COURT OF APPEAL
STATE OF LOUISIANA
ANCO INSULATIONS, INC., ET AL.,
On Appeal from the 19th Judicial District Court,
No. 538,254; Parish of East Baton Rouge, Section 27
The Honorable Robert J. Burns, Judge Ad Hoc
CONSOLIDATED BRIEF OF APPELLEE
IN RESPONSE TO H.E. WIESE, INC. N/K/A JACOBS CONSTRUCTORS, INC., AND PARSONS INFRASTRUCTURE & TECHNOLOGY GROUP, INC.
STATEMENT OF THE CASE
At the age of 59, Mr. Rando was diagnosed with mesothelioma, a painful, progressive, and fatal cancer caused by asbestos. Mr. Rando’s disease was caused by his exposure to asbestos while working as a pipefitter, including for H.E. Wiese, Inc. n/k/a Jacobs Constructors, Inc. (JCI), and for Parsons Infrastructure & Technology Group, Inc. (Parsons) (collectively, Appellants).
A bench trial was held before the Honorable Robert J. Burns on January 9 through January 18, 2007, during which time Mr. Rando presented evidence of his significant tortious exposure to asbestos while working for Appellants in 1970 to 1973. Appellee also presented evidence that the hazards of asbestos were known long before he ever worked for JCI and Parsons. Appellee offered the expertise of Richard Lemen, former Assistant Surgeon General and former Deputy Director of NIOSH. R.2910. Dr. Lemen has repeatedly been called to testify on asbestos before Congress, R.2925, and he has experience with asbestos sampling in the industries at issue in this case – construction and refining, R.2917-19, 2933-34. See also Roberts v. Owens-Corning Fiberglas Corp., 03-0248 (La. App. 1 Cir. 4/2/04); 878 So.2d 631 639-40 (citing Lemen’s opinions regarding asbestos).
Dr. Lemen testified that it has been known since 1900 that people get sick from breathing asbestos fibers. R.2924, 2968. In 1930, a major epidemiological study confirmed that asbestos causes asbestosis and recommended methods to reduce exposure, such as dust suppression, ventilation, wet methods, respirators, and warning workers. R.2939-40, 2950, 2968; P-10. The basic standards outlined in 1930 were adopted with OSHA and are still used today. R.2952, 2992. Although Dr. Merewether conducted this 1930 study in the textile industry, he emphasized that his findings had implications to other trades, including pipefitters. R.2940, 2944-45. This report was widely circulated, such that by 1930 it was established that asbestos could cause disabling disease and death. R.2949. The dangers of asbestos were so well recognized that in 1938 and the early 1940s the Public Health Service and the American Conference of Governmental Industrial Hygienists (ACGIH) issued occupational exposure guidelines. R.2980-81, 2984. Some of the ACGIH’s recommendations were adopted by the government in 1951, R.2980, and again under OSHA in May 1971, R.2983. Dr. Lemen and others in NIOSH urged OSHA to lower the standard to that recommended by the Public Health Service in 1938, R.2983-84, and recommended that asbestos be banned in the workplace. R.3046.
Universal knowledge that asbestos exposure was associated with lung cancer was solidified in 1949 and 1955. R.2958, 2969; P-18; R.3119. Mesothelioma among people exposed to asbestos was being reported by the mid-1940s, R.2961, and in the 1960s mesothelioma was identified among refinery workers. R.2962. P-19. A 1960 mesothelioma study specifically mentioned fitters, Mr. Rando’s profession. R.3271. By the early 1960s, mesothelioma was firmly attributed to asbestos exposure, R.2967, 2969, 3219-20, and Dr. Selikoff began to publish asbestos information for workers, R.2777. Parsons’s expert testified that “certainly asbestos exposures were known and have been of concern over my entire career,” which started in 1948, R.2740, and he admitted that “most people were reading what Dr. Selikoff had to say.” R.2805. In 1968, Dr. Selikoff again reported construction workers’ exposure to asbestos, R.2979; R-9, explaining that such workers were continuously exposed as asbestos fibers were re-entrained into the air by workers walking by or wind blowing through. R.2974-76. Like the 1930 Merewether report, Dr. Selikoff’s findings were widely available, particularly for industry members and unions. R.3033-34, 3050; P-8; P-9. As a result of widespread knowledge of the risks to construction workers, OSHA published asbestos regulations specific to that industry. P-5; R.2781.
Following trial and post-trial memoranda, the trial court found that Appellants had failed to prove their affirmative defense of immunity under the Workers’ Compensation Act and were liable for causing Mr. Rando’s mesothelioma. R.2679-87. The judgment is fully supported by the evidence and the law, and Appellants have identified no sound reason to disturb it.
THE TRIAL COURT CORRECTLY FOUND THAT APPELLANTS FAILED TO PROVE THEIR AFFIRMATIVE DEFENSE OF IMMUNITY UNDER THE WORKERS’ COMPENSATION ACT.
(Responding to JCI’s argument III and Parsons’s argument II(A).)
Despite their claim of immunity under the 1952 Workers’ Compensation Act, Appellants can cite no case in which a worker recovered benefits for asbestos-related cancer during the years this law was in effect. See Gautreaux v. Rheem Mfg. Co., 96-2193 (La. App. 4 Cir. 12/27/96); 694 So.2d 977, 979 (finding defendant’s “novel interpretation…in conflict with the established jurisprudence arising under this twenty-year-old statute”). The absence of such case is further evidenced by Appellants’ need to cite cases involving paint, detergent, chemical spray, and polyester. See JCI Br. at 23-24, Parsons Br. at 18-19. It is only in the context of tort immunity, asserted decades later, that Appellants claim coverage for asbestos-related cancer. When this statute was in effect, it could not be used by workers like Mr. Rando to obtain compensation, and it cannot now be used by employers to deprive workers of their right to seek recovery in tort. Appellants’ interpretation of this statute has been rejected by this Court, violates basic principles of statutory construction, and ignores legislative intent.
A.This Court Has Already Rejected Appellants’ Position.
The First Circuit has considered this issue four times, each time concluding that the 1952 statute did not cover asbestos-related cancer. Most recently, this Court rejected the same arguments made by Appellants herein, finding that their statutory “interpretation goes far beyond the intentions of the legislature.” Terrance v. Dow Chem. Co., 2006-2234, p. 5 (La. App. 1 Cir. 9/14/07); _ So.2d _, 2007 WL 2772407 (affirming 1952 Act did not cover mesothelioma). See also Adams v. Owens-Corning Fiberglas Corp., 04-1296 (La. App. 1 Cir. 9/23/05); 921 So.2d 972 (holding 1952 Act did not cover asbestos-related colon cancer); Johnson v. Ashland Oil, Inc., 96-0323 (La. App. 1 Cir. 12/20/96); 684 So.2d 1156 (reversing summary judgment and holding 1952 statute did not cover mesothelioma); Thomas v. Armstrong World Indus., Inc., 95-2222 (La. App. 1 Cir. 6/28/96); 676 So.2d 1185 (holding 1952 statute did not cover lung cancer caused by asbestos).
The Fourth Circuit has likewise rejected Appellants’ interpretation. See Gautreaux, 694 So.2d at 978 (holding 1952 statute did not cover asbestos-related lung cancer); Callaway v. Anco Insu., Inc., 98-0397 (La. App. 4 Cir. 3/25/98); 714 So.2d 730, 732 (holding statute did not cover mesothelioma); Matrana v. Avondale Indus., 01-1505 (La. App. 4 Cir. 8/27/01); 803 So.2d 59. The First and Fourth Circuits’ statutory interpretation finds support in the Louisiana Supreme Court, which has cited with approval Callaway and Gautreaux:
Where the act provides no coverage for an occupational disease, the employee enjoys no compensating advantage for the surrender of any tort rights he might have; therefore, he is free to proceed against his employer in tort…. The Fourth Circuit recently upheld that principle when it held that, because the pre-1975 version of La. Rev. Stat. 23:1031.1 did not include mesothelioma as a covered disease or asbestos as a substance that caused disease, the plaintiffs were not precluded from pursuing a negligence action against their employer.
Austin v. Abney Mills, Inc., 01-1598 (La. 9/4/02); 824 So.2d 1137, 1145. The court reiterated this principle in Landry v. Avondale Industries, noting that the claim arose “due to an injury (mesothelioma) that is outside of the exclusive remedy of the  workers’ compensation act.” 03-0719 (La. 12/3/03); 864 So.2d 117, 121. If Appellants’ reading of the statute were correct, then Louisiana courts have wasted their time on many cases. For example, the issue in Austin was whether the cause of action for mesothelioma accrued before 1975 such that the plaintiff could maintain a tort action. Under Appellants’ statutory interpretation, the supreme court’s opinion in Austin was merely advisory.
Appellants dismiss this Court’s prior rulings as holding “only that neither mesothelioma nor lung cancer are specifically and individually listed as scheduled diseases in the 1952 version of La. Rev. Stat. 23:1031.1 – a conclusion that is hardly surprising as neither disease had been linked to asbestos exposure in 1952.” JCI Br. at 22; see also Parsons Br. at 26 n.8. Appellants cite no evidence for their claim, and in fact Dr. Lemen testified that the association of asbestos exposure to lung cancer and mesothelioma was reported by the 1930s and 1940s, respectively. R.2958, 2961, 2966, 2969; see also Roberts, 878 So.2d at 639 (noting asbestos connected to mesothelioma since 1940s). The seminal journal among physicians in America reported in 1949 on the “causal relationship between asbestosis and lung cancer of the lung” and stated that this associated had been reported since 1935. P-18. The Legislature could have listed asbestos as a covered substance, yet it did not. This exclusion is but one ground for concluding that other asbestos diseases were not covered by the 1952 Act. E.g., Thomas, 676 So.2d at 1187.
Despite this Court’s consistent position on this issue, Appellants rely on opinions from the Second and Fifth Circuits. See Brunet v. Avondale Indus., 99-1354 (La. App. 5 Cir. 12/5/00); 772 So.2d 974; Adams v. Asbestos Corp., 39,952 (La. App. 2 Cir. 10/28/05); 914 So.2d 1177. This Court “specifically reject[ed] the rationale in Brunet and Adams of the fifth and second circuits.” Terrance at p. 5. Neither case involved mesothelioma, neither was reviewed by the supreme court, and Brunet was later rejected by its own circuit. See Abadie v. Metro. Life Ins. Co., 00-352 (La. App. 5 Cir. 4/11/01); 804 So.2d 11, 19 (holding that because exposures began during 1952 statute, cause of action for mesothelioma not barred). The Louisiana Supreme Court has not shown any inclination to reverse position on this issue, nor should this Court.
B.Appellants Violate Principles of Statutory Interpretation.
“A reading of the statutory language of La. R.S. 23:1031.1 reveals that the schedule of diseases specifically includes the condition of asbestosis; however, it does not name the disease of lung cancer. Moreover, the extensive list of substances that the 1952 statute delineates as being exclusive in order to maintain an action in workers’ compensation does not contain the physical matter, asbestos.” Thomas, 676 So.2d at 1186-87. Appellants argue for an expansive reading of the statute for sweeping coverage. A similar argument was rejected by the supreme court in Austin, in which the employer argued that because the plaintiff could have received workers’ compensation at the time he developed asbestos-related cancer, that was his exclusive remedy. See 824 So.2d at 1144. The court explained that the plaintiff “is not seeking workers’ compensation benefits, so the cases relied on by the employer defendants for the premise that the date of disability determines eligibility for workers’ compensation benefits are inapposite.” Id.
