Hennegan v. Cooper/T. Smith Stevedoring Co.

• Citation: 837 So.2d 96
• Decision Date: 30 December 2002
• Docket Number: No. 2002-CA-0282.,2002-CA-0282.
• Parties: James HENNEGAN v. COOPER/T. SMITH STEVEDORING COMPANY, INC.
• Court: Court of Appeal of Louisiana (US)

837 So.2d 96

James HENNEGAN v. COOPER/T. SMITH STEVEDORING COMPANY, INC.

No. 2002-CA-0282.

Court of Appeal of Louisiana, Fourth Circuit.

December 30, 2002.

Writ Denied April 21, 2003.

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Stephen B. Murray, Stephen B. Murray, Jr., Murray Law Firm, New Orleans, LA, and Thomas M. Discon, Discon Law Firm, Mandeville, LA, for Plaintiff/Appellee.

George C. Freeman, III, Denise M. Pilie', Stone, Pigman, Walther, Wittmann & Hutchinson, L.L.P., New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).

WILLIAM H. BYRNES III, Chief Judge.

Garlock, Inc. ("Garlock") appeals a judgment in favor of the plaintiff, Mary Hennegan, individually and on behalf of the estate of her late husband, James Michael Hennegan, in this maritime asbestos products liability tort action where the trial court found the manufacturer, Garlock, solidarily liable after a bench trial. We affirm.

From 1965 to 1968, the decedent, James Hennegan, was employed as a Jones Act seaman/deckhand aboard a fleet of derrick barges owned and operated by his employer, T. Smith & Sons (now doing business as Cooper/T. Smith Stevedoring Company, Inc.) ("Cooper/T.Smith"). Among his duties, Mr. Hennegan was responsible for the maintenance of the steam derricks aboard the barges. On February 10, 1997, James Hennegan was diagnosed with malignant mesothelioma at age 54. He died three years later in December 1999.

Procedural History

On August 5, 1997, James Hennegan filed suit in civil district court against his employer, Cooper/T. Smith, under the Jones Act and general maritime law. He lclaimed damages arising from mesothelioma caused by his exposure to asbestos aboard Cooper/T. Smith's derrick barges.

On December 30, 1997, Cooper/T. Smith filed a third-party demand against Amdura, Inc. ("Amdura"), successor in interest to American Hoist, manufacturer of the cranes aboard the derrick barges. On May 12, 1998, Cooper/T. Smith filed a supplemental third-party demand against various manufacturers of asbestos products allegedly aboard the derrick barges during Mr. Hennegan's employment. The defendants included Garlock, the manufacturer of gaskets and packings used at Cooper/T. Smith; Owens Corning Fiberglass ("OCF"), the manufacturer of Kaylo, an asbestos pipe cover; Owens-Illinois ("O-I"), the previous manufacturer of Kaylo; W.R. Grace & Co.—Conn., as well as Eagle, Inc., and A.P. Green Industries, Inc., the manufacturer of mortar and firebricks used in the boilers on the Cooper/T. Smith vessels. Also named as a defendant was the City of New Orleans, the employer of Mr. Hennegan, who worked as a city fireman for over 20 years. Pursuant to the plaintiff's motion, Cooper/T. Smith's third-party claims were severed from the plaintiff's action against Cooper/T. Smith.

In August 1998, Mr. Hennegan settled with Cooper/T. Smith. In October 1998, Mr. Hennegan filed a supplemental petition, naming the parties alleged by Cooper/T. Smith to have furnished asbestos-containing products to Cooper/T. Smith during his employment. Mr. Hennegan named as defendants Garlock, O-I, Amdura, A.P. Green, Eagle and OCF. Other defendants were dismissed without prejudice prior to trial.

Mr. Hennegan settled with Amdura. In December 1999, the plaintiff, James Hennegan, died, and his wife was substituted as party plaintiff as the administratrix of the estate. On March 31, 2000, Mrs. Hennegan filed another supplemental petition, asserting a wrongful death claim on behalf of herself and a survival action on behalf of James Hennegan's estate.

In October 2002, OCF, the manufacturer of the "Kaylo" pipe insulation used aboard the derricks, filed for bankruptcy, and all lawsuits against it were stayed. Prior to trial the plaintiff settled with A.P. Green, and the plaintiff dismissed the City of New Orleans without prejudice. The bench trial commenced on April 16, 2001 against the remaining defendants, Garlock, O-I, and Eagle. The parties agreed to dismiss Eagle without prejudice on the second day of trial. After the plaintiff rested, the trial court granted a directed verdict in favor of O-I. Garlock was the remaining defendant at the end of trial on April 20, 2001.

