Smith et al v. Union Carbide Corporation et al
Filing
109
ORDER AND REASONS. It is ORDERED that Defendants' Motions for Summary Judgment (Rec. Docs. 66 , 71 , 73 ) are GRANTED IN PART. It is FURTHER ORDERED that Defendants' motions are GRANTED with respect to any negligence claim Plaintif f may have raised that is based upon vicarious liability. It is FURTHER ORDERED that defendants' motions are GRANTED with respect to Plaintiff's strict liability claims. It is FURTHER ORDERED that Defendants' motions are DENIED regarding Plaintiff's independent negligence claims. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SMITH
CIVIL ACTION
VERSUS
NO: 13-6323
UNION CARBIDE CORP., ET AL.
SECTION: "J" (5)
ORDER AND REASONS
Before the Court are three Motions for Summary Judgment
filed by Defendants Union Carbide Corporation (Union Carbide)
(Rec. Doc. 66), Ethyl Corporation (Ethyl) (Rec. Doc. 71), and Dow
Chemical Company (Dow Chemical) (Rec. Doc. 73), Plaintiff Miriam
P. Smith's oppositions thereto (Rec. Docs. 77, 78, 79), and
Defendants' replies. (Rec. Docs. 98, 101, 103) Having considered
the
motions
and
memoranda
of
counsel,
the
record,
and
the
applicable law, the Court finds that Defendants' motions should
be GRANTED IN PART for the reasons set forth more fully below.
FACTS AND PROCEDURAL HISTORY
This matter arises out of a state law tort suit wherein
Walter Hanson Smith, Jr. (Mr. Smith) alleged that he developed
mesothelioma as a result of his exposure to asbestos in varying
locations across the Gulf Coast, including a few job sites in
Louisiana. Mr. Smith filed suit in Civil District Court for the
Parish of Orleans on November 2, 2012. Shortly after the suit
commenced, Mr. Smith passed away and his wife, Miriam P. Smith
(Mrs. Smith), was substituted as Plaintiff.
Four
of
the
original
defendants
in
this
matter
were
Louisiana citizens: Taylor-Seidenbach, Inc. (Taylor), Eagle, Inc.
(Eagle), McCarty Corp. (McCarty), and Maryland Casualty Insurance
Company (Maryland). Following the dismissals of Eagle, McCarty,
and
Maryland,
Defendants
removed
the
matter
to
this
Court.1
Defendants asserted that Plaintiff improperly joined Taylor, the
sole remaining Defendant with Louisiana citizenship. Plaintiff
disagreed and filed a Motion to Remand, which this Court denied.
Plaintiff subsequently settled with Taylor.
The
remaining
Defendants,
Union
Carbide,
Ethyl,
and
Dow
Chemical, are property owners on whose premises Mr. Smith worked
as a pipe insulator. Mr. Smith was not a direct employee of any
of the remaining Defendants. Rather, he was a union member who
was hired by various contractors to perform work on Defendants'
premises.
Although
Mr.
Smith
was
not
deposed
prior
to
his
passing, his co-worker, Donald Howell, testified regarding Mr.
Smith's work history and conditions. Mr. Howell testified that
1
Plaintiff is an Alabama citizen. None of the Removing Defendants are
Alabama or Louisiana citizens.
between 1963 and 1970 Mr. Smith worked at Union Carbide's Taft
facility for
a one- to two-week period; Ethyl's Baton Rouge
facility for no more than one to two weeks; and Dow Chemical's
Plaquemine facility for a three- to four-week new construction
job.
At
each
insulation
Carbide
and
and
location,
mixed
Dow
Mr.
asbestos
Chemical,
Smith
performed
cement.
Plaintiff
asbestos
Additionally,
alleges
that
pipe
at
Union
Mr.
Smith
further assisted with the tear-out of asbestos pipe insulation.
