Document mBwReLK7e0yVgZr9bn9q7jrKJ

Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 1 of 27 UN ITED STATES D ISTR IC T CO U R T EA STERN D ISTR IC T O F LOUISIA NA C A L L E N D E M P S T E R , et al. CIV IL A CTION VERSUS CA SE NO. 20-95 L A M O R A K IN SU R A N C E C O ., et al. SEC TIO N : " G " (1) ORDER AND REASONS B efore the Court is D efendant H untington Ingalls Incorporated (f/k/a N orthrop G rum m an Shipbuilding, Inc., f/k/a N orthrop Grum m an Ship Systems, Inc., f/k/a Avondale Industries, Inc., and f/k/a Avondale Shipyards, Inc.) ("Avondale") "M otion for Partial Sum mary Judgm ent on Plaintiffs' Intentional Tort, Fraud and Concealm ent Claim s." 1 In this litigation, Plaintiffs Louise Ella Simon Dem pster, Tanna Faye Dem pster, Steven Louis Dem pster, Janet Dem pster M artinez, M arla D em pster Loupe, Callen D em pster, Jr., A nnette D em pster Glad, and B arnett D em pster's (collectively, "Plaintiffs") allege that D ecedent Callen L. D em pster ("D ecedent") w as exposed to asbestos and asbestos-containing products that w ere designed, m anufactured, sold, and/or supplied by a num ber o f D efendant com panies while Decedent w as employed by A vondale.2 In the instant motion, Avondale argues that Plaintiffs' intentional tort survival claims should be dismissed because Plaintiffs cannot show that Avondale either (1) consciously desired that D ecedent contract 1 Rec. Doc. 31. 2 See Rec. Doc. 1-2; Rec. Doc. 1-8. In particular, Plaintiffs bring claims against Lamorak Insurance Company, Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett, Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler LLC, General Electric Co., Hopeman Brothers, Inc., McCarty Corporation, Taylor-Seidenbach, Inc., CBS Corporation, Uniroyal, Inc., International Paper Company, Houston General Insurance Company, Berkshire Hathaway Specialty Insurance Company, Northwest Insurance Company, United Stated Fidelity and Guaranty Company, Fist State Insurance Company, The American Insurance Company, Louisiana Insurance Guaranty Association, and the Traveler's Indemnity Company. Rec Doc. 1-8 at 2-3. 1 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 2 of 27 lung cancer or (2) knew th at D ec e d e n t's lung can cer w as substantially certain to o ccu r. 34H aving considered the motion, the m em oranda in support and in opposition, the record, and the applicable law, the Court denies the motion. I. B ackground A. Factual Background In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to 1 9 9 4 .4 During that time, Plaintiffs aver that D ecedent was exposed to asbestos and asbestos- containing products in various locations and w ork sites, resulting in D ecedent breathing in asbestos fibers and later developing asbestos-related cancer.5 Plaintiffs assert strict liability and negligence claims against various D efendants.6 Specifically, Plaintiffs allege that: All asbestos companies had care, custody, and control o f the asbestos, which asbestos was defective and which presented an unreasonable risk o f harm, which asbestos resulted in the injury o f [Decedent] and for which these defendants are liable under Louisiana law. How ever, w ith regard to Avondale and its executive officers, they are liable because they failed to properly handle and control the asbestos which w as in their care, custody, and control. Petitioners are not alleging that Avondale and its executive officers are liable for the mere use o f asbestos; rather, Avondale and its executive officers are liable for the misuse o f asbestos, including but not limited to the failure to w arn o f the hazardous nature and dangers o f asbestos and for the failure to take and implement reasonably safe and industrial hygiene measures, failure to train, and failure to adopt safety procedures for the safe installation and rem oval o f asbestos.7 B. Procedural Background D ecedent filed a "Petition for D am ages" in the Civil D istrict Court for the Parish o f 3 Rec. Doc. 31-1 at 1-2. 4 Rec. Doc. 1-2 at 5. 5 Id. 6 Id. at 7-8. 7 Id. 2 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 3 of 27 Orleans, State of Louisiana, on March 14, 2018.8 Defendants Huntington Ingalls Incorporated, Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the "Avondale Interests") removed the case to the United States District Court for the Eastern District of Louisiana for the first time on June 21, 2018.9In the first notice of removal, Avondale Interests alleged that removal was proper because this is an action "for or relating to conduct under color o f federal office commenced in a state court against persons acting under one or more federal officers within the meaning o f 28 U.S.C. 1442(a)(1)."10 On January 7, 2019, this Court remanded the case to the Civil District Court for the Parish of Orleans.11 The Court found that Defendants presented no evidence that Decedent came into contact with asbestos aboard a government vessel, and thus, no federal interest was implicated.12 Alternatively, even accepting Defendants' argument that Decedent came into contact with asbestos aboard a government vessel as true, the Court did not find that the necessary causal nexus existed between Federal Government action and Decedent's claims.13This determination was based on the fact that Decedent brought negligence claims, rather than strict liability claims, against Avondale Interests.14Defendants did not appeal the January 7, 2019 Order. Decedent passed away on November 24, 2018, and a First Supplemental and Amending8910234 8Id. at 2-3 9 Case No. 18-6158, Rec. Doc. 1 at 2. 10 Id. 11 Case No. 18-6158, Rec. Doc. 89. 12Id. at 31. 13 Id. 14 Id. at 36-37. The January 7, 2019 Order predated the Fifth Circuit's en banc decision in Latiolais v. Huntington Ingalls, Inc., overruling prior precedent and holding that Avondale was entitled to remove a negligence case filed by a former Navy machinist because of his exposure to asbestos while the Navy's ship was being repaired at the Avondale shipyard under a federal contract. 951 F.3d 286, 289 (5th Cir. 2020). 3 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 4 of 27 Petition for D am ages w as filed in state court substituting D ecedent's heirs as Plaintiffs on January 17, 2 019.15 Trial w as scheduled to begin b efore the state trial court on January 13, 2020. 16 The am ended p etitio n does not purport to assert any strict liability claim s against A v o n d ale. 17 On January 9, 2020, A vondale rem oved the case to the U nited States D istrict Court for the E astern D istrict o f L ouisiana for a second tim e . 