Mistich v. Pipelines, Inc.
| Decision Date | 17 November 1992 |
| Docket Number | No. 89-CA-1420,89-CA-1420 |
| Citation | 609 So.2d 921 |
| Parties | Stephen A. MISTICH, v. PIPELINES, INC., et al. |
| Court | Court of Appeal of Louisiana — District of US |
James F. Holmes, J. Warren Gardner, Linda M. Uzee, Christovich & Kearney, New Orleans, for appellant.
Lawrence D. Wiedemann, William N. Hazlaris, Wiedemann & Wiedemann, New Orleans, Mark A. Pivach, Pivach, Cossich & Pivach, Belle Chasse, for appellees.
Before BARRY, KLEES and ARMSTRONG, JJ.
In this maritime personal injury case, defendant, Brown & Root, Inc., appeals from a judgment in the amount of $7,147,608.00 rendered against it and in favor of plaintiff, Stephen A. Mistich.
Plaintiff initially filed suit in December 1986 under the general maritime law and the Jones Act, 46 U.S.C.A.App. Sec. 688, claiming he had developed a type of leukemia, chronic myelogenous leukemia (CML), as a result of his exposure to hazardous levels of gamma radiation from x-rays while working as a welder on oilfield pipelaying barges owned by defendant, Brown & Root. Also named as defendants in plaintiff's petition for damages were Lennard Pipelines, Inc., Global Divers and Contractors, Inc., Sea-Con Services, and Santa Fe International, Corp., all of whom, like Brown & Root, were plaintiff's former employers.
Plaintiff settled with all defendants except Brown & Root before trial. Brown & Root subsequently moved to continue the trial, but that motion was denied by the trial court. A bench trial was concluded on April 20, 1989, and judgment was rendered on April 28, 1989. The trial court awarded plaintiff $1,147,607.00 in special damages; $2,000,000.00 in general damages; and $4,000,000.00 in punitive damages. On May 14, 1989, plaintiff died of leukemia. The trial court issued ten pages of reasons for judgment on May 25, 1989.
Plaintiff, Stephen A. Mistich, was born on May 4, 1953. He graduated from Belle Chasse high school in 1971 and, in February 1973, began working for Brown & Root as a welder's helper in their Belle Chasse yard. A pre-employment physical revealed no problems except poor eyesight. Until his leukemia manifested itself, Mistich had been hospitalized only once in his life, to have his tonsils removed. He had no record of any serious illness.
At Brown & Root Mistich moved up to tack welder, structural welder and finally to pipe welder. In November 1974 Mistich went to work in Saudi Arabia for two months as a welder foreman. Upon his return he worked for six months with a diving and salvage company where he learned underwater welding, setting a world record for depth welding while there. Prior to being hired by the diving and salvage company, Mistich underwent another thorough physical exam which revealed no physical problems. In the summer of 1975 Mistich went back to work for Brown & Root in its fabrication shop for several weeks before going to work for another company welding pipes and structures on offshore oil platforms, and subsequently another company doing pipe welding. This pattern of working primarily for Brown & Root, but elsewhere during slow periods, more or less continued throughout Mistich's career as a welder. Mistich's primary employer during his career as a welder was Brown & Root. In late 1983, he received a ten-year continuous service pin from Brown & Root.
Mistich returned to work for Brown & Root in late 1975 or early 1976. In June 1976 he went to work offshore on a Brown & Root pipelaying barge, the No. 278. This was the first time Mistich had worked aboard a pipelaying barge and, according to him, had ever worked around x-ray equipment. Mistich worked on pipelaying barges for Brown & Root at least until 1984. He worked on seven different Brown & Root barges at various times.
Pipelaying barges construct or lay pipelines from onshore to offshore facilities for independent pipeline owners. A company such as Brown & Root would supply the barge, manpower, and pipe necessary to construct the pipelines. Generally, the pipeline owner would hire a testing company to x-ray the completed pipe welds before the pipe would be laid. However, sometimes Brown & Root would hire the testing company.
Brown & Root pipelaying barges are all basically set up the same way. Welding stations forty-feet apart on the starboard or right side of the barge form a kind of assembly line running from bow to stern. Forty-foot sections of pipe are moved down the assembly line of welding stations and, at each station, a different weld is placed on the pipes. The sections of pipe are welded end-to-end to create a continuous pipeline. After the welded sections of pipe are completed the barge is moved forward and the pipeline slides off the stern of the barge down a ramp into the sea.
