Brady Arceneaux VS The Shaw Group, Inc.

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 0135 BRADY ARCENEAUX VERSUS THE SHAW GROUP INC Judgment Rendered SEP 2 4 2012 Appealed from the Office of Workers Compensation District 5 State of Louisiana Case No 07 06144 The Honorable Jason Ourso Judge Presiding John J Rabalais Counsel for DefendantAppellant Janice B Unland The Shaw Group Inc Covington Louisiana J David Smith Baton Rouge Louisiana Counsel for PlaintiffsAppellees Brady Arceneaux deceased Jacquelyn Arceneaux Bradie Arceneaux and Kelsey Arceneaux BEFORE CARTER C GUIDRY AND GAIDRY JJ J GAIDRY J This is an appeal from the judgment of the Office of Workers Compensation Shaw OWC finding the appellant the Shaw Group Inc liable for the injury and death of its former employee Brady Arceneaux as well as for all benefits due under the Louisiana Workers Compensation Act For the following reasons we affirm the judgment of the trial court FACTS AND PROCEDURAL HISTORY Brady Arceneaux began his employment with Shaw as a welder in 2000 On or about September 19 2005 Mr Arceneaux was performing repairs on a chemical dryer unit owned by the Syngenta Crop Pretection Inc Syngenta plant in Geismar Louisiana Arceneaux and one other Shaw employee wore protective masks and clothing while performing the repairs to avoid exposure to hazardous chemicals inside the dryer One chemical known to be inside the dryer was Demp Malonamide According to the Material Safety Data Sheet MSDS on Demp Malonamide supplied by Syngenta the material contains low levels of an impurity that has a similar structure to a known carcinogen This known carcinogen is M210 Until further information is available Syngenta considers it prudent to consider this impurity as if it were a carcinogen The material appears as a yellowish odorless powder Arceneaux and his coworker performed repairs on the dryer for approximately twenty minutes The repairs consisted of moderate to heavy manual labor Upon completion when they were removing their protective clothing the coworker noticed a yellow powder on Arceneaux face neck s Mr Arceneaux is survived by his spouse Jacquelyn Arceneaux and their children Bradie and Kelsey Arceneaux Louisiana Revised Statutes 23 et seq 1 2 and chest Arceneaux was immediately decontaminated but it was determined by Syngenta that he had been exposed to approximately five times the acceptable level of Demp Malonamide Despite the exposure Arceneaux exhibited no immediate symptoms of illness Arceneaux left employment with Shaw in 2006 In February of 2007 Arceneaux reported for the first time an irritation of the throat and a difficulty with swallowing with esophageal cancer That same month Arceneaux was diagnosed His treating oncologist Dr Michael J Castine determined that the cancer originated with Arceneaux exposure to Demp s Malonamide on or about September 19 2005 Arceneaux filed a claim for compensation with OWC on July 24 2007 naming Shaw as his employer at the time of the injury By this time Arceneaux was unable to work at all due to his cancer treatment Shaw answered by denying that Arceneaux was injured in the course and scope of his employment with Shaw Arceneaux died on January 30 2008 His autopsy determined he died from complications due to adenocarcinoma originating in the esophagus and spreading throughout his digestive system As a result his wife Jacquelyn amended his petition to include a claim for death benefits on behalf of her and their two minor children Shaw filed a motion for summary judgment on February 9 2011 claiming the Arceneauxs would be unable to carry their burden of proof since their case relied entirely upon the expert testimony of Dr Castine who 3 The actual level of Mr Arceneaux sexposure is disputed by the parties however it is undisputed that the yellow powdery substance was witnessed on and around Mr Arceneaux face neck and chest s 4 The Arceneauxs had tiled suit against Shaw and Syngenta in the 18 Judicial District Court in the matter entitled Brady I Arceneaux and Jacquelyn P Arceneaux v Syngenta Crop Protection et al Docket no 66060 Division D Shaw and the Arceneauxs filed a joint motion to stay the workers compensation proceedings until the matter in the 18 JDC could be resolved and the motion was granted on April 20 2009 Shaw sought to lift the stay on August 12 2009 and OWC granted the lift on August 17 2009 Details of the resolution of the 18 JDC matter are not included in the record however the