Opinion
2024-C-0616
09-27-2024
CLIMMIE CRAFT v. EAGLE, INC., ET AL.
Christopher C. Colley Kristopher L. Thompson Emily C. LaCerte BARON & BUDD, P.C. COUNSEL FOR PLAINTIFF-RELATOR Leigh Ann Schell Raymond P. Ward Luke G. Lahaye ADAMS & REESE, LLP McCready L. Richeson Lawrence G. Pugh PUGH ACCARDO Kevin J. Lavie Joseph E. Lee, III PHELPS DUNBAR, LLP COUNSEL FOR DEFENDANTS-RESPONDENTS
ON SUPERVISORY WRIT FROM THE CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-11586, DIVISION "B" Honorable Marissa Hutabarat,
Christopher C. Colley
Kristopher L. Thompson
Emily C. LaCerte
BARON & BUDD, P.C.
COUNSEL FOR PLAINTIFF-RELATOR
Leigh Ann Schell
Raymond P. Ward
Luke G. Lahaye
ADAMS & REESE, LLP
McCready L. Richeson
Lawrence G. Pugh
PUGH ACCARDO
Kevin J. Lavie
Joseph E. Lee, III
PHELPS DUNBAR, LLP
COUNSEL FOR DEFENDANTS-RESPONDENTS
Court composed of Judge Paula A. Brown, Judge Dale N. Atkins, Judge Karen K. Herman
Karen K. Herman, Judge.
KKH
PAB
DNA
Plaintiff, Climmie Craft ("Mis. Craft"), seeks emergency supervisory review of the trial court's August 22, 2024 ruling, which partially granted a Daubert Motion in Limine to Exclude and/or Limit the Testimony of Plaintiff's Expert, Kenneth Garza ("Mr. Garza"), filed by Defendants, Ports America Gulfport Inc., and joined by Defendants, Certain Underwriters at Lloyd's London, Crowley Marine Services, Inc., and Hartford Accident and Indemnity Company, (collectively, "Defendants"). Mrs. Craft also seeks review of the trial court's September 25, 2024 judgment, which partially denied her Motion for Reconsideration of the August 22, 2024 ruling.
The record contains an unsigned judgment on the motion in limine as well as a separate signature page indicating that the judgment was signed on September 9, 2024.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
For the following reasons, we grant the writ application, reverse the trial court's rulings, and remand for further proceedings.
As a preliminary matter, we note that Defendants raise an objection as to the timeliness of the motion to reconsider. Defendants contend that pursuant to La. C.C.P. art 1425(F)(2) the trial court was required to hold a hearing and render its decision on expert testimony no later than 30 days prior to trial. However, the trial court timely heard and ruled on the expert testimony on August 22, 2024 under La. C.C.P. art. 1425(F)(2). Moreover, Defendants did not raise the timeliness of the motion to reconsider under La. C.C.P. art. 1425(F)(2) in the opposition filed in the trial court. Accordingly, we do not find this argument persuasive.
FACTUAL AND PROCEEDURAL HISTORY
Mrs. Craft filed suit in this matter asserting that she contracted asbestos-related lung cancer as a consequence of her household exposure ("take-home") to asbestos while laundering the asbestos-contaminated clothing of her husband, Jerry Craft ("Mr. Craft"). Mrs. Craft alleges that her husband was exposed to asbestos while employed by various stevedoring companies, including Defendants. Mr. Craft died from asbestos-related mesothelioma.
To demonstrate that her household exposure to asbestos and her husband's workplace exposure to asbestos was substantial and significantly above background levels, Mrs. Craft offered the expert opinion of Mr. Garza, a Certified Industrial Hygienist. Mr. Garza has rendered an opinion that Mr. Craft suffered significant occupational exposures to asbestos while employed by Defendants and that Mrs. Craft suffered significant household exposures to asbestos while laundering her husband's work clothing.
In his April 11, 2024 report, Mr. Garza indicated that he "provided estimated exposure rates to both Mr. Craft and Mrs. Craft based on the exposure evidence in this case and the relevant epidemiological studies, and based on this, opined to a reasonable degree of scientific certainty that 'Ms. Climmie Craft had exposures above background that increased her risk for [asbestos-related] disease.' "
Defendants filed motions in limine seeking to exclude and/or limit the testimony of Mr. Garza. Defendants argued therein that Mr. Garza's opinion is based on insufficient facts and data.
The trial court granted Defendants' motion, in part, precluding Mr. Garza "from offering testimony regarding the asbestos exposures by Jerry Craft and/or Climmie Craft. The Court will allow Kenneth Garza to testify about general industrial opinions, only." Following the denial of Mrs. Craft's Motion for Reconsideration as to Mr. Garza, this writ application followed.
LAW &DISCUSSION
Mrs. Craft argues that the trial court erred in prohibiting Mr. Garza from testifying that her husband's exposures to asbestos while employed by each Defendant were significant and above background, and that her "take-home" asbestos exposures from her husband's employment by each Defendant were significant and above background. Mrs. Craft claims that Mr. Garza has sufficiently testified as to the frequency Mr. Craft was exposed to asbestos because of the work he performed for each Defendant.
"Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by our Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La. 1993), the trial court is required to perform a 'gatekeeping' function to 'ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" Allen v. Eagle Inc., 2022-0386, 0387, p. 9 (La.App. 4 Cir. 8/10/22), 346 So.3d 808, 814-15, writ denied, 2022-01373 (La. 11/16/22), 349 So.3d 998 (quoting Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5 (La.App. 4 Cir. 7/29/09), 17 So.3d 459, 463.
La. C.E. art. 702(A) addresses the standard for admissibility of expert testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert's opinion reflects a reliable application of the principles and methods to the facts of the case.
This Court in A//ew, 2022-0386, p. 9, 346 So.3d at 815, recognized that the character of the evidence upon which an expert bases his opinion affects only the weight to be afforded to the expert's testimony and does not make his opinion evidence inadmissible pursuant to Daubert. This Court stated:
The [Louisiana] Supreme Court, in Certain Underwriters at Lloyd's London v. United States Steel Corp., 20[19]-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122, (quoting Lafayette City-Parish Consol. Gov't v. Person, [20]12-0307, p. 8 (La. 10/16/12), 100 So.3d 293, 298), found that an "expert may provide testimony based on information obtained from others, and the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert's conclusion." See also MSOF Corp. v. Exxon Corp., [20]04-0988, p. 16 (La.App. 1 Cir. 12/22/05), 934 So.2d 708, 720 (wherein the First Circuit held that "the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert's conclusion ... and may serve as a basis for attack by defendants on cross-examination at trial, but it does not make his opinion evidence inadmissible under Daubert.").Id.
Based on the record before us, we find that the evidence upon which Mr. Garza based his opinion affects only the weight afforded Mr. Garza's conclusions. Therefore, Mr. Garza's evidence and testimony should be weighed by the jury. Accordingly, Mrs. Craft's writ application is granted. Further, we reverse the trial court's rulings, which found that Mr. Garza would be limited to offering only general industrial hygiene opinions at trial and denied the motion to reconsider in part. The matter is remanded to the trial court for further proceedings.
Mr. Garza stated in his report that his review of case specific information included: "Deposition of Gimmie Craft, dated December 8, 2023; Deposition of Jerry Craft, dated November 10, 2006; Deposition of Jerry Craft, dated January 23, 2017; Discovery Deposition of Jerry Craft, dated July 19, 2017; and/or other case-specific information."
WRIT GRANTED; REVERSED AND REMANDED