Dempster v. Lamorak Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALLEN DEMPSTER, et al. CIVIL ACTION

VERSUS CASE NO. 20-95

LAMORAK INSURANCE CO., et al. SECTION: “G”(1)

ORDER AND REASONS

Before the Court is Defendant Huntington Ingalls Incorporated (f/k/a Northrop Grumman

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

and f/k/a Avondale Shipyards, Inc.) (“Avondale”) “Motion for Partial Summary Judgment on

Plaintiffs’ Intentional Tort, Fraud and Concealment Claims.”1 In this litigation, Plaintiffs Louise

Ella Simon Dempster, Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster Martinez,

Marla Dempster Loupe, Callen Dempster, Jr., Annette Dempster Glad, and Barnett Dempster’s

(collectively, “Plaintiffs”) allege that Decedent Callen L. Dempster (“Decedent”) was exposed to

asbestos and asbestos-containing products that were designed, manufactured, sold, and/or supplied

by a number of Defendant companies while Decedent was employed by Avondale.2 In the instant

motion, Avondale argues that Plaintiffs’ intentional tort survival claims should be dismissed

because Plaintiffs cannot show that Avondale either (1) consciously desired that Decedent contract

1 Rec. Doc. 31.

2 See Rec. Doc. 1-2; Rec. Doc. 1-8. In particular, Plaintiffs bring claims against Lamorak Insurance Company,

Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett, Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler

LLC, General Electric Co., Hopeman Brothers, Inc., McCarty Corporation, Taylor-Seidenbach, Inc., CBS

Corporation, Uniroyal, Inc., International Paper Company, Houston General Insurance Company, Berkshire Hathaway

Specialty Insurance Company, Northwest Insurance Company, United Stated Fidelity and Guaranty Company, Fist

State Insurance Company, The American Insurance Company, Louisiana Insurance Guaranty Association, and the

Traveler’s Indemnity Company. Rec Doc. 1-8 at 2–3.

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lung cancer or (2) knew that Decedent’s lung cancer was substantially certain to occur.3 Having

considered the motion, the memoranda in support and in opposition, the record, and the applicable

law, the Court denies the motion.

I. Background

A. Factual Background

In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to

1994.4 During that time, Plaintiffs aver that Decedent was exposed to asbestos and asbestos-

containing products in various locations and work sites, resulting in Decedent breathing in asbestos

fibers and later developing asbestos-related cancer.5 Plaintiffs assert strict liability and negligence

claims against various Defendants.6 Specifically, Plaintiffs allege that:

All asbestos companies had care, custody, and control of the asbestos, which

asbestos was defective and which presented an unreasonable risk of harm, which

asbestos resulted in the injury of [Decedent] and for which these defendants are

liable under Louisiana law. However, with regard to Avondale and its executive

officers, they are liable because they failed to properly handle and control the

asbestos which was in their care, custody, and control. Petitioners are not alleging

that Avondale and its executive officers are liable for the mere use of asbestos;

rather, Avondale and its executive officers are liable for the misuse of asbestos,

including but not limited to the failure to warn of the hazardous nature and dangers

of asbestos and for the failure to take and implement reasonably safe and industrial

hygiene measures, failure to train, and failure to adopt safety procedures for the

safe installation and removal of asbestos.7

B. Procedural Background

Decedent filed a “Petition for Damages” in the Civil District Court for the Parish of

3 Rec. Doc. 31-1 at 1–2.

4 Rec. Doc. 1-2 at 5.

5 Id.

6 Id. at 7–8.

7 Id.

2

Orleans, State of Louisiana, on March 14, 2018.8 Defendants Huntington Ingalls Incorporated,

Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the “Avondale Interests”)

removed the case to the United States District Court for the Eastern District of Louisiana for the

first time on June 21, 2018.9 In the first notice of removal, Avondale Interests alleged that removal

was proper because this is an action “for or relating to conduct under color of federal office

commenced in a state court against persons acting under one or more federal officers within the

meaning of 28 U.S.C. § 1442(a)(1).”10

On January 7, 2019, this Court remanded the case to the Civil District Court for the Parish

of Orleans.11 The Court found that Defendants presented no evidence that Decedent came into

contact with asbestos aboard a government vessel, and thus, no federal interest was implicated.12

Alternatively, even accepting Defendants’ argument that Decedent came into contact with asbestos

aboard a government vessel as true, the Court did not find that the necessary causal nexus existed

between Federal Government action and Decedent’s claims.13 This determination was based on the

fact that Decedent brought negligence claims, rather than strict liability claims, against Avondale

Interests.14 Defendants did not appeal the January 7, 2019 Order.

Decedent passed away on November 24, 2018, and a First Supplemental and Amending

8 Id. at 2–3

9 Case No. 18-6158, Rec. Doc. 1 at 2.

10 Id.

11 Case No. 18-6158, Rec. Doc. 89.

12 Id. at 31.

13 Id.

14 Id. at 36–37. The January 7, 2019 Order predated the Fifth Circuit’s en banc decision in Latiolais v.

Huntington Ingalls, Inc., overruling prior precedent and holding that Avondale was entitled to remove a negligence

case filed by a former Navy machinist because of his exposure to asbestos while the Navy’s ship was being repaired

at the Avondale shipyard under a federal contract. 951 F.3d 286, 289 (5th Cir. 2020).

