Dempster v. Lamorak Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALLEN DEMPSTER et al. CIVIL ACTION

VERSUS NO. 20-95

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

ORDER AND REASONS

In this litigation, Plaintiffs Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster

Martinez, Marla Dempster Loupe, Callen Dempster Jr., Annette Dempster Glad, and Barnett

Dempster (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

Huntington Ingalls Incorporated (“Avondale”).1 Pending before the Court is Defendants

Avondale, Albert L. Bossier Jr. (“Bossier”), and Lamorak Insurance Company’s (“Lamorak”)

(collectively, the “Avondale Interests”) “Motion for Reconsideration of Order Excluding Robert

1 See Rec. Doc. 1-2; Rec. Doc. 1-8. On August 6, 2020, Tanna Faye Dempster, Steven Louis Dempster,

Janet Dempster Martinez, Marla Dempster Loupe, Callen Louis Dempster Jr., Annette Ruth Dempster Glad, and

Barnett Lynn Dempster were substituted as plaintiffs for Louise Ella Simon Dempster. Rec. Doc. 239. Plaintiffs

bring claims against Lamorak Insurance Company, Huntington Ingalls Inc., Albert Bossier Jr., J. Melton Garrett,

Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler LLC, General Electric Co., Hopeman Brothers, Inc., McCarty

Corporation, Taylor-Seidenbach, Inc., CBS Corporation, Uniroyal, Inc., International Paper Company, Houston

General Insurance Company, Berkshire Hathaway Specialty Insurance Company, Northwest Insurance Company,

United Stated Fidelity and Guaranty Company, Fist State Insurance Company, The American Insurance Company,

Louisiana Insurance Guaranty Association, and the Traveler’s Indemnity Company. Rec Doc. 1-8 at 2–3.

J. Norrell, Ph.D.”2 Plaintiffs oppose the motion.3 Considering the motion, the memoranda in

support and in opposition, the record, and the applicable law, the Court denies the motion.

I. Background

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

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

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

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

negligence claims against various Defendants.6

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

Orleans, State of Louisiana, on March 14, 2018.7 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, 2018.8 On January 7, 2019, this Court remanded the case to the Civil District

Court for the Parish of Orleans.9

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

2 Rec. Doc. 275.

3 Rec. Doc. 282.

4 Rec. Doc. 1-2 at 5.

5 Id.

6 Id. at 7–8.

7 Id. at 2–3.

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

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

17, 2019.10 Trial was scheduled to begin before the state trial court on January 13, 2020.11

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

the Eastern District of Louisiana for a second time.12 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.13

On February 25, 2020, Plaintiffs filed a “Daubert Motion to Preclude the Testimony of

Robert J. Norrell.”14 On September 11, 2020, this Court granted the Daubert Motion.15 On

October 9, 2020, the Avondale Interests filed the instant motion for reconsideration.16 On October

27, 2020, Plaintiffs filed an opposition.17 On November 6, 2020, with leave of Court, the

Avondale Interests filed a reply in further support of the motion for reconsideration.18

II. Parties’ Arguments

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

The Avondale Interests urge this Court to reconsider the September 11, 2020 Order

excluding Dr. Robert Norrell as an expert witness for three main reasons: (1) reconsideration is

necessary to correct legal error and prevent manifest injustice, (2) reconsideration will not

10 Rec. Doc. 1-8.

11 Rec. Doc. 1-12.

12 Rec. Doc. 1.

13 Rec. Doc. 17.

14 Rec. Doc. 52.

15 Rec. Doc. 249.

16 Rec. Doc. 275.

17 Rec. Doc. 282.

18 Rec. Doc. 295.

prejudice Plaintiffs, and (3) reconsideration is required because Plaintiffs made misstatements of

law in the Daubert motion.19

First, the Avondale Interests argue that reconsideration is necessary in order to correct

legal error and to prevent the manifest injustice that would result if Dr. Norrell is excluded from

testifying.20 The Avondale Interests argue that the Court committed an error of law in its

September 11, 2020 Order because the Court “overlooked the purpose of Dr. Norrell’s

testimony”— to show that Mr. Dempster should have known that smoking came with health risks,

not that Mr. Dempster actually knew of any such risks.21 The Avondale Interests assert that Dr.

