Adams v. Owens-Corning Fiberglas Corp.

923 So. 2d 118, 2005 La. App. LEXIS 2099, 2005 WL 2320272
Louisiana Court of Appeal·Decided September 23, 2005·No. 2004 CA 1589·Published·Cited by 26 cases

Opinion

923 So.2d 118 (2005)

Quincy L. ADAMS, Jr., et al.
v.
OWENS-CORNING FIBERGLAS CORPORATION, et al.

No. 2004 CA 1589.

Court of Appeal of Louisiana, First Circuit.

September 23, 2005.

*120 J. Burton LeBlanc, IV, Cameron R. Waddell, Brian F. Blackwell, Sandra A. Jelks, Chad Dudley, Jody E. Anderman, Charles S. Lambert, Jr., LeBlanc & Waddell, LLP, Baton Rouge, for Plaintiffs/Appellants Quincy L. Adams, Jr., et al.

Lisa A. Condrey, Ward & Condrey, LLC, Covington, for Defendant-Appellee C.V. Harold Rubber Co., Inc.

Before: PARRO, KUHN, and WELCH, JJ.

PARRO, J.

The plaintiffs appeal a judgment granting summary judgment in favor of C.V. Harold Rubber Co., Inc. (CVH) and dismissing their claims against it. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In this asbestos exposure suit, several hundred plaintiffs claim damages for illnesses and disabilities suffered as a result of work-related exposure to asbestos at various industrial and commercial facilities in Louisiana. The plaintiffs allege that the multiple defendants named in the suit manufactured, distributed, applied, or removed asbestos materials, and that as a result of the defendants' negligence, strict liability, fraudulent concealment of information, conspiracy, alteration of medical studies, failure to warn of health hazards, and other fault, the plaintiffs were exposed to and inhaled quantities of asbestos fibers, causing their illnesses.[1]

CVH was named in plaintiffs' sixteenth supplemental and amending petition as an asbestos manufacturer/supplier defendant, against whom claims of strict liability and negligence were alleged.[2] CVH filed a motion for summary judgment, claiming it could not be strictly liable because it did not manufacture any asbestos-containing products, but was a non-manufacturer seller of various rubber products, such as hoses, and of some asbestos-containing gaskets manufactured by other companies, which it did not hold out or label as CVH products. CVH further stated it was not an exclusive distributor and never had the type of relationship with an asbestos manufacturer that would qualify it as a "professional vendor" for imposition of strict liability. Regarding the negligence cause of action, CVH stated there was no evidence that it knew or should have known that the asbestos gaskets it sold were defective or hazardous to health. Finally, CVH contended it could not be liable, because there was no evidence it ever sold such products to sites where the plaintiffs might have been exposed to asbestos, and therefore the plaintiffs could not establish that exposure to asbestos in those products ever occurred or was a substantial factor in causing their illnesses.

The motion was supported by an affidavit from James J. Reilly, the president of CVH, who stated the only asbestos-containing *121 products ever sold by CVH were rubber-encapsulated asbestos gaskets manufactured by other companies. He further attested that CVH never altered nor materially modified these products in any way; did not put its name, logo, or other CVH identification on the asbestos gaskets; and did not market or represent these products as its own. In addition, Reilly said CVH was never the alter ego of any gasket manufacturer and exercised no control over the manufacture, distribution, or marketing of any asbestos-containing gasket. Finally, Reilly stated that during the relevant time period involved in this litigation, CVH had no knowledge of any potential hazards associated with the use of asbestos-containing gaskets and had no warnings from their manufacturers concerning such hazards.

The plaintiffs opposed the motion and supported their opposition with a copy of Reilly's deposition and attachments, including the plaintiffs' responses to interrogatories propounded by CVH; a number of CVH invoices for sales of asbestos-containing gaskets, hoses, and other products; information printed from the CVH web site describing the company's business as a fabricator and distributor of industrial products; and a copy of minutes from a 1956 meeting of The Asbestos Textile Institute Air Hygiene Committee showing the asbestosis-cancer link was discussed. The plaintiffs also submitted an affidavit from a man who delivered CVH products bearing CVH identification to facilities where some of the plaintiffs worked. The plaintiffs claimed this evidence showed there were genuine issues of material fact concerning CVH's status as a manufacturer of asbestos-containing products, its delivery of those products to work sites where the plaintiffs were exposed to asbestos, and that CVH knew or should have known of the hazards associated with such products.

After considering the evidence and arguments, the trial court granted the motion for summary judgment and dismissed all claims against CVH.[3] In this appeal, the plaintiffs' only assignment of error is that the trial court erred in granting the motion for summary judgment filed by CVH and dismissing it from this matter.

APPLICABLE LAW

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's determination of whether a summary judgment is appropriate. Duplantis v. Dillard's Dept. Store, 02-0852 (La.App. 1st Cir.5/9/03), 849 So.2d 675, 679, writ denied, 03-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party's burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support *122 sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Duplantis, 849 So.2d at 679-80. The court must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 236.

Asbestos Exposure as Basis for Liability

A plaintiff in an asbestos case 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. When multiple causes of injury are present, a defendant's conduct is a cause in fact if it is a substantial factor generating plaintiff's harm. Vodanovich v. A.P. Green Indus., Inc., 03-1079 (La.App. 4th Cir.3/3/04), 869 So.2d 930, 932. Asbestos cases typically involve multiple defendants and courts have analyzed the cases under concurrent causation, a doctrine which proceeds from the assumption that more than one defendant substantially contributed to the plaintiff's injury. Vodanovich, 869 So.2d at 933.

Strict Liability of Manufacturer

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Adams v. Owens-Corning Fiberglas Corp., 923 So. 2d 118, 2005 La. App. LEXIS 2099, 2005 WL 2320272 (La. Ct. App. 2005).

923 So. 2d 118 (Adams v. Owens-Corning Fiberglas Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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