# Adams v. Eagle, Inc.

> District Court, E.D. Louisiana · September 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10188311

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10188311

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ORA JEAN ADAMS, CIVIL ACTION
Plaintiff
VERSUS NO. 21-694
EAGLE, INC. ET AL. SECTION “E” (4)
Defendants

ORDER AND REASONS
Before the Court is a motion for partial summary judgment filed by Hopeman
Brothers, Inc. (“Defendant” or “Hopeman”) against Ora Jean Adams (“Plaintiff”) and
Huntington Ingalls, Inc. (“Avondale”).1 Plaintiff and Avondale oppose the motion.2
Hopeman filed a reply.3
BACKGROUND
The facts and procedural history underlying this case are set forth extensively in
the Court’s September 2, 2022 Order and Reasons.4 To briefly recap, this personal injury
suit is based on Plaintiff’s alleged exposure to asbestos.5 Plaintiff’s husband (“Mr.
Adams”) worked at Avondale from approximately 1972 to 1979 as a pipefitter and welder
on various vessel construction projects.6 Relevant to the instant motion, Plaintiff
contends Hopeman was an Avondale subcontractor that performed marine carpentry or
“joiner” work during the period in which Mr. Adams worked at Avondale.7 Under its
contracts with Avondale, Hopeman provided both marine carpentry services and the

1 R. Doc. 111.
2 R. Doc. 171 (Plaintiff’s opposition); see also R. Doc. 173 (Avondale’s opposition).
3 R. Doc. 158.
4 R. Doc. 204.
5 R. Doc. 1-2 at p. 2, ¶ 3.
6 R. Doc. 1 at p. 3.
7 R. Doc. 171 at p. 2.
materials necessary to perform the work.8 Wayne Manufacturing Corporation (“Wayne”),
a now-dissolved Virginia Corporation, was a wholly-owned subsidiary of Hopeman
during the relevant period.9 Hopeman regularly purchased and supplied Wayne with
Micarta laminate manufactured by Westinghouse and Marinite board manufactured by
Johns-Manville, both products containing asbestos.10 Wayne glued the Micarta laminate

to the Marinite board and sent the composite wallboards to Hopeman for installation on
vessels.11 During the installation process, Plaintiff alleges Hopeman workers cut the
wallboards, generating dust that stayed on Plaintiff’s husband’s work clothes until he
returned home.12 Plaintiff was exposed to asbestos fibers when she washed Mr. Adams’
clothes.13 Plaintiff alleges, inter alia, this exposure was a cause of her ultimate diagnosis
of asbestos-related lung cancer on May 19, 2019.14
On June 17, 2020, Plaintiff filed a petition for damages in Orleans Parish Civil
District Court against several Defendants, including Avondale.15 On August 11, 2020,
Avondale filed its answer with incorporated affirmative defenses, third-party claims, and
crossclaims.16 Relevant here, Avondale asserted a third-party claim against Hopeman.17
Thereafter, Avondale removed Plaintiff’s suit to federal court on April 5, 2021.18 Once in

federal court, Plaintiff filed an amended complaint, naming Hopeman as a direct
defendant.

8 Id.
9 R. Doc. 171-5 at p. 9.
10 R. Doc. 171 at p. 2.
11 Id.
12 R. Doc. 36.
13 Id.
14 R. Doc. 1-2 at p. 2, ¶ 3; see also R. Doc. 36.
15 R. Doc. 1-2 at pp. 1-2.
16 R. Doc. 4-1 (beginning on p. 33).
17 R. Doc. 4-1 at p. 41, ¶ 8.
18 R. Doc. 1.
Plaintiff’s claims against Hopeman are based on negligence and strict liability.19
Plaintiff alleges Hopeman is strictly liable as manufacturer and/or professional vendor of
asbestos containing products.20
On July 19, 2022, Hopeman filed the instant motion for partial summary
judgment.21 Hopeman seeks a ruling from this Court that it cannot be held strictly liable

under Louisiana law because it is neither a “manufacturer” of asbestos containing
products nor a “professional vendor.”22 Plaintiff opposes the motion on both grounds.23
Avondale opposes the motion only on the professional vendor issue, but “does not oppose
Hopeman Brothers’ Motion for Partial Summary Judgment on the issue of whether it was
a manufacturer of asbestos-containing products.”24
MOTION FOR SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if 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.”25 “An issue is material if its resolution could affect the outcome of the action.”26
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing

the evidence.”27 All reasonable inferences are drawn in favor of the non-moving party.28
While all reasonable inferences must be drawn in favor of the non-moving party, the non-

