Becker v. Murphy Oil Corp.
| Decision Date | 03 June 2011 |
| Docket Number | NO. 2010-CA-1519,2010-CA-1519 |
| Parties | PETER BECKER, JR., STANLEY JONES, ROBERT KRYSAN, AND MELVIN STIPELOCOVICH v. MURPHY OIL CORPORATION |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM
NO. 86-960, DIVISION "B"
(Court composed of Judge Charles R. Jones, Judge Max N. Tobias, Jr., Judge Roland L. Belsome)
J. Wayne Mumphrey
Clayton M. Connors
MUMPHREY LAW FIRM, LLC
- AND -
J. Burton LeBlanc IV
BARON AND BUDD, P.C.
COUNSEL FOR PLAINTIFFS/APPELLEES
James M. Garner
Debra J. Fischman
Christopher T. Chocheles
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
Plaintiffs-Appellees Peter Becker, Jr., Joseph Barcia, Marvin Baudean, Salvador DiCarlo, Ronald Gilmore and Roy Phillips1 alleged that as a result of long-term occupational noise exposure at the Murphy Oil Meraux refinery, they suffered hearing loss. After a bench trial, the court awarded each plaintiff except Ronald Gilmore $50,000.002 in damages in a judgment dated March 22, 2010.3 With respect to Ronald Gilmore's claims, the trial court found in favor of Defendant-Appellant, Murphy Oil Corporation (now known as Murphy Oil USA Inc.), and dismissed his claims with prejudice.
Murphy subsequently filed a Motion for New Trial for Judicial Interest Calculation, which the trial court granted on July 22, 2010.4 Mr. Gilmore also filed a Motion for New Trial, which the trial court granted, severing both Mr. Gilmore's case and new trial from that of the other plaintiffs. Murphy appeals the judgment awarding damages to Peter Becker, Jr., Joseph Barcia, Marvin Baudean, Salvador DiCarlo, and Roy Phillips. For the reasons that follow, we affirm the trial court's judgment.
The trial court articulated its factual findings with respect to each plaintiff; Murphy's exception of prescription; Murphy's liability to its employees with respect to noise exposure; and its award of damages in its detailed written reasons for judgment. We summarize these factual findings below.
A seventy-year-old man, Mr. Barcia worked at Murphy for twenty-five years, from 1961 until he retired in 1986 at fifty-six years of age. The trial court found that Mr. Barcia was exposed to loud noise as a laboratory assistant and operator for twenty-one years and as a foreman for the last four years. Mr. Barcia worked in the CAT unit and boilers; he did not wear hearing protection, nor did Mr. Barcia observe anyone else wearing hearing protection. The trial court also recognized that Mr. Barcia saw no signs or materials requiring hearing protection; nor was he told to wear them, nor was hearing protection discussed. Likewise, as a foreman, he was never required to tell his workers that hearing protection was mandatory. The trial court noted that Mr. Barcia first saw earplugs in 1985.
Mr. Barcia did not notice his hearing loss. Although he wore a hearing aid from 1986 until 2005, he did not suspect his work at Murphy to have caused the need for a hearing aid. Prior to working for Murphy, Mr. Barcia fired a rifle approximately six times while in boot camp for the Air Force, and fired a shotgun once while hunting. He also joined the National Guard for six years, where he worked as a butcher. Mr. Barcia subsequently worked for Flintkote as aninspector, but the trial court acknowledged that there was not much noise exposure at Flintkote.
Dr. Moises Arriaga, an expert in neuro-otology, conducted a physical examination of each plaintiff, which included taking the medical history and an audiogram5 of each. Dr. Arriaga also reviewed each plaintiffs deposition and the noise exposure evidence produced by Murphy.
The trial court recognized that Dr. Arriaga diagnosed Mr. Barcia with mild to severe bilateral sensorineural6 high frequency hearing loss with a "notch" on the left side, and concluded that his employment with Murphy was the most significant contributing factor;7 accordingly, Dr. Arriaga found that his prior employment, family history and military service were not significant contributors to his hearingloss.8 Additionally, Mr. Barcia's age was not a factor, as he retired at fifty-six years of age and after developing hearing loss. The trial court acknowledged Dr. Arriaga's finding that Mr. Barcia reported a plugged and ringing feeling in his ear after a work shift indicating noise loud enough to bruise the inner ear called a temporary threshold shift9 which, repeated enough, could become a permanent hearing loss.10
A seventy-three year old man, Mr. Baudean worked at Murphy for thirty-one years as a welder, from 1967 until his retirement in 1998 at sixty-one years of age. The trial court determined that Mr. Baudean was never advised to wear hearing protection, but wore earplugs in the late 1980s on his own because of the high noise levels. Mr. Baudean had hearing tests in the 1970s and on approximatelyfive to six occasions thereafter, but was not advised of the test results.11 His hearing loss was also gradual.
