PLAINTIFFS’ RESPONSE TO OLIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Plaintiffs Robert Eugene Dudoit, Mark Lynn Dudoit, Deborah Lou Fisher, and Vicki Camille Chambliess, all individually and on behalf of the late Robert Dudoit, Jr., by and through their attorney of record, and file this Response to Olin Corporation’s Motion for Summary Judgment on the grounds of Mr. Dudoit’s alleged contributory negligence.
Table Of Contents
This is an asbestos case and involves the death of Robert Dudoit, who dedicated nearly forty years of his life working for Olin at its Lake Charles plant. Deposition of Mr. Dudoit at 12-15, 22-47 (April 27, 2004), Exhibit __. Olin significantly exposed Mr. Dudoit to asbestos, never warned him about the dangers of asbestos, and never provided him with any equipment or protection against asbestos. See id. at 42-43. As a result, Mr. Dudoit contracted asbestos-related pleural plaques and lung cancer, which resulted in his death on May 22, 2004.
The issue in this case is whether Olin is liable for exposing Mr. Dudoit to asbestos and whether such exposure was a cause of Mr. Dudoit’s disease and death. In Louisiana, “[e]very employer has the duty to furnish employment that is reasonably safe for its employees. They shall furnish and use safety devices and safety guards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe…, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees.” La. Rev. Stat. § 23:13. The Dudoit family has alleged that Olin is liable in negligence for breaching its duty to provide reasonably safe employment for its long-time employee, Mr. Dudoit. The Dudoits have further alleged that Olin is strictly liable under Louisiana Civil Code Article 2317, which provides that “[w]e are responsible, not only for the damages occasioned by our own act, but for that which is caused by…the things which we have in our custody.” Under strict liability, the focus is on the defect on Olin’s premises, and conduct – of Olin and of Mr. Dudoit – is irrelevant. Thus, as the Louisiana Supreme Court and Third Circuits have long recognized, alleged contributory negligence is irrelevant in a strict liability cause of action.
Olin argues that Mr. Dudoit’s claims should be barred because of his smoking history. Mr. Dudoit began smoking at the age of 15 and quit smoking in 1968, the same year that the medical community first learned that asbestos workers who smoke have 92 times the risk of dying of lung cancer as men who neither work around asbestos nor smoke. Tobacco companies did not begin warning about cancer until nearly 20 years after Mr. Dudoit quit smoking. These facts are hardly sufficient to raise an issue as to contributory negligence, much less support a summary judgment. Moreover, Olin has failed to establish that any alleged contributory negligence would even constitute a defense to strict liability. Olin has not met its summary judgment burden.
ARGUMENT AND AUTHORITIES
Defendant Has Failed to Meet its Burden under the Summary Judgment Standard.
In Louisiana, motions for summary judgment are governed by La. C. C. P. art. 966, which requires the moving party to show that there is no genuine issue of material fact. La. C. C. P. art. 966(c)(1). Contributory negligence is a special or affirmative defense on which the defendant bears the burden of proof. See La. C.C.P. art. 1005; Roberts v. Meche, 204 So.2d 592 (La. App. 3rd Cir. 1967). A defendant seeking summary judgment on such an affirmative defense has the burden of proving each element of the defense as a matter of law. See Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, 1143; Boudreaux v. State Farm Mut. Auto. Ins. Co., 2002-0411 (La. App. 4th Cir. 8/14/02), 825 So.2d 558, 562.
The Supreme Court of Louisiana has cautioned that in considering a motion for summary judgment, “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1051 (emphasis added). Further, a “trial judge cannot make credibility determinations on a motion for summary judgment.” Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 236 (citations omitted). “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits . . . Any consideration as to whether the plaintiff will succeed at a trial on the merits is irrelevant and an insufficient basis to render a summary judgment against that party.” Anderson v. Int’l Indus., 00-2554, pp. 6-7 (La. App. 4 Cir. 11/14/01), 802 So.2d 841, 844 (emphasis added). In this case, Defendant has failed to meet its burden to show that there is no genuine issue of material fact, and thus this case must proceed to trial on the merits.
Contributory Negligence is Not a Defense in Strict Liability.
