MAY v. COOPER SMITH STEVEDORING COMPANY INC (2026)

Relators are the plaintiffs in the underlying dispute, namely Jerry May, Perry May, David May, Vernell May Espa, and Irma May Taylor; and they are the surviving siblings of the decedent Monroe May (“Mr. May”). Respondent is Liberty Mutual Insurance Company (“Liberty Mutual”). In their writ application, Relators seek review of the trial court's August 31, 2026 judgment, which denied in part their “Motions in Limine” and granted in part Liberty Mutual's “Daubert[¹ ] Motion to Exclude the Testimony and Opinions of Dr. Claire Michael [(“Dr. Michael”) Relators’ expert witness]” (“Motion to Exclude”). However, prior to this Court's rendition of judgment, on October 21, 2026, Relators filed a “Motion for Partial Withdrawal of ․ Application for Supervisory Writ” (“Motion for Partial Withdrawal”) with respect to the trial court's grant of Liberty Mutual's Motion to Exclude. For the following reasons, we grant Relators’ writ application, deny relief, and grant Relators’ Motion for Partial Withdrawal.

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mr. May worked as a longshoreman at the Port of New Orleans from 1965 to 2001, during which time he loaded and unloaded cargo for several stevedoring companies, including Cooper/T. Smith, Louisiana Stevedores, Lykes Brother, and Ryan Walsh. Mr. May contracted mesothelioma and died in August 2019. In 2020, Relators filed a wrongful death and survival action, wherein they alleged their brother's workplace exposure to asbestos resulted in his contraction of mesothelioma and subsequent death in 2019. In their first amending and supplemental petition filed in December 2022, Relators named Liberty Mutual as a defendant as the alleged insurer of Louisiana Stevedores. In its Answer, Liberty Mutual asserted that Mr. May's contraction of mesothelioma was not a covered claim within the policy.

Pertinent Prior Proceedings: Cross Motions for Summary Judgment and this Court's Opinion

Relators filed a motion for partial summary judgment seeking a judgment on insurance coverage on the basis that the policy's definition of a “bodily injury by disease” and a “bodily injury by disease caused by an accident” was ambiguous and that such ambiguity should be construed against Liberty Mutual. Liberty Mutual filed a cross motion for summary judgment asserting that policy language was not ambiguous and contending a particular exclusion in the policy (Exclusion (e)) applied and barred coverage. The trial court rendered judgment in favor of Liberty Mutual, and Relators appealed that decision. On appeal, this Court reversed the trial court. May v. Cooper/T. Smith Stevedoring, 2024-0272, pp. 21-22 (La. App. 4 Cir. 6/11/25), 421 So.3d 211, 223-24, writ denied, 2025-00884 (La. 10/14/25), 418 So.3d 903, and writ denied, 2025-00886 (La. 10/14/25), 418 So.3d 904.²

Subject Motions

On November 29, 2023, Liberty Mutual filed its Motion to Exclude. Therein, Liberty Mutual sought to limit or exclude the testimony of Relators’ expert Dr. Michael with respect to Mr. May's exposure to asbestos. Specifically, Liberty Mutual asked the trial court to rule that Dr. Michael could not testify that each and every instance of Mr. May's exposure to asbestos—no matter the dose, duration, or degree of exposure—constituted a significant contributing factor to Mr. May's mesothelioma.

