Thursday, March 22, 2012

Hughes v. Olin Corp., 856 So.2d 222 (La.App. 2nd Cir. 2003)

Facts of the Case

Hughes was diagnosed with asbestosis in 1990. In April 2000, he visited his physician after experiencing shortness of breath. The physician believed that Hughes had mesothelioma, and Hughes underwent a thorascopy later that month. The post-operative diagnosis from this procedure was probable malignancy, mesothelioma or adenocarcinoma. A further examination of the biopsy revealed the presence of adenocarcinoma. A subsequent examination by a different pathologist revealed a different diagnosis, malignant epithelial mesothelioma. The date he learned of this diagnosis was June 9, 2000.

The Procedural Posture of the Case

Hughes filed suit against numerous companies, including Olin Corporation (Olin) on May 2, 2001. Olin filed an exception of prescription, contending that prescription had begun no later than the date of the thorascopy. The court granted this exception, and Mrs. Hughes appealed.


Was Hughes required to file suit within one year of the date of the thorascopy?




When an exception of prescription is raised, the party raising it bears the burden of proof. However, when it is clear that prescription has run from the face of the petition, the plaintiff bears the burden of showing that the claim has not prescribed. A delictual action, such as the one involved in this case, is subject to liberative prescription of one year, “which commences to run from the date the injury or damage is sustained.” Damage is considered sustained “only when it has manifested itself with sufficient certainty to support accrual of a cause of action.”

However, there are exceptions that the courts have crafted in order to “soften the occasional harshness of prescriptive statutes.” One of these doctrines is commonly known as contra non valentem, which means that prescription does not run against a person who could not bring his suit. There are four categories present under this doctrine, and the fourth category (and only relevant one for the purposes of this case) is known as the discovery rule. The discovery rule provides “that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. The plaintiff’s ignorance of the facts upon which his cause of action is based cannot be willful, negligent or unreasonable.” Further, an injured party has constructive notice when he possesses “information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry.” The Louisiana Supreme Court stated in Boyd v. BBC Brown Boveri: “When prescription begins to run depends upon the reasonableness of a plaintiff’s action or inaction . . .”

In the court’s words:

Olin argues on appeal that Mr. Hughes acted unreasonably in delaying the filing of his lawsuit for more than one year after he was told that he probably had lung cancer and that it was suspicious for mesothelioma. It is contended that Mr. Hughes had sufficient knowledge of his cause of action when Dr. Sarama first suspected that Mr. Hughes had mesothelioma. However, such a contention misses the pint that at the time Mr. Hughes was first told that he probably had lung cancer that was suspected to be mesothelioma, he still did not definitely know whether he had lung cancer, and, if so, whether it was lung cancer associated with asbestos exposure (mesothelioma) or lung cancer of a different etiology such as smoking. He did now have constructive, much less actual, knowledge of his cause of action at that time.

. . . Under such circumstances, it was not unreasonable for Mr. Hughes to delay bringing suit until May 4, 2001, which was within one year from June 9, 2000, the date on which he learned that he had mesothelioma. Accordingly, the trial court was clearly wrong in granting Olin’s exception of prescription.

Thus, the court reversed the judgment granting Olin’s exception of prescription and remanded to the trial court for further proceedings.

Thursday, March 15, 2012

Thibodeaux v. Asbestos Corporation Limited, 976 So.2d 859 (La.App. 4th Cir. 2008)

Facts of the Case

The Thibodeauxs (plaintiffs) filed suit against multiple defendants, alleging that they had suffered damages as a result of their exposure to asbestos. Namely, a member of the family, Marie Thibodeaux (decedent), had previously passed away due to mesothelioma; the defendants named in the lawsuit were premises owners, employers, manufacturers, and suppliers of asbestos-containing products.

The plaintiffs’ petition alleged that decedent contracted mesothelioma due to exposure to asbestos that was on both her father and husband’s articles of clothing when they returned home from work. Furthermore, they alleged that decedent was exposed to asbestos while she lived in the Windmill Mobile Home Park and while she was employed as a nurse at two hospitals in New Orleans, one of which was Charity Hospital. The plaintiffs alleged that Eagle Asbestos & Packing Company (Eagle) was responsible for selling, installing, and removing asbestos products at these two hospitals.

