Vedros v. Northrop Grumman et al

Filing 453

ORDER & REASONS: Motions for Partial Summary Judgment, 415 , 418 , 419 , 420 are GRANTED as set forth in document; FURTHER ORDERED that the Motion for Leave to Reply is DENIED as moot (Rec. Doc. 439). Signed by Judge Carl Barbier on 6/8/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

VEDROS

CIVIL ACTION

VERSUS

NO: 11-1198

NORTHROP GRUMMAN ET AL.

SECTION: “J” (4)

ORDER & REASONS
Before
Judgment

on

Northrop

the

Grumman

Court

Plaintiffs’

are

Motions

for

Claim

for

Lejeune

Shipbuilding,

Inc.

(n/k/a

Partial
Damages

Summary
filed

Huntington

by

Ingalls

Incorporated, f/k/a Northrop Grumman Ship Systems, Inc., f/k/a
Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc., f/k/a
Avondale

Marine

Ways,

Inc.)(“Avondale”)(Rec.

OneBeacon

America

Insurance

Company

and

Doc.

American

415);

Employers

Insurance Company, as alleged insurers of Eagle, Inc. (“Eagle’s
Insurers”)(Rec. Doc. 418); McCarty Corporation (“McCarty”)(Rec.
Doc. 419); and Eagle, Inc. (“Eagle”)(Rec. Doc. 420)

as well as

Plaintiffs Gerald Vedros, Lori Vedros Kravet, and Valerie Vedros
White’s opposition thereto. (Rec. Doc. 433) Having considered
the motion and memoranda of the parties, the record, and the
applicable

law,

the

Court

finds

that

the

motions

should

be

GRANTED for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
The Court is familiar with the facts of the case and so
will provide only a brief recitation here. 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

resulted

in

her

father's

Vedros's

work

secondary

clothes,

exposure

to

which

allegedly

insulation

dust

containing asbestos. Vedros also worked at Avondale from 1960 to
1963 in the purchasing 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, and
after her death, her children joined the suit as Plaintiffs. In
their

First

Amended

and

Supplemental

Petition,

Plaintiffs

asserted a claim for the “mental pain and anguish [that they]
endured from watching the suffering and death of their mother,”
among

others.

See

(Rec.

Doc.

57,

p.

8).

Although

Plaintiffs

filed suit in state court, Defendants removed the matter to this
Court on May 20, 2011.
Avondale filed its Motion for Partial Summary Judgment on
Plaintiffs’ Claim for Lejeune Damages (Rec. Doc. 415) on May 13,
2015. Eagle’s Insurers (Rec. Doc. 418), McCarty (Rec. Doc. 419),
and Eagle (Rec. Doc. 420) followed suit on May 15, 2015. On May
25, 2015, Plaintiffs opposed the motions. (Rec. Doc. 433)
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits

2

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.3d 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).

All

reasonable

inferences

are

drawn

in

favor

of

the

nonmoving party, but a party cannot defeat summary judgment with
conclusory allegations or unsubstantiated assertions. Little, 37
F.3d

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.
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

3

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
showing

or

that

referring
a

genuine

to

evidence,

issue

set

exists.

out

See

specific

id.

at

facts

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.
PARTIES’ ARGUMENTS AND DISCUSSION
Avondale,

Eagle’s

Insurers,

McCarty,

and

Eagle

(collectively, “movants”) all argue that Plaintiffs’ claim for
Lejeune damages must be dismissed. Movants generally argue that
Plaintiffs cannot establish the elements for a Lejeune claim,
because Plaintiffs did not observe any traumatic accident or
come

upon

the

scene

soon

after

such

an

accident.

Plaintiffs

counterargue that mental anguish damages are available here as
established

by

Coates

v.

AC&S,

1994).

4

844

F.

Supp.

1126

(E.D.

La.

The Louisiana Supreme Court recognized in 1990 a cause of
action for the recovery of damages for mental anguish arising
from

witnessing

serious

injury

to

a

third

party

of

close

relation against the party who negligently caused that third
party relative’s injury. See Lejeune v. Rayne Branch Hosp., 556
So.

2d

559

(La.

1990).

In

1991,

the

Louisiana

Legislature

delineated the very limited circumstances under which a claimant
is entitled to bystander damages when it passed Louisiana Civil
Code

article

2315.6,

which

largely

codified

the

holding

of

Lejeune. See LA. CIV. CODE art. 2315.6; 12 La. Civ. L. Treatise,
Tort

Law

§

28:5

(2d

ed.).

Therein,

the

Legislature

clearly

provides that “[d]amages suffered as a result of mental anguish
or emotional distress for injury to another shall be recovered
only

in

accordance

with

this

Article.”

Id.

Since

that

time,

courts have emphasized that a claimant for bystander recovery
must either view the accident giving rise to his or her close
relative 1 or come upon the scene of the accident soon thereafter.
See, e.g., Trahan v. McManus, 1997-1224 (La. 3/2/99), 728 So. 2d
1273. The court in Trahan in particular stressed that there must
be

a

“temporal

proximity

between

the

tortious

event,

the

victim’s observable harm, and the plaintiff’s mental distress
arising from an awareness of the harm caused by the event.”
1

The classes of individuals who may assert claims for bystander damages are
limited to the spouse, children, grandchildren, parents, siblings, or
grandparents of the party who suffered the physical injury. See LA. CIV. CODE
art. 2315.6.

5

Trahan, 728 So. 2d at 1279. Indeed, “Recovery of damages for
mental

anguish

has

almost

never

been

extended

to

one

who

observed the victim's suffering at a place other than where the
injury-causing event occurred or at a time not closely connected
to the event.” Trahan, 728 So.2d at 1279.” Here, even assuming
that the alleged negligent acts could give rise to a claim for
bystander damages, Plaintiffs allege only that they witnessed
“the progression of the mesothelioma,” but not the acts giving
rise to it. (Rec. Doc. 433, p. 5) Therefore, under the facts of
this

case,

the

Court

concludes

that

Plaintiffs

lack

a

valid

claim for bystander damages under Lejeune and Louisiana Civil
Code article 2315.6. 2 Accordingly,
IT IS HEREBY ORDERED that the motions (Rec. Docs. 415, 418,
419, 420) are GRANTED.
IT IS FURTHER ORDERED that the Motion for Leave to Reply is
DENIED as moot. (Rec. Doc. 439)
New Orleans, Louisiana this 8th day of June, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

2

For the same reasons announced in Comardelle v. Pennsylvania General Ins.
Co., No. 13-6555, 2014 WL 5762841, at *3 (E.D. La. Nov. 3, 2014)(Africk, J.),
Coates is unpersuasive and inapplicable here.

6