94-0585 La.App. 4 Cir. 5/16/95, Young v. Logue

• Court: Court of Appeal of Louisiana
• Writing for the Court: We would
• Citation: 94-0585 La.App. 4 Cir. 5/16/95, Young v. Logue, 660 So.2d 32 (La. App. 1995)
• Decision Date: 16 May 1995
• Parties: 94-0585 La.App. 4 Cir

Page 32

660 So.2d 32

94-0585 La.App. 4 Cir. 5/16/95

John YOUNG v. Otis T. LOGUE, et al.

No. 94-CA-0585.

Court of Appeal of Louisiana Fourth Circuit.

May 16, 1995.

Rehearing Denied Sept. 26, 1995.

Writ Denied Dec. 15, 1995.

Craig R. Nelson, Christina P. Fay, Hulse, Nelson & Wanek, New Orleans, for defendant, appellant Clemco Industries Corp.

Janet L. MacDonell, Deutsch, Kerrigan & Stiles, New Orleans, for defendant, appellant E.D. Bullard Co.

Joseph M. Bruno, Natasha R. Zimmerman, Bruno & Bruno, New Orleans, for plaintiff, appellee John Young.

Before BARRY, ARMSTRONG and PLOTKIN, JJ.

[94-0585 La.App. 4 Cir. 1] PLOTKIN, Judge.

In this case, plaintiff, John Young, asserts that he contracted silicosis due to the defective nature of protective airhoods manufactured and/or sold by certain named defendants. The jury found in Young's favor and awarded him $1,500,000 in damages. Based on our review of the record, we affirm in part, reverse in part, and render judgment.

FACTS

Procedural History

John Young was employed by Land and Marine Applicators/Coastal Coatings ("L & M") ¹ as a sandblaster from 1967 until 1980. On August 3, 1981, he brought suit against John M. "Red" Loerwald, the owner of L & M, certain executive officers of L & M, including Otis Logue and Manfred Nicklas, and certain sandblasting equipment manufacturers, including Pulmosan Safety Equipment Corp. ("Pulmosan") and Minnesota Mining & Manufacturing Co. ("3M"), alleging that each played a role in the development of his [94-0585 La.App. 4 Cir. 2] silicosis. In July of 1984, Young filed a Supplemental and Amending Petition for Damages that added, inter alia, Clemco Industries Corp. ("Clemco") and E.D. Bullard Company ("Bullard") as additional defendants, alleging that they manufactured and/or distributed defective sandblasting masks and hoods that Young used while employed at L & M. Pursuant to a Fifth Supplemental and Amended Petition for Damages filed in March of 1990, Young added Pauli & Griffin Company, Inc. ("Pauli & Griffin") as a defendant, alleging that it manufactured defective sandblasting masks, hoods, and other respiratory protection equipment Young used while employed at L & M.

Prior to trial, Young settled his claims against all defendants except Clemco, Bullard, and Pauli & Griffin. The matter proceeded to trial before Hon. Preston H. Hufft, Judge Ad Hoc, in July of 1993. At trial, over Clemco's objection, Young dismissed his claim against Pauli & Griffin after the parties reached a "Mary Carter" ² settlement. The jury returned a verdict against Clemco, Bullard, and Loerwald, finding them liable for Young's injury and awarding Young $1,500,000 in damages. The trial court reduced this by 1/3 to $1,000,000, representing Loerwald's virile share as a dismissed defendant. ³ Clemco and Bullard [94-0585 La.App. 4 Cir. 3] appealed suspensively to this Court after the trial court denied their various post-trial motions.

Sandblasting and Silicosis

Before turning to the specifics of this litigation, we pause briefly to explain what is meant by "sandblasting." Generally speaking, sandblasting refers to the process of cleaning and scoring metal surfaces by spraying the surface with sand propelled at high pressure by compressed air. When the sand particles impact the metal surface, they tend to fracture into smaller pieces. Normally, these particles are large enough that they either are trapped by the mucus membranes and are expectorated or they are engulfed in the lung by alveolar macrophobes that move the particles "back into the bronchioles where they are eliminated via the mucocilliary action of the bronchus." 4A Roscoe N. Gray & Louise J. Gordy, Attorneys' Textbook of Medicine 205A-7 to 205A-8 (3d ed. 1993). However, some of these pieces are invisible to the naked eye and are so small as to become respirable (i.e., they can be inhaled directly into one's lungs). Excessive exposure to these ultra-fine particles can lead to the respiratory disease silicosis.

Technically, sandblasting is a specific form of "abrasive blasting." Used properly, the term "abrasive blasting" denotes blasting operations in which the abrasive is anything other than silica sand, such as steel shot, Black Beauty (a coal derivative), or walnut shells. However, "sandblasting" is sometimes used in a more generic sense to refer to any form of abrasive blasting without regard to the specific abrasive being used.

