CLIMMIE CRAFT * NO. 2024-C-0616 VERSUS * COURT OF APPEAL EAGLE, INC., ET AL. * FOURTH CIRCUIT * STATE OF LOUISIANA *******

ON SUPERVISORY WRIT FROM THE CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-11586, DIVISION “B” Honorable Marissa Hutabarat, ****** Judge Karen K. Herman ****** (Court composed of Judge Paula A. Brown, Judge Dale N. Atkins, Judge Karen K.

Herman)

Christopher C. Colley Kristopher L. Thompson Emily C. LaCerte BARON & BUDD, P.C.

2600 Citiplace Drive, Suite 400 Baton Rouge, Louisiana 70808 And Poydras Street, Suite 2100 New Orleans, LA 70112 COUNSEL FOR PLAINTIFF-RELATOR Leigh Ann Schell Raymond P. Ward Luke G. Lahaye ADAMS & REESE, LLP Poydras Street, Suite 4500 New Orleans, LA 70139 McCready L. Richeson Lawrence G. Pugh PUGH ACCARDO 1100 Poydras Street, Suite 3600 New Orleans, LA 70163 Kevin J. Lavie Joseph E. Lee, III PHELPS DUNBAR, LLP Canal Street, Suite 2000 New Orleans, LA 70130

COUNSEL FOR DEFENDANTS-RESPONDENTS

WRIT GRANTED; REVERSED AND REMANDED SEPTEMBER 27, 2024 KKH PAB DNA Plaintiff, Climmie Craft (“Mrs. Craft”), seeks emergency supervisory review of the trial court’s August 22, 2024 ruling,1 which partially granted a Daubert2 Motion in Limine to Exclude and/or Limit the Testimony of Plaintiff’s Expert, Kenneth Garza (“Mr. Garza”), filed by Defendants, Ports America Gulfport Inc., and joined by Defendants, Certain Underwriters at Lloyd’s London, Crowley Marine Services, Inc., and Hartford Accident and Indemnity Company.

(collectively, “Defendants”). Mrs. Craft also seeks review of the trial court’s September 25, 2024 judgment, which partially denied her Motion for Reconsideration of the August 22, 2024 ruling.

For the following reasons, we grant the writ application, reverse the trial court’s rulings, and remand for further proceedings.3

FACTUAL AND PROCEEDURAL HISTORY Mrs. Craft filed suit in this matter asserting that she contracted asbestos- related lung cancer as a consequence of her household exposure (“take-home”) to asbestos while laundering the asbestos-contaminated clothing of her husband, Jerry Craft (“Mr. Craft”). Mrs. Craft alleges that her husband was exposed to asbestos while employed by various stevedoring companies, including Defendants. Mr. Craft died from asbestos-related mesothelioma.

To demonstrate that her household exposure to asbestos and her husband’s workplace exposure to asbestos was substantial and significantly above background levels, Mrs. Craft offered the expert opinion of Mr. Garza, a Certified Industrial Hygienist. Mr. Garza has rendered an opinion that Mr. Craft suffered significant occupational exposures to asbestos while employed by Defendants and that Mrs. Craft suffered significant household exposures to asbestos while laundering her husband’s work clothing.4 Defendants filed motions in limine seeking to exclude and/or limit the testimony of Mr. Garza. Defendants argued therein that Mr. Garza’s opinion is based on insufficient facts and data.

The trial court granted Defendants’ motion, in part, precluding Mr. Garza “from offering testimony regarding the asbestos exposures by Jerry Craft and/or Climmie Craft. The Court will allow Kenneth Garza to testify about general

timeliness of the motion to reconsider under La. C.C.P. art. 1425(F)(2) in the opposition filed in the trial court. Accordingly, we do not find this argument persuasive.

industrial opinions, only.” Following the denial of Mrs. Craft’s Motion for Reconsideration as to Mr. Garza, this writ application followed.

LAW & DISCUSSION Mrs. Craft argues that the trial court erred in prohibiting Mr. Garza from testifying that her husband’s exposures to asbestos while employed by each Defendant were significant and above background, and that her “take-home” asbestos exposures from her husband’s employment by each Defendant were significant and above background. Mrs. Craft claims that Mr. Garza has sufficiently testified as to the frequency Mr. Craft was exposed to asbestos because of the work he performed for each Defendant.

“Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by our Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La. 1993), the trial court is required to perform a ‘gatekeeping’ function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’”

Allen v. Eagle Inc., 2022-0386, 0387, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d 808, 814-15, writ denied, 2022-01373 (La. 11/16/22), 349 So.3d 998 (quoting Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5 (La. App. 4 Cir. 7/29/09), 17 So.3d 459, 463.

La. C.E. art. 702(A) addresses the standard for admissibility of expert testimony and provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

This Court in Allen, 2022-0386, p. 9, 346 So.3d at 815, recognized that the character of the evidence upon which an expert bases his opinion affects only the weight to be afforded to the expert’s testimony and does not make his opinion evidence inadmissible pursuant to Daubert. This Court stated: The [Louisiana] Supreme Court, in Certain Underwriters at Lloyd’s London v. United States Steel Corp., 20[19]-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122, (quoting Lafayette City-Parish Consol.

Gov’t v. Person, [20]12-0307, p. 8 (La. 10/16/12), 100 So.3d 293, 298), found that an “expert may provide testimony based on information obtained from others, and the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion.” See also MSOF Corp. v. Exxon Corp., [20]04-0988, p. 16 (La. App. 1 Cir. 12/22/05), 934 So.2d 708, 720 (wherein the First Circuit held that “the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion ... and may serve as a basis for attack by defendants on cross-examination at trial, but it does not make his opinion evidence inadmissible under Daubert.”). Id. Based on the record before us, we find that the evidence upon which Mr. Garza based his opinion affects only the weight afforded Mr. Garza’s conclusions.5 Therefore, Mr. Garza’s evidence and testimony should be weighed by the jury.

Accordingly, Mrs. Craft’s writ application is granted. Further, we reverse the trial

court’s rulings, which found that Mr. Garza would be limited to offering only general industrial hygiene opinions at trial and denied the motion to reconsider in part. The matter is remanded to the trial court for further proceedings.

WRIT GRANTED; REVERSED AND REMANDED