Vodanovich v. AP Green Industries, Inc. (2004)

Our plain-English summary of Vodanovich v. AP Green Industries, Inc. (Louisiana Court of Appeals, March 3, 2004).

Charles Vodanovich, a longshoreman who worked on the New Orleans-area Mississippi River wharves from 1948 to 1986, was diagnosed with malignant mesothelioma in November 2001 and died in May 2002. He sued, among others, Sank, Inc. (formerly Buck Kreihs Company) and Dixie Machine Welding and Metal Works, ship repair companies alleged to have done maintenance work aboard the ships he loaded and unloaded. The trial court granted the two companies summary judgment because there was no proof he was exposed to asbestos from their work. On appeal, the Fourth Circuit reviewed the ruling fresh. Vodanovich had testified that he unloaded raw asbestos and might have been exposed during ship repairs, but he could not name the contractors or describe what they did. A co-worker could not point to any specific instance of exposure from the defendants' work. The court held the record had no direct or circumstantial evidence that he was exposed to fibers released by the defendants' activities, so there was no basis to find those activities a substantial factor in his illness. It affirmed the judgment.

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: Louisiana Court of Appeals, 4th Circuit
• Decided: March 3, 2004
• Citation: 869 So.2d 930
• Docket: No. 2003-CA-1079
• Stage: Appeal from summary judgment
• State: Louisiana

Outcome. The appeals court affirmed summary judgment for Sank, Inc. (formerly Buck Kreihs Co.) and Dixie Machine Welding and Metal Works, dismissing the wrongful death claim of the longshoreman's estate for lack of proof of exposure.

What the court held. A plaintiff in an asbestos case must show exposure to asbestos released by the defendant's activities that was a substantial factor in causing the injury; without direct or circumstantial evidence of such exposure, summary judgment for the defendant is proper.

Issues decided: Causation, Wrongful Death and Survival, Trial Procedure and Discovery.

Why this case is relevant

This decision applied causation rules that Louisiana courts had already set; it did not create a new one. The Fourth Circuit restated that an asbestos plaintiff must prove, by a preponderance of the evidence, exposure to asbestos from the defendant and an injury substantially caused by that exposure. It also restated that a defendant's conduct is a cause in fact when it is a substantial factor in the harm. Applying those rules, the court held that, with no evidence tying the longshoreman's exposure to the defendants' repair work, summary judgment for them was proper.

Later courts in our library cite it mainly as a statement of these standards. The Louisiana Supreme Court cited it, alongside an earlier appellate case, for the rule that a claimant must show significant exposure that was a substantial factor in his injury. Louisiana appeals courts repeat that "substantial factor" test. The federal Fifth Circuit quoted its statement that mere possibility, and even unsupported probability, is not enough. Federal trial courts in the Eastern District of Louisiana cite it for the plaintiff's burden on both elements, for proof by direct or circumstantial evidence, and for the point that there can be more than one cause in fact.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Charles V. Vodanovich: mesothelioma; died

Who	Work	Where	When	Products
Charles V. Vodanovich	longshoreman (shipyards and maritime work)	wharves along the Mississippi River, New Orleans area, New Orleans, Louisiana	1948 to 1986	raw asbestos cargo from South Africa
Charles V. Vodanovich	longshoreman (shipyards and maritime work); worked near others using it	ships being repaired at wharves along the Mississippi River, New Orleans, Louisiana	1948 to 1986

