# Cortez v. Lamorak Insurance Company

> District Court, E.D. Louisiana · July 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10187990

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** July 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10187990

## How later opinions describe it (automated extraction)

- holding that sand suppliers “did not have a duty to warn [plaintiff’s employer] or [plaintiff] of the danger sand presents when used for sandblasting”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CALLEN J. CORTEZ, ET AL. CIVIL ACTION

VERSUS NO. 20-2389

LAMORAK INSURANCE COMPANY, SECTION “R” (1)
ET AL.

ORDER AND REASONS
Before the Court is defendant ViacomCBS, Inc.’s (“Westinghouse”)
motion for partial summary judgment as to the claims of Callie Cortez Billiot,
Kelsey J. Cortez, and Mona Hotard Cortez arising from decedent Callen
Cortez’s alleged exposure to Westinghouse’s asbestos-containing Fire
Retardant Decorative Micarta (“FRDM”).1 Plaintiffs, Continental Insurance
Company (“Continental”), Hopeman Brothers, Inc. (“Hopeman”), and
Huntington Ingalls, Inc. (“Avondale”) oppose the motion.2
For the following reasons, the Court grants defendant’s motion in part,
and denies the motion in part.

1 R. Doc. 500.
2 R. Docs. 644, 687, 715 & 724.
I. BACKGROUND
This is an asbestos exposure case. Plaintiffs allege that Callen Cortez

contracted mesothelioma as a result of exposure to asbestos over the course
of his career,3 as well as take-home exposure resulting from his father’s4 and
brothers’ work when the family shared a home.5 Callen Cortez lived in his
family home in Kraemer, Louisiana, starting from his birth in 1951, until he

married and moved out in May of 1972.6 Decedent’s brother, Daniel Cortez,
also lived in the home. Daniel began working at the Avondale Shipyards on
August 29, 1967,7 and lived with Callen Cortez until Daniel moved out in July

of 1968.8 Daniel testified that he was exposed to asbestos at Avondale, when
he worked around Hopeman Brothers employees while they were cutting
wallboards.9 He further testified that fibers released from the wallboards
likely got onto his work clothes.10 He also testified that, after work each day,

3 R. Doc. 1-1 at 3-6 (Complaint ¶¶ 3, 8).
4 Id. at 7-9 (Complaint ¶¶ 11-16).
5 R. Doc. 149 at 1-2 (Second Amended Complaint ¶¶ 94-95).
6 R. Doc. 499-4 at 17-18 (Discovery Deposition of Callen Cortez at
100:11- 101:8).
7 R. Doc. 499-6 at 13 (Deposition of Daniel Cortez at 12:3-13).
8 Id. at 12-13 (Deposition of Daniel Cortez at 11:21-12:2).
9 Id. at 58-63 (Deposition of Daniel Cortez at 57:23-62:18).
10 Id. at 37 (Deposition of Daniel Cortez at 36:6-13).
he would come home, hang up his clothes, and, with Callen Cortez’s help,
beat the fibers off his clothes.11

From March 6, 1969 until May 31, 1974, Callen Cortez worked for
Avondale as a welder and tacker helper, primarily at Avondale’s Westwego
Yard.12 Cortez testified that when he worked at Avondale, he was exposed to
asbestos dust generated by Hopeman Brothers employees while they were

cutting wallboards in his vicinity.13 After his stint at Avondale, Callen Cortez
went to work as a welder at Halter Marine’s Lockport shipyard in mid-1974,
and continued his employment there until 1975.14 Cortez likewise testified

that he was exposed to asbestos dust from Hopeman’s wallboards when he
worked at Halter Marine.15
Callen Cortez was diagnosed with mesothelioma on June 2, 2020.16 On
July 1, 2020, he filed suit in the Civil District Court for the Parish of Orleans

against Westinghouse and approximately thirty-four other defendants,
including former employers, manufacturers, and insurance companies.17 In
his complaint, plaintiff brought various products liability, negligence, and

