26,889 La.App. 2 Cir. 5/10/95, Boyd v. B.B.C. Brown Boveri, Inc.

CourtCourt of Appeal of Louisiana (US)
Citation656 So.2d 683
Parties26,889 La.App. 2 Cir
Decision Date10 May 1995

Page 683

656 So.2d 683
26,889 La.App. 2 Cir. 5/10/95, 101 Ed. Law Rep. 1265
Jeffrey M. BOYD, Plaintiff-Appellant
B.B.C. BROWN BOVERI, INC., et al., Defendant-Appellees.
No. 26889-CA.
Court of Appeal of Louisiana,
Second Circuit.
May 10, 1995.
Rehearing Denied June 15, 1995.

Page 684

M.F. Fayard, Jr., Bossier City, for appellant Jeffrey M. Boyd.

Vicki C. Warner, Mayer, Smith & Roberts, Shreveport, for appellees Gould, Inc., B.B.C. Brown Boveri, Inc.

James C. McMichael, Jr., Blanchard, Walker, O'Quin & Roberts, Shreveport, for appellees Monsanto Co. and Monsanto Enviro-Chem. Systems, Inc.

Bobby S. Gilliam and Penny D. Sellers, Wilkinson, Carmody & Gilliam, Shreveport, for appellees Southwestern Elec. Power Co., et al.

Jerald N. Jones, Office of the City Atty., Shreveport, for appellees the City of Shreveport.

Before MARVIN and HIGHTOWER, JJ., and GUIDRY, J. Pro Tem.

GUIDRY, Judge Pro Tem.

On April 22, 1993, Jeffrey M. Boyd filed a suit against Louisiana State University Medical Center and other companies for damages for personal injury allegedly resulting from exposure to toxic chemicals. The defendants filed peremptory exceptions of res judicata and prescription. On February 11, 1994, the trial court heard the exceptions and subsequently sustained the defendants' exception of prescription. Having dismissed plaintiff's suit as prescribed, the trial court did not consider nor issue any ruling on the exception of res judicata. Plaintiff appeals. For the following reasons, we affirm.

Page 685


The record reflects that on April 3, 1987, Shreveport firefighters responded to an early morning alarm at the Louisiana State University Medical Center (LSUMC) power plant in Shreveport, Louisiana. Jeffrey M. Boyd was one of the firefighters who responded to the call. Apparently, an electric transformer had ruptured and leaked fluids containing toxic substances, including Polychlorinated Biphenyls (PCBs) and dioxins, onto the generator located one floor below. A great deal of smoke containing the toxic substances was generated.

On March 31, 1988, Boyd and other firefighters filed several suits against the medical center and other companies. Four suits were consolidated. The plaintiffs in the consolidated actions alleged that they were damaged as a result of their exposure to toxic chemicals during the aforementioned incident at the LSU Medical Center.

Dr. Helmut Redetzki, a toxicologist, headed the team of LSUMC physicians who examined the firefighters. He concluded that none of the plaintiffs exhibited any signs or symptoms of acute toxicity due to exposure to PCBs. Dr. Gots, another toxicology expert, concluded that the degree of the firefighters' exposure was not sufficient to cause any medical problems or long-term effects. Dr. May, a physician employed by the City of Shreveport, examined Boyd and performed a fat biopsy. He also indicated that there was no connexity between Boyd's unexplained ailments and his exposure to the PCBs and dioxins.

On April 17, 1989, the trial court entered a pre-trial scheduling order requiring that each plaintiff firefighter provide within ninety days medical proof of his exposure to toxic substances and of the injuries sustained. Mr. Byron A. Richie, plaintiffs' attorney, wrote letters to each of his clients and requested medical information and documentation of their claims. The first letter was written on May 16, 1989; a second letter was written on June 22, 1989; and a third letter was sent by certified mail on August 9, 1989. Mr. Richie informed his clients that litigation would be costly and that the defense had them "outgunned" in terms of manpower and money. He reiterated to his clients the difficulty of proving their claims and the danger of a dismissal if they did not present some evidence to substantiate their claims.

On January 3, 1990, the defendants filed a motion seeking dismissal of plaintiffs' actions and attorney's fees against those plaintiffs failing to comply with the scheduling order. A hearing on the matter was set for February 5, 1990. The defendants contacted Mr. Richie offering not to seek attorney's fees if the non-complying plaintiff firefighters would agree to voluntarily dismiss their actions with prejudice. On January 29, 1990, Mr. Richie began calling his clients to advise them of the offer by defendants. On January 30 Mr. Richie, on behalf of his clients, including Jeffrey Boyd, sent a Motion to Dismiss to the Clerk of Court. On January 31, 1990, the trial judge signed a judgment dismissing the claim of Jeffrey M. Boyd and seven other plaintiffs, with prejudice.

On July 23, 1991, Boyd was diagnosed with cancer of the thyroid gland, i.e., follicular cancer. On July 29, 1991, Dr. Charles R. Byrd removed 70 percent of Boyd's thyroid gland and informed Boyd that he did not have the training or expertise to determine the cause of the cancer.

Boyd retained present counsel, Mr. M.F. "Rick" Fayard, in late 1991. Allegedly, counsel informed him that he could not revive his claim unless a medical expert could substantiate the causal connexity between plaintiff's PCB exposure and the thyroid cancer.

Boyd's medical records were sent to Dr. Arthur Zahalsky, an immunotoxicologist. Dr. Zahalsky wrote a letter on May 13, 1992, stating that "[Boyd's] memory functions and abilities of his immune compartment have been damaged." On November 4, 1992, upon Dr. Zahalsky's recommendation, Boyd and a control group of four firefighters not exposed to PCBs submitted blood samples to Dr. Peter McConnachie, Director of Immunotoxicology at the Memorial Medical Center in Springfield, Illinois. After running tests, Dr. McConnachie determined that "[t]here is clear evidence of bone marrow damage due to PCB" and "abnormalities of the immunological tests of Boyd are consistent with bone

Page 686

marrow precursor and B-cell progenitors being affected by exposures to PCB (Aroclors)." On December 1, 1992, he wrote a letter informing Boyd of his conclusions.

On April 22, 1993, Boyd filed a petition seeking damages allegedly resulting from his exposure to toxic substances, including PCBs, which occurred on April 3, 1987. His suit was entitled Jeffrey M. Boyd v. B.B.C. Brown Boveri, Inc., et al (4 consolidated cases). In his petition, Boyd made essentially the same allegations he made in the prior suit. The named defendants were virtually the same as those named in the aforementioned suit.

The defendants filed exceptions of res judicata and prescription. The trial court sustained the defendants' exception of prescription concluding that prescription on Boyd's cause of action began to toll on July 23, 1991, the date he was diagnosed with thyroid cancer. The trial court concluded that on July 23, 1991, Boyd had knowledge sufficient to commence the period of prescription under LSA-C.C. Art. 3492 and, thus, his petition filed April 22, 1993, was not timely. The trial court, finding against the plaintiff on the issue of prescription, did not reach the issue of res judicata. Plaintiff appealed.


Assuming for purposes of this assignment that res judicata is not a bar to the present claim,...

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