The defendants

• Sank, Inc., f/k/a Buck Kreihs Company, Inc. (contractor)
• Dixie Machine Welding and Metal Works, Inc. (contractor)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Halphen v. Johns-Manville Sales Corp. (Louisiana Supreme Court, 1986). Answering a question certified by the Fifth Circuit, the Louisiana Supreme Court held that a manufacturer may be held liable for an unreasonably dangerous per se or construction-defective product even if it could not have known of the danger, a result favoring the widow over Johns-Manville.
• Thompson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1983). The Fifth Circuit affirmed summary judgment for four defendants (Raybestos-Manhattan and others) against plaintiff Thompson, who could not show their products caused his asbestosis; one judge dissented and would have certified the question to the Louisiana Supreme Court.
• Asbestos v. Bordelon, Inc. (Louisiana Court of Appeals, 4th Circuit, 1998). The court affirmed the jury verdicts for the plaintiffs against Owens-Corning Fiberglas (Kaylo insulation) and Rock Wool (One Shot cement), reversed the judgments against Garlock, A.W. Chesterton and Flexitallic, affirmed the judgments against Abadie, Naquin and Terrebonne and the dismissal of Plaisance's claim as prescribed, and ordered a virile-share reduction for Avondale's settlement that, on rehearing, applies only to Duronslet.
• Quick v. Murphy Oil Co. (Louisiana Court of Appeals, 4th Circuit, 1994). The appeals court reversed the $46,000 contribution judgment that the trial court had entered for Owens Corning Fiberglas against Garlock, because Quick's exposure to Garlock's asbestos products was trivial and not a cause in fact of his asbestosis.

