# Abadie v. Metropolitan Life Ins. Co.

> Louisiana Court of Appeal · March 28, 2001 · 784 So. 2d 46

URL: https://www.frixlaw.com/law-library/cases/1878390

## Case

- **Court:** Louisiana Court of Appeal
- **Decided:** March 28, 2001
- **Citations:** 784 So. 2d 46; 2001 WL 300774
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1878390

## Opinion text

784 So.2d 46 (2001)
Douglas A. ABADIE, et al.
v.
METROPOLITAN LIFE INSURANCE COMPANY, et al.
Addressing Individual Appeals: Alfred Adams, Lester Badeaux, Leroy Bonamour, William Boudreaux, Oscar Champagne, Roger H. Quave, Alvin Robin.
Nos. 00-CA-344 to 00-CA-856.
Court of Appeal of Louisiana, Fifth Circuit.
March 28, 2001.
Rehearing Denied April 26, 2001.
*56 Robert E. Caraway, III, Plauche, Maselli, Landry & Parkerson, New Orleans, LA, *57 Attorney for Defendants/Appellants, Steven Kennedy, Peter Territo, and American Motorists Insurance Company.
Mary L. Dumestre, Marjorie M. Campbell, Stone, Pigman, Walther, Wittmann & Hutchinson, L.L.P., New Orleans, LA, Attorneys for Defendants/Appellants, Avondale Executive Officers.
Thomas G. Milazzo, James L. Fletcher, Jr., Pamela B. Gautier, LeBlanc, Miranda, Warwick & Milazzo, Metairie, LA, Attorneys for Defendants/Appellants, Asbestos Corporation Limited.
Leon Gary, Jr., William L. Schuette, Jr., Antonio D. Robinson, Avery Lea Griffin, Madeleine Fischer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre L.L.P., Baton Rouge, LA, Attorneys for Defendant/Appellant, CBS Corporation.
John J. Hainkel, III, Angela M. Bowlin, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, Attorneys for Defendant/Appellant, Owens Corning.
J. Burton LeBlanc, IV, Cameron R. Waddell, Brian F. Blackwell, Sandra A. Jelks, Dawn Smith Rodrigue, Steven M. Jupiter, LeBlanc, Maples and Waddell, L.L.C., and Robert E. Arceneaux, Barham & Arceneaux, New Orleans, LA, Attorneys for Plaintiffs/Appellees.
Frank J. Swarr, Mickey P. Landry, Landry & Swarr, L.L.C., New Orleans, LA, Attorneys for Plaintiffs/Appellees, Earlven Gauthe and Johnnie Johnson.
Panel composed of Judges DALEY, EDWARDS, and LOBRANO, Pro Tempore.
TABLE OF CONTENTS
PAGE NO.
INTRODUCTION ............................................................. 58
COMMON ISSUE 1 ........................................................... 59
COMMON ISSUE 2 ........................................................... 62
COMMON ISSUE 3 ........................................................... 62
COMMON ISSUE 4 ........................................................... 65
COMMON ISSUE 5 ........................................................... 67
COMMON ISSUE 6 ........................................................... 69
COMMON ISSUE 7 ........................................................... 69
COMMON ISSUE 8 ........................................................... 70
COMMON ISSUE 9 ........................................................... 70
COMMON ISSUE 10 .......................................................... 70
COMMON ISSUE 11 .......................................................... 71
COMMON ISSUE 12 .......................................................... 73
COMMON ISSUE 13 .......................................................... 74
COMMON ISSUE 14 .......................................................... 75
COMMON ISSUE 15 .......................................................... 75
COMMON ISSUE 16 .......................................................... 77
COMMON ISSUE 17 .......................................................... 80
COMMON ISSUE 18 .......................................................... 82
COMMON ISSUE 19 .......................................................... 83
ACL COMMON ISSUES & DISCOVERY SANCTIONS .................................. 85
CAUSATION ................................................................ 89
JNOV ASSIGNMENTS OF ERROR................................................. 91
AVONDALE INTERESTS SPECIFIC ASSIGNMENTS OF ERROR ........................ 107
SUMMARY ................................................................. 118
*58
EXPLANATION OF VIRILE SHARE CALCULATIONS ................................ 120
DECREE .................................................................. 122
PER CURIAM.
In the early 1990's, over one thousand individual law suits were filed in the 24th Judicial District Court by plaintiffs who were exposed to asbestos over the previous decades. Numerous manufacturers and producers of asbestos products were named as defendants and the Executive Officers of plaintiffs' employers. These cases were cumulated and consolidated for trial under the direction of Judge Jacob Karno. On December 20, 1994, the trial court issued a trial plan setting four consolidated trials, broken down into groups of eight, nineteen, fifty-eight, and a final group of 323. Over the course of the next several months, suits in the first two groups were settled. The remaining suits involved exposure to asbestos at three major shipyards. In an Order dated July 18, 1995, the trial court separated the remaining cases according to the site of exposure. This Order set the trial of the suits involving exposure at Avondale Shipyards for September 18, 1995. The claims of 129 Avondale employees were tried before one jury. The resulting judgments from that trial form the basis of this appeal.
The first two weeks of trial were consumed by pre-trial motions and jury selection. Opening statements began on September 29, 1995, and the trial continued over the course of the next six months. At the conclusion of trial, 118 plaintiffs were awarded damages and eleven were not. Most defendants were found liable, while several were exonerated.
The non-settling defendants, Asbestos Corporation Limited (hereinafter referred to as ACL), and the Executive Officers of Avondale Shipyard, as well as their insurers (hereinafter referred to as the Avondale Interests), have perfected the instant appeals. Owens Corning had also appealed, but settled and dismissed their appeals with all but two plaintiffs, Earlven Gauthe and Johnny Johnson. CBS Corporation, formerly known as Westinghouse Electric Corporation (hereinafter referred to as Westinghouse), settled and dismissed their appeals with all plaintiffs but Earlven Gauthe and Johnny Johnson after oral argument, but days before this opinion was rendered. In the interest of judicial economy and in attempt to simplify the issues, we have consolidated these matters for appeal purposes. At a hearing held by this Court, the appellants identified nineteen Common Issues. By Order dated May 20, 2000, these issues were ordered briefed, and on September 28, 2000 they were orally argued.
To facilitate the appeals regarding causation and quantum for individual plaintiffs, twelve groups of plaintiffs were established (Groups I-XII). The parties then briefed the issues specific to the ten plaintiffs comprising the Group I plaintiffs. Oral argument with respect to those Group I plaintiffs was held on October 26, 2000. However, immediately prior to oral argument this Court received notice from the U.S. Bankruptcy Court that Owens Corning had sought relief in that court. Because of the Stay Order issued by that court, this court has severed and stayed all appeals pertaining to Mr. Gauthe and Mr. Johnson, relative to all defendants and all issues therein. And because of the nature of the injuries received by Patrick Clark, *59 we have decided to dispose of the appeal in his case by separate opinion. [1] Therefore, this opinion relates only to Group I plaintiffs Alfred Adams, Lester Badeaux, Leroy Bonamour, William Boudreaux, Oscar Champagne, Roger Quave, and Alvin Robin.
The jury rendered a verdict in favor of each of these seven plaintiffs against ACL and six Avondale Executive Officers. In addition, the jury also found several other manufacturers and suppliers responsible either on a negligence and/or strict liability (unreasonably dangerous per se or failure to warn) theory. However, those parties either settled before trial or after judgment was rendered, and are not part of this appeal. Nonetheless, because of the virile share apportionment necessitated by the jury's findings, their liability or non-liability is an issue that has been raised by the defendants who have appealed. [2] Via a Judgment Notwithstanding the Verdict (JNOV), the trial judge reversed the jury's findings with respect to nine of those settling parties. Finally, included in those same JNOV rulings, the trial judge also increased most of the damage awards. Thus, in addition to the various arguments with respect to their own liability, ACL and the six Avondale Executive Officers also argue the incorrectness of the trial judge's grant of the JNOVs, and the correctness of the jury's finding of liability on the part of the settling defendants.
In an attempt to present this opinion in a logical and orderly fashion, we first turn to a discussion and resolution of the issues common to all of the defendants. We next turn to a general discussion of causation in asbestos cases, and the basic guidelines that we will apply in determining whether ACL and the settling defendants bear any responsibility to each of these seven plaintiffs. Finally, we will discuss and resolve the specific arguments raised by each appellant.
COMMON ISSUE 1 :
Whether the trial court erred in cumulating, transferring, and consolidating cases in forming the 129-plaintiff trial group?
Appellants argue that the trial court erred in cumulating, transferring, and consolidating cases in forming the 129 plaintiff trial group. The brief filed by ACL does not specifically address the issue of consolidation. Rather, ACL adopts the position of Westinghouse and the Avondale Interests with regard to this issue, and though Westinghouse has since settled with plaintiffs, we relate the arguments as they briefed them. Specifically, Westinghouse argues that the manner in which the trial group was formed violated its right to an individualized determination of the claims. First, Westinghouse contends that the aggregation of claims was prejudicial because it confused the jury, prevented a fair and impartial trial, and gave the plaintiffs an undue advantage. Westinghouse argues that the repetition of accusations against it validated the claims regardless of the merits of each individual claim, effectively eliminating plaintiffs' burdens of proof. Second, Westinghouse claims that individual issues, which could defeat a particular plaintiffs claim, were lost or minimized due to aggregation. It claims that the responses on the jury verdict forms indicate the jury was not able to identify individual *60 products, their manner of use, and whether a particular plaintiff had been exposed to a particular product. Westinghouse contends that because of the numerous plaintiffs, witnesses, and exhibits it was impossible for the jury to make individual determinations whether its product was unreasonably dangerous, and whether the product had substantially contributed to the injury of a particular plaintiff, on a plaintiff-specific, defendant-specific, or product-specific basis.
Westinghouse supports its contentions with the assertion that the plaintiffs lacked the requisite commonality for aggregation of their claims. While Westinghouse acknowledges that all of the 129 plaintiffs worked at Avondale for some period of time, it argues there were significant differences among plaintiffs with regard to their length of employment, their work site, the amount of exposure, their lifestyle factors, their medical histories, and alleged injuries. In sum, Westinghouse says that the few common issues were overshadowed by these individual differences, making cumulation inappropriate.
The Avondale Executive Officers also contend that consolidation denied them the opportunity to defend each claim individually, resulting in a denial of their rights to due process. The Avondale Executive Officers [3] named in these lawsuits are James O'Donnell, George Kelmell, John Chantrey, J.D. Roberts, Steven Kennedy, and Peter Territo. [4] These men were employees of Avondale, working in the safety department, at various times from 1948 until 1976. The claimants alleged that the Executive Officers were negligent in the manner in which asbestos-containing products were used at Avondale, and for failing to protect the workers against known hazards of asbestos. The Executive Officers counter with the argument that the only evidence presented specific to a plaintiff against a particular executive officer was that the defendant worked at Avondale at the same time as the plaintiff. The Executive Officers point out that during this time the government required the use of asbestos products on all Navy vessels. The officers also contend that during this time the asbestos manufacturers concealed the dangers of asbestos exposure, and the government standards for asbestos exposure were inadequate. They argue that the length of the trial, coupled with the magnitude of evidence from the numerous plaintiffs, defendants, and experts confused the jury, and resulted in the imposition of liability against executive officer defendants when there was inadequate evidence.
The plaintiffs [5] contend that the issue of the appropriateness of consolidation has *61 already been addressed by this court. They point out that the defendants in a separate flight of cases applied for Supervisory Writs from the Order that set the cases for trial. [6] In that Writ Application, those defendants argued that they would be unduly prejudiced by having to defend numerous diverse claims. This Court denied the Writ Application, holding that the consolidation was within the broad discretion of the trial court under LSA-C.C.P. art. 1561. The plaintiffs argue that the holding in this Writ Application constitutes the "law of the case," and this issue should not be re-litigated.