11 Id. at 18-19 (Deposition of Daniel Cortez at 17:16-18:17).
12 Id. at 26-27 (Discovery Deposition of Callen Cortez at 108:25-109:9).
13 Id. at 44-45 (Discovery Deposition of Callen Cortez at 43:18-44:8).
14 Id. at 493 (Discovery Deposition of Callen Cortez at 576:16-24).
15 Id. at 74-76 (Discovery Deposition of Callen Cortez at 157:22-159:25).
16 R. Doc. 1-1 at 10 (Complaint ¶ 17).
17 Id. at 1-3 (Complaint ¶¶ 1-2); id. at 45-48.
intentional tort claims.18 On August 31, 2020, the case was removed to
federal court.19 Callen Cortez passed away on May 26, 2022.20 Cortez’s

surviving spouse and children filed an amended complaint on June 6,
2022,21 substituting themselves as plaintiffs in a survival action and seeking
additional damages arising from Cortez’s wrongful death.22
Relevant to the present motion, plaintiffs seek to hold Westinghouse

liable for Cortez’s alleged exposure to asbestos from FRDM manufactured by
Westinghouse.23 Westinghouse moves for partial summary judgment,
seeking dismissal of plaintiffs’ claims arising from Cortez’s alleged exposure

to Westinghouse’s FRDM.24 Westinghouse contends that plaintiffs have not
produced adequate evidence to create a material factual dispute over
whether decedent was exposed to Westinghouse’s FRDM at Halter Marine’s
Lockport shipyard, or whether the FRDM was a “substantial factor” in

bringing about his mesothelioma.25 Additionally, Westinghouse asserts that
any duty to warn it may have had was discharged because Hopeman was a

18 R. Doc. 1-1.
19 R. Doc. 1 (Notice of Removal).
20 R. Doc. 1026 at 2 (Fourth Amended Complaint ¶ 111).
21 Id.
22 Id. at 2-3 (Fourth Amended Complaint ¶¶ 111-114).
23 R. Doc. 1-1 at 3-6 (Complaint ¶¶ 8, 32-45).
24 R. Doc. 500.
25 R. Doc. 500-1.
sophisticated user and purchaser.26 Plaintiffs, Continental, Hopeman, and
Avondale oppose the motion.27

The Court considers the parties’ arguments below.

II. LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 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) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). 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.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

26 Id. at 14.
27 R. Docs. 644, 687, 715 & 724.
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence
which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325. The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘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 that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION
Westinghouse raises three arguments in support of its motion for
summary judgment, each of which the Court addresses below.

A. Halter Marine Exposures
Westinghouse first asserts that it is impossible for Callen Cortez to
have been exposed to its FRDM at the Halter Marine shipyard in Lockport,
Louisiana.28 Westinghouse therefore seeks summary judgment as to its
liability from the decedent’s alleged exposure at Halter Marine.29

Plaintiffs point to the testimony of Cortez and Bertram Hopeman to
link Westinghouse to Cortez’s alleged exposures at Halter Marine. Plaintiffs
first cite Cortez’s testimony that while he worked at Halter Marine’s Lockport
shipyard in the mid-1970s, he was, at times, in the immediate vicinity of

Hopeman employees who were working with asbestos-containing bulkhead
panels.30 He also testified that Hopeman’s work with the bulkhead panels
created dust, which he inhaled.31 Specifically, Cortez testified as follows:

Q. Did you see Hopeman Brothers working in the living
quarters at Halter Marine?
A. Yes. Alongside with the Halter Marine insulators.
Q. All right. What were the Hopeman Brothers workers doing
at Halter Marine?
A. The same thing they were doing at Avondale. They were
putting blocks on the wall.
Q. You call it a block. Do you mean --
A. A board or whatever it is. . . . I always did call it a block.
. . .
Q. So the work you saw Hopeman Brothers doing, that was the
same kind of wallboard work you saw them doing at
Avondale; right?

