Cortez v. Lamorak Insurance Company

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 Legacy Vulcan, LLC’s (“Vulcan”) motion

for summary judgment.1 Plaintiffs, Huntington Ingalls, Inc. (“Avondale”),

and Continental Insurance Company (“Continental”) oppose the motion.2

Because material facts remain in dispute, the Court denies Vulcan’s motion.

I. BACKGROUND

This is an asbestos exposure case. Plaintiffs allege that Callen Cortez

contracted mesothelioma as a result of, inter alia, working with asbestos-

containing insulation and removing and installing asbestos-containing

gaskets at Vulcan’s facility in Geismar, Louisiana.3 On July 1, 2020, Cortez

sued Vulcan, and approximately thirty-four other defendants, including

1 R. Doc. 433.

2 R. Docs. 639, 653, & 680.

3 R. Doc. 1-1 at 36 (Complaint ¶ 74).

former employers, manufacturers, and insurance companies.4 In his

petition, Cortez alleged various negligence and strict liability claims against

Vulcan as a premises owner.5 Callen Cortez passed away on May 26, 2022.6

Cortez’s surviving spouse and children filed an amended complaint on June

6, 2022,7 substituting themselves as plaintiffs in a survival action and

seeking additional damages arising from Cortez’s alleged wrongful death.8

Vulcan now moves for summary judgment, seeking the dismissal of

plaintiffs’ negligence and strict liability claims against it.9 Plaintiffs,

Avondale, and Continental oppose the motion.10 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,

4 R. Doc. 1-1 at 1-3 (Complaint ¶¶ 1-2); id. at 45-48.

5 Id. at 36-39 (Complaint ¶¶ 74, 76-80).

6 R. Doc. 1026 at 2 (Fourth Amended Complaint ¶ 111).

7 Id.

8 Id. at 2-3 (Fourth Amended Complaint ¶¶ 111-114).

9 R. Doc. 433.

10 R. Docs. 639, 653, & 680.

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

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

Vulcan seeks summary judgment on plaintiffs’ negligence and strict

liability claims for three reasons: (1) Cortez’s alleged exposure to asbestos at

Vulcan was not a substantial contributing factor to his mesothelioma; (2)

Vulcan did not owe a duty to Cortez as an employee of an unknown

independent contractor; and (3) Vulcan, as a premises owner, cannot be

strictly liable for a dangerous condition on its premises that is temporary in

nature.

A. Asbestos Exposure

Under Louisiana law, in an asbestos exposure case, the 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). When there are multiple causes of injury, “a defendant’s conduct is a

cause in fact if it is a substantial factor generating plaintiff’s harm.” Adams

v. Owens-Corning Fiberglas Corp., 923 So. 2d 118, 122 (La. App. 1 Cir. 2005)

(citing Vodanovich, 969 So. 2d at 932). “Because there is a medically

demonstrated causal relationship between asbestos exposure and

mesothelioma, every non-trivial exposure to asbestos contributes to and

constitutes a cause of mesothelioma.” Labarre v. Bienville Auto Parts, Inc.,

No. 21-89, 2022 WL 293250, at *3 (E.D. La. Feb. 1, 2022) (citing McAskill v.

Am. Marine Holding Co., 9 So. 3d 264, 268 (La. App. 4 Cir. 2009)). Thus,

as 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)).

Vulcan asserts that it is entitled to summary judgment because

plaintiffs have not produced sufficient evidence that Cortez had significant

exposure to asbestos during his “very short job” at Vulcan, let alone that the

exposure was a substantial factor in causing Cortez’s injuries.11 Vulcan

asserts that plaintiffs cannot meet their burden on either requirement

because the “only evidence in this matter is the extremely limited testimony”

provided by Cortez, who had a “poor memory” of the nature of his work at

Vulcan.12

1. Significant Exposure

First, Vulcan argues that plaintiffs lack evidence that Cortez had

significant exposure to asbestos at Vulcan. In support of its assertion, Vulcan

notes that Cortez testified that he “never saw any of the Vulcan

specifications”13 for the gaskets or insulation that he worked with, and

“couldn’t tell how old [the insulation] was,” or the date that the gaskets were

originally installed.14 Vulcan also cites to the deposition of plaintiffs’

industrial-hygiene expert, Gerard Baril, who testified that he “can[not] say

one way or the other . . . whether any insulation [Cortez] may have removed

[at Vulcan] contained asbestos.”15 Vulcan further contends that even if the

gaskets and insulation did contain asbestos, Vulcan had safety procedures in

11 Id. at 7-8.

12 R. Doc. 433-1 at 4-6.

13 R. Doc. 433-4 at 13 (Deposition of Collen Cortez at 431:5-11).

14 Id. at 7 (Deposition of Callen Cortez at 194:9-15); id. at 13 (Deposition

of Callen Cortez at 431:1-4).

15 R. Doc. 433-5 at 26 (Deposition of Gerard Baril, at 261:3-12).

place during the 1980s for handling asbestos-containing products.16

Defendant specifically points to the deposition testimony of its corporate

representative, Rodney Gremillion, who testified that when he arrived at the

plant in 1984, Vulcan provided written instructions to maintenance

contractors on the appropriate procedure for handling asbestos-containing

insulation and gaskets, and Gremillion speculated that “most” of these

procedures “extended back to about [the] mid-seventies.”17

Plaintiffs have cited sufficient evidence to create an issue of material

fact that Cortez was exposed to asbestos-containing gaskets and insulation

at the Vulcan plant. Specifically, plaintiffs cite Cortez’s testimony that he was

exposed to asbestos at Vulcan from changing asbestos-containing gaskets

and removing old asbestos-containing insulation. Plaintiffs submit the

following description from Cortez’s deposition:

Q. Now, you said you were also exposed to asbestos at Vulcan.

A. Yes.

Q. And how were you exposed to asbestos at Vulcan?

A. I was on a shutdown over there and I was . . . [n]ut busting,

changing gaskets, removing old insulation so we could get to the

flanges and stuff. And if we had to change out a whole pipe, we

16 R. Doc. 433-1 at 7 & n.36.

17 R. Doc. 433-6 at 3, 22-24 (Deposition of Rodney Gremillion at 71:1-4;

90:8-92:25).

had to take the whole pipe down and replace it with a new pipe.

