Emily Everett v. Air Products and Chemicals, Inc.

EMILY EVERETT * NO. 2022-CA-0539

VERSUS *
COURT OF APPEAL
AIR PRODUCTS AND *
CHEMICALS, INC., ET AL. FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

CONSOLIDATED WITH: CONSOLIDATED WITH:

EMILY EVERETT NO. 2022-CA-0540

VERSUS

AIR PRODUCTS AND
CHEMICALS, INC., ET AL.

CONSOLIDATED WITH: CONSOLIDATED WITH:

EMILY EVERETT NO. 2022-CA-0541

VERSUS

AIR PRODUCTS AND
CHEMICALS, INC., ET AL.

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-05845, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Paula A. Brown
******
(Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown, Judge Dale
N. Atkins)

Lewis O. Unglesby
Lance C. Unglesby
Jamie F. Gontarek
UNGLESBY LAW FIRM
246 Napoleon Street
Baton Rouge, LA 70802

Thomas M. Flanagan
Anders F. Holmgren

FLANAGAN PARTNERS, LLP
201 St. Charles Avenue, Suite 3300
New Orleans, LA 70170

Lindsey A. Cheek
THE CHEEK LAW FIRM
650 Poydras Street, Suite 2310
New Orleans, LA 70130

COUNSEL FOR PLAINTIFFS/APPELLANTS

John J. Hainkel, III
Kelly L. Long
FRILOT, LLC
1100 Poydras Street, Suite 3700
New Orleans, LA 70163

COUNSEL FOR DEFENDANT-APPELLEE, FOSTER WHEELER, LLC

Joseph J. Lowenthal, Jr.
Madeleine Fischer
Lena D. Giangrosso
JONES WALKER LLP
201 Poydras Street, 51st Floor
New Orleans, LA 70170-5100

COUNSEL FOR DEFENDANT-APPELLEE, LEVEL 3 HOLDINGS, INC.

REVERSED IN PART; AFFIRMED IN PART;
ANSWERS TO APPEAL DISMISSED
AND REMANDED
May 2, 2023

This civil action arises from a claim of household exposure to asbestos,
PAB
TFL which later resulted in a diagnosis of mesothelioma. Appellants, Paula Everett
DNA
(“Paula”) and William Everett, Jr. (“William”) (collectively, the “Everetts”),

individually and as representatives of the decedent, Emily Everett (“Mrs. Everett”),

filed separate appeals from two May 4, 2022 judgments of the district court, which

granted motions for summary judgment in favor of Appellees, Foster Wheeler LLC

(“Foster Wheeler”) and Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k/a

Peter Kiewit Sons (“Peter Kiewit”), dismissing all claims against them with

prejudice. Additionally, the Everetts seek to appeal the May 13, 2022 denial of

their motion for a new trial. These matters have all been consolidated into the

instant appeal. For the reasons that follow, we dismiss the answers of Foster

Wheeler and Peter Kiewit, which sought a reversal of the district court’s denial of

Union Carbide’s objection to the Everetts’ untimely supplemental opposition; we

reverse the district court’s judgment that granted summary judgment in favor of

Peter Kiewit; we affirm the district court’s judgment, granting summary judgment

in favor of Foster Wheeler; and we reverse the district court’s denial of the

Everetts’ motion for new trial and remand this matter back to the district court for a

contradictory hearing on the motion for new trial on Foster Wheeler’s motion for

summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

According to her deposition testimony, sometime around April of 2018, Mrs.

Everett presented to her primary care physician, Dr. Escipion Pedroza,

complaining of severe abdominal swelling. After an examination, Dr. Pedroza

1

scheduled a CT scan for Mrs. Everett and referred her to Dr. Fuentes1. The CT

scan revealed an accumulation of fluid, which prompted Dr. Fuentes to take a

sample of the liquid and send it for testing in the lab. Lab results revealed the

presence of cancer cells which, in turn, resulted in Dr. Fuentes diagnosing Mrs.

Everett with peritoneal mesothelioma.

In her consultation with Dr. Fuentes, Mrs. Everett explained that while she

had never personally worked directly with or in proximity to asbestos, her former

spouse, William Everett, Sr. (“Mr. Everett”), had been a journeyman welder and

boilermaker throughout their twenty-year marriage and had worked at various

plants and locations that potentially exposed him to asbestos. Mrs. Everett

described her role in the household as being responsible for laundering all of the

family’s clothing, including Mr. Everett’s work clothing that he wore throughout

the work day and until he returned home. There was routinely so much dust in

Mr. Everett’s work clothing that Mrs. Everett was required to sweep or vacuum up

the piles that accumulated and, inevitably, inhaled some of this dust. Mrs.

