COURT OF APPEAL
STATE OF LOUISIANA
DOCKET NO. 2003-CA-0248
WESLEY ROBERTS, JR. AND ANNIE MATT ROBERTS
OWENS-CORNING FIBERGLAS CORP., PITTSBURG CORNING CORP.,
OWENS-ILLINOIS, INC., OWENS-ILLINOIS GLASS CO., GARLOCK, INC.,
CROWN CORK & SEAL CO., ROCK WOOL MANUFACTURING CO.,
RILEY STOKER CORP., METROPOLITAN LIFE INS. CO., ET AL.
On Appeal From The
18th Judicial District Court,
Docket No. 45,664, Division “A,”
Parish of Iberville,
The Honorable James A. Best
ORIGINAL BRIEF OF APPELLEES
APPELLEES’ ASSIGNMENTS OF ERROR
I.If the trial court’s October 2 judgment is found to be valid, that judgment erroneously failed to hold Exxon solidarily liable for 50 percent of the Plaintiffs’ damages, as required by the applicable version of La. C.C. Art. 2324(B).
II.The trial court erred by reducing the Plaintiffs’ damages as a result of the jury’s erroneous finding of liability with respect to Babcock & Wilcox, Combustion Engineering, Inc., Riley Stoker Corp., Garlock, Inc. and Gasket Holding, Inc.
STATEMENT OF THE CASE
Wesley Roberts worked for several contractors as a pipefitter at Exxon’s Baton Rouge refinery in the mid 1960s and 1970s. Rec. at 7717. The refinery had “miles and miles” of asbestos-insulated pipe. Rec. at 8326. As a pipefitter, Mr. Roberts worked beside the insulators and sometimes installed and removed insulation himself. See Rec. at 7721, 8024. The insulators worked “north, south, east and west, above and below” Mr. Roberts’ work area. Rec. at 7728. The pipefitters were “intermingled” with the insulators as they cut insulation, making dust so thick that “[i]t looked like a dome.” Rec. at 8021-26.
At the time Mr. Roberts worked at the refinery, Exxon was aware that workers exposed to asbestos both directly and indirectly had a risk of developing asbestosis, lung cancer, mesothelioma and other serious diseases. Mesothelioma, an invariably fatal form of cancer, was causally linked to asbestos through epidemiological studies in 1960. Rec. at 7902. In 1964, Exxon representatives attended a conference held by Dr. Irving Selikoff, at which researchers presented studies showing an increased risk of mesothelioma in workers using and applying asbestos insulation products. Rec. at 7929-30; Plaintiffs’ Ex. 17. Researchers at the 1964 conference also discussed several cases of mesothelioma among refinery workers. Rec. at 7931-33; 8494-95. One of the employees who attended the conference informed Exxon that asbestos dust must be reduced “by whatever means seem necessary in order to eliminate the asbestosis, the bronchial carcinomas, and the mesotheliomas which seem to be related to asbestos exposure.” Plaintiffs’ Ex. 17 at 7.
Even before the 1960s, Exxon was aware that workers such as Mr. Roberts had an increased risk of developing serious asbestos-related diseases. In 1949, Exxon was aware that “laborers and pipe benders” were at risk for developing lung cancer due to silica and asbestos exposure. Rec. at 7917; Plaintiffs’ Ex. 3, Appendix at 2. As early as 1937, a report prepared by Exxon’s chief safety inspector warned that the dust concentrations produced by installing asbestos insulation were “considered too high for working without adequate protection.” Plaintiffs’ Ex. 1 at 28.
As a result of his exposure to asbestos at the Exxon refinery, Mr. Roberts developed mesothelioma. See Rec. at 7820, 7867. Mesothelioma is a form of cancer that causes “incredible pain.” Rec. at 7821. The disease is incurable and invariably lethal, eventually causing death by asphyxiation. Rec. at 8110, 8123. Mr. Roberts suffered intense pain that could not be controlled, even with morphine. Rec. at 7841-42, 8139-41. He died from mesothelioma in 1995. Rec. at 9114.
Every physician who treated Mr. Roberts, including the independent pathologists, agreed that he had mesothelioma. Rec. at 7823; 7840-41; 9123-24; Plaintiffs’ Ex. 39. Mr. Roberts’ autopsy confirmed that Mr. Roberts died from mesothelioma, and his death certificate listed mesothelioma as the cause of death. Rec. at 9114-22; Plaintiffs’ Ex. 39. Exxon called a physician named Dr. Russell Sherwin to testify that Mr. Roberts had never suffered from mesothelioma. See Rec. at 8236-43. Dr. Sherwin stated that the independent pathologists had “misled” Mr. Roberts’ doctors. Rec. at 8293. In rebuttal, the trial court permitted the Plaintiffs to call Dr. Samuel Hammar, a member of the U.S./Canada Mesothelioma Panel, to refute Dr. Sherwin’s testimony. Rec. at 8738-73.
Exxon also designated several witnesses to testify about its medical surveillance and industrial hygiene programs. Rec. at 3196-97. Several of those witnesses became unavailable or were claimed to be unavailable during the trial. One of the witnesses, Dr. Kenneth Jones, was available to testify, but Exxon decided not to call him as a witness. Rec. at 8638. In lieu of live testimony, Exxon sought to introduce transcripts of testimony given by Exxon witnesses in prior cases involving different parties and claims. See Proffer 1; Proffer 4. The trial court excluded these transcripts as hearsay.
ACTION OF THE TRIAL COURT
The jury found that Exxon’s negligence had caused Mr. Roberts’ mesothelioma and awarded survival and wrongful death damages. Rec. at 6755, 6760. The trial court subsequently reduced the survival damages by $500,000.00. Rec. at 7004-07; 7041-43. The jury also found liability on the part of eighteen other premises owners and product manufacturers. Rec. at 6756-58. Finding insufficient evidence of causation, the trial court set aside the jury’s liability findings with respect to five of the manufacturers. Rec. at 7004-07; 7041-43. In accordance with the applicable law, the trial court held Exxon solidarily liable for 50 percent of the Plaintiffs’ damages. Rec. at 7041-43.
THE TRIAL COURT CORRECTLY HELD EXXON LIABLE FOR 50 PERCENT OF PLAINTIFFS’ DAMAGES UNDER THE APPLICABLE LAW.
A.The JNOV Signed on November 13 Is Valid and Correct.
Final judgment in this case was signed on May 9, 2002. Rec. at 6831-38. Both parties filed motions for judgment notwithstanding the verdict, which the trial court granted in part. On October 2, 2002, the trial court signed a judgment notwithstanding the verdict that miscalculated the amount of damages owed by Exxon. Rec. at 7004-07. On November 13, 2002, the trial court signed a judgment notwithstanding the verdict correcting its error and vacating the October 2 order. Rec. at 7041-43.