19 R. Doc. 36.
20 Id.
21 R. Doc. 111.
22 Id.
23 R. Doc. 171.
24 R. Doc. 173 at p. 1 n.1.
25 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
26 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
27 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
28 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
moving party cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions or “only a scintilla of evidence.”29 There is no genuine issue of
material fact if, even viewing the evidence in the light most favorable to the non-moving
party, no reasonable trier of fact could find for the non-moving party, thus entitling the
moving party to judgment as a matter of law.30

“Although the substance or content of the evidence submitted to support or dispute
a fact on summary judgment must be admissible . . . the material fact may be presented
in a form that would not, in itself, be admissible at trial.”31
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material
fact.”32 To satisfy Rule 56’s burden of production, the moving party must do one of two
things: “the moving party may submit affirmative evidence that negates an essential
element of the nonmoving party’s claim” or “the moving party may demonstrate to the
Court that the nonmoving party’s evidence is insufficient to establish an essential element
of the nonmoving party’s claim.”33 If the moving party fails to carry this burden, the

motion must be denied. If the moving party successfully carries this burden, the burden
of production then shifts to the non-moving party to direct the Court’s attention to
something in the pleadings or other evidence in the record setting forth specific facts
sufficient to establish that a genuine issue of material fact does indeed exist.34

29 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
30 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell
Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
31 Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).
32 Celotex, 477 U.S. at 323.
33 Id. at 331.
34 Id. at 322–24.
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim.35 If the movant fails to

affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied.36 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”37 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”38
FACTS
I. Undisputed Facts

The following facts are undisputed. Plaintiff Ora Jean Adams filed suit against
Hopeman, among others, alleging secondary household asbestos exposure as a result of

35 Id. at 331–32 (Brennan, J., dissenting).
36 See id. at 332.
37 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
38 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
her husband’s employment at Avondale from 1972 through 1979.39 Hopeman was a
subcontractor for Avondale during the relevant time period performing joinery or marine
carpenter services on vessels at Avondale’s Main Yard.40 In 1961, and from 1965 to the
mid-1970s, Hopeman installed certain materials—some of which contained asbestos—in
the living quarters and galley spaces of some of the vessels constructed at Avondale.41

When installed in the living quarters of these vessels, the wallboard panels consisted of a
Johns-Manville-manufactured marinite core and Micarta, a laminate sheet manufactured
by Westinghouse.42 Westinghouse conceived of, and held the patent for, the method of
affixing its Micarta laminate to a marinite core for use as a final wallboard panel.43 Use of
wallboard panels on certain vessels at Avondale was mandated by ship specifications
outlined by the vessel owner and approved by the U.S. Coast Guard.44
II. Disputed Facts
Plaintiff and Avondale argue Hopeman’s motion for partial summary judgment
should be denied because there are disputed issues of material fact. First, Hopeman states
it is an undisputed fact that its work as a joinery or marine subcontractor was only on a
limited number of newly constructed vessels at Avondale’s Main Yard.45 In footnote 2 in

support of that contention, Hopeman posits “[d]uring the time Hopeman was present at

