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White v. Entergy Gulf States Louisiana, L.L.C.

Court of Appeals of Louisiana, First Circuit

November 10, 2014

DOROTHY CARTER WHITE, LUCY WHITE, TOMMY LLOYD WHITE, JR., FREDERICK WHITE, AND WILLIAM WHITE
v.
ENTERGY GULF STATES LOUISIANA, L.L.C., EAGLE INCORPORATED, TAYLOR-SEIDENBACH, INC., THE J. GRAVES INSULATION COMPANY, INC., UNION CARBIDE CORPORATION, AND XYZ INSURANCE COMPANY

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C605259, Division D, Section XXI The Honorable Janice G. Clark, Judge Presiding

Jeffrey T. Gaughan Wells T. Watson Lake Charles, Louisiana and Lewis O. Unglesby Baton Rouge, Louisiana Attorneys for Plaintiffs-Appellees, Dorothy Carter White, Lucy White, Tommy Lloyd White, Jr., Frederick White, and William White

Erin Fury Parkinson Jose L. Barro, III Shannon S. Sale Thomas M. Flanagan New Orleans, Louisiana Attorneys for Defendant/Third Party Plaintiff-Appellant, Entergy Gulf States Louisiana, L.L.C.

John J. Hainkel, III Angela M. Bowlin James H. Brown, Jr. New Orleans, Louisiana Attorneys for Defendant-Appellee, CBS Corporation, a Delaware Corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation

John J. Hainkel, III Angela M. Bowlin James H. Brown, Jr. New Orleans, Louisiana Attorneys for Defendant-Appellee, General Electric Company

John J. Hainkel, III Angela M. Bowlin James H. Brown, Jr. New Orleans, Louisiana Attorneys for Defendant-Appellee, Foster Wheeler, L.L.C.

BEFORE: PARRO, GUIDRY, WELCH, CRAIN, AND DRAKE, JJ.

DRAKE, J.

This survival action involves a claim by the survivors of Tommy Lloyd White, Sr. (Mr. White) against Entergy Gulf States Louisiana, L.L.C. (Entergy). The lawsuit asserts damages based upon Mr. White's contraction of and death from mesothelioma, a long-latency disease resulting from exposure to asbestos-containing products (ACPs). Mr. White's surviving spouse and adult children (Plaintiffs[1]) initially filed suit against numerous defendants, including manufacturers and distributors of the ACPs, Mr. White's previous employer, and owners of the premises where Mr. White was allegedly exposed to the ACPs. However, all defendants settled with Plaintiffs or were dismissed prior to trial, except Entergy, General Electric Company (G.E.), CBS Corporation/Westinghouse Electric Corporation (CBS), and Foster Wheeler, L.L.C.

After a two-day bench trial, the district court ruled in favor of Plaintiffs and awarded general damages in the sum of $3, 800, 000 ($3.8 million) for Mr. White's survival claim. Entergy now suspensively appeals, asserting two assignments of error. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

From 1955 to 1974, Mr. White worked as an operator for Entergy at an indoor facility in East Baton Rouge Parish, Louisiana, known as the Louisiana Station. The Louisiana Station, originally built in the 1930s, was a steam, turbine-powered, electricity generating facility, which also provided steam to the nearby Exxon Refinery. As an operator, Mr. White's primary objective was to ensure that the equipment of the Louisiana Station was running correctly. During Mr. White's eight-hour shifts at the Louisiana Station, he maintained and performed minor maintenance on machinery and equipment, including boilers, turbines, and support pumps. During the performance of his duties on Entergy's premises, Mr. White was exposed to asbestos dust and fibers.

On July 1, 2011, Mr. White was diagnosed with mesothelioma at the age of seventy-nine. Mesothelioma is a fatal cancer of the lining of the lungs; it is almost always associated with exposure to ACPs. Mesothelioma is a long-latency disease, meaning that it does not manifest itself until anywhere from twenty to forty years after significant exposure to asbestos.[2] See Terrance v. Dow Chem. Co., 06-2234 (La.App. 1 Cir. 9/14/07), 971 So.2d 1058, 1062, writ denied, 07-2042 (La. 12/14/07), 970 So.2d 534. On July 25, 2011, Mr. White began hospice care in his home, where he remained until his death on August 8, 2011.

After Mr. White's death, his surviving spouse and adult children sued a number of defendants, seeking damages for injuries Mr. White sustained as a result of his exposure to ACPs during his employment with Entergy. The plaintiffs sought to recover general and special damages through a survival and wrongful death action, pursuant to Louisiana Civil Code articles 2315.1 and 2315.2.[3] Entergy then filed a cross-claim and third party demand against various other defendants, asserting fault, negligence, and strict liability among those parties.

Prior to trial, the parties stipulated that the case would proceed pursuant to Mr. White's survival action only against Entergy.[4] Following trial, the district court ruled in favor of Plaintiffs and awarded general damages in the sum of $3.8 million for Mr. White's survival claim. The court granted Foster Wheeler's motion for summary judgment. The court also ruled in favor of G.E. and CBS, dismissing, with prejudice, Entergy's third-party demands against those ...


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