Mr. Baudean was in the Marine Corps for two years, and fired a rifle on one trip to a rifle range during basic training. After discharge from the Marines, he worked for American Marine as a welder for four to five years, and also performed temporary work as a pipefitter; however, Mr. Baudean indicated that neither of the premises was particularly noisy.
Dr. Arriaga diagnosed Mr. Baudean with mild to moderately severe bilateral sensorineural high frequency hearing loss, and found that Murphy was the most significant contributing factor. In 1994, an audiogram showed normal hearing at low frequencies, but high frequency hearing loss with a "notch" in both ears. Dr. Arriaga noted that Mr. Baudean reported "a temporary noise shift, being the feeling of ears clogged and ringing for a duration to bruise the inner ear." Dr. Arriaga did not consider age to be a contributing factor because of the progression of the hearing loss; likewise, he did not consider a chemotherapy regime that began in 1999 to have contributed to his hearing loss because it was after his retirement in 1998.12 Dr. Arriaga also testified that he did not consider Mr. Baudean's military training to be a significant contributing factor.13
Mr. Becker worked at Murphy for thirty-five years, from 1961 until his retirement in 1996. Mr. Becker generally worked in operations, and occasionally in the boiler house and CAT. The trial court acknowledged Mr. Becker's testimony that both the boiler house and the CAT were extremely noisy. Mr. Becker wore no hearing protection, nor did his co-worker, Bill Turnage, who ultimately became the safety director. No signs were posted which advised wearing hearing protection, nor was he ever advised to do so. Likewise, during the four years preceding his retirement, there were discussions regarding hearing protection.
In 1972, Mr. Becker was advised he was suffering hearing loss; however, he did not relate it to Murphy, but instead he related it to growing older. He was tested for the loss, and was advised each time that his hearing was progressively getting worse. Other than those comments, Mr. Becker never saw any reports, documents or test results related to his hearing tests. He wore hearing aids after Hurricane Katrina, over ten years after his retirement. The trial court acknowledged that Mr. Becker fired a weapon during basic training for the Air Force, where he worked in the maternity ward of a hospital.14 After discharge, he worked for ODECO as a roustabout, Freeport South, and Amax Nickel, none ofwhich were noisy. Mr. Becker was subsequently hired at Ingram Oil (the predecessor to Murphy Oil).
Dr. Arriaga diagnosed Mr. Becker with bilateral sensorineural high frequency hearing loss, which he determined was more likely than not caused by occupational noise exposure at Murphy.15 Dr. Arriaga did not find personal or medical history16 or age to be a contributing factor in Mr. Becker's hearing loss.
A seventy-six year old man, Mr. DiCarlo worked at Murphy for thirty-two years, with fifteen years in operations and seventeen years as an insulator, followed by work in maintenance until he retired in 1993 at the age of fifty-nine. Mr. DiCarlo recalled that Murphy provided earplugs in 1974, based upon what he was told at the time. Mr. DiCarlo did not receive instructions with regard to the use of earplugs, nor did he recall seeing signs indicating high noise areas or suggesting that noise protection should be used.
Mr. DiCarlo testified that he "already noticed a hearing loss" in 1974, stating However, the trial court specifically noted that audiograms were conducted by Murphy in 1974, 1976, and 1981 which indicate that Mr. DiCarlo felt his hearing was "good" on each occasion. Mr. DiCarlo fired a rifle in basic training for the military, and became a company clerk shortly thereafter. He subsequently worked for Amax Nickel and Freeport, neither of which were as noisy as Murphy, according to his testimony. He smoked for twenty-two years and did little hunting or fishing.
Dr. Arriaga diagnosed Mr. DiCarlo with severe bilateral sensorineural high frequency hearing loss and concluded that his work at Murphy was the most significant contributing factor;17 accordingly, medical history, family history, previous work history and age18 were not significant contributing factors to Mr. DiCarlo's hearing loss.
A sixty-eight year old man, Mr. Phillips worked for Murphy from 1974 until his retirement in 2003, as an operator and pipefitter. The trial court found that in 1974, his hearing was tested and "hearing good" was indicated in the results. Hearing protection was not discussed or...
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