The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FEDERICO LOPEZ ET AL CIVIL ACTION
VERSUS NO. 17-8977
CONS. W/ 19-9928
MCDERMOTT, INC ET AL SECTION "L" (5)
THIS ORDER RELATES TO: 17-8977
ORDER & REASONS
Pending before the Court is a motion for summary judgment filed by Defendant Crosby
Valves, R. Docs. 453, 479. Plaintiffs oppose the motion. R. Doc. 504. Defendant has filed a reply.
R. Doc. 516. Oral argument was held on Wednesday, June 24, 2020 at 10:00 a.m. Having
considered the parties’ arguments and the applicable law, the Court now rules as follows.
I. BACKGROUND
In June 2017, Plaintiff Federico Lopez brought this lawsuit for asbestos exposure in
Orleans Parish Civil District Court. R. Doc. 1-2 at 2. On September 13, 2017, the case was removed
to this Court. Mr. Lopez died on November 9, 2017 after filing this claim. R. Doc. 61 at 1.
Thereafter, his surviving spouse, Maricela Lopez, and surviving child, Federico Lopez III,
maintained the case on Mr. Lopez’s behalf and asserted a wrongful death claim. R. Doc. 61 at 1.
The Lopez Plaintiffs filed a Sixth Amended Petition for Damages on September 24, 2018. R. Doc.
360.
In the operative complaint, Plaintiffs allege that Mr. Lopez was exposed to asbestos-
containing products while employed as a welder/pipefitter by Kellog Brown and Root (“Brown
and Root”) between 1973 and 1986. R. Doc. 360 at 2. Plaintiffs contend these exposures caused
him to contract malignant mesothelioma later in life. R. Doc. 360 at 2. Plaintiffs brought suit
against a number of defendants who manufactured asbestos containing products or owned the
premises upon which the asbestos-containing products were used. R. Doc. 360 at 3. Plaintiffs’
claims against these manufacturers and premises owners sound in negligence and strict liability.
On November 8, 2018, Plaintiffs Jessica and Alfred Soliz filed suit in the 19th Judicial
Court for the Parish of East Baton Rouge asserting strict liability and negligence claims on behalf
of Mr. Lopez, alleging they were also Mr. Lopez’s children. No. 19-9928, R. Doc. 1-2. This case
was transferred to this Court on March 8, 2019, R. Doc. 1, and consolidated with the Lopez matter
on June 10, 2019, R. Doc. 21.
II. PRESENT MOTION
Defendant Crosby Valves (“Crosby”) has filed a motion for summary judgment in the
Lopez matter.1 First, Crosby Valves argues that there is no admissible evidence that a Crosby-
manufactured product exposed Mr. Lopez to asbestos because Mr. Lopez’s testimony is
inadmissible hearsay under both the Louisiana Code of Evidence and the Louisiana Code of Civil
procedure. R. Doc. 479 at 6–9. Specifically, Crosby contends that Mr. Lopez’s former deposition
testimony is inadmissible because neither Crosby nor a similarly situated valve defendant was
present at his deposition. R. Doc. 479 at 6–7.
Second, Crosby argues that even if Mr. Lopez’s testimony is admissible, Plaintiffs cannot
prove that exposure to its products was a substantial cause of Mr. Lopez’s mesothelioma as
required under Louisiana law. R. Doc. 479 at 9. Specifically, Crosby Valves cites the depositions
1 Crosby initially filed a motion for summary judgment on February 28, 2020. R. Doc. 453. On March 6,
2020, Crosby filed a supplemental and updated memorandum in support of its motion for summary judgment that
narrowed the issues presented in the motion. R. Doc. 479. The Court refers to the amended memorandum throughout
this Order and Reasons.
of two of Plaintiffs’ experts, Dr. Abraham and Mr. Ewing, claiming that neither expert provides
“a specific opinion that exposure to Crosby products was a substantial cause of Decedent’s
mesothelioma.” R. Doc. 479 at 11.
Plaintiffs oppose Crosby’s motion for summary judgment. R. Doc. 504. As an initial
matter, Plaintiffs clarify that their claims against Crosby involve exposure not from Crosby’s valve
products themselves, but from asbestos-containing components of those valves, such as flange
gaskets and packing products. R. Doc. 504 at 5. Accordingly, Plaintiffs contend Mr. Lopez’s
testimony is admissible against Crosby because his deposition was attended by gasket and packing
manufacturer defendants who had a similar motive and opportunity to cross-examine him.
