PETTIGREW, J.
In this case, plaintiff was engaged in environmental cleanup activities at defendant's chemical manufacturing facility and was exposed to toxic and hazardous substances. Following a trial on the merits, the jury allocated 100 percent of the fault for plaintiff's injuries to defendant and awarded damages accordingly. Defendant now appeals. For the reasons set forth below, we affirm.
FACTS
At all times pertinent hereto, defendant, CIBA-GEIGY Corporation ("CIBA-GEIGY"), owned and operated a chemical manufacturing facility in St. Gabriel, Louisiana, that manufactured and packaged an agricultural herbicide known as Atrazine. As a result of this production process, there were various wastes that required treatment and disposal. At CIBA-GEIGY's St. Gabriel plant, wastewater streams were directed to sand bed filter ponds that were intended to be a settling basin for the wastewater. Once the solids were removed from the wastewater, the remaining water was pumped out for further treatment and ultimate discharge into the Mississippi River. As the quantity of solids in the sand bed filter ponds increased, the ponds would eventually need to be cleaned out and the solids taken away for disposal.
Prior to 1984, CIBA-GEIGY accomplished this task using a method whereby limekiln dust was spread on the ponds to absorb the excess water. Earthmoving equipment was then used to dig out the remaining sludge, which was loaded into trucks and taken offsite. In late 1983, CIBA-GEIGY learned of a new way to clean the ponds using a belt press that would squeeze water from the sludge, thereby reducing the total volume of material to be removed. After a 30-day trial period of using a belt press owned by IT Corporation to clean one of the ponds at the St. Gabriel plant, CIBA-GEIGY determined that this new process would be more economical than the method they had been using. Thus, in early 1984, CIBA-GEIGY sought bids from various contractors to clean one of the sand bed filter ponds at the St. Gabriel plant.
IT Corporation was among those companies bidding on the job. Plaintiff, Kevin Lemaire, was an employee of IT Corporation at the time. IT Corporation was awarded the contract with CIBA-GEIGY, and Lemaire and the IT Corporation crew began the cleanout process of sand bed filter pond number one on March 20, 1984. Lemaire was a "lead man" on the job and worked closely with the crew removing the sludge from the pond and running it through the belt filter press, where the excess water was squeezed out and the compressed solids were collected in a dumpster for disposal in a landfill.
Lemaire, who had worked for IT Corporation as a technician since 1982, took a very active role in the cleanup of the sand bed filter pond. According to Lemaire, he would spend a "good part of the day" working in the dumpsters shoveling sludge from one end of the dumpster to the other. There were times when the sludge would not only get in his hair, ears, and nose, but it would also get in his shoes/boots, socks, underwear, and gloves. In addition to working in sand bed filter number one, Lemaire testified that on several occasions during the job, he had traversed a ditch that ran from the incinerator pond directly to the Mississippi River. Lemaire also had occasion to utilize the restroom, break area, and control unit, all of which were located in the same general area where the sludge was being processed.
Approximately two months after beginning the job at CIBA-GEIGY, Lemaire was hospitalized on May 14, 1984, with complaints of nausea, vomiting, diarrhea, headaches, and nostril burning. A urinalysis done upon Lemaire's admission to the hospital revealed no blood in the urine, but did show a +1 reading for protein in the urine. Lemaire was discharged four days later with a diagnosis of gastroenteritis or food poisoning. Lemaire returned to work at CIBA-GEIGY for approximately three weeks in a supervisory position. His symptoms continued during this time, and in August of 1984, Lemaire was hospitalized again with the same complaints. According to Lemaire, when he complained about the symptoms he was experiencing to Murry McMillan, a chemical engineer employed by CIBA-GEIGY, McMillan told him they were probably caused by the heat and gave him some salt tablets.
According to the doctor who treated Lemaire, the urinalysis was negative for blood but showed a +1 reading for protein. However, Lemaire testified that while he was in the hospital, the nurse from CIBA-GEIGY called him and told him that a CIBA-GEIGY employee had advised her that Lemaire was in the hospital with blood in his urine.
Lemaire became concerned over the source of his health problems. In fact, after his first hospitalization, Lemaire used a glass jar to collect a sample from the contents of the sand bed filter pond where he had been working. He kept the sample in a plastic bag and stored it at his house until January of 1985 when it was analyzed by IT Corporation. The pesticide analysis of the sample revealed the presence of 33,200 parts per million of Atrazine. According to Lemaire, he was still employed by IT Corporation at this time and continued to have health problems including proteinuria (protein in the urine), hematuria (blood in the urine), and back pain associated with his kidneys. Lemaire was subsequently treated by several doctors for both physical and mental problems that he developed as a result of his exposure to certain chemicals at the CIBA-GEIGY St. Gabriel plant. According to the record, Lemaire not only had problems with recurrent proteinuria and hematuria, but also developed a fear of cancer, anxiety, and insomnia.
