We granted these consolidated writ applications to resolve a conflict among the appellate courts of this state on the issue of whether mesothelioma is a compensable occupational disease under the pre-1975 version of the Louisiana Workers' Compensation Act (the "Act"). Rando v. Anco Insulations, Inc., et al., 08-1163 c/w 08-1169 (La.9/26/08), 992 So.2d 972, 973. Specifically, a review of the jurisprudence reveals that tort claimants in the First and Fourth Circuit Courts of Appeal may recover against their employers for mesothelioma under the pre-1975 Act, while tort claimants in the Second and Fifth Circuit Courts of Appeal cannot. After reviewing the record and the applicable law, we find mesothelioma resulting from contact with asbestos is not a covered occupational disease under La.Rev.Stat. § 23:1031.1 (1952). Accordingly, we affirm the judgment of the court of appeal, First Circuit, and find the plaintiffs tort claim against his employer for mesothelioma is not barred by the exclusive remedy provision of the Act. We further find no error in the lower court's interpretation of La.Rev.
FACTS AND PROCEDURAL HISTORY
On September 23, 2005, at 59 years of age, Ray Rando ("Rando") was diagnosed with mesothelioma, a rare cancer caused by exposure to asbestos.
Subsection F of the 1952 statute further provided that "[t]he 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 ..." La.Rev.Stat. § 23:1031.1 (1952).
The trial court denied JCI and Parsons' motion for summary judgment in which they asserted that the exclusivity provisions of the Act barred Rando's tort suit.
JCI and Parsons appealed, arguing they were entitled to tort immunity under the 1952 version of La.Rev.Stat. § 23:1031.1 and that, if not, the trial court erred in finding Rando's exposure to asbestos while employed by them caused mesothelioma, and in finding they should have known Rando was at risk for developing mesothelioma while in their employ. Further, JCI argued Rando's claims were barred by La. Rev.Stat. § 9:2772, which, at the time he worked for JCI, provided a peremptive period of 10 years for actions involving deficiencies in design, supervision or constructions of improvements to immovables, with an exception precluding a person in possession or control, as owner, lessor, tenant, or "otherwise" of such an improvement, from asserting the defense if the deficiency constituted a proximate cause of the injury. La.Rev.Stat. § 9:2772 (1964).
The court of appeal affirmed the trial court's judgment based on that circuit's prior decision in Terrance v. Dow Chemical Co., 06-2234 (La.App. 1 Cir. 9/14/07), 971 So.2d 1058, writ denied, 07-2042 (La.12/14/07), 970 So.2d 534, which held that the 1952 version of La.Rev.Stat. § 23:1031.1 did not include mesothelioma as a covered disease or asbestos as a covered substance that caused a disease, and thus an employee suffering from mesothelioma is not precluded from filing a tort action against an employer for damages. Rando v. Anco Insulations, Inc., et al., 07-2093 (La.App. 1 Cir. 5/2/08), 2008 WL 2068080 (unpublished). The court of appeal also found that Rando's claims were not perempted under La.Rev.Stat. § 9:2772 because JCI had ultimate control over the construction project at the time of plaintiff's exposure. Id. at p. 2, 2008 WL 2068080, at *1. Finally, the court of appeal found no manifest error in the trial court's factual findings on causation and knowledge. Id. at p. 8, 2008 WL 2068080, at *4.
There exists a split among the circuit courts of appeal on the issue of whether mesothelioma was a compensable occupational disease under the pre-1975 version of the Act and thus subject to the exclusivity provision of the pre-1975 version of La.Rev.Stat. § 23:1031.1. Our review of the jurisprudence shows the Second and Fifth Circuit Courts of Appeal have held that mesothelioma is a compensable occupational disease under the Act and those plaintiffs are barred from asserting tort claims because of the exclusivity provision of the pre-1975 version of the Act. See Adams v. Asbestos Corp., 39,952 (La.App. 2 Cir. 10/28/05), 914 So.2d 1177; Brunet v. Avondale Indus., Inc., 99-1354 (La.App. 5 Cir. 12/5/00), 772 So.2d 974, writ not considered, 01-0171 (La.3/23/01), 787 So.2d 1006. The First and Fourth Circuit Courts of Appeal have held just the opposite—mesothelioma is not a compensable occupational disease under the pre-1975 version of the Act and thus these workers may pursue tort claims against their employers. See Terrance v. Dow Chemical Co., 06-2234 (La.App. 1 Cir. 9/14/07), 971 So.2d 1058, writ denied, 07-2042 (La.12/14/07), 970 So.2d 534; Gautreaux v. Rheem Mfg. Co., 96-2193 (La.App. 4 Cir. 12/27/96), 694 So.2d 977, writ denied, 97-0222 (La.3/14/97), 690 So.2d 39. Our task is to resolve that conflict.
Rando argues the Court of Appeal, First Circuit, properly rejected the defendants' affirmative defense of tort immunity. He contends the pre-1975 version of the Act was designed to provide compensation only for specific diseases and that neither asbestos nor mesothelioma are included in the provisions of La.Rev.Stat. § 23:1031.1. According to Rando, the expansive reading of the statute urged by Parsons and JCI violates principles of statutory interpretation, including the principle that the Act should be liberally construed in favor of the injured employee when he seeks coverage under the Act, but narrowly interpreted when construing the exclusivity provision of La.Rev.Stat. § 23:1031(F). He further claims that JCI and Jacobs's reading of the pre-1975 version of the Act renders parts of the statute redundant and superfluous.
The starting point for interpretation of any statute is the language of the statute itself. Touchard v. Williams, 617 So.2d 885 (La.1993). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent. La. Civ.Code art. 9. However, when the language of a law is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. La. Civ.Code art. 10. Elaborating upon this latter principle, we stated in Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962):
Fruge, 137 So.2d at 339; see also O'Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124. Finally, the words of a law must be given their generally prevailing meaning and words of art and technical terms must be given their technical meaning when the law involves a technical matter. La. Civ.Code art. 11.