Everett’s narrative led Dr. Fuentes to conclude that it was this repeated household

exposure to the potentially asbestos-laden dust that was the cause of Mrs. Everett’s

mesothelioma.

Dr. Pedroza then referred Mrs. Everett to an oncologist, Dr. Thomas

Cosgriff. It was Dr. Cosgriff’s opinion that Mrs. Everett was already too ill to

receive treatment for the mesothelioma, which led Mrs. Everett to seek a second

opinion from another oncologist, Dr. Zoe Larned. After reviewing Mrs. Everett’s

medical history, Dr. Larned agreed that the cause of Mrs. Everett’s mesothelioma

1 Mrs. Everett testified that she did not know the first name of Dr. Fuentes. Our review of the
record did not yield a first name for Dr. Fuentes.

2

was her exposure to asbestos through laundering Mr. Everett’s clothing; however,

Dr. Larned disagreed that Mrs. Everett was too ill to receive treatment and began

Mrs. Everett on a regimen of chemotherapy. After three cycles of chemotherapy,2

Mrs. Everett developed pancytopenia, a condition which inhibits bone-marrow

production of blood cells, and it was determined that it was no longer safe for her

to continue therapy. Mrs. Everett was placed into hospice care where, on April 11,

2019, she died from complications caused by mesothelioma.

Mrs. Everett filed a petition for damages on June 13, 2018, wherein she

alleged that more than thirty (30) named defendants were liable for damages for

Mr. Everett’s exposure to asbestos, which resulted in her own exposure. Shortly

after Mrs. Everett’s death, on April 15, 2019, a third supplemental and amending

petition was filed, which substituted her two natural children, Paula and William,

as plaintiffs in her stead and added allegations of wrongful death. Nearly three

years later, following a series of dismissals, consent judgments and settlements, a

few of the remaining defendants in the case filed motions for summary judgment.

On March 11, 2022, Union Carbide Corporation (“Union Carbide”), Riley

Power, Inc. (“Riley Power”), and Foster Wheeler filed separate motions for

summary judgment, with a hearing originally scheduled for April 29, 2022.

Following, on March 22, 2022, the district court, sua sponte, reset the hearing date

to April 14, 2022. Each of these motions were premised on two common bases:

(1) the defendants’ expert witness, Dr. Allen Gibbs, had produced a written report

in which he opined that Mrs. Everett’s mesothelioma was developed spontaneously

and was not related to asbestos exposure, and the Everetts had failed to provide any

expert reports to contradict this opinion; and (2) even assuming that Mrs. Everett’s

2 Mrs. Everett received her last chemotherapy treatment on June 27, 2018.

3

mesothelioma was a result of asbestos exposure, the Everetts had not provided any

proof of specific causation that could directly attribute that exposure to Union

Carbide, Riley Power or Foster Wheeler.

The Everetts timely filed an Opposition to Summary Judgment in Causation

by Foster Wheeler, Union Carbide and Riley Power on March 23, 2022. In their

opposition, the Everetts pointed out that the defendants had taken the deposition of

Dr. Larned on April 12, 2019, in which she espoused the opinion that Mrs.

Everett’s mesothelioma was caused by asbestos exposure, thereby, they argued,

creating a genuine issue of material fact.3 The Everetts also noted in the opposition

that the defendants would be taking the deposition of Dr. Victor Roggli prior to the

new hearing date and that the Everetts intended to supplement their opposition.

Union Carbide and Foster Wheeler each filed a reply memorandum on April

08, 2022, while Riley Power filed a motion to join and adopt Foster Wheeler’s

reply, which was granted by the district court on April 12, 2022. These reply

memoranda again re-urged the argument that the Everetts had failed to provide any

proof as to specific causation, although they conceded that Dr. Larned’s deposition

testimony potentially spoke to the issue of general causation. Also on April 12,

2022, the Everetts filed a Supplemental Opposition to Union Carbide’s Motion for

Summary Judgment on Causation. Here, the Everetts used the deposition

testimony of Dr. Roggli to bolster their assertion that there could be a causal

connection between Mr. Everett’s possible asbestos exposure and Mrs. Everett’s

subsequent mesothelioma diagnosis. More importantly, the Everetts explained that

their industrial hygienist, Gerald Baril, had been deposed by Union Carbide on

April 7, 2022, but that his testimony had not yet been transcribed. According to

3 The transcript of Dr. Larned’s deposition testimony was attached to the Everetts’ opposition.

4

the Everetts, Mr. Baril’s testimony would demonstrate that “[n]o counsel will deny

Baril identified exposure from their fault as a substantial contributing factor.”

