COURT OF APPEAL
STATE OF LOUISIAN
JOHN J. ABRAM, JR. and THAIS B. ABRAM,
EPEC OIL COMPANY, f/k/a TENNECO OIL COMPANY, et al.,
On Appeal from the
34th Judicial District Court
Case No. 91-190; Division A
Parish of St. Bernard
The Honorable Robert A. Buckley
July 5, 2005
Table Of Contents
ISSUES PRESENTED FOR REVIEW
1.Did Tenneco meet its burden of proving tort immunity based on the workers’ compensation statute with respect to Mr. Abram’s pre-1952 exposures to asbestos?
2.Did Tenneco meet its burden of proving tort immunity based on the workers’ compensation statute with respect to injuries caused by its intentional acts?
3.Did the filing of a lawsuit against Tenneco’s solidary obligors interrupt prescription?
4.Are loss of consortium damages available for intentional wrongful conduct occurring after 1982?
5.Can Tenneco appeal from the trial court’s description of damages in its reasons for judgment?
6.Did Tenneco meet its burden of proving liability on the part of Garlock, Johns-Manville, Foster-Wheeler, and Owens-Corning?
APPELLEE’S ASSIGNMENT OF ERROR
The trial court erred in failing to find Tenneco liable for its intentional acts.
STATEMENT OF THE CASE
John J. Abram, Jr. worked around asbestos most of his life. He worked in production of asbestos-containing roofing materials at Flintkote from 1941 to 1951, with an absence in 1945 to serve in the military. In 1951, Mr. Abram left Flintkote to work for six months at the Tenneco refinery, then called Bay Petroleum, during which time he had significant exposure to asbestos. In 1952, Mr. Abram went back to Flintkote, where he worked as a production supervisor. In 1961, Mr. Abram returned to the Tenneco refinery, where he was exposed to asbestos for nearly 30 years. While working as a yard helper, asbestos dust fell on him as he installed and removed packing material and gaskets; while working as an operator, he removed asbestos products from bad seals and worked near people scraping asbestos; while working as a stillman, he scraped insulation, climbed inside confined towers with insulation, and worked around people installing and removing packing material and gaskets; and during turnarounds, he helped insulators and could not avoid breathing in the dust. From 1981 until his retirement in 1990, Mr. Abram worked in the warehouse, where he continued to be exposed to asbestos.
Asbestos Hazards Were Well-known in the Refining Industry in the 1930’s.
Frank Parker, an industrial hygienist with extensive experience in the refining industry, including six years with Shell and four years with Tenneco, testified about basic asbestos information that any industrial hygienist would have known at the time Mr. Abram worked at Tenneco. By the 1930’s, it was well known that asbestos caused asbestosis, and in 1935 the U.S. Public Health Service, a precursor to OSHA, had published studies reporting the hazards of breathing asbestos. Another landmark study confirming that asbestos caused asbestosis was a 1930 report published by Canada’s Institute of Occupational and Environmental Health, which recommended reducing asbestos exposure by controlling the escape of dust, using exhaust ventilation, using wet methods instead of dry, and wearing respirators.
The hazards of asbestos to refinery workers in particular was recognized early on. In the 1930’s, Standard Oil conducted a large study that established that exposure to asbestos in a petroleum refinery could cause asbestosis. This widely-distributed report was explicitly conducted as “a service to the petroleum industry and its employees,” because “it is the duty of industry to protect its employees.” The report recommended reducing asbestos exposure in refineries by dust suppression and isolation, ventilation, masks, wet operating methods, and exhaust systems. Standard Oil’s finding of asbestos hazards in refining was not unique; by the early 1960’s , there were reports of refining industry workers in Texas developing mesothelioma, a cancer caused almost exclusively by asbestos. The risks of asbestos exposure in this industry were so well known by 1962 that Exxon built a brand new refinery in which it attempted to avoid using asbestos altogether.
The Government Started Establishing Asbestos Standards in the 1930’s.
Nearly every Tenneco executive officer claimed ignorance of the hazards of asbestos until 1971, when OSHA set a threshold limit value for asbestos. But the government had established asbestos standards numerous times before OSHA, dating back to 1938. Among others, in 1951 the U.S. Department of Labor set limits for asbestos dust and recommended ways to minimize exposure. Mr. Parker testified that when he entered the industrial hygiene profession in the 1960’s, the standards set by the Public Health Service in 1951 and by the American Conference of Governmental Industrial Hygienists in 1946 were relied upon universally. By 1952, the hazards of exposure to asbestos in the workplace were so commonly known that the Louisiana legislature amended the workers’ compensation statute to provide coverage for asbestosis.
Mr. Abram Died from Asbestosis.
As a result of his exposure to asbestos at Tenneco, Mr. Abram developed asbestosis, which was diagnosed on February 20, 1995. On November 14, 1995, Mr. Abram filed an asbestos-related lawsuit in Civil District Court against Appellants’ solidary obligors. On August 9, 2000, Mr. and Mrs. Abram filed this action. At trial, Dr. Arnold R. Brody, an expert in cellular biology and the mechanisms of asbestos disease, explained that asbestosis is a scarring of the lung tissue that has no treatment or cure. Mr. Abram’s wife and children testified about Mr. Abram’s suffering over a period of several years until he died from asbestosis on September 1, 2000. On October 4, 2000, Mr. Abram’s family amended the petition to assert survival and wrongful death causes of action.
ACTION OF THE TRIAL COURT
Trial was held from January 27 through January 30, 2003. After several days of testimony from Plaintiffs’ expert and lay witnesses, Tenneco put on one witness. On January 9, 2004, the court found Flintkote, Tenneco and three Tenneco executive officers liable for Mr. Abram’s asbestos-related injuries and awarded survival and loss of consortium damages. Damages were assigned by virile shares, in accordance with the applicable law. On January 20, 2004, the Abrams filed a motion for new trial, which the court denied on March 8, 2005. Appellants perfected an appeal, which the Abrams timely answered on June 6, 2005.
SUMMARY OF ARGUMENT
Appellants argue that the trial court erred by (1) failing to grant their exception of prescription as to the Abrams’ survival action; (2) finding Tenneco liable in negligence for Mr. Abram’s pre-1976 exposures; (3) awarding loss of consortium damages; (4) referring to wrongful death damages in the reasons for judgment; (5) failing to assign virile shares to four product manufacturers; and (6) finding three executive officers liable in negligence.
The record in this case and the applicable law refute each of Appellants’ arguments. First, the record in this case, coupled with Appellants’ judicial admissions, show that prescription of this suit was interrupted by the timely filing of suit in a court of competent jurisdiction against Appellants’ solidary obligors.
Second, Tenneco bears the burden of proving statutory immunity under the workers’ compensation statute. Although the trial court made an incorrect statement in its reasons for judgment, the court’s ultimate conclusion of Tenneco’s liability was correct on two alternative grounds. First, the record supports a finding that Mr. Abram had significant tortious exposure to asbestos before asbestosis became compensable under workers’ compensation, such that the court correctly found Tenneco liable in negligence. Second, the record establishes that Tenneco was liable for its intentional acts.
Third, the court correctly awarded loss of consortium damages because Tenneco was liable for its intentional acts in continuing to expose Mr. Abram to asbestos after a claim for loss of consortium was recognized in 1982. However, because only Tenneco was liable for loss of consortium, it should pay the full share of those damages.
Fourth, as for Appellants’ claim regarding the trial court’s reference to wrongful death damages, the law holds that an appeal is taken from the judgment, not from the reasons for judgment. The judgment does not refer to wrongful death damages, and Tenneco has not alleged or established any reversible error in the actual damages awarded.
Fifth, the law requires that a non-settling defendant prove the liability of each settling defendant. Appellants have cited no evidence in the record that products manufactured by Garlock, Johns-Manville, Foster-Wheeler, and Owens-Corning ever released respirable asbestos dust or fibers that Mr. Abram could have inhaled. In the absence of such evidence, the court did not err in declining to find these manufacturers liable.
Sixth, the record contains extensive evidence that supports the court’s finding that executive officers Dean Blackwell, Charles Kilgore, and Amos Pollard were liable for breaching their personal duties to Mr. Abram.
IPRESCRIPTION WAS INTERRUPTED AS TO MR. ABRAM’S SURVIVAL ACTION.
Appellants claim that this suit was prescribed on its face, such that the Abrams have the burden to disprove prescription. But prescription is not evident from the face of the petition, and it is thus Appellants who bear the burden of proving their exception. In any event, the record amply establishes that prescription of this suit was timely interrupted. Reviewing Appellants’ peremptory exception of prescription, the court must strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished.
Mr. Abram was diagnosed with asbestosis on February 20, 1995. On November 14, 1995, Mr. Abram timely filed an asbestos-related action in Civil District Court against Appellants’ solidary obligors (“CDC action”). This lawsuit was filed on August 9, 2000, while the CDC action was still pending. Prescription was interrupted by the timely filing of the CDC action against Appellants’ solidary obligors.35 Relying on two inapplicable cases involving res judicata, Appellants argue that the trial court was required to examine the entire record of the CDC action to ascertain whether prescription had been interrupted.36 Evaluating the identity of issues for the purposes of res judicata is fundamentally different from determining whether prescription was interrupted. As the supreme court has explained, examination of the full record is necessary in the res judicata context because a judgment that is silent on an issue may nevertheless resolve an issue that was “actually litigated” by the presentation of evidence.37
In contrast, interruption is established by a showing that a prior suit was filed against a solidary obligor. There is ample evidence in the record to prove interruption. The Abrams submitted a certified copy of the CDC docket sheet, which shows the date the petition was filed and the original defendants, including Flintkote.38 Appellants conceded in their pleadings that Mr. Abram timely filed the CDC action and that it was based on Mr. Abram’s exposure to asbestos.39 And during the trial of this case, defense counsel conceded that Mr. Abram had timely filed the CDC action against Flintkote.40
The Abrams having justifiably relied on Appellants’ admissions that the CDC action was timely and was related to this action, Appellants cannot now complain that the Abrams failed to present sufficient evidence to prove the same. “A judicial confession is a declaration made by a party in a judicial proceeding [and it] constitutes full proof against the party who made it.” A judicial confession has the effect of waiving evidence as to the subject of the admission.
