Brumfield v. Avondale Industries, Inc.

674 So. 2d 1159, 95 La.App. 4 Cir. 2260, 1996 La. App. LEXIS 913, 1996 WL 249860
CourtLouisiana Court of Appeal
DecidedMay 8, 1996
DocketNo. 95-CA-2260
StatusPublished
Cited by4 cases

This text of 674 So. 2d 1159 (Brumfield v. Avondale Industries, Inc.) 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
Brumfield v. Avondale Industries, Inc., 674 So. 2d 1159, 95 La.App. 4 Cir. 2260, 1996 La. App. LEXIS 913, 1996 WL 249860 (La. Ct. App. 1996).

Opinion

JiCIACCIO, Judge.

Plaintiffs, Charles Ray Brumfield and Victoria Nicotra Brumfield, appeal from two trial court judgments maintaining defendants’ exceptions of prescription. We reverse and remand the case to the trial court for further proceedings.

In May 1992, plaintiff filed suit against Avondale Industries, Inc., its executive officers, its insurers, and various suppliers and manufacturers of asbestos and silica-containing products, including Mine Safety Appliances Company, Mississippi Valley Silica Co., Inc., Commercial Union Insurance Co., Federal Insurance Co., Highlands Insurance Co., and Aetna Casualty and Surety Co., Inc. Plaintiff alleged that in October 1991, he was diagnosed with silicosis and asbestosis as a result of his occupational exposure to asbestos and silica-containing products used in the course of his employment. Defendants filed exceptions of prescription to the claims of Mr. and Mrs. Brumfield. The trial judge granted defendants’ exceptions of prescription and dismissed plaintiffs’ suit against them.

In support of their exceptions of prescription defendants submitted the deposition testimony of Dr. Joseph Mabey, excerpts from the deposition of Dr. James Whittington, Brumfield’s occupational/environmental history form completed as part of Avondale’s Medical, Safety and Industrial Hygiene Program, and other documentary evidence. In opposition to the defendants’ exceptions, plaintiffs also submitted Dr. Mabey’s deposition and excerpts from RPr. Whittington’s deposition. In addition, plaintiffs submitted an affidavit from Charles Brumfield, medical reports and other documents from plaintiffs Avondale personnel records, and medical records from East Jefferson General Hospital.

Charles Ray Brumfield worked as a sandblaster at Avondale’s shipyard from 1964 to 1965 and 1970 through 1981. During the 1970’s, Avondale began testing its employees who were exposed to silica or asbestos dust for pulmonary disease. As part of its pulmonary surveillance program, Avondale had contracted with the Westbank Surgical Clinic, Ochsner Medical Foundation and Drs. Joseph Mabey, James Whittington and F.T. Gidman to administer chest x-rays and breathing tests to the employees. In May 1971, Dr. Gidman examined plaintiff and administered plaintiffs first chest x-ray. Dr. Gidman sent a report dated May 31, 1971, to Avondale stating that plaintiffs chest x-ray showed early signs of fibrosis. There is no evidence that plaintiff was informed of the results of the 1971 chest x-ray.

On May 15, 1980, plaintiff completed the occupational/environmental history form for Avondale’s Medical, Safety and Industrial Hygiene Program. In answering the question, “As an adult have you ever suffered from any of the following diseases? Asthma, Cancer, Hemophilia, Silicosis, Heart Disease, Diabetes, Epilepsy, Any Lung Problems, Asbestosis,” plaintiff responded in the blank next to “Any Lung Problems” that he had “spots on lungs for six years.”

Plaintiff underwent another chest x-ray in mid-1981 which indicated pulmonary pathology. As a result, Dr. Whittington referred plaintiff to Dr. Brooks Emory, head of the pulmonary disease section at Ochsner Clinic. On August 18,1981, Dr. Emory sent a report to Avondale stating that he had examined plaintiff and that although plaintiff had no evidence of pleural disease Rhe had radio-graphic evidence of silicosis. Dr. Emory recommended that plaintiff be informed of the diagnosis and be removed from any environment that would be injurious to his lungs. In his affidavit submitted to the court, plaintiff states that he had never received a copy of Dr. Emory’s report.