3

Petition for Damages was filed in state court substituting Decedent’s heirs as Plaintiffs on January

17, 2019.15 Trial was scheduled to begin before the state trial court on January 13, 2020. 16 The

amended petition does not purport to assert any strict liability claims against Avondale.17

On January 9, 2020, Avondale removed the case to the United States District Court for the

Eastern District of Louisiana for a second time.18 In the second notice of removal, Avondale once

again alleged that removal is proper because this is an action “for or relating to conduct under color

of federal office commenced in a state court against persons acting under one or more federal

officers within the meaning of 28 U.S.C. § 1442(a)(1).”19 In the second notice of removal,

Avondale contended that the jury interrogatories, jury charges, and Pre-Trial Order filed by

Plaintiffs in state court directly contradicted Decedent’s prior representation in federal court that

he was not asserting strict liability claims against Avondale.20 On January 10, 2020, Plaintiffs filed

an “Emergency Motion to Remand”21 and an “Ex Parte Motion for Expedited Hearing and for

Emergency Ruling.”22

On January 28, 2020, the Court denied the motion to remand, finding that this case was

properly removed to this Court under the federal officer removal statute.23 Specifically, the Court

15 Rec. Doc. 1-8.

16 Rec. Doc. 1-12.

17 Rec. Doc. 1-8.

18 Rec. Doc. 1.

19 Id. at 2.

20 Id. at 4–5.

21 Rec. Doc. 4.

22 Rec. Doc. 5.

23 Rec. Doc. 17.

4

found that the notice of removal was timely filed and Plaintiffs’ pretrial filings constituted a proper

basis for the second removal.24 Additionally, the Court found that Avondale met the three-part test

for federal officer removal, namely, that (1) Avondale is a person within the meaning of the statute,

(2) Avondale acted pursuant to a federal officer’s directions and a causal nexus exists between its

actions under color of federal office and plaintiffs’ claims, and (3) Avondale has a colorable federal

defense to Plaintiffs’ claims under the government contractor immunity defense.25

On February 18, 2020, Avondale filed the instant “Motion for Partial Summary

Judgment on Plaintiffs’ Intentional Tort, Fraud and Concealment Claims.”26 On March 3, 2020,

Plaintiffs filed an opposition to the instant motion.27 Avondale, with leave of Court, filed a reply

brief in further support of the motion on March 16, 2020.28 At the request of the parties, the Court

heard oral argument on this motion on March 11, 2020 at 2:00 p.m.29

II. Parties= Arguments

A. Avondale’s Argument in Support of the Motion

In the instant motion, Avondale argues that Plaintiffs’ intentional tort survival claims

should be dismissed because Plaintiffs cannot show that Avondale either (1) consciously desired

that Decedent contract lung cancer or (2) knew that Decedent’s lung cancer was substantially

24 Id. at 20–22.

25 Id. at 23–36. The January 28, 2020 Order also predated the Fifth Circuit’s en banc decision in Latiolais. In

Latiolais, the Fifth Circuit held that “to remove under section 1442(a), a defendant must show (1) it has asserted a

colorable federal defense, (2) it is a “person” within the meaning of the statute, (3) that has acted pursuant to a federal

officer’s directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer’s

directions.” 951 F.3d at 296. The Fifth Circuit overruled prior caselaw applying the “causal nexus” requirement to

Section 1442(a) as amended in 2011. Id.

26 Rec. Doc. 31.

27 Rec. Doc. 91.

28 Rec. Doc. 130.

29 Rec. Doc. 135.

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certain to occur.30 Additionally, Avondale argues that Plaintiffs’ intentional tort wrongful death

claims should be dismissed because Plaintiffs have no evidence that Avondale specifically

intended for Decedent to contract, and die from, lung cancer.31

First, Avondale contends that under Louisiana law, to prevail on an intentional tort claim

a plaintiff must show either: (1) that the defendant consciously desired the result or (2) that the

defendant knew that the result was substantially certain to follow from its conduct.32 Avondale

contends that Plaintiffs have no evidence to satisfy either prong.33 Regarding the first prong,

Avondale argues that there is no evidence that Avondale consciously desired for Decedent to

contract lung cancer and die.34 Avondale contends that the Louisiana Supreme Court has previously

identified allegations which do not qualify as intentional tort allegations, including the failure to

provide a safe working environment.35 Avondale argues that Plaintiffs’ allegations fall within these

previously identified categories that were deemed insufficient to constitute an intentional tort

claim.36

Regarding the second prong, Avondale contends that Plaintiffs cannot show that Avondale

knew that Decedent’s lung cancer was substantially certain to follow from their conduct.37

Avondale argues that the “substantial certainty” test is not satisfied, even if the employer believes

30 Rec. Doc. 31-1 at 1–2.

31 Id. at 2.

32 Id. at 7 (citing Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208).

33 Id. at 8.

34 Id.

35 Id. at 8–9.

36 Id. at 10.

37 Id. at 11.

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that an individual may, or even probably will, be injured by a workplace practice.38 Avondale

contends that here, “[P]laintiffs’ evidence consists of a misguided attempt to equate Avondale’s

knowledge that asbestos was hazardous with an intent that [Decedent] contract a disease.”39

Furthermore, Avondale argues that the “substantial certainty” prong is not satisfied by the mere

knowledge of the hazards of asbestos.40 Avondale contends that Plaintiffs cannot show that

Decedent’s contraction of lung cancer was the inevitable result of his exposure to asbestos,

particularly considering Decedent’s history of smoking.41 Therefore, Avondale argues that