The only remaining question is whether the CDC action was filed against Tenneco’s solidary obligors. The evidence, including defense counsel’s admissions, establishes that Mr. Abram timely filed his asbestos-related action against Flintkote. The trial court found — and no party has disputed — that Flintkote was a joint tortfeasor with Appellants. Joint tortfeasors are solidarily liable. Because “[i]nterruption of prescription against one joint tortfeasor is effective against all joint tortfeasors,” prescription as to these Appellants was interrupted when Mr. Abrams timely filed suit against their joint tortfeasor, Flintkote.
Appellants argued below, but do not argue in their brief before this Court, that the settlement with Flintkote ended the interruption of prescription. The Louisiana Supreme Court rejected an identical argument in Hebert v. Doctors Memorial Hospital, in which plaintiff timely filed suit against a hospital and seven years later added the physician defendant. Maintaining the physician’s exception of prescription, the lower courts found that when plaintiff released the hospital nearly two years before adding the physician, the suit against the hospital was no longer pending and prescription had commenced anew. The supreme court reversed, finding that the lawsuit against the hospital was pending from the moment it was filed until it was dismissed by judgment of the court; the plaintiff’s execution of a release of the hospital did not dispose of the lawsuit. Similarly, neither the claims against Flintkote nor the CDC action itself were dismissed at the time this suit was filed, so prescription as to Appellants was interrupted at the time this suit was filed.
The Hebert decision illustrates that it is the dismissal of the action, not dismissal of individual defendants, that affects interruption under article 3463:
An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.
In Miller v. One Shell Square, plaintiff timely filed suit against three defendants. Two years later, plaintiff voluntarily dismissed two of the original defendants and then amended the petition to add City Glass as a defendant. City Glass argued that the dismissal of two of the original defendants, coupled with the fact that the third original defendant was not a real entity, rendered the plaintiff’s action against it prescribed. This Court found, however, that article 3463 applied when the plaintiff dismissed the actual suit and not simply certain parties. Noting that at the time the plaintiff added City Glass, nothing had been done to dismiss the lawsuit, this court found that as long as City Glass was a joint or solidary obligor with an original defendant, prescription was interrupted upon the filing of suit against the original defendants, and interruption was not lost by dismissal of two of those defendants. This court further explained that even if the remaining original defendant was found to be a non-entity, prescription was still interrupted as long as the dismissed defendants were solidary obligors with City Glass: “If and when the trial court determines that [the remaining original defendant] is in fact not an entity and not amenable to suit, and that the other two original defendants are not solidary obligors in this case, the relators may then raise their peremptory exception of prescription.” In this case, the trial court specifically found that Flintkote, one of the original defendants, was a solidary obligor, and that finding is uncontested.
It is settled that if there are two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute must be read in such a manner as to maintain the claim. Even if Appellants’ solidary obligor, Flintkote, had been dismissed from the CDC action (which it had not), the action itself was not dismissed. Therefore, prescription was still interrupted at the time this suit was filed and the survival action is not prescribed.
THE TRIAL COURT DID NOT ERR IN FINDING TENNECO LIABLE.
The trial court found Tenneco liable and awarded survival and loss of consortium damages to the Abrams. In its reasons for judgment, the trial court commented that “only prior to the 1976 amendments to the workers’ compensation laws could Tenneco or its executive officers be liable under tort law for a negligent act. . . .” Both parties recognize that Tenneco could not be held liable for negligently causing Mr. Abram’s asbestosis after July 30, 1952. Tenneco claims that because the trial court did not accurately recite the law, the judgment against it should be reversed. But the trial court’s reasons for judgment are not controlling and do not constitute the judgment of the court. The judgment states that Tenneco was at fault in causing Mr. Abram’s asbestos-related injuries, and the appellate court must evaluate the evidence in a light that is supportive of the judgment and most favorable to the appellee. Quite simply, Tenneco failed to meet its burden of proving statutory immunity under the workers’ compensation statute.
The trial court’s finding of Tenneco’s liability should be upheld on two alternative grounds. First, Tenneco is liable in negligence for Mr. Abram’s significant tortious exposures before July 30, 1952, when asbestosis became compensable under workers’ compensation. Second, the trial court’s finding of Tenneco’s liability may also be upheld on the basis of Tenneco’s intentional acts, which are not protected under the workers’ compensation exclusivity provision. A.Tenneco Failed to Meet its Burden of Proving That Mr. Abram’s Claim Did Not Accrue Before the Effective Date of the 1952 Workers’ Compensation Provision Regarding Asbestosis.
Effective July 30, 1952, the legislature amended the workers’ compensation statute to provide coverage for asbestosis. In this case, the record amply supports the trial court’s finding of Tenneco’s negligence, because the evidence supports a finding that Mr. Abram’s cause of action against Tenneco accrued before asbestosis became compensable under workers’ compensation. In a latent occupational disease case such as this, the tort action accrues when the plaintiff sustains “significant tortious exposure.” The law in effect at the time of the tortious exposures applies if the evidence proves that the exposures were significant and resulted in the later manifestation of damages. Although there is no bright-line test to establish significant exposure in a latent-disease case, “expert medical testimony establishing that the exposure was sufficient enough to begin the disease process is acceptable to fix the time period for accrual of the cause of action.”
The Louisiana Supreme Court has explained that because tort immunity under the workers’ compensation statute is a special or affirmative defense, the employer bears the burden of proving its entitlement to immunity under the applicable law. Thus, in order to prevail on its affirmative defense, Tenneco had the burden of proving that Mr. Abram’s claim against it did not accrue prior to July 30, 1952, when asbestosis was first covered by the workers’ compensation statute. Tenneco did not carry this burden. Mr. Abram testified that he left Flintkote in 1951 to work at the Tenneco refinery, then known as Bay Petroleum, for six months between 1951 and 1952. Tenneco did not establish that Mr. Abram’s exposure occurred after the amendment of the statute, such that Tenneco would be entitled to tort immunity.
Mr. Abram had significant tortious exposure to asbestos during his six months at the refinery, which was even dustier than Flintkote. Mr. Abram helped tear insulation off exchangers and pipes; worked around insulation being cut, installed and removed; removed and installed gaskets and packing material; and swept up asbestos waste. Working without a respirator, Mr. Abram was forced to breathe in the dust, which fell into his face and blew around the refinery like snow. Frank Parker, an expert in industrial hygiene, opined that the job Mr. Abram performed for six months at the refinery subjected him to asbestos exposure that was a substantial contributing factor to the development of his asbestosis.
As in Abadie, expert medical testimony established that Mr. Abram’s exposure in between 1951 and 1952 was sufficient to begin the disease process. Dr. Arnold Brody, an expert in cellular biology and the mechanisms of asbestos disease, testified that the disease process begins as soon as someone is exposed to asbestos fibers. With each exposure, asbestos fibers are picked up and reach the lung tissue, where they activate cells to make scar tissue and ultimately asbestosis, which is by definition scarring of the lungs. Dr. Richard Kradin, an expert in pulmonary medicine and pathology, testified that “all of [Mr. Abram’s] exposures cumulatively, dating back from 1940 to all the way to the last exposure to asbestos, contributed to the development of the disease.” Dr. Kradin specified that this included Mr. Abram’s exposures while working at the refinery for six months when it was known as Bay Petroleum.
The Abrams established that Tenneco can be held liable for Mr. Abram’s exposures as successor-in-interest to Bay Petroleum. In Louisiana, successor liability should be imposed if the successor agrees to assume the obligations of the predecessor, the successor is merely a continuation of the predecessor, or the transaction is entered into to escape liability. With respect to the second, “mere continuation” test, pertinent considerations include the extent to which the predecessor and successor have common shareholders, directors, officers, or employees; retention of the same production facility in the same physical location, with the same product, or the same name; continuity of the identity of the business in the eyes of the public; continuity of assets; continuity of general business operations; prior business relationships between the companies; and whether the successor holds itself out as the continuation of the previous enterprise.
The record indicates that Tenneco was a mere continuation of Bay Petroleum. The companies had a commonality of management at the very highest level: Amos Pollard, who started in 1949 as refinery superintendent, maintained that head position after the refinery was bought by Tennessee Gas Transmission in about 1955. Tennessee Gas continued to operate the plant for some time under the name Bay Petroleum. In the early 1960’s, the refinery’s name was changed from Bay Petroleum to Tenneco; plant manager Charles Kilgore specified that this was a name change only, not a corporate ownership change. Indeed, when discussing the refinery’s maintenance and capital budgets, Mr. Kilgore made no distinction between how budgeting was handled when the refinery was known as Bay Petroleum versus Tenneco. Further, the managers’, employees’, and even defense counsel’s interchangeable reference to the refinery indicate the continuity of the identity of the business in the eyes of the public and suggests that Tenneco held itself out as a mere continuation of Bay Petroleum.
