McKay v. Assured Inspection Management, Inc.

588 So. 2d 729, 1991 La. App. LEXIS 2761, 1991 WL 223768
CourtLouisiana Court of Appeal
DecidedOctober 16, 1991
DocketNo. 91-CA-259
StatusPublished
Cited by1 cases

This text of 588 So. 2d 729 (McKay v. Assured Inspection Management, 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
McKay v. Assured Inspection Management, Inc., 588 So. 2d 729, 1991 La. App. LEXIS 2761, 1991 WL 223768 (La. Ct. App. 1991).

Opinion

KLIEBERT, Chief Judge.

This litigation, which was in the posture of a worker’s compensation suit when tried in the court below, is before us on an appeal taken by the plaintiff from a judgment of the lower court which granted the defendants’ motion for involuntary dismissal. We affirm the trial court’s decision.

The original petition was filed by plaintiff, Stephen W. McKay, on July 25, 1983. In it he recited that as a result of exposure to radiation while in the employ of OIS Mobile Lab, Inc. in 1978 through 1979 and Assured Inspection Management, Inc. in 1979 and 1980 he became the victim of testicular cancer which had metastasized and as a consequence of which he had become permanently disabled.

An amending petition was filed on January 10, 1985 by Laura McKay alleging that the original plaintiff had died of cancer on February 6, 1984 and praying that she, his mother and sole heir, be substituted as party plaintiff. This and yet another amending petition, filed on February 29, 1986, joined other parties defendant and asserted a cause of action in tort in addition to the original claim in compensation. Following hearings and rulings on various motions and exceptions there was left for decision by the trial court only the compensation claim against Mobile Lab and Assured Inspection.

Trial was held on October 23, 24 and 25, 1990. The evidence presented by the plaintiff, in addition to her own testimony, consisted for the most part of that of Dr. Donna Ryan and Dr. Robert D. McAffee, and a Mr. Cliff McQuillian, a principal with Assured Inspection, who testified with respect to the decedent’s employment as an x-ray technician inspecting pipe welds and the equipment used, etc.

All parties agreed that there are two possible bases of recovery in compensation. First, under R.S. 23:1031, relative to personal injury by accident arising out of the employment and, second, R.S. 23:1031.1 relating to “occupational disease.” With re[730]*730spect to the defendant Mobile Laboratories, Inc., the trial judge found: 1) the decedent had not been employed for twelve months, 2) the “overwhelming preponderances” rule developed under R.S. 23:1031.1 was applicable, and 3) plaintiff failed to meet it. With respect to Assured Inspection, the court below referred to an incident testified to by Mr. McKay as having occurred on September 17, 1979 and, applying the preponderance of evidence rule, found the plaintiff had failed to meet that rule.

The plaintiff-appellant raises two “Assignments of Error” before this Court. The first is that the trial court failed to distinguish the “medical” meaning of cause from the “legal” meaning of cause and improperly concluded that “the decedent’s accidental exposure to emergency levels of radiation could not have caused his cancer,” relying on expressions found in Hammond v. Fidelity and Cas. Co. of New York, 419 So.2d 829 (La.1982).

Appellant produced the two expert witnesses, referred to previously, who testified with respect to the “cause” of the decedent’s cancer. Dr. Donna Ryan is a 1970 graduate of the L.S.U. School of Medicine and was accepted by all parties as an expert in the field of oncology. Dr. Robert B. McAffee is a graduate of Central Methodist College, Fayette, Missouri, with a Bachelor of Arts degree from tha:t institution together with a Ph.D. from Tulane University in physiology. He was employed as a professor/researcher at the University of New Orleans and, after extensive questioning as to his background and qualifications, was accepted by the trial court as an expert in the field of physiology.

Dr. Ryan was first called upon to treat Mr. McKay in September 1982, at which time he had embryonal carcinoma of the testes which had metastasized to the lungs. With respect to the question of radiation being a cause of testicular cancer, she testified as follows:

“Q. Okay. You spent some time trying to isolate potential causes by talking with Stephen and his mother, is that right?
A. Oh, yes.
Q. Alright. And you consulted some respected medical literature to see other potential causes of testicular cancer, didn’t you?
A. In — let me answer the question this way. Over the year and a half that I took care of Stephen, on several occasions we discussed what caused his cancer. And so we went over, you know, what the prior testimony several times. And in relation to what investigations I did, I looked in the textbook and discussed it with my colleagues and particular the issue of radiation exposure and testicular cancer and there was no known link that I could find from just cancer textbooks or from discussion with oncologists.
Q. Is it true that there are many instances where you can’t associate any known risk factor to testicular cancer that has developed?
A. In individual patients, yes, it’s not unusual to see a patient who has no known risk factors.
Q. Is it true that embryonal cell cancer has nothing to do with when you are an embryo?
A. Yes, that’s true.
Q. And isn’t it true that you don’t know what caused Stephen McKay’s testicular cancer?
A. That’s true.
MS. VAN MEERVALD;
No further questions.
THE COURT:
Cross?

CROSS EXAMINATION

BY MR. LOGAN:
Q. Dr. Ryan is there a particular age group in which you find testicular cancer among male patients?
A. Yes, it’s found in younger men, usually between 20 and 40. The, there are two types: seminomas, which occur a little bit over the age group, and the non-seminomas, which are a little younger. But the 20 to 40 is the general age span that it’s found.
[731]*731Q. Did Stephen McKay fall within that age, that age factor?
A. Yes. Yes, he did.
Q. Is it possible to have an individual falling within that age category whose mother did not ingest DES, he did not have an undescended testicle and did not have mumps orchitis, that subsequently develops testicular, embryonal testicular cancer?
A. That’s correct. It’s not unusual to see a patient with testicular cancer who has no known risk factors.”

In response to questioning by the trial judge, this witness gave the following testimony:

“THE COURT:
What did he tell you happened?
THE WITNESS:
Well, I routinely ask the patients, cancer patients, about radiation exposure. And throughout his illness Mr. McKay asked me several times whether radiation could be a factor in his developing testicular cancer. And he was particularly concerned about an incident that he related to me.

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Bluebook (online)
588 So. 2d 729, 1991 La. App. LEXIS 2761, 1991 WL 223768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckay-v-assured-inspection-management-inc-lactapp-1991.