According to Mr. Howell, when Mr. Smith cut and installed the
pipes, the air became filled with dust. When Mr. Smith mixed the
asbestos cement, Mr. Howell testified that the air would be so
thick with dust that it could "stop your nose up." Mr. Smith's
work and that of others around him led to the dusty conditions.
While performing this work, Mr. Smith used his own tools and
received instruction from the contractors who hired him.
Mr.
Howell,
the
however,
could
not
provide
the
identities
of
contractors for whom Mr. Smith worked on Defendants' premises.
Defendants Union Carbide (Rec. Doc. 66) and Ethyl (Rec. Doc.
71) filed their Motions for Summary Judgment on August 26, 2014.
Defendant Dow Chemical filed its Motion for Summary Judgment on
August 27, 2014. (Rec. Doc. 73) Plaintiff filed oppositions on
September 16, 2014. (Rec. Docs. 78, 79, 80) Defendants replied on
September 24, 2014. (Rec. Doc. 98, 101, 103)
PARTIES' ARGUMENTS
A. Negligence
Defendant
summary
Union
judgment
on
Carbide
argues
Plaintiff's
that
it
survival
and
is
entitled
wrongful
to
death
claims because Union Carbide owed no duty to Mr. Smith. Union
Carbide stresses that under Louisiana law, "no legal duty exists
between a premises owner and the employee of a contractor, unless
the
premises
owner
exercised
control
over
the
work
of
the
contractor." Thus, because Mr. Howell testified that Mr. Smith
performed his work according to the contractor's instructions and
supervision rather than Union Carbide's, Union Carbide owed no
duty to Mr. Smith. Union Carbide therefore cannot be found to be
in breach of any duty, that is, negligent.
Defendants Ethyl and Dow Chemical similarly assert that they
cannot
be
held
negligent
for
their
independent
contractor’s
negligence.2 First, Ethyl and Dow Chemical state that a principal
owes no duty to its contractor’s employees “absent a showing that
the
principal’s
retained
control
conduct
over
created
the
the
risk
contractor’s
or
the
employees.”
principal
Because
Plaintiff cannot show that Ethyl or Dow Chemical created asbestos
dust by disturbing asbestos products or exercised control over
the contractor’s workers’ work, Ethyl and Dow Chemical argue they
2
The Court presents Ethyl's and Dow Chemical's arguments together because
they submitted nearly identical motions and memoranda.
owed no duty to Mr. Smith and cannot be found negligent. Second,
Ethyl and Dow Chemical assert that a principal cannot be held
liable for the acts of its independent contractor unless the
contracted-for work involves an ultrahazardous activity or the
principal retains control the contractor’s work. Neither of these
exceptions apply here because working with asbestos-containing
insulation is not an ultrahazardous activity, and Defendants did
not retain control over their contractor’s work. Finally, Ethyl
and Dow Chemical maintain that they are not liable to Plaintiff
as the premises owner. A premises owner has no duty to protect
its independent contractor’s employees where the hazard at issue
arises from work on the premises rather than the premises itself.
Ethyl and Dow Chemical insist that the hazard to which Mr. Smith
was
exposed
and
that
injury—asbestos-containing
allegedly
dust—was
a
caused
hazard
Mr.
inherent
Smith’s
in
Mr.
Smith’s work installing and removing asbestos pipe insulation and
mixing asbestos cement. The hazard was not unique to Ethyl’s or
Dow Chemical’s premises. Thus, Ethyl and Dow Chemical seem to
argue that because the hazard is inherent in the work, it is a
hazard that arises from work on the premises rather than the
premises itself.3
Plaintiff argues that Defendants are not entitled to summary
3
Although Ethyl's and Dow Chemical's briefs do not state as much overtly,
this seems to be the force of their argument.
judgment.
Plaintiff
argues
that
Defendants
failed
to
present
summary judgment evidence establishing that they did not owe a
direct and independent duty to Mr. Smith as the premises owner.
