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.

Issues

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

Holding

Yes.

Reasoning

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.”

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