JAKE PALERMO Vs. THE PORT OF NEW ORLEANS, ET AL.
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JAKE PALERMO * NO. 2004-CA-1804 VERSUS * COURT OF APPEAL THE PORT OF NEW ORLEANS, ET AL. * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* CONSOLIDATED WITH: CONSOLIDATED WITH: ABRAHAM VEAL AND SHEILA ROCHELLE VEAL NO. 2005-CA-1805 VERSUS THE PORT OF NEW ORLEANS, ET AL. TOBIAS, J., CONCURS AND ASSIGNS REASONS. I respectfully concur in the majority’s opinion to reverse the judgment of the trial court. I find that under the facts of the case at bar and current Louisiana jurisprudence the defendants lacked a duty to these plaintiffs respecting their exposure to asbestos. We are required to reverse the decision in the plaintiffs’ favor. I respectfully disagree from the majority’s reliance on Zimko v. American Cyanamid, 03-0658 (La. App. 4 Cir. 6/8/05), 905 So.2d 465, because that case is not yet final and definitive; an application for a writ of certiorari is pending before the Louisiana Supreme Court. One must clearly understand the factual and legal basis upon which Zimko was premised and its history. Zimko was a 3 to 2 decision of this court. American Cyanamid was found liable to the plaintiff and Tate & Lyle was found not liable to the plaintiff. Neither American Cyanamid nor Tate & Lyle sought supervisory review from the Louisiana Supreme Court, but the plaintiff did on the issue of the liability of Tate & Lyle. By implication, American Cyanamid has settled with the plaintiff or agreed not to pursue their appeal further. Thus, the Supreme Court is not reviewing the issue of the correctness of the majority opinion respecting American Cyanamid’s liability. (See Judge Kirby’s dissent in Zimko, 905 So.2d at 494-98, respecting American Cyanamid’s liability.) Any person citing Zimko in the future should be wary of the problems of the majority’s opinion in Zimko in view of the Louisiana Supreme Court never being requested to review the correctness of the liability of American Cyanamid. Recently, the Court of Appeals of New York (that state’s highest court) briefly alluded to the problem of Zimko in the case of In re New York City Asbestos Litigation, 5 N.Y. 3rd 486, 495-96, 840 N.E. 2d 115, 806 N.Y.S. 2d 146, 151-52 (N.Y. 2005), and chose not to follow Zimko.
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