According to one article admitted into evidence at trial, "[s]andblasting was introduced into industry in 1904 and is widely used in shipbuilding, oil rig and platform manufacture and maintenance and in other metal industries." Behzad Samimi et al., The Efficiency of Protective Hoods Used by Sandblasters to Reduce Silica Dust Exposure, 36 Am.Indust.Hygiene Assoc.J. 140, 140 (1973) (Plaintiff's Exhibit 131). Despite the efficiency of this process, because the use of silica sand can ultimately lead to silicosis, sandblasting has [94-0585 La.App. 4 Cir. 4] been outlawed in the United Kingdom and in other parts of Europe. Id.; see also Gray & Gordy, supra, at 205A-3 ("Sandblasting was banned in the United Kingdom in 1957 and in the European Community in 1966, but is still widely used in the United States, where cases of rapidly progressive silicosis due to this type of exposure have been reported."). In the United States, sandblasting and other forms of abrasive blasting have been subject to differing levels of government regulation, first in the 1910s and 1920s by the Bureau of Mines and later by the National Institutes of Occupational Safety and Health ("NIOSH") and by the Occupational Safety and Health Administration ("OSHA").

As noted above, sandblasting can lead to silicosis in the absence of adequate respiratory protection. "Silicosis is the pneumoconiosis produced by the inhalation of significant amounts (concentrations) of microscopic particles of crystalline free silica." Gray & Gordy, supra, at 205A-1. Silicosis is a progressive disease of the lung that ranges in degree from simple silicosis to conglomerate silicosis. Id. at 205A-9 to 205A-10; see also Parks v. Teledyne Ohio Cast, No. 3065, 1994 WL 101511, at * 1 (Ohio Ct.App. Mar 2, 1994). There is no known cure for the disease. Gray & Gordy, supra, at 205A-15.

Generally, diagnosis of silicosis is accomplished through two mechanisms. The first mechanism is an occupational history that is consistent with exposure to respirable free silica. The second mechanism is an X-ray evidencing radiologic changes "consistent with the characteristic pattern of silicosis." Gray & Gordy, supra, at 205A-11. Pulmonary function studies, that is, tests of an individual's breathing capacity, are also employed to ascertain whether a patient suffers from silicosis or from some other type of pulmonary disease. Id. at 205A-13.

The amount of respirable free silica associated with sandblasting is dependent on a number of factors. The most determinative of these factors is the type of job involved. According to literature produced and distributed by Clemco and admitted into evidence at trial, sandblasting operations can be divided into four categories: major sandblasting operations, medium sandblasting operations, minor sandblasting operations, and light duty sandblasting. Generally speaking, what distinguishes one category from another is the type of equipment used. For example, the air compressor may range from 20 to 80 cubic feet [94-0585 La.App. 4 Cir. 5] in a light duty job to 600 cubic feet in a major operation. Likewise, the nozzle employed in a light duty job may be 1/8"' in diameter, while in a major job it might be 3/8"'. Of course, the length of time in which sandblasting actually occurs has an impact on the amount of respirable free silica produced, as does the environment in which blasting takes place.

The Hoods

One method of providing adequate respiratory protection to sandblasters in an effort to prevent their contracting silicosis is through a sandblasting hood. These hoods come in two general types: those that provide an independent supply of uncontaminated air and those that filter outside air to remove all respirable particles before the blaster inhales them. These hoods and their alleged failure to provide Young with adequate respiratory protection constitute the heart of this litigation.

Young alleges that he wore three different types of protective hoods during his employment with L & M. The first hood was a canvas, non-air fed hood manufactured by Pulmosan. This hood was sold by Clemco as Model HC-1 and by Pulmosan as Model H-30. The second type of hood was an aluminum helmet, air fed hood manufactured by Bullard. It was sold by Clemco as a Model CE until 1963 and as a Model BB from 1963 to 1969; it was also sold by Bullard as a Model 36 from 1963 to 1969 and by Pauli & Griffin as a Number 36. The third type of hood was a plastic helmet, air fed hood manufactured by Bullard and sold by Clemco as a Model PAF from 1969 until 1972 and a Model PCE from 1972 to 1989; Bullard sold this hood as a Model 46. The following chart makes this information easier to comprehend:

[94-0585 La.App. 4 Cir. 6] TYPE OF HOOD                  MANUFACTURER  SELLER AND MODEL NUMBER
                Canvas, non-air fed hood       Pulmosan      Clemco Model HC"1
                                                             Pulmosan Model H"30
                Aluminum helmet, air fed hood  Bullard       Clemco Model CE (until 1963)
                                                             Clemco Model BB (1963"1969)
                                                             Bullard Model 36 (1963"1969)
                                                             Pauli & Griffin Number 36"LD
                Plastic helmet, air fed hood   Bullard       Clemco Model PAF (1969"1972)
                                                             Clemco Model PCE (1972"1989)
                                                             Bullard Model 46
                

It was undisputed at trial that Clemco did not manufacture any of these hoods. Rather, it merely acted as a...