Phillips et al v. ABB Combustion Engineering, Inc. et al

Filing 85

ORDER & REASONS denying without prejudice 67 and 69 Motions for Summary Judgment. Signed by Judge Martin L.C. Feldman on 10/23/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROL PHILLIPS, ET AL.

CIVIL ACTION

v.

NO. 13-594

ABB COMBUSTION ENGINEERING, INC., ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court are two motions:

(1) CenterPoint Energy

Inc.'s motion for summary judgment on peremption and prescription;
and (2) Associated Electric Cooperative, Inc.'s motion for summary
judgment.

For the reasons that follow, the motions are DENIED

without prejudice.
Background
This lawsuit arises from a widow’s claim that her husband's
exposure to asbestos while working for several companies over many
years caused him to develop mesothelioma and, ultimately, his
death.
Mr. Phillips died on August 4, 2011.

Several days later

Timothy Madden of King Krebs & Jurgens, PLLC, counsel for Ms.
Phillips, by separate letters, notified CenterPoint Energy, Inc.
and Associated Electric Cooperative, Inc. that Mr. Phillips died on
August 4, 2011 and that his illness and death was caused by
exposure to asbestos while he worked for, among other employers,

1

CenterPoint Energy and AECI.

On November 26, 2012 Carol Phillips

(wife of Robert Lee Phillips) and the Estate of Robert Lee Phillips
sued AECI; ABB Combustion Engineering, Inc.; CenterPoint Energy;
Nebraska Public Power District; and Grand Island City in Louisiana
state court.

On April 2, 2013 Nebraska Public Power, with the

other defendants’ consent, removed the case to this Court, invoking
the Court’s diversity jurisdiction.1
The plaintiffs allege that Mr. Phillips, who lived in St. John
Parish, Louisiana before his death, was exposed to asbestos while
he worked for each of the defendants.

Mr. Phillips' employment

time-line:
•
•
•
•
•

Phillips worked for ABB Combustion Engineering from 1956
to 1962.
Phillips worked for CenterPoint Energy from 1962 to 1968.
Phillips worked for City of Grand Island from 1969 to
1974.
Phillips worked for Nebraska Public Power District from
1974 to 1977.
Phillips worked for AECI from 1977 to 1980.

Plaintiffs allege that Mr. Phillips “worked with and/or was exposed
to asbestos containing products while working at certain premises

1

The plaintiffs allege complete diversity of citizenship.
Carol Phillips is domiciled in St. John Parish, Louisiana. ABB
Combustion Engineering, Inc. is a corporation organized in Delaware
with its principal place of business in Connecticut. CenterPoint
Energy is a corporation organized in Texas with its principal place
of business in Texas. AECI is a corporation organized in Missouri
with its principal place of business in Missouri. Nebraska Public
Power is a corporation organized in Nebraska with its principal
place of business in Nebraska.
City of Grand Island is a
corporation organized in Nebraska with its principal place of
business in Nebraska.
2

owned,

operated

or

controlled

by

[each

defendant].”

Each

defendant, the plaintiffs allege, “knew or should have known
through

industry

and

medical

studies...of

the

health

hazards

inherent in the asbestos containing products they were using.”
Finally, the plaintiffs charge that the defendants “ignored or
concealed such information” from Mr. Phillips, and as a result of
his

exposure,

mesothelioma

Mr.

and

Phillips

other

suffered

physical

and

from
mental

asbestos-related
injuries.

