ROLAND L. BELSOME, Judge.
Plaintiffs-Appellees Peter Becker, Jr., Joseph Barcia, Marvin Baudean, Salvador DiCarlo, Ronald Gilmore and Roy Phillips
Murphy subsequently filed a Motion for New Trial for Judicial Interest Calculation, which the trial court granted on July 22, 2010.
The trial court articulated its factual findings with respect to each plaintiff;
A seventy-year-old man, Mr. Barcia worked at Murphy for twenty-five years, from 1961 until he retired in 1986 at fifty-six years of age. The trial court found that Mr. Barcia was exposed to loud noise as a laboratory assistant and operator for twenty-one years and as a foreman for the last four years. Mr. Barcia worked in the CAT unit and boilers; he did not wear hearing protection, nor did Mr. Barcia observe anyone else wearing hearing protection. The trial court also recognized that Mr. Barcia saw no signs or materials requiring hearing protection; nor was he told to wear them, nor was hearing protection discussed. Likewise, as a foreman, he was never required to tell his workers that hearing protection was mandatory. The trial court noted that Mr. Barcia first saw earplugs in 1985.
Mr. Barcia did not notice his hearing loss. Although he wore a hearing aid from 1986 until 2005, he did not suspect his work at Murphy to have caused the need for a hearing aid. Prior to working for Murphy, Mr. Barcia fired a rifle approximately six times while in boot camp for the Air Force, and fired a shotgun once while hunting. He also joined the National Guard for six years, where he worked as a butcher. Mr. Barcia subsequently worked for Flintkote as an inspector, but the trial court acknowledged that there was not much noise exposure at Flintkote.
Dr. Moises Arriaga, an expert in neuro-otology, conducted a physical examination of each plaintiff, which included taking the medical history and an audiogram
The trial court recognized that Dr. Arriaga diagnosed Mr. Barcia with mild to severe bilateral sensorineural
A seventy-three year old man, Mr. Baudean worked at Murphy for thirty-one years as a welder, from 1967 until his retirement in 1998 at sixty-one years of age. The trial court determined that Mr. Baudean was never advised to wear hearing protection, but wore earplugs in the late 1980s on his own because of the high noise levels. Mr. Baudean had hearing tests in the 1970s and on approximately
Mr. Baudean was in the Marine Corps for two years, and fired a rifle on one trip to a rifle range during basic training. After discharge from the Marines, he worked for American Marine as a welder for four to five years, and also performed temporary work as a pipefitter; however, Mr. Baudean indicated that neither of the premises was particularly noisy.
Dr. Arriaga diagnosed Mr. Baudean with mild to moderately severe bilateral sensorineural high frequency hearing loss, and found that Murphy was the most significant contributing factor. In 1994, an audiogram showed normal hearing at low frequencies, but high frequency hearing loss with a "notch" in both ears. Dr. Arriaga noted that Mr. Baudean reported "a temporary noise shift, being the feeling of ears clogged and ringing for a duration to bruise the inner ear." Dr. Arriaga did not consider age to be a contributing factor because of the progression of the hearing loss; likewise, he did not consider a chemotherapy regime that began in 1999 to have contributed to his hearing loss because it was after his retirement in 1998.
Mr. Becker worked at Murphy for thirty-five years, from 1961 until his retirement in 1996. Mr. Becker generally worked in operations, and occasionally in the boiler house and CAT. The trial court acknowledged Mr. Becker's testimony that both the boiler house and the CAT were extremely noisy. Mr. Becker wore no hearing protection, nor did his co-worker, Bill Turnage, who ultimately became the safety director. No signs were posted which advised wearing hearing protection, nor was he ever advised to do so. Likewise, during the four years preceding his retirement, there were discussions regarding hearing protection.
In 1972, Mr. Becker was advised he was suffering hearing loss; however, he did not relate it to Murphy, but instead he related it to growing older. He was tested for the
Dr. Arriaga diagnosed Mr. Becker with bilateral sensorineural high frequency hearing loss, which he determined was more likely than not caused by occupational noise exposure at Murphy.
A seventy-six year old man, Mr. DiCarlo worked at Murphy for thirty-two years, with fifteen years in operations and seventeen years as an insulator, followed by work in maintenance until he retired in 1993 at the age of fifty-nine. Mr. DiCarlo recalled that Murphy provided earplugs in 1974, based upon what he was told at the time. Mr. DiCarlo did not receive instructions with regard to the use of earplugs, nor did he recall seeing signs indicating high noise areas or suggesting that noise protection should be used.