Norrell’s testimony on the type of information historically available to Louisiana residents on the

risks of smoking is “directly relevant to determining whether Mr. Dempster was contributorily

negligent,” which the Avondale Interests allege, if true, would provide them with a “complete

defense” to Mr. Dempster’s claims.22 Further, the Avondale Interests argue that excluding Dr.

Norrell’s testimony will lead to manifest injustice for the Avondale Interests because they have

no alternative means of evidence to prove that Mr. Dempster knew the risks of smoking.23

The Avondale Interests next argue that Plaintiffs will not be prejudiced by

reconsideration.24 The Avondale Interests contend that, because trial is not for another year and

because Plaintiffs “already have extensive information about Dr. Norrell’s opinions and

19 Rec. Doc. 275-1.

20 Id. at 6.

21 Id. at 7.

22 Id. at 7–8.

23 Id. at 9–10.

24 Id. at 11.

methodology,” permitting Dr. Norrell to testify will not prejudice Plaintiffs.25 Furthermore, the

Avondale Interests argue that “the fact that no report or deposition was provided by Dr. Norrell

in this matter stems from Plaintiffs’ own actions.”26 The Avondale Interests allege that Plaintiffs

failed to depose Dr. Norrell, that Plaintiffs opposed submitting expert reports when this case was

being litigated in state court, and that the state court orally denied Plaintiffs’ state court motion

to exclude Dr. Norrell.27 The Avondale Interests assert that Plaintiffs “have—and have always

had—ample information about Dr. Norrell’s qualifications, opinions, and methodology” and that,

“[i]n light of their prior actions, Plaintiffs cannot argue now that they would be substantially

prejudiced by the limited reopening of discovery for Dr. Norrell . . . .”28

Finally, the Avondale Interests urge this Court to reconsider its September 11, 2020 Order

because of legal errors in Plaintiffs’ prior briefs.29 The Avondale Interests argue that Plaintiffs

incorrectly asserted that the state court’s ruling on the admissibility of Dr. Norrell’s testimony

came after the case had already been removed to this Court when, in fact, the state court made a

valid oral judgment prior to removal.30 Further, the Avondale Interests contend that Plaintiffs

incorrectly asserted that Dr. Norrell’s testimony would be irrelevant when, instead, Dr. Norrell’s

testimony is relevant to the issue of contributory negligence.31

25 Id. at 12.

26 Id.

27 Id. at 12–14.

28 Id. at 14–15.

29 Id. at 16.

30 Id.

31 Id. at 18.

B. Plaintiffs’ Arguments in Opposition to the Motion

Plaintiffs’ counter by asserting that “[i]t is not plaintiffs’ burden to establish the reliability

of Dr. Norrell’s opinions and methodology.”32 Plaintiffs argue that the Avondale Interests failed

to provide any information about Dr. Norrell’s methodology and that Plaintiffs’ choice not to

depose Dr. Norrell does not “relieve the Avondale Interests of their burden of establishing the

reliability of Dr. Norrell’s opinions and methodology.”33 Plaintiffs further allege that the

Avondale Interests have failed to show that manifest injustice would occur with the exclusion of

Dr. Norrell.34 Plaintiffs contend that the Avondale Interests have not shown that Dr. Norrell’s

testimony is the only way to access information on whether or not Mr. Dempster knew about the

risks of smoking and even if it is, “[t]hat [the Avondale Interests] may have failed to conduct

discovery on this issue is not grounds to allow an expert to substitute opinions that have not been

shown to meet Daubert standards.”35

Plaintiffs next argue that reconsideration would prejudice Plaintiffs.36 Plaintiffs contend

that “it would not be fair to allow the Avondale Interests another bite at the apple” in permitting