Even if Defendant had met its burden, which it has not, summary judgment cannot be granted because contributory negligence is not a defense to strict liability. Directing this Court to cases from the First Circuit and the federal court, Defendant would have this Court ignore binding precedent that has clearly held that contributory negligence is not a defense to a cause of action for strict liability. It is well established in Louisiana law, as set forth by the supreme court and by the Third Circuit, that contributory negligence is not a defense to strict liability. See, e.g., Langlois v. Allied Chem., Inc., 249 So.2d 133, 140 (1971). When presented with a certified question on this issue from the U.S. Court of Appeals for the Fifth Circuit, the Louisiana Supreme Court unequivocally held that “contributory negligence does not apply in strict products liability cases.” Bell v. Jet Wheel Blast, 462 So.2d 166, 167 (La. 1985). The court explained that contributory negligence as a complete bar to recovery is inconsistent with the purposes of strict liability, such that “[c]ontributory negligence has never been part of our legislated law….” Id. at 171; see also Howard v. Allstate Ins. Co., 520 So.2d 715, 718 (La. 1988) (noting that comparative fault law “allows the application of comparative fault to a claim previously insusceptible to the defense of contributory negligence, such as strict products liability or cases arising from art. 2317.”). The court further noted that Louisiana was in accord with the vast majority of states which have adopted the strict products liability doctrine and did not permit the defense of ordinary contributory negligence to bar recovery. Id. (listing cases).
In Verrett v. Cameron Telephone Co., 417 So.2d 1319, 1326-27 (La. App. 3 Cir. 1982), the Third Circuit held that victim fault is not the same as contributory negligence and that contributory negligence is not a defense in a strict liability claim under art. 2317. The Verrett court held: “Rather, victim fault is usually in the form of assumption of risk, that is, voluntary and unreasonable use of the product with full knowledge and appreciation of its defect and the danger involved. . . . It must be shown that plaintiff voluntarily and unnecessarily exposes himself to a known danger.” Id. at 1327 (citations omitted). The court explained the reason for treating the two claims differently: “The distinction between negligence and strict liability cases lies in the fact that inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence.” Id. The court reversed the district court for substituting its judgment for a trial on the merits. “The reasonableness of plaintiff’s conduct (or lack thereof) must be viewed in light of the hazard created by the defendant, and such a determination cannot be made, under the circumstances presented on a motion for summary judgment.” Id. The Louisiana Supreme Court denied writ, with Justice Lemmon agreeing that “[t]he reasonableness of the risks is more appropriately determined at a trial on the merits.” Verrett v. Cameron Telephone Co., 422 So.2d 164 (La. 1982) (Lemmon, J., concurring in writ denial).
The fact that contributory negligence was not a defense to strict liability claims under the pre-comparative fault regime which is applicable in this case has been affirmed time and again. See, e.g., Coburn v. Browning Arms Co., 565 F. Supp. 742, 750 (W.D. La.1983) (finding “ample support” for its holding that “a victim’s ordinary contributory negligence cannot be raised defensively by a manufacturer in a strict products liability action under Louisiana law”); F. Stone, 12 Louisiana Civil Law Treatise; Tort Doctrine, § 439 (1982 Supp.) (concluding that contributory negligence is not available as a defense to a strict products liability claim in Louisiana); Note, Contributing Negligence–When Should it be a Defense in a Strict Liability Action?, 43 La. L. Rev. 801 (1983) (finding that “contributing negligence is not currently recognized by the courts as a defense in strict products liability actions”).
Importantly, Verrett and the other cases relied on by Plaintiff were interpreting pre-comparative fault law, which all parties agree applies in this case. In contrast, Defendant urges this Court to throw out Mr. Dudoit’s case based on nonbinding caselaw from other circuits and based on comparative-fault law, which is irrelevant in this case. For example, Defendant relies extensively on Turner v. Safeco Insurance Company of America which, in addition to being nonbinding on this court, applies the comparative fault law, which is inapplicable in this case. 472 So.2d 43, 48 (La. App. 1 Cir. 1985) (“Contributory negligence, being a defense, invokes the comparative negligence provisions of La. Civ. Code art. 2323 to apportion a degree of negligence attributable to [plaintiff].”), cited and quoted in Defendant’s Memo. at 1, 2, 3.
Even if contributory negligence were a defense in strict liability, such defense is not available because Defendant cannot show that Mr. Dudoit was fully aware of the risk created by the interaction of asbestos exposure and cigarette smoking, as required by the relevant law. Nor has Defendant brought the tobacco companies into this suit, such that its attempt to turn this into a tobacco case are misguided: this case is about Olin’s failure to warn its employee of the dangers of asbestos, not the tobacco company’s failure to warn a consumer of the dangers of smoking. To the extent that it is relevant, Mr. Dudoit’s smoking history pertains only to the issue of causation, not fault.
Defendant Has Not Met its Burden to Prove Its Affirmative Defense.
