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 ****** Judge Paula A. Brown ****** (Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown, Judge Dale N. Atkins)
Lewis O. Unglesby Lance C. Unglesby Jamie F. Gontarek UNGLESBY LAW FIRM 246 Napoleon Street Baton Rouge, LA 70802
Thomas M. 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
John J. Hainkel, III Kelly L. Long FRILOT, LLC 1100 Poydras Street, Suite 3700 New Orleans, LA 70163
COUNSEL FOR DEFENDANT-APPELLEE, FOSTER WHEELER, LLC
Joseph J. Lowenthal, Jr. Madeleine Fischer Lena D. Giangrosso JONES WALKER LLP 201 Poydras Street, 51st Floor New Orleans, LA 70170-5100
COUNSEL FOR DEFENDANT-APPELLEE, LEVEL 3 HOLDINGS, INC.
REVERSED IN PART; AFFIRMED IN PART; ANSWERS TO APPEAL DISMISSED AND REMANDED May 2, 2023 This civil action arises from a claim of household exposure to asbestos, PAB TFL which later resulted in a diagnosis of mesothelioma. Appellants, Paula Everett DNA (“Paula”) and William Everett, Jr. (“William”) (collectively, the “Everetts”),
individually and as representatives of the decedent, Emily Everett (“Mrs. Everett”),
filed separate appeals from two May 4, 2022 judgments of the district court, which
granted motions for summary judgment in favor of Appellees, Foster Wheeler LLC
(“Foster Wheeler”) and Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k/a
Peter Kiewit Sons (“Peter Kiewit”), dismissing all claims against them with
prejudice. Additionally, the Everetts seek to appeal the May 13, 2022 denial of
their motion for a new trial. These matters have all been consolidated into the
instant appeal. For the reasons that follow, we dismiss the answers of Foster
Wheeler and Peter Kiewit, which sought a reversal of the district court’s denial of
Union Carbide’s objection to the Everetts’ untimely supplemental opposition; we
reverse the district court’s judgment that granted summary judgment in favor of
Peter Kiewit; we affirm the district court’s judgment, granting summary judgment
in favor of Foster Wheeler; and we reverse the district court’s denial of the
Everetts’ motion for new trial and remand this matter back to the district court for a
contradictory hearing on the motion for new trial on Foster Wheeler’s motion for
summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
According to her deposition testimony, sometime around April of 2018, Mrs.
Everett presented to her primary care physician, Dr. Escipion Pedroza,
complaining of severe abdominal swelling. After an examination, Dr. Pedroza
1 scheduled a CT scan for Mrs. Everett and referred her to Dr. Fuentes1. The CT
scan revealed an accumulation of fluid, which prompted Dr. Fuentes to take a
sample of the liquid and send it for testing in the lab. Lab results revealed the
presence of cancer cells which, in turn, resulted in Dr. Fuentes diagnosing Mrs.
Everett with peritoneal mesothelioma.
In her consultation with Dr. Fuentes, Mrs. Everett explained that while she
had never personally worked directly with or in proximity to asbestos, her former
spouse, William Everett, Sr. (“Mr. Everett”), had been a journeyman welder and
boilermaker throughout their twenty-year marriage and had worked at various
plants and locations that potentially exposed him to asbestos. Mrs. Everett
described her role in the household as being responsible for laundering all of the
family’s clothing, including Mr. Everett’s work clothing that he wore throughout
the work day and until he returned home. There was routinely so much dust in
Mr. Everett’s work clothing that Mrs. Everett was required to sweep or vacuum up
the piles that accumulated and, inevitably, inhaled some of this dust. Mrs.
Everett’s narrative led Dr. Fuentes to conclude that it was this repeated household
exposure to the potentially asbestos-laden dust that was the cause of Mrs. Everett’s
mesothelioma.
Dr. Pedroza then referred Mrs. Everett to an oncologist, Dr. Thomas
Cosgriff. It was Dr. Cosgriff’s opinion that Mrs. Everett was already too ill to
receive treatment for the mesothelioma, which led Mrs. Everett to seek a second
opinion from another oncologist, Dr. Zoe Larned. After reviewing Mrs. Everett’s
medical history, Dr. Larned agreed that the cause of Mrs. Everett’s mesothelioma
1 Mrs. Everett testified that she did not know the first name of Dr. Fuentes. Our review of the record did not yield a first name for Dr. Fuentes.
