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.

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