On April 13, 2022, one day before the hearing on the other motions for

summary judgment, Peter Kiewit, Mr. Everett’s former employer, filed a motion to

join Union Carbide’s motion for summary judgment. The hearing on the rule to

show cause for the motion to join was set for 9:00 a.m. on April 14, 2022, the same

day as the hearing set for Union Carbide, Riley Power and Foster Wheeler’s

motions for summary judgment. Additionally, on April 13, 2022, Union Carbide

filed an objection to plaintiffs’ untimely supplemental opposition, arguing that its

filing two days before the hearing did not comport with the directives of La. C.C.P.

art 966(B)(2). On the morning of the hearings, before argument commenced on

the motions for summary judgment, the district court denied Union Carbide’s

objection. After hearing the arguments of counsel, the court rendered judgment in

favor of Union Carbide, Riley Power and Foster Wheeler, dismissing all claims

against those parties with prejudice. This judgment was signed on May 4, 2022. A

separate judgment was signed on May 4, 2022, which granted Peter Kiewit’s

motion to join Union Carbide’s motion for summary judgment, and dismissed all

claims against them with prejudice.

The Everetts filed a motion for new trial on May 12, 2022. Amongst the

various exhibits attached to this motion, the Everetts included portions of the

deposition transcript of Mr. Baril, the industrial hygienist, as well as a report

produced by Mr. Baril. In this report, Mr. Baril opined that “Union Carbide, Peter

Kiewit, Riley Power, and Foster Wheeler failed to take necessary and required

actions to protect William Everett during the years that he was exposed to

asbestos.” Further, “[a]s a result of the inaction of these companies, Emily Everett

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sustained para-occupational exposures to asbestos that significantly increased her

risk of developing mesothelioma.” On May 13, 2022, the district court summarily

denied the Everetts’ motion for new trial.

A Motion for Devolutive Appeals was timely filed by the Everetts on June 7,

2022. The Everetts sought to appeal the summary judgments in favor of Union

Carbide, Riley Power, Foster Wheeler and Peter Kiewit in addition to the denial of

the motion for new trial. Prior to the docketing in this Court of the instant

consolidated appeal, the Everetts reached extra-judicial agreements with Union

Carbide and Riley Power, and filed joint motions to dismiss the Everetts’ appeal in

relation to each of them, respectively; therefore, our review is limited to the

summary judgments granted in favor of Foster Wheeler and Peter Kiewit and the

denial of the motion for new trial.

STANDARD OF REVIEW

“This Court reviews the granting of ‘[a] summary judgment on appeal de

novo, using the same criteria that govern the [district] court’s determination of

whether summary judgment is appropriate.’” Cooper v. Brisco, 22-0196, p. 4 (La.

App. 4 Cir. 10/18/22), ___So.3d____, ____, 2022 WL 10320651 at *2 (quoting

Planchard v. New Hotel Monteleone, LLC, 21-00347, pp. 2-3 (La. 12/10/21), 332

So.3d 623, 625). “Generally, on a motion for summary judgment, the burden of

proof remains with the mover.” Id. “But, if the moving party will not bear the

burden of proof on the issue at trial and identifies an absence of factual support for

one or more elements essential to the adverse party’s claim, action, or defense,

then the non-moving party must produce factual support sufficient to counter that

assertion and establish that he will be able to satisfy his evidentiary burden of

proof at trial.” Id. (citing La. C.C.P. art. 966(D)(1)). “However, if the opponent of

6

the motion cannot do so, there is no genuine issue of material fact and summary

judgment will be granted.” Id. (quoting Ely Edwards Enterprises, Inc. v.

Pontchartrain Park CDC Real Estate Holdings, LLC, 21-0623, pp. 5-6 (La. App. 4

Cir. 4/13/22), 338 So.3d 50, 53).

