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Brunet v. Avondale Industries12/5/2000
. Thomas had simultaneously contracted. See, Wallace v. Kaiser Aluminum & Chemical Corporation, 586 So.2d 149 (La.1991). Defendant is not precluded from demonstrating at the trial level that the asbestosis initiated the lung cancer and, therefore, the lung cancer would be encompassed within the diseases limited to workers' compensation. However, this is not a legal conclusion that can be determined from the face of the pleadings alone.
Thomas's analysis is flawed in the same way as Gautreaux's and this trial court's because it did not consider whether asbestos could be a listed compound. And, Thomas's procedural posture is just as weak as Gautreaux's, because it, too, considered an exception of no cause of action. Therefore, we agree with Avondale that the Gautreaux court's reliance on Thomas to support its conclusion was misplaced.
Gautreaux is also weak, procedurally, because the Supreme Court's writ denial does not necessarily mean that the Supreme Court approved the plurality's conclusion on asbestos's properties; it may only mean that the Supreme court considered the result, the affirmance of the denial of the no cause of action, correct. Additionally, Gautreaux did not consider whether asbestos might be a metal compound. To elevate Gautreaux's dicta about asbestos's classification to proof of the ultimate issue is cursory, shallow legal analysis. No court appears to have fully considered, at a trial on the merits with expert testimony and evidence, whether asbestos should be considered an oxygen and/or metal compound as per R.S. 23:1031.1. Gautreaux's inappropriately drawn conclusions do not relieve this and other courts of the necessity of considering this important threshold issue in a proceeding with full proof. By blindly relying on a case as weak as Gautreaux, the trial court deprived Avondale of its day in court.
Avondale cites several cases for the position that plaintiff's disease, though not listed, should be covered in workers' compensation because the pathogen is listed as an included substance or compound thereof, though the pathogen might not be listed by name.
In Zeringue v. Fireman's Fund Am. Ins. Co., 271 So.2d 613 (La. App. 1 Cir. 1972), plaintiff alleged he contracted bullous emphysema from the spray paint fumes. The court found a causal connection between his spray painting job and his illness. The court recognized that his ailment was not a listed disease, but, citing Hicks, found that the spray paint contained enough enumerated substances to make his illness compensable as an occupational disease under the statute.
"...a qualified industrial toxicologist reviewed this paint formula and testified that the paint contained mineral spirits, toluene and ethyl alcohol. These three solvents combined to comprise approximately 38% of the paint formula. Dr. Rinehart further testified that these substances are included in the listed substances under LSA-R.S. 23:1031.1, subd . B, (1), (h), (i), and (j). He also stated that one substance listed as being in the paint, ketoxime, might be ketone, which is listed in subsection (n) of the statute." Similarly, in Riley v. Avondale Shipyards, 305 So.2d 742 (La. App. 4 Cir. 1974), plaintiff was compensated for an unspecified occupational lung disease caused by detergent spray, which contained compounds of phosphorus, sulphur, and metals, included in R.S. 23:1031.1, subd. B(1)(c) and (g).
In Bernard v. Louisiana Wild Life and Fisheries Commission, 152 So.2d 114 (La. App. 3 Cir. 1963), plaintiff recovered compensation for occupational diseases, chemical pneumonitis and emphysema, caused by his inhalation of the chemical spray 2-4-D. Neither disease was specifically listed in R.S. 23:
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