39 R. Doc. 111-25 at ¶ 1; see also R. Doc. 171-12 at ¶ 1; see also R. Doc. 173-1 at ¶ 1.
40 R. Doc. 111-25 at ¶ 2; see also R. Doc. 171-12 at ¶ 2; see also R. Doc. 173-1 at ¶ 2.
41 R. Doc. 111-25 at ¶ 3; see also R. Doc. 171-12 at ¶ 3; see also R. Doc. 173-1 at ¶ 3.
42 R. Doc. 111-25 at ¶ 4; see also R. Doc. 171-12 at ¶ 4; see also R. Doc. 173-1 at ¶ 4. Plaintiff denies this to
the extent it suggests Hopeman was not a manufacturer of the asbestos-containing wallboards at issue. R.
Doc. 171-12 at ¶ 4. From a purely factual standpoint, however, Plaintiff does not deny this statement.
43 R. Doc. 111-25 at ¶ 5; see also R. Doc. 171-12 at ¶ 5; see also R. Doc. 173-1 at ¶ 5. Plaintiff denies this to the
extent it suggests Hopeman was not a manufacturer of the asbestos-containing wallboards at issue. R. Doc.
171-12 at ¶ 5. From a purely factual standpoint, however, Plaintiff does not deny this statement.
44 R. Doc. 111-25 at ¶ 6; see also R. Doc. 171-12 at ¶ 6; see also R. Doc. 173-1 at ¶ 6. Plaintiff denies this with
no citation to the record. Thus, the Court treats this statement of fact as admitted pursuant to Rule 56 of
the Federal Rules of Civil Procedure.
45 R. Doc. 111-25 at ¶ 2.
Avondale and required to utilize asbestos-containing wallboard, Hopeman worked on
only approximately 72 of the 1,296 total vessels constructed at the shipyard, totaling 5.6%
of the vessel construction.”46 Avondale denies that Hopeman’s work was limited to newly
constructed vessels.47 Plaintiff denies that Hopeman only worked on a limited number of
vessels at Avondale’s Main Yard.48 Avondale further denies the relevance of the factual

information contained in footnote 2 because “it constitutes factual information not
referenced in the corresponding Motion or Memorandum and which is immaterial to the
issues presented in Hopeman’s Motion.”49 The Court finds these are facts in dispute but
that the facts disputed are not material to a decision on the motion.
Second, Hopeman contends it is an undisputed fact that its work at Avondale was
done pursuant to plans and specifications.50 Plaintiff denies the work was always
completed according to plans and specifications, though she admits this occasionally was
true.51 Although the Court also finds these are facts in dispute, these issues are not
material to a decision on the pending motion.
Third, Hopeman argues it is an undisputed fact that it did not hold the wallboard
out to the public as its own.52 Even more specifically, Hopeman contends it is an

undisputed fact that it never promoted the wallboards for sale through advertising.53
Conversely, both Plaintiff and Avondale state it is an undisputed fact that Hopeman did
hold the wallboard out to the public as its own, relying on deposition testimony from
former Hopeman employees, former Avondale employees, and billing invoices between

46 R. Doc. 111-25 at n.2.
47 R. Doc. 173-1 at ¶ 2 (citing R. Doc. 173-5)
48 R. Doc. 171-12 at ¶ 2 (citing R. Doc. 171-8, R. Doc. 171-9).
49 R. Doc. 173-1 at n.2 (citing R. Doc. 111-1 at p. 1).
50 R. Doc. 111-25 at ¶ 3.
51 R. Doc. 171-12 at ¶ 3 (citing R. Doc. 171-11).
52 R. Doc. 111-25 at ¶ 7.
53 Id. at ¶ 8.
Avondale and Hopeman.54 This evidence, Plaintiff and Avondale argue, could enable a
reasonable jury to infer Hopeman held the wallboard out to the public as its own, creating
a genuine dispute of material fact. These facts are in dispute and, as discussed below, are
material to this decision.
LAW AND ANALYSIS

I. Hopeman is not a manufacturer.

Defendant seeks summary judgment that it was not a manufacturer of asbestos
during the relevant period of exposure because it was an end-user of the wallboards that
were glued together by Wayne.55 Initially, in opposition to the instant motion, Plaintiff
argues Hopeman is a manufacturer under an alter-ego theory of liability.56 Specifically,
Plaintiff seeks to attribute Wayne’s assembly of the asbestos wallboard to Hopeman.57 In
its reply, Defendant objects to “this impermissible attempt to enlarge the
pleading/complaint” and asks the Court to “disregard[] [it] as a red herring.”58 Thus, as a
preliminary matter, the Court must determine whether the alter-ego theory is sufficiently
pleaded to be properly before the Court.
The United States Court of Appeals for the Fifth Circuit in Cutrera v. Board of
Supervisors of Louisiana State University held “[a] claim which is not raised in the
complaint but, rather, is only in response to a motion for summary judgment is not
properly before the court.”59 Cutrera involved a wrongful termination action instituted by