And then they would come back behind us and insulate it.

. . .

Q. And how did you remove gaskets at Vulcan?

A. With a scraper and wire brush.

Q. And there did you use [a] power wire brush and [a] hand wire

brush?

A. Yes.

Q. And when you would replace the gaskets, what kind of gaskets

were you replacing?

A. Mostly everywhere[] I worked it was Garlock.

Q. And at Vulcan[,] what style numbers were you using?

A. . . . 900 and the 7705.18

As to Cortez’s exposure to asbestos-containing gaskets, Garlock’s

corporate representative, James Hefron, testified that Garlock’s 7705 style

gaskets contained crocidolite asbestos,19 and its 900 series gaskets contained

chrysotile asbestos.20 Additionally, two of plaintiffs’ experts testified that

based on their education, training, and review of the literature, the Garlock

900 and 7705 gaskets both contained asbestos.21 Finally, Vulcan’s corporate

18 R. Doc. 653-4 at 2-4 (Deposition of Callen Cortez at 53:25-55:19).

19 R. Doc. 639-3 at 5 (Deposition of James Heffron at 41:6-8).

20 Id. at 10 (Deposition of James Heffron at 14-22).

21 See R. Doc. 653-12 at 3 (Deposition of James Millette at 52:2-10)

(explaining that based on his “review of literature and [his] education,

training, [and] experience,” it was his understanding that the Garlock

900 “contains chrysotile asbestos . . . [a]nd the Garlock 7705 was a

representative, Gremillion, testified that these asbestos-containing gaskets

were still used at Vulcan’s plant when he arrived in 1984.22 The foregoing

evidence raises a genuine issue of material fact as to whether Cortez was

exposed to asbestos-containing gaskets during his time at the Vulcan plant.

As to Cortez’s exposure to asbestos-containing insulation, Cortez

testified that when he was “changing out valves and gaskets at Vulcan,” this

work generated dust, which he breathed in.23 Cortez additionally testified

that by changing out the gaskets and valves, he disturbed insulation, and

although he could not tell the exact age of the insulation, he knew “it wasn’t

new” and that it “looked like it had been there.”24 Vulcan’s corporate

representative testified that several facilities within the Vulcan plant were

initially constructed during the 1970s with asbestos-containing insulation,

and that when he arrived in 1984, many of those facilities’ “lines and

equipment” still utilized asbestos insulation.25 And although Cortez testified

that he did not know the exact age of the insulation he was exposed to at

gasket that contained crocidolite asbestos”); R. Doc. 653-6 at 6-7

(Deposition of Gerard Baril at 25:21-26:16) (noting that based on his

reading of “the literature over the years,” both the Garlock 900 and

Garlock 7705 gaskets “contained asbestos during the years relevant to

Mr. Callen Cortez’s exposure history”).

22 R. Doc. 639-4 at 3 (Deposition of Rodney Gremillion at 57:15-18).

23 R. Doc. 653-5 at 6-7 (Deposition of Callen Cortez at 194:5-195:8).

24 Id. at 194:5-15 at 6 (Deposition of Callen Cortez at 194:5-15).

25 R. Doc. 653-13 at 8-10 (Deposition of Rodney Gremillion at 53:1-55:7).

Vulcan, his testimony that it “looked like it had been there,” combined with

the testimony from Gremillion, “could be construed by a jury as indicating

that asbestos-containing [insulation] . . . was used” at Vulcan during the

1980s. See Lopez v. McDermott, Inc., No. 17-8977, 2020 WL 3668059, at *4

(E.D. La. July 6, 2020) (noting that testimony in the record that the

“‘insulation looked the same from 1968 to 1980’ . . . could be construed by a

jury as indicating that asbestos-containing materials continued to be used on

[defendant’s] platforms in a manner that would release asbestos fibers into

the air despite the EPA’s ban in 1975”). Thus, as with the gaskets, the Court

finds that plaintiffs’ have presented sufficient evidence to raise a genuine

issue of fact as to whether Cortez was exposed to asbestos-containing

insulation at Vulcan.

Finally, the Court finds that plaintiffs’ have raised a genuine issue as to

whether Vulcan failed to have precautionary measures in place during

Cortez’s time at the plant that would have protected workers from substantial

exposure to asbestos. Although Vulcan’s corporate representative testified

that by the 1980s defendant and its contractors had implemented safety

procedures for work involving asbestos-containing products, this testimony

is directly contradicted by Cortez’s own testimony that he was not provided

“any warnings about [the] hazards of asbestos when [he] w[as] at Vulcan,”

and that he was not provided “any protective equipment to protect [him]

from breathing the dust.”26

In sum, based on the above testimony, plaintiffs have created a genuine

issue of fact as to whether Cortez was exposed to asbestos-containing gaskets

and insulation during his work at Vulcan.

2. Substantial Factor in Causing Injury

Vulcan also contends that, even if Cortez were exposed to asbestos

through his work at Vulcan, plaintiffs cannot show that the exposure was a

substantial factor in causing his injury. Vulcan notes that its certified

industrial hygienist, Joseph Holtshouser, opined that Cortez “did not receive

any direct . . . [or] bystander exposures to asbestos while he worked at the

Vulcan Chemicals plant that would have been a substantial contributing

factor towards increasing his risk for any asbestos-related disease.”27

Further, Vulcan emphasizes that Cortez worked at Vulcan “on only one

occasion . . . for a shutdown that lasted approximately one month,” and

argues that, accordingly, his exposure cannot be considered a substantial

factor.28 Specifically, Vulcan asserts that in order to support “a reasonable

26 R. Doc. 653-5 at 6-7 (Deposition of Callen Cortez at 194:16-195:8).

27 R. Doc. 433-7 at 8-9 (Holtshouser Report).

28 R. Doc. 433-1 at 5 (emphasis in original).

inference of substantial causation,” plaintiffs must come forward with

“evidence of exposure to a specific product on a regular basis over some

extended period of time,” and that plaintiffs have failed to produce such

evidence here.29

These arguments fail for two reasons. First, the brevity of Cortez’s

asbestos exposure does not alone warrant summary judgment for the

defendant. As the Louisiana Supreme Court has explained, “[s]imply

because a plaintiff suffered asbestos exposure while working only a short

period for an employer,” and “had longer exposure working for others, it

cannot be said the relatively short asbestos exposure was not a substantial

factor in causing his mesothelioma.” Rando, 16 So. 3d 1065 at 1091; Hoerner

v. ANCO Insulations, Inc., 812 So. 2d 45, 64 (La. App. 4 Cir. 2002) (noting

that the “frequent and regular” requirement for asbestos exposure in

Louisiana “refers to the quality of the exposure during the employment

period, not to the length of that period”). Accordingly, Vulcan’s assertion

that plaintiffs must produce evidence of exposure “over some extended

period of time” seeks to hold plaintiffs to a higher causation standard than

required under Louisiana law.