The Procedural Posture of the Case

Eagle and its insurer, OneBeacon, filed a motion for summary judgment in the district court, arguing that the plaintiffs could not prove that Eagle supplied or used any asbestos-containing products at either site and that decedent’s exposure to Eagle’s products was not a substantial factor in causing her mesothelioma. The plaintiffs filed an opposition to this motion and submitted evidence which allegedly showed the existence of a genuine issue of material fact.

At the hearing for this motion for summary judgment, the court ordered the plaintiffs to “supplement their opposition with evidence that Mrs. Thibodeaux was exposed to asbestos-containing materials manufactured, supplied, or installed by Eagle . . .” The plaintiffs submitted correspondence to the court that they would not present any additional evidence other than that which was already submitted to the court with their original opposition. The court granted this motion for summary judgment, and the plaintiffs appealed to the Fourth Circuit.


Did plaintiffs meet their burden of proof in order to defeat the motion for summary judgment?




Article 966 of the Louisiana Code of Civil Procedure governs summary judgments. Article 966(B) states that “a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file . . . show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Article 966(C)(2) states that the “burden of proof remains on the movant to show that no genuine issue of material fact exists . . . if the movant will not bear the burden of proof at trial . . . [he must] point out that there is an absence of factual support for the claim.” Furthermore, the court states that summary judgments are favored, but “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponents favor.” When considering a motion for summary judgment, the trial court cannot make credibility determinations or inquire into the merits of the issues raised.

The plaintiffs argued that the defendants failed to discredit the causal relationship between asbestos exposure and mesothelioma and the evidence presented demonstrated genuine issues of material fact. In support of their arguments, they cited two cases: Torrejon v. Mobil Oil Co. and Grant v. American Sugar Refining Inc.

The court was able to differentiate both of these cases from the plaintiff’s case. For Torrejon, the court pointed out that “the standard in an asbestos case was [not] that ‘any’ exposure was sufficient to prove causation.” Torrejon involved an admiralty tort claim brought under the Jones Act, which calls for different legal standards than other tort actions.

The plaintiffs in Grant were able to present detailed evidence about how Mr. Grant was exposed to asbestos and which defendants’ products were present at the time of exposure. This satisfied their burden of proof; in an asbestos case, the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.

The plaintiffs in Grant were able to accomplish this by submitting Mr. Grant’s employment records which placed him at the job site where the alleged exposure took place, and he also submitted a receiving report which named Eagle, also a defendant in the Grant case, as the contractor who was hired to repair insulation and insulate condensate lines. Eagle argued that the plaintiffs needed to prove a specific exposure to asbestos. The court held that this evidence was enough to create a genuine issue of material fact and defeat the motion for summary judgment. The Grant plaintiffs also submitted more evidence, although it was not required to create a genuine issue of material fact.

The Thibodeauxs were unable to satisfy their burden of proof, as the only evidence they provided regarding the alleged exposure to products is that at some point in time between 1959 and 1984 (and decedent only worked at the hospital from 1963-66), Eagle was one of several suppliers of asbestos-containing products at Charity Hospital. The Thibodeauxs could not supply any evidence that the asbestos was used at the Hospital while she was there, nor did the plaintiffs submit any evidence that she was actually exposed to asbestos-containing products from Eagle while she was at Charity Hospital.

The Thibodeauxs could only provide one witness and even he could not remember the dates when Charity Hospital ordered Eagle products. Further, he could only recall one time when Eagle actually performed a contract at the hospital. Unfortunately for the plaintiffs, this contract was allegedly performed between 1975-80, well after decedent’s tenure at Charity Hospital.

Because of this lack of factual support for one or more elements of the claim, the grant of summary judgment was affirmed.

Friday, February 17, 2012

Vodanovich v. A.P. Green Industries, et al., 869 So.2d 930 (La.App. 4 Cir. 2004)

Facts of the Case

Mr. Vodanovich was a longshoreman from 1948 until 1986. As a part of his duties, plaintiff loaded and unloaded ships at various wharves along the Mississippi River in the New Orleans area. While working for T. Smith & Sons, plaintiff allegedly loaded sacks of raw asbestos onto barges. While plaintiff was performing his job duties, various contractors performed maintenance on the vessels.