18 In th e second notice o f rem oval, A vondale once again alleged that rem oval is proper because this is an action "for or relating to conduct under color o f federal office comm enced in a state court against persons acting under one or more federal officers w ithin the m eaning o f 28 U .S.C . 1442(a)(1)." 19 In the second notice o f rem oval, Avondale contended that the jury interrogatories, jury charges, and Pre-Trial Order filed by Plaintiffs in state court directly contradicted D ecedent's prior representation in federal court that he w as n o t asserting strict liability claim s against A v o n d ale. 20 O n January 10, 2020, P laintiffs filed an "E m erg en cy M o tio n to R em and" 21 and an "E x P arte M otion for E x p ed ited H earin g and for E m erg en cy R u lin g ." 22 On January 28, 2020, the Court denied the motion to remand, finding that this case was properly rem oved to this C ourt u n d er the federal o fficer rem oval statu te.23 Specifically, th e C ourt 15 Rec. Doc. 1-8. 16 Rec. Doc. 1-12. 17 Rec. Doc. 1-8. 18 Rec. Doc. 1. 19 Id. at 2. 20 Id. at 4-5. 21 Rec. Doc. 4. 22 Rec. Doc. 5. 23 Rec. Doc. 17. 4 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 5 of 27 found that the notice o f rem oval was tim ely filed and Plaintiffs' pretrial filings constituted a proper basis for th e second rem o v al. 24 A dditionally, the C ourt found th at A vondale m et the th ree-p art test for federal officer removal, namely, that (1) Avondale is a person within the m eaning o f the statute, (2) Avondale acted pursuant to a federal officer's directions and a causal nexus exists betw een its actions under color o f federal office and plaintiffs' claims, and (3) Avondale has a colorable federal defense to P lain tiffs' claim s u n d er th e gov ern m en t co n tracto r im m unity d efen se. 25 On February 18, 2020, A vondale filed the instant "M otion for Partial Sum m ary Ju d g m en t on P lain tiffs' Intentional Tort, F raud and C oncealm ent C laim s." 26 O n M arch 3, 2020, P laintiffs filed an opposition to th e instant m o tio n .27 A vondale, w ith leave o f Court, filed a reply b rie f in fu rth er support o f th e m otion on M arch 16, 2 0 2 0 .28 A t the req u est o f th e parties, th e C ourt heard oral argum ent on this m otion on M arch 11, 2020 at 2:00 p .m .29 II. P arties' A rgum ents A. Avondale's Argument in Support of the Motion In the instant motion, Avondale argues that Plaintiffs' intentional tort survival claims should be dismissed because Plaintiffs cannot show that Avondale either (1) consciously desired that D ecedent contract lung cancer or (2) knew that D ecedent's lung cancer w as substantially 24 Id. at 20-22. 25 Id. at 23-36. The January 28, 2020 Order also predated the Fifth Circuit's en banc decision in Latiolais. In Latiolais, the Fifth Circuit held that "to remove under section 1442(a), a defendant must show (1) it has asserted a colorable federal defense, (2) it is a "person" within the meaning of the statute, (3) that has acted pursuant to a federal officer's directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer's directions." 951 F.3d at 296. The Fifth Circuit overruled prior caselaw applying the "causal nexus" requirement to Section 1442(a) as amended in 2011. Id. 26 Rec. Doc. 31. 27 Rec. Doc. 91. 28 Rec. Doc. 130. 29 Rec. Doc. 135. 5 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 6 of 27 certain to o c c u r.30 A dditionally, A vondale argues th at P lain tiffs' intentional to rt w rongful death claims should be dismissed because Plaintiffs have no evidence that Avondale specifically intended for D ecedent to contract, and die from , lung can cer. 31 First, Avondale contends that under Louisiana law, to prevail on an intentional tort claim a plaintiff m ust show either: ( 1 ) that the defendant consciously desired the result or (2 ) that the defendant knew th at the result w as substantially certain to follow from its co n d u c t. 32 A vondale contends th at P laintiffs have no evidence to satisfy either p ro n g . 33 R egarding th e first prong, A vondale argues that there is no evidence that A vondale consciously desired for D ecedent to contract lung cancer and d ie. 34 A vondale contends th at th e L o u isian a Suprem e C ourt has previously identified allegations w hich do not qualify as intentional tort allegations, including the failure to provide a safe w o rking en v iro n m en t.35 A vondale argues th at P lain tiffs' allegations fall w ithin these previously identified categories that were deemed insufficient to constitute an intentional tort c la im . 36 Regarding the second prong, Avondale contends that Plaintiffs cannot show that Avondale knew th at D e c e d e n t's lung can cer w as substantially certain to follow from th eir co n d u c t. 37 A vondale argues that the "substantial certainty" test is not satisfied, even if the em ployer believes 30 Rec. Doc. 31-1 at 1-2. 31 Id. at 2. 32 Id. at 7 (citing Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208). 33 Id. at 8 . 34 Id. 35 Id. at 8-9. 36 Id. at 10. 37 Id. at 11. 6 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 7 of 27 th at an individual m ay, or even probably w ill, be injured by a w o rk p lace p rac tic e . 38 A vondale contends that here, "[P laintiffs' evidence consists o f a m isguided attempt to equate Avondale's know ledge th at asbestos w as hazardous w ith an intent th at [D ecedent] contract a d isease." 39 Furtherm ore, Avondale argues that the "substantial certainty" prong is not satisfied by the mere know ledge o f th e hazards o f asb esto s.40 A vondale contends th at P laintiffs cannot show th at D ecedent's contraction o f lung cancer w as the inevitable result o f his exposure to asbestos, p articularly considering D e c e d e n t's history o f sm o k in g . 41 T herefore, A vondale argues th at P laintiffs do not m eet th e " substantial certainty" p ro n g o f th e intentional to rt stan d ard . 42 Next, Avondale contends that district judges in the Eastern D istrict o f Louisiana and other Louisiana state courts have dismissed sim ilar intentional tort claims against Avondale as a m atter o f law . 