2 was her exposure to asbestos through laundering Mr. Everett’s clothing; however,
Dr. Larned disagreed that Mrs. Everett was too ill to receive treatment and began
Mrs. Everett on a regimen of chemotherapy. After three cycles of chemotherapy,2
Mrs. Everett developed pancytopenia, a condition which inhibits bone-marrow
production of blood cells, and it was determined that it was no longer safe for her
to continue therapy. Mrs. Everett was placed into hospice care where, on April 11,
2019, she died from complications caused by mesothelioma.
Mrs. Everett filed a petition for damages on June 13, 2018, wherein she
alleged that more than thirty (30) named defendants were liable for damages for
Mr. Everett’s exposure to asbestos, which resulted in her own exposure. Shortly
after Mrs. Everett’s death, on April 15, 2019, a third supplemental and amending
petition was filed, which substituted her two natural children, Paula and William,
as plaintiffs in her stead and added allegations of wrongful death. Nearly three
years later, following a series of dismissals, consent judgments and settlements, a
few of the remaining defendants in the case filed motions for summary judgment.
On March 11, 2022, Union Carbide Corporation (“Union Carbide”), Riley
Power, Inc. (“Riley Power”), and Foster Wheeler filed separate motions for
summary judgment, with a hearing originally scheduled for April 29, 2022.
Following, on March 22, 2022, the district court, sua sponte, reset the hearing date
to April 14, 2022. Each of these motions were premised on two common bases:
(1) the defendants’ expert witness, Dr. Allen Gibbs, had produced a written report
in which he opined that Mrs. Everett’s mesothelioma was developed spontaneously
and was not related to asbestos exposure, and the Everetts had failed to provide any
expert reports to contradict this opinion; and (2) even assuming that Mrs. Everett’s
2 Mrs. Everett received her last chemotherapy treatment on June 27, 2018.
3 mesothelioma was a result of asbestos exposure, the Everetts had not provided any
proof of specific causation that could directly attribute that exposure to Union
Carbide, Riley Power or Foster Wheeler.
The Everetts timely filed an Opposition to Summary Judgment in Causation
by Foster Wheeler, Union Carbide and Riley Power on March 23, 2022. In their
opposition, the Everetts pointed out that the defendants had taken the deposition of
Dr. Larned on April 12, 2019, in which she espoused the opinion that Mrs.
Everett’s mesothelioma was caused by asbestos exposure, thereby, they argued,
creating a genuine issue of material fact.3 The Everetts also noted in the opposition
that the defendants would be taking the deposition of Dr. Victor Roggli prior to the
new hearing date and that the Everetts intended to supplement their opposition.
Union Carbide and Foster Wheeler each filed a reply memorandum on April
08, 2022, while Riley Power filed a motion to join and adopt Foster Wheeler’s
reply, which was granted by the district court on April 12, 2022. These reply
memoranda again re-urged the argument that the Everetts had failed to provide any
proof as to specific causation, although they conceded that Dr. Larned’s deposition
testimony potentially spoke to the issue of general causation. Also on April 12,
2022, the Everetts filed a Supplemental Opposition to Union Carbide’s Motion for
Summary Judgment on Causation. Here, the Everetts used the deposition
testimony of Dr. Roggli to bolster their assertion that there could be a causal
connection between Mr. Everett’s possible asbestos exposure and Mrs. Everett’s
subsequent mesothelioma diagnosis. More importantly, the Everetts explained that
their industrial hygienist, Gerald Baril, had been deposed by Union Carbide on
April 7, 2022, but that his testimony had not yet been transcribed. According to
3 The transcript of Dr. Larned’s deposition testimony was attached to the Everetts’ opposition.
4 the Everetts, Mr. Baril’s testimony would demonstrate that “[n]o counsel will deny
Baril identified exposure from their fault as a substantial contributing factor.”
