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Boudreaux v. Bollinger Shipyard
Citations: 197 So. 3d 761; 2015 La.App. 4 Cir. 1345; 2016 La. App. LEXIS 1229; 2016 WL 3421537Docket: Nos. 2015-CA-1345, 2015-C-0958
Court: Louisiana Court of Appeal; June 22, 2016; Louisiana; State Appellate Court
Gerald Boudreaux's survivors filed a lawsuit against multiple entities and their insurers, claiming that his lung cancer was caused by asbestos exposure at various worksites. Dr. Gerald E. Liuzza was proposed as an expert witness to link the asbestos exposure to the disease. Trinity Industries, Inc., one of the defendants, challenged Dr. Liuzza’s methodology in a Daubert-Foret hearing, leading to the trial judge excluding his testimony. This exclusion meant the plaintiffs could not prove a crucial element of their case, resulting in the trial judge granting summary judgment to Trinity and its insurers, dismissing the lawsuit with prejudice. The appellate review of this ruling focused on whether the trial judge abused her discretion in excluding Dr. Liuzza's testimony. The Boudreaux family bore the burden of demonstrating that Dr. Liuzza’s methodology was accepted in the relevant scientific community. The appellate court found no abuse of discretion in the exclusion and affirmed the summary judgment. The procedural history revealed that Gerald Boudreaux was diagnosed with lung cancer in 2009 and died in 2010, with his children filing a wrongful death claim in 2011 against various parties connected to asbestos use. They alleged significant exposure during Boudreaux's employment at a shipyard from 1963 to 2009, with the lawsuit including strict liability claims against Trinity and Bollinger, as well as their insurers. Trinity filed two interrelated motions after discovery concluded but before trial. The first motion in limine aimed to exclude Dr. Liuzza, the Boudreaux family’s expert pathologist, from testifying about medical causation, arguing that his methodology did not meet the standards established in Daubert and Foret cases. Trinity asserted that Dr. Liuzza's opinion was flawed because he did not account for Mr. Boudreaux’s extensive history of heavy smoking, which is a leading cause of lung cancer, and that he lacked evidence on the dosage of asbestos Mr. Boudreaux was exposed to during his employment. Trinity contended that Dr. Liuzza improperly relied on limited excerpts from a co-worker's deposition instead of a full industrial hygienist’s report, which is typically necessary for calculating asbestos exposure. Furthermore, Trinity claimed that Dr. Liuzza could not credibly testify regarding whether Mr. Boudreaux's exposure exceeded applicable limits and that his opinion lacked a quantifiable basis. Simultaneously, Trinity sought summary judgment to dismiss the Boudreaux family’s claims contingent on the success of its motion in limine. Continental, Hartford, and Certain Underwriters at Lloyd’s London supported Trinity’s motions. In response, the Boudreaux family argued that Dr. Liuzza had indeed considered Mr. Boudreaux’s smoking history, citing his report where he acknowledged the combined effects of asbestos and tobacco on lung cancer. They noted that Dr. Liuzza adjusted his opinion during deposition to include the combined impact of both exposures. Regarding Trinity’s reliance on the industrial hygienist’s opinion, the Boudreaux family contended that no scientific standard mandated such reliance for estimating exposure history. The Boudreauxs contended that Dr. Liuzza appropriately relied on twenty-five pages of deposition extracts provided by counsel. However, during the August 7, 2015 motion hearing, the trial judge rejected their arguments, granting Trinity’s motion in limine and subsequently issuing a summary judgment. This ruling, made on August 17, 2015, stated that the Boudreauxs could no longer prove causation, resulting in the dismissal with prejudice of their claims against Trinity, Continental, Hartford, and Certain Underwriters at Lloyd’s London. The Boudreauxs filed a notice of intent to seek supervisory writs regarding Dr. Liuzza’s exclusion, which they submitted to the Court on September 4, 2015. They also moved for a new trial to reconsider the summary judgment, but this was denied on October 15, 2015. The Boudreaux family subsequently filed a motion for devolutive appeal concerning the August 17 judgment. The Court ordered consolidation of the writ application with the anticipated appeal following the denial of the new trial motion. The Boudreauxs argued that the trial judge failed to perform a detailed Daubert-Foret analysis as required by Louisiana Code of Civil Procedure Article 1425 F(2) and claimed the need for a de novo review of Dr. Liuzza’s testimony admissibility. The Court disagreed, noting that while the trial judge's reasons for excluding Dr. Liuzza’s testimony were brief, they were sufficient. The judge determined that Dr. Liuzza's failure to consider significant medical history rendered his methodology unreliable, and the Boudreauxs did not demonstrate how the lack of detailed findings affected the trial judge’s analysis. Consequently, the Court declined to conduct a de novo review and acknowledged that the exclusion of Dr. Liuzza’s testimony had been preserved for review through the introduction of his report and deposition into evidence. Error in excluding evidence is not grounds for appeal unless a substantial right of the party is affected and the evidence's substance has been disclosed to the court. The Boudreaux family did not present live testimony during the hearing, instead relying on several exhibits, including Dr. Liuzza's report, excerpts from his deposition, an affidavit, a deposition from Mr. Thibodeaux, a report from Dr. Robert N. Jones, and two scholarly articles on asbestos and related health issues. Dr. Liuzza's methodology is documented through these materials. His report, written years after Mr. Boudreaux's death, detailed the evidence provided, including medical records, a death certificate, deposition excerpts, and tissue samples. Although he lacked direct medical records from treating physicians, Dr. Liuzza concluded Mr. Boudreaux had significant exposure to asbestos based on Mr. Thibodeaux's testimony about their work with asbestos-laden materials from 1966 to 1970, during which they initially lacked respiratory protection. Mr. Boudreaux was diagnosed with lung cancer in 2009, and while cancerous cells were found in tissue samples, no asbestos-related lung changes were observed. Dr. Liuzza acknowledged that the pathology materials were insufficient to determine asbestos exposure and recommended consulting an industrial hygienist. Despite this, he attributed Mr. Boudreaux's lung cancer to occupational asbestos exposure, concluding that it was a significant factor in his illness and death. Dr. Liuzza concluded that Mr. Boudreaux's lung cancer is causally linked to his asbestos exposure, noting that many workers in his field are smokers but acknowledging a lack of information regarding Mr. Boudreaux's tobacco exposure. He asserted that if significant tobacco exposure were present, the lung cancer could be attributed to the combined effects of asbestos and tobacco, which he described as “synergism,” leading to a 45 to 90 times higher risk of developing bronchiogenic carcinoma compared to those not exposed to either agent. His opinions are supported by two scholarly articles that affirm the independent risk of lung cancer from asbestos despite the presence of tobacco smoking. Dr. Liuzza's methodology for attributing Mr. Boudreaux's lung cancer to asbestos is based solely on Mr. Thibodeaux's deposition. Under the Daubert standard, adopted by the Louisiana Supreme Court, trial courts must ensure that scientific evidence is both relevant and reliable. The Louisiana Code of Evidence, influenced by the Federal Rules of Evidence, outlines that expert testimony is admissible if it aids in understanding the evidence and meets four conditions: relevance, sufficient factual basis, reliability of principles and methods, and proper application of those methods to the case facts. A recent ruling excluded Dr. McAuliff's testimony, determining it would confuse the jury, illustrating the gatekeeping role of the trial judge in this context. Pretrial hearings are required to establish expert qualifications and the reliability of methodologies, with the onus on the party requesting the hearing to provide sufficient justification. A timely and properly alleged motion for a Daubert-Foret hearing mandates the court to conduct a contradictory hearing, as stipulated in La. C.C.P. art. 1425 F(2). During this hearing, the court evaluates the qualifications and methodologies of the proposed expert witness according to Articles 104(A) and 702-705 of the Louisiana Code of Evidence. The trial judge's gatekeeping role requires a preliminary assessment of the scientific validity of the testimony's reasoning and methodology, as well as its applicability to the case facts. Failure to adequately perform this role may lead to expert evidence that is prejudicial or misleading, necessitating careful evaluation of the methodologies involved. Factors for assessing the reliability of expert testimony include the testability of the theory, peer review status, error rates, and general acceptance in the scientific community. The trial court possesses broad discretion in determining the admissibility of expert testimony, and its decisions are typically upheld unless there is an abuse of discretion. Such abuse occurs when a ruling is arbitrary, capricious, or based on a misinterpretation of the law. In the case at hand, the trial judge excluded Dr. Liuzza’s testimony, determining that his methodology was unreliable due to his failure to adequately consider Mr. Boudreaux’s significant smoking history and family medical background. Although family members argue that Dr. Liuzza acknowledged the possibility of smoking impacting risk, his conclusions were deemed inconsistent with scientific standards, leading to the exclusion of his expert opinion. Dr. Liuzza requested information about Mr. Boudreaux’s medical history and tobacco use but was informed by the Boudreaux family’s attorneys that all relevant records were provided. The Boudreaux family argues that Dr. Liuzza’s exclusion should be reversed, attributing his methodological errors to their failure to supply pertinent medical information. The court disagrees, noting the family did not present evidence beyond Dr. Liuzza’s own assertions to support the reliability of his opinions. Dr. Liuzza stated in his affidavit that his methods for determining exposure significance are accepted in the medical community and mirror his out-of-court practices. However, the Boudreaux family did not provide independent evidence to corroborate these claims or to confirm that Dr. Liuzza’s methods align with those of other professionals in his field. Additionally, no testimony was given by peers in pathology regarding the methods typically used for assessing disease causation. Dr. Liuzza claimed he is qualified to opine on the significance of Mr. Boudreaux’s exposure to potential carcinogens and cited eleven scholarly works. Despite this, the Boudreaux family only introduced two Consensus Reports, which did not support Dr. Liuzza’s synergistic theory regarding tobacco and asbestos but instead indicated that tobacco does not lessen the cancer risk from asbestos. The family did not submit the other scholarly articles Dr. Liuzza referenced, and judicial notice could not be taken of their content. Lastly, the court of appeal mistakenly took judicial notice of the causal relationship between asbestosis and lung cancer in the same individual, which was not indisputable. Overall, the Boudreaux family failed to meet the burden of demonstrating the reliability of Dr. Liuzza’s methodology. The trial judge acted within her discretion in excluding Dr. Liuzza's expert testimony due to insufficient evidence. The analysis then shifts to the validity of the summary judgment in favor of Trinity regarding the Boudreaux family's wrongful death and survival claims linked to asbestos exposure. Under Louisiana law, specifically Civil Code articles 2315.1, 2315.2, and 2317, the Boudreaux family asserts strict liability against Trinity and other defendants. To succeed, they must demonstrate that the asbestos-causing harm was in the defendant's control, that it had a defect posing an unreasonable risk, and that the injury stemmed from that defect. Additionally, Article 2317.1 requires proof that the defendant knew or should have known of the harmful risk and failed to act accordingly. The family also alleges negligence against Trinity's executives and premises defendants for not providing adequate safety measures, necessitating proof of five elements: duty of care, breach, cause-in-fact, legal causation, and damages. Both strict liability and negligence claims require establishing that the alleged negligence or defect directly caused the injury. Summary judgment reviews employ a de novo standard, assessing whether material facts are genuinely disputed and whether the mover is entitled to judgment as a matter of law. Courts must grant summary judgment if the evidence shows no genuine issue of material fact. On a motion for summary judgment, the burden of proof lies with the moving party. If the moving party indicates a lack of factual support for essential elements of the opposing party's claims, the non-moving party must provide sufficient factual support to demonstrate that they can meet their evidentiary burden at trial. Failure to do so results in the absence of a genuine issue of material fact, warranting summary judgment. In this case, the Boudreaux family bears the burden of proof for their claims, particularly regarding causation related to asbestos exposure and lung cancer. They must demonstrate that Mr. Boudreaux’s asbestos exposure was significant and a substantial factor in causing his lung cancer. Causation is a critical challenge in asbestos cases, requiring expert medical testimony when the issue is not within common knowledge. The Boudreaux family concedes they lack circumstantial evidence or any presumption of causation outside of their expert, Dr. Liuzza. Their admission that they cannot establish causation without Dr. Liuzza’s testimony indicates they cannot meet the burden of proof necessary for their negligence and strict liability claims. Consequently, the trial court correctly granted summary judgment in favor of Trinity and dismissed the Boudreaux family’s claims against multiple defendants, as there were no genuine issues of material fact regarding medical causation. The trial court's judgment from August 17, 2015, dismissing with prejudice the claims of Dwayne Boudreaux, Gerilyn Cook, and Bryan Boudreaux against Trinity Industries, Inc. and several insurers, is affirmed. Prior to this judgment, the Boudreaux family had already dismissed claims against some defendants, but the status of remaining defendants is unclear due to incomplete appeal records. The Boudreaux family had dismissed claims against Employers Mutual Liability Insurance Company of Wisconsin and Travelers Casualty and Surety Company without prejudice in 2013. Dr. Jones, a medical expert for Trinity, prepared a report updated from a previous 1997 paper. Evidence presented at the Daubert-Foret hearing was limited to Mr. Thibodaux’s deposition. While Trinity claims the Boudreaux family retained an industrial hygienist, this expert's opinion was not introduced into evidence. The Boudreaux family challenged the reliability of Trinity's expert methodologies under Louisiana law. The Boudreaux family did present Dr. Henry’s report, which focused on Mr. Boudreaux’s medical and smoking history and five years of chest x-rays. Dr. Henry found no evidence of asbestosis or pleural plaques and did not attribute Mr. Boudreaux’s lung cancer to asbestos exposure, citing the lack of significant radiographic findings. He concluded that Mr. Boudreaux's lung cancer was attributable to past cigarette smoking, emphasizing that evidence of diffuse lung fibrosis is necessary for a diagnosis of asbestosis. Under the abuse-of-discretion standard, appellate decisions defer to the trial judge’s case-specific rulings. The admissibility of Dr. Liuzza’s expert testimony in future cases depends on the proponent demonstrating that his methodology is accepted in the relevant scientific community. In Kent v. Gulf States Utilities Co., the Louisiana Supreme Court distinguished between negligence and strict liability regarding liability for items in one’s custody. In negligence cases, a claimant must prove that an item posed an unreasonable risk of injury that the owner knew or should have known about, and that the owner failed to take reasonable steps to mitigate that risk. In contrast, under strict liability, the claimant is not required to prove the owner’s knowledge of the risk but must still show that the item presented an unreasonable risk of harm. The owner's absolute duty to discover risks arises from their custodianship of the item, and failure to fulfill this duty results in liability for injuries caused by that item. Additionally, in establishing causation, a plaintiff may benefit from a presumption of causation if they were healthy before an accident and subsequently developed symptoms that indicate a reasonable possibility of a causal link between the accident and their condition.