Brady v. Bunge Corp.

582 So. 2d 346, 1991 A.M.C. 2336, 1991 La. App. LEXIS 1801, 1991 WL 101036
CourtLouisiana Court of Appeal
DecidedJune 13, 1991
DocketNo. 90-CA-0811
StatusPublished
Cited by3 cases

This text of 582 So. 2d 346 (Brady v. Bunge Corp.) 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
Brady v. Bunge Corp., 582 So. 2d 346, 1991 A.M.C. 2336, 1991 La. App. LEXIS 1801, 1991 WL 101036 (La. Ct. App. 1991).

Opinion

WILLIAMS, Judge.

Plaintiff, Peter Brady, was diagnosed on June 16, 1986, as suffering from grain asthma. He allegedly contracted this breathing condition while he loaded grain when employed as a longshoreman during the period of 1944 to 1981. On June 9, 1987, he filed suit against various riverfront grain elevators and against the companies which manufactured and sold the respiratory protection that he wore while working on the riverfront. In response, defendants filed a peremptory exception which raised the objection of prescription. Following a full hearing, the exception was maintained. The court’s reasons for judgment state the evidence preponderates that prior to 1984 and as early as 1978, Brady knew his breathing condition was aggravated by and/or related to grain dust. As a consequence, under both Louisiana and maritime law, the court found Brady’s cause of action had prescribed.

On appeal, Brady claims the trial court erred in maintaining defendants’ exception because the disputed factual issues should have been resolved by a jury and because the running of prescription did not commence until he was diagnosed as suffering from grain asthma. As we disagree with these contentions, we affirm the trial court’s judgment sustaining the exception and dismissing the suit as to all defendants.

STATEMENT OF FACTS

Peter Brady filed suit on June 9, 1987 against Bunge Corporation; Public Grain Elevator of New Orleans; St. Charles Grain Elevator, Inc.; Dockside Elevators, Inc.; Cargill, Inc.; Reserve Elevator Corporation; Continental Grain Company; Farmer’s Export Co-op; Mississippi River Grain Elevator, Inc., n/k/a Ferruzzi U.S.A., Inc.; Sears, Roebuck and Company and American Optical Corporation.1 His petition asserts that he was employed by T. Smith & Sons Stevedores and other stevedoring companies during the period of 1944 through 1981. He asserts that in the course of his employment, he came into contact with grain and other harmful dusts which were being unloaded from the defendant grain elevators onto the vessels on which he worked. Brady asserts that his job was to shovel grain into the hull of the vessel and, after grain elevators were mechanized, to hold and direct a blower which spread the grain into the hull of the vessel. He claims defendant grain eleva[348]*348tors are liable to him because they knew the dangers caused by exposure to grain dust yet failed and refused to warn him of the dangers, and withheld said information. The petition also claims that defendants Sears and American Optical are liable to him because they manufactured and/or sold the defective masks which he wore while loading grain.

Defendants separately filed numerous peremptory exceptions, all raising the objection of prescription. By joint stipulation, the parties agreed that if one of the exceptions was granted, plaintiffs suit would be dismissed in its entirety as to all parties. On October 24, 1989, the trial court signed its initial judgment, referring the objection of prescription to the merits or to trial limited to live testimony of the issue of prescription.

On November 2, 1989, defendants motioned to set the suit for a trial limited to the issue of prescription. Brady opposed the motion asserting that, as trial of the merits was to go forth in less than three months, a trial limited to the issue of prescription would not save time or expense. However, he did not object to a trial before a judge or claim to be entitled to a trial by jury on the exception.

The court set the exception for trial on January 6 and 24, 1990. Defendants’ first witness was Dr. Dominic Arcuri, an expert in Family Medicine. While he was attending LSU Medical School in 1978, Dr. Arcuri worked at Montelepre Hospital taking the medical history of patients. He testified that on January 10, 1978, he took Brady’s medical history when he was being admitted for a repair of an incisional hernia. Dr. Arcuri identified the medical report that he made during his examination of Brady and he verified that the informational contents of the history would have been provided by Brady. He attested that in the section of the case history designated as review of systems, i.e., respiratory system, Brady “admitted to being short of breath; history of emphysema, and a history of coughing at work.” He testified that the words “grain dust” were written in parentheses.

Dr. Albert H. Hyman, an expert in cardiology, was defendants’ second witness. He testified that he was on staff at Mercy Hospital in March 1984. At the request of Brady’s regular treating physician, he performed a consultation examination of Brady on March 27, 1984. He identified the Mercy Hospital record of the consultation. Dr. Hyman testified that when he does a consult,

It is [his] habit to go in the room without looking at the [patient’s] chart at all because what is really wanted is an independent opinion, so [he goes] in the room ... explainfs] why [he is] there and then write[s] down the — what the patient tells [him] as related to the question at hand.

Dr. Hyman then read the following from the Mercy Hospital case record on Brady:

“Patient sustained posterior — a posterior scar one week ago. Apparently uncomplicated but had two scars of what appears to be ventricular flutter at 325 breaths per minute.” That is the cardiogram.
“Had perhaps two bouts in three minutes. Patient does not have any recollection except for fast beat. No pain with it. Patient says coughing caused it to pump. He has emphysema for fifteen or twenty years which he attributes to smoking and being around grain in shipping.”

In response to direct inquiries, Dr. Hy-man affirmed that Brady told him he attributes his coughing to smoking and to being around grain in shipping.

Next, defendants introduced into evidence the January 2, 1990 deposition of Dr. Louis Harkey which had been taken for the purpose of perpetuation at the trial. Dr. Harkey, who .lives in Jackson, Mississippi, testified that he is a medical doctor and has completed residencies in neurosurgery and spinal surgery. While he was attending LSU Medical School, he worked at Monte-lepre Hospital. He said his externship involved performing after-hours laboratory examinations and taking admission histories and physicals. Dr. Harkey identified an admission history report that he made [349]*349of Brady on May 31,1981, when Brady was being admitted into Montelepre.

Dr. Harkey read from the report the following remarks: “ 'Patient has a history of emphysema and shortness of breath’— or shortness of breath — ‘times several years, secondary to smoking one to two packs per day for twenty years, and occupationally inhaled debris.’ ” In the social history section of the report, Dr. Harkey admitted the report states “works at T. Smith & Sons on the river. Loads Grain. Retiring July 14th.” Thereafter, Dr. Har-key clarified that it was unlikely that Brady had used the words “occupationally inhaled debris.” He stated those words would have been his interpretation of what Brady had said. He testified that those words in combination with what was written in the social history section, “implies the inhalation of grain dust.” He informed the court that if he had gathered information from prior hospital records which indicated Brady had emphysema secondary to smoking and from inhalation of grain dust at work, he would have confirmed the prior history with Brady.

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Related

Doe v. Cutter Biological
727 So. 2d 1187 (Louisiana Court of Appeal, 1999)
Huger v. SEWERAGE AND WATER BD.
672 So. 2d 1053 (Louisiana Court of Appeal, 1996)
Brady v. Bunge Corp.
588 So. 2d 100 (Supreme Court of Louisiana, 1991)

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Bluebook (online)
582 So. 2d 346, 1991 A.M.C. 2336, 1991 La. App. LEXIS 1801, 1991 WL 101036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-bunge-corp-lactapp-1991.