Arrant v. Graphic Packaging Int'l, Inc.
| Decision Date | 14 November 2013 |
| Docket Number | Nos. 48,197–CA, 48,198–CA, 48,199–CA, 48,200–CA, 48,201–CA, 48,202–CA, 48,203–CA.,s. 48,197–CA, 48,198–CA, 48,199–CA, 48,200–CA, 48,201–CA, 48,202–CA, 48,203–CA. |
| Citation | 127 So.3d 924 |
| Parties | James Clifford ARRANT, et al., Appellees v. GRAPHIC PACKAGING INTERNATIONAL, INC., et al., Appellants. Marvin Jack Barnett, Jr., et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. Kenneth Noel Bain, Sr., et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. George Emory Butler, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. W.H. Auttonberry, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. Jimmie Dewayne Baugh, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. Melvin Ellis Bordelon, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Gary A. Bezet, Maxwell G. Kees, Carol L. Galloway, Robert E. Dille, Janice M. Culotta, Gregory M. Anding, Allison N. Benoit, Barrye Panepinto Miyagi, Baton Rouge, LA, Sarah E. Weissman, for Appellants, Olin Corp. & Graphic Graphic Packaging Int'l, Inc.
The Steckler Law Firm, by Bruce W. Steckler, Kelly N. Reddell, Dimos, Erskine, Monroe, LA, by Jimmy N. Dimos, for Appellees, Hugh Calhoun, Tommie, Ford, Melvin E. Bordelon, Marvin J. Barnett, Jr., Jimmy Dewayne Baugh, W.H. Auttonberry, George, Emory Butler, Kenneth N., Bain, Sr., James Clifford, Arrant, Roy Robert, Vernice Pleasant, Jr., Jerry Hall & Ronald Ivy.
Leigh Ann Tschirn Schell, Michele Hale DeShazo, Sarah E. Roy, for IMO Industries, Inc.
Joseph B. Morton, III, New Orleans, LA, Thomas W. Tardy, III, Jason D. Watkins, for Dresser–Rand Company.
Glenn Lyle M. Swetman, Kay Barnes Baxter, Christopher O. Massenburg, Brandie M. Thibodeaux, New Orleans, LA, Margaret A. Casey, for Andritz, Inc.
Before BROWN, CARAWAY & PITMAN, JJ.
Defendants Graphic Packaging International, Inc. (f/k/a Riverwood International USA, Inc., Riverwood International Corporation, Olinkraft, Inc., and Manville Forest Products Corporation), and Olin Corporation, (hereafter, “Graphic” and “Olin,” respectively), appeal the judgment of the trial court rendered in favor of Plaintiffs Hugh Calhoun, Roy Robert, Ronald Ivy, Jerry Hall, Tommy Ford and Vernice (Joe) Pleasant, awarding each plaintiff $50,000 for occupational noise-induced hearing loss (“NIHL”) caused by exposure to high noise levels at their employment at a manufacturing facility in West Monroe, Louisiana. For the reasons stated herein, we reverse the judgment of the trial court and find that NIHL is an “occupational disease” under La. R.S. 23:1031.1 and Defendants are entitled to the tort immunity provided to employers under the Louisiana Workers' Compensation Act (“LWCA”). Further finding that the trial court lacked subject matter jurisdiction, we dismiss Plaintiffs' suits.
FACTS
Plaintiffs are employees and former employees of a manufacturing plant located in West Monroe, Louisiana, who have worked at the plant currently owned by Graphic, and its predecessors, including Olin, since the 1960s. It is not disputed that Olin Mathieson Chemical Corporation operated the facility from 1955 until 1967, when Graphic assumed control of the mill.1 Multiple claimants filed various separate actions for hearing loss allegedly sustained as a result of being “occupationally exposed to hazardous levels of industrial noise.” Of the multiple claimants, six were chosen by the parties, from three separately filed captioned lawsuits, to represent the “first flight” of plaintiffs whose cases would be tried together.
The action of James Clifford Arrant, et al v. Graphic Packaging International, Inc., et al, was filed on February 1, 2005. Plaintiff Jerry Hall was added to the Arrant matter by a first amended petition filed on August 6, 2007. The case of W.H. Auttonberry, et al v. Graphic Packaging International, Inc., et al, was filed on February 1, 2005. Plaintiffs Hugh Calhoun and Roy Robert were 2 of 16 original plaintiffs. Plaintiff Ronald Ivy was added to the Auttonberry matter by a second amended petition filed on January 15, 2008. The case of Melvin Elvis Bordelon, et al v. Graphic Packaging International, Inc., et al, was filed on December 7, 2005. Plaintiffs Tommie Ford and Joe Pleasant were 2 of 32 original plaintiffs in that suit. On or about January 16, 2008, Plaintiffs, with the exception of Ivy and Ford, filed supplemental and amending petitions for damages in each of the cases, adding Olin as a party Defendant.
Graphic's answer asserted an affirmative defense that it was Plaintiffs' employer and, as such, entitled to tort immunity under the LWCA because it provided the employees' exclusive remedy for the damages alleged.
Pertinent preliminary proceedings filed in the matter included Defendants' peremptory exception raising the objection of prescription, claiming that Plaintiffs knew or should have known more than one year before suit was filed that they worked in a noisy environment, that noise could cause hearing loss and that they allegedly suffered hearing loss and failed to file suit within that one-year prescriptive period. Plaintiffs invoked the legal theory of contra non valentem non currit prescriptio as an exception to the general rule of prescription and claimed that prescription does not run against a party who is unable to act. The trial court overruled Defendants' objection of prescription.
