SUMMARY JUDGMENT SHOWDOWN: MESOTHELIOMA EDITION
McAllister v. McDermott, Inc., 2020 U.S. Dist. LEXIS 146892, 2020 WL 4745743 (M.D. La. Aug. 14, 2020).
By: Stephanie Stafford
Plaintiff, McAllister, originally filed this lawsuit after being diagnosed with asbestos-related malignant pleural mesothelioma.[1] When he succumbed to this disease, his wife and sons substituted him as Plaintiffs in this action.[2] Motions for Summary Judgment were filed Tate Andale, Sarco, Velan, Air & Liquid, and Flowserve (hereinafter Defendants). Plaintiffs filed Oppositions to each of the Defendants’ motions.
McAllister worked as a machinist mate on multiple Navy ships where he was exposed to asbestos from machinery manufactured by the Defendants.[3] This court followed the Fifth Circuit’s gentle standard of causation that allows inferences of Plaintiff’s proximity to Defendant’s products from purely circumstantial evidence to prove that the injury was “legally caused” by the Defendant.[4]
The court granted Tate Andale’s Motion for Summary Judgment on successor liability because (1) Louisiana, not Pennsylvanian, law for successor liability applied to this case, and (2) Louisiana federal courts do not recognize the “product line exception” for successor liability. Tate Andale contended that the successor liability exceptions recognized in Louisiana did not apply because (1) “[it] did not expressly or impliedly agree to assume the Andale Company's debt under the purchase agreement”[5], (2) Tate Andale is not a mere continuation of the Andale Company because it was a separate corporation and did not purchase all the assets of the Andale Company, and (3) the transaction was not entered into to escape liability because the contingent tort liabilities did not exist at the time of execution for the purchase agreement.[6]
Sarco’s Motion for Summary Judgment was denied because it provided scant evidence to support entitlement to the governmental contractor defense. This defense provides immunity to government contractors, but Sarco failed to establish the first prong, which requires consideration of the disputed design feature by a Government officer who had discretion over significant details and all critical design choices.[7]
The court granted Velan’s Motion for Summary Judgment because Plaintiffs failed to present evidence that demonstrated a genuine issue of disputed fact in regard to McAllister’s exposure to Velan asbestos-containing products. The causation expert reports that Plaintiff relied on to implicate Velan referred to asbestos-containing gaskets only in a general manner and failed to specifically name any Velan products.[8]
Air and Liquid’s Motion for Summary Judgment was denied because there were credibility determinations for a jury to resolve between Defendant’s documentary evidence and Plaintiff’s deposition.
Flowserve’s Motion for Summary Judgment was denied because whether Plaintiff was exposed to asbestos because of working on or near Defendant’s valves is a genuinely disputed fact question to be resolved by the jury. Additionally, McAllister’s surviving spouse, as executrix of his estate, may recover damages for loss of income and/or loss of household services.[9]
[1] McAllister v. McDermott, Inc., 2020 U.S. Dist. LEXIS 146892, at *7 (M.D. La. Aug. 14, 2020).
[2] Id.
[3] Id. at *7-11.
[4] Id. at *13.
[5] Id. at *17-18.
[6] Id.
[7] Id. at *40.
[8] Id. at *44.
[9] Id. at 57.