The trial court had the authority to modify the final judgment because both parties filed timely motions for judgment notwithstanding the verdict. La. C.C.P. art. 1811. In addition, the trial court had the authority to amend its judgment further to “correct errors of calculation.” La. C.C.P. art. 1951(2). A court may correct a judgment that miscalculates the amount of damages under art. 1951(2) even if the effect is to increase the amount of damages awarded. See Brumfield v. Guilmino, 93 0366 (La. App. 1st Cir. 3/11/94), 633 So.2d 903, 912, writ denied, 94-0806 (La. 5/6/94), 637 So.2d 1056 (correcting error in calculation and increasing damages award from $446,000 to $546,000).
The judgment signed on November 13 correctly held Exxon solidarily liable for 50 percent of the Plaintiffs’ wrongful death damages. Under Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262, the wrongful death claim is governed by the law in effect at the time of Mr. Roberts’ death. At the time of Mr. Roberts’ death in 1995, La. Civ. Code art. 2324(B) as amended in 1987 provided that “[i]f liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages.” Aucoin v. DOTD, 97-1967 (La. 4/24/98), 712 So.2d 62, 67 n.3. Under this statute, a tortfeasor is solidarily liable for 50 percent of the plaintiffs’ damages, regardless of the other tortfeasors’ ability to pay. Id. Art. 2324(B) was amended in 1996, but the Louisiana Supreme Court has held that “since the amendment resulted in changing the amount of damages recoverable, the change was clearly substantive” and may not be applied retroactively. Id. at 67. In accordance with the pre-1996 version of art. 2324(B), Exxon is solidarily liable for 50 percent of the Plaintiffs’ wrongful death damages.
B.Even If the October 2 JNOV Were Valid, It Would Be Legally Incorrect and Subject to Modification on Appeal.
The validity of the November 13 judgment is ultimately moot, because the October 2 judgment is legally incorrect and must be modified in any event. Appellees filed a timely answer in this case, arguing that “[e]ven if the October 2 judgment had not been vacated, the judgment erroneously failed to apply the pre-1996 version of La. C.C. art. 2324(B), which was in effect at the time of Mr. Roberts’ death. Under that statute, the judgment should have been solidary to the extent necessary for Plaintiffs to recover fifty percent of their recoverable damages.” Answer by Plaintiffs/Appellees to Appeal of Defendant/Appellant, attached as Exhibit A, at 1. An appellee’s timely answer is “equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.” La. C.C.P. art. 2133. Judgments may be substantively amended by appeal. Hebert v. Blue’s Auto and Truck Parts, 2000-2154 (La. App. 1st Cir. 12/28/01), 804 So.2d 953, 955. Consequently, even if the October 2 judgment is found to be valid, Appellees have perfected an appeal of the erroneous damages calculation. As discussed above, the applicable version of art. 2324(B) renders Exxon solidarily liable for 50 percent of the Plaintiffs’ wrongful death damages.
Exxon ignores the applicable provision of art. 2324(B) and argues that the Court should reallocate fault on a pro rata basis. Exxon relies primarily on Gauthier v. O’Brien, 618 So.2d 825 (La. 1993), which applied a ratio approach to reallocating the percentage of fault assigned to a statutorily immune employer. This appeal does not involve the reallocation of fault assigned to a statutorily immune employer. This appeal involves the allocation of fault among multiple tortfeasors. With respect to that issue, Gauthier supports the Appellees’ argument. In Gauthier, the court held that under the 1987 amendments to art. 2324(B), “the liability of multiple tortfeasors is solidary up to 50% of plaintiff’s recoverable damages unless the tortfeasor is assessed more than 50% of the fault.” Id. at 827 (emphasis added). Exxon also cites Guidry v. Frank Guidry Oil Co., 579 So.2d 947 (La. 1991) and Bujol v. Entergy Services, Inc., 2000-1621 (La. App. 1st Cir. 8/14/02), 833 So.2d 947. Like Gauthier, both of these cases involve allocation of the fault of an employer and are not applicable to this case.
A.Exxon Breached Its Duty to Discover the Unreasonably Dangerous Condition at Its Refinery and Warn Mr. Roberts of Its Existence.
A property owner has a duty “to keep such property in a reasonably safe condition” and to “discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence.” Adams v. Parish of East Baton Rouge, 2000-0424 (La. App. 1st Cir. 11/14/01), 804 So.2d 679, 687. In Sandbom v. BASF Wyandotte, Corp., (La. App. 1st Cir. 4/30/96), 674 So.2d 349, this Court upheld a finding of negligence against a property owner because it failed to warn a contractor’s employee “to protect himself from exposure to potentially toxic chemicals” at the facility. Id. at 353. The court reasoned that workers “needed to be informed of the chemicals to which they would be exposed in the course of their work” and that the property owner “was in a superior position to Louisiana Environmental and Mr. Sandbom to test for and learn the exact nature of the chemicals.” Id. at 357. Under such circumstances the defendant “owed to Louisiana Environmental and Mr. Sandbom the duty to notify them of the chemical hazards which could be encountered.” Id.
In this case, the evidence established that Exxon was in a superior position to discover the hazards of asbestos at its refinery and warn Mr. Roberts, a pipefitter, about those hazards. In fact, the evidence establishes beyond serious question that Exxon knew or should have known that workers exposed to asbestos, both directly and indirectly, were at risk for developing mesothelioma and other serious asbestos-related diseases. Exxon’s internal documents demonstrate that as early as 1949, Exxon was aware that not only insulators but also “laborers and pipe benders” were at risk for developing lung cancer due to silica and asbestos exposure. Rec. at 7917; Plaintiffs’ Ex. 3, Appendix at 2.
The evidence at trial proved that pipefitters such as Mr. Roberts were exposed to the same asbestos dust as insulators. As a pipefitter, Mr. Roberts worked around insulators and sometimes installed and removed insulation himself. Rec. at 7721. The insulators worked “north, south, east and west, above and below” Mr. Roberts’ work area. Rec. at 7728. In Mr. Roberts’ work area, there was so much asbestos dust that workers had to “physically dig stuff out” of their eyes, nose and mouth. Rec. at 7722. The dust created a “blizzard.” Rec. at 7724. Lance Radley, who worked as an insulator at Exxon’s refinery in the mid 1960s, confirmed that he was “intermingled” with the pipefitters. Rec. at 8020-21. The pipefitters would be “standing right beside” the insulators as they cut insulation, producing dust. Rec. at 8024. The asbestos insulation produced dust so think that “[i]t looked like a dome over us,” especially when insulation was cut with a saw. Rec. at 8026. The pipefitters complained to Exxon “constantly” about the dust, but Exxon’s only response was to “have a few laborers come out and sweep it up.” Rec. at 7725-26. Exxon never warned the workers — even the insulators — that the dust contained a substance that was known to cause serious disease and death. See Rec. at 7725; 8029-30.
As early as 1937, a report prepared by Exxon’s chief safety inspector warned that the dust concentrations produced by installing asbestos insulation were “considered too high for working without adequate protection.” Plaintiffs’ Ex. 1 at 28. The report concluded that with respect to all types of dust, “[o]ne common-sense answer is that any atmosphere in which dust is visible to the naked eye is certainly too dusty to be breathed with safety by human beings.” Id. at 81. Using techniques available to Exxon at the time of Mr. Roberts’ employment, an expert witness confirmed that cutting asbestos insulation created significant “by-stander exposures.” See Rec. at 7655-56; 7663-64.