29 Id. at 4.

Second, contrary to defendant’s expert, plaintiffs’ experts all opine that

Cortez’s exposure through his work at Vulcan was a substantial contributing

factor in causing his mesothelioma. Specifically, Baril, an expert industrial

hygienist, noted in his report that Cortez worked at Vulcan “during a

shutdown 12 hours per day, 7 days per week” and that his basic work

“involved removing and replacing gaskets . . . [with] scraper and wire brushes

. . . which created visible dust which he inhaled.”30 Based on this exposure,

Baril testified that, in his opinion, “Callen Cortez sustained occupational

exposures to asbestos while he was working at Vulcan” and that those

exposures at Vulcan “significantly increase[d] his risk of developing

mesothelioma.”31 Similarly, Dr. Stephen Kraus, testified that after reviewing

Cortez’s deposition and the relevant scientific literature, it was his “opinion

that Callen Cortez sustained occupational exposures to asbestos while he was

working at Vulcan” and that those exposures were “a significant contributing

factor to causation of his mesothelioma.”32

In light of this conflicting evidence, the Court denies summary

judgment on the issue of whether Cortez’s exposure through his work at

Vulcan was a substantial factor in causing his mesothelioma.

30 R. Doc. 653-9 at 41 (Baril Report).

31 R. Doc. 653-6 at 9 (Deposition of Gerard Baril 62:6-22).

32 R. Doc. 653-8 at 14-15 (Deposition of Stephen Kraus at 71:23-72:12).

B. Negligence Claims

Plaintiffs allege that Vulcan, as the premises owner, was negligent in

failing to warn Cortez about the hazards associated with exposure to asbestos

and for failing to provide Cortez a safe place to work.33 Louisiana courts

conduct “a duty-risk analysis to determine whether [negligence] liability

exists under the particular facts presented.” Posecai v. Wal-Mart Stores,

Inc., 752 So. 2d 762, 765 (La. 1999). Under the duty-risk analysis, a plaintiff

must prove: (1) the defendant had a duty to conform his conduct to a specific

standard of care; (2) the defendant’s conduct failed to conform to the

appropriate standard of care; (3) the defendant’s substandard conduct was a

cause-in-fact of the plaintiff’s injuries; (4) the defendant’s substandard

conduct was the legal cause of the plaintiff’s injuries; and (5) actual damages.

Pinsonneault v. Merchs. & Farmers Bank & Trust Co., 816 So. 2d 270, 275-

76 (La. 2002).

Vulcan challenges the duty34 element of plaintiffs’ negligence claims,

invoking the “independent-contractor defense.”35 “Under Louisiana law, the

existence of a duty presents a question of law that ‘varies depending on the

33 R. Doc. 1-1 at 36-39 (Complaint ¶¶ 74, 76-80).

34 Vulcan’s challenge to causation was previously addressed in in Part III

(A).

35 R. Doc. 433-1 at 3-15.

facts, circumstances, and context of each case and is limited by the particular

risk, harm, and plaintiff involved.’” Bursztajn v. United States, 367 F.3d 485,

489 (5th Cir. 2004) (quoting Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157

(5th Cir.1994)). In determining whether specific duties of care exist, “[t]he

role of the court is to determine whether any jurisprudential or statutory rule

exists, or any policy reason why, under the facts and circumstances of the

case, the [defendant] would owe a duty to compensate the plaintiff for his

injuries.” Bridgewater v. New Orleans Reg’l Transit Auth., 190 So. 3d 408,

415 (La. App. 4 Cir. 2016) (citing Cormier v. T.H.E. Ins. Co., 745 So. 2d 1, 8

(La. 1999)). Plaintiffs’ negligence claims “will only survive a motion for

summary judgment if, as a matter of law, [they] can prove [Vulcan] owed

[Cortez] a duty of care.” Thomas v. Burlington Res. Oil & Gas Co., No. 99-

3904, 2000 WL 1528082, at *1 (E.D. La. Oct. 13, 2000).

It is undisputed that Cortez was not an employee of Vulcan, the

premises owner.36 In such a situation, there are “two ways in which a

premises owner can be liable to employees of contractors who are injured

while working on its premises: ‘(1) directly, for its own negligence; (2)

vicariously, for the negligence of the independent contractor.’” Thomas v.

36 R. Doc. 653-1 at 2 (Plaintiffs’ Statement of Uncontested Facts); R. Doc.

433-2 at 3 (Defendant’s Statement of Uncontested Facts).

A.P. Green Indus., Inc., 933 So. 2d 843, 851 (La. App. 4 Cir. 2006) (quoting

1A Stuart M. Speiser, Charles F. Krause, & Alfred W. Gans, The American

Law of Torts § 4:23 (2003)). The Court considers plaintiffs’ vicarious and

direct liability claims in turn.

1. Vicarious Liability

Under Louisiana law, “a premise[s] owner is not vicariously liable for

the negligence of an independent contractor.” Thomas, 933 So. 2d at 852;

Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549 (5th Cir. 1987). This

general rule, often known as the independent-contractor defense, is subject

to “two exceptions:” (1) when the independent contractor is engaged in an

ultrahazardous activity;37 or (2) when the principal “retains or exercises

operational control” or expressly or impliedly authorizes an unsafe practice.

