Lopez v. McDermott, Inc

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 Fisher

Controls International, R. Doc. 456. Plaintiffs oppose the motion. R. Doc. 506. Defendant had filed

a reply. R. Doc. 518. 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 at Kellog Brown and Root (“Brown and

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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 Fisher Controls International, LLC (“Fisher”) has filed a motion for summary

judgment in the Lopez matter. R. Doc. 456. Fisher contends Plaintiffs cannot demonstrate the

causation element of their negligence claims because there is a lack of admissible evidence that a

Fisher product exposed Mr. Lopez to asbestos. Additionally, Fisher avers it never manufactured

the type of oil pipeline pumps described in Mr. Lopez’s testimony. Fisher also argues Plaintiffs

cannot demonstrate that exposure to a Fisher-manufactured asbestos-containing product was a

substantial contributing cause of Mr. Lopez’s mesothelioma. Id. at 7, 8, 10, 12, 15. Lastly, Fisher

argues it cannot be liable for harm caused by components of its product that it did not manufacture

or supply, such as flange gaskets. Accordingly, Fisher claims that Plaintiffs cannot survive

summary judgment. Id. at 13.

Plaintiffs oppose Fisher’s motion for summary judgment. R. Doc. 506. Plaintiffs contend

that Mr. Lopez’s testimony is admissible against Fisher because his deposition was attended by

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gasket and packing manufacturer defendants who had a similar motive and opportunity to cross-

examine him; namely the motive to “limit or eliminate exposure to gaskets and packing.” Id. at 14.

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 Fisher product. Id. at 15–16.

Plaintiffs further maintain they have established that Mr. Lopez’s work with Fisher products was

a substantial cause of his mesothelioma, citing the testimony of Mr. Ewing, who “quantified the

exposure Mr. Lopez experienced through performing these tasks, and each of them resulted in an

exposure above background,” and Dr. Abraham, who “opined that each of Mr. Lopez’s exposures

to above normal background levels of asbestos, including those he experienced while employed at

Brown & Root, were substantial contributing factors in the development of his malignant

mesothelioma.” Id.

Lastly, Plaintiffs explain that Fisher’s reliance on the “bare-metal defense,” by which it

attempts to disclaim liability for asbestos exposure caused by parts and components of its products

that it did not itself manufacture or sell, is misplaced for several reasons. Noting that the Supreme

Court has recently commented on the issue in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986,

203 L. Ed. 2d 373 (2019), Plaintiffs argue that Fisher owed a duty to warn Mr. Lopez of the hazards

of asbestos exposure from these component parts “because 1) it sold its valves with asbestos-

containing packing and gaskets included, 2) its valves would not function properly without the use

of gaskets and packing, 3) the removal and replacement of gaskets and packing from its valves

was foreseeable, and 4) Fisher sold asbestos-containing replacement parts for its valves.” Id. at 16.

In reply, Fisher contends any gasket defendants present at Mr. Lopez’s deposition would

not have shared Fishers’ interest or motive in cross-examining the deponent. Instead, Fisher

argues, all defendants in asbestos litigation are motivated to “establish[] the liability of as many

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parties as possible to . . . limit the potential damages against them” under the virile share analysis.

R. Doc. 518 at 3. Fisher 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 on, near, or around a Fisher valve.” R. Doc. 518 at 4. Lastly, Fisher stresses

again that neither of Plaintiffs’ experts opined specifically about exposure related to any Fisher

products. R. Doc. 518 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

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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).

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Accordingly, in this case, the Lopez Plaintiffs bear the burden of proving that Mr. Lopez

was exposed to asbestos attributable to Fisher 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 Fisher

Fisher contends the only evidence that Mr. Lopez was exposed to asbestos attributable to

a Fisher product comes from Mr. Lopez’s deposition testimony, which is inadmissible for use

against Fisher under the Louisiana Code of Evidence and the Louisiana Civil Code. Fisher

maintains that because neither Fisher nor a similarly situated defendant attended Mr. Lopez’s

deposition, his testimony is inadmissible hearsay. R. Doc. 456 at 7–8.

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

. . .

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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 Fisher, would undoubtedly constitute

hearsay. The question is, therefore, whether “a party with a similar interest”

to Fisher “had an opportunity and similar motive to develop [his] testimony by direct, cross, or

redirect examination” during his deposition. 1 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

1 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.

