Dawsey v. Olin Corp.

• Decision Date: 18 February 1986
• Docket Number: No. 85-4012,85-4012
• Citation: 782 F.2d 1254
• Parties: Lynn DAWSEY, Plaintiff-Appellant, Aetna Casualty and Surety Company, Intervenor-Appellant, v. OLIN CORPORATION, Defendant-Appellee. Dallas DUGAS, Plaintiff-Appellant, Aetna Casualty and Surety Company, Intervenor-Appellant, v. OLIN CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1254

782 F.2d 1254

Lynn DAWSEY, Plaintiff-Appellant, Aetna Casualty and Surety Company, Intervenor-Appellant, v. OLIN CORPORATION, Defendant-Appellee.

Dallas DUGAS, Plaintiff-Appellant, Aetna Casualty and Surety Company, Intervenor-Appellant, v. OLIN CORPORATION, Defendant-Appellee.

No. 85-4012.

United States Court of Appeals, Fifth Circuit.

Feb. 18, 1986.

Raleigh Newman, Lake Charles, La., for Dawsey & Dugas.

Raggio, Cappel, Chozen & Berniard, Lake Charles, La., Frederick L. Cappel, Michael S. O'Brien, Lafayette, La., Donald C. Massey, Robert E. Couhig, Jr., New Orleans, La., for Aetna.

Scofield, Bergstedt, Gerard, Mount & Vernon, Thomas M. Bergstedt, J. Michael Veron, Lake Charles, La., for Olin Corp.

Appeals from the United States District Court for the Western District of Louisiana.

Before BROWN, REAVLEY, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Plaintiffs-appellants Lynn Dawsey and Dallas Dugas and intervenor-appellant Aetna Casualty and Surety Company (Aetna) appeal from a judgment for defendant-appellee Olin Corporation (Olin), entered after a jury answered special interrogatories in Olin's favor following an extended trial of this case. Finding that the able trial judge committed no reversible error in any of the numerous issues raised by the appellants, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Olin operates an industrial chemical plant in the petrochemical complex west of the Lake Charles, Louisiana, area. On the morning of June 2, 1982, Lynn Dawsey and Dallas Dugas were working as construction carpenters for J.A. Jones Construction Co. (J.A. Jones) at the Conoco refinery just north of the Olin plant. Between 10:20 and 10:30 a.m. a valve malfunctioned at the Olin plant and released approximately 600 pounds of a chemical known as phosgene into the atmosphere. ¹

A southeast wind carried the phosgene towards the plaintiffs' location approximately 740 yards north of the Olin plant. After Olin reported the release to Conoco, Conoco had all the employees of J.A. Jones, including Dawsey and Dugas, taken to the St. Patrick Hospital Emergency Room in Lake Charles by bus. A physician examined both plaintiffs and ordered chest x-rays and blood gas analyses; the examinations did not indicate a serious exposure to phosgene, and the x-rays and blood gas analyses were interpreted as normal. The plaintiffs were treated with oxygen, bronchodilators, and steroids and were then released. ² Dugas returned to the emergency room the next day complaining of weakness and nausea. The emergency room physician told him to take off work for twenty-four hours. Dugas returned to work the next day. Dawsey was laid off when he told his employer he was unable to work. A few weeks later J.A. Jones lost its construction contract with Conoco; neither plaintiff has worked steadily since then.

Dawsey and Dugas continued to have medical problems which allegedly arose from their exposure to phosgene. Both plaintiffs filed suit against Olin in Louisiana state court for damages supposedly caused by the exposure. The suits were removed to federal court by Olin and were consolidated for trial. Olin stipulated that it would be liable for any damages caused by phosgene exposure, and the cases went to trial on the issues of whether exposure had occurred and, if so, the amount of damages, if any.

At trial plaintiffs relied on the testimony of several medical doctors to show that they had been severely and permanently injured by their exposure to phosgene. Plaintiffs' first expert medical witness, Dr. Edmond Camp, III, a board certified psychiatrist who first examined the plaintiffs almost two years after the accident, testified that Dawsey's phosgene exposure caused him to have a hormonal deficiency which in turn caused him to be depressed. Dr. Camp further testified that the phosgene exposure caused permanent damage to the part of Dawsey's brain controlling memory formation with the result that Dawsey would have permanent memory impairment. Dr. Camp also testified that Dugas suffered a hormonal deficiency and resulting depression and also incurred memory problems as a result of his exposure to phosgene. In conclusion, Dr. Camp expressed his opinion that the brain damage suffered by the plaintiffs would prevent them from ever returning to their former work. ³ ]

