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Austin v. Abney Mills9/4/2002
, Mr. Hogue presented employment records and a portion of his deposition in which he discussed his job duties and exposure to asbestos. He also included the affidavit of Dr. Victor Roggli, a board-certified pathologist who had reviewed the medical records and Mr. Hogue's deposition. Dr. Roggli concluded that Mr. Hogue suffers from malignant pleural mesothelioma, well-differentiated papillary epithelial variant, caused by exposure to asbestos. He stated that mesothelioma caused by occupational asbestos exposure is a disease that typically requires twenty years between the first exposure and its appearance upon diagnosis, that each exposure is cumulative in its effect, and that there is no known safe level of exposure to asbestos with respect to the development of mesothelioma. According to Dr. Roggli, Mr. Hogue's exposures through the 1950s, 1960s, and 1970s satisfy the requirements to relate these asbestos exposures to his diagnosis of mesothelioma.
The district court ruled in favor of the employer defendants, holding that the date of disability determines an employee's right to workers' compensation benefits and that, because Mr. Hogue became disabled in 1998, when he was diagnosed and by which time mesothelioma was a covered occupational disease, he was precluded from all tort actions for injuries compensable under the workers' compensation law.
The court of appeal amended the judgment to dismiss only Mr. Hogue's negligence tort claims because the intentional tort claims are not barred by the workers' compensation law, and, as so amended, affirmed summary judgment in favor of the employer defendants. Austin v. Abney Mills, Inc., 34,495 (La. App. 1 Cir. 4/4/01), 785 So.2d 177. Although the court of appeal found that the employer defendants were entitled to summary judgment, it did so on grounds different from those articulated by the district court, and implicitly rejected the reasoning asserted by the employer defendants and adopted by the district court.
The court of appeal framed the question presented by the defendants' motion as "whether or not Hogue's cause of action in tort 'vested' prior to the inclusion of mesothelioma in the workers' compensation law in 1975." Austin v. Abney Mills, Inc., 34,495, p. 5, 785 So.2d at 181. The court of appeal acknowledged that "the general principle is that statutes enacted after the acquisition of a vested property right cannot be applied retroactively so as to divest the plaintiff of his cause of action without violating due process guarantees." Id., citing Cole. Nonetheless, the court of appeal refused to apply the tortious exposure theory set forth in Cole to determine whether Mr. Hogue's cause of action in tort had vested before the 1975 change in the workers' compensation law. The court reasoned that "exposure," as commonly understood in the context of disease, does not include the concept of damages, and without damages Mr. Hogue had no cause of action prior to 1975. The court of appeal declined to determine whether it is the manifestation theory or the contraction theory that must be applied to these facts; instead, it found that Mr. Hogue had failed to raise a material issue of fact under either theory. The court found that the medical report introduced by the employer defendants, which indicated that Mr. Hogue was experiencing symptoms of the disease in July 1998, was sufficient to point out the absence of factual support for a claim that Mr. Hogue contracted the disease prior to 1975. The court noted that, under the manifestation theory, Mr. Hogue had presented no factual support that his cause of action had vested prior to 1975, because he had failed to present evidence refuting the fact that the mesothelioma was not diagnosed or man
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