43 A vondale argues th at the conduct alleged by P lain tiffs-- including th e failure to provide a safe place to work, the failure to provide hazard warnings, the failure to provide protective equipm ent and other safety m easures and the failure to conduct air m onitoring-- is the same type o f conduct th at other courts have rejected as in su fficien t to constitute an intentional to rt. 44 A vondale contends that an intentional tort claim against it m ust fail because there is no evidence to support a claim th at A vondale intended to injure its em p lo y ees. 45 38 Id. (citing Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208, 212-13). 39 Id. at 13. 40 Id. 41 Id. at 13-14. 42 Id. at 14. 43 Id. 44 Id. at 16. 45 Id. 7 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 8 of 27 Additionally, Avondale argues that P laintiff s fraud and concealm ent claims are intentional torts, and are therefore governed by the same standard discussed above-- that the defendant consciously desired th e injury o r believed w ith substantial certainty th at th e injury w ould o ccu r. 46 A vondale contends th at " [t]he basic elem ents o f a cause o f action for fraud are: `(l) a m isrepresentation, suppression, or om ission o f true inform ation; (2 ) the intent to obtain an unjust advantage or to cause damage or inconvenience to the other party; and (3) the resulting error must relate to a circum stance substantially influencing the other p a rty 's contractual co n sen t. ' " 47 Therefore, Avondale argues that here, Plaintiffs m ust show that (1) Avondale represented to D ecedent that asbestos w as safe, or (2) that Avondale suppressed inform ation from D ecedent, or (3) that Decedent was persuaded to accept employment with Avondale based on Avondale representations regarding asb esto s.48 A vondale contends th at P laintiffs w ill be unab le to offer evidence to support a claim o f fraud and co n cealm en t. 49 L astly, A vondale argues th at P lain tiffs' w ro n g fu l d eath claim s should be d ism issed . 50 A vondale contends that the Longshore and H arbor W orkers' C om pensation A ct ("LH W C A ") has an exclusive rem edy provision that elim inates all other causes o f action, except for a narrow, ju d ic ia lly created intentional to rt ex cep tio n . 51 Specifically, A vondale contends th at u n d er the L H W C A , th e defendant m ust show a specific intent to injure the em p lo y ee. 52 H ere, A vondale 46 Id. at 16-17. 47 Id. at 17 (citing Shelton v. Standard/700 Associates, 01-0587, p. 5 (La. 10/16/01), 798 So. 2d 60, 64). 48 Id. at 18. 49 Id. 50 Id. at 19. 51 Id. 52 Id. at 21. 8 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 9 of 27 argues that Plaintiffs' allegations constitute mere negligence and are therefore insufficient to satisfy th e specific intent exception to the L H W C A . 53 T herefore, A vondale argues th at Plaintiffs cannot carry th eir sum m ary ju d g m e n t b u rd en . 54 B. Plaintiffs'Argument in Opposition to the Motion In th e o pposition m em orandum , P laintiffs argue th at th e m otion should b e d en ied .55 First, P laintiffs argue th at this m otion w as already denied by th e state court trial ju d g e . 56 P laintiffs contend that the Court should only reconsider motions sparingly, where, for example, there exists new ly discovered evidence o r a change in the law .57 B ecause th o se conditions do not exist here, P laintiffs argue th at th e m otion should be denied on th at basis alo n e . 58 In response to A v o n d ale's argum ent that various district courts have granted motions for summary judgm ent in similar circum stances, P laintiffs contend th at th o se cases are factually distinguishable from th e case h e re . 59 N ext, Plaintiffs argue that a m otion for sum m ary judgm ent is inappropriate w here the case turns on intent or knowledge, because those determinations are inherently a question o f fact which tu rn s on cred ib ility . 60 A dditionally, P lain tiffs contend th at the F ifth C ircuit has recognized th at intent is established w here an em ployer continues to expose an em ployee to a toxic substance while 53 Id. 54 Id. 55 Rec. Doc. 91 at 1. 56 Id. at 2. 57 Id. 58 Id. 59 Id. 60 Id. at 3 (citing Pacific Ins. Co., Ltd. v. Louisiana Auto Dealers A ss'n, 273 F.3d 392 (5th Cir. 2001); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 n. 3 (5th Cir. 1993); International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257 (5th Cir. 1991)). 9 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 10 of 27 th at em ployee w as already w as suffering from a lung d isease. 61 Plaintiffs argue th at th ere is am ple evidence which shows that the conduct o f the Avondale caused D ecedent to be exposed to asb esto s.62 F urtherm ore, P laintiffs contend th at sum m ary ju d g m e n t is n o t appropriate on an intentional to rt claim .63 P laintiffs argue th at A v o n d ale's reliance on Z im ko v. A m erica n C ya n a m id is m isplaced because th at case involved a decision after a trial on the m erits. 64 Plaintiffs contend that under Louisiana law, the intent required is not necessarily hostile, but merely an intent to bring about a result which will invade the interests o f another in a w ay that th e law fo rb id s.65 R esponding to A v o n d ale's argum ent th at P lain tiffs' w rongful d eath claim s are governed by the LH W C A standard, Plaintiffs argue that they have elected Louisiana state law rem edies, rather than w orker's com pensation benefits, and that therefore, the L H W C A does not preem pt p lain tiffs' state law claim s. 66 Plaintiffs contend that Avondale and its executive officers knew o f the hazards o f asbestos and w ere substantially certain th at disease w o u ld o c c u r. 67 Plaintiffs argue th at D anny Joyce, A vondale's corporate representative and industrial hygiene expert, confirmed that A vondale had knowledge o f governm ent regulations as early as the 1940s o f the dangers associated with asb esto s.68 Specifically, P laintiffs contend th at M inim um S tandards req u irem en ts show th at the 61 Id. 62 Id. at 4-5 (citing Rec. Docs 91-12, 91-17, 91-18, 91-19). 63 Id. at 5-6. 64 Id. at 5 (citing Zimko v. American Cyanamid, 03-658 (La. App. 4 Cir. 6/8/05), 905 So. 2d 465). 65 Id. at 6 (citing Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987)). 66 Id. at 7-8. 67 Id. at 8 . 68 Id. (citing Rec. Docs 91-44, 91-19). 