Carolyn Brindell, John Brindell, III, Connie Dupay, and Christopher Brindell, Individually and on Behalf of Decedent John Brindell, Jr. v. Carlisle Industrial Brake and Friction, Inc.

• Court: Louisiana Court of Appeal
• Decided: September 21, 2022
• Docket: 2022-CA-0153
• Status: Published

Opinion

CAROLYN BRINDELL, JOHN * NO. 2022-CA-0153 BRINDELL, III, CONNIE DUPUY, AND CHRISTOPHER * BRINDELL, INDIVIDUALLY COURT OF APPEAL AND ON BEHALF OF * DECEDENT JOHN BRINDELL, FOURTH CIRCUIT JR. * STATE OF LOUISIANA VERSUS *******

CARLISLE INDUSTRIAL BRAKE AND FRICTION, INC., ET AL.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-09716, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown)

LINDSEY A. CHEEK JEANNE ST. ROMAIN ARCENEAUX THE CHEEK LAW FIRM 650 Poydras Street, Suite 2310 New Orleans, Louisiana 70130

-and-

THOMAS M. FLANAGAN ANDERS F. HOLMGREN FLANAGAN PARTNERS, LLP 201 St. Charles Avenue, Suite 3300 New Orleans, Louisiana 70170

MELISSA SCHOPFER, PRO HAC VICE MICHAEL K. HIBEY, PRO HAC VICE JEAN-MICHEL LECOINTRE, PRO HAC VICE JACQUELINE G. BADDERS, PRO HAC VICE DANIEL P. BLOUIN, PRO HAC VICE DONALD P. BLYDENBURGH, PRO HAC VICE WILLIAM A. KOHLBURN, PRO HAC VICE SIMMONS HANLY CONROY, LLC One Court Street Alton, Illinois 62002

COUNSEL FOR PLAINTIFFS/APPELLANTS

LAWRENCE G. PUGH, III DONNA M. YOUNG PUGH ACCARDO HAAS RADECKER & CAREY, LLC 1100 Poydras Street, Suite 3300 New Orleans, Louisiana 70163

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED SEPTEMBER 21, 2022 RLB Plaintiffs, Carolyn Brindell, John Brindell III, Connie Dupuy and

DLD Christopher Brindell, each individually and on behalf of the decedent, John

PAB Brindell, Jr. (“Mr. Brindell”), appeal the trial court’s October 19, 2021 judgment

granting a motion for summary judgment in favor of defendant, Utility Trailer

Manufacturing Company (“Utility”). For the reasons that follow, and based upon

our de novo review, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Brindell died of mesothelioma in July 2019. Plaintiffs filed a petition

for damages against numerous defendants, including Utility, alleging that Mr.

Brindell’s death was a result of his exposure to asbestos while employed as a

mechanic by Puerto Rico Marine Management (“PRMM”) from approximately

1970 through 1984 at the Port of New Orleans. More specifically, it is alleged that

throughout his employment, Mr. Brindell was exposed to asbestos and/or asbestos-

containing insulation, equipment, and/or friction products, including but not

limited to brakes. The petition names Utility as a manufacturer, seller, contractor,

distributor and/or supplier of asbestos containing products.

1 Utility filed a motion for summary judgment, asserting, as a preliminary

matter, that Mr. Brindell’s Social Security records demonstrated that he was

employed by PRMM from early 1976 to late 1981, not 1984 as asserted in the

petition for damages. As explained more fully below, the end date of Mr.

Brindell’s employment at PRMM is pertinent to this discussion.

The motion for summary judgment also asserts that there is no evidence that

Mr. Brindell ever worked with or around any asbestos-containing products

manufactured, sold, supplied, and/or distributed by Utility during the relevant time

period, i.e., 1976 through 1981. Thus, Utility maintains that plaintiffs cannot meet

their burden of proving a substantial exposure to asbestos.

In its memorandum in opposition to Utility’s motion for summary judgment,

plaintiffs disputed Utility’s contention that Mr. Brindell ceased working at PRMM

in 1981, but provided no details regarding Mr. Brindell’s post-1981 employment.

As to the merits of plaintiffs’ asbestos exposure claim, they relied on the

deposition testimony of Mr. Brindell’s co-workers, Keith Poleto (“Mr. Poleto”)

and Raymond Kain (“Mr. Kain”), stating that they worked with Mr. Brindell at

PRMM to maintain and/or replace brakes on Utility brand trailers.

At the hearing on Utility’s motion for summary judgment, plaintiffs’ counsel

argued for the first time that while Mr. Brindell may not have been working for

PRMM after 1981, he was working at the PRMM facility after 1981 for a company

named Flexi Van. Plaintiffs’ counsel conceded that the assertion regarding Flexi

Van was not raised in their opposition to the motion for summary judgment. The

record also reflects that it is outside the scope of plaintiffs’ petition for damages.

Utility’s counsel objected to plaintiffs’ newly raised claim, and argued that:

(1) trailers (including Utility brand trailers) were not in use at PRMM prior to

2 1982, thus Mr. Brindell could not have worked on a Utility trailer during his

employment there; and (2) prior to 1982, only chassis were used at PRMM, and no

witness identified a Utility brand chassis at PRMM.1

In support of the argument that Mr. Brindell worked for Flexi Van at PRMM

after 1981, plaintiffs’ counsel relied on the deposition testimony of Eric Jupiter

(“Mr. Jupiter”), a manager at PRMM from 1979 to 1996. The record reflects that

after recessing the hearing to reconsider Mr. Jupiter’s deposition testimony, the

trial court determined that there was no evidence to support plaintiffs’ assertions

on this issue. The trial court also indicated that there was no discussion of Flexi

Van in the deposition testimony of Mr. Poleto or Mr. Kain. Our review of the

deposition testimony confirms these findings.

Utility’s motion for summary judgment was granted from the bench. The

trial court’s written judgment was rendered October 19, 2021. Plaintiffs’ appeal

followed.

SUMMARY JUDGMENT PRINCIPLES AND STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary

judgment de novo, employing the same criteria that govern a trial court’s

determination of whether summary judgment is appropriate. Maddox v. Howard

Hughes Corp., 19-0135, p. 4 (La. App. 4 Cir. 4/17/19), 268 So.3d 333, 337

(citation omitted).

The standard for granting a motion for summary judgment is set forth in La.

C.C.P. art. 966 (A)(3) which provides, in pertinent part, “a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

1 The distinction between trailers and chassis in use at PRMM is discussed in detail below.

3 show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law.”

As this Court recognized in Bercy v 337 Brooklyn, LLC, 20-0583, pp. 3-4

(La. App. 4 Cir. 3/24/21), 315 So.3d 342, 345, writ denied, 21-00564 (La.

6/22/21), 318 So.3d 698,

La. C.C.P. art. 966(D)(1) provides that on a motion for summary judgment, although the burden of proof rests with the mover, if the mover will not bear the burden of proof at trial, the mover must only point out the absence of factual support for one or more elements essential to the adverse party’s claim. The burden then shifts to the adverse party who has the burden to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

A genuine issue of material fact is one as to which reasonable persons could

disagree, “if on the state of the evidence, reasonable persons could reach only one

conclusion, there is no need for trial on that issue, and summary judgment is

appropriate.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.

7/5/94), 639 So.2d 730, 751. “A fact is material when its existence or

nonexistence may be essential to the plaintiffs [sic] cause of action under the

applicable theory of recovery; a fact is material if it potentially insures or precludes

recovery, affects a litigant’s ultimate success, or determines the outcome of the

legal dispute.” Chapital v. Harry Kelleher & Co., Inc., 13-1606, p. 5 (La. App. 4

Cir. 6/4/14), 144 So.3d 75, 81. Whether a fact is material is a determination that

must be made based on the applicable substantive law. Roadrunner Transp. Sys. v.

Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing

Smith, 93-2512, p. 27, 639 So.2d at 751).

4 LAW AND ANALYSIS

Regarding a plaintiff’s burden of proof in an asbestos case, this Court has

explained:

The applicable law in asbestos cases is well-settled. To prove liability of a manufacturer or professional vendor of an asbestos-containing product, the plaintiff must show “he had sufficient exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.” Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169, p. 35 (La. 5/22/09), 16 So.3d 1065, 1091 (citing Asbestos v. Bordelon, Inc., 1996- 0525, p. 30 (La. App. 4 Cir. 10/21/98), 726 So.2d 926, 948; Vodanovich v. A.P. Green Industries, Inc., 2003-1079, p. 4 (La. App. 4 Cir. 3/3/04), 869 So.2d 930, 933). This standard of proof, developed by Louisiana courts over years of asbestos litigation, is known as the “substantial factor” test. Id. Stated differently, the plaintiff must prove, by a preponderance of the evidence that: (1) his exposure to the defendant’s asbestos product was significant; and (2) that this exposure caused or was a substantial factor in bringing about his mesothelioma (or other asbestos-related disease). Robertson v. Doug Ashy Bldg. Materials, Inc., 10-1551, p. 19 (La. App. 1 Cir. 10/4/11), 77 So.3d 360, 372 (citing Rando, 08-1163, 2008-1169, p. 38, 16 So.3d at 1092).

Oddo v. Asbestos Corp. Ltd., 14-0004, pp. 10-11 (La. App. 4 Cir. 8/20/15), 173

So.3d 1192, 1202. See also Boudreaux v Bollinger Shipyard, 15-1345, p. 24 (La.

App. 4 Cir. 6/22/16), 197 So.3d 761, 775.

On appeal, plaintiffs submit that the trial court erred in granting summary

judgment in favor of Utility on the basis of factual impossibility when Utility failed

to raise that claim in its motion, and where eyewitness testimony contradicts that

theory. This argument is not supported by the existing record.

Utility’s motion for summary judgment specifically asserts that “[t]here is

no evidence that John Brindell, Jr. ever worked with or around any asbestos-

containing products manufactured, sold, supplied, and/or distributed by Utility

Trailer.” Thus, the claim of factual impossibility was clearly raised.