For example, Mr. Kilgore and Tenneco’s counsel referred to Tenneco and Bay Petroleum interchangeably, and Mr. Kilgore referred to them collectively as “the oil company.” Given the continuity in the refinery’s management at the very highest level, the retention of the same production facility in the same physical location, production of the same product, the apparent continuity of assets, and the business continuity in the eyes of the public, Tenneco should be held liable as successor-in-interest to Bay Petroleum. Because the record supports a finding that Tenneco was liable for Mr. Abram’s exposures before July 30, 1952, the workers’ compensation statute does not bar the Abrams’ negligence claims.
B.The Trial Court’s Judgment Should Be Upheld Because Tenneco Was Liable for its Intentional Acts.
In the alternative, this Court should affirm the judgment against Tenneco based on its intentional acts, for which it is not entitled to statutory immunity. When it was first instituted in 1914, Louisiana’s workers’ compensation system provided the sole remedy against an employer for an employee’s workplace accidents, though a worker could pursue tort remedies against the employer’s executive officers. In 1976, the legislature extended this statutory immunity to executive officers, ultimately to protect the employers who in practical effect were paying the costs of litigation and judgment against their executive officers. At the same time, the legislature emphasized that employers and executive officers were not free to intentionally harm their employees with impunity:
Nothing in this Chapter shall affect the liability of the employer, or an officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
Although the legislature did not define “intentional act,” the supreme court in Bazley v. Tortorich examined the legislative history and concluded that “intentional act” meant the same as “intentional tort” in civil liability. Relying on both tort and criminal law, the court held that “intent” meant that the actor either (1) consciously desires the physical result of his act, or (2) knows that the result is substantially certain to follow from his conduct. The Abrams do not disagree with this definition, but they do disagree with its unduly restrictive interpretation, which has effectively render the “intentional act” exception superfluous, thereby violating basic principles of statutory construction and thwarting the legislature’s purpose in creating the exception in the first place. Those few cases that have found an intentional act relied on a temporal element, such that intent is unlikely to be found unless the injury occurred soon after a similar injury or soon after the employer was made aware of the potential for injury. This narrow application effectively precludes any finding of intent in a latent injury case, a distinction that the legislature did not draw. Neither the statute nor its interpretation in Bazley require this result. The definition established in Bazley was based on civil and criminal law, in keeping with the general principle that in the absence of legislation (or legislative intent), the primary source of law is custom. In Louisiana, the definition of intent in both civil and criminal law has customarily included an objective component. In the civil context, objective considerations are relevant to ascertain an actor’s subjective intent:
Thus the plaintiff seeking to establish that the defendant subjectively desired the consequences is not bound by the defendant’s self-serving testimony but may offer other evidence bearing upon the actor’s mental state. When the plaintiff claims that the act was performed under circumstances in which the defendant was substantially certain to cause harm, the objective circumstances surrounding the act and the actor usually constitute the most credible evidence of his subjective intent.
In a case cited in Bazley, for example, the court found assault and battery for purposes of an insurance exclusion where “a reasonable man in Chaisson’s position, would believe that hitting plaintiff with a bullet was a substantially certain result of firing a pistol at close range, although he testified in court that he did not intend to shoot plaintiff.” Bazley and numerous other Louisiana opinions have cited as authority Prosser on Torts, which explained that “where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it.” More recently, Prosser explained that “since intent is a state of mind, it is plainly incorrect for a court to instruct a jury that an actor is presumed to intend the natural and probably consequences of the actor’s conduct; but it is correct to tell the jury that, relying on circumstantial evidence, they may infer that the actor’s state of mind was the same as a reasonable person’s state of mind would have been.”
In the criminal context, the terms “intent” and “intentional,” in the absence of qualifying provisions, mean “general criminal intent,” the definition of which is largely tracked by Bazley’s definition of an intentional act: General criminal intent is present if there is specific intent (i.e., the offender actively desired the prescribed criminal consequences to follow his act or failure to act), or if “the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” This definition involves an objective evaluation of the accused’s actions under a reasonable-person standard, such that intent exists when “from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire . . . to have accomplished such result.”
Thus, civil law and criminal law, both of which were relied upon in Bazley, permit courts to apply an objective standard in determining whether an actor knows that a result is substantially certain to follow from his conduct. In this context, the factfinder is not forced to accept an actor’s self-serving pleas of ignorance. Courts have frequently applied an unnecessarily narrow standard in this analysis. Although it is the defendant who bears the burden of proving exclusion under workers’ compensation, employees have been left with a burden of proof on the element of intent that is higher than the corresponding burden in a criminal case. As a result, in Louisiana it is easier to prove that a person intended to commit a crime, and thus be sent to prison, than it is to prove that an employer had the intent to injure an employee, and thus be subject to tort remedies.
Even Malone and Johnson, who espouse a narrow reading of intentional act, suggest that the “substantially certain” test has an objective component. “The traditional definition [of substantially certain] is simply a way of relieving the claimant of the difficult of trying to establish subjective state of mind (desiring the consequences) if he can show substantial certainty that the consequences will follow the act. [The substantial certainty test] expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts.” Further comment by Malone and Johnson, which has been quoted with approval by the Louisiana Supreme Court, establishes that under his test, Tenneco cannot escape liability by claiming that it was not substantially certain that Mr. Abram in particular would be injured: “If the actor throws a bomb into an office occupied by two persons, but swears that he only ‘intended’ to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire.”
Admittedly, Louisiana courts have refused to find an intentional act where employers have violated safety standards, failed to provide safety equipment, failed to provide a safe workplace, and failed to correct unsafe working conditions. But Tenneco did far more than violate standards or fail to provide equipment. Tenneco actively exposed Mr. Abram to a toxin without his knowledge or consent. Just like the tortfeasor who bombs an office, Tenneco cannot escape liability by claiming that, even though it knowingly blanketed its employees’ workplace in asbestos, it was not substantially certain that Mr. Abram in particular would be harmed. Though the harm from asbestos is slower to manifest than the harm from a bomb, it is equally fatal. The disease asbestosis is an indisputable consequence of asbestos exposure, and Tenneco’s conscious decision to expose its employees to asbestos was substantially certain to cause this specific harm.
Tenneco Knowingly Exposed its Workers to Asbestos.
Tenneco exposed its employees to asbestos with no protection. Tenneco executive officers admitted that they had long known that asbestos pervaded the refinery and that workers like Mr. Abram were using asbestos and breathing asbestos dust. Yet they continued to expose their employees without even the rudimentary protections that had been established decades before. Mr. Abram saw insulation and dust swept up, never vacuumed; he was never instructed to avoid areas where insulation was being torn out or installed, nor were such areas roped off; he never saw warning signs about potential asbestos dangers; he was never provided with or instructed to use a respirator; he never saw insulation wet down before it was removed or installed; and he never saw exhaust systems used to remove dust from the air. Even though he worked at the refinery until 1990, Mr. Abram never learned about the dangers of asbestos until he was diagnosed with asbestosis in 1995.
Mr. Abram’s experience was not unique. For example, his coworker, Foster Paul Dartus, testified that he never saw a copy of the safety manual that the managers claimed they gave to the employees. Another coworker, Joseph DeRose, testified that Tenneco had no ventilation fan in the insulator shop and no exhaust fan in the warehouse where in worked with Mr. Abram. Tenneco’s occasional safety meetings were perfunctory at best, as workers were simply told that there were too many accidents and they should be careful. Yet another coworker, Wallace Serpas, worked for Tenneco from 1961 to 1980, but like Mr. Abram, he did not learn about asbestos hazards until he left the refinery.
Asbestos Hazards Were Well Known Four Decades Before Tenneco Executive Officers Admit Learning of Them.
Nearly all of Tenneco’s executive officers denied knowing the risks of asbestos until OSHA instituted regulations in the 1970’s. The one exception was Amos Pollard, the highest official at the refinery from 1949 to 1967, who admitted that at some point Tenneco knew about problems from asbestos, but thought “the asbestos scare was highly overdone.” Although he worked at Tenneco until 1975, several years after OSHA regulated asbestos, Mr. Pollard testified that Tenneco never had a program to protect employees from asbestos while he was there.
Tenneco’s alleged ignorance of the hazards of asbestos until the 1970’s is remarkable in light of the extensive information available since the 1930’s that established the hazards of asbestos, including the hazards for workers exposed in Tenneco’s very industry, as well as the U.S. government’s prior regulations of asbestos, dating back to 1938. It is also remarkable in light of the fact that by the 1950’s and 1960’s, asbestos was a “big issue” among other refineries of the New Orleans Gulf south river region. Despite Tenneco’s convenient claim of ignorance, it irrefutably was on notice about the hazards of asbestos by 1952, when the Louisiana legislature extended workers’ compensation to asbestosis, a disease that by definition is caused by asbestos.
Even after Osha Regulated Asbestos, Tenneco Waited 10 Years to Make Any Overtures Toward Protecting its Employees.
The 1971 OSHA standards, of which Tenneco admits knowledge, were unquestionably applicable to Tenneco. Yet for over a decade Tenneco continued to shirk its legal obligations under OSHA. Tenneco’s malfeasance in this regard is evidenced in part by the OSHA complaints it received during the 1970’s. It was not until the 1980’s that Tenneco even began to make the dangers of asbestos known among workers and to identify asbestos products in the refinery so that safe work practices could be initiated. Tenneco never initiated any asbestos abatement at the refinery.
