PAUL A. BONIN, Judge.
Gerald Boudreaux died of lung cancer. His survivors sued several entities and their insurers claiming that Mr. Boudreaux's exposure to asbestos at worksites caused or significantly contributed to his disease. Dr. Gerald E. Liuzza, a pathologist, was proposed by the plaintiffs as an expert witness to establish the causative link between the asbestos exposure and the disease.
Trinity Industries, Inc., one of the defendants, provoked a Daubert-Foret hearing to challenge, specifically, the methodology employed by Dr. Liuzza in arriving at his opinion. Its insurers, Continental Insurance Company, Hartford Accident and Indemnity Company, and Certain Underwriters at Lloyd's London, joined in and adopted Trinity's two motions. The trial judge excluded Dr. Liuzza's proposed testimony. Then, because the exclusion of Dr. Liuzza's testimony meant that the plaintiffs were unable to establish at trial an essential element of their claim, the trial judge granted summary judgment to Trinity and its insurers and dismissed the Boudreaux family members' lawsuit against them with prejudice.
The parties all agree that the correctness of the ruling on the defendants' motion for summary judgment is dependent upon our disposition of the trial judge's action in excluding Dr. Liuzza's testimony. We review that ruling under an abuse-of-discretion standard which, in the absence of the trial judge's misapplication of the law or a clearly erroneous view of the facts, is highly deferential to the trial judge's evidentiary ruling.
The Boudreaux family members, as the proponents of Dr. Liuzza's expert testimony, bear the burden of proving that the methodology employed by the proposed expert is generally accepted in the appropriate or relevant scientific community. See State v. Hampton, 15-1222, p. 17 (La. App. 4 Cir. 12/23/15), 183 So.3d 769, 779, writ denied, 16-0124 (La. 3/14/16), 189 So.3d 1073; Wingfield v. State ex rel. Dept. of Transp. & Dev., 01-2668, p. 10 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 797. With the proponents' burden of proof in mind, and in the absence of any legal error or gross factual error, we conclude that the trial judge did not abuse her discretion in excluding Dr. Liuzza's proposed expert testimony on causation. And, on that account, we affirm the grant of summary judgment and the dismissal with prejudice of the plaintiffs' lawsuit against Trinity, Continental, Hartford, and Certain Underwriters at Lloyd's London.
We turn now to a more complete explanation of our decision.
We first briefly review this matter's procedural history and examine the judgment under review.
Gerald Boudreaux was diagnosed with lung cancer on August 20, 2009, and died on May 10, 2010. On May 6, 2011, Mr. Boudreaux's three surviving children filed a petition for wrongful death and survival damages in the Civil District Court for the Parish of Orleans against numerous parties that were, at one time, involved in the distribution, sale and ultimate use of asbestos and asbestos-containing products. Specifically, the Boudreaux family alleges that their father suffered substantial exposure to asbestos while working at the same shipyard in Harvey, Louisiana, for a succession
In 2011, the Boudreaux family brought strict liability claims against Trinity, as successor in interest to Gretna Machine, and Bollinger, as successor in interest to Halter Marine.
Subsequently, Trinity brought two interrelated motions after the conclusion of discovery yet prior to trial. First, Trinity brought a motion in limine that sought to prevent Dr. Liuzza, the Boudreaux family's expert pathologist, from testifying at trial on the grounds that his opinion regarding medical causation, and the methodology by which he arrived at it, do not satisfy the requirements set out in the Daubert and Foret cases. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Foret, 628 So.2d 1116 (La. 1993). Trinity simultaneously filed a motion for summary judgment which asked the trial judge to dismiss the Boudreaux family's claims against it in the event the trial judge grants its motion in limine.
With respect to its motion in limine, Trinity argued that the trial judge should strike Dr. Liuzza's opinion on medical causation because the methodology used in reaching his opinion was flawed in two respects. First, Trinity pointed out that, while he acknowledged that cigarette smoking is the leading cause of lung cancer, Dr. Liuzza nevertheless did not know about — and thus did not consider — Mr. Boudreaux's thirty-year history of smoking three packs of cigarettes a day.