Plaintiffs do not meet the “substantial certainty” prong of the intentional tort standard.42

Next, Avondale contends that district judges in the Eastern District of Louisiana and other

Louisiana state courts have dismissed similar intentional tort claims against Avondale as a matter

of law.43 Avondale argues that the conduct alleged by Plaintiffs––including the failure to provide

a safe place to work, the failure to provide hazard warnings, the failure to provide protective

equipment and other safety measures and the failure to conduct air monitoring––is the same type

of conduct that other courts have rejected as insufficient to constitute an intentional tort.44

Avondale contends that an intentional tort claim against it must fail because there is no evidence

to support a claim that Avondale intended to injure its employees.45

38 Id. (citing Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208, 212–13).

39 Id. at 13.

40 Id.

41 Id. at 13–14.

42 Id. at 14.

43 Id.

44 Id. at 16.

45 Id.

7

Additionally, Avondale argues that Plaintiff’s fraud and concealment claims are intentional

torts, and are therefore governed by the same standard discussed above––that the defendant

consciously desired the injury or believed with substantial certainty that the injury would occur.46

Avondale contends that “[t]he basic elements of a cause of action for fraud are: ‘(l) a

misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust

advantage or to cause damage or inconvenience to the other party; and (3) the resulting error must

relate to a circumstance substantially influencing the other party’s contractual consent.’”47

Therefore, Avondale argues that here, Plaintiffs must show that (1) Avondale represented to

Decedent that asbestos was safe, or (2) that Avondale suppressed information from Decedent, or

(3) that Decedent was persuaded to accept employment with Avondale based on Avondale

representations regarding asbestos.48 Avondale contends that Plaintiffs will be unable to offer

evidence to support a claim of fraud and concealment.49

Lastly, Avondale argues that Plaintiffs’ wrongful death claims should be dismissed.50

Avondale contends that the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) has

an exclusive remedy provision that eliminates all other causes of action, except for a narrow,

judicially created intentional tort exception.51 Specifically, Avondale contends that under the

LHWCA, the defendant must show a specific intent to injure the employee.52 Here, Avondale

46 Id. at 16–17.

47 Id. at 17 (citing Shelton v. Standard/700 Associates, 01-0587, p. 5 (La. 10/16/01), 798 So. 2d 60, 64).

48 Id. at 18.

49 Id.

50 Id. at 19.

51 Id.

52 Id. at 21.

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argues that Plaintiffs’ allegations constitute mere negligence and are therefore insufficient to

satisfy the specific intent exception to the LHWCA.53 Therefore, Avondale argues that Plaintiffs

cannot carry their summary judgment burden.54

B. Plaintiffs’ Argument in Opposition to the Motion

In the opposition memorandum, Plaintiffs argue that the motion should be denied.55 First,

Plaintiffs argue that this motion was already denied by the state court trial judge.56 Plaintiffs

contend that the Court should only reconsider motions sparingly, where, for example, there exists

newly discovered evidence or a change in the law.57 Because those conditions do not exist here,

Plaintiffs argue that the motion should be denied on that basis alone.58 In response to Avondale’s

argument that various district courts have granted motions for summary judgment in similar

circumstances, Plaintiffs contend that those cases are factually distinguishable from the case here.59

Next, Plaintiffs argue that a motion for summary judgment is inappropriate where the case

turns on intent or knowledge, because those determinations are inherently a question of fact which

turns on credibility.60 Additionally, Plaintiffs contend that the Fifth Circuit has recognized that

intent is established where an employer continues to expose an employee to a toxic substance while

53 Id.

54 Id.

55 Rec. Doc. 91 at 1.

56 Id. at 2.

57 Id.

58 Id.

59 Id.

60 Id. at 3 (citing Pacific Ins. Co., Ltd. v. Louisiana Auto Dealers Ass’n, 273 F.3d 392 (5th Cir. 2001);

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 n. 3 (5th Cir. 1993); International Shortstop, Inc. v. Rally’s, Inc.,

939 F.2d 1257 (5th Cir. 1991)).

9

that employee was already was suffering from a lung disease.61 Plaintiffs argue that there is ample

evidence which shows that the conduct of the Avondale caused Decedent to be exposed to

asbestos.62 Furthermore, Plaintiffs contend that summary judgment is not appropriate on an

intentional tort claim.63 Plaintiffs argue that Avondale’s reliance on Zimko v. American Cyanamid

is misplaced because that case involved a decision after a trial on the merits.64

Plaintiffs contend that under Louisiana law, the intent required is not necessarily hostile,

but merely an intent to bring about a result which will invade the interests of another in a way that

the law forbids.65 Responding to Avondale’s argument that Plaintiffs’ wrongful death claims are

governed by the LHWCA standard, Plaintiffs argue that they have elected Louisiana state law

remedies, rather than worker’s compensation benefits, and that therefore, the LHWCA does not

preempt plaintiffs’ state law claims.66

Plaintiffs contend that Avondale and its executive officers knew of the hazards of asbestos

and were substantially certain that disease would occur.67 Plaintiffs argue that Danny Joyce,

Avondale’s corporate representative and industrial hygiene expert, confirmed that Avondale had

knowledge of government regulations as early as the 1940s of the dangers associated with

asbestos.68 Specifically, Plaintiffs contend that Minimum Standards requirements show that the