Then, in anticipation of trial, on April 7, 2026, Relators filed their Motions in Limine, wherein they sought to exclude, in pertinent part:³

1. No direct evidence of the policy forms Louisiana Stevedores, Inc.[,] received for its Workmen's Compensation / Employer's Liability [(“WC/EL”)] coverage;

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5. No argument or evidence presentation that Louisiana Stevedores, Inc.[,] received a policy form for its [WC/EL] insurance that excluded coverage for [Relators]’ mesothelioma cases as untimely;

6. No argument or evidence presentation that any insurer sold Louisiana Stevedores, Inc.[,] a policy form for its [WC/EL] insurance that excluded coverage for [Relators]’ mesothelioma cases as untimely;

7. No argument or evidence presentation that Louisiana Stevedores, Inc. received a policy form for its [WC/EL] insurance that restricted coverage to only one policy limit despite the number of policy periods for which evidence of asbestos exposures exist; and

8. No argument or evidence presentation that any insurer sold Louisiana Stevedores, Inc.[,] received [sic] a policy form for its [WC/EL] insurance that restricted coverage to only one policy limit despite the number of policy periods for which evidence of asbestos exposures exist.

On August 14, 2026, the trial court held a hearing on these motions. In pertinent part, when orally granting Liberty Mutual's Motion to Exclude, the trial court stated: “Dr. Michael is permitted to testify only that above-background exposure is a substantial contributing cause but shall be prohibited from testifying that each and every exposure to asbestos, regardless of the dose, duration, or degree of exposure, constitutes a significant contributing factor to [Mr. May]’s mesothelioma.” The trial court provided no reasoning for the ruling.

Judgment

Subsequently, on August 31, 2026, the trial court rendered the subject judgment, which provides, in relevant part:

IT [sic] ORDERED, ADJUDGED, AND DECREED that Liberty Mutual Insurance Company's ․ Motion to Exclude ․ be and is hereby GRANTED IN PART in that Dr. Claire Michael shall not attribute sole causation or assign a percentage to any particular defendant nor may she testify that each and every exposure is a significant contributing cause of [Mr.] May's mesothelioma. The Motion is DENIED IN PART to the extent Dr. Claire Michael may testify that above background exposure to asbestos is a substantial contributing cause of mesothelioma.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that [Relators]’ Motions In Limine are GRANTED as to Motions In Limine Nos. 2 (no insurance expert testimony other than testimony of [Louisiana Insurance Guaranty Association]’s insurance expert, Mr. Don DeCarlo), 3 (no argument or evidence presentation that Louisiana Stevedores, Inc.[,] received a policy form for its [WC/EL] insurance with a clear and unambiguous Definition (C)), and 4 (no argument or evidence presentation that any insurer sold Louisiana Stevedores, Inc.[,] received [sic] a policy form for its [WC/EL] insurance with a clear and unambiguous Definition (C)) and DENIED as to the remaining Motions In Limine Nos. 1, 5, 6, 7, and 8.

Relators’ timely writ application to this Court followed. Trial in this matter is set for November 2, 2026.

ASSIGNMENTS OF ERROR

Relators assert two assignments of error in their writ application to this Court:

[1.] Error exists in the [trial] court's [j]udgment denying [Relators]’ [M]otions in [L]imine Nos. 1 and 5-8. If the [trial] court [judge] would have followed this Court's Order and Reasons, she would have granted those motions. Her failure to follow this Court's Order and Reasons constitutes gross departures from proper judicial proceedings and reversible legal error.

[2.] Error exists in the [trial] court's [j]udgment to the extent it grants [Liberty Mutual's] Daubert motion regarding Dr. Michael. From a procedural standpoint, the [j]udgment and the hearing transcript lack the fundamental of a [sic] findings of fact. From a substantive standpoint, the [j]udgment and the hearing transcript lack a grounding in Louisiana mesothelioma causation law.

We discuss each of these in turn.

DISCUSSION

Assignment of Error Number One: The Trial Court's Denial of Relators’ Motions in Limine

Standard of Review and Applicable Principles

As quoted previously, Relators assert the trial court erred in denying their Motions in Limine regarding numbers 1, 5, 6, 7, and 8 because, in doing so, the trial court did not follow this Court's prior May Opinion. We begin with the standard of review applicable to this assignment of error. As this Court has previously explained, “[t]he standard of review for a motion in limine is abuse of discretion.” State v. Vanwhalraven, 2019-0942, p. 2 (La. App. 4 Cir. 10/30/19), 282 So.3d 1153, 1154 (citing River Rental Realty LLC v. Deep S. Leasing, LLC, 2017-0982, p. 8 (La. App. 4 Cir. 6/20/18), 250 So.3d 372, 377). This is because the “trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect.” Id. at p. 2, 282 So.3d at 1154-55 (quoting State v. Greenberry, 2014-0335, pp. 13-14 (La. App. 4 Cir. 11/19/14), 154 So.3d 700, 708).