record does indicate that the parties attempted pretrial mediation from that time and through the following year 3 gave a deposition as an expert on oncology In his deposition Dr Castine testified I think it highly possible and probable given the s timing and given his age that this exposure created change in him to either accelerate transformation or to cause the transformation from some a precancerous s That lesion to lesion cancerous s that what I answered before and 1 you know I believe that Shaw contemporaneously filed a motion to strike Dr testimony s Castine s Shaw reasoning on both motions was that Dr Castine s testimony is unreliable and does not satisfy the requirements of expert testimony put forth in Daubert v Merrell Dow Pharmaceuticals Inc 509 S U 579 113 S 2786 125 L 469 1993 and State v Foret 628 Ct 2d Ed 2d So 1116 La 1993 Shaw gave the following reasons for the unreliability of Dr Castine testimony s There is no evidence that the chemicals that Mr Arceneaux was allegedly exposed to could have caused his cancer i no proof of general e causation Dr Castine failed to conduct a thorough investigation into Brady Arceneaux history s and other possible causes for his cancer including his Barrett esophagus and his use s or of chewing tobacco Dr Castine cannot state with any degree of certainty what level of exposure to M210 is necessary to esophageal cause cancer and whether Mr Arceneaux was exposed to that level i specific causation e In contrast to Dr Castine testimony Shaw introduced the medical s opinion of Dr Michael Greenberg as an expert in toxicology In Dr s Greenberg medical report he concluded that the most likely cause for Mr Arceneaux esophageal carcinoma is Barrett esophagus resulting s s s Dr Greenberg was accepted as an expert in toxicology rather than oncology He was never Mr s Arceneaux treating physician and never personally examined Mr Arceneaux His only knowledge of Mr Arceneaux comes through the medical records and autopsy report in from gastro esophageal reflux Carcinomatous transformation of Barrett s esophagus is a well recognized pre cursor sic phenomenon that is clearly and causatively associated with the development of esophageal cancer Dr Castine had also addressed Mr s Arceneaux pre existing condition of Barrett esophagus stating that it had been asymptomatic and s benign prior to the exposure to Demp Malonamide Although it increased Mr Arceneaux srisk for esophageal cancer it was not the cause and the exposure to M210 was the last hit in the cycle causing the Barrett s esophagus to transform into adenocarcinoma of the esophagus Dr Greenberg went further to discount Mr Arceneaux exposure to s Demp Malonamide as the cause of his esophageal cancer by stating that no medical literature or scientific studies exist that show the chemicals to which he was exposed cause esophageal cancer Shaw also filed a motion on February 11 2011 to compel the attendance of Dr Castine and Dr Greenberg at the trial which was denied by OWC The Arceneauxs filed their own motion for summary judgment on February 18 2011 claiming that Mr Arceneaux exposure to Demp s Malonamide diagnosis of esophageal cancer and subsequent death from it were all uncontested facts The entire matter was submitted on briefs on August 1 2011 and OWC rendered its judgment on September 9 2011 OWC found Shaw liable for the death of Brady Arceneaux and that his surviving family was entitled to all benefits available under the Louisiana Workers Compensation Act OWC stated in its written reasons The Court finds and gives greater weight to Dr Castine the treating physician and particularly as an oncologist trained in the area of as cancer and determining whether a person has cancer the causes of cancer and the treatment of 5 cancer The Court finds that Dr Castine is in a better position to determine and give an opinion as to whether or not this chemical M21 was 0 indeed the cause of Mr Arceneaux esophageal s cancer Mr Arceneaux had Barrett which is an s esophageal condition but Dr Castine testified that that condition normally just increases your risk by 1 percent to actually have esophageal cancer Also Dr Castine testified that Mr Arceneaux was at a rather young age to have this type of cancer Normally most patients are in their 50s or 60s before ever having esophageal cancer but Mr Arceneaux died at the age of 42 The Court finds that Dr Castine fully supported his causation opinion in his deposition which he explained over and