Emily Everett v. Air Products and Chemicals, Inc.

• Court: Louisiana Court of Appeal
• Decided: September 16, 2022
• Docket: 2022-CA-0539
• Status: Published

Opinion

EMILY EVERETT * NO. 2022-CA-0539

VERSUS * COURT OF APPEAL AIR PRODUCTS AND * CHEMICALS, INC., ET AL FOURTH CIRCUIT * STATE OF LOUISIANA *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

EMILY EVERETT NO. 2022-CA-0540

VERSUS

AIR PRODUCTS AND CHEMICALS, INC., ET AL

EMILY EVERETT NO. 2022-CA-0541

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-05845, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Chief Judge Terri F. Love ****** (Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Pro Tempore James F. McKay, III)

Lewis Owens Unglesby Lance C. Unglesby Jamie F. Gontarek UNGLESBY LAW FIRM 246 Napoleon Street Baton Rouge, LA 70802

Thomas More Flanagan Anders F. Holmgren FLANAGAN PARTNERS, LLP 201 St. Charles Avenue Suite 3300 New Orleans, LA 70170

Lindsey A. Cheek THE CHEEK LAW FIRM 650 Poydras Street Suite 2310 New Orleans, LA 70130

COUNSEL FOR PLAINTIFFS/APPELLANTS

Douglas Richard Elliott Jamie H. Baglio H. Philip Radecker, Jr. McGready Lewis Richeson Milele N. St. Julien Francis Xavier deBlanc, III PUGH ACCARO HAAS RADECKER & CAREY, LLC 1100 Poydras Street Suite 3300 New Orleans, LA 70163

COUNSEL FOR APPELLEE

Lawrence G. Pugh, III PUGH ACCARDO HAAS, RADECKER & CAREY, LLC 1100 Poydras Street, Suite 3600 New Orleans, LA 70163

John J. Hainkel, III Kelly L. Long Angela M. Bowlin Kelsey A. Eagan Magali A. Puente-Martin FRILOT L.L.C. 1100 Poydras Street, Suite 3700 New Orleans, LA 70163

Mary S. Johnson Kimberly Wicker Jones JOHNSON GRAY MCNAMARA, LLC 21357 Marion Lane Suite 300 Mandeville, LA 70471 S. Suzanne Mahoney Nichole M. Gray JOHNSON GRAY McNAMARA, LLC 650 Poydras Street Suite 1201 New Orleans, LA 70130

Michael R. Denton BERNARD, CASSISA, ELLIOTT & DAVIS 3838 N. Causeway Blvd. Suite 3050 Metairie, LA 70002

Timothy William Hassinger GALLOWAY JOHNSON TOMPKINS BURR & SMITH 701 Poydras Street 40th Floor New Orleans, LA 70139

Glen E. Mercer Kourtney T. French SALLEY, HITE, MERCER & RESOR, LLC 365 Canal Street Suite 1710 New Orleans, LA 70130

Kelly B. Becker Kathryn Z. Gonski Mark R. Deethardt LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139-5099

COUNSEL FOR DEFENDANTS/APPELLEES

APPEAL DISMISSED AS TO RILEY POWER, INC. SEPTEMBER 16, 2022 TFL

RML This is an asbestos action. Plaintiffs/Appellants, Paula Everett and William JFM Everett, Jr., individually and as representatives of the decedent, Emily Everett

(“Plaintiffs”), lodged an appeal from two May 4, 2022 judgments of the trial court.

The first judgment granted summary judgment in favor of Defendants/Appellees,

Union Carbide Corporation (“Union Carbide”), Foster Wheeler LLC, and Riley

Power, Inc. (“Riley Power”), dismissing all claims of Plaintiffs. The second

judgment granted summary judgment and dismissed all of Plaintiffs’ claims

against defendants, Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k//a

Peter Kiewit Sons Co.

On appeal, Plaintiffs and Riley Power filed a Joint Motion to Dismiss

Appeal as to Riley Power on September 13, 2022. For the reasons that follow, we

grant the motion to dismiss Plaintiffs’ appeal as to Riley Power, reserving unto

Plaintiffs the right to proceed with their appeals as to any other parties not

dismissed, including Foster Wheeler, LLC (“Foster Wheeler’) and Level 3

1 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k/a Peter Kiewit Sons (“Peter

Kiewit”).1

FACTUAL AND PROCEDURAL HISTORY

The decedent, Emily Everett, was the spouse of a worker who was exposed

to asbestos. Decades later, Mrs. Everett contracted malignant mesothelioma and

filed suit against numerous parties, including Union Carbide, Riley Power, Foster

Wheeler, and Level 3 Holdings. Mrs. Everett died a year after her diagnosis. Her

children, Paula Everett and William Everett, Jr., were substituted as party

plaintiffs.

Defendants, Union Carbide, Foster Wheeler, and Riley Power, moved for

summary judgment, seeking relief on the grounds that Plaintiffs lacked evidence of

causation to show that Mrs. Everett’s mesothelioma was related to their specific

products. On the day before the summary judgment hearing, Peter Kiewit moved

to join Union Carbide’s motion. At the summary judgment hearing, the trial court

determined that Plaintiffs had failed to present sufficient evidence of causation to

defeat summary judgment and granted the defendants’ motion for summary

judgment. Over Plaintiffs’ objections, the trial court also signed a judgment

granting Peter Kiewit’s motion to join and dismissed Peter Kiewit with prejudice.

Plaintiffs’ motion for a new trial was denied by the trial court. Plaintiffs

timely filed an appeal of the judgments.

1 Plaintiffs and Union Carbide also filed a Joint Motion to Dismiss Appeal as to Union Carbide.

This Court granted the motion and ordered Plaintiffs’ appeal dismissed as to Union Carbide. See Everett v. Air Products and Chemicals, Inc. et al (La. App. 4 Cir. 9/8/2022).

2 DISCUSSION

Following the lodging of the record on appeal, Plaintiffs and Riley Power

filed a Joint Motion to Dismiss Appeal as to Riley Power. Considering the joint

motion to dismiss appeal, we grant the motion and order the dismissal of Plaintiffs’

appeal as to Riley Power. We further find that Plaintiffs’ appeals with respect to

any other party and/or any other Docket Number (including as to Foster Wheeler

and Peter Kiewit in Docket No. 2022-CA-0539, Docket No. 2022-CA-0540, and

Docket No. 2022-CA-0541) are not impacted by the joint motion to dismiss Riley

Power and order that the appeals not specifically dismissed remain pending.

APPEAL DISMISSED AS TO RILEY POWER, INC.