In November 2001, Vodanovich was diagnosed with malignant mesothelioma, and he died in May 2002. Before his death, he filed suit against multiple defendants, including those who performed maintenance work on the ships.

The Procedural Posture of the Case

The defendants filed motions for summary judgment, contending that there was no connexity between their actions and the plaintiff’s injury and that plaintiff could not prove exposure to asbestos. The trial court granted this motion, and the plaintiff appealed to the Fourth Circuit.


Did the plaintiff present enough evidence to defeat a motion for summary judgment?




Article 966 of the Louisiana Code of Civil Procedure governs summary judgment proceedings. In order to win on a motion for summary judgment, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, [must] show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law.” The moving party has the burden of proof when filing a motion for summary judgment and must prove that there is no genuine issue of material fact in the case.

In order to prove the lack of material facts, the movant must show that there is “an absence of factual support for one or more elements essential to the claim.”

If the moving party meets this standard, the burden shifts to the non-moving party to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial.” The non-moving party cannot do this by resting on the allegations of his pleadings; he must set forth specific facts. If the non-moving party fails to meet his burden, then the movant is entitled to summary judgment.

In order for a plaintiff to have a defendant’s motion for summary judgment denied in an asbestos case, “he must show, by a preponderance of the evidence, that he was exposed to asbestos from the defendant’s products, and that he received an injury that was substantially caused by that exposure.” If there are multiple causes of injury, then a defendant’s conduct constitutes a cause if it is a substantial factor. Therefore, in asbestos cases, “the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.”

Unfortunately, Vodanovich was unable to meet this burden. While he alleged that he was exposed to raw asbestos, he was unable to show specifically which contractors performed maintenance work on the ships he worked on. Furthermore, he could not produce any witnesses capable of naming any of the specific asbestos-containing products used at his job site.

As the court put it:

Under Louisiana law, the plaintiff bears the burden of proving that the defendants’ conduct caused asbestos exposure, and that the conduct was a substantial contributing factor of the plaintiff’s injury. In the present case, the plaintiff has failed to establish any direct or circumstantial evidence of exposure to asbestos fibers released by the defendants’ activities. The plaintiff testified that he was never engaged in any of the defendants’ work. He also could not recall the names of any of the companies performing insulation work on any of the vessels he worked in and around nor could he recall what materials they were using or what things they were insulating. The record lacks any evidence that plaintiff was exposed to any asbestos fibers as a result of any repair work by defendants, sufficient to warrant the inference that plaintiff was exposed to asbestos fibers released by the defendants’ activities.

Tuesday, February 7, 2012

McAskill v. American Marine Holding Company, et al., 9 S0.3d 264 (La.App. 4 Cir. 2009)

Facts of the Case

The plaintiff, Neil McAskill, filed a claim for personal injuries for his contraction of mesothelioma while working at American Marine’s facility. Two of the defendants in this case, Eagle, Inc. and Branton Insulations, Inc., moved for summary judgment in the trial court. Plaintiff opposed this motion and produced nine individual pieces of evidence. This evidence included company documents, depositions and testimony, and affidavits of witnesses in the case. The defendants argued that none of this evidence could show that the plaintiff was exposed to their asbestos products “by way of sale, distribution, and/or installation.”

The Procedural Posture of the Case

The Trial Court granted the defendants’ motion for summary judgment. The plaintiff appealed to the Fourth Circuit.


Was the evidence produced by the plaintiff enough to raise a genuine issue of material fact, and thus, defeat the motion for summary judgment?




Louisiana Code of Civil Procedure Article 966 states that the standard of review for summary judgment is whether there exist genuine issues of material fact. Furthermore, any doubt must be resolved in the favor of the party opposing the motion. Here, the plaintiff argued that he presented evidence that a genuine issue of material fact existed, and because of that, the case should be decided by the trier of fact.

