Friday, February 17, 2012

Vodanovich v. A.P. Green Industries, et al., 869 So.2d 930 (La.App. 4 Cir. 2004)

Facts of the Case

Mr. Vodanovich was a longshoreman from 1948 until 1986. As a part of his duties, plaintiff loaded and unloaded ships at various wharves along the Mississippi River in the New Orleans area. While working for T. Smith & Sons, plaintiff allegedly loaded sacks of raw asbestos onto barges. While plaintiff was performing his job duties, various contractors performed maintenance on the vessels.

In November 2001, Vodanovich was diagnosed with malignant mesothelioma, and he died in May 2002. Before his death, he filed suit against multiple defendants, including those who performed maintenance work on the ships.

The Procedural Posture of the Case

The defendants filed motions for summary judgment, contending that there was no connexity between their actions and the plaintiff’s injury and that plaintiff could not prove exposure to asbestos. The trial court granted this motion, and the plaintiff appealed to the Fourth Circuit.


Did the plaintiff present enough evidence to defeat a motion for summary judgment?




Article 966 of the Louisiana Code of Civil Procedure governs summary judgment proceedings. In order to win on a motion for summary judgment, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, [must] show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law.” The moving party has the burden of proof when filing a motion for summary judgment and must prove that there is no genuine issue of material fact in the case.

In order to prove the lack of material facts, the movant must show that there is “an absence of factual support for one or more elements essential to the claim.”

If the moving party meets this standard, the burden shifts to the non-moving party to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial.” The non-moving party cannot do this by resting on the allegations of his pleadings; he must set forth specific facts. If the non-moving party fails to meet his burden, then the movant is entitled to summary judgment.

In order for a plaintiff to have a defendant’s motion for summary judgment denied in an asbestos case, “he must show, by a preponderance of the evidence, that he was exposed to asbestos from the defendant’s products, and that he received an injury that was substantially caused by that exposure.” If there are multiple causes of injury, then a defendant’s conduct constitutes a cause if it is a substantial factor. Therefore, in asbestos cases, “the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.”

Unfortunately, Vodanovich was unable to meet this burden. While he alleged that he was exposed to raw asbestos, he was unable to show specifically which contractors performed maintenance work on the ships he worked on. Furthermore, he could not produce any witnesses capable of naming any of the specific asbestos-containing products used at his job site.

As the court put it:

Under Louisiana law, the plaintiff bears the burden of proving that the defendants’ conduct caused asbestos exposure, and that the conduct was a substantial contributing factor of the plaintiff’s injury. In the present case, the plaintiff has failed to establish any direct or circumstantial evidence of exposure to asbestos fibers released by the defendants’ activities. The plaintiff testified that he was never engaged in any of the defendants’ work. He also could not recall the names of any of the companies performing insulation work on any of the vessels he worked in and around nor could he recall what materials they were using or what things they were insulating. The record lacks any evidence that plaintiff was exposed to any asbestos fibers as a result of any repair work by defendants, sufficient to warrant the inference that plaintiff was exposed to asbestos fibers released by the defendants’ activities.

Tuesday, February 7, 2012

McAskill v. American Marine Holding Company, et al., 9 S0.3d 264 (La.App. 4 Cir. 2009)

Facts of the Case

The plaintiff, Neil McAskill, filed a claim for personal injuries for his contraction of mesothelioma while working at American Marine’s facility. Two of the defendants in this case, Eagle, Inc. and Branton Insulations, Inc., moved for summary judgment in the trial court. Plaintiff opposed this motion and produced nine individual pieces of evidence. This evidence included company documents, depositions and testimony, and affidavits of witnesses in the case. The defendants argued that none of this evidence could show that the plaintiff was exposed to their asbestos products “by way of sale, distribution, and/or installation.”

The Procedural Posture of the Case

The Trial Court granted the defendants’ motion for summary judgment. The plaintiff appealed to the Fourth Circuit.


Was the evidence produced by the plaintiff enough to raise a genuine issue of material fact, and thus, defeat the motion for summary judgment?




Louisiana Code of Civil Procedure Article 966 states that the standard of review for summary judgment is whether there exist genuine issues of material fact. Furthermore, any doubt must be resolved in the favor of the party opposing the motion. Here, the plaintiff argued that he presented evidence that a genuine issue of material fact existed, and because of that, the case should be decided by the trier of fact.

Some of the important testimony in this case came from Robert Honold, who testified that Eagle supplied American Marine with pipe insulation and that he was in charge of phasing out the insulation which contained asbestos. Furthermore, the plaintiff had entered into evidence a letter from Fred Schuber, the President of Eagle, which indicated that their insulation products contained asbestos and it would take some time to phase those products out in favor of products without asbestos. The letter also indicates that Eagle had distributing rights for some products made by Pabco Manufacturers. The record also contained a document from Fibreboard, a manufacturer of Pabco, which noted that asbestos containing products were being phased out; it did not mention any potential health effects of asbestos. The plaintiff’s wife testified in her affidavit that she worked in American Marine’s accounting department, and she recalled processing invoices from Branton Insulations. Lastly, plaintiff testified that he was exposed to asbestos by working around asbestos containing products and applying insulation. Eagle argued that this was based upon circumstantial evidence, and Branton argued that the plaintiff needed to prove exactly what the corporate offices of the defendants actually knew.

Despite these arguments, the court stated that this was not the test for summary judgment. All that the plaintiff had to do was present evidence “that permits a reasonable mind to conclude that Eagle and Branton sold asbestos containing products to American Marine.”

The court went on to discuss Thibodeaux v. Asbestos Corp. Limited, et al. which held that plaintiff must produce evidence that “asbestos was used by the defendant” while the plaintiff was employed, and if asbestos was present, the plaintiff must also prove that he was exposed to this asbestos. The court decided that the plaintiff had met his burden in this case, as he had presented evidence to “substantiate that he was actively engaged in working with and actually handling asbestos insulation.”

Another case cited by the court was Vodanovich v. A.P. Green Industries, Inc., which held that the plaintiff only had to prove that “the defendant’s asbestos-containing product was a substantial factor in causing his alleged disease. This burden can be met by . . . showing that he was actively working with asbestos containing materials . . .” because “medical science has proven a causal relationship between asbestos exposure and mesothelioma above background levels. Thus, such asbestos exposure is a causative factor in producing the disease.”