Next, Trinity noted that Dr. Liuzza formed his causation opinion without any underlying evidence regarding the dosage of asbestos received by Mr. Boudreaux via occupational exposure. In the usual case, Trinity claimed, a plaintiff's pathologist is not qualified to calculate asbestos dosage and so will rely upon the opinion of the plaintiff's industrial hygienist when forming his opinion on causation. In this case, Trinity notes, Dr. Liuzza formed his opinion
Accordingly, Trinity asserted, Dr. Liuzza could not credibly testify whether Mr. Boudreaux's historical exposure to asbestos exceeded any applicable exposure limits. Dr. Liuzza's opinion that Mr. Boudreaux's presumed daily exposure to asbestos resulted in lung cancer, Trinity argued, should be excluded because it is not based on any quantifiable evaluation of Mr. Boudreaux's actual asbestos exposure history. Continental, Hartford, and Certain Underwriters at Lloyd's London moved to adopt as their own Trinity's two motions.
In opposing the motion, the Boudreauxs first argued that, contrary to Trinity's assertion, Dr. Liuzza did consider Mr. Boudreaux's smoking history when formulating his opinion, and pointed in support to this statement from his report: "Most workers in Mr. Boudreaux's field are smokers. If Mr. Boudreaux did in fact also have a significant tobacco exposure, then I would attribute his lung cancer to the combined effects of asbestos and tobacco." The Boudreaux family further pointed out that, when confronted by Trinity's counsel with the evidence of Mr. Boudreaux's smoking history, Dr. Liuzza altered his opinion during the course of the deposition to conclude that Mr. Boudreaux's lung cancer could be attributed to a combination of asbestos and tobacco. With respect to Trinity's second argument, the Boudreaux family asserted that no scientific standard required Dr. Liuzza to rely solely upon an industrial hygienist when estimating Mr. Boudreaux's exposure history. Rather, the Boudreauxs argued that the jurisprudence indicates that Dr. Liuzza was justified in relying solely upon the twenty-five pages of deposition extracts provided to him by counsel.
At the subsequent August 7, 2015 motion hearing, the trial judge was not persuaded by the Boudreaux family's arguments and, instead, granted Trinity's motion in limine. After excluding Dr. Liuzza, the trial judge then granted Trinity's motion for summary judgment on the grounds that the Boudreaux family could no longer prove causation. The trial judge, accordingly, signed a judgment on August 17, 2015, which granted Trinity's two motions and dismissed with prejudice the Boudreaux family's claims against Trinity, Continental, Hartford, and Certain Underwriter's at Lloyd's London. The Boudreaux family then filed a notice of intent to seek supervisory writs on the trial judge's exclusion of Dr. Liuzza's testimony from trial. The Boudreaux's writ application was timely lodged with this Court on September 4, 2015. Similarly, the Boudreaux family also brought a motion for new trial which asked the trial judge to reconsider her judgment that granted Trinity's motion for summary judgment. After a hearing, the trial judge denied the new trial motion on October 15, 2015. The Boudreaux family then filed a motion for devolutive appeal seeking review only of the trial court's August 17, 2015 judgment. Before their appeal was lodged, however, yet after we learned from the parties that the trial
In this Part, we address first the Boudreaux family's contention that the trial judge committed legal error in failing to conduct a detailed Daubert-Foret analysis on the record at the motion hearing in contravention of Article 1425 F(2) of the Louisiana Code of Civil Procedure. Specifically, Article 1425 F(3) provides in pertinent part that if the ruling of the court is made at the conclusion of the hearing — which is what happened in this case — the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. Because of this alleged failure, the Boudreaux family contends, we must review the admissibility of Dr. Liuzza's expert testimony de novo. See Palumbo v. Shapiro, 11-0769, p. 12 (La.App. 4 Cir. 12/14/11), 81 So.3d 923, 930 ("where one or more trial court legal errors interdict the fact-finding process ..., and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record to determine a preponderance of the evidence."). We disagree.