over again Although he was wellchallenged by defense counsel in that deposition the Court finds that Dr Castine clearly supported the causation of the M 210 causing the esophageal cancer of Mr Arceneaux in this case Shaw filed a motion for a suspensive appeal in this case on October 12 2011 which was granted by OWC ASSIGNMENTS OF ERROR The workers compensation judge erred in admitting the testimony of Dr Michael Castine as to the cause of Mr Arceneaux esophageal cancer s because Dr Castine scausation opinion was unreliable as it was not based upon the proper foundation or methodology as required by Daubert or Foret The workers compensation judge erred in denying Shaw motion to s have Dr Castine and Dr Greenberg testify live at a formal hearing The workers compensation judge erred in giving more weight to Dr Castine an oncologist over Dr Greenberg a toxicologist concerning whether Demp Malonamide a chemical caused Mr Arceneaux scancer The workers compensation judge erred in finding that Mr sesophageal cancer was caused by the one time alleged exposure Arceneaux to Demp Malonamide because there was no reliable evidence that Demp 31 Malonamide is capable of causing esophageal cancer or that it actually caused Mr Arceneaux cancer s STANDARD OF REVIEW If a trial court conducts no Daubert analysis of any kind the exclusion of the expert evidence without an evaluation of the relevant reliability s factors is legal error Robertson v Doug Ashy Building Materials Inc 20101552 p 23 La App 1 Cir 10 77 So 339 355 writ denied 11 4 3d 2011 2468 La 1 77 So 972 12 13 3d In the instant case OWC merely commented on the credibility of both experts and found the deposition testimony of Dr Castine to hold more weight over the report of Dr Greenberg Nowhere in OWC judgment is an analysis of the reliability s factors of Daubert Such factors are whether the expert methodology in s developing the opinion is testable or has been tested whether the theory on which the opinion is based has been subjected to peer review or publication the known or potential rate of error of the methodology employed and S general acceptance by the scientific community See Daubert 509 U at 593 594 factor Daubert is not a rigid test which requires adherence to each These are suggestive factors designed to determine the overall scientific validity of an expert opinion See Daubert 509 U at 594 595 S The trial court must conduct a preliminary assessment of these factors to determine whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue See Foret 628 2d So at 1122 A party may file a pretrial motion to determine the reliability of the expert testimony and the court shall make a ruling on the reliability s no later than thirty days prior to trial La art 1425 The analysis P C F established by Daubert is to be applied to determine the admissibility of expert testimony Cheairs v State ex rel Department of Transp and W Development 2003 0680 p 7 La 12 861 So 536 541 The trial 03 3 2d court is required to perform a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable Versluis v Gulf Coast Transit Co 2008 0729 p 5 La App 4 Cir 7 17 So 459 463 citing Daubert 509 U at 589 The lack 09 29 3d S of such an analysis by OWC constitutes legal error and a de novo review of Dr Castine testimony which is sought by Shaw to be excluded must be s made by this court DISCUSSION Reliability Analysis ofDr Castine Testimony s Early in Dr Castine deposition he states T treatment for s he esophageal cancer right now has a pretty set standard for the drugs that we have the treatments with regards to radiation and surgery This suggests that there are established methodologies for the diagnosis and treatment of esophageal cancer that are generally accepted by doctors in his field Shaw raises the fact that Dr Castine is not familiar with the chemicals Demp Malonamide or M210 however Dr Castine doesn have to be t He researched the known literature dealing with the chemicals namely the MSDS provided by Syngenta as well as Dr Greenberg sreport Dr Castine applied that research to the expert knowledge he has in the field of oncology which is the study of the growth of cancerous tumors Dr Castine stated that his knowledge on the subject is based on the results of preclinical studies that he has read Shaw points to Mr Arceneaux Barrett esophagus as being a s s possible cause of his cancer Dr Castine was familiar through his medical practice with Barrett esophagus and stated that it is generally