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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.

In the instant case, Plaintiffs’ claims against Fisher 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

Fisher 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. Fisher firmly denies that any party

present at the deposition shared its motive to develop Mr. Lopez’s testimony. In particular, Fisher

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. 518 at 3. Additionally, Fishers’

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 Fisher’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 Fisher. 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 Fisher would have had, had it been present at

the deposition. Although Fisher 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

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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 Fisher 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

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reliability of evidence admitted at trial.” Battle, 228 F.3d at 552. Fisher 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 Fisher valves and a representative of a company that manufactured the

allegedly injurious gaskets and packing and sold them to Fisher was present at the deposition and

questioned him about these products. The fact that the questions were not posed in the same

manner as Fisher wishes and the fact that the other defendant’s motive was not identical does not

render this testimony unreliable or inadmissible.

Fisher 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 Fisher 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 Fisher, at least with

respect to Code of Evidence article 804, and nothing about these civil code provisions warrants a

different outcome.

Lastly, Fisher’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

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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 for nine hours over

two days by numerous defendants, including defendants who, for the reasons explained above,

shared Fisher’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. The Court now considers whether there is sufficient evidence that Mr. Lopez was

exposed to asbestos attributable to Fisher products and whether this exposure to Fisher products

was a substantial contributing cause of his illness.

2. Whether Mr. Lopez was exposed to a product manufactured by Fisher

As noted above, Plaintiffs bear the burden of demonstrating that Mr. Lopez was exposed

to Fisher’s asbestos products and that this exposure was a substantial factor in causing his disease.

See Romano, 221 So.3d at 182. Fisher contends this element cannot be satisfied because it never

manufactured the types of oil pipeline pumps at issue here. R. Doc. 456 at 10.

As an initial matter, Fisher contends it never manufactured oil pipeline pumps, but

Plaintiffs’ briefing and supporting materials attempt to attach Fisher’s liability to its manufacture

of valves. Specifically, Mr. Lopez testified that some of his responsibilities while employed by

Brown and Root involved removing and repairing valves on old offshore drilling platforms. Lopez

Dep. 57:9–10, Aug. 16, 2017 [hereinafter Lopez Dep. Vol. I]. He estimated that 40% of the valves

he worked on were manufactured by Fisher, and the other 60% by Crosby Valves. Lopez Dep.

Vol. I 78:02–16. Mr. Lewis, one of Mr. Lopez’s co-workers, recalled that Fisher was “one of only

two brands available at Brown & Root,” R. Doc. 506 at 5; Lewis Dep. 225:17–25, Oct. 23, 2019,

and Mr. Buchanan also confirmed seeing products manufactured by these companies at the work

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site. Buchanan Dep. 25:13–22, 25:20–26:02, Sep. 9, 2019. Additionally, Fisher’s corporate

representative, Ronald Duimstra, testified at length about Fisher’s valve-manufacturing operation.

R. Doc. 506-5. Accordingly, considering the evidence in the light most favorable to Plaintiffs, a

genuine question of fact exists regarding whether Fisher manufactured the very valves Mr. Lopez

and his co-workers worked on and around while employed by Brown and Root.

3. Whether exposure to a product manufactured by 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, Fisher 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 (La. 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

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he did not have sufficient data to perform dose reconstruction with respect to Fisher 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 Fisher 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.

Specifically, Mr. Lopez recalled removing gasket material from valve flanges with a putty knife

before cleaning the surface with a buffing wheel or wire brush, a process he described as “pretty

dusty.” Lopez Dep. 77:7–14, Aug. 16, 2017. Mr. Lewis testified that working on these valves was

a “dusty” process that involved removing gasket material from the valve flanges and using a chisel,

putty knife, buffing wheel and/or wire brush to remove the gasket and clean the surface. Lewis

Dep. 22:13–25:04, 48:24–50:05, 57:17–59:23, 60:04–18. Mr. Buchanan echoed Mr. Lopez’s

testimony about the dusty conditions created by the removal of gaskets from valves. R. Doc. 504

at 4.

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. 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

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of his mesothelioma. 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 Fisher was a substantial

contributing cause of his mesothelioma.

