Bourgeois v. A.P. Green Industries, Inc.

• Decision Date: 28 July 2006
• Docket Number: No. 06-CA-87.,06-CA-87.
• Citation: 939 So.2d 478
• Parties: Robert Andrew BOURGEOIS; Dominick Epifano Danna Gerald Ray Kelley, Sr.; and Phil Carl Robichaux, et al. v. A.P. GREEN INDUSTRIES, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

939 So.2d 478

Robert Andrew BOURGEOIS; Dominick Epifano Danna Gerald Ray Kelley, Sr.; and Phil Carl Robichaux, et al. v. A.P. GREEN INDUSTRIES, INC., et al.

No. 06-CA-87.

Court of Appeal of Louisiana, Fifth Circuit.

July 28, 2006.

Mickey P. Landry, Frank J. Swarr, David R. Cannella, New Orleans, Louisiana, for Plaintiff/Appellant.

Steven J. Irwin, Blaine A. Moore, Louis O. Oubre, Madeleine Fischer, New Orleans, Louisiana, Leon Gary, Jr., William L. Schuette, Jr., Baton Rouge, Louisiana, Gary A. Lee, Richard M. Perles, Carl J. Hebert, Kirk N. Aurandt, New Orleans, Louisiana, Brian C. Bossier, Edwin A. Ellinghausen, III, Erin H. Boyd, Metairie, Louisiana, for Defendant/Appellee.

Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

FREDERICKA HOMBERG WICKER, Judge.

Facts and Procedural History

Plaintiffs, former employees of Avondale Shipyards, Inc. ("Avondale"), initiated this suit on behalf of a proposed class of current and former Avondale employees who have allegedly been significantly exposed to asbestos prior to 1976 during their employment and who have not been diagnosed with an asbestos-related disease. Named plaintiffs are former Avondale employees, Robert Andrew Bourgeois ("Bourgeois") Phil Carl Robicheaux ("Robicheaux"), and Dominick Danna ("Danna"). Plaintiffs initially filed suit against defendants Avondale, various Executive Officers of Avondale, and several manufacturers, sellers, and/or suppliers of asbestos and asbestos containing products. Plaintiffs subsequently dismissed all defendants with the exception of Avondale and the various Executive Officers of Avondale. Defendants then filed third-party demands against the several manufacturers, sellers, and/or suppliers of asbestos and asbestos-containing insulation products. Plaintiffs state that as a result of this alleged significant exposure to asbestos, they now need regular medical examinations for the early detection and treatment of possible latent asbestos-related diseases. Plaintiffs seek the establishment of a judicially administered fund for the costs of medical monitoring.

The trial court granted defendants' exceptions of no cause of action and this Court affirmed. The Louisiana Supreme Court granted certiorari and reversed, finding that the reasonable cost of medical monitoring is a compensable item of damage under La. C.C. art. 2315¹, provided plaintiffs prove certain criteria.² Subsequently, Plaintiffs filed a Motion for Summary Class Certification, which the trial court denied.³ For the following reasons, we affirm.

The trial court held a certification hearing that revealed the following testimony:

Robicheaux, a 61 year old former employee of Avondale, testified that he worked at Avondale from 1962-1972. He stated that he worked primarily in the warehouses of the Westwego and Main Yards at Avondale that supplied all of the asbestos containing products to the shipyard. He stated he handled asbestos-containing products directly for approximately six years. Sometimes he would leave the warehouse and work directly on the ships. Robicheaux testified that he would like to be monitored for asbestos related diseases and that he understood that he would be a class representative for other Avondale employees similarly situated.

Danna, a 61 year old former employee of Avondale, testified that he worked at Avondale from 1965-1972. He stated that he primarily worked in the Main Yard at Avondale, on Wet Dock # 3 mainly and a brief time on Wet Dock #1, as a tacker welder then as a shipfitter, and then as a supervisor. He also stated that he performed many duties on the ships in all areas of the ships, such as the engine rooms and on the main decks.

Danna further testified that, prior to his employment with Avondale, he worked for a boat company, where he was also exposed to asbestos. Further, Danna smoked one and a half packs of cigarettes a day for approximately 12-15 years. Danna testified that he does not smoke now and that he receives yearly chest x-rays. Danna testified that he is willing to be a class representative.

