COURT OF APPEAL
STATE OF LOUISIANA
WALTER T. GRAVES, JR.,
RIVERWOOD INTERNATIONAL, ET AL,
On Appeal from the
Fourth Judicial District Court, Parish of Ouachita, No. 00-1748
The Honorable James H. Boddie, Jr., District Judge Ad Hoc
November 1, 2006
STATEMENT OF THE CASE
This is a straightforward case. Mr. Walter Graves worked at a paper mill in Monroe, Louisiana from 1943 to 1990. R. Vol. VI 1138, Ex. P-25. During that time, both before 1952 and after 1952, he was exposed to and inhaled fibers from asbestos insulation products. R. Vol. V 1072-76; R. Vol. VI 1107, Ex. P-15 at 31. As a result of this exposure, Mr. Graves developed mesothelioma from which he died. R. Vol. V 957.
From 1943 when Mr. Graves started working at the paper mill, until 1955, the facility was owned by The Brown Paper Mill Company, Inc. (“Brown”). R. Vol. VI 1227-29. Defendant Olin Corporation (“Olin”) assumed the liabilities of the paper mill, including liability for Mr. Graves’ injuries, in 1955. R. Vol. I 156, at Question 4.
In July of 1952, Louisiana enacted workers’ compensation legislation that granted civil tort immunity to employers in certain circumstances. La. R.S. 23-1031.1. Olin does not dispute that its liability for Mr. Graves’ exposures to asbestos prior to that time is unaffected by workers’ compensation. Olin Br. at 11.
Because Mr. Graves was exposed to and injured by asbestos at Brown prior to the enactment of workers’ compensation legislation, and because the jury found Brown liable for Mr. Graves’ injuries, and because Olin has assumed liability for Mr. Graves’ injuries resulting from such exposures at Brown, Olin is liable to Mr. Graves for causing the mesothelioma that ultimately led to his death.
Olin cannot escape the liability it assumed for Brown’s conduct with a hurriedly assembled laundry list of alleged irregularities at trial, most of which received no objection at trial and no record citation in this Court. Nor can it use the 1952 workers’ compensation legislation to hide from liability for its own conduct between 1955 and 1966, when Olin owned the paper mill. R. Vol. VI 1257, Ex. D-3. The Louisiana Supreme Court has already recognized that mesothelioma was not a covered disease under the act until 1975 when the legislation was amended. Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, 1145. None of the points raised by Olin on appeal has merit; the judgment of the trial court should be affirmed.
OLIN CORPORATION DID NOT PROVE THE DEFENSE OF TORT IMMUNITY UNDER THE WORKERS’ COMPENSATION ACT.
Tort immunity under the Workers’ Compensation Act is “a special or affirmative defense that the employer bears the burden of proving at trial.” Austin, 824 So.2d at 1143 (citing Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262, 1268; Berry v. Holston Well Serv., Inc., 488 So.2d 934 (La.1986)). Under Austin, Olin’s burden was to prove that Mr. Graves’ cause of action “accrued only after 1975, such that the employer defendants would be entitled to summary judgment and immunity from suit in tort.” 824 So.2d at 1155.
Olin suggests this case is not governed by the Louisiana Supreme Court’s decision in Austin, but by this Court’s opinion in Adams v. Asbestos Corp. Ltd., 39,952 (La. App. 2 Cir. 10/28/05), 914 So.2d 1177. Adams, however, cannot be used by Olin to prove tort immunity where, as here, Mr. Graves’ exposure prior to the 1952 enactment of La. R.S. 23:1031.1 was significant in causing his mesothelioma. Nor can Adams shield Olin from tort liability for pre-1975 exposures in this mesothelioma case which is governed by Austin.
A.Olin Failed to Prove That Adams Provides it With Tort Immunity Because Mr. Graves’ Exposure Prior to the 1952 Enactment of La. R.S. 23:1031.1 Was Significant in Causing His Mesothelioma.
First, Olin cannot establish that Adams and the other case on which it relies, Brunet v. Avondale Industries, Inc., 99-1354 (La. App. 5 Cir. 12/5/00), 772 So.2d 974, are applicable here. Mr. Graves had continuous exposure to asbestos beginning in the 1940s, well before the Workers’ Compensation Act was expanded to cover occupational diseases in 1952. As a result of his continuous exposures to asbestos prior to 1952, Mr. Graves acquired a right to sue that could not “later be divested of that right by subsequent legislative expansion of coverage for occupational disease.” Austin, 824 So.2d at 1145. Nor was Mr. Graves’ right to sue extinguished by Olin’s acquisition of the paper mill. Indeed, the jury found that “Olin assumed the liability of The Brown Paper Mill Company, Inc. for the injuries and damages suffered by Walter T. Graves, Jr.” and Olin has not contested that finding. R. Vol. I 156. Thus, Olin cannot establish tort immunity from Mr. Graves’ claims under the Workers’ Compensation Act simply by pointing to Adams.
Olin admits as much. Olin Br. at 11. Accordingly, it attempts to escape tort liability for Mr. Graves’ exposure prior to the 1952 enactment of La. R.S. 23:1031.1 with accusations that the record is “devoid” of evidence that Mr. Graves was exposed to asbestos while working for Brown at that time, Olin Br. at 13, or of evidence that the dangerous nature of asbestos was known at that time. Olin Br. at 12. As an initial matter, Olin’s argument misstates the burden of proof. Olin’s burden was to produce evidence on all elements of its affirmative defense. Pointing to gaps in the evidence cannot help Olin satisfy its burden. Moreover, the jury heard evidence that Mr. Graves was exposed to asbestos prior to the enactment of La. R.S. 23:1031.1, that such exposure was a significant and substantial factor in causing his disease, that the dangerous nature of asbestos was well known before 1952, and that Brown failed to warn or protect its workers from the harm. The trial court properly denied the directed verdict and new trial requested by Olin for Brown.
Mr. James Moore worked “off and on pretty regular” with Mr. Graves from 1946 to 1950 at the paper mill. R. Vol. V 1077. Mr. Moore’s first job after the war was cleaning up old insulation in the recovery room at the mill. Id. Both he and Mr. Graves worked together on that job for one solid week. R. Vol. V 1079. Their job was to clean up trash and old insulation with shovels, scoops, wheel barrels, and brooms. R. Vol. V 1077-78. It was dusty work and the two men breathed the dust created from it. R. Vol. V 1078-79.
Mr. Moore explained that the old pipe insulation was left by the pipefitters who actually removed the insulation for Messrs. Moore and Graves and the other workers to clean up. R. Vol. V 1080. A paper mill runs on steam and “it’d just be unnumerable the amount of pipes you had….” Id. The steam pipes were all insulated with asbestos because, as Mr. Moore explained, that was the only insulation they used back in those days. R. Vol. V 1075-76. Mr. Moore expressed no doubt that he and Mr. Graves were exposed to asbestos while the two worked together. R. Vol. V 1082.