Mr. DiCarlo testified that he "already noticed a hearing loss" in 1974, stating "Yes, yes, I couldn't help but lose my hearing with all that noise around there.
Dr. Arriaga diagnosed Mr. DiCarlo with severe bilateral sensorineural high frequency hearing loss and concluded that his work at Murphy was the most significant contributing factor;
A sixty-eight year old man, Mr. Phillips worked for Murphy from 1974 until his retirement in 2003, as an operator and pipefitter. The trial court found that in 1974, his hearing was tested and "hearing good" was indicated in the results. Hearing protection was not discussed or recommended, nor were signs posted indicating high noise areas. The court noted that Mr. Phillips was not provided with earplugs until 1990, and hearing protection was not required until 2000; he wore earmuffs shortly before retiring. Mr. Phillips attended safety meetings, but none with regard to hearing protection. The results of his audiograms during his employment were not discussed with him.
Dr. Arriaga diagnosed Mr. Phillips with severely impaired sensorineural hearing
The trial court acknowledged Murphy's argument that the Plaintiffs were aware that they were exposed to loud noise at the refinery and thus had knowledge of their injury for more than one year before filing suit. The court noted, however, that hearing loss is "gradual and insidious"
Additionally, the court recognized that hearing loss, an occupational disease caused by exposure to loud noise in the workplace over many years, is a long latency disease, citing Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 506 U.S. 153, 163, 113 S.Ct. 692, 698, 121 L.Ed.2d 619 (1993), and Cole v. Celotex Corp., 599 So.2d 1058 (La.1992). The court referenced the work history of the Plaintiffs, acknowledging that most worked at Murphy for over twenty-five years, and some over thirty years, and that each Plaintiff came to work there as a young man and left only after retirement. The court found that the evidence did not demonstrate that the Plaintiffs "had any particular skills, expertise, experience or intellect to discern the cause and relationship of their hearing loss with their employment, nor to segregate and evaluate the contribution of the myriad of potential causes of hearing loss."
The trial court further noted that although the Occupational Health and Safety Act ("OSHA") mandated hearing protection and conservation programs in 1971, by 1974, "the only face of hearing plugs was their reputed availability in the nurse[s'] station" and that "[o]thers date ear plug availability in mid-to-late 1980's, a decade after they were required by amendments to OSHA regulations." Likewise, with regard to hearing tests or audiograms, the trial court found that such tests were "sporadic" and that employees were typically not informed of the results of such testing; when employees were informed of the results, "the potential cause or precautions were never articulated to include noise exposure at the workplace, which was carefully and conspicuously omitted." Although Murphy argued that hearing loss cannot be attributed to workplace noise exposure without audiograms, the court noted that "OSHA is abundantly clear in that Murphy bears the responsibility for having those audiograms done on their employees."
Accordingly, the court found that the doctrine of contra non valentem applied, refusing to allow Murphy to "close the courthouse door to Plaintiffs ... because they knew or should have known the cause of their hearing loss was the exposure to occupational noise during their work lifetime."
Finally, with regard to Murphy's argument that Mr. DiCarlo's testimony established his knowledge of his hearing loss as early as 1974, the court noted that the evidence at trial demonstrated that Mr. DiCarlo was assessed with "good hearing" on several occasions later than 1974, and that a single utterance should not be cause to reject his claim on prescription grounds, "particularly when at odds with the remaining evidence."
The trial court summarized the evidence presented at trial with respect to the Plaintiffs' noise exposure at Murphy. The court noted that Murphy began conducting the noise level surveys in 1980, which the Plaintiffs' expert acoustical engineer reviewed and concluded that the noise levels reflected in the surveys were unsafe. In 1981, Murphy identified four areas of the refinery as major noise sources but declined to take action for economic reasons. The trial court noted that in 1983, 1984, and 1988, the highest sound levels exceeded 100 decibels and that noise levels exceeded 85 dBA
Next, the court acknowledged the disagreement between Murphy's expert and the Plaintiffs' expert with regard to the average daily noise exposure during Plaintiffs' employment with Murphy, noting that Murphy's expert relied upon post-1988 sound surveys and his experience in other refineries. The court reiterated OSHA's mandate that Murphy conduct noise surveys, finding that "[t]he sound surveys compiled prior to 1988 by Murphy as part of their hearing program cannot simply be rejected by their author, discarded and replaced with time-decades removed dosimetry substituted through surmise, even from Murphy's retained expert."
