EVERETT v. AIR PRODUCTS AND CHEMICALS INC (2022)

This is an asbestos action. Plaintiffs/Appellants, Paula Everett and William Everett, Jr., individually and as representatives of the decedent, Emily Everett (“Plaintiffs”), lodged an appeal from two May 4, 2022 judgments of the trial court. The first judgment granted summary judgment in favor of Defendants/Appellees, Union Carbide Corporation (“Union Carbide”), Foster Wheeler LLC, and Riley Power, Inc. (“Riley Power”), dismissing all claims of Plaintiffs. The second judgment granted summary judgment and dismissed all of Plaintiffs’ claims against defendants, Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k//a Peter Kiewit Sons Co.

On appeal, Plaintiffs and Riley Power filed a Joint Motion to Dismiss Appeal as to Riley Power on September 13, 2022. For the reasons that follow, we grant the motion to dismiss Plaintiffs’ appeal as to Riley Power, reserving unto Plaintiffs the right to proceed with their appeals as to any other parties not dismissed, including Foster Wheeler, LLC (“Foster Wheeler’) and Level 3 Holdings, Inc., f/k/a Whitney Holdings, Inc., f/k/a Peter Kiewit Sons (“Peter Kiewit”).¹

FACTUAL AND PROCEDURAL HISTORY

The decedent, Emily Everett, was the spouse of a worker who was exposed to asbestos. Decades later, Mrs. Everett contracted malignant mesothelioma and filed suit against numerous parties, including Union Carbide, Riley Power, Foster Wheeler, and Level 3 Holdings. Mrs. Everett died a year after her diagnosis. Her children, Paula Everett and William Everett, Jr., were substituted as party plaintiffs.

Defendants, Union Carbide, Foster Wheeler, and Riley Power, moved for summary judgment, seeking relief on the grounds that Plaintiffs lacked evidence of causation to show that Mrs. Everett's mesothelioma was related to their specific products. On the day before the summary judgment hearing, Peter Kiewit moved to join Union Carbide's motion. At the summary judgment hearing, the trial court determined that Plaintiffs had failed to present sufficient evidence of causation to defeat summary judgment and granted the defendants’ motion for summary judgment. Over Plaintiffs’ objections, the trial court also signed a judgment granting Peter Kiewit's motion to join and dismissed Peter Kiewit with prejudice.

Plaintiffs’ motion for a new trial was denied by the trial court. Plaintiffs timely filed an appeal of the judgments.

DISCUSSION

Following the lodging of the record on appeal, Plaintiffs and Riley Power filed a Joint Motion to Dismiss Appeal as to Riley Power. Considering the joint motion to dismiss appeal, we grant the motion and order the dismissal of Plaintiffs’ appeal as to Riley Power. We further find that Plaintiffs’ appeals with respect to any other party and/or any other Docket Number (including as to Foster Wheeler and Peter Kiewit in Docket No. 2022-CA-0539, Docket No. 2022-CA-0540, and Docket No. 2022-CA-0541) are not impacted by the joint motion to dismiss Riley Power and order that the appeals not specifically dismissed remain pending.

APPEAL DISMISSED AS TO RILEY POWER, INC.

FOOTNOTES

1.   Plaintiffs and Union Carbide also filed a Joint Motion to Dismiss Appeal as to Union Carbide. This Court granted the motion and ordered Plaintiffs’ appeal dismissed as to Union Carbide. See Everett v. Air Products and Chemicals, Inc. et al (La. App. 4 Cir. 9/8/2022).

Chief Judge Terri F. Love