Rather, Defendants focused on whether they, as principals, owed a
duty to their independent contractor’s workers, including Mr.
Smith. As such, Plaintiff avers that the burden did not shift to
her to present evidence regarding Defendants’ duty to Mr. Smith.
In the alternative, if this Court finds that Defendants met their
burden,
Plaintiff
contends
that
she
has
presented
sufficient
evidence to raise a genuine issue of material fact regarding
Defendants’ direct liability under theories of negligence and
strict liability, thereby precluding summary judgment.
B. Strict Liability
Defendants
Ethyl
and
Dow
Chemical
also
argue
that
Plaintiff’s strict liability or custodial liability claims fail.4
Establishing
a
strict
or
custodial
liability
claim
under
Louisiana law requires a plaintiff to show that (1) the defendant
had custody or control over the thing that caused the damage; (2)
the
thing
4
had
a
“vice,
ruin,
or
defect
that
presented
an
Defendant Union Carbide does not seem to present any arguments regarding
Plaintiff's strict liability claim in its Motion for Summary Judgment, although
it has moved for summary judgment on all of Plaintiff's survival and wrongful
death claims, which would encompasses the strict liability claim. Although Union
Carbide directly addresses the strict liability claim in its reply memorandum,
Union Carbide does not present arguments beyond those offered by Ethyl and Dow
Chemical in their Motions for Summary Judgment. Thus, the Court summarizes Ethyl
and Dow Chemical's arguments here.
unreasonable risk of harm”; and (3) that “vice, ruin, or defect
was the cause-in-fact of the resulting injury.” (Rec. Doc. 71-1,
p. 16) First, Ethyl and Dow Chemical maintain that they did not
have custody or control over the asbestos-containing products
that allegedly caused Mr. Smith’s injury. Second, Ethyl and Dow
Chemical urge that under Louisiana law a temporary condition
arising from construction or maintenance does not constitute a
“defect” in satisfaction of the second element of a strict or
custodial
liability
claim.
Here,
because
Mr.
Smith’s
alleged
exposure to asbestos dust on Ethyl’s and Dow Chemical’s premises
occurred during construction, Plaintiff cannot fulfill the second
element of a strict liability claim. Plaintiff’s strict liability
claims therefore fail.
Plaintiff counter argues that Ethyl and Dow Chemical are
strictly liable for the asbestos they had in their custody.
Plaintiff
does
not
liability
claim
as
dispute
recited
the
by
three
elements
Defendants.
of
However,
a
strict
Plaintiff
states that, contrary to Ethyl and Dow Chemical’s assertions,
Ethyl and Dow Chemical had the requisite custody or control over
the asbestos to support her strict liability claim because they
owned and had physical custody of the asbestos. Plaintiff further
argues that asbestos is not a temporary hazard. Consequently,
Plaintiff maintains that Ethyl and Dow Chemical are not entitled
to summary judgment on her strict liability claim.
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.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
allegations or unsubstantiated assertions.
with
conclusory
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
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
exists.
set
out
See
id.
specific
at
324.
facts
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.
Negligence
1. Vicarious Liability
Defendants argue that, as principals, they owe no duty to
their
independent
contractors’
workers.
Likewise,
Defendants
argue they are not liable for their independent contractors’
negligence.
Plaintiff
does
not
oppose
Defendant’s
vicarious
liability arguments, clarifying that she bases her negligence
claims upon the breach of the direct and independent duty that
Defendants
Plaintiff
owed
to
admits
Mr.
that
Smith
as
Defendants
premises
are
not
owners.
In
vicariously
fact,
liable.
(Rec. Doc. 77, p. 6; Rec. Doc. 78, p. 7; Rec. Doc. 79, p. 7)
Consequently, insofar as Plaintiff raises any negligence claims
sounding in vicarious liability against Defendants, this Court
grants Defendants’ motions for summary judgment on these claims.
