Dawsey v. Olin Corp.

782 F.2d 1254
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 18, 1986
DocketNo. 85-4012
StatusPublished
Cited by56 cases

This text of 782 F.2d 1254 (Dawsey v. Olin Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawsey v. Olin Corp., 782 F.2d 1254 (5th Cir. 1986).

Opinion

ROBERT MADDEN HILL, Circuit Judge:

Plaintiffs-appellants Lynn Dawsey and Dallas Dugas and intervenor-appellant Aetna Casualty and Surety Company (Aetna) appeal from a judgment for defendant-appellee Olin Corporation (Olin), entered after a jury answered special interrogatories in Olin’s favor following an extended trial of this case. Finding that the able trial judge committed no reversible error in any of the numerous issues raised by the appellants, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Olin operates an industrial chemical plant in the petrochemical complex west of the Lake Charles, Louisiana, area. On the morning of June 2,1982, Lynn Dawsey and Dallas Dugas were working as construe[1256]*1256tion carpenters for J.A. Jones Construction Co. (J.A. Jones) at the Conoco refinery just north of the Olin plant. Between 10:20 and 10:30 a.m. a valve malfunctioned at the Olin plant and released approximately .600 pounds of a chemical known as phosgene into the atmosphere.1

A southeast wind carried the phosgene towards the plaintiffs’ location approximately 740 yards north of the Olin plant. After Olin reported the release to Conoco, Conoco had all the employees of J.A. Jones, including Dawsey and Dugas, taken to the St. Patrick Hospital Emergency Room in Lake Charles by bus. A physician examined both plaintiffs and ordered chest x-rays and blood gas analyses; the examinations did not indicate a serious exposure to phosgene, and the x-rays and blood gas analyses were interpreted as normal. The plaintiffs were treated with oxygen, bronchodilators, and steroids and were then released.2 Dugas returned to the emergency room the next day complaining of weakness and nausea. The emergency room physician told him to take off work for twenty-four hours. Dugas returned to work the next day. Dawsey was laid off when he told his employer he was unable to work. A few weeks later J.A. Jones lost its construction contract with Conoco; neither plaintiff has worked steadily since then.

Dawsey and Dugas continued to have medical problems which allegedly arose from their exposure to phosgene. Both plaintiffs filed suit against Olin in Louisiana state court for damages supposedly caused by the exposure. The suits were removed to federal court by Olin and were consolidated for trial. Olin stipulated that it would be liable for any damages caused by phosgene exposure, and the cases went to trial on the issues of whether exposure had occurred and, if so, the amount of damages, if any.

At trial plaintiffs relied on the testimony of several medical doctors to show that they had been severely and permanently injured by their exposure to phosgene. Plaintiffs’ first expert medical witness, Dr. Edmond Camp, III, a board certified psychiatrist who first examined the plaintiffs almost two years after the accident, testified that Dawsey’s phosgene exposure caused him to have a hormonal deficiency which in turn caused him to be depressed. Dr. Camp further testified that the phosgene exposure caused permanent damage to the part of Dawsey’s brain controlling memory formation with the result that Dawsey would have permanent memory impairment. Dr. Camp also testified that Dugas suffered a hormonal deficiency and resulting depression and also incurred memory problems as a result of his exposure to phosgene. In conclusion, Dr. Camp expressed his opinion that the brain damage suffered by the plaintiffs would prevent them from ever returning to their former work.3

[1257]*1257Plaintiffs’ second expert medical witness, Dr. John McCutchen, a neurologist who first examined the plaintiffs over two years after the accident and only three weeks before trial, testified that both plaintiffs suffered from an organic brain syndrome due to phosgene poisoning. Dr. McCutchen explained that an organic brain syndrome involves a structural change in the brain and causes the plaintiffs “disturbanee[s] in judgment, in memory, at times in orientation, changes in personality, [and] depression.” On cross-examination Dr. McCutchen admitted that the tests performed on the plaintiffs when they were first seen in the emergency room did not prove that they had been exposed to a significant amount of phosgene.4

Plaintiffs’ third expert medical witness, Dr. Jana Kaimal, a board certified pulmonary disease specialist who saw and treated both plaintiffs shortly after the accident, testified by means of a video tape deposition that he first saw Dawsey eight days after the accident. At that time Dawsey told Dr. Kaimal that he had been exposed to phosgene gas and had passed out for several minutes. Dawsey further related that he suffered aches and pains, nausea, and extreme tightness of the chest the night of the accident. At the time Dawsey first visited Dr. Kaimal, he was still coughing and had shortness of breath on exertion. During his testimony, Dr. Kaimal read the conclusion in the report he prepared for the plaintiffs’ attorney on August 20, 1982.

“This is a 31-year-old man, who was exposed to phosgene gas on June 2nd, 1982. He at least lost consciousness temporarily. Since that time, he had developed symptoms suggestive of asthma and allergic rhinitis.” That means he had fever type of symptoms.
“As he has no other — no such history before, it is my impression that the disease is related to exposure. I believe the disability resulting from the disease is likely to be long-term. I believe he could work in areas where air is clean and free from fumes. He will incur continued medical care for foreseeable future. If he has developed asthmatic diathesis, this could remain a life-long problem.”

Dr. Kaimal further testified that he last saw Dawsey on September 18, 1982, and that Dawsey failed to appear for an appointment scheduled for November 18, 1982. Dr. Kaimal also testified that while Dawsey was capable of earning a living, he should not work in an environment where he would be exposed to dust or airborne chemicals.

Dr. Kaimal testified that when he first examined Dallas Dugas on June 30, 1982, Dugas related that he was coughing and had shortness of breath on exertion and that he had headaches, irritability, insomnia, and some pain in the upper abdomen. Dr. Kaimal further testified that a chest x-ray and lung function done on June 30 [1258]*1258showed normal, as did a second lung function done on July 12, 1982. Dr. Kaimal also testified that other lung tests conducted in his office after the first two tests indicated that Dugas’ lungs were smaller than normal. He stated that he could not explain why Dugas’ lungs would test smaller than normal. Dr. Kaimal also stated that he had numerous patients with restricted lungs who lead normal and productive lives.

Plaintiffs’ next expert medical witness, Dr. William Coulter, Jr., a board certified internal medicine specialist with a subspecialty in pulmonary disease who examined Dawsey in September 1982 at Aetna’s request, testified that he diagnosed Dawsey as having an improving case of chronic bronchitis. Dr. Coulter further testified that while the bronchitis could possibly have been caused by phosgene exposure, it was more likely that his bronchitis was caused by an allergy. Dr. Coulter also testified that Dawsey’s condition should not prevent him from working.

Plaintiffs’ last expert witness, Dr.

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Bluebook (online)
782 F.2d 1254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawsey-v-olin-corp-ca5-1986.