54 R. Doc. 171-12 at ¶¶ 7-8; see also R. Doc. 173-1 at ¶¶ 7-8; see also R. Doc. 173-15 at p. 5; see also R. Doc.
117-5 at p. 9; see also R. Doc. 171-10 at p. 38; see also R. Doc. 173-6; see also R. Doc. 173-16.
55 R. Doc. 111-2 at p. 6.
56 R. Doc. 171 at p. 4.
57 Id.
58 R. Doc. 158 at p. 2.
59 Cutrera v. Bd of Sup’rs of Louisiana State U., 429 F.3d 108, 113 (5th Cir. 2005) (citing Fisher v.
Metropolitan Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)).
a university employee who suffered from macular degeneration.60 On summary
judgment, the district court summarily entered final judgment as to the plaintiff’s First
Amendment retaliation claim under 18 U.S.C. § 1983 because Plaintiff’s claim was made
in her opposition to the motion for summary judgment—not in the plaintiff’s complaint.61
On appeal, the Fifth Circuit affirmed the district court’s grant of summary judgment

because a plaintiff may not rely on new claims raised for the first time in an opposition to
defeat a motion for summary judgment.62 This is “well-settled law in the Fifth Circuit.”63
Applying that well-settled rule to the case at bar, a careful review of Plaintiff’s
pleadings reveals she did not allege Wayne was the alter-ego of Hopeman in her state
court petition or in her first amended complaint filed in this Court.64 Only in Plaintiff’s
opposition to the motion for partial summary judgment does she allege this basis of
liability.65 During the pendency of the instant litigation (well over a year before the motion
was filed), Plaintiff did not seek leave to amend her complaint to assert this claim. To
allow Plaintiff to amend her complaint now—less than a month before the trial—or
otherwise expand her pleadings, would result in undue delay of this action and significant
prejudice to Hopeman.66 As such, Plaintiff will not be allowed to pursue a claim that

Hopeman is liable based on an alter-ego theory.67 Accordingly, the Court finds that

60 Id. at 113.
61 Id.
62 Id.
63 Adams v. Columbia/HCA of New Orleans, 2022 WL 1909409 *7 n.1 (E.D. La. 6/3/2022).
64 R. Doc. 1-2; see also R. Doc. 36.
65 R. Doc. 171 at p. 4.
66 Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005) (one factor to consider under Rule
15(a) is “undue delay . . . by virtue of allowance of the amendment.” Another is prejudice to the other side.).
67 Cutrera, 429 F.3d at 113.
Wayne’s assembly of the wallboards did not ipso facto render Hopeman a manufacturer
of these asbestos-containing products.68
Next, Plaintiff argues Hopeman is a manufacturer as defined in the Louisiana
Product Liability Act (“LPLA”), which was not signed into law until June 21, 1988.69 In
pertinent part, the LPLA defines “manufacturer” in the following way:

(1) "Manufacturer" means a person or entity who is in the business of
manufacturing a product for placement into trade or commerce. "Manufacturing
a product" means producing, making, fabricating, constructing, designing,
remanufacturing, reconditioning or refurbishing a product. "Manufacturer" also
means:

(a) A person or entity who labels a product as his own or who otherwise
holds himself out to be the manufacturer of the product.

(b) A seller of a product who exercises control over or influences a
characteristic of the design, construction or quality of the product that
causes damage.

(c) A manufacturer of a product who incorporates into the product a
component or part manufactured by another manufacturer.

(d) A seller of a product of an alien manufacturer if the seller is in the
business of importing or distributing the product for resale and the seller is
the alter ego of the alien manufacturer. The court shall take into
consideration the following in determining whether the seller is the alien
manufacturer's alter ego: whether the seller is affiliated with the alien
manufacturer by way of common ownership or control; whether the seller
assumes or administers product warranty obligations of the alien
manufacturer; whether the seller prepares or modifies the product for
distribution; or any other relevant evidence. A "product of an alien
manufacturer" is a product that is manufactured outside the United States
by a manufacturer who is a citizen of another country or who is organized
under the laws of another country.