Albert Caldwell, who became refinery general manager in 1979, testified that he finally reduced to writing procedures for handling asbestos in 1983 or 1984. Tenneco did not institute a safety committee meeting system until 1983 or 1984. And although Caldwell was head of the refinery until 1988, he did not remember attending any training or seminar at which asbestos hazards were discussed. Other employees testified that the refinery did not have such basic safety equipment such as breathing masks until after Tenneco sold the facility to Mobil.
Mr. Parker testified that Mr. Abram was unquestionably exposed to asbestos fibers over the level set by OSHA. By the 1980’s, OSHA had promulgated detailed requirements with respect to asbestos, and so much was known about asbestos hazards and prevention that no one should have been exposed to it at all. But even during the 1980’s, Tenneco continued to expose Mr. Abram to asbestos, so it obviously was not complying with OSHA. Tenneco was not even complying with its own safety manual, which provided rudimentary information on asbestos and recommended such basic measures as vacuuming, which was not even done in the refinery until the late 1980’s. And although the management claimed that at some point in the 1970’s they decided to stop using asbestos, the employees testified that they continued to remove asbestos-containing products and in many cases put the same products back on.
This Court is not required to accept Tenneco’s self-serving pleas of ignorance. Based on his review of the work practices at Tenneco, Mr. Parker concluded that it was substantially certain that one or more workers at Tenneco’s refinery would be injured by asbestos exposure from the 1960’s through the 1980’s. This substantial certainty was well-known by the 1930’s and was known throughout the refining industry by the 1960’s. Mr. Parker further opined that Mr. Abram’s exposures while working at Tenneco were substantial contributing factors to his development of asbestosis. In sum, Tenneco knowingly exposed Mr. Abram to a substance that was substantially certain to cause asbestosis, and Tenneco’s intentional act in this regard deprives it of statutory immunity under the workers’ compensation statute.
C.Because Tenneco Was Liable for its Intentional Acts after 1982, the Trial Court’s Award for Loss of Consortium Should Also Be Upheld.
Appellants claim that the court erred in awarding loss of consortium damages because Appellants’ wrongful conduct occurred before a cause of action for loss of consortium was created in 1982. The Abrams do not dispute that their loss of consortium action accrued after Mr. Abram was diagnosed with asbestosis in 1995, but Appellants’ wrongful conduct continued well after 1982. As set forth above, Tenneco was liable for its intentional acts through the time when it sold the refinery in December 1988. Moreover, Mr. Abram’s signficant tortious exposures continued after 1982. From 1981 to 1988, Mr. Abram worked in Tenneco’s warehouse, where he handled asbestos-containing products, including packing and broken gaskets. The evidence shows that Mr. Abram was exposed to respirable asbestos in the warehouse, which was very dusty. Under Landry, the comparative fault principles of Civil Code article 2323, which were in effect at the time of Mr. Abram’s diagnosis, govern the allocation of loss of consortium damages. Accordingly, the trial court’s only error in its award of these damages is that Tenneco should have been held liable for the full amount of loss of consortium damages.
THE DESCRIPTION OF DAMAGES IN THE REASONS FOR JUDGMENT CANNOT SERVE AS A BASIS FOR APPEAL.
Appellants do not challenge the quantum of damages awarded in the judgment but instead criticize the court’s discussion of damages in its reasons for judgment. Appellants assert that the trial court erred by referring to funeral expenses and loss of consortium after Mr. Abram’s death in its reasons for judgment. Appellants’ argument is without merit because an appeal is taken from the judgment, not the reasons for judgment. In Kaufman v. Adrian’s Tree Service, Inc., the defendant claimed that the district court erred in awarding mental anguish damages, where the judgment awarded a flat sum of $7500, but the reasons for judgment explained that $4000 of that amount was for mental distress. Declining to look beyond the judgment itself, the court explained that the “[r]easons for judgment by a trial judge are not controlling and do not constitute the judgment of the court. . . . A trial court’s reasons for judgment, while defining and elucidating a case, form no part of the official judgment it signs and from which appeals are taken.” Accordingly, the court refused to consider the damage amount as given by the reasons for judgment. Here, the judgment makes no reference to wrongful death damages. As in Kaufman, this Court should reject Appellants’ attempt to appeal from the reasons for judgment.
APPELLANTS DID NOT MEET THEIR BURDEN OF PROVING THE LIABILITY OF JOHNS-MANVILLE, FOSTER-WHEELER, AND OWENS-CORNING.
Appellants had the burden of proving every element of the settling defendants’ liability at trial. The trial court found that Appellants failed to meet their burden to prove that any settling defendant other than Flintkote was liable. Appellants claim that liability was established with respect to Garlock, Johns-Manville, Foster-Wheeler, and Owens-Corning by testimony that Mr. Abram worked with or around their products. A “non-settling defendant must prove, not only that a settling defendant manufactured an asbestos-containing product, but also that the products were used in such a manner that dust was emitted. Evidence of the mere physical presence of asbestos-containing material is insufficient to find a manufacturer liable to a plaintiff.”
Appellants cite testimony that certain products were used at the refinery, but they have not shown that the products released respirable asbestos fibers at all, much less around Mr. Abram. For example, Appellants refer to evidence that Mr. Abram “pulled” Garlock gaskets and handled them in the warehouse, but they have not shown that this use of gaskets released respirable asbestos fibers.
Appellants also cite expert testimony that any asbestos-containing product from which Mr. Abram inhaled fibers would have been a substantial contributing factor to his asbestosis. While it is true that such products would have contributed to Mr. Abram’s illness if in fact Mr. Abram inhaled fibers from those products, there is no evidence that Mr. Abram ever actually inhaled fibers from any of the products.
THE TRIAL COURT’S FINDING OF LIABILITY OF EXECUTIVE OFFICERS DEAN BLACKWELL, CHARLES KILGORE, AND AMOS POLLARD WAS NOT MANIFESTLY ERRONEOUS.
A worker who has had significant tortious exposure to asbestos before the 1976 amendments to the workers’ compensation statute may recover against his employer’s executive officers under the following conditions:
1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances-whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.
Specifically, liability may be imposed if the executive officer had some direct duty to provide the plaintiff a safe place to work, including some control over purchase and availability of equipment and supplies. There is no question that Tenneco had a statutory duty to provide Mr. Abram with a reasonably safe work place. Despite Appellants’ claim that one or more of the remaining elements were not established as to Dean Blackwell, Charles Kilgore, and Amos Pollard, the evidence amply supports the trial court’s finding of liability.
Mr. Blackwell was the safety engineer at the Tenneco refinery from 1961 to 1967. Plant superintendent Amos Pollard testified that he hired Blackwell to be responsible for safety throughout the plant. Mr. Blackwell had no prior experience or training in safety, and even while he was the refinery’s safety engineer he took no safety training beyond fire protection. As safety engineer, Mr. Blackwell had authority to spend money for safety and to make recommendations to management for the expenditure of money related to safety. Nevertheless, during his entire time as the sole member of the safety department, Mr. Blackwell never made a request for a safety-related budget item. Mr. Blackwell was responsible for identifying and attempting to correct hazards at the refinery and for formulating safety policies and procedures. When he walked around the refinery, Mr. Blackwell noticed that dust was emitted from insulation when it was disturbed, but he did not recall ever taking any action to minimize the dust nor did he ever instruct employees to wear a mask around the dust. From 1961 to 1967, Mr. Blackwell knew that asbestos insulation was used at the refinery, but he claimed that no one in the industries that used insulation knew that asbestos was hazardous. On the contrary, industrial hygienist Parker testified that by 1930’s, the hazards of asbestos were well known throughout the affected industries, including the refining industry.
From 1967 to 1979, Mr. Blackwell worked in Houston as Tenneco’s senior employee relations administrator, safety and fire protection. In this position, Mr. Blackwell visited the refinery about ten times each year, made safety recommendations to the new safety engineer, and provided the refinery with OSHA regulations and information from petroleum and refining organizations. One of Mr. Blackwell’s responsibilities from 1967 to 1979 was to check the refinery for hazards. Mr. Blackwell conducted mock OSHA inspections, drafted reports and safety recommendations to Mr. Kilgore, and followed up with Mr. Kilgore and Mr. Pollard to ensure that the refinery was complying with OSHA. Even though he was the number one safety person for Tenneco from 1967 to 1979, Mr. Blackwell did not recall ever having done any research on any issue involving occupational disease, illness, or hazards. Nor did he recall knowing about the hazards of asbestos before 1970.
Mr. Parker opined that Mr. Blackwell was negligent for failing to make any effort to get any knowledge or training in industrial hygiene or to otherwise find out what hazards existed in the plant, when there was ready access to thousands of articles on asbestos hazards as well as basic information, such as from the American Petroleum Institute and the National Safety Council, that a safety person could rely on. By 1951, the government had promulgated asbestos safety standards in the Walsh-Healy Public Contracts Act. Although Mr. Blackwell had heard of this Act and had some understanding of what it was, he never reviewed the Act between 1961 and 1979 to see how it might apply to the refinery. Given that this information was available during his tenure, the court could have concluded that Mr. Blackwell knew or should have known of the dangers of asbestos, yet failed to take any preventative measures in keeping with his responsibilities for plant safety.