Mr. Exell Gewin began working at Brown in 1952. R. Vol. VI 1107, Ex. P-15 at 10. Mr. Gewin testified that he and Mr. Graves were exposed to asbestos daily at the paper mill. Ex. P-15 at 31. Gewin and Graves both worked in the pulp mill of the facility. Ex. P-15 at 11. In 1952, Mr. Gewin worked in Mr. Graves’ vicinity approximately two weeks out of the month. Ex. P-15 at 19-20. During those periods of time, Mr. Gewin saw insulators while they were “cutting asbestos or cutting insulation that would be installed on pipes” in Mr. Graves’ vicinity. Ex. P-15 at 20. Sometimes, the pipefitters or insulators would jump in and start insulating their pipe before Mr. Graves was done installing new equipment. Id. The men were also exposed to asbestos when the pipefitters would remove insulation from the pipes in order to unhook a line. Ex. P-15 at 21. He and Mr. Graves were both exposed to the dust generated from the pipefitters and insulators working above and below them. Ex. P-15 at 24. “If someone was working above you, you could be covered in dust.” Ex. P-15 at 25.
Plaintiff’s expert, Dr. Victor Roggli, is a pathologist who teaches at Duke University Medical Center in the field of Lung Pathology. R. Vol. V 943-44. Dr. Roggli testified that such exposure would be a substantial contributing factor to the development of Mr. Graves’ mesothelioma. R. Vol. V 964.
The evidence also demonstrated that the knowledge available by 1952 of the hazards of asbestos was sufficient to establish that Brown should have acted to protect its workers like Mr. Graves. Dr. Richard Lemen is an expert in epidemiology and industrial hygiene, R. Vol. VI 1119, who testified that, by 1930, the British government had conducted a large epidemiological study reporting a high incidence of asbestosis and death from asbestosis among of textile workers. R. Vol. VI 1121-23. The results of this 1930 Mereweather Report were published in the Journal of the American Medical Association in the U.S. R. Vol. VI 1127. Dr. Lemen explained that the study is highly relevant to the disease of mesothelioma because asbestosis and mesothelioma are both caused by the same agent and prevented by the same means: “The bottom line is suppress the dust, eliminate the dust, eliminate the disease.” R. Vol. VI 1134. In 1935, the first recorded case of asbestos-related lung cancer was reported by Lynch & Smith. R. Vol. VI 1140. By the late 1940s and early 1950s, epidemiologists had demonstrated that asbestos exposure also was a cause of lung cancer. Id. Case reports of pleural cancer caused by asbestos exposure were reported throughout the 1940s. R. Vol. VI 1138. In 1949, the Journal of the American Medical Association warned of the probable occupational hazard of cancer of the lung as a result of asbestos exposure. R. Vol. VI 1136. In 1952, reports of mesothelioma were published concerning workers from a Canadian asbestos mine. R. Vol. VI 1140. Indeed, as early as 1938, the U.S. Public Health Service recommended that asbestos levels be monitored and kept below certain levels. R. Vol. VI 1145.
Mr. Moore testified that Brown did not warn about the hazards of asbestos or suggest procedures to protect its workers, such as requiring that the old asbestos should be wet down before it was swept up and disposed of. R. Vol. V 1084. And when Mr. Gewin started work, he was given no instructions whatsoever by Brown concerning the dangers of asbestos or how to work with asbestos to minimize the risks. R. Vol. VI 1107, Ex. P-15 at 11.
Dr. Lemen testified, from his review of depositions of co-workers and corporate representatives in this case, that he found no evidence that Brown had “done anything to either prevent workers from being exposed or educate the workers about the potential hazards that were occurring. And, I saw no evidence that any sampling or evaluations were taken to evaluate whether or not exposure was actually occurring.” R. Vol. VI 1155. Dr. Lemen opined that Brown did not provide Mr. Graves a reasonably safe place to work prior to 1952. R. Vol. VI 1156. According to Dr. Lemen, where nothing is done to control workers’ exposure to asbestos, there exists a hazardous condition that posed an unreasonable risk of harm in the premises under the care, custody, and control of Brown during the years 1943 to 1952. R. Vol. VI 1157.
A review of this record demonstrates that the trial court properly denied the motions for new trial and judgment notwithstanding the verdict relating to Brown. Olin has failed entirely to prove its tort immunity for Mr. Graves’ injuries caused by exposure to asbestos at Brown prior to the 1952 enactment of La. R.S. 23:1031.1.
B.Olin Cannot Rely on Adams to Shield it From Tort Liability for Pre-1975 Exposures in This Mesothelioma Case Which Is Governed by Austin.
Neither did Olin establish that it is entitled to immunity from civil liability in tort based on this Court’s decision in Adams v. Asbestos Corp. Ltd., 39,952 (La. App. 2 Cir. 10/28/05), 914 So.2d 1177. Rather, the trial court’s interpretation of La. R.S. 23:1031.1 was in complete accord with the Louisiana Supreme Court’s decision in Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, which held that mesothelioma was not covered under the act prior to its amendment in 1975. In Austin, the court reversed the Second Circuit’s decision, concluding that an employee who developed mesothelioma was entitled to sue his employers. The employee had been exposed to asbestos while working for International Paper Company from 1955 to 1960 and for Arizona Chemical Company from 1960 to 1998. R. Vol. VI 1140. He alleged that his mesothelioma “was caused by exposure to asbestos and asbestos-containing materials during the course of his employment with both companies.” Id.
The court explained that “it is well-established in our law that an individual cannot be divested of an accrued property right by subsequent legislative action. ‘Once a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.’ . . . Thus, if the employee acquires a right to sue in tort for a non-covered occupational disease, he cannot later be divested of that right by subsequent legislative expansion of coverage for occupational disease.” R. Vol. VI 1145.
The court cited Callaway v. Anco Insulation, Inc., 98-0397 (La. App. 4 Cir. 3/25/98), 714 So.2d 730, for the proposition 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, 824 So.2d at 1145. It cited Gautreaux v. Rheem Mfg. Co., 96-2193 (La.App. 4 Cir. 12/27/96), 694 So.2d 977, 978, in explaining that “asbestos was not a listed substance in La.Rev.Stat. 23:1031.1 prior to 1975 such that, when it caused disease, it was covered by workers’ compensation.” Austin, 824 So.2d at 1147 n.4.
In Austin, although the Workers’ Compensation Act was amended during the time period of the plaintiff’s exposure, the court held that if the plaintiff could “prove significant pre-1975 exposures to asbestos, his cause of action ‘arose’ before the 1975 amendment to the workers’ compensation laws. Therefore, regardless of any post-1975 exposures, the subsequent amendments cannot retroactively deprive him of the vested property right to bring a tort action against the employer defendants.” R. Vol. VI 1156.
