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 Defendants Albert L. Bossier, Jr. (“Bossier”) and Lamorak Insurance

Company’s (“Lamorak”)1 (collectively, the “Avondale Interests”) “Motion for Partial Summary

Judgment Seeking Dismissal of Plaintiffs’ Intentional Tort, Fraud and Concealment Claims.”2 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 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”).3 In the instant motion, the Avondale Interests

1 Lamorak brings this motion in its capacity as the insurer of alleged Avondale executive officers Albert L.

Bossier, Jr., Henry Zac Carter, James O’Donnell, Edwin Hartzman, John McCue, Burnette “Frenchy” Bordelon,

Ewing Moore, Hettie Dawes Eaves, John Chantrey, Steven Kennedy, Peter Territo, George Kelmell, Ollie Gatlin, Earl

Spooner, Edward Blanchard, James T. Cole, J. Melton Garrett, and Dr. Joseph Mabey.

2 Rec. Doc. 33.

3 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

1

argues that Plaintiffs’ intentional tort survival claims should be dismissed because Plaintiffs cannot

show that the Avondale Interests either (1) consciously desired that Decedent contract lung cancer

or (2) knew that Decedent’s lung cancer was substantially certain to occur.4 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

1994.5 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.6 Plaintiffs assert strict liability and negligence

claims against various Defendants.7 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.8

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

4 Rec. Doc. 33-1 at 1–2.

5 Rec. Doc. 1-2 at 5.

6 Id.

7 Id. at 7–8.

8 Id.

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B. Procedural Background

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

Orleans, State of Louisiana, on March 14, 2018.9 Defendants Huntington Ingalls Incorporated,

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

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

first time on June 21, 2018.10 In the first notice of removal, the Removing Parties 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).”11

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

of Orleans.12 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.13

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.14 This determination was based on

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

Removing Parties.15 Defendants did not appeal the January 7, 2019 Order.

9 Id. at 2–3

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

11 Id.

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

13 Id. at 31.

14 Id.

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

3

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

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

17, 2019.16 Trial was scheduled to begin before the state trial court on January 13, 2020. 17 The

amended petition does not purport to assert any strict liability claims against Avondale.18

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

Eastern District of Louisiana for a second time.19 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).”20 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.21 On January 10, 2020, Plaintiffs filed

an “Emergency Motion to Remand”22 and an “Ex Parte Motion for Expedited Hearing and for

Emergency Ruling.”23

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).

16 Rec. Doc. 1-8.

17 Rec. Doc. 1-12.

18 Rec. Doc. 1-8.

19 Rec. Doc. 1.

20 Id. at 2.

21 Id. at 4–5.

22 Rec. Doc. 4.

23 Rec. Doc. 5.

4

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.24 Specifically, the Court

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

basis for the second removal.25 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.26

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

Summary Judgment Seeking Dismissal of Plaintiffs’ Intentional Tort, Fraud and Concealment

Claims.”27 On March 3, 2020, Plaintiffs filed an opposition to the instant motion.28 The Avondale

Interests, with leave of Court, filed a reply brief in further support of the motion on March 16,

2020.29

II. Parties= Arguments

A. The Avondale Interests’ Argument in Support of the Motion

In the instant motion, the Avondale Interests argue that Plaintiffs’ intentional tort claims

24 Rec. Doc. 17.

25 Id. at 20–22.

26 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.

27 Rec. Doc. 33.

28 Rec. Doc. 91.

29 Rec. Doc. 133.

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should be dismissed because Plaintiffs cannot show that the Avondale Interests either (1)

consciously desired that Decedent contract lung cancer or (2) knew that Decedent’s lung cancer

was substantially certain to occur.30

First, the Avondale Interests contend 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.31 The

Avondale Interests contend that Plaintiffs have no evidence to satisfy either prong.32 Regarding

the first prong, the Avondale Interests argues that there is no evidence that the Avondale Interests

consciously desired for Decedent to contract lung cancer and die.33 The Avondale Interests contend

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.34 The

Avondale Interests argues that Plaintiffs’ allegations fall within these previously identified

categories that were deemed insufficient to constitute an intentional tort claim.35

Regarding the second prong, the Avondale Interests contend that Plaintiffs cannot show

that Avondale knew that Decedent’s lung cancer was substantially certain to follow from their

conduct.36 Avondale argues that the “substantial certainty” test is not satisfied, even if the

employer believes that an individual may, or even probably will, be injured by a workplace

30 Rec. Doc. 33-1 at 1–2.

31 Id. at 6 (citing Landry v. Uniroyal Chemical Co., Inc., 653 So.2d 1199, 1202-03 (La. App. 1 Cir. 1995)).

32 Id. at 7.

33 Id.

34 Id. at 8–9.

35 Id. at 9.

36 Id. at 10.

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practice.37 The Avondale Interests contend 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.38 Therefore, Avondale argues that Plaintiffs do not meet the

