Vedros v. Northrop Grumman et al

Filing 302

ORDER & REASONS: ORDERED that the Motions for Partial Summary Judgment filed by Avondale (Rec. Doc. 108 ) and the Avondale Interests (Rec. Doc. 109 ) are GRANTED. FURTHER ORDERED that Plaintiffs' claims against Avondale and the Avondale Interests based on theories of intentional tort, fraud, and conspiracy are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 3/7/14. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VEDROS, ET AL

CIVIL ACTION

VERSUS

NO: 11-1198

NORTHROP GRUMMAN SHIPBUILDING,
INC., ET AL

SECTION: J

ORDER AND REASONS
Before the Court are two essentially identical Motions for
Partial

Summary

Judgment

filed

by

Defendant

Northrop

Grumman

Shipbuilding, Inc. (hereinafter "Avondale") (Rec. Doc. 108) and
Defendants Albert L. Bossier, Jr., J. Melon Garrett, OneBeacon
America Insurance Company, American Employers Insurance Company,
James Bull, Roy Barkdull, C. Edwin Hartzman, Hettie "Dawes" Eaves,
Henry "Zac" Carter, and Ewing Moore (hereinafter "the Avondale
Interests") (Rec. Doc. 109). Also before the Court is an Opposition
to both motions (Rec. Doc. 126) filed by Plaintiffs, Sally Gros
Vedros, Lori Vedros Kravet, Valerie Vedros White, and Gerald Vedros
(hereinafter "Plaintiffs"), as well as a Reply filed by Avondale
and the Avondale Interests (Rec. Doc. 191). Having considered the
motion, the parties’ submissions, the record, and the applicable
law, the Court finds, for reasons expressed below, that both
Motions for Partial Summary Judgment should be GRANTED.

1

PROCEDURAL AND FACTUAL BACKGROUND
This action arises from the death of Sally Gros Vedros
("Vedros") due to mesothelioma. Alton Gros, Vedros's father, worked
at Avondale as a welder from 1943 to 1976, and Vedros claims to
have spent many years washing her father's work clothes, which
allegedly resulted in Vedros's secondary exposure to insulation
dust containing asbestos. Vedros also worked at Avondale from 1960
to 1963 in the purchase department, and she claims that she was
directly exposed to asbestos while she worked at Avondale. Before
her death, Vedros filed suit against many defendants, including
Avondale and the Avondale Interests (collectively, "Defendants").
After Vedros died, her children joined the suit as plaintiffs.
Defendants have filed the instant motions for partial summary
judgment on Plaintiffs' claims that are based on theories of
intentional tort, fraud, and conspiracy.
PARTIES' ARGUMENTS
A. Intentional Tort
Defendants contend that the issue of intent is appropriate for
resolution on summary judgment, but Plaintiffs argue that it is
not. Plaintiffs also submit that Defendants have not brought any
evidence that Avondale and its executives were not substantially
certain

that

its

practices

would

cause

Vedros

to

contract

mesothelioma, except for four affidavits that Defendants have
submitted, which Plaintiffs claim are improper summary judgment
2

evidence. Plaintiffs argue that Defendants were aware of the risks
associated with asbestos and with unsafe working conditions at
Avondale and that Defendants failed to remedy those conditions
despite knowledge of the risks. Defendants counter that awareness
of a risk does not rise to the level of intent that Plaintiffs must
prove to succeed on their intentional tort claim.
B. Fraud
Defendants argue that summary judgment should be granted in
their favor on Plaintiffs' fraud claim because Plaintiffs have not
brought evidence that Defendants told Vedros that asbestos was safe
or that Defendants intended to harm Vedros or obtain an unjust
advantage over her. Plaintiffs contend that Defendants' defrauded
Vedros when they remained silent instead of warning her about the
dangers of asbestos exposure of which Defendants were aware.
Plaintiffs also maintain that "defendants have not come forth with
any evidence whatsoever that they either did not know of the
hazards of asbestos ... or that they actually warned [Sally Vedros
and Alton Gros] instead of remaining silent ... ." (Rec. Doc. 126,
p. 28).
C. Conspiracy
Defendants argue that civil conspiracy is not an actionable
tort under Louisiana law, and therefore, Plaintiffs' action for
conspiracy must be dismissed. Plaintiffs submit that their petition
does not allege a claim for conspiracy and, therefore, summary
3