Generally, “the denial of a motion for new trial is not a final, appealable

judgment.” New Orleans Fire Fighters Pension and Relief Fund v. City of New

Orleans 17-0320, p. 5 (La. App. 4 Cir. 3/21/18), 242 So.3d 682, 688 n.12 (citing

9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C., 15-686, p. 4 (La. App. 5

Cir. 2/24/16), 187 So.3d 522, 524). “‘However, an appellate court may consider

interlocutory judgments, such as the denial of a motion for new trial, as part of an

unrestricted appeal from a final judgment.’” Id. (quoting Henry v. Sullivan, 16-

0564, p. 7 (La. App. 1 Cir. 7/12/17), 223 So.3d 1263, 1272). Accordingly, we will

include an examination of the denial of the Everetts’ motion for new trial together

with our de novo review of the summary judgments granted in favor of Foster

Wheeler and Peter Kiewit.

DISCUSSION

The Everetts raise four assignments of errors, which they believe the district

court committed, that we summarize as follows: (1) the district court erred by

allowing the movers to expand their pleadings to include arguments on specific

causation, which was not included in the original motions; (2) the district court

erred by not granting a continuance at the summary judgment hearing after

allowing the movers to expand the issues in contention; (3) the district court

abused its discretion by summarily denying their motion for a new trial without a

contradictory hearing; and (4) the district court erred in granting an untimely filed

motion to join summary judgment in favor of Peter Kiewit which did not include

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any facts or evidence specific to Peter Kiewit, and with which the Everetts were

not properly served or given notice. We shall address each assigned error in the

order we deem most efficient, in turn.

Peter Kiewit’s Motion for Summary Judgment

The Everetts assert Peter Kiewit’s motion to join Union Carbide’s motion

for summary judgment was untimely and there is no evidence that the Everetts

were ever served with this motion as required under La. C.C.P. arts. 966(B) and

966(B)(1). In opposition, Peter Kiewit argues that the district court was correct in

granting their motion to join Union Carbide’s motion for summary judgment

because the exposures alleged against Union Carbide and Peter Kiewit were

identical, and that considering separate motions for summary judgment could

potentially lead to inconsistent judgments. Further, Peter Kiewit maintains that the

Everetts effectively waived their objection to the motion to join because they did

not file a written objection prior to the April 14, 2022 hearing, nor did they object

to the motion to join at the April 14, 2022 hearing; consequently, Peter Kiewit

asserts, the Everetts have only raised their objection to the motion to join on appeal

without reserving their right to do so.

La. C.C.P. arts. 966(B) and 966(B)(1) provide:

B. Unless extended by the court and agreed to by all of the parties, a
motion for summary judgment shall be filed, opposed, or replied to in
accordance with the following provisions:

(1) A motion for summary judgment and all documents in support of
the motion shall be filed and served on all parties in accordance with
Article 1313 not less than sixty-five days prior to the trial.

La. C.C.P. art 1313 provides, in relevant part:

A. Except as otherwise provided by law, every pleading subsequent to
the original petition, and every pleading which under an express

8

provision of law may be served as provided in this Article, may be
served either by the sheriff or by:
***
(4) Transmitting a copy by electronic means to counsel of record, or if
there is no counsel of record, to the adverse party, at the number or
addresses expressly designated in a pleading or other writing for
receipt of electronic service. Service by electronic means is complete
upon transmission but is not effective and shall not be certified if the
serving party learns the transmission did not reach the party to be
served.
***
C. Notwithstanding Paragraph A of this Article, if a pleading or order
sets a court date, then service shall be made by registered or certified
mail or as provided in Article 1314, by actual delivery by a
commercial courier, or by emailing the document to the email address
designated by counsel or the party. Service by electronic means is
complete upon transmission, provided that the sender receives an
electronic confirmation of delivery.

Peter Kiewit filed its motion to join on April 13, 2022, one day before the

scheduled summary judgment hearing it sought to join. In addition, Peter Kiewit

also requested its own hearing on a rule to show cause why its motion to join

should not be granted. On April 14, 2022, the district court signed the rule to show

cause, setting the hearing for that same day at 9:00 a.m.

First, we recognize that it is common practice amongst co-defendants

engaged in complex litigation to join or adopt other co-defendant’s motions for

summary judgment. However, our reading of La. C.C.P. art. 966(B)(1) makes no

provision for the filing of a motion to join a motion for summary judgment less

than sixty-five (65) days prior to the trial, which we find to be synonymous with

filing a motion for summary judgment.