61 Id.

62 Id. at 4–5 (citing Rec. Docs 91-12, 91-17, 91-18, 91-19).

63 Id. at 5–6.

64 Id. at 5 (citing Zimko v. American Cyanamid, 03-658 (La. App. 4 Cir. 6/8/05), 905 So. 2d 465).

65 Id. at 6 (citing Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987)).

66 Id. at 7–8.

67 Id. at 8.

68 Id. (citing Rec. Docs 91-44, 91-19).

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Avondale executive officers knew of the dangers of asbestos, as well as the safety controls

necessary to protect workers, as early as the 1940s.69 Plaintiffs argue that Ollie Gatlin, a former

Avondale executive, stated that he knew that asbestos was a health hazard in 1960.70

Plaintiffs contend that Avondale executive officers were substantially certain that disease

would occur.71 Plaintiffs argue that Burnette Bordelon, the superintendent for insulation at

Avondale, disregarded the health hazards of asbestos and therefore, failed to take the precautions

necessary to protect workers from exposure to asbestos.72 Plaintiffs contend that despite the fact

that Avondale’s executive officers were aware of the hazards of working with asbestos, they forced

Avondale employees to work with and around asbestos without precautions.73 Plaintiffs argue that

C. Edwin Hartzman, the President of Avondale Shipyards beginning in 1972, testified that

responsibility for safety initiatives ultimately rested with the other executive officers.74

Furthermore, Plaintiffs contend that Edward Blanchard, Superintendent of the Production

Department, also confirmed that he would have to approve a request from the safety department

to stop production for safety reasons.75 Plaintiffs argue that Albert Bossier, Jr., the assistant

superintendent of the Electrical Department from approximately 1961 until he took over as

superintendent in 1964, had knowledge of the dangers associated with asbestos and did nothing to

69 Id. (citing Rec. Doc. 91-40).

70 Id. at 9 (citing Rec. Doc. 91-30).

71 Id. at 10.

72 Id. at 10–11 (citing Rec. Docs. 91-30, 91-10, 91-38).

73 Id. at 12.

74 Id. at 15 (citing Rec. Doc. 91-37).

75 Id. at 16 (citing Rec. Doc. 38).

11

protect Avondale employees.76 Plaintiffs contend that James O’Donnell, Steven Kennedy, Peter

Territo, George Kelmell, John McCue and Ewing Moore were all involved in the safety department

at Avondale.77 Plaintiffs argue that each was aware of the health hazards of asbestos.78 Plaintiffs

argue that from 1970 to 1972, the safety department reported to Hettie Dawes Eaves, who was

involved in numerous discussions about the problems connected with exposure to asbestos.79

Plaintiffs contend that Dr. Mabey, a contract physician for Avondale Shipyards, admitted that he

knew of the hazards of asbestos since the 1940’s.80

Lastly, Plaintiffs contend that they can establish a fraud claim under Louisiana law.81

Plaintiffs argue that Louisiana law recognizes a cause of action for fraud resulting from silence.82

Here, Plaintiffs contend that Avondale and its executive officers were aware of the hazards of

asbestos and nevertheless, remained silent.83

C. Avondale’s Argument in Further Support of the Motion

In further support of the instant motion, Avondale argues that knowledge of the dangers of

asbestos does not establish an intent for Decedent to contract lung cancer.84 Avondale contends

that while Plaintiffs have presented evidence of knowledge of hazards, that evidence does not

76 Id. at 16–17 (citing Rec. Docs. 91-48, 91-23, 91-30).

77 Id. at 18.

78 Id. at 18–19 (citing Rec. Docs 91-15, 91-39, 91-51).

79 Id. at 20–21 (citing Rec. Docs. 91-46, 91-30).

80 Id. at 22 (citing Rec. Doc. 91-60).

81 Id. at 22–24.

82 Id. at 22 (citing La. Civ. Code art. 1953).

83 Id. at 24.

84 Rec. Doc. 135 at 2–3.

12

constitute intent to harm.85 Furthermore, Avondale argues that Plaintiffs’ remaining evidence does

not show that Avondale was substantially certain that Decedent would contract lung cancer.86 For

example, Avondale contends that even non-compliance with government standards does not rise

to the level of an intentional tort.87 Next, Avondale argues that resolution at the summary judgment

stage is appropriate, even though intent is at issue, given Louisiana case law.88 Additionally,

Avondale contends that reconsideration principles are not applicable here, and if they are

applicable, the motion is necessary to correct a manifest error of law because the state court did

not consider the Orders of other district judges in the United States District Court for the Eastern

District of Louisiana on this issue.89 Lastly, Avondale argues that Plaintiffs cannot meet the intent

requirement for the fraud/concealment claims or the substantial certain standard for the wrongful

death claim.90

III. Legal Standard

A. Legal Standard for Summary Judgment

Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.”91 When assessing whether a dispute as to any material fact exists, the court

85 Id. at 3–4.

86 Id. at 5.

87 Id. at 5–6.

88 Id. at 7–8.

89 Id. at 9.

90 Id. at 9–10.

91 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

13

considers “all of the evidence in the record but refrains from making credibility determinations or

weighing the evidence.”92 All reasonable inferences are drawn in favor of the nonmoving party,

but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”93

If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”

then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of

law.94 The nonmoving party may not rest upon the pleadings, but must identify specific facts in the

record and articulate the precise manner in which that evidence establishes a genuine issue for

trial.95

The party seeking summary judgment always bears the initial responsibility of informing

the court of the basis for its motion and identifying those portions of the record that it believes

demonstrate the absence of a genuine issue of material fact.96 Thereafter, the nonmoving party

should “identify specific evidence in the record, and articulate” precisely how that evidence

supports his claims.97 To withstand a motion for summary judgment, the nonmoving party must

show that there is a genuine issue for trial by presenting evidence of specific facts.98 The

nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by

92 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

93 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

94 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

95 See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

96 Celotex, 477 U.S. at 323.

97 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).