The trial court rejected Murphy's argument that Plaintiffs failed to establish a requisite "dose" noise level, as well as Murphy's attempt to analogize the facts to cases involving toxic exposure to mold, ethylene oxide, and asbestos, finding that "[w]hile sounds or loud noises are capable of measurement, they are varying and fugitive, and not substances akin to those in the cases relied upon by [Murphy] and, consequently, are not controlling as precedent." Similarly, the court also rejected Murphy's argument that noise exposures below federally regulated levels failed to show a breach of duty and thus no negligence, citing Broussard, supra, wherein a railroad employee brought a hearing loss claim against his employer "without reference to the federal standard of noise exposure or [] proving the precise level of decibel noise in the workplace."
The basis for rejecting Murphy's claim was the court's determination that 1) OSHA regulations do not operate as a foundation for tort-based negligence from hearing loss resulting from long term occupational noise exposure; and 2) "sources within scientific organizations concerned with hearing loss from occupational exposure to loud noises have long recommended an eight-hour work day limit be lowered to 85 dBA,"
The court concluded that, contrary to Murphy's assertions, the cases of Joy Mining Machinery v. Workers' Compensation Appeal Board, 805 A.2d 1279 (Penn.2002) and McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983) did not stand for the proposition that noise exposures at or below 90 dBA were "safe"; nor were the cases analogous, as both involved workers' compensation actions for benefits under the respective workers' compensation laws, and were thus inapplicable for tort based premises liability or negligence actions. Additionally, the court noted that the workers' compensation laws in Joy Mining and McCuiston did not establish a sound level for entitlement to benefits, but allowed an employer to raise the affirmative defense that noise levels did not exceed 90 dBA on an eight-hour time weighted average. Lastly, the trial court acknowledged that in this case, many employees worked much longer than eight-hour days, often times working as many as twelve hours or more in overtime or during turnarounds; thus, the level of noise exposure to an employee increased accordingly.
Turning to the issue of liability, the court found that the Plaintiffs had established causation for their hearing loss claims against Murphy. The court first noted that "upon 1989 amendment to our Work[ers'] Compensation Act, only permanent hearing loss solely due to a single traumatic accident is compensable as a permanent total disability." Thus, the trial court determined that an employee may bring a tort claim against his employer for gradual hearing loss due to occupational noise exposure because such an injury is not compensable under the LWCA.
Next, pursuant to a duty-risk analysis, the trial court concluded that Murphy was negligent by failing to provide the Plaintiff employees a safe place to work and failing to take precautions to avoid noise exposure. Citing 29 C.F.R. § 1910.95, the court noted that OSHA mandates hearing conservation programs beginning at noise exposure of 85 dBA. Additionally, the court acknowledged that this "action level" by OSHA requires monitoring by the employer; that the employer establish and maintain an audiometric testing program with baseline audiograms within six months after an exposure to above 85 dBA; an evaluation of the audiogram; and follow-up procedures, including referral to a clinical audiological examination or ontological examination, advisement of threshold shifts, a requirement to provide hearing protectors in all areas of noise above 85 dBA, and a requirement to provide a training program for each employee exposed above 85 dBA. The training program would instruct the employee with regard to the use and selection of hearing protection.
The court also reiterated the Plaintiffs' testimony that availability of ear plugs was only "on a come and get them if you want them" basis and that signs requiring the use of hearing protection was "intermittent, if at all, in some of the designated high noise areas." The court further found that the use of audiograms was "sporadic" and remarked that "never was a baseline audiogram done timely, if at all." The court also found it noteworthy
Additionally, the trial court made the following findings with regard to Murphy's actions (emphasis supplied by trial court):
In this case, the Plaintiffs stipulated to limit each of the general and special damages to not more than $50,000.00, exclusive of interest and costs. Both parties provided calculations of special or future medical expense losses:
Plaintiffs' Murphy's
Name Calculations Calculations
Mr. Barcia $17,947.00 $ 9,216.33
Mr. Baudean $25,013.00 $13,223.98
Mr. Becker $17,947.00 $ 9,312.75
(canal implant)
Mr. DiCarlo $24,747.00 $ 2,469.33
Mr. Phillips $18,101.00 $ 9,413.01
The trial court noted that the major difference between the Plaintiffs' calculations and Murphy's calculations was the use of the discount rate, with Plaintiffs using Treasury bills and Murphy using a different index. The court concluded that the use obligations of United States Treasury bills to index future cost was the appropriate and proper measure of future costs. Finally, the court found that
Similarly, with regard to Plaintiffs Baudean and Becker, the trial court found that an "equally meager award of thirty-five thousand ($35,000.00) [dollars] for general damages added to the special or future medical expenses would exceed the stipulated or jurisdictional amount of fifty thousand ($50,000.00) dollars." Accordingly, the trial court awarded each Plaintiff $50,000.00.