We note that the trial judge did explain on the record her reasons for excluding Dr. Liuzza's testimony. While her comments were relatively brief, she concluded that Dr. Liuzza's failure to consider Mr. Boudreaux's thirty-year history of smoking three packs of cigarettes a day, his family medical history, and the remainder of Mr. Thibodeaux's deposition to be so divergent from scientific medical practice as to render his methodology unreliable. While better judicial practice suggests that the trial judge in this case could have been more detailed in her oral reasons, we need not conclude today whether the reasons given violate by brevity the letter of Article 1425 F(3). This is so because the Boudreaux family does not explain how the trial judge's failure to provide detailed findings and reasons after excluding Dr. Liuzza's expert testimony somehow interdicted her already concluded analysis. Accordingly, we decline to conduct a de novo review of the trial judge's ruling.
We next examine the Boudreaux family's contention that the trial judge erred when she granted Trinity's motion in limine and excluded Dr. Liuzza's expert opinion testimony. The Boudreaux family properly preserved this issue for our review by introducing into evidence copies of Dr. Liuzza's report and deposition. See La. C.C.P. art. 1636; La. C.E. art. 103 A(2) (error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected and the substance of the evidence was made known to the court by counsel). Cf. Hightower v. Schwartz, 14-0431, p. 9 (La. App. 4 Cir. 10/15/14); 151 So.3d 903, 907 (we "will not consider an assignment of error which complains about the exclusion of testimony or other evidence when the party failed to make its proffer or offer of proof.").
We now consider the methodology employed by Dr. Liuzza. The Boudreaux family introduced no live testimony at the hearing, but instead relied upon several exhibits: 1) Dr. Liuzza's report; 2) four pages from his discovery deposition; 3) an
Dr. Liuzza's methodology is reflected in his report, his deposition, and an affidavit sworn for purposes of the motion hearing. In his report, authored several years after Mr. Boudreaux died, Dr. Liuzza sets out the materials that were provided to him by the Boudreaux family: 1) medical records from West Jefferson Medical Center; 2) a Louisiana death certificate; 3) twenty-five pages from Mr. Thibodeaux's deposition; 4) five microscopic slides from the West Jefferson Medical Center comprising immunohistorical stains and controls; and 5) two paraffin tissue blocks from Delta Pathology.
Mr. Boudreaux, Dr. Liuzza noted, was diagnosed with lung cancer in August of 2009. His examination of the slides and tissue samples taken from Mr. Boudreaux's body indicated the presence of cancerous cells but showed no signs of asbestos-induced changes to the lungs. He, thus, admitted that: "In this case the pathology materials are inadequate for a pathologic determination of asbestos exposure. Therefore one must rely on the asbestos exposure history. I would refer you to in [sic] industrial hygienist in this regard.[
Observing finally that "[m]ost workers in Mr. Boudreaux's field are smokers, Dr. Liuzza admitted that he was provided with no information about Mr. Boudreaux's possible tobacco exposure. He nevertheless stated that [i]f Mr. Boudreaux did in fact also have a significant tobacco exposure, then I would attribute his lung cancer to the combined effects of asbestos and tobacco." Referring to it as "synergism" or "a multiplicative effect," he explained that a person "with both a significant asbestos exposure and a significant tobacco exposure faces a risk of developing bronchiogenic carcinoma that ranges from forty-five to ninety times that of the population not exposed to either of these two agents."
He reiterated these opinions in his affidavit and cited to two attached scholarly articles in support: Consensus Report, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, 23 Scand. J. Work Environ. Health 311-316 (1997); Consensus Report, Asbestos, Asbestosis, and Cancer, The Helsinki Criteria for Diagnosis and Attribution 2014: Recommendations, 41(1) Scand. J. Work Environ. Health 5-15 (2014). The two articles both contain the following statement concerning the interplay of tobacco and asbestos in causing lung cancer: "Although tobacco smoking affects the total lung cancer risk, this effect does not detract from the risk of lung cancer attributable to asbestos exposure. No attempt has been made in this report to apportion the relative contributions of asbestos exposure and tobacco smoking." Dr. Liuzza's methodology for attributing Mr. Boudreaux's lung cancer to asbestos exposure is therefore premised entirely upon his reading of Mr. Thibodeaux's deposition testimony.
