Zimko v. American Cyanamid
| Decision Date | 08 June 2005 |
| Docket Number | No. 2003-CA-0658.,2003-CA-0658. |
| Citation | 905 So.2d 465 |
| Parties | Kenneth Paul ZIMKO and Rochelle Lacourrege Zimko v. AMERICAN CYANAMID, et al. |
| Court | Louisiana Supreme Court |
Mickey P. Landry, Frank J. Swarr, David R. Cannella, Landry & Swarr, L.L.C., New Orleans, LA, for Plaintiffs/Appellees.
John J. Rabalais, Janice B. Unland, Robert T. Lorio, Paul E. Harrison, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Appellant (Tate & Lyle North American Sugars, Inc.).
Henri Wolbrette, III, Erin Fury Parkinson, Margaret Diamond, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellant (American Cyanamid Company).
(Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, JR., Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge ROLAND BELSOME).
This is a wrongful death and survival action arising primarily from alleged household and bystander exposure to asbestos that resulted in the plaintiff, Kenneth Zimko, contracting mesothelioma.1 After filing this suit, but before trial, Kenneth Zimko died from that disease. Following a bench trial, the trial court found American Cyanamid Company ("American Cyanamid") liable based on household exposure and Tate & Lyle North American Sugars, Inc. ("Tate & Lyle") liable based on bystander exposure. The trial court awarded damages to Kenneth Zimko's surviving spouse, Rochelle Zimko, in the total amount of $3,500,000. For the reasons that follow, we reverse the finding of liability as to Tate & Lyle, finding the workers' compensation exclusivity rule bars such liability; affirm the finding of liability and the damage award for the survival action as to American Cyanamid; and amend the damage award for the wrongful death action as to American Cyanamid based on our allocation of fault 50% to Tate & Lyle and 50% to American Cyanamid pursuant to La. C.C. art. 2323.
It is undisputed that Kenneth Zimko had mesothelioma from which he died at the age of fifty-five years shortly before trial. Mrs. Zimko attributes the disease to her husband's household exposure from birth until age eighteen as well as during the summers when he was in college. She attributes the household exposure to Kenneth Zimko's father, Paul Zimko, bringing home from his job at American Cyanamid asbestos fibers that clung to his clothing and his person. She also attributes the disease to her husband's bystander exposure from 1977 until 1990 at his own place of employment, the Domino refinery owned by Tate & Lyle.2
The basic facts are relatively undisputed. Kenneth Zimko was born on September 19, 1945, in New Brunswick, New Jersey, and grew up in Middlesex, New Jersey. Throughout Kenneth Zimko's childhood (from birth through age eighteen), his father worked for American Cyanamid at its chemical plant in Bound Brook, New Jersey. Kenneth Zimko identified the various job titles his father had at American Cyanamid as millwright, machinist, mechanic, union worker and boiler house supervisor. According to Kenneth Zimko, his father's job title during the time Kenneth was a child—the late fifties, sixties—and during the years he was going to college—mid-sixties—was boiler house supervisor. Although he went to the American Cyanamid facility on several occasions to pick his father up from work, Kenneth Zimko never actually went inside the facility. He always stayed in the parking lot, which was located outside the gate to the facility.
After graduating from high school in the early 1960s, Kenneth Zimko attended college at Loyola University in New Orleans. During the summers of 1964, 1965, and 1966 when he was in college, Kenneth Zimko lived at home with his parents in New Jersey and worked at Johns-Manville Corporation. While employed there, he went to the Johns-Mansville Production facility only once for five minutes, albeit in conditions that were so dusty that he was unable to see.3
While attending college, Kenneth Zimko met Rochelle Zimko, who was also a Loyola student. In 1965, Rochelle Zimko visited the Zimko's house in New Jersey for the first time. She described the house as follows:
It was a very small house. The living quarters were above ground. They had two tiny bedrooms, a small bathroom, a small kitchen, a small living room, and a small eating area. And then down below, they had a basement that was the size of the entire upstairs area. The basement had a pantry where his mother kept food; it had his father's tool bench; it had a play area; and it had a washing machine.
Since the time of their marriage in 1969, Kenneth and Rochelle Zimko have resided in the New Orleans area. They had no children.