Factual determinations are subject to the manifestly erroneous or clearly wrong standard of review. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, the issue to be determined by this Court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. "Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony." Id. (citing Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978)).
Accordingly, if the trial court's findings are reasonable considering the record in its entirety, "`the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.'" Id. at 883 (citing Housley v. Cerise, 579 So.2d 973 (La.1991)(quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990))). This standard of review "is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts." Id. (quoting Canter v. Koehring Co., 283 So.2d 716 (La.1973)).
In its first two assignments of error, Murphy argues that the trial court erred in excluding evidence of noise exposure at other refineries and in finding that the Plaintiffs' noise exposure at Murphy was the cause of the plaintiffs' hearing loss.
It is well-settled in Louisiana jurisprudence that an appellate court reviews a trial court's determinations with regard to the exclusion of expert evidence or testimony under the abuse of discretion standard. Versluis v. Gulf Coast Transit Co., 2008-0729, p. 6 (La.App. 4 Cir. 7/29/09), 17 So.3d 459, 463.
In rejecting Murphy's attempt to have its expert, Dr. Dennis Driscoll, testify with regard to noise exposure at the Tenneco refinery, the court stated:
As the trial court acknowledged, the documentation from the Tenneco refinery resulted from sound readings at an entirely different refinery and was thus
With regard to causation, Murphy argues that the trial court erred in finding that Murphy caused the Plaintiffs' hearing loss because there was insufficient evidence to show that Plaintiffs' average daily exposure equaled or exceeded 90 dBA. Murphy further argues that there was insufficient evidence to show that average daily exposure above 85 dBA, but below 90 dBA, could have caused Plaintiffs' hearing loss.
The measurement of an employee's exposure to noise is accomplished through either a dosimeter reading, where an employee wears a microphone throughout a typical workday, or a sound level meter, where microphones are placed at the typical proximity of an employee to noise-producing equipment and machinery. As noted by the trial court, it was Murphy's responsibility as early as 1971 to perform noise readings and retain records of same, pursuant to OSHA regulations. See 29 C.F.R. § 1910.95. However, as Plaintiffs emphasize, Murphy failed to maintain such records; furthermore, a violation of OSHA is not necessary to establish liability on the part of Murphy, as OSHA does not provide
Plaintiffs emphasize several crucial pieces of evidence that were presented to the court at trial; notably, the sound survey evidence presented at trial was produced by Murphy. Plaintiffs first reference a 1989 inter-office memorandum which discusses the results of sounds surveys conducted by USF & G "which produced results ranging from 83.7 dBA to 87.2 dBA over an eight-hour time weighted average." The memorandum further read:
The document stated that Mr. Turnage, the safety director, indicated that "there were plans to survey most of the jobs in the areas considered to pose the greatest exposure risk." Plaintiffs submit that pursuant to that language, the surveys that revealed 80.1 to 89.6 dBA were not from the noisiest areas of the Murphy refinery.
Plaintiffs also reference a memorandum dated January 22, 1990, regarding dosimeter readings reported by USF & G. The memorandum acknowledges that "Meraux's latest noise dosimeter testing resulted in readings for many employees
Additionally, Plaintiffs cite a 1988 report from USF & G dated December 20, 1988, discussing the results of a dosimetry survey. The Loss Control Report stated that "all employees were at or above the hearing conservation action level established by OSHA.
Next, Plaintiffs refer to a sound study dated September 22, 1988 which evidenced high readings of 106 decibels in the refinery and, significantly, up to 88 decibels in the break area. The "loss control report" read in part:
Plaintiffs also point to a noise survey conducted on October 5, 1983, which demonstrated that noise levels from equipment were measured at up to 134 dBA, and as high as 92 dBA in areas without equipment in close proximity. Similarly, an inter-office
Plaintiffs further submit that by as late as the year 2000, dosimeter readings evidence that employees who were operators (four of the Plaintiffs were operators) were exposed to noise levels over 90 decibels on a time-weighted average. An appendix to "Industrial Hygiene Evaluation" dated January 13 & 14, 2000,
In addition to this evidence, Plaintiffs also introduced evidence that dosimetry readings were often projected for an eight-hour work day; however, as the trial court acknowledged in its reasons for judgment, Plaintiffs often worked overtime several days per week. Plaintiffs also presented evidence that large pieces of noise-producing equipment, positioned together, would necessarily result in noise levels higher than the measurement reported on a sound survey. Robert Bruce, accepted by the court as an expert in acoustical engineering in the oil industry, testified:
Mr. Bruce also testified the sound level readings were generally taken after Murphy had initiated noise abatement; therefore, in his opinion, noise levels during the
Plaintiffs also submitted evidence from Dr. Moises Arriaga, who, as previously noted herein, personally examined each Plaintiff, reviewed each Plaintiffs deposition testimony, and reviewed both sound survey and noise exposure documents in making his determinations. Considering all of the evidence, Dr. Arriaga testified that he attributed each Plaintiffs hearing loss to noise exposure while working at Murphy, finding that any alternate contributors were insignificant. Specifically, Dr. Arriaga diagnosed Plaintiffs with significant sensorineural high frequency hearing loss, noting Plaintiffs' reference to ringing in the ears, which Dr. Arriaga referred to as "temporary threshold shifts," which would ultimately result in a "permanent threshold shift."
