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Williams. v. Placid Oil Co.

Court of Appeals of Louisiana, Third Circuit

August 2, 2017

JIMMY WILLIAMS, SR., ET AL.
v.
PLACID OIL COMPANY, ET AL

         APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, DOCKET NO. 76, 787 HONORABLE LALA B. SYLVESTER, PRESIDING

          Wells T. Watson Jeffrey T. Gaughan Baggett, McCall, Burgess, Watson & Gaughan, LA ATTORNEY FOR PLAINTIFFS/APPELLEES Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows

          Lewis O. Unglesby Lance Unglesby Unglesby Law Firm, ATTORNEY FOR PLAINTIFFS/APPELLEES Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows

          Donald Kelly William Townsend Kelly and Townsend Natchitoches, LA ATTORNEY FOR PLAINTIFFS/APPELLEES Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows

          Joseph B. Morton Richard M. Crump Ebony S. Morris Maron Marvel Bradley Anderson & Tardy LLC ATTORNEY FOR DEFENDANT/APPELLANT Ingersoll-Rand Company

          H. Alston Johnson, III Phelps Dunbar LLPATTORNEY FOR DEFENDANT/APPELLANT Ingersoll-Rand Company

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Elizabeth A. Pickett, John E. Conery, and D. Kent Savoie, Judges.

          Conery, J., concurs in part, dissents in part and assigns reasons.

          Savoie, J., concurs in part, dissents in part and assigns reasons.

          SYLVIA R. COOKS, JUDGE

         On August 9, 2003, Myra Williams died at the age of 59. Several months prior to her death, Myra was diagnosed as having incurable, malignant mesothelioma. She endured a difficult and painful battle with that disease until her death. Myra was married to Jimmy Williams, Sr. and was the mother of four children.

         Jimmy was exposed to asbestos fibers while working at the Placid Oil Facility in Natchitoches, Louisiana. Jimmy unknowingly brought the cancer causing fibers and dust home on his clothing after each day of work. Myra would handle and wash Jimmy's clothing, and sustained what is commonly referred to as bystander asbestos exposure. It is undisputed that Myra's constant exposure to Jimmy's work clothing caused her mesothelioma.

         Jimmy and the four children filed suit on March 16, 2004, against several defendants, namely Placid Oil Company, Ingersoll-Rand Company, Petro-Hunt, L.L.C., LLECO Petroleum Products, Inc., CanadianOxy Offshore Production Co., J. Graves Insulation Company, Inc., Shreveport rubber & Gasket company, Anco Insulations, Inc., Garlock, Inc., General Electric Company, DHEC Corporation.[1]Plaintiffs' suit included both a survival action filed on behalf of Myra and wrongful death actions on behalf of Jimmy and the four children against the defendants. Soon after filing suit, Plaintiffs dismissed Petro-Hunt, CanadianOxy, DHEC, Anco and LLECO without prejudice. J. Graves Insulation filed a motion for summary judgment. That motion was unopposed by any party, and was granted by the trial court, dismissing Plaintiffs' claims against it with prejudice. Prior to trial, Plaintiffs settled with Placid Oil, Shreveport Rubber & Gasket and General Electric. That left Ingersoll-Rand as the only named defendant that proceeded to trial.

         Ingersoll-Rand was the manufacturer of ten compressors that were installed in the "compressor room" of the Placid Oil facility. The turbo chargers and exhaust pipes for each compressor were insulated with asbestos. Plaintiffs also elicited testimony that the Ingersoll-Rand compressors had asbestos gaskets on them, which came directly from Ingersoll-Rand.

         Ingersoll-Rand argued the compressor insulation was covered with aluminum sleeves which prevented release of the asbestos fibers. This was disputed by several witnesses who maintained many of the exhaust pipes were not covered with aluminum sleeves. There also was testimony that the aluminum sleeves that were attached did not prevent release of asbestos dust in the compressor room.

         The sole exposure expert to testify at trial, Frank Parker, stated the compressors emitted "very significant [asbestos] dust, " which was visible to the naked eye in the compressor room. Thus, he concluded Jimmy was exposed to huge concentrations of asbestos dust. Mr. Parker also opined there was no way Myra could have handled Jimmy's clothing without suffering asbestos exposure.