The Louisiana Supreme Court “has consistently liberally construed the coverage provisions of the workers’ compensation act while narrowly construing the immunity provisions.” Guillory v. Interstate Gas Station, 94-1767(La. 3/3/95); 653 So.2d 1152, 1158 (internal quot. and cit. om.). “Every presumption should be on the side of preserving the general tort or delictual rights of an injured worker against the actual wrongdoer, in the absence of explicit statutory language limiting or excluding such rights.” Roberts v. Sewerage & Water Bd. of N.O., 92-2048 (La. 3/21/94); 634 So.2d 341, 346. Quite simply, “the law is to be liberally construed in favor of the injured employee.” Pinkins v. Cardinal Wholesale Supply, 619 So.2d 52, 55 (La. 1993). The question in this case is not whether Mr. Rando’s disease should, as a matter of policy, be covered by workers’ compensation benefits. The question is whether the former version of the statute, read in accordance with rules of statutory construction, covered mesothelioma.
Appellants’ position violates the most rudimentary tenets of statutory construction. Statutory terms are not construed in isolation, and “the construction placed on one portion should not be such as to obliterate another.” O’Regan v. Preferred Enters., Inc., 98-1602 (La. 5/17/00); 758 So.2d 124, 130 (cits. om.). It is “presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed.” Moss v. State, 05-1963 p. 15 (La. 4/4/06); 925 So.2d 1185, 1196. “[A]ll parts of a statute must be given effect,” and courts must not give a statute an interpretation that makes any part superfluous or meaningless. Sabine Parish Police Jury v. Comm’r of Alcohol & Tobacco Control, 04-1833, p. 20 (La. 4/12/05); 898 So.2d 1244, 1256.
Appellants’ interpretation renders superfluous 23:1031.1(A)(3), which identified “asbestosis” as a covered disease. See Thomas, 676 So.2d 1185; Gautreaux, 694 So.2d at 978. Their reading would also “render several other subsections of the former section redundant.” Gautreaux, supra, at 978 (noting defendant’s broad interpretation of “compound” would make 23:1031.1(1)(h), (i), (j), (m), (n), (o) & (p) redundant). If the Legislature had intended for “oxygen compound” or “metal compound” to cover asbestos, there would have been no need to list asbestosis. The specific listing of asbestosis removes any basis for inferring that 23:1031.1(A)(1) was intended to cover all asbestos-related diseases.
In an internally inconsistent position, Appellants assert that the Legislature understood that “oxygen compound” includes asbestos, but also claim that “compound” is a technical term that must be interpreted by their chemist. In fact, La. Rev. Stat. 23:1301(A)(1) does not use terminology that has practical meaning in the field of chemistry. P-28 at ¶8. Defense expert Harry Ensley’s conclusions are contradicted by experts in chemistry, geology, geochemistry, mineralogy, asbestos, and asbestos diseases. For example, Dr. De Hon has never seen geological or mineralogical literature refer to asbestos minerals as “oxygen compounds” or “metal compounds.” P-29 at ¶8. Drs. Lemen, Brody, and Roggli testified that asbestos is a mineral. R.2941, 3184, 3218. Dr. Merewether’s 1930 report and Appellants’ own exhibit, a 1967 journal article, refer to asbestos as a mineral. R.2942; P-10 at 6; J-1 at 222 & 224. See also Gautreaux, 694 So.2d at 978 (citing evidence that “asbestos would be better described as a mineral”).
Dr. Ensley’s opinion is contradicted by his own prior affidavit, in which he claimed that even a “layman” could interpret terms that he now says are “technical” terms with a “precise meaning” in chemistry. Compare R.1726 (2006 aff.) with R.1743 (2001 aff.). He also relies on such curious sources as Wikipedia, an internet site that can be edited by anyone. See http://en.wikipedia.org/wiki/Main_Page (cited in J-15 at 11-12). Even if Dr. Ensley’s conclusions were correct as a matter of scientific terminology, they are incorrect as a matter of statutory interpretation, and Dr. Ensley has previously admitted that he is not qualified to “opine regarding statutory interpretation.” R.1745. A statute’s meaning must be “determined from a general consideration of the act as a whole,” and the “intent as deduced from the whole will prevail over that of a particular part considered separately.” O’Regan, 758 So.2d at 130. No matter how many chemists Appellants call to define “compound,” their construction of 23.1031.1(A)(1) cannot be reconciled with the structure, language, and intent of the statute as a whole.
Appellants claim that their interpretation is not so broad, as it excludes certain types of occupational diseases, such as infectious diseases, muscle strains or spasms caused by repetitive motion, and “diseases of exposure caused by heat, cold or dampness.” Parsons Br. at 26-27. This illustrates another fundamental flaw in Appellants’ position. For example, water (chemical formula H2O) is an “oxygen compound” under Appellants’ definition. Appellants’ construction of La. Rev. Stat. 23:1031.1(A)(1) would cover diseases caused by exposure to “dampness,” despite the widely accepted view that the 1952 statute was meant to exclude such diseases. See R.2039 (Parsons citingLarson’s Workers’ Comp., V. 2 § 52.05 (2003)). Likewise, infectious diseases are caused by contact with carbon-based organisms, and muscle strains and repetitive stress disorders necessarily involve contact with objects containing metal, wood, or other compounds that fall within Appellants’ interpretation of La. Rev. Stat. 23.1031.1(A)(1). Since no one disputes that the 1952 statute was intended to exclude such diseases, Appellants’ overly broad interpretation cannot be correct.
Legislative history indicates that the Legislature did not intend to include asbestos-related cancers within the ambit of poisoning resulting from contact with an oxygen or metal compound. The original bill was very broad, defining as compensable “occupational disease” “contracted by an employee in the course of his employment provided that any disease so contracted must be due to the nature of and inherent in the work performed by such employee….” P-30, HB 1098 at A-3. Rejecting this bill, the Legislature provided coverage for only some occupational disease: “It is noteworthy that our legislature decided to adopt the schedule approach, which limits compensation to specific diseases, at a time when this approach is being abandoned in many other states in favor of a general coverage which includes all diseases of a character related to the nature of the employment.” Wex S. Malone, La. Workmen’s Comp. L. & Prac. § 218 at 85 (1964 pocket part) (emph. supp.). As one of Louisiana’s foremost authorities on workers’ compensation noted, the Legislature’s choice of a schedule approach ensured that certain diseases – such as mesothelioma – “remained subject to tort proceedings.” H. Alston Johnson III, 14 La. Civ. L. Treatise, Workers’ Comp. L. & Prac. § 361 (4th ed.). Louisiana courts have likewise recognized the limited reach of the 1952 statute. See, e.g., O’Regan v. Preferred Enters., 1998-1602 (La. 3/17/00); 758 So.2d 124, 129 (noting 1952 statute provided compensation “only” for “exclusive list” of diseases).
As this Court has previously held, the 1952 workers’ compensation statute cannot reasonably be read to provide compensation for asbestos-related cancers. Just as this statute would not have afforded Mr. Rando any benefits, so too it does not bestow Appellants immunity.
THE TRIAL COURT CORRECTLY FOUND THAT JCI FAILED TO PROVE ITS AFFIRMATIVE DEFENSE OF PEREMPTION.
(Responding to JCI’s argument II.)
The contractor peremption statute must be “strictly construed against peremption and in favor of the claim that is said to be extinguished. Of the possible constructions, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement, should be adopted.” Albach v. Kennedy, 2000-0636, p. 9 (La. App. 1 Cir. 08/06/01); 801 So.2d 476, 482. In enacting this statute, the Legislature explicitly excluded from coverage those defendants who possessed or controlled the improvement at the time the injury was proximately caused:
The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property.
La. Rev. Stat. 9:2772(E) (emph. supp.). This case fits squarely within this provision.
JCI concedes that “La. R.S. 9:2772 was enacted to prevent a hardship to contractors who would have to defend suits for damages caused long after their performance was completed.” JCI Br. at 12 (emph. supp.). Peremption is intended to protect one who had completed his job and relinquished control of the improvement years before the incident proximately caused the injury. See, e.g., Burmaster v. Gravity Drainage Dist. No. 2 of St. Charles Parish, 366 So.2d 1381 (La. 1978) (guard rail accident 15 years after construction); Summerfield v. Harnischfeger Indus., Inc., Civ. A. 97-3683 (E.D. La. 10/13/98); 1998 WL 726080 (peremption where crane malfunctioned 16 years after construction); KSLA-TV, Inc. v. Radio Corp. of Am., 501 F. Supp. 891 (W.D. La. 1980) (peremption where tower collapsed 13 years after construction). The statute was not intended to exonerate one who possessed or controlled the improvement at the time of the incident that caused the injury. See Burmaster, 366 So.2d at 1385-86 (distinguishing those who have access to and control of improvement from those who do not).
The Legislature expressly excluded from the defense those who were in possession or control of the improvement when the injury was caused. See La. Rev. Stat. 9:2772(E). Underlying this exclusion are basic principles of tort liability, which require that one be answerable for harm caused by his conduct and materials in his custody. See La. Civ. Code art. 2315; Guilyot v. Del-Gulf Supply, Inc., 362 So.2d 816, 818 (La. App. 4 Cir. 1978) (identifying basic tort principle that one is liable for damage caused by things and buildings in his custody). Because JCI was uniquely positioned to discover hazards and remedy defects at the time the injury was proximately caused, it may not rely on peremption as a defense.
The Louisiana Supreme Court has explained the distinction between those who exercise control over dangerous actions or materials at the time of a harmful incident versus those who relinquished such control long before the incident:
After the date of registry in the mortgage office of acceptance of the work by the owner, there exists the possibility of neglect, abuse, poor maintenance, mishandling, improper modification, or unskilled repair of an improvement to immovable property by the owner, lessor, or tenant. It is difficult for the architect or contractor to guard against such occurrences because, after the acceptance by the owner, the architect or contractor has neither control of the improvement nor the right to enter or inspect the improvement. It is thus reasonable for the legislature to have afforded those who no longer have access to and control of improvements at the time the deficiency the protection of the peremptive period established by La. R.S. 9:2772.
Burmaster, 366 So.2d at 1385-86 (emph. supp.). As the Court made clear, the legislation is reasonable precisely because it affords protection to persons who lack access to and control of the improvement at the time of the deficiency that causes the injury. Id. The Legislature was concerned that contractors who exercise no control over the premises after their job is done would be unfairly prejudiced by time’s toll on the maintenance and safety of their construction projects. Id. Such concerns would not be addressed by exempting actors from liability for incidents that take place while they have possession or control. Indeed, the supreme court’s determination in Burmaster that the statute was not prohibited by the constitution relied on the distinction between its treatment of those who had control of the hazard at the time of the incident and those who did not. Id.
JCI argues that Mr. Rando’s claims are perempted because the unit that was being installed eventually became an improvement to immovable property. JCI’s focus on the nature of the property ignores the real issue of the timing of the injury. The incident proximately causing Mr. Rando’s injury occurred at the time JCI exercised possession or control, not decades after its completion. The fact that Mr. Rando’s disease was diagnosed years later is irrelevant, as the relevant time frame is based on exposure, not manifestation. Cole v. Celotex Corp., 599 So.2d 1058, 1066 (La. 1992) (“[T]he key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later.”).