Exxon knew in 1949 that asbestos could cause at least one type of cancer, but Exxon had access to even more knowledge about asbestos hazards throughout the 1950s and 1960s. The link between asbestos and lung cancer was “well-established” by the mid 1950s. Rec. at 7926. In the 1950s and 1960s, it was known that lung cancer could occur at “every concentration of asbestos.” Rec. at 7978. Mesothelioma was causally linked to asbestos through epidemiological studies in 1960. Rec. at 7902. Contrary to its assertions, Exxon never had reason to believe that the exposure limit established for asbestosis would be adequate to protect against cancer. Rec. at 7978 (the exposure standard for asbestosis “had no relationship whatsoever, nor did the authors say that it had any relationship to the prevention of cancer.”). Even if the exposure standards had been designed to prevent cancer, “[m]ere compliance with federal standards or any other safety standards without more is not prima facie proof that a product is not dangerous or is no longer dangerous.” Asbestos v. Bordelon, Inc., 1996-0525 (La. App. 4th Cir. 10/21/98), 726 So.2d 926, 958. In the Bordelon case, the court specifically held that asbestos-containing products were unreasonably dangerous despite the contention that the products complied with the “threshold limit value for exposure to asbestos.” Id. at 942.
In 1964, Dr. Irving Selikoff’s studies confirmed an increased mesothelioma risk in workers using asbestos insulation products. Rec. at 7929. Dr. Selikoff presented his findings at a conference attended by Dr. R.E. Eckardt and Dr. Neill Weaver from Exxon. Rec. at 7930. At the conference, researchers discussed cases of mesothelioma among refinery workers. Rec. at 7931-33; 8494-95. Representatives at the conference stated that with respect to asbestos and cancer, “[t]he only safe level is nil.” Rec. at 8004.
Upon returning from the conference, Dr. Eckardt warned Exxon about the deadly hazards posed by asbestos exposure. Plaintiffs’ Ex. 17. Exxon dismisses Dr. Eckardt’s warning because he observed that “additional work needs to be done.” Appellant’s Brief at 15. But Dr. Eckardt did not recommend that Exxon wait until all scientific inquiry had ceased before taking action. In no uncertain terms, Dr. Eckardt explained:
[I]n my mind there is no question, nor was there at this Conference, about the elimination of asbestos from industry. The approach will have to be that of control of the dust exposures by whatever means seem necessary in order to eliminate the asbestosis, the bronchial carcinomas, and the mesotheliomas which seem to be related to asbestos exposure. The evidence which is accumulating indicates that this is a far more serious problem than we had ever thought in the past, and therefore control measures are going to have to be more fully developed than they were in the past.
Plaintiffs’ Ex. 17 at 6-7.
Exxon maintains that it had no way of knowing in the 1960s that Mr. Roberts was at risk of developing mesothelioma. In support of this contention, Exxon stretches its interpretations of the evidence past the breaking point. Exxon claims that “there was no evidence that Exxon ‘knew’ that its premises put workers at risk for any asbestos disease, much less mesothelioma.” Appellant’s Brief at 11. Exxon’s own documents prove that Exxon knew its workers were at risk for asbestosis and asbestos-related cancer in 1949. Rec. at 7917; Plaintiffs’ Ex. 3, Appendix at 2. Dr. Eckardt’s report put Exxon on notice that its workers were at risk for mesothelioma in 1964. Plaintiffs’ Ex. 17. Nor did Dr. Eckardt limit his report to insulators:
Certainly this appears to be a problem that cannot be taken lightly, and certainly it would seem that very careful control of exposures to asbestos throughout refinery operations should be instituted. This would include not only the insulators themselves but also those who are tearing down old units where insulation may be present around pipes and [where] asbestos dust exposures may develop.
Plaintiffs’ Ex. 17 at 6-7 (emphasis added).
Exxon cites Dr. Lemen’s testimony for the proposition that in 1970, “it was not known whether there was any asbestos risk” to workers outside the asbestos mining and textile industries. Appellant’s Brief at 12. Exxon’s own witness, Dr. Leroy Balzer, testified that it was “generally accepted” by the mid to late 1960s that end users of asbestos products, including those “working around asbestos products” were “at risk for developing lung cancer.” Rec. at 8500. Dr. Selikoff’s 1964 studies documented the risk of mesothelioma among workers exposed to asbestos insulation products. See Plaintiffs’ Ex. 17. Dr. Lemen explained that in 1970, “we knew from Dr. Selikoff’s data in the mid-60s that there was indeed a risk of cancer to insulation workers and end-product users. The Public Health Service knew that; I knew that.” Rec. at 7983. The primary purpose of Dr. Lemen’s research was to confirm and expand the extensive body of evidence that asbestos exposure caused mesothelioma and other diseases in end users. Rec. at 8005.
Like all scientific knowledge, the knowledge of asbestos hazards has evolved over time. Dr. Balzer testified that “even today it is not all known.” Rec. at 8469. But this does not absolve Exxon of liability. The standard is when Exxon should have known of the danger, not when Exxon was faced with irrefutable proof of the danger. Exxon certainly had sufficient information by the 1960s to be aware that it should warn workers that asbestos could cause mesothelioma, lung cancer, asbestosis and other serious diseases. In the field of occupational health and safety, Dr. Lemen explained that “[s]cientific knowledge is always changing, but it doesn’t give you the license or the ability not to take the action that’s necessary at the time you know what you know. . . . [Y]ou don’t wait until everything was in before you take action.” Rec. at 8002. Even Dr. Balzer was forced to concede that, as a principle of industrial hygiene, “when you have a substance that could potentially be fatal, you should educate the workers about the potential harm that they are exposing themselves to.” Rec. at 8506. Exxon failed to educate Mr. Roberts about the potentially fatal harm to which he was exposed.
In Wallace v. Upjohn Co., 535 So.2d 1110, (La. App. 1st Cir. 1988), writ denied, 539 So.2d 630 (La. 1989), this Court recognized that a duty to warn may exist even when the scientific evidence is not conclusive. Wallace involved claims that a drug called tetracycline caused tooth staining as a side effect. The “[m]edical literature established the causal relationship between tetracycline ingestion and tooth staining in 1962,” and the FDA required warnings about tooth staining in 1963. Id. at 1112-13. This Court upheld a finding that the manufacturers should have known of the side effect in 1956, based on expert testimony that “the state of knowledge existing in 1956 was sufficient to alert the drug manufacturers to the possibility tetracycline could cause tooth staining, [based] on three articles published prior to 1957.” Id. at 1113. This Court held that:
[T]he trial court’s conclusion, based upon its evaluation of the expert testimony, that drug companies should have warned of the side effect of tetracycline in 1956, is not manifestly erroneous. . . . We specifically agree with the trial court’s observation that, although the 1956 Shwachman article did not suggest that antibiotics caused the tooth discoloration, it should have alerted the drug companies to the possibility tetracycline was the culprit.