It is also well settled that when courts interpret provisions of the Workers' Compensation Act, the basic history and
The history of the workers' compensation begins when the state of New York passed the first workers' compensation statute in the United States in 1910. Four years later, following the submission of a lengthy report and recommendation by a Commission Governor L.E. Hall asked to study and draft laws providing for compensation to injured employees, the Louisiana Legislature enacted one of the first workers' compensation statutes in the South. In its report to the Legislature, the Commission detailed there was "conservatism required" in enacting such a system of laws, because of the diverging approaches by the differing states. Furthermore, it was noted the concept of workers' compensation in Louisiana was "all in the experimental state." La. Sen. Journal Reg. Sess.1914, p. 33. The Commission found conservatism was required because "no matter how moderate the act may be in its provisions, it is a radical departure, being suddenly adopted through the United States, from the line of thought which prevailed up to 1910." Id.; see also 13 Malone and Johnson, Louisiana Civil Law Treatise § 36 (4th ed.2002) (noting that although it was impressed with the diversity of treatment accorded the various workers' compensation problems in the various states commented, "it was aware of the novelty of the entire compensation principle and the possibilities of failure that attended many of the more experimental measures."). Against that backdrop, La. Rev.Stat. § 23:1031 (1914) originally provided an employee who "receives personal injury by accident arising out of and in the course of [his] employment" is to receive compensation.
An early decision from this Court described this first workers' compensation act as follows:
Atchison v. May, 201 La. 1003, 10 So.2d 785, 788 (1942).
However, while described as a compromise in which employers gave up their right to tort damages, in reality, workers injured before 1914 had an exceedingly difficult time recovering in tort. As explained in Roberts:
Roberts, 634 So.2d at 345.
In 1918, the Legislature amended La. Rev.Stat. § 23:1021 to define the terms accident and personal injury as follows:
While the purpose of the 1914 statute may have initially been to cover only workrelated "accidents," with the advancement of the industrial revolution and growing number and types of diseases arising from work-related activities, a liberal interpretation was given to the statute which "effectuated its beneficent purpose of relieving workmen of the economic burden of work-connected injuries by diffusing the costs in channels of commerce." Parks v. Insurance Co. of North America, 340 So.2d 276, 281 (La.1976). Accordingly, this Court recognized judicial interpretation of that statute often resulted in occupational illnesses and diseases being classified as "accidents" under the Act. Id.
La.Rev.Stat. § 23:1031.1 (1952); see pp. 1072-73, supra.
As Wex Malone, a noted scholar on workers' compensation, stated with regard to the Louisiana Legislature's 1952 inclusion of coverage for certain listed occupation disease, "It is noteworthy that our legislature decided to adopt the schedule approach, which limits compensation to specific diseases, at a time when this approach is being abandoned in many other states in favor of a general coverage which includes all diseases of a character related to the nature of the employment." Wex Malone, Louisiana Workmen's Compensation Law and Practice, § 218, p. 26 (Supp. 1955); (Emphasis added).
Although almost every Louisiana legislative session until 1975 amended the Act one way or another (mostly to change the amount of compensation or the various listed disabilities, including the addition of tuberculosis in 1958 or to make minor adjustments dictated by experience in the work place), the amendments did not alter the conservative nature of the Act until the major amendments of 1975. As it became apparent that a considerable number of
Reading the 1952 statute in light of the "basic history and policy of the compensation movement," it cannot be denied the 1952 amendment broadened the coverage of compensation beyond the traditional accidental injury embraced in the original legislative enactment. Notwithstanding, although the 1952 amendment included occupational diseases resulting from exposure to hazardous or toxic substances in the workplace, a plain reading of the statute shows that "an occupational disease shall include only those diseases hereinafter listed...." (Emphasis added). Utilizing the principle of "clear and unambiguous" statutory construction, it cannot be gainsaid that neither asbestos nor mesothelioma is listed in the 1952 statute. As the expert testimony in the case at hand makes clear, in 1952 mesothelioma was not yet recognized as a disease caused by exposure to asbestos and the scientific/medical community had not firmly established a causal link between mesothelioma and asbestos. Moreover, it was not until 1971 that OSHA synthesized a growing body of scientific and medical evidence and formally recognized mesothelioma as one of the hazards associated with asbestos. It would be anomalous for us to expansively read the legislative text to include asbestos and mesothelioma under historical facts such as these. See Rodriguez v. Louisiana Med. Mut. Ins. Co., 618 So.2d 390 (La.1993) (holding that a statute must be applied and interpreted in a manner which is consistent with logic and the presumed fair purpose and intention of the Legislature). Clearly, when the Louisiana Legislature adopted the schedule approach, it evidenced a rejection of the concept of general coverage for occupational diseases and embraced coverage under the Act for only specific poisoning and "disease resulting from contact with" particularized substances and enumerated diseases. Consequently, we find no indication the underlying purpose of La.Rev. Stat. § 23:1031.1 (1952) was the inclusion of asbestos as a disease-causing substance or that mesothelioma was intended to be covered as an occupational disease under that statute.
Lastly, as noted above, in 1975, when it became apparent numerous employment-related diseases did not fit into categories of occupational diseases enumerated in the 1952 version of the Act, the Louisiana Legislature abandoned the schedule approach to occupational diseases in favor of comprehensive coverage. 1975 La. Acts No. 583. Unquestionably, the 1975 Act's treatment of the definition of occupational disease encompassed far more diseases than the scheduled categories enumerated in the 1952 version. See O'Regan, 758 So.2d at 130. "[W]here the new article or statute is worded differently from the preceding law, the legislature is presumed to have intended to change the law." La. Rev.Stat. § 24:177(C). If we were to adopt the interpretation advanced by JCI and Parsons in the present case, there would have been no need for the Legislature to adopt a broader definition of occupational diseases in 1975 if an expansive reading of the 1952 Act were to be accepted. Such was not the case. See, e.g., Johnson, § 220 (detailing the problems associated with fitting "a considerable number of employment-related diseases... into the established categories" included in the 1952 Act.).