98 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248–49 (1996)).

14

creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by

“unsubstantiated assertions,” or “by only a scintilla of evidence.”99 Rather, a factual dispute

precludes a grant of summary judgment only if the evidence presented by the nonmovant is

sufficient to permit a reasonable trier of fact to find for the nonmoving party.100 Further, a court

“resolve[s] 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.”101 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.102 Ultimately, summary judgment

is appropriate in any case “where critical evidence is so weak or tenuous on an essential fact that

it could not support a judgment in favor of the nonmovant.”103

B. Legal Standard for Reconsideration

Although the Fifth Circuit has noted that the Federal Rules “do not recognize a ‘motion for

reconsideration’ in haec verba,”104 it has consistently recognized that such a motion may challenge

a judgment or order under Federal Rules of Civil Procedure 54(b), 59(e), or 60(b).105 Federal Rule

of Civil Procedure 59(e) also allows courts to alter or amend its judgments after entry. The Court

has “considerable discretion” in deciding whether to grant a motion for reconsideration, but must

99 Little, 37 F.3d at 1075.

100 Anderson, 477 U.S. at 248.

101 Little, 37 F.3d at 1075.

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

103 Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993).

104 Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990).

105 Id. (Rules 59 and 60); Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398, at

*3–4 (E.D. La. Apr. 5, 2010) (Rule 54).

15

“strike the proper balance between two competing imperatives: (1) finality and (2) the need to

render just decisions on the basis of all the facts.”106 This Court’s discretion is further bounded by

the Fifth Circuit’s instruction that reconsideration is “an extraordinary remedy that should be used

sparingly,”107 with relief being warranted only when the basis for relief is “clearly establish[ed].”108

Courts in the Eastern District of Louisiana have generally considered four factors in deciding

motions for reconsideration under the Rule 59(e) standard:

(1) the motion is necessary to correct a manifest error of law or fact upon which

the judgment is based;

(2) the movant presents newly discovered or previously unavailable evidence;

(3) the motion is necessary in order to prevent manifest injustice; or

(4) the motion is justified by an intervening change in controlling law.109

A motion for reconsideration, “‘[is] not the proper vehicle for rehashing evidence, legal

theories, or arguments . . . .’”110 Instead, such motions “serve the narrow purpose of allowing a

party to correct manifest errors of law or fact or to present newly discovered evidence.”111 “It is

well settled that motions for reconsideration should not be used . . . to re-urge matters that have

already been advanced by a party.”112 When there exists no independent reason for reconsideration

106 Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).

107 Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

108 Schiller v. Physicians Res. Grp, Inc., 342 F.3d 563, 567 (5th Cir. 2003); Castrillo v. Am. Home Mortgage

Servicing, Inc., No. 09-4369 R, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (Vance, J.).

109 See, e.g., Castrillo, 2010 WL 1424398, at *4 (citations omitted).

110 Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)).

111 See Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (citation and internal quotation marks

omitted).

112 Helena Labs. Corp. v. Alpha Sci. Corp., 483 F. Supp. 2d 538, 539 (E.D. Tex. 2007) (citing Browning v.

Navarro, 894 F.2d 99, 100 (5th Cir. 1990)).

16

other than mere disagreement with a prior order, reconsideration is a waste of judicial time and

resources and should not be granted.113

IV. Analysis

A. Whether Avondale is Entitled to Reconsideration

Avondale requests reconsideration of the state court’s order denying Avondale’s motion

for partial summary judgment.114 While Avondale maintains that it would have appealed the

decision of the Civil District Court had the case not been removed, Avondale has not presented

any newly discovered or previously unavailable evidence, nor does Avondale identify a change of

law that would warrant granting the motion.115 In its reply memorandum, Avondale contends that

reconsideration principles are not applicable here, but cites no authority in support of that

conclusion.116 In the alternative, Avondale argues that if reconsideration principles are applicable,

this motion is necessary to correct a manifest error of law because the state court did not consider

the Orders of other district judges in the United States District Court for the Eastern District of

Louisiana on this issue.117 Avondale points to Vedros v. Northrop Grumman Shipbuilding Inc. et

al., in which another section of this Court granted summary judgment in an allegedly similar

case.118

113 Livingston Downs Racing Ass’n v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 481 (M.D. La. 2002).

See also Mata v. Schoch, 337 B.R. 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was

presented); FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion merely

disagreed with the court and did not demonstrate clear error of law or manifest injustice).

114 Rec. Doc. 31-1. The motion for summary judgment at issue was already denied by Judge Sidney Cates,

IV prior to the second removal of this case to federal court. Rec. Doc. 91-4.

