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Adams v. Asbestos Corp. Ltd.10/28/2005
In addition to the affidavit, Eaton offered Dr. Ensley's curriculum vitae and a copy of House Bill 1098, which enacted the original version of La. R.S. 23:1031.1 of 1952, La. Acts 532, to provide workers' compensation coverage for occupational diseases. Eaton also included a statement of undisputed fact providing that asbestos is an oxygen compound and a metal compound, other than lead.
In opposition to Eaton's motion, the plaintiffs offered the affidavit of Dr. Rene' A. De Hon, a professor with doctorates in geology and geochemistry. Dr. De Hon disagreed with the assertion that asbestos is an oxygen compound or metal compound. He noted that La. R.S. 23:1031.1 does not refer to asbestos by name. He also noted that while the statute refers to "oxygen, nitrogen, carbon, and their compounds" and "metals and their compounds," it does not refer to compounds containing these elements or compounds containing metal. Thus, the gist of his opinion was that while asbestos contains oxygen and metals, it is neither an oxygen compound nor a metal compound. He described asbestos as a silicate mineral and described minerals as "naturally occurring, inorganic crystalline, compounds." He explained that minerals are classified according to their chemical composition and the crystalline structure of their constituent atoms. He further explained that asbestos is a silicate mineral and is considered a silicate compound. He described the chemical composition of silicate minerals as alkali ions and metal ions bound to a silicate complex ion consisting of "Si atoms bound to 4 oxygen ions to form a tetrahedron." According to Dr. De Hon, the unique physical properties inherent in the chain structure of asbestos make it distinct from elemental or molecular oxygen and elemental metals or ions. Moreover, it is the physical properties of asbestos, rather than its composition, that make it a health risk. He concluded that although silicate minerals contain oxygen and one or more metal ions, they are not considered as "primarily" metal compounds or oxygen compounds "in the sense that one does not normally think of asbestos or any other silicate mineral when reference is made to 'oxygen and its compounds' or 'metals and their compounds'." Plaintiffs also offered a copy of Dr. De Hon's curriculum vitae.
At the hearing on the motion for summary judgment, Eaton objected to Dr. De Hon's affidavit on the grounds of relevance arguing that as a geologist he was not qualified to discuss chemical compounds. The trial court ordered the affidavit admitted, noting that he would give it the "proper consideration." The trial court ultimately granted Eaton's motion for summary judgment dismissing the wrongful death and survival actions of the plaintiffs. In the reasons for judgment, the trial court concluded that asbestos is included in the 1952 version of La. R.S. 23:1031.1 as both an oxygen and a metal compound. The reasons for judgment state:
In accordance with the affidavit of Dr. Harry E. Ensley, asbestos is an oxygen compound and a metal compound. The plaintiffs' expert, Dr. Rene' De Hon, is not an expert in chemistry and therefore cannot provide expert testimony as to chemical compounds. Accordingly, from a review of the record, it is undisputed that while asbestos is a mineral, it is an oxygen and metal compound.
Plaintiffs now appeal the trial court's judgment arguing that the trial court erred in its interpretation of the applicable statute and in refusing to consider Dr. De Hon's expert testimony regarding the chemical composition and properties of asbestos.
DISCUSSION
Summary judgments are subject to de novo review on appeal. Campbell v. Hospital Service District No. 1 Caldw
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