On April 13, 2022, one day before the hearing on the other motions for
summary judgment, Peter Kiewit, Mr. Everett’s former employer, filed a motion to
join Union Carbide’s motion for summary judgment. The hearing on the rule to
show cause for the motion to join was set for 9:00 a.m. on April 14, 2022, the same
day as the hearing set for Union Carbide, Riley Power and Foster Wheeler’s
motions for summary judgment. Additionally, on April 13, 2022, Union Carbide
filed an objection to plaintiffs’ untimely supplemental opposition, arguing that its
filing two days before the hearing did not comport with the directives of La. C.C.P.
art 966(B)(2). On the morning of the hearings, before argument commenced on
the motions for summary judgment, the district court denied Union Carbide’s
objection. After hearing the arguments of counsel, the court rendered judgment in
favor of Union Carbide, Riley Power and Foster Wheeler, dismissing all claims
against those parties with prejudice. This judgment was signed on May 4, 2022. A
separate judgment was signed on May 4, 2022, which granted Peter Kiewit’s
motion to join Union Carbide’s motion for summary judgment, and dismissed all
claims against them with prejudice.
The Everetts filed a motion for new trial on May 12, 2022. Amongst the
various exhibits attached to this motion, the Everetts included portions of the
deposition transcript of Mr. Baril, the industrial hygienist, as well as a report
produced by Mr. Baril. In this report, Mr. Baril opined that “Union Carbide, Peter
Kiewit, Riley Power, and Foster Wheeler failed to take necessary and required
actions to protect William Everett during the years that he was exposed to
asbestos.” Further, “[a]s a result of the inaction of these companies, Emily Everett
5 sustained para-occupational exposures to asbestos that significantly increased her
risk of developing mesothelioma.” On May 13, 2022, the district court summarily
denied the Everetts’ motion for new trial.
A Motion for Devolutive Appeals was timely filed by the Everetts on June 7,
2022. The Everetts sought to appeal the summary judgments in favor of Union
Carbide, Riley Power, Foster Wheeler and Peter Kiewit in addition to the denial of
the motion for new trial. Prior to the docketing in this Court of the instant
consolidated appeal, the Everetts reached extra-judicial agreements with Union
Carbide and Riley Power, and filed joint motions to dismiss the Everetts’ appeal in
relation to each of them, respectively; therefore, our review is limited to the
summary judgments granted in favor of Foster Wheeler and Peter Kiewit and the
denial of the motion for new trial.
STANDARD OF REVIEW
“This Court reviews the granting of ‘[a] summary judgment on appeal de
novo, using the same criteria that govern the [district] court’s determination of
whether summary judgment is appropriate.’” Cooper v. Brisco, 22-0196, p. 4 (La.
App. 4 Cir. 10/18/22), ___So.3d____, ____, 2022 WL 10320651 at *2 (quoting
Planchard v. New Hotel Monteleone, LLC, 21-00347, pp. 2-3 (La. 12/10/21), 332
So.3d 623, 625). “Generally, on a motion for summary judgment, the burden of
proof remains with the mover.” Id. “But, if the moving party will not bear the
burden of proof on the issue at trial and identifies an absence of factual support for
one or more elements essential to the adverse party’s claim, action, or defense,
then the non-moving party must produce factual support sufficient to counter that
assertion and establish that he will be able to satisfy his evidentiary burden of
proof at trial.” Id. (citing La. C.C.P. art. 966(D)(1)). “However, if the opponent of
6 the motion cannot do so, there is no genuine issue of material fact and summary
judgment will be granted.” Id. (quoting Ely Edwards Enterprises, Inc. v.
Pontchartrain Park CDC Real Estate Holdings, LLC, 21-0623, pp. 5-6 (La. App. 4
Cir. 4/13/22), 338 So.3d 50, 53).