Olin suggests that the trial court erred in following Austin on this issue and that it should have relied on Adams and Brunet v. Avondale Industries, Inc., 99-1354 (La. App. 5 Cir. 12/5/00), 772 So.2d 974 instead. Olin Br. at 5-9. Yet neither Adams nor Brunet involved mesothelioma and the precise question raised here: Was mesothelioma covered under La. R.S. 23:1031.1 prior to 1975? In Austin, the Louisiana Supreme Court said “No.”
Even if Olin could establish that Brunet and Adams are applicable, those decisions conflict with the language of the statute and depart from well-established rules of statutory interpretation. In O’Regan v. Preferred Enterprises, Inc., 1998-1602 (La. 3/17/00), 758 So.2d 124, the supreme court held that the 1952 definition of “occupational disease” was meant to include “only those diseases hereinafter listed when contracted by an employee in the course of his employment as a result of the nature of the work performed.” Id. at 129 (emphasis added). The statute set out an “exclusive list,” including “diseases caused by contact with specific substances, namely the diseases of contact poisoning from enumerated sources, asbestosis, silicosis, dermatosis, and pneumoconiosis.” Id.
In interpreting the statute, the court explained:
It is well-recognized and a long-established rule of statutory construction that a statute should be interpreted as a whole to effect the legislative intent and should be construed in such way as to reconcile, if possible, apparent inconsistencies so that each part is given effect. . . . Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions or sections must be read together; each must be considered with respect to, or in the light of, all the other provisions, and construed in harmony with the whole. The intent as deduced from the whole will prevail over that of a particular part considered separately. Meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase or clause, the entire statute is to be considered.
Id. at 130 (citations omitted). Courts “are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.” Holmes v. Lee, 35,021 (La. App. 2 Cir. 9/28/01), 795 So.2d 1232, 1237; see also First Nat’l Bank of Boston v. Beckwith Machinery Co., 94-2065 (La. 2/20/95), 650 So.2d 1148, 1153.
Adams and Brunet render parts of the 1952 statute meaningless. If the former version of La. R.S. 23:1031.1(A)(1) is interpreted to include all asbestos-related diseases, then § 23:1031.1(A)(3), which specifically lists “asbestosis,” would have no meaning or effect. See Thomas v. Armstrong World Indus., 95 2222 (La. App. 1 Cir. 6/28/96), 676 So.2d 1185, 1186-87; Gautreaux, 694 So.2d at 978. The specific listing of asbestosis removes any basis for inferring that 23:1031.1(A)(1) was intended to cover all asbestos-related diseases.
Finally, the evidence presented here, particularly from Plaintiff’s renowned experts in the field of asbestos disease, is even stronger than that presented in Adams and Brunet, making clear that asbestos is not considered to be an oxygen or a metal compound, thus negating the suggestion that mesothelioma was covered under La. R.S. 23:1031.1(A)(1)(d) and (g). Plaintiff’s expert, Dr. Arnold Brody, is Vice Chairman of the Pathology Department and Medical School at Tulane University. R. Vol. IV 875. As one of the world’s leading researchers on asbestos, he testified that he had never heard asbestos referred to as an oxygen or metal compound, and pondered: “I’ve never heard that. Who would call it an oxygen compound?” R. Vol. IV 903. Professor Brody explained that a number of different minerals cause disease and they almost all contain oxygen, but the minerals are not referred to as oxygen compounds. R. Vol. V 939.
Dr. Victor Roggli is a pathologist who teaches at Duke University Medical Center and has published 75 articles in peer reviewed journals on the subject of asbestos, 18 book chapters on the topic, and a book entitled “Asbestos Associated Diseases,” the first chapter of which is Mineralogy of Asbestos. R. Vol. 943-44, 948, 951. Never in the world of medicine or science has Dr. Roggli heard asbestos referred to as an oxygen or a mineral compound. Id.
Dr. Harold Dellinger, is a Professor of Chemistry in the Patrick F. Taylor Chair of the Environmental Impact of Hazardous Waste at Louisiana State University. R. Vol. VI 1313. Dr. Dellinger testified that asbestos is more properly classified as a mineral than an oxygen compound because asbestos is not a combination of elements in “definite, definable, chemical proportions.” R. Vol. VI 1315. In addition, asbestos is not a metal compound because it is not a conductor of electricity and does not have other metallic properties. Id. The CRS Handbook of Chemistry and Physics, an authoritative source owned by at least 99% of the chemists and physicists in the world, contains a table listing 2,681 separate compounds selected on the basis of the laboratory and industrial importance. Id. Neither asbestos, nor chrysotile, nor crocidolite, nor amosite appears in that table. R. Vol. VI 1321.
Finally, Dr. Rene Dehon, Professor of Geology at University of Louisiana at Monroe, also testified that asbestos is neither an oxygen nor a metal compound. R. Vol. VI 1329-30.
Olin had the burden of proving its affirmative defense of tort immunity at trial. Olin has not established tort immunity under any version of the Workers’ Compensation Act. Consequently, the trial court properly denied Olin’s motions for new trial and judgment notwithstanding the verdict.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN THE JURY SELECTION PROCESS.
In Louisiana, the trial court has broad discretion as to the scope and extent of voir dire. Haydel v. Hercules Transp., Inc., 94 1246 (La. App. 1 Cir. 4/7/95), 654 So.2d 418, 426, writ denied, 95-1172 (La. 6/23/95), 656 So.2d 1019. Olin argues that the trial court abused its discretion when it allowed Plaintiff’s counsel to ask the potential jurors whether they “could award millions of dollars for mental anguish.” Olin Br. at 17.
Olin’s reliance for this proposition on Morgan v. Liberty Mutual Insurance Co., 323 So.2d 855, 859 (La. App. 4 Cir. 1975), writ dismissed, 325 So.2d 282 (La.1976), overruled on other grounds, Harris v. Tenneco Oil Co., 563 So.2d 317 (La. App. 4 Cir.1990), writ denied, 568 So.2d 1062 (La. 1990), is misplaced. In Morgan, the court held that questioning in voir dire cannot be used to suggest a specific amount for the verdict: “in the guise of determining whether any prospective juror had a reservation about awarding high damages, plaintiff’s counsel in voir dire examination [r]epeatedly suggested the amount of the verdict to be reached. Over objection by defense counsel, he was permitted to ask if jurors had any reservations about awarding $4 million.” Morgan thus places one specific limit on permissible voir dire to address the prejudice created when counsel suggests the amount the jury should award. As the trial court observed, R. Vol. III 659, counsel here did not attempt to suggest a specific dollar amount for the jury’s verdict, however. Rather, Plaintiff’s counsel sought only to determine whether the jury could award substantial damages, if supported by the evidence — an entirely proper inquiry. See Haydel, 654 So.2d at 426.