28 R. Doc. 500-1 at 8.
29 Id.
30 R. Doc. 687-4 at 7-8 (Discovery Deposition of Callen Cortez at 156:10-
159:25).
31 Id.
A. Yes.
. . .
Q. What conditions were created by Hopeman Brothers
workers?
A. There was dust flying in the air.
Q. At Halter Marine?
A. Dust flying in the air inside the living quarters.
. . .
Q. Did you breathe the Hopeman Brothers dust?
A. Yes.32

Plaintiffs also point to the testimony of Bertram Hopeman, who began
working with Hopeman Brothers in 1964, and testified that the firm used
FRDM as a component in the wallboards it installed on vessels.33 Further,
Hopeman testified that Hopeman Brothers purchased its FRDM from
Westinghouse.34
Westinghouse does not dispute that its FRDM was a component of
Hopeman’s bulkhead panels at Avondale.35 Rather, Westinghouse contends

that Hopeman did not begin to work at Halter Marine’s Lockport shipyard

32 Id.
33 R. Doc. 687-25 at 5 (Deposition of Bertram Cornelius Hopeman at
56:3-8, Comardelle v. Pennsylvania Gen. Ins. Co., No. 12-6555 (E.D.
La. Sept. 22, 2014)).
34 Id. at 6 (Deposition of Bertram Cornelius Hopeman at 100:2-7,
Comardelle v. Pennsylvania Gen. Ins. Co., No. 12-6555 (E.D. La. Sept.
22, 2014)).
35 R. Doc. 500-1 at 4.
until the 1990s, long after Cortez claimed he was exposed to Westinghouse’s
FRDM.36 To support this assertion, Westinghouse points to the affidavit of

Barbara Ramsey, who was a records custodian for Hopeman Brothers.37
Ramsey attested that Hopeman did not begin operations at Lockport until
the 1990s, and that it never utilized asbestos-containing products at Halter
Marine’s Lockport shipyard.38

Here, the testimony plaintiffs cite is sufficient evidence to create a
genuine issue of material fact as to whether Hopeman worked at the Halter
Marine shipyard at the same time as the decedent. Accordingly, the Court

denies summary judgment on the issue of whether Callen Cortez was
exposed to Westinghouse FRDM at Halter Marine.

B. Chrysotile Asbestos

Westinghouse also moves to dismiss plaintiffs’ claims stemming from
decedent’s alleged exposure to FRDM, arguing that the type of asbestos used

in FRDM—chrysotile asbestos—cannot have been a “substantial” factor in
bringing about Cortez’s mesothelioma.39 Defendant points to the report of

36 Id. at 8.
37 R. Doc. 500-5 at 2 (Affidavit of Barbara D. Ramsey).
38 Id.
39 R. Doc. 500-1 at 8-11.
its expert, Dr. Thomas Howard, to support this contention. Dr. Howard’s
report asserts that chrysotile asbestos is less dangerous than other types of

asbestos.40 His report includes: (1) a brief history of scientific medical
knowledge regarding asbestos,41 (2) an opinion that any measures
Westinghouse could have taken to warn end-users likely would have been
fruitless,42 (3) references to a few studies finding or suggesting that

mechanics who worked with automotive parts containing chrysotile asbestos
were not at increased risk of adverse health effects,43 and (4) a brief history
of regulatory action regarding asbestos.44 Notably, the report does not

include an opinion from Dr. Howard corroborating Westinghouse’s assertion
that “the current weight of scientific and medical evidence supports the
conclusion that . . . pure chrysotile asbestos cannot cause
mesothelioma.”45 Instead, Dr. Howard takes the more nuanced position

that chrysotile asbestos, compared to other types of asbestos, “is much less
likely, if at all, to cause mesothelioma.”46

40 R. Doc. 500-10 at 10 (Report of Thomas P. Howard, M.D.).
41 Id. at 3-9.
42 Id. at 3.
43 Id. at 10.
44 Id. at 10-13.
45 R. Doc. 500-1 at 5.
46 R. Doc. 500-10 at 10 (Report of Dr. Thomas Howard, M.D.).
In an asbestos exposure case, a Louisiana claimant must show that (1)
“he had significant exposure to the product complained of,” and that (2) the

exposure to the product “was a substantial factor in bringing about his
injury.” Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1091 (La. 2009)
(quoting Asbestos v. Bordelon, Inc., 726 So. 2d 926, 948 (La. App. 4 Cir.
1998)). The plaintiff bears the burden of proof on both elements.

