Cole v. Celotex Corp.
| Citation | 620 So.2d 1154 |
| Decision Date | 01 July 1993 |
| Docket Number | No. 93-C-0090,93-C-0090 |
| Parties | Prod.Liab.Rep.(CCH)P 13,537 Outher COLE, et al. v. CELOTEX CORPORATION, et al. |
| Court | Louisiana Supreme Court |
William B. Baggett, Jr., William B. Baggett, Lake Charles, for applicant.
William C. Harrison, Robert E. Kerrigan, Jr., Arthur W. Stout, III, Janet L. MacDonell, Kelvin G. Sanders, Gary B. Roth, Deutsch, Kerrigan & Stiles, Lawrence G. Pugh, Jr., Montgomery, Barnett, Brown, & Read, New Orleans, David L. Tolin, Beaumont, TX, Christopher P. Ieyoub, Plauche, Smith & Nieset, Lake Charles, Richard L. Forman, Forman & Perry, Jackson, MS, Michael T. Cali, Lemle & Kelleher, Edwin A. Ellinghausen, III, Porteous, Hainkel, Johnson & Sarpy, Russell D. Holwadel Adams & Johnston, New Orleans, William T. McCall, Guillory & McCall, Lake Charles, James L. Pate, Ben L. Mayeaux, Laborde & Neuner, Lafayette, Stephen P. Hall, Phelps Dunbar, J. Michael Johnson, Galloway, Johnson, Tompkins & Burr, New Orleans, Kenneth R. Spears, Jones, Tete, Nolen, Hanchey, Swift & Spears, Lake Charles, for respondent.
*
Mr. and Mrs. Wilburn L. Robertson and others filed suit on December 22, 1987, against several manufacturers of asbestos-containing products and the executive officers of their employer, Cities Service Oil Company (Cities Service). 1 Plaintiffs alleged that they had been diagnosed with asbestosis as a result of their occupational exposure to asbestos-containing products in the course of their employment. Owens-Illinois, Inc. and Pittsburgh Corning Corporation, joined by GAF Corporation, National Gypsum Company, United States Gypsum Company, Keene Corporation and Quigley Company, filed an exception of prescription to the claims of Mr. and Mrs. Robertson. The trial judge granted the exception of prescription and dismissed the suit of Mr. and Mrs. Robertson against all defendants joined in the exception. The court of appeal affirmed. 2 We granted certiorari to review the correctness of that decision. 3
The exception of prescription was submitted on briefs, the deposition testimony of Mr. Robertson and Dr. Bonnie R. Camp and documentary evidence.
Mr. Robertson began working with Cities Service as a carpenter in 1950. He was promoted in about 1974 to maintenance foreman, the position from which he retired in December of 1984. Cities Service maintained a medical record on Mr. Robertson consisting of periodic examinations including chest x-rays and diagnosis and treatment by the company physician. This record reveals that in 1955, Mr. Robertson was diagnosed with pleurisy or early pneumonia. He testified that he did not recall having these illnesses. In 1979, he was told by the company physician, Dr. Swafford, that "something showed up on his chest x-ray" and that it was "pleurisy or pneumonia or something like that." The medical record supports this testimony. Mr. Robertson was placed in the company's Asbestos Survey Program, an annual monitoring program consisting of pulmonary function tests, chest x-rays, and a physical examination as well as a questionnaire filled out by the employee concerning his state of health. The annual results of the Asbestos Survey Program also became part of Mr. Robertson's medical record.
After 1979, Mr. Robertson continued to be monitored on a yearly basis. His chest x-rays for 1980 and 1981 were normal. In 1982, because of pleural thickening and calcification revealed by his x-ray, Mr. Robertson was told to stay away from asbestos even with a respirator.
After his annual examination and chest x-ray in 1983, Mr. Robertson was referred by the company physician, Dr. Camp, to Dr. Jana Kaimal, a pulmonologist, for further examination. In a letter from Dr. Kaimal to Dr. Camp dated July 19, 1983, Dr. Kaimal stated that Mr. Robertson had evidence of asbestos related lung disease but he did not recommend any treatment other than monitoring with x-rays. Mr. Robertson testified that he did not read the letter or receive a copy of it. Dr. Camp consulted with him in August of 1983 and discussed the findings of his x-ray and asbestos and respiratory examination and told him that the plaque or scarring revealed on his x-ray could be the result of asbestosis or other causes. Mr. Robertson testified that when he asked her if he had asbestosis, she replied in the negative. He stated that Dr. Camp suggested that he should wear a mask at all times when he was working around the plant. In 1983, as in past years, in the annual "Asbestos and Respiratory Questionnaire" filled out by Mr. Robertson, he answered that he had no ill effects from his work and had not been treated for any respiratory related diseases.
Dr. Camp testified that she discussed Mr. Robertson's examination and chest x-ray as well as the findings of Dr. Kaimal with him in August of 1983. She explained that she did not diagnose asbestosis but informed him that the findings of his chest x-ray could be the result of several causes:
. . . . .
A: I don't remember the exact conversation. I remember talking to him about the x-ray and telling him that it could be asbestos or it could be other causes.
Mr. Robertson continued to be examined on a yearly basis. Dr. Camp testified that his chest x-ray results were essentially the same in 1984 as in 1983. In December of 1984, Mr. Robertson retired but continued to participate in the Asbestos Survey Program. Although he requested his medical records which lists Dr. Kaimal's letter of July 19, 1983 in December of 1984, his testimony and that of Dr. Camp's is conflicting as to whether he actually received Dr. Kaimal's letter. Mr. Robertson's chest x-ray of May of 1985 remained unchanged from that of the previous year. The medical records contain a notation that Dr. Camp's secretary called Mr. Robertson about the results of the 1985 x-ray.
Mr. Robertson testified that he picked up his medical records from Cities Service to take them to his attorney in December of 1985. His attorney referred him to Dr. Van Campen. Mr. Robertson testified that the first time he was told he had asbestosis was by Dr. Van Campen. Plaintiff filed suit on October 22, 1986, in federal court.
The issue presented for our review is when the one year period of liberative prescription applicable to tort actions under La.Civ.Code Art. 3492 commenced to run.
Defendants contend that Mr. Robertson had actual notice that he had an asbestos-related condition on numerous occasions between 1979 and May of 1985 and suit filed in October of 1986 was untimely. Plaintiffs contend that Mr. Robertson was not diagnosed with asbestosis until December of 1985 when he went to see Dr. Van Campen and prescription would commence to run at that time. Thus, the suit was timely filed. The courts below concluded that Mr. Robertson had actual or constructive notice of his alleged asbestos-related lung disease in August of 1983 (when he consulted with Dr. Camp regarding Dr. Kaimal's examination) or in December of 1984 (when Mr. Robertson was allegedly provided with a copy of the July 19, 1983 letter of Dr. Kaimal). For the reasons set forth below, we find that plaintiffs' suit has not prescribed.
La.Civ.Code Art. 3492 provides that delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. Damage is considered to have been sustained, within the meaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. McCray v. New England Insurance Co., 579 So.2d 1156 (La.App.2d Cir.1991).
The doctrine of contra non valentem agere nulla currit praescriptio...
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