Generally, “the denial of a motion for new trial is not a final, appealable
judgment.” New Orleans Fire Fighters Pension and Relief Fund v. City of New
Orleans 17-0320, p. 5 (La. App. 4 Cir. 3/21/18), 242 So.3d 682, 688 n.12 (citing
9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C., 15-686, p. 4 (La. App. 5
Cir. 2/24/16), 187 So.3d 522, 524). “‘However, an appellate court may consider
interlocutory judgments, such as the denial of a motion for new trial, as part of an
unrestricted appeal from a final judgment.’” Id. (quoting Henry v. Sullivan, 16-
0564, p. 7 (La. App. 1 Cir. 7/12/17), 223 So.3d 1263, 1272). Accordingly, we will
include an examination of the denial of the Everetts’ motion for new trial together
with our de novo review of the summary judgments granted in favor of Foster
Wheeler and Peter Kiewit.
DISCUSSION
The Everetts raise four assignments of errors, which they believe the district
court committed, that we summarize as follows: (1) the district court erred by
allowing the movers to expand their pleadings to include arguments on specific
causation, which was not included in the original motions; (2) the district court
erred by not granting a continuance at the summary judgment hearing after
allowing the movers to expand the issues in contention; (3) the district court
abused its discretion by summarily denying their motion for a new trial without a
contradictory hearing; and (4) the district court erred in granting an untimely filed
motion to join summary judgment in favor of Peter Kiewit which did not include
7 any facts or evidence specific to Peter Kiewit, and with which the Everetts were
not properly served or given notice. We shall address each assigned error in the
order we deem most efficient, in turn.
Peter Kiewit’s Motion for Summary Judgment
The Everetts assert Peter Kiewit’s motion to join Union Carbide’s motion
for summary judgment was untimely and there is no evidence that the Everetts
were ever served with this motion as required under La. C.C.P. arts. 966(B) and
966(B)(1). In opposition, Peter Kiewit argues that the district court was correct in
granting their motion to join Union Carbide’s motion for summary judgment
because the exposures alleged against Union Carbide and Peter Kiewit were
identical, and that considering separate motions for summary judgment could
potentially lead to inconsistent judgments. Further, Peter Kiewit maintains that the
Everetts effectively waived their objection to the motion to join because they did
not file a written objection prior to the April 14, 2022 hearing, nor did they object
to the motion to join at the April 14, 2022 hearing; consequently, Peter Kiewit
asserts, the Everetts have only raised their objection to the motion to join on appeal
without reserving their right to do so.
La. C.C.P. arts. 966(B) and 966(B)(1) provide:
B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
La. C.C.P. art 1313 provides, in relevant part:
A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express
8 provision of law may be served as provided in this Article, may be served either by the sheriff or by: *** (4) Transmitting a copy by electronic means to counsel of record, or if there is no counsel of record, to the adverse party, at the number or addresses expressly designated in a pleading or other writing for receipt of electronic service. Service by electronic means is complete upon transmission but is not effective and shall not be certified if the serving party learns the transmission did not reach the party to be served. *** C. Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made by registered or certified mail or as provided in Article 1314, by actual delivery by a commercial courier, or by emailing the document to the email address designated by counsel or the party. Service by electronic means is complete upon transmission, provided that the sender receives an electronic confirmation of delivery.
Peter Kiewit filed its motion to join on April 13, 2022, one day before the
scheduled summary judgment hearing it sought to join. In addition, Peter Kiewit
also requested its own hearing on a rule to show cause why its motion to join
should not be granted. On April 14, 2022, the district court signed the rule to show
cause, setting the hearing for that same day at 9:00 a.m.
First, we recognize that it is common practice amongst co-defendants
engaged in complex litigation to join or adopt other co-defendant’s motions for
summary judgment. However, our reading of La. C.C.P. art. 966(B)(1) makes no
provision for the filing of a motion to join a motion for summary judgment less
than sixty-five (65) days prior to the trial, which we find to be synonymous with
filing a motion for summary judgment.
Our Supreme Court recently discussed an analogous issue in Auricchio v.
Harriston. In that case, the Court was called upon to determine whether a district
court had discretion to allow an untimely filed opposition to a motion for summary
judgment. When discussing the time delays for filing an opposition, found in La.
