Terrance v. Dow Chemical Co.

Decision Date14 September 2007
Docket NumberNo. 2006 CA 2234.,2006 CA 2234.
Citation971 So.2d 1058
PartiesSadie Mae TERRANCE, et al. v. THE DOW CHEMICAL COMPANY, et al.
CourtCourt of Appeal of Louisiana — District of US

for Plaintiffs-Appellees, Sadie Mae Terrance, et al.

Gary A. Bezet, Barrye P. Miyagi, Gregory M. Anding, Carol L. Galloway, Alicia M. Wheeler, Baton Rouge, for Defendant-Appellant, Exxon Mobil Corporation.

Before: CARTER, C.J., PETTIGREW, and WELCH, JJ.

CARTER, C.J.

This survival action involves a claim by the estate and surviving spouse of James Terrance (Mr. Terrance) against Exxon Mobil Corporation (Exxon). The lawsuit asserts damages based upon Mr. Terrance's contraction of and death from mesothelioma, a long-latency disease resulting from exposure to asbestos-containing products (ACPs). Plaintiffs1 initially filed suit against numerous defendants, including manufacturers and distributors of the ACPs, general labor contractors for whom Mr. Terrance was previously employed, and a variety of premises owners, including Exxon, where Mr. Terrance was allegedly exposed to the ACPs. However, all defendants settled with plaintiffs or were dismissed prior to trial except Exxon.

After a six-day jury trial, the jury awarded general damages in the sum of $5,000,000.00 for Mr. Terrance's survival claim, plus past medical expenses and lost wages.2 Exxon's motions for judgment notwithstanding the verdict (JNOV), and alternatively, for new trial or remittitur were denied by the trial court, and judgment was rendered in accordance with the jury verdict. Exxon appeals, asserting ten assignments of error. For the following reasons, we affirm.

BACKGROUND

During the years of 1964 through 1970, Mr. Terrance worked at the Baton Rouge Exxon refinery as a maintenance/laborer for two different employers at different times, Jacobs Constructors (Jacobs) and Nichols Construction Company (Nichols). Exxon contracted with a variety of construction companies such as Nichols and Jacobs for maintenance and construction work at the Exxon refinery. Most of the contract jobs lasted two-to-three months with eight-hour shifts in what was commonly referred to as "turn-around" projects. The work that Mr. Terrance performed at Exxon involved the chipping and stripping of insulation off of pipes, as well as the clean up and disposal of the old insulation material. All of the work was done in preparation for new insulation to be installed around the pipes. The old insulation contained asbestos, which became very dusty as it was stripped, gathered, and disposed of. As a result, Mr. Terrance was routinely exposed to asbestos dust and fibers while working at the Exxon refinery. During these same years, Mr. Terrance also worked at other oil and gas refineries, including Dow Chemical Company (Dow), performing various maintenance/labor jobs, but not the routine handling of large quantities of insulation containing asbestos.

In September 2001, Mr. Terrance was diagnosed with mesothelioma. He died four months later, on January 30, 2002. Mesothelioma is a fatal cancer of the lining of the lungs; it is almost always associated with exposure to ACPs. Mesothelioma is a long-latency disease, meaning that it does not manifest itself until anywhere from twenty-to-forty years after significant exposure to asbestos.

After Mr. Terrance's death, his surviving spouse and adult children (plaintiffs) filed a wrongful death and survival action suit individually, and on behalf of Mr. Terrance's estate, against the manufacturers and distributors of the ACPs to which Mr. Terrance had been exposed, Mr. Terrance's various employers, and the numerous premises owners where Mr. Terrance was exposed to the ACPs. The lawsuit alleged that due to the negligence, strict liability, and/or intentional acts of the defendants, Mr. Terrance had contracted and died from mesothelioma as a result of his significant exposure to ACPs. At the time of trial, only Exxon remained as a defendant and the only claim at trial involved Mr. Terrance's survival action.

Before trial, the trial court made a legal determination that Mr. Terrance's claim against the premises owners (Exxon and Dow) was not barred by the Louisiana Workers' Compensation Act (LWCA) because Mr. Terrance did not qualify as a statutory employee of the premises owners, and because mesothelioma was not a covered occupational disease under the version of the LWCA in effect at the time of Mr. Terrance's exposure to asbestos. After trial, the jury returned a verdict in favor of the plaintiffs, finding that Mr. Terrance's mesothelioma was caused by his exposure to asbestos. On the verdict form, the jury was asked to determine whether Mr. Terrance was at fault; whether Mr. Terrance's employers, Jacobs and/or Nichols, were at fault; whether the manufacturers and distributors of the ACPs, Johns-Manville Corporation, Eagle Pitcher, HK Porter, and Foster Wheeler Corporation, were at fault; and whether Exxon and/or Dow were at fault. The jury unanimously found that Exxon was solely at fault in causing Mr. Terrance's mesothelioma and resulting death. The jury awarded total general damages in the amount of $5,000,000.00. Exxon's motions for JNOV and new trial or remittitur were denied, judgment was rendered in accordance with the jury verdict, and Exxon's appeal followed.