We recognize Louisiana courts consistently observe that in the interpretation of a statute, they are bound to give effect to all its parts and not construe any sentence, clause, or word as unmeaning and surplusage if a construction can be legitimately found which will afford force to and preserve all the words of the statute. In re Succession of Boyter, 99-0761 (La.1/7/2000), 756 So.2d 1122, 1129. Having recognized that legal tenet, we find that to read the phrase "and their compounds" after the enumerations of oxygen, nitrogen, and carbon, La.Rev.Stat. § 23:1031.1(A)(1)(c), and metals other than lead, La.Rev.Stat. § 23:1031.1(A)(1)(g), to broadly include asbestos would constitute a myopic reading of the statute that would do violence to our duty to examine the context of the words and the text of the Act as a whole. Thus, considering the limiting words of the statute, the adoption in 1952 of a schedule approach to the definition of occupational diseases, the specificity with which asbestosis was listed in the 1952 statute, and the abandonment of the schedule approach to occupational diseases in 1975, we find no foundation for the argument the Legislature intended La. Rev.Stat. § 23:1031.1(A)(1) to be read expansively
The record shows between 1970 and 1973 JCI was involved in a major construction project at Shell's chemical plant in Norco, Louisiana. Around 1970, JCI, an engineering and construction company specializing in chemical and refining industry construction, contracted with Shell to construct a fractionation plant at an existing Shell facility. During 1970, 1971, and 1973 Rando worked for JCI, and it was at these times he was exposed to asbestos.
Agreeing that its construction project on Shell's property was an improvement to immovable property and pointing out that on the face of his petition it was clear Rando's suit was filed more than ten years after JCI's completion of the work, JCI moved for summary judgment in the trial court, urging Rando's claims against it were barred by peremption under La.Rev. Stat. § 9:2772. Finding no merit to JCI's contention, the trial court denied JCI's motion for summary judgment. Thereafter, the reviewing court likewise rejected JCI's appellate argument on this issue.
During the time Rando worked for JCI at the Shell facility, La.Rev.Stat. § 9:2772 (1964) provided no action to recover damages could be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to an immovable more than ten years after the date of registry in the mortgage office of acceptance of the work by the owner, or if no such acceptance was recorded, more than ten years after the improvement has been occupied by the owner. La.Rev.Stat. § 9:2772(A) (1964).
La.Rev.Stat. § 9:2772(E); (emphasis added).
JCI now contends the appellate court erred as a matter of law in finding the exception to peremption under La.Rev. Stat. § 9:2772 applied to a construction contractor that had no ownership or similar interest in the property.
To the contrary, Rando argues peremption is an affirmative defense and JCI failed to meet its burden to prove peremption applied. He further contends the peremptive exception provided in La.Rev.Stat. § 9:2772(E) was operative because the record fully supports the lower court's finding JCI had possession or control "at the time any deficiency in such an improvement constitutes the proximate cause of the injury." Thus, he asserts his claims against JCI were not perempted.
Peremption is a period of time fixed by law for the existence of a right. La. Civ.Code art. 3458. The right is extinguished upon the expiration of the peremptive period. Id. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. State Through Div. of Admin, v. McInnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937, 939. "Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment." La. Civ.Code art. 3460. "Peremption may not be renounced, interrupted, or suspended." La. Civ.Code art. 3461.
The peremption exception is considered a peremptory exception. Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners and Citizens of Denham Springs Economic Development Dist., 05-2274 (La.10/17/06), 945 So.2d 665, 680; La.Code Civ. Proc. art. 927. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978); see also La. Civ.Code art. 3461. As such, the following rules governing the burden of proof as to prescription apply to peremption.
If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter, 892 So.2d at 1267. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., 617 So.2d at 882-83.
There being no dispute that the fractionation unit JCI constructed at the Shell facility was an improvement to immovable property, La.Rev.Stat. § 9:2772(A), and that Rando's tort suit was filed more than ten years after this improvement was completed and occupied, La.Rev.Stat. § 9:2772(A)(1)(2), we find the threshold elements for the applicability of the peremptive statute satisfied. Accordingly, we find the burden shifted to Rando to show the peremptive exception established in La.Rev.Stat. § 9:2772(E) applied. As such, it was incumbent upon Rando to show JCI was "otherwise" "a person in possession or control ... of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury." After reviewing the record, we find Rando carried his burden of proof on this issue.
Initially, Rando contends the appellate court properly rejected JCI's contention La.Rev.Stat. § 9:2772(E) applied only to those persons who have an ownership or leasehold interest in the immovable, and did not apply to a contractor. We agree.
Looking at the plain text of La.Rev.Stat. § 9:2772(E), it is clear that although the statute specifically names owners, lessors or tenants as a person in possession or control of the improvement to the immovable, it expands that enumeration with the use of the word, otherwise. As the Legislature's chosen language evidences, it did not limit this peremptive exception to owners, lessors or tenants. Thus, contractors were not preclusively excepted.
Rather, we find the determinative aspect of the peremptive exemption is whether JCI was an entity "otherwise" connected to the project "who was a person in possession or control ... of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury." La.Rev.Stat. § 9:2772(E). In the present case, this inquiry first requires us to examine the temporal question of when, in a latent disease case, the incident caused Rando's injury. That question, now resolved by this Court, is Rando's injury occurred at the time of significant exposure to asbestos, not later when his disease (mesothelioma) manifested itself.
The appellate court determined JCI possessed the requisite "possession or control" because its project at the Shell facility was a turnkey job. JCI contends this premise is faulty because Shell, not JCI, specified the use of the asbestos-containing insulation material that led to Rando's injury and that Shell retained ultimate authority over the methods of construction. Accordingly, JCI urges that the appellate court erred in its determination of this issue.
Our review of the jurisprudence shows no decision has addressed what is meant by the words, possession or control, used in La.Rev.Stat. § 9:2772(E). Notwithstanding, we find guidance in our understanding of those terms in the jurisprudence that developed under La. Civ.Code art. 2317 and its pronouncement that we are responsible for damage occasioned by things over which we have custody. Equating the term custody to a loose translation of the French word "garde," we stated in Loescher:
Loescher v. Parr, 324 So.2d 441, 447 (La. 1975), n. 6, quoting David E. Verlander III, We Are Responsible, 2 Tul. Civ.L. Forum, No. 2 at 64 (1974).