Later decisions citing this one

43 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.
• Williams v. Boeing Company (U.S. Court of Appeals, Fifth Circuit, 2022). The Fifth Circuit reversed summary judgment for Boeing on the survival action and remanded, directed the district court to reconsider the plaintiffs' request for more discovery, and affirmed dismissal of the wrongful death claims as time-barred.
• Williams v. Seidenbach (U.S. Court of Appeals, Fifth Circuit, 2021). The Fifth Circuit affirmed summary judgment for McCarty Corporation and Taylor Seidenbach, Inc. against the Williams children, after finding the case was properly removed and that no evidence tied either defendant's products to Williams' exposure.
• Allen v. Eagle, Inc. (Louisiana Court of Appeals, 4th Circuit, 2023). The Louisiana Court of Appeal, Fourth Circuit, affirmed summary judgment for Ports America and against the Allen family plaintiffs, finding Mr. Allen's inconsistent deposition testimony was the only opposing evidence and was insufficient to show a factual dispute over his asbestos exposure while working for Ports America.
• Allen v. Eagle Inc. (Louisiana Court of Appeals, 4th Circuit, 2022). The appeals court granted the insurers' writ applications but denied relief, leaving in place the trial court's denial of summary judgment and of the motions in limine, so plaintiffs' claims against Lykes' insurers (Hartford, Lloyd's, Edinburgh) continue.
• Brindell v. Carlisle Industrial Brake and Friction, Inc. (Louisiana Court of Appeals, 4th Circuit, 2022). The appeals court affirmed summary judgment for Utility Trailer Manufacturing Company, rejecting the claims of the Brindell family plaintiffs.
• Lege v. Union Carbide Corporation (Louisiana Court of Appeals, 4th Circuit, 2021). The Fourth Circuit amended the jury judgment against Birla Carbon USA to cut the wrongful death awards to two non-testifying adult children from $500,000 to $100,000 each, and otherwise affirmed the judgment for the Leges, including the 51% fault allocation to Birla.
• Steib v. Lamorak Insurance Company (Louisiana Court of Appeals, 4th Circuit, 2021). The court of appeal affirmed the summary judgment dismissing Parsons Government Services and Marathon Petroleum from the Steib family's wrongful death and survival suit, so the plaintiffs lost against those two defendants.
• Boudreaux v. Bollinger Shipyard (Louisiana Court of Appeals, 4th Circuit, 2016). The appeals court affirmed the trial court's exclusion of the plaintiffs' pathologist and its summary judgment dismissing the Boudreaux family's claims against Trinity Industries and its insurers, so Trinity and the insurers won and the family lost.
• Oddo v. Asbestos Corporation Ltd. (Louisiana Court of Appeals, 4th Circuit, 2015). The appeals court reversed the judgment against Clariant/Southern Talc, affirmed Ford's liability, reallocated fault to Ford 65%, Union Carbide 25% and Higgins 10%, and amended the survival damages award against Ford, so the plaintiffs lost against Southern Talc but kept their judgment against Ford.
• Francis v. Union Carbide Corporation (Louisiana Court of Appeals, 4th Circuit, 2013). The appeals court reversed the trial court's summary judgment for Continental Insurance Company (Pendleton Shipyard's insurer) and remanded for further proceedings, ruling for plaintiff Rendon Francis.
• Landry v. Avondale Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2013). The appeals court affirmed summary judgment for the Landrys on the mesothelioma diagnosis, its asbestos cause and its role in Raleigh Landry's death, but reversed summary judgment on exposure to John Crane's and Steel Grip's products, substantial-factor causation and liability, and remanded for trial.
• McAskill v. American Marine Holding Co. (Louisiana Court of Appeals, 4th Circuit, 2009). The Louisiana Court of Appeal reversed the trial court's summary judgment for Eagle, Branton and Commercial Union and remanded for further proceedings, so plaintiff McAskill's claims go forward.
• Benard v. Eagle, Inc. (Louisiana Court of Appeals, 4th Circuit, 2008). The appeals court affirmed the trial court's judgment sustaining the res judicata exception of Eagle, Inc. and OneBeacon, so all of the heirs' claims against them stayed dismissed; one judge dissented.
• Danos v. Avondale Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2008). The court of appeal affirmed the summary judgment for Foster Wheeler against the widow and adult children of Golzie Danos, finding no factual support that he was exposed to asbestos from Foster Wheeler products (one judge dissented, and rehearing was later granted).
• Palermo v. Port of New Orleans (Louisiana Court of Appeals, 4th Circuit, 2007). The appeals court reversed the trial court's bench-trial judgment for the plaintiffs, finding the Dock Board owed no duty and that the evidence did not show Dixie, Buck Kreihs and Eagle substantially contributed to the exposures.
• 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.
• Crossland v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court granted Woodward Design & Build's summary judgment motion on the strict liability claim and on exposure to products other than joint compound and pipe insulation, denied it on the negligence claim based on those two products, and denied Woodward's motion to exclude the two causation experts.
• Robichaux v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court denied Huntington Ingalls' (Avondale's) motion for partial summary judgment on the Robichaux family's take-home exposure claim, so that claim goes forward.
• Robichaux v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2023). The court denied the summary judgment motions of Uniroyal Holdings and Foster Wheeler, leaving the survivors' and Avondale's claims against them for trial.
• Becnel v. Lamorak Insurance Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court denied the summary judgment motions of BMW, Ford, General Electric, Foster Wheeler, ViacomCBS (Westinghouse), Morse TEC (BorgWarner) and Navistar, so the plaintiffs' claims against them continue.
• Becnel v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, 2022). The court denied, without prejudice, defendant American Insurance Company's two summary judgment motions (products hazard exclusion and no exposure during the policy period), leaving plaintiffs' claims against AIC as Eagle's alleged insurer in place.
• Cortez v. Lamorak Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Westinghouse (ViacomCBS) partial summary judgment dismissing the failure-to-warn claims, but denied it on the Halter Marine exposure and on whether its FRDM was a substantial factor in causing Cortez's mesothelioma.
• Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, 2022). The court denied Riley Power, Inc.'s motion for summary judgment on the statute of repose and exposure-sufficiency grounds, and denied its motion to strike as moot, so plaintiffs (the Cortez family) prevailed over Riley at this stage.
• Falgout v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted summary judgment to third-party defendants Foster Wheeler, GE and Amchem and dismissed Avondale's cross-claims against them.
• Labarre v. Bienville Auto Parts Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Bienville Auto Parts' summary judgment motion on the strict liability "professional vendor" claim, but denied it on the negligence claim against Bienville as a non-manufacturer seller and on its sophisticated-user defense, so plaintiff Birdsall kept those claims.
• Roussell v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted summary judgment to General Electric and Foster Wheeler because Roussell did not oppose the motions, and dismissed her claims against them with prejudice.
• Roussell v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Westinghouse's motion for summary judgment and dismissed Marsha Roussell's claim against it with prejudice, because she offered no evidence of exposure to Westinghouse-related asbestos.
• Sanchez v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted unopposed summary judgment for Crown Cork & Seal, Atwood & Morrill, and Crescent Materials, dismissing plaintiff's claims against them with prejudice.
• Sanchez v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, 2022). The district court granted unopposed summary judgment for Viking Pump and Grefco, dismissing the plaintiff's claims against them with prejudice for lack of evidence of exposure to their products.