Lemaire indicated that he was not the only one on the job who was experiencing these types of symptoms. John Olinde, another IT Corporation employee, testified that he worked with Lemaire in cleaning out sand bed filter pond number one. Olinde stated that while on the job, he began developing symptoms such as stomachaches, diarrhea, occasional headaches, breakouts of acne on his back, and one instance of blood in his stool. According to Olinde, these symptoms persisted on and off during the three to four months he worked at the St. Gabriel plant. Olinde also noted that Lemaire had complained of headaches and stomach discomfort during this time. Harry Munster, another IT Corporation employee working on the CIBA-GEIGY job, testified that he had diarrhea "a couple of times" and that another employee named "Shelton" had constant stomachaches and was "always running to the bathroom."
PROCEDURAL HISTORY
On May 11, 1985, Lemaire instituted the present action against CIBA-GEIGY, Ken Dupuis, Karlene Tierney, and Murry McMillan for the injuries he sustained as a result of his exposure to toxic and hazardous substances at the CIBA-GEIGY St. Gabriel plant. Lemaire alleged that while working on an environmental cleanup crew at the St. Gabriel plant from March through mid-June of 1984, he "sustained severe and permanent injuries, including various gastro[-]intestinal problems, hematuria and other serious and permanent injuries throughout [his body] from exposure to high levels of toxic and hazardous substances." In a supplemental and amending petition, Lemaire asserted that he was exposed to "toxic and hazardous chemicals including but not limited to Atrazine, Arsenic, Carbon Tetrachloride, Chloroform, Galecron, Chlordimeform 2, Amino-5, and Cloro-toluene." He added that he "now has an increased risk and increased pre-disposition to cancer including cancer of the bladder; renal problems, including total renal failure and/or cancer of the kidneys and increased risk of other serious illnesses all of which has caused [him] severe mental and emotional distress."
Also included as a plaintiff in the original petition for damages was Ned Wilson. In an order signed on May 27, 1986, Wilson's claims against CIBA-GEIGY were dismissed with prejudice.
After extensive discovery and numerous pre-trial motions, the matter proceeded to a jury trial on July 27, 1998. Prior to receiving evidence on the merits, the trial court heard arguments and evidence concerning various preliminary motions in limine and motions to strike. In addition, the parties filed motions to limit and/or exclude the testimony of certain expert witnesses, all of which were denied by the trial court.
The jury began hearing the merits of the case on July 31, 1998. At the conclusion of Lemaire's case, CIBA-GEIGY renewed its motion to exclude the testimony of two of Lemaire's experts. CIBA-GEIGY then moved for a directed verdict arguing that Lemaire was a statutory employee of CIBA-GEIGY. Further, CIBA-GEIGY moved for a directed verdict in its favor on the issues of negligence and intentional tort. After carefully considering these motions, the trial court denied the motion to exclude the expert testimony, denied the motions for directed verdict as to the negligence and statutory employee issues, and granted the motion for directed verdict as to the intentional tort issue. CIBA-GEIGY then presented its case to the jury and, at the close of its evidence, re-urged motions for directed verdict as to the negligence and statutory employee issues. Further, Lemaire moved for a directed verdict in his favor with regard to the third-party fault of IT Corporation. Lemaire argued that there was no evidence in the record to establish any fault on the part of IT Corporation. The trial court denied all motions.
Following deliberation, the jury returned a verdict on August 7, 1998, in favor of Lemaire. The jury found CIBA-GEIGY to be 100 percent at fault for the damages sustained by Lemaire and awarded damages in the amount of $428,200.00. The trial court signed a judgment in accordance with this verdict on September 14, 1998. CIBA-GEIGY moved for a judgment notwithstanding the verdict and/or a new trial, both of which were denied by the trial court. This appeal by CIBA-GEIGY followed, wherein the following specifications of error were assigned:
I. The trial court's refusal to grant a directed verdict in favor of appellant Ciba[-]Geigy on the issue of plaintiff-appellee's status as a statutory employee constitutes reversible error.
II. The trial court's refusal to submit the question of statutory employee status to the jury for decision constitutes reversible error.
III. The trial court failed to discharge its duty under the
Daubert-Foret analysis for admissibility of expert testimony under La.C.C. art. 702, and allowed the testimony of Drs. Cone and Thoma[n] to be placed before the jury without any rational restriction or limitation, thus constituting reversible error.
IV. The jury's award of $420,000 in general damages, and the lower court's utilization of multiple, duplicative categories of damage, was an abuse of discretion and reversible error.
V. The jury's conclusion that plaintiff's employer, IT Corporation, was completely free of fault was an abuse of discretion and constitutes reversible error.
