Frances Robertson, Phillis Castille, Leslie Robertson and Stewart Robertson, Individually and On Behalf of Their Deceased Husband and Father Harris J. Robertson VS Doug Asby Building Materials, Inc., Elementis Chemicals, Inc., Georgia-Pacific Corporation, The Glidden Company, Hanson Aggregates West, Inc., Hanson Building Materials of America, Inc., Hanson Permanente Cement, Inc., Harcros Chemicals, Inc., Kaiser Gyps
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT Ma 1 a 3k 4I1I111M FYyl FRANCES ROBERTSON PHILLIS CASTILLE LESLIE ROBERTSON AND STEWART ROBERTSON INDIVIDUALLY AND ON BEHALF OF THEIR DECEASED HUSBAND AND FATHER RESPECTIVELY HARRIS J ROBERTSON VERSUS DOUG ASHY BUILDING MATERIALS INC ET AL OCT Judgment Rendered 4 2011 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 532 769 Honorable Robert J Burns Judge Ad Hoc Susannah B Chester Attorneys for Plaintiffs Appellants Frances Robertson Phillis Castille Leslie Robertson and Stewart Charles Valles Kevin Oliver Dallas TX and Robertson Julie A Ardoin Kenner LA and Robert E Arcenaux Metairie LA Gary A Bezet Barrye P Miyagi Baton Rouge LA Attorneys for Defendant Appellee George Pacific Corp We recognize that the plaintiffs petition names Doug Ashby as a defendant However the record reveals that the c t spelling is Ashy Attorneys for Defendant Appellee Dwight C Paulsen III New Orleans LA and Sherwin Williams Co Edward M Slaughter Dallas TX and Albert H Parnell Atlanta GA Attorneys for Defendant Appellee Philippe J Langlois James Ryan III New Orleans LA Levert St John Inc Jonathan P Hilburn Jacqueline Romero Attorneys for Defendant Appellee New Orleans LA Welco Manufacturing Co Ernest G Foundas Attorney for New Orleans LA Defendant Appellee Union Carbide Corp BEFORE PETTIGREW McCLENDON AND WELCH JJ OA WELCH J Plaintiffs Frances Robertson Phillis Castille Leslie Robertson and Stewart Roberston appeal a trial court judgment granting summary judgment in favor of defendant Georgia Pacific LLC Georgia Pacific dismissing their survival and wrongful death claims We reverse and remand for further proceedings BACKGROUND On June 30 2004 Harris Robertson Harris was diagnosed mesothelioma and died from the disease on November 27 2004 with On May 26 2005 plaintiffs Harris wife and children filed this lawsuit against a host of defendants seeking to recover damages allegedly resulting from Harris exposure to asbestos containing products while working as a sheetrock installer which plaintiffs claimed caused Harris fatal disease Three of the defendants in the litigation are Georgia Pacific Union Carbide Corporation Union Carbide and The Sherwin Williams Company Sherwin Williams Plaintiffs averred that Georgia Pacific manufactured and Sherwin Williams sold the asbestos containing products to which Harris had been exposed They premised liability against Union Carbide as the alleged supplier of raw asbestos used to manufacture the products Harris had been exposed to Specifically plaintiffs alleged that from 1960 1970 while doing sheetrock installation work for V Pierret Construction Company P Harris had been regularly exposed to friable asbestos and asbestos containing products present in joint compounds utilized during the sheetrock finishing process As a result of such exposure plaintiffs averred the asbestos dust and fibers became airborne landing on Harris clothing and were inhaled or otherwise 2 In two companion cases also rendered this date plaintiffs separately appealed the trial s court granting of summary judgment in favor of Union Carbide Robertson v Doug Ashy and the court s 3d So Building Materials 20101551 La App 1 Cir 10 st 11 4 granting of Sherwin Williams motion to strike the testimony of its expert and granting of summary judgment in favor of Sherwin Williams Robertson v Doug Ashy Building Materials 20101552 La App 1 Cir 10 st 11 4 3d So On December 3 2010 this court denied the defendants motion to consolidate the related appeals but ordered that the appeals be placed on the same docket and assigned to the same panel Robertson v Doug Ashy Building Materials 20101552 La App 1st Cir 123 10 action unpublished 3 ingested by him Plaintiffs claimed that Harris exposure to asbestos containing products caused his mesothelioma On March 24 2008 Georgia Pacific filed its first motion for summary judgment asserting that plaintiffs had no evidence that Harris had been exposed to any products manufactured by Georgia Pacific or by Bestwall its predecessor company and therefore plaintiffs could not meet their threshold burden of proof in a mesothelioma case of proving that Harris sustained significant exposure to any of its asbestos containing products The following month plaintiffs dismissed their lawsuit against Georgia Pacific without prejudice On November 25 2008 plaintiffs filed a supplemental petition adding Georgia Pacific as a defendant and reurging liability against Georgia Pacific as the manufacturer ofjoint compound asbestos containing products to which Harris had been exposed On October 8 2009 Georgia Pacific again moved for summary judgment on the exposure issue and the following month it filed a supplemental motion for summary judgment Georgia Pacific urged that plaintiffs bore the burden of proof to show that Harris sustained significant exposure to Georgia Pacific products s and that plaintiffs had no evidence of any exposure to asbestos much less any significant exposure to asbestos from any Georgia Pacific product Georgia Pacific asserted that plaintiffs could not produce evidence sufficient to warrant the inference that Harris was exposed to asbestos as a result of its activities or to warrant an inference that its activities were a substantial factor in causing the plaintiffs injuries and plaintiffs failure to provide evidence of any asbestos exposure to Georgia Pacific products compelled dismissal of plaintiffs claims In support of its motion Georgia Pacific introduced its answers to interrogatories in which it provided extensive details on the finishing products it manufactured from 1965 through the mid 1970s It also introduced excerpts of the deposition testimony of three of Harris coworkers on sheetrock finishing jobs C asserting that such testimony provided no evidence of significant asbestos exposure to any Georgia Pacific products Furthermore