“[I]t is valid for counsel to determine whether a juror can act impartially or whether he should be disqualified because of some prejudice toward the litigants or the issues involved in the trial.” Id. at 426 (citing Morgan, 323 So.2d 855 at 859). Olin simply ignores Plaintiff’s right to uncover bias against awarding substantial damages for mental anguish and pain and suffering — which were plainly issues in the case. While it would have been within the trial court’s discretion to restrict the wording of the inquiry to use solely the term “substantial damages,” id., the trial court did not abuse its discretion by allowing Plaintiff’s counsel to phrase the question as he did. Moreover, when prospective jurors stated their bias against, even unwillingness to consider, a substantial award, it was absolutely proper for the trial court to dismiss them for cause because they indicated a prejudice regarding an issue in the trial. Id.
While Olin suggests that the trial court automatically removed any juror who had a negative response to this question, the trial court overruled Plaintiff’s challenge on this basis of Mr. Douglas Nielson, who actually served as the foreperson of the jury. R. Vol. IV 817. Neither were potential jurors dismissed from the panel solely for their unwillingness to award substantial damages regardless of the evidence, even though such would have been proper. In fact, only one of the individuals whom Plaintiff challenged for cause was dismissed for the single reason that she would not award substantial damages for any reason. All of the remaining excused panel members were dismissed for other, or additional, causes. Nor was Olin hampered somehow in its exercise of peremptory strikes, as it accuses. Olin Br. at 17. Indeed, of the twelve jurors, nine were accepted by both parties. Two had been unsuccessfully challenged by Plaintiff. Only one individual challenged by Olin actually served on the jury. Finally, although Olin claims that the selection process resulted in a “spoiled jury,” Olin Br. at 17, Olin has shown no prejudice. Indeed, Olin does not even contest the amount of judgment on appeal. The trial court simply did not abuse its discretion in the voir dire and jury selection process.
PLAINTIFF’S COUNSEL’S OPENING STATEMENT, SUMMATION AND REBUTTAL WERE NOT IMPROPER OR UNDULY PREJUDICIAL.
Olin alleges that Plaintiff’s counsel made several improper remarks to the jury during opening statement, summation and rebuttal, which resulted somehow in an improper verdict. Olin Br. at 17-19. “The trial judge is in a better position than an appellate court to determine possible prejudicial effects resulting from counsel’s argument before a jury. Therefore, his finding that counsel for plaintiffs’ argument was not so prejudicial as to warrant the granting of a new trial should be accorded much weight.” Temple v. Liberty Mut. Ins. Co., 330 So.2d 891, 894 (La. 1976). The trial court here properly denied Olin’s motions on this basis.
The one remark for which Olin provides citation came at the end of opening statement: “He died of malignant mesothelioma caused by asbestos exposure. At the close of the case on behalf of Walter, I will ask you to use your power as jurors in this case to hold Olin Corporation responsible for his death.” R. Vol. IV 864. According to Olin, this statement was employed to transmute the lawsuit from a survival case to a wrongful death case. Olin Br. at 18.
Viewed in context, as it must be, the isolated remark was the final sentence of an opening statement in a survival case where the evidence the jury was about to hear would end at a man’s death. Given that Mr. Graves’ injuries concluded at his death, that was a logical and fair place to conclude opening statement. Olin cites to no other remark or evidence or instruction in the record to support its claim that the jury heard a wrongful death, rather than a survival case. The damages question submitted to the jury plainly asks: “Please state the amount of damages you find to have been suffered by Walter T. Graves.” R. Vol. I 157. Olin’s allegation is unfounded and it has shown no prejudice from the isolated remark.
Even if this statement were improper, however, Olin has no basis on which to object to it now since it chose not to object at trial. Temple, 330 So.2d at 894; Sims v. Ward, 2005-0278 (La. App. 1 Cir. 6/9/06) — So.2d —, 2006 WL 1576020. Indeed, even where objection is made and sustained, appellate error still may be waived where, as here, the complaining party fails to ask the trial court for a curative instruction. Hunt v. Long, 33,395 (La. App. 2 Cir. 6/21/00) 763 So.2d 811, 819-20. Further, a general instruction from the trial court prior to deliberations that the statements made by attorneys in their opening statements and arguments are not evidence, has been found sufficient to address remarks far more inflammatory than anything cited by Olin here. Temple, 330 So.2d at 894; Sims 2006 WL 1576020. These precise instructions were plainly given below, thus curing any impropriety that Olin may have perceived after the fact.
Olin does reference other remarks allegedly made during summation and rebuttal. Olin Br. at 17-18. But Olin provides no citations to the record for its complaints and the Record itself does not contain a transcription of closing arguments. R. Vol. VI 1355-56. Where citation to the record is not made, the court may disregard the appellant’s arguments in connection with it. La. App. Ct. Uniform R. 2-12.4; Hansel v. Holyfield, 2000-0062 (La. App. 4 Cir. 12/27/00), 779 So.2d 939, 949 (striking an assignment of error under Rule 2-12.4 because appellant failed to refer by volume or page to the places in the record which contain the facts upon which the alleged error was based); Sanchez v. Viccinelli Sheet Metal & Roofing Co., Inc., 473 So.2d 335, 342 (La. App. 1st Cir. 1985), writ denied, 477 So.2d 1124 (La. 1985), citing Rule 2-12.4 of the Uniform Rules of Louisiana Courts of Appeal. (improper on appeal to quote from or refer to deposition not made a part of the record). Should Olin in the future be permitted to supplement its record with a transcription of the alleged statements, Plaintiff would seek leave at that time to respond to Olin’s allegations.
THE TRIAL COURT DID NOT COMMIT MANIFEST ERROR IN THE ADMISSION, MOSTLY WITHOUT OBJECTION, OF EVIDENCE.
“The trial court is granted a broad range of discretion when ruling on the admissibility of evidence, and evidentiary rulings shall not be disturbed on appeal absent a clear abuse of discretion.” Fussell v. Roadrunner Towing & Recovery, Inc., 99-0194 (La. App. 1 Cir. 3/21/00), 765 So.2d 373, 375, writ denied, 2000-1264 (La. 6/23/00), 765 So.2d 1042. On appeal, the complaining party must demonstrate that the “complained-of ruling was erroneous” and that “the error prejudiced the defendant.” Emery v. Owens-Corporation, 2000-2144 (La. App. 1 Cir. 11/9/01) 813 So.2d 441, 449, cert. denied, 2002-0635 (La. 5/10/02), 815 So.2d 842. Otherwise, a reversal is not warranted. Id. In the instant case, most of the evidence at issue was admitted without objection, all of it was properly admitted and none of it has been shown to have prejudiced Olin.
A.The Trial Court’s Admission, Without Objection, of Evidence Concerning Plaintiff’s Post-1952 Exposure to Asbestos Was Not Manifest Error.