Furthermore, La. C.E. art. 103(A) is titled “Rulings on evidence”; and, relative to the effect of an erroneous ruling, it provides that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” Thus, in light of La. C.E. art. 103(A), the appellate court must consider the issue of prejudice when reviewing a trial court's error in including or excluding evidence. In so doing, “[t]he proper inquiry for” the appellate court to “determin[e] whether a party [will be] prejudiced by a trial court's alleged erroneous ruling on the admission or exclusion of evidence is whether the alleged error, when compared to the entire record, [will have] a substantial effect on the outcome of the case.” Breaux v. Block Law Firm, 2025-0675, p. 9 (La. App. 1 Cir. 3/12/26), ––– So.3d ––––, ––––, 2026 WL 819238, at *4 (citing Chiasson v. La. Med. Mut. Ins. Co., 2019-0617, 0618, p. 6 (La. App. 1 Cir. 6/18/20), 307 So.3d 204, 209). When “the effect on the outcome of the case is not substantial,” then “reversal is not warranted.” Id. (first citing La. C.E. art. 103(A); and then citing Chiasson, 2019-0617, 0618, p. 6, 307 So.3d at 209). The burden of proving prejudice rests with the party alleging the trial court erred. Chiasson, 2019-0617, 0618, p. 6, 307 So.3d at 209 (citing Emery v. Owens-Corp., 2000-2144, p. 7 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, 449). To resolve this assignment of error, we must look at the holdings issued in this Court's prior May Opinion as compared to Relators’ Motions in Limine. For ease of discussion we group the statements in numbers one, five, and six of Relators’ Motions in Limine together and group numbers seven and eight together.

Numbers One, Five, and Six

Beginning with number one in Relators’ Motions in Limine, Relators sought to disallow any “direct evidence of the policy forms Louisiana Stevedores, Inc. received for its [WC/EL] coverage.” Then, in numbers five and six, Relators asked the trial court to prevent presentation of any “argument or evidence presentation that Louisiana Stevedores, Inc.[,] received” or “that any insurer sold Louisiana Stevedores, Inc.[,] a policy form for its [WC/EL] insurance that excluded coverage for [Relators]’ mesothelioma cases as untimely.” As described by Relators in their writ application, these latter statements “relate[ ] to this Court's holding [in the prior May Opinion] that Exclusion (e) cannot be applied here.” Relators state the trial court's denials of these Motions in Limine “seem incapable of reconcile [sic] with this Court's Order and Reasons” from the prior May Opinion.

As quoted in this Court's prior May Opinion,

According to Defendants [including Liberty Mutual], the National Council on Compensation Insurance (“NCCI”) standard WC/EL [Workers Compensation/Employers’ Liability] policy form utilized in the industry from 1954 until 1984 [during which time Mr. May worked as a stevedore] contained the following pertinent provisions under Coverage B (Employers’ Liability Coverage):

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This policy does not apply:

(e) under coverage B, to bodily injury by disease unless prior to thirty-six months after the end of the policy period written claim is made or suit is brought against the insured for damages because of such injury or death resulting therefrom;

2024-0272, pp. 6-7, 421 So.3d at 216. The second part of the above block quote is Exclusion (e).