Georgia Pacific claimed even if that testimony showed that Harris did use a Georgia Pacific asbestos containing product on the job the testimony of one ofhis coworkers indicated that the product did not produce dust and therefore plaintiffs could not show Harris had actually been exposed to asbestos from the product The evidence submitted by Georgia Pacific in support of its motion can be summarized as follows Bobby Robertson who worked with Harris on various drywall jobs from the early 1960s through the 1970s testified that Gold Bond and USG drywall finishing products had been used on the jobs but he could not recall ever having used any Georgia Pacific finishing products Harold Robertson whose depositions were taken in 2008 and 2009 testified that he remembered having used Georgia Pacific joint compound in 20 pound blue and white bags although he could not remember any writing on the bags or any logos thereon He specifically recalled using Georgia Pacific joint compound that had to be mixed However he could not provide details regarding the specific jobs or locations where the products had been used or how much the products had been used but recollected generally that the products had been used at some time He also identified Gold Bond and Welcote as other brands of finishing materials that had been used on the jobs stating that they used just about every type of dry mix joint compound there was Harold acknowledged having worked with Harris on an as needed basis until the 1980s when he and Harris worked together routinely Raymond Robertson who worked with Hargis from 1969 through the 1980s for two different contractors in the Lafayette and Baton Rouge areas testified that he recalled using Gold Bond and Welcote joint compound He specifically recalled using a quick drying premixed Georgia Pacific product identified in a picture as Speed Set Vinyl Gypsum Quick Setting Joint Compound He stated that this product was used only on joints was premixed in the container and did not require sanding with sandpaper following the application but was wiped with a damp sponge which did not create any dust Raymond could not provide a specific year or project on which the Georgia Pacific product had been used and indicated that the product was not used regularly According to Raymond all of the other finishing products whether ready mix or powdered required sanding and their product of choice was Gold Bond ready mix Raymond had no recollection of having used any other Georgia Pacific product In response to Georgia Pacific s motion for summary judgment and supplemental motion for summary judgment plaintiffs asserted that there are genuine issues of material fact as to whether Harris had been exposed to Georgia s Pacific asbestos containing finishing products They claimed that the testimony of Harris coworkers demonstrated that Harris worked with Georgia Pacific s finishing products for at least a ten year period from approximately 1970 through the 1980s and that Harris breathed dust during each aspect of the sheetrock finishing process They also asserted that it was virtually unquestionable that a majority of Georgia Pacific finishing products contained asbestos through 1977 s Plaintiffs relied on Harold and Raymond testimony indicating that they s recalled having used GeorgiaPacific products on the job and the testimony of all of the coworkers providing more details on their work history and the nature of the sheetrock finishing process Harold testified that he worked with Harris on numerous jobs beginning in the 1960s through the mid 1970s but also acknowledged that he worked on his own for some time until he went to work for a mill in the early 1980s Harold stated that Harris worked in the Baton Rouge area in the late 1960s and then in the Lafayette area Harold testified they used Georgia Pacific sheetrock mud and joint compound at some point in time but he could not identify the specific jobs or locations at which the products were used 2 Harold stated that they used two or three other brands of sheetrock mud in addition to Georgia Pacific including Gold Bond and Welcote s When asked about the specific type of Georgia Pacific joint compound that had been used on their projects Harold stated that they had used 20 pound bags that were blue and white He also stated that when they worked in the Baton Rouge area Gold Bond ready mix joint compound was the product they used most often Raymond testified that he began working with Harris in Baton Rouge in 1968 for a painting contractor and continued to work with him during a three to fiveyear period During that time the work included sheetrock finishing and painting In the early 1970s Raymond began working with Harris in the Lafayette area for two different painting contractors and he worked with Harris until the early 1980s became ill Raymond returned to work part with his brother after Harris time When asked about the products they used on their jobs Raymond associated acoustic mud and sheetrock powder ready mix with Georgia Pacific He recalled having used Georgia Pacific sheetrock mud while working in Lafayette and he specifically remembered using a Georgia Pacific product identified as Speed Set Vinyl Gypsum Adhesive Quick Setting Joint Compound while working with Harris in Lafayette Regarding the sheetrock finishing process Harris coworkers acknowledged that the entire process from mixing the sheetrock mud powder in a bucket sanding the walls and ceilings and cleaning the area afterwards was a very dusty process during which they would inhale the dust and the dust would fall all over them In further opposition to the motion for summary judgment plaintiffs offered copies of photographs of two of Georgia Pacific sfinishing products and Georgia s Pacific answers to interrogatories Therein Georgia Pacific was asked to identify those products it manufactured that contained asbestos VA Georgia Pacific stated that Bestwall a company it acquired in 1965 had manufactured a limited line of asbestos containing drywall finishing products beginning in July of 1956 Georgia Pacific denied manufacturing or selling any such products until acquiring Bestwall in 1965 and by 1977 its gypsum division ceased manufacturing all such products In the interrogatories Georgia Pacific essentially admitted that