judgment is inappropriate on a claim which they did not state.
Defendants argue that given the standards of notice pleading, the
language of Plaintiffs' complaint could be construed to attempt to
state a claim for conspiracy and that if Plaintiffs believe they
have no cause of action for conspiracy, they should not object to
the dismissal of such a claim on summary judgment.
LEGAL STANDARD
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c));
Little v. Liquid Air Corp., 37 F.2d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers "all of the evidence in the record but refrains
from making credibility determinations or weighing the evidence."
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir. 2008). The Court will examine the evidence in
the light most favorable to the nonmoving party. Naquin v. Fluor
Daniel Servs. Corp., 935 F. Supp. 847, 848 (E.D. La. 1996) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). While
all reasonable inferences are drawn in favor of the nonmoving
party, a party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions. Little, 37 F.2d at 1075.
4

A Court ultimately must be satisfied that "a reasonable jury could
not return a verdict for the nonmoving party." Delta, 530 F.3d at
399.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence which would 'entitle it to a directed verdict
if the evidence went uncontroverted at trial.'" Int'l Shortstop,
Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
"showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.

5

DISCUSSION
A. Intentional Tort
Plaintiffs attempt to establish that Vedros's mesothelioma was
caused by exposure to asbestos as a result of a dangerous working
environment at Avondale, and to show that Defendants committed an
intentional tort. To prove that Defendants committed an intentional
tort, Plaintiffs must prove that Defendants either consciously
desired the result (Vedros's contracting mesothelioma), or else
knew that the result was "substantially certain to follow from
[their] conduct." Zimko v. Am. Cyanamid, 2003-0658 (La. App. 4 Cir.
6/8/05);

905

So.

2d

465,

475,

cert.

denied,

2005-2102

(La.

3/17/06), 925 So. 2d 538 (internal citations omitted). Plaintiffs
do not appear to argue that Defendants consciously desired that
Vedros

contract

mesothelioma

but

instead

argue

that

Vedros's

mesothelioma was substantially certain to follow from Defendants'
conduct.
Substantial

certainty

"requires

more

than

a

reasonable

probability that an injury will occur," and Plaintiffs must prove
that Vedros's contracting mesothelioma was "inevitable or incapable
of

failing."

Reeves

v.

Structural

Pres.

Sys.,

98-1795

(La.

3/12/99); 731 So. 2d 208, 213 (internal citations omitted). It will
not be sufficient for Plaintiffs to show that Defendants had
knowledge that their practices were dangerous and created a high
probability

that

someone

would
6

eventually

be

injured.

Id.

Defendants' "mere knowledge and appreciation of a risk does not
constitute intent, nor does reckless or wanton conduct." Id.
(internal citations omitted). Defendants' "belie[f] that someone
may, or even probably will, eventually get hurt if a workplace
practice is continued does not rise to the level of intentional
tort, but instead falls within the range of negligent acts ... ."
Id. at 214. Therefore, if Plaintiffs can only show that Vedros's
contracting mesothelioma was a "possibility or risk," their claim
is in negligence and not in the realm of intentional tort. Id. at
212. To prove a claim in the realm of intentional tort, Plaintiffs
would

have

to

prove

that

Defendants'

"conduct

[went]

beyond

knowingly permitting a hazardous work condition to exist, ordering
an employee to perform an extremely dangerous job, or willfully
failing to furnish a safe place to work ... ." Zimko, 905 So. 2d at
477 (internal citations omitted). It will be insufficient for
Plaintiffs to merely show that Defendants failed to provide a safe
workplace

or

to

correct

unsafe

working

conditions

or

that

Defendants failed to provide requested safety equipment. Id.
Plaintiffs argue that Defendants were aware of the risks
associated with asbestos and with the unsafe working conditions at
Avondale and that Defendants failed to remedy those conditions
despite their knowledge of the risks. Defendants counter that an
awareness of risk does not rise to the level of intent that
Plaintiffs must prove. The Court agrees with Defendants. Even