(2) "Seller" means a person or entity who is not a manufacturer and who is in
the business of conveying title to or possession of a product to another person or
entity in exchange for anything of value.

68 In Cortez, et al. v. Lamorak Insurance Co., et al., Judge Vance rejected “liability for Hopeman under
alter ago or single business theories in its August 10, 2022 Order and Reasons” on the merits. 20-cv-2389,
R. Doc. 1179 at p. 8 (8/29/22).
69 R. Doc. 171 at p. 7; see also John Kennedy, A Primer on the Louisiana Products Liability Act, 49 LA. L.
REV. 565, 570 (1989).
(3) "Product" means a corporeal movable that is manufactured for placement
into trade or commerce, including a product that forms a component part of or that
is subsequently incorporated into another product or an immovable. "Product"
does not mean human blood, blood components, human organs, human tissue or
approved animal tissue to the extent such are governed by R.S. 9:2797.70

Finally, Plaintiff argues “there is a triable issue of fact regarding whether Hopeman
was a manufacturer” because “Hopeman fabricated or refurbished bulkheads and living
quarters, and installed asbestos-containing products into these areas as component parts
of ships. Ships at Avondale are clearly corporeal movables manufactured for placement
into commerce. On this basis alone, . . . Hopeman is a manufacturer.”71 Said differently,
Plaintiff argues Hopeman fits, and the Court should apply, the LPLA’s definition of
manufacturer enshrined at La. R.S. 9:2800.53(1) even though the LPLA was enacted
years after Mr. Adams’ work ended at Avondale.72
The “Louisiana Supreme Court has held that the LPLA does not apply retroactively
because it”73 “alters substantive rights.”74 “A statute that changes settled law relating to
substantive rights only has prospective effect.”75 Plaintiff cites no authority for a finding
that the LPLA’s definition of a manufacturer should be applied retroactively, and
concedes the LPLA does not apply in this case because the exposure period from 1972 to

70 La. R.S. 9:2800.53 (2022).
71 R. Doc. 171 at p. 7.
72 The Court further notes the LPLA’s definition of manufacturer incorporated the pre-LPLA definition of
“professional vendor,” a jurisprudentially created concept that treats certain professional vendors like
manufacturers. Thus, under the LPLA, a professional vendor is a manufacturer. Under pre-LPLA law, a
professional vendor is treated like, but is not actually, a manufacturer. To the extent Plaintiff argues
Hopeman is a manufacturer under the LPLA because it is a “seller of a product who exercises control over
or influences a characteristic of the design, construction or quality of the product that causes damage,” i.e.,
a professional vendor, the Court addresses that argument separately from the inquiry of whether Hopeman
is a manufacturer because (1) the LPLA is not applicable in this case, and (2) under pre-LPLA law, a
distinction existed between manufacturers and professional vendors. See Part II.
73 Moore v. BASF Corp., 2011 WL 5869597 *2 (E.D. La. 11/21/2011) (internal quotations omitted).
74 Gilboy v. Amer. Tobacco Co., 582 So.2d 1263, 1264-65 (La. 1991).
75 Id.
1979 occurred before the LPLA’s enactment in 1988.76 Instead, Plaintiff argues the Court
should adopt the LPLA’s definition of manufacturer because the LPLA merely “codified
existing Louisiana Products Liability law.”77 In support of this contention, Plaintiff offers
no citation to cases in support.78
Be that as it may, the Court need not decide the thorny issue of whether the LPLA’s

definition of manufacturer merely restates preexisting law because, even if applied, the
provision in question would not render Hopeman a manufacturer. In Cortez v. Lamorak
Insurance Company, an asbestos exposure case involving Avondale, Hopeman, and
Wayne, a different section of this Court recently held Hopeman, as a subcontractor of
Avondale, was not a manufacturer of asbestos-containing products by virtue of the
“language in the LPLA that states that the term manufacturer includes a manufacturer of
a product who incorporates into the product a component or part manufactured by
another manufacturer.”79 The Cortez plaintiffs’ arguments were the exact same
arguments Plaintiff raises in this case: that Hopeman falls within this definition of
manufacturer on account of its having a hand in manufacturing the vessels at Avondale
by installing walls that separated living quarters, and because Hopeman incorporated

another’s product (the wallboard) into the vessels.80 In Cortez, the court reasoned this
argument was a “strained interpretation” of the LPLA because the provision at issue
“applies when a firm [responsible for manufacturing the final product] incorporate[s]
others’ goods into it.”81 Because “Hopeman was a subcontractor that merely furnished a