Although Louisiana courts have yet to consider this statute in a latent disease case, other jurisdictions have found analogous statutes inapplicable where the injury occurred at the time of defendant’s possession or control of the injury-causing thing. See, e.g., Willis v. Raymark Indus., Inc., 905 F.2d 793, 797-98 (4th Cir. 1990) (repose statute not bar action where exposure occurred before insulation incorporated into the realty); Buttz v. Owens-Corning Fiberglas Corp., 557 N.W.2d 90, 92 (Iowa 1996) (repose statute not bar action where asbestos exposure occurred before improvement complete); Leaf v. City of San Mateo, 104 Cal. App.3d 398, 405 (Cal. App. 1980) (statute “does not protect persons in actual possession or control, as owner or otherwise, of the offending property at the time of the proximate cause of the injury”).
The evidence established that during the relevant time frame of Mr. Rando’s injurious exposure to asbestos, JCI had control over the injury-causing asbestos products. Though La. Rev. Stat. 9:2772 does not define “possession or control,” the law of strict liability is instructive. Liability under Civil Code article 2317 is based on the relationship of supervision and control between the person with custody and the unreasonably dangerous thing. Dupree v. City of N.O., 99-3651, p. 7 (La. 8/31/00); 765 So.2d 1002, 1008. Custody is broader than mere ownership, such that liability falls upon the custodian who fails to prevent the thing under his garde from causing an unreasonable risk of injury. Id. at 1008-09. Notwithstanding JCI’s attempt to place sole responsibility on the property owner, courts recognize joint custody or “dual garde,” under which the owner and the custodian, or two custodians, bear liability. See id.; Ehrman v. Holiday Inns, Inc., 94-0312 (La. App. 4 Cir. 3/29/95); 653 So.2d 732, 738 (affirming both hotel and ramp operator were in custody of sidewalk and strictly liable); Waller v. Farmland Indus., Inc., 392 So.2d 1099 (La. App. 3 Cir. 1980) (recognizing joint control between owner and contractor over part of plant).
The concept underlying garde is similar to the rationale for the peremption exception of 9:2772(E): “Rather than the loss falling upon some innocent third person, the loss resulting from the creation of the risk falls upon the person to whom society allots its garde. The rationale is the custodian is in a better position than the innocent victim to detect, evaluate, and take steps to eliminate an unreasonable risk of harm which arises from the thing.” Dupree, p.7, 765 So.2d at 1008 (cits. om.). In determining whether a person has custody over a thing, courts consider whether the person has a right of direction and control over it, and whether he draws a benefit from it. Dupree, p.8, 765 So.2d at 1009. Whether a defendant has custody is a question of fact, id., and the facts prove JCI’s control in this case.
JCI is an engineering and construction company specializing in chemical and refining industries. P-1 at 16:23 – 18:7. During Mr. Rando’s employment, JCI possessed and controlled the unit—including the materials and activities—that it was constructing at the Shell Norco facility. P-1 at 65:10-17. As its Vice President of Operations testified, JCI is responsible for the materials it uses in constructions, and JCI’s site manager is responsible for ensuring that employees are not injured by asbestos. P-2 at 128:19-22, 131:1-10.
When Mr. Rando was injuriously exposed to asbestos, JCI was responsible for designing, fabricating, and installing the unit at the Shell facility. P-1 at 19:9-15, 41:8-10. JCI’s witness explained that it was a “turnkey project;” Shell relied on JCI’s engineering and construction expertise and turned the “whole unit” over to JCI, who had the “responsibility to – to design, fabricate, install and including insulate the project,” and then “turn over the keys to [Shell] at the end….” P-1 at 41:12-22, 65:10-17. Once Shell turned the unit over, JCI had control, and it would have been “highly unlikely” for Shell to direct installation of something not originally called for. P-1 at 65:7-10. JCI did not relinquish control until the project was complete. P-1 at 41:12-22, 65:10-17. The facts that Shell provided the initial job specifications and owned the property do not nullify JCI’s control. See Williams v. Gervais F. Favrot Co., 499 So.2d 623, 625-26 (La. App. 4 Cir. 1986) (fact that owner provided specifications and inspected site did not relieve contractor from custody and liability, where contractor provided materials, mediated subcontractors, and had supervisory duties). JCI Vice President Robert Terry Jones admitted that while a property owner like Shell is responsible for existing facilities, JCI is responsible for anything it puts on, such as asbestos material. P-2 at 128:19-22.
JCI hired the subcontractors, coordinated and checked their work, and had ultimate approval over their work. P-1 at 24:6-12, 49:15-25, 50:1-15. In addition to subcontractors, JCI had 200 employees, plus it hired approximately 2000 union men like Mr. Rando on a job-by-job basis. P-1 at 25:19 – 26:17, 36:1-14. JCI had about a dozen superintendents, one of whom was at the Shell site and supervised the project. P-1 at 35:12-20; 39:18 – 40:25. JCI’s fact witness recalled no Shell representative at the site, P-1 at 51:25 – 52:24, and Mr. Rando testified that his work was controlled by a JCI foreman. R.3279, 3284; P-3A at 25:24 – 26:10; P-3B at 58:12-22. No one from Shell ever told Mr. Rando what to do or talked to him about his job. R.3279; P-3B at 107:21 – 108:8. The JCI superintendent had the authority to stop unsafe practices, P-1 at 43:1-4, and had “the ultimate responsibility for the safety of workers on that particular job site,” P-1 at 61:23-25. The JCI site manager was responsible to ensure employees were not exposed to asbestos. P-2 at 131:1-10.
Not only did JCI control the project that it designed and constructed, and on which Mr. Rando worked, but it had control over the asbestos insulation that was a substantial cause of Mr. Rando’s cancer. JCI was responsible for subcontracting out the insulation work. P-1 at 28:8-11. The subcontract made clear that JCI was in control, as it required the insulator to “apply insulation as called for in H.E. Wiese, Inc. Inquiry.” Ex. 1 to P-1 at 3. Extra work could be done only after “written permission is obtained from H.E. Wiese, Inc.” Ex. 1 to P-1 at 4. JCI could change the insulation contract and make other purchases for the job without Shell’s approval. P-1 at 51:25 – 52:24, 106:2-6. JCI’s purchasing agent Gayle Carnahan testified that the subcontract called for high temperature insulation, which he admitted contained asbestos. P-1 at 32:3-14; Ex. 1 to P-1 at p.3. Mr. Carnahan knew asbestos insulation was sent to the Shell job. P-1 at 76:13-20. JCI’s own manual states that insulation in structures built before 1980 is “assumed to contain asbestos.” P-2 at 127:9-18; P-2 Ex. Bates No. 000327. Insulation was shipped directly to JCI at the site, Ex. 1 to P-1 at p.3, and JCI had a warehouse on site, P-1 at 33:8-16, 35:2-5. JCI accuses Shell of specifying “the brand of asbestos-containing insulation,” Br. at 15, but Shell permitted JCI to use asbestos-free insulation, R.3067-72. The record shows that JCI had possession or control under 9:2772(E), and it failed to meet its burden to prove peremption under La. Rev. Stat. 9:2772.
THE RECORD AMPLY SUPPORTS THE TRIAL COURT’S FINDING OF APPELLANTS’ LIABILITY.
(Responding to JCI’s argument I and Parsons’s argument II(B).)
A trial court’s factual findings may not be reversed unless, after reviewing the record in its entirety, the appellate court finds (1) that a reasonable factual basis does not exist for the finding, and (2) further determines that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Cosby v. Holcomb Trucking, Inc., 2005-0470, pp.12-13 (La. 9/6/06); 942 So.2d 471, 479. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently, and, where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. The trial court was not clearly wrong, manifestly erroneous, or unreasonable in finding Appellants liable for Mr. Rando’s mesothelioma. The evidence established that Appellants are strictly liable as they had garde over the unreasonably dangerous thing that caused Mr. Rando’s disease, and Appellants were negligent because they knew or should have known of the dangers of asbestos exposure and how to prevent those exposures, yet they utterly failed to protect workers like Mr. Rando.
A.Mr. Rando’s Exposures While Working for Appellants Were a Substantial Cause of His Mesothelioma.
1.Mr. Rando was exposed while working for JCI.
JCI does not deny that Mr. Rando was exposed to asbestos while working for it and that such exposure was a substantial cause of his mesothelioma. Rather, JCI claims that it lacked scienter and breached no duty. Mr. Rando’s overwhelming asbestos exposure while JCI made no effort to protect its workers is evidence of its breach.
Mr. Rando’s first asbestos exposures were while working for JCI at Shell Oil in Norco. R.3278, P-3B at 101:11-16; P-3A at 26:13-23. He experienced dusty conditions and asbestos exposure each time he worked for JCI, in 1970, 1971 and 1973. R.3285-88. Mr. Rando had to replace, repair, and install pipes, P-3A at 22:21-24; 25:3-7, often as insulation was applied: “any time we are doing new construction, you are going to have the insulators on a job coming up right behind you.” P-3B at 103:9-19, 104:4-6; R.3360. Men in various crafts all worked together. P-3A at 26:18 -27:5, R.3278, 3280. Carpenters built scaffolds around 75 to 100 foot high vessels so pipefitters and insulators could install and insulate pipes on the vessels. R.3278-79. Insulators worked “right over” Mr. Rando on scaffolds. P-3B at 106:14-18, 107:20. “Quite a bit” of dust was created from sawing insulation, installing it around pipes and vessels, and moving the dry material around. R.3280; P-3B at 106:19 – 107:14. Mr. Rando worked around insulators every day and was in a position to breathe large amounts of asbestos from their work. R.3280, 3288; P-3B at 105-07; P-3A at 27. He was around insulators mixing cement, which poured like flour, and he breathed dust generated from cutting block insulation. R.3291-92. Insulation dust was visible, blew around the area, and got on his clothes. R.3280-82; P-3A at 27:15-22. Insulation waste fell on scaffolds and dropped to the floor. R.3281-82. Cleanup generated insulation dust, which Mr. Rando breathed. P-3A at 29:9-20.
Mr. Rando believed that he was exposed to asbestos from the insulation, P-3B at 105:15-19, and indeed asbestos insulation was shipped to JCI at the job site. P-1 at 30, 32, 33. The only way he could have avoided breathing asbestos would have been if it was wrapped in plastic or segregated, R.3282, but JCI took no such precautions. R.3283.
2.Mr. Rando was exposed while working for Parsons.
Mr. Rando worked for Parsons at Shell Chemical in Norco in 1972 and 1973. R.3295, 3301; P-3B at 149:17 – 150:5. This job was memorable for its filth: “there was a lot of dust in the air, a lot of particles,” R.3297; “all day long the stuff rained on you;” “it literally snowed on you…[a]nd you breathed it all day long,” P-3A at 37:18-25, 38:2-5; P-3B at 152:6. The crafts all worked together. R.3297. Pipes and 100-foot tall vessels were being insulated, R.3297, P-3B at 153:7-10, 155:14-19, and men were “sawing on the stuff and for eight hours a day as you were working out there, it snowed on you.” P-3B at 151:2-5. Insulators cut asbestos block, which came “down like heavy snow.” P-3A at 37:18-25; P-3B at 152:17-21. Dr. Lemen explained that when asbestos dust is visible like this, the maximum OSHA levels have been exceeded fourfold and the risk of mesothelioma increases. R.2945; R.3247-48.