Plaintiffs further argue that while the defendants have claimed the consolidation resulted in prejudice and denial of due process, they have failed to support these allegations with concrete examples. The plaintiffs point out that the trial court, in ruling on Avondale's post-verdict Motion for Judgment Notwithstanding the Verdict, held there was sufficient evidence to support a finding of liability against the executive officer defendants. The plaintiffs contend that if the consolidation had resulted in jury confusion, as alleged by the defendants, then the jury would have awarded damages to all of the plaintiffs, which they did not do. Plaintiffs point to the jury interrogatories, which found some defendants liable to some plaintiffs, and other defendants not liable at all.
DISCUSSION :
While we are not satisfied that the "law of the case" doctrine is controlling in this situation, we are satisfied that LSA-C.C.P. art. 1561 supports the trial court's decision to consolidate these matters. That article provides: [7]
A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate.
B. Consolidation shall not be ordered if it would do any of the following:
(1) Cause jury confusion.
(2) Prevent a fair and impartial trial.
(3) Give one party an undue advantage.
(4) Prejudice the rights of any party.
Westinghouse argues that the consolidation advantage for the plaintiffs was that the repetition of accusations against it validated the claims regardless of the merits of each individual claim, effectively eliminating plaintiffs' burdens of proof. We disagree. Had the consolidation effectively eliminated plaintiffs' burdens of proof, the jury would have awarded damages to all 129 plaintiffs, which they did not do. The claims of eleven plaintiffs were rejected.
Likewise, the appellants' contention that the consolidation resulted in jury confusion is without merit. The jury completed interrogatories for each plaintiff. Each set of interrogatories listed each defendant. *62 Not all defendants were found liable to all plaintiffs. The appellants have not shown with any specificity how the jury was confused by consolidation, nor have they shown how they were prejudiced, or that the trial was impartial.
Perhaps consolidation created an unduly burdensome situation for all parties, and perhaps on hindsight consolidating in this situation was not the best way to dispose of these cases. However, we find nothing in the record, nor have specific references in the record been pointed out to us, to show how any due process rights were violated or any prejudice or unfair advantage resulted. If any manifest error by the trial court or jury occurred because of consolidation, it will be corrected in this appeal.
COMMON ISSUE 2 :
Whether by proceeding to judgment on less than all claims presented in each of the nine separate cases, the trial created non-appealable partial final judgment?
Westinghouse (and ACL by adoption) argues that in proceeding to judgment in less than all claims presented in each of the nine separate cases from which the 129 plaintiffs were drawn, the trial court created non-appealable partial final judgments. Westinghouse explains that the judgments before this Court at this time are not appealable until all the claims in each case are adjudicated. This issue was not briefed by the Avondale Interests.
The plaintiffs counter with the assertion that the 129 cases adjudicated in this trial were completely resolved. We agree. The cumulation of these cases for trial did not destroy the independence of each case. A separate judgment was entered in each case adjudicating each plaintiffs claim against each defendant. An appeal may be taken from a final judgment. LSA-C.C.P. art. 2083. "A judgment that determines the merits in whole or part is a final judgment." LSA-C.C.P. art. 1841. There were no partial final judgments rendered in the record before us. A partial final judgment is defined in LSA-C.C.P. art. 1915 as "any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties." There are no parties in any of the cases before us who have unresolved claims pending. The jury rendered findings and the trial judge issued judgments determining the merits of the claims. The judgments rendered are appealable.
COMMON ISSUE 3 :
Whether the causes of actions did not accrue until after October 1, 1976, and thus the claims against the executive officer defendants are barred by the Louisiana worker's compensation statutory immunity?
Avondale Interests argue that the plaintiffs are prohibited from suing them in tort because of workers' compensation statutory tort immunity. In support of their position, the Avondale Interests cite Cole v. Celotex, 599 So.2d 1058 (La.1992), and cases cited therein, which, they argue, hold that a plaintiffs cause of action does not accrue until he has "contracted" his disease.
Louisiana Workers' Compensation Law, specifically LSA-R.S. 23:1032, was amended, effective Oct. 1, 1976, to specifically prohibit negligence suits against Executive Officers for work-related injuries. The Avondale Interests argue that the plaintiffs' causes of action accrued after October 1, 1976, and thus they are prohibited from suing the Avondale Executive Officers in tort for damages caused by negligence. A determination of when plaintiffs' cause of action accrued affects whether pre-1976 law or post-1976 law applies. Defendants argue that the evidence shows *63 that plaintiffs did not contract their asbestosis and cancers until well after October 1, 1976, and thus the plaintiffs' causes of action accrued after that date, and therefore, the Executive Officers are immune from tort liability. They also argue that mere exposure to asbestos is not enough to establish a cause of action under the traditional tort principles.
Plaintiffs also cite Cole for their position that plaintiffs' causes of action against the Executive Officers accrued at the time of their tortious exposures to asbestos-containing products, most of which occurred prior to October 1, 1976, and therefore, their causes of action arose under pre-amendment R.S. 23:1032, which allows plaintiffs to sue the Avondale Executive Officers in tort for negligence. Plaintiffs argue that Cole clearly changed the methodology for determining what law applies in long-latency tort cases.
The Louisiana Supreme Court in Cole considered the application of the new Comparative Fault Law [8] to long-latency tort cases where the plaintiffs' tortious exposures took place prior to 1980, but the diseases manifested and the suits were filed after the enactment of comparative fault. The Cole court expressly declined to establish new criteria for determining when a plaintiffs tort cause of action accrued. The Cole court followed traditional tort law, which holds that a plaintiff's cause of action accrues when a party has a right to sue. Three elements are required: fault, causation, and damages. The court recognized that "Louisiana is generous in its conception of damages, the slightest being sufficient to support an action." Cole, supra, footnote 15. In his concurrence, Justice Dennis recognized that a cause of action may accrue before a plaintiff sustains all of his damages.
Though Cole 's holding did not directly address the applicability of R.S. 23:1032, it did discuss that statute in the context of long-latency diseases. The Cole court recognized that it was well-settled that the 1976 amendment to R.S. 23:1032 could not be retroactively applied to divest parties whose causes of action accrued before the amendment was enacted, citing, among other cases, Faciane v. Southern Shipbuilding Corp., 446 So.2d 770 (La.App. 4th Cir.1984), which outlines the "contraction test" for determining when a plaintiff's cause of action accrues.
Cole discussed the inherent difficulties in applying the "contraction" test, noting that in asbestosis cases the "lengthy latency period renders efforts to pinpoint the date on which the disease was contracted virtually impossible, medically and legally." [9] The Supreme Court left for another day, however, "resolution of the continued viability of the contraction theory in the context in which it arose" ( Cole, 599 So.2d 1058, note 54 ), as neither applicant contested the Third Circuit's factual findings nor its application of the "contraction" test for the cause of action's accrual. Cole , therefore, did not go so far as to formulate a new "significant exposures" test, in long-latency cases, to determine when a plaintiff's cause of action accrues. What Cole did, in the context of R.S. 23:1032, was open the door to question whether the "significant exposures" test should be used, rather than the traditional tort models such as the "contraction" test, to determine *64 the application of all laws in a long-latency disease case.
Since the Louisiana Supreme Court's ruling in Cole , many Louisiana appellate cases have discussed the effects of Cole 's holding on the application of other laws (such as workers' compensation, products liability, prescription) in long-latency tort cases. These courts found that Cole called into question the viability of the contraction theory as a method for determining the accrual of a cause of action in long-latency disease cases.
The Supreme Court did not revisit this specific Cole issue again until Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262 . There, the court considered the application of R.S. 23:1032 to wrongful death cases when the decedent's occupational exposures occurred entirely before the statute was amended, but the death did not occur until years after the amendment's effective date. The Walls plaintiffs asked the court to abandon the traditional approach to determining the applicable law in a tort suit and employ instead the "tortious exposures" test articulated in Cole . The plaintiffs interpreted Cole to require all long-latency occupational lung disease cases to be governed by the law in effect on the date the victim was exposed to the diseasecausing agent. The Supreme Court disagreed with such an expansive reading of Cole . The court found that the wrongful death plaintiffs' cause of action did not arise (accrue) until the decedent's death, and therefore, R.S. 23:1032 as amended applied to plaintiffs' cause of action, barring their wrongful death suits against Executive Officers:
The survival and wrongful death actions are totally separate and distinct causes of action that arise at different times and allow recovery of completely different damages. Guidry [ v. Theriot ], 377 So.2d 319 [(La.1970)]. Cole established the "exposure theory" for determining the applicable law within the context of the direct tort action and survival action. "[G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Landgraf [ v. USI Film Products ], 511 U.S. [244] at 265, 114 S.Ct. [1483] at 1497, 128 L.Ed.2d [229] at 252 [(1994)]. Therefore, Cole 's rationale cannot apply to the instant case involving a wholly distinct cause of action for wrongful death.
Walls, 740 So.2d at 1273 (Emphasis added.) The emphasized language in the above quote strongly suggests the viability of the "exposure theory" in a direct tort action.
Borrowing from the rationale of Cole , the "significant exposure" test for determining when a cause of action accrues in a long-latency disease is "when pre-act exposures are significant AND such exposures later result in the manifestation of damages." Cole, supra at p. 1066 . We hold that tortious exposures are significant when asbestos dust has so damaged the body that the fibrogenic effects of its inhalation will progress independently of further exposure. This application of the "significant exposure" test is not materially different from the application of the "contraction" test in Faciane v. Southern Shipbuilding Corp., supra . In Faciane the Fourth Circuit stated:
... in the unique circumstances presented by cases of cumulative diseases such as silicosis, it is the contraction of the disease which creates a cause of action and not the later manifestation of the consequences of that disease.
* * * *
... once silica dust has so damaged and maimed the body that the fibrogenic *65 effects of silica inhalation will progress independent of further exposure, a disease has been contracted.
Similarly to the Fourth Circuit in Faciane , we hold that in order to establish when their cause of action accrued, plaintiffs will have to show more than mere exposure to asbestos. Plaintiffs will have to present evidence that the exposures were significant, and that the asbestos exposure started the disease process in their lungs. While the plaintiffs cannot document each and every exposure and the resulting consequence, expert testimony based on medical and scientific studies can establish whether the pre 1976 exposures were significant enough to produce injury.
Each expert medical doctor in this case testified that he used several criteria to diagnose an asbestos-related disease. Each doctor required a history of exposure to asbestos, and a latency period before the manifestation of symptoms. The doctors' opinion on what constituted significant exposure, however, varied.
CONCLUSION
Cole v. Celotex and Walls v. American Optical have validated the use of "significant exposures" test for determining the applicable law in a long-latency tort cause of action. The law in effect at the time of the tortious exposures will apply if the evidence proves that the exposures were significant AND resulted in the later manifestation of damages. There is no bright line test to establish significant exposure in cases involving latent diseases. However, expert medical testimony establishing that the exposure was sufficient enough to begin the disease process is acceptable to fix the time period for accrual of the cause of action.
Plaintiffs have the burden to demonstrate by a preponderance of the evidence that damages were caused by pre-1976 significant exposures in order to have a cause of action against the Avondale Executive Officers. The courts must determine if a plaintiff has borne his burden of proof on a case by case basis. In the group of seven plaintiffs that we consider today, the record contains sufficient references to pre-1976 asbestos exposures through evidence of their work history and the testimony of medical experts describing the beginning of the disease process to allow each to meet his burden of proof.
COMMON ISSUE 4 :
Whether the plaintiffs' claims against the executive officer defendants are barred by the provisions of the Longshoreman and Harbor Worker's Compensation Act?
Avondale Executives argue that the LHWCA is the plaintiffs' sole remedy against Avondale and any Avondale employee. Under the LHWCA plaintiffs are prohibited from suing co-employees (Executive Officers) in tort. Plaintiffs contend, citing Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), that the LHWCA and the State Workers' Compensation scheme exist as concurrent remedies, and that the existence of the LHWCA does not preclude plaintiffs from electing to pursue their remedies under State law.
