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Robertson v. Doug Ashy Bldg. Materials, Inc.

Court of Appeal of Louisiana, First Circuit

December 23, 2014

FRANCES ROBERTSON, PHILLIS CASTILLE, LESLIE ROBERTSON, AND STEW ART ROBERTSON, INDIVIDUALLY AND ON BEHALF OF THEIR DECEASED HUSBAND AND FATHER RESPECTIVELY, HARRIS J. ROBERTSON
v.
DOUG ASHY[1] BUILDING MATERIALS, INC., ET AL

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[Copyrighted Material Omitted]

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Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana. Trial Court Number 532,769. Honorable Robert J. Bums, Judge Ad Hoc.

Robert E. Arceneaux, Metairie, LA and Damon R. Pourciau, Kenner, LA and Susannah B. Chester, Dallas, TX, Attorneys for Appellants, Plaintiffs -- Frances Robertson, et al.

Dwight C. Paulsen, III, David E. Redmann, Jr., Michael C. Mims, New Orleans, LA and Edward M. Slaughter, Dallas, TX, Attorneys for Appellee Defendant -- The Sherwin-Williams Company.

BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. Pettigrew, J., concurs.

OPINION

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[2014 0141 La.App. 1 Cir. 2] WELCH, J.

The plaintiffs, Frances Robertson, Phillis Castille, Leslie Robertson, and Stewart Robertson, appeal a judgment that granted summary judgment in favor of defendant, The Sherwin-Williams Company (" Sherwin-Williams" ) and dismissed their survival and wrongful death claims against Sherwin-Williams and a judgment rendered following a " Daubert hearing" [2] that prohibited certain testimony from the plaintiffs' expert on causation, Dr. Eugene J. Mark. For reasons that follow, we reverse both judgments of the trial court and remand for further proceedings.[3]

I. FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history of the current dispute is so closely intertwined with our earlier opinion involving essentially the same issues, Robertson v. Doug Ashy Bldg. Materials, Inc., 2010-1552 (La.App. 1st Cir. 10/4/11), 77 So.3d 339, writs denied, 2011-2468, 2011-2430 (La. 1/13/12), 77 So.3d 972, 973, writs not considered, 2011-2433, 2011-2432 (La. 1/13/12), 77 So.3d 973, 974 ("Robertson III" [4] ), that it is necessary to set forth in detail the relevant factual, procedural, and legal history from our earlier opinion prior to setting forth the factual and procedural history of the present appeal.

[2014 0141 La.App. 1 Cir. 3] A. Robertson III, 77 So.3d at 342-345 ( footnotes renumbered ):

On June 30, 2004, Harris Robertson was diagnosed with mesothelomia and on November 27, 2004, he died from the disease. On May 26, 2005, the plaintiffs, Harris Robertson's wife and children, filed this lawsuit against a host of defendants that they claimed were responsible for manufacturing, supplying, selling, or exposing Harris Robertson to asbestos-containing products, including but not limited to Georgia-Pacific Corporation (" Georgia-Pacific" )[5], Union Carbide Corporation (" Union Carbide" ) and Sherwin-Williams.[6] Essentially, the

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plaintiffs alleged that Georgia-Pacific manufactured and sold asbestos-containing products, that Union Carbide sold, distributed, and supplied raw asbestos, and that Sherwin-Williams was a supplier or distributor of asbestos-containing products.