The final weld is actually done at the fourth station, also known as the capping station. The fifth station is not a welding station but an x-ray station. At that station the completed welds are x-rayed to insure they are not defective. If a defective weld is found, the pipelaying operation stops until the defective weld is ground out and a new one installed. While the defective welds are being replaced in the x-ray station, the x-ray technicians often "move up" to the fourth station, or capping station, to x-ray another capped weld. Even when there is no defective weld being repaired in the x-ray station, the technicians often move up to the capping station to x-ray the capped weld immediately after it is completed so that if a defective weld is found, it can be repaired in the capping station. Moving up saves valuable time, increasing the barge's productivity. Risers, or angled pipe connections, are often constructed on the deck of the barge and x-rayed there. Also, on occasion, small pipelines are constructed and x-rayed on the open deck of the barge, outside of the welding stations.
The pipe welds are x-rayed with either internal or external x-ray cameras. The internal x-ray cameras are used on pipe 12 inches or larger. An internal x-ray camera is mounted on a crawler device which is operated by remote control. The crawler is sent into the pipe and it moves up to the weld upon which the operator has placed a battery-operated "source." The weld has film placed around it. The operator removes the "source" and the x-ray camera is activated with a five-second delay. One 360 degree x-ray photograph is taken of the weld.
When an external camera is used, three x-rays are taken of the weld, each showing 120 degrees of the weld. The first shot is taken with the camera on top of the pipe at the weld site. The camera is rotated 120 degrees and a second shot is taken, and then a third shot, to photograph the final 120 degrees of the weld. The first shot is directed to the deck, the second out over the water, and the third inboard at an upward angle across the deck of the barge.
Evidence established that on an average day a Brown & Root pipelaying barge would lay 100 forty-foot lengths of pipe. This means on a average day either 100 or 300 x-rays were taken, depending on whether an internal or external camera was used. Evidence showed that crew quarters were usually located adjacent to the x-ray station. The crews of the pipelaying barges, including welders such as plaintiff, lived and worked aboard the barges while completing the offshore pipelaying jobs. With two twelve-hour shifts, pipelaying went on around-the-clock. While one shift worked, the other ate, relaxed and slept.
Medical evidence established that the type of leukemia plaintiff suffered from had only two known causes: the first, exposure to excessive amounts of gamma radiation, such as from the x-rays used on the Brown & Root barges plaintiff worked on, and the second, exposure to industrial chemicals such as benzene. The causal connection between plaintiff's leukemia and his exposure to any excessive radiation from x-rays while working on Brown & Root pipelaying barges is the primary factual dispute presented by this appeal.
On appeal Brown & Root raises nine assignments of error.
Brown & Root first argues a procedural matter. It claims the trial court erred in denying its motion to continue the trial after it learned at a pre-trial conference twelve days prior to trial that plaintiff had settled his claims against all other defendants. Brown & Root was given a copy of the joint settlement stipulation on April 9, 1989. Brown & Root requested a continuance to "meet the unexpected shift in the burden of proof occasioned by the settlement." The request was denied and an application for supervisory review on that ruling was subsequently denied by this court. 1 On appeal Brown & Root also claims the trial court erred further by not relieving defendant of its burden of proving negligence on the part of the settling defendants. Brown & Root argues that it was prejudiced and deprived of an opportunity to adequately prepare to establish the negligence of the released co-defendants by the trial court's failure to continue the trial. Brown & Root alternatively argues that the trial court erred in failing to proportionately reduce the plaintiff's award by the number of settling co-defendants. In Raley v. Carter, 412 So.2d 1045 (La.1982), the Louisiana Supreme Court reversed a decision by this court which reduced the proportion of fault attributed at trial to one defendant after plaintiff released three co-defendants on the morning of trial. Reversing this court's reduction of plaintiff's award, the Supreme Court stated:
To hold otherwise would seriously impair pre-trial settlement negotiations. Aware of the possibility that a late settlement may result in the reduction of an award rendered after trial with the remaining defendants, a plaintiff may feel forced to choose between an early (and probably unsatisfactory) compromise or proceeding to trial against all defendants. Our courts have repeatedly refused to implement jurisprudential...
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