Id. at 1116-17. Although this case involves a premises owner rather than a drug manufacturer, premises owners also have a duty to discover unreasonably dangerous conditions, including potentially toxic substances. See Adams, supra; Sandbom, supra. The duty was even more important in this case, because the hazards of asbestos are far more serious than tooth discoloration. The Louisiana Supreme Court has explained that “[i]f the harm that may be foreseen is great, conduct that threatens it may be negligent even though the statistical possibility of its happening is very slight.” Levi v. Southwest Louisiana Elec. Membership Co-op., 542 So.2d 1081, 1086 (La. 1989). Exxon knew that asbestos could cause serious disease and death, and Exxon was negligent in failing to share its knowledge with the workers whose lives were at stake.
B.Exxon’s Negligence Caused Mr. Roberts’ Disease and Death.
Exxon argues that its negligence did not cause Mr. Roberts’ death because it was “powerless to prevent” Mr. Roberts’ injuries. Appellant’s Brief at 20. Exxon bases this argument on Dr. Lemen’s testimony that dust control measures on Exxon’s part would have “significantly lowered” but not “entirely eliminated” Mr. Roberts’ risk of developing mesothelioma. Rec. at 7977-78. This testimony supports the causation finding, since proper safety measures would have made Mr. Roberts’ injury much less likely.
Independently, Exxon’s failure to warn Mr. Roberts of the hazards of asbestos was a cause in fact of his injuries. The law presumes that proper warnings will be heeded. Clomon v. Monroe City School Bd., 572 So.2d 571, 577 (La. 1990); Bloxom v. Bloxom, 512 So.2d 839, 850 (La.1987). Exxon offered no evidence to rebut the presumption that Mr. Roberts would have heeded a warning and avoided exposure to asbestos. Dr. James Robb, an expert on asbestos-related diseases, testified that if a person is made aware of the risks associated with asbestos and avoids occupational exposure to asbestos, the risk of developing mesothelioma is “essentially zero.” Rec. at 8127.
A.There Was No Evidence That the Products Released Any Respirable Asbestos Fibers During Normal Use.
The jury found multiple premises owners and product manufacturers liable. The Plaintiffs did not challenge the findings with respect to the premises owners but did move for judgment notwithstanding the verdict with respect to several of the product manufacturers. The Plaintiffs argued that the mere fact that Mr. Roberts worked with or was exposed to the products themselves did not establish causation. Rec. at 6897-6917. Without evidence that the products actually released asbestos fibers that Mr. Roberts could have inhaled, there was no basis to conclude that the products contributed to Mr. Roberts’ injuries. The trial court granted the Plaintiffs’ motion in part and found the evidence insufficient to support the liability of Certainteed Corp., Fibreboard Corp., The Flintkote Co., Foster Wheeler Energy Corp. and General Electric. Rec. at 7004-07; 7041-43. In their Answer, the Plaintiffs appealed the trial court’s liability findings with respect to Babcock & Wilcox, Combustion Engineering, Inc., Riley Stoker Corp., Garlock, Inc. and Gasket Holding, Inc. See Exhibit A. The record does not support liability as to these defendants.
Exxon had the burden of proving every element of the settling defendants’ liability at trial. See Raley v. Carter, 412 So.2d 1045, 1047 (La. 1982). In this case, Exxon claims that liability was established by Mr. Roberts’ interrogatory responses, which state that he worked with or around the manufacturer’s products. Appellant’s Brief at 21. As this Court held in Emery v. Owens-Corp., 2000-2144 (La. App. 1st Cir. 11/9/01), 813 So.2d 441, writ denied, 2002-0635 (La. 5/10/02), 815 So.2d 842, it is not sufficient to show that a plaintiff worked with or around a manufacturer’s products. The evidence must provide a “reasonable factual basis” for imposing liability on the product manufacturer. Id. at 453.
A product manufacturer is liable for harm if “the harm resulted from the condition of the product” and “the condition made the product unreasonably dangerous for normal use.” Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 113 (La. 1986). Asbestos products can cause harm if they release asbestos dust or fibers that may be inhaled by the user. See, e.g., Hennegan v. Cooper/T. Smith Stevedoring Co., Inc., 2002-0282 (La. App. 4th Cir. 12/30/02), 837 So.2d 96, 108-110 (evidence that asbestos products released “respirable asbestos fibers” during use supported finding that products were defective and contributed to the plaintiff’s injuries); Asbestos v. Bordelon, Inc., 96-0525 (La. App. 4th Cir. 10/21/98), 726 So.2d 926, 948 (“In asbestos cases, the term ‘exposure’ refers to inhalation of asbestos fibers into the lungs.”).
The Hennegan and Bordelon cases illustrate the crucial difference between mere exposure to a product and exposure to respirable asbestos fibers from a product. In Bordelon, the court held that a gasket manufacturer could not be held liable, even though the plaintiff worked around the product, because the normal use of the gaskets “did not create any dust.” Bordelon, 726 So.2d at 948. By contrast, the court affirmed the liability of other manufacturers based on evidence that the plaintiffs inhaled “dust from the cutting, tearing and ripping” of the products. Id. at 943 n.3. In Hennegan, the court upheld liability findings against a gasket manufacturer because the gaskets “emitted respirable asbestos fibers when removed with a grinder.” Hennegan, 837 So.2d at 108.
Exxon discusses evidence that Mr. Roberts was exposed to particular products, but does not point to any evidence that those products released respirable asbestos fibers during normal use. Exxon notes that Mr. Roberts’ interrogatory responses, work history sheets and stipulations establish that he worked with and was exposed to products manufactured by other defendants. See Appellant’s Brief at 21-22. Exxon cites Dr. Balzer’s testimony that the manufacturers produced asbestos-containing products in the 1950s, 1960s and early 1970s. Id. at 22. But none of this evidence addresses how the products were used at Mr. Roberts’ work sites, particularly whether those products were ever used in a way that would have released respirable asbestos fibers. In the absence of any evidence suggesting that the products were sawed, cut, scraped, ground or otherwise caused to release dust, Exxon has not identified any evidence that Mr. Roberts could have inhaled any asbestos fibers from these products.
Exxon further cites expert testimony that each and every exposure to asbestos contributes to disease. See Appellant’s Brief at 27-29. But that expert testimony is of no use to Exxon, because Exxon did not show any exposure to asbestos fibers from the products at issue. For example, a plaintiff suing a tobacco company might call any number of experts to testify that each cigarette increases the risk of cancer. But that testimony would be irrelevant without evidence that the plaintiff actually smoked at least one cigarette. Evidence that the plaintiff carried a pack of cigarettes in his pocket for twenty years would not be sufficient, no matter how many experts testified.
B.Plaintiffs’ Closing Argument Did Not Constitute a “Judicial Confession” That Mr. Roberts Inhaled Asbestos Fibers from the Other Defendants’ Products.