Dr. Norrell to testify.37 Plaintiffs argue that giving the Avondale Interests this second chance

would be unfair because a “motion for reconsideration cannot be used to raise arguments which

could, and should, have been made before the judgment issued.”38

32 Rec. Doc. 282 at 2.

33 Id. at 3.

34 Id. at 6.

35 Id.

36 Id.

37 Id. at 7.

38 Id. at 8.

While the Court “does not even need to address” whether Dr. Norrell’s testimony is

relevant because the Avondale Interests failed to establish that his methodology was reliable,

Plaintiffs nevertheless assert that the Avondale Interests have failed to show relevance.39

Plaintiffs contend that the Avondale Interests failed to establish that “Dr. Norrell had even

formulated an opinion regarding when or what Mr. Dempster should have known based upon

information that may have been available to him specifically” about the risks of smoking and

failed to provide any information on how Dr. Norrell established his opinion.40 Plaintiffs contend

that a “historian is not qualified to testify as to what anyone should have known.”41 Plaintiffs

reiterate their arguments from the Daubert motion that Dr. Norrell is not qualified to testify

because he does not have the “education, training, or experience” to testify on smoking and the

risks known to the community.42

Lastly, Plaintiffs argue that it was proper for them to file a motion to exclude Dr. Norrell

in federal court.43 Plaintiffs contend that the Avondale Interests “decided to avail themselves of

a federal forum” and therefore, Plaintiffs had no option but to file a motion to exclude Dr. Norrell

in this Court.44

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

The Avondale Interests raise four arguments in reply to Plaintiffs’ opposition.45 First, the

39 Id. at 9–10.

40 Id. at 11.

41 Id. at 12.

42 Id. at 17–18.

43 Id. at 22.

44 Id.

45 Rec. Doc. 295.

Avondale Interests argue that Dr. Norrell should be permitted to testify as an expert because the

state court had already orally denied Plaintiffs’ motion to exclude Dr. Norrell prior to removal.46

The Avondale Interests assert that the state court decision was effective as of the date of the oral

statement and that a writing was not required for the ruling to be in effect.47 The Avondale

Interests argue that Plaintiffs had “no basis to reassert their motion to exclude Dr. Norrell” in

federal court because the Daubert standard applies equally in state and federal court and,

therefore, the state court ruling was valid.48

Second, the Avondale Interests re-assert that reconsideration is required to “correct an

error of law and prevent manifest injustice to the Avondale Interests.”49 The Avondale Interests

argue that reconsideration is warranted “based on an error of law, regarding the applicability of

Dr. Norrell’s testimony to their contributory negligence defense” and is necessary “to prevent

manifest injustice by impairing that defense.”50 Further, the Avondale Interests argue that Dr.

Norrell’s testimony in multiple prior cases provides information on his methodology and that, “if

permitted by this Court, Dr. Norrell would provide a written report and/or deposition explaining

his opinions with more specificity as they relate to Mr. Dempster.”51

Third, the Avondale Interests argue that Dr. Norrell’s testimony would be relevant to their

contributory negligence defense.52 The Avondale Interests claim that this Court already

46 Id. at 1–2.

47 Id. at 2–3.

48 Id. at 5.

49 Id.

50 Id.

51 Id. at 7.

52 Id. at 9.

determined in its September 11, 2020 Order that Dr. Norrell is qualified and that other courts have

accepted Dr. Norrell’s testimony, and testimony of similar historian experts, as “providing

overwhelming’ evidence of common knowledge” of health hazards.”53

Fourth, the Avondale Interests argue that Plaintiffs’ statements in the opposition regarding