ANALYSIS
Concurrent Remedies
In 1972, Congress extended the LHWCA to provide coverage to traditional maritime workers who worked landward beyond the shoreline of the navigable waters of the United States. In 1976, the Louisiana Supreme Court addressed whether LHWCA was the exclusive remedy for a shipyard worker in Poche v. Avondale Shipyards, Inc . In Poche , Curtis Poche, Sr. was engaged in new ship construction in a shipyard area located entirely over land when a scaffold fell, causing *66 him to be fatally injured. His widow and children filed a third-party negligence action for wrongful death under state law against Avondale Shipyards, Inc., and certain named Executive Officers of Avondale Shipyards pursuant to LSA-R.S. 23:1101. The defendant Executive Officers filed Exceptions of No Right and No Cause of Action, claiming that the benefits afforded by the LHWCA were available to plaintiffs, and thus excluded all rights, remedies, and benefits otherwise provided by the Louisiana Workers' Compensation Act.
The Court found, after reviewing the cases decided by the United States Supreme Court, that state compensation laws could be constitutionally applied concurrently with the federal LHWCA compensation system. Poche, 339 So.2d at 1217 . Further, if a plaintiff chose to proceed under state law, he had the right to the benefits of the entire body of state compensation law, even if the state scheme provided benefits in addition to or in conflict with the federal scheme. In Poche , this meant that Poche's widow could sue the Avondale Executive Officers in tort, a remedy available in state law against executive co-workers prior to the 1976 amendment of R.S. 23:1032, but not available under the federal scheme.
After Poche , the United States Supreme Court in Sun Ship Inc. v. Pennsylvania, 447 U.S. 715 , 100 S.Ct. 2432 , 65 L.Ed.2d 458 (1980), acknowledged that State compensation law and the LHWCA provide concurrent remedies. In Sun Ship, the Court held that the extension of federal jurisdiction landward beyond the shoreline of the navigable waters under the 1972 amendments of the LHWCA supplements, rather than supplants, state compensation law. The Court further held that the 1972 amendments cannot fairly be understood as preempting workers' state remedies.
The Louisiana Supreme Court revisited the Poche issue in Beverly v. Action Marine Services, Inc., 433 So.2d 139 (La. 1983). In Beverly , the plaintiffs brought suit to recover benefits under the Louisiana Workers' Compensation Act for the death of their son. The defendants filed peremptory exceptions, alleging that the plaintiffs' exclusive remedy was under LHWCA. The Beverly court acknowledged the Sun Ship case, stating that concurrent remedies continued to exist under state law and federal law, that the amended LHWCA was not exclusive, and that state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters. Beverly, 433 So.2d at 141 . Six years later, the Louisiana Supreme Court, in Logan v. Louisiana Dock Company, Inc., 541 So.2d 182 (La. 1989), reaffirmed the existence of concurrent state and federal compensation remedies.
Avondale Interests argue that Poche does not apply because the plaintiffs did not present evidence that they worked exclusively on land, citing two cases, Roberts v. Avondale Shipyards, Inc., 537 So.2d 808 (La.App. 5th Cir.1989), and Wixom v. Travelers Ins. Co., 357 So.2d 1343 (La. App. 4th Cir.1978), for this argument. We find Roberts is distinguishable because it involved a plaintiff who pursued and received LHWCA benefits prior to suing in tort. Wixom is also distinguishable. In Wixom the court found that the LWHCA remained the exclusive remedy for plaintiff Wixom's injuries, because he was a traditional maritime worker injured while working entirely on a navigable waterway, not in the land-based "twilight zone" of concurrent state and federal coverage.
Avondale Interests argues that the plaintiffs' exclusive remedy is under the LHWCA because of the preemptive language of LSA-R.S. 23:1035.2 of the Louisiana *67 Workers' Compensation Act. LSA-R.S. 23:1035.2 was added by Acts 1989, No. 454 § 2, and became effective January 1, 1990. This statute reads as follows:
No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer's Liability Act, the Longshoremen's and Harbor Worker's Compensation Act, or any of its extensions, or the Jones Act.
LSA-R.S. 23:1035.2 now divests plaintiffs of the concurrent state and federal remedies. Smith v. Gretna Mach. and Iron Works, 94-369 (La.App. 5th Cir.11/16/94), 646 So.2d 1096, 1097 .
Avondale's argument, that under the language of R.S. 23:1035.2, the plaintiffs' claims fall exclusively under LHWCA, is without merit. Prior to the enactment of R.S. 23:1035.2, a worker who was covered by both the Louisiana Workers' Compensation Act and the LHWCA was allowed to choose between the two schemes. Sun Ship, supra ; Logan v. Louisiana Dock., supra . Status for purposes of federal coverage does not bar recovery under State law. Beverly v. Action Marine Services, Inc., supra , citing Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272 , 79 S.Ct. 266 , 3 L.Ed.2d 292 (1959).
The fact that plaintiffs may be classified as longshoremen does not preclude them from bringing a claim in tort under Poche . The LHWCA before 1972 had no application to injuries occurring on land, and state compensation schemes constituted the sole remedy available even for a traditional maritime worker working on land. If a particular plaintiffs claim accrued or became vested before 1972, then state law applies. If the plaintiffs claim accrued after 1972, then under Poche , up to the effective date of La. R.S. 23:1035.2 (January 1, 1990), the plaintiffs have concurrent state and federal remedies.
The Avondale defendants cite Cobb v. Sipco Services & Marine, Inc., 1997 WL 159491 (E.D.La.), which addressed the issue of whether the exclusive remedy provision of LHWCA affects the availability of state tort relief for a plaintiff injured in a shipyard. Cobb was injured in 1994 and sued his borrowing employer for punitive damages under LSA-C.C. art. 2315.3, after receiving LHWCA compensation. The trial court held that this state tort claim, because it involved a remedy outside the state compensation scheme (punitive damages), directly conflicted with the LHWCA and, therefore, federal preemption applied. This cause of action clearly arose after the 1976 amendment to R.S. 23:1032, and the 1990 amendment to R.S. 23:1101. Moreover, we find that Cobb is distinguishable because the plaintiffs in Cobb sought LHWCA recovery first.
CONCLUSION
We find that the Louisiana Supreme Court case of Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), controls for the pre 1976-injuries. It holds that LHWCA and state workers' compensation schemes provide concurrent remedies for these maritime workers who work over land; plaintiffs may choose to proceed under either scheme. Further, if a plaintiff chooses to proceed under the state compensation scheme and makes no claim under LHWCA, he may avail himself of the entire body of state compensation law, not merely the portions that do not conflict with the federal scheme. Thus, the plaintiffs' choice to proceed under state law allows them to sue the Executive Officers in tort, under pre-amendment R.S. 23:1032 and 23:1101, a remedy not available under the LHWCA.
COMMON ISSUE 5 :
Whether the trial court improperly limited defendants' access to evidence *68 and use of expert witnesses regarding medical issues?
ACL and the Avondale Interests argue that the trial court erred by limiting them to one Independent Medical Examination (IME) of each plaintiff and to one examination of any tissue samples by a pathologist. They argue that this ruling limited them to a single medical defense and impaired their ability to present certain scientific and medical defenses.
On September 21, 1992, the trial court issued Case Management Order No. 1. Subsection 8(H) states in pertinent part:
The defendants shall have, upon request and at their own expense, an independent medical examination conducted of each plaintiff. Additional medical examinations will require a court order. However, upon leave of Court, a plaintiff may be re-examined by any defendant if the original examination was conducted more than one year prior to the trial date or there has been a change in diagnosis by plaintiff's treating physicians and/or expert witnesses. Reports of IMEs shall be obtained and provided immediately to counsel for plaintiffs.
The plaintiffs argue that the Case Management Order was produced by a joint effort of the parties and was not objected to by the defendants. Writs were not taken on the issue.
The general rule regarding medical examination of a party is governed by LSA-C.C.P. art. 1464, which states as follows:
When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by who it is to be made. White v. State Farm Mut. Auto. Ins. Co., 95-551 (La.App. 3rd Cir.7/17/96), 680 So.2d 1 .
The defendants claim that they were prejudiced by the trial court's ruling because they were not allowed to produce expert witness testimony concerning the degree of danger presented by the different types of asbestos. Also, the defendants allege that they were prejudiced by the fact that each plaintiff was allowed to produce his/her treating physician to testify at trial while they were limited to a single medical witness regarding each plaintiff.
The defendants' allegations appear to suggest that the trial court limited their ability to call expert witnesses, but the Case Management Order in no way curtails this right. In fact, the Case Management Order provides the defendants with the ability to petition the trial court for additional medical examinations if necessary.
The trial court is afforded wide discretion in granting physical examination of parties litigant and in setting the guidelines for such examinations. Walker v. Marcev, 427 So.2d 678 (La.App. 4th Cir. 1983); writ denied, 433 So.2d 182 (La. 1983). The court may subject the examination to reasonable restrictions or conditions, if special circumstances are shown. Id. at 680.
The enormity and complexity of the issues and the number of plaintiffs in this case warranted reasonable restrictions on discovery. Special circumstances were shown and the parties agreed on the Case *69 Management Order. The defendants were not prejudiced by this ruling because their ability to call expert witnesses was not limited as they claim. The only limitation was on the number of IMEs allowed, and the trial court made provisions for additional IMEs if warranted. The trial court did not abuse its discretion in this matter. This argument has no merit.
COMMON ISSUE 6 :
Whether the jury panel was unfairly influenced by plaintiffs' counsel's improper statements, comments, arguments and actions?
This issue was not specifically briefed by the parties, and therefore is considered abandoned. Uniform Rules of Louisiana Courts of Appeal, 2-12.4.
COMMON ISSUE 7 :
Whether the trial court erred in its allocation of peremptory challenges?
Westinghouse argues that the trial court erred in its allocation of peremptory challenges. ACL has adopted Westinghouse's position on this issue. In support of its position ACL cites LSA-C.C.P. art. 1764(C), which allows an equal number of peremptory challenges to each side. ACL takes issue with the trial court's determination that there were only two sides to this case, claiming it was error to force ACL to share its peremptory challenges with all other defendants, including some who pursued third party demands against other defendants.
The plaintiffs contend that there were only two sides in this case and nothing was presented to the jury that portrayed the defendants as adverse. They further point out that challenges to the impanelment or composition of the jury in a civil case must be resolved by supervisory writ and cannot be raised on appeal after the trial. Pretermitting the issue of whether defendants waived their objections to the impanelment of the jury, we see no error in the trial court's allocation of peremptory challenges.
LSA-C.C.P. art. 1764 provides in pertinent part:
B. If trial is by a jury of twelve, each side is allowed six peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed four.
C. Each side shall be allowed an equal number of peremptory challenges. If the parties on a side are unable to agree upon the allocation of peremptory challenges among themselves, the allocation shall be determined by the court before the examination on the voir dire.
For purposes of this article, the number of sides in a lawsuit is determined by the legal posture of the parties. Smith v. State Farm Ins. Co., 446 So.2d 1269 (La.App. 4th Cir.1984), writ denied 449 So.2d 1356 (La.1984). For the purposes of exercising peremptory challenges, multiple party defendants with adverse interests may constitute a single side. Id. The trial court's determination of the number of sides in a lawsuit is subject to the manifest error standard of review. See Atkinson v. Celotex, 93-924 (La.App. 3rd Cir.3/2/94), 633 So.2d 383 .
Arguably, as in Atkinson , because the liability of the Avondale Interests was based on theories different from that of the manufacturers, they are placed in a different posture and thus perhaps they were entitled to additional challenges. However, the Avondale Interests did not raise this issue at the trial level or brief it before this court. Consequently, as to them, the issue of inadequate peremptory challenges was waived. Atkinson has no application to other defendants who are suppliers or manufacturers.
*70 Though defendants filed cross-claims, the thrust of their defense at the trial were factors other than third-party liability. Based on our review of the record and the various defenses raised by the parties, we cannot say the trial judge abused his discretion in the allocation of peremptory challenges.