9 C.C.P. art. 966(B)(2),4 the Court reasoned that “[t]he clear and unambiguous
language of Article 966(B)(2) says that, absent the consent of the parties and the
court, an opposition shall be filed within the fifteen-day deadline established by the
article. The word ‘shall’ is mandatory.” Auricchio v. Harriston, 20-01167, p. 4
(La. 10/10/21) 332 So.3d 660, 663 (emphasis in original) (citing La. R.S. 1:3).
“Under well-established rules of interpretation, the word ‘shall’ excludes the
possibility of being ‘optional’ or even subject to ‘discretion,’ but instead means
‘imperative, of similar effect and import with the word ‘must.’” Id. (quoting
Louisiana Fed'n of Tchrs. v. State, []13-0120, p. 26 (La. 5/7/13), 118 So.3d 1033,
1051). “Summary judgments are intended ‘to secure the just, speedy, and
inexpensive determination of every action.’” Id. (quoting La. C.C.P. art.
966(A)(2)). Further, “[l]imiting judicial discretion by setting a firm deadline for
filing an opposition furthers this end. That is a rational legislative choice and must
be applied as written.” Id.
The Auricchio Court went on to explain that prior to a revision in 2015, La.
C.C.P. art. 966(B) allowed that “[f]or good cause, the court shall give the adverse
party additional time to file a response, including opposing affidavits or
depositions.” However, “[b]y removing the discretionary language and replacing it
with mandatory language, we must assume the legislature intended to change the
law to eliminate the previously afforded discretion.” Id. “‘[W]hen the legislature
changes the wording of a statute, it is presumed to have intended a change in the
law.’” Id. (quoting Borel v. Young, []07-0419, p. 13 (La. 11/27/07), 989 So.2d 42,
4 La. C.C.P. 966(B)(2) provides:
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
10 57). Whether, in the case sub judice, the plaintiffs were prejudiced is of no
moment because “[t]he statute mandates compliance without regard to cause or
prejudice.” Id. at p. 5, 332 So.3d at 663.
Similarly, the previous version of La. C.C.P. art. 966(B)(1) deferred to
District Court Rule 9.9 for its time delays for filing a motion for summary
judgment, but the 2015 amendment to this article specifically set forth the rule that,
unless extended by the court and agreed to by all of the parties, a motion for
summary judgment shall be filed not less than sixty-five days prior to the trial.
Therefore, using the Auricchio Court’s approach of strictly construing La. C.C.P.
art. 966(B)(1), we find that the district court abused its discretion when it allowed
Peter Kiewit to file its motion to join Union Carbide’s summary judgment the day
before the summary judgment hearing, and only thirty-two (32) days before the
trial, scheduled for May 16, 2022.
Second, Peter Kiewit’s rule to show cause order contains a notation stating:
“Service to be accomplished pursuant to La. C.C.P. Art. 1313 via email with
Delivery Receipt Requested.” However, the record does not contain a
confirmation of delivery as mandated under La. C.C.P. art. 1313(C). As a result,
we have no evidence that service of the motion to join was properly served on the
Everetts.5 This Court has held that “[a] judgment rendered against a defendant
who has not been served with process as required by law is an absolute nullity, and
the judgment shall be annulled.” Gordon v. A-1 St. Bernard Taxi & Delivery, 17-
0048, p. 6 (La. App. 4 Cir. 8/9/17), 226 So.3d 494, 498 (citing La. C.C.P. art.
5 Cf. Steib v. Lamorak, 20-0424, p.7 (La. App. 4 Cir. 2/3/21), ___ So.3d ____, 2021 WL 503240
at *3, where this Court found that an ex parte motion to join in a motion for summary judgment that did not request a hearing did not trigger the requirements of La. C.C.P. art. 1313(C).
11 2002(A)(2);6 see also Brown v. Unknown Driver, 05-0421, p. 11 (La. App. 4 Cir.
1/18/06), 925 So.2d 583, 590).
