Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CALLEN J. CORTEZ CIVIL ACTION VERSUS NO. 20-2389 LAMORAK INSURANCE COMPANY, SECTION “R” (1) ET AL.
ORDER AND REASONS
Bеfore the Court is defendant Louisiana Insurance Guaranty Association’s (“LIGA”) motion for summary judgment as to plaintiff Callen Cortez’s claims arising out of American Mutual Liability Insurance Company (“AMLICO”)’s insurance coverage of Gabler Insulations, Inc. (“Gabler”). Plaintiff opposes the motion.
Because material facts remain in dispute, the Court denies LIGA’s motion.
I. BACKGROUND
This is an asbestos exposure case. Plaintiff Callen Cortez alleges that he contracted mesothelioma as a result of direct exposure to asbestos during his employment at, inter alia , Huntington Ingalls, Inc. (“Avondale”), [3] as well as take-home exposure resulting from his brothers’ employment at Avondale, [4] and his father’s employment at, inter alia , Gabler. [5] The record indicates that plaintiff’s father, Calise Cortez, worked for Gabler during the final quarter of 1967. [6] Plaintiff testified that he recalls his father coming home from work wearing a hardhat labeled “Gabler Insulation.” [7] Plaintiff himself never worked for Gabler.
At the time of plaintiff’s father’s employment with Gabler, Gabler held a рolicy of liability insurance with AMLICO. [8] AMLICO was declared insolvent and liquidated in 1989. [9] It is undisputed that, by state statute, LIGA is now responsible for AMLICO’s insurance obligations to Gabler. [10]
On November 16, 2021, LIGA moved for summary judgment, seeking dismissal of plaintiff’s claims against LIGA arising out of AMLICO’s obligations to Gabler. [11] LIGA contends that plaintiff has not introduced sufficient evidence that his father worked with or was exposed to asbestos- containing products during his employment with Gabler in 1967. LIGA further argues that any take-home exposure experienced by plaintiff would have been insubstantial in light of the brevity of his father’s employment with Gabler, and that therefore, any еxposure attributable to Gabler was not a substantial factor in causing plaintiff’s injuries. Plaintiff opposes the motion, contending that the record contains evidence sufficient to create an issue of fact as to plaintiff’s claims regarding exposure by means of his father’s employment with Gabler.
The Court considers the parties’ arguments below.
II. LEGAL STANDARD
Summary judgment is warranted when “the movant shows that 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);
see also Celotex Corp. v.
Catrett
,
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’”
Int’l Shortstop, Inc. v. Rally’s, Inc.
,
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that thе evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim.
See Celotex
, 477 U.S. at
325. The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists.
See id.
at 324. The nonmovant may not rest upon the
pleadings, but must idеntify specific facts that establish a genuine issue for
resolution.
See, e.g., id.
;
Little
,
III. DISCUSSION
Under Louisiana law, in an asbestos-exposure case, the claimant 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.
,
LIGA contends that, with respect to Gabler, plaintiff is unable to meet his burden on either requirement.
A. Significant Exposure
First, LIGA argues that plaintiff lacks adequate evidence that his father
worked with asbestos insulation during his employment with Gabler, and
that plаintiff was exposed to asbestos as a result. This assertion is wrong.
Plaintiff testified that his father, Calise Cortez, worked as an insulator for
Gabler at the Nine Mile Point power plant in 1967. Plaintiff also testified
that, when his father returned home from his work for Gabler, his clothes
were covered in white dust from insulation. Specifically, plaintiff explained
that his father “would come home covered with the dusty fiber,” which “was
on his clothes, on his skin, and in his hair and on his boots and his hands.”
[18]
Plaintiff stated that he knew that his father was working with asbestos-
containing products, because plaintiff himself worked as an insulator, and
recognized the fibers.
[19]
See Francis v. Union Carbide Corp.
