Vedros v. Northrop Grumman Shipbuilding, Inc. (E.D. La., Mar. 17, 2014)

Our plain-English summary of Vedros v. Northrop Grumman Shipbuilding, Inc. (U.S. District Court, Eastern District of Louisiana, March 17, 2014).

Sally Gros Vedros died of mesothelioma. She and, after her death, her children sued many defendants, including Westinghouse (CBS Corporation). Her father was a welder at Avondale from 1943 to 1976, and she said she washed his work clothes for years and was exposed to asbestos dust that way. She also worked in Avondale's purchase department from 1960 to 1963 and claimed direct exposure there. Westinghouse moved for summary judgment on two theories. The first was that it made turbines used at Avondale and on Lykes vessels, to which asbestos insulation was attached. The court found the plaintiffs had not shown that Westinghouse made or supplied the insulation. Any insulation was applied by Avondale's insulators, and the presence of Westinghouse inspectors was not enough to make Westinghouse liable for their work. Those claims were dismissed with prejudice. The second theory was that Westinghouse made asbestos-containing micarta used by Hopeman Brothers at Avondale. The court found genuine fact disputes, so those claims continue.

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 17, 2014
• Docket: Civil Action No. 11-1198
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. A turbine manufacturer is not liable for asbestos-containing insulation made and attached by third parties, and plaintiffs' conclusory statements about Westinghouse's involvement in installing it did not create a fact issue.

Issues decided: The Bare-Metal Defense, Product Identification, 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	daughter of a welder; washed his work clothes (shipyards and maritime work); dust brought home	Avondale, Louisiana	1943 to 1976	pipe and block insulation
Sally Gros Vedros	(shipyards and maritime work); worked near others using it	Avondale; Lykes vessels, Louisiana		micarta, Westinghouse

The defendants

• Westinghouse Electric Corporation (CBS Corporation) (manufacturer)
• Northrop Grumman Shipbuilding, Inc. (employer)
• General Electric (manufacturer)

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. (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.

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 17, 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 CBS Corporation, formerly known as Westinghouse Electric Corporation ("Westinghouse) (Rec. Doc. 217), as well as Plaintiffs' Opposition (Rec. Doc. 238) and Westinghouse's Reply (Rec. Doc. 272). 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 IN PART and DENIED IN PART.

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 Westinghouse, and after Vedros's death, her children joined the suit as plaintiffs.

PARTIES' ARGUMENTS

A. Turbines

Plaintiffs allege that Westinghouse manufactured metal turbines that were used at Avondale and that were specifically used in Lykes vessels, upon which Vedros's father worked. Plaintiffs allege that asbestos-containing insulation was attached to these turbines. Plaintiffs do not appear to allege that Westinghouse manufactured, sold, supplied, or distributed asbestos-containing insulation, but Plaintiffs do allege that Westinghouse employees were sometimes present and observed Avondale employees installing asbestos-containing insulation onto or around the turbines, and that Westinghouse employees themselves may have installed some insulation in the turbines while at Avondale.

B. Micarta

Plaintiffs also allege that Westinghouse manufactured fire resistant decorative micarta ("micarta"), which contained asbestos and which was used extensively at Avondale by Hopeman Brothers during the relevant time period. Specifically, Plaintiffs allege that this micarta was used aboard the Lykes vessels upon which Alton Gros worked. Westinghouse does not appear to contest Plaintiffs' contentions that it manufactured asbestos-containing micarta and that it supplied micarta to Hopeman Brothers and/or 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

A. Turbines

The Court finds that, with respect to the turbines, Plaintiffs have failed to present sufficient evidence that Westinghouse manufactured, sold, supplied, or distributed any asbestoscontaining products to which Vedros was exposed. Plaintiffs only allege that Westinghouse manufactured turbines, not that Westinghouse manufactured any of the insulation or other asbestoscontaining products that were later attached to those turbines. 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 Westinghouse turbines were applied by insulators employed by Avondale, not by employees of Westinghouse. Based on the deposition testimony, it appears that Westinghouse inspectors may have been present during the installation of the Westinghouse turbines. This is not sufficient to hold Westinghouse liable for the acts of Avondale's insulators. It therefore appears that Plaintiffs' only viable argument is that Westinghouse, 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.

For the same reasons that the Court cited in its Order of March 13, 2014 (Rec. Doc. 309) regarding General Electric's similar Motion for Summary Judgment (Rec. Doc. 204), the Court finds that Plaintiffs' claims against Westinghouse regarding the turbines cannot survive summary judgment. Therefore, any claims by Plaintiffs against Westinghouse based on Westinghouse's manufacturing or distributing the turbines should be dismissed with prejudice.

B. Micarta

With respect to Plaintiffs' claims against Westinghouse based on Westinghouse's manufacturing micarta, the Court finds that genuine issues of material fact are present which preclude summary judgment.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the Motion for Summary Judgment (Rec. Doc. 217) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Plaintiffs' claims against Defendant Westinghouse based on a theory that Vedros was exposed to asbestos through turbines manufactured or distributed by Westinghouse are hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs' claims against Defendant Westinghouse based on a theory that Vedros was exposed to asbestos through micarta manufactured or distributed by Westinghouse remain unaffected by this order. IT IS FURTHER ORDERED that the oral argument, currently set for Wednesday, March 26, 2014, is CANCELLED with respect to Rec. Doc. 217.

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