10 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 11 of 27 Avondale executive officers knew o f the dangers o f asbestos, as well as the safety controls necessary to protect w orkers, as early as the 1940s.69 Plaintiffs argue th at O llie G atlin, a form er A vondale executive, stated th at he knew th at asbestos w as a health hazard in 1960.70 Plaintiffs contend that Avondale executive officers were substantially certain that disease w ould o c c u r.71 P laintiffs argue th at B u rn ette B ordelon, th e superintendent for insulation at Avondale, disregarded the health hazards of asbestos and therefore, failed to take the precautions necessary to protect w o rk ers from exposure to a sb esto s.72 P laintiffs contend th at despite th e fact that A vondale's executive officers w ere aware o f the hazards o f w orking w ith asbestos, they forced A vondale em ployees to w o rk w ith and around asbestos w ith o u t p recau tio n s. 73 P laintiffs argue th at C. Edw in Hartzman, the President of Avondale Shipyards beginning in 1972, testified that responsibility for safety initiatives u ltim ately rested w ith th e other executive o fficers. 74 Furthermore, Plaintiffs contend that Edw ard Blanchard, Superintendent of the Production Departm ent, also confirmed that he would have to approve a request from the safety department to stop production for safety reaso n s. 75 P laintiffs argue th at A lbert B ossier, Jr., th e assistant superintendent of the Electrical D epartm ent from approxim ately 1961 until he took over as superintendent in 1964, had know ledge o f the dangers associated w ith asbestos and did nothing to 69 Id. (citing Rec. Doc. 91-40). 70 Id. at 9 (citing Rec. Doc. 91-30). 71 Id. at 10. 72 Id. at 10-11 (citing Rec. Docs. 91-30, 91-10, 91-38). 73 Id. at 12. 74 Id. at 15 (citing Rec. Doc. 91-37). 75 Id. at 16 (citing Rec. Doc. 38). 11 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 12 of 27 p ro tect A vondale em p lo y ees. 76 P laintiffs contend th at Jam es O 'D onnell, Steven K ennedy, P eter Territo, G eorge K elm ell, John M cC ue and Ew ing M oore w ere all involved in the safety departm ent at A v o n d ale.77 P laintiffs argue th at each w as aw are o f the health hazards o f asb esto s. 78 Plaintiffs argue that from 1970 to 1972, the safety department reported to Hettie Daw es Eaves, who was involved in n um erous discussions about th e problem s co n n ected w ith exposure to asb esto s.79 Plaintiffs contend that Dr. Mabey, a contract physician for Avondale Shipyards, adm itted that he knew o f the hazards o f asbestos since the 1940's.80 L astly, P laintiffs contend th at they can establish a fraud claim u n d e r L ouisiana law .81 P laintiffs argue th at L ouisiana law recognizes a cause o f action for fraud resulting from silen ce. 82 Here, Plaintiffs contend that Avondale and its executive officers w ere aware o f the hazards o f asbestos and nevertheless, rem ained silen t.83 C. Avondale's Argument in Further Support of the Motion In further support o f the instant motion, Avondale argues that knowledge o f the dangers o f asbestos does not establish an intent for D ecedent to contract lung ca n ce r.84 A vondale contends that while Plaintiffs have presented evidence o f knowledge o f hazards, that evidence does not 76 Id. at 16-17 (citing Rec. Docs. 91-48, 91-23, 91-30). 77 Id. at 18. 78 Id. at 18-19 (citing Rec. Docs 91-15, 91-39, 91-51). 79 Id. at 20-21 (citing Rec. Docs. 91-46, 91-30). 80 Id. at 22 (citing Rec. Doc. 91-60). 81 Id. at 22-24. 82 Id. at 22 (citing La. Civ. Code art. 1953). 83 Id. at 24. 84 Rec. Doc. 135 at 2-3. 12 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 13 of 27 constitute intent to h arm .85 F urtherm ore, A vondale argues th at P lain tiffs' rem aining evidence does n o t show th at A vondale w as substantially certain th at D eced en t w ould contract lung c a n ce r.86 F o r example, Avondale contends that even non-com pliance w ith governm ent standards does not rise to th e level o f an intentional to rt.87 N ext, A vondale argues th at resolution at th e sum m ary ju d g m en t stage is appropriate, even th o u g h intent is at issue, given L o u isian a case la w . 88 A dditionally, Avondale contends that reconsideration principles are not applicable here, and if they are applicable, the m otion is necessary to correct a m anifest error o f law because the state court did not consider the Orders o f other district judges in the U nited States District Court for the Eastern D istrict o f L o u isian a on this issu e .89 L astly, A vondale argues th at Plaintiffs cannot m eet th e intent requirem ent for the fraud/concealm ent claims or the substantial certain standard for the wrongful d eath claim . 90 III. Legal Standard A. Legal Standardfor Summary Judgment Sum m ary judgm ent is appropriate w hen the pleadings, the discovery, and any affidavits show that "there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter o f law ." 91 W hen assessing w h eth er a dispute as to any m aterial fact exists, th e court 85 Id. at 3-4. 86 Id. at 5. 87 Id. at 5-6. 88 Id. at 7-8. 89 Id. at 9. 90 Id. at 9-10. 91 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. LiquidAir Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 13 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 14 of 27 considers "all o f the evidence in the record but refrains from m aking credibility determ inations or w eighing th e ev id en ce." 92 All reaso n ab le inferences are draw n in favor o f th e nonm oving party, but "u n sup ported allegations or affidavits setting forth `u ltim ate o r conclusory facts and conclusions o f law ' are insufficient to either support or defeat a m otion for sum m ary ju d g m e n t." 93 If the record, as a whole, "could not lead a rational trier o f fact to find for the non-m oving party," then no genuine issue o f fact exists, and the m oving party is entitled to judgm ent as a m atter o f law . 94 The nonm oving party m ay n o t rest u p o n th e pleadings, b u t m ust identify specific facts in the record and articulate the precise m anner in w hich that evidence establishes a genuine issue for tria l. 95 The party seeking summ ary judgm ent always bears the initial responsibility o f informing the court o f the basis for its m otion and identifying those portions o f the record that it believes dem onstrate the absence o f a genuine issue o f m aterial fa c t.96 T hereafter, th e nonm oving party should "identify specific evidence in the record, and articulate" precisely how that evidence supports his claim s. 97 T o w ithstand a m otion for sum m ary ju d g m en t, th e nonm oving party m ust show th at th ere is a genuine issue for trial by presenting evidence o f specific fac ts. 98 The nonm ovant's burden o f dem onstrating a genuine issue o f material fact is not satisfied m erely by 92 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). 