76 R. Doc. 171 at p. 7.
77 Id.
78 Id.
79 Cortez, et al. v. Lamorak Insurance Co., et al., 20-cv-2389, R. Doc. 1179 at p. 10 (8/29/22).
80 R. Doc. 171 at p. 7.
81 Cortez, et al., 20-cv-2389, R. Doc. 1179 at p. 10.
component to Avondale, which was responsible for the final product,” the court
determined plaintiffs’ arguments failed after a very thorough exploration of the same
cases Plaintiff relies on in this case.82 This Court finds the reasoning and result reached
in Cortez highly persuasive.83 In this case, it is undisputed that Hopeman was Avondale’s
subcontractor. Avondale—as opposed to Hopeman—was responsible for manufacturing

the final product: vessels. Thus, Plaintiff’s argument that Hopeman fits the definition of
manufacturer because it “incorporate[d] into the [vessels] a component or part
manufactured by another manufacturer” is a strained interpretation of the LPLA and fails
as a matter of law because Hopeman was not responsible for manufacturing the final
product.84 Thus, there are no material facts in dispute and Hopeman is entitled to
summary judgment as a matter of law that it is not a manufacturer. The Court will now
consider whether Hopeman is a professional vendor.
II. Genuine disputes of material fact exist as to whether Hopeman was a
professional vendor.

Defendant also moves the Court to enter summary judgment that it is not a
professional vendor under pre-LPLA law because Plaintiff is unable to establish the
existence of the requisite elements.85 This is so, Hopeman argues, because it is more akin
to an end-user or installer of asbestos-containing products as opposed to a professional

82 Id. at pp. 10-12. Plaintiff relies on Radalec, Inc. v. Automatic Firing Corporation, Spillers v. Montgomery
Ward & Co., Winterrowd v. Travelers Indemnity Co., LeBouef v. Goodyear Tire & Rubber Co., and
Rasmussen v. Cashio Concrete Corp., all of which are distinguished by Judge Vance in Cortez. The Court
agrees those cases are distinguishable for the reasons outlined in Cortez.
83 Buttressing this Court’s reliance on Cortez is the reality that “[n]umerous Louisiana courts have granted
summary judgment or directed verdicts in Hopeman’s favor on the issue of manufacturer liability.” Cortez,
et al., 20-cv-2389, R. Doc. 1179 at pp. 10-11 (citing Buqoui v. Huntington Ingalls, Inc., No. 11-7786 (La. Civ.
D. Ct. Apr. 2, 2021); Becnel v. Am. Motorists Ins. Co., No. 12-6486 (La. Civ. D. Ct. May 9, 2013); Cagle v.
Huntington Ingalls, Inc., No. 16-1875 (La. Civ. D. Ct. Jan. 25, 2017); Jones v. Am. Emp. Ins. Co., No. 14-
6711 (La. Civ. D. Ct. Feb. 2, 2016).
84 R. Doc. 171 at p. 7.
85 R. Doc. 111-2 at p. 9.
vendor.86 A “professional vendor,” under pre-LPLA law,87 is held to the same standard of
liability as a manufacturer.88 Under pre-LPLA law, to classify Hopeman as a professional
vendor, Plaintiff must prove the following at trial: (1) Hopeman was capable of controlling
the quality of the product at issue,89 (2) Hopeman held the products out to the public as
its own, and (3) “the size, volume, and merchandising practices of the defendant bring it

within the class of professional vendors who are presumed to know the defects in their
wares.”90
Two different sections of this Court have found genuine disputes of material fact
preclude summary judgment as to whether Hopeman was a professional vendor.91 In
Becnel v. Lamorak Insurance Company, an asbestos exposure case like the one before
the Court, Hopeman argued it was entitled to summary judgment that it was not a
professional vendor of asbestos-containing products because the plaintiffs “failed to
satisfy their evidentiary burden of proof.”92 The court disagreed, finding genuine disputes
of material fact existed as to the first two elements of professional vendor status
precluding Hopeman’s right to summary judgment.93 First, the court determined
plaintiffs had produced evidence sufficient to create a genuine dispute of material fact as

to the first element of the professional vendor claim—that Hopeman was capable of