Although La.Rev.Stat. § 9:2772(E) does not use the term custody, the descriptive terms "possession or control" are indicia of one who has custody, i.e., something in one's care (an immovable in the case of La.Rev.Stat. § 9:2772) "to which one bears such a relationship as to have the right of direction and control over them,...." Id. Moreover, as the excerpt from Loescher demonstrates, the one who has possession or control may be the owner, but it may also extend to a broader category to include others. Id. Likewise, courts have recognized possession or control may be held by more than one person who may bear liability simultaneously. See e.g., King v. Louviere, 543 So.2d 1327 (La.1989); Ehrman v. Holiday Inns, Inc., 04-0312 (La.App. 4 Cir. 3/29/95), 653 So.2d 732, 738, writ denied, 95-1051, 1058 (La.6/16/95), 655 So.2d 343; Thumfart v. Lombard, 613 So.2d 286, 289-90 (La.App. 4 Cir.), writ denied sub nom., Montalbano v. Lombard, 617 So.2d 1182 (La.1993). In determining whether a thing is in one's custody or garde, courts consider (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any kind of benefit the person derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991). Determining who has the custody or garde of the thing is a fact-driven determination. Id.
JCI's "possession or control" argument is twofold: (1) Shell, not JCI, specified the use of asbestos-containing insulation material that led to Rando's injury, and Shell mandated in its contract specifications that JCI abide by its (Shell's) engineering standards; and (2) the fact JCI's work at the Shell plant was a turnkey project is not determinative of the possession or control element. Buttressing that argument, JCI points out Rando stated Shell controlled the work he performed at the Shell plant and he further agreed Shell could have mandated that JCI use safety equipment or face contractual sanctions.
From the outset we observe that although the owner of the immovable may provide contract specifications for the work, that factor alone is not determinative of the question of possession or control. In accord Beck v. Dubach Lumber Co., 171 La. 423, 131 So. 196 (1930); Stoute v. Mobil Oil Corp., 297 So.2d 276 (La.App. 3 Cir.), writ denied, 300 So.2d 839 (La. 1974).
In the present case, Gayle Carnahan, JCI's engineering/purchasing agent at the time of this contract, described the contractual relationship between Shell and JCI. In essence, Shell turned the entire project over to JCI. Succinctly stated, JCI had the responsibility for designing, fabricating, and installing the fractionation unit at Shell's Norco facility. JCI coordinated all of the subcontractors at the work site. As shown in the record, JCI subcontracted the insulation work to B & B Engineering & Supply Company, Inc. Shell's specifications required high temperature insulation, an item which at that time contained asbestos, and delivery of such insulation was made to JCI at the Shell plant. According to Carnahan, JCI knew that asbestos-containing insulation would be utilized in the project. Moreover, JCI hired thousands of workers on a job-by-job basis, provided at least twelve superintendents, and had foremen on site who controlled the work. Finally, Carnahan stated JCI's job superintendent, not Shell, was ultimately responsible for worker safety at the job site.
Based upon these facts, we find no manifest error in the lower courts' determination JCI had the requisite possession and control necessary to find JCI was excepted from peremption as provided in La.Rev.Stat. § 9:2772(E).
JCI asserts the evidence is insufficient to support the lower courts' decision it had a legal duty to Rando, and that Rando failed to prove it (JCI) knew or should have known at the time of his employ pipe fitters could contract mesothelioma. Parsons joins JCI's attack on liability, particularly challenging the finding it knew or should have known Rando was being exposed to hazardous levels of asbestos while under its employ in 1972. Parsons also contends Rando offered insufficient evidence to show its work activities were a substantial factor that contributed to his mesothelioma. Parsons particularly asserts parties not in its employ and with whom it had no connection created the insulation dust Rando breathed.
The standard negligence analysis we employ in determining whether to impose liability under La. Civ.Code art. 2315 is the duty/risk analysis, which consists
JCI points out that as a pipe fitter Rando never handled asbestos while in JCI's employ. Initially, JCI contends it had no duty to protect Rando from exposure to asbestos other contractors used when they provided insulation services on the Shell project. JCI argues the issue of duty is a legal one subject to de novo review, not manifest error review as the appellate court framed the question.
A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627, 632-33. Elaborating further, we stated:
There is an almost universal duty on the part of the defendant in a negligence action to use reasonable care to avoid injury to another. Boykin v. La. Transit Co., 96-1932 (La.3/4/98), 707 So.2d 1225, 1231. More particularly in the realm of employment, La.Rev.Stat. § 23:13 provides, in pertinent part:
Although acknowledging this enunciated duty of the employer, JCI contends Rando failed to prove the accepted and approved practice in the industry in 1970-71. In conjunction with that argument, JCI asserts there was no proof that it should have known during that time period that pipe fitters in the same area, who did not
JCI contends Rando cannot rely upon OSHA's asbestos regulations, the Walsh-Healy Act or the recommendations of the American Conference of Government Industries Hygienists ("ACGIH") to establish the duty element necessary for his negligence claim. It contends OSHA's regulations on asbestos were not effective until after Rando's alleged asbestos exposure, that the Walsh-Healy Act was only applicable to federal contractors, and the ACGIH was only advisory.
Although novel issues pervade asbestos litigation, see e.g., Zimko v. American Cyanamid, 03-0658 (La.App. 4 Cir. 6/8/05), 905 So.2d 465, writ denied, 05-2102 (La. 3/17/06), 925 So.2d 538, JCI frames the duty issue too narrowly. Arguendo, recognizing the accuracy of JCI's characterizations of OSHA, the Walsh-Healy Act, and the ACGIH report, for purposes of analyzing the existence of a duty, these documents and enactments evidence a level of knowledge that pervaded the industry and exhibited a growing understanding and awareness of a serious problem regarding asbestos. Whether JCI had a duty to protect Rando from exposure to asbestos depends on whether JCI knew or should have known of the dangers of asbestos exposure at the time of Rando's employment. As evidence of the duty incumbent upon a Louisiana employer, even prior to the enactment of OSHA, was the Legislature's inclusion of asbestosis as an occupational disease in 1952. Although asbestosis may not be equated with mesothelioma, it and mesothelioma share a causative agent, asbestos. For these reasons, we find no legal error in the lower courts' conclusion Rando established a duty on the part of JCI.
Overview: Cause-in-fact and Legal Cause
We now turn to the issues of cause-in-fact and legal cause. As well established in the jurisprudence, the cause-in-fact issue is a question of fact. Ambrose v. New Orleans Police Dep't Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221 (holding that cause-in-fact is a question of fact); Peterson v. Gibraltar Sav. & Loan, 98-1601 (La.5/18/99), 733 So.2d 1198.
In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass'n, 2002-2660 (La.6/27/03),851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Id. The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous. Id.
