Pa. 2012); Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005)). The Sixth Circuit "confirmed that a manufacturer is not liable for asbestos-containing components and replacement parts it did not manufacture or distribute." Id. (internal citations omitted) (citing Lindstrom, 424 F.3d 488 and Stark v. Armstrong World Indus., Inc., 21 Fed. App'x 371 (6th Cir.2001)).

In Stark, the plaintiff brought suit against a manufacturer of boilers, alleging that he worked in a boiler room and was exposed to asbestos-containing products that were attached to the boilers. Stark, 21 Fed. App'x at 381. The Sixth Circuit found that the boiler manufacturer was not liable because it did not manufacture or distribute the asbestos-containing products, only the boilers. Id. Similarly, in Lindstrom, the Sixth Circuit found that a defendant that manufactured water pumps and air compressors was not liable for asbestos-containing products that were attached to the pumps and compressors post-manufacture because the defendant did not manufacture or distribute the asbestos-containing products. Lindstrom, 424 F.3d at 497. Additionally, it is clear that under products liability law, a manufacturer cannot be held liable for a failure to warn of the dangers of a product made by another manufacturer. Conner, 842 F. Supp. 2d at 799 (citing Braaten v. Saberhagen Holdings, 198 P.3d 493, 503-04 (Wash. 2008)).

Because Plaintiffs have not submitted sufficient evidence to show that GE manufactured, sold, supplied, or distributed any asbestos-containing products to Avondale, or that GE employees attached any asbestos-containing materials to the turbines at Avondale, Plaintiffs' claims against GE cannot survive summary judgment, and their claims should be dismissed with prejudice.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the Motion for Summary Judgment (Rec. Doc. 204) is GRANTED.

IT IS FURTHER ORDERED that all of Plaintiffs' claims against Defendant General Electric Company are hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the oral argument, currently set for Wednesday, March 26, 2014, is CANCELLED with respect to Rec. Doc. 204.

IT IS FURTHER ORDERED that all other motions pending in the above-captioned matter remain unaffected by this order.

Sources

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