Moreover, Plaintiffs argue that even if Mr. Lopez’s testimony is inadmissible, the testimony of
Mr. Lopez’s coworkers is sufficient to demonstrate exposure to a Crosby product. R. Doc. 504 at
13-14. Lastly, Plaintiffs maintain they have established that Mr. Lopez’s work with Crosby
products was a substantial cause of his mesothelioma, citing the testimony of Mr. Ewing, an
industrial hygienist who indicated that Mr. Lopez experienced above-background levels of
exposure while performing routine tasks for Brown and Root and that all of these exposures
substantially caused his malignant mesothelioma. R. Doc. 504 at 21.
In reply, Crosby contends any gasket defendants present at Mr. Lopez’s deposition would
not have shared Crosby’s interest or motive in cross-examining the deponent. Instead, Crosby
argues, all defendants in asbestos litigation are motivated to “establish[] the liability of as many
parties as possible to . . . limit the potential damages against them” under the virile share analysis.
R. Doc. 516 at 3. Crosby further argues the testimony of Mr. Lopez’s co-worker is insufficient to
demonstrate Mr. Lopez’s alleged exposure because his coworker “expressly testified that he never
saw Mr. Lopez work with, on, or around a Crosby piece of equipment.” R. Doc. 516 at 4. Lastly,
Crosby stresses again that neither of Plaintiffs’ experts opined specifically about exposure related
to any Crosby products. R. Doc. 516 at 5.
III. LAW & ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the 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.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving for
summary judgment bears the initial burden of demonstrating the basis for summary judgment and
identifying those portions of the record, discovery, and any affidavits supporting the conclusion
that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden,
then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the
existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th
Cir. 1994); Anderson, 477 U.S. at 249–50. In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d
1257, 1263 (5th Cir. 1991). Furthermore, a court must assess the evidence, review the facts and
draw any appropriate inferences based on the evidence in the light most favorable to the party
opposing summary judgment. See Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001);
Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).
B. Causation
To prevail in an asbestos case under Louisiana law, a plaintiff “must prove by a
preponderance of the evidence that: (1) his exposure to the defendant’s asbestos product was
significant; and (2) that this exposure caused or was a substantial factor in bringing about his
mesothelioma.” Romano v. Metro Life Ins. Co., 2016-0954 (La. App. 4 Cir. 5/24/17), 221 So.3d
176, 182; see also Palermo v. Port of New Orleans, 2004-1804 (La. App. 4 Cir. 3/15/06), 933 So.
2d 168, 181 (“To determine whether a particular source of exposure to asbestos was a cause-in-
fact of a plaintiff's asbestos-related disease, Louisiana courts employ a “substantial factor” test.
Simply stated, the particular exposure must be a substantial contributing factor to the plaintiff's
disease.”). “When multiple causes of injury are present, a defendant's conduct is a cause in fact if
it is a substantial factor generating plaintiff's harm. There can be more than one cause in fact of an
accident as long as each cause bears a proximate relation to the harm that occurs and it is substantial
in nature.” Vodanovich v. A.P. Green Industries, Inc., 03-1079, pp. 3-4 (La. App. 4 Cir. 3/3/04),
869 So. 2d 930, 932–33 (citation omitted). “Whether the defendant's conduct was a substantial
factor is a question for the jury, unless the court determines that reasonable men could not differ.”
Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1094 (5th Cir. 1973).
Accordingly, in this case, the Lopez Plaintiffs bear the burden of proving that Mr. Lopez
was exposed to asbestos attributable to Crosby and that this exposure was a substantial factor in
the development of his disease. Defendant contends the only evidence of exposure is found in Mr.
Lopez’s deposition testimony, which constitutes inadmissible hearsay. The Court considers this
argument before turning to the sufficiency of the evidence regarding exposure and causation.
1. Whether Mr. Lopez’s testimony is admissible against Crosby
Crosby contends the only evidence that Mr. Lopez was exposed to asbestos attributable to
a Crosby product comes from Mr. Lopez’s deposition testimony, which is inadmissible for use
against Crosby under the Louisiana Code of Evidence and the Louisiana Civil Code. Crosby
maintains that because neither Crosby nor a similarly situated defendant attended Mr. Lopez’s
deposition, his testimony is inadmissible hearsay. R. Doc. 479 at 9.