Some of the important testimony in this case came from Robert Honold, who testified that Eagle supplied American Marine with pipe insulation and that he was in charge of phasing out the insulation which contained asbestos. Furthermore, the plaintiff had entered into evidence a letter from Fred Schuber, the President of Eagle, which indicated that their insulation products contained asbestos and it would take some time to phase those products out in favor of products without asbestos. The letter also indicates that Eagle had distributing rights for some products made by Pabco Manufacturers. The record also contained a document from Fibreboard, a manufacturer of Pabco, which noted that asbestos containing products were being phased out; it did not mention any potential health effects of asbestos. The plaintiff’s wife testified in her affidavit that she worked in American Marine’s accounting department, and she recalled processing invoices from Branton Insulations. Lastly, plaintiff testified that he was exposed to asbestos by working around asbestos containing products and applying insulation. Eagle argued that this was based upon circumstantial evidence, and Branton argued that the plaintiff needed to prove exactly what the corporate offices of the defendants actually knew.

Despite these arguments, the court stated that this was not the test for summary judgment. All that the plaintiff had to do was present evidence “that permits a reasonable mind to conclude that Eagle and Branton sold asbestos containing products to American Marine.”

The court went on to discuss Thibodeaux v. Asbestos Corp. Limited, et al. which held that plaintiff must produce evidence that “asbestos was used by the defendant” while the plaintiff was employed, and if asbestos was present, the plaintiff must also prove that he was exposed to this asbestos. The court decided that the plaintiff had met his burden in this case, as he had presented evidence to “substantiate that he was actively engaged in working with and actually handling asbestos insulation.”

Another case cited by the court was Vodanovich v. A.P. Green Industries, Inc., which held that the plaintiff only had to prove that “the defendant’s asbestos-containing product was a substantial factor in causing his alleged disease. This burden can be met by . . . showing that he was actively working with asbestos containing materials . . .” because “medical science has proven a causal relationship between asbestos exposure and mesothelioma above background levels. Thus, such asbestos exposure is a causative factor in producing the disease.”

Thursday, January 19, 2012

Degruy v. Jenkins, et al., 863 So.2d 693 (La.App. 4 Cir. 2003)

Facts of the Case

In May 1997, Tabitha DeGruy filed a petition for damages against ABC Insurance and Robert Jenkins (relator) on behalf of her minor child. This petition contained a notation to hold service.

On approximately April 20, 2000, the plaintiffs requested citation of the petition via a letter addressed to the Clerk of Court and enclosed a $30.00 check to cover the cost. The plaintiffs also filed into the record a Request for Notice. The Clerk’s office apparently received the letter on April 25, 2000, but service was never effectuated.

Nothing else occurred in the case until about April 17, 2003. On approximately that date, the plaintiffs filed a notice to take relator’s deposition on May 13, 2003. On May 13, 2003, plaintiffs again requested service on relator.

After these filings, relator filed a rule to show cause why the matter should not be considered abandoned as of April 25, 2003. He argued that the notice of deposition filed on April 17, 2003, could not be considered a step in the prosecution of the case, as it was not served on all parties and the deposition was not going to take place within the 3 year prescriptive period. Plaintiffs argued that the filing of notice of deposition and service constituted a step in the prosecution of the action.

The Procedural Posture of the Case

The Trial Court denied the motion to dismiss for abandonment. The relator appealed this judgment.


1. Did the Plaintiffs treat this case as abandoned?

2. Did the filing of the Notice of Deposition constitute a step in the case?


1. No.

2. Yes.


Louisiana Code of Civil Procedure Article 561 governs abandonment. Art. 561, subsection A, sets the general rule of abandonment, stating that: “An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years…” Subsection B specifies what is considered a step in the prosecution of a case, namely “any formal discovery as authorized by this Code and served on all parties whether or not filed of record . . . shall be deemed to be a step in the prosecution or defense of an action.”

The court determined that the plaintiffs’ requests for service constituted a step in the prosecution of the case. The reasoning behind the decision was not whether service was made; instead, the court focused on the fact that a request for service was made in the first place. This action shows an intention to not abandon a case, and this reasoning was supported by other jurisprudence. Specifically, the court in Department of Transportation and Development v. Waste Management stated that the step did not actually need to move the case forward; instead, the plaintiff must intend to “hasten the matter toward judgment” by taking a step in the prosecution of the action.

Furthermore, the holding of Brister v. Manville stated that “A notice of deposition served on the adverse party by mail is formal discovery.” While the court notes that the plaintiff improperly served the discovery to the relator, it affirms that this does not vitiate the effect of the action. Again, they state that the intention of the plaintiff is the key here; if there is no intention to abandon, courts will generally be reluctant to consider a case abandoned if steps, even technically or procedurally improper ones, are taken.