93 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075. 94 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 95 See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). 96 Celotex, 477 U.S. at 323. 97 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994). 98 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1996)). 14 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 15 of 27 creating "some m etaphysical doubt as to the material facts," "by conclusory allegations," by "u n su b stan tiated assertions," o r "by only a scintilla o f ev id en ce." 99 R ather, a factual dispute precludes a grant o f sum m ary judgm ent only if the evidence presented by the nonm ovant is sufficient to perm it a reasonable trier o f fact to find for the nonm oving p a rty . 100 F urther, a court "resolve[s] factual controversies in favor o f the nonm oving party, but only w hen there is an actual controversy, th at is, w h en b o th parties have subm itted evidence o f contradictory fac ts." 101 H earsay evidence and unsw orn docum ents that cannot be presented in a form that w ould be adm issible in evidence at trial do not qualify as com petent opposing ev id en ce. 102 U ltim ately, sum m ary ju d g m e n t is appropriate in any case "w here critical evidence is so w eak or tenuous on an essential fact that it could n o t support a ju d g m e n t in favor o f th e n o n m o v an t." 103 B. Legal Standardfor Reconsideration A lthough the F ifth C ircuit has noted th at the Federal R ules "do not recognize a `m otion for reco n sid eratio n ' in h aec v erb a , " 104 it has consistently recognized th at such a m otion m ay challenge a ju d g m en t or ord er under F ederal R ules o f C ivil P ro ced u re 54(b), 59(e), o r 6 0(b).105 F ederal R ule o f Civil Procedure 59(e) also allows courts to alter or amend its judgm ents after entry. The Court has "considerable discretion" in deciding whether to grant a motion for reconsideration, but must 99 Little, 37 F.3d at 1075. 100 Anderson, 477 U.S. at 248. 101 Little, 37 F.3d at 1075. 102 Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc, 819 F.2d 547, 549 (5th Cir. 1987). 103 Armstrong v. City o fDallas, 997 F.2d 62 (5th Cir. 1993). 104 Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990). 105 Id. (Rules 59 and 60); Castrillo v. Am. HomeMortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398, at *3-4 (E.D. La. Apr. 5, 2010) (Rule 54). 15 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 16 of 27 "strike the proper balance betw een tw o competing imperatives: ( 1 ) finality and (2 ) the need to render ju st decisions on the basis o f all th e fac ts." 106 This C o u rt's discretion is fu rth er bounded by the Fifth C ircuit's instruction that reconsideration is "an extraordinary rem edy that should be used sparingly, " 107 w ith r e lie f being w arran ted only w h en th e basis for re lie f is "clearly e s ta b lis h e d ] . " 108 Courts in the Eastern D istrict o f Louisiana have generally considered four factors in deciding m otions for reconsideration under the Rule 59(e) standard: ( 1 ) the m otion is necessary to correct a m anifest error o f law or fact upon which the judgm ent is based; (2 ) the m ovant presents newly discovered or previously unavailable evidence; (3) the m otion is necessary in order to prevent m anifest injustice; or (4) th e m otion is ju stified by an intervening change in controlling law . 109 A m otion for reconsideration, " `[is] not the proper vehicle for rehashing evidence, legal theories, o r argum ents . . . . '" 110 Instead, such m otions " serve th e n arro w purpose o f allow ing a party to correct m anifest errors o f law o r fact or to present new ly d isco v ered ev id en ce." 111 "It is well settled that m otions for reconsideration should not be used . . . t o re-urge m atters that have already b een advanced by a p a rty ." 112 W hen th ere exists no in dependent reaso n for reconsideration 106 EdwardH. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993). 107 Templetv. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). 108 Schiller v. Physicians Res. Grp, Inc., 342 F.3d 563, 567 (5th Cir. 2003); Castrillo v. Am. Home Mortgage Servicing, Inc., No. 09-4369 R, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (Vance, J.). 109 See, e.g., Castrillo, 2010 WL 1424398, at *4 (citations omitted). 110 Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)). 111 See Waltman v. In t'lPaper Co., 875 F.2d 468, 473 (5th Cir. 1989) (citation and internal quotation marks omitted). 112 Helena Labs. Corp. v. Alpha Sci. Corp., 483 F. Supp. 2d 538, 539 (E.D. Tex. 2007) (citing Browning v. Navarro, 894 F.2d 99, 100 (5th Cir. 1990)). 16 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 17 of 27 other than m ere disagreem ent w ith a prior order, reconsideration is a w aste o f judicial tim e and resources and should n o t be g ran te d . 113 IV. Analysis A. Whether Avondale is Entitled to Reconsideration A vondale requests reconsideration o f the state court's order denying A vondale's m otion for partial sum m ary ju d g m e n t.114 W hile A vondale m aintains th at it w ould have appealed the decision o f the Civil D istrict Court had the case not been rem oved, Avondale has not presented any newly discovered or previously unavailable evidence, nor does Avondale identify a change o f law th at w ould w arran t granting the m o tio n . 115 In its reply m em orandum , A vondale contends that reconsideration principles are not applicable here, but cites no authority in support o f that co n clu sio n . 116 In th e alternative, A vondale argues th at if reco n sid eratio n principles are applicable, this m otion is necessary to correct a m anifest error o f law because the state court did not consider the Orders o f other district judges in the United States District Court for the Eastern District o f L o u isian a on this issu e . 117 A vondale po in ts to Vedros v. N o rth ro p G rum m an S h ip b u ild in g Inc. et a l., in w h ich another section o f this C ourt granted sum m ary ju d g m e n t in an allegedly sim ilar c a se . 118 113 Livingston Downs Racing A ss'n v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 481 (M.D. La. 2002). See also Mata v. Schoch, 337 B.R. 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was presented); FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion merely disagreed with the court and did not demonstrate clear error of law or manifest injustice). 