Exxon seeks to excuse its failure of proof by contending that Plaintiffs’ closing argument was a “judicial confession” that relieved Exxon of the obligation to present evidence. Appellant’s Brief at 23-27. Exxon quotes two passages from Plaintiffs’ closing argument in support of this argument. Id. at 24. In the first passage, Plaintiffs’ counsel is referring to the liability of the other premises defendants. Rec. at 8854-55. No one has challenged the jury’s findings as to the premises defendants, so that passage is not relevant. Exxon also quotes the following excerpt from Plaintiffs’ closing argument: “If you find that there was exposure to all these, you know what? I don’t care. If you want to say yes, go right ahead.” Rec. at 8855. That statement cannot be construed as a judicial confession.
In Krepps v. Hindelang, (La. App. 5th Cir. 4/15/98), 713 So.2d 519, the court held that a similar statement made by an attorney was not a judicial admission. In Krepps, the defendant’s attorney told the jury “I think, when you’re asked to deliberate, that you’re going to determine Ms. Krepps had a three-month soft-tissue injury.” Id. at 524. The court explained that “[t]o constitute a judicial confession, the statement must be an express acknowledgment of an adverse fact” and that counsel’s prediction did not “constitute a judicial admission that plaintiff . . . sustained an injury from the accident.” Id. Exxon does not cite a single case in which such statements have been treated as judicial admissions.
Further, Plaintiffs’ counsel did not make the statement for the purpose of waiving evidence. A judicial admission “must be an intentional waiver relating to the opponent’s proof and not merely an assertion made for some independent purpose.” Scoggins v. Frederick, 98-1816 (La. App. 1st Cir. 9/24/99), 744 So.2d 676, 683. The statement cited by Exxon was made for the purpose of argument. It was made after the close of evidence, so it could not have been intended as a waiver of proof. For the same reason, Exxon could not have relied on the statement as a reason for failing to offer sufficient proof. The alleged admission was made after Exxon had rested its case. The statement could not have deterred Exxon from putting on evidence, because Exxon had already put on all of its evidence. A statement does not constitute a judicial admission unless a party “relied on the declaration to his detriment.” Krepps, 713 So.2d at 524.
A.The Evidence Supported the Award of Survival Damages.
Exxon contends that “[t]he trial court erred in awarding $3,500,000 in survival damages to Mr. Roberts.” Appellant’s Brief at vii. In the first place, the trial court did not award Mr. Roberts $3,500,000 in survival damages. The trial court reduced Mr. Roberts’ award by $500,000 at Exxon’s request. See Rec. at 6849, 7004, 7041. Once a trial court has granted a JNOV on damages, “that decision becomes the judgment of the trial court.” Adams v. Parish of East Baton Rouge (La. App. 1st Cir. 11/14/01), 804 So.2d 679, 700. In its argument, Exxon repeatedly uses this incorrect figure as a basis for comparison. See Appellant’s Brief at 30-34.
Even if Exxon were using accurate numbers, its reliance on prior awards is improper. As this Court recently explained in Emery v. Owens-Corp., 2000-2144 (La. App. 1st Cir. 11/9/01), 813 So.2d 441, writ denied, 2002-0635 (La. 5/10/02), 815 So.2d 842, past awards may be examined only after an abuse of discretion is established and even then only “for the purpose of determining the highest or lowest point which is reasonably within that discretion.” Id. (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114 (1994). The Louisiana Supreme Court has unequivocally disapproved the technique employed by Exxon, namely the “use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case.” Youn, 623 So.2d at 1260.
The trier of fact has “vast discretion” in assessing the amount of damages. Emery, 813 So.2d at 458. Damage awards will be disturbed only when there has been a clear abuse of that discretion. Id. (citing La. C.C. art. 2324.1; Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993)). The initial inquiry must always be directed at whether the award “for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s much discretion.” Id. (emphasis added).
Exxon has not shown any abuse of discretion with respect to any of the damage awards. Exxon points to an award of $350,000 in the Egan case and argues that it proves the award to Mr. Roberts was excessive. Appellant’s Brief at 33. One could just as easily conclude that the $2,484,014 award in the Abadie case, also cited by Exxon, “proves” that the award in Egan was inadequate. The variance between the two awards simply demonstrates the wide breadth of discretion afforded to trial courts dealing with the particular circumstances of each case. The award in Abadie was 700 percent higher than the award in Egan, while the award in this case was approximately 20 percent higher than the award in Abadie. Exxon cannot logically argue that a 700 percent variance is acceptable but that a 20 percent variance is a clear abuse of discretion.
Each case turns on its facts, and the facts of this case support the damage awards. Mr. Roberts suffered unimaginable pain from the mesothelioma that slowly suffocated him to death. Dr. Battifora testified that the mesothelioma tumor “gets in between the nerve” and causes “incredible pain” until “[e]very breath becomes painful.” Rec. at 7821. Mr. Roberts told his doctors that his level of pain was “ten out of ten” and at one point shouted that “[t]he pain is killing me.” Rec. at 7841-42. He had to have an intravenous morphine drip. Id. Even with the morphine, Mrs. Roberts testified that the pain “would come right back.” Rec. at 8139. Three months before his death, Mr. Roberts had a morphine pump inserted to deliver morphine directly to his heart, but it still could not control his pain. Rec. at 8141. Mrs. Roberts explained that the pump would only deliver a certain amount of morphine and “we were sitting up and pumping it and pumping it, but [it] wasn’t giving him anything. We were trying to give him more because he was hollering so.” Rec. at 8141.
In addition to causing unrelenting physical pain, Mr. Roberts’ illness caused him emotional anguish. After experimental chemotherapy failed to help, Mr. Roberts became despondent, telling his wife that there was “no hope.” Rec. at 8137. He suffered from depression. Rec. at 7842. Although he was a “very proud man,” he reached the point where he was unable to care for himself. Rec. at 8137. Eventually his wife and children had to start taking care of him. Id. As he grew worse, his wife had to feed him, bathe him and change his diapers. Rec. at 8140.
B.The Evidence Supported the Award to Mrs. Roberts.
Mrs. Roberts testified that she and Mr. Roberts were married for 45 years. Rec. at 8132. When he was diagnosed with mesothelioma, she quit work to be with him. Rec. at 8137. They had to leave their home in Clinton and move to an apartment in Baton Rouge so that Mr. Roberts could be closer to his doctors. Rec. at 8137-38. Mrs. Roberts took care of her husband throughout his final illness and was holding his hand as he died. Rec. at 8140. Mrs. Roberts testified that since her husband’s death, “I miss his companionship and [have] nobody to talk to and . . . I miss him so much on holidays. He was fun on all the holidays. And I just have a big hole in my heart for him on every holiday.” Rec. at 8142. Mrs. Roberts has to run the household and take care of her car and yard work, all tasks that Mr. Roberts used to perform for her. Rec. at 8140. The award to Mrs. Roberts was not an abuse of discretion.
C.The Evidence Supported the Award to Mr. Roberts’ Children.