“substantial certainty” prong of the intentional tort standard.39

Additionally, the Avondale Interests argue 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.40 The Avondale Interests contend 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.’”41 Therefore, the Avondale Interests argue that here, Plaintiffs must show that (1)

Avondale and/or its alleged executive officers represented to Decedent that asbestos was safe, or

(2) that Avondale and/or its alleged executive officers suppressed information from Decedent, or

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

its alleged executive officers’ representations regarding asbestos.42 The Avondale Interests

contend that Plaintiffs will be unable to offer evidence to support a claim of fraud and

37 Id. at 7–8 (citing Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208, 212–13).

38 Id. at 11.

39 Id.

40 Id. at 13.

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

42 Id. at 14.

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concealment.43

B. Plaintiffs’ Argument in Opposition to the Motion

In the opposition memorandum, Plaintiffs argue that the motion should be denied.44 First,

Plaintiffs argue that this motion was already denied by the state court trial judge.45 Plaintiffs

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

newly discovered evidence or a change in the law.46 Because those conditions do not exist here,

Plaintiffs argue that the motion should be denied on that basis alone.47 In response to the Avondale

Interests’ 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.48

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.49 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

that employee was already was suffering from a lung disease.50 Plaintiffs argue that there is ample

43 Id.

44 Rec. Doc. 91 at 1.

45 Id. at 2.

46 Id.

47 Id.

48 Id.

49 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)).

50 Id.

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

asbestos.51 Furthermore, Plaintiffs contend that summary judgment is not appropriate on an

intentional tort claim.52

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

and were substantially certain that disease would occur.53 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.54 Specifically, Plaintiffs contend that Minimum Standards requirements show that the

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

necessary to protect workers, as early as the 1940s.55 Plaintiffs argue that Ollie Gatlin, a former

Avondale executive, stated that he knew that asbestos was a health hazard in 1960.56

Plaintiffs contend that Avondale executive officers were substantially certain that disease

would occur.57 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.58 Plaintiffs contend that despite the fact

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

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

52 Id. at 5–6.

53 Id. at 8.

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

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

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

57 Id. at 10.

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

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Avondale employees to work with and around asbestos without precautions.59 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.60

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.61 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

protect Avondale employees.62 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.63 Plaintiffs argue that each was aware of the health hazards of asbestos.64 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.65

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

knew of the hazards of asbestos since the 1940’s.66

59 Id. at 12.

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

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

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

63 Id. at 18.

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

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

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

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Lastly, Plaintiffs contend that they can establish a fraud claim under Louisiana law.67

Plaintiffs argue that Louisiana law recognizes a cause of action for fraud resulting from silence.68

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

asbestos and nevertheless, remained silent.69

C. The Avondale Interests’ Argument in Further Support of the Motion

In further support of the instant motion, the Avondale Interests argue that knowledge of

the dangers of asbestos does not establish an intent for Decedent to contract lung cancer.70 The

Avondale Interests contend that the acts raised by Plaintiffs are negligent—rather than

intentional—conduct.71 According to the Avondale Interests, Plaintiffs have failed to come

forward with evidence sufficient to prove the Avondale Interests consciously desired to inflict lung

cancer upon Decedent or knew that Decedent’s lung cancer was substantially certain to occur.72

Next, Avondale argues that resolution at the summary judgment stage is appropriate, even

though intent is at issue, given Louisiana case law.73 Additionally, the Avondale Interests contend

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

67 Id. at 22–24.

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

69 Id. at 24.

70 Rec. Doc. 133 at 2–3.

71 Id. at 3.

72 Id. at 5.

73 Id. at 5–6.

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issue.74 Lastly, the Avondale Interests argue that Plaintiffs cannot meet the intent requirement for

the fraud/concealment claims.75

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.”76 When assessing whether a dispute as to any material fact exists, the court

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

weighing the evidence.”77 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.”78

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.79 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.80

74 Id. at 6.

75 Id. at 7.

76 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).

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

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

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

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

12

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.81 Thereafter, the nonmoving party

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

supports his claims.82 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.83 The

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

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

“unsubstantiated assertions,” or “by only a scintilla of evidence.”84 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.85 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.”86 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.87 Ultimately, summary judgment

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

81 Celotex, 477 U.S. at 323.

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

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

242, 248–49 (1996)).

84 Little, 37 F.3d at 1075.

85 Anderson, 477 U.S. at 248.

86 Little, 37 F.3d at 1075.

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

13

it could not support a judgment in favor of the nonmovant.”88

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,”89 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).90 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

“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.”91 This Court’s discretion is further bounded by

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

sparingly,”92 with relief being warranted only when the basis for relief is “clearly establish[ed].”93

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

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

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

90 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).

