United States District Court for the Eastern District of Louisiana, October 24, 2022

Plaintiff Ronald John Falgout, as independent executor and successor to the late Ruby Lee Marie Falgout, brought this action in October 2022 after Falgout succumbed to the fatal effects of mesothelioma in August 2022. Plaintiff alleged that the he secondary exposure to asbestos fibers on his work clothes caused him to be diagnosed with cancer. Plaintiff worked as a laborer, operator, oil king, and rainmaker at Avondale Shipyards from 1965 to 1979. He allegedly used, handled, or was near others using or handling products containing asbestos throughout his employment at Avondale.

Third parties Foster Wheeler, General Electric and Bayer CropScience, Inc. as successor to Rhone Poulenc AG Company, f/k/a Amchem Products, Inc. f/k/a Benjamin Foster Company (Amchem) filed respective motions for judgment summary. They all alleged that the plaintiff had failed to produce sufficient evidence to support his burden of showing that the deceased had been exposed to the asbestos fibers attributed to him. Defendant Huntington Ingalls, Inc. (Avondale) opposed each motion. Plaintiff did not name Foster Wheeler, GE or Amchem in its original or amended complaint. They became involved in the case after Avondale filed suits against each for their share of the damages owed to the plaintiff.

Courts recognize that summary judgment is appropriate when “the pleadings, discovery and disclosure documents on file, and any affidavits show that there is no real issue as to a material fact and that the plaintiff is entitled to a judgment at law”. Falgout vs. Anco Insulations, Inc.., 2022 US Dist. LEXIS 193817, at *2 [ED La Oct. 24, 2022, No. 21-1443]; citing Celotex Corp. vs. Catlett, 477 US 317, 322 (1986) (citing FED R. CIV. P. 56); see also Little vs. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Although courts consider all evidence in the record, they do not assess credibility or weigh that evidence. In addition, “[a]All reasonable inferences are drawn in favor of the non-moving party”, but the non-moving party “cannot defeat summary judgment with conclusive allegations or unsubstantiated assertions”. falgout, 2022 US Dist. LEXIS 193817 to *3; Little37 F.3d at 1075.

In order to prevail in an asbestos case in the state of Louisiana, a plaintiff must establish (1) “that he was significantly exposed to the product complained of” and that (2) the exposure “was a substantial factor in causing his injury.” falgout, 2022 US Dist. LEXIS 193817 to *2; Rando vs. Anco Insulations, Inc.., 16 So. 3d 1065, 1091 (La. 2009) (citing Asbestos c. Bordelon, Inc.., 726 So. 2d 926, 948 (La. App. 4 Cir. 1998)). A plaintiff “needs only to demonstrate that a reasonable jury could conclude that it is more likely than not that [plaintiff] inhaled the accused’s asbestos fibres, although there were only slight exposures. » Held against Avondale Indus., Inc.., 672 So.2d 1106, 1009 (La. App. 4 Cir. 1996).

Foster Wheeler supported his claim, saying Avondale had presented no evidence or testimony that its boilers caused the deceased’s asbestos exposure. The court referred Cortez v. Lamorak Ins. Co., where it rendered an interim judgment to a third party who maintained that the plaintiff had produced no evidence linking its exposure to asbestos to its products. See No. CV 20-2389, 2022 WL 1230429 (ED La. May 3, 2022). The court ruled that evidence relating to work in the same general area as asbestos products was insufficient. Here, the plaintiff could not identify the brand of appliances or boilers located near his workstation. Above all, he had no memory of the name Foster Wheeler. The court granted Foster Wheeler’s motion, finding that “[e]Even if all factual inferences were construed in favor of Avondale, the record lacks evidence upon which reasonable minds might differ to support whether [plaintiff] and next [decedent] were exposed to asbestos attributable to Foster Wheeler. falgout, 2022 US Dist. LEXIS 193817 to *7.

Similarly, GE asserted that the plaintiff presented no evidence that the deceased had been exposed to any of its products or equipment. Avondale’s testimony that GE turbines were present in “almost [all] various ships built at Avondale”, was insufficient. In addition, the plaintiff testified that he never witnessed the application of asbestos insulation to the turbines. The court again found that Avondale had not created a factual issue as to whether the plaintiff had been exposed to GE equipment and also granted GE’s motion for summary judgment.

Finally, Amchem also claimed that the plaintiff had not presented evidence to support their exposure claims regarding their product. Avondale countered that Amchem’s asbestos-containing adhesive “was widely used in the engine room of nearly every vessel built at Amchem”. However, Amchem was not the sole supplier of adhesives during Plaintiff’s employment and Plaintiff did not recall any specific encounters with Amchem adhesive. The court again determined that Avondale had produced no evidence to establish the plaintiff’s contact with Amchem and also entered summary judgment.

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