Adams v. Asbestos Corp. Ltd.

914 So. 2d 1177, 2005 La. App. LEXIS 2271, 2005 WL 2810684
CourtLouisiana Court of Appeal
DecidedOctober 28, 2005
Docket39,952-CA
StatusPublished
Cited by9 cases

This text of 914 So. 2d 1177 (Adams v. Asbestos Corp. Ltd.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Asbestos Corp. Ltd., 914 So. 2d 1177, 2005 La. App. LEXIS 2271, 2005 WL 2810684 (La. Ct. App. 2005).

Opinion

914 So.2d 1177 (2005)

J.B. ADAMS, et al., Plaintiffs-Appellants
v.
ASBESTOS CORPORATION LTD., et al., Defendants-Appellees.

No. 39,952-CA.

Court of Appeal of Louisiana, Second Circuit.

October 28, 2005.

*1178 LeBlanc & Waddell, by Jody E. Anderman, Brian F. Blackwell, Baton Rouge, Baron & Budd, by Lawrence G. Gettys, Kevin D. McHargue, Sherri A. Saucer, Baton Rouge, for Plaintiffs Appellants.

Phelps Dunbar, by H. Alston Johnson III, Jane H. Barney, Annette N. Peltier, Baton Rouge, for Defendants Appellees.

Before STEWART, CARAWAY, PEATROSS, MOORE and LOLLEY, JJ.

STEWART, J.

This is an appeal from a summary judgment in favor of the defendant, Eaton Corporation. The trial court determined that asbestos is a covered pathogen under the 1952 version of La. R.S. 23:1031.1, which first provided workers' compensation coverage for occupational diseases, and dismissed the survival action of the plaintiffs, heirs of Walter Counts, on the grounds that workers' compensation provides the exclusive remedy. Because we find no genuine issue of material fact precluding summary judgment, we affirm.

FACTS

This suit is part of ongoing litigation in which a group of plaintiffs joined together to seek damages from several defendants for diseases allegedly caused by long-term exposure to asbestos in the workplace. Plaintiffs in this matter are the heirs of Walter Counts, a former employee of Libbey-Owens-Ford Company ("LOFC") who died of lung cancer on November 28, 1997. Counts' heirs joined the suit in 1998. LOFC was added as a defendant in 1999, and in 2001, Eaton Corporation ("Eaton") was added as a successor-in-interest to LOFC. For clarity, Eaton maintains that it is the parent corporation of Aero-Quip Vickers, Inc., which is the successor-in-interest to LOFC.

On August 4, 2003, Eaton filed a motion for summary judgment seeking to have the plaintiffs' survival and wrongful death actions dismissed on the grounds that workers' compensation provides the exclusive remedy. The focus for purposes of this appeal is the survival action; the parties appear to agree that the wrongful death action is governed and precluded by the current version of La. R.S. 23:1031.1. Another fact not in dispute is that the survival action is subject to the 1952 version of La. R.S. 23:1031.1, which defines an occupational disease as "[p]oisoning by or other disease resulting from contact with" specified substances listed thereafter, including "oxygen, nitrogen, carbon, and their compounds" and "metals other than lead and *1179 their compounds." The statute also specifies for coverage diseases caused by exposure to X-rays or radio-active substances, asbestosis, silicosis, dermatosis, and pneumoconiosis. At issue is whether asbestos is an oxygen compound or a metal compound under the 1952 version of La. R.S. 23:1031.1 such that diseases resulting from contact with it are considered occupational diseases covered by workers' compensation.

In support of its motion for summary judgment, Eaton offered the affidavit of Dr. Harry E. Ensley, a professor of chemistry at Tulane University. Dr. Ensley's affidavit states that he studied the chemical composition and structure of the various forms of asbestos and that chemistry involves the study of compounds and their constituents. Dr. Ensley defined "compound" as "a substance containing two or more elements combined in fixed proportions." He then explained that the forms of asbestos contain both oxygen and metals combined with other elements in fixed proportions. As he stated, "[E]ach asbestos compound contains oxygen atoms numbering half or more of the total number of atoms in the compound." He concluded that asbestos is both an oxygen compound and a metal compound. Anticipating the plaintiffs' arguments, Dr. Ensley stated that no commonly used term in chemistry would limit either "oxygen compounds" or "metal compounds" to something less than all chemical compounds containing at least one atom of oxygen or one atom of metal, respectively. Dr. Ensley also asserted that classification of asbestos as a mineral, which is defined as "an element of chemical compound that is normally crystalline...," does not change the fact that it is also an oxygen compound and a metal compound.