it manufactured and sold asbestos containing finishing products from the mid1960s through 1977 Georgia Pacific identified specific asbestos containing products it manufactured including among others All Purpose Joint Compound Joint Compound Ready Mix and Speed Set Day According to Georgia One Pacific the product Ready Mix was first sold by Bestwall in 1963 and Georgia Pacific continued to manufacture it after 1965 In 1973 or 1974 Georgia Pacific introduced an asbestos free formula however the availability of asbestos and asbestos containing formulations may have varied from state to state from 1973 to 1977 the last year that asbestos containing Ready Mix was manufactured Georgia Pacific provided similar details for its All Purpose Joint Compound product and the other asbestos containing products it identified in its interrogatories Additionally plaintiffs offered the deposition testimony of Oliver C Burch who acknowledged that no warning labels regarding asbestos appeared on any Georgia Pacific asbestos containing products before 1973 along with numerous invoices referencing Georgia Pacific purchase of raw asbestos from s Union Carbide from 1970 through 1977 During the course of the litigation Sherwin Williams filed a motion to strike a portion of the testimony of plaintiffs expert pathologist Dr Eugene Mark whose expert opinion plaintiffs intended to rely on to establish that Harris exposure to asbestos containing joint compounds purchased at or sold by Sherwin Williams was a substantial factor in bringing about or causing his mesothelioma In its motion to strike Sherwin Williams moved for an order precluding Dr Mark from offering what it claimed to be unreliable testimony that any fiber or every exposure above background was a substantial contributing factor in causing Harris disease Georgia Pacific joined in Sherwin Williams motion to strike that portion of Dr Mark testimony s The hearing on the motion to strike a portion of Dr Mark testimony and s the motions for summary judgment filed by numerous defendants was set for January 19 2010 On that date two hearings were held At the first hearing the court heard Sherwin Williams motions for summary judgment and its motion to strike a portion of Dr Mark testimony At the outset plaintiffs moved for a s continuance stating that some of the defendants in the litigation had moved for summary judgment on the issue of causation and despite their best efforts plaintiffs had not been able to obtain a final notarized copy of Dr Mark s causation affidavit to file in response to the various motions for summary judgment Plaintiffs explained that Dr Mark who had been deposed on January 7 2010 was contacted the next day and asked to review the evidence to determine which exposures he considered to be substantial contributing factors in causing Harris disease in anticipation ofthe defendants filing motions to address causation issues but received no response to repeated requests for such information prior to the hearing Plaintiffs requested a continuance on each motion set for hearing that day that addressed the issue of causation and Dr Mark opinions The trial court s denied plaintiffs motion for a continuance and granted Sherwin Williams motion to strike a portion of Dr Mark opinion testimony to prohibit the doctor from s offering testimony that any fiber or every exposure to asbestos above background 3 In its memorandum in support of its motion to strike the opinion of Dr Mark Georgia Pacific noted that its motion for summary judgment established that plaintiffs cannot prove that Harris ever worked with any asbestos containing product manufactured by it Georgia Pacific urged that plaintiffs failure to offer actual evidence of Harris exposure to a Georgia Pacific product rendered Dr Mark opinion moot however they argued even if there was some s exposure to its products Dr Mark opinion that every exposure to asbestos contributed to s Harris disease should be stricken because it is junk science and patently insufficient to carry plaintiffs burden on causation L was a substantial contributing factor in causing Harris disease In so doing the court found that there was no foundation supporting this opinion as Dr Mark had no epidemiology study to rely on and did not know what the dose of exposure would have been as to any particular defendant Later that afternoon the court first heard and granted a motion for summary judgment filed by Welco Manufacturing of Missouri after specifically finding that defendant had offered evidence that none of its products came to Louisiana and plaintiffs offered no evidence in opposition to the motion Immediately thereafter plaintiffs moved for dismissal without prejudice of all claims against Georgia Pacific and Union Carbide pursuant to La C art 1671 That provision states P that a judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs if the application is made prior to any appearance of record by the defendant La C art 1671 It P further provides that if the application is made after an appearance by the defendant the court may refuse to grant the judgment of dismissal except with prejudice Id After moving for the Article 1671 dismissal plaintiffs attorney stated that if the court was inclined to deny the request for dismissal without prejudice the request would be withdrawn and plaintiffs would continue with the remaining motions In response to the motion Georgia Pacific informed the court that it did not consent to a dismissal without prejudice and instead asked the court to dismiss the case with prejudice urging that plaintiffs attorney had admitted at the earlier hearing that if he lost his expert Dr Mark he could not prove a case against Georgia Pacific Union Carbide attorney echoed those statements and also s added that plaintiffs had no evidence and that both defendants should be dismissed with prejudice Plaintiffs attorney started to address a point but declined to do so Thereafter the court granted Georgia Pacific and Union Carbide motions to s 10 dismiss the lawsuits with prejudice to which plaintiffs offered no objection The court then heard an employer defendant motion for summary judgment which s plaintiffs did not oppose and dismissed that defendant finding there was not evidence of substantial exposure to asbestos during Harris employment