,
Furthermore, plaintiff submits testimony from a deposition of a
corporate representative of Entergy New Orleans, Inc. (“Entergy”), which
owns and operates the Nine Mile Point plant. The deposition was taken as
part of an asbestos case in Louisiana state court. In its reply memorandum,
LIGA objects to the аdmissibility of this evidence under Rule 32(a)(8) of the
Federal Rules of Civil Procedure. It contends that there is no indication
that the state-court litigation, in which Entergy’s deposition was taken,
involved the “same subject matter between the same parties, or their
representatives or successors in interest.” Fed. R. Civ. P. 32(a)(8). But this
objection is misplaced. Rule 32 governs the use of deposition testimony “[a]t
a hearing or trial.” Fed. R. Civ. P. 32(a)(1). Evidence considered on summary
judgment need not be presented in a form actually admissible at trial, and
instead must merely be capable of being presented in admissible form. Fed.
R. Civ. P. 56(с)(2). Plaintiff could readily submit this evidence in admissible
form at trial by, for instance, calling a corporate representative of Entergy,
which is a named defendant in this matter. Moreover, many courts have
approved of the use of sworn testimony on summary judgment, even if that
testimony may not satisfy Rule 32(a)(8).
See, e.g.
,
Gamble v. FCA US LLC
,
As to the substance of the deposition, Entergy’s corporate representative testified that the insulation used in the construction of all of the units of the Nine Mile Point power plant contained asbestos. Specifically, Entergy testified that there was asbestos in the insulation on pipes, boilers, and gaskets in Units 1 and 2 of the plant. This corporate testimony, and plaintiff’s testimony that his father came home from his Gabler work covered in dust, create a genuine issue of fact as to whether plaintiff’s fаther was exposed to asbestos during his employment with Gabler at Nine Mile Point.
Moreover, the record contains evidence that plaintiff suffered take- home exposure by virtue of his father’s asbestos exposure at that plant. On this issue, the parties dispute at length whether plaintiff had laundry dutiеs involving his father’s work clothes during his father’s employment with Gabler. Although proof of such laundry duties would tend to strengthen plaintiff’s case, at this juncture, resolution of this issue is unnecessary. The record contains evidence suggesting that Calise Cortez came home with white dust on his clothes during the relevant periоd, and thus exposed his household to asbestos. And the evidence of household exposure goes beyond the disputed laundry duties. For instance, plaintiff testified that when his father came home from work, he would take off his shirt, but would otherwise stay in his work clothes as he ate dinner with the family, and would stay in thosе clothes until his evening bath. Plaintiff also testified that all of the family’s clothes were washed together.
Furthermore, plaintiff submits expert evidence indicating that he and
his family suffered take-home asbestos exposure as a result of his father’s
exposure at work. The Court notes that, on this issue, plaintiff аttaches to
his opposition declarations from two of his experts: (i) Gerard Baril, an
industrial hygienist, and (ii) Dr. Stephen Terry Kraus, a radiation
oncologist. While LIGA does not object to these expert declarations, the
Court declines to consider them on summary judgment. Plaintiff is not
entitled to buttress his experts’ opinions by way of affidavits generated in
response to a motion for summary judgment.
See Cleave v. Renal Care Grp.,
Inc.
, No. 04-161,
The parties have not briefed whether the expert declarations differ from or discuss issues not addressed in Barile’s and Dr. Kraus’s original Rule 26 repоrts. But plaintiff includes as attachments to the expert declarations these experts’ original reports. LIGA has not objected to these experts’ qualifications, their methodology, or their reliability. The Court therefore confines its summary-judgment inquiry to the original expert reports submitted by Barile аnd Dr. Kraus.
In reviewing the reports, the Court finds that they create an issue of fact as to whether plaintiff was exposed to asbestos by virtue of Calise Cortez’s work at Gabler. Specifically, Barile indicates in his expert report that, “[b]ased on the condition of Calise Cortez’[s] clothing[,] as reported by [plaintiff], an insulator working at Nile Mile Point would have had his clothing contaminated with asbestos[-]containing insulation materials,” and that, therefore, “[plaintiff] and his family were para-occupationally exposed to asbestos.” Barile further opines that “the family home was contaminated with asbestos.” Similarly, Dr. Kraus opines that plaintiff “had significant paraoccupational asbestos exposure through the work of his father while working at . . . Nine Mile Point power plant.”
