Asbestos lawsuit to stay in Louisiana court, despite evidence of only remaining Louisiana defendant being improperly joined

By Louisiana Record reports | Dec 6, 2013

NEW ORLEANS – An asbestos lawsuit is being kept in a Louisiana federal court despite the court supporting an argument that the only remaining Louisiana plaintiff was improperly joined to the case via evidence that would likely not be admissible in state court.

Walter Hanson Smith Jr., an Alabama man, filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana that alleged his mesothelioma was caused by numerous defendants whom he formerly worked for and who supplied asbestos materials to the job sites where he worked.

Shortly after proceedings in the lawsuit began on Nov. 2, 2012, Smith died and his wife Miriam P. Smith became the lead plaintiff in the suit.

Of the many defendants in the case only four were considered Louisiana residents including, Taylor-Seidenbach Inc., Eagle Inc., McCarty Corp. and Maryland Casualty Insurance Company. While Eagle Inc. and McCarty Corp. settled with the plaintiff and were removed from the case,Maryland Casualty Insurance Company was dismissed without opposition by the plaintiff leaving Taylor-Seidenbach Inc. as the only remaining Louisiana defendant.

In a Dec. 3 ruling, U.S. District Judge Carl Barbier found that Walter Smith had only worked for an employer for a period of four weeks in 1969 that sporadically received asbestos products from Taylor-Seidenbach Inc. beginning in that year and over the next three decades and that “it does not appear reasonably possible that a state court would impose liability on Taylor.”

According to Barbier, that interpretation is sufficient for removal.

“The test for improper joinder where there is no allegation of actual fraud is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant. A mere theoretical possibility of recovery is not sufficient to preclude a finding of improper joinder,” Barbier wrote.

While the court supported the defendants’ ability to have the case removed to another court, and despite the finding that Taylor-Seidenbach Inc. was the only remaining Louisiana defendant and appears to be unconnected to Walter Smith’s contraction of mesothelioma, the court has refused to allow the case to be removed to another jurisdiction because “the facts that the parties are at the final stages of discovery and that Mrs. Smith has taken little action with regard to Taylor throughout the course of litigation, persuades the Court that remand is inappropriate.”

Case no. 2:13-cv-06323-CJB-ALC.

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