On January 29 2010 plaintiffs filed a motion for a new trial on the grant of Georgia Pacific and Union Carbide motions to dismiss the s lawsuits with prejudice and a motion for an expedited hearing on the request Therein plaintiffs argued that it was procedurally improper for the trial court to dismiss the lawsuits with prejudice after plaintiffs had moved to dismiss the lawsuits under Article 1671 submitting that only a plaintiff could obtain a dismissal of a lawsuit pursuant to that provision and that a dismissal with prejudice could only be rendered if the plaintiff in fact had consented to a dismissal with prejudice which they did not When the case was called for trial on February 2 2010 only one defendant Sherwin Williams remained in the litigation Plaintiffs moved to continue the trial on the basis of their pending procedural challenge to the dismissal of Georgia Pacific and Union Carbide with prejudice at the January 19 2010 hearing The trial court stated that it did not dismiss the lawsuits against Georgia Pacific and Union Carbide under Article 1671 but granted their motions for summary judgment and on that basis dismissed the lawsuits against both entities with prejudice The trial court set the plaintiffs motion for a new trial as to Georgia Pacific and Union Carbide for March 2 2010 to be heard with all pending motions filed by the plaintiffs and Sherwin Williams challenging the trial court denial of s SherwinWilliams motion for summary judgment the court refusal to grant a s continuance at the January 19 2010 hearing and the court denial of plaintiffs s motion to supplement the record with the affidavit of Dr Mark 4 The record reflects that the motions were filed by facsimile transmission on January 29 2010 and the originals were filed into the record on February 2 and 3 2010 11 On February 23 2010 the trial court signed a judgment granting Georgia s Pacific motion to dismiss plaintiffs claims with prejudice That judgment indicated that the dismissal had been made pursuant to Article 1671 The following day plaintiffs filed a supplemental and amended response to all of the defendants motions for summary judgment filing into the record the Dr s Mark causation affidavit that had been sworn to and notarized on January 21 2010 and the affidavit of Dr Philip Perret who attested that he reviewed the depositions of Harris coworkers and to the extent that Harris used any compounds containing asbestos one would expect that he would have inhaled the materials during the sheet rocking process and such would be considered to a reasonable degree of medical certainty as a causative agent in the development of Harris mesothelioma These affidavits plaintiffs insisted created a genuine issue of material fact as to whether Harris exposure to asbestos containing finishing products manufactured by Georgia Pacific and National Gypsum Company were substantial contributing factors in the development of his mesothelioma Georgia Pacific and Union Carbide moved to strike the affidavits on the basis that they had already been dismissed from the litigation and their motions for summary judgment were no longer pending before the court It also asked the court to strike plaintiffs memorandum and attachments thereto from the record On March 1 2010 GeorgiaPacific filed a motion to vacate the February 23 2010 judgment dismissing plaintiffs claims against it with prejudice because it indicated that the dismissal had been made pursuant to Article 1671 rather than in response to the s court granting of Georgia motion for summary s Pacific judgment All of the motions filed by the parties were heard by the trial court on March 1 2 2010 At the start of the hearing GeorgiaPacific moved to vacate the February 23 2010 judgment the plaintiffs agreed the judgment should be vacated and the 12 trial court vacated the February 23 2010 judgment Thereafter the court signed orders granting Georgia Pacific and Union Carbide motions for summary s judgment The court then heard plaintiffs motion for a new trial on the granting of the summary judgments in favor of Georgia Pacific and Union Carbide Plaintiffs asked the court to consider Dr Mark affidavit and allow the parties to argue s whether it created an issue of material fact in causing Harris mesothelioma as to those defendants The court denied the motion for new trial and refused to consider the latefiled affidavit of Dr Mark The court stated that it was convinced its ruling denying plaintiffs motion to continue to get a properly signed and notarized affidavit by Dr Mark at the January 19 hearing was proper It further expressed its belief that both defendants were entitled to summary judgment because there was no proper evidence of specific causation in the record relating to Georgia Pacific and Union Carbide on January 19 2010 the date on which the court stated it had heard the motions for summary judgment The court further stressed that even if it had considered Dr Mark affidavit it did not contain a s discussion of any dose response that would make these defendants liable and concluded therefore that plaintiffs evidence on the date of the summary judgment hearing January 19 2010 was insufficient to carry the day as to Georgia Pacific and Union Carbide The court also granted Georgia Pacific and Union Carbide s motions plaintiffs to strike supplemental memoranda and all supporting documents attached thereto In the order granting Georgia Pacific motion for summary judgment s signed by the trial court on March 2 2010 the court stated that the motion had been considered on January 19 2010 The court further stated that the motion was being granted on the basis of the memorandum in support thereof and the arguments of counsel and the comments of the court as set forth at both the January 19 2010 and February 2 2010 hearings 13 In this appeal plaintiffs contend that the trial court erred in 1 illegally granting Georgia Pacific a dismissal with prejudice under La C art 1671 2 P granting Georgia Pacific motion for summary judgment regardless of whether s Dr Mark affidavit was considered 3 failing to afford Dr Mark affidavit any s s weight and 4 limiting Dr Mark testimony to anything more than the exclusion s of an opinion that a single thread of asbestos can cause mesothelioma LAW AND DISCUSSION Dismissal