In the plaintiffs' petition, they alleged that Harris Robertson's fatal disease was caused in part by his exposure to asbestos and asbestos-containing products through his work for V.P. Pierret Construction Company from approximately 1960-1970. Specifically, the plaintiffs asserted that during this time frame, Harris Robertson installed sheetrock and was regularly exposed to friable asbestos and asbestos-containing products, which were present in the joint compounds used to finish or float the sheetrock, and as a result of that exposure, asbestos dust and fibers were inhaled or otherwise ingested by Harris Robertson.[7]
On October 8, 2008, Sherwin-Williams filed a motion for summary judgment, asserting that plaintiffs had " no evidence" that Harris Robertson " had any, much less substantial, asbestos exposure from products bought at 'Sherwin-Williams' stores, or indeed that [Sherwin-Williams] owned the stores in question." Thereafter, the [2014 0141 La.App. 1 Cir. 4] plaintiffs filed ... a response to Sherwin-Williams' motion for summary judgment.
.... In response to Sherwin-Williams' motion for summary judgment, the plaintiffs contended that there were genuine issues of material fact as to whether Harris Robertson was exposed to significant amounts of asbestos as a result of the asbestos containing joint compound sold or distributed by Sherwin-Williams.
Additionally, on December 18, 2009, Sherwin-Williams filed a motion to strike portions of the opinion of the plaintiffs' expert, Dr. Mark, a practicing pathologist and a Harvard Medical School professor of pathology. Specifically, Sherwin-Williams sought 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 Robertson's mesothelioma.
The plaintiffs opposed the motion to strike, essentially arguing Dr. Mark had not opined that " any fiber" or " every exposure above background" was a substantial contributing factor in causing Harris Robertson's mesothelioma, as suggested by Sherwin-Williams, and that Dr. Mark's testimony and conclusions regarding the cause of Harris Robertson's mesothelioma had been made using valid methodology and was supported by, and consistent with, generally-accepted scientific and medical literature.
After a hearing on January 19, 2010, the trial court denied Sherwin-Williams' motion for summary judgment and

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granted Sherwin-Williams' motion to strike.[8] On February 2, 2010, the trial court signed a judgment denying Sherwin-Williams' motion for summary judgment,[9] and on February 23, 2010, the trial court signed a judgment granting Sherwin-Williams' motion to strike.

On January 25, 2010, Sherwin-Williams filed a motion for new trial on the denial of its motion for summary judgment, contending that it was entitled, under La. C.C.P. art. 1973 [,] to a new trial because the " plaintiffs cannot establish that any asbestos exposure for which Sherwin-Williams is responsible was a substantial contributing factor in causing" Harris Robertson's mesothelioma. Specifically, Sherwin-Williams argued that after the trial court denied its motion for summary judgment, the trial court granted Sherwin-Williams' motion to strike portions of the testimony of Dr. Mark, and without Dr. [2014 0141 La.App. 1 Cir. 5] Mark's opinion on specific or medical causation, the plaintiffs had no other expert testimony establishing specific or medical causation, i.e., that the alleged asbestos exposure from products purchased at Sherwin-Williams was a substantial contributing factor in causing Harris Robertson's mesothelioma.
Additionally, on February 19, 2010, the plaintiffs filed a motion for new trial on the grant of Sherwin-Williams' motion to strike portions of the opinion of Dr. Mark.[10] At a hearing on March 2, 2010, the trial court denied the plaintiffs' motion for new trial on the motion to strike, granted Sherwin-Williams' motion for new trial on its motion for summary judgment, and granted Sherwin-Williams' motion for summary judgment " regarding substantial contributing cause," thereby dismissing the plaintiffs' claims against Sherwin-Williams.[11]
On April 6, 2010, the trial court signed a judgment denying the plaintiffs' motion for new trial on the motion to strike, granting Sherwin-Williams' motion for new trial on its motion for summary judgment, and granting Sherwin-Williams' motion for summary judgment " regarding substantial contributing cause," and on April 5, 2011, the trial court signed a supplemental judgment, which in addition to containing the provisions set forth in the April 6, 2010 judgment, also dismissed the plaintiffs' claims against Sherwin-Williams with prejudice.[12]

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The plaintiffs ... appealed the April 5, 2011 judgment granting Sherwin-Williams' motion for new trial on its motion for summary judgment and granting Sherwin-Williams' motion for summary judgment, the February 23, 2010 judgment granting Sherwin-Williams' motion to strike the testimony of Dr. Mark, and the April 6, 2010 judgment denying their motion for new trial on Sherwin-Williams' motion to strike.[13]