Mr. Rando breathed the dust from the asbestos insulation, block insulation, and mud. R.3305-06. Workers cut insulation and pipe covering, used dusty mud, and shook dusty waste from scaffolds. R.3298-99, 3304-05. Insulation work was conducted “the whole while” Mr. Rando worked for Parsons. P-3B at 155:7-10, 296:6. Insulation was used around and above him, “and it just rained on us all day long, it was all over our clothes.” P-3B at 294:9-13. Despite the pervasive dust, Parsons refused to provide the men with a shack to eat lunch out of the dust. R.3298; P-3B at 155:18 – 156:5. Based on the evidence, Dr. Lemen concluded that Mr. Rando’s bystander exposures to asbestos were significant, and under certain conditions, such as working beneath the insulators, his exposures could have been higher than the insulators’. R.2977, 2978.
The insulation used on Parsons’s job contained asbestos. A sample of the insulation used in each unit sampled was found to contain asbestos. P-20. Abatement records show that from 1985 to 1993, over 177 tons of asbestos insulation was removed from that site. P-21. The evidence proved that “there was, indeed, asbestos used in the insulation material that was applied to that unit;” “in some cases, the amosite [asbestos] content went up to fifty percent, sixty percent, thirty percent, twenty percent.” R.3013. In 1971 and 1972 high temperature insulation contained asbestos, R.2988, between 1970 and 1973 high temperature pipe covering block insulation contained asbestos, R.2990, and asbestos cement was used to connect pipes, R.2991. Parsons’s own expert admitted that in 1972, asbestos was used in high temperature insulation lines. R.2817.
Parsons states that because Shell allegedly thought the unit was being built asbestos-free, it would have been reasonable for Parsons to believe the same. Br. at 33. But there is no evidence of what Parsons believed due to its failure to cooperate with discovery and with court orders to appear at trial. As explained in § IV, the trial court was fully justified in imposing an adverse presumption against Parsons. Given such presumption, the fact finder could conclude that Parsons operated like another contractor in the area–JCI–and controlled the insulation work and did not build the unit asbestos-free. Parsons’s unsubstantiated claim that insulation contractors did not warn it about asbestos, Br. at 34, suggests such relationship.
3.Mr. Rando’s exposures while working for Appellants were substantial factors in causing his mesothelioma.
A defendant’s conduct is a cause-in-fact if it is a substantial contributing factor in bringing about the harm. Laysone v. Kansas City S. R.R., 00-2628, p. 9 (La. 4/3/01); 786 So.2d 682, 690-91. Dr. Roggli, an expert in pathology and asbestos diseases, reviewed Mr. Rando’s pathology tissue, medical records, bills, and testimony, and concluded that his mesothelioma was caused by his occupational exposure to asbestos. R.3205. Dr. Roggli opined that Mr. Rando’s work for JCI and Parsons was a substantial contributing factor in causing his mesothelioma. R.3247-51, 3269. Appellants offered no medical testimony; Dr. Roggli’s opinion is uncontradicted and uncontested. Dr. Roggli’s opinion is also corroborated by Dr. Lemen, who agreed that Mr. Rando’s work around insulators while working for JCI and Parsons substantially increased his risk of developing mesothelioma. R.3003-04.
Mesothelioma can develop after fairly short exposures to asbestos. R.3173; Egan v. Kaiser Alum. & Chem. Corp., 94-1939 (La. App. 4 Cir. 5/22/96); 677 So.2d 1027, 1035; Hebert v. ANCO Insu., Inc., 00-1929 (La. App. 1 Cir. 7/31/02); 835 So.2d 483, 495 (Whipple, J., concurring in part and dissenting in part). Simply because a plaintiff was exposed to asbestos while working for an employer over a relatively short period and had longer exposures while working for others, it cannot be said that the relatively short exposure was not a substantial factor in causing his mesothelioma. See Egan, 677 So.2d at 1035 (rejecting defendant’s claim that plaintiff’s relatively brief exposure to defendant’s product was not a substantial factor in causing mesothelioma, when compared with his exposure to other asbestos products throughout his career); Held v. Avondale Indus., 95-1788 (La. App. 4 Cir. 4/3/96); 672 So.2d 1106, 1109 (noting there is no known safe level of asbestos and finding that each exposure was significant contributing cause of mesothelioma).
The cases cited by Parsons for the proposition that asbestos exposure must be frequent and regular are inapposite, as they evaluated causation of asbestosis, a disease altogether different from mesothelioma. See Parsons Br. at 28 (citing Quick v. Murphy Oil, 93-2267 (La. App. 4 Cir 9/20/94); 643 So.2d 1291, 1293 (distinguished by Egan as involving asbestosis, not mesothelioma); Hoerner v. Anco Insu., Inc., 2000-2333 (La. App. 4 Cir. 1/23/02); 812 So.2d 45, 64 (explaining that “frequent and regular” refers to the quality of exposure, not length of time)). The propensity of asbestos to cause mesothelioma even at low levels is evidenced by the fact that the WHO, the ILO, NIOSH, and OSHA concur that no safe exposure level has been established: “We have not been able to identify a level below which there’s not a risk of developing a disease.” R.2957, 2960; see also R.3218, 3220.
Relying on Terrance, Parsons claims that Mr. Rando’s bystander exposure is insufficient to be a substantial cause of his mesothelioma. Parsons Br. at 31. In Terrance, this Court was evaluating the jury’s failure to find certain defendants liable, which could be reversed only if manifestly erroneous. Terrance at p. 7. Because only sporadic insulation work occurred near Mr. Terrance at Dow and there was no evidence that Mr. Terrance inhaled asbestos dust or that such dust was ever created, the jury’s failure to find Dow liable was not manifestly erroneous. In contrast, Mr. Rando’s exposure to pervasive dust from insulation products while working for Parsons was constant. Parsons suggests, however, that exposure for seven or eight months cannot be substantial. Br. at 30-31. Parsons’s theory is unsupported by any evidence or medical testimony. In one of the cases that Parsons relies upon, the court rejected the same argument made by officers of a company for whom plaintiff’s intermittent work over 16 years totaled only $2284: “we reject the assumption implicit in the Schubers’ argument that exposure to asbestos-containing products during an employee’s tenure with a given company cannot as a matter of law be considered a ‘substantial factor’ in an employee’s contraction of asbestos-related disease if that employment is only for a very short period of time.” Hoerner, 812 So.2d at 64; Egan, 677 So.2d at 1034-35 (affirming finding that welder’s one year exposure out of 37 year career was substantial factor in causing mesothelioma). Other exposures do not obviate the significant contribution of Mr. Rando’s asbestos exposures while working for Parsons and JCI.
B.Appellants Are Liable to Mr. Rando.
The trial court’s finding of Appellants’ liability is fully supported by the record, which established that Appellants were strictly liable and liable in negligence.
1.Appellants are liable in negligence.
Appellants had a duty to furnish reasonably safe employment, to “furnish and use safety devices and safety guards, [to] adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe…and [to] do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees.” La. Rev. Stat. § 23:13. Focusing on only a portion of this statute, JCI claims it should not be held liable in negligence because it was no more neglectful of its employees’ welfare than other contractors. Br. at 5. JCI overlooks the portion of this statute that mandates that an employer “shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees.” La. Rev. Stat. § 23:13. Even if JCI was no worse than others in its industry, like Parsons, such status is not commensurate with doing all that is reasonably necessary to protect its workers.
The duty to provide employees with a safe place to work in Louisiana pre-dates OSHA by many decades. E.g., McCarthy v. Whitney Iron Works, 20 So. 171, 172-73 (La. 1896) (“The duty of the employer to take all reasonable care against accidents to his workmen…includes the obligation to keep the premises in which their services are to be rendered in safe condition. Especially is this obligation enforced in respect to latent dangers of which the employer is aware, or which, with reasonable diligence, he could have informed himself.”) (emph. supp.); Stucke v. Orleans Ry., 23 So. 342 (La. 1898) (discussing duty to provide safe workplace, tools, and materials); Evans v. Campbell, 9 So.2d 91, 92 (La. App. 1942) (noting “recognized principle of law…that a duty devolves on the employer to use care in providing an employee safe appliances and a safe place in which to work.”). Appellants’ assumption that their duty arose only with the advent of OSHA is flawed.
JCI tries to have it both ways, arguing that OSHA may not be considered since it allegedly post-dated Mr. Rando’s exposures, Br. at 5, but also claiming that JCI could not be liable pre-OSHA since no regulations were in effect, Br. at 5-6 & 10-11. JCI forgets its duty as an employer of Louisiana citizens. OSHA has never been the sole measure of an employer’s duty. Even defense expert John Pendergrass testified that it has always been the employer’s responsibility to protect its workers, both before and after OSHA. R.2796, 2783. One of the responsibilities of an employer at a construction site has always been to protect its employees from asbestos used by other contractors. R.2835-36. Dr. Pendergrass testified that the 1930 Merewether report set forth fundamental methods of asbestos control that were “the responsibility of the employer,” R.2831, to protect all workers of all trades, including in the construction industry, and that became federal law four decades later. R.2824-2831. OSHA merely codified the minimum standard of an employer’s responsibility, R.2783, 2791, including exposure-reduction methods that had been recommended since 1930, R.2992, 2824. Appellants’ claim that OSHA did not apply to them is in any event spurious. For example, Parsons’s own expert said it was “clear” that OSHA was law before Mr. Rando worked for Parsons, R.2853, and disagreed with Parsons’s claim that OSHA monitoring standards were not “effective until after Mr. Rando left Parsons.” R.2865. Even if Appellants had complied with OSHA, which is not supported by the record, compliance is not a complete defense. See Asbestos v. Bordelon, Inc., 96-0525, p. 52 (La. App. 4 Cir. 10/21/98); 726 So.2d 926, 958.
Appellants knew or should have known about the dangers of asbestos. Despite the abundant evidence of the dangers of asbestos available long before Mr. Rando worked for Appellants, JCI claims that Mr. Rando failed to present evidence that “JCI, in particular, should have known in Baton Rouge in 1970-71 that pipefitters were at risk of developing mesothelioma.” Br. at 8. This Court rejected such argument in Roberts v. Owens-Corning Fiberglas Corp., also brought by a pipefitter with mesothelioma. When the defendant claimed that negligence could be established only by showing that it knew or should have known of the particular disease, mesothelioma, this Court held the defendant (like JCI) “interprets the scope of its liability too narrowly….” 878 So.2d at 639.
Again citing nothing, JCI claims that “[p]ipefitters were considered to be more remote from asbestos exposure.” Br. at 7. In truth, pipefitters had been identified as contracting asbestosis by 1932 and mesothelioma by 1960. R.2966-67. These findings were consistent with Merewether’s 1930 warning that asbestos could affect other trades and with Dr. Selikoff’s 1964 conclusion that “[a]sbestos exposure in industry will not be limited to the particular craft that utilizes the material. The floating fibers do not respect job classifications. Thus, for example, insulation workers undoubtedly share their exposure with their workmates in other trades.” P-8 at 26; see also R.2974. Appellants complain that no epidemiology study prior to 1980 specifically addressed the dangers of asbestos to pipefitter/welders. JCI Br. at 6; Parsons Br. at 38. The alleged absence of one study does not entitle Appellants to ignore all other evidence, which included pre-1980 “epi studies that included pipe fitters.” R.3076. More recent studies have re-affirmed the dangers of asbestos to pipefitters, as was already known before Mr. Rando’s exposure, and one study even identified pipefitter/welder as the #1 trade associated with mesothelioma. R.3199-3200.