Mr. Roberts’ children also suffered a tremendous loss. Wesley Roberts III, Mr. Roberts’ son, testified that while his father was alive he felt that “every time I needed help, I [could] call him up.” Rec. at 8044. He and his father enjoyed hunting together whenever possible. Rec. at 8042. Loxie Roberts Oufnac testified that “we were a close family” and that Mr. Roberts was an “excellent” father and grandfather. Rec. at 8047-48.
Mr. Roberts’ daughter from a previous marriage, Sheila Huffman, lost her father only a few years after they found each other. Mrs. Huffman’s mother would not let her see Mr. Roberts while she was growing up, and she spent years searching for him. Rec. at 7780-83. Unknown to her, Mr. Roberts spent those years searching for her, until they were finally reunited in 1992. Rec. at 7781-82. She and her father spent hours catching up on “forty-five years of missing lives.” Rec. at 7784. They discovered they shared a love of fishing and gardening and made plans to go fishing together. Rec. at 7788. They also planned for Mr. Roberts to meet his grandchildren and for Mrs. Huffman to meet the rest of the family. Rec. at 7784-85. After she got to know her father, she “couldn’t get over . . . how much he loved his family, how much his family meant to him.” Rec. at 7784.
Mrs. Huffman testified that “[w]e were going to go to our first family reunion together and he wanted to take me so bad to meet all the sisters and my aunts that I never knew I had. . . . And he wanted to take me really bad and he was too sick so we never made it. Then the next year he was dead.” Rec. at 7785. She acknowledged that “it is nobody’s fault that I didn’t find him sooner, but I feel like he died way too soon. I would have liked to have had a few more years with him to get to know him and for my children to get to know him. And to then have had a few memories with him that were better than the ones. I don’t have too many.” Rec. at 7791. Mrs. Oufnac summed up the family’s feelings when she testified that since Mr. Roberts’ death, “[e]verybody is empty.” Rec. at 8049.
Exxon has not even addressed this evidence of damages in this case, much less demonstrated that the evidence was insufficient to support the trial court’s assessment of damages. In light of the evidence, and the broad discretion given to the trial court, the damages awards should not be disturbed.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING PLAINTIFFS TO CALL A SINGLE REBUTTAL WITNESS.
A.The Plaintiffs Were Entitled to Call a Rebuttal Witness.
Plaintiffs in civil cases have “the right to rebut evidence adduced by their opponents.” La. C.E. art. 611(E). The trial court gave Plaintiffs a limited right of rebuttal in this case. The trial court disallowed one of Plaintiffs’ proposed rebuttal witnesses as cumulative, and another rebuttal witness was withdrawn. Rec. at 8723. Plaintiffs were allowed to call a single rebuttal witness, Dr. Samuel Hammar, to refute the testimony of Dr. Russell Sherwin. Exxon called Dr. Sherwin during its case in chief to testify that Mr. Roberts did not have mesothelioma. The trial court limited Dr. Hammar to rebutting “specific matters brought out by Dr. Sherwin.” Rec. at 8716. Dr. Hammar, a member of the U.S./Canada Mesothelioma Panel, rebutted the following statements in Dr. Sherwin’s testimony:
- Dr. Hammar refuted Dr. Sherwin’s statements that mesotheliomas were difficult to diagnose and that adenocarcinomas were likely to be confused with mesotheliomas. Rec. at 8740, 8772-73. Dr. Hammar also explained that the immunohistochemical analyses on which Dr. Sherwin relied did not include the appropriate tests for diagnosing mesothelioma. Rec. at 8765-67.
- Dr. Sherwin testified that mesothelioma tumors grow uniformly, like grass seeds on a lawn. Rec. at 8281. Dr. Hammar refuted this assertion and explained that “mesotheliomas are never going to be perfectly uniform because of the fact that they probably don’t grow at the same rate.” Rec. at 8757. When “the first cancer cell forms, it forms a little nodule. Some of that [sloughs] off and reimplants in another part of the pleura.” Id.
- Dr. Hammar explained that Dr. Sherwin’s theory that the tumor encasing Mr. Roberts’ lung was caused by pleurodesis was “nonsense,” based on his experience in performing autopsies on patients who had undergone pleurodesis. Rec. at 8755-56.
- Dr. Hammar explained that Dr. Sherwin’s diagnostic approach is not generally accepted by pathologists. Rec. at 8754.
Exxon argues that in order to present rebuttal evidence, the Plaintiffs must show that they “could not possibly have anticipated” the testimony of the defendants’ witness. Brief at 38. This restriction is not mentioned in art. 611(E), nor has Exxon cited any authority to support such a stringent standard. The only authority given by Exxon is a partial quotation from CNG Producing Co. v. Sooner Pipe and Supply Co., 483 So.2d 1215 (La. App. 4th Cir.), writ denied, 488 So.2d 692 (La. 1986). The passage quoted by Exxon does not come from the appellate court’s holding but rather from a colloquy between the trial court and the plaintiff’s attorney, explaining the trial court’s reasons for excluding a particular rebuttal witness. See id. at 1219. The case certainly does not stand for the proposition that it is an abuse of discretion to allow rebuttal testimony if the plaintiffs “could possibly have anticipated” a witness’s testimony.
The “determination of whether evidence is proper rebuttal evidence, and therefore admissible, is an issue which is addressed to the sound discretion of the trial court.” State v. Amato, 96-0606 (La. App. 1st Cir. 6/30/97), 698 So.2d 972, 987, writ denied, 1997-2626 (La. 2/20/98), 709 So.2d 772. That includes the discretion to allow rebuttal of expert witnesses. See, e.g., Doe v. McNulty, 630 So.2d 825, 826 (La. App. 4th Cir. 1993), writ denied, 631 So.2d 1167 (La. 1994) (holding that trial court did not abuse its “great discretion” in allowing rebuttal of defendant’s medical expert). In this case, Exxon listed more than 100 potential witnesses, many of them addressing multiple issues. See R. 3195-3202; 3707-08. The Plaintiffs could not have anticipated and preemptively rebutted every possible aspect of the defendant’s case. Even if such a task were possible, the result would be to prolong the trial and confuse the jury by rebutting statements that have not even been made. The trial court correctly observed that “[i]t is impossible to prepare for every shred of evidence” and allowed the Plaintiffs to offer rebuttal testimony on specific issues. Rec. at 8716. Exxon argues that the failure to list Dr. Hammar before trial violated the pretrial order, but the pretrial order does not even address rebuttal witnesses, and the trial court explained that the order did not require the listing of rebuttal witnesses. Rec. at 8715.
The trial court’s admission of rebuttal evidence “will not be disturbed except in extreme cases, as where the evidence has been kept back deliberately and for the purpose of deceiving and obtaining undue advantage of the defendant.” Amato, 698 So.2d at 987. There is absolutely no indication that the Plaintiffs deliberately kept back Dr. Hammar’s testimony. Dr. Hammar testified under oath that he was not even contacted by the Plaintiffs about this case until the Sunday before he testified. Rec. at 8743. Without citing any evidence to support its accusations, Exxon asserts that “Dr. Hammar was not listed by Plaintiffs as a potential witness for the trial, despite the fact that Plaintiffs had Dr. Hammar’s report more than one year prior to trial.” Appellant’s Brief at 39. Exxon’s accusation is demonstrably incorrect, because Dr. Hammar never prepared a report in this case. Rec. at 8744. The Plaintiffs could not possibly have had Dr. Hammar’s report more than one year prior to trial because there was no report.