Several Louisiana cases have examined the contributory negligence defense in cases involving workplace hazards and concluded that it is not sufficient for an employer to show that an employee had some awareness of the risks. The employer has the burden of proving that the employee was fully aware of all relevant risks.
In Willis v. Stauffer Chemical Co., the Third Circuit held that the essential question is “[D]id plaintiff have full knowledge of the danger in which he was placed and were his actions that of a reasonable man under the circumstances to secure his own safety.” 348 So.2d 158, 161 (La. App. 3rd Cir. 1977) (emphasis added). In another case, the Third Circuit explained that “[i]n order for plaintiff to be held contributorily negligent, the defendants must show that plaintiff not only had knowledge of the danger, but also that he appreciated the danger under all the surrounding conditions and circumstances. . . . We agree with the trial judge that defendant, who carries the burden of proof, has failed in his burden.” Faulk v. Power Rig Drilling Co., 348 So.2d 219, 221 (La. App. 3rd Cir. 1977) (emphasis added).
Applying similar reasoning, the Fourth Circuit has held that “[f]or an employee to be held contributorily negligent and/or to have assumed the risk of harm which results in injury, defendant must prove, by a preponderance of the evidence, that plaintiff voluntarily and knowingly exposed himself to the danger which resulted in his injury.” Parker v. Travelers Ins. Co., 400 So.2d 682, 687 (La. App. 4th Cir. 1981). Parker also explains that this requirement of full knowledge applies to both contributory negligence and assumption of risk.
In this case, the following facts are undisputed:
- Robert Dudoit, Jr. died from lung cancer.
- Both cigarette smoking and asbestos exposure cause lung cancer.
- Cigarette smoking and asbestos exposure have a multiplicative or “synergistic” effect on the risk of lung cancer, meaning that the risk caused by the two factors in combination is many orders of magnitude greater than the risk posed by each factor separately:
- a nonsmoker exposed to asbestos has a 5 to 6 times greater risk of dying from lung cancer than a nonsmoker who was never exposed to asbestos;
- a smoker who was never exposed to asbestos has a 10 to 11 times greater risk of dying from lung cancer than a nonsmoker who was never exposed to asbestos;
- a smoker who was exposed to asbestos has a 55 to 92 times greater risk of dying from lung cancer than a nonsmoker who was never exposed to asbestos.
In light of these facts, it is insufficient as a matter of law for Defendant to show that Mr. Dudoit was aware of some risk associated with cigarette smoking. Rather, Defendant must introduce sufficient evidence that Mr. Dudoit was aware of the multiplied risk created by the combination of cigarette smoking and asbestos exposure, and that he knowingly exposed himself to that dramatically increased risk. Absent such evidence, the defenses of contributory negligence and assumption of risk are unavailable.
Here, not only has Defendant failed to meet its burden to prove that Mr. Dudoit had full knowledge of the combined risks of smoking and asbestos exposure, but it failed to prove that Mr. Dudoit knew that smoking could cause lung cancer at the time when he was smoking. Defendant misrepresents to the contrary in this brief. Although Mr. Dudoit did admit that he knew smoking could cause health problems, it is not clear when he had this knowledge–that is, his knowledge of this fact may have directly preceded his decision to quit smoking in 1968. It is certainly not evident that Mr. Dudoit knew or could have known of the dangers of smoking when he first started smoking as a youth. Nor is there any evidence that he ever had full knowledge of all the surrounding circumstances – including the synergistic effect of smoking and asbestos, and the fact that Defendant was exposing him to a deadly carcinogen at work.
Under the Third Circuit’s opinions in Willis and Faulk, Mr. Dudoit could not have full knowledge of all the surrounding conditions and circumstances without knowing the tremendous increase in risk for a smoker who is also exposed to asbestos. As shown in the bar graph at Exhibit __ (from the 1985 Surgeon General Report), nonsmokers who are occupationally exposed to asbestos have a five-fold increased risk of dying from lung cancer as compared with nonsmokers who are not exposed to asbestos. Smoking doubles that risk, and when both smoking and occupational exposure to asbestos are combined, the risk of dying from lung cancer skyrockets to 92 times greater than the risk to non-exposed nonsmokers. See id. See also Deposition of Dr. Richard Kradin at 21:17 – 28:16, Exhibit __.
As the following time line illustrates, the year Mr. Dudoit stopped smoking is when the medical community first learned of the synergistic effect of smoking and asbestos, and it was not until twelve years after Mr. Dudoit had stopped smoking that the U.S. Surgeon General informed the public about this synergism:
1941Mr. Dudoit starts smoking at the age of 15. Deposition of Mr. Dudoit at 48 (April 27, 2004) (Exhibit __).