After the trial was concluded and the jury ruled against it, Olin determined for the first time its belief that much of the evidence admitted at trial should not have been. Olin suggests now that any evidence “which concerned years other than those during Brown’s ownership (1943-1952) are [sic] also inadmissible.” Olin Br. at 15. But Olin cannot complain now for the first time on appeal that the trial court erred in the admission of evidence about which Olin failed to object at trial. Bordelon v. Drake, 578 So.2d 1174, 1177 (La. App. 5th Cir. 1991).
At trial, Olin never objected that Mr. Graves’ coworkers should have been prevented from testifying concerning exposures occurring after 1952. Similarly, Olin did not object to the admission of deposition testimony by its own employees, even though Olin now claims that their testimony was inadmissible because it allegedly was unrelated to the pre-1952 time frame. See Olin Br. at 15. Indeed, the only such testimony to which Olin objected at trial was that of its former employee, Dr. Henry J. Muranko, R. Vol. VI 1190, and that objection was withdrawn. R. Vol. VI 1197.
A party waives any objection on appeal to the admission of deposition testimony to which it does not object at trial. Bordelon v. Drake, 578 So.2d 1174, 1177 (La. App. 5th Cir. 1991). La. Code Evidence art. 103(A)(1) provides that appellate error may not be predicated upon a ruling admitting evidence unless “a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection.” The rule applies equally when an objection is initially made to the evidence, but is later withdrawn. Soileau v. State ex rel. Dept. of Transp. and Development of State of La., 1997-1541 (La. App. 3 Cir. 12/9/98), 724 So.2d 834, 840 (where counsel withdrew his objection to the admission of evidence, the issue was not preserved for appeal); Contractors Supply & EQ-Orleans v. J. Caldarera & Co., Inc., 98-1010 (La. App. 5 Cir. 3/30/99), 734 So.2d 755, 761 (where, after a bench conference, counsel withdrew his objection to the exclusion of testimony, the issue was waived on appeal). “The withdrawal of the objection is the same as never making it at all … .” Contractors Supply, 734 So.2d at 761.
In the instant case, Olin made no objection to most of the evidence about which it now complains and it withdrew the single objection it did make. In addition, all of the disputed evidence was relevant and admissible on the issue of Olin’s liability for its own conduct. Further, Olin has failed entirely to show that it was prejudiced in any way by the admission of such evidence. As discussed above, the jury’s verdict is fully supported by the evidence of Mr. Graves’ exposure prior to the enactment of La. R.S. 23:1031.1 in July of 1952. See supra at Section I(A). The trial court did not commit manifest error in the admission of evidence of Plaintiff’s post-1952 exposure to asbestos.
B.The Trial Court Did Not Commit Reversible Error in the Admission of Mr. Graves’ Death Certificate.
Olin suggests that the trial court committed reversible error by admitting the death certificate of Mr. Graves at trial. According to Olin, “[a]dmission of a death certificate for any means other than proof of death is error,” citing Pierre v. Liberty Indus. Life Ins. Co., 162 So. 217 (La. App. 1935). Olin Br. at 19. In fact, however, Pierre holds the opposite; the court ruled there that the trial court improperly excluded the death certificate, which had been offered to prove the decedent’s age at death. In this case, the death certificate was relevant as an official record of the date of Mr. Graves’ death — the date on which his survival damages ended. Its admission was not error.
Olin posits that the jury surely was inflamed and prejudiced by seeing the bare notation on the death certificate that the cause of death was malignant mesothelioma. Olin Br. at 19. But this reference was, at most, cumulative of the testimony at trial and completely unnecessary to the jury’s verdict. Indeed, four physicians testified at trial that Mr. Graves suffered from mesothelioma.
Where evidence is admitted that is merely cumulative of other evidence in the record, any error in its admission is harmless. Gras v. Gras, 489 So.2d 1283, 1288 (La. App. 2 Cir. 1986), writ denied, 493 So.2d 1222 (La. 1986)(admission of medical records that did not “really provide any new evidence” harmless error); Kaufman v. Sewerage & Water Bd. of New Orleans, 1999-1942 (La. App. 4 Cir. 5/3/00), 762 So.2d 644, 653, writ denied, 2000-1570 (La. 8/31/00), 766 So.2d 1279. Finally, in the face of this cumulative evidence, Olin has not and cannot show prejudice from admission of the death certificate; thus, even if its admission were in error, that error is harmless. See Emery v. Owens-Corporation, 2000-2144 (La. App. 1 Cir. 11/9/01) 813 So.2d 441, 449, writ denied, 2002-0635 (La. 5/10/02), 815 So.2d 842 (“The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case. And it is defendant’s burden to so prove.”).
- The Trial Court Did Not Commit Reversible Error in the Admission of Relevant State-of-the-Art Evidence.
Olin also complains that evidence concerning the historical development of knowledge concerning any asbestos-related disease other than mesothelioma was irrelevant and inadmissible. Olin Br. at 19-20. Olin’s argument, however, has already been considered and rejected in Louisiana and elsewhere: evidence of the development of scientific knowledge concerning all the serious health risks posed by asbestos exposure was directly relevant to the foreseeability, from Olin’s standpoint, of harm to workers like Mr. Graves. Roberts v. Owens-Corning Fiberglas Corp., 2003-0248 (La. App. 1 Cir. 4/2/04), 878 So.2d 631, 639-40, writ denied, 2004-1834 (La. 12/17/04), 888 So.2d 863.
The plaintiff in Roberts died of mesothelioma after working as a pipefitter in the defendant’s refinery. 878 So.2d at 636. The defendant acknowledged that the risk of asbestosis was known in 1927, and the risk of lung cancer was recognized in 1955. Id. The defendant argued , however, that evidence of the hazards of asbestos existing prior to the mid-1960s, when the direct link between asbestos and mesothelioma was firmly established and widely known, was irrelevant to the issues of foreseeability and duty in a mesothelioma case. Id. at 639. After reciting extensive “state-of-the-art” evidence from the record, the court held that such evidence established the defendant’s knowledge of the risk at the time of the plaintiff’s exposure: “Even if [the defendant] did not know of the exact hazard of mesothelioma, it knew that exposure to asbestos containing products could cause serious lung diseases and cancer.” Id. at 640. Noting that the evidence demonstrated no reason to treat the risk for mesothelioma differently from the risk of other asbestos-related lung diseases, the court found that the jury “could have reasonably concluded from evidence in the record that the risks for mesothelioma and other asbestos-related diseases were substantially the same.” Id. See also Allen v. Owens-Corning Fiberglas Corp., 571 N.W.2d 530, 535-36 (Mich. App. 1997)(“Because defendant had knowledge of harm from exposure to asbestos it had the duty to warn the decedent of the potential for injury even though it did not know of the particular disease that ultimately claimed the decedent’s life.”), attached hereto as Ex. 1 to Appendix; Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445, 453 (Md. 1992)(duty to warn attached when manufacturer gained constructive knowledge of “the hazard of lung disease caused by asbestos fibers” although harm sustained by the decedent “took the form of mesothelioma”), attached hereto as Ex. 2 to Appendix.