with Prejudice In their first challenge plaintiffs contend that the trial court illegally granted Georgia Pacific a dismissal with prejudice under La C art 1671 P Plaintiffs point to the case of Northshore Regional Medical Center v Parish of St Tammany 960717 p 6 La App 1 Cir 12 685 So 614 617 96 20 2d wherein this court stated that a trial court lacks authority to act on a motion to dismiss without prejudice by dismissing the plaintiff lawsuit with prejudice s Rather the court may refuse to grant the dismissal except with prejudice and if the plaintiff objects to the dismissal with prejudice the motion to dismiss should be denied and the case should proceed Plaintiffs point out that prior to making the motion to dismiss the lawsuit pursuant to Article 1671 they specifically stated that if the court were only inclined to grant a dismissal with prejudice they would proceed on the motions for summary judgment However the record reflects that immediately after defendants moved to dismiss the lawsuit with prejudice plaintiffs did not specifically object to the dismissal and the trial court granted the motions Any procedural challenge to the dismissal of Georgia Pacific from the litigation based on Article 1671 is moot as pointed out by Georgia Pacific as it is entirely evident from the proceedings below that the trial court vacated the February 23 2010 judgment dismissing the lawsuit with prejudice under Article 14 1671 and entered judgment dismissing plaintiffs claims against Georgia Pacific on the basis that Georgia Pacific was entitled to summary judgment While acknowledging that the February 23 2010 judgment has been vacated and is not on appeal plaintiffs argue that the fact that the only thing that transpired at the January 19 2010 hearing was a dismissal under Article 1671 is relevant to this appeal as to the timing of when the summary judgment was in fact granted Plaintiffs submit that the motion for summary judgment was not heard or granted at the January 19 2010 hearing because the trial court dismissed plaintiffs claims against Georgia Pacific on the basis of Article 1671 Plaintiffs assert that when the trial court realized its mistake and tried to recast its earlier ruling dismissing the case under Article 1671 at either the February 2 or March 2 hearings Dr Mark s causation affidavit was in the record and should have been considered by the trial court prior to actually granting the motion for summary judgment We agree that the record reveals that Georgia Pacific smotion for summary judgment was not actually heard by the trial court before granting the dismissal on January 19 2010 However we find nothing in the transcripts ofthe later hearings to indicate that Georgia Pacific motion for summary judgment was heard s In fact there was no hearing on the issue raised by Georgia Pacific motion for s summary judgment that is whether plaintiffs could prove actual exposure to GeorgiaPacific asbestos containing products Plaintiffs do not contend that the failure to hold a hearing on the motion for summary judgment renders it fatally defective Because we have concluded infra that plaintiffs were not required to produce Dr Mark affidavit to defeat Georgia Pacific motion for summary s s judgment we pretermit discussion ofplaintiffs timing argument as it relates to the propriety of the trial court granting of summary judgment in favor of Georgia s Pacific 15 Summaty Jud went Law A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact Granda v State Farm Mutual Insurance Company 20042012 p 4 La App 1 Cir 2 935 06 10 2d So 698 701 Summary judgment is proper only if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show there is no genuine issue of material fact and that the mover is entitled to P B judgment as a matter of law La C art 966 Summary judgments are reviewed on appeal de novo using the same criteria as the trial court in determining whether summary judgment is appropriatewhether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law Jones v Estate of Santiago 2003 1424 p 5 La 4 870 So 1002 1006 04 14 2d On a motion for summary judgment the initial burden of proof is on the moving party If however the moving party will not bear the burden of proof at trial on the matter before the court the moving party burden of proof on the s motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or s defense Thereafter the non moving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial Failure to do so shows that there is no genuine issue of material fact La C P art 966 Once the motion for summary judgment has been properly 2 C supported by the moving party the failure of the non moving party to produce evidence of a material factual dispute mandates the granting ofthe motion Babin v WinnDixie Louisiana Inc 2000 0078 p 4 La 6 764 So 37 40 00 30 2d see also La C art 967 P B Any doubt as to a dispute regarding a genuine issue of material fact must be resolved against granting the motion and in favor of a trial on the merits Fernandez v Hebert 2006 1558 p 8 La App V Cir 16 07 4 5 961 So 404 408 writ denied 2007 1123 La 9 964 So 333 2d 07 21 2d A genuine issue is a triable issue that is an issue on which reasonable persons could disagree If on the state of the evidence reasonable persons could reach only one conclusion there is no need for a trial on that issue Jones 2003 1424 at p 6 870 So at 1006 2d In determining whether an issue is genuine a court should not consider the merits make credibility determinations evaluate testimony or weigh evidence Fernandez 20061558 at p 8 961 So at 408 2d A fact is material if it potentially ensures or precludes recovery affects a sultimate success or determines the outcome of the legal dispute Anglin litigant v Anglin 2005 1233 p 5 La App l Cir 6938 So 766 769 Because 06 9 2d it is the applicable substantive law that determines materiality whether a particular fact in dispute is material for summary judgment purposes can only be seen in light of the substantive law applicable to the case Dickerson v Piccadilly Restaurants Inc 992633 pp 3 4 La App I Cir 12 785 So 842 00 22 2d Burden o Proo in a Mesothelioma Case In this case plaintiffs action for damages is based on negligence In determining whether to impose liability the standard analysis employed is the dutyrisk analysis In order