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.

869 So.2d 930 (2004)

Charles V. VODANOVICH

v.

A.P. GREEN INDUSTRIES, INC., etal.

No. 2003-CA-1079.

March 3, 2004.

Court of Appeal of Louisiana, Fourth Circuit.

[*931] Steven M. Jupiter, Leblanc & Waddell, LLC, New Orleans, LA, for Plaintiff/Appellant.

R. Dean Church, Jr., Daniel W. Dilzell, Peter S. Koeppel, Best Koeppel, New Orleans, LA, for Appellee, Dixie Machine Welding and Metal Works, Inc.

H. Philip Radecker, Jr., Lawrence G. Pugh, III, Frank P. Accardo, Scott R. Hymel, Tonya M. Short, Alison S. Borison, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Appellee, Sank, Inc., Formerly known as Buck Kreihs Company, Inc.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).

Judge EDWIN A. LOMBARD.

This is a wrongful death suit in which the plaintiff appeals the trial court's finding that there were no genuine issues of material fact with regards to plaintiff being exposed to asbestos as a result of the defendants' work activities. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Vodanovich ("Plaintiff") worked as a longshoreman from 1948 to 1986. As a longshoreman the plaintiff was required to load and unload asbestos cargo at several wharves along the Mississippi River. It is alleged that various maintenance repair companies such as Buck Kreihs and Dixie machine performed maintenance work aboard the same ships that the plaintiff was loading and unloading. On November of 2001, the plaintiff was diagnosed with malignant mesothelioma. Subsequently, the plaintiff died on May 20, 2002. Prior to his death the plaintiff filed suit on February 15, 2002, naming as defendants, among others, Sank, Inc., f/k/a Buck Kreihs Company, Inc. and Dixie Machine Welding and Metal Works, Inc. (collectively "Defendants").

The defendants filed motions for summary judgment on January 9, and February 5, 2003 respectively. The defendants contend that there was no connexity between their actions and the plaintiff's contraction of mesothelioma. Specifically, the defendants argue that the plaintiff could [*932] not prove exposure. The trial court granted defendants' motion for summary judgment and dismissed plaintiff's case. This subsequent appeal followed.

The sole issue on appeal is whether the trial court erred in granting the defendants' motion for summary judgment by failing to construe factual inferences drawn from the evidence in favor of the plaintiff, and finding that the defendants met their burden of proof.

LAW AND ANALYSIS

In Pierre-Ancar v. Browne-McHardy Clinic, 2000-2410 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, cert. denied, 2002-0509 (La.4/26/02), 814 So.2d 558, this Court discussed the criteria to be used by an appellate court in reviewing a summary judgment, as follows:

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to

determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The initial burden of proof remains on the movant to show that no genuine issue of material fact exists. However, if the movant will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiff's claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228 (La. App. 4 Cir. 3/31/99), 731 So.2d 983, 985. After the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326. Id. at pp. 4-5 and 702 So.2d at 347-48.

To prevail, a plaintiff in an asbestos case must show, by a preponderance of the evidence, that he was exposed to asbestos from the defendant's products, and that he received an injury that was substantially caused by that exposure. When multiple causes of injury are present, a defendant's conduct is a cause in fact if it is a substantial factor generating plaintiff's harm. Quick v. Murphy Oil Co., 93-2267 (La. App. 4th Cir.9/20/94), 643 So.2d 1291.

There can be more than one cause in fact of an accident as long as each cause bears a proximate relation to the harm that occurs and it is substantial in nature. A plaintiff seeking to recover under either negligence or strict liability theories must prove that the negligent act or defect complained of was a cause-in-fact of the injury. Davis v. State Farm Ins. Co., 558 So.2d 636 (La.App. 1st Cir.1990).