Focusing solely on the trial court’s discussion of his position in Houston from 1967 to 1979, Mr. Blackwell claims that the Abrams cannot establish the last three Canter elements. But appellate review is not limited to the facts discussed in the trial court’s reasons for judgment; this Court should review the entire record to determine whether there is a reasonable factual basis for the trial court’s finding that Mr. Blackwell was liable. In Hoerner, the court found that the jury was not manifestly erroneous in finding that executive officer Branton breached his personal duty to provide Mr. Hoerner a safe place to work, where Branton admitted that he knew the employer should have provided respirators on dusty jobs, he had a duty to provide a safe workplace, and he had control of purchasing and availability of safety equipment. Contrary to his current claim that his duties were limited to distributing information, Mr. Blackwell testified that one of his responsibilities while working from Houston was to inspect the refinery for safety hazards and OSHA compliance. As sole safety engineer from 1961 to 1967, he was responsible for identifying and correcting hazards and formulating safety policies. Finally, he had the authority to spend money for safety, though he never chose to exercise it.
Mr. Blackwell claims that he could not be liable because his job did not entail the broad responsibility of an employer. But there is no requirement that an executive officer be delegated each and every one of his employer’s responsibilities; rather, the issue is whether the executive officer has been delegated a duty that, when breached, resulted in the plaintiff’s injury. For example, in Canter, engineers who had been delegated only some of their employer’s responsibilities were found liable for injury caused by the breach of their duties. Canter also undermines Mr. Blackwell’s claim that he had no personal direct duty to Mr. Abram that he could have breached. The issue is whether Mr. Blackwell’s breach of a personal duty resulted in harm to Mr. Abram, not whether he supervised Mr. Abram. In Canter, the court upheld the jury’s finding of negligence on the part of engineers who had breached their personal engineering responsibilities, with no discussion of whether the engineers supervised or had some direct control over the plaintiff, who worked for a different company than the engineers.
Mr. Kilgore reported to Amos Pollard from 1959 until 1967, at which time Mr. Kilgore was promoted to refinery general manager and Mr. Pollard became administrative manager. Mr. Kilgore was refinery general manager from 1967 to 1979, during which time every department ultimately reported to him. Mr. Kilgore testified that when it came to safety during this time period, the buck stopped with him. Albert Caldwell, who replaced Mr. Kilgore as plant manager, likewise testified that the plant manager oversaw the refinery’s safe and efficient operation, which “absolutely” included responsibility for the employees’ safety. Mr. Kilgore was also responsible for conducting a safety meeting with all supervisors, receiving reports regarding repeated safety violations, and making final decisions regarding safety disputes. Mr. Kilgore prepared the refinery’s budgets and was the person in the refinery who had final approval over the budgets. And he had authority to ensure that safety equipment such as masks were available and were used and to ensure that employees knew about potential harms.
Mr. Kilgore admitted that while he was general manager, the refinery did not have an industrial hygienist, and he did not know if the safety engineers had any training in safety. Even though a worker had already died from a toxic exposure, Mr. Kilgore had no idea whether his safety people had the education or training to know what toxins were harmful. Mr. Kilgore had advanced degrees in chemical engineering, but he made no effort to keep abreast of literature regarding potential hazards and how to prevent harm to his employees. Instead, he relied on contractors who supplied or installed products to the refinery to warn him whether the very products that they sought to sell him were dangerous. Mr. Parker testified that information regarding asbestos hazards that was readily available as early as the 1930’s, and it would not have been difficult for Mr. Kilgore to find out about those hazards or to instruct his safety department to take one of the many free courses regarding industrial hygiene and environmental hazards offered by the U.S. Public Health Service by the 1960’s.
Mr. Kilgore claims that he was not personally responsible for Mr. Abram’s injuries because he delegated that duty to the supervisors. This argument was rejected in Hoerner, in which the company president admitted that he had ultimate control over safety, including purchasing and availability of equipment, and was thus found to owe a personal duty to the plaintiff. Similarly, Mr. Kilgore testified that when it came to safety, the buck stopped with him, and that he had control over the refinery budget and could make safety equipment available. His attempt to delegate his responsibility to unqualified and untrained safety engineers does not absolve him of his negligence. The trial court could well have agreed with Mr. Parker’s opinions that Mr. Kilgore was negligent in putting unqualified and untrained people in the safety department, in failing to properly supervise and delegate authority regarding safety, and in failing to ensure that the safety department had knowledge or training in industrial hygiene.
Mr. Pollard testified that from the time he started working as the head of the refinery in 1949 until he hired Mr. Blackwell as the safety engineer in 1961, he was the person responsible for safety. Even after he hired Mr. Blackwell, Mr. Pollard retained responsibility for safety and required Mr. Blackwell to report to him. From 1967 until his retirement in 1975, Mr. Pollard was administrative manager, and one of his responsibilities in that role was supervision of plant safety. Mr. Pollard admitted that during his entire tenure at the refinery, from 1949 until 1975, Tenneco had no program to protect employees from asbestos. Mr. Parker testified that by the 1950’s and 1960’s, asbestos was a “big issue” in the refineries of the New Orleans Gulf south river region. But Mr. Pollard admitted that even when the industry became aware of asbestos problems, both he and Tenneco as a whole felt that “the asbestos scare is highly overdone.”
Further, Mr. Pollard did not delegate with due care his safety responsibilities. When he hired Mr. Blackwell, Mr. Pollard knew he had no prior safety experience; quite simply he could not delegate his safety responsibilities to an unqualified employee. In any event, Mr. Pollard admitted that even after Mr. Blackwell was hired, he still retained responsibility for safety. In sum, the evidence supports the trial court’s conclusion that Mr. Pollard was negligent. The trial court could well have found that Mr. Pollard was negligent in hiring an unqualified and untrained person as safety engineer, even though trained people were available as early as the 1940’s. Moreover, Mr. Pollard admitted that he was responsible for safety and he knew that asbestos was hazardous, yet no preventative measures were taken during his tenure. The record supports the trial court’s finding that Mr. Blackwell, Mr. Kilgore and Mr. Pollard breached their personal duties and that their negligence was a substantial factor in causing Mr. Abram’s injuries.
CONCLUSION AND PRAYER
For the foregoing reasons, Plaintiffs-Appellees respectfully pray that this Court amend the Judgment to hold Tenneco liable for all loss of consortium and wrongful death damages and to apportion all other damages among Tenneco, Dean Blackwell, Charles Kilgore, and Amos Pollard, affirm the Judgment as amended and order Defendants-Appellants to pay the costs incurred in the trial court and in this appeal.
BARON & BUDD, P.C.
5353 Essen Lane, Suite 420
Baton Rouge, LA 70809
Telephone: (225) 927-5441
Fax: (225) 927-5449
- ↑ Ex. Abram-2A, p.75 andEx. Abram-1B, p.15, Depositions of John J. Abram, Jr. (“Abram Depo.”). A summary of Mr. Abram’s work history is attached as exhibit 2 to Ex. Abram-2A.
- ↑ Ex. Abram-2A, p.91-92, Abram Depo. See also discussion infra Part II.A.
- ↑ Ex. Abram-2A, p.86; Ex. Abram-1B, p.21.
- ↑ Ex. Abram-2A, p.64, 113, 115, 165-66.
- ↑ Ex. Abram-2A, p.128-30, 146-47, 209; Ex. Abram-1B, p.23, 25-31. See also Ex. Abram-44, p.60-61, Serpas Depo.; Ex. Abram-45, p.78, Dartus Depo.
- ↑ Ex. Abram-2A, p.154.
- ↑ Ex. Abram-3, Curriculum Vitae of Frank Parker.
- ↑ R. v.7, tr. 1/27/03, pt.2, p.42 (explaining that he did not consider esoteric material, but rather focused on studies and information that a practicing industrial hygienist would have seen).
- ↑ R. v.7, tr. 1/27/03, pt.2, p.42; Ex. Abram-6, Public Health Reports, Effect of Asbestos Dust on the Lungs of Asbestos Workers (1935). See also Ex. Abram-4 (table chronicling major asbestos disease landmarks dating to 1930).
- ↑ R. v.7, tr. 1/27/03, pt.2, p.42-44. See also Ex. Abram-5, E.R.A. Merewether & C.W. Price, Inst. Occupational & Envtl. Health, Report on Effects of Asbestos Dust on the Lungs & Dust Suppression in the Asbestos Industry (1930).
- ↑ R. v.7, tr. 1/27/03, pt.2, p.52-54. See also Ex. Abram-12, Roy S. Bonsib, Standard Oil Co., Dust Producing Operations in the Production of Petroleum Products & Associated Activities (1937).
- ↑ Ex. Abram-12, Roy S. Bonsib, Standard Oil Co., Dust Producing Operations in the Production of Petroleum Products & Associated Activities (1937).
- ↑ R. v.7, tr. 1/27/03, pt.2, p.54 (describing Ex. Abram-12, p.73-81).
- ↑ R. v.7, tr. 1/27/03, pt.2, p.57.
- ↑ R. v.7, tr. 1/28/03, p.92.
- ↑ R. v.7, tr. 1/27/03, pt.2, p.55. See also Ex. Abram-16, 41 C.F.R. § 50-204.50.
- ↑ R. v.7, tr. 1/27/03, pt.2, p.58. See also Ex. Abram-13, Asbestos Occupational Exposure Standards.
- ↑ R. v.7, tr. 1/27/03, pt.2, p.55. See also Ex. Abram-17, Walsh-Healey Public Contracts Act, Safety & Health Standards (1951).
- ↑ R. v.7, tr. 1/27/03, pt.2, p.58-59.
