Smith et al v. Union Carbide Corporation et al

Filing 113

ORDER & REASONS: granting 62 Plaintiff's Motion for Summary Judgment. Signed by Judge Carl Barbier on 10/2/14. (sek)

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 is Plaintiff Miriam P. Smith's Motion for
Summary

Judgment

(Rec.

Doc.

62),

which

is

unopposed.

Having

considered the motions and memorandum of counsel, the record, and
the

applicable

law,

the

Court

finds

that

Plaintiff's

motion

should be GRANTED 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 or Plaintiff), was substituted as Plaintiff. Mr. and

Mrs. Smith were both citizens of Alabama at the time of the
filing of this suit, and Mrs. Smith remains an Alabama citizen.
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.

Defendants asserted that Plaintiff improperly joined Taylor, the
sole remaining Defendant with Louisiana citizenship. Defendants
argued that there is "no evidence whatsoever that would support a
claim against Taylor-Seidenbach, Inc. in this matter." (Rec. Doc.
1, p. 6) Plaintiff disagreed and filed a Motion to Remand. This
Court

denied

the

motion,

finding

that

it

did

not

appear

reasonably possible that a state court would impose liability on
Taylor. (Rec. Doc. 24, p. 12) Plaintiff subsequently settled her
claims with Taylor.
On August 25, 2014, Plaintiff filed a Motion for Summary
Judgment that there is and can be no liability found on the part
of Taylor. Defendants have not opposed the motion.
LEGAL STANDARD
Summary

judgment

is

appropriate

where

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show there is no genuine

issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Fed. R. Civ.
Proc. 56(c)).

The moving party bears the initial burden of

demonstrating to the court that there is an absence of genuine
factual issues. Id. Once the moving party meets that burden, the
non-moving party must go beyond the pleadings and designate facts
showing

that

dispute. Id.

there

is

a

genuine

issue

of

material

fact

in

“A factual dispute is ‘genuine’ where a reasonable

jury could return a verdict for the non-moving party. If the
record, taken as a whole, could not lead a rational trier of fact
to find for the non-moving party, then there is no genuine issue
for trial and summary judgment is proper.” Weber v. Roadway Exp.,
Inc., 199 F.3d 270, 272 (5th Cir. 2000) (citations omitted). The
non-moving

party’s

burden

“is

not

satisfied

with

‘some

metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’
‘scintilla’

by
of

‘unsubstantiated
evidence.

[The

assertions,’
courts]

or

by

resolve

only

a

factual

controversies in favor of the nonmoving party, but only when
there is an actual controversy, that is, when both parties have
submitted evidence of contradictory facts. [The courts] do not,
however, in the absence of any proof, assume that the nonmoving
party could or would prove the necessary facts.” Little, 37 F.3d

1075 (citations omitted).
PARTY'S ARGUMENT & DISCUSSION
Plaintiff
found

that

argues

her

claim

that

because

against

this

Taylor

is

Court

has

previously

unsupported

by

the

evidence, she is entitled to summary judgment that Taylor cannot
now

be

found

responsible

or

liable

for

any

of

her

damages.

Defendants removed the instant action from state court, asserting
that Plaintiff improperly joined Taylor, the sole remaining nondiverse defendant, because Plaintiff could not recover against
Taylor in state court. Defendants so argued because "[t]here is
no evidence whatsoever that would support [Plaintiff's] claim
against Taylor." Defendants therefore will be unable to prove
that Taylor's negligence caused Plaintiff's damages at trial as
would be necessary for Defendants to be entitled to a reduction
of the damage award. Plaintiff seeks summary judgment on the
issue to prevent Defendants from making such an argument.
A

defendant

may

seek

a

credit

for

the

share

of

fault

attributable to a joint tortfeasor who has previously settled
with the plaintiff in order to reduce the damage award for which
the defendant is responsible. Terrance v. Dow Chem. Co., 20062234, at *13 (La. App. 1 Cir. 9/14/07); 971 So.2d 1058, 1067. A
defendant is only entitled to such a reduction, however, if the
alleged

joint

tortfeasor

was

"released

from

liability

and

actually proven to be [a] join tortfeasor[]." Id. The defendant
therefore must be able to prove that the joint tortfeasor who
previously

settled

"negligently

caused

the

plaintiff['s]

damages." Id.
The Court concludes that even when the scant evidence to
support liability on the part of Taylor is assumed true and all
inferences are made in favor of such liability, the evidence is
insufficient to prove that Taylor was negligent. As this Court
has previously stated,
The evidence that Mrs. Smith puts forth shows that Mr.
Smith might have worked at some of the same sites at
the same time as [Plaintiff's witness], who was working
as a Taylor employee. The timing is tenuous, however,
because [Plaintiff's witness] and Mr. Smith only could
have overlapped at those sites in 1969. It is further
true that Mr. Smith might have worked at American
Cyanamid while Taylor products were being used;
however,
this
is
again
very
tenuous
because
[Plaintiff's witness] can only testify that Taylor
intermittently supplied products to American Cyanamid
over a three decade span, and Mrs. Smith only has
evidence that Mr. Smith worked there for four weeks
during that entire time span.
(Rec. Doc. 24, p. 11)(footnote and citations omitted). Although
this evidence may create "a suggestion that [Taylor] may have
supplied

[its

asbestos]

products"

for

use

at

Mr.

Smith's

worksites during the relevant period, it is insufficient to prove
that Mr. Smith "had significant exposure to [Taylor's asbestoscontaining product] to the extent that it was a substantial
factor in bringing about his injury." Thibodeaux v. Asbestos

Corp. Ltd., 2007-0617, at *10, 12 (La. App. 4 Cir.2/20/08); 976
So. 2d 859, 865-67. It is therefore insufficient to meet the
applicable burden of proof. Id. Defendants have not opposed the
motion, choosing not to attempt to present evidence showing that
there is a genuine issue of material fact precluding summary
judgment on this issue. Thus, the Court finds that Plaintiff is
entitled

to

summary

judgment

that

there

is

and

can

be

no

liability found on the part of Taylor.

Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion for Summary
Judgment (Rec. Doc. 62) is GRANTED.
New Orleans, Louisiana, this 2nd day of October, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE