Cardaro v. Aerojet Gen. Corp. (In re Asbestos Prods. Liab. Litig.)

919 F.Supp.2d 578

In re ASBESTOS PRODUCTS LIABILITY LITIGATION (VI).Terry & Jo Ann Cardaro, Plaintiffs,

v.Aerojet General Corp., et al., Defendants.

MDL No. 875.

Civil Action No. 11–66763.

United States District Court, E.D. Pennsylvania.

Jan. 29, 2013.

Limited on Constitutional Grounds

LSA–R.S. 9:2772(A)

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., 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.) 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 originally enacted in 1964 or as amended in 1990. This statute acts to extinguish claims that were not filed within a ten-year preemptive period. La. Rev. Ann. § 9:2772 (1990). As such, our finding as to the applicability of the statute is critical to the viability of Plaintiffs' action. If we find that the 1990 amendment applies retroactively, as GE argues, then Plaintiffs' claims against GE for the failure to warn of the danger of asbestos are preempted as they fall outside the ten-year period provided under the statute for filing such claims. In addition, GE argues that, even if we find that § 2772 does not apply retroactively, GE is not liable because the danger from asbestos was either known or easily discoverable by LP & L and that LP & L failed to disclose the hazard. We now proceed to address these arguments.

(A) Does the 1990 amendment to § 2772 apply retroactively to preempt Plaintiffs' claims?

As originally enacted in 1964, § 2772 stated, in relevant part:

A. No action, whether ex contracto, ex delicto, or otherwise, to recover on a contract or to recover damages shall be brought against any person ... performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:

(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or

(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner;

B. The causes which are preempted within the time described above include any action ...

(3) For injury to the person or from wrongful death arising out of any such deficiency; and ...

This preemptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.

La. Rev. Ann. § 9:2772 (1964).

In 1990, the statute was amended as follows:

A. No action, whether ex contracto, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract or to recover damages shall be brought against any person ... performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:

(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or

(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner;

B. The causes which are preempted within the time described above include any action ...

(3) For injury to the person or from wrongful death arising out of any such deficiency; and ...

This preemptive period shall extend to every demand whether brought by direct action or for contribution or indemnityor by third party practice, and whether brought by the owner or by any other person.

La. Rev. Ann. § 9:2772 ...