Like the Federal Rules of Evidence, the Louisiana Code of Evidence generally provides
that hearsay—meaning “a statement, other than one made by the declarant while testifying at the
present trial or hearing, offered in evidence to prove the truth of the matter asserted”—is typically
inadmissible. La. Code Evid. art 801(C). Nevertheless, the hearsay rule is riddled with exceptions.
Id. arts. 802-804. One such exception exists for former testimony provided by an unavailable
declarant. Id. art. 804(B)(1). An unavailable declarant is one who “cannot or will not appear in
court and testify to the substance of his statement made outside of court.” Id. art. 804(A).
Specifically, the rule provides:
[t]estimony given as a witness at another hearing of the same or a different
proceeding, if the party against whom the testimony is now offered, or, in a civil
action or proceeding, a party with a similar interest, had an opportunity and
similar motive to develop the testimony by direct, cross, or redirect examination
. . .
Id. art. 804(B)(1). The proponent of the proffered evidence bears the burden of demonstrating that
a hearsay exception applies. See, e.g., Bergeron v. Great W. Cas. Co., No. CIV.A. 14-13, 2015
WL 3505091, at *4 (E.D. La. June 3, 2015).
Here, Mr. Lopez is deceased, and his prior testimony was given under oath; accordingly,
he undisputedly qualifies as an unavailable declarant. His deposition testimony, if offered to prove
that Mr. Lopez worked with products manufactured by Crosby, would undoubtedly constitute
hearsay. The question is, therefore, whether “a party with a similar interest”
to Crosby “had an opportunity and similar motive to develop [his] testimony by direct, cross, or
redirect examination” during his deposition.2 La. Code Evid. art. 804(b)(1).
To establish “opportunity and similar motive” in cases in which the parties in the current
and former proceedings are different, the Fifth Circuit has endorsed a “fact-specific” inquiry that
considers whether the questioner “is on the same side of the same issue at both proceedings” and
“whether the questioner had a substantially similar interest in asserting and prevailing on the
issue.” Battle ex rel. Battle v. Mem'l Hosp. at Gulfport, 228 F.3d 544, 552 (5th Cir. 2000) (citing
United States v. DiNapoli, 8 F.3d 909, 912 (2nd Cir. 1993)) (considering the almost identical
federal rule). As another court put it, “there must be ‘sufficient identity of issues to ensure that
cross examination in the former case was directed to the issues presently relevant, and that the
former parties were the same in motive and interest.’” Holmquist, 800 F. Supp. 2d at 310
(quoting Hicks Co. v. Commissioner, 470 F.2d 87, 90 (1st Cir. 1972)). “Because similar motive
does not mean identical motive, the similar-motive inquiry is inherently a factual inquiry,
depending in part on the similarity of the underlying issues and on the context of the questioning.”
Battle, 228 F.3d at 552.
2 The Louisiana rule is remarkably similar to Federal Rule of Evidence 804(b)(1), which allows for the
admission of former testimony offered against a party whose predecessor in interest had “an opportunity and similar
motive to develop it by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1). In fact, the comments to
Louisiana’s exception under 804(b)(1) indicate that the Louisiana rule was modified to clarify and broaden the
exception by replacing “a predecessor in interest” with “a party with a similar interest.” La. Code Evid. 804, Comments
to Exception (B)(1) – 1988. This change, the comments continue, “creates in civil cases a broader exception to the
hearsay rule than that presumably intended by the United States House of Representatives in its amendment to the”
federal hearsay rule. Id.
In the instant case, Plaintiffs’ claims against Crosby arise from alleged asbestos exposure
not from the valves themselves, but from work on gaskets and packing, the incorporation of which
is necessary for the valves to function as intended. Plaintiffs therefore assert that even though
Crosby itself did not attend Mr. Lopez’s deposition, its interests were safeguarded by the presence
of gasket and packing defendants, such as John Crane, who had the motivation and opportunity to
cross-examine Mr. Lopez about his work with such products. Crosby firmly denies that any party
present at the deposition shared its motive to develop Mr. Lopez’s testimony. In particular, Crosby
suggests that John Crane and any other gasket or packing defendants did not share its “similar
motive” because in an asbestos case, each defendant is motivated to pin liability on as many other
parties as possible to reduce its respective virile share. R. Doc. 507-2 at 3. Additionally, Crosby’s
counsel suggested at oral argument that John Crane was clearly not similarly motivated because
John Crane’s attorney focused the majority of his questioning on exposure to gaskets and packing
that occurred while Mr. Lopez was employed by Lamons Gasket Company, not Brown and Root.