1946Mr. Dudoit’s exposure to asbestos while working for Olin begins. Id. at 12-15.
1966Cigarettes are for the first time accompanied by label: ‘Caution: Cigarette Smoking May Be Hazardous To Your Health.’” Gilboy v. Am. Tobacco Co., 582 So.2d 1263, 1265 (La. 1991) (suggesting that a smoker who started smoking before the 1966 warning “should qualify as a prudent consumer.”).
1968Mr. Dudoit stops smoking.
1968Published finding that asbestos workers who smoke have 92 times the risk of dying of lung cancer as men who neither work around asbestos nor smoke. Irving J. Selikoff et al., Asbestos Exposure, Smoking, and Neoplasia, 204 J. Am. Med. Assoc. 104 (Apr. 8, 1968) (Exhibit __).
1979Surgeon General reports “dramatically increased risks to smokers exposed to certain occupational hazards [including] asbestos,” and discusses Selikoff’s findings of “a potent synergism between the carcinogens of tobacco smoke and asbestos.” U.S. Dep’t Health, Education & Welfare, Smoking and Health: A Report of the Surgeon General (1979) (Exhibit __).
1985Surgeon General’s Warning on cigarette packs for the first time mentions the dangers of lung cancer. Gilboy, 582 So.2d at 1266.
1988Surgeon General reports that cigarettes are addictive. U.S. Dep’t Health & Human Servs., The Health Consequences of Smoking: Nicotine Addiction: A Report of the Surgeon General (1988) (Exhibit __).
Thus, even the medical community lacked knowledge of the synergistic effect of smoking and asbestos up until the time Mr. Dudoit stopped smoking. Further, at the time Mr. Dudoit started smoking, the general public was not aware of the health hazards of smoking, particularly the hazards to children and the hazards related to smoking filtered versus non-filtered cigarettes. Mr. Dudoit started smoking at the age of fifteen. In another case in which the victim had started smoking at a young age, the Louisiana Supreme Court noted that the plaintiff “allegedly became addicted to smoking at an early age when his judgment would not have been equal to that of a mature individual. His competence at the time: to recognize the danger; to appreciate the nature and extent of the risk; and to voluntarily expose himself to that risk, are complicated factual issues.” Gilboy v. Am. Tobacco Co., 582 So.2d 1263, 1265 (La. 1991).
Even if warnings had been made at the time when Mr. Dudoit started smoking, it is unclear that he could have appreciated their significance. But in fact, no such notices were ever issued until just before Mr. Dudoit had already stopped smoking, and even then, such notices were inadequate under Louisiana law. Even when the tobacco companies were finally forced to admit the hazards of their products, Mr. Dudoit’s employer – Defendant herein – continued to conceal the fact that it was significantly exposing him to asbestos and continued to offer no protection whatsoever for his safety. To the extent that anyone other than Defendant is liable for Mr. Dudoit’s cancer and death, it is the tobacco companies, against whom Defendant chose not to file a claim. Defendant should not be heard to blame its deceased employee for Defendant’s own failings as his employer and for the failings of the tobacco companies as an industry.
At the time when Mr. Dudoit smoked, it was impossible for anyone, including Mr. Dudoit, to have “full knowledge” of “all the surrounding conditions and circumstances,” as required by the Third Circuit in Willis and Faulk. Defendant has no basis to claim that Mr. Dudoit was at fault.
Courts that have considered this issue have determined that a defendant cannot prove contributory negligence or assumption of risk based on smoking alone, but must show that the plaintiff knew about this synergistic effect. For example, an Illinois appellate court held that it was not error for the trial judge to refuse the defendant’s instruction on comparative negligence based on the decedent’s smoking, where there was no evidence that the decedent “had been aware of the studies indicating that those with asbestosis are at increased risk of lung cancer when they continue to smoke.” McClure v. Owens Corning Fiberglas Corp., 698 N.E.2d 1111, 1120 (4th Dist. 1998), rev’d on other grounds, 720 N.E.2d 242 (1999). Similarly, a federal district court in Texas concluded that “[f]or smoking to be considered contributory negligence, it must be shown that the plaintiff had subjective knowledge of the synergistic relationship between the asbestos-related disease and smoking and appreciated the danger of continued smoking.” Cimino v. Raymark Indus., Inc., 751 F. Supp. 649, 658 (E.D. Tex. 1990), aff’d in part and rev’d in part on other grounds, 151 F.3d 297, 335 (5th Cir. 1998). Likewise, in Louisiana, a defense of plaintiff’s alleged fault in developing an asbestos-related illness cannot be sustained where there is no evidence that the plaintiff had knowledge of the synergistic effect of smoking and exposure to asbestos. Cf. Palermo v. Port of New Orleans, 2004-1804, p. 6 (La. App. 4 Cir. 2007), 951 So.2d 425, 432 (noting that trial court declined to find that plaintiff’s history of smoking from 1948 to 1983 constituted contributory negligence).
