Landry et al v. Columbia Casualty Company et al

Filing 57

ORDER AND REASONS granting 37 MOTION for Partial Summary Judgment; Plaintiffs' claims for Lejeune damages are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 5/21/2015.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AGNES LANDRY, ET AL

CIVIL ACTION

VERSUS

NO: 14-220

COLUMBIA CASUALTY COMPANY, ET AL

SECTION: "H"(3)

ORDER AND REASONS
Before the Court is Defendant Huntington Ingalls Inc.’s ("HII") Motion for
Partial Summary Judgment (Doc. 37). For the following reasons, the Motion is
GRANTED, and Plaintiffs’ claims for damages pursuant to Louisiana Civil Code
Article 2315.6 are DISMISSED WITH PREJUDICE.
BACKGROUND
Plaintiffs, wife and children of the deceased, Norman Landry, allege that
he was exposed to asbestos during the course of his employment at the Avondale
shipyard for one month in 1948 and nearly two months in 1949.1 Plaintiffs
allege that Mr. Landry’s asbestos exposure in 1948 and 1949 caused his
1

HII is the successor in interest to Avondale.

1

mesothelioma, which was first diagnosed on February 3, 2012. Mr. Landry died
on May 25, 2012.

His surviving spouse and children filed this action in

Louisiana state court against HII, Columbia Casualty Company ("Columbia"),
and Eagle Inc. ("Eagle"). On January 29, 2014, HII removed the suit to this
Court, alleging that it was completely diverse from Plaintiffs and that the
remaining defendants had been improperly joined in an effort to prevent
removal. Plaintiffs’ Motion to Remand was denied and the claims against
Columbia and Eagle were dismissed.
Plaintiffs assert that they are entitled to bystander damages pursuant to
Louisiana Civil Code article 2315.6. Defendant contends that Plaintiffs are not
entitled to these damages under Louisiana law.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."2 A genuine issue of fact exists only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."3
In determining whether the movant is entitled to summary judgment, the
Court views facts in the light most favorable to the non-movant and draws all

2

Fed. R. Civ. P. 56(c) (2012).

3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

2

reasonable inferences in his favor.4 "If the moving party meets the initial burden
of showing that there is no genuine issue of material fact, the burden shifts to
the non-moving party to produce evidence or designate specific facts showing the
existence of a genuine issue for trial."5 Summary judgment is appropriate if the
non-movant "fails to make a showing sufficient to establish the existence of an
element essential to that party’s case."6 "In response to a properly supported
motion for summary judgment, the non-movant must identify specific evidence
in the record and articulate the manner in which that evidence supports that
party’s claim, and such evidence must be sufficient to sustain a finding in favor
of the non-movant on all issues as to which the non-movant would bear the
burden of proof at trial."7 "We do not . . . in the absence of any proof, assume
that the nonmoving party could or would prove the necessary facts."8
Additionally, "[t]he mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion."9
LAW AND ANALYSIS
HII moves to dismiss Plaintiffs’ claims for mental anguish damages. HII

4

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).

5

Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

6

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

7

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
8

Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9

Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

3

relies specifically on the temporal proximity requirement of Louisiana Civil Code
Article 2315.6(A), which provides:
[Certain] persons who view an event causing injury to
another person, or who come upon the scene of the
event soon thereafter, may recover damages for mental
anguish or emotional distress that they suffer as a
result of the other person's injury.
The primary issue in this Motion is whether the progression of Mr.
Landry’s mesothelioma is an injury-causing event within the meaning of Article
2315.6(A). Plaintiffs do not contend that they came upon the scene soon after
Mr. Landry’s alleged exposure to asbestos. Rather, Plaintiffs argue that they
suffered mental anguish from viewing the progression of Mr. Landry’s
mesothelioma and that this progression of the disease is the injury-causing
event. The Court disagrees.
In Lejeune v. Rayne Branch Hospital, the Louisiana Supreme Court
overruled prior law and recognized a cause of action for bystanders who witness
the negligent infliction of injury on a third person to recover mental anguish
damages under very limited circumstances.10 To recover bystander or "Lejeune"
damages: (1) the claimant must either view the accident or injury-causing event
or come upon the scene soon after it has occurred and before substantial change
in the victim’s condition; (2) the direct victim of the traumatic injury must have
suffered such harm that it can reasonably be expected that someone in the
claimant’s position would suffer serious mental anguish from the experience; (3)
the claimant’s emotional distress must be both reasonably foreseeable and
10