2. Direct Liability
Pursuant to Louisiana law, a court will determine liability
for negligence by applying the Duty/Risk analysis. Terese v. 1500
Lorene LLC, No. 09-4342, 2010 WL 4702369, at *2 (E.D. La. Nov.
12,
2010)(Fallon,
J.).
This
analysis
requires
proof
of
separate elements:
(1) proof that the defendant had a duty to conform his
conduct to a specific standard (the duty element); (2)
proof that the defendant's conduct failed to conform to
the appropriate standard (the breach element); (3)
proof that the defendant's substandard conduct was a
cause-in-fact of the plaintiff's injuries (the causeinfact
element);
(4)
proof
that
the
defendant's
substandard
conduct
was
a
legal
cause
of
the
plaintiff's injuries (the scope of liability or scope
of protection element); and (5) proof of actual damages
(the damages element).
Id. (citations omitted).
five
First, "[t]he existence of a duty is a question of law." Id.
at 3. "In general, a premises owner has a duty of exercising
reasonable care for the safety of persons on its premises and a
duty of not exposing such persons to unreasonable risks of injury
or harm."5 Thomas v. A.P. Green Industries, Inc., 2005-1064, at
*8 (La. App. 4 Cir. 5/31/06); 933 So. 2d 843, 852; see also
Terese, 2010 WL 4702369, at *3 (same). "This duty extends to
employees of independent contractors for whose benefit the owner
must take reasonable steps to ensure a safe working environment."
Thomas,
933
So.
2d
at
852.
Thus,
here,
it
is
clear
that
Defendants owed a duty to Mr. Smith. The question then becomes
whether
Defendants
are
correct
in
arguing
that
there
is
insufficient evidence to prove any breach of this duty.
In Jefferson v. Cooper/T Smith Corp., the Louisiana Court of
Appeal for the Fourth Circuit reversed the trial court's granting
of
summary
judgment
in
favor
of
a
defendant
premises
owner
because the plaintiff presented a genuine issue of material fact
as to whether the premises owner breached its independent duty to
its contractor's workers on its premises. 2002-2136 (La. App. 4
Cir. 10/1/03); 858 So. 2d 691 (Cannizzaro, J.). A worker's widow
filed suit against the premises owner, alleging that her husband
5
For a thorough explanation of why Defendants' arguments refuting
"vicarious liability" cannot extend to extinguish the property owner's
independent duty to those on its premises, see Terese, 2010 WL 4702369, at *3.
had been exposed to asbestos while working as a longshoreman on
the defendant's premises. Id. at 692. The plaintiff presented no
evidence showing that the premises owner ever handled, stored, or
controlled
provided
the
asbestos.
evidence
Id.
revealing
at
694.
that
the
Instead,
workers
the
on
plaintiff
defendant's
property were exposed to asbestos during their work, suggesting
that the premises owner was aware of the risks that asbestos
posed, and indicating that the premises owner defendant had the
authority to prevent asbestos-containing products from entering
its premises. Id. at 695. The court concluded that although it
was clear that the defendant's contractors maintained control and
custody of the asbestos at all times, plaintiff had presented a
genuine issue of material fact precluding summary judgment as to
"whether [defendant] knew or should have known of the dangers
posed by asbestos at the time [the deceased worked on defendant's
premises], whether [defendant] knew or should have known that its
facilities
were
inadequate
for
the
handling
and
storage
of
asbestos on or in its premises, and whether it could have refused
such hazardous cargo." Id. at 695-96. Other recent cases have
reached a similar conclusion. See, e.g., Thomas, 933 So. 2d 843.
Here, Defendants argue that they did not breach the duty
owed to Plaintiff because they did not handle the asbestos, and
Plaintiff cannot prove as much. However, Jefferson makes it clear
that
such
evidence
is
unnecessary.
858
So.
2d
at
694-96.
Additionally, Plaintiff has responded to Defendants' arguments
refuting
any
breach
of
its
independent
duty
by
presenting
evidence that shows Mr. Smith was exposed to asbestos while
working on Defendants' premises. Plaintiff also presents evidence
raising a question as to whether Defendants (1) knew or should
have known of the dangers that asbestos posed when Mr. Smith
worked on their premises, (2) requested asbestos products despite
those dangers, and (3) knew or should have known that their
premises were inadequate for the safe handling of asbestos. This
Court therefore finds that Plaintiff has raised a genuine issue
of
material
fact
as
to
whether
Defendants
breached
the
independent duty they owed to those on their premises.
Defendants
liable
Smith's
in
nevertheless
negligence
work.
They
for
a
insist
argue
that
hazard
that
they
that
cases
cannot
was
inherent
such
be
held
Mr.
Jefferson
as
in
are
distinguishable on this basis because Mr. Smith was an asbestos
insulator whereas the deceased in Jefferson, for example, was a
longshoreman.
See
id.
at
692.
The
Court
acknowledges
that
Defendants' argument has some force. However, Defendants rely on
caselaw
that
negates
any
duty
based
upon
the
principal-
independent contractor relationship requiring the principal to
protect
its
independent
contractors'
employees
from
dangers
inherent in their job. See, e.g., Perkins v. Gregory Mfg. Co.,
95-0136, at *7 (La. App. 3 Cir. 3/20/96); 671 So. 2d 1036, 1040.
Furthermore, it seems that Plaintiff and Defendants admit that
asbestos can be used safely. See, e.g., (Rec. Doc. 73-2, p. 2;
Rec. Doc. 101, p. 2) If that is the case, then it would seem
strange
indeed
to
argue
that
the
risk
posed
by
asbestos
is
necessarily inherent in the job of an insulator. Thus, this Court
believes
that
Jefferson
still
applies
to
the
instant
case.
Plaintiff has presented a genuine issue of material fact as to
whether Defendants breached the independent duty they owed to Mr.
Smith. As such, summary judgment on Plaintiff's direct negligence
claims would be inappropriate at this time.
B.
Strict Liability
Louisiana Civil Code Article 2317 imposes strict liability
for the damage that is caused by the things that we have in our
custody.6 See Venezia v. ConocoPhillips Co., No. 12-2168, 2014 WL
107962, at *10 (E.D. La. Jan. 9, 2014)(Vance, J.). To establish
strict liability under Article 2317, a plaintiff must show that:
“(1) the thing which caused the damage was in the care, custody
and control of the defendant; (2) the thing had a vice or defect
which created an unreasonable risk of harm; and (3) the injuries
6
Although Article 2317.1 modifies Article 2317 by replacing the strict
liability standard with a negligence standard, this amendment occurred in 1996.
Because the law in effect at the time of exposure applies, the strict liability
standard applies in this case. See Watts v. Georgia-Pacific Corp., 2012-0620, at
*5-6 (La. App. 1 Cir. 9/16/13); 135 So. 3d 53, 59.
were caused by this defect.” Migliori v. Willows Apartments, 981814, at *5 (La. App. 4 Cir. 2/3/99); 727 So. 2d 1258, 1260.
“'Custody,’ for purposes of strict liability, does not depend
upon ownership, but involves the right of supervision, direction,
and control as well as the right to benefit from the thing
controlled.” Haydel v. Hercules Transport, Inc., 94-0016, at *
(La. App. 1 Cir. 4/7/95); 654 So. 2d 408, 414. To be liable, a
defendant must have such custody of the thing at the time it
causes the injury. See Goudchaux v. State Farm Fire & Cas. Co.,
407 So. 2d 1317, 1320 (La. App. 3 Cir. 1981). “In a strict
liability
determination,
‘defect’
is
an
imperfection
or
deficiency which inheres with relative permanence in a thing as
one of its qualities.” Haydel, 727 So. 2d at 415. A temporary
condition therefore does not constitute a defect under Article
2317. See id.
As an initial matter, it is unclear whether the “thing” in
question is Defendants' premises generally or the asbestos used
in those facilities more specifically. However, this Court finds
that, either way, Defendants are entitled to summary judgment on
Plaintiff’s strict liability claims. Defendants assert that they
did
not
have
ownership
of
the
asbestos
until
after
it
was
installed and put into service at their facilities. Defendants
also stress that at the time of installation, which is when Mr.