114 Rec. Doc. 31-1. The motion for summary judgment at issue was already denied by Judge Sidney Cates, IV prior to the second removal of this case to federal court. Rec. Doc. 91-4. 115 Id. at 2. 116 Rec. Doc. 135 at 9. 117 Id. 118 Rec. Doc. 31-1 at 2 (citing Vedros v. Northrop Grumman Shipbuilding Inc. et al., No. 2:11 -cv-01198, 2014 WL 906164, at *3 (E.D. La. Mar. 7, 2014)). 17 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 18 of 27 The Court m ust first determine the proper procedure to follow in resolving a motion for reconsideration o f a state court's order denying a m otion for sum m ary before the case w as rem oved to federal court. N am ely, the Court m ust determ ine w hat degree o f deference is ow ed to an interlocutory state court order once a case has been rem oved to federal court. After removal o f an action to federal district court, " [a]ll injunctions, orders, and other proceedings had in such action prior to its rem oval shall rem ain in full force and effect until dissolved or m odified by the [federal] district co u rt." 119 The F ifth C ircuit addressed this issue in N issh o -Iw a i A m erica n Corp. v. K lin e } 20 There, a Texas state court granted a plaintiff' s m otion to strike a defendant's defenses and counterclaim s before th e case w as rem oved to federal c o u rt. 121 In addressing th e issue o f deference, the Fifth Circuit concluded that w here "the state court's ruling is purely interlocutory, it rem ains subject to reco n sid eratio n ju st as it had been p rio r to rem oval. " 122 The F ifth C ircuit reasoned that "ju d icial econom y is served by elim inating the need for duplicative proceedings in federal co u rt." 123 H ow ever, th e Fifth C ircuit held th at federal p ro ced u re rather th an state p rocedure governs th e m anner in w h ich th e state court decision is to be en fo rced . 124 "In sum, w h en ev er a case is removed, interlocutory state court orders are transform ed by operation o f 28 U.S.C. 1450 into orders o f the federal district court to w hich the action is rem oved. The district court is thereupon 119 28 U.S.C. 1450. 120 845 F.2d 1300 (5th Cir. 1988). 121 Id. 122 Id. at 1303 (citing General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 267, (1922)). 123 Id. 124 Id. 18 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 19 of 27 free to treat th e o rd er as it w ould any such in terlo cu to ry o rd er it m ight itse lf have en tered . " 125 The Fifth Circuit addressed the specific issue o f a state court deciding a motion for sum m ary ju d g m en t and a subsequent rem oval to federal court in R eso lu tio n Trust Corp. v. N o rth p a rk J o in t V en tu re}26 There, the F ifth C ircuit held th at a "prior state court order in essence is federalized w h en the action is rem oved to federal court, although the order `rem ains subject to reconsideration ju st as it had b een p rio r to rem o v al. '" 127 In other w ords, th e F ederal R u les o f Civil P ro ced u re govern the enforcem ent o f a p rio r state court ruling in a case rem oved to federal c o u rt. 128 Therefore, where the prior state court order was decided on summary judgm ent, the federal court m ust ensure that the order is consistent w ith the requirem ents o f Federal Rule o f Civil P rocedure 56.129 "I f the federal court declines to reconsider the state court sum m ary ju d g m en t, then the federal co urt certifies th at the order is indeed consistent w ith R ule 56(c)." 130 "The standard o f review is th e sam e as if th e federal co u rt itse lf had entered th e order. . ." 131 The Fifth C ircuit's opinions in N issho-Iw ai A m erican Corp. and Resolution Trust Corp. show that ( 1 ) w hen a case is rem oved from state court, all orders o f the state court rem ain in full force and effect and (2 ) once removed, federal procedure governs the m anner o f enforcement of th e state court o rd er.132 W hen th is case w as rem o v ed to federal court, the state court had denied 125Id. at 1304. 126 958 F.2d 1313 (5th Cir. 1992). 127Id. at 1316 (quoting Nissho-Iwai American Corp., 845 F.2d at 1303). 128 Id. 129Id. 130Id. 131 Id. 132Nissho-Iwai American Corp., 845 F.2d at 1303; Resolution Trust Corp., 958 F.2d at 1316. 19 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 20 of 27 A v o n d ale's m otion for sum m ary ju d g m e n t.133 H ere, as in N is s h o -Iw a i A m erica n Corp. and R eso lu tio n Trust Corp., th e o rder entered by th e state court is an interlocutory o rd er. 134 The Fifth Circuit instructs federal district courts to treat interlocutory state court orders as orders o f the federal district court to which the action is rem oved. The district court may treat the state court order as it w ould any interlocutory order it m ight itself have entered. Specifically, w hen the state court order is on sum m ary judgm ent, the federal district court m ay decline to reconsider the state court's order if the federal court certifies that the order is indeed consistent w ith Federal R ule o f Civil Procedure 56(c). Here, Avondale has not shown any substantial reasons warranting reconsideration o f the state court's ruling. Furtherm ore, for the reasons that follow, even if the Court w ere considering this m otion for the first time under the summary judgm ent standard rather than the reconsideration standard, there are genuine issues o f material fact in dispute precluding summ ary judgm ent. B. Whether Avondale is Entitled to Summary Judgment on Plaintiffs' Intentional Tort Claims As an initial m atter, the Court notes that generally, summary judgm ent is disfavored w hen issues o f intent or state o f mind are involved because those determinations are inherently a question o f fact w h ich tu rn s on cred ib ility . 135 H ow ever, a court is n o t precluded from granting sum m ary ju d g m e n t w here elusive concepts such as m otive or intent are at issu e . 136 B u t th e F ifth C ircuit has 133 Rec. Doc. 91-4. 134 Under Louisiana law, a denial of summary judgment is an interlocutory order that is not final or appealable unless there is a showing of irreparable injury. See Jones v. Next Generation Homes, LLC, 2011-0407 (La. App. 4 Cir. 10/5/11), 76 So. 3d 1238, writ denied, 2011-2401 (La. 11/23/11), 76 So. 3d 433; La. C.C.P. art. 2083. 135 International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1265-66 (5th Cir. 1991) ("When state of mind is an essential element of the nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently a question of fact which turns on credibility."). 