Vodanovich v. A.P. Green Indus., Inc., 869 So. 2d 930, 932 (La. App. 4 Cir.
2004).
But the Fifth Circuit has explained, “[e]ven if the plaintiff was only

exposed to asbestos for a ‘short period for an employer[,] and he had longer
exposure working for others, it cannot be said the relatively short asbestos
exposure was not a substantial factor in causing his mesothelioma.’”
Williams v. Boeing Co., 23 F.4th 507, 512 (5th Cir. 2022) (quoting Rando, 16

So. 3d at 1091). To defeat an asbestos defendant’s motion for summary
judgment, a plaintiff “need only show that a reasonable jury could conclude
that it is more likely than not that [plaintiff] inhaled defendant’s asbestos
fibers, even if there were only ‘slight exposures.’” Id. (citing Held v. Avondale

Indus., Inc., 672 So. 2d 1106, 1109 (La. App. 4 Cir. 1996)).
Plaintiffs have produced sufficient evidence of harmful exposure to
Westinghouse asbestos to create a material fact issue. Cortez testified that
he worked in the immediate vicinity of Hopeman employees while they cut
asbestos-containing wallboards,47 and that he inhaled asbestos dust that was

generated by the cutting of Hopeman’s wallboards.48 Dr. Stephen Kraus, one
of plaintiffs’ medical experts, testified that exposure to asbestos fibers from
FRDM was a significant contributing factor to decedent’s mesothelioma.49
As mentioned above, Bertram Hopeman stated in his deposition that FRDM

manufactured by Westinghouse was used as a component in Hopeman
Brothers’ bulkhead panels.50 Further, Gary Jenkins, who worked at
Avondale Shipyards from 1967 until 2004, testified (among other former

Avondale workers) that Hopeman Brothers’ staff cut and installed FRDM-
containing wallboards aboard ships at Avondale Shipyards.51 Mr. Jenkins
added that Hopeman’s cutting of wallboards was a “dusty process,” meaning
that the labor generated significant asbestos dust.52 Westinghouse even

47 R. Doc. 687-3 at 2-3 (Perpetuation Deposition of Callen Cortez at 34:1-
35:24).
48 R. Doc. 687-4 at 9 (Discovery Deposition of Callen Cortez at 159:12-
159:19).
49 R. Doc. 687-13 at 4-5 (Deposition of Dr. Stephen Kraus at 40:11-41:8).
50 R. Doc. 687-25 at 5-6 (Deposition of Bertram Cornelius Hopeman at
56:3-8, 100:2-7, Comardelle v. Pa. Gen. Ins. Co., No. 12-6555 (E.D. La.
Sept. 22, 2014)).
51 R. Doc. 687-27 at 2, 4, 5 (Deposition of Gary Jenkins at 13:18-20, 32:3-
13, 34:6-10, Wayne Joseph St. Pierre v. Northrup Grumman
Shipbuilding, Inc., et al., No. 09-12001 (La. Civ. D. Ct. Aug. 10, 2011)).
52 Id. at 5 (Deposition of Gary Jenkins at 34:6-10).
concedes that its FRDM was a component used by Hopeman Brothers to
fabricate its composite bulkhead panels.53 Based on this evidence of a

material dispute of fact, summary judgment must be denied.
Further, even if the defendant’s asbestos were less potent than other
defendants’ asbestos products, that does not compel the conclusion that
exposure to FRDM was not a “substantial factor” in causing decedent’s

mesothelioma. Cf. Williams, 23 F.4th at 512 (“Even if the plaintiff was only
exposed to asbestos for a ‘short period for an employer[,] and he had longer
exposure working for others, it cannot be said the relatively short asbestos

