382 So.3d 216
La. Ct. App.2023Background
- Mrs. Emily Everett developed peritoneal mesothelioma and alleged household (para-occupational) exposure from laundering her husband’s work clothing; husband was a welder/boilermaker with multiple employer exposures.
- Original suit named many defendants; after dismissals and settlements, Union Carbide, Riley Power, Foster Wheeler, and later Peter Kiewit remained.
- Union Carbide, Riley Power, and Foster Wheeler moved for summary judgment arguing plaintiffs lacked expert proof of specific causation; plaintiffs filed a timely opposition and a supplemental opposition shortly before the hearing (citing depositions of treating physicians and noting an industrial hygienist deposition transcript was not yet available).
- Peter Kiewit filed a motion to join Union Carbide’s summary-judgment motion one day before the hearing and obtained dismissal with the other defendants; the district court denied Union Carbide’s objection to plaintiffs’ untimely supplemental opposition.
- The district court granted summary judgment for Foster Wheeler and Peter Kiewit and later summarily denied plaintiffs’ motion for new trial; on appeal, this Court affirmed Foster Wheeler’s SJ, reversed Peter Kiewit’s SJ (untimely joinder/service defect), reversed the denial of the new-trial motion as to Foster Wheeler, dismissed certain answers to appeal as moot, and remanded for a contradictory hearing on the new-trial motion as to Foster Wheeler.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether defendants improperly expanded issues to include specific causation at summary judgment | Plaintiffs said defendants raised specific-causation arguments outside their original motions, prejudicing plaintiffs | Defendants said their motions did raise specific causation and plaintiffs had notice | Held: Court found Foster Wheeler’s motion did raise specific-causation grounds; no error as to Foster Wheeler. |
| 2. Whether the court abused discretion by denying a continuance when issues expanded | Plaintiffs asked for continuance (or amendment) to address specific causation evidence (industrial hygienist Baril) | Defendants argued plaintiffs had adequate time/notice to oppose specific-causation claims | Held: Denial of continuance was not reversible with respect to Foster Wheeler because plaintiffs had not produced specific-causation proof in opposition. |
| 3. Whether the district court erred by summarily denying the motion for new trial without a contradictory hearing | Plaintiffs argued newly-served/explained evidence (Baril report/transcript and other exhibits) warranted a contradictory hearing and new trial under La. C.C.P. art. 1973 | Defendants relied on the record and argued plaintiffs’ submissions did not change result or were late | Held: Reversed as to Foster Wheeler — summary denial abused discretion; remanded for a contradictory hearing because Baril’s report/transcript could create a genuine issue on specific causation. |
| 4. Whether Peter Kiewit’s last‑minute motion to join was timely and properly served | Plaintiffs said the motion to join was untimely (filed the day before hearing, <65 days) and lacked proof of service (no delivery confirmation) | Peter Kiewit argued exposures overlapped with Union Carbide and plaintiffs waived objections by not objecting at hearing | Held: Reversed dismissal of Peter Kiewit — motion to join violated Art. 966(B)(1) timing and service rules; plaintiffs did not waive objection. |
Key Cases Cited
- Auricchio v. Harriston, 332 So.3d 660 (La. 2021) (Article 966 deadlines are mandatory; "shall" is mandatory and courts cannot ignore filing deadlines).
- Planchard v. New Hotel Monteleone, 332 So.3d 623 (La. 2021) (de novo standard for appellate review of summary judgment).
- Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009) (plaintiff bears full causation burden in asbestos/mesothelioma claims; burden is not relaxed against multiple defendants).
- Smith v. Alliance Compressors, 922 So.2d 674 (La. App. 3 Cir. 2006) (court may order new trial where client’s loss results from counsel’s neglect and would produce injustice).
- Hardy v. Kidder, 292 So.2d 575 (La. 1973) (appellate courts should intervene where injustice results from procedural technicalities).