         After a three-day bench trial, the trial court issued a judgment, accompanied by written reasons for judgment. As to the survival action, the trial court found Placid Oil and Ingersoll-Rand were at fault in causing Myra's mesothelioma and were each liable for their virile share. In regard to the wrongful death action, the trial court concluded that under the law Ingersoll-Rand was solely at fault in causing Myra's mesothelioma. Myra was awarded $3, 000, 000.00 in damages for her survival action. As to the wrongful death actions, Jimmy was awarded $1, 000, 000.00, and each of the four children were awarded $750, 000.00 each.

         Ingersoll-Rand has appealed the judgment of the trial court, asserting the following assignments of error:

1. The trial court erred in concluding that plaintiffs had proven a causal connection between the decedent's disease and Ingersoll-Rand Company products.
2. The trial court erred in declaring in a summary judgment that no fault could be allocated to J. Graves Insulation and that the judgment was a final judgment.
3. The trial court erred in assigning 50% responsibility to Ingersoll-Rand Company in the survival action.
4. The trial court erred in assigning 100% responsibility to Ingersoll-Rand Company in the wrongful death action.
5. The trial judge awarded excessive damages in the wrongful death action.

         ANALYSIS

         I. Ingersoll-Rand's Liability.

         Ingersoll-Rand argues the trial court erred in finding Plaintiffs proved a causal connection between Myra's disease and Ingersoll-Rand's products. Finding the evidence at trial established a causative link between Ingersoll-Rand's compressors and Myra's mesothelioma, we find this assignment of error without merit.

         The uncontradicted evidence established the compressor room at the Placid Oil facility housed ten compressors manufactured by Ingersoll-Rand. The corporate representative for Ingersoll-Rand, Gerald Swimmer, acknowledged in his deposition that the Ingersoll-Rand compressors contained asbestos material. Testimony established the compressors required asbestos insulation because in normal operation the turbo chargers and exhaust pipes on the compressor could reach temperatures in excess of one thousand degrees fahrenheit. Frank Parker, Plaintiffs' exposure expert, testified, at that time, the only available insulation was made of asbestos containing material.

         Testimony established that the intense vibrations of the compressors while running caused the release of asbestos fibers and dust from the insulation into the air. The compressors ran continuously and the vibrations from the compressors could be felt before even entering the compressor room. Frank Parker stated the vibrations that occurred when the compressors were running was the main factor in asbestos dust and fibers being released into the air. He gave the following testimony at trial as to the enormity of the Ingersoll-Rand compressors and the dust that was emitted from them due to the vibrations:

So these, these are big, you just, I mean you just gotta see them to believe them. And so anything like insulation, that type of thing on them is [going to] have tremendous vibrations and creates uh, very significant dust.

         Part of Jimmy's duties required him to clean and sweep up the compressor room, which had the unintended effect of causing any settled asbestos fibers and dust to circulate back into the air while he was sweeping. Several witnesses, including Jimmy Williams, Sr., Bill Frazier and Frank Parker testified that the most obvious and likely cause for Myra's asbestos exposure was Jimmy's work in the compressor room. These witnesses all testified there was a constant level of asbestos dust in the compressor room that was actually visible to the naked eye in sunlight.

         Ingersoll-Rand attempted to counter this testimony by maintaining the insulation on the compressors was covered with aluminum sleeves, which it argued prevented release of the asbestos fibers and dust. However, both Prentiss McLeod and Jimmy Williams, Sr. testified many of the turbo chargers and exhausts were not covered with aluminum sleeves. Most importantly, the great weight of the testimony, which the trial court accepted, established there was significant release of asbestos fibers and dust from the compressors.

         Ingersoll-Rand complains in its brief that Plaintiffs have failed to establish an exact "dose" of exposure to asbestos. However, a plaintiff is not required to produce such proof to prevail in his/her action. As Plaintiffs point out, the court in Robertson v. Doug Ashy Building Materials, Inc., 10-1547 (La.App. 1 Cir. 10/4/11), 77 So.3d 323, 336, writ ...


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