Ainsworth, 829 F.2d at 549-550; Bartholomew v. CNG Producing, Inc., 832

F.2d 326, 329 (5th Cir. 1987) (holding that there was evidence to support a

jury’s finding that the principal was liable given that the principal expressly

authorized an unsafe work practice).

37 Neither party contends that Cortez was engaged in an “ultrahazardous

activity” during his time at the Vulcan plant.

“Operational control exists only if the principal has direct supervision

over the step-by-step process of accomplishing the work such that the

contractor is not entirely free to do the work in his own way.” Fruge ex rel.

v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003); see also Hawkins

v. Evans Cooperage Co., Inc., 766 F.2d 904, 907-08 (5th Cir. 1985) (finding

there was no operational control because the principal checked on operations

but never supplied detailed instructions). “It is not enough” that the

principal “has merely a general right to order the work stopped or resumed,

to inspect its progress or to receive reports, to make suggestions or

recommendations which need not necessarily be followed, or to prescribe

alterations or deviations.” LeJeune v. Shell Oil Co., 950 F.2d 267, 270 (5th

Cir. 1992). Instead, there must be “control over the operative detail of doing

any part of the work.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605,

613-14 (5th Cir. 2018).

Vulcan contends that Cortez worked on its premises for an

independent contractor and that it did not have any supervision or

operational control over Cortez’s work.38 Accordingly, Vulcan asserts that,

as a matter of law, it did not owe Cortez a duty to provide a safe place to

38 R. Doc. 433-1 at 11-12.

work.39 Plaintiffs contest whether Vulcan has established that the

independent-contractor defense is applicable to plaintiffs’ vicarious

negligence claims.40 Plaintiffs note that defendant has not produced a

contract establishing that a principal-independent contractor relationship

existed, and that even if it had, there is an issue of material fact as to whether

Vulcan controlled and directed the work of its alleged independent

contractor’s employees.41

Vulcan, as the “principal seeking to avoid vicarious liability through the

independent-contractor exception must establish the existence of an

independent-contractor relationship between it and the alleged[ly] negligent

contractor.” Coleman v. BP Expl. & Prod. Inc., No. 19-102, 2020 WL

6292491, at *3 (S.D. Tex. Oct. 27, 2020), aff’d 19 F.4th 720 (5th Cir. 2021)

(applying Louisiana law). To determine whether Vulcan has established the

existence of such a relationship, the Court must consider whether: “(1) a valid

contract exists between the parties; (2) the work is of an independent nature;

(3) the contract allows for the work to be done according to the contractor’s

own methods, without being subject to control and direction, except as to the

result of the services to be rendered; (4) a specific price for the overall

39 R. Doc. 433-1 at 10.

40 R. Doc. 653 at 18.

41 Id. at 14.

undertaking is agreed upon; and (5) the duration of the work is for a specific

time and not subject to termination at the will of either party.” Bouquet v.

Williams, 206 So. 3d 232, 237 (La. App. 1 Cir. 2016) (citing Hickman v. S.

Pac. Trans. Co., 262 So. 2d 385, 390-91 (La. 1972)). “In other words, to

determine whether someone is an independent contractor, the court must

look at the degree of control over the work.” Id.; Henderson v. Atmos

Energy, 509 F. Supp. 3d 625, 641 (E.D. La. 2020) (“[T]he most important

inquiry is whether the principal retained the right to control the work.”

(quoting McLeod v. Moore, 7 So. 3d 190 at 192 (La. App. 2 Cir. 2009))).

The Court finds that defendant is not entitled to summary judgment

on plaintiffs’ vicarious liability claims. Cortez testified that he worked as a

pipefitter at Vulcan’s plant at some point during the 1980s, but that he was

unable to remember his employer’s name.42 Vulcan argues that because

Cortez could not identify his employer, it is “impossible” for Vulcan to

produce a contract with an unknown entity.43 Although Vulcan has not

produced a written agreement that purports to establish an independent-

contractor relationship, Louisiana courts have explained that the “existence

of an independent contractor agreement is not necessarily dispositive,” and

42 R. Doc. 433-4 at 6 (Deposition of Callen Cortez at 193:12-14).

43 R. Doc. 836 at 7 n.30.

that courts must “inquire as to the real nature of the relationship and the

degree of control exercised.” Arroyo v. E. Jefferson Gen. Hosp., 956 So. 2d

661, 664 (La. App. 5 Cir. 2007). But Vulcan has not produced evidence on

the factors that shed light on the “real nature” of its relationship with its

allegedly independent contractor, such as facts about the specific terms

defining the scope, nature, duration, or price of the contractor’s work.

Further, plaintiffs have produced evidence that raises a genuine

dispute as to whether Vulcan exercised control over the pipefitters that

worked at its plant, thereby creating an issue of fact as to whether Cortez’s

employer was an independent contractor, and relatedly, whether an

exception to the independent-contractor defense exists. See Coleman, 2020

WL 6292491, at *3 (noting that the answer to “whether there was an

independent-contractor relationship will often correspondingly answer

whether the principal enjoyed ‘operational control’ . . . an exception to the

independent-contractor [defense]” (citing Arroyo, 956 So. 2d at 664)).

Defendant argues that it did not control or direct the manner of Cortez’s work

as a pipefitter, pointing to Cortez’s testimony that he did not know “any

employees of Vulcan,”44 that he took his “instructions from” either his union

44 R. Doc. 433-4 at 10 (Deposition of Callen Cortez at 428:17-19).

steward or his supervisor through his unknown employer,45 and that he

supplied his own tools.46 Defendant also notes that although it was “involved

in safety” at its plant, and made sure that contractors followed its asbestos

safety procedures, that does not equate to control over day-to-day

activities.47 But the testimony of Vulcan’s own corporate representative

raises an issue of fact as to whether Vulcan “issued the ‘how to’ instructions

to . . . workers necessary to support a finding that [Vulcan] exerted

operational control.” Thomas, 2000 WL 1528082, at *2. Specifically,

Rodney Gremillion testified as follows:

Q. Did Vulcan Geismar provide instruction to maintenance

contractors as to what type of method should be used in

removing an asbestos gasket?

A. Yes.

Q. Okay. And what type of measures did Vulcan Geismar state

should be used?

. . .