Relators’ argument that this Court's prior May Opinion required the trial court to grant their Motions in Limine regarding numbers one, five, and six is misplaced. As explained by this Court in the prior May Opinion, “as the mover in their cross-motions for summary judgment, Defendants’ [including Liberty Mutual's] burden of proof, pursuant to La. C.C.P. art. 966(D)(1), required them to prove the scope of coverage provided by the policies and that the policies contained Exclusion (e).” 2024-0272, p. 10, 421 So.3d at 218. In determining whether the defense motions for summary judgment, including Liberty Mutual's, so proved the scope of coverage, this Court explained the motions did not include “the actual policies ․ or ․ direct evidence that the[ ] policies contained Exclusion (e).” Id. at p. 11, 421 So.3d at 218. Instead, “[a]s to the existence of the policies, Liberty [Mutual] offered into evidence an affidavit from a representative of its legal department to show it issued a WC/EL policy to [Louisiana] Stevedores from October 1, 1968[,] to October 1, 1969.” Id. The import of Liberty Mutual's failure to include the actual policy or direct evidence of same was that “genuine issues of material fact remain[ed] regarding the polic[y] terms and any exclusions contained within the polic[y], including Exclusion (e).” Id.

This Court's holding did not prevent Liberty Mutual from subsequently producing the policy or direct evidence of it and, in so doing, establishing that it contained Exclusion (e). In other words, this Court's holding did not hold avert Liberty Mutual from eventually presenting the policy or direct evidence of it, and this Court did not outright hold that Exclusion (e) cannot be applied to the matter sub judice if Liberty Mutual were to ultimately prove the policy contained that exclusion. Instead, this Court simply held Liberty Mutual had not proven the foregoing in its motion for summary judgment and was not entitled to summary judgment at that time on this issue based on the summary judgment record. Essentially, the outcome is the same as if Liberty Mutual had never filed its motion for summary judgment. This leads to another point.

To hold otherwise would be to misconstrue summary judgment law. This Court's prior May Opinion simply constituted a denial of Liberty Mutual's motion for summary judgment with respect to Exclusion (e) because Liberty Mutual did not prove the policy it issued contained that provision. In some instances, a prior ruling has a preclusive effect on future proceedings—but not always. As explained in Keesler Federal Credit Union v. Rivero, “[i]t is well settled that denial of summary judgment is an interlocutory judgment, to which res judicata does not apply.” 2014-0095, p. 5 (La. App. 1 Cir. 9/19/14), 153 So.3d 1218, 1222. Similarly, “[t]he law of the case doctrine does not apply to a trial court's rulings on interlocutory issues,” and “[a] judgment denying a motion for summary judgment is interlocutory in nature.” Guidry v. USAGencies Cas. Ins. Co., 2016-0562, p. 8 (La. App. 1 Cir. 2/16/17), 213 So.3d 406, 414 (first citing Land v. Vidrine, 2010-1342, p. 9 (La. 3/15/11), 62 So.3d 36, 42; and then citing La. C.C.P. art. 968). As explained in the jurisprudence “a second motion for summary judgment is permissible because the denial of an initial motion for summary judgment is an interlocutory judgment, and therefore, not a final judgment,” such that “even though summary judgment has been denied previously, it may be rendered later.” Williams v. City of New Orleans, 2015-0769, p. 6 (La. App. 4 Cir. 4/20/16), 193 So.3d 259, 264 (quoting Hargett v. Progressive Ins. Co., 2008-0293, p. 7 (La. App. 4 Cir. 10/29/08), 996 So.2d 1199, 1202). See also Keesler Fed. Credit Union, 2014-0095, pp. 5-6, 153 So.3d at 1222 (citing First Homestead Fed. Sav. & Loan Ass'n v. Harrington, 491 So.2d 736, 737-38 (La. App. 5th Cir. 1986)). Further, resolution of an issue for which there was a previous denial of summary judgment “may change at any time up to final judgment.” Serou v. Touro Infirmary, 2015-0747, p. 7 (La. App. 4 Cir. 4/13/16), 191 So.3d 1090, 1095 n.8 (quoting Zeno v. Colonial Mortg. & Loan Corp., 2008-246, p. 11 (La. App. 5 Cir. 11/25/08), 4 So.3d 93, 100).