COMMON ISSUE 8 :
Whether the trial court erred in allocating time for opening and closing argument equally between plaintiffs and defendants as a group, and then requiring defendants to divide up the time between them so as to unfairly limit defendants' closing statement?
On appeal, Westinghouse argues that due to the limited time allotted, it was prevented from fully explaining its position in closing arguments. The record indicates otherwise. ACL adopted Westinghouse's argument on this issue. [10] The record indicates ACL was able to fully present its position in the time allotted. In its closing argument, ACL explained that it was not a manufacturer of any products; rather, it owned a mine containing asbestos, a naturally occurring substance. ACL went on to argue that when the dangers of asbestos dust were discovered, asbestos was not banned; instead, the levels of the dust were regulated. It discussed the fact that none of the plaintiffs were exposed to raw asbestos fiber. They were exposed to dust from a finished product. Additionally, ACL explained to the jury that it was bound by the laws of Quebec, which prevented it from complying with the discovery requests propounded by the plaintiffs. Finally, ACL discussed its position as to the lack of evidence presented by the plaintiffs.
We find no merit to the argument that the time limitation operated to ACL's detriment.
COMMON ISSUE 9 :
Whether the trial court erred in conducting the trial in a manner that created undue pressure on defendants to put on a joint defense in a compressed time frame?
ACL (by adoption of Westinghouse's brief on this issue) argues it was forced to participate in a general defense with all the other defendants, and thus the jury was unable to separate plaintiffs who presented no evidence of exposure to their product. ACL suggests that the trial court should have declared a mistrial after the plaintiffs' case lasted five months because it was clear that the defendants would not have an opportunity to present all of their facts. This issue is raised in the Avondale Interests' brief.
The plaintiffs argue that the appellants have failed to point to a single fact they would have proved, or evidence they would have introduced had they not presented a joint defense, or had they been given more "trial days." Plaintiffs contend there was no error egregious enough to support the appellants' assertion that the trial court should have ordered a mistrial.
Appellants have failed to demonstrate any specific instances of how they were prevented from fully presenting their position. The jury interrogatories show that not all plaintiffs recovered from the same defendants, and several defendants were exonerated by the jury. We find no merit in this argument.
COMMON ISSUE 10 :
Whether the trial court erred in admitting into evidence and allowing plaintiffs' counsel to make statements *71 and arguments about documents without establishing a proper evidentiary foundation.
(See discussion under Common Issue No. 13)
COMMON ISSUE 11 :
Whether the trial court improperly limited defendants' ability to challenge the reliability and credibility of plaintiffs' diagnoses, including precluding defendants from presenting the testimony of Avondale employees regarding their participation in the asbestos screening process?
ACL and the Avondale Interests argue that the trial court erred by not allowing them to introduce evidence of a rescinded contingency fee contract between attorney David Nutt (not an attorney in this case) and Pulmonary Advisory Services, Inc. ("PAS"). PAS employed Dr. Larry Mitchell, the doctor who originally diagnosed many former Avondale employees with asbestos-related diseases. The issue was originally raised in writ number 96-C-067, which was denied by this Court. This Court held that the trial court did not err in denying the defendants the right to introduce the contingency fee contract or question the plaintiffs about it without first establishing its link to the plaintiffs involved or until a representative of PAS was called as a witness.
The appellants further argue that the trial court erred by failing to allow the testimonies of William Tucker and Walter Floyd into evidence. Tucker and Floyd are former Avondale employees who would have allegedly testified that they were mis-diagnosed with asbestos-related diseases by Dr. Richard Kuebler. The issue was originally raised in writ number 96-C-087, which was denied by this Court. This Court held that the trial court did not abuse its discretion by failing to allow the testimonies of Tucker and Floyd into evidence. The depositions of Tucker and Floyd were proffered by the defense.
PAS CONTINGENCY FEE CONTRACT
The defendants allege that evidence of a contingency fee contract between PAS and David Nutt was necessary to "impeach the medical evidence upon which much of the plaintiffs' cases relied." The trial court held that the evidence was not relevant under LSA-C.E. art. 403 and that it could not be used to attack the credibility of any witness under LSA-C.E. art. 607 since no representative of PAS was called as a witness in the suit.
David Nutt is a plaintiff's attorney in Mississippi. He sent many of his clients, some of whom were employees of Avondale, to PAS to be tested for asbestos-related diseases. Nutt allegedly entered into a contingency fee arrangement with PAS and promised them fifteen percent (15%) of the gross amount of any settlement or judgment. This contract was later rescinded. Nutt was not an attorney in the present case, was in no way affiliated with present counsel, and had nothing to do with the plaintiffs as a whole. He was not called as a witness. PAS is outside the subpoena power of the trial court and its representative, Glenn Pitts, was never called as a witness in the present case.
The trial court first stated that the evidence was inadmissible because it was not being used to attack the credibility of a witness. "The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of a witness may not be supported unless it has been attacked." [11] The appellate court's review of credibility determinations is constrained *72 by the manifest error standard, which demands that finding of fact by the trial court be given great deference and disturbed only when clearly wrong. McCraw v. Louisiana State University Medical Center, 627 So.2d 767 (La.App. 2nd Cir.1993); writ denied, 94-0001 (La.3/11/94), 634 So.2d 399 .
Glenn Pitts, the representative of PAS, was not called as a witness. Neither was David Nutt or Dr. Larry Mitchell. Evidence of a contingency fee contract between Nutt and PAS would have only been relevant to attack the credibility of PAS or Dr. Mitchell. Since neither of these individuals were called as witnesses, and their diagnoses of the plaintiffs were not introduced into evidence, the contingency fee arrangement was inadmissible for impeachment purposes.
Even if the evidence were relevant, the trial court ruled it inadmissible because of its likely prejudicial impact on the jury. LSA-C.E. art. 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
A trial judge's assessment of the probative value of evidence is afforded great weight. Green v. Claiborne Elec. Co-op, Inc., 28,408 (La.App. 2nd Cir.6/26/96), 677 So.2d 635 . In the absence of a clear abuse of discretion in assessing the probative value of evidence, the ruling of the trial court will not be reversed on appeal. Id. at 639 .
The trial court held that evidence of a contingency fee contract between PAS and David Nutt was not only irrelevant, but would be prejudicial and misleading. The contract was rescinded, David Nutt had no interest in the present case, and the test results from PAS and Dr. Mitchell were not introduced into evidence. A second set of medical tests were performed by other doctors and these reports were entered into evidence at trial. The trial court did not err in excluding the rescinded contingency fee contract from evidence.
TESTIMONIES OF TUCKER AND FLOYD
William Tucker and Walter Floyd were security guards at Avondale who allegedly were never exposed to asbestos. When Avondale learned that many of its employees were being tested for asbestos-related problems, it sent Tucker and Floyd to be tested. Tucker and Floyd were tested at PAS by Dr. Richard Kuebler. They both made false statements that they had been exposed to asbestos at the Avondale facility and signed affidavits to that effect. Both men were diagnosed by Dr. Kuebler as suffering from an asbestos-related disease.
The defendants attempted to introduce the testimonies of these two men to impeach the credibility of the plaintiffs' testing for asbestos-related diseases since both men were allegedly misdiagnosed. Neither Tucker or Floyd are parties to this suit. The trial court held that their testimonies were inadmissible because they were irrelevant to the proceedings and were not being used to impeach the credibility of a witness. [12] Dr. Kuebler was not called as a witness by either party and the testing performed by him and Dr. Mitchell at PAS was never introduced into evidence. Plaintiffs argue that introduction of this evidence would have been prejudicial to the plaintiffs and would have far outweighed its probative value. Evidence may be excluded if its probative value is substantially outweighed by the danger of *73 unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403. The trial court is vested with wide discretion in determining relevancy of evidence and its ruling will not be disturbed on appeal absent a showing of manifest abuse of that discretion. Hooker v. Super Products Corp., 98-1107 (La.App. 5th Cir.6/30/99), 751 So.2d 889, 909 , citing Earhart v. Brown, 97-522 (La.App. 5th Cir.10/28/97), 702 So.2d 976, 984 . The trial court did not abuse its discretion in excluding this evidence.
COMMON ISSUE 12 :
Whether the trial court erred in allowing plaintiffs' expert witness reports to be admitted into evidence and reviewed by the jury during deliberations, and by admitting expert reports without the experts present to testify?
ACL (by its adoption of Westinghouse's brief on this issue) argues that the trial court erred by admitting medical reports into evidence that were generated by non-treating medical experts when those experts were not called as witnesses. Also, they allege that the trial court erred by admitting medical reports into evidence that were generated by medical experts who were called as witnesses, because this improperly allowed the jury to view the reports during deliberation. ACL further argues that medical reports submitted into evidence are hearsay and inadmissible because they do not fall under any of the exceptions listed in Code of Evidence article 803. Appellants rely on Butler v. Overnite Transportation, 444 So.2d 676 (La. App. 5th Cir.1984), and Ewell v. Schwegmann Giant Super Markets, 499 So.2d 1192 (La.App. 5th Cir.1986), which they contend held that doctor's reports are hearsay and cannot be used in lieu of testimony.
Avondale Interests argue that the written reports of plaintiffs' medical experts who testified at trial were improperly admitted into evidence because the live testimony is the "best evidence." They also argue that since the jurors could not take notes, the admission of plaintiffs' medical reports created an unfair advantage with the jury having "notes" for plaintiffs' experts' direct testimony but no notes for the cross-examination. ACL also adopted Avondale Interests' argument.
MEDICAL REPORTS ADMISSIBILITY :
The cases, Butler and Ewell , cited by appellants are distinguishable from this case. These cases held that medical reports cannot be used in lieu of testimony to establish the facts therein. However, in this case all the plaintiffs' medical experts testified, all were subject to cross-examination, and their reports were not used in lieu of testimony. Therefore, the hearsay rule does not apply. With regard to these seven plaintiffs, Dr. Gaziano, who diagnosed Alfred Adams, Lester Badeaux, and William Boudreaux, testified on December 12, 1995. Dr. Zimmet, who diagnosed Alfred Adams, Oscar Champagne, and Alvin Robin, testified on November 30, 1995 and December 1, 1995. Dr. Casolaro, who diagnosed Leroy Bonamour, testified on November 15, 1995. Dr. Lorino, who diagnosed Roger Quave, testified on October 16, 1995.
Medical records maintained by a physician in his regular course of business as a provider of medical services are admissible under the "business records" exception to the hearsay rule. LSA C.E. art. 803(6); Gilchrist v. Ozone Spring Water Co., 93-2515 (La.App. 4th Cir.6/30/94), 639 So.2d 489 . Also, statements for purposes of medical treatment and medical diagnosis in connection with treatment are admissible under the exceptions to the hearsay *74 rule. LSA C.E. art. 803(4); Dardeau v. Ardoin, 97-144 (La.App. 3rd Cir.11/5/97), 703 So.2d 695, 697 . Therefore, we find that the trial court did not err in admitting both the plaintiffs' and defendants' experts' medical reports.
The Avondale Interests have also alleged that the trial court erred in allowing certain medical reports into evidence in violation of the "best evidence rule" because expert witnesses had already testified to the information contained within them and "the direct testimony of experts is the best evidence of their opinions."
The "best-evidence" rule is to be applied sensibly and with reason. State v. Sartain, 98-0378 (La.App. 4th Cir.12/13/99), 746 So.2d 837, 848 . The trial court has broad discretion in determining the admissibility of evidence. Furthermore, courts are to resolve the admissibility of evidence in favor of receiving the evidence. Dardeau v. Ardoin, supra, at 697. Any prejudice caused by the introduction of medical reports by plaintiffs' doctors was neutralized by the introduction of the medical reports of the doctors who examined the plaintiffs and testified on behalf of the defendants.
MEDICAL REPORTS IN JURY DELIBERATIONS :
Defendants argue that they were prejudiced because the jury was allowed to review the reports that contained the plaintiffs' experts' direct testimony during deliberations. We find this argument without merit. The pre-revision version of LSA-C.C.P. art. 1794(B) stated:
B. The court may allow the jury to take with them any object or writing received in evidence, except depositions and except as otherwise provided in the Louisiana Code of Evidence.