LAW OF THE CASE DOCTRINE

Exxon's first assignment of error alleges that the trial court erred in requiring that the trial resume with an eleven-member jury after one juror was unable to return to serve on the jury when he suffered a heart problem during the trial. Twelve jurors were impaneled on May 23, 2006, with no provision for alternate jurors. On the fifth day of trial, May 30, 2006, one of the jurors experienced chest pain during the trial. The juror was sent to the emergency room, and the trial court was informed on May 31, 2006, that the juror could not return to jury duty. Over Exxon's objection, the trial court directed that the trial resume with the eleven remaining jurors. Exxon moved for a mistrial, arguing that there was no stipulation by the parties to proceed with less than twelve jurors pursuant to LSA-C.C.P. art. 1761 B. The trial court denied Exxon's motion, but stayed the proceedings to allow Exxon to apply for a supervisory writ to this court.

On June 1, 2006, this court issued an interim order to the trial court directing that a hearing be conducted to determine whether the juror would eventually be able to return to complete his service on the jury. A hearing was held on June 9, 2006, after which the trial court reported to this court that the juror would not be able to return for jury service due to a verified medical condition. As a result, this court ruled in favor of Exxon and granted a mistrial on June 14, 2006, thereby reversing the trial court, citing LSA-C.C.P. art. 1761, and stating that "[a]bsent a stipulation of the parties to proceed with less than twelve jurors, the loss of a juror results in a mistrial."3 The next day, the plaintiffs filed an emergency writ with the Louisiana Supreme Court, and on June 19, 2006, the supreme court summarily reversed this court's ruling and reinstated the trial court's denial of Exxon's motion for mistrial.4 The trial resumed on June 21, 2006, with the remaining eleven jurors who eventually reached a unanimous verdict against Exxon.5

Because this court and the supreme court have previously addressed the propriety of an eleven-member jury in this case, we must consider whether the doctrine of the "law of the case" precludes us from considering Exxon's first assignment of error. This doctrine applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. Dodson v. Community Blood Center of Louisiana, Inc., 92-2068 (La. App. 1 Cir. 11/24/93), 633 So.2d 252, 255, writs denied, 93-3158, 93-3174 (La.3/18/94), 634 So.2d 850, 851. This doctrine applies to parties who were parties to the case when the former rulings were rendered and who thus had their day in court. The law of the case doctrine avoids relitigation of the same issue, promotes consistency of results, and encourages efficiency and fairness to the parties by affording a single opportunity for the argument and decision of the matter at issue. Id.

We are convinced that the past action of the supreme court, reinstating the trial court's denial of Exxon's motion for mistrial and allowing the trial to continue with an eleven-member jury, precludes relitigation of this issue. The parties to the prior motion, writ applications, and this appeal are the same. The arguments and issues raised in this assignment of error are the same as those raised in the earlier-filed motion and writ applications. The citations to articles, statutes, and case law are the same. Thus, we conclude that reargument of this previously-decided issue is barred. All that is being raised by Exxon at this point is doubt as to the correctness of the ruling made by the supreme court. Considering the unanimous verdict and no obvious injustice, we will not question the accuracy of the former supreme court ruling in this case. See Held v. Aubert, 02-1486 (La.App. 1 Cir. 5/9/03), 845 So.2d 625, 639 (quoting from Louisiana Land and Exploration Company v. Verdin, 95-2579 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997)). See also Brumfield v. Dyson, 418 So.2d 21, 22 (La.App. 1 Cir.) writ denied, 422 So.2d 162 (La.1982). Therefore, by operation of the law of the case doctrine, we decline review of Exxon's first assignment of error.

TRIAL COURT RULINGS

Three of Exxon's assignments of error involve the propriety of pretrial rulings and/or rulings made by the trial court before the case was submitted to the jury....

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    ...(1964). The court of appeal affirmed the trial court's judgment based on that circuit's prior decision in Terrance v. Dow Chemical Co., 06-2234 (La.App. 1 Cir. 9/14/07), 971 So.2d 1058, writ denied, 07-2042 (La.12/14/07), 970 So.2d 534, which held that the 1952 version of La.Rev.Stat. § 23:......
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  • Crafting an Asbestos Scheduled Compensation Solution for Louisiana and the Nation
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    • April 1, 2012
    ...3d 1065, 1074 (La. 2009). However, the court in Terrance relied on the reasoning from Johnson in its ruling. Terrance v. Dow Chem. Co., 971 So. 2d 1058 (La. Ct. App. 1st 2007). 59. Johnson , 684 So. 2d at 1158. 60. Gautreaux v. Rheem Mfg. Co., 694 So. 2d 977, 979 (La. Ct. App. 4th 1996). 20......

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