for a plaintiff to recover and for liability to attach under a dutyrisk analysis a plaintiff must prove five separate elements 1 the defendant had a duty to conform his or her conduct to a specific standard of care the duty element 2 the defendant failed to conform his or her conduct to the appropriate standard the breach of duty element 3 the defendant substandard s conduct was a cause infact of the plaintiffs injuries the causeinfact element 4 the defendant ssubstandard conduct was a legal cause ofthe plaintiffs injuries the scope of liability or scope of protection element and 5 actual damages the damages element Rando v Anco Insulations Inc 2008 1163 2008 1169 pp 17 26 27 La 5 16 So3d 1065 1086 09 22 To prevail in an asbestos case a plaintiffmust show by a preponderance of the evidence that he was exposed to asbestos from the defendant sproducts and that he received an injury that was substantially caused by that exposure Rando 20081163 at p 31 16 So at 1088 3d Louisiana courts employ a substantial factor test to determine whether exposure to a particular asbestos containing product was a causeinfact of a plaintiffs asbestos related disease Thus in an asbestos case the plaintiff must show he had a significant exposure to the product complained of to the extent that it was a substantial factor in bringing about the injury Rando 2008 1163 at p 35 16 So at 1091 3d Because of the lengthy latency period between exposure to asbestos and manifestation of the disease causeinfact is noted as the premier hurdle faced by plaintiffs in asbestos litigation Rando 2008 1163 at p 31 16 So3d at 1088 Notwithstanding the difficulty of proof involved a plaintiff burden of proof s against multiple defendants in a long latency case is not relaxed or reduced because of the degree of difficulty that might ensue in proving the contribution of each sproduct to the plaintiff injury Rando 2008 1163 at pp 35 36 16 defendant s 3d So at 1091 When multiple causes of injury are present a defendant conduct s is a cause infact if it is a substantial factor generating plaintiffs harm Rando 20081163 at p 31 16 So3d at 1088 In Rando 2008 1163 at p 35 16 So at 1091 the supreme court in 3d addressing the causation problem in asbestos related disease cases relied on the reasoning set forth in Borel v Fibreboard Paper Products Corporation 493 2d F 1076 1094 S Cir 1973 cent denied 419 U 869 95 S 127 42 S Ct 2d Ed L 107 1974 an asbestosis case t I is impossible as a practical matter to determine with absolute certainty which particular exposure to asbestos dust resulted in injury to Borel It is undisputed however that Borel contracted asbestosis from inhaling asbestos dust and that he was exposed to the products of all of the defendants on many occasions It was also established that the effect of exposure to asbestos dust is cumulative that is each exposure may result in an additional and separate injury We think therefore that on the basis of strong circumstantial evidence the jury could find that each defendant was the cause in fact of some injury to Borel The Borel court also stated that whhether the defendant conduct was a s substantial factor is a question for the jury unless the court determines that reasonable men could not differ Id In Rando the supreme court then noted that b upon this early uilding observation in Borel Louisiana courts have employed a substantial factor test to determine whether exposure to a particular asbestos containing product was a causeinfact of a plaintiffs asbestos related disease Rando 2008 1163 at p 35 16 So at 1091 3d Thus in an asbestos case the claimant must show he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury Id Stated differently the plaintiff must prove by a preponderance of the evidence that 1 his exposure to the sasbestos product was significant and 2 that this exposure caused or defendant was a substantial factor in bringing about his mesothelioma or other asbestos related disease See Rando 2008 1163 at p 38 16 So at 1092 ultimately 3d concluding with regard to causeinfact that there was no manifest error in the trial court factual determination that Rando proved by a preponderance of the s evidence his exposure to asbestos was significant and that this exposure caused his mesothelioma Emphasis added Lastly the plaintiff sproof in this regard may be by direct or circumstantial evidence 5 Rando 20081163 at p 33 16 So3d at 1089 In its motion for summary judgment Georgia Pacific urged that plaintiffs 5 A fact established by direct evidence is one which has been testified to by witnesses as 3d having come under the cognizance of their senses Rando 2008 1163 at p 33 16 So at 1090 Circumstantial evidence on the other hand is evidence of one fact or a set of facts from which the existence of the fact to be determined may reasonably be inferred Id I could not establish that Harris had sustained any exposure much less a significant exposure to asbestoscontaining products manufactured by it to such an extent that the exposure was a substantial factor in bringing about his injury Plaintiffs contend that the trial court committed legal error in granting summary judgment on the basis of the lack of medical evidence to establish specific causation because Georgia Pacific motion s raised no complex medical issues but instead questioned only whether Harris had been exposed to any asbestos containing products manufactured by Georgia Pacific Plaintiffs argue that all they were required to do on the motion for summary judgment was to present evidence of Harris significant exposure to asbestoscontaining Georgia Pacific products Plaintiffs contend that Dr Mark affidavit or other medical opinion evidence was s not required to defeat Georgia Pacific motion for summary judgment s as Georgia Pacific motion raised no complex medical issues therein did not raise s the issue of medical causation and Georgia Pacific did not even suggest that the testimony of an industrial hygienist or other medical professional was necessary to create a factual dispute regarding causation To prevail at trial plaintiffs must first demonstrate by a preponderance of the evidence that Harris was exposed to asbestos from Georgia Pacific products s Georgia Pacific motion challenged plaintiffs ability to demonstrate that Harris s had been exposed