86 R. Doc. 111-2 at p. 8.
87 Chappuis v. Sears Roebuck & Co., 358 So. 2d 926 (La. 1978).
88 Cortez, et al., 20-cv-2389, R. Doc. 1179 at p. 12 (8/29/22).
89 Roy v. Colgate Palmolive Co., 2021 WL 1574038 at *3 (E.D. La. 4/22/2021) (quoting Nelton v. Astro-
Lounger Mfg. Co., 542 So. 2d 128, 132 (La. App. 1989), and discussing the leading case of Chappuis, 358
So. 2d 926). Defendant argues this definition of a “professional vendor” should not apply to it because the
definition is limited to “retailers.” R. Doc. 111-2 at p. 7. The Court finds no principle limiting “professional
vendor” status to only “retailers” in the relevant Louisiana caselaw defining professional vendor, and
different sections of this Court have applied the instant definition of “professional vendor” to Hopeman.
See, e.g., Becnel v. Lamorak Insurance Co., et al., 2022 WL 3369163 (E.D. La. 8/16/22); Cortez, et al., 20-
cv-2389, R. Doc. 1179 (8/29/22). Thus, Hopeman’s argument is without merit.
90 Dempster v. Lamorak Ins. Co., 2020 WL 5659546 *3 (E.D. La. 9/21/20).
91 Becnel, 2022 WL 3369163 (E.D. La. 8/16/22); Cortez, et al., 20-cv-2389, R. Doc. 1179 (8/29/22).
92 Becnel, 2022 WL 3369163 at *2.
93 Id. at *3.
controlling the quality of the product at issue—through the testimony of John Baker and
Bertram Hopeman.94 Mr. Baker testified that Hopeman supplied Micarta and Marinite to
Wayne and directed Wayne to combine the two parts into a new and final product.95 Mr.
Hopeman himself testified that his company directed Wayne in various aspects of the
manufacturing process, including Hopeman’s instruction to Wayne to configure panels

for projects and Hopeman’s sending over specifications to Wayne for each panel,
including color, size, and thickness.96 The testimony, Judge Lemelle reasoned, considered
in the light most favorable to the non-movant, could support a conclusion that Hopeman
controlled the quality of the asbestos-containing wallboards.97 Next, as to the second
professional vendor element, the Becnel court found “there [was] evidence in the record
that Hopeman held out the products it sold as its own.”98 Specifically, there existed
sample invoices from Hopeman to Avondale requesting payment for the
Micarta/Marinite composite panels at issue and the former receiver employed in
Avondale’s warehouse—Jose Cochran—testified that the wall panels at issue were
delivered in trucks marked with Hopeman Brother’s name/logo.99 As a result, the Court
in Becnel found Hopeman was not entitled to summary judgment that it did not meet the

definition of a professional vendor.100
In Cortez, another asbestos exposure case, Hopeman argued similarly that it was
entitled to summary judgment that it was not a professional vendor of the asbestos-
containing wallboards under pre-LPLA law.101 Judge Vance disagreed because “plaintiffs

94 Id.
95 Id.
96 Id.
97 Id.
98 Id.
99 Id.
100 Id. at *4.
101 Cortez, et al., 20-cv-2389, R. Doc. 1179 at p. 12.
[] created material fact issues on whether Hopeman had control over the quality of the
product, held it out as its own, and operated with the scale necessary to be deemed a
professional vendor.”102 First, in Cortez, it was undisputed that Hopeman selected and
purchased the components of the wallboards that Wayne regularly assembled for
Hopeman.103 This fact, coupled with the court’s finding that Hopeman was a sophisticated