Dr. Norrell’s qualifications should be disregarded.54 The Avondale Interests claim that this Court

has already denied Plaintiffs’ challenges to Dr. Norrell’s qualifications and Plaintiffs’ arguments

to the contrary are unresponsive to the instant motion.55

III. Legal Standard

A. Legal Standard on a Motion for Reconsideration

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

for reconsideration’ in haec verba,”56 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).57

Federal Rule of Civil Procedure 59(e) also allows courts to alter or amend 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.”58 This Court’s

discretion is further bounded by the Fifth Circuit’s instruction that reconsideration is “an

53 Id. at 10–11 (citing Waterhouse v. R.J. Reynolds Tobacco Co., 368 F.Supp.2d 432, 436 (D. Md. 2005),

aff’d, 162 F. App’x 231 (4th Cir. 2006)) (internal quotation marks omitted).

54 Id. at 14.

55 Id.

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

57 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).

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

extraordinary remedy that should be used sparingly,”59 with relief being warranted only when the

basis for relief is “clearly establish[ed].”60 Courts in the Eastern District of Louisiana have

generally considered four factors in deciding motions for reconsideration under the Rule 59(e)

standard:

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

which the judgment is based;

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

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

(4) the motion is justified by an intervening change in controlling law.61

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

theories, or arguments . . . .’”62 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.”63 “It is

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

already been advanced by a party.”64 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.65

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

60 Schiller v. Physicians Res. Grp, Inc., 342 F.3d 563, 567 (5th Cir. 2003); Castrillo, 2010 WL 1424398, at

*3.

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

62 Id. (quoting Templet, 367 F.3d at 478-79).

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

omitted).

64 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)).

65 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

B. Legal Standard on the Admissibility of Expert Testimony

The district court has considerable discretion to admit or exclude expert testimony under

Federal Rule of Evidence 702.66 Rule 702, which governs the admissibility of expert witness

testimony, provides that an expert witness “qualified . . . by knowledge, skill, experience, training

or education,” may testify when “scientific, technical or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue.”67 For the testimony to

be admissible, Rule 702 establishes the following requirements:

(1) the testimony [must be] based on sufficient facts or data,

(2) the testimony [must be] the product of reliable principles and methods, and

(3) the expert [must reliably apply] the principles and methods to the facts of the case.68

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 702

requires the district court to act as a “gatekeeper” to ensure that “any and all scientific evidence

admitted is not only relevant, but reliable.”69 The court’s gatekeeping function thus involves a

two-part inquiry into reliability and relevance. First, the court must determine whether the

proffered expert testimony is reliable. The party offering the testimony bears the burden of

establishing its reliability by a preponderance of the evidence.70 The reliability inquiry requires a

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).

66 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d

358, 371 (5th Cir. 2000).

67 Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

68 Fed. R. Evid. 702.

69 Daubert, 509 U.S. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying

that the court’s gatekeeping function applies to all forms of expert testimony).

70 See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli R.R. Yard PCB

Litig., 35 F.3d 717 (3d Cir. 1994)).

court to assess whether the reasoning or methodology underlying the expert’s testimony is valid.71

The aim is to exclude expert testimony based merely on subjective belief or unsupported

speculation.72

In Daubert, the Supreme Court identified a number of factors that are useful in analyzing

reliability of an expert’s testimony: (1) whether the theory has been tested; (2) whether the theory

has been subject to peer review and publication; (3) any evaluation of known rates of error; (4)

whether standards and controls exist and have been maintained with respect to the technique; and

(5) general acceptance within the scientific community.73 In Kumho Tire Co. v. Carmichael, the

Supreme Court emphasized that the test of reliability is “flexible” and that Daubert’s list of

specific factors does not necessarily nor exclusively apply to every expert in every case.74 The

overarching goal “is to make certain that an expert, whether basing testimony on professional

studies or personal experience, employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.”75 The court must also determine

whether the expert’s reasoning or methodology “fits” the facts of the case and whether it will

thereby assist the trier of fact to understand the evidence—in other words, whether it is relevant.76

A court’s role as a gatekeeper does not replace the traditional adversary system,77 and “[a]

71 See Daubert, 509 U.S. at 592–93.

72 See id. at 590.

73 See id. at 592–94.

74 Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a fact-

specific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular

expertise and the subject of the testimony”).