The same is true here. Plaintiff’s evidence of the “state-of-the-art” of knowledge concerning asbestosis and lung cancer was relevant to the issue of whether Olin knew or should have known of the risk posed by asbestos to a worker like Mr. Graves. In addition, the evidence was sufficient to support the jury’s finding of negligence on the question. Plaintiff’s “state-of-the-art” evidence was properly admitted in this case.
- The Testimony of Olin’s Expert Dr. Muranko Was Relevant and Admissible.
As discussed above, Olin withdrew its objection at trial to the admission of Dr. Muranko’s deposition, and thus, the matter has not been preserved for appellate review. See supra at Section IV(A). Even had Olin objected, however, the deposition testimony of Dr. Muranko, who came to work as Olin’s industrial hygienist in 1971, was plainly relevant. R. Vol. VI 1197, P-31 at 17, 22-23. Based on Dr. Muranko’s observation that Olin had no safety policies concerning asbestos and was doing nothing to protect its workers in 1971 when Dr. Muranko began working there, the jury could reasonably have inferred that Olin also had done nothing to protect or educate workers like Mr. Graves at the paper mill. P-31 at 58, 61-64. This testimony was relevant circumstantial evidence of Olin’s omissions in failing to protect its workers.
OLIN HAS NOT ESTABLISHED THAT THE JURY’S LIABILITY DETERMINATIONS ARE MANIFESTLY ERRONEOUS; THE FINDINGS SHOULD NOT BE DISTURBED.
Olin next attacks the jury’s factual findings, R. Vol. I 155-56, and complains that the jury should have found that five entities other than Brown and Olin also caused the injuries of Mr. Graves: Olinkraft, J. Graves Insulation Co., Westinghouse, Johns-Manville Corp., and General Electric. Olin Br. at 21-26. “Whether or not a person caused another’s injuries is a question of fact subject to the manifest error rule.” Emery v. Owens-Corporation, 2000-2144 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, 452, cert. denied, 2002-0635 (La. 5/10/02), 815 So.2d 842. “If a jury’s factual findings have an evidentiary basis, they must be affirmed on appeal unless manifestly erroneous or clearly wrong.” Id. A jury’s findings of fact may be set aside only where they are “clearly wrong in light of the record reviewed in its entirety.” Alexander v. Pellerin Marble & Granite, 93-1698 (La. 1/14/94), 630 So.2d 706, 710. A review of the record here reveals that the jury’s factual findings concerning the cause of Plaintiff’s injuries were not “manifestly erroneous,” but instead were supported by the evidence.
Under the pre-comparative fault principles applicable here, Olin’s liability is limited to its virile portion of any judgment. Where “alleged joint tortfeasors released from liability are actually proven to be joint tortfeasors,” a trial defendant is entitled to a virile share reduction of the jury’s damage award. Emery at 452, citing Raley v. Carter, 412 So.2d 1045, 1046 (La.1982). As the trial defendant seeking a virile share reduction, Olin had the burden of proving every element of the settling defendants’ liability at trial. Raley, 412 So.2d at 1047.
The evidence must provide a “reasonable factual basis” for imposing liability on the product manufacturer. Emery, 813 So.2d at 453. It is not sufficient to show that Mr. Graves worked with or around a manufacturer’s products. Olin must also prove that the specified products released asbestos dust or fibers that were inhaled by Plaintiff. See, e.g., Hennegan v. Cooper/T. Smith Stevedoring Co., Inc., 2002-0282 (La. App. 4 Cir. 12/30/02), 837 So.2d 96, 108-110.
In addition, any exposure to a settling party’s product must be a substantial factor in causing Mr. Graves’ illness. Torrejon v. Mobil Oil Co., 2003-1426 (La. App. 4 Cir. 6/2/04), 876 So.2d 877, 894. And, Olin was required to show that the failure of its alleged joint tortfeasors to warn Mr. Graves of the hazards of asbestos “was a substantial cause of the asbestos-related injury he ultimately sustained. …” Emery, 813 So.2d at 454. Olin failed to meet this burden.
With respect to three of the five entities, Olin has failed to make even the threshold showing that the alleged joint tortfeasors have been “released from liability.” Emery, 813 So.2d at 452. As Plaintiff noted at trial, no proof of a settlement has been entered into the record for the defendants or other entities whose names were included in the Jury Interrogatories. R. Vol. VI 1347. Such proof does not exist for three of the five entities that were not made parties to this suit and with whom Plaintiff has not in fact settled: Olinkraft, J. Graves Insulation Co., and Westinghouse. Thus, even had the jury found these companies liable, Olin would not be entitled to a virile share reduction. See Oxley v. Sabine River Auth., 94-1284 (La. App. 3 Cir. 10/19/95), 663 So.2d 497, 507-508, writs denied, 96-0064 (La. 2/28/96), 668 So.2d 357, and 95-3090 (La. 2/28/96), 668 So.2d 368 (noting that settlement with one solidary obligor reduces plaintiff’s recovery in proportion to settled party’s liability).
Further, two of these three companies are insolvent. Olinkraft and J. Graves Insulation Co. are defunct corporations from which Plaintiff has not received a settlement. Regardless of any possible liability finding, then, Olin still would have borne responsibility for 100 percent of the virile shares for these two entities. See LSA-C.C. Art. 1806 (“A loss arising from the insolvency of a solidary obligor must be borne by the other solidary obligors in proportion to their portion.”).
Just as Olin failed to establish that its alleged joint tortfeasors are “settled parties,” Raley, 412 So.2d at 1047, it also neglected to prove “every element of the settling defendants’ liability at trial.” Id. Regarding Manville, Olin offered the deposition testimony of James Halsell, the Purchasing Manager at the Paper Mill from 1972 to 1994, in an apparent attempt to prove the presence of various asbestos products, including Manville’s. R. Vol. VI 1293, Ex. D-8 at 9. Mr. Halsell testified that in early 1980s, Manville acquired the mill, but he was not certain that asbestos-containing material was still being purchased then. Ex. D-8 at 18. Mr. Halsell did not testify, and neither did any other witness, about any specific purchases or uses of Manville asbestos-containing products at any specific part of the paper mill at any time. Nor was there any evidence that Mr. Graves worked around or inhaled asbestos fibers from any Manville product. Nor, even if such evidence existed, was there evidence that Manville failed to warn Mr. Graves of the hazards of exposure to asbestos. Given this lack of evidence, it cannot be said that the jury’s factual findings as to Manville were manifestly in error.
