Court of Appeal of Louisiana, Fourth Circuit, September 28, 2022
In this asbestos action, John Brindell (“Brindell”) allegedly contracted mesothelioma as a result of working as a mechanic for Puerto Rico Marine Management, Inc. (“PRMMI”) at the Port of New Orleans. Brindell’s surviving spouse and children (“Plaintiffs”) asserted a wrongful death and survival action against several defendants. Defendant CRA Trailers, Inc. f/k/a Great Dane Trailers, Inc. (“CRA/Great Dane”) moved for summary judgment, arguing that CRA/Great Dane trailers were not present at the Port during Brindell’s employment until 1981 as the program with which CRA/Great Dane began using the trailers did not begin until 1982. In support of their motion, CRA/Great Dane submitted Brindell’s Social Security records, marine logs, an affidavit from a former Great Dane engineer and president, and testimony of three of Brindell’s former co-workers.
At oral argument of the summary judgment motion, the Appeals Court noted that “[P]laintiffs implicitly conceded that CRA/Great Dane’s trailers or chassis may not have been present or serviced at PRMMI’s facility at the Port of New Orleans during Mr. Brindell’s employment by PRMMI.” Plaintiffs argued that a jury could link Brindell’s later employment with Flexi-Van Leasing at the Port with work on CRA/Great Dane trailers. However, such an argument was “contrary to the allegations in their petition.” The district court dismissed Plaintiffs’ claims against CRA/Great Dane as the court granted CRA/Great Dane’s summary judgment motion. Plaintiffs appealed the decision of the District Court.
The Appeals Court first laid out the burden of proof for the movant of a summary judgment motion as per Brown v. Manhattan Life Ins. Co., noting that “if the mover will not bear the burden of proof at trial, the mover’s burden on the motion does not require it to negate all essential elements of the non-moving party’s claim, but simply to show the non-moving party’s inability to meet its burden on one or more essential elements.” However, “if the non-moving party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law.” In asbestos cases as per Oddo v. Asbestos Corp. Ltd., causation “requires proof that a plaintiff suffered exposures to asbestos above background attributable to a specific defendant, and that such exposures were a substantial contributing factor in causing the plaintiff’s asbestos-related injury.”
The Appeals Court first found that CRA/Great Dane met its burden of proof. With support from the aforementioned evidentiary submissions, CRA/Great Dane argued that Brindell’s employment with PRMMI ended one year before CRA/Great Dane began using its trailers in connection with its new program. Second, CRA/Great Dane did not manufacture chassis during Brindell’s employment with PRMMI. As such, Brindell could not have been exposed to asbestos dust from any brakes on any CRA/Great Dane trailers.
Plaintiffs contend that a genuine issue of material fact exists in this matter. Indeed, Plaintiffs asserted that uncertainty around the dates of Brindell’s employment with PRMMI remained following the depositions of Brindell’s former co-workers. Further, Plaintiffs “speculate” that Brindell could have worked at the Port for Flexi-Van Leasing following his employment with PRMMI. However, the Appeals Court rejected Plaintiffs’ contention that a genuine issue of material fact existed. Plaintiffs’ argument surrounding his dates of employment “ignore[d] the objective evidence contained in Mr. Brindell’s Social Security records and [was] contrary to the allegations in the plaintiffs’ petition.” As such, the Appeals Court would not consider additional arguments not contained in Plaintiffs’ opposition as per La. C.C.P. art. 966(F). In addition, “evidence to support a claim cannot be based on the mere possibility, speculation, conjecture, or unsupported probability.” Thus, the Appeals Court affirmed the district court’s grant of summary judgment.
Read the full decision here