556 So.2d 559, 569 (La. 1990).

4

serious; and (4) the claimant must have a sufficiently close relationship to the
direct victim.11 There is no requirement that the claimant be physically injured
or suffer physical impact in the same accident as the direct victim.12
The Louisiana Legislature codified the Lejeune ruling by enacting
Louisiana Civil Code Article 2315.6.13 Article 2315.6 is intended to compensate
for the immediate shock of witnessing a traumatic event when the harm to the
direct victim is severe and apparent, not to compensate for the anguish and
distress that often accompany an injury to a loved one.14 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.15
Plaintiffs must satisfy all four requirements to recover bystander damages
under Louisiana law. HII does not dispute the latter three requirements but
contends that Plaintiffs fail to satisfy the first requirement. To satisfy the first
requirement, Plaintiffs must prove that they viewed the injury causing event as
it occurred or that they came upon the scene soon after and before substantial
change in Mr. Landry’s condition.
11

Id. at 570.

12

Id.

13

Trahan v. McManus, 728 So. 2d 1273, 1278. Plaintiffs assert that Article 2315.6 does
not apply to their claims because Mr. Landry’s asbestos exposure occurred before its enactment
and that plaintiffs’ claim is therefore governed by the Lejeune decision. However, plaintiffs are
not entitled to bystander damages under either Article 2315.6 or Lejeune.
14

Veroline v. Priority One EMS, 18 So.3d 1273, 1276 (quoting Trahan, 728 So.2d at 1279)
(emphasis added); Cole v. Celotex Corp., 599 So. 2d 1058, 1077 (La. 1992).
15

Trahan, 728 So. 2d at 1279 (emphasis added).

5

The injury-causing event occurred when Mr. Landry was allegedly exposed
to asbestos, not when the mesothelioma manifested itself.16 Plaintiffs have not
alleged or presented evidence that they were present when Mr. Landry was
exposed to asbestos or that they came upon the scene of his exposure soon
thereafter. Louisiana Civil Code Article 2315.6 contemplates an "immediate
shock" and harm that is immediately "severe and apparent." It is not intended
to compensate claimants who observe the progression of a disease many years
later.
Plaintiffs did not observe Mr. Landry inhale asbestos and the suffering they
observed occurred more than sixty years after Mr. Landry’s employment at
Avondale. Moreover, even if Plaintiffs had observed Mr. Landry’s exposure to
asbestos, they would not be entitled to Lejeune damages because exposure to
asbestos is not a traumatic event likely to cause severe contemporaneous mental
anguish to an observer, even though the ultimate consequence, mesothelioma, is
tragic.17 Although Plaintiffs suffered anguish and distress as Mr. Landry’s
mesothelioma progressed, their mental anguish is temporally disconnected from
the injury-causing event and beyond the intent of Louisiana Civil Code Article
2315.6. The Court finds that Plaintiffs have not satisfied the first Lejeune
requirement and, accordingly, they are not entitled to bystander damages under
16

See Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1083 (La. 2009).

17

See id. An observable harm to the direct victim must arise at the time of the injurycausing event. Id. In Trahan, the parents of the direct victim watched him die after he was
negligently misdiagnosed and discharged from the hospital. Id. at 1275. The doctor’s negligent
discharge of the patient was the injury-causing event, but it was "not a traumatic event likely
to cause severe contemporaneous mental anguish to an observer, even though the ultimate
consequences were tragic indeed." Id. at 1280.

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Louisiana law.18
CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and Plaintiffs’ claims
for Lejeune damages are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 21st
__ day of May, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

18

See Comardelle v. Pennsylvania Gen. Ins. Co., No. 13-6555, 2014 WL 5762841, at *3
(E.D. La. Nov. 3, 2014) (granting a nearly identical motion).

7