Regarding plaintiffs’ allegation that Mr. Brindell was exposed to asbestos

from Utility brand trailers and/or chassis, Mr. Jupiter’s deposition testimony

5 establishes the following: (1) prior to 1982, PRMM used a lift on/lift off

(“Lo/Lo”) system to load and unload cargo containers onto ships; (2) the Lo/Lo

system utilized chassis (not trailers) that were loaded and unloaded with the use of

cranes;2 (3) in August 1982, PRMM changed its operation to a roll on/roll off

(“Ro/Ro”) system, whereby rail trailers were used for the first time to load and

unload cargo,3 (4) after August 1982, the Lo/Lo system using chassis was

discontinued; and (5) there was no work done on rail trailers prior to 1982 in

PRMM’s maintenance shop. Plaintiffs presented no evidence to refute Mr.

Jupiter’s testimony regarding the date that the Ro/Ro system began.

As previously stated, in support of their asbestos exposure claim, plaintiffs

rely on the deposition testimony of Mr. Poleto and Mr. Kain who remembered

working with Mr. Brindell on Utility brand trailers. However, the uncontroverted

testimony of Mr. Jupiter demonstrates that trailers were not in use at PRMM

before 1982. Additionally, Utility correctly contends that no one identified Utility

brand chassis at PRMM. Mr. Kain could only recall working on two brands of

chassis, Fierhoff and Gendy. Mr. Jupiter stated that he did not recall seeing Utility

chassis. Plaintiffs’ opposition to the motion for summary judgment repeatedly

refers to Mr. Brindell’s asbestos exposure from work on Utility trailers, which, as

explained above, could only have occurred after 1981, when the Ro/Ro system

utilizing rail trailers was implemented.

2 Mr. Jupiter explained that prior to 1982, gantry cranes were used to lift cargo containers on and

off the Lo/Lo vessels. When taken off the vessel, the cargo containers were placed and locked onto a chassis on the dock. The chassis was a metal frame with wheels. The container and the chassis were considered two separate pieces of equipment. 3 With the Ro/Ro system, Mr. Jupiter stated that large ramps were attached to the Ro/Ro vessel

and the rail trailers would actually roll on and off the vessel. The trailer included the van and the undercarriage with wheels. The rail trailers were manufactured as a single unit as opposed to a container married to a chassis with the Lo/Lo system.

6 As the trial court correctly determined, Mr. Jupiter’s testimony does not

support plaintiffs’ claim that Mr. Brindell remained at the PRMM facility after

1981 while working for Flexi Van. When asked about Flexi Van, Mr. Jupiter

stated that they may have been a manufacturer of chassis or maybe a leasing

company. He did not recall if Flexi Van was leasing chassis to the Port. More

importantly, Mr. Jupiter was not asked, and did not mention any dates that Flexi

Van may have operated at PRMM. While Mr. Brindell’s Social Security records

confirm that he was employed by Flexi Van from 1981 through 1987, there is no

evidence in this record regarding the nature of or, more importantly, the location of

Flexi Van’s operations.

It is evident from the depositions taken in this action that the parties

confined their discovery to the 1979 to 1981 time period, in spite of the fact that

plaintiffs’ petition referenced 1979 to 1984. Moreover, it appears from the record

that plaintiffs inexplicably initiated no discovery regarding Mr. Brindell’s

employment with Flexi Van.

Plaintiffs’ assertion concerning Mr. Brindell’s work for Flexi Van at PRMM

was undoubtedly raised for the first time during oral argument. La. C.C.P. art. 966

(F) provides that “[a] summary judgment may be rendered or affirmed only as to

those issues set forth in the motion under consideration by the court at the time.”

Additionally, the 2015 comments to Article 966 state that “[p]aragraph F makes

clear that, in deciding a motion for summary judgment, a court can consider only

the issues raised in the motion or opposition filed by the parties. The court cannot

rule on issues not raised by the parties.” See Safeway Ins. Co. of Louisiana v.

Gov’t Emps. Ins. Co., 21-01382 (La. 12/21/21), 329 So.3d 273, 274.

7 Aside from the fact that plaintiffs’ Flexi Van argument was first raised

during oral argument, we find that the record contains no competent evidence to

show that Mr. Brindell worked at PRMM after 1981, when trailers were utilized in

the Ro/Ro system. Additionally, plaintiffs presented no evidence that Utility brand

chassis were identified at PRMM prior to 1982, when the Lo/Lo system was in

place. Consequently, plaintiffs have presented no evidence that Mr. Brindell was

exposed to any asbestos-containing product manufactured or otherwise provided

by Utility.

CONCLUSION

Our de novo review of the record demonstrates that Utility met its burden of

showing that Mr. Brindell did not work on or around Utility brand chassis or

trailers during his employment with PRMM. Moreover, we find that in responding

to Utility’s motion for summary judgment, plaintiffs failed to produce any factual

support sufficient to establish the existence of a genuine issue of material fact.

Thus, plaintiffs will not be able to meet their evidentiary burden at trial.

Accordingly, we affirm the October 19, 2021 judgment granting Utility’s motion

for summary judgment.

AFFIRMED