Our Supreme Court recently discussed an analogous issue in Auricchio v.

Harriston. In that case, the Court was called upon to determine whether a district

court had discretion to allow an untimely filed opposition to a motion for summary

judgment. When discussing the time delays for filing an opposition, found in La.

9

C.C.P. art. 966(B)(2),4 the Court reasoned that “[t]he clear and unambiguous

language of Article 966(B)(2) says that, absent the consent of the parties and the

court, an opposition shall be filed within the fifteen-day deadline established by the

article. The word ‘shall’ is mandatory.” Auricchio v. Harriston, 20-01167, p. 4

(La. 10/10/21) 332 So.3d 660, 663 (emphasis in original) (citing La. R.S. 1:3).

“Under well-established rules of interpretation, the word ‘shall’ excludes the

possibility of being ‘optional’ or even subject to ‘discretion,’ but instead means

‘imperative, of similar effect and import with the word ‘must.’” Id. (quoting

Louisiana Fed'n of Tchrs. v. State, []13-0120, p. 26 (La. 5/7/13), 118 So.3d 1033,

1051). “Summary judgments are intended ‘to secure the just, speedy, and

inexpensive determination of every action.’” Id. (quoting La. C.C.P. art.

966(A)(2)). Further, “[l]imiting judicial discretion by setting a firm deadline for

filing an opposition furthers this end. That is a rational legislative choice and must

be applied as written.” Id.

The Auricchio Court went on to explain that prior to a revision in 2015, La.

C.C.P. art. 966(B) allowed that “[f]or good cause, the court shall give the adverse

party additional time to file a response, including opposing affidavits or

depositions.” However, “[b]y removing the discretionary language and replacing it

with mandatory language, we must assume the legislature intended to change the

law to eliminate the previously afforded discretion.” Id. “‘[W]hen the legislature

changes the wording of a statute, it is presumed to have intended a change in the

law.’” Id. (quoting Borel v. Young, []07-0419, p. 13 (La. 11/27/07), 989 So.2d 42,

4 La. C.C.P. 966(B)(2) provides:

(2) Any opposition to the motion and all documents in support of the opposition
shall be filed and served in accordance with Article 1313 not less than fifteen days
prior to the hearing on the motion.

10

57). Whether, in the case sub judice, the plaintiffs were prejudiced is of no

moment because “[t]he statute mandates compliance without regard to cause or

prejudice.” Id. at p. 5, 332 So.3d at 663.

Similarly, the previous version of La. C.C.P. art. 966(B)(1) deferred to

District Court Rule 9.9 for its time delays for filing a motion for summary

judgment, but the 2015 amendment to this article specifically set forth the rule that,

unless extended by the court and agreed to by all of the parties, a motion for

summary judgment shall be filed not less than sixty-five days prior to the trial.

Therefore, using the Auricchio Court’s approach of strictly construing La. C.C.P.

art. 966(B)(1), we find that the district court abused its discretion when it allowed

Peter Kiewit to file its motion to join Union Carbide’s summary judgment the day

before the summary judgment hearing, and only thirty-two (32) days before the

trial, scheduled for May 16, 2022.

Second, Peter Kiewit’s rule to show cause order contains a notation stating:

“Service to be accomplished pursuant to La. C.C.P. Art. 1313 via email with

Delivery Receipt Requested.” However, the record does not contain a

confirmation of delivery as mandated under La. C.C.P. art. 1313(C). As a result,

we have no evidence that service of the motion to join was properly served on the

Everetts.5 This Court has held that “[a] judgment rendered against a defendant

who has not been served with process as required by law is an absolute nullity, and

the judgment shall be annulled.” Gordon v. A-1 St. Bernard Taxi & Delivery, 17-

0048, p. 6 (La. App. 4 Cir. 8/9/17), 226 So.3d 494, 498 (citing La. C.C.P. art.

5 Cf. Steib v. Lamorak, 20-0424, p.7 (La. App. 4 Cir. 2/3/21), ___ So.3d ____, 2021 WL 503240

at *3, where this Court found that an ex parte motion to join in a motion for summary judgment
that did not request a hearing did not trigger the requirements of La. C.C.P. art. 1313(C).

