NEW ORLEANS (Legal Newsline) - A onetime dockworker who couldn’t recall asbestos exposure in 2004 but recovered the memory by the time he was deposed again in 2021 salvaged a lawsuit over the death of his wife, who allegedly succumbed to lung cancer caused by asbestos dust the worker brought home on his clothes.
Saying a jury must decide whom to believe, Louisiana’s Fourth Circuit Court of Appeal, in an Aug. 10 decision, upheld a trial court’s refusal to grant summary judgment to Lloyds Underwriters and Lykes Brothers Steamship Co. The defendants argued plaintiff Odell Allen couldn’t produce any evidence he was exposed to asbestos while emptying Lykes ships on the New Orleans waterfront for several years in the early 1970s, other than statements they said were drawn out of him by his lawyers.
Allen and his children sued in 2021 over the death of Joyce Allen, which they blamed on take-home asbestos. Allen couldn’t recall handling asbestos for Lykes in a 2004 deposition, but 17 years later he said he worked with sacks that were “dusty (white, blue and other colors) and often would get turn open.”
He recalled being “dusty from head to toe” and never showered before going home. Allen’s daughter Nikesha recalled him coming home covered in dust and her mother did the laundry. Nine other riverfront workers testified they handled asbestos for Lykes during the same time.
Allen’s expert, Dr. Murray Finkelstein, didn’t offer any opinion as to whether Allen had been exposed to asbestos at Lykes, which the defendants argued meant there was no support for the claim they were responsible for his wife’s take-home exposure.
Finkelstein based his conclusion on the fact her husband developed asbestosis, which the expert presumed came from work. Another plaintiff expert, industrial hygienist Christopher DePasquale, also concluded Allen brought home asbestos from work based on his testimony and the recollection of other workers.
“After our de novo review of the record, we find genuine issues of material fact as to whether Mr. Allen was exposed to asbestos during his employment with Lykes from the period 1970 until 1973,” the appeals court concluded. “We find genuine issues of material fact as to whether Mrs. Allen’s take-home asbestos exposure was a result of Mr. Allen’s asbestos exposure while employed by Lykes.”