[2014 0141 La.App. 1 Cir. 6] On appeal, this court reversed both the February 23, 2010 and April 5, 2011 judgments of the trial court.[14] Robertson III, 77 So.3d at 352 and 359-360. In reversing the April 5, 2011 judgment granting Sherwin-Williams' motion for new trial on its motion for summary judgment and granting the motion for summary judgment, this court initially noted that the trial court erred in granting summary judgment on the issue of " substantial cause" ( i.e., whether the exposure to asbestos-containing products purchased at or sold by Sherwin-Williams was a substantial factor in bringing about Harris Robertson's mesothelioma) because that issue was not raised in the underlying motion for summary judgment.[15] Robertson III, 77 So.3d at 349; see also La. C.C.P. art. 966(E). On de novo review of the issue actually raised by Sherwin-Williams in its motion summary judgment ( i.e., whether Harris Robertson had substantial asbestos exposure from products bought at Sherwin-Williams' stores or that Sherwin-Williams owned the stores in question), this court determined that the plaintiffs put forth sufficient evidence establishing that there were genuine issues of material fact as to

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whether " Gold Bond" was an asbestos containing joint compound, whether Harris Robertson routinely and regularly used and inhaled (and was thus significantly exposed to) the asbestos-containing " Gold Bond" joint compound in his dry wall finishing [2014 0141 La.App. 1 Cir. 7] work, and whether Harris Robertson (or other people with whom he worked) purchased the asbestos-containing joint compound " Gold Bond" from Sherwin-Williams' stores. Robertson III, 77 So.3d at 349-352. Accordingly, this court determined that Sherwin-Williams was not entitled to summary judgment or to a new trial on its motion for summary judgment. Id.

With respect to the February 23, 2010 judgment granting Sherwin-Williams' motion to strike the testimony of Dr. Mark, this court determined that the trial court, when it concluded that Dr. Mark's expert opinion was unreliable, failed to comply with La. C.C.P. art. 1425(F) and failed to evaluate or analyze Dr. Mark's expert opinion under the standards set forth by the Unites States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (1993). Robertson III, 77 So.3d at 358-359. Finding that this constituted legal error by the trial court, this court conducted a de novo review of Dr. Mark's expert opinion on causation and concluded that Sherwin-Williams failed to meet its burden of proving that Dr. Mark's expert opinions with regard to causation were unreliable. Id. Thus, the trial court erred in granting Sherwin-Williams' motion to strike. Robertson III, 77 So.3d at 359.

After reversing both the February 23, 2010 judgment of the trial court granting Sherwin-Williams' motion to strike the testimony of Dr. Mark and the April 5, 2011 judgment of the trial court granting Sherwin-Williams' motion for new trial and granting Sherwin-Williams5 motion for summary judgment, this court remanded the matter to the trial court for further proceedings. Robertson III, 77 So.3d at 359-360.

[2014 0141 La.App. 1 Cir. 8] B. Proceedings on Remand and the Present Appeal

On remand, Sherwin-Williams and the other defendants, Georgia Pacific and Union Carbide, filed a motion for a Daubert hearing on Sherwin-Williams' motion to strike portions of the opinion of Dr. Mark. Although the plaintiffs objected to another Daubert hearing on the basis it was unnecessary given this Court's decision in Robertson III, after a hearing, the trial court granted the motion.[16] Thereafter, the trial court then conducted an evidentiary Daubert hearing, and at the conclusion of the hearing, the trial court rendered judgment granting the motion in part and denying the motion in part. On August 21, 2012, the trial court signed a " Daubert order" (or judgment) in accordance with its oral reasons, specifically providing that Dr. Mark was prohibited from testifying that each " special exposure" to asbestos constituted a significant contributing factor in the development of the disease, that Dr. Mark was prohibited from giving his definition of " special exposure," but otherwise, that Dr. Mark was allowed to give causation opinions.