Neither did the evidence compel a finding of liability against General Electric. Mr. Jack Gates testified that twice each year for a short period of time, he and Mr. Graves worked together on “turnarounds” as turbines manufactured primarily by General Electric were re-insulated. R. Vol. III 1021-22, Ex. P-12 (Gates Video Deposition) at 8-13. The jury could properly have determined that such exposures, when compared to the rest of Mr. Graves’ work history, were minimal, and not a substantial factor in causing his mesothelioma. Olin itself, in fact, believed those exposures to be so minimal that it moved for a directed verdict, citing in part to the fact that according to Olin’s calculation, such exposures constituted “a maximum of 8 hours per year of exposure. That is clearly insufficient … to qualify for frequent and regular exposure to respirable asbestos fibers.” R. Vol. VI 1232-33. In Emery, the court held that an expert’s testimony that “every time a person is exposed to asbestos, that exposure contributes to any asbestos-related injury from which he is subsequently diagnosed” was insufficient to establish that any given exposure was a substantial factor in causing disease. 813 So.2d at 453. The court explained that “all the experts who testified agreed the duration and intensity of the asbestos exposure were the key factors in determining the effect asbestos has on an individual.” Id.
Further, even had the jury found the “turnaround” exposures to be a substantial factor in causing Mr. Graves’ injuries, the evidence was not at all clear that General Electric was responsible. Olin claims that General Electric was liable for any harm to Mr. Graves while he was working on the turbines because General Electric had assumed garde of the turbines during the turnarounds. Olin Br. at 25-26. Because ownership generally creates a presumption of garde, however, it was Olin’s burden at trial to rebut that presumption with evidence of General Electric’s control. Zeno v. Grady Crawford Const. Co., Inc., 940858 (La. App. 1 Cir. 3/3/95), 652 So.2d 590, 591; see also Emery, 813 So.2d at 452.
This it did not do. Mr. Gates testified that even though representatives from General Electric and the insurance company were present during the turnarounds, Ex. P-12 at 16, he and the other employees took their instructions from the “lead man.” Id. at 23; P-13 at 68. When Mr. Gates was asked if the General Electric or the Westinghouse man gave any directions on how asbestos should be removed from the turbines, Mr. Gates responded: “If I did, I didn’t know it. They just told us to get it off the best way we could.” Id. In light of such evidence, the Court cannot conclude that the jury’s findings were manifestly erroneous. Clement v. Graves, 2004-1831 (La. App. 1 Cir. 9/28/05), 924 So.2d 196, 207 (“The factfinder’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.”) (citing Stobart v. State Dep’t. of Transp. & Development, 617 So.2d 880, 882 (La.1993)). The jury’s verdict should not be disturbed. See Emery, 813 So.2d at 452-53 (finding jury’s decision reasonable not to assign virile shares because defendant failed to prove that exposure to other products caused plaintiff’s illness or other premises owners knew of the danger and failed to warn plaintiff).
OLIN HAS FAILED TO ESTABLISH ANY ERROR IN THE TRIAL COURT’S CHARGE TO THE JURY.
Finally, Olin complains that the trial court erred in failing to submit an interrogatory to the jury and in failing to give an instruction relating to strict liability. Again, Olin has not troubled itself to make any record citations in connection with its issues concerning the charge; at the outset, then, the Court should not be bothered to consider them. See supra at Section III.
A.Olin Was Not Entitled to a Jury Instruction That Misstates the Law of Strict Liability.
Olin asked the trial court to charge the jury as follows: “Before you can apply the doctrine of strict liability, you must first find that, at the time of the occurrence, the unreasonable risk of harm was “foreseeable.” R. Vol. VI 135; R. Vol. I 172. Curiously, Olin based its request on Loescher v. Parr, 324 So.2d 441, 444 (La. 1975), in which the Louisiana Supreme Court held just the opposite – that, under La. Civil Code art. 2317, a homeowner was liable for the fall of a diseased tree on his property, even though “the owner could not reasonably realize [the tree’s] defective condition . . . .” The trial court below properly charged the jury on this issue with language that parallels precisely that contained in Loescher. R. Vol. I 166. Indeed, it would have been error for the court to give the requested instruction, not to refuse it.
B.The Trial Court Properly Refused to Submit a Legal Issue of Statutory Construction for the Jury to Decide.
Olin also protests the trial court’s refusal to submit to the jury the issue of whether the 1952 version of La. R.S. 23:1031.1 can be interpreted to include asbestos as an oxygen compound or a metal compound. Statutory construction, however, is an issue of law for the court’s determination, not of fact. See, e.g., Sabine Parish Police Jury v. Commissioner of Alcohol & Tobacco Control, 2004-1833 (La. 4/12/05), 898 So.2d 1244, 1247 (interpretation of a statute is properly a question of law); Hand v. City of New Orleans, 2004-0845 (La. App. 4 Cir. 12/22/04), 892 So.2d 609, 612 (“The interpretation of a statute, as in this case, is a question of law.”). The trial court properly refused to submit this legal issue as a question of fact.
Olin simply has not shown itself entitled to escape liability for this judgment. Tort immunity under the Workers’ Compensation Act is “a special or affirmative defense that the employer bears the burden of proving at trial.” Austin, 824 So.2d at 1143. Under Austin, Olin’s burden was to prove that Mr. Graves’ cause of action “accrued only after 1975, such that the employer defendants would be entitled to summary judgment and immunity from suit in tort.” 824 So.2d at 1155. Olin fell short of the mark. It did not prove immunity from liability in tort where, as here, Mr. Graves’ exposure prior to the 1952 enactment of La. R.S. 23:1031.1 was significant in causing his mesothelioma. And it did not prove immunity for pre-1975 exposures in this mesothelioma case which is governed by Austin. Finally, Olin did not prove that the “tsunami” of trial irregularities described in its Brief amounts in reality to anything more than a mud puddle largely of Olin’s own making. The judgment of the trial court should be affirmed.
1Allen v. Owens-Corning Fiberglas Corp., 571 N.W.2d 530, 535-36 (Mich. App. 1997)
2Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445, 453 (Md. 1992)
- ↑ The relevance of this state-of-the-art evidence to the negligence issue is addressed in further detail infra at Section IV(C). Of course, evidence of this knowledge was unnecessary to support the judgment, which also includes a finding against Brown based on La. Civil Code art. 2317. R. Vol. I 155-56.
- ↑ Ms. Laura Boyte, R. Vol. II 464-65.
