The Fifth Circuit found there was not enough evidence linking a NASA engineer’s mesothelioma death to asbestos products supplied by two insulation companies. In affirming a lower court’s decision, the Fifth Circuit sided with Taylor Seidenbach Inc. (TSI) and McCarty Corp.
Background
Frank C. Williams, an employee of Lockheed Martin Corp., worked as a mechanical engineer at the NASA Michoud Assembly Facility (MAF) in New Orleans from about 1974 to 1993. MAF comprises dozens of buildings, and Williams worked mostly in Building 350. Deteriorating asbestos was present in Building 350, leading to asbestos remediation in the mid-1980s.
In 2008, Williams was diagnosed with mesothelioma, a malignant tumor in the lining of the lungs, abdomen, or heart caused by inhaled asbestos fibers. The life expectancy for most mesothelioma patients is roughly one year following diagnosis.
After his diagnosis, Williams sued multiple defendants, including TSI and McCarty. After Williams died in 2009, his children, Tarsia and Breck, were substituted as plaintiffs. In 2014, a federal district court granted the defendants’ motions for summary judgment, citing a lack of evidence that Williams was exposed to respirable asbestos at MAF. Furthermore, even if he had been exposed to asbestos at work, the court said there was no link between the exposure and the defendants’ products. The plaintiffs appealed.
The appeal
The Fifth Circuit weighed whether the district court was correct in granting summary judgment. A summary judgment is a judgment entered by a court in favor of one party without a full trial. A party is entitled to summary judgment if no genuine dispute of material fact exists to allow a reasonable jury to find against the party. The plaintiffs argued the district court erred in granting summary judgment because a reasonable jury could conclude that Williams was exposed to asbestos products installed and supplied by McCarty and TSI.
In reaching its decision to affirm, the Fifth Circuit considered the causation standard required by Louisiana law along with the evidence and found insufficient evidence to raise a genuine dispute that either of the defendants’ products substantially contributed to Williams’ injury.
Causation
Under Louisiana law, a plaintiff claiming asbestos-related injury must prove “significant exposure to the product” to the extent that it was a “substantial factor in bringing about his injury.” To defeat summary judgment, plaintiffs must point to evidence creating a genuine dispute of whether plaintiff was in fact exposed to a product connected to the defendants. Proof is sufficient “if defendants’ products are likely to be present at a specific location within the workplace,” because “plaintiffs are likely to have been exposed to the products if they worked near those specific locations,” the court said. Evidence could be direct or circumstantial, but there must be some evidence connecting the defendants to asbestos where plaintiff was exposed.
First, the court considered McCarty. Assuming Williams was exposed to asbestos during the 1980s remediation in Building 350, the district court concluded there was no evidence that any of the asbestos was manufactured, sold, or installed by McCarty. The plaintiffs disputed this, saying their evidence suggested McCarty’s products were present in Building 350. The plaintiffs’ main piece of evidence was a late-1960s advertising brochure from McCarty. The brochure lists more than 30 commercial insulation projects for which McCarty was the thermal insulation contractor. One project was “NASA Michoud Operation, New Orleans.” The next page notes McCarty “is fully equipped for spray insulation,” although it does not specify which listed projects, if any, involved spray insulation. According to the plaintiffs, this brochure, by identifying McCarty as MAF’s “thermal insulation contractor,” sufficiently ties McCarty to Williams’ exposure. The Fifth Circuit disagreed, noting the brochure does not reveal enough about McCarty’s work at MAF to create a genuine fact dispute. The brochure merely establishes that McCarty supplied MAF with insulation, in some form, in the years leading up to 1968, but that leaves a critical evidence gap unfilled, the court said. The brochure does not show that McCarty supplied insulation in Building 350 or in any other building Williams may have visited. Nor does it suggest that McCarty products could be found “randomly and evenly all over” MAF. Consequently, the court said, no reasonable jury could conclude merely from the brochure that McCarty supplied asbestos products to Building 350 or any other building Williams regularly visited. Plaintiffs pointed to additional evidence, including two building surveys from 1984 and 1997 showing that asbestos materials were discovered in Building 350 and elsewhere at MAF, but those documents do not link the materials to McCarty.
The plaintiffs also mentioned an affidavit from a local industry expert asserting that both McCarty and TSI were responsible for Williams’ exposure. But that affidavit was based not on the two companies’ activities, but solely on the individual’s “knowledge of the insulation sellers and installers and workers of various companies who regularly did insulation work in the New Orleans metropolitan area.” Moreover, at an earlier deposition, the witness testified he had seen no evidence that McCarty supplied asbestos products to Williams’ worksite. The plaintiffs also referenced documents from 1964 about McCarty’s MAF work, but those documents do not specify where the work occurred or what materials were used. In summary, the plaintiffs failed to identify any evidence creating a genuine dispute that McCarty’s products substantially contributed to Williams’ injury.
With regard to TSI, the court said the plaintiffs failed to identify any evidence suggesting that TSI was connected to asbestos that harmed Williams. “Mere assertion” of TSI’s connection to Williams’ injury “is insufficient to survive summary judgment,” the court said. The plaintiffs relied on a 1980 deposition of M.R. McCarty, who testified that his company, McCarty, sometimes used TSI products when supply from Johns-Manville, its principal source, ran out. But even assuming McCarty’s products could be placed at Williams’ worksite (which the evidence failed to support), plaintiffs would still have to show a triable issue as to whether McCarty used TSI’s products there.
The judgment, therefore, was affirmed.
The takeaway
Plaintiffs in mesothelioma cases face challenges not only in linking their illness to asbestos exposure in a particular facility, but in producing evidence identifying was responsible for asbestos in buildings that were constructed many decades ago.