The court also noted in this case that the relator waived any argument that the case was abandoned when he answered the lawsuit on September 8, 2003, and when he answered discovery three days later.

Thursday, December 29, 2011

Rando v. Anco Insulations Inc., et al, 16 So.3d 1065 (La. 5/22/09)

Facts of the Case

Ray Rando was a pipe-fitter who worked for both Jacobs Construction, Inc. (JCI) and Parsons Infrastructure & Technology Group (Parsons) in the early 1970s. He alleged that while he was employed by these companies, he was exposed to asbestos. As a result of this exposure, he contracted mesothelioma in 2005. He filed suit against these companies as well as other employers, premises owners, and manufacturers of asbestos-containing products soon thereafter. Against JCI and Parsons, he alleged onlooker exposure to asbestos, as insulators who were not employees of either company were using the asbestos-containing products at the job sites.

The Procedural Posture of the Case

At the Trial Court level, the defendants motioned for summary judgment, arguing that the exclusivity provision of the Louisiana’s Workers Compensation Act (LA RS 23:1031.1) barred Rando’s tort claims against them. The Trial Court applied the 1952 version of the Louisiana’s Workers Compensation Act (LA RS 23:1031.1), the law which was effective at the time of Rando’s exposure. Subsection A contains a list of occupational diseases which are covered under the Act. Also, Subsection F states “the rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this chapter shall be exclusive of all other rights and remedies of such employee . . .” The court held that because mesothelioma was not included in the list of diseases under the 1952 version of the Act, the tort claims made by Rando were not barred.

JCI and Parsons appealed, arguing that the trial court erred in its judgment and that the claims were perempted. They argued that actions involving deficiencies in design, supervision, or construction of improvements to immovables were subject to a 10 year peremptive period, and that this 10 years had already elapsed.

The Appellate Court affirmed the Trial Court’s decision, holding that mesothelioma was not a covered occupational disease as contemplated by the 1952 version of the Act. Further, the court said that asbestos was not a covered substance that caused an occupational disease. Therefore, an employee could assert tort claims against his employers for contracting mesothelioma, as it did not fall under exclusivity provisions.

Further, the court held that these claims were not perempted because JCI had ultimate control of the construction project at the time of Rando’s exposure. The Court also held that the action had not been perempted, as the immovable improvements were within the control of JCI.


1. Is mesothelioma an occupational disease under the 1952 version of the Louisiana Workers’ Compensation Act such that employers are immune from suit for asbestos exposures suffered by their employees between 1952 and September 1, 1975 (the effective date of the revised compensation act)?
2. Was this claim perempted?
3. Was JCI liable for Rando’s mesothelioma?


1. No, mesothelioma is not an occupational disease according to the 1952 Act, and therefore, employers are subject to suit by mesothelioma claimants for asbestos exposures occurring on their premises prior to 1975.
2. No.
3. Yes.


Interpreting the 1952 Act
In order to determine if mesothelioma was considered an occupational disease under the 1952 version of the Louisiana Workers’ Compensation Act, the Louisiana Supreme Court first turned to the rules of statutory interpretation. If the words of the law are unclear, those words must be given the meaning “that best conforms to the purpose of the law.” Further, the Court stated that the history of the movement for workers’ compensation must be taken into account when trying to ascertain the meaning of these laws. Historically, the court liberally applies this law, but the immunity provisions are narrowly construed. Furthermore, early decisions regarding this Act stated that the purpose of this act was to provide a sort of social insurance to employees who were injured and unable to work, as they were unlikely to prevail in any tort claims in those days. Originally, the Act was meant to cover work-related accidents, but as time passed, judicial interpretation of the statute began classifying occupational illnesses as “accidents” for the purposes of the statute. This judicial interpretation was codified into law in 1952, and all covered occupational diseases were specifically listed.
The 1952 version of the Act clearly broadened its coverage, but it unambiguously states that it only applies to the occupational diseases which are clearly listed in the statute itself. Because of this language and the fact that neither mesothelioma nor asbestos are listed, they are not included in the coverage of the Act. While the Act does list asbestosis as an occupational disease, it was the only disease under the Act with a known connection to asbestos exposure. In 1952, it was unknown that mesothelioma also resulted from asbestos exposure, so interpreting the 1952 version in such a way as to include mesothelioma would be against its intended purpose and the schedule in the law itself. Further, it was clear that the legislature intended to change this law in 1975 when coverage was broadened even further, which supported the meaning argued by Rando.