115 Id. at 2.

116 Rec. Doc. 135 at 9.

117 Id.

118 Rec. Doc. 31-1 at 2 (citing Vedros v. Northrop Grumman Shipbuilding Inc. et al., No. 2:11-cv-01198,

2014 WL 906164, at *3 (E.D. La. Mar. 7, 2014)).

17

The Court must first determine the proper procedure to follow in resolving a motion for

reconsideration of a state court’s order denying a motion for summary before the case was removed

to federal court. Namely, the Court must determine what degree of deference is owed to an

interlocutory state court order once a case has been removed to federal court. After removal of an

action to federal district court, “[a]ll injunctions, orders, and other proceedings had in such action

prior to its removal shall remain in full force and effect until dissolved or modified by the [federal]

district court.”119 The Fifth Circuit addressed this issue in Nissho–Iwai American Corp. v. Kline.120

There, a Texas state court granted a plaintiff’s motion to strike a defendant’s defenses and

counterclaims before the case was removed to federal court.121 In addressing the issue of deference,

the Fifth Circuit concluded that where “the state court’s ruling is purely interlocutory, it remains

subject to reconsideration just as it had been prior to removal.”122 The Fifth Circuit reasoned that

“judicial economy is served by eliminating the need for duplicative proceedings in federal

court.”123 However, the Fifth Circuit held that federal procedure rather than state procedure governs

the manner in which the state court decision is to be enforced.124 “In sum, whenever a case is

removed, interlocutory state court orders are transformed by operation of 28 U.S.C. § 1450 into

orders of the federal district court to which the action is removed. The district court is thereupon

119 28 U.S.C. § 1450.

120 845 F.2d 1300 (5th Cir. 1988).

121 Id.

122 Id. at 1303 (citing General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 267,

(1922)).

123 Id.

124 Id.

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free to treat the order as it would any such interlocutory order it might itself have entered.”125

The Fifth Circuit addressed the specific issue of a state court deciding a motion for

summary judgment and a subsequent removal to federal court in Resolution Trust Corp. v.

Northpark Joint Venture.126 There, the Fifth Circuit held that a “prior state court order in essence

is federalized when the action is removed to federal court, although the order ‘remains subject to

reconsideration just as it had been prior to removal.’”127 In other words, the Federal Rules of Civil

Procedure govern the enforcement of a prior state court ruling in a case removed to federal court.128

Therefore, where the prior state court order was decided on summary judgment, the federal

court must ensure that the order is consistent with the requirements of Federal Rule of Civil

Procedure 56.129 “If the federal court declines to reconsider the state court summary judgment, then

the federal court certifies that the order is indeed consistent with Rule 56(c).”130 “The standard of

review is the same as if the federal court itself had entered the order. . .”131

The Fifth Circuit’s opinions in Nissho–Iwai American Corp. and Resolution Trust Corp.

show that (1) when a case is removed from state court, all orders of the state court remain in full

force and effect and (2) once removed, federal procedure governs the manner of enforcement of

the state court order.132 When this case was removed to federal court, the state court had denied

125 Id. at 1304.

126 958 F.2d 1313 (5th Cir. 1992).

127 Id. at 1316 (quoting Nissho–Iwai American Corp., 845 F.2d at 1303).

128 Id.

129 Id.

130 Id.

131 Id.

132 Nissho–Iwai American Corp., 845 F.2d at 1303; Resolution Trust Corp., 958 F.2d at 1316.

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Avondale’s motion for summary judgment.133 Here, as in Nissho–Iwai American Corp. and

Resolution Trust Corp., the order entered by the state court is an interlocutory order.134 The Fifth

Circuit instructs federal district courts to treat interlocutory state court orders as orders of the

federal district court to which the action is removed. The district court may treat the state court

order as it would any interlocutory order it might itself have entered. Specifically, when the state

court order is on summary judgment, the federal district court may decline to reconsider the state

court’s order if the federal court certifies that the order is indeed consistent with Federal Rule of

Civil Procedure 56(c).

Here, Avondale has not shown any substantial reasons warranting reconsideration of the

state court’s ruling. Furthermore, for the reasons that follow, even if the Court were considering

this motion for the first time under the summary judgment standard rather than the reconsideration

standard, there are genuine issues of material fact in dispute precluding summary judgment.

B. Whether Avondale is Entitled to Summary Judgment on Plaintiffs’ Intentional Tort

Claims

As an initial matter, the Court notes that generally, summary judgment is disfavored when

issues of intent or state of mind are involved because those determinations are inherently a question

of fact which turns on credibility.135 However, a court is not precluded from granting summary

judgment where elusive concepts such as motive or intent are at issue.136 But the Fifth Circuit has

133 Rec. Doc. 91-4.

134 Under Louisiana law, a denial of summary judgment is an interlocutory order that is not final or

appealable unless there is a showing of irreparable injury. See Jones v. Next Generation Homes, LLC, 2011-0407

(La. App. 4 Cir. 10/5/11), 76 So. 3d 1238, writ denied, 2011-2401 (La. 11/23/11), 76 So. 3d 433; La. C.C.P. art.

2083.

135 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265-66 (5th Cir. 1991) (“When state of mind

is an essential element of the nonmoving party's claim, it is less fashionable to grant summary judgment because a

party’s state of mind is inherently a question of fact which turns on credibility.”).

136 Id. at 1266 (“This is not to say that the court can never enter summary judgment when intent or state of

mind is at issue, only that the court must recognize that undermining the moving party’s professed state of mind is not

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cautioned that “the court must be vigilant to draw every reasonable inference from the evidence in

the record in a light most flattering to the nonmoving party.”137 For example, summary judgment

may still be appropriate when intent or state of mind is at issue if the non-moving party merely

rests on conclusory allegations or unsupported speculation.138 As will be explained below, this is

not such a case.