Danny Joyce, a safety consultant, testified and was accepted as an expert in industrial hygiene and in the use and regulation of asbestos products. Mr. Joyce testified that he worked for Avondale from 1980-1991 as an industrial hygienist and then as the Director of Health and Safety. He stated that his job at Avondale consisted of air monitoring for presence of asbestos fibers, conducting interviews for job hazard analysis, and helping Avondale comply with the current Occupational Safety and Health Administration standards. Mr. Joyce testified that the levels for permissible asbestos exposure changed drastically over the years from 5 million particles per cubic foot in the 1960's to 2 fibers per cubic centimeter by 1976.

Mr. Joyce testified that Avondale is approximately half a mile wide and approximately three-quarters of a mile in length. He stated that there are separate facilities and divisions within Avondale and that the different facilities at Avondale had different levels of exposure to asbestos, if any, and handled different asbestos products. Mr. Joyce testified that he conducted interviews of Avondale employees to determine which employees were eligible to participate in the medical surveillance program that Avondale provides for those employees who may be exposed to greater than permitted levels of asbestos on the average of 30 days out of the year. He stated that the exposure would differ greatly among the different tasks, job descriptions, and job locations of the employees. Mr. Joyce testified that because of the many variables that may affect exposure levels, a series of questions would need to be answered to determine if someone would have been exposed to asbestos. For example, Mr. Joyce testified that different welders work in different areas and different stages of the shipbuilding process. He testified that likely only the welders working during the final stages of the shipbuilding process would have been exposed to asbestos. Similarly, some pipefitters may have been exposed to asbestos containing products, but only pipefitters who worked in certain facilities that carried those products. Further, while insulators would be the most likely to have been exposed to asbestos, some divisions or facilities of Avondale only used fiberglass insulation, so those insulators may not have been exposed to asbestos at all. Avondale has several warehouses, some of which stored asbestos-containing products and some of which contained no asbestos-containing products. Therefore, to determine if a warehouseman employed by Avondale was exposed, it would need to be determined which warehouse and at which facility he worked.

Mr. Joyce testified that the environment at Avondale is a dynamic one and that at any given time there would be different people of many crafts working on different ships being constructed in different places using different materials. Mr. Joyce testified that he would not know how to determine if an employee was exposed to significant levels of asbestos, if any, without conducting a full interview to determine their craft, daily tasks, which facility or facilities he/she worked, and the relevant employment period for that employee.

Dr. Jones and Dr. Emory, experts in pulmonary medicine, testified that "significant exposure" is not a known medical term to measure asbestos exposure. Further, their testimony revealed that a common person may not understand what "significant exposure" is because one may not know when an exposure becomes "significant". They testified that this factor would make it difficult for one to know if he or she would fit the description of the class.

Following the certification hearing, the parties requested time to review the transcripts and to file post-hearing memoranda. The trial judge took the matter under advisement and scheduled oral arguments. On January 5, 2005, the parties appeared before the court for oral arguments. Thereafter, the trial judge gave his ruling and oral reasons for judgment, denying Plaintiffs' Motion for Summary Class Certification.

Standard of Review

The trial court is granted wide discretion in determining class action certification and such decision shall not be overturned on appeal absent finding of manifest error or abuse of discretion. Clement v. Occidental Chemical Corporation, 97-246 (La.App. 5 Cir. 9/17/97), 699 So.2d 1110, 1114; Schexnayder v. Entergy Louisiana, Inc., 04-636 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 113. Plaintiffs assert in their brief that the trial judge applied the incorrect law, and, therefore, this court should conduct a de novo review. Plaintiffs note that the trial judge applied the post-amendment version of La. C.C.P. art. 591. Acts 1997, No. 839, § 1 revised the class action provisions and the legislation amended La. C.C.P. art. 591. The provisions of the Act are only applicable to actions filed on or after July 1, 1997. Because this suit was filed in 1996, the pre-amendment law is applicable to this case. Plaintiffs further assert that the trial judge misinterpreted the findings of this Court's decision in Bourgeois v. A.P. Green Industries, 02-713 (La.App. 5 Cir. 2/25/03), 841 So.2d 902.

Where a legal error of a trial court interdicts the fact-finding process, the manifest error standard is no longer applicable. Hughes v. New Orleans Saints & LWCC, 05-712 (La.App. 5 Cir. 2/27/06), 924 So.2d 1086. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. at 1091. Legal errors are prejudicial when they materially affect the outcome or deprive a party of substantial rights. Id. When a legal error of the trial court materially affects the outcome or deprives a party of substantial rights, the appellate court conducts a de novo review. Id. De novo review should be limited to consequential legal...