Plaintiffs also presented testimony from Dr. Ross Roeser, an expert in audiology, who, like Dr. Arriaga, examined each Plaintiff, reviewed depositions, noise exposure documents, and sound surveys. Dr. Roeser similarly found that Plaintiffs suffered bilateral sensorineural hearing loss caused by occupational noise exposure at Murphy, and that any alternate causes of the hearing loss were insignificant.
Dr. Roeser also testified with regard to the differences between sudden and gradual hearing loss, noting that, of the two types, "if it's sudden, it's exposure to a single event, such as a gunshot. That is called traumatic hearing loss or traumatic noise-induced hearing loss." Dr. Roeser confirmed that each of the Plaintiffs in this case plainly suffered from gradual hearing loss. Because the loss is gradual, Dr. Roeser testified with regard to such hearing loss going undetected for long periods of time:
Plaintiffs also set forth evidence of causation in the form of various expert literature. For example, Plaintiffs introduced a 1972 document entitled "Occupational Exposure to Noise" from the National Institute for Occupational Safety and Health ("NIOSH") which indicated that an eight-hour workday limit with regard to noise exposure should be 85 dBA.
Additionally, as the trial court recounted in its reasons for judgment, Murphy failed to promptly comply with OSHA regulations of the Hearing Conservation Amendment of 1971, and, according to Murphy's witness, Murphy failed to establish a "Safety Practices Hearing Protection Program" until 1986 or 1987. An expert industrial hygienist, Vernon Rose, testified with regard to Murphy's failure to adequately implement a hearing conservation program over the years:
It is well-settled in Louisiana that "[a] trial court may accept or reject in whole or in part the opinion expressed by an expert." Lanasa v. Harrison, 2002-0026, 2002-0027, p. 4 (La.App. 4 Cir. 8/7/02), 828 So.2d 602, 605, writ denied, 2002-2512 (La.11/27/02), 831 So.2d 286. The effect and weight to be given to expert testimony is within the broad discretion of the trial court. Id. Here, not only the record but also the trial court's reasons for judgment demonstrate that the trial court
We find that whether the trial court employed the language "very probably over 90 dBA" or "more likely than not. Plaintiffs' daily average noise exposures exceeded 90 dBA" to be a distinction without a difference. The trial court's reasons plainly articulated a finding that it was more likely than not that the occupational noise exposure at Murphy caused the Plaintiffs' hearing loss. This argument lacks merit.
In its third assignment of error, Murphy argues that claims alleging pre-July 1, 1983 exposure are barred. Because Joseph Barcia alleged that he was exposed to harmful levels of noise during his employment with Murphy, and Murphy employed Mr. Barcia from 1961 through 1986, Murphy argues that the pre-1986 version of the Louisiana Workers' Compensation Act ("LWCA") governs Mr. Barcia's claims.
Plaintiffs assert that gradual hearing loss plainly does not fall within the definition of "accident" in any version of the LWCA; even before 1989, an accident was defined as "an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury."
Murphy also argues that under the pre-July 1, 1983 version of La. R.S. 23:1221(4)(p), occupational hearing loss was compensable under the LWCA, regardless of the cause of the injury. In support of this argument, Murphy cites the previous version of the statute, which Murphy refers to as a "catch-all" provision:
La. R.S. 23:1221(4)(p)(1982).
Murphy acknowledges that the subsection was changed in 1985 to allow compensation for permanent hearing loss caused only by a single traumatic accident:
La. R.S. 23:1221(4)(p)(2010)(emphasis added).