C. Duty

Fisher also contends Plaintiffs’ claims must fail because it cannot be held liable for dangers

caused by products it did not itself manufacture or distribute. Under Louisiana law, a manufacturer

has a duty “to warn the consumer of any dangerous propensities which may foreseeably

accompany normal use of the product.” Ducote v. Liberty Mut. Ins. Co., 451 So. 2d 1211, 1213

(La. Ct. App. 1984). This duty “is governed by the standard of knowledge available to the

manufacturer/professional vendor at the time.” Toups v. Sears, Roebuck & Co., 507 So. 2d 809,

818 (La. 1987). Nevertheless, Louisiana courts have typically refused to impose liability on a

defendant for a product it did not itself produce. See, e.g., Landry v. E. A. Caldwell, Inc., 280 So.

2d 231, 235 (La. Ct. App. 1973) (holding that a scooter manufacturer could not be liable for injuries

caused by a throttle mechanism because the throttle “was not the one manufactured by movant. It

was a completely foreign device.”); Newman v. Gen. Motors Corp., 524 So. 2d 207, 209 (La. Ct.

App. 1988) (holding that an automobile manufacturer could not be liable for injuries caused by an

allegedly defective ratchet because the defendant neither manufactured nor installed the device);

Andry v. Canada Dry Corp., Div. of Norton Simon, 355 So. 2d 639, 641 (La. Ct. App. 1978)

(concluding that the manufacturer of a glass soda bottle was not liable for injuries caused when

the bottle cap, which was manufactured by a different company, forcefully released from the bottle

and injured plaintiff’s eye).

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Based on the foregoing, Fisher contends it cannot be held liable for damage caused by

products it did not manufacture or supply, such as flange gaskets or packing material. R. Doc. 456

at 12. In contrast, Plaintiffs argue Fisher had an affirmative duty to warn because it sold the valves

with asbestos-containing components, the valves required the incorporation of these parts, the

removal and replacement of these parts was foreseeable, and Fisher itself sold asbestos-containing

replacement parts. R. Doc. 506 at 16.

As an initial matter, the Court recognizes that the parties apparently disagree about which

component parts Mr. Lopez may have been exposed to. Plaintiffs appears to suggest that Mr. Lopez

was exposed to internal asbestos-containing valve components, which Fisher incorporated into the

valves at the time of sale. Fisher disagrees and points to a total lack of evidence that Mr. Lopez

ever opened a valve and manipulated or otherwise worked on internal valve components. The

Court has reviewed the deposition testimony provided by both sides and agrees that there is no

evidence that Mr. Lopez was ever exposed to asbestos from internal valve components. See

Buchanan Dep. 225:2-24 (confirming that he had no knowledge that Mr. Lopez ever worked on

internal valve components). In contrast, Mr. Lopez and his coworkers testified about the removal

and manipulation of flange gaskets located wherever a valve was connected to a pipe. Lopez. Dep.

Vol I 76:22–24; Buchanan Dep. 30:19–32:19; 34:14–16; 34:22–37:1. Accordingly, Fisher’s

liability hinges on whether it had a duty to warn users of the dangers associated with these flange

gaskets. Fisher’s corporate representative, Ronald Duimstra, prepared an affidavit specifically

noting that Fisher valve never required asbestos-containing flange gaskets to operate as intended

and that Fisher never sold or otherwise distributed asbestos-containing flange gaskets. Duimstra

Aff. ¶ 2 (R. Doc. 456-1 at 352).

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The United States Supreme Court has recently commented on this issue. In Air & Liquid

Sys. Corp. v. DeVries, the Supreme Court considered whether a manufacturer has a duty to warn

users when the product it manufactures will later require the integration of a dangerous product in

order to function as intended. 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019). Specifically, DeVries

involved the liability of a heavy equipment manufacturer who delivered products to U.S. Navy

ships that either incorporated asbestos-containing components manufactured by other companies

at the time of sale or specified that asbestos-containing components were required for proper use.

Id. at 992. Relying on basic tort-law principles, the Court concluded that there is no difference

between a product that is itself inherently dangerous and one that requires the incorporation of a

component the manufacturer knows will make it dangerous, in part because the manufacturer is in

a better position to warn the user of the danger than the manufacturer of the component parts and

because any additional burden on the manufacturer is minimal. Id. at 993. As the Court ultimately

announced,

[A] manufacturer does have a duty to warn when its product requires incorporation

of a part and the manufacturer knows or has reason to know that the integrated

product is likely to be dangerous for its intended uses. Under [this] approach, the

manufacturer may be liable even when the manufacturer does not itself incorporate

the required part into the product.