Even if Exxon had shown some abuse of the trial court’s discretion, Exxon has not demonstrated that the alleged error was prejudicial. A party claiming error in the admission or exclusion of evidence must show the alleged error was prejudicial, meaning that “the error, when compared to the record in its totality, has a substantial effect on the outcome of the case.” Brumfield v. Guilmino, 93-0366 (La. App. 1st Cir. 3/11/94), 633 So.2d 903, 911; see also La. C.E. art. 103; Wallace v. Upjohn Co., 535 So.2d 1110, 1118 (La. App. 1st Cir.1988), writ denied, 539 So.2d 630 (La.1989). The record in its totality, even without Dr. Hammar’s testimony, firmly supports the conclusion that Mr. Roberts died from an asbestos-related disease. See, e.g., Rec. at 7820-28; 7840-41; 9114-24; Plaintiffs’ Ex. 39
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING HEARSAY TESTIMONY WHEN A LIVE WITNESS WAS AVAILABLE TO GIVE SUBSTANTIALLY SIMILAR TESTIMONY.
A.Exxon Could Have Presented Live Testimony.
Exxon argues that it was prevented from presenting “the Exxon story” because of the unavailability of Professor James Hammond and Dr. Neill Weaver. Appellant’s Brief at 47. Professor Hammond was Exxon’s industrial hygienist, based in Texas. Dr. Weaver was medical director at the Baton Rouge refinery. Exxon neglects to mention that another witness, Dr. Kenneth Jones, was available to present the “Exxon story.” Dr. Jones served as Dr. Weaver’s assistant at the refinery beginning in 1966 and succeeded him as medical director. Rec. at 3197, 8639. Before trial, Exxon designated Dr. Jones to testify about “his years of experience as a physician at Exxon.” Rec. at 3197. When Exxon first learned that Dr. Weaver might be unavailable, counsel for Exxon stated that “Dr. Jones is here, and he may very well testify.” Rec. at 8411. Exxon later sent Dr. Jones home and informed the court that “[w]e have decided not to call him,” despite the fact that he was available to testify. Rec. at 8638. The trial court observed – and Exxon did not dispute – that Dr. Jones would give “the same or substantially the same” testimony as Dr. Weaver. Rec. at 8641. The stated reason for refusing to call Dr. Jones was Exxon’s desire to “par[e] down our case.” Rec. at 8638.
Plaintiffs do not dispute that Dr. Weaver’s unavailability was beyond Exxon’s control, but Exxon had the same testimony available from another live witness. Dr. Weaver’s unavailability would have been rendered harmless if Exxon had simply called Dr. Jones to give the same testimony. Instead, Exxon sought to offer selected transcripts of testimony given by Professor Hammond and Dr. Weaver in prior cases involving markedly different facts. The trial court excluded the evidence as hearsay, just as it excluded the testimony that Mr. Roberts gave before his death as hearsay. See Rec. at 8628-31. In both cases, the trial court was acting within its discretion.
B.The Trial Court Did Not Abuse Its Discretion in Disallowing the Hearsay Offered as a Substitute for Live Testimony.
Testimony from a prior case is admissible only when a witness is unavailable and “the party against whom the testimony is now offered or . . . a party with a similar interest had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” La. C.E. art. 804(B)(1). As recognized in the comments to art. 804, there is a “preference for live witness testimony.” In this case, live testimony was available, and the hearsay testimony offered by Exxon failed to meet the requirements of art. 804(B)(1). The trial court did not abuse its discretion in excluding the hearsay testimony.
First, Exxon failed to prove that Professor Hammond was unavailable to testify at the time of trial. Determining the unavailability of a witness “is a preliminary question for the court. Such determinations are reviewed for manifest error, and will not be overturned, absent an abuse of the trial court’s discretion.” State v. Ball, 2000-2277 (La. 1/25/02), 824 So.2d 1089, 1112; see also Martin v. Francis, 600 So.2d 1382, 1386 (1st Cir.), writ denied, 606 So.2d 541 (La. 1992) (trial court “is vested with broad discretion in determining whether a witness is unavailable” under analogous provisions of La. C.C.P. art. 1450). In this case, the trial court was “not convinced at all that Dr. Hammond is unavailable for trial.” Rec. at 8400.
A witness may be considered unavailable if the witness is unable to testify “because of death or then existing physical or mental illness, infirmity, or other sufficient cause.” La. C.E. art. 804(A)(4) (emphasis added). Exxon never produced any evidence of Professor Hammond’s condition at the time of trial. The only evidence offered was an affidavit signed by Dr. Gary K. Friedman in 1998, two years before the trial. Chambers Ex. 7. Dr. Friedman was not Professor Hammond’s regular physician, and Exxon did not disclose the circumstances under which he was hired to evaluate Professor Hammond. No evidence was offered from Professor Hammond’s regular physician or any doctor who was actually treating Professor Hammond.
Dr. Friedman stated in 1998 that Professor Hammond was suffering from heart problems, confusion, memory loss and various other physical and mental ailments and concluded that Professor Hammond was “unfit to undergo a deposition at the present time.” Id. Dr. Friedman did not state that any of the conditions were permanent and surmised that some of Professor Hammond’s mental difficulties stemmed from the recent death of his wife. Id. The trial court was certainly not required to accept statements from a two-year-old affidavit signed by a physician who never treated Professor Hammond.
Nor did Exxon establish that the Plaintiffs in this case and the parties in the prior proceedings had similar interests, similar motives or similar opportunities to cross-examine Exxon’s witnesses. Exxon initially moved to exclude much of Professor Hammond’s prior trial testimony as hearsay. Rec. at 6597. Exxon was willing to introduce Professor Hammond’s testimony from only one case — a lawsuit involving a housewife who claimed exposure to asbestos from her husband’s clothes. Rec. at 8166, 8174. With respect to Dr. Weaver, Exxon offered testimony from a case involving a worker in a different occupation suffering a different disease.
The trial court excluded the hearsay testimony because the parties’ motives and opportunities for cross-examination in the prior cases were not sufficiently similar under art. 804(B)(1). See Rec. at 8400, 8553-56. Not only were the prior cases factually different, the critical documents used to cross-examine Exxon’s witnesses were not in evidence in those cases. For example, Exxon emphasizes the fact that Professor Hammond testified that no cases of mesothelioma were reported at Exxon during his tenure, which ended in 1978. Professor Hammond’s statement is directly contradicted by a 1974 memorandum addressed to Dr. Jones, which discussed “the appearance of two cases of mesothelioma in recent months among Exxon Company employees.” Plaintiffs’ Ex. 28. The document was not available when Professor Hammond was cross-examined in 1992, and it was excluded from evidence when Dr. Weaver was cross-examined in 1998. See Rec. at 8544; 8550-51. Without this memorandum and other key Exxon documents, the plaintiffs in the prior cases did not have an adequate opportunity to cross-examine Exxon’s witnesses. See Rec. at 8551-53. Hearsay is not an adequate substitute for cross-examination of a live witness with relevant documents.