Summary Judgment is Not Appropriate Absent a Showing of Liability.
Defendant’s motion is not premised on Mr. Dudoit’s fault, but rather causation. That is, Defendant claims that Mr. Dudoit’s smoking – and not his thirty-plus-years’ exposure to asbestos while working for Defendant – caused his disease. Regardless of whether both smoking and asbestos could cause lung cancer, Defendant’s speculations regarding causation do not constitute proof of Mr. Dudoit’s liability. Quite simply, Defendant fails to meet its burden to prove that Mr. Dudoit knew or should have known of the synergistic effects of asbestos and smoking. See Powell v. Heck, 378 So.2d 582, 585 (La. App. 3 Cir. 1979).
Even if his smoking played a role in the development of his disease, Mr. Dudoit smoked at the time he started working for Olin, and Olin then greatly multiplied Mr. Dudoit’s risk of developing lung cancer by exposing him to asbestos. It is axiomatic that in Louisiana, a tortfeasor takes his victim as he finds him and is responsible in damages for the consequences of his tort, although the damages are greater because of a prior condition of the victim which is aggravated by the tort. For example, in Lasha v. Olin Corporation, the court found that Olin’s liability for damages suffered by a driver exposed to chlorine gas was not mitigated by the fact that the driver’s preexisting physical infirmity caused by smoking was responsible in part for his injury, even though he was especially predisposed to respiratory illness due to his heavy smoking. 625 So.2d 1002, 1005 (La. 1993). See also, e.g., Thames v. Zeroing, 411 So.2d 17, 19 (La. 1982) (plaintiff had pre-existing psychological problems); Young v. Logue, 94-0585 (La. App. 4 Cir. 5/16/95); 660 So.2d 32 (evidence supported finding that lung disease was silicosis and not just emphysema caused by smoking); Chavers v. Travis, 2004-0992 p.8-9 (La. App. 4 Cir. 4/20/05); 902 So.2d 389, 394-95 (“an injured person is entitled to recover full compensation for all damages that proximately result from a defendant’s [tortious] act, even if some or all of the injuries might not have occurred but for the plaintiff’s preexisting physical condition, disease, or susceptibility to injury”) (cit. om.).
A defendant cannot claim that a worker’s cancer was caused solely by smoking unless it has proof that smoking is the only cause. Under Louisiana law, cigarette smoking and asbestos exposure could be concurrent causes of a workers’ lung cancer, even if it was possible that cigarette smoking alone could have caused the cancer. In re Manguno, 961 F.2d 533, 534 (5th Cir. 1992) (applying Louisiana law, and noting that plaintiffs’ theory of the case was that cigarette smoking and asbestos were concurrent causes of lung cancer). The long-recognized principle of Louisiana law that causation is not defeated by the possibility that an injury could have happened without the defendant’s involvement has never been relegated to those cases in which a plaintiff first proves that the defendant alone would have caused the harm. See id., see also, e.g., Reynolds v. Tex. & Pac. Ry. Co., 446 La. Ann. 694, 1885 WL 6364 (La. 1885). Plaintiffs have the burden of proving that asbestos was a cause of Mr. Dudoit’s injuries, not that asbestos was the only cause. Plaintiff can certainly meet that burden, whereas Defendant has failed to meet its burden to prove its affirmative defense of negligence. Defendant having failed to prove all the elements of its affirmative defense, summary judgment is inappropriate.
Plaintiffs respectfully pray that this Court DENY Defendant’s Motion for Summary Judgment.
- ↑ This misrepresentation is consistent with Defendant’s other misstatements and exaggerations throughout its brief, such as repeatedly claiming that Mr. Dudoit smoked for 30 years, while citing Mr. Dudoit’s deposition testimony that he smoked for 25 years.
- ↑ This report noted that after 10 to 15 years following smoking cessation, ex-smokers’ risk of dying of lung cancer has decreased to a point where it is only slightly above the risk for nonsmokers. Mr. Dudoit died of lung cancer 37 years after he stopped smoking. See also See also Deposition of Dr. Richard Kradin at 24-25, Exhibit __ (explaining that risk of contracting lung cancer diminishes after smoking cessation, whereas asbestos fibers remain in the lungs such that risk of contracting cancer from asbestos does not decrease after exposure).