11

2002(A)(2);6 see also Brown v. Unknown Driver, 05-0421, p. 11 (La. App. 4 Cir.

1/18/06), 925 So.2d 583, 590).

Finally, our review of the record leads us to the inference that the district

court did not conduct a hearing on Peter Kiewit’s motion to join Union Carbide’s

summary judgment. Instead, counsel for Peter Kiewit simply made an appearance

at the summary judgment hearing on April 14, 2022, and offered nothing more

than a request to adopt all of Union Carbide’s arguments in favor of summary

judgment. Considering the facts and circumstances surrounding this sequence of

events and the absence of a hearing on the motion to join, we do not find that the

Everetts waived their objection to Peter Kiewit’s late-filed motion to join Union

Carbide’s motion for summary judgment. As a result, we conclude that the district

court erred when it granted Peter Kiewit’s motion to join and dismissed it from the

matter with prejudice.

Foster Wheeler’s Motion for Summary Judgment

It is the Everetts’ contention that Foster Wheeler’s motion for summary

judgment only contained allegations pertaining to general causation, and that it was

only in its reply that Foster Wheeler sought to raise the issue of specific causation.

To the contrary, Foster Wheeler adamantly asserts that its motion for summary

judgment raised the issue of specific causation. We agree. Our reading of Foster

Wheeler’s motion for summary judgment clearly shows that Foster Wheeler

alleged that the Everetts could not prove that any potential asbestos exposure

experienced by Ms. Everett could be attributed to them. In its memorandum in
6 La. C.C.P. art 2002 provides in pertinent part:

A. A final judgment shall be annulled if it is rendered:

***
(2) Against a defendant who has not been served with process as required by law and who has
not waived objection to jurisdiction. . .

12

support of the motion for summary judgment, Foster Wheeler explicitly asserted

“there is no genuine issue of material fact to try with respect to specific causation

and Plaintiffs’ claims against Foster Wheeler fail as a matter of law, warranting

their dismissal, with prejudice.”

“The requirement in an asbestos case that the plaintiff establish causation

has been characterized as the ‘premier hurdle.’” Steib, 20-0424, p. 10, 2021 WL

503240 at *5 (quoting Rando v. Anco Insulations Inc., 08-1163, 08-1169, p. 31

(La. 5/22/09), 16 So.3d 1065, 1088). “‘[N]otwithstanding the difficulty of proof

involved, a plaintiff’s burden of proof against multiple defendants in a long-latency

case, such as a tort claim for mesothelioma, is not relaxed or reduced because of

the degree of difficulty that might ensue in proving the contribution of each

defendant’s product to the plaintiff’s injury.’” Id. (quoting Rando 08-1163, 08-

1169, pp. 35-36, 16 So.3d at 1091). “At the summary judgment stage, a plaintiff

must submit specific evidence showing potential exposure to asbestos-containing

materials for which the defendant is responsible in order to defeat the defendant’s

motion for summary judgment.” Id. at p. 12, 2021 WL 503240 at *6 (citing

Thibodeaux v. Asbestos Corp., Ltd., 07-0617, p. 14 (La. App. 4 Cir. 2/20/08), 976

So.2d 859, 867).

Therefore, as Foster Wheeler pointed out in its motion for summary

judgment, it was incumbent upon the Everetts to demonstrate that not only was

there a genuine issue of material fact whether Mrs. Everett’s mesothelioma was

possibly caused by asbestos exposure, but also that the asbestos exposure was

directly attributable to Foster Wheeler. Although the burden of proof initially

rested with Foster Wheeler, once it pointed out there was a lack of factual support

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for the Everetts’ allegations specific to Foster Wheeler, the burden shifted to the

Everetts to demonstrate otherwise (see La. C.C.P. art. 966(D)(1)).7

In determining whether a genuine issue of material fact exists, “[t]he court

may only consider those documents filed in support of or in opposition to the

motion for summary judgment and shall consider any documents to which no

objection is made.” La. C.C.P. art. 966(D)(2). Here, the Everetts provided a few,

short excerpts from the deposition testimonies of Dr. Larned, Mrs. Everett and Mr.

Everett. While those documents could arguably lead to the conclusion that there

was a genuine issue of material fact as to whether Mrs. Everett’s mesothelioma

was related to asbestos exposure, neither the Everetts’ argument nor the attached

documents pointed directly to any of Foster Wheeler’s products as being a

substantial factor in any alleged exposure to asbestos by Mr. or Mrs. Everett.