The trial court properly admitted the medical reports into evidence and therefore under 1794(B) the trial court did not abuse its discretion in allowing the jury to take these reports to deliberations. The reports were not depositions or verbatim transcripts of the medical testimony. Both the plaintiffs' and defendants' reports were allowed in the jury deliberations to assist the jury's recollection of individual plaintiffs and their claims. Absent a manifest abuse of discretion, the judgment of the trial court must be affirmed.
CONCLUSION :
The medical experts' reports for both the plaintiffs and defendants were properly admissible under LSA-C.E. art. 803(4) and 803(6). The medical reports were not used in lieu of testimony as all the plaintiff doctors testified at trial and were subject to cross-examination. Since the medical reports were properly admitted into evidence, the trial court did not commit manifest abuse of discretion in allowing the jury to review reports that were received into evidence under LSA C.C.P. Art. 1794.
COMMON ISSUE 13 :
Whether the trial court erred by allowing plaintiffs' counsel to testify during cross-examination.
Common Issue Numbers 10 and 13 are more easily addressed together. The statements allegedly made by plaintiffs' counsel, and the documents to which they refer (Issue No. 10), are not identified, nor is the alleged testimony by plaintiffs' counsel (Issue No. 13). These assignments of error suffer from a lack of specificity. [13]
The Avondale Executive Officers' brief denotes several instances of the alleged *75 "testimony of counsel." After reading the record, we find that the questions of plaintiffs' counsel cited by the Avondale Interests are within the scope of cross-examination. When a party calls a hostile witness, a witness who is unable or unwilling to respond to proper questioning, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Generally, leading questions should be permitted on cross-examination. LSA-C.E. art. 611(C). In Louisiana, wide latitude is permitted on cross-examination. The trial judge determines what is and what is not relevant, and his rulings are not disturbed on appeal in the absence of a clear showing of an abuse of this broad discretion. Jeansonne v. Quinn, 95-821 (La.App. 5th Cir.4/16/96), 673 So.2d 1100 . See also Hill v. Leach, 98-1817 (La.App. 3rd Cir.4/21/99), 734 So.2d 116 .
In brief, appellants refer to the questions at Vol. 69, pages 17, 202 and 17, 204. We note that appellants did not object to the questions at trial, nor have appellants demonstrated in this court how any of the questions prejudiced them. The party alleging error has the burden of showing that the error was prejudicial to his case. Cash v. K.C.I. Const., Inc., 95-1083 (La.App. 5th Cir.5/15/96), 675 So.2d 297, 301 , writ denied, 96-1811 (La.10/25/96), 681 So.2d 369 . Absent the necessary showing, this assignment of error is without merit.
COMMON ISSUE 14 :
Whether the trial court erred in precluding defendants from using plaintiffs' pleadings in cross-examination.
As in several other common issues, the briefs suffer from a lack of specificity and a failure to cite to the record. Only Westinghouse attempted to brief this issue and so it should be considered abandoned as to the other appellants as per URCA 2-12.4.
COMMON ISSUE 15 :
Whether the trial court erred in admitting post-1976 evidence of alleged dangerous environment at Avondale and in excluding evidence proffered by Avondale interests to rebut post-1976 hearsay evidence?
Avondale Interests argue that the trial court erred in allowing the introduction of evidence that was hearsay, unauthenticated, irrelevant, and prejudicial to them. The evidence in question was Avondale's safety record in the 1990s, complaint letters to OSHA from a "workers' safety committee" at Avondale regarding safety violations, OSHA citations to Avondale for safety violations in 1994 and 1995, and a newspaper article regarding safety at Avondale published in the Times-Picayune in 1994. This evidence was introduced during the cross-examination of Mr. Danny Joyce, a defense expert witness in industrial hygiene called by the Avondale Interests. [14]
The Avondale Interests argue that since they are statutorily immune for negligent conduct after 1976, this evidence was inadmissible, irrelevant, and prejudicial, besides being unauthenticated and hearsay. They also note that none of the objected-to evidence pertains in any way to Avondale's handling of asbestos, and they were not *76 allowed to properly rebut this evidence. [15]
Plaintiffs argue that the introduction of the evidence was proper impeachment because Mr. Joyce's testimony put Avondale's post-1976 safety record at issue. They also argue that the Executive Officers remained liable for intentional conduct after 1976, and thus the evidence was relevant. Plaintiffs further claim that Mr. Joyce authenticated all of the evidence, and that the newspaper article was authenticated under LSA-C.E. art. 902(6).
AUTHENTICITY
In his rebuttal testimony, we find that Mr. Joyce authenticated the OSHA citations from 1994 and 1995. A significant amount of his rebuttal testimony was devoted to explaining the nature of these citations and their outcome. Further, we find that the newspaper article was authenticated as per LSA-C.E. art. 902(6).
HEARSAY
Even though Mr. Joyce authenticated some of this evidence, another prerequisite to admissibility is that the evidence not be hearsay. Hearsay is generally inadmissible as evidence. La. C.E. art. 802. However, when an out-of-court statement is offered for a purpose other than to establish the truth of the assertion, the statement is not hearsay. State v. Zeno, 99-69 (La.App. 5th Cir.8/31/99), 742 So.2d 699 .
Plaintiffs argue that the complaint letters, the newspaper article, and the OSHA citations were offered to impeach Mr. Joyce's credibility. However, this evidence does not directly impeach any statements made by Mr. Joyce regarding Avondale's safety record, working conditions, asbestos handling, etc. before 1976. Nor does this evidence impeach Mr. Joyce's credibility as an expert or his past experience at Avondale, as all of this evidence concerns events occurring at Avondale after Mr. Joyce left employment there: events of which he had no direct knowledge nor professional responsibility.
We conclude that at its introduction, the complaint letters, OSHA citations, and newspaper articles were hearsay, and the defendants' objections were proper.
RELEVANCE
Avondale Interests argue that this evidence was irrelevant and prejudicial to them, because it concerned events occurring after 1976, and because none of the evidence concerned the central issue of this litigation, which was Avondale's handling of asbestos. Plaintiffs argue that post-1976 evidence was relevant to establish intentional tortious conduct of the Avondale Executive Officers, for which they are not immune to prosecution under R.S. 23:1032 as amended.
The record establishes that the parties agreed, pre-trial, that these suits alleged negligent conduct and not intentional conduct from any time period. Thus, post 1976 evidence was clearly irrelevant and not at issue. The letters and citations are from 1992 or later, with most being from 1994 and 1995. Not only is this after 1976, it is also after 1991, which is when the witness Danny Joyce ended his employment with Avondale.
None of this evidence concerned Avondale's safety record in handling asbestos. Therefore, at best, this evidence was clearly irrelevant to any testimony of Mr. Joyce. Plaintiffs argue that the "door was opened" to post-1976 evidence during the testimony of Mr. Peter Territo. If in fact the defendants did open the door during *77 his testimony, the proper place for this evidence's introduction would have been during Mr. Territo's cross-examination, not Mr. Joyce's.
CONCLUSION
The introduction of this evidence concerning post-1976 non-asbestos safety complaints at Avondale was clear error because this evidence was both irrelevant and hearsay. It did not relate to pre-1976 events at Avondale nor Avondale's handling of asbestos. The evidence was clearly hearsay because it was offered to prove the truth of the post 1976 safety complaints and citations. The evidence was not proper, however, to impeach any of Mr. Joyce's testimony because none of Mr. Joyce's limited post-1976 direct testimony concerned Avondale's post-1976 safety record.
We find, however, that Mr. Joyce was allowed sufficient opportunity on redirect examination to explain the nature of this evidence, particularly the OSHA citations. Thus, the error was made harmless and is not reversible. Though the Executive Officers would have preferred to introduce the testimony of the OSHA officials who investigated the citations, Mr. Joyce's testimony was sufficient to explain the citations and how they were resolved. His redirect examination, as a whole, served to explain and diffuse much of this prejudicial, irrelevant, hearsay evidence.
Also, the jury was instructed by the court in the final jury charge, "In considering whether or not any of the Avondale employees sued by plaintiffs were negligent" to only consider what the Executive Officers knew "before October 1, 1976." This limiting instruction, coupled with Mr. Joyce's testimony on redirect, were sufficient to limit any prejudicial harm caused by the improperly introduced evidence.
COMMON ISSUE 16 :
Whether the trial court failed to properly instruct the jury regarding applicable law? (Unreasonably dangerous per se and sophisticated user and purchaser)
Appellants argue that the trial court erred in instructing the jury that it could find the manufacturer defendants liable if the jury determined that their products were unreasonably dangerous per se as defined in the case of Halphen v. Johns-Manville Sales Corporation, 484 So.2d 110 (La.1986). Appellants argue that in both Young v. Logue, 94-0585 (La.App. 4th Cir.5/16/95), 660 So.2d 32 , and Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4th Cir.10/21/98), 726 So.2d 926 , the Fourth Circuit concluded that Halphen 's unreasonably dangerous per se liability constituted a substantive change in Louisiana products liability law that could not be applied retroactively, because the plaintiffs testified that their initial significant exposures occurred before Halphen .
UNREASONABLY DANGEROUS PER SE
In a jury trial, the judge has a duty to charge the jury as to the law applicable in a case and the correlative right and responsibility to require that the jury get only the correct law. LSA-C.C.P. art. 1792. The trial judge is not required to give the precise instructions submitted by either party. Fisher v. River Oaks, Ltd., 93-677 (La.App. 5th Cir.3/16/94), 635 So.2d 1209, 1213 , writ denied, 94-0932 (La.6/3/94), 637 So.2d 503 . Adequate jury instructions are those that fairly and reasonably point up the issues and that provide correct principles of law for the jury to apply to those issues. Fisher v. River Oaks, Ltd., supra . The adequacy of jury instructions must be determined in light of the instructions as a whole and the manifest error standard of review may not be ignored unless the instructions *78 were so incorrect or inadequate as to preclude the jury from reaching a verdict based on the law and the facts. Fisher v. River Oaks, Ltd., supra ; Morgan v. ABC Manufacturer, 96-59 (La.App. 5th Cir.1/15/97), 694 So.2d 394, 397 .
The law is clear that an appellate court must exercise great restraint before overturning a jury verdict on the suggestion that the instructions were so erroneous as to be prejudicial. Cuccia v. Cabrejo, 429 So.2d 232 (La.App. 5th Cir.1983), writ denied, 434 So.2d 1097 (La.1983).
ANALYSIS
We find that the Louisiana Supreme Court did not create new substantive law in Halphen . The court in Halphen merely compiled and interpreted the law with regard to products liability in Louisiana at that time. Justice Dennis, the author of Halphen , held in Hulin v. Fibreboard Corporation, 178 F.3d 316 (5th Cir.1999), that Halphen applies retroactively. We find his language persuasive. The decisions of a court of last resort are not the law, but only the evidence of what the court thinks is the law. [16] The Supreme Court has held that unless a judicial decision specifies otherwise, it is given both retrospective and prospective effect. [17] A prospective-only application of judicial decisions is, in effect, legislating. Under Louisiana's Constitution, the power to make substantive laws is vested in the legislature. La. Const. Art. III sect. 1, Art. II sect. 1, 2.
Therefore, we find that the trial court properly instructed the jury of products liability law according to the Halphen decision.
SOPHISTICATED USER/PURCHASER
ACL argues that the trial court erred in refusing to include ACL's requested jury charges on the sophisticated purchaser and sophisticated user defenses. They argue that these instructions were important in their defense because ACL only mined and sold raw asbestos fiber, and it did not manufacture or produce any asbestos products. ACL contends that the other parties in the case were either sophisticated users or sophisticated purchasers of manufactured asbestos containing products.
