Torrejon v. Mobil Oil Co.

• Decision Date: 02 June 2004
• Docket Number: No. 2003-CA-1426.,2003-CA-1426.
• Citation: Torrejon v. Mobil Oil Co., 876 So.2d 877 (La. 2004)
• Parties: Christina TORREJON, Individually and as Personal Representative of the Estate of Joseph Torrejon v. MOBIL OIL COMPANY, Individually and as Successor to Socony Vacuum Oil Company and Socony Mobil Oil Company; Babcock & Wilcox Company; Combustion Engineering, Inc.; The Flintkote Company; Foster Wheeler Corporation; Garlock Inc.; et al.
• Court: Louisiana Supreme Court

Page 877

876 So.2d 877

Christina TORREJON, Individually and as Personal Representative of the Estate of Joseph Torrejon v.MOBIL OIL COMPANY, Individually and as Successor to Socony Vacuum Oil Company and Socony Mobil Oil Company; Babcock & Wilcox Company; Combustion Engineering, Inc.; The Flintkote Company; Foster Wheeler Corporation; Garlock Inc.; et al.

No. 2003-CA-1426.

Court of Appeal of Louisiana, Fourth Circuit.

June 2, 2004.

Appeal from the Civil District Court, Orleans Parish, No. 95-3284, Division "B-15", Rosemary Ledet, J.

COPYRIGHT MATERIAL OMITTED

Scott R. Bickford, John R. Martzell, Christopher H. Sherwood, Tiffany G. Chase, Regina O. Matthews, Martzell & Bickford, New Orleans, LA, for Plaintiff/Appellee.

Gary A. Bezet, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, and Andrew L. Plauche', Jr., Kenan S. Rand, Jr., Plauche', Maselli, Landry & Parkerson, L.L.P., New Orleans, LA, for Defendant/Appellant(Mobil Oil Company).

(Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).

PATRICIA RIVET MURRAY, Judge.

This is a maritime wrongful death suit.From a judgment notwithstanding the verdict ("JNOV") in favor of the plaintiff, Christina Torrejon, the defendant, Mobil Oil Company("Mobil"), appeals.We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1938, Joseph Torrejon, Mrs. Torrejon's deceased husband, began working as a merchant mariner aboard various vessels in various crew positions.From 1941 to 1949 and in 1956, he sailed on Mobil vessels.During that time, according to plaintiff's calculations, Mr. Torrejon spent 2,066 days working and residing on Mobil vessels.During that time, he allegedly was required to maintain and to repair equipment surrounded with asbestos and to tear out and to repair asbestos-containing insulation.As a result, he allegedly was exposed to substantial amounts of asbestos dust.

In addition to maritime employment, Mr. Torrejon's career also included several land-based employments at which he also may have been exposed to asbestos-containing products.¹

In April 1994, at age seventy-seven, Mr. Torrejon died of mesothelioma, which the parties stipulated was caused by his exposure to asbestos.In March 1994, a month before he died, Mr. Torrejon, who was then residing in Arizona, filed a petition to perpetuate testimony in Arizona state court.In that petition, he represented that his life expectancy was less than a month and that he reasonably believed that his occupational exposure was a contributing factor to his asbestos-related disease.He further represented that he, or his surviving spouse, was planning to bring suit against the manufacturers of the asbestos-containing products to which he was exposed.He still further represented that he needed to perpetuate his testimony on three particular points: (i) the employment sites at which he was exposed to asbestos, (ii) the types and manufacturers of asbestos-containing products to which he was exposed,² and (iii) the fact that he had not smoked tobacco within the last thirty years.Attached to the perpetuation petition was a summary of his pertinent employment history; that summary listed the following pertinent information:³

• Merchant Mariner — 1938 — as an Oiler he was exposed to asbestos pipe, wrap, and mud.

• Steam Ships — S/S STANVAC CAPE TOWN, S/S MAGNOLIA, and S/S SOCONY-VACUUM (Mobil's vessels) — worked in boiler rooms from 1941 to 1949 as Oiler; Machinist; First, Second and Third Assistant Engineer; and Fireman/Watertender.

• New York City Shipyard — did machinist work for a three or four day period and then went back to sea.Mr. Torrejon was uncertain as to the length of time he was there.

• General Electric — worked on boilers and turbines and the heating and cooling system.

• Colonial House (a hotel) in Las Vegas — 1959 to early 1960's-worked in the boiler room doing maintenance.

Besides the perpetuation petition, the only other direct evidence of Mr. Torrejon's asbestos exposure was provided by Dr. Robert Hirsch's testimony.Dr. Hirsch, a general internist, testified that he was Mr. Torrejon's treating physician from January 3, 1994 until his death on April 22, 1994.According to Dr. Hirsch, Mr. Torrejon informed him on his first visit, as part of the patient history, that he worked with asbestos when he was a ship's engineer during World War II.Dr. Hirsch testified that Mr. Torrejon did not give him any other information regarding potential occupational exposure to asbestos.Dr. Hirsch documented Mr. Torrejon's statement in his report dated January 3, 1994, which reads: "[Mr. Torrejon] worked with asbestos when he was a ship's engineer during World War, II.Subsequent to that he was a restaurant owner....He smoked briefly during the 1940's."Dr. Hirsch testified that Mr. Torrejon was mentally alert at the time he obtained that initial patient history from him.Although Dr. Hirsch testified that his working diagnosis of Mr. Torrejon was lung cancer, the autopsy revealed that lung cancer was a misdiagnosis and that the correct diagnosis was mesothelioma.