exposure was not a substantial factor in causing his mesothelioma.’” (quoting
Rando, 16 So. 3d at 1091)). Indeed, Westinghouse does not cite a single
Louisiana case in which a court determined that exposure to chrysotile
asbestos was not actionable as a matter of law because of the supposedly

reduced danger that chrysotile presents. This is because Westinghouse’s
argument is intrinsically factual, and involves disputed issues for the trier of
fact. See, e.g., Robertson v. Doug Ashy Bldg. Materials, Inc., 14-0143, 2014
WL 7277836, at *11 (La. App. 1 Cir. Dec. 23, 2014), writ denied, 169 So. 3d

365 (La. 2015) (observing that “the issue of the potency difference between
the two types of asbestos fibers was a factual issue matter for the jury to

53 R. Doc. 500-1 at 4.
consider in determining whether . . . there was sufficient exposure to
chrysotile asbestos to substantially contribute to [plaintiff’s]

mesothelioma”); Cimino v. Raymark Indus., Inc., No. 86-456, 1989 WL
253889, at *8 (E.D. Tex. Sept. 23, 1989) (explaining that the “chrysotile
defense” is the argument that plaintiff’s disease “cannot be caused by a
certain type of asbestos” and that this defense can be considered by the jury

when determining causation); Michel v. Ford Motor Co., No. 18-4738, 2019
WL 118008, at *8 (E.D. La. Jan. 7, 2019) (noting that defendants’ “core
defense” is that chrysotile asbestos is less harmful and admitting an expert

opinion that addressed “both types of asbestos and the possible differences
between them”). Indeed, summary judgment was denied by this Court in
Michel v. Ford Motor Co., when the defendants’ “core defense” was that
chrysotile is less harmful. 2019 WL 118007, at *3. Accordingly, Dr. Howard’s

opinion is merely a consideration for the jury to take into account. Summary
judgment is not warranted on whether FRDM was a substantial factor in
bringing about Cortez’s mesothelioma.
C. The Sophisticated Purchaser Defense

Lastly, Westinghouse contends that summary judgment is warranted
as to whether it had a duty to warn Cortez of the dangers of FRDM.54

54 R. Doc. 500-1 at 14.
Plaintiffs, in their complaint, assert that Westinghouse is liable for failing to
warn end-users of the dangers of its asbestos-containing products.55

Westinghouse contends that because Hopeman Brothers was a
“sophisticated purchaser” of its product, Westinghouse was discharged of its
duty to warn end-users of the dangers of FRDM.56
Under the applicable Halphen-era Louisiana tort law, “[a]

manufacturer is required to provide an adequate warning of any danger
inherent in the normal use of its product which is not within the knowledge
of or obvious to the ordinary user.” Halphen v. Johns-Manville Sales Corp.,

484 So. 2d 110, 115 (La. 1986). Yet “a manufacturer has no duty to warn a
sophisticated user.” Davis v. Avondale Indus., Inc., 975 F.2d 169, 172 (5th
Cir. 1992). “Similarly, a manufacturer has no duty to warn a sophisticated
purchaser.” Id.

A sophisticated user is one who is “familiar with the product,” Hines v.
Remington Arms Co., Inc., 648 So. 2d 331, 337 (La. 1994), and thus
“possesses more than a general knowledge of the product and how it is used,”
Asbestos v. Bordelon, Inc., 726 So. 2d 926, 955 (La. App. 4 Cir. 1998). “As a

result of their familiarity with a product, sophisticated users are presumed

55 R. Doc. 1-1 at 13-14 (Complaint ¶¶ 32-33).
56 Id. at 14-18.
to know the dangers presented by the product; hence, there is no duty to
warn them.” Bates v. E.D. Bullard Co., 76 So. 3d 111, 114 (La. App. 3 Cir.

