United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON United States District Judge.
the Court is Defendants Mississippi Valley Silica Company,
Inc., Lamorak Insurance Company, and Chevron's motion for
partial summary judgment dismissing Plaintiff Rose Wade's
claim for medical expenses incurred by her late-husband,
Garland Wade. Rec. Doc. 60 & 62. Plaintiff opposes the
motion. Rec. Doc. 63. Having considered the parties'
arguments, submissions, and applicable law, the Court now
issues this Order and Reasons.
approximately 1962 to 1971, Garland Wade was employed as a
sandblaster and paint sprayer on vessels owned by Coating
Specialists Inc. Rec. Doc. 1 at 2. Mr. Wade also worked on
permanent fixed platforms owned or operated by Chevron U.S.A.
Inc., both in Louisiana and in federal waters. Id.
During this period, he was exposed to silica dust, which
resulted in silicosis and eventually connective tissue
cancer. Rec. Doc. 1 at 3; Rec. Doc. 19 at 1-2.
September 20, 1973, Mr. Wade filed a lawsuit in the United
States District Court for the Eastern District of Louisiana
against his employer and several manufacturers or other
non-employer entities under the Jones Act and general
maritime law for damages. The case was assigned to Section E
of the Court, and was settled by the then-parties. The Court
entered a Stipulation of Facts, Findings of Fact and
Conclusions of Law, a Judgment, a Satisfaction of Docket and
a Receipt and Release. Included in the settled causes of
action were claims for past and future medical expenses. The
current defendants-Mississippi Valley Silica Company, Inc.
(“MV”), Lamorak Insurance Company, and
Chevron-were not parties in the 1973 action and were not
involved in that settlement.
42 years later, on January 21, 2015, Mr. Wade passed away.
His widow, Ms. Wade, now brings the instant action against
Defendants. She alleges that Defendants designed, marketed,
manufactured, distributed or sold negligently-designed and
manufactured products, exposing Mr. Wade to asbestos fibers
which proximately and directly caused or aggravated his
illness and death. Rec. Doc. 1 at 1-3, 6; Rec. Doc. 23 at
1-2. Specifically, she claims that Chevron was negligent in
allowing Mr. Wade to come onto and work on its platforms
without proper equipment and materials, consequently failing
to provide a safe workplace. Id. at 5. Plaintiff
claims that the materials and equipment used by Mr. Wade were
defective in design, marketing, and their foreseeable use or
misuse. Id. Finally, Plaintiff alleges that
Defendant MV was covered under an applicable insurance policy
issued by Lamorak, entitling Plaintiff to maintain direct
action against Lamorak. Id. Plaintiff seeks $5, 000,
000.00 in damages, claiming she is entitled to a wrongful
death action against Defendants pursuant to Louisiana and
general maritime negligence law. Rec. Doc. 1 at 3; Rec. Doc.
19 at 2.
February 1, 2017, this Court held that Plaintiff could only
recover pecuniary losses against the nonemployer defendants
here because “a seaman's damages against both
employers and non-employers are limited to pecuniary losses
under the Fifth Circuit's holdings in McBride v.
Estis Well Service., L.L.C., 768 F.3d 382 (5th Cir.
2014) and Scarborough v. Clemco Industries, Inc.,
391 F.3d 660, 668 (5th Cir. 2004). See Rec. Doc. 50.
The issue before the Court today is whether Plaintiff, Mr.
Wade's widow, can seek medical expenses incurred by the
decedent prior to his death as part of Plaintiff's
the Court's February 1, 2017 Order finding that only
pecuniary losses can be recovered, Plaintiff submitted as
pecuniary losses medical bills incurred by Mr. Wade prior to
his death, burial expenses, and certain information regarding
loss of service. These expenses were accrued in 2014 and
2015, and this lawsuit was filed in 2015. Defendants'
instant motion for summary judgment seeks dismissal of the
claim for Decedent's medical bills, arguing that it is
time-barred under 46 U.S.C. § 30106.
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c));
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the
evidence in the record but refrains from making credibility
determinations or weighing the evidence.” Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
530 F.3d 395, 398 (5th Cir. 2008).
Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden 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.” Celotex, 477
U.S. at 322. When the moving party has met its Rule 56(c)
burden, “[t]he non-movant cannot avoid summary judgment
. . . by merely making ‘conclusory allegations' or
‘unsubstantiated assertions.'” Calbillo
v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th
Cir. 2002) (quoting Little, 37 F.3d at 1075).
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 253 (1986). All reasonable
inferences are drawn in favor of the nonmoving party, but a
party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions. Little,
37 F.3d at 1075. A court ultimately must be satisfied that
“a reasonable jury could not return a verdict for the
nonmoving party.” Delta, 530 F.3d at 399.