The Trial Court found that peremption did not apply because the construction in this case was in JCI’s possession or control as “owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death . . .” JCI appealed on the grounds that this exception enumerated by the lower court only applied to those having long-term control of the property. The elements of the peremptive period were met, as this was an improvement to immovable property and the suit was filed more than 10 years after this improvement was completed and occupied. Because of this, Rando had to prove that the exception applied by proving that JCI was in possession or control of the improvement and that the injury occurred while they were in control.

The Louisiana Supreme Court focused on the use of the word “otherwise” in the statute, which indicates an inclusive interpretation. Because of this word, contractors are not excluded from this exception. The court determined that Rando’s injury occurred when he was exposed to asbestos, which satisfied the injury element of the above exception. The court also determined that the words “possession or control” were indicia of one who has custody. This entity does not necessarily have to be the owner of the immovable. Further, even though the owner may provide contract specifications or have some level of control over the improvement’s construction that does not determine whether the owner is actually in possession of the improvement. Here, the project was turned over to JCI, and it was responsible for all aspects of this project, which supported the Trial Court’s conclusion that they were in possession or control of the project.


In order for JCI to be found liable, five elements had to be proven. First, the defendant had a duty to conform his conduct to a specific standard of care. Second, the defendant failed to conform his conduct to that standard. Third, the defendant’ breach of the duty was the cause-in-fact of the plaintiff’s injuries. Fourth, the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries. Fifth, the plaintiff must have suffered actual damages. (The second and fifth elements will not be discussed as they have clearly been met.)

The Court found that there was a duty in this case, as an employer has the duty to furnish employment which is reasonably safe for the employees therein. Here, the court stated that because asbestos was known to be harmful at that time, JCI had a duty to protect their employees, including Rando, from asbestos exposure. Even though it was not yet known that there was a causative link between asbestos exposure and mesothelioma, asbestos was still considered dangerous because it caused asbestosis, a covered occupational illness.

In order to prove cause-in-fact in an asbestos case, the plaintiff must show that he was exposed to asbestos and he received an injury that was caused by that exposure. Here, Rando was able to show records and expert testimony that tended to prove that asbestos was used in the pipes that Rando worked with. However, in asbestos cases, the plaintiff must also prove that the exposure to the product complained of was a substantial factor in the cause of the injury. In other words, the plaintiff must prove that the exposure was prolonged and not fleeting. Here, Rando testified to seeing clouds of dust at the work site, which indicates a large concentration of asbestos particles. Further, expert testimony indicated that as an onlooker, he may have suffered greater exposure than the person actually working with the asbestos-containing product.

As for legal cause, the plaintiff must prove that the risk of the harm which eventually occurred was within the scope of the defendant’s duties to the plaintiff; essentially, he must prove that the risk was foreseeable. Here, it is clear that there were studies and standards which identified asbestos as a potentially harmful substance that employers must guard their employees against. By 1971, it was clear that asbestos was harmful, and it was also clear that onlookers were also at risk of exposure.

Tuesday, December 20, 2011

Bozeman v. Union Carbide Corp.,
70 So.3d 169 (La.App. 2 Cir. 6/22/11)

Facts of the Case

Jerry Bozeman was employed as a fireman for the city of Shreveport from 1965 until his retirement in 1998.  The fire station in which he worked, specifically Fire House No. 8, was constructed in the 1920s.  Allegedly, many asbestos containing products were utilized in the construction of the building; the building was also apparently in a chronic state of disrepair, which caused Mr. Bozeman to be constantly exposed to asbestos.  Further, Mr. Bozeman was also allegedly exposed to the substance from the fire hoses that they used, which were insulated with asbestos.