to asbestos containing Georgia Pacific products The testimony of Harris coworkers relied on by Georgia Pacific in support of its motion actually provided some evidence that Harris had been exposed to Georgia Pacific s products while working as a sheetrock installer In opposition to the motion plaintiffs offered evidence of the timeline during which Harris was exposed to Georgia Pacific sheetrock finishing products 19701980 and that all of the s finishing products sold by Georgia Pacific contained asbestos from the mid 1960s through at least 1973 and may have also contained asbestos through 1977 when Georgia Pacific ceased manufacturing such products Plaintiffs also offered evidence showing that Harris and his coworkers breathed in dust generated from the sheetrock finishing process We find the evidence offered by plaintiffs while largely circumstantial is sufficient to create a factual dispute as to whether Harris was exposed to and did inhale asbestos containing Georgia Pacific sheetrock finishing products precluding the entry of summary judgment in favor of Georgia Pacific on the issue of actual exposure Plaintiffs remaining burden in a mesothelioma case is to demonstrate that Harris mesothelioma was substantially caused by that exposure Rando 2008 1163 at p 31 16 So at 1088 Medical science has proven a causal relationship 3d between asbestos exposure and mesothelioma above background levels asbestos exposure is a causative factor in producing the disease Thus McAskill v American Marine Holding Company 20071445 p 7 La App 4 Cir 3 09 4 9 So 264 268 It is also established that mesothelioma can develop after fairly 3d short exposures to asbestos and that every nontrivial exposure to asbestos contributes to and constitutes a cause of mesothelioma See Rando 2008 1163 at p 35 16 So at 1091 McAskill 20071145 at pp 7 8 9 So at 268 3d 3d The causal link between asbestos exposure and mesothelioma contraction has been demonstrated to such a high degree of probability while at the same time few if any other possible causes have been identified that a universal causal relationship has been recognized if one is diagnosed as having mesothelioma and that person was exposed to asbestos that exposure is recognized to be the cause of the mesothelioma Torrejon v Mobil Oil Company 2003 1426 p 23 La App 4 t Cir 6 876 So 877 892 893 writ denied 20041660 La 9 882 04 2 2d 04 24 2d So 1125 We agree with plaintiffs assertion they were not required to come forward 21 with medical causation evidence to defeat Georgia Pacific smotion for summary judgment Georgia Pacific motion for summary judgment simply did not raise s the complex medical issue of specific causation that was ultimately relied on by the trial court in granting summary judgment The motion challenged whether plaintiffs could demonstrate that Harris had been exposed to its asbestos containing products All of the evidence submitted by Georgia Pacific in support of its motion related to the issue of whether Harris had in fact been exposed to Georgia Pacific products while doing sheetrock work Georgia Pacific did not s argue in its motion that plaintiffs did not have expert medical testimony on the medical causation issue or that testimony from additional medical professionals was necessary to establish causation Georgia Pacific was well aware that plaintiffs had retained Dr Mark a practicing pathologist and professor at Harvard medical school who taught classes on asbestos related lung diseases as their medical causation expert It was only after the trial court revealed its inclination to limit Dr Mark testimony at the January 19 2010 hearing that Georgia Pacific s began to question plaintiffs ability to prove specific medical causation However the issue of specific medical causation had not been set forth in Georgia Pacific s motion for summary judgment at the time it was considered by the trial court and we find that the trial court clearly erred in granting summary judgment on an issue not raised in Georgia Pacific motion for summary judgment See La C art s P E 966 providing that a summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time Emphasis added Whether a particular exposure constitutes a substantial contributing factor in the development of the disease of mesothelioma is a question of fact b While For a discussion of Dr Mark qualifications and causation opinion see the companion s case decided this day Robertson v Doug Ashy Building Materials Inc at docket number 20101552 22 Georgia Pacific may have made a bare assertion that plaintiffs could not demonstrate that Harris exposure to Georgia Pacific products was a substantial s contributing factor in the development of Harris disease Georgia Pacific offered no evidence to show that the exposures were not medically significant or that there is some safe level of exposure to its products that had not been exceeded Given the universally recognized causal connection between asbestos exposure and mesothelioma coupled with the fact that Georgia Pacific could not show that had plaintiffs not retained medical a causation expert Georgia Pacific s unsupported motion did not shift the burden to plaintiffs to demonstrate at the summary judgment stage that the exposures on which it relied were medically significant See Coleman v St Tammany Parish School Board 20081979 20081980 p 6 La App 1 Cir 5 13 So 644 648 the burden on the st 09 8 3d motion for summary judgment does not shift to the non moving party until the mover has properly supported the motion and carried the initial burden of proof Pugh v St Tammany Parish School Board 20071856 pp 46 La App 1st Cir 8 994 So 95 98 100 writ denied 20082316 La 11 996 08 21 2d 08 21 2d So 1113 it is only after a motion for summary judgment has been made and properly supported that the burden shifts to the non moving party We find that the evidence on the motion for summary judgment created a factual dispute as to whether Harris was exposed to or did inhale or ingest asbestos containing Georgia Pacific sheetrock finishing products When this evidence is considered in light of the wellestablished medical and legal principles establishing the causal connection between asbestos exposure and mesothelioma along with the absence of any evidence indicating that such exposures were medically insignificant