ACL argues that the requested charges should have been given because they stated pertinent and applicable law that could have absolved them of liability, citing Gonzales v. Xerox Corp., 320 So.2d 163, 164 (La.1975). ACL points out that in Cimino v. Raymark Industries, Inc., 151 F.3d 297 (5th Cir.1998), ACL based its theory of defense on sophisticated purchaser, and was found free from liability. Under Davis v. Avondale Industries, Inc., 975 F.2d 169 (5th Cir.1992), ACL contends that a defendant is entitled to the submission of an appropriate instruction on its theory of defense.
Plaintiffs argue that the "unreasonably dangerous per se" charge was the applicable law to be given to the jury. Plaintiffs assert that the trial court concluded that no sophisticated user instruction would be given because the defendants presented no evidence that the plaintiffs were in fact sophisticated purchasers or users.
Plaintiffs point out that the Louisiana courts have consistently rejected the sophisticated user doctrine and have held *79 that the manufacturer has a duty to warn the user unless the user is aware of the danger or the danger is "open and obvious," citing Horne v. Liberty Furniture Co., 452 So.2d 204 (La.App. 5th Cir.1984); and Fincher v. Surrette, 365 So.2d 860 (La.App. 4th Cir.1978). Plaintiffs further allege that under Moore v. Safeway, Inc., 95-1552 (La.App. 1st Cir.11/22/96), 700 So.2d 831, 864 , the jury's finding of products being unreasonably dangerous per se negates the relevance of the failure to give a sophisticated user charge.
LAW
The trial judge is not required to give the precise instructions submitted by either party. The trial judge must only give instructions that properly reflect the law applicable to the facts of a particular case. Fisher v. River Oaks, Ltd., supra at 1213; Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091 (La.App. 5th Cir.1990). It is the judge's responsibility to reduce the possibility of confusing the jury, and he may exercise the right to decide what law is applicable to prevent counsel from arguing law that the trial judge deems inappropriate. LaFrance v. Bourgeois, 97-376 (La.App. 5th Cir.10/15/97), 701 So.2d 1026, 1028-9 , citing Johnson v. Terrebonne Parish Sheriffs Office, 95-1180 (La.App. 1st Cir.2/23/96), 669 So.2d 577 ; Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La. App. 1st Cir.3/11/94), 634 So.2d 466 .
ANALYSIS
In Halphen v. Johns-Manville Sales Corp., supra the court held that there are four categories of unreasonably dangerous products, two of which are pertinent in this case: those that are unreasonably dangerous per se, and those with any danger inherent in normal use not known or obvious to the user of which the manufacturer has not adequately warned.
A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product. This theory considers the product's danger-infact, not whether the manufacturer perceived or could have perceived the danger, because the theory's purpose is to evaluate the product itself, not the manufacturer's conduct. Halphen at 114 . If a jury finds that the product is unreasonably dangerous per se, then it is the product itself that has been evaluated, and the knowledge of the purchaser is irrelevant according to Halphen . In this case, the jury found that ACL's product was unreasonably dangerous per se.
The sophisticated user charge submitted and requested by ACL read:
Manufacturers and sellers are not liable for dangers known to the user. There is no duty to warn a user of a danger that is obvious or of a common knowledge. Neither is there a duty to warn a user, sometimes defined as a `sophisticated user,' who, through his familiarity with the product, is presumed to know of its dangers.
ACL points out that the sophisticated user defense was successfully asserted in Damond v. Avondale Industries, Inc., 98-1275 (La.App. 4th Cir.8/19/98), 718 So.2d 551 . We find the Damond case distinguishable. In Damond the alleged defective product was sand, and the court found that "sand is not unreasonably dangerous per se," and nothing in the sand makes it unreasonably dangerous in its normal use. Sand may be an unreasonably dangerous product if there was a danger in its use in sandblasting that was not known or obvious. The court found that the danger created by airborne sand during sandblasting was obvious and known. In this case, invisible asbestos *80 fibers caused the plaintiffs' lung injuries. This danger was not known or obvious to the workers at Avondale and was a characteristic of the raw asbestos itself, and not the result of some product modification or use. Therefore, the trial court did not err in refusing to give the requested sophisticated user charge.
We find that the case of Cimino v. Raymark Industries, Inc., supra , cited by ACL, is also distinguishable and not controlling. The Federal Fifth Circuit, in holding that the supplier of raw asbestos to manufacturers owed no duty to warn users of the manufacturer's products, applied substantive law of Texas, not Louisiana, in determining what the Texas Supreme Court might conclude were the parties' respective duties. Cimino, 151 F.3d at 299 .
We find that the Halphen charge, which included unreasonably dangerous per se and the ordinary user language, was the applicable law, and provided the correct principles of law for the jury to apply to the issues. We further hold that the trial court's omission of ACL's requested sophisticated user charge was not error considering that the dangers of raw, invisible asbestos fibers were not obvious or known to the plaintiffs in this case.
The court used the term "ordinary user" in its jury instruction, again relying on Halphen :
Although a product is not unreasonably dangerous per se or flawed by a construction defect, it may still be an unreasonably dangerous product if the manufacturer fails to adequately warn about a danger related to the way the product is designed. A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user.
Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 114, 115 (La.1986).
The Judge instructed the jury that there was no duty to warn of those risks that were obvious or known. Under Halphen , the court explained the different categories of unreasonably dangerous products recognized by most courts. The court held that whether the knowledge of the danger in a product is material, relevant, or admissible depends on the particular theory of recovery under which the plaintiff tries his case. If a jury finds that the product is unreasonably dangerous per se, then it is the product itself that is evaluated, and the knowledge of the purchaser is irrelevant. Under this theory, a charge concerning a "sophisticated user" or "ordinary user" is irrelevant and not warranted.
We find no merit in these arguments.
COMMON ISSUE 17 :
Whether the trial court erred in refusing to allow certain jury charges and interrogatories related to the executive officer liability?
A. RULES OF LAW FOR EXECUTIVE OFFICERS LIABILITY
Avondale Executive Officers acknowledge that the trial court gave the basic charge with regard to executive officer liability from the case of Canter v. Koehring, Co., 283 So.2d 716 (La.1973). However, they argue that further explanation of the Canter charge according to Smith v. Dow Chemical, 92-883 (La.App. 1st Cir.3/28/94), 635 So.2d 325 , should have been given. In Smith, the Louisiana First Circuit held that a plaintiff must do more than establish negligence in the abstract or the existence of an on-the-job injury to impose liability on the co-employee defendant. The Avondale defendants contend that Smith made clear that the jury may not combine the separate knowledge of the executives together to find liability for *81 any one of them, and that it was error not to instruct the jury on this language.
Avondale Executive Officers contend that the individual executive officer defendants were unaware of the risk of harm when workers were exposed to asbestos at the federally-approved level, citing as proof that in some cases, the Executive Officers defendants suffered the same injuries as plaintiffs.
The Louisiana Supreme Court, in Canter , laid out a four part test to determine executive officer liability. The applicable jury charge given by the trial judge was:
An employer, such as Avondale, owes a duty to its employees, such as plaintiffs, to provide a safe place within which to work. However, a corporation may delegate this duty to individuals in its employ, such as safety directors, plant managers, supervisors, and foremen. A person whom the company has delegated its duty to provide a safe place to work owes the company employees, such as plaintiffs, a duty to use due care not to injure them. That is, the safety personnel must not create or maintain any condition which will result in an undue risk of harm to others.
The law has established the following criteria for imposing individual liability:
1. The principal or employer owes a duty of care to the third person, which in this sense includes a co-employee, breach of which has caused the damage for which recovery is sought.
2. The duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal as contrasted with technical or vicarious fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances, whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others, as well as from the lack of ordinary care in discovering and avoiding such risk of harm, which is resulted from the breach of the duty.
4. With regard to the personal fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiffs damages.
In Asbestos v. Bordelon, Inc., supra , the Fourth Circuit held that there was no error in the Canter charge given to the jury.
We find no error in the trial court's instruction to the jury on executive officer liability pursuant to Canter . The jury was properly instructed concerning the four part test set forth in Canter . The trial court's instructions properly reflected the law applicable to the facts of this particular case.
B. COMPLIANCE WITH STATUTORY REGULATIONS
Avondale Interests allege that it was reversible error when the trial judge refused to charge the jury regarding consideration of compliance with statutory regulations by the Avondale Executive Officers. The record reflects that the jury was instructed with regard to applicable law and *82 statutory regulations. The trial court's jury charge mentioned governmental standards and government regulations, and instructed the jury that:
Compliance with government standards is but one element or item of proof of whether or not the product is defective.
* * * *
Louisiana courts have recognized that while statutory violations are not in and of themselves definitive of civil liability they must be guidelines for the court in determining standards of negligence by which civil liability is determined.
We find that this charge adequately instructed the jury concerning compliance with statutory regulations and how regulatory compliance should be considered when assessing negligence.
C. WHETHER THE CAUSE OF ACTION ACCRUED AFTER SEPTEMBER 30th, 1976.
The Avondale Executive Officers contend that it was reversible error when the trial judge refused to instruct the jury that the plaintiffs must have contracted a disease prior to 1976, and when the trial judge refused the jury interrogatory that stated:
Do you find by a preponderance of the evidence, that plaintiffs contracted an asbestos related disease after September 30th, 1976?
We have already addressed the issue of when a cause of action accrues in long latency cases in Common Issue 3, and need not repeat it here. However, the determination of when a cause of action accrues is a fact question. Since Avondale Executive Officers are immune from tort liability after October 1, 1976, the trial court erred in not allowing the jury to determine whether or not the plaintiffs were injured prior to 1976. The only reference to October 1, 1976 in the jury charges was an instruction by the judge that in considering whether or not any Avondale employees were negligent, "you should only consider whether or not they knew or had good reason to know that asbestos products as used at Avondale were hazardous to health before October 1, 1976."
The trial court should have given some limiting instruction or a jury interrogatory that would have allowed the jury to decide whether or not any injury occurred prior to October 1, 1976.
Due to this error, the appellate court must perform a de novo review on the issue and determine if each plaintiffs cause of action accrued before October 1, 1976. This detailed analysis will be performed when the court reviews each plaintiffs individual Assignments of Error. As to the seven plaintiffs addressed in this opinion, the record supports a finding that each incurred injuries prior to October 1976. This finding is based on each plaintiffs work history, which documented their repetitive exposure to asbestos prior to 1976, and the medical testimony concerning the effects of the exposure on each plaintiffs lungs.
COMMON ISSUE 18 :
Whether, because of significant omissions and misstatements, the jury verdict form was misleading?
Appellant ACL adopted Westinghouse's argument that the jury verdict form was misleading and confused the jury. In support, appellants cite the following findings made by the jury, which they contend are incompatible with the basis of plaintiffs' claims and indicate the jury was confused:
1. That exposure to an appellant's asbestos product was a substantial contributing cause of plaintiffs' asbestos-related disease;
*83 2. That appellant was negligent;
3. That appellants' product was unreasonably dangerous per se;
4. That appellant had reasonably designed its product;
5. That appellant had not failed to warn of hazards associated with asbestos; and
6. That appellant had not committed any fraudulent misrepresentation or concealment.
Avondale asserts that certain jury interrogatories related to their position were omitted.
Appellants suggests that the jury's answers indicate that they found the mere presence of any amount of asbestos in its product rendered the manufacturer absolutely liable. This conclusion, says appellants, is due to the erroneous Halphen instruction and the Halphen "unreasonably dangerous per se" interrogatory.
The plaintiffs counter that the jury was not misled and that there was substantial evidence to support the finding that appellants' product was unreasonably dangerous per se.
The testimony, which established that dangerous levels of asbestos fibers were released when asbestos products were cut, coupled with the testimony that asbestos fibers remain in the air for extended period of time, and that ingestion of fibers causes a disease process that is cumulative and progressive, all warranted both the Halphen charge and a jury interrogatory. Since we have already rejected the reasoning of Young v. Logue, supra and determined that Halphen did not create substantive law and thus can be applied retroactively (see common issue 16), we are satisfied that no error resulted from giving that charge. Nor have appellants demonstrated how the charge and/or interrogatory confused the jury.