In addition to the affidavit, Eaton offered Dr. Ensley's curriculum vitae and a copy of House Bill 1098, which enacted the original version of La. R.S. 23:1031.1 of 1952, La. Acts 532, to provide workers' compensation coverage for occupational diseases. Eaton also included a statement of undisputed fact providing that asbestos is an oxygen compound and a metal compound, other than lead.

In opposition to Eaton's motion, the plaintiffs offered the affidavit of Dr. René A. De Hon, a professor with doctorates in geology and geochemistry. Dr. De Hon disagreed with the assertion that asbestos is an oxygen compound or metal compound. He noted that La. R.S. 23:1031.1 does not refer to asbestos by name. He also noted that while the statute refers to "oxygen, nitrogen, carbon, and their compounds" and "metals and their compounds," it does not refer to compounds containing these elements or compounds containing metal. Thus, the gist of his opinion was that while asbestos contains oxygen and metals, it is neither an oxygen compound nor a metal compound. He described asbestos as a silicate mineral and described minerals as "naturally occurring, inorganic crystalline, compounds." He explained that minerals are classified according to their chemical composition and the crystalline structure of their constituent atoms. He further explained that asbestos is a silicate mineral and is considered a silicate compound. He described the chemical composition of silicate minerals as alkali ions and metal ions bound to a silicate complex ion consisting of "Si atoms bound to 4 oxygen ions to form a tetrahedron." According to Dr. De Hon, the unique physical properties inherent in the chain structure of asbestos make it distinct from elemental or molecular oxygen and elemental metals or ions. Moreover, it is the physical properties of asbestos, rather than its composition, that make it a health risk. He concluded that although silicate minerals contain oxygen and one or more metal *1180 ions, they are not considered as "primarily" metal compounds or oxygen compounds "in the sense that one does not normally think of asbestos or any other silicate mineral when reference is made to `oxygen and its compounds' or `metals and their compounds'." Plaintiffs also offered a copy of Dr. De Hon's curriculum vitae.

At the hearing on the motion for summary judgment, Eaton objected to Dr. De Hon's affidavit on the grounds of relevance arguing that as a geologist he was not qualified to discuss chemical compounds. The trial court ordered the affidavit admitted, noting that he would give it the "proper consideration." The trial court ultimately granted Eaton's motion for summary judgment dismissing the wrongful death and survival actions of the plaintiffs. In the reasons for judgment, the trial court concluded that asbestos is included in the 1952 version of La. R.S. 23:1031.1 as both an oxygen and a metal compound. The reasons for judgment state:

In accordance with the affidavit of Dr. Harry E. Ensley, asbestos is an oxygen compound and a metal compound. The plaintiffs' expert, Dr. René De Hon, is not an expert in chemistry and therefore cannot provide expert testimony as to chemical compounds. Accordingly, from a review of the record, it is undisputed that while asbestos is a mineral, it is an oxygen and metal compound.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bozeman v. UNION CARBIDE CORPORATION
70 So. 3d 169 (Louisiana Court of Appeal, 2011)
Rando v. Anco Insulations Inc.
16 So. 3d 1065 (Supreme Court of Louisiana, 2009)
Spillman v. Anco Insulations, Inc.
994 So. 2d 132 (Louisiana Court of Appeal, 2008)
Jackson v. BARD ACCESS SYSTEMS
974 So. 2d 187 (Louisiana Court of Appeal, 2008)
Terrance v. Dow Chemical Co.
971 So. 2d 1058 (Louisiana Court of Appeal, 2007)
Grant v. American Sugar Refining, Inc.
952 So. 2d 746 (Louisiana Court of Appeal, 2007)
Graves v. Riverwood Intern. Corp.
949 So. 2d 576 (Louisiana Court of Appeal, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
914 So. 2d 1177, 2005 La. App. LEXIS 2271, 2005 WL 2810684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-asbestos-corp-ltd-lactapp-2005.