Moreover, Exxon proffered an inadmissible mixture of expert and fact testimony. La. C.E. art. 804(B)(1) expressly provides that “[t]estimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.” Professor Hammond and Dr. Weaver were both expert witnesses, and their testimony contained numerous expert opinions. Throughout his testimony, Professor Hammond offered his professional opinions about Exxon’s safety program. He explained the principles of industrial hygiene, gave his expert opinions on the health effects of asbestos, and characterized Exxon as “a pioneer” in industrial hygiene. See, e.g., Proffer 1 at 2-15; 17-18, 20-21, 36-37, 39. His conclusion about Exxon’s program was given in the form of an opinion:
Q.In your opinion, Professor, did Baton Rouge in the 1950s have a good industrial hygiene program including dealing with the subject of asbestos? . . .
A.They surely did. One of the best in the nation.
Proffer 1 at 29-30. The trial court found that Professor Hammond’s expert testimony was “intertwined” with his factual statements. Rec. at 8399. Dr. Weaver likewise offered numerous expert opinions on the health effects of asbestos, safe levels of exposure, the development of medical knowledge, the effectiveness of Exxon’s safety programs, and other subjects. See, e.g., Proffer 4 at 15-18, 42, 50-54, 62.
Even the factual portions of Professor Hammond’s testimony were largely inadmissible, since they constituted hearsay within hearsay. Professor Hammond, who was based in Texas, testified that much of his information about the Baton Rouge refinery came from conversations with Fred Venable in Baton Rouge. Proffer 1 at 27-28. Anything Mr. Venable said is hearsay, and Exxon did not show that the statements fell within any exception to the hearsay rule, as required by La. C.E. Art. 805.
According to Exxon, the fact that some of the testimony was inadmissible “was in no way authority to exclude all of it.” Appellant’s Brief at 46. On the contrary, a trial court has the authority to exclude an entire proffer of evidence if parts of it are inadmissible:
If part of the evidence offered, as in the case of a deposition, a letter, or a conversation, is admissible and a part is not, it is incumbent on the offeror, not the judge, to select the admissible part. If counsel offers both good and bad together and the judge rejects the entire offer, the offeror may not complain on appeal.
McCormick on Evidence (1972) § 51, p. 112 (emphasis added). This principle is well established. See, e.g., Trade Dev. Bank v. Continental Ins. Co., 469 F.2d 35, 44 (2d Cir. 1972) (“Having presented the court with a ‘mixed-bag’ or potpourri, . . . counsel owed a duty to court and opposing counsel to point out or segregate those portions which might properly be offered . . . [It] is for the proponent to sever the good and the bad parts.”) (citations omitted); Edward Valves, Inc. v. Cameron Iron Works, Inc., 286 F.2d 933, 939 (5th Cir. 1961); Vockie v. General Motors Corp., 66 F.R.D. 57, 60 (E.D. Pa.), aff’d, 523 F.2d 1052 (3d Cir. 1975); Wigmore on Evidence § 17(b)(2), page 320. Exxon cannot complain on appeal that the trial court rejected its “mixed bag” of admissible and inadmissible evidence.
C.Any Error in Excluding the Prior Testimony Was Harmless.
In Emery v. Owens-Corp., 2000-2144 (La. App. 1st Cir. 11/9/01), 813 So.2d 441, writ denied, 2002-0635 (La. 5/10/02), 815 So.2d 842, this Court held that the exclusion of Professor Hammond’s testimony was harmless because “the factual testimony Exxon asserts Dr. Hammond would have provided actually was presented to the jury by Exxon witness Dr. Neill Weaver.” Id. at 450. Although Dr. Weaver did not testify at this trial, similar factual evidence was presented to the jury. Even more evidence could have been presented if Exxon had elected to call Dr. Jones as a witness.
Carter Lee, a supervisor at Exxon’s refinery, testified about safety measures, including the use of respirators, dust masks, and dust control methods. Rec. at 8303-04. Leroy Balzer, an industrial hygienist, also testified about conditions at the refinery, based on his review of Exxon’s documents. Rec. 8473-79; 8485-89. Several of the documents discussed by Professor Hammond and Dr. Weaver were admitted into evidence. See Proffer 1 at 24-29; Proffer 4 at 19-22; 42-49, 54-56, 58-60; Plaintiffs’ Ex. 1-2, 4-6, 17.
Exxon also argues that the exclusion of prior testimony kept the jury from hearing about Exxon’s “extensive concerns and programs implemented to protect the health of its employees.” Appellant’s Brief at 49. This evidence was irrelevant because Mr. Roberts was not an Exxon employee. Mr. Roberts was employed by a contractor, and Exxon never provided any medical services for these workers except “first-aid treatment in emergencies.” Proffer 4 at 36-37. Evidence regarding Exxon’s treatment of its employees was not relevant, and its exclusion could not have prejudiced Exxon’s case.
Appellees respectfully urge the Court to reject Exxon’s arguments. Appellees respectfully request that the Court hold Exxon solidarily liable for 50 percent of Appellees’ wrongful death damages, as reflected in the November 13 JNOV. In addition, Appellees request that this Court set aside the liability findings against Babcock & Wilcox, Combustion Engineering, Inc., Riley Stoker Corp., Garlock, Inc. and Gasket Holding, Inc., and modify the judgment to hold Exxon liable for 1/9 of the survival damages (Exxon’s virile share of liability for survival damages based on the number of entities against whom there was sufficient evidence).
- ↑ As discussed below, Appellees argue that the October 2 judgment was vacated and is no longer valid. If the Court agrees that the October 2 judgment is invalid, this assignment of error need not be reached. In the alternative, if the October 2 judgment is considered valid, its calculation of damages was incorrect and should be modified. See Section I, infra.
- ↑ This Section addresses Appellant’s first and second assignments of error and Appellees’ first assignment of error.
- ↑ This Section addresses Appellant’s third assignment of error.
- ↑ This Section addresses Appellant’s fourth assignment of error and Appellees’ second assignment of error.
- ↑ This Section addresses Appellant’s fifth, sixth and seventh assignments of error.
- ↑ Egan v. Kaiser Aluminum & Chem. Corp., 94-1939 (La. App. 4th Cir. 5/22/96), 677 So.2d 1027, writ denied, 96-2401 (La.12/6/96), 684 So.2d 930.
- ↑ Abadie v. Metro. Life Ins. Co., 00-352, p. 7 (La. App. 5th Cir. 4/11/01), 804 So.2d 11, writ denied, 2001-1543 (La.12/14/01), 804 So.2d 643.
- ↑ This Section addresses Appellant’s eighth assignment of error.
- ↑ This Section addresses Appellant’s ninth and tenth assignments of error.