To prove that a defendant committed an intentional tort under Louisiana law, a plaintiff

must show that a defendant either “‘(1) consciously desires the physical result of his act, whatever

the likelihood of that result happening from his conduct; or (2) knows that the result is substantially

certain to follow from his conduct, whatever his desire may be as to that result.’”139 “Thus, intent

has reference to the consequences of an act rather than to the act itself.”140 Therefore, Plaintiffs

must prove that Avondale either consciously desired that Decedent would contract lung cancer, or

knew that result was “substantially certain to follow from [their] conduct.”141 Plaintiffs do not

address the first prong, but instead argue that Avondale and its executive officers knew of the

hazards of asbestos and were substantially certain that disease would occur.142

Substantial certainty “requires more than a reasonable probability that an injury will

a simple task. Therefore, the court must be vigilant to draw every reasonable inference from the evidence in the record

in a light most flattering to the nonmoving party.”).

137 Id.

138 Id.

139 Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208) (quoting Bazley v. Tortorich, 397

So. 2d 475, 481 (La. 1981).

140 Bazley v. Tortorich, 397 So. 2d 475, 481 (La. 1981).

141 Zimko v. Am. Cyanamid, 2003–0658 (La. App. 4 Cir. 6/8/05); 905 So. 2d 465, 475, cert. denied, 2005–

2102 (La.3/17/06), 925 So. 2d 538 (internal citations omitted).

142 Rec. Doc. 91 at 8.

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occur.”143 To satisfy the criterion of “substantial certainty,” Plaintiffs must prove that Decedent’s

contracting lung cancer was “inevitable or incapable of failing.”144 “[M]ere knowledge and

appreciation of a risk does not constitute intent, nor does reckless or wanton conduct.”145 The

“belie[f] that someone may, or even probably will, eventually get hurt if a workplace practice is

continued does not rise to the level of intentional tort, but instead falls within the range of negligent

acts . . .”146 To prove a claim for intentional tort, Plaintiffs would have to show that Avondale’s

“conduct [went] beyond knowingly permitting a hazardous work condition to exist, ordering an

employee to perform an extremely dangerous job, or willfully failing to furnish a safe place to

work . . .”147

Here, there are questions of fact in dispute regarding whether Avondale knew that it was

substantially certain that Decedent would contract lung cancer. Plaintiffs have presented evidence

to show that Avondale and its executive officers knew of the hazards of asbestos. For example,

Plaintiffs present the deposition of Danny Joyce, Avondale’s corporate representative and

industrial hygiene expert, who confirmed that Avondale had knowledge of government regulations

of asbestos as early as the 1940s.148 Plaintiffs submit the deposition of Ollie Gatlin, a former

Avondale executive, who stated that he knew that asbestos was a health hazard in 1960.149 Plaintiffs

attach the deposition of C. Edwin Hartzman, the President of Avondale Shipyards beginning in

143 Reeves, 731 So. 2d at 213 (internal citations omitted).

144 Id. (internal citations omitted).

145 Id. (internal citations omitted).

146 Id. at 214.

147 Zimko, 905 So. 2d at 477 (internal citations omitted).

148 Rec. Docs 91-44.

149 Rec. Doc. 91-33.

22

1972, who testified that responsibility for safety initiatives ultimately rested with the other

executive officers.150 Plaintiffs attach the deposition of Edward Blanchard, Superintendent of the

Production Department, who also confirmed that he would have to approve a request from the

safety department to stop production for safety reason.151 Plaintiffs also attach deposition testimony

which shows that several individuals involved in the safety department at Avondale were aware of

the health hazards of asbestos.152 Plaintiffs attach the deposition of Dr. Mabey, a contract physician

for Avondale Shipyards, who admitted that he knew of the hazards of asbestos since the 1940s.153

Based on the evidence presented by Plaintiffs, the Court finds that Avondale and its

executives knew of the hazards of asbestos. As to the criterion of “substantial certainty,” the Court

finds that genuine issues of material fact remain as to whether it was substantially certain that

Decedent would contract lung cancer; therefore, summary judgment is denied. In particular, the

Fifth Circuit has repeatedly held that summary judgment is generally disfavored when issues of

intent or state of mind are involved because those determinations are inherently a question of fact

which turns on credibility.154 Here, the Court cannot determine at the summary judgment stage

whether Avondale was substantially certain that Decedent would contract lung cancer based on its

conduct. This is not a case in which the non-moving party merely rests on conclusory allegations

or unsupported speculation. Because genuine issues of material fact remain, this matter cannot be

resolved on summary judgment.

150 Rec. Doc. 91-37.

151 Rec. Doc. 91-38.

152 Rec. Docs 91-9, 91-15, 91-39, 91-51.

153 Rec. Doc. 91-60.

154 International Shortstop, Inc., 939 F.2d at 1265-66 (“When state of mind is an essential element of the

nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently

a question of fact which turns on credibility.”).