2011). The “threshold burden is on the manufacturer to prove that the
purchaser-intermediary knew or reasonably should have been expected to
know of the dangerous characteristic of the product that caused the damage.”
Swope v. Columbian Chems. Co., 281 F.3d 185, 206 (5th Cir. 2002).

Accordingly, “[t]he ‘sophisticated user’ issue is, by its nature, one of actual or
expected knowledge on the part of the purchaser/user.” Osborne v. Vulcan
Foundry, Inc., 675 So. 2d 837, 841 (La. App. 4 Cir. 1996).

Here, Westinghouse asserts that because Hopeman routinely utilized
FRDM as a component in its bulkhead panels and was aware of the risks
created by asbestos dust, the firm is a sophisticated purchaser.57 It is
undisputed that Hopeman routinely purchased FRDM from Westinghouse,

which it used as a component in its bulkhead panels. Likewise, it is
uncontested that Hopeman was actually aware of risks associated with
asbestos dust from its wallboards; and that the danger posed by
Westinghouse’s FRDM is the very same danger posed by Hopeman’s final

product—inhalation of asbestos dust. Westinghouse points to several pieces
of evidence to support a finding that Hopeman was aware of risks posed by

57 Id. at 16-18.
asbestos dust. Most critically, Westinghouse points to a November 11, 1968
internal memorandum from former Hopeman executive, Bertram Hopeman,

in which he states that shipyards where Hopeman employees were working
had started to take precautions—utilization of “skill saws” and “dust bags”—
because workers “should not breath asbestos dust.”58 Hopeman goes on to
list further precautions that are to be taken prospectively to mitigate the risk

of inhaling asbestos dust, including an instruction that the cutting of
wallboards “must be isolated to the greatest possible from other people
working on the ship.”59

To be sure, “[w]hether a user is sophisticated is ordinarily a question
of fact for the jury to decide.” Mozeke v. Int’l Paper Co., 933 F.2d 1293, 1297
(5th Cir. 1991). But in this case, dismissal of the failure to warn claims is
proper, as Westinghouse has pointed to uncontroverted summary judgment

evidence that shows Hopeman possessed much “more than a general
knowledge of [FRDM] and how it is used.” Bordelon, Inc., 726 So.2d at 955.
Plaintiffs contend that the actual end-user, as opposed to the
purchaser, must be “sophisticated” for this defense to apply.60 But the

applicable law does not support that assertion. In Davis v. Avondale

58 R. Doc. 500-14 at 2.
59 Id.
60 R. Doc. 678 at 15.
Industries, Inc., the Fifth Circuit, applying Louisiana law, and making an
Erie guess, held that a manufacturer had no duty to warn the employee of a

sophisticated purchaser if: (1) the manufacturer warned the purchaser of the
risks, or (2) the purchaser had knowledge of the product’s inherent dangers.
975 F.2d 169, 172 (5th Cir. 1992). Cf. West v. Hydro-Test, Inc., 196 So. 2d
598, 606 (La. App. 1 Cir. 1967) (“Therefore, if the manufacturer warns the

purchaser, or if the purchaser has knowledge of the danger, the manufacturer
is not liable to third persons who may be subjected to the danger.”).
Subsequent Fifth Circuit decisions have followed Davis’s line of reasoning.

See Washington v. Dep’t of Transp., 8 F.3d 296, 300 (5th Cir. 1993) (“[W]e
think it clear that [the manufacturer] owed no duty to provide [the
sophisticated purchaser’s] employees an adequate warning.”); Jones v.
Flowserve FCD Corp., 73 F. App’x 706, 713 (5th Cir. 2003) (“[T]he

‘sophisticated user’ defense, if applicable, protects manufacturers from
claims made by the user’s employees.”).
Moreover, no Louisiana court has directly contradicted Davis. To the
contrary, Louisiana intermediate appellate courts have held that in certain

circumstances, sand suppliers do not owe a duty to warn a sophisticated
purchaser’s employee of the dangers of silica sand. See Bates v. E.D. Bullard
Co., 76 So. 3d 111, 114 (La. App. 3 Cir. 2011) (holding that sand suppliers “did
not have a duty to warn [plaintiff’s employer] or [plaintiff] of the danger sand
presents when used for sandblasting”); Damond v. Avondale Indus., Inc.,