- ↑ Ex. Abram-2A, p.37-38, Abram Depo. See also R. v.8, tr. 1/29/03 pt.1, p.9 (Dr. Kradin testified that asbestosis was the cause of Mr. Abram’s pulmonary fibrosis and was the primary contributing factor in his death).
- ↑ Ex. Abram-46, certified copy of docket sheet, case No. 95-17063, Richardson, et al. v. Metro. Life Ins. Co., et al., Civil District Court, Parish of Orleans (“CDC docket sheet”).
- ↑ R. v.1, p.1, Petition for Damages.
- ↑ R. v.7, tr. 1/28/03, p.149, 153, 166, Brody Testimony.
- ↑ R. v.8, tr. 1/28/03 pt.1, p.43-47, Deborah Geiser’s testimony; R. v.8, tr. 1/28/03 pt.1, p.54, John Abram III’s testimony; R. v.8, tr. 1/28/03 pt.2, p.14-16, Thais Abram’s testimony; Ex. Abram-35B, last page, Death Certificate.
- ↑ R. v.1, p.73-75.
- ↑ R. v.6, p.1264-65, Judgment.
- ↑ R. v.6, p.1276-77, Reasons for Judgment.
- ↑ R. v.6, p.1288-89, Motion for New Trial; R. v.6, p.1364, Judgment.
- ↑ The caption currently names Mr. Abram and his wife as Appellees. Judgment was entered in favor of Mr. Abram’s wife, Thais B. Abram, and his children, Deborah A. Geiser and John J. Abram III, individually and as survivors of Mr. Abram. R. v.6, p.1264-65. On June 10, 2005, the Abrams filed a motion to substitute Thais B. Abram, Deborah A. Geiser, and John J. Abram III as the proper Appellees.
- ↑ See Scott v. Metro. Life Ins. Co., 1997-1445, p.3 (La. App. 4 Cir. 2/11/98), 709 So.2d 223, 225 (holding that trial court erred in finding petition prescribed on its face and in shifting the burden of proof to plaintiff, where petition did not allege that plaintiff was diagnosed with mesothelioma on any particular date).
- ↑ Louisiana. Health Serv. v. Tarver, 93-2449 (La. 4/11/94), 635 So.2d 1090, 1098.
- ↑ Ex. Abram-2A, p.37-38, Abram Depo.
- ↑ Ex. Abram-46, CDC docket sheet.
- ↑ R. v.1, p.1, Petition for Damages.
- ↑ La. Civ. Code arts. 3492, 3462, 1799 & 3503.
- ↑ Appellants’ brief at 7-8.
- ↑ Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758, 760 (La. 1978).
- ↑ Ex. Abram-46, CDC docket sheet.
- ↑ R. v.3, p.659, Defendants’ Memorandum in Support of Exception of Prescription and of No Right/No Cause of Action (“Exceptions”). Defendants also claimed that the CDC action did not interrupt prescription because the original petition asserted claims regarding Mr. Abram’s asbestos exposure at Flintkote, and it was not until an amended CDC petition that Mr. Abram claimed exposure at Tenneco. See id. The fact that Tenneco was not specifically referenced in the initial CDC petition does not change the fact that Flintkote is its solidary obligor. In any event, Mr. Abram’s claims regarding Tenneco in his amended petition related back to his original CDC petition. La. C.C.P. art. 1153.
- ↑ R. v.7, tr. 1/27/03 pt.1, p.13 (Mr. Gomila: “We know he sued Flintkote in 1995, sued timely. . . .”). See also R. v.3, p.656, Defendants’ Exceptions (“In 1995 [Mr. Abram] was diagnosed with asbestosis. He promptly filed suit in Civil District Court against Flintkote. . . .”).
- ↑ La. Civ. Code art. 1853 & cmt. (b) (attorney’s declaration has same effect as if made by party itself).
- ↑ C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003 (La. 12/3/03), 861 So.2d 156, 160 (La. 2003) (holding that plaintiff was not required to offer proof of oral contract with defendant, who had admitted in its peremptory exceptions that oral contract existed).
- ↑ R. v.6, p.1273, Reasons for Judgment.
- ↑ See Powell v. Metro. Life Ins., 97-1789 (La. App. 4 Cir. 11/5/97), 702 So.2d 358, 360 (upholding allegations of solidary liability against multiple defendants for “the cumulative effect of years of exposure to asbestos in the workplace, albeit different workplaces while he was employed by different employers”); Nelson v. Armstrong World Indus., 98-1746 (La. App. 1 Cir. 11/5/99), 751 So.2d 296, 299 (filing of federal suit against defendant in asbestos lawsuit interrupted prescription against unnamed joint tortfeasor).
- ↑ La. Civ. Code art. 2324(C).
- ↑ R. v.3, p.659, Exceptions.
- ↑ Hebert v. Doctors Mem’l Hosp., 486 So.2d 717 (La. 1986).
- ↑ Id. at 718-19.
- ↑ Id. at 720 (emphasis in original).
- ↑ See Ex. Court-1, copies of dismissals and releases, including Flintkote dismissal that had not been signed or filed by Flintkote as of the trial of this case in January 2003; R. v.8, tr. 1/29/03 pt.2, p.5 (Mr. Mumphrey: “That [CDC] docket reflects that Flintkote has never been dismissed as to Mr. Abram.”); R. v.8, tr. 1/30/03, p.2 (Mr. Waddell: “[The motion to dismiss Flintkote] was never filed, an order was never entered in Court.”).
- ↑ See, e.g., Potts v. Estate of Guidry, 2004-1386, p.2 (La. App. 3 Cir. 3/9/05), 897 So.2d 913 (holding that dismissal of original defendant after solidary obligor added to suit did not revoke the interruption of prescription as to the solidary obligor); Doyle v. Mitsubishi Motor Sales of Am., Inc., 99- 459, 99-460 (La. App. 1 Cir. 3/31/00), 764 So.2d 1041 (same).
- ↑ See, e.g., Service Asset Management Co. v. Hibernia Corp., 80 F. Supp.2d 626, 629 (E.D. Tex. 2000) (explaining that the word “action” “refers to the initial lawsuit filed in state court and not to separate claims added later in the suit”).
- ↑ La. Civ. Code art. 3463 (emphasis added).
- ↑ 619 So.2d 1096 (La. App. 4 Cir. 1993).
- ↑ 619 So.2d at 1097.
- ↑ 619 So.2d at 1098 (citing Hebert v. Doctors Mem’l Hosp., 486 So.2d 717 (La. 1986)).
- ↑ 619 So.2d at 1098.
- ↑ 619 So.2d at 1098. (emphasis added).
- ↑ See Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992).
- ↑ R. v.6, p.1264-65.
- ↑ R. v.6, p.1269, Reasons for Judgment.
- ↑ Effective July 30, 1952, the legislature amended La. R.S. 23:1031.1 to provide workers’ compensation for asbestosis. Frisby v. Int’l Paper Co., 76 So.2d 621, 622 (La. App. 2 Cir.1955).
- ↑ See Kaufman v. Adrian’s Tree Serv., Inc., 2000-2381, p.3-4 (La. App. 4 Cir. 2001), 800 So.2d 1102, 1104 (explaining that an appeal is taken from the judgment itself, and not from the reasons for judgment).
- ↑ R. v.6, p.1264, Judgment. See also Deutschmann v. Rosiere, 2002-2002 , p.3-4 (La. App. 4 Cir. 2003), 844 So.2d 1082, 1085 (appellate court evaluates the evidence in a light supportive of the judgment and most favorable to appellee).
- ↑ Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, 1143 (statutory employer immunity under La. Rev. Stat. § 23:1032 is a special or affirmative defense that the employer bears the burden of proving) (citing Walls v. Am. Optical Corp., 98-0455, p.6 (La. 9/8/99), 740 So.2d at 1267).
- ↑ This section addresses Appellants’ second assignment of error and Appellees’ first assignment of error.
- ↑ La. Rev. Stat. § 23:1031.1 (1952), adopted in 1952 La. Acts 532. Frisby, 76 So.2d at 622 (amendment to provide workers’ compensation for asbestosis effective July 30, 1952).
- ↑ Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, 1154.
- ↑ Austin, 824 So.2d at 1154.
- ↑ Abadie, 784 So.2d at 65.
- ↑ Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, 1143.
- ↑ Ex. Abram-2A, p.91-92, Abram Depo.
- ↑ Ex. Abram-2A, p.101-102.
- ↑ Ex. Abram-2A, p.98-100, 104, 176-77, 190; Ex. Abram-1B, p.16-20.
- ↑ Ex. Abram-2A, p.100-101; Ex. Abram-1B, p.18-20.
- ↑ R. v.7, tr. 1/27/03 pt.2, p.51; R. v.7, tr. 1/28/03, p.54.
- ↑ R. v.7, tr. 1/28/03, p.166.
- ↑ R. v.7, tr. 1/28/03, p.173, Brody testimony.
- ↑ R. v.8, tr. 1/29/03 pt.1, p.35.
- ↑ R. v.8, tr. 1/29/03 pt.1, p.21.
- ↑ See Bourque v. Lehmann Lathe, Inc., 476 So.2d 1125, 1127 (La. Ct. App. 3 Cir. 1985) (citing Golden State Bottling Co. v. Nat’l Labor Relations Bd., 414 U.S. 168, 182 n.5, 94 S.Ct. 414, 424 n.5, 38 L.Ed.2d 388 (1973)).