a benign s condition but it is a change in the esophagus Another event happens and K3 the change becomes more malignant It becomes precancerous and then eventually cancerous Dr Castine took this general theory on how esophageal cancer is caused in a subject with Barrett esophagus and applied it specifically to s Mr Arceneaux The Barrett Esophagus was probably the weak s link in his armor because that area of his body had already experienced changes possibly and then he was exposed to M210 There were already changes in the cells that were going down that pathway It doesn mean they would complete the t journey but they going down the pathway and re then the exposure happens and a year later or 15 months later there scancer in a 40 year old man As his treating physician Dr Castine took Mr Arceneaux as he found him a forty one yearold male with the condition of Barrett esophagus s but without any other abnormalities In all his extensive experience and generally accepted observations in the field of oncology Dr Castine knew two things men in their forties typically do not contract esophageal cancer and Barrett esophagus is typically not a cause of the cancer but makes s one more susceptible if exposed to a condition that accelerates the mutation of cells In studying Mr Arceneaux entire medical history the only s condition that Dr Castine found that could have brought about a rapid acceleration in the mutation of healthy cells into cancerous ones was the chemical exposure on September 19 2005 Dr Castine was further convinced that the Demp Malonamide was responsible for Mr Arceneaux sesophageal cancer by the area of his body to which he was exposed f Ihe got the exposure specifically with regards to re his aerodigestive tract that is significant We not talking about finding powder on his upper back 6 Dr Castine mentioned that Barrett esophagus by itself has a one percent chance to convert into s adenocarcinoma C or on his foot we talking about finding powder re at the entrance to his upper aerodigestive tract his nose and his mouth which allows exposure to his entire body particularly his aerodigestive tract nasal passages nasal pharynx larynx esophagus stomach and lungs Shaw questions the possibility of Mr Arceneaux admitted use of s smokeless tobacco as a possible cause of his cancer and Dr Castine was able to answer based on established findings and generally accepted principles of oncology He stated that there are two variants of esophageal cancer The variant Mr Arceneaux did not have is typically caused by alcohol and tobacco use while the variant Mr Arceneaux had can be found s in patients with Barrett esophagus He therefore found Mr Arceneaux s sporadic use of smokeless tobacco to be a far less probable cause of his variety of esophageal cancer Lastly Shaw states that Dr Greenberg sreport indicates no reported cases of Demp Malonamide or M210 causing esophageal cancer in fact M210 has been proven to cause bladder cancer in lab rats Dr Castine responds M210 has not been known to cause any type of carcinoma really other than in some lab animal it caused bladder cancer which is no interpretation of what happens in humans We have no idea how things translate from animals to humans We still t don know And I do have a lot of expertise in that aspect because we do look at preclinical trials and we do take stuff from bench to humans and so I have a lot of experience with that In other words Dr Castine sapplied methodology is the observation of carcinogenic substances affecting humans He does not attempt to analogize a substance effect on an animal to how it will affect a human s being Dr Castine further states that the mere absence of reported cases of 10 esophageal cancer caused by M210 does not mean that the chemical cannot cause esophageal cancer Dr Castine documentation knew the substance was carcinogenic from From his patient history he knew Mr Arcneneaux was s heavily exposed to the substance through his nose and mouth leading to the esophagus From his knowledge experience and generally accepted principals of oncology he knew that Mr Arceneaux Barrett esophagus s s made him more likely to contract esophageal cancer should he come in contact with a carcinogenic substance He also knew from his practice and from clinical studies that Mr Arceneaux limited tobacco use would not s typically cause the type of cancer he contracted He therefore concluded based on scientific publications applied methodologies and generally