Jurisdiction: Court of Appeal of Louisiana, Fourth Circuit

In April 2018, Emily Everett complained to her primary care physician of severe abdominal swelling.  After extensive workup, Everett received a diagnosis of mesothelioma. She attributed the diagnosis to laundering her husband’s work clothes over a 20-year period when he worked as a journeyman welder and boilermaker. She filed a petition for damages in June 2018 prior to her passing in April 2019. In March 2022, several defendants including Foster Wheeler filed separate motions for summary judgment. Defendant Peter Kiewit Sons later joined. The district court granted defendants’ motions on May 4, 2022, prompting plaintiffs to file a motion for a new trial just eight days later. The district court then summarily denied plaintiffs’ motion for a new trial, thus prompting plaintiff’s Motion for Devolutive Appeals.

Plaintiffs alleged error in four ways:  (1) the district court erred by allowing the movers to expand their pleadings to include arguments on specific causation, which was not included in the original motions; (2) the district court erred by not granting a continuance at the summary judgment hearing after allowing the movers to expand the issues in contention; (3) the district court abused its discretion by summarily denying their motion for a new trial without a contradictory hearing; and (4) the district court erred in granting an untimely filed motion to join summary judgment in favor of Peter Kiewit which did not include any facts or evidence specific to Peter Kiewit, and with which, plaintiffs were not properly served or given notice.

The court was not persuaded by plaintiffs’ first argument. It concluded Foster Wheeler “clearly showed” that plaintiffs could not prove attributable asbestos exposure in its original motion for summary judgment. The court stated, “The requirement in an asbestos case that the plaintiff establish causation has been characterized as the ‘premier hurdle.’” Everett v. Air Prods. & Chems., 2022-0539 ( La App 4 Cir 05/02/23) [2023]; Steib v. Lamorak, 20-0424, p. 10, 2021 WL 503240 at *5 (quoting Rando v. Anco Insulations Inc., 08-1163, 08-1169, p. 31 (La. 5/22/09), 16 So.3d 1065, 1088).  Critically, the court held:

[N]otwithstanding the difficulty of proof involved, a plaintiff’s burden of proof against multiple defendants in a long-latency case, such as a tort claim for mesothelioma, is not relaxed or reduced because the degree of difficulty that might ensue in proving the contribution of each defendant’s product to the plaintiff’s injury.

Id. (quoting Rando 08-1163, 08-1169, pp. 35-36, 16 So.3d at 1091). Thus, it was incumbent upon the plaintiffs to demonstrate that not only was there a genuine issue of material fact whether asbestos exposure possibly caused the decedent’s illness, but also that such exposure was directly attributable to Foster Wheeler. Plaintiffs’ use of brief deposition testimony excerpts failed to directly point to any Foster Wheeler product as the source of the alleged exposure.

The court also found plaintiffs’ argument in support of their motion for continuance unpersuasive. It held that Foster Wheeler’s supposed new theory should not have “surprised” plaintiffs because their motion “explicitly set forth that [plaintiffs] failed to present any evidence that exposure to asbestos attributable to Foster Wheeler, if any, was a substantial factor in the development of [decedent]’s peritoneal mesothelioma.” Everett at *21.

Next, plaintiffs averred that good grounds existed for a new trial because of (1) ill practices perpetuated by Foster Wheeler in raising a new issue outside its original motion for summary judgment and (2) plaintiffs provided an extensive 26-page memorandum in support of their motion, which included 23 exhibits addressing specific causation. The court again disagreed with plaintiffs’ first contention, stating: “It is quite clear from the record that throughout the proceeding, [plaintiffs’] counsel failed to grasp that Foster Wheeler pointed out the lack of evidence of specific causation in its motion for summary judgment.”  Id. at *22.  However, the court found the plaintiff’s second point held some merit.

The court relied on Smith v. Alliance Compressors, where the district court abused its discretion when it “focused on the technical application of the law, without giving due regard to the inherent injustice the losing party would suffer because of the unilateral negligence of [plaintiff’s] lawyer.”   05-855, p. 9 (La. App. 3 Cir. 2/1/06, 922 So.2d 674, 680. It concluded that denying plaintiffs’ motion based on their counsel’s failure to submit an expert witness report constituted a potential miscarriage of justice. In fact, the court held the report in question likely created a genuine issue of material fact as to specific causation. Relying on Smith, the court concluded the district court abused its discretion in summarily denying plaintiffs’ motion for a new trial because “it would serve an injustice to allow a judgment resulting in the dismissal of an action to stand, in a case in which reasonable reliance by a party upon a neglectful attorney caused, or contributed to, the resulting decision.  05-855, p. 12, 922 So.2d at 682.

Turning to plaintiffs’ final argument, the court held the district court erred by granting Peter Kiewit’s motion to join in summary judgment. Although it acknowledged it is common practice amongst codefendants to join or adopt other codefendants’ motions for summary judgment, Louisiana statute prohibited Peter Kiewit’s late joining. It held that La. C.C.P. art 966(B)(1) “makes no provision for the filing of a motion to join a motion for summary judgment less than sixty-five (65) days prior to the trial.” The court held this was synonymous with a filing for a motion for summary judgment and thus held Peter Kiewit should not have been able to join in its codefendants’ motion.

The court reversed the district court’s judgment granting Peter Kiewit’s motion for summary judgment, affirmed the judgment in favor of Foster Wheeler’s motion for summary judgment; reversed the denial of plaintiffs’ motion for a new trial; dismissed Foster Wheeler’ and Peter Kiewit’s Answer to Appeal; and remanded the matter back to the district court for a new trial on Foster Wheeler’s motion for summary judgment.

Read the full decision here.