A. We had a procedure that was written. And what that involved

was, when you break the flange apart, [the contractor was] to

spray a solvent release agent on it, which wetted the surface, and

then [the contractor was to] scrape it . . . . But in no

circumstances were [contractors] allowed to use any kind of

power brushes or grinders.

45 Id. at 11-12 (Deposition of Callen Cortez at 429:16-430:1).

46 Id. at 12 (Deposition of Callen Cortez at 430:2-3).

47 R. Doc. 836.

Q. And . . . I know I’ve seen in the documents some written

procedures for handling of insulation.

. . .

Q. Do you have any knowledge as to how far back that procedure

goes?

A. . . . [M]y memory says that a lot of these—most of these

documents we had, maintenance procedure wise, extended back

to about [the] mid-seventies.48

Gremillion additionally testified that contractors “had to follow the

Vulcan written asbestos procedure.”49 He explained that pipefitters were

made aware of Vulcan’s procedures through “work packages” that were

written by Vulcan maintenance personnel.50 These work packages would

also include the list of materials that pipefitters would need for the job, and

where those materials could be found at the plant.51 Gremillion further

testified that based on these work packages, Vulcan maintenance planners

would write “a purchase requisition to [Vulcan’s] purchasing group,” and

that the purchasing group would then buy the necessary materials, and have

those materials delivered to the plant’s warehouse.52 He additionally

48 R. Doc. 433-6 at 22-24 (Deposition of Rodney Gremillion at 90:8-

92:1).

49 R. Doc. 653-13 at 17 (Deposition of Rodney Gremillion at 71:1-4).

50 R. Doc. 433-6 at 25-26 (Deposition of Rodney Gremillion at 104:10-

105:18).

51 Id. at 26 (Deposition of Rodney Gremillion at 105:1-6).

52 R. Doc. 653-13 at 13 (Deposition of Rodney Gremillion at 67:4-15).

specified that it would have been Vulcan’s purchasing group that would have

ordered gaskets and insulation based on “Vulcan’s specifications that existed

at the time.”53

Gremillion’s testimony further raises an issue of fact as to whether

Vulcan was simply “involved in” worker safety, or whether it was providing

workers with safety instructions and supervision on a day-to-day basis. He

confirmed that Vulcan had “site-specific safety rules” that “contractors were

required to follow when working at its plant.”54 And to ensure that these

safety procedures were being followed, Gremillion agreed that “[w]henever

asbestos insulation was being removed by the on-site insulation contractor

in the seventies and eighties,” there would “[a]bsolutely . . . be a Vulcan

representative there to oversee that work.”55 Gremillion additionally noted

that during a shutdown, it would not have been “uncommon” to have

contract maintenance employees working in the same area as Vulcan

employees, and that Vulcan employees would help get contract maintenance

workers “started on each of the[ir] jobs,” including “actually walk[ing]

[them]” out to the job site to “make sure they were on the right thing.”56

53 Id. at 13-14 (Deposition of Rodney Gremillion at 67:20-68:16).

54 Id. at 18 (Deposition of Rodney Gremillion at 95:2-9).

55 Id. at 18-19 (Deposition of Rodney Gremillion at 95:22-96:2).

56 Id.

Based on the above testimony, a fact finder could reasonably conclude

that Vulcan’s role involved a level of “control over the operative detail of . . .

the work,” such that pipefitters were “not entirely free to do the work in

[their] own way.” Grammar, 860 F.2d at 644. Notably, the record raises

fact issues as to Vulcan’s control over workers tasked with removing asbestos

gaskets during the time period that Cortez asserts he worked at the plant.

Deposition testimony from Vulcan’s corporate representative states that

Vulcan oversaw many aspects of the manner in which pipefitters did their

jobs, including the methods and tools that they required or prohibited when

removing asbestos gaskets. See Renwick, 901 F.3d at 613-14 (finding that

there was a “jury issue on operational control” when defendant controlled

“work-site access,” provided “specific instructions” about how to reach the

work-site, and rejected an alternative access route); Warner v. Talos ERT

LLC, No. 18-1435, 2022 WL 529351, at *3 (W.D. La. Feb. 22, 2022) (finding

that there were “fact issues as to [defendant’s] control over the time workers

w[ere] allowed to work, the ‘details’ to which [they] must conform, and the

tools [they] w[ere] allowed to use”).

The cases defendant relies on are distinguishable. Cf. Coulter v.

Texaco, Inc., 117 F.3d 909, 912 (5th Cir. 1997) (finding that the operational

control exception to vicarious liability did not apply, in part because the “fact

that a principal . . . reserves the right to monitor its contractor’s

performance” and “has the right to make safety recommendations to the

contractor and is obligated to report continuing unsafe work practices . . .

does not mean that the principal controls the methods or details of the

contractor’s work”); Lopez, 2020 WL 3668059, at *5-6 (finding that Exxon

did not have operational control over Brown & Root pipefitters, citing

plaintiff’s testimony that although Exxon inspectors were on the premises,

the inspectors were ‘inspecting the progress of the end product’ rather than

‘telling [him] how to weld,” and that Brown & Root provided plaintiff with all

his “training, safety instructions, and supervision”); Thomas, 2000 WL

1528082, at *2 (noting that the independent contractor’s foreman “was left

to accomplish the painting and sandblasting of the platform in any way he

chose,” and that although defendant’s company representative would

regularly attend safety meetings, he “did not participate in the discussion or

any decisions”). The evidence of Vulcan’s involvement and control is

qualitatively more substantial than in any of these cases.

Further, the Court rejects defendant’s argument that plaintiffs have

relied on the “non-established notion” that Cortez worked for Payne and

Keller of Louisiana, Inc. (“Payne and Keller”) during his time at Vulcan’s

plant in order “to create an issue of material fact regarding operational

control.”57 Plaintiffs have produced evidence that raises an issue of material

fact as to whether Cortez worked for Payne and Keller. Cortez testified that

he replaced gaskets at Vulcan’s plant at some point during the 1980s.58

Vulcan’s corporate representative testified that Vulcan had maintenance

contracts with two companies, National Maintenance and Payne and Keller,

and that one of the typical job duties of employees of either company during

the 1970s through the 1980s was to remove and change gaskets.59 Cortez’s

Social Security Administration Statement of Earnings shows that Cortez

received income from Payne and Keller in 1974, 1977, and 1979-1984.60

Thus, the Court concludes that plaintiffs have produced evidence that raises

a reasonable inference that Cortez was employed by Payne and Keller. See

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (explaining that in the summary judgment context “inferences to be

drawn from the underlying facts . . . must be viewed in the light most

favorable to the party opposing the motion”).