Accordingly, counsel suggests that the actual questions posed illustrate that Crosby’s interests
were unprotected as no party probed the specific line of testimony it would have attempted to elicit.
The Court concludes that this testimony is admissible against Crosby. While not identical,
John Crane and any other gasket or packing defendants that may have been present at Mr. Lopez’s
deposition had a sufficiently similar motive to that Crosby would have had, had it been present at
the deposition. Although Crosby is certainly correct in suggesting that all defendants in asbestos
cases involving this time period are motivated by demonstrating the liability of other parties to
reduce their own virile share, this is rarely a party’s only motivation. Disproving liability is more
useful a goal than merely reducing it, and other courts have found that defendants in asbestos cases
are primarily motivated by developing a plaintiff’s testimony to show that he was never exposed
to a particular product. See Vedros v. Grumman, No. CIV.A. 11-1198, 2015 WL 3796379, at *4
(E.D. La. June 18, 2015) (“Because both Continental and Maryland Casualty had a primary motive
to develop Vedros's testimony to show that she was never exposed to asbestos through Marquette's
products, the requirements of Rule 804(b)(1) are satisfied.”). Surely here the gasket and packing
manufacturers that attended Mr. Lopez’s deposition were primarily motivated to elicit testimony
about Mr. Lopez’s exposure to their specific products. Accordingly, the Court is convinced that
the defendants here shared a substantially similar motive.
Further, as the Fifth Circuit has stated, “[t]he availability of cross-examination
opportunities that were forgone is one factor to be considered, but is not conclusive because
examiners will virtually always be able to suggest lines of questioning that were not pursued at a
prior proceeding.” Battle, 228 F.3d at 552–53 (concluding that a similarity of interest existed
despite the fact that the representative at the deposition “did not aggressively test [the witness’s]
answers with cross-examination type questions” and was motivated instead “only by the desire to
understand Plaintiffs’ case”). Accordingly, the Court is not convinced that the failure of any gasket
or packing defendant to mimic the exact same line of question that Crosby would have initiated
renders this testimony inadmissible.
Moreover, the admission of this testimony is in line with the purpose of the rules of
evidence as a whole, which are to be construed liberally in favor of the admission of evidence. See
Fed. R. Evid. 402. As the Fifth Circuit has explained, “like other inquiries involving the admission
of evidence, the similar-motive inquiry appropriately reflects narrow concerns of ensuring the
reliability of evidence admitted at trial.” Battle, 228 F.3d at 552. Crosby has not challenged or
provided any reasons to question the reliability of Mr. Lopez’s testimony. Mr. Lopez was
questioned at length by his own counsel and crossed by numerous defendants. He was specifically
asked about his work on Crosby valves and a representative of a company that manufactured
allegedly injurious gaskets and packing and sold them to Crosby was present at the deposition and
questioned him about these products. The fact that the questions were not posed in the same
manner as Crosby wishes and the fact that the other defendant’s motive was not identical does not
render this testimony unreliable or inadmissible.
Crosby also argues that Plaintiffs’ use of Mr. Lopez’s deposition testimony is prohibited
by Louisiana Civil Code article 1432, which allows the use of deposition testimony at trial “in any
action involving the same subject matter subsequently brought in any court of this state,” and
article 1450(A), which allows the use of deposition testimony of an unavailable witness at trial
only “against any party who was present or represented at the taking of the deposition.” La. Code
Civ. P. arts. 1432, 1450(A). Further, the deposition may be used if it would also be admissible
under the Code of Evidence. Id. art. 1450(A). As Crosby recognizes, conflicts between this rule
and Code of Evidence article 804 are committed to the court’s discretion. Id. art 1450(C). The
Court has already resolved the admissibility of Mr. Lopez’s testimony as against Crosby, at least
with respect to Code of Evidence article 804, and nothing about these civil code provisions
warrants a different outcome.