In March 1995, Mrs. Torrejon, as her deceased husband's personal representative, filed the instant maritime wrongful death action in Orleans Parish Civil District Court.In her original and amended petition, she named two groups of defendants: (1)Mr. Torrejon's Jones Act employer: Mobil Oil Company, individually and as successor to Socony Vacuum Oil Company and Socony Mobil Oil Company; and (2) eight manufacturers of asbestos-containing products: Babcock & Wilcox Company; Combustion Engineering, Inc.; Foster Wheeler Corporation; Combustion Engineering, Inc.; The Flintkote Company; Garlock Inc.; Owens-Corning Fiberglas Corporation; and Owens-Illinois, Inc.As to the latter defendants, plaintiff's claims were premised on maritime products liability.Although plaintiff's petition included both a Jones Act and an unseaworthiness claim against the Jones Act employer (i.e., Mobil), plaintiff pursued only the Jones Act claim at trial.

As to Mobil's Jones Act liability, plaintiff alleged that Mr. Torrejon was exposed to a substantial amount of asbestos while sailing as a seaman on various Mobil vessels in various capacities.⁴Plaintiff also alleged that Mobil knew or should have known of the dangers posed by asbestos,⁵ yet failed to prevent asbestos dust exposure, failed to use proper work practices, and failed to warn him of the dangers.

Mobil not only answered, generally denying plaintiff's allegations, but also filed a third-party demand against nine manufacturers of asbestos-containing products.Mobil's third party demand, filed in March 2002, sought indemnity, contribution, or both for the claims plaintiff asserted in this case as well as for the claims she asserted in the parallel federal suit she filed in Arizona.⁶Indeed, Mobil's third-party demand incorporated plaintiff's allegations in the Arizona complaint.

In November 2002, an almost two-week jury trial was held in the instant matter.Due to settlements and dismissals, Mobil was the sole remaining defendant at the time of trial.At trial, the parties stipulated to the following facts:

• Mr. Torrejon was born on October 14, 1916; and he died on April 22, 1994.(He was seventy-seven at the time of his death.)

• Mobil Oil is the successor-in-interest to both Socony-Vacuum Oil Company and Socony Mobil Oil Company, and Mobil and its predecessor corporations were members of the National Safety Council from 1930 to 1960, inclusive.

• From 1941 to 1949 and in 1956, Mr. Torrejon sailed on the following eight vessels owned by Mobil or its predecessor corporations; STANVAC CAPE TOWN, SOCONY VACUUM, SACONNET, TATARRAX, SAUCON, SHABONEE, MAGNOLIA, and ECLIPSE.His rankings were: Oiler; Machinist; Fireman/Watertenderer; and First, Second and Third Assistant Engineer.

• Mobil or its predecessor corporations were Mr. Torrejon's Jones Act employers during the time that he sailed aboard those eight vessels.

• Foster Wheeler boilers were on the following vessels: MAGNOLIA, SACONNET, SOCONY VACUUM, and STANVAC CAPE TOWN.

• To a reasonable degree of medical certainty, Mr. Torrejon developed a disease known as malignant pleural mesothelioma and died as a result of that disease.

• Mr. Torrejon's medical expenses incurred in the treatment of that disease were $20,862.77, which did not include medications or medical equipment.Mr. Torrejon's funeral and burial expenses were $2,365.15.

• Plaintiff is pursuing claims against Mobil under the Jones Act and the general maritime law, and is seeking damages for his physical and mental pain and suffering, medical expenses and funeral expenses as allowed under the Jones Act and general maritime law.Plaintiff is not entitled to pursue claims for punitive damages under the Jones Act and general maritime law against Mobil.

• Plaintiff has settled claims for damages with about a dozen manufacturers or their settlement trusts.

Additionally, in response to plaintiff's motion for directed verdict on the issue, Mobil stipulated that Mr. Torrejon's contraction of mesothelioma was caused by his exposure to asbestos.⁷

At the close of trial, the jury answered the special interrogatories as follows:

1.Was the defendant, Mobil Oil Company, negligent in exposing Joseph Torrejon to asbestos?

 X  Yes      ___  No
                

If your answer to question No. 1 is "Yes", answer the next question.If your answer to question No. 1 is "No", sign the verdict form and return to the courtroom.

2.Was the defendant, Mobil Oil Company's negligence a cause of plaintiff's injuries?

   ___  Yes       X  No
                

If your answer to question No. 2 is "Yes", answer the next question.If your answer to question No. 2 is "No", sign the verdict form and return to the courtroom.⁸

On November 20, 2002, the trial court entered judgment in accord with the jury's verdict, dismissing plaintiff's claims against Mobil.In...