Smith
was
exposed
to
the
asbestos
products,
the
insulation
contractors controlled the asbestos. They point to evidence in
the
record
to
support
this
fact.
Although
Plaintiff
in
her
opposition does not dispute the ownership of the asbestos at the
time of installation, Plaintiff suggests that Defendants exerted
control over the asbestos work by specifying that the contractors
use asbestos and by regulating the security of their facilities
without requiring the use of safety equipment. Alternatively,
Plaintiff could be arguing that Defendants had custody of their
premises more generally.
Assuming that the thing in question is the asbestos, this
Court finds that Defendants did not have custody of the asbestos
at the time of Mr. Smith’s exposure. Deposition testimony reveals
that the contractors and the insulators themselves had custody of
the asbestos at that time. See, e.g., (Rec. Doc. 73-1, pp. 8-10)
Although Defendants may have specified that asbestos be used and
generally governed safety (Rec. Doc. 78, p. 13), Plaintiff has
not pointed to evidence showing that they had custody of the
asbestos sufficient to support liability under Article 2317.
Assuming in the alternative that the thing in question is
the premises itself, the Court finds that the hazard in the thing
was temporary in nature and therefore does not constitute a
defect
in
satisfaction
of
the
second
element
of
a
strict
liability claim under Article 2317. The record reveals that Mr.
Smith’s
exposure
to
the
asbestos
dust
occurred
during
construction or maintenance activities on the premises. Those
activities and the dusty conditions they created were temporary
in
nature.
They
therefore
cannot
constitute
a
defect
under
Article 2317. See Dauzat v. Thompson Constr. Co., Inc., 02-989,
at *6 (La. App. 5 Cir. 1/28/03); 839 So. 2d 319, 322-23 (finding
that temporary hazards are not "defects" under Article 2317);
Barron v. Webb, 29,707, at *5 (La. App. 2 Cir. 8/20/97); 698 So.
2d 727, 730 (same, before the amendment to Article 2317); see
also Hammons v. Forest Oil Corp., No. 06-9173, 2008 WL 348765, at
*4 (E.D. La. Feb. 7, 2008)(Africk, J.)(applying Louisiana law).
Plaintiff
cites
to
Watts
v.
Georgia-Pacific
for
Corp.
the
proposition that asbestos is not a temporary hazard. 2012 CA 0620
(La. App. 1 Cir. 9/16/13); 2013 WL 5173864, at *8. In Watts,
however, the “thing” in question was the asbestos itself. It was
not the premises on which the asbestos exposure occurred. See id.
at 7-8. The defect in asbestos is not temporary; it is the dusty
condition during construction on Defendants' premises that was
temporary.
Plaintiff’s
argument
in
this
regard
is
therefore
without merit. This Court finds that Defendants are entitled to
summary
judgment
liability claims.
in
their
favor
as
to
Plaintiff’s
strict
Accordingly,
IT IS HEREBY ORDERED that Defendants' Motions for Summary
Judgment (Rec. Docs. 66, 71, 73) are GRANTED IN PART.
IT IS FURTHER ORDERED that Defendants' motions are GRANTED
with respect to any negligence claim Plaintiff may have raised
that is based upon vicarious liability.
IT IS FURTHER ORDERED that Defendants' motions are GRANTED
with respect to Plaintiff's strict liability claims.
IT IS FURTHER ORDERED that Defendants' motions are DENIED
regarding Plaintiff's independent negligence claims.
New Orleans, Louisiana, this 1st day of October, 2014.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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