CLIMMIE CRAFT * NO. 2024-C-0616
VERSUS * COURT OF APPEAL EAGLE, INC., ET AL. * FOURTH CIRCUIT * STATE OF LOUISIANA *******
ON SUPERVISORY WRIT FROM THE CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-11586, DIVISION “B” Honorable Marissa Hutabarat, ****** Judge Karen K. Herman ****** (Court composed of Judge Paula A. Brown, Judge Dale N. Atkins, Judge Karen K. Herman)
Christopher C. Colley Kristopher L. Thompson Emily C. LaCerte BARON & BUDD, P.C. 2600 Citiplace Drive, Suite 400 Baton Rouge, Louisiana 70808 And 909 Poydras Street, Suite 2100 New Orleans, LA 70112
COUNSEL FOR PLAINTIFF-RELATOR
Leigh Ann Schell Raymond P. Ward Luke G. Lahaye ADAMS & REESE, LLP 701 Poydras Street, Suite 4500 New Orleans, LA 70139
McCready L. Richeson Lawrence G. Pugh PUGH ACCARDO 1100 Poydras Street, Suite 3600 New Orleans, LA 70163 Kevin J. Lavie Joseph E. Lee, III PHELPS DUNBAR, LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130
COUNSEL FOR DEFENDANTS-RESPONDENTS
WRIT GRANTED; REVERSED AND REMANDED SEPTEMBER 27, 2024 KKH PAB DNA Plaintiff, Climmie Craft (“Mrs. Craft”), seeks emergency supervisory review
of the trial court’s August 22, 2024 ruling,1 which partially granted a Daubert2
Motion in Limine to Exclude and/or Limit the Testimony of Plaintiff’s Expert,
Kenneth Garza (“Mr. Garza”), filed by Defendants, Ports America Gulfport Inc.,
and joined by Defendants, Certain Underwriters at Lloyd’s London, Crowley
Marine Services, Inc., and Hartford Accident and Indemnity Company.
(collectively, “Defendants”). Mrs. Craft also seeks review of the trial court’s
September 25, 2024 judgment, which partially denied her Motion for
Reconsideration of the August 22, 2024 ruling.
For the following reasons, we grant the writ application, reverse the trial
court’s rulings, and remand for further proceedings.3
1 The record contains an unsigned judgment on the motion in limine as well as a separate
signature page indicating that the judgment was signed on September 9, 2024.
2 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
3 As a preliminary matter, we note that Defendants raise an objection as to the timeliness of the
motion to reconsider. Defendants contend that pursuant to La. C.C.P. art 1425(F)(2) the trial court was required to hold a hearing and render its decision on expert testimony no later than 30 days prior to trial. However, the trial court timely heard and ruled on the expert testimony on August 22, 2024 under La. C.C.P. art. 1425(F)(2). Moreover, Defendants did not raise the
1 FACTUAL AND PROCEEDURAL HISTORY
Mrs. Craft filed suit in this matter asserting that she contracted asbestos-
related lung cancer as a consequence of her household exposure (“take-home”) to
asbestos while laundering the asbestos-contaminated clothing of her husband, Jerry
Craft (“Mr. Craft”). Mrs. Craft alleges that her husband was exposed to asbestos
while employed by various stevedoring companies, including Defendants. Mr.
Craft died from asbestos-related mesothelioma.
To demonstrate that her household exposure to asbestos and her husband’s
workplace exposure to asbestos was substantial and significantly above
background levels, Mrs. Craft offered the expert opinion of Mr. Garza, a Certified
Industrial Hygienist. Mr. Garza has rendered an opinion that Mr. Craft suffered
significant occupational exposures to asbestos while employed by Defendants and
that Mrs. Craft suffered significant household exposures to asbestos while
laundering her husband’s work clothing.4
Defendants filed motions in limine seeking to exclude and/or limit the
testimony of Mr. Garza. Defendants argued therein that Mr. Garza’s opinion is
based on insufficient facts and data.
The trial court granted Defendants’ motion, in part, precluding Mr. Garza
“from offering testimony regarding the asbestos exposures by Jerry Craft and/or
Climmie Craft. The Court will allow Kenneth Garza to testify about general
timeliness of the motion to reconsider under La. C.C.P. art. 1425(F)(2) in the opposition filed in the trial court. Accordingly, we do not find this argument persuasive.
4 In his April 11, 2024 report, Mr. Garza indicated that he “provided estimated exposure rates to
both Mr. Craft and Mrs. Craft based on the exposure evidence in this case and the relevant epidemiological studies, and based on this, opined to a reasonable degree of scientific certainty that ‘Ms. Climmie Craft had exposures above background that increased her risk for [asbestos- related] disease.’ ”
2 industrial opinions, only.” Following the denial of Mrs. Craft’s Motion for
Reconsideration as to Mr. Garza, this writ application followed.