Finally, our review of the record leads us to the inference that the district
court did not conduct a hearing on Peter Kiewit’s motion to join Union Carbide’s
summary judgment. Instead, counsel for Peter Kiewit simply made an appearance
at the summary judgment hearing on April 14, 2022, and offered nothing more
than a request to adopt all of Union Carbide’s arguments in favor of summary
judgment. Considering the facts and circumstances surrounding this sequence of
events and the absence of a hearing on the motion to join, we do not find that the
Everetts waived their objection to Peter Kiewit’s late-filed motion to join Union
Carbide’s motion for summary judgment. As a result, we conclude that the district
court erred when it granted Peter Kiewit’s motion to join and dismissed it from the
matter with prejudice.
Foster Wheeler’s Motion for Summary Judgment
It is the Everetts’ contention that Foster Wheeler’s motion for summary
judgment only contained allegations pertaining to general causation, and that it was
only in its reply that Foster Wheeler sought to raise the issue of specific causation.
To the contrary, Foster Wheeler adamantly asserts that its motion for summary
judgment raised the issue of specific causation. We agree. Our reading of Foster
Wheeler’s motion for summary judgment clearly shows that Foster Wheeler
alleged that the Everetts could not prove that any potential asbestos exposure
experienced by Ms. Everett could be attributed to them. In its memorandum in 6 La. C.C.P. art 2002 provides in pertinent part:
A. A final judgment shall be annulled if it is rendered:
*** (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction. . .
12 support of the motion for summary judgment, Foster Wheeler explicitly asserted
“there is no genuine issue of material fact to try with respect to specific causation
and Plaintiffs’ claims against Foster Wheeler fail as a matter of law, warranting
their dismissal, with prejudice.”
“The requirement in an asbestos case that the plaintiff establish causation
has been characterized as the ‘premier hurdle.’” Steib, 20-0424, p. 10, 2021 WL
503240 at *5 (quoting Rando v. Anco Insulations Inc., 08-1163, 08-1169, p. 31
(La. 5/22/09), 16 So.3d 1065, 1088). “‘[N]otwithstanding the difficulty of proof
involved, a plaintiff’s burden of proof against multiple defendants in a long-latency
case, such as a tort claim for mesothelioma, is not relaxed or reduced because of
the degree of difficulty that might ensue in proving the contribution of each
defendant’s product to the plaintiff’s injury.’” Id. (quoting Rando 08-1163, 08-
1169, pp. 35-36, 16 So.3d at 1091). “At the summary judgment stage, a plaintiff
must submit specific evidence showing potential exposure to asbestos-containing
materials for which the defendant is responsible in order to defeat the defendant’s
motion for summary judgment.” Id. at p. 12, 2021 WL 503240 at *6 (citing
Thibodeaux v. Asbestos Corp., Ltd., 07-0617, p. 14 (La. App. 4 Cir. 2/20/08), 976
So.2d 859, 867).
Therefore, as Foster Wheeler pointed out in its motion for summary
judgment, it was incumbent upon the Everetts to demonstrate that not only was
there a genuine issue of material fact whether Mrs. Everett’s mesothelioma was
possibly caused by asbestos exposure, but also that the asbestos exposure was
directly attributable to Foster Wheeler. Although the burden of proof initially
rested with Foster Wheeler, once it pointed out there was a lack of factual support
13 for the Everetts’ allegations specific to Foster Wheeler, the burden shifted to the
Everetts to demonstrate otherwise (see La. C.C.P. art. 966(D)(1)).7
In determining whether a genuine issue of material fact exists, “[t]he court
may only consider those documents filed in support of or in opposition to the
motion for summary judgment and shall consider any documents to which no
objection is made.” La. C.C.P. art. 966(D)(2). Here, the Everetts provided a few,
short excerpts from the deposition testimonies of Dr. Larned, Mrs. Everett and Mr.
Everett. While those documents could arguably lead to the conclusion that there
was a genuine issue of material fact as to whether Mrs. Everett’s mesothelioma
was related to asbestos exposure, neither the Everetts’ argument nor the attached
documents pointed directly to any of Foster Wheeler’s products as being a
substantial factor in any alleged exposure to asbestos by Mr. or Mrs. Everett.
Accordingly, we conclude that there was no error in the district court’s finding that
no genuine issue of material fact existed as to Foster Wheeler’s liability, and it was
proper to grant its motion for summary judgment.
