United States District Court for the Eastern District of Louisiana, July 8, 2022
In this asbestos matter, the defendant ViacomCBS Inc. (“Westinghouse”) moved for partial summary judgment as to Decedent Callen Cortez’s claims arising from alleged exposure to asbestos from Westinghouse’s turbines, arguing that the plaintiffs could not establish that Decedent was exposed to a Westinghouse turbine at the Monsanto plant at which he worked, that his exposures were not substantial factors in causing his mesothelioma, and that Westinghouse was not liable for any of the asbestos-containing products Cortez was allegedly exposed to.
The court examined the legal standard for reviewing a Motion for Summary Judgment. Under Louisiana law, in an asbestos exposure case, the plaintiff must show that (1) “he had significant exposure to the product complained of” and that (2) the exposure to the product “was a substantial factor in bringing about his injury.” Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1091 (La. 2009) (quoting Asbestos v. Bordelon, Inc., 726 So. 2d 926, 948 (La. App. 4 Cir. 1998)). “Even if the plaintiff was only exposed to asbestos for a ‘short period for an employer[,] and he had longer exposure working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor in causing his mesothelioma.'” Williams v. Boeing Co., 23 F.4th 507, 512 (5th Cir. 2022) (quoting Rando, 16 So. 3d at 1091). To defeat an asbestos defendant’s motion for summary judgment, a plaintiff need only show that a reasonable jury could conclude that it is more likely than not that he inhaled defendant’s asbestos fibers, even if there were only ‘slight exposures.'” Id. (citing Held v. Avondale Indus., Inc., 672 So. 2d 1106, 1109 (La. App. 4 Cir. 1996)). Under the controlling Louisiana law, in order to recover from a manufacturer, the plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product left the manufacturer’s control. 484 So. 2d at 113. In the instant matter, the court had to determine whether Westinghouse’s product was “unreasonably dangerous,” under any of the recognized theories of liability: (1) unreasonably dangerous in construction or composition, (2) unreasonably dangerous per se, (3) unreasonably dangerous in design, or (4) unreasonably dangerous for failure to warn. See id. at 113-15. Here, the first theory did not apply, as Plaintiffs did not allege that Westinghouse’s turbines were defective in construction or composition. The plaintiffs alleged that Decedent was exposed to asbestos through gaskets affixed to Westinghouse turbines and through asbestos-containing insulation used with the turbines. The court reviewed relevant portions of Decedent’s deposition testimony regarding his work with these products throughout his career. Additionally, the court considered Westinghouse’s discovery responses, admitting that it manufactured and sold turbines for use at Monsanto. Taken together, the court held that this evidence created a triable issue of fact as to whether Decedent was exposed to asbestos-containing gaskets utilized on Westinghouse turbines, and denied summary judgment as to the alleged exposure from gaskets. The plaintiffs also alleged that Decedent was exposed to asbestos dust from insulation used on Westinghouse turbines, both through his own employment and through take-home exposures from his family members. The court found that testimony submitted by the plaintiffs, that Westinghouse was aware that asbestos-containing thermal insulation was widely used in the ship building industry and was required by military specs, did not create an issue of fact supporting a products-liability claim against Westinghouse. While asbestos-containing insulation may be unreasonably dangerous per se, the plaintiffs submitted no evidence that Westinghouse manufactured or supplied asbestos-containing insulation. Accordingly, to survive summary judgment on Westinghouse’s liability for the subsequent insulation of its turbines, the plaintiffs had to point to material facts going to either defective design or failure to warn. The court noted that even if a product is not unreasonably dangerous per se, it may nonetheless be unreasonably dangerous in design if (1) “alternative products were available to serve the same needs or desires with less risk of harm,” or if (2) “there was a feasible way to design the product with less harmful consequences.” Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 115 (La. 1986). However, there was no evidence that Westinghouse’s design of the turbines required that they be insulated with asbestos. Without this, the plaintiffs could meet their burden on a design-defect claim against Westinghouse based on the insulation of its turbines.
The court also found that the plaintiffs’ failure to warn claim failed. While numerous Louisiana cases discuss a duty to warn stemming from dangers inherent in the manufacturer’s own product, the court could locate no case in which a manufacturer was held liable for failure to warn of a product’s dangers when the manufacturer did not manufacture, sell, design, install, specify, require, or recommend the product. As such, it held that Westinghouse had no duty to warn of dangers related to the possible use of asbestos insulation on its turbines. In the absence of any authority indicating that a manufacturer in Westinghouse’s position has a duty to warn of the dangers of a third party’s product, the court found the plaintiffs’ failure-to-warn theory to be meritless. Accordingly, the Court granted Westinghouse summary judgment on the plaintiffs’ failure-to-warn claims arising out of third-party use of asbestos-containing insulation on its turbines.
Read the full decision here