Thereafter, on December 5, 2012, Sherwin-Williams filed a motion for summary judgment claiming " that [the] [p]laintiffs have no evidence capable of sustaining their burden of proving that asbestos from

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products purchased at Sherwin-[Williams'] stores was a substantial contributing factor in causing Harris Robertson's mesothelioma." The plaintiffs opposed the motion, and following a hearing on January 8, 2013, the trial court granted Sherwin-Williams' motion for summary judgment. A written judgment in accordance with the trial court's ruling granting Sherwin-Williams' motion for summary judgment and dismissing the plaintiffs' claims against Sherwin-Williams with prejudice was signed on January 29, 2013.

[2014 0141 La.App. 1 Cir. 9] The plaintiffs now appeal the January 29, 2013 judgment dismissing its claims against Sherwin-Williams, as well as the August 21, 2012 interlocutory judgment (or Daubert order) limiting the testimony of Dr. Mark.[17] On appeal, the plaintiffs contend that the trial court: (1) abused its discretion in partially granting Sherwin-Williams' Daubert motion and (2) erred in granting Sherwin-Williams' motion for summary judgment and in failing to recognize the existence of genuine issues of material fact.

II. LAW AND DISCUSSION

A. Cause-In-Fact in a Mesothelioma Case

The issues raised in the previous appeals in this matter, Robertson I, Robertson II, Robertson III, and in the instant appeal, Robertson IV, and its companion appeals, Robertson V and Robertson VI, have essentially involved the plaintiffs' burden of proving the cause-in-fact element of their action for damages.[18] Cause-in-fact is a question of fact. Robertson III, 77 So.3d at 347; Rando, 16 So.3d at 1087.

There is a universally recognized causal connection between asbestos exposure above background levels and the occurrence of mesothelioma. Robertson III, 77 So.3d at 349, n.14; Robertson I, 77 So.3d at 335; see also Landry v. Avondale Industries, Inc., 2012-0950 (La.App.4th Cir. 3/6/13), 111 So.3d 508, 511. Brief exposures to asbestos may cause mesothelioma in persons [2014 0141 La.App. 1 Cir. 10] decades later and every non-trivial exposure to asbestos contributes and constitutes a cause of mesothelioma. See Rando, 16 So.3d at 1091; Robertson I, 77 So.3d at 335; Landry, 111 So.3d at 511; Francis v. Union Carbide Corp., 2012-1397 (La.App.4th Cir. 5/8/13), 116 So.3d 858, 862, writ denied, 2013-1321 (La. 9/20/13), 123 So.3d 177. 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 if one is diagnosed as having mesothelioma and that person was exposed to asbestos, that exposure is recognized to be the cause

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of the mesothelioma. Robertson I, 77 So.3d at 335-336.

However, due to the lengthy latency period between exposure to asbestos and manifestation of the asbestos-related disease, cause-in-fact of the plaintiffs injuries by a particular defendant is considered the " premier hurdle" faced by plaintiffs in asbestos litigation. Robertson III, 77 So.3d at 347; Rando, 16 So.3d at 1088. To prevail in an asbestos case, the plaintiff must show by a preponderance of the evidence, that he was exposed to asbestos and that he received an injury substantially caused by that exposure. Robertson III, 77 So.3d at 347; Rando, 16 So.3d at 1088. When multiple causes of injury are present, a defendant's conduct is a cause-in-fact if it is a substantial factor in generating plaintiffs harm. Robertson III, 77 So.3d at 347; Rando, 16 So.3d at 1088.

Mesothelioma can develop after fairly short exposures to asbestos. Rando, 16 So.3d at 1091. Simply because a plaintiff suffered asbestos exposure while working only a short period for an employer and had longer exposures while working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor in causing his mesothelioma. Id.

In Robertson III, 77 So.3d at 347, this court noted that the Louisiana Supreme Court addressed the causation problem in asbestos-related disease cases [2014 0141 La.App. 1 Cir. 11] in Rando, 16 So.3d at 1090-1091, by relying on the reasoning of Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1094 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974), an asbestosis case, which provided as follows:

[I]t 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 ...

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