Lastly, Crosby’s reliance on Trascher v. Territo is misplaced. In Trascher, the court
concluded that the deposition testimony of an unavailable witness was inadmissible under article
1450(A) because the defendants did not have the opportunity to cross-examine the witness. 2011-
2093 (La. 5/8/12), 89 So. 3d 357, 364. Notably, however, the witness in Trascher was deposed for
only fifteen minutes due to his ailing health. Id. at 360. The deposition was terminated before
plaintiff’s counsel’s questions were complete, and the witness died before any defendant had the
opportunity to question him. Id. In contrast here, Mr. Lopez was questioned over two days by
numerous defendants, including defendants who, for the reasons explained above, shared Crosby’s
interest in probing Mr. Lopez’s recollection about exposure to asbestos-containing gaskets and
packing. For these reasons, the Court finds that Mr. Lopez’s testimony is admissible in this matter
and notes that his testimony about working on Crosby products is sufficient to raise a genuine issue
of material fact regarding exposure. The Court now considers whether there is sufficient evidence
that exposure to Crosby products was a substantial contributing cause of his illness.
2. Whether exposure to a product manufactured by Crosby or Fisher
substantially contributed to Mr. Lopez’s mesothelioma
Even if Mr. Lopez’s testimony is admissible and sufficient to preclude summary judgment
on the basis of exposure, Crosby contends causation cannot be established because there is no
evidence that exposure to its products was a substantial contributing cause of Mr. Lopez’s
mesothelioma.
To determine whether a particular source of exposure to asbestos was a cause-in-fact of a
plaintiff's asbestos-related disease, Louisiana courts employ a “substantial factor” test. Simply
stated, the particular exposure must be a substantial contributing factor to the plaintiff's
disease.” Palermo, 933 So. 2d at 181. In other words, “[w]hen multiple causes of injury are present,
a defendant's conduct is a cause in fact if it is a substantial factor generating plaintiff's harm. There
can be more than one cause in fact of an accident as long as each cause bears a proximate relation
to the harm that occurs and it is substantial in nature.” Vodanovich, 869 So. 2d at 932–33 (citation
omitted). “Whether the defendant's conduct was a substantial factor in bringing about the harm,
and, thus, a cause-in-fact of the injuries, is a factual question to be determined by the
factfinder.” Perkins v. Entergy Corp., 782 So.2d 606, 612 (La. 2001) (citing Theriot v. Lasseigne,
640 So. 2d 1305, 1310 (1994)).
Considered in the light most favorable to Plaintiffs, the relevant evidence is sufficient to
withstand summary judgment. It is true that Mr. Ewing, the industrial hygiene expert, testified that
he did not have sufficient data to perform dose reconstruction with respect to Crosby specifically.
Ewing Dep. 38:21–25, 39:1–6; 45:19–25; 46:1–4, Jan. 28, 2020. Dr. Abraham, Plaintiffs’ medical
expert also testified that he could not independently quantify which products or pieces of
equipment specifically caused Mr. Lopez’s disease. Abraham Dep., 65:15–22, Feb. 12, 2020.
However, Mr. Lopez and his co-worker, Mr. Buchanan, both testified about repairing and
replacing gaskets on Crosby valves using putty knives, scrapers, wire brushes, and electric wheels,
in a fashion that created dusty conditions which affected their breathing and got on their clothes.
Lopez Dep. 74:05–76:14, 77:1–78:1; 240:22–241:09, Aug. 16, 2017; Buchanan Dep. 29:06–20,
Sep. 9, 2019.
After reviewing this testimony and the relevant scientific literature, Mr. Ewing opined that
this activity would likely produce exposures in the range of 0.05 f/cc to 1.0 f/cc, or above-
background levels. R. Doc. 504-7 at 12. He explained that his opinions were based on “packaging
and gasket exposures, not about what brand of valve might have been on one side of a flange or
not,” and that he relied on eyewitness testimony of product identification witnesses because he had
no independent knowledge of the products at Mr. Lopez’s worksite. Ewing Dep. 119:20–120:18;
120:25; 123:4–9. Dr. Abraham relied on Mr. Ewing’s report and testified that the above-
background level exposures experienced by Mr. Lopez while working on gaskets and valves was
a substantial cause of his mesothelioma. R. Doc. 504-9 at 4–5, 8, 9; Abraham Dep., 64:24–67:14.
This evidence, viewed in the light most favorable to Plaintiffs, is sufficient to indicate that a
genuine question of material fact exists with respect to whether Mr. Lopez’s exposure to asbestos
attributable to Crosby was a substantial contributmg cause of his mesothelioma. Accordingly,
summary judgment is not appropriate.
IV. CONCLUSION
Considering the foregoing.
IT IS ORDERED that Defendant Crosby’s Motion for Summary Judgment, R. Doc. 453,
is DENIED.
New Orleans, Louisiana this 2nd day of July, 2020.
Beg CM
Eldon E. Fallon
United States District Court
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