Coates v. AC AND S, INC., Civ. A. No. 90-1448.

• Decision Date: 14 January 1994
• Docket Number: Civ. A. No. 90-1448.
• Citation: 844 F. Supp. 1126
• Parties: Louella COATES, et al. v. AC AND S, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

844 F. Supp. 1126

Louella COATES, et al. v. AC AND S, INC., et al.

Civ. A. No. 90-1448.

United States District Court, E.D. Louisiana.

January 14, 1994.

Louis Leo Robein, Jr., Robert H. Urann, Magdalen C. Blessey, Gardner, Robein & Urann, Metairie, LA, for plaintiff.

Michael T. Cali, Darryl J. Foster, Lemle & Kelleher, New Orleans, LA, for Owens-Corning Fiberglass Corp.

Maria I. O'Byrne Stephenson, Marie I. Patino-Caro, Catherine Chavarri, Lisa C. Matthews, New Orleans, LA, for Rockwool Mfg. Co.

Richard L. Forman, Walter G. Watkins, Jr., Fred Krutz, III, Ronald D. Collins, Daniel J. Mulholland, Curtis E. Presley, III, John D. Cosmich, Forman, Perry, Watkins & Krutz, Jackson, MS, for Owens-Illinois, Inc., Keene Corp.

Francis P. Accardo, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Celotex Corp.

Forrest Ren Wilkes, Thomas L. Kirkland, Jr., David A. Barfield, Peggy C. Newton, Kirkland, Barfield & Panter, Jackson, MS, for AC & S, Inc.

Geoffrey P. Snodgrass, J. Warren Gardner, Jr., Christovich & Kearney, New Orleans, LA, for AC & S, Inc.

Anthony J. Staines, Kaye N. Courington, Ellefson, Pulver & Staines, Metairie, LA, for Eagle-Picher Industries, Inc.

Robert E. Kerrigan, Jr., A. Wendel Stout, III, Ethel H. Cohen, Marc J. Yellin, Barbara L. Arras, Jante L. MacDonell, Jude D. Bourque, Ronald L. Courtade, Jr., Deutsch, Kerrigan & Stiles, New Orleans, LA, for Armstrong World Industries, Inc., GAF Corp., Turner & Newall, PLC.

Thomas M. Bergstedt, Bergstedt & Mount, Lake Charles, LA, for H.K. Porter Co., Inc.

Grey Redditt, Jr., McCarfferty & Reddit, Mobile, AL, for H.K. Porter Co., Inc.

James S. Thompson, Pamela A. Schmitt, Porteous, Hainkel, Johnson & Sarpy, New Orleans, LA, for Fibreboard Corp., Pittsburgh Corning Corp.

James H. Powers, Sharla J. Frost, Roberts, Markel, Folger & Powers, Houston, TX, for Fibreboard Corp.

Jesse R. Adams, Jr., Adams & Johnston, New Orleans, LA, for Manville Corp. Asbestos Disease Fund.

Dominic J. Ovella, John T. Culotta, Hailey, McNamara, Hall, Larmann & Papale, Metairie, LA, for Flintkote Co.

CHARLES SCHWARTZ, Jr., District Judge.

Before the Court are the following pre-trial Motions/Memoranda filed by the parties in the captioned proceedings:

1. Plaintiffs' and Defendant Owens-Corning Fiberglass Corporation's (OCF's) and Rock Wool Manufacturing Company's (Rock Wool's) Pre-trial Memoranda regarding the law applicable to apportionment of liability.

2. Plaintiffs' motion for an order that asbestos-containing products are unreasonably dangerous per se as a matter of law;

3. Plaintiffs' motion to admit OSHA and EPA publications;

4. Defendant OCF's motion to exclude evidence of medical expenses paid by third parties;

5. Defendant OCF's motion to exclude evidence of mental anguish;

6. Defendant OCF's motion for reverse bifurcation of the trial.

The Court, having reviewed the submissions of the parties and having determined that there is no necessity for an oral hearing regarding the aforesaid issues, deems the matters submitted on the briefs and addresses the issues herein below.

I. BACKGROUND

Plaintiffs herein filed a wrongful death action, claiming that their decedent, Charles Coates, was an insulator working in the New Orleans and Baton Rouge area and contracted the disease, diffuse peritoneal mesothelioma, allegedly as a result of his occupational asbestos exposure. Coates began working in the insulation trade in the late 1940's and retired in 1976. Asbestos exposure which allegedly triggered the disease occurred exclusively prior to 1980.¹ Moreover, as the defendants point out, virtually all asbestos-containing products were removed from the marketplace by 1973. Additionally, the latency period for the development of mesothelioma is approximately fifteen to twenty years or longer. Based upon these facts, it is safe to say that most, if not all, of Coates' exposure to asbestos occurred prior to 1980. With these few pertinent facts as a backdrop the Court will address the issues addressed in motions and memoranda addressed to the Court serially in the order set forth above.