On July 30, 2001, the trial court rendered its judgment against Garlock, awarding $2,500,000 in general damages plus legal interest, as well as special damages in the amount of $596,769.62. The trial court found that Amdura and A.P. Green were not at fault. The trial court held that Garlock was 80 percent at fault. The trial court concluded that Cooper/T. Smith was 20 percent at fault, and reduced the award against Garlock by that amount. The trial court held that Garlock was solidarily liable for the remaining damages. Garlock's appeal followed.

On appeal, Garlock contends that the trial court erred in: (1) shifting the burden to Garlock to disprove that Garlock's products caused Mr. Hennegan's disease; (2) finding Garlock's encapsulated gaskets and packing were the substantial cause of Mr. Hennegan's mesothelioma; (3) finding Garlock's gaskets and packing were unreasonably dangerous; (4) finding Cooper/T. Smith was only 20 percent liable for Mr. Hennegan's damages; and (5) finding Garlock was liable for Mr. Hennegan's remaining damages. Further, Garlock maintained that the trial court erred in exonerating Amdura and A.P. Green from all liability.

Standard of Review

Admiralty claims may be brought in federal court pursuant to its admiralty jurisdiction or in state court under the savings to suitors clause; in either case, federal substantive maritime law applies. Antill v. Public Grain Elevator of New Orleans, Inc., 577 So.2d 1039 (La. App. 4 Cir.1991), writ denied 581 So.2d 684 (La.1991). In an admiralty case, the appellate court reviews the district court's findings of fact for clear error and considers all questions of law de novo. Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5 Cir.1994), modified on other grounds on rehearing, 22 F.3d 568 (5 Cir.1994), certiorari dismissed sub nom. Sea Savage, Inc. v. Chevron U.S.A., Inc., 512 U.S. 1265, 115 S.Ct. 5, 129 L.Ed.2d 906 (1994).

Factual findings made by the trial court in a claim under general maritime law are reviewed under a clearly erroneous standard, which is the same manifestly wrong or clearly wrong standard of review used by the Louisiana appellate court in reviewing factual findings of lower courts. Mistich v. Pipelines, Inc., 609 So.2d 921 (La.App. 4 Cir.1992), writ denied 613 So.2d 996 (La.1993), certiorari denied sub nom. Brown & Root, Inc. v. Mistich, 509 U.S. 913, 113 S.Ct. 3020, 125 L.Ed.2d 709. If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though it is convinced that if it had been sitting as the trier of fact, it would have weighed the evidence differently. Anderson v. Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Where there is a in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987). A court sitting in admiralty apportions damages in accordance with principles of comparative negligence. Vulcan Materials Co. v. Vulica Shipping Co., Ltd., 859 F.Supp. 242 (W.D.La.1994).

Causation

In the present case, the trial court found that Garlock was strictly liable for Mr. Hennegan's illness and death. Under a strict tort products liability theory, to recover from a manufacturer, the plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product the manufacturer's control. Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986). The plaintiff need not prove negligence by the maker in its manufacture or processing, since the manufacturer may be liable even though it exercised all possible care in the preparation and sale of its product. Id. Issues of negligence and causation in admiralty cases are treated as fact questions. Johnson v. Offshore Exp., Inc., 845 F.2d 1347 (5 Cir.1988), certiorari denied sub nom. Off shore Exp., Inc. v. Johnson, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988). Causation is a question of fact and the trier of fact's determinations are entitled to great weight and cannot be disturbed absent manifest error. Martin v. East Jefferson General Hosp., 582 So.2d 1272,1276 (La.1991); Anglin v. White, 572 So.2d 779 (La.App. 4 Cir.1990). Causation may be proved by either direct or circumstantial evidence, but the evidence must be sufficient to tilt the balance from possibility to probability. Anderson v. Whittaker Corp., 894 F.2d 804, 812 (6 Cir.1990).

Substantial Factor

Garlock claims that the trial court erroneously found that one asbestos fiber can cause mesothelioma, or that exposure to one fiber was equated with substantial causation. To prove legal cause,¹ the plaintiff had to show that the defective or dangerous condition was a substantial factor in bringing about the resulting harm. Quick v. Murphy Oil Co., 93-2267 (La.App. 4 Cir. 9/20/94), 643 So.2d 1291, writ denied, 94-2583 (La.1/6/95), 648 So.2d 923. There can be more than one cause in fact, making multiple wrongdoers liable. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). The plaintiff must show that the defendant's conduct was a "substantial factor" in bringing about the harm. Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46. A substantial factor need not be the only causative factor; it need only increase the risk of harm. Spinks v. Chevron Oil Co., 507 F.2d 216 (5 Cir.1975); Haynes v....