JCI misrepresents Dr. Lemen’s testimony when it claims that until 1976, the federal government instructed industry that 5 f/cc was “safe.” Br. at 6 n.5 (citing R.3045). In truth, Dr. Lemen testified that this level was not safe or sufficient to protect against mesothelioma. R.3045. The government had to set a standard based in part on what was technologically feasible, R.3043-44, and on what could be reliably measured, 59 Fed. Reg. 40964-01, 40968 (8/10/94). Instead of relying only on limits, OSHA “focus[ed] its rulemaking effort on evaluating the work practices that will best reduce asbestos exposures,” id. – work practices that had been recommended since 1930 and that Appellants never used.
Appellants cite a 1972 article by Dr. Selikoff as evidence of a purported lack of knowledge about asbestos. JCI Br. at 8; Parsons Br. at 36. On the contrary, Dr. Selikoff’s research well before this study had confirmed that insulation containing amosite and crysotile asbestos caused mesothelioma. R.3268-69. The purpose of the 1972 study was to lay to rest any question that amosite alone could cause mesothelioma. Id. The article is striking for a different reason: the author, a veteran of asbestos research, reported that deaths were double what he had anticipated, mesothelioma and lung cancer were in “considerable excess,” and asbestos needed “rigorous control.” J-8 at 183. Despite this language in a study they deemed important enough to offer at trial, Appellants heeded none of the warnings.
Parsons states that had it looked at any of myriad articles on asbestos (which it does not claim to have done), it would not have found a consensus on asbestos dangers to construction workers. Br. at 37. But scienter does not require consensus; by the time they hired Mr. Rando, Appellants could and should have known of the hazards of asbestos. Moreover, Parsons’s conclusion that there was no consensus is a fallacy, as its own expert explained that OSHA requirements were based on a “national consensus standard,” R.2755; P-6 at 2, and there was enough consensus for OSHA to publish asbestos regulations specific to the construction industry, P-5; R.2781. Regardless of Appellants’ quibbles about which concentration of asbestos was considered hazardous to which type of worker at which particular time, “the basic facts were all in by the early seventies that asbestos can no doubt cause asbestosis, lung cancer, and mesothelioma.” R.3100.
Yet Appellants never told Mr. Rando that breathing asbestos dust could cause disease, nor offered so much as a paper mask. P-3A at 44:10-13; 45:20-22. At the job sites of both Parsons and JCI, asbestos insulation waste was left on the ground, causing it to reenter the atmosphere each time it was walked through or the wind blew. R.3283-84, 3288, 3299, 2976. “No prevention methods were followed, even the basic prevention methods dating back to Merewether in 1930, nor were any of the regulations under the OSHA Act complied to…” R. 3007; see also R.2950, 2956-57, 2965, 2987, 2999, 3004, 3017-18. Given the evidence of Appellants’ failure to give warnings, use cautionary labels, educate workers about asbestos hazards, instruct workers to wear breathing protection, or use any methods whatsoever to reduce asbestos dust, Dr. Lemen concluded that JCI and Parsons presented an unreasonable risk of harm for causing cancers, including mesothelioma, among their workers. R.2950, 2952-57, 2999, 3004, 3009, 3017-18.
a.JCI is liable in negligence.
Mr. Rando testified that JCI never warned him about the dangers of asbestos, provided him with a respirator, cautioned him not to breathe insulation dust, or told him that asbestos dust could cause mesothelioma. P-3A at 59:2-17, R.3289-95. JCI never discussed the risks of asbestos at safety meetings and never trained him to use respiratory protection. R.3289, 3293. Mr. Rando never saw anyone conduct air sampling, wet down the asbestos, vacuum the asbestos, place barricades around areas being insulated, or mark where asbestos was being used. R.3284, 3294-95.
Vice President Gayle Carnahan worked for JCI for six years after OSHA, but not until he left the company did he learn about the hazards of asbestos. P-1 at 59:24 – 60:3. Mr. Carnahan did not recall JCI ever providing information about the hazards of asbestos to its employees, P-1 at 60:4-13, 90:7-14. JCI hired its first safety person, Herman Thompson, in 1972 or 1973 in response to client requests. 66:1-9, 69:6-12. Although Mr. Thompson reported to him, 65:20-22, Mr. Carnahan did not know if Mr. Thompson had any background or training in safety, 66:10-15, 70:18-25, or whether he received such training while working for JCI, 70:18-25. Mr. Carnahan was in charge of purchasing for JCI’s project at Shell, but he could not provide any evidence that JCI provided a reasonably safe place to work regarding asbestos at that job, 74:15-23. In 1971 and 1972, JCI knew that its employees would be working in areas where asbestos insulation was used pursuant to JCI’s own subcontract, 75:19-23, 76:13-20, and knew asbestos was used on the Shell job. 77:19-22.
JCI’s witness could offer no evidence that JCI conducted air sampling, 78:6-11, did any testing “at any time,” 84:9-10, or had monitoring, x-rays, or physical examinations for its employees, 84:11-22. There was no evidence that JCI used or required its subcontractors to use methods to reduce asbestos exposure, 78:12 – 79:8, 80:18-22. JCI’s vice president of purchasing was unaware of JCI spending any money on equipment or respirators to control asbestos exposure, 80:9-14, 81:17-19, to monitor for asbestos dust, 86:8 – 87:5, to issue warnings about asbestos, 87:6-18, or to otherwise protect its employees from the dangers of asbestos. P-1 at 91:7-14.
JCI’s corporate representative, Robert Terry Jones, testified that JCI does not provide its safety manual to its craftsmen, union workers, and other individual employees. P-2 at 93:15-17, 98:12-15, 99:25 – 100:3, 119:23 – 120:2. JCI gives union craftsmen a “generic” “little handbook,” 98:20-25, 104:4-17, which does not address asbestos, 108:17-19. Though JCI designated him as its most knowledgeable person regarding safety, 19:7-14, Mr. Jones did not know when asbestos was first addressed in JCI’s manual. 97:3-5. He testified that JCI does not test for asbestos at its work sites. P-2 at 110:7-10. Mr. Jones admitted that although the owner is responsible for existing facilities, JCI remains responsible for anything it puts on. 128:19-22.Well into the 1990s JCI still did not have a person familiar with and responsible for knowing the OSHA regulations. 123:15-18.
There was no evidence that JCI complied with the minimum standards under OSHA or followed even basic preventative methods that had been recommended since 1930, R.3004-07. JCI did not provide Mr. Rando with a reasonably safe place to work. Id. Despite Dr. Selikoff’s warnings in the 1960s that contraction of mesothelioma from exposure to asbestos was a grave concern for pipefitters like Mr. Rando, JCI never labeled, marked, or barricaded areas to control asbestos. R.3009. In failing to take even the most rudimentary measures, JCI posed an unreasonable risk of harm to Mr. Rando. Id. Judge Burns did not err in finding JCI liable in negligence.
b.Parsons is liable in negligence.
Parsons never warned Mr. Rando about the dangers of asbestos, never gave him a respirator, never warned him not to breathe insulation dust, never told him that breathing asbestos dust could cause mesothelioma, and never gave him and his coworkers a shack to eat lunch away from the dust. P-3A at 62:5-19; R.3296, 3301-02, 3298; P-3B at 155:18 – 156:5. Parsons used no control measures to reduce workers’ exposure, provided no safety devices or protection, and issued no warnings. R.3302-03. Mr. Rando never saw anyone perform air sampling, wet down the asbestos, or place barricades around areas where asbestos was in use. R.3302-04.
Parsons was a member of the National Safety Council (NSC) from 1955 to 2003 and admitted that it received NSC publications from 1965 to 1986. P-14 at 15. A 1966 NSC publication stated, “asbestos has been much in the daily newspapers for the last year or two, not so much because of its action in causing asbestosis, but because of the association of a cancerous condition known as mesothelioma which has been found among workers with asbestos in far greater incidence than among the general population.” P-11 at 132. The NSC observed that “asbestos is a rather prolific producer of a variety of cancers of the lung and surrounding tissues.” P-11 at 42. A 1967 NSC paper noted that men working around asbestos dust in the construction industry “are being subjected to the risk of asbestosis and lung cancer.” P-12 at 22. Despite its membership in the NSC when these statements were published, Parsons did nothing to limit its workers’ exposures or to warn them of the hazards of asbestos, and claims to have first learned of the association between asbestos and disease after the OSHA standards were promulgated in 1972. P-14 at 3-4.
Parsons waited until 1985–13 years after OSHA–to hire an industrial hygienist. Its expert, Dr. Pendergrass, could not say that such delay was reasonable, R.2796-97, and he testified that had Parsons tested and kept records, one would know what concentration of asbestos Mr. Rando was exposed to. R.2811. Indeed, the OSHA regulations hinged on testing to assess the concentration of asbestos. R.2832. He agreed that it is the employer’s duty to warn employees of hazards in the workplace, and he had seen no evidence that Parsons ever educated or warned Mr. Rando about asbestos or complied with OSHA. R.2830-31. Parsons failed to comply with the minimum standards under OSHA or follow basic prevention methods that had been recommended since 1930. R.3017. Instead of protecting its employee, Parsons subjected Mr. Rando to an unreasonable risk and substantially increased his risk of developing mesothelioma. R.3017-18. The trial judge did not commit manifest error in finding Parsons liable in negligence.
2.Appellants are strictly liable.
Contrary to JCI’s claim that strict liability was first raised in post-trial briefing, Br. at 10, strict liability has been alleged since this case was filed in 2005. R.24-31. Notwithstanding JCI’s surmise that the trial court did not address strict liability, the reasons for judgment are not controlling. See Kaufman v. Adrian’s Tree Serv., 2000-2381, p.3-4 (La. App. 4 Cir. 10/31/01); 800 So.2d 1102, 1104 (explaining appeal is from judgment itself, not from reasons for judgment). The judgment states that Appellants were liable for causing Mr. Rando’s mesothelioma, and the appellate court must evaluate the evidence in a light that is supportive of the judgment and most favorable to the appellee. Deutschmann v. Rosiere, 2002-2002, p.3-4 (La. App. 4 Cir. 4/9/03); 844 So.2d 1082, 1085.
At a minimum, the evidence supports a finding that Appellants are strictly liable because they had care, custody, or control of the defective thing which posed an unreasonable risk of harm, and the defect caused Mr. Rando’s injury. Sistler v. Liberty Mut. Ins., 558 So.2d 1106, 1112 (La. 1990). The principle underlying “garde” is that the guardian is in a better position than the innocent victim to detect and eliminate the unreasonable risk of harm from the defective thing. Ross v. La Coste de Monteville, 502 So.2d 1026, 1028 (La. 1987). As set forth in § II, a defendant has custody if he is in a position to exercise supervision or control over a thing and benefit from it; more than one party may have garde and be liable for the injury. The evidence shows that JCI had control over the asbestos used at Mr. Rando’s worksite. See § II. As for Parsons, the trial court could properly presume that its representative, had one testified, would have conceded that Parsons had garde. See § IV. Such presumption is consistent with other evidence of Parsons’s control, such as Mr. Rando’s testimony that he reported to a Parsons employee and had no contact with Shell employees, despite being on Shell premises, R.3301; P-3B at 153-54; P-3A at 58, and Parsons’s expert’s testimony that the insulation work was likely subcontracted out, R.286.