The

plaintiffs seek damages based on negligence, premises liability,
and wrongful death and survival claim theories.
On April 30, 2013 Grand Island and Nebraska Public Power
requested dismissal of the plaintiffs' claims for lack of personal
jurisdiction and, alternatively, for failure to state a claim. The
Court granted those motions for lack of personal jurisdiction,
dismissing the plaintiffs' claims against those two defendants. On
June 19, 2013 the Court denied AECI's motion for a more definite
statement, but granted its request to dismiss the Estate of Robert
Lee Phillips as a plaintiff because Louisiana law prohibits the
decedent's estate from recovering for the pleaded claims.
CenterPoint

Energy

and

AECI

now

seek

summary

relief,

dismissing the remaining plaintiff's claims against them as timebarred.
I.
Federal Rule of Civil Procedure 56 instructs that summary

3

judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

4

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II.
CenterPoint Energy and AECI seek summary relief on the ground
that the plaintiff's tort claims are time-barred by application of
Louisiana's one-year prescriptive period for wrongful death actions
and one-year peremptive period for survival actions; the defendants
submit that Mr. Phillips died more than one year before Ms.
Phillips filed this lawsuit in state court. Although the plaintiff
concedes that her claims are time-barred if Louisiana law applies,
she counters that the substantive law of Texas governs her claims
against CenterPoint, and the substantive law of Missouri governs
her claims against AECI, and she points out that if the statute of
limitations applicable to her claim is derived from Texas or
Missouri, her claims are timely because these states provide a two
and three year statute of limitations, respectively; thus, she
identifies a conflict between Louisiana, and Texas and Missouri
law, and requests that the Court disregard Louisiana's one-year
prescriptive

and

peremptive

periods

due

to

"compelling

considerations of remedial justice."
A.
In its reply papers, AECI contends that the plaintiff should

5

be

judicially

estopped

from

arguing

that

Louisiana

law

is

inapplicable to her claims because, during motion practice, the
plaintiff has stated that she brought this lawsuit pursuant to
Louisiana law; the plaintiff has argued against the application of
another state's law; and that the plaintiff has conceded to this
Court's application of Louisiana law in dismissing the Estate of
Robert Phillips from the lawsuit.

The plaintiff counters that she

did not invoke any state's laws in her state court petition because
counsel was cognizant of the choice-of-law issues presented by Mr.
Phillips' employment history.
A plaintiff is not required to plead a choice-of-law issue
when the case is filed, but she must raise it "in time for it to be
properly considered."

See Kucel v. Walter E. Heller & Co., 813

F.2d 67, 74 (5th Cir. 1987).

Although there has been some motion

practice, in which two defendants were dismissed for lack of
personal

jurisdiction,

and

one

of

the

party

plaintiffs

was

dismissed on Louisiana law grounds, the Court finds that the
plaintiff has raised the choice-of-law issue in time for it to be
properly considered.

The parties have apparently not yet engaged

in discovery, and the scheduling order calls for a pretrial
conference on May 16, 2014 and a jury trial on June 9, 2014.

This

case is in its very early stages and, while it is preferable for
choice-of-law issues to be raised as soon as possible, there is no
suggestion that the plaintiff delayed the issue in bad faith.

6

Nor

has it been established that the plaintiff deliberately failed to
disclose the choice-of-law issue to opposing counsel (indeed, an
issue the Court, or opposing counsel, may raise), to her opponents'
disadvantage, such that the equitable doctrine of judicial estoppel
might apply.

Cf. Republic of Ecuador v. Connor, 708 F.3d 651, 654

(5th Cir. 2013)("a party may be estopped from asserting a position
in a judicial proceeding where it has previously persuaded a court
to adopt a clearly contrary position to the disadvantage of an
opponent")(citations omitted).2
B.
Sitting in diversity, this Court applies the choice-of-law
rules of the forum state to identify which state's substantive law
applies.

Marchesani v. Pellerin-Milnor Corp., 269 F.3d 481 (5th

Cir. 2001)(citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938)).