Id. at 994. The Court additionally concluded that this duty to warn is also applicable when a

manufacturer directs a particular component part to be incorporated, makes a product with a

component it knows will need to be replaced with a similar component in the future, or makes a

product that would be useless without the specific component. Id. at 995–96.

Although DeVries applies specifically to maritime torts, see id. at 995, the Court finds it

instructive here. See Whelan v. Armstrong Int'l Inc., No. 081810, 2020 WL 2892232, at *15 (N.J.

June 3, 2020), as revised (June 4, 2020) (examining and applying DeVries in a non-maritime

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context); but see Davis v. John Crane, Inc., 353 Ga. App. 243, 251, 836 S.E.2d 577, 584 (2019),

reconsideration denied (Nov. 15, 2019) (declining to adopt DeVries outside of the maritime

context); see also Coffman v. Armstrong Int'l, Inc., No. E201700062COAR3CV, 2019 WL

3287067, at *20 (Tenn. Ct. App. July 22, 2019), appeal granted (Feb. 20, 2020) (considering

DeVries and determining that a duty to warn existed where the “degree of foreseeable harm and

the gravity of potential harm outweighed the burden that the equipment defendants would have

suffered by warning about the post-sale integration of asbestos-containing . . . flange gaskets”). In

particular, both DeVries and the instant matter involve the duty of an equipment manufacturer

whose products are later used in conjunction with asbestos-containing components, the

manipulation of which allegedly caused the respective plaintiffs to develop asbestos-related

cancers.

Although the question of whether a duty exists is a question of law, the Court concludes

that summary judgment is inappropriate at this juncture because the duty inquiry requires the

resolution of certain factual issues, such as whether Fisher valves required the incorporation of

asbestos-containing gaskets, or whether the incorporation of such gaskets was merely foreseeable.

On one hand, Fisher’s corporate representative prepared an affidavit explaining that although some

Fisher products used flange gaskets to “provide an internal seal between metal parts,” the valves

did not require the incorporation of gaskets to function as intended. He further noted that if flange

gaskets were ever used, they were “selected and installed by a third party without the

recommendation or advice of Fisher.” Duimstra Aff. ¶ 7 (R. Doc. 456-1 at 352).

On the other hand, however, Mr. Buchanan and Mr. Lewis both testified about the routine

use of flange gaskets with Fisher valves. Specifically, Mr. Buchanan testified that asbestos-

containing gaskets were used every time a valve was connected to a pipe. Buchanan Dep. 23:15–

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23. A gasket, he explained, is used to “keep the material in . . . the pipe.” Id. at 23:15–16. He

continued, “you can’t just put metal to metal. You got to have something in there to keep the – the

product in the pipe.” Id. at 23:27–20. Mr. Lewis corroborated this testimony, explaining that a

gasket was located at every location where a pipe connected to a valve because without a gasket,

a leak will occur at the valve/pipe meeting point. Lewis Dep. 22:13 –23:2. As he explained,

“anywhere these pumps or valves are connected to piping, there’s a gasket.” Id. at 24:23-25:4. Mr.

Lewis further testified that the gaskets were routinely replaced every three or four years and that

replacing a gasket was required every time a valve was to be reused. Id. at 50:1–6; 61:22–62:2.

Considering the purpose of a valve and the fact that a valve must be connected to a pipe in order

to function properly without the risk of leaks, this testimony clearly raises at least a genuine

question about whether the gaskets were required for the valves to be used as intended. Further,

although Fisher’s counsel at oral argument noted that the valves could be used with either asbestos-

containing or asbestos-free gaskets, and that this choice was at the discretion of Brown and Root,

this was attorney argument and not presented in a form admissible under Rule 56(c). Accordingly,

the Court concludes that certain factual issues, such as whether the use of asbestos-containing

flange gaskets in conjunction with Fisher valves was required, or merely foreseeable, need to be

resolved before the issue of duty can be conclusively decided. Therefore, summary judgment is

not appropriate.

IV. CONCLUSION

Based on the foregoing,

IT IS ORDERED that Defendant Fisher’s Motion for Summary Judgment, R. Doc. 456,

is DENIED.

New Orleans, Louisiana this 13th day of July, 2020.

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Eildon E. Fallon

United States District Court

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