LAW & DISCUSSION
Mrs. Craft argues that the trial court erred in prohibiting Mr. Garza from
testifying that her husband’s exposures to asbestos while employed by each
Defendant were significant and above background, and that her “take-home”
asbestos exposures from her husband’s employment by each Defendant were
significant and above background. Mrs. Craft claims that Mr. Garza has
sufficiently testified as to the frequency Mr. Craft was exposed to asbestos because
of the work he performed for each Defendant.
“Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by our
Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La. 1993), the
trial court is required to perform a ‘gatekeeping’ function to ‘ensure that any and
all scientific testimony or evidence admitted is not only relevant, but reliable.’”
Allen v. Eagle Inc., 2022-0386, 0387, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d
808, 814-15, writ denied, 2022-01373 (La. 11/16/22), 349 So.3d 998 (quoting
Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5 (La. App. 4 Cir. 7/29/09), 17
So.3d 459, 463.
La. C.E. art. 702(A) addresses the standard for admissibility of expert
testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
3 (1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
This Court in Allen, 2022-0386, p. 9, 346 So.3d at 815, recognized that the
character of the evidence upon which an expert bases his opinion affects only the
weight to be afforded to the expert’s testimony and does not make his opinion
evidence inadmissible pursuant to Daubert. This Court stated:
The [Louisiana] Supreme Court, in Certain Underwriters at Lloyd’s London v. United States Steel Corp., 20[19]-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122, (quoting Lafayette City-Parish Consol. Gov’t v. Person, [20]12-0307, p. 8 (La.
Free access — add to your briefcase to read the full text and ask questions with AI
CLIMMIE CRAFT * NO. 2024-C-0616
VERSUS * COURT OF APPEAL EAGLE, INC., ET AL. * FOURTH CIRCUIT * STATE OF LOUISIANA *******
ON SUPERVISORY WRIT FROM THE CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-11586, DIVISION “B” Honorable Marissa Hutabarat, ****** Judge Karen K. Herman ****** (Court composed of Judge Paula A. Brown, Judge Dale N. Atkins, Judge Karen K. Herman)
Christopher C. Colley Kristopher L. Thompson Emily C. LaCerte BARON & BUDD, P.C. 2600 Citiplace Drive, Suite 400 Baton Rouge, Louisiana 70808 And 909 Poydras Street, Suite 2100 New Orleans, LA 70112
COUNSEL FOR PLAINTIFF-RELATOR
Leigh Ann Schell Raymond P. Ward Luke G. Lahaye ADAMS & REESE, LLP 701 Poydras Street, Suite 4500 New Orleans, LA 70139
McCready L. Richeson Lawrence G. Pugh PUGH ACCARDO 1100 Poydras Street, Suite 3600 New Orleans, LA 70163 Kevin J. Lavie Joseph E. Lee, III PHELPS DUNBAR, LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130
COUNSEL FOR DEFENDANTS-RESPONDENTS
WRIT GRANTED; REVERSED AND REMANDED SEPTEMBER 27, 2024 KKH PAB DNA Plaintiff, Climmie Craft (“Mrs. Craft”), seeks emergency supervisory review
of the trial court’s August 22, 2024 ruling,1 which partially granted a Daubert2
Motion in Limine to Exclude and/or Limit the Testimony of Plaintiff’s Expert,
Kenneth Garza (“Mr. Garza”), filed by Defendants, Ports America Gulfport Inc.,
and joined by Defendants, Certain Underwriters at Lloyd’s London, Crowley
Marine Services, Inc., and Hartford Accident and Indemnity Company.
(collectively, “Defendants”). Mrs. Craft also seeks review of the trial court’s
September 25, 2024 judgment, which partially denied her Motion for
Reconsideration of the August 22, 2024 ruling.
For the following reasons, we grant the writ application, reverse the trial
court’s rulings, and remand for further proceedings.3
1 The record contains an unsigned judgment on the motion in limine as well as a separate
signature page indicating that the judgment was signed on September 9, 2024.
2 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
3 As a preliminary matter, we note that Defendants raise an objection as to the timeliness of the
motion to reconsider. Defendants contend that pursuant to La. C.C.P. art 1425(F)(2) the trial court was required to hold a hearing and render its decision on expert testimony no later than 30 days prior to trial. However, the trial court timely heard and ruled on the expert testimony on August 22, 2024 under La. C.C.P. art. 1425(F)(2). Moreover, Defendants did not raise the
1 FACTUAL AND PROCEEDURAL HISTORY
Mrs. Craft filed suit in this matter asserting that she contracted asbestos-
related lung cancer as a consequence of her household exposure (“take-home”) to
asbestos while laundering the asbestos-contaminated clothing of her husband, Jerry
Craft (“Mr. Craft”). Mrs. Craft alleges that her husband was exposed to asbestos
while employed by various stevedoring companies, including Defendants. Mr.
