Lucas v. Hopeman Bros., Inc.

60 So. 3d 690, 2010 La.App. 4 Cir. 1037, 2011 La. App. LEXIS 227, 2011 WL 543309
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2011
DocketNo. 2010-CA-1037
StatusPublished
Cited by13 cases

This text of 60 So. 3d 690 (Lucas v. Hopeman Bros., Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucas v. Hopeman Bros., Inc., 60 So. 3d 690, 2010 La.App. 4 Cir. 1037, 2011 La. App. LEXIS 227, 2011 WL 543309 (La. Ct. App. 2011).

Opinion

MAX N. TOBIAS, JR., Judge.

Iiln this wrongful death action, the plaintiffs appeal the trial court’s granting of summary judgment in favor of the defendants, Hopeman Brothers, Inc. and Charles N. Johnson, Jr. (collectively “Hopeman Brothers”); CBS Corporation (“Westinghouse/CBS”);1 Foster Wheeler, LLC (“Foster Wheeler”); and Reilly Benton Company, Inc. (“Reilly Benton”), and dismissing the plaintiffs’ claims against them with prejudice.2 For the following reasons, we affirm the trial court’s judgment in part, reverse in part, and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Charlotte Lucas, Ron Lucas, Gilbert Lucas, and Adam Lucas (collectively, the “Lucases”), in this matter are, respectively, the spouse and adult children of the deceased, Lois G. Lucas (the “decedent”). The Lucases filed this suit in January 2004 alleging that the decedent contracted asbestosis3 from his occupational exposure to asbestos-containing materials from various contractors, | ¿product manufacturers, and product suppliers during his employment at Avondale Ship[693]*693yards, Inc. (“Avondale”) as a pipefitter helper from 1966 to 1975, and subsequently died from the disease in January 2003.

Discovery in this matter ended on 25 December 2009. Defendants, Hopeman Brothers, Westinghouse/CBS, Foster Wheeler, and Reilly Benton, separately filed motions for summary judgment seeking dismissal from the case contending that, despite the passage of four years from the inception of this suit, the plaintiffs had been unable to put forth evidence demonstrating that they will be able to satisfy their burden of proving at trial that Lucas worked with or around products sold and/or supplied by any one of them that was a substantial contributing factor to his alleged development of asbestosis.

In opposition to the defendants’ respective motions for summary judgment, the Lucases offered the following items of evidence:

1. Social Security records of the decedent, Lois G. Lucas.
2. A Letter dated 26 December 1975 by decedent’s physician, Dr. Edward J. Punery.
8.The decedent’s Petition for Workmen’s Compensation Benefits filed in 1976.
4. A judgment dated 24 March 1977 authorizing the parties to enter into a compromise settlement and agreement for workmen’s compensation benefits.
5. The decedent’s death certificate.
6. A Disputed Claim for Compensation form dated 12 January 2004.
7. The Petition for Damages and Wrongful Death filed by the plaintiffs.
[s8. A Notice of Hearing and Pre-Hearing Order dated 3 December 2004 issued by the Administrative Law Judge of the U.S. Department of Labor.
9.An Agreed Compensation Order dated 28 June 2005 issued by the Administrative Law Judge of the U.S. Department of Labor.
10. A Notice of Trial issued on 4 March 2009 in the instant matter.
11. A Notice of Signing of Judgment signed on 11 September 2009.
12. The Motion for Summary Judgment filed by Hopeman Brothers, Inc. and Charles N. Johnson, Jr. and Statement of Uncontested Material Facts.
13. The Hopeman Brothers, Inc.’s responses to the plaintiffs’ requests for admissions and interrogatories.
14. The sworn testimony of Charles N. Johnson, Jr. taken on 5 February 1996 and 7 February 1996 in the matter of “Re: Ferrel Waguespack, Sr. v. AMEC Plant Services, Inc., Fluro-Daniel Services Corp.,” Office of Workers’ Compensation, State of Louisiana, No. 94-07469, District 05.
15. The reports of Dr. James Milette dated 3 December 1992 and 26 September 1995.
16. The sworn testimony of Dennis J. Perk taken on 18 November 1996 in the matter of “Jefferson Parish Asbestos Cases (MLF) v. Eagle, Inc., et al,” Twenty-Fourth Judicial District, Parish of Jefferson, No. 462-477.
17. The sworn testimony of Wilton David Mouton taken on 3 December 2008 in the matter of “Wilton David Mouton v. Flexitallic, Inc., et al,” Civil District Court for the Parish of Orleans, No. 95-13330.
18. The sworn testimony of Wilton David Mouton taken on 3 Decern-[694]*694ber 2008 in the matter of “Charlotte Lucas, et al v. Hopeman Brothers, Inc., et al,” Civil District Court for the Parish of Orleans, No. 04-1127.
19. The sworn testimony of John Bowman taken on 20 September 1995 in the matter of “In re Asbestos Plaintiffs, et al v. Borden, Inc., et al,” Civil District Court for the Parish of Orleans, no. 91-18397, Flight Number 5.
20. The sworn testimony of John Bowman taken on 25 January 1996 in the matter of “Ferrell Waguespack, Sr. v. AMEC Plant Services, et al.”
21. The sworn testimony of Warren K. Watters taken on 2 August 1996 in the matter of “In re Asbestos Plaintiffs, et al v. Borden, Inc., et al,” Civil 4District Court for the Parish of Orleans, No. 91-18397, Flight Number 6.
22. Various correspondence between Foster Wheeler Corporation and Avondale Shipyards occurring between 1964 and 1967 with attached American Bureau of Shipping Certificates for equipment, including piping, tubing, and other Foster Wheeler equipment to become part of the boilers on vessels at Avon-dale.
23. The sworn testimony of Golzie J. Danos, Jr. taken on 22 March 2004 in the matter of “Golzie and Faye Danos v. Avondale Industries, Inc., et al.”
24. The sworn testimony of Rudy J. Walker, Sr. taken on 8 May 2003 in the matter of “Rudy and Joan Walker v. Avondale Industries, Inc.”
25. The sworn testimony of Luther Dempster taken on 24 March 1994 in the matter of “Luther Dempster, et al v. Avondale Industries, Inc. et al,” Civil District Court for the Parish of Orleans, No. 93-7438.
26. A partial transcript of the proceedings held on 19 March 1996 in the matter of “In re: Asbestos Plaintiffs only on Behalf of Plaintiff, Merlin Charlot v. Borden, Inc., et al,” Civil District Court for the Parish of Orleans, No. 91-18397 c/w 93-16575.
27. The sworn testimony of Lawrence P. Delhommer taken on 12 July 1984 and 10 December 1986 in the matter of “Lawrence P. Delhommer v. Johns-Manville Corporation, et al,” Civil District Court for the Parish of Orleans, No. 83-12872.
28. An unofficial partial transcript of the proceedings in connection with the trial on the merits held on 12, 14 and 16 January 2004 1/12/04 in the matter of “Gerald Dufrene, et al v. Avondale Industries, Inc., et al,” Civil District Court for the Parish of Orleans, No. 00-1941.
29. The sworn testimony of Steve Du-frene taken on 4 August 1997 in the matter of “Steve J. Dufrene and Charlene T. Dufrene v. Avondale Industries, Inc., et al,” Civil District Court for the Parish of Orleans, No.

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60 So. 3d 690, 2010 La.App. 4 Cir. 1037, 2011 La. App. LEXIS 227, 2011 WL 543309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-hopeman-bros-inc-lactapp-2011.