Finally, appellants advance the argument that the jury interrogatory, "Was the defendant's product unreasonably dangerous per se?" was legally inconsistent with other interrogatories. We disagree.
It is not necessarily inconsistent, under Halphen , to have instructions for both unreasonably dangerous per se and unreasonably dangerous in design and for failure to warn. The jury could have found both that the products were designed to perform as they were meant to perform, yet were unreasonably dangerous per se simply because they contained asbestos fibers that could be released into the air. Or, in other words, the product's design was not inherently dangerous, but it was the properties of the asbestos that made it so. This Assignment of Error lacks merit.
COMMON ISSUE 19 :
Whether the trial court improperly calculated the credit allowed for the Johns-Manville settlement?
Appellant Avondale Interests argues that the trial court erred in calculating the credit allowed to the defendants for the Johns-Manville (hereinafter referred to as J-M) Settlement Trust. [18] The trial judge refused to assign J-M a virile share even though the jury found J-M liable to the plaintiffs. Defendants argue that under Louisiana pre-comparative fault law, because the jury found J-M liable to the plaintiffs, the trial court should have assigned J-M a virile share.
Plaintiffs assert that the trial court properly interpreted the trust language and applied Louisiana law to arrive at its *84 conclusion that defendants would receive a credit for the actual dollar amount when and if plaintiffs received any money from the trust, but J-M would not be assigned a virile share. The plaintiffs argue that the J-M Trust is not a "settlement" as per Louisiana law. Plaintiffs argue that the amount of plaintiffs award from the trust is determined by the trust, not by a jury verdict; therefore, there can be no true right of contribution between the trust and the defendants who have been found liable in this suit. Because the J-M settlement is not a true "settlement" under Louisiana law, and J-M is not a "released party," they argue that the trial court's "middle ground" solution is proper under the trust and Louisiana law.
Both sides quote the same specific language from the J-M Bankruptcy Trust Agreement in support of their positions. [19] The J-M Trust language designates how a settlement receipt should be credited depending on whether a states' laws are pro rata or pro tanto. The defendants claim that Louisiana is a "pro rata" state, and, as per the language of the trust agreement, J-M should have been assigned a virile share. [20] Quoting the same language, the trial court found that Louisiana is not a pro rata state as defined by the Trust, and that the law in effect at the time of the tortious exposures, which was pre-comparative fault, dictates the specific result reached by the trial court.
ANALYSIS
It is well settled that pre-comparative fault law applies to these claims. Cole v. Celotex, supra . Prior to the passage of the Louisiana Comparative Fault Law, this state divided fault between solidary obligors by virile shares. If one or more solidary obligor were insolvent, a plaintiff could collect the entire judgment from one solidary obligor, who would then have a right of contribution against the solidary obligors who had not discharged their obligations. LSA-C.C. art. 1806, and repealed LSA-C.C. arts. 2104 and 2105. The risk that a judgment debtor was insolvent was born by his co-debtors, not the judgment creditor. Harvey v. Travelers Ins. Co., 163 So.2d 915 (La.App. 3 Cir.1964), and cases cited therein. If a solidary obligor, solvent or insolvent, settled with the plaintiff for any amount, the other solidary obligors benefitted by a credit proportional to his virile share, not by the dollar amount he may have paid in settlement. Therefore, Louisiana is a pro rata state rather than a pro tanto state.
Plaintiffs cited the cases Findley v. Falise, 929 F.Supp. 1 (E.D.N.Y.1996) and Brewer v. Fibreboard Corporation, 127 Wash.2d 512 , 901 P.2d 297 (1995), to support their position, and the trial court noted both in its Reasons for Judgment (notwithstanding the verdict). The Brewer court's analysis of Washington law shows, however, that Washington is a pro tanto state, and therefore this case is not applicable. Our analysis of the Findley case shows that the applicable Maryland statute provided only for a pro tanto reduction in liability in the absence of an express agreement to the contrary. Maryland law *85 is not similar to Louisiana virile share law, and therefore is also inapplicable.
The trial court found that Louisiana does not fit within the Trust's Section 3(c) definition of a pro rata state because of LSA-C.C. art. 1806. However, we find that article 1806 does not apply to solidary obligors who have created a settlement trust fund. We note that this is not a case where any plaintiff has depended upon Johns Manville's solvency. The Trust's immediate and persistent problems in funding settlements has been long known, [21] and since J-M was sued and included on the jury interrogatories, assigning J-M a virile share is correct under Louisiana law. If the jury found J-M liable it would form a basis for the plaintiffs to apply and recover something from the Trust.
CONCLUSION
Under pre-comparative fault law, Louisiana was a virile share (pro-rata) state. The trial court failed to assign J-M a virile share, and in doing so, erred. The total number of virile shares should be recalculated, as to any plaintiff to whom the jury found J-M liable, to include a virile share for J-M.
ACL COMMON ISSUES AND DISCOVERY SANCTIONS
ACL filed a Common Issue brief in which it ignored the characterization and number designation of common issues that it was instructed to follow in the Court's briefing schedule. ACL identifies 23 Common Issues, the bulk of which have already been dealt with by the Court in the Common Issues 1 through 19 discussion. ACL did identify some Common Issue Assignments of Error that are specific to its case. ACL in its appellant brief on the Group I plaintiffs restates its position with regard to these specific Assignments of Error, and the Court will now address those Assignments of Error.
DISCOVERY SANCTIONS
ACL mined and milled raw chrysotile asbestos fiber. ACL did not manufacture any asbestos containing products. Plaintiffs alleged ACL sold the raw fibers to various companies who incorporated these fibers in their manufactured products. Plaintiffs allege that while working at Avondale they were exposed to these products that contained asbestos fibers mined and sold by ACL.
Plaintiffs submitted numerous discovery requests directed to ACL. Portions of these requests were answered. However, many requests were not answered because ACL claimed that by answering the requests, they would violate the Quebec Business Concerns Records Act (QBCRA). ACL claims QBCRA prohibits the production of information from records that are within the Providence of Quebec. ACL refused to answer other requests because they were over broad or unduly burdensome.
Plaintiffs filed a Motion to Compel, which resulted in the trial court's issuance of a discovery sanction that provided: (1) the plaintiffs were entitled to a presumption that each plaintiff had been exposed to asbestos mined, sold, or supplied by ACL; (2) ACL was prohibited from introducing any evidence to the contrary; and (3) ACL's defenses were limited to medical issues, whether ACL's conduct constituted negligence, or whether ACL could be held liable under the principles of strict products liability.
*86 ACL has listed three Assignments of Error related to the discovery sanction imposed by the trial court against it. On appeal, ACL contends that the trial court erred in entering this sanction and prohibiting ACL from putting forth all its defenses, that the trial court erred in entering an excessive discovery sanction, and that plaintiffs were not prejudiced by ACL's failure to comply with discovery.
The plaintiffs point out that ACL took an Emergency Writ (95-C-722) to this court when this discovery sanction was levied against it. This court denied the writ, finding the imposition of sanctions was within the trial court's discretion, and further that ACL "has an adequate remedy on appeal since it should be permitted to proffer the excluded evidence."
LSA-C.C.P. art. 1471 provides for sanctions when a party fails to comply with an order compelling discovery. Sanctions allowed under article 1471 include:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
Much discretion is given to the trial court in selecting appropriate sanctions for failure to comply with discovery orders. Hurtle v. State Farm Mutual Auto Insurance, 94-870 (La.App. 3rd Cir.3/1/95), 651 So.2d 418 . The appellate court must find a clear abuse of discretion to overturn a judgment granting sanctions. Id.
In this case we find that the discovery sanctions were imposed without sufficient procedural due process safeguarding. Jurisprudence suggests the trial court should have issued an order requiring discovery responses, including an Order that the failure to do so would result in a named sanction, i.e. irrebuttable presumption. We hold that the sanction was excessive in this case; however, ACL had an adequate remedy on appeal since this court, in response to the writ filed concerning the discovery sanction, instructed ACL to proffer the excluded evidence concerning whether or not ACL supplied raw asbestos that was incorporated into products that caused injury to Avondale employees.
LSA C.C.P. Art. 1636 states in part:
A. When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.
ACL did not proffer any evidence that its asbestos fibers were not incorporated into any of the products used at Avondale. The purpose of a proffer was discussed in McLean v. Hunter, 495 So.2d 1298, 1305 (La.1986): "Without a proffer, appellate courts have no way of ascertaining the nature of the excluded testimony."
We hold that ACL's contention that to proffer any evidence would be overly burdensome is without merit. ACL could have easily identified the manufacturers it sold raw asbestos to or, in the alternative, proffered testimony that it did not sell asbestos fiber to the asbestos product manufacturers who were defendants in this case. We decline to reverse the outcome of this seven month jury trial based on ACL's argument of inappropriate discovery sanctions when ACL chose not *87 to introduce that evidence in the form of a proffer.
ACL ASSIGNMENT OF ERROR I
The trial court erred in refusing to include jury charges for sophisticated purchasers and sophisticated users.
See discussion of Common Issue No. 16.
ACL ASSIGNMENT OF ERROR II
The trier of fact erred in finding ACL negligent in the absence of evidence thereof.
ACL ASSIGNMENT OF ERROR III
The trier of fact erred in holding that plaintiffs proved their respective exposures were of sufficient regularity, proximity and frequency to meet their burden of proof for causation.
ACL's Assignments of Errors II and III both address negligence and causation; hence, we will address these two errors together.
Plaintiffs alleged that ACL sold raw asbestos fibers to various companies who incorporated these fibers in their manufactured products. Plaintiffs argue that while working at Avondale they were exposed to these products that contained asbestos fibers mined and sold by ACL.
ACL contends that the plaintiffs failed to establish the first element for a finding of negligence: causation. ACL argues that the plaintiffs did not set forth any evidence that the raw asbestos mined by ACL caused their injuries. ACL further alleges that the trial court erred in holding that the plaintiffs met their burden of proving their respective exposures to ACL's product under Louisiana negligence/product liability law. Plaintiffs argue that the asbestos was unreasonably dangerous per se and thus ACL was liable. Plaintiffs contend that the discovery sanction created an irrebuttable presumption that plaintiffs were exposed to ACL asbestos, and therefore, proved cause-in-fact.
ANALYSIS
To determine whether a defendant is negligent, the case usually requires proof of five separate elements: (1) duty; (2) breach of duty; (3) cause in fact; (4) scope of liability or scope of protection; and (5) damages. Porteous v. St. Ann's Cafe & Deli, 97-0837 (La.5/29/98), 713 So.2d 454 . In this case, ACL alleges that the plaintiffs failed to prove the third element, that their product was a cause in fact of the plaintiffs' injuries. Specifically, ACL alleges that each individual plaintiff failed to prove that their respective exposures to ACL's asbestos product were of sufficient regularity, proximity, and frequency to carry their burden of proof.
A method for determining cause-in-fact, which is generally used when multiple causes are present, is the "substantial factor" test. Under this test, cause-in-fact is found to exist when the defendant's conduct was a "substantial factor" in bringing about plaintiffs harm. Roberts v. Benoit, 605 So.2d 1032, 1042 (La.1991). The substantial factor test in this case was met due to the discovery sanction imposed by the trial court. The sanction explicitly stated that once a plaintiff proved he was exposed to asbestos, there was a presumption that he had been exposed to asbestos mined, sold or supplied by ACL. In light of this sanction, there is substantial evidence in the record to allow a jury to reasonably conclude that plaintiffs were exposed to asbestos that presumptively was supplied by ACL, and therefore, ample evidence to allow the jury to find ACL's asbestos substantially contributed to their injuries.
ACL ASSIGNMENT OF ERROR IV
The trier of fact erred in finding ACL liable for fraud in the absence of proof thereof.