- ↑ Mr. Gary Blackwelder was dismissed after he admitted bias against a case, such as this one, brought by an employee. R. Vol. II 416, 460-61. Gina Edmundson believed that an employer should not be held liable unless actual knowledge is proven. R. Vol. III 501-03, 589-91. Laronda D. Carter confessed her bias against a case in which damages were sought for injuries to a man who had already lived past the “threescore and ten” that the “Bible promises us….” R. Vol. III 572, 574, 591, 593. Mr. James Traweek was excused because of his admitted bias in favor of the paper mill, which he described as a “leader in the community.” R. Vol. III 514-15, 520, 569, 593-99. Mr. Traweek spoke so highly of the paper mill and so often that Olin’s counsel could not contain his delight, joking that he wished to add Mr. Traweek to the witness list, observing that “[m]y biggest regret was there were only five other potential jurors sitting where they could hear.” R. Vol. III 594. Ms. Susan Beene expressed her frustration with lawsuit “abuse” and admitted her bias toward the employer. R. Vol. III 629, 633, 647, 649, 712. Judy Murray would have been unable to follow the law on numerous issues, including joint and several liability and strict liability, among others. R. Vol. III 646-47, 649, 670-72, 676-77, 713. Sophie Bailey described damages for mental anguish as “stupid” and confessed her bias in a case governed by a preponderance of the evidence standard, as opposed to the higher burden of proof used in criminal cases, of which she approved. R. Vol. III 679, 682-83, 685-86, 688-89, 714-15. William Finkbeiner had a strong problem with the law of strict liability, which he opposes. R. Vol. IV 776-81, 821. Toni Savage admitted from the start her bias in favor of the employer and also expressed doubt about her ability to hold a company liable for conduct occurring decades ago. R. Vol. IV 771-72, 782-83, 791, 823-24.
- ↑ Carolyn Bush, R. Vol. II 324-25; Lillian Ann Drummer, R. Vol. II 325; Laura Conwell, R. Vol. II 326-27; Melvin Hannon, R. Vol. II 330-31; Marjorie Blockson, R. Vol. II 459; Lakesha Bass, R. Vol. III 594; Linda A. Wallace, R. Vol. III 713; Phyllis Johnston, R. Vol. III 715; Mary D. Ellis, R. Vol. IV 817.
- ↑ Douglas Nielson, R. Vol. IV 817; Joshua McMillan, R. Vol. IV 823.
- ↑ Paula Nelson, R. Vol. IV 825.
- ↑ Olin cites Temple v. Liberty Mut. Ins. Co., 316 So.2d 783 (La. App. 1st Cir. 1975) as a case in which “reversal of the damages award was based upon counsel’s unfounded appeal to prejudice and sympathy.” Olin Br. at 18 n.14. But the First Circuit’s opinion was reversed on the very point for which Olin cites it.
- ↑ In Temple, “Plaintiffs’ counsel, during the course of his rebuttal argument to the jury, made outright appeals to prejudice against defendant insurer, characterizing it as soulless and devoid of feeling, charging unfairness and oppression in its dealing with plaintiffs, and even suggesting to the jury that it could punish the insurer through its verdict.”
- ↑ In Sims, the “plaintiffs assert that defense counsel presented Sims as a rich, successful, lying, vengeful personal injury trial lawyer who knew how to fabricate claims in lawsuits in order to get a big award that the jurors/taxpayers would have to pay.” Sims v. Ward, 2005-0278 (La. App. 1 Cir. 6/9/06) — So.2d —, 2006 WL 1576020.
- ↑The trial court charged the jury here as follows: The statements and arguments made by the attorneys are not evidence. In the opening statements, the attorneys were permitted to tell you the facts they expected to prove. In closing arguments, the attorneys were permitted to present, for your consideration, their contentions regarding what the evidence has shown or not shown, and what conclusions they think may be drawn form the evidence. You must distinguish between what counsel may have said and the evidence upon which those arguments are based.
- * * *
The opening statements and the closing arguments are not to be considered as evidence. R. Vol. I 159.
- ↑ Olin’s counsel specifically voiced “no objection” to admission of the deposition testimony of Mr. Jack Gates, R. Vol. V 1021-22; and of Mr. Exell L. Gewin, R. Vol. VI 1106-07. Nor did Olin object to the trial testimony of Mr. James Moore, R. Vol. V 1068. Indeed, Olin itself questioned the gentlemen about Mr. Graves’ exposure to asbestos at the paper mill after 1952! R. Vol. V 1021-22 (Mr. Jack Gates), Ex. P-13 at 29-59 ; R. Vol. VI 1106-07 (Mr. Exell L. Gewin), Ex. P-16 at 19-50; R. Vol. V 1086-1090 (Mr. James Moore). In its own case in chief, Olin read the deposition of the plants’ purchasing agent – Mr. James Donald Halsell, Sr., who testified at length about events at the plant after 1952. R. Vol. VI 1293; Ex. D-8.
- ↑ Olin made no objection to the testimony of Dr. Richard Henderson, R. Vol. VI 1175; or Dr. Leonard Krause, R. Vol. VI 1197; or Ms. Dorothea Brueggeman, R. Vol. VI 1227.
- ↑ Olin initially objected to Dr. Muranko’s testimony for the stated basis that he had first come to work for Olin after the time that Olin had transferred interest in the paper mill at which Mr. Graves worked. R. Vol. VI 1189. Next, Olin’s counsel approached the bench to point out the specific portions of the depositions they found objectionable. The trial court carefully considered each of Olin’s objections, and ordered that many portions of the deposition be excluded. R. Vol. VI 1191-97. The remainder of Dr. Muranko’s deposition was read to the jury, and Plaintiffs moved the deposition into evidence. R. Vol. VI 1197. Olin’s counsel responded plainly: “No objection.” Id.
- ↑ Dr. Victor Lloyd Roggli, a pathologist at Duke University Medical Center, testified that Mr. Graves had pleural mesothelioma caused by exposure to asbestos. R. Vol. V 954, 957. Dr. William D. Smith, Mr. Graves’ treating physician in West Monroe testified that he and Dr. Lattuada, Mr. Graves’ oncologist, had diagnosed Mr. Graves with mesothelioma caused by asbestos exposure. R. Vol. V 992, 994. Dr. Maxwell, a Louisiana board certified pathologist, also testified that Mr. Graves died of mesothelioma, caused by his exposure to asbestos. R. Vol. V 996, 1001, 1004. And, finally, Dr. Trey Zizzi, a West Monroe general surgeon who operated on Mr. Graves, testified that he suffered from malignant mesothelioma caused by asbestos exposure. R. Vol. V 1022-23, 1041-42.
- ↑ Olin also has made the same claim concerning “Anco Insulations, Asten Group, AP Green Industries, Eagle Incorporated, Garlock, Monroe Rubber and Gasket, Process Insulators, Branton Insulations, Riley Stoker, Harbison & Walker, Babcock and Wilcox and Combustion Engineering.” Olin Br. at 24. Olin provides no record citations at all to support a liability finding against these entities; thus, the claim should be dismissed without further consideration. See supra Section III.
- ↑ Indeed, it is well known that Manville began placing warning labels on its products as early as 1964. See Borel v. Fibreboard Paper Prods. Corp. , 493 F. 2d 1076, 1104 (5th Cir. 1973).
- ↑ One of the turbines was manufactured by Westinghouse; the rest were General Electric. R. Vol. III 1021-22, Ex. P-13 (Gates Discovery Deposition) at 26. Again, Westinghouse is not a settled party, so whatever liability it may have had would not reduce the judgment against Olin. See supra.