Vedros v. Northrop Grumman et al

Filing 310

ORDER & REASONS: granting in part and denying in part 217 Defendant CBS Corporation, formerly known as Westinghouse Electric Corporation's Motion for Summary Judgment; FURTHER ORDERED that Plaintiffs' claims against Defendant Westinghou se based on a theory that Vedros was exposed to asbestos through turbines manufactured or distributed by Westinghouse are hereby DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiffs' claims against Defendant Westinghouse based on a theory t hat Vedros was exposed to asbestos through micarta manufactured or distributed by Westinghouse remain unaffected by this order. FURTHER ORDERED that the oral argument, currently set for Wednesday, March 26, 2014, is CANCELLED with respect to Rec. Doc. 217. FURTHER ORDERED that all other motions pending in the above-captioned matter remain unaffected by this order. Signed by Judge Carl Barbier on 3/17/14. (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 is a Motion for Summary Judgment filed by
Defendant CBS Corporation, formerly known as Westinghouse Electric
Corporation ("Westinghouse) (Rec. Doc. 217), as well as Plaintiffs'
Opposition (Rec. Doc. 238) and Westinghouse's Reply (Rec. Doc.
272). Having considered the motion, the parties’ submissions, the
record, and the applicable law, the Court finds, for the reasons
expressed below, that the Motion for Summary Judgment should be
GRANTED IN PART and DENIED IN PART.
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

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directly exposed to asbestos while she worked at Avondale. Before
her death, Vedros filed suit against many defendants, including
Westinghouse, and after Vedros's death, her children joined the
suit as plaintiffs.
PARTIES' ARGUMENTS
A. Turbines
Plaintiffs

allege

that

Westinghouse

manufactured

metal

turbines that were used at Avondale and that were specifically used
in Lykes vessels, upon which Vedros's father worked. Plaintiffs
allege that asbestos-containing insulation was attached to these
turbines. Plaintiffs do not appear to allege that Westinghouse
manufactured, sold, supplied, or distributed asbestos-containing
insulation, but Plaintiffs do allege that Westinghouse employees
were sometimes present and observed Avondale employees installing
asbestos-containing insulation onto or around the turbines, and
that Westinghouse employees themselves may have installed some
insulation in the turbines while at Avondale.
B. Micarta
Plaintiffs also allege that Westinghouse manufactured fire
resistant decorative micarta ("micarta"), which contained asbestos
and which was used extensively at Avondale by Hopeman Brothers
during the relevant time period. Specifically, Plaintiffs allege
that this micarta was used aboard the Lykes vessels upon which
Alton

Gros

worked.

Westinghouse
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does

not

appear

to

contest

Plaintiffs' contentions that it manufactured asbestos-containing
micarta and that it supplied micarta to Hopeman Brothers and/or
Avondale.
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©);
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.
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.
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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.
DISCUSSION
A. Turbines
The Court finds that, with respect to the turbines, Plaintiffs
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have

failed

to

manufactured,

present

sold,

sufficient

supplied,

or

evidence

that

distributed

Westinghouse

any

asbestos-

containing products to which Vedros was exposed. Plaintiffs only
allege

that

Westinghouse

manufactured

turbines,

not

that

Westinghouse manufactured any of the insulation or other asbestoscontaining products that were later attached to those turbines.
Counsel for Plaintiffs make a number of vague and conclusory
statements

in

the

Opposition

that

are

not

supported

by

the

affidavits or depositions to which Plaintiffs' Counsel cites. It
appears that, despite the vague and conclusory allegations of
Plaintiffs' Counsel, any asbestos-containing materials applied to
the Westinghouse turbines were applied by insulators employed by
Avondale, not by employees of Westinghouse. Based on the deposition
testimony, it appears that Westinghouse inspectors may have been
present during the installation of the Westinghouse turbines. This
is not sufficient to hold Westinghouse liable for the acts of
Avondale's insulators. It therefore appears that Plaintiffs' only
viable argument is that Westinghouse, as the manufacturer or
distributer

of

the

turbines,

should

be

held

liable

for

the

asbestos-containing materials that were manufactured, distributed,
and attached to the turbines by third parties.
For the same reasons that the Court cited in its Order of
March 13, 2014 (Rec. Doc. 309) regarding General Electric's similar
Motion for Summary Judgment (Rec. Doc. 204), the Court finds that
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Plaintiffs' claims against Westinghouse regarding the turbines
cannot

survive

Plaintiffs

summary

against

judgment.

Therefore,

Westinghouse

based

on

any

claims

by

Westinghouse's

manufacturing or distributing the turbines should be dismissed with
prejudice.

B. Micarta
With respect to Plaintiffs' claims against Westinghouse based
on Westinghouse's manufacturing micarta, the Court finds that
genuine issues of material fact are present which preclude summary
judgment.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motion for Summary Judgment
(Rec. Doc. 217) is GRANTED IN PART and DENIED IN PART.
IT

IS

FURTHER

ORDERED

that

Plaintiffs'

claims

against

Defendant Westinghouse based on a theory that Vedros was exposed to
asbestos

through

turbines

manufactured

or

distributed

by

Westinghouse are hereby DISMISSED WITH PREJUDICE.
IT

IS

FURTHER

ORDERED

that

Plaintiffs'

claims

against

Defendant Westinghouse based on a theory that Vedros was exposed to
asbestos

through

micarta

manufactured

or

distributed

by

Westinghouse remain unaffected by this order.
IT IS FURTHER ORDERED that the oral argument, currently set
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for Wednesday, March 26, 2014, is CANCELLED with respect to Rec.
Doc. 217.
IT IS FURTHER ORDERED that all other motions pending in the
above-captioned matter remain unaffected by this order.
New Orleans, Louisiana this 17th day of March, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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