accepted practices that the M210 was by far the most likely cause of Mr sesophageal cancer When an expert opinions are grounded in Arceneaux s methods and procedures of science rather than just speculative belief or unsupported speculation the Daubert standard of reliability is satisfied See Devall v Baton Rouge Fire Department 20070156 p 3 4 La App 1 Cir 07 2 11 979 So 500 502 Dr Castine testimony meets that standard of 2d s reliability and was rightly admitted by the trial court Lack ofLive Expert Testimony For good cause shown the court may allow live expert testimony at the contradictory hearing to determine the qualifications of the expert or the reliability of the testimony P C La art 1425 Both experts have 2 F shown impressive curriculum vitaes that in this court opinion more than s qualify them as experts in their respective fields Dr Castine gave an extensive deposition in which Shaw had the opportunity to question him and Dr Greenberg authored an extensive report The trial court decided that 11 the written testimony ofthe experts was sufficient and calling them to testify in open court was unnecessary We find no abuse of discretion and no cause to overrule this decision by the trial court Evidentiary Weight ofExpert Opinions The trial court qualified both Dr Castine and Dr Greenberg as experts in their respective fields Rulings on the qualifications of an expert witness will not be disturbed on appeal absent manifest error See State v Young 20091177 p 8 La 4 35 So 1042 1047 cert denied 131 10 5 3d Ct S 597 178 L 434 2010 When competing expert opinions are 2d Ed properly admitted it is for the fact finder to make credibility determinations regarding each of the witness testimony including their expert opinions s See Johnson v State Dept ofTransp and Development 2011 826 p 9 La App 3 Cir 2 85 So 204 210 12 15 3d We find this case analogous to a previous case that came before this court Morgan v State Farm Fire and Cas Co Inc 20070334 La App 1 Cir 11 978 So 941 07 2 2d In Morgan testimony of a contractor was accepted by the trial court over the homeowner sown expert where the s homeowner action alleged the contractor failed to make repairs to the s home in a timely professional and workmanlike manner The contractor testimony and exhibits contradicted much of the expert opinion and the s trial court ultimately found the contractor to be more credible Morgan 978 2d So at 943 944 We ruled that the effect and weight to be given expert testimony is within the broad discretion of the trial judge and the trier of fact may accept or reject any expert view even to the point of substituting s its own common sense and judgment for that of an expert witness where in the fact trier opinion such substitution appears warranted by the evidence s as a whole Id at 946 12 In the instant case we have two competing expert opinions but the rationale of Morgan still applies In reviewing the two expert opinions OWC employed its own common sense judgment to determine which expert opinion should be believed over the other The reasons for OWC taking s Dr Castine sopinion over Dr Greenberg sare readily apparent Dr Castine actually treated Mr Arceneaux He is an experienced oncologist who evaluated Mr Arceneaux medical history against all potential cancer s causing risks to which he had been exposed He decided that Mr s Arceneaux exposure to Demp Malonamide had the highest likelihood of causing his esophageal cancer far more than the occasional tobacco use and the Barrett esophagus OWC found from Dr Castine opinion and other s s evidence presented that Demp Malonamide is a cancer causing agent and that it specifically caused Mr Arceneaux esophageal cancer OWC did not s abuse its discretion in reaching this conclusion CONCLUSION Dr s Castine expert testimony meets the Daubert standard of reliability and is admissible There was no cause to require both experts to testify before the court when they produced copious amounts of information that was presented to the court OWC did not abuse its discretion by favoring the opinion of Dr Castine over that of Dr Greenberg For these reasons we affirm the judgment of OWC DECREE The decision of the Office of Workers Compensation Court to grant the surviving family of Brady Arceneaux all workers compensation benefits to which they are entitled is affirmed All costs of this appeal are assessed to the appellant the Shaw Group Inc AFFIRMED 3 1

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