The evidence also establishes that asbestos insulation was defective insofar as it posed an unreasonable risk of harm to Mr. Rando. The reasonableness of a risk is determined by “balancing the probability and magnitude of the risk against the utility of the thing.” Sistler, 558 So.2d at 1112. Dr. Lemen testified that the employer has the ultimate responsibility to provide a safe workplace and is in the best position to control the use of asbestos and warn employees of its hazards. R.3123. The uncontradicted testimony established that neither JCI nor Parsons ever warned or took any measures to protect workers like Mr. Rando from the dangers of asbestos, and without controls or warnings, asbestos is unreasonably dangerous. R.2961. Many control methods available to employers—wetting down asbestos or cordoning off areas of asbestos use—are not costly. R.3007-08. The gravity of the dangers posed by exposure to asbestos are unequivocal, as the resultant diseases are progressive, painful, and fatal. Given the gravity of the risks of exposure to asbestos, as well as the minimal burden of providing warnings or taking other precautions, Appellants’ exposure of Mr. Rando to asbestos was unreasonably dangerous. R.3004; see Verrett v. Cameron Tele., 417 So.2d 1319 (La. App. 3 Cir. 1982) (risk/benefit analysis includes the gravity of the consequences and the burden of adequate precautions).
With respect to the last element of strict liability, Sistler, 558 So.2d at 1113, the record fully supports the trial court’s finding that Mr. Rando’s mesothelioma was caused by his exposure to asbestos while working for Appellants. As discussed above, the evidence shows that when Mr. Rando worked for Appellants, asbestos-containing products were used in such a way as to release respirable asbestos fibers which Mr. Rando could not avoid breathing. Based on his review of the evidence, Dr. Roggli opined that Mr. Rando’s exposures while working for JCI and Parsons were substantial contributing factors in causing his mesothelioma. R.3247-51, 3269.
In strict liability, the defendant’s knowledge is irrelevant. Oster v. Dep’t of Transp. & Dev., 582 So.2d 1285, 1288 (La. 1991). Regardless of Appellants’ claims of ignorance, they had custodian over an unreasonably defective thing which injured Mr. Rando; the trial court did not manifestly err in finding Appellants liable.
PARSONS HAS NOT MET ITS BURDEN TO SHOW SUBSTANTIAL PREJUDICE FROM EVIDENTIARY RULINGS.
(Responding to Parsons’s argument II(C).)
A.Background to the Court’s Ruling.
Since March 6, 2006, Appellee had sought discovery from Parsons. Appellee sought, inter alia, the grounds for Parsons’s claimed compliance with OSHA. P-14 at 3-5. A corporate representative deposition was critical. But Parsons would disclose no one to testify. P-14 at 6. In November 2006, Appellee made repeated deposition requests, serving a draft notice, sending correspondence, and participating in a conference on the matter. P-16. Parsons denied doing a project at Shell Norco, where Mr. Rando had worked for Parsons, and concluded, “Parsons cannot produce a rep to talk about a job they were not on.” Id. (Nov. 28 & 29, 2006 emails).
Unable to secure a deposition, R.2463, Appellee subpoenaed a Parsons representative to appear at trial. R.2420. Shortly before trial, Parsons finally admitted it had worked at Shell Norco, R.2886, but refused to bring a representative to trial. On the second day of trial, Parsons filed a motion to quash the trial subpoena, R.2413, which the court heard and denied that day, R.2727-32.
Later that week, the judge expressed “shock” that “in late November, Parsons is taking the position they were not even on this job in 1972,” R.2891, and that, days into trial, Parsons still “hasn’t produced a corporate representative with knowledge of essential facts…,” R.2901. Claiming not to “have anybody that’s still employed with them that can provide any light on this job,” R.2893, 2898, Parsons for the first time disclosed a former employee to possibly speak to matters listed in Appellee’s request served two months earlier. R.2893, 2899, 2901, P-16. Contrary to Parsons’s claim that former employee Ray Holder was “the very witness” Appellee had subpoenaed, Br. at 40, Mr. Holder was not a Parsons representative who could explain such mysteries as the basis for its discovery responses, R.3137. As the judge observed, a representative should have been at trial to testify to Parsons’s alleged lack of knowledge of the job Mr. Rando had worked on. R.3146. Appellee offered to work around this deficiency, R.2895, to no avail.
Per court order, R.2881-2903, Appellee briefed Parsons’s defiance of the discovery process, requesting exclusion of the late-disclosed witness and an adverse presumption for its failure to produce a representative. R.3134-42. In addition to the foregoing, Parsons engaged in an ongoing abuse of the discovery process, waiting for example until three weeks before trial to identify its expert witness and waiting until two weeks before trial to offer any dates for Appellee to depose that expert. R.2116-19. Parsons’s failure to timely and fully respond to discovery requests prevented the Appellee and the experts from being able to rely on such evidence. E.g., R.3128. In addition to the prejudice to Appellee, R.3134, Drs. Lemen and Pendergrass had already testified; new evidence from a Parsons witness would require restarting trial or recalling experts. R.3143-44, 3147. The court providently granted Appellee’s motion.
B.The Court Did Not Abuse its Discretion in Refusing to Quash a Subpoena, Excluding a Witness, and Imposing an Adverse Presumption.
“The proper inquiry for determining whether a party was prejudiced by a trial court’s alleged erroneous ruling on the admission or denial of evidence is whether the alleged error, when compared to the entire record, had a substantial effect on the outcome of the case.” Wright v. Bennett, 2004-1944, pp. 6-7 (La. App. 1 Cir. 9/28/05); 924 So.2d 178, 183. The party challenging the ruling bears the burden of proving substantial prejudice. Id. “Generally the trial court is granted broad discretion in its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion.” Id.
Parsons has identified no effect, much less substantial effect, of the trial court’s refusal to countenance its shenanigans. Striking the late-disclosed witness did not harm Parsons; contrary to its current claim that Mr. Holder would have testified “on its behalf,” Br. at 40, Parsons previously admitted that it “has not listed or intended to call any Parsons corporate representative,” R.3137, and “didn’t intend to call this gentleman as a witness,” R.3138 & 3141. Just two weeks before trial, Parsons had identified no such witness. R.2116. Nor did Parsons make the requisite showing of the substance of the excluded witness’s testimony. La. Code Evid. art. 103(A)(2).
Although Parsons focuses on whether it was subject to a Louisiana court’s subpoena power, the court did not sanction Parsons only for its cavalier attitude toward the subpoena; the court sanctioned Parsons for its ongoing gamesmanship:
What Parsons has skillfully done, in my view, is disrupt the strategy of Plaintiff’s counsel. R.3143. Now, here’s a man dying of mesothelioma, who under article 1573 of the Code of Civil Procedure is entitled to preference in his trial. I give him preference, and as late as November 28th of 2006, maybe six weeks ago, an email from Scott Higgins, the lawyer for Parsons, quote, “With respect to the requested depo of Parsons, I’ve encountered some difficulty because they do not have any record of the job at Shell where your client alleges exposure….” R.3145 So about six weeks ago, Parsons is taking the position that they weren’t on this job, nor can anyone comment about any particular of a nonexistent job. R.3146. You see, I don’t think Parsons respects the right of Mr. Rando, the absolute right of Mr. Rando to have his case heard on an expedited basis under Louisiana law. I don’t think they have any respect for our statute…. R.3146.
In any event, the court could certainly order a nonresident defendant to testify in Louisiana. See In re Med. Rev. Panel of Hughes, 2001-2313, p. 3 (La. App. 4 Cir. 1/23/02); 807 So.2d 1074, 1076. As Judge Burns recognized, R.2728, a foreign corporation that has appeared may be deposed in Louisiana. See Haynes v. United Parcel Serv., Inc., 37,457 (La. App. 2 Cir. 4/3/03); 839 So.2d 1287, 1288 (rescinding defendant’s protective order); Phillips Petro. Co. v. OKC L.P., 93-1629 (La. 4/11/94); 634 So.2d 1186, 1188 n.3 (a nonresident that “finds itself a party in Louisiana litigation must abide by the state’s reasonable rules governing the processing of his suit”).
Nor did the court err in excluding Parsons’s witness from testifying. Contrary to its representation that there was no order compelling discovery, Br. at 41, Parsons acknowledged to the trial court that pursuant to the ruling on its motion to quash, it was “obligated to bring a representative to trial.” R.2881. Yet Parsons never complied with that order. This court has affirmed the exclusion of late-disclosed witnesses in less egregious circumstances. E.g., Highlands Underwriters Ins. v. Foley, 96,1018 (La. App. 1 Cir. 3/27/97); 691 So.2d 1336, 1339 (affirming order striking witness disclosed days before trial); Lodrigue v. Houma-Terrebonne Airport Comm’n, 450 So.2d 1004 (La. App. 1 Cir. 1984) (upholding exclusion of expert whose testimony was noticed days before trial). Letting a late disclosed witness testify would allow the recalcitrant party “to surprise or catch off guard” the opponent and “would amount to a trial by ambush.” Highlands, 691 So.2d at 1339. That Parsons may have recently found the witness is irrelevant, as the prejudice to Appellee is the same. See, e.g., Buxton v. Evans, 478 So.2d 736 (La. App. 3 Cir. 1985) (upholding exclusion even though attorney did not know witness existed until morning of trial, where opponent not told of witness’s identity in discovery).
The court also had ample grounds to impose an adverse presumption. Article 1357 provides for contempt for disobedience of a subpoena; 1551(C) grants discretion to sanction a party disobeying a pretrial order; and 1471(1) provides for an adverse presumption “[i]f a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery.” “[T]he trial court has broad authority and discretion to impose any sanctions which are just, including the imposition of any designated facts.” Theriot v. Willis, 482 So.2d 681, 684 (La. App. 1 Cir. 1985). Nothing in 1471 requires a showing that a witness has peculiar knowledge, nor would such showing be applicable when a party obstructs discovery. See Stewart v. Great Atl. & Pac. Tea, 94-1592, p. 3 (La. App. 4 Cir. 3/16/95); 657 So.2d 1327, 1329 (quoted in Parsons Br. at 41).
“When a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and particularly within his own knowledge, and fails to go upon the witness stand, the presumption is raised and will be given effect, that the facts, as he would have them do not exist.” Driscoll v. Stucker, 2004-0589 (La. 1/19/05); 893 So.2d 32, 47 (cit. om.). The presumption was fully warranted by Parsons’s defiance of the pretrial order, of the subpoena, and of the court’s order to produce a witness, as well as its ongoing abuse of the discovery process and refusal to produce timely discovery responses. Parsons has shown no prejudice, cites no portion of the judgment that is based on the presumption, and actually concludes that “the adverse presumption is essentially meaningless.” Br. at 37 n.13; see also id. at 39 n.17. The court did not abuse its discretion in imposing an adverse presumption.
THE AWARD WAS NOT AN ABUSE OF DISCRETION.
(Responding to JCI’s argument IV and Parsons’s argument II(D).)
A.The General Damages Were Fully Supported by the Record.