purchaser of the Micarta it provided to Wayne, which was one of the two asbestos-
containing components of the wallboards at issue, lent itself to the conclusion that
Hopeman had significant control over the quality of the product for professional vendor
status purposes.104 As to the second element—Hopeman holding out the asbestos-
containing wallboards as its own product—the plaintiffs presented evidence that the
subcontracts between Hopeman and Avondale identified Hopeman as the supplier of the
wallboard.105 Additionally, like in Becnel, Hopeman’s invoices to Avondale listed only
Hopeman as the vendor of the wallboard.106 Finally, the plaintiffs and their co-workers
associated the wallboards with Hopeman.107 Thus, “Hopeman’s invoices, its contracts,
and the identification of Hopeman with the wallboards by the workers on-site together
support[ed] an inference that Hopeman held the wallboards out as its own.”108 As to the

third element of professional vendor liability, evidence that “Hopeman operated at
multiple sites and furnished wallboards for over a decade on 72 ships” created “an issue
of material fact as to whether Hopeman operated on the requisite scale to be a
professional vendor.”109 As a result, Judge Vance denied Hopeman’s motion for partial

102 Id. at p. 17.
103 Id. at pp. 14-15.
104 Id. at pp. 14-15.
105 Id. at p. 15.
106 Id.
107 Id. at pp. 15-16.
108 Id. at p. 16.
109 Id. at pp. 16-17.
summary judgment.
Applying Becnel and Cortez to the case at bar, it is clear there are genuine factual
disputes as to whether Hopeman was a professional vendor of the asbestos-containing
wallboards at issue. First, like in Becnel and Cortez, Plaintiff and Avondale have provided
evidence that Hopeman controlled the quality of the wallboards it installed at Avondale.

The deposition testimony of Hopeman executive Charlie Johnson establishes Hopeman
bought the two component parts of the wallboards (Micarta and Marinite) and shipped
them to Wayne for them to be glued together.110 Hopeman secretary John Baker testified
that Wayne glued the Micarta and Marinite together according to a sketch that Hopeman
provided.111 Bert Hopeman, Hopeman’s top executive officer, testified that his company
also instructed Wayne on the color, size, and thickness of the panels.112 This is evidence
of extensive control by Hopeman over the design of the wallboards that ultimately were
installed in Avondale ships. At the very least, then, the testimony from Charlie Johnson,
John Baker, and Bert Hopeman creates a genuine dispute of material fact as to whether
Hopeman sufficiently controlled the quality of the wallboards at issue.
Second, like in Becnel and Cortez, Avondale in its opposition has provided invoices

from Hopeman to Avondale that identify only Hopeman as the vendor of the
wallboards.113 This fact, coupled with testimony that workers on-site viewed the
wallboards as associated with Hopeman,114 would allow a reasonable jury to infer
Hopeman held the wallboards out as its own to the public. Third, there is evidence that

110 R. Doc. 117-5 at p. 9.
111 R. Doc. 171-10 at p. 38.
112 R. Doc. 173-6 at pp. 581-82.
113 See R. Doc. 173-16.
114 R. Doc. 173-15 at p. 5.
Hopeman operated at multiple sites,"5 furnished wallboards for over a decade,"° and
worked on at least 72 vessels at Avondale,’ all of which creates an issue of material fact
as to whether Hopeman operated on the requisite scale to be a professional vendor."'8
This is consistent with the reasoning and the outcome reached in Becnel and Cortez.
Accordingly, genuine disputes of material fact exist as to each essential element of
Plaintiffs claim for professional vendor liability, and Hopeman is not entitled to summary
judgment.
CONCLUSION
IT IS ORDERED that Defendant’s motion for partial summary judgment"? is
GRANTED IN PART AND DENIED IN PART. Defendant is entitled to summary
judgment that it is not a manufacturer, but the issue of whether Defendant is a
professional vendor will proceed to the jury.
New Orleans, Louisiana, this 8th day of September, 2022.
et oa he
UNITED STATES DISTRICT JUDGE

45 R, Doc. 173-12.
16 R, Doc. 173-4
17R, Doc. 111-25 at n.2 (Hopeman itself asserting it worked on 72 vessels at Avondale Shipyard).
18 Cortez, et al., 20-cv-2389, R. Doc. 1179 at pp. 16-17.
19 R. Doc. 111.

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10188311. Public record. Not legal advice.