The Court concludes that there is an issue of fact as to whether

defendant exercised control over Cortez’s employer. The Court is thus

57 R. Doc. 836 at 5.

58 R. Doc. 433-4 at 6 (Deposition of Callen Cortez at 193:12-14).

59 R. Doc. 653-13 at 4 (Deposition of Rodney Gremillion at 35:9-13; 51:10-

24).

60 R. Doc. 653-3 at 3, 5.

unable to determine, for purposes of summary judgment, that there was an

independent-contractor relationship here, and that no exception to the

independent-contractor defense exists. Accordingly, the Court denies

defendant’s motion for summary judgment on plaintiffs’ vicarious liability

claims.

2. Direct Liability

“Although the independent contractor defense is a bar to a vicarious

liability claim, it is not a bar to [a] direct liability claim arising out of a

premises-owner’s own negligence.” Thomas, 933 So. 2d at 852 (citing

Sandbom v. BASF Wyandotte, Corp., 674 So. 2d 349, 557 (La. App. 1 Cir.

1996)). Plaintiffs contend that even if the independent-contractor defense

prevents them from holding Vulcan vicariously liable for Cortez’s injuries,

Vulcan is still directly liable for its own negligence.61 In response, Vulcan

asserts that as a premises owner, it cannot be held directly liable for its

alleged negligence because it did not owe a duty to protect Cortez, an

independent contractor’s employee, from risks inherent to his job.62

61 R. Doc. 653 at 14-15.

62 R. Doc. 433-1 at 13.

“In general, a premises owner has a duty of exercising reasonable care

for the safety of persons on its premises and a duty of not exposing such

persons to unreasonable risks of injury or harm.” Id. A premises owner’s

“knowledge (actual or constructive) gives rise to the duty to take reasonable

steps to protect against injurious consequences resulting from the risk.”

Watts v. Ga.-Pac. Corp., 135 So. 3d 53, 59-60 (La. App. 1 Cir. 2013). A

premises owner’s duty “extends to employees of independent contractors for

whose benefit the owner must take reasonable steps to ensure a safe working

environment.” Id. But this duty “does not extend so far as to require the

[premises owner] to intervene in and correct the work practices selected by

an independent contractor.” Thomas, 2000 WL 1528082, at *2 (citing

Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 551 (5th Cir. 1987)). It

similarly does not extend as far as to require a principal to protect its

independent contractors’ employees from dangers inherent in their job.

Lopez, 2020 WL 3668059, at *7 (citing Perkins v. Gregory Mfg. Co., 671 So.

2d 1036, 1040 (La. App. 3 Cir. 1996)). In sum, “while a premises owner may

be directly liable for hazards inherent in the premises, the owner cannot be

liable for hazards inherent in a contractor’s job.” Id.

Vulcan argues that any asbestos that Cortez alleges he was exposed to

during his time at Vulcan was created by his job as a pipefitter.63 Vulcan

points to Cortez’s testimony that his work involved “[c]hanging out gaskets

[and] replacing valves” and that this work “create[d] dust.”64 Vulcan thus

argues that Cortez’s alleged exposure to asbestos came not from some hazard

inherent in its plant, but instead from a hazard inherent in Cortez’s job of

replacing gaskets and old insulation.65 Defendant cites two district court

cases that both held that a premises owner does not have a duty to an

independent contractor’s employee under a theory of direct liability when

there is evidence that the hazard “resulted from the tools, equipment, and

material supplied by the independent contractor and accordingly was a risk

inherent in [plaintiff’s] job as a welder and pipefitter.” See Lopez, 2020 WL

3668059, at *7 (finding that “the evidence indicates that any asbestos

exposure suffered by [plaintiff] while working on Exxon platforms resulted

from tools, equipment, and materials” supplied by the independent

contractor, who not only supplied the materials necessary for the project, but

“also supervised the manner in which the work was performed,” and thus any

asbestos exposure was “inherently related to the job [plaintiff] was hired by

63 R. Doc. 433-1 at 14.

64 R. Doc. 433-4 at 7-8 (Deposition of Callen Cortez at 194:23-195:8).

65 R. Doc. 433-1 at 14-15.

[the independent contractor] to perform”); Roach v. Air Liquids Am., No.

12-3165, 2016 WL 1453074, at *4 (W.D. La. Apr. 11, 2016) (“In the instant

case, the hazard was not inherent in defendant’s premises; the airborne silica

which was temporary in nature and transported to the facility by plaintiff’s

employer and/or supplier.”).

The Court finds that defendant is not entitled to summary judgment

on the duty issue. First, as this Court observed in Venezia v. ConocoPhillips

Co., “[b]oth the Fifth Circuit and this Court have found summary judgment

to platform owners to be unwarranted when a question of fact exists as to

whether the owner created the hazard that resulted in the plaintiff’s injury.”

See No. 12-2168, 2014 WL 107962, at *5 (E.D. La. Jan. 9, 2014) (collecting

cases); see also Thomas, 933 So. 2d at 856-57 (affirming the jury’s verdict

that defendant “breached its duty as a premises owner” by exposing

employees of an independent contractor to asbestos, “to the extent [that

defendant] specified the use of asbestos containing products”); Tajonera v.