After presiding over the trial, reviewing reams of documents, and considering the parties’ post-trial briefs, Judge Burns awarded Ray Rando $2,800,000 in general damages and $400,250 in special damages. The judge’s discretion in assigning damages is great and should rarely be disturbed. Theriot v. Allstate Ins., 625 So.2d 1337, 1340 (La. 1993); La. Civ. Code art. 2324.1. The initial inquiry is “whether the particular effects of the particular injuries on the particular plaintiff are such that there has been an abuse of the much discretion vested in the trier of fact[.]” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993). Past awards are not examined unless an abuse of discretion is established. Youn, 623 So.2d at 1260. This Court has declined to compare a $5,000,000 survival award with other cases because, “[w]hile the award is arguably on the high end of the general damage spectrum, we cannot conclude that the jury abused its vast discretion.” Terrance, 2006-2234, p. 5; see also Jones v. Harris, 2004-0965, p. 4 (La. App. 4 Cir. 2/2/05); 896 So.2d 237, 241 (“Although Defendants invite us to resort to a consideration of awards for generically similar injuries…the jurisprudence is settled that ‘resort to prior awards is only appropriate after an appellate court has concluded that an “abuse of discretion” has occurred.’”). Parsons points out that Mr. Rando responded well to one medical procedure and can still perform many activities, though it takes him longer. Br. at 42. Here is what Parsons left out:
Before his diagnosis, Mr. Rando was a non-smoking 59 year old in good health. R.3328. He enjoyed retirement and led a full life with his family. By the time of trial, Mr. Rando had been suffering the symptoms of mesothelioma for 23 months and dealing with his diagnosis for 16 months. The disease “took over my whole life.” R.3335. Mr. Rando has endured medical procedures, five surgeries, and countless trips to doctors, hospitals, and emergency rooms. He has had tremendous pain from the disease and side effects from the treatments, including shortness of breath, nerve and muscle pain, fatigue, nausea, back and chest pain, headaches, and vision loss. R.3310-12, 3335. Chemotherapy cannot cure his mesothelioma, R.3225, 3236; and it causes vomiting, hair loss, infection, bleeding, and kidney damage. R.3236-42, 3247, 3312, 3328-29; P-24. Mr. Rando will have to undergo chemotherapy and other procedures until his death. R.3227-34, 3334.
Mr. Rando began to have symptoms in February 2005. See P-24. In August 2005, he went to the emergency room because of extreme shortness of breath, back and chest pain, dry cough, and swelling in his extremities. R.3206-07, 3329. Doctors inserted a large needle into his chest and removed over a gallon of fluid that was compressing his lungs. R.3207-08, 3316; P-24. Two weeks later Mr. Rando was again rushed to the emergency room and another three liters were removed from his chest. R.3222, 3330-31. A biopsy confirmed that Mr. Rando had a fatal cancer caused by asbestos. R.3224-25, 3332. Mr. Rando was “scared to death.” R.3319.
That week, doctors placed a catheter into his chest, R.3226; P-24, and Mr. Rando had to drain the bloody, fluid-filled tubes himself. R.3331-32. Doctors installed a chest port fusion device for injecting chemotherapy drugs and sampling blood. R.3237-38. In March 2006, doctors suggested a radical extrapleural pneumonectomy (“EPP”), which requires removing the lung, diaphragm, pleura, part of the heart lining, and pericardium. R.3242-43. Like chemotherapy, the EPP could not cure him, but could perhaps “buy time” – three to five years. R.3320, 3325. Mr. Rando knew that the EPP carried significant risks, including heart attack, stroke, infection, hemorrhage, renal dysfunction, arrhythmia, pneumonia, nerve and blood vessel injury, cardiac and lung injury, emphysema, respiratory failure, prolonged ventilatory support, and death, to say nothing of the pain from the surgery itself. R.3222-23; P-24. Hoping to add time to his life, Mr. Rando and his family went to Boston for the surgery. R.3320-22. After preoperative tests, surgery was postponed because the anesthesiologist mistakenly put a needle in Mr. Rando’s carotid artery. R.3318. Upon opening Mr. Rando’s chest, doctors saw that his tumor was too massive to be removed. R.3244, 3320-21. Mr. Rando was disappointed and had physical and emotional pain from the aborted surgery. R.3245-47, 3322; P-24.
The procedures have caused disfigurement; he has holes from the chest tubes and the biopsy incisions, and a scar wrapping across his chest around to his back. R.3246, 3317. He must take eight pills in the morning, several before bed, strong narcotics throughout the day, and vitamins and a steroid with the chemotherapy. R.3327, 3236; P-24. As explained by Dr. Roggli, medications can reduce pain to a more tolerable level; they cannot eliminate pain. R.3239, 3312. Mr. Rando has begun to take an anti-depressant and a sleep aid to counter the depression and insomnia brought on by his diagnosis. R.3242, 3306-07; 3326-28; P-24.
Mr. Rando was eager to retire, but now he spends his days “dealing with the doctors, nurses, medical things” and planning his own funeral. R.3324, 3331, 3335. He spends four days a week at the doctor’s, R.3309, and on the other days he is limited or too fatigued to enjoy old pastimes. R.3309, 3324-26. The disease renders him “exhausted…real easy,” R.3310, and has forced him to give up many things that once gave him great pleasure. R.3326, 3370. He can no longer play ball with his granddaughter, R.3324, or enjoy old hobbies, like cooking, gardening, and working on the 1934 Ford that he built. R.3312-13. He cannot take his granddaughter on a planned trip, R.3324, and he fears he will be unable to walk his youngest daughter down the aisle. R.3307. The diagnosis has “changed my whole life,” R.3308-09, including his intimacy with his fiancé, R.3328. He can no longer fill his role as family caretaker but must rely on others to help him. R.3308, 3310, 3313-14. Despite all this, he tries to keep good spirits: “I keep fighting it, you know, hope for the best and expect the worst.” R.3333, 3336.
Mr. Rando has suffered tremendous damage as a result of his mesothelioma, and his suffering will worsen until this disease takes his life. R.3251. This Court has “vast discretion” in assessing damages. Emery v. Owens-Corp., 00-2144 (La. App. 1 Cir. 11/9/01); 813 So.2d 441, 458. General damages compensate a plaintiff for past and future loss of enjoyment of life, physical and mental pain and suffering, mental distress and anguish, and scarring or disfigurement. McGee v. A.C.&S, Inc., 05-1036, p. 3 (La. 7/10/06); 933 So.2d 770, 773. Given the pervasive effects of mesothelioma on Mr. Rando, Judge Burns did not abuse his vast discretion in setting the award. Youn, 623 So.2d at 1260.
Ray Rando’s damages award is on the conservative side, as compared with other awards given to mesothelioma victims. This Court recently upheld $5,000,000 for the family of a worker who had mesothelioma for four months, Terrance, supra, and has upheld $3,000,000 for the family of another mesothelioma victim. Roberts v. Owens-Corning Fiberglas Corp., 03-0248 (La. App. 1 Cir. 4/2/04); 878 So.2d 631. In another recent case, $3,000,000 was awarded to the family of a worker who was 14 years older than Mr. Rando and suffered from mesothelioma for a few weeks. Graves v. Riverwood Int’l Corp., 41,810 (La. App. 2 Cir. 1/31/07); 949 So.2d 576. The Terrance, Roberts, and Graves awards exceed Mr. Rando’s, even though he is younger, has suffered from mesothelioma far longer, and is entitled to future damages not available in a survival action. See McGee, 05-1036, p. 3; 933 So.2d at 773 (in assessing an award, court should consider duration of injury).
Because mesothelioma usually kills plaintiffs before they can get to trial, comparable awards for future damages must be sought from other cases. An analogy is the damages of a burn victim, as mesothelioma essentially burns one to death from the inside. This Court has upheld a $5,000,000 (not including $3,300,000 for future medical care) award for a burn victim. Snearl v. Mercer, 99-1738 (La. App. 1 Cir. 2/16/01); 780 So.2d 563. The Fourth Circuit upheld a $12,000,000 award for a car accident victim who had burns over 35 percent of her body, was hospitalized for a month, and returned to work after six months. Andrews v. Dufour, 03-0736, p. 3 (La. App. 4 Cir. 6/2/04); 882 So.2d 15, 20 & 28. Awards for disfigurement were $1,000,000 and $500,000, respectively. As in Snearl and Andrews, Mr. Rando’s disease is ongoing, and the court was justified to award an amount for his future damages and disfigurement.
Parsons relies on cases of mesothelioma victims who were awarded up to $2,000,000 in survival damages. Br. at 43-44. In all but one, the courts were not asked to modify the amount. The exception is Egan, in which the Fourth Circuit rejected the defendant’s claim that $350,000 was excessive, but was not asked to rule whether the award was sufficient. 677 So.2d at 1035 (cited in Br. at 43). Although Parsons also quotes part of Judge Whipple’s opinion noting that a $2,000,000 award was “on the higher end of the spectrum of such awards,” Br. at 44 (quoting Hebert v. ANCO Insu., 00-1929 (La. App. 1 Cir. 7/31/02); 835 So.2d 483, 511 (Whipple, J., concurring in part and dissenting in part)), the full quotation states that he would not modify it because “the jury’s award, while arguably on the higher end of the spectrum of such awards, was within the factfinders’ vast discretion.” Id.
Finally, Parsons suggests that the award should be between $500,000 and $750,000. JCI suggested that $1,842,000 to $2,342,000 was reasonable. R.2538 & 2542. The amount actually apportioned to Parsons–$400,250–is less than the lowest amount recommended by either Appellant. The court did not abuse its discretion in awarding damages.
B.The Future Medical Costs Were Fully Supported by the Record.
The trial court awarded $400,240 in special damages. The award is supported by the testimony of Victor Roggli, a medical doctor, pathologist, and expert in asbestos-related diseases. R.3194-3204. Having reviewed Mr. Rando’s medical records and bills, Dr. Roggli was well qualified to opine that $342,448.28 in past medical expenses was reasonable and necessary. R.3204-05, 3227. JCI has not contested Dr. Roggli’s qualifications to testify about the reasonableness of Mr. Rando’s past medical bills, but complains that because Dr. Roggli is not Mr. Rando’s treating physician, he cannot testify about future expenses. JCI cites no legal authority for this claim because there is none.
Dr. Roggli has participated in the treatment of mesothelioma patients by helping make diagnoses and reviewing records, and he understands the sorts of treatments given for mesothelioma. R.3228. Through his work at the VA Hospital, Dr. Roggli has helped diagnose patients with many types of diseases, including cancers, and has discussed the treatments for those patients at a weekly conference. R.3228-29. He has reviewed medical records and information on treatments and costs for mesothelioma patients outside the VA setting. R.3229. Dr. Roggli reviewed Mr. Rando’s medical bills and his oncologists’ treatment records describing what has been done and what will be done to treat Mr. Rando; he found this information sufficient for him to opine on the future medical costs. R.3229-30. R.3228, 3231-33.
Dr. Roggli calculated that Mr. Rando’s future medical expenses would total $14,150 monthly. R.3231. This includes a PET scan every four to six months, an MRI every two to three months, monthly CT scans, and regular x-rays. R.3231-32. He explained that Mr. Rando’s chemotherapy is expensive and requires agents to attack vitamins the cancer needs, medications to attack the blood vessel supply to the tumor, plus shots to boost bone marrow, blood cells, and platelets. R.3232. It also includes $1200 per month for weekly oncologist visits and $700 in medications. R.3233.