136 Id. at 1266 ("This is not to say that the court can never enter summary judgment when intent or state of mind is at issue, only that the court must recognize that undermining the moving party's professed state of mind is not 20 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 21 of 27 cautioned that "the court m ust be vigilant to draw every reasonable inference from the evidence in th e reco rd in a light m ost flattering to the nonm oving party. " 137 F o r exam ple, sum m ary ju d g m en t m ay still be appropriate w hen intent or state o f mind is at issue if the non-m oving party m erely rests on conclusory allegations o r un su p p o rted sp ecu latio n . 138 A s w ill be explained below , this is not such a case. To prove that a defendant com m itted an intentional tort under Louisiana law, a plaintiff m ust show th at a defendant either " `( 1 ) consciously desires th e physical result o f his act, w hatever the likelihood o f that result happening from his conduct; or (2 ) know s that the result is substantially certain to follow from his conduct, w h atev er his desire m ay be as to th at result. '" 139 "Thus, intent has reference to th e consequences o f an act rath er th an to th e act itself. " 140 T herefore, Plaintiffs must prove that Avondale either consciously desired that Decedent would contract lung cancer, or knew th at result w as " substantially certain to fo llo w from [their] co n d u ct." 141 P laintiffs do not address the first prong, but instead argue that Avondale and its executive officers knew o f the hazards o f asbestos and w ere substantially certain th at disease w ould o c c u r. 142 Substantial certainty "requires more than a reasonable probability that an injury will a simple task. Therefore, the court must be vigilant to draw every reasonable inference from the evidence in the record in a light most flattering to the nonmoving party."). 137 Id. 138 Id. 139 Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208) (quoting Bazley v. Tortorich, 397 So. 2d 475, 481 (La. 1981). 140 Bazley v. Tortorich, 397 So. 2d 475, 481 (La. 1981). 141 Zimko v. Am. Cyanamid, 2003-0658 (La. App. 4 Cir. 6/8/05); 905 So. 2d 465, 475, cert. denied, 2005 2102 (La.3/17/06), 925 So. 2d 538 (internal citations omitted). 142 Rec. Doc. 91 at 8 . 21 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 22 of 27 occur."143 To satisfy the criterion o f "substantial certainty," Plaintiffs must prove that Decedent's contracting lung cancer was "inevitable or incapable o f failing." 144 "[M]ere knowledge and appreciation o f a risk does not constitute intent, nor does reckless or wanton conduct."145 The "belie[f] that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level o f intentional tort, but instead falls within the range o f negligent acts . . ."146 To prove a claim for intentional tort, Plaintiffs would have to show that Avondale's "conduct [went] beyond knowingly permitting a hazardous work condition to exist, ordering an employee to perform an extremely dangerous job, or willfully failing to furnish a safe place to work . . ."147 Here, there are questions o f fact in dispute regarding whether Avondale knew that it was substantially certain that Decedent would contract lung cancer. Plaintiffs have presented evidence to show that Avondale and its executive officers knew o f the hazards o f asbestos. For example, Plaintiffs present the deposition o f Danny Joyce, Avondale's corporate representative and industrial hygiene expert, who confirmed that Avondale had knowledge o f government regulations of asbestos as early as the 1940s.148 Plaintiffs submit the deposition o f Ollie Gatlin, a former Avondale executive, who stated that he knew that asbestos was a health hazard in 1960.149Plaintiffs attach the deposition o f C. Edwin Hartzman, the President o f Avondale Shipyards beginning in14356789 143Reeves, 731 So. 2d at 213 (internal citations omitted). 144Id. (internal citations omitted). 145Id. (internal citations omitted). 146Id. at 214. 147Zimko, 905 So. 2d at 477 (internal citations omitted). 148Rec. Docs 91-44. 149Rec. Doc. 91-33. 22 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 23 of 27 1972, who testified that responsibility for safety initiatives ultim ately rested with the other executive o fficers.150 P laintiffs attach th e deposition o f E d w ard B lanchard, S uperintendent o f the Production Departm ent, who also confirm ed that he w ould have to approve a request from the safety d epartm ent to stop production for safety rea so n .151 P laintiffs also attach d eposition testim ony which shows that several individuals involved in the safety department at Avondale were aware of th e health hazards o f a sb esto s.152 P laintiffs attach the deposition o f Dr. M abey, a co n tract physician for A vondale Shipyards, w ho adm itted th at he knew o f the hazards o f asbestos since the 1940s.153 Based on the evidence presented by Plaintiffs, the C ourt finds that A vondale and its executives knew o f the hazards o f asbestos. As to the criterion o f "substantial certainty," the Court finds that genuine issues of material fact rem ain as to w hether it w as substantially certain that D ecedent w ould contract lung cancer; therefore, sum m ary judgm ent is denied. In particular, the Fifth Circuit has repeatedly held that summ ary judgm ent is generally disfavored w hen issues of intent or state of mind are involved because those determ inations are inherently a question of fact w h ich tu rn s on cred ib ility . 154 H ere, th e C ourt cannot determ ine at the sum m ary ju d g m e n t stage w hether A vondale w as substantially certain that D ecedent would contract lung cancer based on its conduct. This is not a case in w hich the non-m oving party m erely rests on conclusory allegations or unsupported speculation. Because genuine issues of material fact remain, this m atter cannot be resolved on summary judgm ent. 150 Rec. Doc. 91-37. 151 Rec. Doc. 91-38. 152 Rec. Docs 91-9, 91-15, 91-39, 91-51. 153 Rec. Doc. 91-60. 154 International Shortstop, Inc., 939 F.2d at 1265-66 ("When state of mind is an essential element of the nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently a question of fact which turns on credibility."). 23 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 24 of 27 C. Whether Avondale is Entitled to Summary Judgment on Plaintiffs ' Fraud Claims In Louisiana, the elem ents o f a claim for fraud are: (1) a m isrepresentation o f a material fact, (2) m ade w ith th e intent to deceive, and (3) causing ju stifiab le reliance w ith resultant in ju ry . 