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Austin v. Abney Mills9/4/2002
1223. Cole, 599 So.2d at 1077 (quoting Commercial Union Ins. Co. v. Sepco Corp., 765 F.2d 1543, 1546 (11th Cir. 1985)).
In sum, then, the court of appeal's statement in the instant case, that "exposure [to asbestos] in no way includes the concept of damage," 34,495, p. 6, 785 So.2d at 182, is not correct, as this court has previously reasoned that "significant and continuing exposure" to asbestos in long-latency occupational disease cases where the individual suffers from the disease does include a corresponding measure of injury or damage.
Adopting the rationale of Cole, we conclude that the "significant tortious exposure" theory for determining when a cause of action accrued in a long-latency occupational disease case in which the plaintiff suffers from an illness or disease is when the exposures are "significant and such exposures later result in the manifestation of damages . . .." Cole, 599 So.2d at 1066. Just as the appellate court reasoned in Abadie, we hold that "tortious exposures are significant when asbestos dust has so damaged the body that the fibrogenic effects of its inhalation will progress independently of further exposure." Abadie, p. 17, 784 So.2d at 65. We agree with the Abadie court that such an application of the "significant tortious exposure" theory is a logical variation of, and not materially different from, the application of the "contraction" theory articulated in Faciane. Therefore, in order to establish when the tort cause of action accrued in a long-latency occupational disease case, wherein the plaintiff suffers from the disease, the plaintiff must present evidence that the exposures were "significant and such exposures later result in the manifestation of damages . . .." Cole, 599 So.2d at 1066.
This holding neither upsets nor diminishes the basic concept that tort liability involves the balancing of competing interests. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 3, at 15 (5th ed. 1984). In situations where damage does not occur until long after the alleged defendant's conduct has ended, industry, rather than the injured victims, is in a better position to bear the risk by including this liability in the costs of the product and reserving a fund for contingent liabilities. See Maraist & Galligan, Louisiana Tort Law, §§ 10-1, 10-2. At the same time, allowance of a tort action, such as Mr. Hogue's, this long after exposure does not necessarily mean that stale or lost evidence will hamper industry. Jurisprudence from other jurisdictions indicates that the quality of much of the crucial evidence in latent disease cases improves with the passage of time, because the state of scientific knowledge becomes more sophisticated at the same time that the plaintiff's illness progresses from being inherently undiscoverable to symptomatic to diagnosable. See, e.g., Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C. Cir. 1982); Larson v. Johns-Manville Sales Corp., 399 N.W. 2d 1, 5-6 (Mich. 1986).
CONCLUSION
Applying the significant tortious exposure theory to this case, we find that the employer defendants have failed to carry their burden with respect to the motion for summary judgment. The only medical evidence presented by the defendant in this case was that the disease most likely manifested itself in July 1998 and that Mr. Hogue became disabled that same year. The employer defendants submitted no affidavits or other evidence that the disease was contracted after 1975 or that the pre-1975 excessive exposures alleged by Mr. Hogue in his petition were neither significant nor resulted in the onset of disease. Thereafter, Mr. Hogue produced his deposition testimony that he was exposed to substantia
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