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

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

93 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.).

14

(4) the motion is justified by an intervening change in controlling law.94

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

theories, or arguments . . . .’”95 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.”96 “It is

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

already been advanced by a party.”97 When there exists no independent reason for reconsideration

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

resources and should not be granted.98

IV. Analysis

A. Whether the Avondale Interests are Entitled to Reconsideration

The Avondale Interests request reconsideration of the state court’s order denying the

Avondale Interests’ motion for partial summary judgment.99 The Avondale Interests have not

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

change of law that would warrant granting the motion.100 In its reply memorandum, the Avondale

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

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

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

omitted).

97 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)).

98 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).

99 Rec. Doc. 33-1. 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.

100 Id.

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Interests contend that reconsideration principles are not applicable here, but cite no authority in

support of that conclusion.101 In the alternative, the Avondale Interests argue 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.102

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.”103 The Fifth Circuit addressed this issue in Nissho–Iwai American Corp. v. Kline.104

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.105 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.”106 The Fifth Circuit reasoned that

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

101 Rec. Doc. 133 at 6.

102 Id. at 6, n.26.

103 28 U.S.C. § 1450.

104 845 F.2d 1300 (5th Cir. 1988).

105 Id.

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

(1922)).

16

court.”107 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.108 “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

free to treat the order as it would any such interlocutory order it might itself have entered.”109

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.110 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.’”111 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.112

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 56.113 “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).”114 “The standard

107 Id.

108 Id.

109 Id. at 1304.

110 958 F.2d 1313 (5th Cir. 1992).

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

112 Id.

113 Id.

114 Id.

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of review is the same as if the federal court itself had entered the order. . .”115

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

Avondale’s motion for summary judgment.117 Here, as in Nissho–Iwai American Corp. and

Resolution Trust Corp., the order entered by the state court is an interlocutory order.118 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, the Avondale Interests have 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.

115 Id.

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

117 Rec. Doc. 91-4.

118 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.

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B. Whether the Avondale Interests are 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.119 However, a court is not precluded from granting summary

judgment where elusive concepts such as motive or intent are at issue.120 But the Fifth Circuit has

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.”121 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.122 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.’”123 “Thus, intent

119 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.”).

120 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

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.”).

121 Id.

122 Id.

123 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).

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has reference to the consequences of an act rather than to the act itself.”124 Therefore, Plaintiffs

must prove that the Avondale Interests either consciously desired that Decedent would contract

lung cancer, or knew that result was “substantially certain to follow from [their] conduct.”125

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.126

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

occur.”127 To satisfy the criterion of “substantial certainty,” Plaintiffs must prove that Decedent’s

contracting lung cancer was “inevitable or incapable of failing.”128 “[M]ere knowledge and

appreciation of a risk does not constitute intent, nor does reckless or wanton conduct.”129 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 . . .”130 To prove a claim for intentional tort, Plaintiffs would have to show that the Avondale

Interests’ “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 . . .”131

Here, there are questions of fact in dispute regarding whether the Avondale Interests knew

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

125 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).

126 Rec. Doc. 91 at 8.

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

128 Id. (internal citations omitted).

129 Id. (internal citations omitted).

130 Id. at 214.

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

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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.132 Plaintiffs submit the deposition of Ollie Gatlin, a

former Avondale executive, who stated that he knew that asbestos was a health hazard in 1960.133

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

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

other executive officers.134 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.135 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.136 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.137

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

132 Rec. Docs 91-44.

133 Rec. Doc. 91-33.

134 Rec. Doc. 91-37.

135 Rec. Doc. 91-38.

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

137 Rec. Doc. 91-60.

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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.138 Here, the Court cannot determine at the summary judgment stage

whether the Avondale Interests were 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.

C. Whether the Avondale Interests are 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.139

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.140 Under Louisiana law, fraud may result from silence or inaction.141

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

138 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.”).

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

140 Id.

141 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.”).

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intent, or the intent to deceive, is a necessary and inherent element of fraud.”142

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.143 Here, the Court cannot determine at the summary

judgment stage whether the Avondale Interests intended to deceive Decedent. Accordingly,

summary judgment is inappropriate at this stage.

V. Conclusion

For the reasons discussed above, the Avondale Interests’ motion for summary judgment is

denied. The Avondale Interests have 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 the Avondale Interests 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 the

142 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).

143 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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Avondale Interests were substantially certain that Decedent would contract lung cancer based on

its conduct.

Accordingly,

IT IS HEREBY ORDERED that the Avondale Interests’ “Motion for Partial Summary

Judgment Seeking Dismissal of Plaintiffs’ Intentional Tort, Fraud and Concealment Claims”!* is

DENIED.

NEW ORLEANS, LOUISIANA, this jo, of July, 2020.

NANNETTE JOLWETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

4 Rec. Doc. 33.

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