Accordingly, the Court finds that material facts remain in dispute as to
whether plaintiff was exposed to asbеstos through his father’s work for
Gabler in 1967.
See, e.g.
,
Francis
, 116 So. 3d at 863 (reversing summary
judgment in light of evidence that plaintiff’s father worked at a plant where
asbestos-containing materials were used, and plaintiff was around his
father’s “dusty” clothing);
Zimko v. Am. Cyanamid
,
LIGA is not entitled to summary judgment as to whether plaintiff was exposed to asbestos as a result оf his father’s work for Gabler.
B. Substantial Factor in Causing Injury LIGA also contends that, even if plaintiff were exposed to asbestos through his father’s work at Gabler, he cannot show that the exposure was a substantial factor in causing his injury. LIGA emphasizes that Calise Cortez’s employment with Gabler lasted for only a short period of time, and argues that, accordingly, any contact would have been “extremely minimal.”
This argument fails for two reasons. First, the brevity of plaintiff’s
asbestos exposure does not alone warrant summary judgment for the
defendant. As the Louisiana Supreme Court has explained, “[s]imply
because a plaintiff suffеred asbestos exposure while working only a short
period for an employer,” and “had longer exposure working for others, it
cannot be said the relatively short asbestos exposure was not a substantial
factor in causing his mesothelioma.”
Rando
,
IV. CONCLUSION
For the foregoing reasons, the Court DENIES LIGA’s motion for summary judgment. 7th
New Orleans, Louisiana, this _____ day of February, 2022. _____________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
Notes
[1] R. Doc. 327.
[2] R. Doc. 344.
[3] R. Doc. 1-1 at 3-6 (Complaint ¶¶ 3, 8).
[4] R. Doc. 149 at 1-2 (Second Amended Complaint ¶¶ 94-95).
[5] R. Doc. 1-1 at 7-8 (Complaint ¶¶ 11-12).
[6] R. Doc. 327-3 at 5 (Social Security Statement of Eаrnings, Calise Cortez).
[7] R. Doc. 344-4 at 7-8 (Deposition of Callen Cortez at 422:24-423:11).
[8] R. Doc. 327-1 ¶ 8 (Declaration of Malcolm Twiner, Jr.).
[9] ¶ 5.
[10] R. Doc. 327-9 at 1.
[11] R. Doc. 327.
[12] R. Doc. 327-9 at 4.
[13] Id. at 8.
[14] R. Doc. 344 at 3-22.
[15] R. Doc. 327-9 at 6-7.
[16] See R. Doc. 344-4 at 7, 17 (Deposition of Callen Cortez at 422:8-423:11, 834:6-19).
[17] at 19 (Deposition of Callen Cortez at 836:3-23).
[18]
[19] Id.
[20] R. Doc. 344-8 (Corporate Deposition of Entergy New Orleans, Inc. through Gustave VonBodungen, McCord, et al. v. Asbestos Defendants, et al. , Civ. Dist. Ct. Par. of Orleans, No. 2008-4457) (May 20, 2009).
[21] R. Doc. 357 at 2.
[22] See R. Doc. 344-8 (Corporate Dеposition of Entergy New Orleans, Inc. through Gustave VonBodungen).
[23] at 8-12 (Corporate Deposition of Entergy New Orleans, Inc. through Gustave VonBodungen at 134:16-136:6, 139:16-140:23).
[24] R. Doc. 344-5 at 2 (Perpetuation Deposition of Callen Cortez at 68:2- 14).
[25] (Perpetuation Deposition of Callen Cortez at 68:15-17).
[26] R. Doc. 344-9 at 1-2 (Declaration of Gerard Baril, CIH).
[27] R. Doc. 344-11 at 1-4 (Declaration of Dr. Stephen Terry Kraus).
[28] R. Doc. 344-9 at 25-26 (Barile Report).
[29] at 26.
[30] R. Doc. 344-11 at 13 ¶ 46 (Kraus Report).
[31] R. Doc. 327-9 at 4, 8-9.
[32] at 4.
[33] R. Doc. 344-9 at 26 (Barile Report).
[34] R. Doc. 344-11 at 13 ¶ 46 (Kraus Report).