Murphy relies upon several cases, none of which involve hearing loss, to support the theory that previous versions of the LWCA covered gradual hearing loss due to occupational noise exposure: Ferguson v. HDE, Inc., 270 So.2d 867 (La.1973)
Murphy's reliance on Chatelain v. American Can Co., 344 So.2d 1180 (La. App. 4th Cir. 1977) is misplaced. The employee in Chatelain brought suit seeking workers' compensation benefits and total disability, arguing that his partial hearing loss was caused by his employer. The court ultimately held that the employee did not demonstrate that it was more likely than not that an "industrial accident" occurred; nor did the employee prove that it was causally related to his disability.
Murphy concedes that Comoletti v. Ideal Cement Co., 147 So.2d 711 (La.App. 1st Cir.1962) held that under the pre-1983
Murphy cites no case wherein an employee was granted workers' compensation benefits for gradual hearing loss due to occupational noise exposure, nor does Murphy cite a case which holds that gradual hearing loss is a compensable "accident" under the LWCA. Considering the foregoing, we conclude that gradual hearing loss resulting from occupational noise exposure over a period of many years simply cannot meet the definition of an "accident" under any version of the LWCA. Likewise, the trial court did not err in finding that Mr. Barcia's claims are not a basis for recovery under the LWCA as an occupational disease.
In its final assignment of error, Murphy argues that the claims asserted by Mr. DiCarlo, Mr. Baudean, and Mr. Becker have prescribed, and that the trial court erred in determining that contra non valentem applied.
Delictual actions are subject to a liberative prescription period of one year from the date of injury or damage. La. Civ.Code art. 3492. If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to demonstrate that the action has not prescribed. Campo v. Correa, 2001-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508.
The "ancient civilian doctrine" of contra non valentem agere nulla currit praescriptio "has been recognized from Louisiana's earliest jurisprudence." Corsey v. State, Through Dept. of Corr., 375 So.2d 1319, 1321 (La.1979). The doctrine "prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff." Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La.1993).
In support of the argument that the claims of Mr. DiCarlo, Mr. Baudean, and Mr. Becker have prescribed, Murphy relies in part on Marin v. Exxon Mobil Corp., 2009-2368, 2009-2371 (La.10/19/10), 48 So.3d 234. Marin involved an allegation of oilfield contamination of sugarcane fields, and the plaintiffs filed suit against Exxon for remediation of the soil and groundwater, in addition to other damages.
Murphy cites language from Marin where the Court states that "prescription runs from the date on which [a plaintiff] first suffered actual and appreciable damage,. . . even though he may thereafter come to a more precise realization of the damages he has already incurred or incur further damage as a result of the completed tortious act." Marin, p. 14, 48 So.3d at 246 (quoting Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992)).
We find Marin inapplicable for Murphy's proposition that contra non valentem was wrongly determined by the trial court in this case. First, when using the term "appreciable damage," the Marin Court quoted at length from Eastin v. Entergy Corp. to expressly distinguish the facts of the case from long-latency cases:
Marin, 48 So.3d at 270, n. 14 (quoting Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So.2d 49, 55, n. 4).
Similarly, like the trial court, we find that Murphy's reliance upon Sellers v. Lykes Brothers Steamship Co., Inc., 94-1107 (La.App. 4 Cir. 12/28/94), 648 So.2d 496, is misplaced. Although the Sellers court found that the plaintiff-employee's suit under the Jones Act had prescribed, the employee in Sellers alleged that he did not learn of his hearing loss until over twenty years after leaving his employment. Sellers, 94-1107, p. 4, 648 So.2d at 497. Accordingly, Sellers is inapplicable to the facts of this case.
With regard to specific Plaintiffs, Murphy cites the aforementioned remark by Mr. DiCarlo that "[b]y [1974], I had lost my hearing" for the proposition that Mr. DiCarlo was not only aware of the hearing loss damage but also the source of the damage; therefore, Murphy argues, Mr. DiCarlo's claims have prescribed. It is apparent from the record that Mr. DiCarlo, who was 76 years old at the time of trial, had difficulty recalling events and facts from over four decades ago. Additionally, Plaintiffs introduced into evidence audiograms of Mr. DiCarlo from 1974, 1976, 1981, and 1982 which documented that Mr. DiCarlo stated he felt his hearing was "good."
Finally, Murphy argues that a 1997 audiogram from the Universal Health Occupational Health Clinic, purportedly signed by Mr. Baudean, established that Mr. Baudean had knowledge of an actual and appreciable injury more than one year before suit was filed. Similarly, Murphy argues that a "Notice of Hearing Shift" purportedly signed by Mr. Becker in 1987 demonstrated that Mr. Becker had knowledge that his hearing had worsened.