One of the basic tenets of the manifest error standard of review is that "reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently." Parish Nat. Bank v. Ott, 02-1562 (La.2/25/03), 841 So.2d 749, 753. This principle is further explained in Parish Nat. Bank as follows:
Parish Nat. Bank, 841 So.2d at 753.
Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1313. The reviewing court must always keep in mind that if the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176; Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).
"Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty." Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). "The scope of protection inquiry asks `whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner.'" Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 293 (La.1993). Although we have unequivocally stated "the determination of legal cause involves a purely legal question," Todd v. State, Dept. of Social Services, 96-3090 (La.9/9/97), 699 So.2d 35, 39, this legal determination depends on factual determinations of foreseeability and ease of association. See Perkins v. Entergy Corp., 98-2081 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 410, affirmed, 00-1372 (La.3/23/01), 782 So.2d 606.
Because of the lengthy latency period between exposure to asbestos and manifestation of the disease, cause-in-fact has been noted as the "premier hurdle" plaintiffs face in asbestos litigation. Torrejon v. Mobil Oil Co., 03-1426 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, 890-91. To prevail in an asbestos case a plaintiff must show, by a preponderance of the evidence, he was exposed to asbestos and he received an injury substantially caused by that exposure. When multiple causes of injury are present, a defendant's conduct is a cause-in-fact if it is a substantial factor generating plaintiffs harm. Quick v. Murphy Oil Co., 93-2267 (La.App. 4th Cir.9/20/94), 643 So.2d 1291, writ denied, 94-2583 (La.1/6/95), 648 So.2d 923.
There can be more than one cause-in-fact of an accident as long as each cause bears a proximate relation to the harm that occurs and it is substantial in nature. A plaintiff seeking to recover under either negligence or strict liability theories must prove that the negligent act or defect complained of was a cause-in-fact of the injury. Davis v. State Farm Ins. Co., 558 So.2d 636 (La.App. 1 Cir.1990).
In Quick the appellate court found that:
Quick, 643 So.2d at 1294.
In Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), we stated that "conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm." Id. at 302. Elaborating on that pronouncement of law, we stated negligent conduct is a substantial factor if the harm would not have occurred without the conduct, i.e., but for defendant's conduct, plaintiff would not have sustained injury. Thereby, we equated the two concepts of substantial factor and necessary antecedent. Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 373 (1970).
From the outset, Parsons contends Rando produced no testimony the insulation dust he breathed on the job site as an onlooker contained asbestos. To buttress its argument, Parsons contends Shell's asbestos abatement records bear a notation showing Shell thought the unit where Rando worked was built asbestos free.
Although Shell may have indicated on its asbestos abatement record to the contrary, other record evidence preponderates asbestos was present in the unit where Rando worked. In addition, Rando himself testified he thought asbestos was being used in the construction project at Shell because there were high temperature lines involved. As the record shows, it is assumed if the pipe held heat it was insulated. Moreover, the record indicates Dr. Richard Lemen, Rando's expert in the field of industrial hygiene and epidemiology, opined asbestos was commonly used on high temperature insulation lines at the time of this work, that high temperature pipe covering block insulation contained asbestos, and asbestos cement was used to connect pipes. Finally, samples of the insulation used in each unit at Shell indicated the presence of asbestos.
Placing the burden of proof on the plaintiff requires him ultimately to persuade the factfinder concerning each element of the defendant's negligence, and if the factfinder is undecided after all the evidence has been presented, the plaintiff loses because of the failure of his evidence. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La. 1989); Boudreaux v. American Insurance Co., 262 La. 721, 736-38, 264 So.2d 621, 626-27 (1972). The proof may be by direct or circumstantial evidence. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La.12/1/04), 893 So.2d 1, 4; Cangelosi, 564 So.2d at
After reviewing the evidence, we find the documents, expert testimony, and Rando's anecdotal testimony support the trial court's finding on this threshold issue. Based upon a preponderance of evidence, Rando proved asbestos was used at the Shell job site.
JCI and Parsons next argue that even if asbestos was present at the job site, Rando provided no evidence vis-a-vis air sampling or similar means that would show Rando was exposed to concentrations of asbestos at the Shell plant.
Our review of the record shows Rando depicted his work experiences under JCI and Parsons with particularity. In this regard, we recount the appellate court's detailed depiction of Rando's testimony as it accurately and succinctly reflects his testimony:
Even though it was an asbestosis case, Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973), one of the earlier asbestos cases to discuss causation, reasoned:
Borel, 493 F.2d at 1094.
Building upon this early observation, Louisiana courts have employed a "substantial factor" test to determine whether exposure to a particular asbestoscontaining product was a cause-in-fact of a plaintiffs asbestos-related disease. Zimko, 905 So.2d at 484 (collecting cases). Thus, in an asbestos case, "the claimant must show ... he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury." Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4 Cir.10/21/98), 726 So.2d 926, 948; Vodanovich v. A.P. Green Industries, Inc., 03-1079 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, 933. Mesothelioma can develop after fairly short exposures to asbestos. Egan v. Kaiser Alum. & Chem. Corp., 94-1939 (La.App. 4 Cir. 5/22/96), 677 So.2d 1027. Simply because a plaintiff suffered asbestos exposure while working only a short period for an employer and he had longer exposure working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor in causing his mesothelioma. Id., 677 So.2d at 1035. However, notwithstanding the difficulty of proof involved, a plaintiffs burden of proof against multiple defendants in a long-latency case, such as a tort claim for mesothelioma, is not relaxed or reduced because of the degree of difficulty that might ensue in proving the contribution of each defendant's product to the plaintiffs injury. Quick, 643 So.2d at 1294.
Dr. Arnold Brody, an expert cellular biologist, provided the trial court with a scientific description of the role of asbestos in the disease process. Dr. Brody explained that injury on the cellular level commences immediately upon inhalation of asbestos fibers. This inhalation increases the risk of developing cancer shortly after exposure to these asbestos fibers. Moreover, Dr. Brody characterized asbestos-related cancers as dose/response diseases, i.e., the risk of developing cancer increases as more fibers are inhaled and more genetic errors are formed. In conclusion, he stated eventually the accumulation of genetic errors causes mesothelioma.