That is, an initial denial of a party's motion for summary judgment on a particular issue does not preclude the trial court from later ruling in favor of that party on that same issue either in a subsequent motion for summary judgment or at trial. Thus, when a party loses a summary judgment motion on a particular issue, that party is not barred from later proving that issue in a successive motion or at trial. Here, the latter option remains available to Liberty Mutual because nothing in this Court's prior May Opinion prevented Liberty Mutual from providing the actual policy (or direct evidence of same) and proving the policy included Exclusion (e) at the trial of this matter (as long as Liberty Mutual timely produced the policy or evidence to Relators).⁴ Accordingly, we hold Relators’ first assignment of error with respect to numbers one, five, and six in their Motions in Limine is without merit; and we affirm the trial court's judgment in this regard.

Numbers Seven and Eight

Turning to numbers seven and eight, Relators sought to prevent any “argument or evidence presentation that Louisiana Stevedores, Inc.[,] received” or that “any insurer sold Louisiana Stevedores, Inc.[,] ․ a policy form for its WC/EL insurance that restricted coverage to only one policy limit despite the number of policy periods for which evidence of asbestos exposures exist.” As explained by Relators in their writ application, these “relate to the ‘last day of last exposure’ limitation this Court considered as part of [their] motion for summary judgment” in the prior May Opinion. In this part of their writ application, Relators also reference this Court's holding in the prior May Opinion about Definition (c) being ambiguous.

Again, Relators have misconstrued the prior May Opinion. As quoted in the prior May Opinion:

According to Defendants [including Liberty Mutual], the National Council on Compensation Insurance (“NCCI”) standard WC/EL policy form utilized in the industry from 1954 until 1984 contained the following pertinent provisions under Coverage B (Employers’ Liability Coverage):

DEFINITIONS

(c) Bodily Injury by Accident; Bodily Injury by Disease. The contraction of disease is not an accident within the meaning of the word “accident” in the term “bodily injury by accident” and only such disease as results directly from a bodily injury by accident is included within the term “bodily injury by accident.” The term “bodily injury by disease” includes only such disease as is not included within the term “bodily injury by accident.”

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Application of the Policy[:] This policy applies only to injury (1) by accident occurring during the policy period, or (2) by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occurs during the policy period.

2024-0272, pp. 6-7, 421 So.3d at 216.

Relators are correct that this Court found Definition (c) lacked clarity and was ambiguous. Specifically, this Court held:

[W]e agree with [Relators] that pursuant to Faciane [v. S. Shipbuilding, Corp., 446 So.2d 770 (La. App. 4th Cir. 1984)], Definition (c) is unclear and ambiguous.

Contrary to the Hubbs cases,[5] we find Defin[i]tion (c)’s declaration that “the contraction of a disease is not an accident within the meaning of the word ‘accident’ in the term ‘bodily injury by accident’ ” does not unambiguously exclude mesothelioma as a disease caused by accident. As noted by Faciane, this reasoning disregards the remaining part of Definition (c) which states that “only such disease as results directly from a bodily injury by accident is included within the term ‘bodily injury by accident.’ ” Our review shows that Definition (c) does not define what is solely a bodily injury by disease and a disease that arises from an accident.

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The policies herein do not include a list of diseases designated as bodily injury by disease or bodily injury by disease caused by accident. Nor do they contain explicit definitions of either category of disease. Therefore, the context of the policies offer[s] no reference to determine what is a disease caused by accident or construe the insurer's intent in creating a category of coverage for a bodily injury by disease caused by accident. The policies’ provisions simply give no guidance to ascertain the suggested meaning of bodily injury by disease caused by accident. Further, we take judicial notice that the term “bodily injury by disease caused by accident” is not a common term to which a “generally prevailing meaning” attaches.