Mr. Baudean testified at trial that he had never seen the 1997 audiogram from Universal Health Occupational Health Clinic; likewise, Mr. Becker testified that he did not recall seeing the "Notice of Hearing Shift" document. Neither the 1997 audiogram nor the 1987 "Notice of Hearing Shift" mentions permanent hearing loss. Nevertheless, Murphy maintains that both Mr. Baudean and Mr. Becker read the documents and are presumed to have understood them. However, Murphy relies upon a case involving contract law for this proposition.
Furthermore, Mr. Baudean and Mr. Becker are not experts and could not diagnose the disease. See Cole v. Celotex, 620 So.2d 1154 (La.1993);
As the trial court acknowledged, Plaintiffs were not trained by Murphy regarding OSHA or the use of earplugs, nor were they advised that the refinery noise could lead to permanent hearing loss. Mr. Phillips,
We find the jurisprudence with regard to occupational exposure to asbestos instructive in this case. Like asbestos exposure, it is incredibly difficult to determine precisely at what point a cause of action accrues with occupational noise exposure.
Austin v. Abney Mills, Inc., 2001-1598, p. 25 (La.9/4/02), 824 So.2d 1137, 1153-54 (quoting Cole, 599 So.2d at 1065)(internal citations omitted)(emphasis added). The Court further recognized that "it is impossible practically to determine the point at which the fibers actually imbed themselves in the victim's lungs. . . ." Austin, 2001-1598, p. 25, 824 So.2d at 1154.
Considering the totality of the circumstances, we find no error on the part of the trial court in its determination that the claims of Mr. DiCarlo, Mr. Baudean, and Mr. Becker had not prescribed. This assignment of error lacks merit.
For the foregoing reasons, the trial court's judgment is affirmed.
TOBIAS, J., concurs in part, dissents in part, and assigns reasons.
TOBIAS, J., concurs in part, dissents in part, and assigns reasons.
As the Louisiana Supreme Court has said and the Louisiana Courts of Appeal have reiterated many times:
See, Stobart v. State, Dept. of Transportation & Development, 617 So.2d 880, 882 (La.1993) (internal citations and quotation marks omitted). With the foregoing in
Murphy Oil USA, Inc. (a/k/a and f/k/a Murphy Oil Corporation) ("Murphy") contends that the plaintiffs failed to prove that their exposure to noise was "dose sufficient" to cause long-term hearing loss versus gradual hearing loss due to the passage of time and the aging process.
The plaintiffs' expert, Dr. Moises Arriaga, relied on a sound level meter that registers a single reading of a noise area at one particular point in time, thus merely shedding light on the sound intensity at that moment, but failing to measure duration of exposure. He opined that the plaintiffs were exposed to sufficient noise on a time weighted average (over an eight-hour day workweek for years) to cause a gradual hearing loss over time. He further relied upon the reporting of two witnesses that stated they had experienced temporary threshold shift (i.e., at the end of a work shift they experienced a ringing in their ears and a sense of decreased hearing loss) to substantiate noise exposure significant to cause a hearing loss. This evidence is, in my opinion, weak because it does not take into account each plaintiffs location in the Murphy facility. While the two witnesses did testify to experiencing temporary threshold shift, they failed to testify as to the frequency of experiencing the effect. Arguably this could negate or minimalize the strength of plaintiffs' expert's opinion. Contrariwise, Murphy's monitoring of 29 of its employees using a dosimeter found but one instance of exposure to 90 dBA on a time weighted average.
Although the trial court opined that Murphy failed to provide an alternative cause for the plaintiffs' hearing loss, such was not Murphy's burden. It was incumbent upon the plaintiffs to establish that the noise exposure at the Murphy facility more likely than not caused each plaintiff's hearing loss; that is, it was not Murphy's burden to prove that something other than noise at their facility caused the hearing loss. Actually, the record per se reflects another theory of the plaintiffs' hearing loss at the time suit was filed, to-wit, age of the plaintiffs and their mere continuing to remain alive.