718 So. 2d 551, 553 (La. App. 4 Cir. 1998), writ denied, 735 So. 2d 637 (La.
1999) (holding that a sand supplier did not have a duty to warn a
sophisticated purchaser’s employee); Cowart v. Avondale Indus., Inc., 792
So. 2d 73, 77 (La. App. 4 Cir. 2001), writ denied, 805 So. 2d 211 (La. 2002)

(“Once having found Avondale to be a sophisticated user, the trial court
should have granted Unimin’s motion for summary judgment and dismissed
plaintiff's claims against it.”). To be sure, in reaching the conclusion that

certain manufacturers need not warn end-users, Louisiana courts have taken
other considerations into account, such as that the supplier had adequately
warned the purchaser, the supplier’s lack of control over how the purchaser
would use the product, or the impracticality of warning the end-user. See

Damond, 718 So. 2d at 552-553. But consideration of other factors does not
vitiate the Davis holding.
Although one Louisiana intermediate appellate court held a
manufacturer liable for harm to an employee of a sophisticated purchaser,

there the exposures occurred on the manufacturer’s premises, and the
plaintiff regularly interacted with the employees of the seller while on the
seller’s premises, making a warning feasible. See Warren v. Sabine Towing
& Transp. Co., 831 So. 2d 517, 531 (La. App. 3 Cir. 2002), writ denied sub
nom., 836 So. 2d 116 (La. 2003) (“Because of the direct contact between

[plaintiffs] and the defendants and because the defendants maintained some
control over aspects of the operations, we find that they had a duty to directly
warn Mr. Warren.”). Warren is inapposite here, where the exposures took
place at Avondale and Halter Marine, and nothing on the record here

suggests it would have been feasible for Westinghouse to warn end-users
who worked with FRDM, let alone bystanders. With no Louisiana case law
that clearly contradicts Davis, this Court follows the Fifth Circuit’s guidance.

See F.D.I.C. v. Abraham, 137 F.3d 264, 268-69 (5th Cir. 1998) (holding that
the precedential weight of Erie guesses is not “alleviated by intervening
decisions of intermediate state appellate courts unless such ‘subsequent state
court decisions are clearly contrary to a previous decision of this court.’”

(quoting Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991))).
While plaintiffs cite several pre-Davis cases that reiterate the general
rule that end-users must be warned, these decisions do not address what
happens when a manufacturer sells to a sophisticated purchaser and a non-

sophisticated user is later injured. See Davis, 975 F.2d at 173 (noting that
“no Louisiana case has clearly addressed the issue” of whether a “product
manufacturer owes [a] duty to the employee[s] of a purchaser . . . [that] has
knowledge of those dangers”).

Horne v. Liberty Furniture Co., 452 So. 2d 204 (La. App. 5 Cir. 1981),
cited by plaintiffs, mentions only that defendant invoked the defense. The
court did not determine whether the intermediary purchaser was
sophisticated. See id. at 209. Fincher v. Surrette, 365 So. 2d 860 (La. App.

4 Cir. 1978), also cited by plaintiffs, is inapposite because the court explicitly
rejected the contention that the purchaser was sophisticated. See id. at 863.
And while plaintiffs cite Mozeke v. International Paper Co., 933 F.2d 1293

(5th Cir. 1991) to support their assertion that a manufacturer must always
warn an end-user, Davis made clear that Mozeke was no obstacle to its
conclusion that no duty exists in the sophisticated purchaser context. The
Fifth Circuit specifically noted that Mozeke did not hold that it was an error

to instruct a jury that there is no duty to warn employees of sophisticated
purchasers. See Davis, 975 F.2d at 174 n.7 (“In Mozeke . . . the plaintiff on
appeal contended that the charge eliminated the defendant’s duty to warn
the employee if the employer were found to be a sophisticated purchaser. We

held that the charge did not have that effect . . . . We hence did not reach the
issue of whether the charge would have been correct if it had the effect
plaintiff claimed.”). Accordingly, the Court rejects plaintiffs’ contention that
the sophisticated user defense is applicable only if the end-user is
sophisticated.

