Acosta v. Babcock & Wilcox
Acosta v. Babcock & Wilcox
Opinion of the Court
In these consolidated diversity jurisdiction actions for damages under Louisiana tort law, the plaintiffs appeal the rejection of their claims against various producers of asbestos products. Finding an error in the jury instruction on causation, we reverse and remand for a new trial.
Background
The plaintiffs-appellants seek damages resulting from lung cancer contracted by Alvin J. Acosta, Ottis King, and Jeff Turner. Plaintiffs in the three cases are Alvin J. Acosta; Mamie King, the widow of Ottis King, and their five children; and Estelle Turner, widow of Jeff Turner. During the course of their years of employment Acosta, King, and Turner were exposed to asbestos products. All three smoked cigarettes.
A jury trial on causation resulted in a verdict for the defendant-manufacturers of asbestos products.
The expert called to testify about King’s condition observed interstitial fibrosis, asbestosis, and asbestos bodies in King’s lung tissue, and testified that in all probability asbestos was a significant contributing cause of the cancer. He could not say, however, that he had found no effect of any other carcinogen. King’s treating physician testified that King’s occupational asbestos exposure was a significant contributing factor to his lung cancer. This physician also testified that if, hypothetically, King had not had any asbestos exposure, then he would have to conclude that the cancer was caused by cigarettes.
In Turner’s case, an expert testified that exposure to asbestos was one causal factor contributing to Turner’s lung cancer. Relative to asbestos exposure and smoking, the expert opined that the two causes multiplied the risks but he knew of no scientific way to proportion the relative contributions of the two causes.
Over the plaintiffs’ objections,
An injury is caused by the defendant’s product when it appears that the exposure to asbestos contributed a substantial part in bringing about or actually causing the injury, disease or damage and that the injury, disease or damage was either a direct result of or the product of a natural and continuous sequence produced by the asbestos exposure.
This does not mean that the law recognizes only one proximate cause of an injury or damage, consisting of only one factor or thing or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage, and in such case, each may be a cause, so long as it can reasonably be said that, except for the asbestos exposure, the injury complained of would not have occurred.
(Emphasis added.) Apparently based on this instruction the jury concluded that as
Notice of appeal was timely filed for: (1) Alvin J. Acosta; (2) Estelle P. Turner; and (3) Mamie King, et al. For the reasons discussed herein, we have appellate jurisdiction only over the claims of these three named appellants; we do not have jurisdiction over the claims of the King children.
Analysis
1. Jury Instructions
The plaintiffs’ theory of causation did not dispute that cigarettes alone may cause cancer; but, rather, they argued that together tobacco and asbestos concurrently and synergistically cause cancer, and that once the cancer was contracted, it was a medical impossibility to distinguish whether cigarettes alone or asbestos alone was the cause. Given this trial theory, the plaintiffs claim reversible error in the “but for” jury instruction, an instruction that effectively sealed the fate of their concurrent cause hypothesis.
Plaintiffs correctly note that Phillips Petroleum Co. v. Hardee, 189 F.2d 205 (5th Cir. 1951), made manifest that a “but for” definition of causation is inappropriate in a concurrent cause Louisiana tort action.
This argument misperceives Louisiana law. “[TJhere can be more than one cause in fact making both wrongdoers liable.” Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 720 (La. 1986) (citing Dixie Drive It Yourself Systems v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Anthony v. Hospital Service District No. 1, 477 So.2d 1180 (La.App. 1985), cert. denied, 480 So.2d 743 (La. 1986); Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972)). The long-recognized principle of Louisiana law that causation is not defeated by the possibility that the injury would have happened without the defendant’s involvement has never been relegated to only those cases in which a plaintiff first proves that the defendant alone would have caused the harm. See Wheat v. State Farm Fire and Casualty Co., 583 So.2d 1 (La.App.), cert. denied, 583 So.2d 1145 (La. 1991) (citing Reynolds v. Texas & Pacific Ry. Co., 37 La.Ann. 694 (1884); Turner v. Safeco Ins. Co. of America, 472 So.2d 43 (La.App. 1985)). We have abjured but for causation in the context of lung cancer injuries alleged to have been caused by asbestos. Petes v. Hayes, 664 F.2d 523 (5th Cir. 1981). The Petes court ordered a new trial because a jury interrogatory wrongfully placed upon the plaintiff the burden of proving that the plaintiff’s disease “specifically” resulted from asbestos. We distilled the controlling Louisiana law thusly: “Many factors or things or the conduct of two or more persons or companies may operate at the same time either independently or together to cause injury and in such case may be a proximate cause.” 664 F.2d at 525 n. 1.