By this Assignment of Error, ACL argues that plaintiffs failed to plead any *88 allegations of fraud by ACL with particularity. ACL also urges that plaintiffs did not meet procedural requirements because they failed to allege that ACL committed fraud or allege that ACL was a member of any of the asbestos trade organizations to which the allegations were specifically directed. It is further alleged that fraud was not proven by a preponderance of the evidence.
Plaintiffs counter with references to evidence documenting efforts by Quebec Asbestos Manufacturer's Association (QAMA), the asbestos industry organization of which ACL was a member, to suppress information about the connection between lung disease and asbestos.
ANALYSIS
Under LSA-C.C. art. 1953, fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. According to LSA-C.C.P. art. 856, when pleading fraud, the circumstances constituting fraud shall be alleged with particularity.
In this case, plaintiffs specifically plead that members of the trade association QAMA committed fraud and conspired among themselves and with other asbestos manufacturers, distributors, and trade organizations to injure the plaintiffs. ACL was added as a defendant in this matter by the "Supplemental and Amendment to Petition" filed on November 17, 1994. In the amended petition, paragraphs 10 through 25 from the previously filed petitions were incorporated by reference against ACL. Paragraphs 21 through 25, which allege fraud, placed ACL on notice of the fraud allegations.
There was ample evidence presented at trial to support the allegations that ACL was a participating member of QAMA and conspired to commit fraud. Minutes of a meeting of QAMA held on March 28th and 29th, 1968, were introduced into evidence as Plaintiffs' Exhibit-339. The document stated that the asbestos mining companies had known of the dangers of asbestos since 1918, and that it could cause fibrosis of the lung. It also stated that QAMA had a suspicion that asbestos could cause cancer since 1935. The document lists as one of the persons present M.P. Carson, a representative for ACL.
Dr. Herbert K. Abrams, an expert in preventive medicine, public health, and occupational medicine called by the plaintiffs, testified that ACL as a member of QAMA plotted the suppression of a 1947 study (P-38), showing 20% of workers exposed to asbestos levels below the then federal standard would likely die. The association published a watered down version (P-39) of the study, which claimed that workers exposed to asbestos did not contract lung cancer more than other people did.
The actionable element in a claim for fraud is not the conspiracy itself, but rather the tort that the conspirators agree to perpetrate, and which they actually commit in whole or in part. In order to recover under this theory of liability, a plaintiff must prove that an agreement existed to commit an illegal or tortious act, which resulted in the plaintiff's injury. Aranyosi v. Delchamps, Inc., 98-1325 (La. App. 1st Cir.6/25/99), 739 So.2d 911 (some citations omitted).
We hold that the pleadings placed ACL on notice of the fraud claim against it and that there is evidence to support the jury's conclusion that ACL committed fraud by participating in the suppression of the truth of the dangers of asbestos. Evidence exists in the record establishing *89 that ACL was a participating member of QAMA, and that QAMA supported the suppression of medical studies that indicated the dangers of asbestos fibers. Therefore, the jury could reasonably conclude that ACL's conduct was fraudulent.
THE CAUSATION PROBLEM IN ASBESTOS LITIGATION [22]
Asbestos litigation presents unique legal problems.
`Asbestos' is the name given to a family of hydrated silicate minerals which occur naturally as masses of fibers with the unique properties of relative indestructibility and high resistance to fire. These properties combine to make asbestos an invaluable ingredient in a variety of products used to protect human life. The heat-resistant properties and fibrous structure of asbestos make it extremely desirable as a fireproofing, insulating, and friction-resistant material. These unique properties make it a valuable ingredient in such products as brake shoes on automobiles, fireproof clothing, fire-resistant wallboard and cement, and coverings for pipes and electrical wiring. See U.S. Dep't of Health Educ., and Welfare Publ. L. No. 78-1594.
Masses of asbestos fibers, when disturbed in any manner, have a tendency to break easily into tiny dust particles which become suspended in the air. Extended periods of ingestion and inhalation of these particles have recently been linked to such debilitating diseases as asbestosis, bronchogenic carcinoma, and mesothelioma. Each of these diseases has a documented latency period of twenty to forty years after the initial exposure to asbestos. This latency period is explained by the fact that asbestos fibers, once inhaled, remain in place in the lung, causing a tissue reaction that is slowly progressive and apparently irreversible. Even if no additional fibers are inhaled, tissue damage may continue undetected for decades. Furthermore, the effect of the disease is cumulative because each exposure to asbestos dust can result in additional tissue damage. See generally Comment, Asbestos Litigation: The Dust Has Yet To Settle, 7 FORDHAM URB. LJ. 55, 63 (1978).
A major problem in asbestos litigation has been the inherent difficulty in identifying the manufacturer of the particular product that causes the plaintiffs injuries. Asbestos plaintiffs generally have been exposed to a wide variety of products containing asbestos. The probability that these plaintiffs were actually harmed by any particular asbestos product is a function of the percentage of asbestos in each product and the tendency of the asbestos to free itself from that product. The method in which a product is used or applied plays an important role in determining the propensity of that product to release asbestos fibers. Asbestos bonded in a finished product does not present significant health risks unless the product is disturbed in such a way as to free fibers in the air. On the other hand, sprayed asbestos insulation, which has a very high propensity to release asbestos dust, is extremely dangerous to health. Medical studies on asbestos exposure indicate that the diseases linked to asbestos inhalation increase in severity in a direct relationship to the length of exposure to asbestos dust.
To prevail, a plaintiff in an asbestos case must show, by a preponderance *90 of the evidence, that he was exposed to asbestos from the defendants' products, and that he received an injury that was 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 .
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. 1st Cir.1990).
In Quick v. Murphy Oil Co ., the court found that:
When evaluating liability in an asbestos claim, we apply traditional theories of tort liability (for example, negligence and products liability) which require proof of causation. See Cole v. Celotex Corp., 599 So.2d 1058 (La.1992); Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), cert. den. 465 U.S. 1102 , 104 S.Ct. 1598 , 80 L.Ed.2d 129 (1984). Asbestos cases typically involve multiple defendants and courts have analyzed the cases under concurrent causation, a doctrine which "proceeds from the assumption that more than one defendant substantially contributed to the plaintiffs injury." 210 E. 86th Street Corp. v. Combustion Engineering, Inc., 821 F.Supp. 125, 150 (S.D.N.Y.1993).
* * * *
In Dixie Drive It Yourself System v. American Beverage Co., supra, the Supreme Court stated that "conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm." Id., [ 242 La. 471 ,] 137 So.2d [298,] at 302 [(1962)]. The court stated that 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. The court thereby 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).
* * * *
The Louisiana Supreme Court recently stated that cause in fact is usually a "but for" inquiry which tests whether the harm would not have occurred but for the defendant's substandard conduct, and the substantial factor inquiry is an alternative method of analysis used when two or more combined causes are present. [cites omitted]. The substantial factor inquiry is applicable to this case because two or more causes are present.
Quick makes clear that a plaintiffs burden of proof against multiple defendants in a long-latency case 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. Thus, 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." Asbestos v. Bordelon, Inc., supra at 948. [23]
*91 We are satisfied that application of the above principles is appropriate in the instant cases and our review will be guided accordingly. Thus, we will examine the evidence relative to each plaintiff and determine if it was sufficient to support the jury's determination of causation.
JNOV ASSIGNMENT OF ERROR
Each appellant assigns as error the trial court's granting of JNOVs in two respects: 1) the trial court's raising the jury's determination of the plaintiffs' damage awards, and 2) the trial court's overturning the jury's findings of liability with respect to nine settling parties.
STANDARD FOR JNOV
In Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991), the court set forth the law regulating this procedure as follows:
In Scott v. Hospital Service District No. 1, 496 So.2d 270 (La.1986), we set forth the criteria to be used in determining when a JNOV is proper. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott, supra . In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.
See also Scott v. Hospital Service District No. 1, 496 So.2d 270 (La.1986); Maltby v. Lyttle, 99-1143 (La.App. 5th Cir.2/29/00), 758 So.2d 875 .
This strict standard for granting a JNOV was recently reaffirmed by the Supreme Court in Davis v. Wal-Mart, Inc., XXXX-XXXX (La.11/28/00), 774 So.2d 84 .
JNOV OVERTURNING LIABILITY AS TO NINE SETTLING PARTIES [24]
Appellants argue that the trial judge erred in granting JNOV in favor of *92 nine settling defendants [25] (Anchor Packing, Armstrong World Industries, Babcock & Wilcox, Combustion Engineering, Flexitallic, Garlock, Rapid American, Rock Wool Manufacturing, and Uniroyal), removing them from the virile share calculation of plaintiffs' damage awards. [26] In so doing, the trial court found:
This Court finds no evidence was introduced by defendants on the danger-in-fact or the utility of any of these nonparties' products or whether these nonparties were in fact the manufacturers of the particular products. Defendants did not introduce any evidence whether these products contained asbestos, whether the product produced dust in normal use, and/or what type of asbestos fibers were used. The defendants have not directed this court to any evidence proving fault by these nonparties.
The only evidence presented at trial regarding these nonparties or their products was testimony by some plaintiffs that these products were used at Avondale Shipyards and that they were believed to contain asbestos.
This is not sufficient evidence to establish strict liability under the unreasonably dangerous per se theory. [27]
As we stated above (in the Causation section), the first element of proof under either negligence or products liability is causation, and with multiple defendants, this inquiry is directed by the "but for" and "substantial factor" tests found in Quick v. Murphy Oil, supra . Reviewing the evidence in the record with these standards in mind, we agree with the appellants that as to four parties, Babcock & Wilcox, Combustion Engineering, Rapid American, and Rock Wool, the "blanket" JNOV was improper, as the record contains evidence that each product was used at Avondale and contained asbestos that could have contributed to the plaintiffs' dust exposure. The trial judge was legally incorrect when he made the determination that no reasonable mind could have found that these four manufacturers could be liable to plaintiffs for their injuries.
Many plaintiffs testified specifically that Babcock & Wilcox boilers were used on vessels at Avondale. They contained asbestos and asbestos cement, both of which were released into the environment when the boilers were installed and tested. Plaintiffs testified specifically that Combustion Engineering boilers were used at Avondale. They contained asbestos and asbestos cement similar to the Babcock & Wilcox boilers. Many plaintiffs in various occupations worked in the engine rooms in proximity to these products as the boilers were installed and tested.
Rapid American (Philip Carey before 1966) manufactured, among other products, Careytemp, an asbestos-containing pipe covering similar to Kaylo. Several plaintiffs identified Careytemp as used at Avondale. Burnett "Frenchy" Bordelon, head of the insulation shop at Avondale, identified it, in his deposition, as an insulation product used at Avondale. One other plaintiff identified a Rapid American asbestos cement used at Avondale. The record is replete with references that asbestos *93 pipe insulation created large amounts of asbestos dust during its cutting, installation, and also during repairs and removal. Several plaintiffs testified that pipe insulation often needed to be removed and/or repaired during the construction of new vessels as pipe welds were tested, for example, and that this activity created clouds of dust. Rock Wool manufactured insulation and Delta Made One Shot asbestos cement used at Avondale. Many plaintiffs, as well as Peter Territo and Danny Joyce, testified that One Shot was used at Avondale, and in fact it was described as the most commonly used asbestos cement there. Testimony established that One Shot contained asbestos and created copious amounts of dust when mixed with water. The dried cement also released large amounts of dust when it was ripped off the pipes by various trades of workers in the course of their duties (as, for instance, when pipe leaks were identified and repaired, or when insulation was replaced), which was frequently described by witnesses.
The evidence shows, however, that each plaintiff was not necessarily exposed to each of these four manufacturers' products. As noted previously, in asbestos cases, the term "exposure" refers to inhalation of asbestos fibers into the lungs. Asbestos v. Bordelon, Inc., supra . So although we find that the JNOVs in their favor were incorrect, it does not necessarily follow that these four manufacturers are liable to each plaintiff. Accordingly, we will consider each settling defendant's liability vis á vis each individual plaintiff, and alter the individual virile shares accordingly.
Regarding the products of Anchor

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1878390. Public record. Not legal advice.