Plaintiffs' second expert medical witness, Dr. John McCutchen, a neurologist who first examined the plaintiffs over two years after the accident and only three weeks before trial, testified that both plaintiffs suffered from an organic brain syndrome due to phosgene poisoning. Dr. McCutchen explained that an organic brain syndrome involves a structural change in the brain and causes the plaintiffs "disturbance[s] in judgment, in memory, at times in orientation, changes in personality, [and] depression." On cross-examination Dr. McCutchen admitted that the tests performed on the plaintiffs when they were first seen in the emergency room did not prove that they had been exposed to a significant amount of phosgene. ⁴

Plaintiffs' third expert medical witness, Dr. Jana Kaimal, a board certified pulmonary disease specialist who saw and treated both plaintiffs shortly after the accident, testified by means of a video tape deposition that he first saw Dawsey eight days after the accident. At that time Dawsey told Dr. Kaimal that he had been exposed to phosgene gas and had passed out for several minutes. Dawsey further related that he suffered aches and pains, nausea, and extreme tightness of the chest the night of the accident. At the time Dawsey first visited Dr. Kaimal, he was still coughing and had shortness of breath on exertion. During his testimony, Dr. Kaimal read the conclusion in the report he prepared for the plaintiffs' attorney on August 20, 1982.

"This is a 31-year-old man, who was exposed to phosgene gas on June 2nd, 1982. He at least lost consciousness temporarily. Since that time, he had developed symptoms suggestive of asthma and allergic rhinitis." That means he had fever type of symptoms.

"As he has no other--no such history before, it is my impression that the disease is related to exposure. I believe the disability resulting from the disease is likely to be long-term. I believe he could work in areas where air is clean and free from fumes. He will incur continued medical care for foreseeable future. If he has developed asthmatic diathesis, this could remain a life-long problem."

Dr. Kaimal further testified that he last saw Dawsey on September 18, 1982, and that Dawsey failed to appear for an appointment scheduled for November 18, 1982. Dr. Kaimal also testified that while Dawsey was capable of earning a living, he should not work in an environment where he would be exposed to dust or airborne chemicals.

Dr. Kaimal testified that when he first examined Dallas Dugas on June 30, 1982, Dugas related that he was coughing and had shortness of breath on exertion and that he had headaches, irritability, insomnia, and some pain in the upper abdomen. Dr. Kaimal further testified that a chest x-ray and lung function done on June 30 showed normal, as did a second lung function done on July 12, 1982. Dr. Kaimal also testified that other lung tests conducted in his office after the first two tests indicated that Dugas' lungs were smaller than normal. He stated that he could not explain why Dugas' lungs would test smaller than normal. Dr. Kaimal also stated that he had numerous patients with restricted lungs who lead normal and productive lives.

Plaintiffs' next expert medical witness, Dr. William Coulter, Jr., a board certified internal medicine specialist with a subspecialty in pulmonary disease who examined Dawsey in September 1982 at Aetna's request, testified that he diagnosed Dawsey as having an improving case of chronic bronchitis. Dr. Coulter further testified that while the bronchitis could possibly have been caused by phosgene exposure, it was more likely that his bronchitis was caused by an allergy. Dr. Coulter also testified that Dawsey's condition should not prevent him from working.

Plaintiffs' last expert witness, Dr. Gilles Morin, a psychiatrist who examined Dawsey on September 13, 1984, at Olin's request, testified that, while Dawsey scored a seventy-five on an IQ test and showed a major depressive order with psychosis on the Minnesota Multiphasic Personality Inventory, the clinical evaluation did not bear out these findings. Dr. Morin testified that he thought Dawsey to be of average intelligence and to have a moderate to severe mixed anxiety and depressive reaction rather than to be of borderline intelligence and to have a major depressive order with psychosis. Dr. Morin refused to relate Dawsey's troubles to phosgene and stated that he saw no evidence that Dawsey suffered brain damage from the exposure and that he saw no reason why Dawsey was less capable of earning a living now than he was prior to June 1982. Dr. Morin also testified that patients frequently exaggerate their complaints when they are involved in litigation and that litigation can be the cause of a patient's depression.

Olin's defense consisted of a two-pronged attack on the plaintiffs' case; first, Olin argued that the plaintiffs were exposed to an insignificant amount of phosgene, and, second, that phosgene could not possibly have caused many of the plaintiffs' complaints.

Olin's first expert medical witness, Dr. Robert Jones, a board certified internal medicine specialist with a subspecialty in pulmonary diseases and a professor of medicine at Tulane Medical School who examined Dawsey in March 1982 and Dugas in September 1983, testified about the general effects of phosgene exposure and about the specific effects on the plaintiffs. Dr. Jones testified that phosgene injures persons by inflaming the surface of the moist tissues of the body that are in contact with the phosgene and that phosgene does not get inside the body and do damage to...