From 1970 to 1977, Kenneth Zimko had no reason to believe he had any exposure to asbestos. From 1977 until 2001, he worked at Tate & Lyle's Domino Sugar Refinery in Arabi, Louisiana where he had reason to believe he was exposed to asbestos. Although he had an office in the administrative building, he would take a shortcut, especially during inclement weather, through the first floor of the boiler house. In that area of the refinery, there was disintegrating insulation covering on the overhead piping. Because he later saw a lot of the same piping covered up with metallic sheeting with the words "contains asbestos" stenciled onto the sheeting, he believed this insulation contained asbestos. Kenneth Zimko had no direct involvement in the asbestos abatement projects that Eagle, Inc worked on at the Domino refinery.4 However, he once accidentally barged into an asbestos abatement area that was not marked off completely, but he quickly scampered out.
On one occasion when his father was visiting him in New Orleans, Kenneth Zimko took his father to see the Domino refinery where he worked. According to Kenneth Zimko, his father's comparison of the American Cyanamid facility in Bound Brook, New Jersey to the Domino refinery in Arabi, Louisiana was that "it was like an aircraft carrier compared to a — to a PT boat;" his father considered the size of the Domino boilers to be toys compared to the ones at the American Cyanamid facility.
On September 21, 2000, Kenneth Zimko was diagnosed at Ochsner Clinic in New Orleans with malignant mesothelioma, a terminal cancer. This suit followed.
On February 9, 2001, Kenneth and Rochelle Zimko filed a petition for damages against nineteen defendants. The named defendants are described as including "miners, manufacturers, sellers, users, distributors, and/or suppliers" of asbestos products who contributed to Kenneth Zimko's asbestos exposure and subsequent contraction of mesothelioma. The named defendants include Kenneth Zimko's employer, Tate & Lyle; his former employer, Johns-Manville; and Paul Zimko's (Kenneth Zimko's father) former employer, American Cyanamid.
Focusing on the latter three employer-defendants, the petition alleges that Kenneth Zimko was exposed to injurious levels of asbestos predominately from the following three sources:
(i) Asbestos fibers brought home on the clothes and person of his father, Paul Zimko, now deceased, from 1945 through 1966 from his employment at American Cyanamid's facility in Bound Brook, New Jersey, in various trades, including but not limited to machinist, millwright, mechanic, and boiler house supervisor. While Paul Zimko used, handled, or was in the vicinity of others using or handling asbestos or asbestos-containing products at that facility, dangerously high levels of asbestos fibers escaped into the ambient air of the work place and contaminated his work clothes and subsequently the family house and Petitioner [Kenneth Zimko];
(ii) Asbestos fibers present within Johns-Manville Corporation's facility in Manville, New Jersey, as Petitioner [Kenneth Zimko] was employed as a laborer during the summers of 1964, 1965 and 1966; and
(iii) Asbestos fibers present with[in] the Domino Sugar Refinery in Arabi, Louisiana [which is owned by defendant, Tate & Lyle], as Petitioner [Kenneth Zimko] was employed in various capacities from 1977 until the present [2001].
As to American Cyanamid and Tate & Lyle, the petition alleges strict premises liability and negligence under La. C.C. arts. 660, et seq., 2315, and 2317. As to Tate & Lyle, the petition also alleges fraud and an intentional act.
On May 16, 2001, Mrs. Zimko filed a First Supplemental and Amended Petition to reflect Kenneth Zimko's death on May 15, 2001, and to assert a wrongful death claim against the named defendants. Mrs. Zimko became the sole plaintiff.
On May 8, 2002, when the bench trial in this matter commenced, only five defendants remained. The remaining defendants were Tate & Lyle, American Cyanamid, Eagle, Garlock, and the McCarty Corporation. The other defendants were dismissed before trial either voluntarily or through summary judgment. Although Tate & Lyle and American Cyanamid also filed motions for summary judgment, those motions were denied.
At trial, Mrs. Zimko's case consisted of the testimony of six witnesses; to-wit: (1) herself; (2) Frank J. Schuber, Eagle's vice-president; (3) Dr. Victor L. Roggli, a renowned pathologist; (4) Dr. Arnold Brody, a professor of pathology at Tulane University Medical School, who is an expert on asbestos and its effects on the lung; (5) Frank M. Parker, III, an industrial hygienist; and (6) Dr. Julia Laurence, Kenneth Zimko's treating oncologist. Mrs. Zimko also introduced Kenneth Zimko's videotape deposition taken on March 21, 2001, and a video tour of the Domino refinery taken in 2000; these two videotapes were played at trial. Finally, she introduced various documentary evidence, including Kenneth Zimko's medical records, Alphonso Lou's deposition, and a copy of the "1951 Walsh Healy Act."5
During the presentation of Mrs. Zimko's case (immediately following Frank Schuber's testimony), Mrs. Zimko's...
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