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Brunet v. Avondale Industries12/5/2000
peal
In its first assignment of error, Avondale alleges that the trial court erred in holding that Brunet had a cause of action premised on the theory of negligence. Avondale alleges that this cause of action is barred by the exclusive remedy doctrine of the Louisiana Workers Compensation Act ("Act").
Under Cole v. Celotex, supra, the pre-1975 version of the Louisiana Workers Compensation Act applies in this case. Avondale alleges that Brunet's lung cancer caused by asbestos-containing products falls under the occupational disease section of the Act and therefore his exclusive remedy would be in workers compensation, not in negligence or strict liability.
Under LSA-R.S. 23:1031.1, Brunet need only show exposure to an element listed in the statute or one of the diseases listed in the statute to be covered by the Act. The pertinent sections of LSA-R.S. 23:1031.1 read as follows:
"A. An occupational disease shall include only those diseases hereinafter listed when contracted by an employee in the course of his employment as a result of the nature of the work performed.
(8) Poisoning by or other disease resulting from contact with
(a) oxygen, nitrogen, carbon and their compounds
(g) metals, other than lead and their compounds
(3) Asbestosis."
Avondale asserts that since Brunet's lung cancer was caused by an exposure to asbestos, which can be considered both an oxygen-based and metal-based compound, his exclusive remedy is under the Act and the negligence and strict liability claims must be dismissed. I disagree.
Asbestos is not specifically written as one of the exclusive substances under LSA-R.S. 23:1031.1; nor, is lung cancer provided as one of the diseases that falls under the restricted ambit of a workers' compensation action. Asbestos would be better described as a mineral rather than a compound in the context of the scientific terminology appearing in the statute. Thus it has not been established as a matter of law that asbestos must be considered an "oxygen compound" within the context of former Subsection (d) of LSA- R.S. 23:1031.1. While asbestos does contain oxygen, all compounds that contain oxygen may not necessarily be oxygen compounds for the purposes of former Subsection (d).
While both the First and Fourth Circuits have addressed the issue of whether or not lung cancer caused from exposure to asbestos is covered under the pre-1975 revision of LSA-R.S. 23-1301.1, both of the cases cited in this opinion were determined on issues pertaining to exceptions of no cause of action. It is undisputed that lung cancer is not a disease listed under the statute, but neither court actually addressed the evidence in detail to determine if asbestos is scientifically deemed an oxygen or metal based compound.
The trial court in this case refused to allow the testimony of Dr. Ensley to be introduced into evidence. Avondale alleges that the testimony of Dr. Ensley confirms that asbestos is both an oxygen-based and a metal-based compound. Avondale alleges that if this supposition is correct, then Brunet's lung cancer caused by asbestos would fall under the exclusive remedy provision of the Act. The trial court did not allow this testimony into evidence based on the Fourth Circuit's holding in Gautreaux v. Rheem Mfg. Co., supra. Under LSA-C.C.P. art. 1636, the trial court allowed Avondale to proffer a statement of evidence in regard to Dr. Ensley's testimony as well as the deposition testimonies of plaintiff's witness Dr. Ragan and defendant's rebuttal witness Dr. Liuzza and various exhibits. The issue was referred to this Court for a final determination.
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