Under the standards set forth in Daubert, adopted by the Louisiana Supreme Court in Foret, 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." Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Repudiating the former "general acceptance" standard, the Daubert Court held that the Federal Rules of Evidence control the admissibility of expert scientific evidence in federal court. Finding that the Louisiana Code of Evidence was modeled after the Federal Rules of Evidence, our Supreme Court adopted the requirements set forth in Daubert. See Foret, 628 So.2d at 1122.
The general rule governing the admissibility of expert testimony in Louisiana courts is found in La. C.E. art. 702. "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" four conditions are satisfied. Id. (emphasis added). The
Thus, in exercising her gatekeeping function, a trial judge must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-593, 113 S.Ct. 2786. Importantly, if the gatekeeping role is not properly executed, there is a risk that the expert evidence may be prejudicial or misleading; trial judges must therefore employ "a careful evaluation of the methodology surrounding the testimony and its conclusions." Foret, 628 So.2d at 1122.
Clearly, scientific opinion testimony on causation is relevant to a suit seeking recompense for the contraction of asbestos-related lung cancer. As to the reliability of such expert opinion testimony, pertinent factors for the trial court to consider include: 1) the "testability" of the scientific theory or technique; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted in the scientific community. See Daubert, 509 U.S. at 594-595, 113 S.Ct. 2786; see also State v. Quatrevingt, 93-1644, p. 11 (La. 2/28/96), 670 So.2d 197, 204.
It is well-established that the trial court is afforded wide discretion in determining
The abuse-of-discretion standard is highly deferential to the trial judge's determination under consideration. See LCR-M Ltd. P'ship v. Jim Hotard Prop., L.L.C., 13-0483, p. 9 (La.App. 4 Cir. 10/9/13), 126 So.3d 668, 675. An abuse of discretion generally results from a conclusion reached capriciously or in an arbitrary manner. See Tugwell v. Plaquemines Parish Gov't, 14-0657, p. 5 (La.App. 4 Cir. 11/19/14), 154 So.3d 695, 699. "Arbitrary or capricious" means the absence of a rational basis for the action taken. See A.S. v. D.S., 14-1098, p. 17 (La.App. 4 Cir. 4/8/15), 165 So.3d 247, 257. And a court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. See Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 14-0843, p. 8 (La.App. 4 Cir. 12/17/14), 156 So.3d 1234, 1240.
Having reviewed the record, we discern no abuse of discretion in the exclusion of Dr. Liuzza's expert opinion testimony. Here, the trial judge excluded Dr. Liuzza's testimony from trial after concluding that his failure to consider Mr. Boudreaux's thirty-year history of smoking three packs of cigarettes a day, family medical history, and the remainder of Mr. Thibodeaux's deposition to be so divergent from scientific medical practice as to render his methodology unreliable: "Ms. Donahue, I'm just trying to understand, if that's all an expert has to do is to look at a few pages. Is that the scientific method or is that the method that we use for establishing whether or not an individual is an expert?"
The Boudreaux family members, however, assert that while he did not know the details of Mr. Boudreaux's smoking history, Dr. Liuzza did consider it a possibility and opined that if it was shown that Mr. Boudreaux was a smoker then the combined synergistic effects of tobacco and asbestos put him at a higher risk of developing lung cancer than if he had only been exposed to one of the substances. And the Boudreaux family members point out that Dr. Liuzza did in fact ask their attorneys for information concerning Mr. Boudreaux's past medical history and tobacco use. They admit, however, that he was told by their attorneys that he was provided with all pertinent records in their possession.