we find that a genuine issue of material fact exists as to whether the exposures were a substantial mesothelioma 23 contributing cause of Harris For the foregoing reasons we find that the trial court erred in granting summary judgment in favor of Georgia Pacific and we reverse that judgment and dismissal of Georgia from this litigation Pacific MOTION TO STRIKE GeorgiaPacific joined in Sherwin Williams motion to strike a portion of Dr Mark testimony s On February 23 2010 the trial court entered judgment granting Sherwin Williams motion to strike and plaintiffs challenge that ruling in this appeal In a companion case decided this day Robertson v Doug Ashy Building Materials Inc 20101552 La App 1s Cir 104 11 3d So this court reversed the trial court judgment granting Sherwin Williams motion to s strike Dr Mark testimony For the reasons set forth therein the February 23 s 2010 judgment granting Sherwin Williams motion to strike the testimony of Dr Mark is reversed CONCLUSION Based on the foregoing the March 9 2010 judgment granting summary judgment in favor of Georgia Pacific and the February 23 2010 judgment granting the motion to strike are hereby reversed consistent with this opinion All The case is remanded for proceedings costs of this appeal are assessed to appellee defendant Georgia Pacific REVERSED AND REMANDED 7 Based on our ruling all issues relating to the failure of the trial court to grant a continuance or a new trial so that a properly signed and notarized copy of Dr Mark affidavit s could be obtained and considered are moot STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1547 FRANCES ROBERTSON PHILLIS CASTILLE LESLIE ROBERTSON AND STEWART ROBINSON INDIVIDUALLY AND ON BEHALF OF THEIR DECEASED HUSBAND AND FATHER RESPECTIVELY HARRIS J ROBERTSON VERSUS DOUG ASHY BUILDING MATERIALS INC ET AL cCLENDON A P burd J concurs and assigns reasons While I question the majority analysis regarding the shifting of the s of proof on Georgia Pacific motion for summary judgment I need not s address the correctness of same finding that there is a procedural defect that renders summary judgment improper Specifically Louisiana Code of Civil Procedure article 966D requires that the court shall hear and render judgment on the motion for summary judgment within a reasonable time Emphasis added Because a review of the record clearly shows that Georgia Pacific s motion for summary judgment was never heard nor was the request for a hearing waived the grant of the motion for summary judgment was inappropriate The hearing on the motions for summary judgment filed by numerous defendants including Georgia Pacific was set for January 19 2010 At the hearing the plaintiffs moved for a judgment of dismissal of all claims against Georgia Pacific and Union Carbide without prejudice pursuant to LSAC art P C 1 The hearing on the motion to strike a portion of the testimony of Dr Eugene Mark was also set for that date 1671 Counsel for the plaintiffs then stated If the court is inclined to deny the request for dismissal without prejudice then we withdraw the request and ll pursue sic with the motions your Honor the remaining motions Counsel for Georgia Pacific responded by stating that after an appearance the court may refuse to grant a judgment of dismissal pursuant to LSAC art 1671 except P C with prejudice and that counsel for plaintiffs had admitted that if plaintiffs lost their expert they could not prove their case Georgia Pacific then moved for a s Pacific dismissal with prejudice Union Carbide echoed Georgia statements and also requested dismissal with prejudice The trial court then granted the motions of Georgia Pacific and Union Carbide to be dismissed with prejudice Thereafter a judgment was signed by the trial court granting Georgia Pacific s motion to dismiss plaintiffs claims with prejudice and indicating that the dismissal had been made pursuant to LSA C art 1671 P At the February 2 2010 hearing when plaintiffs counsel was discussing their motion for new trial on the granting of the motion to dismiss Georgia Pacific and Union Carbide with prejudice the trial court indicated that at the January hearing it denied plaintiffs request to continue the summary judgment hearings and that it went forward with the summary judgment hearings Counsel for the plaintiffs reminded the trial court that plaintiffs stated at that time that if the court was not willing to dismiss the two defendants without prejudice plaintiffs wished to withdraw that request and proceed to trial Counsel stated that at no time did plaintiffs request dismissal with prejudice and also objected to same After further argument by counsel the trial court stated I did not act under 1671 I granted motions for summary judgment by Union Carbide and Georgia 2 Louisiana Code of Civil Procedure article 1671 provides A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs if the application is made prior to any appearance of record by the defendant If the application is made after such appearance the court may refuse to grant the judgment of dismissal except with prejudice 3 However plaintiffs also asserted in their opposition to the motion for summary judgment that causation was not properly raised by defendant merely exposure The trial court had previously granted Sherwin Williams motion to strike a portion of Dr Mark opinion testimony s s 4 This judgment was later vacated by the trial court 2 Pacific and dismissed with prejudice both of those entities s That what happened on January the 19 th Although the trial court may have stated otherwise the record fails to establish that there was ever a hearing on Georgia Pacific motion for summary s judgment or that plaintiffs were allowed to argue in opposition to same Nor do I find that the hearing on the motion was waived since plaintiffs clearly stated that they were prepared to go forward if the motion to dismiss without prejudice was not granted Because the record shows that the plaintiffs did not waive their right to be heard on the motions for summary judgment and because the record does not reflect that a hearing was ever held on Georgia Pacific smotion for summary judgment I agree that that summary judgment was incorrectly granted Therefore I respectfully concur 3
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