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C. Whether Avondale is Entitled to Summary Judgment on Plaintiffs’ Fraud Claims

In Louisiana, the elements of a claim for fraud are: (1) a misrepresentation of a material

fact, (2) made with the intent to deceive, and (3) causing justifiable reliance with resultant injury.155

Therefore, in order to succeed on a tort claim for fraud, Plaintiffs must prove that (1) Avondale

misrepresented a material fact, (2) with the intent to deceive, and (3) caused justifiable reliance

and resultant injury.156 Under Louisiana law, fraud may result from silence or inaction.157 However,

“[i]n order to find fraud from silence or suppression of the truth, there must exist a duty to speak

or disclose information . . . And while fraud may indeed result from a party’s silence or inaction,

mere silence or inaction without fraudulent intent does not constitute fraud. Fraudulent intent, or

the intent to deceive, is a necessary and inherent element of fraud.”158

As discussed above, Plaintiffs have presented evidence to show that Avondale and its

executive officers were aware of the hazards of asbestos and remained silent or did not act.

Furthermore, the Fifth Circuit has repeatedly held that summary judgment is generally disfavored

when issues of intent or state of mind are involved because those determinations are inherently a

question of fact which turns on credibility.159 Here, the Court cannot determine at the summary

judgment stage whether Avondale intended to deceive Decedent. Accordingly, summary judgment

155 Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 627 (5th Cir. 1999).

156 Id.

157 La. Civ. Code art. 1953 (“Fraud is a misrepresentation or a suppression of the trust made with the intention

either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also

result from silence or inaction.”).

158 Terrebonne Concrete, LLC v. CEC Enterprises, LLC, 2011-0072 (La. App. 1 Cir. 8/17/11), 76 So. 3d

502, 509, writ denied, 2011-2021 (La. 11/18/11), 75 So. 3d 464 (internal citations omitted).

159 International Shortstop, Inc., 939 F.2d at 1265-66 (“When state of mind is an essential element of the

nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently

a question of fact which turns on credibility.”).

24

is inappropriate at this stage.

D. Whether Avondale is Entitled to Summary Judgment as to Wrongful Death Claims

Avondale argues that Plaintiffs’ wrongful death claims should be dismissed because they

are governed by the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).160 Avondale

argues that, pursuant to Louisiana Revised Statute § 23:1035.2, workers’ compensation under the

LHWCA is a Louisiana employee’s sole remedy.161 In opposition, Plaintiffs argue that they have

elected Louisiana state law remedies, rather than worker’s compensation benefits, and that

therefore, the LHWCA does not preempt Plaintiffs’ state law claims.162

While “the LHWCA does not have a specific provision expressly stating that an employer’s

intentional tort is an exception to the statute’s ‘exclusive remedy’ provision . . . a number of court

decisions, from Louisiana and from other jurisdictions, have stated that an employer’s intentional

tort is an exception to the exclusive remedy provision of the LHWCA and that, in such cases, the

employee may bring a tort action against the employer.”163 However, those courts “strictly . . .

applied the exception for intentional torts.”164 For example, “‘[n]othing short of a specific intent to

injure the employee falls outside of the scope of the [LHWCA].’”165 Therefore, a plaintiff must

show that the defendant had a specific intent to injure the plaintiff.

160 Rec. Doc. 31-1 at 19.

161 Id.

162 Rec. Doc. 91 at 7–8.

163 Taylor v. Transocean Terminal Operators, Inc., 2000-0604 (La. App. 4 Cir. 3/14/01), 785 So. 2d 860,

863 writ denied, 2001-1057 (La. 6/15/01), 793 So. 2d 1243

164 Id.

165 Bordelon v. Avondale Indus., Inc., 03–228 (La. App. 5 Cir. 5/28/03), 846 So.2d 993, writ denied, 03–

2074 (La.11/7/03), 857 So.2d 497 (quoting Austin v. Johns–Manville Sales Corp., 508 F.Supp. 313, 316 (D. Me.

1981)).

25

As discussed above, Plaintiffs have presented evidence to show that Avondale and its

executive officers were aware of the hazards of asbestos. Furthermore, the Fifth Circuit has

repeatedly held that summary judgment is generally disfavored when issues of intent or state of

mind are involved because those determinations are inherently a question of fact which turns on

credibility.166 Here, the Court cannot determine at the summary judgment stage whether Avondale

had a specific intent to injure Decedent. Accordingly, summary judgment is inappropriate at this

stage.

V. Conclusion

For the reasons discussed above, Avondale’s motion for summary judgment is denied.

Avondale has not shown any substantial reasons warranting reconsideration of the state court’s

ruling. Furthermore, even if the Court were considering this motion for the first time under the

summary judgment standard rather than the reconsideration standard, there are genuine issues of

material fact regarding whether Avondale knew that it was substantially certain that Decedent

would contract lung cancer. Plaintiffs have provided evidence to show that Avondale and its

executive officers knew of the hazards of asbestos. The Fifth Circuit has repeatedly held that

summary judgment is generally disfavored when issues of intent or state of mind are involved

because those determinations are inherently a question of fact which turns on credibility. Here, the

Court cannot determine at the summary judgment stage whether Avondale was substantially

certain that Decedent would contract lung cancer based on its conduct.

Accordingly,

166 International Shortstop, Inc., 939 F.2d at 1265-66 (“When state of mind is an essential element of the

nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently

a question of fact which turns on credibility.”).

26

IT IS HEREBY ORDERED that Avondale’s “Motion for Partial Summary Judgment on

Plaintiffs’ Intentional Tort, Fraud and Concealment Claims”! is DENIED.

NEW ORLEANS, LOUISIANA, this 27th day of April, 2020.

NNETTE JOLI TE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

167 Rec. Doe. 31.

27