Accordingly, we conclude that there was no error in the district court’s finding that

no genuine issue of material fact existed as to Foster Wheeler’s liability, and it was

proper to grant its motion for summary judgment.

Motion for Continuance

The Everetts contend that the district court should have granted them a

continuance at the summary judgment hearing based upon the grounds that they

7 La. C.C.P. art. 966(D)(1) provides:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear
the burden of proof at trial on the issue that is before the court on the motion for
summary judgment, the mover’s burden on the motion does not require him to
negate all essential elements of the adverse party’s claim, action, or defense, but
rather to point out to the court the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense. The burden is
on the adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not entitled to
judgment as a matter of law.

14

were surprised by a new theory related to specific causation.8 This argument is not

persuasive. As we previously discussed, Foster Wheeler’s motion for summary

judgment explicitly set forth that the Everetts failed to present any evidence that

exposure to asbestos attributable to Foster Wheeler, if any, was a substantial factor

in the development of Mrs. Everett’s peritoneal mesothelioma.

Motion for New Trial

The Everetts aver that good ground exists for a new trial for two reasons: (1)

because of ill practices perpetrated by Foster Wheeler—again referencing their

claim that summary judgment was granted on an issue raised outside of Foster

Wheeler’s original motion for summary judgment; and (2) the Everetts provided an

extensive twenty-six (26) page memorandum in support of the motion for new trial

to which they attached twenty-three (23) exhibits addressing specific causation.

For the reasons stated above, we disagree with the Everett’s first assertion;

however, we find their second to hold some merit.

In the case sub judice, the Everetts’ motion for new trial was summarily

dismissed ex parte and without a contradictory hearing. This Court has recognized

that “‘there is no absolute right to a contradictory hearing on a motion for new

trial.’” Edgefield v. Audubon Nature Institute, Inc., 17-1050, p. 4 (La. App. 4 Cir.

9/12/18), 318 So.3d 65, 69 (quoting Waters v. Allstate Ins. Co., 98-0590 (La. App.

4 Cir. 3/31/99), 731 So.2d 1001, 1004), rev’d on other grounds, 18-1782 (La.

1/18/19), 261 So.3d 776 (Mem).9 Further, “‘a jurisprudential exception has

developed whereby a motion for new trial may be summarily denied in the absence
8 It is arguable whether the Everetts’ counsel’s request for twenty-four (24) hours to amend the

opposition constituted an actual motion for continuance.
9 The Supreme Court held that the court of appeal erred in converting relator’s timely appeal to

an application for supervisory writs and therefore vacated and set aside the judgment of the
appellate court, and remanded it back to that court in order to consider the appeal on the merits.

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of a clear showing in the motion of facts or law reasonably calculated to change the

outcome or reasonably believed to have denied the applicant a fair trial.’” Id. at

pp. 4-5, 318 So.3d at 69 (quoting Lopez v. Wal-Mart Stores, Inc., 94-2059, p. 9

(La. App. 4 Cir. 8/13/97), 700 So.2d 215, 220). “‘As a general rule, the trial court

may summarily deny a motion for new trial if the motion simply reiterates issues

thoroughly considered at trial.’” Id. at p. 5, 318 So.3d at 69 (quoting Autin v.

Voronkova, 15-0407, p. 5, 177 So.3d 1067, 1070).

It is quite clear from the record that throughout the proceedings, the

Everetts’ counsel failed to grasp that Foster Wheeler pointed out the lack of

evidence of specific causation in its motion for summary judgment, or that he was

required to address this issue at the summary judgment phase. This error was fatal

to the Everetts’ efforts to defend against Foster Wheeler’s summary judgment

motion. “La. C.C.P. art. 1973 provides the trial court with discretionary authority

to grant a new trial ‘in any case if there is good ground therefor, except as

otherwise provided by law.’” Warren v. Shelter Mutual Insurance Company, 16-

1647, p. 14 (La. 10/18/17), 233 So.3d 568, 579. “When the trial judge is

convinced by his examination of the facts that the judgment would result in a

miscarriage of justice, a new trial should be ordered pursuant to La. C.C.P. art.