Defendants also filed a motion for summary judgment claiming that they were entitled to tort immunity under the LWCA, contending that it covered the damages alleged as either having been caused by an “accident” within the meaning provided therein, or as an “occupational disease.” The trial court denied the motion for summary judgment on the basis that the gradual hearing loss alleged by Plaintiffs was not caused by an accident and, thus, was not compensable under the LWCA. The case proceeded as a tort action.
At the 14–day trial, the six plaintiffs testified that they had worked at the plant in West Monroe at various jobs and in different parts of the plant for decades. Mr. Hugh Calhoun was the earliest employee, having begun working there in 1956. He retired in 1998. All other Plaintiffs, except Mr. Tommie Ford, who was still employed there as of the date of the trial, retired between 2004 and 2007.
Plaintiffs uniformly testified to the extreme level of noise in the plant and complained that the noise was so loud people had to yell to be heard and had to read lips and use hand signals to understand what others were communicating. Plaintiffs all testified that their hearing was not tested on a regular basis by their employer and that, when their hearing was tested, they were not provided with the results of the tests or told that their hearing was being affected by the level of noise in the plant. Further, Plaintiffs testified that they were not provided with hearing protection until the late 1980s or early 1990s. Plaintiffs testified that the loss of their hearing occurred so gradually over a long period of time that they were not aware of the loss of function until approximately 2004 when their attorneys had them tested by experts. Some Plaintiffs also complained of constant tinnitus, or ringing in the ears.
Plaintiffs testified that after the hearing tests were conducted in 2004, they were fitted with sample hearing aids to determine if they would be of benefit to them. Five out of six of the plaintiffs testified that their hearing was better with the use of the hearing aids, although nothing alleviated the tinnitus suffered by some of them.
Plaintiffs' expert in audiology, Dr. Ross Roeser, Ph.D., conducted hearing exams on the six plaintiffs and fitted them with hearing aids and conducted further tests to determine whether the plaintiffs were helped by the hearing aids. His testimony included a lesson on the anatomical structureof the ear, as well as a discussion of the nerves which carry sound to the brain. Dr. Roeser testified that the snail-shaped structure is the auditory portion of the inner ear called the cochlea. He explained that the cochlea has 2 1/2 turns, which, if “unrolled” into a longitudinal structure, could be said to be “tonotopically” organized. He stated that tonotopically means that each distinct anatomical part is responsible for a different frequency and that high frequencies of sound are heard close to where the mechanical force enters the cochlea. Dr. Roeser further testified that the six plaintiffs appeared to have normal hearing of speech sounds, but had varying degrees of hearing loss at high frequencies.
Dr. Roeser stated that, when evaluating the effect of noise on hearing, the two most important factors to be considered are intensity and time. After an examination of the noise levels at the plant, which exceeded 85–90 decibels, and considering the amount of time each plaintiff spent in the plant per shift and per year, Dr. Roeser's opinion was that Plaintiffs had been exposed to excessive noise levels, and that occupational noise was a “substantially contributing factor or cause of their hearing loss.”
The deposition of Dr. Lawrence Danna, M.D., Plaintiffs' expert in the field of otolaryngology, was admitted in evidence. Dr. Danna evaluated all six plaintiffs and found that each had suffered hearing loss as a result of their employment at the plant. Dr. Danna's opinion was that the employment with Graphic was the primary cause of Plaintiffs' hearing loss.
After the very lengthy trial, the trial judge issued detailed reasons for judgment. The trial court did not mention the issue regarding tort immunity raised by Defendants as an affirmative defense or in the motion for summary judgment. The reasons for judgment note that Plaintiffs brought their action for recovery based on theories of negligence for failure to provide a safe place to work causing Plaintiffs to suffer hearing loss and strict liability due to Defendants...
To continue reading
Request your trial
-
Arrant v. Graphic Packaging Int'l, Inc.
...and that defendants were entitled to the tort immunity provided to employers under the Act. Arrant v. Graphic Packaging Intern., Inc., 48,197 (La.App. 2 Cir. 9/25/13), 127 So.3d 924. The court of appeal noted that an occupational disease has been defined as the result of a series of events,......
-
Hartman v. St. Bernard Parish Fire Dep't & FARA
...medical and vocational rehabilitation expenses, prosthetic devices and other expenses. Arrant v. Graphic Packaging Intern., Inc. , 48,197 at 16 (La.App. 2 Cir. 9/25/13), 127 So.3d 924, 933, aff'd., 13-2878 (La. 5/5/15), 169 So.3d 296. Indeed, Mr. Hartman stipulated that his employer, the Fi......
-
Lyle v. Brock Servs., LLC
...to" plaintiffs' particular trade, occupation, process or employment with the defendants. Arrant v. Graphic Packaging Intern., Inc. , 48,197at pp. 11-12 (La. App. 2 Cir. 9/25/13), 127 So.3d 924, 931. Arrant , 169 So.3d at 309-310Mrs. Lyle suggests that Arrant heralded a broad view of the ter......
-
Arrant v. Graphic Packaging Int'l, Inc.
...International, Inc., et al.No. 2013–C–2878.Supreme Court of Louisiana.April 17, 2014. OPINION TEXT STARTS HERE Prior report: La.App., 127 So.3d 924 In re Calhoun, Hugh; Ford, Tommie; Hall, Jerry; Ivy, Ronald; Pleasant, Jr., Vernice; Robert, Roy;—Plaintiff(s); Applying For Writ of Certiorari......