On September 12, 2023, plaintiffs Monica Kelly-Lewis, Gia Lewis-Grows, and Levar Lewis, successors to the estate of decedent Brouney Lewis, filed this asbestos action in Louisiana State Trial Court in the Parish of Orleans. (Brouney Lewis, et al., v. Taylor Seidenbach, Inc., No. 2:23-cv-6764, 2025 U.S. Dist. LEXIS 165321 E.D. La. Aug. 26, 2025)
Plaintiffs allege decedent developed the lung cancer from which he died because of his exposure to asbestos while employed at Avondale Shipyards from 1966 to 2012 as a painter and welder. Plaintiffs filed an amended operative complaint asserting claims including products liability, negligence, and wrongful death against defendants, alleged to be manufacturers and suppliers of asbestos-containing products, and their insurers.
On November 11, 2023, Avondale removed this action to federal court and filed a claims against cross-defendants and third-party defendants for having mined, manufactured, sold, distributed, supplied, installed, and/or used the asbestos-containing products to which the decedent was allegedly exposed; or for having insured those who did.
On April 17, 2024, the district court set its scheduling order in the original asbestos action. Plaintiffs were ordered to identify expert testimony and submit written expert reports by December 26, 2024. They failed to do so and to date have not identified any experts or expert testimony, nor provided good cause for not having done so. On the other hand, Avondale timely produced an expert report attributing decedent’s lung cancer to his smoking and not asbestos exposure.
Based on plaintiffs’ inability to establish specific medical causation by timely expert production, multiple defendants moved for summary judgment. Plaintiffs did not challenge this argument, only arguing to postpone the court’s decision for the discovery of decedent’s living co-worker, a potential lay witness. Plaintiffs claimed they discovered said witness on January 17, a month after their expert report deadline. On February 14, plaintiffs accordingly moved to postpone “all remaining deadlines, as well as the trial date” in the court’s scheduling order. The court granted extension in its March 30 updated-scheduling order, but only as to the non-elapsed deadlines (i.e., excluding the elapsed expert disclosure deadline).
Summary judgment should be granted when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a). Once movant demonstrates absence of genuine issue of material fact, the burden shifts to the nonmovant to establish an issue of fact warranting a trial. Here, plaintiffs’ failure to identify any expert witness testimony was fatal to their claims. Applying relevant Louisiana state law to this case, for asbestos exposure, plaintiffs must show (1) exposure, i.e., significant exposure to the product complained of, and (2) causation, i.e., that the exposure was a substantial factor in bringing about injury. Importantly, plaintiffs must rely on expert testimony with scientific knowledge to prove causation in asbestos cases. See Seaman v. Seacor Marine L.L.C., 326 F. App’x 721, 723 (5th Cir. 2009); Schindler v. Dravo Basic Materials Co., Inc., 790 F. App’x 621, 625 (5th Cir. 2019).
Such expert testimony and reports must be timely identified in an expert disclosure, including all the facts or data relied upon, and in the sequence ordered by the court. Fed. R. Civ. P. 26(a)(2). Plaintiffs have not done so, and conversely, there is expert testimony to support that decedent’s injury was caused by his smoking, not by asbestos exposure. Plaintiffs have not supported the foundational causation element of the asbestos exposure claim, and the court must accept Avondale’s uncontroverted expert testimony as true. As such, plaintiffs cannot create a genuine dispute of material fact as to causation and are incapable of proving causation at trial.
The court’s order to extend the non-elapsed deadlines did not relieve plaintiffs of their Rule 26 expert disclosure obligations, nor did its extension of deadlines implicate the blown expert deadline. Nor did the new discovery of the lay witness constitute good cause to excuse plaintiffs’ failure to timely identify expert testimony.
Summary judgment was therefore granted for the defendants, and Avondale’s crossclaims and third-party claims were dismissed as moot.
Read the full decision here.