With that as background, we note the testimony of Dr. Victor Roggli, an expert pathologist, who testified he reviewed Rando's medical records and deposition testimony. Based upon this evidence, Dr. Roggli concluded it was obvious that Rando's occupational exposure to asbestos caused his mesothelioma. He further opined that Rando's work as a pipe fitter for JCI and Parsons, work that required him to be in close proximity to insulators, was a "substantial contributing factor in the development of his mesothelioma.
In addition to this medical and scientific evidence and Rando's depiction of his exposure to asbestos at the JCI and Parsons' work sites, Rando presented the expert testimony of Dr. Lemen who testified about two aspects of this causation issue, namely, Rando's status as an onlooker exposed to asbestos and the environment in which Rando was exposed to asbestos.
Commenting further on Rando's depiction of the work sites where he was allegedly exposed to asbestos, Dr. Lemen found it significant Rando could see clouds of dust at the work site; on this basis he concluded the asbestos particles would have been concentrated in large amounts. Utilizing OSHA's 1971 promulgation as to asbestos concentrations, findings based upon an accumulation of scientific evidence over a long period, he opined a cloud of dust as Rando described would probably contain asbestos particles concentrated four to five times the initial minimum standard. Moreover, Dr. Lemen commented that the medical community has never determined a "safe level" of asbestos exposure, i.e., an exposure level below which a worker would not be at risk for developing mesothelioma.
Contrary to Dr. Lemen's opinion concerning onlookers, Parsons presented the expert testimony of John Pendergrass, an expert in industrial hygiene. Premised on his disbelief of Rando's statements about his asbestos exposure at the work site and stressing the lack of scientific evidence about the level of Rando's asbestos exposure, Pendergrass opined it was the general understanding of industrial hygienist in the 1970s that onlookers like Rando were not at risk for developing asbestos-related diseases.
Considering the divergent views of these experts and the generalized attack on Rando's credibility which would cast doubt on his recollection, we find no manifest error in the trial court's determination Rando proved by a preponderance of the evidence his exposure to asbestos was significant and this exposure caused his mesothelioma. We now turn our attention to an analysis of the contention of JCI and Parsons Rando failed to establish any breach of their duty was the legal cause of Rando's injury.
Building upon the historical development of the scientific community's understanding of the nature and dangers of asbestos and the role of asbestos in the disease process, JCI and Parsons contend the evidence fails to preponderate they knew or should have known Rando was exposed to asbestos when he did not directly handle asbestos materials and his asbestos exposure was as an onlooker in their employ.
A risk may not be within the scope of a duty where the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Todd v. State Through Social Services, 96-3090 (La.9/9/97), 699 So.2d 35; Hill v.
Dr. Lemen testified medical studies conducted as early as 1930 established that asbestos could cause disabling disease or death to individuals who inhaled asbestos fibers. He stated Dr. Merewether's 1930 report summarized his findings on the effect of asbestos on workers' lungs in the asbestos textile industry. Based upon that study he concluded asbestos fibers caused asbestosis and he advanced a "hierarchy of controls" for lessening worker exposure to asbestos, including ventilation, segregation of workers, wetting the dust, warning workers about the associated dangers and how to protect themselves, and sweeping or vacuuming the work area to limit introduction of the asbestos fibers into the air. Dr. Lemen further testified that between 1935 and 1955 studies associated the inhalation of asbestos with the development of lung cancer, and that between 1960 and 1964 mesothelioma was identified as being caused by asbestos.
Although Pendergrass, Parsons' expert industrial hygienist, attempted to limit these earlier studies to persons who directly handled asbestos-containing products, his testimony nonetheless illuminates the issue now before us in other ways. He acknowledged the employer bears the responsibility to protect the various workers from asbestos exposure generally utilizing Dr. Merewether's control methodology. He further could not argue with Selikoff s 1964 report which emphasized that even light intermittent exposure to asbestos posed a risk to bystanders in the construction industry because floating asbestos fibers do not respect job classifications. In addition, contrary to the assertion of JCI and Parsons that OSHA has no bearing in this matter because it was formally effective after Rando's exposure, Pendergrass explained the 1971 OSHA requirements relative to asbestos exposure were based on national consensus standards that pre-existed its effective date. As shown above, by 1971 it was known that asbestos was associated with asbestosis, the development of lung cancer, mesothelioma, and that onlookers were also at risk to such exposure.
For the foregoing reasons, we find the record amply supports the lower courts' determination that the legal cause element encompassed Rando within the duty JCI and Parsons owed. Accordingly, we find that the scope of JCI and Parsons' duty extended to Rando, even though he did not directly handle asbestos products during his employment.
Parsons contends the trial court's award of $2.8 million for general damages was excessive. Although acknowledging that no two cases are identical. Parsons provides this Court with a series of reported decisions which it asserts are similar. Thus, it contends we should reverse the trial court on this issue and suggests a general damage award in the range of $500,000 to $750,000 is appropriate.
The trial court's determination of the amount of an award of damages is a finding of fact. Ryan v. Zurich American Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. The Civil Code provides that "[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts,
In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) "similar" injuries, see Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). However, absent an initial determination the trial court's very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier's award. Wilson v. Magee, 367 So.2d 314 (La.1979).
Our review of the record shows Rando was 59 years of age at the time he was first diagnosed with mesothelioma in 2005. Before this diagnosis of cancer, Rando had an unrelated arthritic condition, but otherwise was in good health; he was enjoying retirement and was leading an active life with his family. By the time of trial, Rando was suffering significant pain and other symptoms associated with mesothelioma. He had undergone five surgeries, multiple medical procedures, and numerous trips to doctors and emergency rooms. He has suffered significant pain not only from the cancer, but also from the chemotherapy and medications, including the side effects of both. As the trial court observed, Rando has suffered from nausea, nerve pain, stabbing back and chest pain, muscle pain, headaches, and vision loss, and these will only worsen in time. Even though Rando will undergo these treatments for the remainder of his life, the medical evidence shows none of these will cure his cancer.
Considering these well documented facts, we find the trial court did not abuse its vast discretion in setting the general damage award in this case.
For the foregoing reasons, the judgment of the Court of Appeal, First Circuit, is affirmed.
VICTORY, J., dissents and assigns reasons.
WEIMER, J., dissents for the reasons assigned by VICTORY, J.
I dissent from the majority's holding that mesothelioma is not a compensable occupational disease under the pre-1975 version of the Louisiana Workers' Compensation Act (the "Act").