Murphy asserts that the trial judge is wrong to emphasize long-term exposure to noise to substantiate his findings; the length of time of exposure would be irrelevant if the level ("dose") of exposure over time was insufficient to cause a loss of hearing. Such brings one back to the ultimate question of whether or not exposure
Thus the trial court had to choose between two conflicting opinions of experts. On the one hand, plaintiffs' expert relies on sound level measurements to postulate that the time weighted average of noise that the plaintiffs were regularly exposed to as at or exceeded 90 dBA. On the other hand, Murphy's expert, relying on dosimeter readings, says the opposite and that anything less than 90 dBA would not have caused the hearing loss of which the plaintiffs complain. It is within the discretion of the trial judge to accept one expert's opinion over that of another expert. And as the Court said in Stobart, although an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony and the reviewing court must always keep in mind that if the trial court findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
I do not find that the trial court's refusal to admit evidence of similar noise exposure at Tenneco Oil's facility is error. Murphy sought to introduce the evidence to corroborate its expert's opinion that dosimeter (versus sound level meter) readings on a time weighed average show that the noise exposure of the plaintiffs could not have caused their hearing loss. Although the sound-causing machinery at Tenneco Oil may have been similar, we lack evidence of where and how the machinery was situated and the proximity of machines to each other. That is, the evidence sounds in speculation.
The prescription issue and whether the doctrine of contra non valentem agere nulla currit praescriptio
The following excerpts are taken from Mr. DiCarlo's testimony:
As the trial court noted in its reasons for judgment and the record reflects, Mr. Di-Carlo stated: "Yes, yes, I couldn't help but lose my hearing with all that noise around there. Especially when I worked around the boilers." (Mr. DiCarlo ended his employment with Murphy in 1993; therefore, any hearing-damaging noise that he experienced occurred more than one year prior to his filing suit.) Although the trial court tries to minimize Mr. DiCarlo's testimony about his knowledge of noise at Murphy actually causing his hearing loss to reach its conclusion, unlike the remaining plaintiffs for whom an award is made, I find that his testimony when read as a whole and as noted more specifically above is (a) sufficiently unambiguous and (b) establishes that a reasonable person would have inquired further to ascertain whether the noise at Murphy was causing a hearing loss. Therefore, I do not find that Mr. DiCarlo can claim the benefits of the fourth category of contra non valentem, and his claim is thus prescribed.
In sum, I respectfully concur in the majority's decision to affirm the judgment in favor of Messrs. Barcia, Baudean, Becker, and Phillips for I find that the trial court's decision is neither manifestly erroneous nor clearly wrong as to them. I respectfully dissent from the majority's affirmation of the judgment in favor of Mr. DiCarlo.
Dr. Roeser further testified, that a person's auditory system responds to frequencies between 20 and 20,000 hertz, or cycles per second; frequencies typically tested in routine audiometry are between 125 to 8,000 hertz. Speech, for example, is generally considered to be in the three to 3,000 hertz range. Dr. Roeser further testified regarding the typical characteristics of noise-induced hearing loss, including an explanation of the term "notch":
Dr. Arriaga further testified that diabetes "falls into the same category" as smoking, and he did not consider it to be a "significant contributor" to permanent hearing loss.
Broussard, 29,769, p. 3, 700 So.2d at 545 (emphasis supplied by trial court).
Dr. Roeser testified with regard to Mr. Baudean:
Dr. Roeser testified with regard to his opinion regarding Mr. Becker:
Dr. Roeser testified similarly with regard to Mr. DiCarlo:
Dr. Roeser reached the same conclusion with regard to Mr. Phillips:
(footnotes and citation omitted).
The trial court also found the testimony of Plaintiffs' expert witness, Dr. Ross Roeser, credible with regard to causation of Plaintiffs' hearing loss:
La. R.S. 23:1021(1).
13 La. Civ. L. Treatise, Workers' Compensation Law and Practice § 214 (5th ed.)(footnotes and citations omitted)(emphasis added). In this regard, we explicitly disagree with Murphy's argument that the changed definition somehow "compels the conclusion" that the pre-1989 definition included occupational noise-induced hearing loss.
Chatelain v. American Can Co., 344 So.2d 1180, 1182 (La.App. 4th Cir. 1977). Chatelain v. American Can Co., 387 So.2d 670 (La.App. 4th Cir. 1980) simply affirmed the trial court's finding that the employee's claims under workers' compensation failed in Chatelain, supra, 344 So.2d 1180, because the employee did not prove that his hearing loss was caused by his work environment.
Comoletti, 147 So.2d at 714.
Renfroe v. State ex rel. Dept. of Transp. & Dev., 2001-1646, p. 9 (La.2/26/02), 809 So.2d 947, 953. At issue under these particular facts and circumstances is the fourth category.
Marin, p. 4, 48 So.3d at 240. The Court noted that both lower courts found that the 1991 release did not constitute a compromise of plaintiffs' claims, and the finding was not assigned as error. Marin, p. 17, 48 So.3d at n. 13.
Cole, 620 So.2d at 1157-58 (emphasis added).
Hughes v. Olin Corp., 37,404, p. 9 (La.App. 2 Cir. 10/3/03), 856 So.2d 222, 228.
