Emily Everett v. Air Products and Chemicals, Inc.

EMILY EVERETT * NO. 2022-CA-0539 VERSUS * COURT OF APPEAL AIR PRODUCTS AND * CHEMICALS, INC., ET AL FOURTH CIRCUIT * STATE OF LOUISIANA ******* CONSOLIDATED WITH: CONSOLIDATED WITH: EMILY EVERETT NO. 2022-CA-0540 VERSUS AIR PRODUCTS AND CHEMICALS, INC., ET AL CONSOLIDATED WITH: CONSOLIDATED WITH: EMILY EVERETT NO. 2022-CA-0541 VERSUS AIR PRODUCTS AND CHEMICALS, INC., ET AL

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-05845, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Chief Judge Terri F. Love ****** (Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Pro Tempore James F. McKay, III)

Lewis Owens Unglesby Lance C. Unglesby Jamie F. Gontarek UNGLESBY LAW FIRM Napoleon Street Baton Rouge, LA 70802

Thomas More Flanagan Anders F. Holmgren FLANAGAN PARTNERS, LLP St. Charles Avenue Suite 3300 New Orleans, LA 70170 Lindsey A. Cheek THE CHEEK LAW FIRM Poydras Street Suite 2310 New Orleans, LA 70130 COUNSEL FOR PLAINTIFFS/APPELLANTS Douglas Richard Elliott Jamie H. Baglio H. Philip Radecker, Jr. McGready Lewis Richeson Milele N. St. Julien Francis Xavier deBlanc, III PUGH ACCARO HAAS RADECKER & CAREY, LLC 1100 Poydras Street Suite 3300 New Orleans, LA 70163 COUNSEL FOR APPELLEE Lawrence G. Pugh, III PUGH ACCARDO HAAS, RADECKER & CAREY, LLC 1100 Poydras Street, Suite 3600 New Orleans, LA 70163 John J. Hainkel, III Kelly L. Long Angela M. Bowlin Kelsey A. Eagan Magali A. Puente-Martin FRILOT L.L.C. 1100 Poydras Street, Suite 3700 New Orleans, LA 70163 Mary S. Johnson Kimberly Wicker Jones JOHNSON GRAY MCNAMARA, LLC 21357 Marion Lane Suite 300 Mandeville, LA 70471 S. Suzanne Mahoney Nichole M. Gray JOHNSON GRAY McNAMARA, LLC Poydras Street Suite 1201 New Orleans, LA 70130 Michael R. Denton BERNARD, CASSISA, ELLIOTT & DAVIS 3838 N. Causeway Blvd. Suite 3050 Metairie, LA 70002 Timothy William Hassinger GALLOWAY JOHNSON TOMPKINS BURR & SMITH Poydras Street 40th Floor New Orleans, LA 70139 Glen E. Mercer Kourtney T. French SALLEY, HITE, MERCER & RESOR, LLC Canal Street Suite 1710 New Orleans, LA 70130 Kelly B. Becker Kathryn Z. Gonski Mark R. Deethardt LISKOW & LEWIS Poydras Street, Suite 5000 New Orleans, LA 70139-5099 COUNSEL FOR DEFENDANTS/APPELLEES

APPEAL DISMISSED AS TO RILEY POWER, INC. SEPTEMBER 16, 2022 TFL RML This is an asbestos action. Plaintiffs/Appellants, Paula Everett and William JFM 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.

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).

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.