Louisiana choice-of-law rules control

this Court's determination of whether Louisiana law, or the laws of
the

States

of

employment

(Texas

and

Missouri),

govern

the

plaintiff's tort claims against CenterPoint and AECI.
AECI contends, by way of reply papers, that application of
Louisiana's conflict of law and prescription principles compels a
finding that the plaintiff's lawsuit is time-barred. AECI proffers

2

Nevertheless, the fact that
Louisiana law of the right of recovery
with no objection from either side is of
may ultimately be of serious concern to
7

in prior motion practice
of an estate was applied
interest to the Court and
the plaintiff's case.

no analysis as to which state's (or states') substantive law
applies,3 but submits that the plaintiff is not able to establish
that "maintenance of the action in this state is warranted by
compelling considerations of remedial justice", which must be
established

in

order

for

the

Court

to

disregard

Louisiana's

prescriptive and peremptive periods.4
While it is true that most plaintiffs fail to satisfy the

3

The Court notes that article 3543 of the Louisiana Civil
Code articulates the choice-of-law rules for delictual obligations
concerning issues pertaining to regulation of conduct or safety.
4

Louisiana's conflict of law provision on liberative
prescription, set forth in article 3549 of the Louisiana Civil
Code, provides:
Art.
3549.
Law
governing
liberative
prescription
A.
When the substantive law of this
state would be applicable to the merits of an
action brought in this state, the prescription
and peremption law of this state applies.
B. When the substantive law of another
state would be applicable to the merits of an
action brought in this state, the prescription
and peremption law of this state applies,
except as specified below:
(1) If the action is barred under the
law of this state, the action shall be
dismissed unless it would not be barred in the
state whose law would be applicable to the
merits and maintenance of the action in this
state
is
warranted
by
compelling
considerations of remedial justice.
....
The plaintiff urges the Court to disregard Louisiana's prescriptive
and peremptive periods; in so urging, the plaintiff invokes the
exception codified in article 3549(B)(1).
It is Ms. Phillips'
position that compelling considerations of remedial justice warrant
the application of the longer limitations periods provided by Texas
and Missouri, respectively.
8

"compelling

considerations

of

remedial

justice"

exception

sufficient for courts to disregard Louisiana's prescriptive and
peremptive provisions,5 the Court finds that the choice-of-law
determination would be advanced by resort to the summary judgment
procedure contemplated by Rule 56(a).

Here, because the plaintiff

for the first time raised the choice-of-law issue by way of her
opposition

papers,

only

one

of

the

movants

here,

AECI,

has

responded to the choice-of-law issue.
The summary judgment device best-serves the Court and the
litigants when a movant identifies a claim on which summary relief
is sought, and shows that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a
matter of law; this gives the nonmovant an opportunity to point to
record evidence demonstrating a genuine dispute as to a material
fact.

But when the predicate for granting judgment as a matter of

law -- indeed, the very law that applies -- is first disputed by
the nonmovant in her response, surprising the movant and forcing
the movant to assert new arguments and submit new evidence by way

5

Indeed, as AECI points out, only two cases have found
sufficient compelling considerations to maintain the suit. See
McGee v. Arkel Int'l, LLC, 671 F.3d 539, 548 (5th Cir. 2012); Smith
v. ODECO (UK), Inc., 615 So. 2d 407 (La. App. 4 Cir. 1993), writ
denied, 618 So. 2d 412 (La. 1993). Furthermore, the Fifth Circuit
has observed that "[i]n cases where plaintiffs have litigated their
claims in Louisiana by choice, not by necessity, claims of
'compelling considerations' warranting maintenance of the suit in
Louisiana have been consistently rejected." Brown v. Slenker, 220
F.3d 411, 420 (5th Cir. 2000).
9

of reply, the utility of the device has been patently undermined.
Here, the defendants submitted and proved that, if Louisiana law
applies, the plaintiff's claims are time-barred. But the plaintiff
raises a serious choice-of-law issue that is, at best, awkward to
resolve when raised by way of opposition memorandum and responded
to, by only one movant, by way of reply.
Accordingly, IT IS ORDERED: that the defendants' motions for
summary judgment are DENIED without prejudice.6
New Orleans, Louisiana, October 23, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

6

It is not the Court's intention to discourage any party
from seeking summary judgment.
Rather, any party that seeks
summary relief must more adequately brief the choice-of-law issue,
including, among others, the apparent issue of whether an
alternative forum is available, and must support its position with
competent evidence.
10