75 Kumho Tire, 526 U.S. at 152.

76 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.

77 See Daubert, 509 U.S. at 596.

review of the caselaw after Daubert shows that the rejection of expert testimony is the exception

rather than the rule.”78 As the Supreme Court noted in Daubert, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.”79 “As a general rule,

questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned

that opinion rather than its admissibility.”80

IV. Analysis

Under the standard set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., a party

seeking to admit expert testimony must prove that it is both relevant and reliable.81 The burden

of proving admissibility falls squarely on the party seeking to present the testimony—here, the

Avondale Interests.82 In its September 11, 2020 Order, this Court held that, while Dr. Norrell was

qualified to testify to historical information and public awareness of the risks associated with

smoking, the Avondale Interests failed to provide information proving the reliability of Dr.

Norrell’s methodology, thereby failing to satisfy the Daubert standard.83 The Court further held

that Dr. Norrell’s proposed testimony was of limited probative value and that any relevance was

substantially outweighed by the danger of confusing the issue, misleading the jury, and wasting

78 Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”

79 Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

80 United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir.1996) (internal citations and quotation

marks omitted).

81 509 U.S. at 579.

82 See Moore, 151 F.3d at 276 (citing In re Paoli, 35 F.3d at 717).

83 Rec. Doc. 249.

time pursuant to Federal Rule of Evidence 403.84

This Court declines to reconsider its September 11, 2020 Order. In the instant motion, the

Avondale Interests again fail to offer any evidence to demonstrate the reliability of Dr. Norrell’s

methodology. While the Avondale Interests spend much of their briefings arguing that Dr.

Norrell’s testimony is relevant, they fail to address the main reason this Court excluded Dr.

Norrell’s testimony—the Avondale Interests did not, and have not, provided this Court with any

information on Dr. Norrell’s methodology. The Avondale Interests themselves “concede that no

expert report, affidavit, or deposition was provided for Dr. Norrell in this matter . . . .”85 Reliability

of an expert’s testimony is a key prong of the Daubert analysis. It was the Avondale Interests’

burden to provide sufficient evidence of Dr. Norrell’s methodology; the fact that Plaintiffs’ chose

not to depose Dr. Norrell has no bearing on this Court’s analysis. Without evidence supporting

Dr. Norrell’s methodology, the Avondale Interests leave this Court with no choice but to exclude

Dr. Norrell’s proposed testimony.86

Accordingly,

84 Id. at 16.

85 Id. at 14.

86 The Avondale Interests argue for the first time in the reply brief that the Plaintiffs should have sought to

exclude Dr. Norrell in this Court through a motion for reconsideration, given the state court’s oral judgment

that Dr. Norrell could testify. Rec. Doc. 295 at 2–3. The Avondale Interests did not raise this issue regarding

reconsideration in the opposition to Plaintiffs’ Daubert motion, or in the original briefing for the instant

motion for reconsideration. Regardless, even considering the issue of Dr. Norrell’s testimony under a

reconsideration standard, this Court finds that exclusion is appropriate. Allowing Dr. Norrell to testify

without any information on his methodology would be clearly erroneous. Additionally, when the case was

removed for the second time, all parties agreed that evidentiary motions would be re-filed in this Court. See

Rec. Doc. 24. The Avondale Interests filed numerous evidentiary motions that this Court considered on the

merits.

IT IS HEREBY ORDERED that Defendants’ “Motion for Reconsideration of Order

Excluding Robert J. Norrell, Ph.D.”®’ is DENIED.

Ath

NEW ORLEANS, LOUISIANA, this day of March, 2021.

NANNETTE JOLIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

8? Rec. Doc. 275.

15