Motion for Continuance
The Everetts contend that the district court should have granted them a
continuance at the summary judgment hearing based upon the grounds that they
7 La. C.C.P. art. 966(D)(1) provides:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party 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.
14 were surprised by a new theory related to specific causation.8 This argument is not
persuasive. As we previously discussed, Foster Wheeler’s motion for summary
judgment explicitly set forth that the Everetts failed to present any evidence that
exposure to asbestos attributable to Foster Wheeler, if any, was a substantial factor
in the development of Mrs. Everett’s peritoneal mesothelioma.
Motion for New Trial
The Everetts aver that good ground exists for a new trial for two reasons: (1)
because of ill practices perpetrated by Foster Wheeler—again referencing their
claim that summary judgment was granted on an issue raised outside of Foster
Wheeler’s original motion for summary judgment; and (2) the Everetts provided an
extensive twenty-six (26) page memorandum in support of the motion for new trial
to which they attached twenty-three (23) exhibits addressing specific causation.
For the reasons stated above, we disagree with the Everett’s first assertion;
however, we find their second to hold some merit.
In the case sub judice, the Everetts’ motion for new trial was summarily
dismissed ex parte and without a contradictory hearing. This Court has recognized
that “‘there is no absolute right to a contradictory hearing on a motion for new
trial.’” Edgefield v. Audubon Nature Institute, Inc., 17-1050, p. 4 (La. App. 4 Cir.
9/12/18), 318 So.3d 65, 69 (quoting Waters v. Allstate Ins. Co., 98-0590 (La. App.
4 Cir. 3/31/99), 731 So.2d 1001, 1004), rev’d on other grounds, 18-1782 (La.
1/18/19), 261 So.3d 776 (Mem).9 Further, “‘a jurisprudential exception has
developed whereby a motion for new trial may be summarily denied in the absence 8 It is arguable whether the Everetts’ counsel’s request for twenty-four (24) hours to amend the
opposition constituted an actual motion for continuance. 9 The Supreme Court held that the court of appeal erred in converting relator’s timely appeal to
an application for supervisory writs and therefore vacated and set aside the judgment of the appellate court, and remanded it back to that court in order to consider the appeal on the merits.
15 of a clear showing in the motion of facts or law reasonably calculated to change the
outcome or reasonably believed to have denied the applicant a fair trial.’” Id. at
pp. 4-5, 318 So.3d at 69 (quoting Lopez v. Wal-Mart Stores, Inc., 94-2059, p. 9
(La. App. 4 Cir. 8/13/97), 700 So.2d 215, 220). “‘As a general rule, the trial court
may summarily deny a motion for new trial if the motion simply reiterates issues
thoroughly considered at trial.’” Id. at p. 5, 318 So.3d at 69 (quoting Autin v.
Voronkova, 15-0407, p. 5, 177 So.3d 1067, 1070).
It is quite clear from the record that throughout the proceedings, the
Everetts’ counsel failed to grasp that Foster Wheeler pointed out the lack of
evidence of specific causation in its motion for summary judgment, or that he was
required to address this issue at the summary judgment phase. This error was fatal
to the Everetts’ efforts to defend against Foster Wheeler’s summary judgment
motion. “La. C.C.P. art. 1973 provides the trial court with discretionary authority
to grant a new trial ‘in any case if there is good ground therefor, except as
otherwise provided by law.’” Warren v. Shelter Mutual Insurance Company, 16-
1647, p. 14 (La. 10/18/17), 233 So.3d 568, 579. “When the trial judge is
convinced by his examination of the facts that the judgment would result in a
miscarriage of justice, a new trial should be ordered pursuant to La. C.C.P. art.