On August 31, 1981, Dr. Whittington met with plaintiff and advised him that he had “sand in his lungs or blasters’ disease” but did not tell him that he had been diagnosed with silicosis. Dr. Whittington indicated that at that time plaintiff was feeling well and was able to work. He informed plaintiff that if he was removed from the dusty environment his lung condition probably would not wor[1161]*1161sen. On September 4, 1981, plaintiff was placed on “permanent restriction” at Avon-dale and told to avoid further exposure to dust in the workplace.

Each year following 1981, plaintiff continued to receive chest x-rays and pulmonary tests as part of the Avondale screening program. Following each examination he received a standard memo from the examining physician which stated:

There have been no significant changes in your chest x-ray and/or pulmonary function test since the last time the studies were conducted. You may continue working in your present job area using the proper respiratory protective devices.

Plaintiff continued to work full-time and received no treatment for silicosis. However, in January 1982, plaintiff filed a claim under the Longshore and Harbor Workers’ Compensation Act (LHWCA).

In November 1984, Dr. Mabey, a physician at Ochsner, assumed responsibility for the medical surveillance program at Avondale. He met with plaintiff on several occasions, and discussed his condition. Dr. Mabey also informed plaintiff that he had “sand in his lungs” but did not specifically use the term silicosis. When Dr. Mabey examined plaintiff on January 3, 1985, hej^sent him back to see Dr. Emory due to plaintiffs respiratory complaints and chronic bronchitis. On January 18, 1995, Dr. Emory examined plaintiff and concluded that he had silicosis. On February 11, 1985, Dr. Mabey met with plaintiff and explained to him Dr. Emory’s findings and the results of the pulmonary function tests.

In August 1987, plaintiff underwent another chest x-ray and pulmonary function test. On September 15, 1987, Dr. Mabey reported to plaintiff the new x-ray and lung capacity test results. The test results indicated the presence of silicosis and coalescing nodules in the upper lobe of the lung. According to Dr. Mabey, he specifically told plaintiff that the coalescence of nodules indicated plaintiffs lung condition was quite serious. However, in the written standard memo dated October 23, 1987 sent by Dr. Mabey to plaintiff reporting the results of the August 1987 test results, Dr. Mabey stated:

I have reviewed your medical tests (chest x-ray and/or pulmonary function test) taken in August 1987.
There have been no significant changes in your chest x-ray and/or pulmonary function test since the last time the studies were conducted. You may continue working in your present job area using the proper protective devices as needed.

Plaintiff saw Dr. Mabey three years later on September 26,1990, and Dr. Mabey noted in his records “patient knows well his pulmonary pathology.” According to Dr. Mabey, plaintiff told him he was fully aware of his lung problems.

In March 1992, after plaintiffs yearly chest x-ray indicated that he may have had bronchogenic carcinoma, plaintiff went to see Dr. Bernard Brach at East Jefferson Hospital. On March 25, 1992, following the administration of several tests, Dr. Brach diagnosed plaintiff with having silicosis, asbestosis and Igsilico-tuberculosis. Plaintiff filed suit on May 26, 1992. Defendants subsequently filed their exceptions of prescription which the trial court maintained.

On appeal, plaintiffs argue that their claim for damages as a result of Mr. Brumfield’s silico-tuberculosis had not prescribed because he was not diagnosed with silico-tuberculosis until March 1992 when he went to see Dr. Brach at East Jefferson Hospital. Alternatively, plaintiffs argue that Mr.

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674 So. 2d 1159, 95 La.App. 4 Cir. 2260, 1996 La. App. LEXIS 913, 1996 WL 249860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brumfield-v-avondale-industries-inc-lactapp-1996.