155 Therefore, in order to succeed on a tort claim for fraud, Plaintiffs m ust prove that (1) Avondale m isrepresented a material fact, (2) with the intent to deceive, and (3) caused justifiable reliance and resu ltan t in ju ry . 156 U n d er L o u isian a law , fraud m ay resu lt from silence or in ac tio n . 157 H ow ever, "[i]n order to find fraud from silence or suppression o f the truth, there must exist a duty to speak or disclose inform ation . . . And w hile fraud m ay indeed result from a party's silence or inaction, mere silence or inaction w ithout fraudulent intent does not constitute fraud. Fraudulent intent, or th e intent to deceive, is a necessary and inherent elem ent o f fraud. " 158 As discussed above, Plaintiffs have presented evidence to show that Avondale and its executive officers w ere aw are o f the hazards o f asbestos and rem ained silent or did not act. Furtherm ore, the Fifth Circuit has repeatedly held that summ ary judgm ent is generally disfavored w hen issues o f intent or state o f mind are involved because those determinations are inherently a question o f fact w h ich tu rn s on cred ib ility . 159 H ere, th e C ourt cannot determ ine at the sum m ary judgm ent stage whether Avondale intended to deceive Decedent. Accordingly, summary judgm ent 155 Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 627 (5th Cir. 1999). 156 Id. 157 La. Civ. Code art. 1953 ("Fraud is a misrepresentation or a suppression of the trust made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction."). 158 Terrebonne Concrete, LLC v. CECEnterprises, LLC, 2011-0072 (La. App. 1 Cir. 8/17/11), 76 So. 3d 502, 509, writ denied, 2011-2021 (La. 11/18/11), 75 So. 3d 464 (internal citations omitted). 159 International Shortstop, Inc., 939 F.2d at 1265-66 ("When state of mind is an essential element of the nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently a question of fact which turns on credibility."). 24 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 25 of 27 is inappropriate at this stage. D. Whether Avondale is Entitled to Summary Judgment as to Wrongful Death Claims Avondale argues that Plaintiffs' wrongful death claims should be dism issed because they are governed by th e L o n g sh o re and H arb o r W o rk e rs' C o m p en satio n A ct ("L H W C A " ) . 160 A vondale argues that, pursuant to Louisiana Revised Statute 23:1035.2, w orkers' com pensation under the L H W C A is a L o u isian a em p lo y ee's sole rem ed y . 161 In opposition, P laintiffs argue th at th ey have elected Louisiana state law rem edies, rather than w orker's com pensation benefits, and that therefore, th e L H W C A does n o t preem pt P la in tiffs' state law claim s. 162 W hile "the LH W C A does not have a specific provision expressly stating that an em ployer 's intentional to rt is an exception to the sta tu te 's `exclusive rem e d y ' provision . . . a num ber o f court decisions, from Louisiana and from other jurisdictions, have stated that an em ployer's intentional tort is an exception to the exclusive rem edy provision o f the LH W C A and that, in such cases, the em ployee m ay b ring a to rt action against th e em p lo y er. " 163 H ow ever, th o se courts " strictly . . . applied th e exception for intentional to rts . " 164 F o r exam ple, " `[n]othing short o f a specific intent to injure th e em ployee falls outside o f th e scope o f the [L H W C A ] . ' " 165 T herefore, a p lain tiff m ust show that the defendant had a specific intent to injure the plaintiff. 160 Rec. Doc. 31-1 at 19. 161 Id. 162Rec. Doc. 91 at 7-8. 163 Taylor v. Transocean Terminal Operators, Inc., 2000-0604 (La. App. 4 Cir. 3/14/01), 785 So. 2d 860, 863 writ denied, 2001-1057 (La. 6/15/01), 793 So. 2d 1243 164 Id. 165Bordelon v. Avondale Indus., Inc., 03-228 (La. App. 5 Cir. 5/28/03), 846 So.2d 993, writ denied, 03 2074 (La.11/7/03), 857 So.2d 497 (quotingAustin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D. Me. 1981)). 25 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 26 of 27 As discussed above, Plaintiffs have presented evidence to show that A vondale and its executive officers were aware o f the hazards o f asbestos. Furthermore, the Fifth Circuit has repeatedly held that sum m ary judgm ent is generally disfavored w hen issues o f intent or state o f m ind are involved because those determ inations are inherently a question o f fact which turns on cred ib ility . 166 H ere, th e C ourt cannot determ ine at the sum m ary ju d g m e n t stage w h eth er A vondale had a specific intent to injure D ecedent. A ccordingly, sum m ary judgm ent is inappropriate at this stage. V. Conclusion F or the reasons discussed above, A vondale's m otion for sum m ary judgm ent is denied. A vondale has not shown any substantial reasons w arranting reconsideration o f the state court's ruling. Furtherm ore, even if the Court w ere considering this m otion for the first tim e under the summary judgm ent standard rather than the reconsideration standard, there are genuine issues o f m aterial fact regarding w hether A vondale knew that it w as substantially certain that Decedent w ould contract lung cancer. Plaintiffs have provided evidence to show that A vondale and its executive officers knew o f the hazards o f asbestos. The Fifth Circuit has repeatedly held that summ ary judgm ent is generally disfavored w hen issues o f intent or state o f mind are involved because those determinations are inherently a question o f fact which turns on credibility. Here, the Court cannot determine at the summary judgm ent stage whether Avondale was substantially certain that D ecedent would contract lung cancer based on its conduct. A cco rd in g ly , 166 International Shortstop, Inc., 939 F.2d at 1265-66 ("When state of mind is an essential element of the nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently a question of fact which turns on credibility."). 26 Case 2:20-cv-00095-NJB-JVM Document 219 Filed 04/27/20 Page 27 of 27 IT IS H E R E B Y O R D E R E D that A vondale's "M otion for Partial Sum m ary Judgm ent on P la in tiffs' Intentional Tort, F raud and C oncealm ent C laim s" 167 is D E N IE D . N E W O R L E A N S, LO U ISIA N A , this 2 7 th day o f April, 2020. 7]c______________ A N N E T T E JOLIV TE BROWN CH IEF JUDGE UNITED STATES D ISTR IC T CO U RT AsCrcv 167 Rec. Doc. 31. 27