La. Fourth Circuit Affirms Summary Judgment in Favor of Employer in Asbestos Suit: Inconsistent or Contradictory Testimony Does Not Create Issue of Fact
Allen v. Eagle, Inc., 2022-0622 (La. App. 4th Cir. 2/24/23; -- So.3d – [La. 4th Cir. 2023]; 2023 WL 2202900 **)
This wrongful death suit was filed by the beneficiaries of Joyce Allen, whose husband was employed by Ports America Gulfport, Inc. They alleged that their mother developed lung cancer due to the asbestos in the clothing of their father who worked for Ports America in the Port of New Orleans from the 1960s into the 1980s.
Ports America filed a Motion for Summary Judgment to dismiss the wrongful death claim maintaining that neither it nor its predecessor entities handled asbestos. In support of the Motion, counsel for Port America submitted the deposition testimony of corporate representatives (which was taken in other litigation) in which they testified under oath that the company did not handle asbestos cargo in New Orleans. In addition, Ports America submitted the prior deposition testimony of the employee (decedent’s husband) in which he testified that he did not know or could not remember if the type of cargo he handled in the employ of the defendant. Anticipating the plaintiffs, counsel for Ports America also introduced a subsequent deposition of the employee in which he contradicted prior statements about handling asbestos.
The trial judge ruling from the bench granted the defendant’s Motion for Summary Judgment from which the plaintiffs appealed.
Judge Roland Belsome writing for the unanimous panel affirmed the trial judge. Plaintiffs asserted that the subsequent deposition of the employee clarified prior sworn testimony and that the trial court made a credibility determination. Ports America maintained that inconsistent testimony alone does not create an issue of fact.
The appellate court relied on its recent precedent in Steib v. Lamorak Ins. Co.[1] in which the court held that internally inconsistent testimony of a claimant is not grounds to create a triable issue of fact. Here, not only did the employee contradict testimony given in a prior deposition but also again contradicted himself in yet a later deposition. The panel also noted that the claimants failed to introduce any testimony of other workers in other asbestos cases “(as is common practice in asbestos cases).”[2]
