United States District Court for the Eastern District of Louisiana

In ACT’s continuing coverage of the Robichaux matter, Felton Robichaux filed suit in Civil District Court for the Parish of Orleans against a number of defendants alleging he was exposed to asbestos from products he worked with as an insulator and carpenter at Avondale Shipyard from 1961 to 1979.

In addition to his own employment at Avondale Shipyard, plaintiffs allege Robichaux was also secondarily exposed through contact with his brother, Junior Robichaux, who worked at Avondale Shipyard from 1957 to 1961. Defendants filed a series of motions covered herein.

Defendant’s first motion was a motion in limine to preclude the affidavits of plaintiffs’ expert witnesses, as defendants argue they were served out of time.

Federal Rule of Civil Procedure 26 requires expert reports to include, among other things, “a complete statement of all opinions the witness will express and the basis and reasons for them.” FED. R. CIV. P. 26(a)(2)(B)(i). Parties must provide disclosures “at the times and in the sequences that the court orders.” FED. R. CIV. P. 26(a)(2)(D). Failure to timely disclose or supplement expert reports is contemplated by Federal Rule of Civil Procedure 37: “[T]he party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). To determine substantial justification or harm, courts consider (1) the importance of the witness’s testimony; (2) the prejudice to the opposing party; (3) whether a continuance would cure any such prejudice; and (4) the explanation, if any, for the party’s failure to comply with the discovery order or rules. Furtive Corp. v. Fumigation Glob. Grp., LLC, No. 21-CV-111, 2022 WL 1792818, at *1 (E.D. Tex. June 1, 2022) (citing Sierra Club, Lone Star Chap. v. Cedar Point Oil Co., Inc., 73 F.3d 546, 572 (5th Cir. 1996)).

On this first motion, the court found that the expert affidavits, although served a day after the expert report deadline, were not to be precluded because the reason for the failure to serve the affidavits on time met the criteria for being substantially justified and/or harmless. The affidavits were important to the issue of causation as to plaintiffs’ take-home exposure claim from Junior’s employment at Avondale Shipyard; the delay in serving the affidavits did not prejudice the defendants, on the contrary if plaintiffs were precluded from using the affidavits their case would be substantially prejudiced; and the reason for the delay was due to a six-month legal battle over production of Junior’s employment records which were in defendants’ possession. Defendant’s motion denied.

In defendants’ second motion, Huntington Ingalls filed a motion for summary judgment alleging that plaintiffs’ allegations of take home exposure were not properly pled, and even if they were, plaintiffs failed to offer evidence to support the take-home exposure claim.

Summary judgment is appropriate when the evidence before the court shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In evaluating a motion for summary judgment, the court “may not make credibility determinations or weigh the evidence” and “must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party.” Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (internal citations omitted). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact by pointing out that the record contains no support for the non-moving party’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (quoting FED. R. CIV. P. 56(c)). Thereafter, if the non-movant is unable to identify anything in the record to support its claim, summary judgment is appropriate.

The Federal Rules of Civil Procedure’s pleading standards are liberal and require only “a short and plain statement of the claim to give the defendant fair notice of the claim and the grounds upon which it rests.” Ross v. Ports Am. Gulfport, Inc., No. 19-CV-13929, 2020 WL 4698986, at *2 n.5 (E.D. La. Aug. 13, 2020)(citing FED. R. CIV. P. 8(a)(2)).  Here, the court found that since plaintiffs did allege take home exposure in the amended complaint, they met there notice burden.

As to the sufficiency of plaintiffs’ evidence, the court also found in favor of plaintiffs. The court noted “to defeat an asbestos defendant’s motion for summary judgment…the [Plaintiffs] need only show that a reasonable jury could conclude that it is more likely than not that [Robichaux] inhaled defendant’s asbestos fibers, even if they were only ‘slight’ exposures.”  Plaintiffs presented evidence that Junior worked as an insulator at Avondale, would visit with Robichaux after work and provided expert evidence opining that the take home exposures were a substantial contributing factor and a medical cause of Robichaux’s mesothelioma. Defendant’s motion denied.

Read the full decisions here & here