In Quick v. Murphy Oil Co., supra, the court found that:

[*933] When evaluating liability in an asbestos claim, we apply traditional theories of tort liability (for example, negligence and products liability) which require proof of causation. See Cole v. Celotex Corp., 599 So.2d 1058 (La.1992); Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986); Thompson v. Johns-

Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), cert. den. 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984). Asbestos cases typically involve multiple defendants and courts have analyzed the cases under

concurrent causation, a doctrine which "proceeds from the assumption that more than one defendant

substantially contributed to the plaintiff's injury." 210 E. 86th Street Corp. v. Combustion Engineering, Inc., 821 F.Supp. 125, 150 (S.D.N.Y.1993).

93-2267 (La.App. 4th Cir.9/20/94), 643 So.2d 1291.

In Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), the Supreme Court stated that "conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm." Id. The court stated that negligent conduct is a substantial factor if the harm would not have occurred without the conduct, i.e., but for defendant's conduct, plaintiff would not have sustained injury. The court thereby equated the two concepts of substantial factor and necessary antecedent. Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 373 (1970).

Quick makes clear that a plaintiff's burden of proof against multiple defendants in a long-latency case is not relaxed or reduced because of the degree of difficulty that might ensue in proving the contribution of each defendant's product to the plaintiff's injury. Thus, in an asbestos case, "the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury." Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4th Cir.10/21/98), 726 So.2d 926 at 948.

In the present case, the record indicates that the plaintiff was a longshoreman who loaded and unloaded ships at various wharves in the New Orleans area, and that the defendants were vessel repair companies who performed work on vessels at

various wharves in the New Orleans area. Both the plaintiff and Earl Lindsay provided testimony regarding the plaintiff's work activities and asbestos exposure.

The plaintiff testified that he worked the asbestos line seven years prior to December, 1963, for T. Smith & Sons, unloading sacks of raw asbestos from south Africa onto barges for additional travel. The plaintiff further stated that he could have been exposed to asbestos during the maintenance and repair of the ships. However, he could not identify the contractors performing this work nor could he provide specific details of the defendants' activities in relation to the work performed and asbestos exposure.

Mr. Lindsay, a co-worker, testified that he worked with the plaintiff on the waterfront, even working in the same gang with him for periods of time, but indicated that the plaintiff would be the best person to testify to exposure to asbestos. Interestingly, Mr. Lindsay could provide no evidence of specific instances where the defendants' activities caused the plaintiff to be exposed to any asbestos fibers.

Under Louisiana law, the plaintiff bears the burden of proving that the defendants' conduct caused asbestos exposure, and that the conduct was a substantial contributing factor of the plaintiff's injury. In the present case, the plaintiff has failed to establish any direct or circumstantial [*934] evidence of exposure to asbestos fibers released by the defendants' activities. The plaintiff testified that he was never engaged in any of the defendants' work. He also could not recall the names of any of the companies performing insulation work on any of the vessels he worked in and around nor could he could he recall what materials they were using or what things they were insulating. The record lacks any evidence that plaintiff was exposed to any asbestos fibers as a result of any repair work by defendants, sufficient to warrant the inference that plaintiff was exposed to asbestos fibers released by the defendants' activities.

It is well established that the movant in a motion for summary judgment need only show that "there is an absence of factual support for one or more elements essential to the adverse part's claim, action or defense." Thereafter, if the adverse party fails to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. Art. 966. Because plaintiff has provided no identification of actual work being performed in proximity, there can be no inference that the defendants' activities were a substantial factor in causing plaintiff's injuries. A plaintiff must establish his claim to a reasonable certainty, mere possibility, and even unsupported probability, are not sufficient to support a judgment in plaintiff's favor. Accordingly, summary judgment was appropriate and the trial court's judgment should be affirmed. CONCLUSION

Based on the forgoing, the judgment of the trial court sustaining the defendants' motion for summary judgment is affirmed. AFFIRMED.

Sources

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