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In re Asbestos Products Liability Litigation (VI)

United States District Court, E.D. Pennsylvania

January 29, 2013

In re ASBESTOS PRODUCTS LIABILITY LITIGATION (VI).
v.
Aerojet General Corp., et al., Defendants. Terry & Jo Ann Cardaro, Plaintiffs, MDL No. 875.

Page 579

Charles S. Siegel, Julie L. Celum, Gibbs C. Henderson, Dallas, TX, David Ryan Cannella, Frank J. Swarr, Mickey P. Landry, Philip C. Hoffman, Landry & Swarr LLC, New Orleans, LA, for Plaintiffs.

Angela M. Bowlin, John J. Hainkel, III, Rebecca Abbott Zotti, Sheri Sport Faust, Frilot Partridge LC, James R. Logan, IV, Logan & Soileau LLC, New Orleans, LA, John P. McShea, McShea Law Firm PC, Philadelphia, PA, Winstol D. Carter, Jr., Houston, TX, Martin James Dempsey, Jr.,

Page 580

Cosmich Simmons & Brown PLLC, Jackson, MS, for Defendants.

MEMORANDUM

ROBERT F. KELLY, Senior District Judge.

Presently before this Court is Defendant, General Electric Company's, Motion for Summary Judgment against Plaintiffs, Terry and Jo Ann Cardaro, along with Plaintiffs' Response in Opposition and Defendant's Reply. For the reasons set forth below, Defendant's Motion is denied.

I. FACTS

In 1950 and 1958, Defendant, General Electric Company (" GE" ), manufactured, shipped and supervised the erection of two land-based turbine generators at Louisiana Power & Light's (" LP & L" ) Nine Mile Point Steam Electric Station. (Doc. 54-3 ¶ 2-3.) Plaintiff Terry Cardaro (" Cardaro" ) worked as a mechanic for LP & L from 1977 to 1982. (Doc. 66 at 2.) Plaintiffs, Terry and Jo Ann Cardaro (" Plaintiffs" ), allege that in this capacity, Cardaro " was exposed to asbestos-containing gaskets, packing, and insulation used in conjunction with GE's turbines, leading to numerous occasions on which he inhaled asbestos fibers during the regular maintenance and repair of GE turbines." ( Id. at 1.) Plaintiffs further aver that Cardaro never saw a warning relating to the dangers associated with asbestos containing products. ( Id. at 3.) Plaintiffs contend that GE, by its own admission, manufactured turbines that contained asbestos and that they knew the turbines were used with asbestos containing products made by others. ( Id. at 4.)

Cardaro was diagnosed with mesothelioma in May of 2004. (Doc. 104 at 1.) In September of 2004, Plaintiffs filed a personal injury action against GE alleging that the exposure to asbestos from Cardaro's time working on and around the GE turbine generators led to his malignant mesothelioma. (Doc. 66 at 1.)

II. PROCEDURAL HISTORY

The lengthy and circuitous procedural history of this case is summarized as follows. On September 2, 2004, Plaintiffs filed a personal injury lawsuit against GE in Dallas County, Texas. (Doc. 66 at 7.) The suit was re-filed in Orleans Parish, Louisiana on May 17, 2005, and later removed to the U.S. District Court for the Eastern District of Louisiana on June 29, 2005. ( Id. ) On December 16, 2005, the suit was transferred to the Federal Multidistrict Litigation (" MDL" ). ( Id. )

The MDL severed Plaintiffs' punitive damages claims and transferred the remainder of the instant matter back to the Eastern District of Louisiana, which subsequently remanded the case back to Orleans Parish, Louisiana on August 27, 2010. ( Id. ) On April 15, 2011, after a Notice of Removal was filed by another defendant in the matter, the case was removed back to the Eastern District of Louisiana. ( Id. )

On June 27, 2011, the Honorable Eduardo C. Robreno ordered the transfer of this case to the Eastern District of Pennsylvania. (Doc. 1.) GE filed a Motion for Summary Judgment on May 10, 2012, arguing that: (1) Plaintiffs' claims are barred by the Louisiana statute of repose, and (2) GE is entitled to summary judgment due to the sophisticated user/purchaser defense. (Doc. 54.) On July 27, 2012, Judge Robreno denied GE's Motion for Summary Judgment as to the sophisticated user/purchaser defense.[1] (Doc. 104 at 7.)

Page 581

However, Judge Robreno noted that the statute of repose was an unsettled area of Louisiana law, and remanded this issue back to the Eastern District of Louisiana to decide. (Doc. 104 at 8.) Before this issue was decided, the case was reassigned to this Court on November 26, 2012. (Doc. 112.) We now address whether Plaintiffs' claims are barred by the Louisiana statute of repose.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) states that summary judgment is proper " if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir.1991). The Court asks " whether the evidence presents a sufficient disagreement to require submission to the jury or whether ... one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be ‘ genuine,’ i.e., the evidence must be such ‘ that a reasonable jury could return a verdict in favor of the non-moving party.’ " Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F.Supp. 554, 561 n. 14 (E.D.Pa.1998).

Summary judgment must be granted " against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents " specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir.1992). " More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D.Pa.1996). If the court determines that there are no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

IV. DISCUSSION

The parties are in agreement that Louisiana law is applicable to this case. (Doc. 104 at 2.) However, at issue is whether the Louisiana statute of repose, codified at La. Rev. Ann. § 9:2772 (1964) (" § 2772" ), applies as ...


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