The issue before the Court involves an examination of the 1952 version of La. R.S. 23:1031.1 to determine if asbestos is an oxygen compound or a metal compound under that statute. The majority recites the correct rules of statutory construction, namely, that "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent." However, it nonetheless, purporting to "utiliz[e] the principle of `clear and unambiguous' statutory construction," Op. at 1079, interprets the statute by searching for the intent of the legislature. That is prohibited under our statutory rules of construction. La. C.C.P. art. 9.
The sole issue before the Court is whether, under the clear and unambiguous language of the statute, asbestos is an oxygen or metal compound. Amazingly, while noting that whether asbestos is an oxygen or metal compound is a "hotly contested issue," the majority determines that it "do[es] not have to resolve this issue and offer no opinion on the resolution of that question." Op. at 1080, n. 8. However, the main reason we granted this writ application was to resolve this "hotly contested issue."
In addition to applying the law as written when its application does not lead to absurd consequences, courts must take into account the basic history and policy of the compensation movement when interpreting the Act. Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 345. Since the inception of the Act, one of the strongest and most recognized policies in Louisiana law has been that the Act is to be interpreted broadly in favor of finding coverage for the injured employee. Breaux v. Hoffpauir, 95-2933 (La.5/21/96), 674 So.2d 234 ("In light of the policies behind the Workers' Compensation Act [to keep the injured employee from destitution], this Court has adopted special rules for interpreting its provisions such that to effectuate the remedial policy of the Act, its provisions should be liberally construed in favor of the claimant"); Roberts, supra; Hall v. Pipe Line Service Corp., 233 La. 821, 98 So.2d 202 (1957); Bean v. Higgins, Inc., 230 La. 211, 88 So.2d 30 (1956); Meyers v. Southwest Region Conference Ass'n of Seventh Day Adventists, 230 La. 310, 88 So.2d 381 (1956) (language of statute "should be considered in its broadest possible aspect"); Johnson v. Cabot Carbon Co., 227 La. 941, 81 So.2d 2 (1955); Caddo Contracting Co. v. Johnson, 222 La. 796, 64 So.2d 177 (La.1953) (all statutory provisions of the Act are to be given a liberal construction); Dick v. Gravel Logging Co., 152 La. 993, 95 So. 99(1922) (the provisions of the Act are to be liberally construed so as to include all services that can reasonably be said to come within them). These coverage provisions, which include the provisions of La. R.S. 23:1031.1, must be interpreted broadly no matter which party is seeking to apply them, whether it be a plaintiff seeking coverage under the Act, or a defendant arguing that the plaintiff is covered under the Act.
The question is whether, under the statute as written and interpreted broadly, asbestos is an oxygen compound or a metal compound. If the answer to this question is clear and unambiguous and its application does not lead to absurd consequences, we must apply the law as written. Looking at the language of the statute itself, which is the starting point in statutory
In support of their positions on this issue, both sides presented expert testimony in the form of affidavits or otherwise. The defendants presented the affidavit of Harry E. Ensley, Ph.D., an Associate Professor of Chemistry at Tulane University, who testified that all forms of asbestos are oxygen compounds and metal compounds. He defined a "compound" as follows:
He defined a "mineral" as "an element or chemical compound that is normally crystalline and that has been formed as a result of geological processes," and presented other authoritative evidence conclusively establishing that minerals must always be either chemical elements or chemical compounds, which means it is either one type of atom (an element) or two or more atoms or ions of two or more different elements in definite proportions (a compound).
Plaintiff introduced the affidavits of Barry Dellinger, Ph.D., and Rene A. DeHon, Ph.D. In Dr. DeHon's opinion, for which he cites numerous sources, asbestos is a mineral, specifically a silicate,
Dr. Ensley took issue with Dr. Dellinger's statement that asbestos cannot be a
Plaintiff also presented the testimony of several live witnesses. Dr. Richard Lemon, the former Deputy Director of the National Institute for Occupational Safety and Health, defined asbestos as a mineral fiber found in the earth's surface with various chemical formulations depending on where it is found and in what type of mineralogical strata it is found. Dr. Arnold Brody explained that "scientists define asbestos as a mineral, and the damaging aspect of asbestos is its nature as a fiber." Dr. Victor Roggli, described asbestos as a group of mineral fibers.
Neither of the lower courts analyzed the above testimony to determine whether asbestos was an oxygen or metal compound. The court of appeal relied solely on its prior decision in Terrance v. Dow Chemical Co., 06-2234 (La.App. 1 Cir. 9/14/07), 971 So.2d 1058, writ denied, 07-2042 (La.12/14/07), 970 So.2d 534, which it declined to "revisit." Rando v. Anco Insulations, Inc., et al., 07-2093 (La.App. 1 Cir. 5/2/08), 2008 WL 2068080 (unpublished). As stated in the majority opinion, the courts of appeal have split on this issue. The Second and Fifth Circuits have held that all diseases resulting from an employee's contact with asbestos are occupational diseases covered by the 1952 Act. In Brunet v. Avondale Industries, Inc., 99-1354 (La.App. 5 Cir. 12/5/00), 772 So.2d 974, writ not considered, 01-0171 (La.3/23/01), 787 So.2d 1006, the plaintiff contracted lung cancer resulting from contact with asbestos and a jury awarded him tort damages. In its answer to plaintiffs appeal, Avondale urged that plaintiff was limited to workers' compensation because asbestos was both an oxygen and a metal compound. The Fifth Circuit considered the affidavit of Dr. Ensley, essentially the same one offered in this case, and found that the scientific evidence established that asbestos is an industrial term used to describe a group of six minerals, all of which consist of oxygen, silica and metal. According to Dr. Ensley's affidavit, asbestos is not only a compound of oxygen and metal, but it is mostly oxygen and metal, whether measured by weight or number of atoms, and if either were removed, it would no longer be asbestos. The court looked to the definition of compound offered by Dr. Ensley in this case, see p. 1072-73, supra, and his statement that there is no distinction in chemistry between the terms "oxygen and its compounds," "oxygen-containing compounds," and "compounds that contain oxygen." The court dismissed the opinion of another expert who testified that asbestos could not be an oxygen compound because it did not display the reactivity typical to oxygen after pointing out that the textbook definition of compound recognizes that the compounds may not display the same chemical characteristics of their constituent elements. In addressing the plaintiffs argument that the legislature could not have meant these categories to be read so
Id. at 983-84 (footnotes omitted).