II. ANALYSIS

1. Apportionment of liability.

In Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), the Louisiana Supreme Court, addressed the precise issue before this Court, to wit:

As noted, the first issue is whether the provisions of the Louisiana Comparative Fault Law, which was enacted by Act 431 of of 1979 and which became effective August 1, 1980, apply to the instant case commenced after the Act's effective date. At the outset, we observe that this issue has two facets: (i) whether plaintiffs' direct claims survival actions are governed by pre-Act contributory negligence, or post-Act comparative fault, law; and (ii) whether the allocation of fault among the defendants who are found to be solidarily liable is governed by pre-Act virile share, or post-Act comparative fault, law. Id. at 1062-63.

The Cole court recapitulated the transformation of applicable Louisiana law as follows:

Act 431 of 1979 (effective August 1, 1980) amended LSA-C.C. Art. 2103, changing the basis of contribution among defendants from virile share to percentage of fault. Act 331 of 1984 (effective January 1985), which rewrote the Civil Code provisions on Obligations, moved the rules regarding contribution contained in former LSA-C.C. Art. 2103 to LSA-C.C. Arts. 1804 and 1805. The official revision comments to LSA-C.C. Articles 1804 and 1805 indicate that the revision did not change the law.²

In Cole, one of the reasons the court granted writs was to resolve the conflict among the state courts of appeal and federal courts on the issue of whether defendants' contribution claims were governed by virile share or comparative fault principles. The dichotomy in the decisions is best illustrated by comparing the Louisiana Third and Fifth Circuit decisions in Cajun Electric Power Cooperative, Inc. v. Owens-Corning Fiberglass Corp., 528 So.2d 716 (La.App. 5th Cir.), cert. denied, 531 So.2d 475 (La.1988) and Lebleu v. Southern Silica of Louisiana, 554 So.2d 852 (La.App. 3rd Cir.1989), cert. denied, 559 So.2d 489-91 (La.1990).

In Cajun Electric, the court held that a contribution claim arises at the time of judicial demand. In so holding, the court found that the event which triggers the third party claim in contribution is judicial demand against an alleged tortfeasor. Id. at 723. In Lebleu, the court held that the 1976 amendment to the workers' compensation law could not be applied retroactively to bar a defendant's third-party action for contribution against executive officers where the plaintiff's claim for silicosis injury arose prior to 1976, but plaintiff's suit and third-party demands were not filed until 1984 and 1985. The Lebleu court expressly rejected the federal court precedent in Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976 (5th Cir.1985), stating that it was wrong in overlooking the civil law concept of subrogation of a tort victim's rights to a tortfeasor against other joint tortfeasors arises at the time of the tort.

The Louisiana Third Circuit in Cole v. Celotex Corp., 588 So.2d 376, 385 (La.App. 3rd Cir.1991), affirmed, 599 So.2d 1058 (La. 1992), relying on its holding in Lebleu explained that "the subrogated tortfeasor steps into the victims shoes, giving him the substantive right to file a procedural claim for contribution against other tortfeasors."³

The Louisiana Supreme Court affirmed the Third Circuit decision in Cole, supra, holding that it correctly determined that the contribution rights among the defendants were governed by the same law applicable to the plaintiffs' direct claims. The Cole court concluded that the allocation of fault among defendants was governed by pre-Act, virile share ("by heads") principles.⁴ The Louisiana Supreme Court in Cole set forth its reasoning as follows:

While neither the amendment to former LSA-C.C. Art. 2103, nor the jurisprudence, resolve the issue of when the right to contribution arises, one commentator provides a logical, consistent approach, which we adopt:

The substantive right of action for eventual contribution vests at the time of the delict. This construction would explain how the third party practice is available to the joint tortfeasor sued. Thus the joint tortfeasor has a right of action from the time of the tort, but the cause of action matures only on payment. Thus at the time of the delict there is vested one cause of action and two rights of action: the injured party has a right of action and cause of action in tort against the joint tortfeasors; the joint tortfeasors as between themselves have a right of action or title to sue for contribution which includes the right to use the third party practice. If one of the tortfeasors pays in excess of his virile portion his vested interest or right of action matures and he acquires a separate cause of action for contribution against his fellow tortfeasor.

This reasoning does not contradict the Brown v. New Amsterdam Casualty Company, 243 La. 271, 142 So.2d 796 (1962) decision. The right of action for contribution in Brown did not vest at the time of the tort because the amended article 2103 was not yet in effect. On January 1, 1961, the right of action for contribution did vest, along with the right to use the third party practice. The cause of action for contribution will not accrue or mature, however, until payment of an excess of the virile portion.

Comment, Contribution Among Joint Tortfeasors: Louisiana's Past, Present, and Future, Tul.L.Rev. 525, 532 (1963).

599 So.2d at 1071-72.

The parties agree that the Louisiana Supreme Court's decision in Cole governs the survival action in that case. OCF submits that there is nothing in the Cole opinion which would lead to the conclusion that the Louisiana Supreme Court would treat wrongful death actions any differently from survival actions. This Court agrees for the following reasons upon finding nothing in t...