May, 2024-0272, pp. 19-20, 421 So.3d at 222-23.

However, in so holding and after so holding, this Court said nothing about if and how that ruling as to the ambiguity of the phrase “bodily injury by accident” in Definition (c) bore on the subsequent policy paragraph regarding “Application of the policy” to a “disease caused by aggravated exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occurs during the policy period.” In other words, Relators read too much into this Court's holding. It contained no consideration of and established no binding effect as to the “last day of exposure” provision. Accordingly, Relators’ first assignment of error with respect to numbers seven and eight in their Motions in Limine is also without merit; and we affirm the trial court's judgment in this regard.

Relators assert no other basis to support their contention that the trial court erred in excluding the information in numbers one, five, six, seven, and eight of their Motions in Limine. Nor has this Court determined any evidentiary error on the trial court's part in so ruling. Thus, having found no merit to Relators’ first assignment of error, we affirm the trial court's judgment insofar as it denied Relators’ Motions in Limine with respect to numbers one, five, six, seven, and eight.

Assignment of Error Number Two: the Trial Court's Ruling on Liberty Mutual's Motion to Exclude

In their second assignment of error, Relators contend the trial court erred in its ruling on Liberty Mutual's Motion to Exclude. Relators assert the trial court erred “[f]rom a substantive standpoint” because “the [j]udgment and the hearing transcript lack a grounding in Louisiana mesothelioma causation law.” In particular, Relators argue the trial court abused its discretion in ruling, with respect to Mr. May's exposure to asbestos, that each and every exposure—regardless of the dose, duration, or degree of exposure—constituted a significant contributing factor to his mesothelioma.⁶

Alternatively, Relators argue the trial court erred “[fr]rom a procedural standpoint” because “the [j]udgment and the hearing transcript lack the fundamental ․ findings of fact.” On this point, Relators assert the trial court failed to comply with La. C.C.P. art. 1425(F) and contend this Court should conduct a de novo review of the merits of the motion.

However, as stated previously, Relators filed their Motion for Partial Withdrawal while this matter remained under consideration by this Court. Therein, Relators withdraw the part of their writ application relating to the trial court's grant of Liberty Mutual's Motion to Exclude. We grant Relators’ Motion for Partial Withdrawal. In light of same, we need not discuss the merits of Relators’ second assignment of error because our grant of their Motion for Partial Withdrawal renders it moot.

DECREE

For the foregoing reasons, we grant Relators’ writ application, deny relief, and grant Relator's Motion for Partial Withdrawal.

WRIT GRANTED; RELIEF DENIED; MOTION FOR PARTIAL WITHDRAWAL GRANTED

FOOTNOTES

1.   See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

2.   This Opinion will summarize the prior May Opinion in more detail in the Discussion section.

3.   . Because the trial court granted Relators’ Motions in Limine with respect to numbers two, three, and four, we need not include those in the list.

4.   In its opposition filed with this Court, Liberty Mutual states that it timely produced all policies and documents to Relators.

5.   See Hubbs v. Anco Insulations, 1998-2570 (La. App. 1 Cir. 12/28/99), 747 So.2d 804; Riverwood Int'l Corp. v. Emps. Ins. of Wausau, 420 F.3d 378 (5th Cir. 2005); and St. Romain v. Delta S. Co., 2022-0111 (La. App. 1 Cir. 9/22/22), 353 So.3d 778.

6.   Relators argue the trial court's ruling is contrary to this Court's Opinion in Landry v. Avondale Indus., Inc., 2012-0950, p. 6 (La. App. 4 Cir. 3/6/13), 111 So.3d 508, 511 (citing Hennegan v. Cooper/T. Smith Stevedoring Co., 2002-0282 (La. App. 4 Cir 12/30/02), 837 So.2d 96).

Judge Dale N. Atkins

LOBRANO, J., CONCURS IN THE RESULT