Craft died from asbestos-related mesothelioma.
To demonstrate that her household exposure to asbestos and her husband’s
workplace exposure to asbestos was substantial and significantly above
background levels, Mrs. Craft offered the expert opinion of Mr. Garza, a Certified
Industrial Hygienist. Mr. Garza has rendered an opinion that Mr. Craft suffered
significant occupational exposures to asbestos while employed by Defendants and
that Mrs. Craft suffered significant household exposures to asbestos while
laundering her husband’s work clothing.4
Defendants filed motions in limine seeking to exclude and/or limit the
testimony of Mr. Garza. Defendants argued therein that Mr. Garza’s opinion is
based on insufficient facts and data.
The trial court granted Defendants’ motion, in part, precluding Mr. Garza
“from offering testimony regarding the asbestos exposures by Jerry Craft and/or
Climmie Craft. The Court will allow Kenneth Garza to testify about general
timeliness of the motion to reconsider under La. C.C.P. art. 1425(F)(2) in the opposition filed in the trial court. Accordingly, we do not find this argument persuasive.
4 In his April 11, 2024 report, Mr. Garza indicated that he “provided estimated exposure rates to
both Mr. Craft and Mrs. Craft based on the exposure evidence in this case and the relevant epidemiological studies, and based on this, opined to a reasonable degree of scientific certainty that ‘Ms. Climmie Craft had exposures above background that increased her risk for [asbestos- related] disease.’ ”
2 industrial opinions, only.” Following the denial of Mrs. Craft’s Motion for
Reconsideration as to Mr. Garza, this writ application followed.
LAW & DISCUSSION
Mrs. Craft argues that the trial court erred in prohibiting Mr. Garza from
testifying that her husband’s exposures to asbestos while employed by each
Defendant were significant and above background, and that her “take-home”
asbestos exposures from her husband’s employment by each Defendant were
significant and above background. Mrs. Craft claims that Mr. Garza has
sufficiently testified as to the frequency Mr. Craft was exposed to asbestos because
of the work he performed for each Defendant.
“Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by our
Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La. 1993), the
trial court is required to perform a ‘gatekeeping’ function to ‘ensure that any and
all scientific testimony or evidence admitted is not only relevant, but reliable.’”
Allen v. Eagle Inc., 2022-0386, 0387, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d
808, 814-15, writ denied, 2022-01373 (La. 11/16/22), 349 So.3d 998 (quoting
Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5 (La. App. 4 Cir. 7/29/09), 17
So.3d 459, 463.
La. C.E. art. 702(A) addresses the standard for admissibility of expert
testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
3 (1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
This Court in Allen, 2022-0386, p. 9, 346 So.3d at 815, recognized that the
character of the evidence upon which an expert bases his opinion affects only the
weight to be afforded to the expert’s testimony and does not make his opinion
evidence inadmissible pursuant to Daubert. This Court stated:
The [Louisiana] Supreme Court, in Certain Underwriters at Lloyd’s London v. United States Steel Corp., 20[19]-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122, (quoting Lafayette City-Parish Consol. Gov’t v. Person, [20]12-0307, p. 8 (La. 10/16/12), 100 So.3d 293, 298), found that an “expert may provide testimony based on information obtained from others, and the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion.” See also MSOF Corp. v. Exxon Corp., [20]04-0988, p. 16 (La. App. 1 Cir. 12/22/05), 934 So.2d 708, 720 (wherein the First Circuit held that “the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion ... and may serve as a basis for attack by defendants on cross-examination at trial, but it does not make his opinion evidence inadmissible under Daubert.”).
Id. Based on the record before us, we find that the evidence upon which Mr.
Garza based his opinion affects only the weight afforded Mr. Garza’s conclusions.5
Therefore, Mr. Garza’s evidence and testimony should be weighed by the jury.
Accordingly, Mrs. Craft’s writ application is granted. Further, we reverse the trial
5 Mr. Garza stated in his report that his review of case specific information included: “Deposition
of Climmie Craft, dated December 8, 2023; Deposition of Jerry Craft, dated November 10, 2006; Deposition of Jerry Craft, dated January 23, 2017; Discovery Deposition of Jerry Craft, dated July 19, 2017; and/or other case-specific information.”
4 court’s rulings, which found that Mr. Garza would be limited to offering only
general industrial hygiene opinions at trial and denied the motion to reconsider in
part. The matter is remanded to the trial court for further proceedings.
WRIT GRANTED; REVERSED AND REMANDED