Dr. Roggli’s calculations are reflected in the records and bills of Mr. Rando’s past treatments. R.3233-34. In contrast to JCI’s assertion that future medical expenses “may not be speculative,” Br. at 25, portions of a case omitted from JCI’s block quotation recognize that such expenses are “somewhat speculative”:
Future medical expenses must be established with some degree of certainty. However, an award for future medical expenses is by nature somewhat speculative. An award for future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. In such a case, the court should award all future medical expenses which the medical evidence establishes that the plaintiff, more probable than not, will be required to incur. An appellate court should not set aside an award for future medical expenses absent an abuse of the trier of fact’s discretion.
Hymel v. HMO of La., 2006-0042, p.26-27 (La. App. 1 Cir. 11/15/06); 951 So.2d 187, 206-07, writ denied, 06-2938 (La. 2/16/07); 949 So.2d 425 (cits. om.; those portions omitted from the block quotation at page 25 of JCI’s brief are underscored). This Court has found that a trial court errs when it refuses to award future medical expenses on the basis that such award is too speculative: “An award for further medical expenses is by nature somewhat speculative. However, when a plaintiff clearly had a right to recover for future medical expenses, recovery should not be denied because it is impossible to establish the exact nature, extent and costs of the treatment which will be required.” Vial v. Armstrong, 479 So.2d 583, 587 (La. App. 1 Cir. 1985).
JCI’s focus on whether or not Dr. Roggli was Mr. Rando’s treating physician is misplaced, as future medical expenses can be determined by other means. For example, in Hymel, this Court found the jury abused its discretion in awarding $15,000 in future expenses, where the uncontradicted testimony showed that such expenses would be $228,989, which was calculated from the plaintiff’s testimony that her medical expenses were approximately $600 per month. 951 So.2d at 206. In determining future medical expenses, a fact finder may consider various types of evidence, not solely treater testimony. See, e.g., Martino v. Sunrall, 619 So.2d 87, 92 (La. App. 1 Cir. 1993) (future costs based on estimate from rehabilitation expert); Boudreaux v. Farmer, 604 So.2d 641, 653 (La. App. 1 Cir. 1992) (upholding future award where no treating physician recommended surgery and only evidence of future medical costs came from psychiatrist); Harvey v. Cole, 2000-1849, p.15 (La. App. 4 Cir. 1/23/02); 808 So.2d 771, 782 (affirming future expenses and taking into consideration “the serious nature of Harvey’s injuries and his total body disability resulting from his injuries and surgery, as well as his past medical expenses”); La. Prac. & Proc. – Pers. Injury § 5:57 (“[t]he testimony does not need to come from plaintiff’s treating physician”). Given Mr. Rando’s past treatments and costs and Dr. Roggli’s testimony, the evidence fully supported the award for future medical expenses.
THE TRIAL COURT DID NOT MANIFESTLY ERR IN FINDING APPELLANTS FAILED TO PROVE EXECUTIVE OFFICERS LIABLE.
(Responding to Parsons’s argument II(E).)
For all settling parties, Appellants bore the burden of proving every element of their liability. Raley v. Carter, 412 So.2d 1045, 1047 (La. 1982). The trial court found several settling defendants liable. R.2686. Parsons claims the court should have also found three executive officers liable, but Parsons never met its threshold burden of proving that Mr. Rando settled with these executives. Parsons points to evidence of settlements with Tenneco and unnamed “predecessors, successors, assigns, agents and executive officers,” and with “the alleged insurer of Virgil Carson and Bernie Lyons,” but such language is insufficient to establish a compromise and release of the executive officers themselves. It is telling that Parsons’s co-Appellant, JCI, never claimed these mens’s liability, see R.2509-43, and Parsons itself implicitly recognized the absence of settlements with the executives by failing to list them as settled parties in its brief before the trial court, R.2642 & 2670. In fact, Virgil Carson and Bernard Lyons were never named as defendants; and, apparently not believing these men were joint tortfeasors, Parsons never brought them into the action.
The principle of virile shares originates from Civil Code article 2103 of 1960:
When two or more debtors are liable in solido…it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.
A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially…..
La. Civ. Code art. 2103 (1960) (quoted in Harvey v. Travelers Ins., 163 So.2d 915, 919 (La. App. 1964)). Parsons never sought to enforce contribution through a third party action, as required for a virile share offset under Article 2103. The executive officers were never solidary obligors from whom Parsons could seek contribution. See Vedros v. Pub. Grain Elevator of N.O., 94-0659 (La. App. 4 Cir. 4/13/95); 654 So.2d 775, 779-80 (holding parties may not be solidary obligors for one purpose, but not another; thus one who could not be a solidary obligor for prescription purposes is not a solidary obligor for virile shares); see also La. Civ. Code art. 1805 (contribution enforced against solidary co-obligor by making him a third party defendant “whether or not the third party has been initially sued….”).
Even if there had been releases and even if the executives had been defendants, Parsons has failed to prove that the court manifestly erred in declining to allocate fault to them. Allotment of fault between multiple parties is a question of fact; “the findings of the lower court should not be disturbed unless they are clearly wrong or manifestly erroneous.” Nelson v. La. Stadium & Expo. Dist., 2001-1764, p. 8 (La. App. 4 Cir. 11/13/02); 832 So.2d 1043, 1048 (cit. om.). If there is any reasonable basis in the record, a reviewing court must affirm the findings regarding fault of the settling defendants. Hebert, 835 So.2d at 506. The record in this case shows that Parsons did not carry its burden of proving the executive officers’ alleged liability. See, e.g., Torrejon v. Mobil Oil, 2003-1426, pp. 24-25 (La. App. 4 Cir. 6/2/04); 876 So.2d 877, 894 (rejecting assignment of error blaming settling asbestos product manufacturer) (cit. om.); Emery v. Owens-Corp., 2000-2144, p. 15 (La. App. 1 Cir. 11/9/01); 813 So.2d 441, 453-54 (finding trial defendant failed to carry its burden where record was devoid of evidence of exposure).
“When evaluating liability in an asbestos claim, traditional theories of tort liability ( e.g., negligence, strict premises liability and products liability) apply, which require proof of causation.” Emery v. Owens-Corp., 2000-2144, p. 12 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, 452. The cause-in-fact element is established if the defendant’s conduct or fault was a “substantial factor” in bringing about the harm. Hebert, 835 So.2d at 506-07. Parsons seeks to have three executive officers held liable, which requires that all of the following be met:
1. The principal or employer owes a duty of care to the third person…, 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….
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….
Hoerner v. ANCO Insu., 2000-2333 (La. App. 4 Cir. 1/23/02), 812 So.2d 45, 62-63 (emph. supp.); see also Canter v. Koehring Co., 283 So.2d 716, 721 (La. 1973). The party seeking to establish liability must prove that the executive officer had a direct duty to provide the plaintiff a safe place to work, including some control over purchasing and availability of equipment and supplies. Hoerner, 812 So.2d at 63-64. The executive “must have some personal contact with the responsibility toward the injured employee.” Hampton v. Rubicon Chems., 579 So.2d 458, 466 (La. App. 1 Cir. 1991).
The requirement that each of these elements be met is far greater than Parsons’s claim that the executives could be held liable “if the evidence establishes that they failed to provide the plaintiff with a safe workplace.” Br. at 46. And contrary to Parsons’s claim that the executives “may be held accountable” “as executive officers of companies found to be liable for Mr. Rando’s damages,” Br. at 45, a finding of the employer company’s liability does not equate with a finding of the executive’s liability for his personal, as opposed to derivative, fault. Cole v. Celotex Corp., 599 So.2d 1058, 1074 (La. 1992); Boyer v. Johnson, 360 So.2d 1164, 1166 n.1 (La. 1978).
Relying on a Third Circuit case, Parsons suggests that top managers should automatically be held liable for failing to provide a safe workplace. Br. at 46 (citing Cole v. Celotex Corp. 588 So.2d 376 (La. App. 3 Cir. 1991)). Cole explicitly does not provide for such automatic liability: “Personal liability cannot be imposed upon an officer simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiffs, breach of which specifically has caused plaintiffs’ damages.” Id. at 383. In Brown v. White, 430 So.2d 16, 27 (La. 1982), the court found the jury correctly declined to find executive officers negligent, as they were unaware of the safety problems that led to the injury. In Abadie v. Metropolitan Life Insurance Company, 00-344 (La. App. 5 Cir. 3/28/01); 784 So.2d 46, 117, the court reversed the findings of liability of two executives who worked in the safety department, as there was no proof that they had breached a personal duty owed to the plaintiffs.
With respect to the executives in this case, Parsons has failed to prove each necessary element: that each man knew or should have known of the dangers of asbestos, that each owed a personal duty to Mr. Rando, that each breached that duty, and that such breach was a substantial factor in causing Mr. Rando’s disease. Roberts, 878 So.2d at 642; Asbestos v. Bordelon, 96-0525 (La. App. 4 Cir. 10/21/98); 726 So.2d 926. Even if Parsons had met any of these elements, which it has not, the evidence upon which it relies—depositions taken in other cases in which Mr. Rando was neither present nor represented—were improperly admitted over Appellee’s objection, and their consideration would have been error. See R.3079-92. The court’s refusal to hold Messrs. Kilgore, Carson, and Lyons liable was not manifest error.
Charles Kilgore was the manager of the Tenneco refinery, where Mr. Rando once worked. Parsons points out that Mr. Kilgore was held liable to a thirty-year Tenneco employee who developed asbestosis. Abram v. Epec Oil Co., 2005-0626 (La. App. 4 Cir. 6/28/06); 936 So.2d 209. In Abram, as here, the court was tasked with determining whether the fact finder’s ruling was manifestly erroneous. When two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cosby, 2005-0470, pp.12-13; 942 So.2d at 479. That Mr. Kilgore was found liable by one fact finder does not make Judge Burns’s decision wrong. In Abram, the record supported the finding that Mr. Kilgore had a direct duty to provide Mr. Abram with a safe place to work. Id. at *4. Parsons cites no comparable evidence in this case of Mr. Kilgore’s direct duty to Mr. Rando. Parsons’s proof with respect to Virgil Carson and Bernard Lyons is similarly lacking. The court’s decision not to allocate fault among executive officers was neither unreasonable nor manifestly wrong.
Appellee respectfully prays that this Court DENY the appeals in all respects.
- ↑ Parsons suggests a later version of this statute may apply, Br. at 11 n.1, but fails to show that the 1975 statute covered Mr. Rando’s disease or that his cause of action accrued entirely after the 1975 amendment. Mr. Rando had significant pre-1975 exposure such that his cause of action arose before the statute’s amendment; subsequent statutory amendments cannot negate his vested right to file suit. See Austin, supra.
- ↑ The necessity of such discovery is illustrated by Parsons’s counsel’s admission that he too knew little about his client: “I don’t know that much about Parsons…. It’s a construction company that I’m aware of. I believe they did some engineering stuff, and it’s evolved…. [I]t’s a big corporation [with] lots of subsidiaries and parent corporations and this and that.” R.2890.
- ↑ Appellee hereby withdraws the assignment of error set forth in his Answer and does not contest the assignment of a virile share to McCarthy Corporation.