The Second Circuit has also determined that asbestos is both an oxygen and a
However, in a long line of cases, the First Circuit has consistently held that because asbestosis was not a listed disease causing substance, and because lung cancer and mesothelioma are not listed diseases, that plaintiffs with those diseases have an action in tort. In the first of those cases, Thomas v. Armstrong World Industries, Inc., 95-2222 (La.App. 1 Cir. 6/28/96), 676 So.2d 1185, writ denied, 96-1965 (La.11/1/96), 681 So. 1272, the court of appeal overturned the trial court's grant of defendant's exception of no cause of action, wherein defendant argued that plaintiff contracted asbestosis which later led to lung cancer and that the inclusion of asbestosis in the statute leads to the logical conclusion that it was not necessary to include asbestos in the statute. The court of appeal ruled as follows:
676 So.2d at 1187; see also Johnson v. Ashland Oil, 96-0323 (La.App. 1 Cir. 12/20/96), 684 So.2d 1156, writ denied, 97-206 (La.3/14/97), 690 So.2d 37 (following Thomas, supra, and holding that because asbestos was not a listed substance and mesothelioma was not a listed disease, defendant's motion for summary judgment claiming the Act provided the exclusive remedy should be denied). In Terrance, supra, the parties stipulated that asbestos is a compound of both oxygen and metal. The court noted the split in the circuits regarding whether mesothelioma fit within the statute's definition of occupational disease, but determined that it was bound and persuaded by the line of cases holding that it was not. In so doing, the court reasoned as follows:
971 So.2d at 1066; see also Spillman v. Anco Insulations, Inc., 07-0763 (La.App. 1 Cir. 9/9/08), 994 So.2d 132 (jurisprudence of First Circuit rejects broad interpretation that just because asbestos is a compound of oxygen and metal, that mesothelioma is a covered disease). The Fourth Circuit has likewise held that asbestos is not a substance covered by the pre-1975 amendment. In Gautreaux v. Rheem Mfg. Co., 96-2193 (La.App. 4 Cir. 12/27/96), 694 So.2d 977, 978, writ denied, 97-0222 (La.3/14/97), 690 So.2d 39, the court affirmed the trial court's denial of defendant's exception of no cause of action, finding that "[t]he record contains an extensive dispute over whether asbestos is better characterized as a `mineral' or a `compound' for the purposes of former La. R.S. 23:1031.1(A)1(d)" and therefore, "on this showing, it has not been established as a matter of law that asbestos must be considered an `oxygen compound' within the context for [sic] former Subsection (d)." The court then noted that asbestos is a compound that contains oxygen, but found that all compounds that contain oxygen may not necessarily be oxygen compounds for purposes of former Subsection (d). 694 So.2d at 978; see also Calloway v. Anco Insulation, Inc., 98-0397 (La.App. 4 Cir. 3/25/98), 714 So.2d 730, writ denied, 98-1034 (La.11/19/99), 749 So.2d 666, and Matrana v. Avondale Industries, Inc., 01-1505 (La.App. 4 Cir. 8/27/01), 803 So.2d 59 (both following Gautreaux).
Finally, a review of the jurisprudence from the courts of appeal that actually discussed and analyzed the issue of whether asbestos is an oxygen or metal compound reveals that each of these courts either determined, or it was stipulated, that asbestos was in fact an oxygen compound, or a compound containing oxygen, with some finding that it was also a metal compound. This is true even among the courts that ultimately determined that lung cancer and mesothelioma were not covered diseases. For instance, in Gautreaux, the only Fourth Circuit case to actually discuss whether asbestos was an oxygen or metal compound, the court found that "[i]t is true that asbestos is a compound which contains oxygen ... [h]owever, all compounds that contain oxygen may not necessarily be oxygen compounds for the purposes of former Subsection (d)." 694 So.2d at 978. In Terrance, supra, the only First Circuit case to have discussed the issue, the parties stipulated that asbestos was a compound of both oxygen and metal, but the court nonetheless found that all compounds that contain oxygen and metal are not necessarily covered substances because this would allow any disease resulting from contact with any compound containing oxygen or metal to be covered under the Act. 971 So.2d at
The statutory language, the scientific evidence presented, and the history and policy behind the 1952 Act, especially that the Act must be interpreted broadly in favor of coverage, all establish that asbestos is an oxygen and/or metal compound for purposes of La. R.S. 23:1031.1. Accordingly, in my view, a person who contracts mesothelioma as a result of contact with asbestos in the course of his employment and as a result of the nature of the work performed is entitled to workers' compensation benefits as his exclusive remedy. Because the plaintiff in this case, Ray Rando, contracted mesothelioma as a result of contact with asbestos in the early 1970's, his exclusive remedy is in workers' compensation, not in tort.
For the foregoing reasons, I respectfully dissent.
We note our research shows mesothelioma has never been classified as an accidental injury under the statute.
H. Alston Johnson III, 13 Louisiana Civil Law Treatise: Workers' Compensation Law and Practice, § 220, p. 473, n. 5.
Moreover, in Burmaster we recognized reasoning that illuminates our understanding for the inclusion of the peremptive exception. There we stated:
Burmaster, 366 So.2d at 1385-86; (emphasis added).
694 So.2d at 982. In determining whether asbestos was one of the substances meant to be covered by the pre-1952 amendment, the dissenters noted the public policy that the Act must be broadly interpreted to provide coverage under the Act, and that because the statute did not include specific substances, but instead included a non-exclusive reference to oxygen compounds, the statute should be interpreted to include all oxygen containing compounds, reasoning as follows:
Id. at 983-984. (Byrnes dissenting, joined by Lobrano).
Wex Malone, Louisiana Workmen's Compensation Law and Practice, § 218, p. 53 (1960 Pocket Part). Application of this analysis would result in mesothelioma which started out as asbestosis, which is commonly the case, being covered under the Act. See also Thomas v. Armstrong World Industries, supra, holding that although asbestos was not a listed substance and lung cancer was not a listed disease, "[d]efendant is not precluded from demonstrating at the trial level that the asbestosis initiated the lung cancer, and, therefore, the lung cancer would be encompassed within the diseases limited to workers' compensation."