Black Elk Energy Offshore Operations, L.L.C., No. 13-366, 2015 WL

6758258, at *19 (E.D. La. Nov. 5, 2015) (“Although duty is a question of law,

the Court finds that opposing parties have proffered sufficient evidence of a

genuine issue of material fact that precludes summary judgment on whether

[defendant] created a hazardous situation . . . and therefore was

independently negligent.”). Here, there is evidence in the record that Cortez

was exposed to asbestos because of Vulcan’s actions in specifying the use of

asbestos-containing gaskets and insulation, and providing asbestos gaskets

to pipefitters like Cortez.66

Further, there is evidence that Vulcan had knowledge of the risks of

asbestos exposure during the relevant time period. Defendant’s corporate

representative testified that the company was aware of the hazards of

asbestos in 1957, and was involved in the 1970s and 1980s in approving

protective measures for workers.67 Based on this testimony, it is reasonable

to infer that Vulcan knew, or should have known, about the dangers of

asbestos exposure, and thus had a duty to protect pipefitters that were

exposed to asbestos at its facility. See Watts, 135 So. 3d at 59-60 (noting that

either actual or constructive knowledge of a risk “gives rise to the duty to take

reasonable steps to protect against injurious consequences resulting from

the risk”).

Finally, there is an issue of material fact as to whether Vulcan retained

control over the work performed by pipefitters, and thus owed them a duty

of care. See Smith v. Union Carbide Corp., No. 13-6323, 2014 WL 4930457,

66 R. Doc. 653-13 at 14 (Deposition testimony of Rodney Gremillion at

68:6-16).

67 Id. at 10 (Deposition of Rodney Gremillion at 96:3-13).

at *2 (E.D. La. Oct. 1, 2014) (noting that although a principal owes no duty

to its independent contractor’s employees “absent a showing that the

principal’s conduct created the risk or the principal retained control over the

contractor’s employees,” plaintiff had “presented a genuine issue of material

fact as to whether Defendants breached the independent duty they owed to

[plaintiff]”). As previously discussed, Vulcan’s corporate representative

testified that Vulcan provided pipefitters with written guidelines on how to

handle asbestos-containing materials, and then supervised the manner in

which the work was performed.68

In light of the record evidence raising issues of fact as to whether Cortez

was exposed to asbestos because of the risks created by Vulcan, while doing

work that was controlled by Vulcan, and despite Vulcan’s knowledge about

the risks associated with asbestos exposure, the Court denies defendant’s

motion for summary judgment on the no-duty argument. In sum,

defendant’s motion for summary judgment on plaintiffs’ negligence claims

under a theory of direct or vicarious liability are denied.

68 R. Doc. 653-13 at 18-19 (Deposition of Rodney Gremillion at 95:22-

96:2).

C. Strict-Liability Claims

Defendant also moves for summary judgment on plaintiffs’ strict-

liability claims, arguing that plaintiffs cannot to show that Cortez’s injuries

were caused by a defect on Vulcan’s premises.69 In cases involving long-

latency occupational diseases, such as mesothelioma, the Court must apply

the law that was in effect at the time of the exposure. Cole v. Celotex Corp.,

599 So. 2d 1058, 1066 (La. 1992). Accordingly, the Court looks to the

language of Louisiana Civil Code article 2317, which, at the time of the

exposure at issue, imposed strict liability for damage caused by “things which

we have in our custody.” La. Civ. Code art. 2317. To establish strict liability

under this version of article 2317, a plaintiff must prove that: “(1) the thing

which caused the damage was in the care, custody and control of the

defendant; (2) the thing had a vice or defect which created an unreasonable

risk of harm; and (3) the injuries were caused by this defect.” Migliori v.

Willows Apartments, 727 So.2d 1258, 1260 (La. App. 4 Cir. 1999).

Here, the parties dispute the first and second elements:70 whether

Vulcan had care, custody, and control of the asbestos, and whether asbestos

69 R. Doc. 433-1 at 15-16.

70 The third element—causation—was previously addressed in Part III

(A).

constitutes a defect under article 2317.71 “Custody” in this context means

“supervision and control.” Ainsworth, 829 F.2d at 551. Ownership creates

a presumption of custody that may be rebutted “by showing that the owner

(1) did not receive a substantial benefit from ownership nor (2) had any

control or authority over the [object].” Royer v. Citgo Pet. Corp., 53 F.3d

116, 119 (5th Cir. 1995). Defendant asserts that because it did not have

control over Cortez’s work activities that allegedly resulted in his exposure to

asbestos, it did not have care, custody, or control over the asbestos.72 In

support of its argument, defendant points to Lopez v. McDermott, in which

the court granted defendant’s motion for summary judgment on plaintiff’s

strict-liability claims, finding that the plaintiff had failed to point to evidence

that the premises-owner defendant had custody of the asbestos. 2020 WL

3668059, at *8. In Lopez, the court held that although “[a]lthough asbestos

may have been present in materials, equipment, and tools located on

[defendant’s] platforms, and that asbestos may have been disturbed,” the

record reflected that it was defendant’s independent contractor “who

provided the tools, equipment, and materials, oversaw the operation, and

gave instructions to welders and pipefitters.” Id. Defendant also points to

71 R. Doc. 433-1 at 15-17; R. Doc. 836 at 8.

72 R. Doc. 836 at 8.

Smith v. Union Carbide Corp., in which a court similarly granted summary

judgment on plaintiff’s strict-liability claims on the grounds that plaintiff had

not produced evidence that defendants had custody of the asbestos while it

was being installed in their facility. No. 13-6323, 2014 WL 4930457, at *6

(E.D. La. Oct. 1, 2014).

But Lopez and Smith are both distinguishable from this case. As

previously discussed, plaintiffs have presented evidence that Vulcan

“provided” the asbestos-containing materials, “oversaw the operation,” and

“gave instructions” to pipefitters on asbestos removal procedures. Cf. Lopez,

2020 WL 3668059, at *8. And unlike in Smith where the court found that

defendants did not have custody of the asbestos used in constructing their

plant “until after [the asbestos] was installed and put into service at their

facilities,” Cortez was allegedly exposed to asbestos that was already in use

on Vulcan’s premises.73 Cf. 2014 WL 4930457, at *6. Accordingly, unlike the

plaintiffs in Lopez and Smith, plaintiffs here have pointed to evidence

73 See R. Doc. 653-13 at 8-10 (Deposition of Rodney Gremillion at 53:1-

55:7) (testifying that several facilities within the Vulcan plant were

initially constructed during the 1970s with asbestos-containing

insulation, and that throughout the 1980s many of those facilities’

“lines and equipment” still utilized asbestos insulation).

showing that Vulcan had custody of the asbestos for purposes of strict

liability.