- ↑ See Bourque, 476 So.2d at 1127; Hollowell v. Orleans Reg’l Hosp., 217 F.3d 379, 390 (5th Cir. 2000) (upholding finding of successor liability under Louisiana law); Royal Ins. Co. v. Smatco Indus., Inc., 201 B.R. 755, 758-59 (E.D. La. 1996) (holding connections sufficient to impose successor liability, where same person was involved with both companies, many of the successor’s employees worked for the predecessor, the successor used the predecessor’s name, and the successor occupied the same plant and had the same address of the predecessor).
- ↑ Ex. Abram-24, p.14-15, 18, Pollard Depo. See also R. v.4, p.860-61, Kilgore Depo. (explaining that he replaced Mr. Pollard as head of the refinery in 1967).
- ↑ Ex. Abram-24, p.18; see also Abram-20, pp.7-9, Kilgore Depo. (when he started working at the refinery in 1959, it was called Bay Petroleum, but it was owned by Tennessee Gas, and was eventually renamed Tenneco).
- ↑ Abram-20, pp.7-9; see also R. v.4, p.855, Kilgore Depo.
- ↑ Abram-19, p.53-54, Kilgore Depo.
- ↑ Abram-19, p.53-54; Abram-20, p.22 Kilgore Depo. (When asked where he started working in 1959, when the refinery was called “Bay Petroleum”, Mr. Kilgore responded that he worked for Tenneco); Ex. Abram-2A, p.103, 122-23 Abram Depo. (defense counsel referred to the refinery in 1952 as “Tenneco. Bay.”).
- ↑ See Cole v. Celotex, 599 So.2d 1058, 1061-63 (La. 1992) (explaining that if a party acquires a right to assert a cause of action prior to a change in the law, that right is a vested property right that may not be constitutionally divested).
- ↑ This section addresses Appellees’ second assignment of error.
- ↑ See Canter v. Koehring Co., 283 So.2d 716 (La. 1973) (holding that injured worker could seek recovery in tort against negligent executive officers).
- ↑ See Bazley v. Tortorich, 397 So.2d 475, 479 (La. 1981); see also W. Malone & A. Johnson, 14 Louisiana Civil Law Treatise § 364 at 177 (4th ed. 2002) (“Malone & Johnson”).
- ↑ La. R.S. § 23:1032(B) (1976). See also Jones v. Thomas, 426 So.2d 609, 611 n.3 (La. 1983) (“The purpose of the intentional act exception is to prevent an employer or a coemployee who personally inflicts an intentional injury from using an immunity designed for accidental injuries to protect himself against the consequences of his own willful misconduct. . . . Thus, neither an employer nor a coemployee who willfully causes an employee’s injury can avail himself of the shield of tort immunity generally provided by La.R.S. 23:1032.”); Malone & Johnson, § 365 at 178.
- ↑ Bazley v. Tortorich, 397 So.2d 475, 480 (La. 1981).
- ↑ Bazley, 397 So.2d at 481.
- ↑ See Reeves v. Structural Pres. Sys., 1998-1795 (La. 3/12/99), 731 So.2d 208, 211-12 (collecting cases that have “almost universally” ruled against a finding of intentional act); Malone & Johnson, § 365 at 192-94 (providing “sample” of over 30 cases in which intentional act exception found inapplicable); id. at 184 (referring to “intentional act” cases that survived summary judgment or no cause of action exceptions as “exceptional”).
- ↑ First Nat’l Bank of Boston v. Beckwith Machinery Co., 650 So.2d 1148, 1153 (La. 1995) (stating that “[c]ourts should give effect to all parts of a statute, and not adopt a construction making any part superfluous or meaningless”).
- ↑ Marc Lloyd Frischhertz, Comment, Louisiana Workers’ Compensation Scheme: Substantially Certain to Result in an Unsafe Workplace, 50 Loy. L. Rev. 209, 216-17 (2004).
- ↑ See also Reeves, 731 So.2d at 215 (Johnson, J., dissenting) (“The majority has held that in order for an employer to be substantially certain that injury will occur, another employee must have been previously injured due to the improper workplace practices of the employer.”).
- ↑ La. Civ. Code art. 1 & cmt.(b) (legislation and custom are primary sources of law, followed by secondary sources such as jurisprudence, doctrine, conventional usages, and equity).
- ↑ Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 2.01 at 2-5 (2d ed. 2004) (“Maraist & Galligan”).
- ↑ Monk v. Veillon, 312 So.2d 377, 380 (La. App. 3 Cir. 1975), cited in Bazley, 397 So.2d at 481.
- ↑ William Prosser, Handbook of the Law of Torts § 8, at 32 (4th ed. 1971); see also Maraist & Galligan (listing Louisiana cases that have cited this language).
- ↑ William Prosser, Handbook of the Law of Torts § 8, at 36 (5th ed. 1984).
- ↑ La. Rev. Stat. § 14:11.
- ↑ La. Rev. Stat. § 14:10(2), cited in Bazley, 397 So.2d at 481.
- ↑ State v. Elzie, 343 So.2d 712, 714 (La.1977). See also, e.g., City of Baton Rouge v. Ross, 654 So.2d 1311, 1333 (La. 1995) (Calogero, C.J., concurring) (“[G]eneral criminal intent focuses upon the objective activity of the defendant and its probable consequences.”); Breland v. Schilling, 550 So.2d 609, 611 (La.1989) (“The field of criminal law, like Civil Law tort principles, adheres to an objective standard for identifying an actor’s intent.”).
- ↑ Frishhertz, supra at 228.
- ↑ Frishhertz, supra at 228.
- ↑ Malone & Johnson at 183-84 (emphasis in original).
- ↑ See Reeves, 731 So.2d at 212-13 (quoting Malone & Johnson, 14 Louisiana Civil Law Treatise § 365, p.208 (3rd ed.1994)).
- ↑ See generally Reeves, 731 So.2d at 212.
- ↑ See Reeves, 731 So.2d at 212-13.
- ↑ See R. v.7, tr. 1/28/03, p.38, Parker Testimony.
- ↑ R. v.7, tr. 1/27/03, pt.2, p.46, Parker Testimony (explaining that methods for reducing asbestos exposure have basically not changed since 1930).
- ↑ Ex. Abram-1B; p.32-34, 36.
- ↑ Ex. Abram-1B, p.35-36.
- ↑ Ex. Abram-45, p.43, Dartus Depo. See also R. v.7, tr. 1/28/03, p.36-37, Parker Testimony (the employees and even some management personnel said they never saw a safety manual).
- ↑ Ex. Abram-43, p.24-26, DeRose Depo.
- ↑ Ex. Abram-43, 43, DeRose Depo.
- ↑ Ex. Abram-44, p.81, Serpas Depo.
- ↑ See, e.g., R. v.7, tr. 1/28/03, p.134.
- ↑ Ex. Abram-24, p.35-36, Pollard Depo.
- ↑ Ex. Abram-24, p.35, 37, Pollard Depo.
- ↑ See Statement of the Case, infra.
- ↑ R. v.7, tr. 1/28/03, p.100.
- ↑ R. v.7, tr. 1/28/03, p.23-24.
- ↑ R. v.7, tr. 1/28/03, p.26.
- ↑ See, e.g., R. v.7, tr. 1/28/03, p.87, Parker testimony (Even after learned about asbestos hazards from OSHA, Tenneco’s safety person did nothing to control asbestos exposures.).
- ↑ R. v.4, p.895, Kilgore Depo. Violating such regulations apparently was not unusual for Tenneco. See, e.g., Ex. Abram-43, p.45-48, DeRose Depo. (testifying that Tenneco had violated federal or state regulations when by expelling gas into a river and releasing benzene into the atmosphere, among other things).
- ↑ R. v.7, tr. 1/28/03, p.134.
- ↑ See R. v.7, tr. 1/28/03, p.116, 134. See also Ex. Abram-29, p.66-68, 87 Michael Depo. (Mr. Michael, who began work at Tenneco in 1968 and was refinery manager from 1992 to 2000, testified that Tenneco did not start removing asbestos even on a piecemeal basis until the 1980’s, and no abatement was done while Tenneco owned the facility.). See also R. v.4, p.915, Kilgore Depo. (admitting that Tenneco never attempted to replace the asbestos insulation).
- ↑ Ex. Abram-25, p.11-12, Caldwell Depo.
- ↑ Ex. Abram-25, p.19, Caldwell Depo.
- ↑ Ex. Abram-25, p.33, Caldwell Depo.
- ↑ See, e.g., Ex. Abram-45, p.76-77, Dartus Depo. (testifying that employees were not fitted for respirators until after Tenneco sold the refinery to Mobil); Ex. Abram-43, p.26, DeRose Depo. (testifying that there were no breathing masks until the late 1980’s or 1990’s).
- ↑ R. v.7, tr. 1/27/03, pt.2, p.61; R. v.7, tr. 1/28/03, p.8.
- ↑ R. v.7, tr. 1/28/03, p.39.
- ↑ R. v.7, tr. 1/28/03, p.40.
- ↑ R. v.7, tr. 1/28/03, p.34-35, Parker Testimony (noting that the workers testified that they swept and shoveled up asbestos).
- ↑ R. v.7, tr. 1/28/03, p.112, 115. See also Ex. Abram-44, p.80-81, Serpas Depo. (before leaving the refinery in 1980, Mr. Serpas did not recall there being a time when asbestos-containing insulation was no longer used, nor did he recall asbestos ever being removed from Tenneco).
- ↑ An appellate court, while giving deference to the trial court’s findings, may still consider objective factors to decide whether to accept a witness’s subjective account: “Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989).