7

considering the facts in the light most favorable to Plaintiffs1
and assuming that Defendants were aware that there was a major
risk,

or

even

a

probability,

that

Vedros

would

contract

mesothelioma, Plaintiffs have failed to bring sufficient evidence
whereby a reasonable jury could conclude that Vedros's contracting
mesothelioma was "inevitable or incapable of failing" and was thus
substantially certain to result from Defendants' conduct. In fact,
it has been established that "it is [not] common human experience
... that mesothelioma is known certainly or inevitably to follow
from asbestos exposure." Zimko, 905 So. 2d at 479. Therefore,
Plaintiffs'

claim

against

Defendants

lies

in

the

realm

of

negligence, not in the realm of intentional tort. For these
reasons, the Court finds that Plaintiffs' intentional tort claims
against Avondale and the Avondale Interests should be dismissed
with prejudice.
B. Fraud
To succeed on a tort claim for fraud, Plaintiffs must prove
that: (1) Defendants misrepresented a material fact, (2) with the
intent

to

deceive,

and

(3)

caused

1

justifiable

reliance

and

The Court finds that it may determine the issue of intent on summary
judgment in this case. Summary judgment is generally disfavored when issues of
intent or state of mind are involved. Int'l Shortstop, Inc. v. Rally's, Inc., 939
F.2d 1257, 1265-66 (5th Cir. 1991). However, if a court draws every reasonable
inference in favor of the nonmoving party, summary judgment can be appropriate
where the nonmoving party has failed to present evidence whereby a reasonable
jury could find in its favor on the issue of intent. Id. at 1266. Summary
judgment is especially appropriate where, as here, Plaintiffs face such a
daunting burden to prove that Vedros's mesothelioma was substantially certain to
result from Defendants' conduct. See id. (internal citations omitted).

8

resultant injury. Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619,
627 (5th Cir. 1999). Plaintiffs must show that Defendants either
intended that their misrepresentation would induce Vedros to take
action that involved an unreasonable risk of harm, or else realized
that their misrepresentation would be likely to induce such action.
Id.
Plaintiffs argue that "defendants have not come forth with any
evidence whatsoever that they either did not know of the hazards of
asbestos ... or that they actually warned [Sally Vedros and Alton
Gros] instead of remaining silent ... ." (Rec. Doc. 126, p. 28).
Plaintiffs' argument is based on a fundamental misunderstanding of
the shifting burdens of proof involved in the Court's determination
of this motion for summary judgment. Plaintiffs would bear the
burden of proof at trial to establish all of the elements of a
fraud claim, including the fact that Defendants remained silent
about risks of asbestos about which they were aware, and with the
intent to deceive Vedros. Because Plaintiffs would bear the burden
of proof at trial, Defendants may satisfy their burden on this
motion for summary judgment by merely pointing out that the
evidence in the record is insufficient with respect to any element
of the fraud claim. Defendants have done just that here. The burden
then shifts to Plaintiffs to set out facts showing that a genuine
issue of material fact exists such that a reasonable jury could
conclude that all of the elements of a fraud claim are met.

9

Plaintiffs have failed to submit sufficient evidence and have thus
failed to satisfy their burden of proof. Therefore, Plaintiffs'
fraud claims against Avondale and the Avondale Interests should be
dismissed with prejudice.
C. Conspiracy
There

is

no

substantive

tort

for

civil

conspiracy

in

Louisiana. Ross v. Conoco, Inc., 2002-0299 (La. 10/15/02); 828
So.2d 546, 551-52. Therefore, to the extent that Plaintiffs'
complaint attempts to state a cause of action for conspiracy, their
conspiracy claims against Avondale and the Avondale Interests
should be dismissed with prejudice.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motions for Partial Summary
Judgment

filed by Avondale

(Rec. Doc. 108)

and the Avondale

Interests (Rec. Doc. 109) are GRANTED.
IT IS FURTHER ORDERED that Plaintiffs' claims against Avondale
and the Avondale Interests based on theories of intentional tort,
fraud, and conspiracy are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 7th day of March, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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