1973.” Id. at pp. 14-15, 233 So.3d at 579

In Smith v. Alliance Compressors, the appellate court found that in failing to

grant a new trial under La. C. C. P. art. 1973, the district court abused its discretion

because it “focused on the technical application of the law, without giving due

regard to the inherent injustice the losing party would suffer because of the

unilateral negligence of [plaintiff’s] lawyer.” Smith v. Alliance Compressors, 05-

855, p. 9 (La. App. 3 Cir. 2/1/06), 922 So.2d 674, 680 (citing Lamb v. Lamb, 430

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So.2d 51, 53 (La. 1983), wherein that court reasoned that “[w]hen the trial judge is

convinced by his examination of the facts that the judgment would result in a

miscarriage of justice, a new trial should be ordered.”). The Smith court went on to

explain that there is a great “need for the reviewing court to exercise particular

caution in examining the circumstances underlying judgments that summarily deny

the opportunity for a decision on the merits in an action due to the inherent

injustice that can be affected if the litigant is not responsible for the failure.” Id. at

p. 11, 922 So.2d at 681 (citing Hardy v. Kidder, 292 So.2d 575 (La. 1973)).

In the case sub judice, we hold that there were sufficient grounds for the

district court to hold a contradictory hearing on the motion for new trial rather than

summarily dismissing the motion. We further find that a potential miscarriage of

justice exists for the Everetts based upon their counsel’s error. It is unclear from

the record when the Everetts retained the services of Mr. Baril, the industrial

hygienist, but it is likely that the report he produced and which counsel attached to

the motion for new trial creates a genuine issue of material fact as to specific

causation. In fact, Foster Wheeler was well aware of Mr. Baril’s testimony because

it had participated in taking his deposition on April 7, 2022, one week before the

summary judgment hearing. Additionally, the other attached exhibits give a clearer

picture of Mr. Everett’s work history and potential exposure to asbestos. Our

review of the record in its entirety demonstrates that the record is replete with

documentation that could have been attached to the Everetts’ opposition to Foster

Wheeler’s motion for summary judgment rather than the mere twenty-four (24)

pages of deposition testimony excerpts. Notwithstanding that discovery was still

ongoing and the date of the summary judgment hearing was moved forward by two

weeks, it was the error of counsel in not properly identifying all of the allegations

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to defend against which left the district court with no choice but to grant Foster

Wheeler’s motion for summary judgment.

However, as the appellate court emphasized in Smith, “it would serve an

injustice to allow a judgment resulting in the dismissal of an action to stand, in a

case in which reasonable reliance by a party upon a neglectful attorney caused, or

contributed to, the resulting decision.” Smith, 05-855, p. 12, 922 So.2d at 682.

“When the record of a suit discloses enough to satisfy the court that the whole

story of the case is not told, that essential facts have not been given in evidence and

important documents have been omitted, and that substantial justice cannot be

done between the parties in the state of the record as filed here, the court will, in its

discretion, in the interest of justice, remand the case.” Id. “[W]here an injustice is

done and substantial rights are lost through mere technicalities, it is our duty to

interfere.” Id. at p. 11, 922 So.2d at 681. Accordingly, we find the district court

abused its discretion when it summarily denied the Everetts’ motion for new trial;

therefore, we reverse the district court’s denial of the Everetts’ motion for new trial

and we remand this matter back to the district court for a contradictory hearing on

a motion for a new trial on Foster Wheeler’s motion for summary judgment.

Answers to Appeal

Foster Wheeler and Peter Kiewit each filed answers to this appeal seeking

reversal of the district court’s judgment, which overruled Union Carbide’s

objection to plaintiffs’ supplemental opposition. In its brief to this Court, Foster

Wheeler seeks to dismiss their appeal regarding the supplemental opposition on the

grounds that the opposition was only directed towards Union Carbide. We agree.

Accordingly, because Union Carbide has been dismissed from this action, we

dismiss these appeals as moot.

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DECREE

For the foregoing reasons, we reverse the district court’s judgment granting

Peter Kiewit’s motion for summary judgment, affirm the district court’s judgment

in favor of Foster Wheeler’s motion for summary judgment, reverse the district

court’s denial of the Everetts’ motion for a new trial, dismiss Foster Wheeler’s and

Peter Kiewit’s Answer to Appeal, respectively, and remand this matter back to the

district court for a contradictory hearing on the motion for new trial on Foster

Wheeler’s motion for summary judgment.

REVERSED IN PART; AFFIRMED IN PART;
ANSWERS TO APPEAL DISMISSED
AND REMANDED

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