Vulcan also asserts that because Cortez’s alleged exposure to asbestos

dust at Vulcan was a temporary condition that was created by Cortez’s work

methods, it does not constitute a defect under article 2317.74 “A defect for

the purposes of article 2317 is a flaw or condition of relative permanence

inherent in the thing as one of its qualities.” Crane v. Exxon Corp., U.S.A.,

613 So. 2d 214, 219 (La. App. 1 Cir. 1992). And although a “temporary

condition may constitute a hazard, . . . it does not constitute a defect as

contemplated by article 2317.” Dauzat v. Thompson Const. Co., 839 So. 2d

319, 323 (La. App. 5 Cir. 2003) (holding that a hole in a concrete slab was a

“temporary condition” and thus not a defect under article 2317).

The parties dispute what the “thing that caused the damage” is for

purposes of strict liability. Plaintiffs assert that “the thing in question is the

asbestos,”75 whereas defendant contends that the unreasonably dangerous

thing is respirable asbestos-fibers released into Vulcan’s facility.76 Vulcan

argues that under Louisiana law, asbestos itself is not considered defective,

and thus the unreasonably dangerous condition here must be asbestos dust.

74 R. Doc. 433-1 at 16-17.

75 R. Doc. 653 at 23.

76 R. Doc. 836 at 7.

This, they contend is only a temporary condition and therefore cannot be a

“defect” for purposes of strict liability.77

Both parties assert that the Smith decision supports their argument.

In Smith, the court noted that it was “unclear whether the ‘thing’ in question”

was defendants’ premises generally or the asbestos used in defendants’

facility more specifically. Smith, 2014 WL 4930457, at *6. The court

proceeded to hold that if “the thing in question is the asbestos” that plaintiff’s

strict-liability claims failed because “defendants did not have custody of the

asbestos at the time of [plaintiff’s] exposure.” Id. On the other hand, the

court noted that if “the thing in question is the premises itself,” plaintiff’s

exposure to asbestos dust during the construction of the premises “was

temporary in nature,” and thus did “not constitute a defect in satisfaction of

the second element of a strict liability claim under Article 2317.” Id. at *7.

Here, unlike in Smith, the Court has found a question of material fact

as to Vulcan’s custody over the asbestos-containing materials, and therefore

must determine whether asbestos is a defect for purposes of strict liability.

Because the Smith court never had to answer this question, defendant’s

reliance on it for its temporary condition argument is misplaced. Notably, in

assuming that the thing in question was the premises itself, the Smith court

77 Id.

explained that the “defect in asbestos is not temporary; it is the dusty

condition during construction of Defendants’ premises that was temporary,”

and therefore sought to distinguish the case from a Louisiana court of

appeals case where “the ‘thing’ in question was the asbestos itself . . . not the

premises on which the asbestos exposure occurred.” Id. (citing Watts, 135

So. 3d at 53).

Defendant asserts that asbestos itself is not unreasonably dangerous

under Louisiana law. In support of its argument, Vulcan relies on Palermo

v. Port of New Orleans, 933 So. 2d 168, 180 (La. App. 4 Cir. 2006), in which

the court held that a boiler insulated with asbestos did not constitute a vice

or defect absent evidence that asbestos was disturbed. Id. at 179 (noting that

“it was undisputed that the boilers were inactive during the time period in

question” and that there was “no evidence that [plaintiff] ever worked on or

near the boilers, as their jobs did not include repairing pipes”). But here,

unlike in Palermo, there is evidence that the asbestos present on defendant’s

premises was disturbed. In fact, Cortez explicitly stated in his testimony that

when he was changing out gaskets and replacing valves he had to “disturb”

the asbestos-containing insulation.78 Further, there is evidence that it was

Vulcan’s direction to pipefitters to replace the gaskets which created the

78 R. Doc. 433-4 at 7 (Deposition of Callen Cortez at 194:1-8).

disturbance. The Court thus rejects defendant’s assertion that asbestos itself

cannot be considered a defect, and notes that Louisiana courts have held that

asbestos is unreasonably dangerous in cases with similar facts to the present

case. For example, in Watts, a Louisiana appeals court concluded that there

was “a reasonable factual basis” to support the trial court’s finding that Dow

was liable under article 2317 based on the evidence that the decedent worked

at Dow’s plant, “inhaled significant quantities of asbestos . . . on Dow’s

premises,” and that “Dow owned the asbestos, which was unreasonably

dangerous.” See Watts, 135 So. 3d at 62 (emphasis added).

Thus, plaintiffs have raised an issue of fact as to whether the asbestos-

containing gaskets and insulation on Vulcan’s premises were a “thing [that]

had a vice or defect that created an unreasonable risk of harm.” A

characteristic of asbestos that makes it unreasonably harmful is that when it

is disturbed, its fibers can be inhaled by workers causing injury. See id. at 62

(noting that there “is really no dispute . . . that asbestos is a substance that

creates an unreasonable risk of harm when inhaled”). Here, plaintiffs have

produced evidence that Vulcan required workers to use asbestos-containing

products, and to use them in ways that would disturb the asbestos, thereby

activating its dangerous characteristics.79 Defendant seeks to avoid this

conclusion by noting that it required pipefitters to use a solvent when

removing gaskets to reduce dust, and that it therefore “cannot be liable for

th[e] unsafe work practices performed by an outside contractor.”80 But given

the evidence in the record that Vulcan required its contractors to follow its

asbestos removal procedure, and that Vulcan representatives oversaw that

work, there is at least a dispute of material fact as to Vulcan’s involvement in

the unsafe practices that Cortez alleges he was exposed to in his deposition.

Accordingly, because plaintiffs have raised issue of material fact as to

each element of their strict-liability claims, defendant’s motion for summary

judgment on these claims is denied.

79 R. Doc. 653-13 at 14, 17 (Deposition of Rodney Gremillion at 68:5-25;

71:1-4).

80 R. Doc. 836 at 7.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES defendant’s motion for

summary judgment.®!

New Orleans, Louisiana, this__3rd__ day of August, 2022.

bern Varner

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

81 R. Doc. 433.

42