The Boudreaux family members, therefore, appear to urge the reversal of Dr. Liuzza's exclusion on the grounds that his apparent methodological errors should have been attributed to their own failure to provide him with relevant medical information. While we disagree with the proposition that the trial judge's ruling should be reversed on these grounds, we observe that the Boudreaux family offered no evidence or testimony — save Dr. Liuzza's own — to substantiate the reliability of Dr. Liuzza's opinions. For example, Dr. Liuzza
Dr. Liuzza also claims in his affidavit: "My opinions as well as the materials and methodology relied upon are generally accepted in my field of anatomic, clinical, and forensic pathology. These are all the types of materials that I and other pathologists normally rely upon to render our opinions." However, the Boudreaux family offered no evidence to substantiate Dr. Liuzza's claims that the methodology employed by him in this case is also used by those professionals practicing in the fields of anatomic, clinical, or forensic pathology. No professional practicing in these fields testified verbally or by way of affidavit that the methods employed by Dr. Liuzza are reflective of the methodology generally employed in their profession. The record, moreover, is devoid of evidence as to the types of methods and materials relied upon by other pathologists to render opinions on disease causation.
Dr. Liuzza also notes in his affidavit that he is "qualified, as a pathologist familiar with pertinent literature on the causes and diagnosis of lung cancer, to opine that an exposure such as Mr. Boudreaux's is significant." In support of these claims, Dr. Liuzza appended to his affidavit a list of eleven scholarly books and articles. Aside from the two Consensus Reports mentioned earlier, however, the Boudreaux family did not offer into evidence copies of the scholarly works referenced by Dr. Liuzza in his affidavit. As for the two articles actually introduced into evidence, we observe that far from substantiating his "synergistic" theory about the interplay of tobacco and asbestos, the two Consensus Reports merely observe: "Although tobacco smoking affects the total lung cancer risk, this effect does not detract from the risk of lung cancer attributable to asbestos exposure." While we stake no position on the scientific propriety of Dr. Liuzza's "synergistic" theory, we observe candidly that it is not supported at all by the two pieces of scholarly literature offered into evidence by the Boudreaux family at the Daubert-Foret hearing. An enquiring mind might find it substantiated within the pages of the other scholarly articles referenced by Dr. Liuzza. The Boudreaux family, however, did not introduce these articles into evidence and we are prohibited
Simply put, the Boudreaux family did not meet its burden of establishing the reliability of Dr. Liuzza's methodology. Given the dearth of substantiating evidence in the record, we conclude that the trial judge did not abuse her discretion in granting Trinity's motion in limine and excluding the expert opinion testimony of Dr. Liuzza from trial.
In this Part, we turn to consider the correctness of the trial judge's granting of the motion for summary judgment in favor of Trinity.
In light of the issues before us, and the nature of summary judgment proceedings, we think it important to briefly establish the parties' respective burdens of proof in the event this case were to proceed to trial. Here, the Boudreaux family advances wrongful death and survival claims, which are tort-based causes of action, for damages stemming from asbestos exposure in the workplace. See La. Civil Code arts. 2315.1 and 2315.2; Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). The Boudreaux family's petitions assert a strict liability claim against Trinity and the other premises defendants for damages stemming from Mr. Boudreaux's workplace exposure to asbestos-containing products. See La. Civil Code art. 2317. Before a defendant can be cast in judgment under Article 2317, "the plaintiff must prove that: 1) the thing which caused damage was in the defendant's custody and control (garde); 2) the thing had a vice or defect which created an unreasonable risk of harm; and 3) the injuries were caused by a defect." Tsegaye v. City of New Orleans, 15-0676, p. 12 (La.App. 4 Cir. 12/18/15), 183 So.3d 705, 714, writ denied, 16-0119 (La.3/4/16), 188 So.3d 1064 (quoting Chaplain v. Dimitri, 14-1081, p. 6 (La.App. 4 Cir. 8/5/15), 174 So.3d 222, 226). Additionally, Article 2317.1 "adds the requirement that the injured plaintiff prove that the owner/custodian knew or, in the exercise of reasonable care, should have known of the unreasonable risk of harm, and that the damage could have been prevented by the exercise of reasonable care, and that [the owner/custodian] failed to exercise such reasonable care." Id. (internal quotations omitted).