The defendants contend that because the jury charge as a whole was not misleading, prejudicial, or confusing the error is not reversible. See Bradshaw v. Freightliner Corp., 937 F.2d 197 (5th Cir. 1991). They observe that at the onset of
Defendants invite our attention to the unpublished opinion in Bordelon v. Fibreboard Corp., (5th Cir. 1990) [897 F.2d 527 (table) ]. We do not find Bordelon disposi-tive and decline to follow its suggested path. The Bordelon jury was advised:
If Mr. Bordelon probably would have contracted the lung cancer, regardless of his exposure to asbestos, then you must conclude that the damages were not caused by defendants and must render a verdict for the defendants. If, on the other hand, you find that Mr. Bordelon probably would not have contracted the lung cancer, in the absence of exposure to asbestos, then you must conclude that exposure to asbestos did play a substantial part in plaintiff’s damages.
Slip ■ op. at 3. We recognized that this language may have confused the jury’s understanding of applicable law, but we nonetheless affirmed the judgment based on a finding that the charge as a whole was not prejudicially misleading. The totality of the charge, which is not recited in the Bordelon decision, apparently satisfied the panel that the effect of the erroneous jury instruction was adequately ameliorated.
2. Notice of Appeal
Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal specify the party or parties taking the appeal. The notice of appeal for the King family recites merely “Mamie King, et al.” The Supreme Court has made abundantly clear that the language “et al.” in a notice of appeal fails to provide the required notice. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). Torres held that a federal Court of Appeals was without jurisdiction to hear the appeal of one of sixteen plaintiffs whose name was omitted from the notice of appeal. A secretary had inadvertently omitted this plaintiff’s name in typing the rather lengthy list. The Supreme Court held that the appellate court lacked jurisdiction to consider the claim of this innocently omitted plaintiff because the notice of appeal did not give “fair notice of the specific individual or entity seeking to appeal.” Id.
We have found that the requisite fair notice has been given by “et al.” if only two individuals are parties. Pope v. Mississippi Real Estate Commission, 872 F.2d 127 (5th Cir. 1989). In this limited
The judgment of the district court as to Alvin J. Acosta, Mamie King, and Estelle P. Turner is REVERSED and the matter is REMANDED for a new trial consistent herewith.
. By the time of trial only two defendants and the issues of causation and damages remained. The trial was bifurcated. In the first phase the court addressed damages and the general issue whether asbestos caused the injuries. In the second phase, specific asbestos products were to be the focus of inquiry.
. The plaintiffs timely objected to the jury instruction given in this case. In addition, the plaintiffs requested an instruction that: Where two independent factors combine to cause a single injury one sole defendant can be liable "even though ... the same might have resulted from the act of the other." Alleging error in the instruction given, the plaintiffs moved for a new trial.
. See id. at 212 (liability may exist even if " ‘the same damage might have resulted from the act of the other tortfeasor_(citation omitted)); see also William L. Crowe, Sr., The Anatomy of a Tort — Greenian, as Interpreted by Crowe Who Has Been Influenced by Malone — A Primer, 22 Loy.L.Rev. 903, 905 (1976) (criticizing the “but for” test as unhelpful under Louisiana tort law).
. The thrust of the plaintiffs complaint in Bor-delon was that the instruction misinformed the jury regarding the plaintiffs theory that asbestos accelerated or aggravated a preexisting condition. Viewed in that context, then, the charge may not have had the directly contradictory effect on the plaintiffs theory of causation as did the charge in the case at bar.
Reference
- Full Case Name
- In re Ralph C. MANGUNO. Alvin J. ACOSTA v. BABCOCK & WILCOX, a Delaware Corporation, Owens Illinois Corp., an Illinois Corporation, and Keene Corp., a Delaware Corporation, In re Ralph C. MANGUNO. Mamie KING, Widow of Ottis King v. BABCOCK & WILCOX, a Delaware Corporation, Owens Illinois Corp., an Illinois Corporation, and Keene Corp., a Delaware Corporation, In re Ralph C. MANGUNO. Estelle P. TURNER v. BABCOCK & WILCOX, Keene Corporation, a Delaware Corporation
- Cited By
- 1 case
- Status
- Published