Likewise, plaintiffs’ argument that the sophisticated user defense is
inapplicable because the doctrine did not exist during the Halpen era is
incorrect. This rule predates the Louisiana Products Liability Act. See, e.g.,
Ducote v. Liberty Mut. Ins. Co., 451 So. 2d 1211, 1213 (La. App. 4 Cir. 1984),

writ denied, 457 So. 2d 15 (La. 1984) (“It follows that the manufacturer is
under no duty to warn a ‘sophisticated user’ of those dangers which he may
be presumed to know through his familiarity with the product.”); see also La.

Rev. Stat. § 9:2800.51, et seq. (indicating an effective date of September 1,
1988).
Hopeman Brothers argues that the sophisticated purchaser defense is
inapplicable because it was aware of only a general risk of asbestos

inhalation. It contends that a sophisticated purchaser must have known that
asbestos causes mesothelioma specifically.61 This contention is incorrect.
First, a sophisticated purchaser need not actually know the risk posed by a
product. As mentioned above, because a sophisticated purchaser is familiar

with a product and has a higher level of knowledge than an ordinary user, the
purchaser is “presumed to know the dangers presented by the product.”

61 R. Doc. 724 at 6.
Bates, 76 So. 3d at 114 (emphasis added). Indeed, the question is whether
Hopeman “knew or reasonably should have known of the dangerous

characteristic.” Swope v. Columbian Chems. Co., 281 F.3d 185, 206 (5th Cir.
2002) (emphasis added). That Hopeman was actually aware of risks posed
by asbestos only bolsters the finding that it was a sophisticated purchaser;
but it is not a necessary condition for such a finding.

Further, Hopeman incorrectly relies on Swope v. Columbian
Chemicals Co. for the assertion that it must have been aware that asbestos
inhalation can cause mesothelioma. The Swope court stated that the

question is whether the purchaser knew or should have known of the
“specific dangerous propensity of the [product].” Id. at 209 (emphasis
added). The decision said nothing as to whether the purchaser must be
aware of the specific diseases caused by a product’s dangerous propensity.

Here, the dangerous propensity of the product was that it would generate
respirable dust that could cause serious, adverse health effects if inhaled.
Westinghouse’s uncontroverted evidence shows that Hopeman was aware of
significant risks posed by asbestos.62 Bertram Hopeman went so far as to say

that individuals should not breathe asbestos dust.63 Indeed, Hopeman even

62 R. Doc. 500-14 at 2 (Bertram Hopeman 1968 Memo).
63 Id.
concedes in its opposition that it knew that asbestos dust posed a general
health risk.64 That Hopeman Brothers did not have the epidemiological

expertise to know precisely which diseases could be caused by inhalation of
its asbestos dust does not equate to being unaware that the product posed
health risks when inhaled.
Thus, the arguments to the contrary notwithstanding, the Court finds

there is no material factual dispute as to whether Hopeman Brothers “knew
or reasonably should have been expected to know” of FRDM’s dangerous
propensities. Swope, 281 F.3d at 209. For all of the reasons cited here, the

Court grants summary judgment on plaintiffs’ failure to warn claims against
Westinghouse arising from Callen Cortez’s exposure to Westinghouse’s
FRDM.

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES
IN PART Westinghouse’s motion for partial summary judgment.65 The
Court grants the motion as to the failure to warn claims against

Westinghouse. The Court denies the motion as to the issues of (1) decedent’s

64 Id.
65 R. Doc. 500.
alleged exposure at Halter Marine, and (2) the assertion that FRDM could
not have been a substantial factor causing Cortez’s mesothelioma.

New Orleans, Louisiana, this 13th day of July, 2022.

_erak Varer
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187990. Public record. Not legal advice.