In addition to strict liability, the Boudreaux family's petitions also assert negligence claims against the premises defendants and Trinity's executive officers for their respective failures to provide respiratory protection, clean air, protective clothing, and clean water to Mr. Boudreaux. See La. Civil Code arts. 2315 and 2316. The plaintiff in all negligence actions has the burden of proving by a preponderance of the evidence the following five elements: 1) duty of care owed by the defendant to the plaintiff; 2) breach of that duty by the defendant; 3) cause-in-fact;
We apply a de novo standard of review in examining trial court rulings on summary judgment motions. See Lewis v. Young, 15-0798, p. 3 (La.App. 4 Cir. 2/24/16), 187 So.3d 531, 535. In reviewing such judgments, appellate courts utilize the same criteria that govern the trial court's consideration of whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See Brennan's Inc. v. Colbert, 15-0325, p. 25 (La. App. 4 Cir. 4/13/16), 191 So.3d 1101, 1115, p. 11. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966 B; Rapalo-Alfaro v. Lee, 15-0209, p. 8 (La.App. 4 Cir. 8/12/15), 173 So.3d 1174, 1179.
On a motion for summary judgment, the burden of proof remains with the movant. See La. C.C.P. art. 966 C(2). If the moving party will not bear the burden of proof on the issue at trial, however, and points out that there is an absence of factual support for one or more elements essential
Here, the Boudreaux family members at a trial on the merits would bear the burden of proof with respect to each of the elements comprising their various causes of action. See Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). Trinity's motion for summary judgment focuses exclusively upon the Boudreaux family's inability to prove the cause-in-fact element common to both sets of negligence and strict liability claims. In order to establish that his alleged asbestos exposure was a cause-in-fact of the claimed injuries, the Boudreaux family must show that: 1) Mr. Boudreaux's workplace exposure to asbestos was significant; and, 2) that this exposure caused or was a substantial factor in bringing about his lung cancer. See Oddo v. Asbestos Corp. Ltd., 14-0004, p. 11 (La. App. 4 Cir. 8/20/15), 173 So.3d 1192, 1202. Causation, as we have previously noted, is the "`premier hurdle' faced by plaintiffs in asbestos litigation." Torrejon v. Mobil Oil Co., 03-1426, p. 18 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, 890 (quoting Brian M. DiMasi, Comment, The Threshold Level of Proof of Asbestos Causation: The "Frequency, Regularity and Proximity Test" and a Modified Summers v. Tice Theory of Burden-Shifting, 24 Cap. U.L.Rev. 735, 738-741 (1995)). Their failure to establish this individual element — as would be their failure to establish any individual element of any cause of action — is fatal to the Boudreaux family members' negligence and strict liability-based causes of action. See Vodanovich v. A.P. Green Indus., Inc., 03-1079, pp. 5-6 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, 933-934.
As we have noted in the context of non-asbestos cases, "expert medical testimony is required when the conclusion regarding medical causation is one that is not within common knowledge." Serou, 12-0089, p. 31, 105 So.2d at 1091 (citing Chavers v. Travis, 04-0992, p. 10 (La.App. 4 Cir. 4/20/05), 902 So.2d 389, 395). Here, the Boudreaux family members do not contend that they can prove the causation element via reference to common knowledge, circumstantial evidence, or the so-called Housley presumption. See Williams v. Stewart, 10-0457, pp. 6-7 (La. App. 4 Cir. 9/22/10), 46 So.3d 266, 272.
We affirm the trial court's judgment of August 17, 2015, which dismissed with prejudice all claims of Dwayne Boudreaux, Gerilyn Cook, and Bryan Boudreaux, individually and as proper parties in interest for Gerald Boudreaux, against Trinity Industries, Inc., Continental Insurance Company, Hartford Accident and Indemnity Company, and Certain Underwriters at Lloyd's London.