- ↑ R. v.7, tr. 1/28/03, p.38.
- ↑ R. v.7, tr. 1/28/03, p.39, 131.
- ↑ R. v.7, tr. 1/28/03, p.55.
- ↑ This section addresses Appellants’ third assignment of error.
- ↑ Appellants’ Brief at 10 (citing La. Civ. Code art. 2315 (1982); Landry v. Avondale Indus., Inc., 2003-0719 (La. 12/3/03), 864 So.2d 117, 124).
- ↑ Ex. Abram-2A at 143-46; Ex. Abram-43, p.21-23, 26, DeRose Depo. (Mr. DeRose, who worked with Mr. Abram in the warehouse, testified that there were many asbestos-containing products in the warehouse, including gaskets, gasket sheeting, insulation, packing, piping, loose asbestos in bags to mix with water; he specifically remembered seeing Mr. Abram handle gaskets, packing, and sheeting.).
- ↑ Ex. Abram-2A, p.164-66, Abram Depo. See also R. v.7, tr. 1/28/03, p.38, Parker Testimony (explaining that Mr. Abram was exposed through the 1980’s).
- ↑ The section addresses Appellants’ fourth assignment of error.
- ↑ 2000-2381 (La. App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104-1105.
- ↑ Kaufman, 800 So.2d at 1104 (citations omitted).
- ↑ Kaufman, 800 So.2d at 1104-05.
- ↑ See R. v.6, p.1254-65 (imposing only damages for Mr. Abram’s asbestos-related injuries and for his family’s loss of consortium).
- ↑ This section addresses Appellants’ fifth assignment of error.
- ↑ See Raley v. Carter, 412 So.2d 1045, 1047 (La. 1982).
- ↑ R. v.6, p.1273, Reasons for Judgment.
- ↑ Appellants’ Brief at 13.
- ↑ Roberts v. Owens-Corning Fiberglas Corp., 2003-0248 (La. App. 1 Cir. 4/2/04), 878 So.2d 631, 642.
- ↑ Appellant’s Brief at 13.
- ↑ R. v.7, tr. 1/28/03, pp.49-52.
- ↑ This section addresses Appellants’ sixth assignment of error.
- ↑ Hoerner v. ANCO Insulations, Inc., 2000-2333 (La. App. 4 Cir. 1/23/02), 812 So.2d 45, 62-63 (citing Canter v. Koehring Co., 283 So.2d 716, 721 (La.1973)).
- ↑ Hoerner, 812 So.2d at 63-64.
- ↑ Abadie, 784 So.2d at 107 (citing La. Rev. Stat. § 23:13) (“The employer is duty bound to adopt and utilize such methods and processes that are reasonably adequate to render the work place safe in accordance with accepted practices in the same or similar industries.”).
- ↑ R. v.6 p.1264-65, Judgment. Although each of these men testified that they had learned about the dangers of asbestos, Mr. Abram had never received any such warning during this entire employment at the refinery, through 1990. Ex. Abram-1B; p.32-34. When questioned by defense counsel, Mr. Abram’s coworker testified perceptively that if these executive knew about asbestos and did not tell Mr. Abram and other employees, “then they didn’t perform their jobs.” Ex. Abram-43, p.33, DeRose Depo.
- ↑ Ex. Abram-32, p.16-17, Blackwell Depo.
- ↑ Ex. Abram-24, p.31, Pollard Depo.
- ↑ Ex. Abram-22, p.30-31, Blackwell Depo.
- ↑ Ex. Abram-32, p.20-21.
- ↑ Ex. Abram-32, p.30.
- ↑ Ex. Abram-32, p.72; see also R. v.4, p.923-24, Kilgore Depo. (explaining that the safety engineer had authority to stop work that presented imminent safety concerns; for non-imminent safety issues, Blackwell was responsible for instructing the supervisor to correct the problem).
- ↑ Ex. Abram-22, p.37-40, Blackwell Depo. But see R. v.4, p.940, Kilgore Depo. (stating that the safety engineer had authority to instruct on use of safety equipment).
- ↑ Ex. Abram-22, p.48.
- ↑ R. v.7, tr. 1/27/03, pt.2, p.52-54; R. v.7, tr. 1/28/03, p.102 (discussing widely-distributed Standard Oil study with recommendations for avoiding asbestos exposure in refineries).
- ↑ Ex. Abram-32, p.46; see also Ex. Abram-22, p.8.
- ↑ Ex. Abram-32, p.18 & 46-47.
- ↑ Ex. Abram-32, p.17.
- ↑ Ex. Abram-32, p.50-51, 83-84.
- ↑ Ex. Abram-22, p.18. See also Ex. Abram-25, p.18, Caldwell Depo. (Plant manager Albert Caldwell testified that he did not need to instruct the refinery’s safety person to research safety matters, because the safety person’s very job was to be knowledgeable about safety specifics.).
- ↑ Ex. Abram-32, p.25-26.
- ↑ R. v.7, tr. 1/28/03, p.32-33, 98.
- ↑ R. v.7, tr. 1/27/03, pt.2, p.55. See also Ex. Abram-17, Safety & Health Standards promulgated pursuant to the Walsh-Healey Public Contracts Act (1951).
- ↑ Ex. Abram-32, p.43, Blackwell Depo..
- ↑ See Abadie v. Metro. Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So.2d 46, 116 (finding of liability not manifestly erroneous where Walsh-Healey Act was in effect during defendant’s tenure as safety person).
- ↑ Appellants’ Brief at 17.
- ↑ See Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973) (criticizing appellate court’s reliance on only some of the evidence, where record as a whole provided substantial evidence to support executive officer liability). See also Kaufman v. Adrian’s Tree Serv., Inc., 2000-2381, p.3-4 (La. App. 4 Cir. 2001), 800 So.2d 1102, 1104 (explaining that appeal is taken from the judgment, not from the reasons for judgment).
- ↑ Hoerner, 812 So.2d at 66.
- ↑ Appellant Brief at 17.
- ↑ Ex. Abram-32, p. 17-18, 46-47, 50-51, 83-84, Blackwell Depo.
- ↑ Id. at p. 72
- ↑ Id. at p. 20-21
- ↑ Appellants’ Brief at 17.
- ↑ Canter, 283 So.2d at 723-27.
- ↑ Appellants’ Brief at 17; see also id. at 20 & 24 (Kilgore and Pollard made this same claim).
- ↑ Canter, 283 So.2d at 723, 726-27.
- ↑ R. v.4, p.856, 860-61, Kilgore Depo.
- ↑ R. v.4, p.851 & 931.
- ↑ R. v.4, p.931; Ex. Abram-20 at 11; 18. See also Ex. Abram-32, p.84, Blackwell Depo. (explaining that he directed questions regarding OSHA compliance to Mr. Kilgore because he was “responsible for the whole refinery and everybody in it”).
- ↑ Ex. Abram-25, p.17, Caldwell Depo. See also Ex. Abram-29, p.37-38, Michael Depo. (Michael, refinery manager after Caldwell, also testified that the refinery manager was responsible for providing a the employees a safe work environment).
- ↑ Ex. Abram-21, exhibit 1 to Brooks deposition (1976 safety memorandum).
- ↑ R. v.4, p.921, 923.
- ↑ R. v.4, p.958.
- ↑ R. v.4, p.936-37.
- ↑ R. v.4, p.941, 953-55.
- ↑ R. v.4, p.951.
- ↑ R. v.4, p.851, 900, 904, 957.
- ↑ R. v.7, tr. 1/28/03, p.22 & 24, 28-29, Parker Testimony (opining that it would not have been difficult for Kilgore to find out about the hazards of asbestos); R. v.7, tr. 1/27/03, pt.2, p.38-61 (discussing asbestos information available since the 1930’s).
- ↑ Hoerner, 812 So.2d at 64.
- ↑ See, e.g., Canter, 283 So.2d at 727 (noting that a plant engineer could be liable if he delegated his responsibility to an incompetent subordinate); see also Cole v. Celotex Corp., 588 So.2d 376, 383 (La. App. 3 Cir. 1991) (holding that jury did not misapply the law in finding nine executive officers liable, because “[t]he responsibility of safety at the work place must be that of the top manager, the managers immediately below, the safety department, and the doctors.”).
- ↑ Ex. Abram-24, p.14, 22-23, Pollard Depo. See also R. v.4, p.858 & Ex. Abram-20, p.14, 16-17, Kilgore Depos. (testifying that when he started with Tenneco in 1959, Pollard was responsible for safety.).
- ↑ Ex. Abram-24, p.31-32.
- ↑ R. v.4, p.860-61 & 935. See also Ex. Abram-32, p.84, Blackwell Depo. (explaining that he directed questions regarding OSHA compliance to Mr. Kilgore and Mr. Pollard, because in their respective roles as refinery manager and administrative manager, everything “went through them”).
- ↑ Ex. Abram-24, p.35.
- ↑ R. v.7, tr. 1/28/03, p.100.
- ↑ Ex. Abram-24, p.35-36.
- ↑ Ex. Abram-24, p.46-47. See also, e.g., Canter, 283 So.2d at 727 (noting that a plant engineer could be liable if he delegated his responsibility to an incompetent subordinate).
- ↑ See R. v.7, tr. 1/28/03, p.20-22, Parker Testimony.
- ↑ See Abadie v. Metro. Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So.2d 46, 116-17 (jury’s finding of liability not manifestly erroneous where persons responsible for safety should have been aware of asbestos hazard).