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Austin v. Abney Mills9/4/2002
l amounts of asbestos and asbestos-containing materials throughout his employment prior to 1975. He also produced the affidavit of Dr. Roggli that the pre-1975 exposures identified by Mr. Hogue related to his diagnosis of pleural mesothelioma in 1998. Accordingly, we conclude that Mr. Hogue met his burden under La. Code Civ. Proc. art. 966 of producing evidence to show that a genuine issue of material fact exists and that he would be able to satisfy his burden of proof at trial. We find that the employer defendants in this case have not carried their ultimate burden of establishing for summary judgment purposes that Mr. Hogue's cause of action accrued only after 1975, such that the employer defendants would be entitled to summary judgment and immunity from suit in tort.
DECREE
For the reasons set forth above, we reverse the lower courts' summary judgment in favor of the employer defendants and remand for further proceedings not inconsistent with our holding in this case.
REVERSED AND REMANDED
CALOGERO, Chief Justice, assigns additional reasons.
In addition to the reasons assigned in the majority opinion of this court, I write separately to address an opinion recently handed down by another state's highest court with facts remarkably similar to those in the case sub judice. The Maryland Court of Appeals rejected the manifestation theory espoused by the lower courts in the present case, and adopted the significant tortious exposure theory of determining when a plaintiff's cause of action arises in a long-latency disease case. See John Crane, Inc. v. Scribner, 800 A.2d 727 (Md. 6/11/02).
In Scribner, the plaintiff developed mesothelioma as a result of exposure to asbestos contained in the defendants' products while he served in the Navy from 1971-1978; however, the plaintiff's disease did not manifest itself until 1995. Id. at 732. Under the manifestation theory, the plaintiff's cause of action would have arisen in 1995, when he was diagnosed with mesothelioma, and, thus, his damages would be subject to the statutory cap imposed by the Maryland legislature in 1986. Id. at 738.
The court noted that the manifestation theory, although conceptually simple and certain, ignores the distinction between when a cause of action arises and when it accrues. Id. at 739. With a long-latency period disease, the injury will almost necessarily occur before the disease is, or as a practical matter can be, discovered. Id. at 735. "Indeed, . . . the 'discovery rule' itself, . . . is founded on the premise that a period of time may elapse between the point at which an injury occurs and hence a cause of action based on that injury arises and the point at which the injured person may reasonably discover that injury." Id.
The Scribner court next rejected the contraction theory, which fixes the plaintiff's cause of action at the moment the disease itself first arose in the body. Id. at 740. The court noted that this theory is "impossible to apply in any uniform and rational way and necessarily engenders competing expert testimony as to the timing of an event that no one can precisely define." Id.
The court observed that the significant tortious exposure theory is both theoretically supportable and workable. Id. This approach starts with the premise that the plaintiff has established, to the satisfaction of the trier of fact, an injury proximately caused by exposure to the defendant's asbestos-containing product. Once injury and cause are established, the plaintiff must show the timing of significant exposures to asbestos. Id. at 741. Because the Scribner plaintiff established to the satisfaction of the jury that the last expo
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