1973.” Id. at pp. 14-15, 233 So.3d at 579
In Smith v. Alliance Compressors, the appellate court found that in failing to
grant a new trial under La. C. C. P. art. 1973, the district court abused its discretion
because it “focused on the technical application of the law, without giving due
regard to the inherent injustice the losing party would suffer because of the
unilateral negligence of [plaintiff’s] lawyer.” Smith v. Alliance Compressors, 05-
855, p. 9 (La. App. 3 Cir. 2/1/06), 922 So.2d 674, 680 (citing Lamb v. Lamb, 430
16 So.2d 51, 53 (La. 1983), wherein that court reasoned that “[w]hen the trial judge is
convinced by his examination of the facts that the judgment would result in a
miscarriage of justice, a new trial should be ordered.”). The Smith court went on to
explain that there is a great “need for the reviewing court to exercise particular
caution in examining the circumstances underlying judgments that summarily deny
the opportunity for a decision on the merits in an action due to the inherent
injustice that can be affected if the litigant is not responsible for the failure.” Id. at
p. 11, 922 So.2d at 681 (citing Hardy v. Kidder, 292 So.2d 575 (La. 1973)).
In the case sub judice, we hold that there were sufficient grounds for the
district court to hold a contradictory hearing on the motion for new trial rather than
summarily dismissing the motion. We further find that a potential miscarriage of
justice exists for the Everetts based upon their counsel’s error. It is unclear from
the record when the Everetts retained the services of Mr. Baril, the industrial
hygienist, but it is likely that the report he produced and which counsel attached to
the motion for new trial creates a genuine issue of material fact as to specific
causation. In fact, Foster Wheeler was well aware of Mr. Baril’s testimony because
it had participated in taking his deposition on April 7, 2022, one week before the
summary judgment hearing. Additionally, the other attached exhibits give a clearer
picture of Mr. Everett’s work history and potential exposure to asbestos. Our
review of the record in its entirety demonstrates that the record is replete with
documentation that could have been attached to the Everetts’ opposition to Foster
Wheeler’s motion for summary judgment rather than the mere twenty-four (24)
pages of deposition testimony excerpts. Notwithstanding that discovery was still
ongoing and the date of the summary judgment hearing was moved forward by two
weeks, it was the error of counsel in not properly identifying all of the allegations
17 to defend against which left the district court with no choice but to grant Foster
Wheeler’s motion for summary judgment.
However, as the appellate court emphasized in Smith, “it would serve an
injustice to allow a judgment resulting in the dismissal of an action to stand, in a
case in which reasonable reliance by a party upon a neglectful attorney caused, or
contributed to, the resulting decision.” Smith, 05-855, p. 12, 922 So.2d at 682.
“When the record of a suit discloses enough to satisfy the court that the whole
story of the case is not told, that essential facts have not been given in evidence and
important documents have been omitted, and that substantial justice cannot be
done between the parties in the state of the record as filed here, the court will, in its
discretion, in the interest of justice, remand the case.” Id. “[W]here an injustice is
done and substantial rights are lost through mere technicalities, it is our duty to
interfere.” Id. at p. 11, 922 So.2d at 681. Accordingly, we find the district court
abused its discretion when it summarily denied the Everetts’ motion for new trial;
therefore, we reverse the district court’s denial of the Everetts’ motion for new trial
and we remand this matter back to the district court for a contradictory hearing on
a motion for a new trial on Foster Wheeler’s motion for summary judgment.
Answers to Appeal
Foster Wheeler and Peter Kiewit each filed answers to this appeal seeking
reversal of the district court’s judgment, which overruled Union Carbide’s
objection to plaintiffs’ supplemental opposition. In its brief to this Court, Foster
Wheeler seeks to dismiss their appeal regarding the supplemental opposition on the
grounds that the opposition was only directed towards Union Carbide. We agree.
Accordingly, because Union Carbide has been dismissed from this action, we
dismiss these appeals as moot.
18 DECREE
For the foregoing reasons, we reverse the district court’s judgment granting
Peter Kiewit’s motion for summary judgment, affirm the district court’s judgment
in favor of Foster Wheeler’s motion for summary judgment, reverse the district
court’s denial of the Everetts’ motion for a new trial, dismiss Foster Wheeler’s and
Peter Kiewit’s Answer to Appeal, respectively, and remand this matter back to the
district court for a contradictory hearing on the motion for new trial on Foster
REVERSED IN PART; AFFIRMED IN PART; ANSWERS TO APPEAL DISMISSED AND REMANDED