In August 2004, Mr. Bozeman was diagnosed with diffuse malignant mesothelioma, demoplastic type.  He died from this very condition in February 2005.  His sons, Corey and Matthew Bozeman, filed suit in August 2005 for wrongful death damages as well as a survival action claim against the City of Shreveport as well as other manufacturers and suppliers of the asbestos-containing products.  However, the only relevant defendant for the purposes of this summary is the City.

The Procedural Posture of the Case

            After the suit was filed, the City filed a motion for summary judgment, alleging that the plaintiffs’ claims fell under the Louisiana Workers’ Compensation Act; they also filed exceptions of a lack of subject matter jurisdiction and no cause of action.  The Court rendered its judgment in May 2007, denying the motion for summary judgment and the exception of lack of subject matter jurisdiction; however, the exception of no cause of action was granted as to their claims for wrongful death and non-intentional torts allegedly committed by the City.

            In June 2009, the plaintiffs filed a motion in the trial court to have the judgment made in 2007 reconsidered.  The plaintiffs alleged that since the judgment was made, the law had changed due to the Supreme Court’s ruling in Rando v. Anco Insulations, Inc., which ruled that mesothelioma was not covered under the pre-1975 version of the Louisiana Workers’ Compensation Act as an occupational disease.  Therefore, the judgment had been effectively overruled, according to the plaintiffs.  This motion was denied by the court.

            After this, the plaintiffs filed a motion to have the 2007 judgment designated as final for the purposes of appeal, which the trial court granted in 2010.  The plaintiffs then appealed the judgment to the Louisiana Second Circuit Appellate Court to reconsider the 2007 judgment. 


1.  Was the plaintiffs’ appeal timely?
2.  Does the holding of the Rando case apply retroactively to the case at hand?


1. Yes.
2. Yes, the Rando case applied retroactively, and the judgment of the trial court was reversed.

Timeliness of the Appeal

            The court determined that the appeal in this case was timely.  According to Louisiana Code of Civil Procedure Article 1915(B)(1): 
When a court renders a partial…summary judgment or sustains an exception in part, as to one or more but less than all of the claims…the judgment shall not constitute a final judgment by the court absent an express determination that there is no just reason for the delay.

Furthermore, according to LA CCP Article 1911, no appeal can be taken from a partial judgment.  Here, the plaintiffs had a partial summary judgment against them, as it did not cover all claims of the case, only claims for wrongful death and non-intentional torts.  Here, the plaintiffs avoided this issue because they petitioned the trial court to consider the judgment final pursuant to Article 1915(B).  When the court designated it as final, which it did, the plaintiffs were permitted to appeal.

Retroactivity of Rando

            According to the Second Circuit, the prevailing jurisprudence when the judgment in 2007 was rendered by the trial court was Adams v. Asbestos Corp., which held that mesothelioma was a covered occupational disease covered under the pre -1975 vesion of the Louisiana Workers’ Compensation Act.  As an listed disease, tort claims related to the contraction of this disease would be barred.  As stated before, Rando reversed this judgment, holding that mesothelioma was not contemplated as a covered disease in the pre-1975 version of the Act; therefore, tort claims arising from exposures which occurred before the Act was amended in 1975 would not be barred by the Workers’ Compensation Act.  The plaintiffs wanted the court to apply this case retroactively, as it would result in a favorable result with regards to the 2007 judgment. 

            However, the Rando opinion does not state explicitly that this judgment was to apply retroactively.  Therefore, the court had to consider many factors which determine whether a case is to receive retroactive treatment. First, the decision that is being sought to be applied retroactively must establish a new principle of law.  It can do so by dealing with novel issues, or it can overrule existing precedent.  Second, the court must determine whether the retroactive application of the rule serves to expand or contract the operation of that rule in the future.  Lastly, the court must consider any inequities that may result from the retroactive application of this rule. 

            As for the first factor, this issue was not a new one, as there was a split in opinion amongst the Circuit Courts concerning the interpretation of the Workers’ Compensation Act.  As the Bozeman Court points out, “It was just a matter of time before the higher court would step in and decide the issue.”  With regards to the second factor, the courts decided that the retroactive application of this rule would undoubtedly expand it, as it would allow more plaintiffs to assert similar tort claims.  Finally, when considering the third factor, the court argued that not applying the Rando case retroactively would be most inequitable, as the case clarified and corrected an erroneous point of law.