STATUTORY EMPLOYMENT DOCTRINE
The first issue presented for resolution in this litigation is whether CIBA-GEIGY was the statutory employer of Lemaire, and thus, immune from tort liability. In assignment of error number one, CIBA-GEIGY argues that the trial court erred in refusing to grant a directed verdict on the issue of statutory employment. In brief, CIBA-GEIGY asserts that in concluding CIBA-GEIGY was not Lemaire's statutory employer, the trial court erroneously applied the three-tiered analysis set forth in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La. 1986), rather than the integral relation test articulated in Thibodaux v. Sun Oil Co., 49 So.2d 852 (La. 1950). CIBA-GEIGY contends the Berry test, which was crafted by the Louisiana Supreme Court in 1986, cannot be applied retroactively to an incident that allegedly occurred in 1984. Instead, CIBA-GEIGY asserts that the integral relation test articulated in Sun Oil controls Lemaire's cause of action because the "integral relation test was the law of Louisiana at both the time of [Lemaire's] alleged injury and the time of his filing suit." CIBA-GEIGY further argues that the evidence clearly established that Lemaire's work was an integral and essential part of CIBA-GEIGY's business of producing chemicals, thus entitling CIBA-GEIGY to tort immunity.
In response, Lemaire asserts that the court correctly applied the three-tiered analysis set forth in Berry to the instant case in determining that CIBA-GEIGY was not the statutory employer of Lemaire. According to Lemaire, as early as 1983, "the Louisiana Supreme Court began a discernable shift from a liberal to a more restrictive construction of the statutory employer defense." Lemaire contends that in Berry, the court was simply interpreting the workers' compensation law as it existed at the time. Thus, argues Lemaire, the retroactive application of the Berry test "was not inequitable because it incorporated some of the factors that the courts have considered in determining statutory employment in the ten years preceding Berry."
In its second assignment of error, CIBA-GEIGY asserts that the trial court erred in refusing to instruct the jury on doctrine of statutory employment. CIBA-GEIGY contends that whether the work performed by Lemaire's direct employer was integrally related to CIBA-GEIGY's business is a question of fact for the jury to decide. Citing Solet v. K-Mart Corporation, 555 So.2d 35 (La.App. 1 Cir. 1989), writ denied, 558 So.2d 572 (La. 1990), Lemaire argues that the issue of whether an accident is work related is to be decided by the court and not by the jury. After reviewing the record and the applicable law, we agree with Lemaire's arguments regarding the issues addressed in CIBA-GEIGY's first two assignments of error.
Louisiana Code of Civil Procedure article 1810, which governs directed verdicts, states as follows:
A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
In McNeely v. Ford Motor Company, Inc., 98-2139 (La.App. 1 Cir. 12/28/99), 763 So.2d 659, writ denied, 2000-0780 (La. 4/28/00), 760 So.2d 1182, this court recently addressed the standard of review in determining whether a directed verdict is appropriate.
A trial court has much discretion in determining whether to grant a motion for directed verdict. A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the party opposing the motion, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict.
However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury.
On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. Furthermore, the propriety of a directed verdict must be evaluated in light of the substantive law underpinning the plaintiff's claims.
McNeely, 98-2139 at 7-8,
763 So.2d at 664 (citations omitted).
Before this case was tried on the merits, CIBA-GEIGY raised the issue of its status as Lemaire's statutory employer as the basis for summary judgment in its favor. The trial court denied CIBA-GEIGY's motion for summary judgment, finding that the appropriate test for determining statutory employer status for a cause of action that arose in 1984 was the three-prong test set forth in Berry. The court further held that having applied the facts of this case to the Berry test, CIBA-GEIGY was not the statutory employer of Lemaire. The court concluded that the work performed by IT Corporation and Lemaire was of a specialized nature. CIBA-GEIGY applied for supervisory writs to this court under docket number 98 CW 1636. This court rendered the following decision on July 23, 1998:
WRIT DENIED IN PART; GRANTED IN PART. The writ is denied as to those portions of the trial court's ruling of July 7, 1998, denying relators' motion for summary judgment and determining that the "test" set out in
Berry v. Holston Well Services, Inc.,
488 So.2d 934 (La. 1986) is to be used to determine statutory employer status. This Court declines to exercise its supervisory jurisdiction. The issue of whether the "test" of
Berry or of
Thibodaux v. Sun Oil Company,
49 So.2d 852 (La. 1950) should be applied can be raised on appeal after a ruling on the merits. However, that portion of the trial court's ruling finding that Ciba-Geigy Corporation is
not the statutory employer of the plaintiff based on the facts of this case hereby is vacated and the issue is remanded to the trial court for determination at trial on the merits. No pleadings were filed upon which to make such a ruling and the plaintiff never requested such a ruling.
Thereafter, the case proceeded to trial on the merits. At the conclusion of Lemaire's case, CIBA-GEIGY moved for a directed verdict arguing that Lemaire was a statutory employee of CIBA-GEIGY. The trial court denied the motion, noting that its position on this issue had remained unchanged since the original ruling on CIBA-GEIGY's motion for summary judgment. Again, at the conclusion of its case, CIBA-GEIGY moved for a directed verdict on this same issue, which motion was denied by the trial court.
Prior to the case being submitted to the jury for deliberation, CIBA-GEIGY requested that the jury be charged regarding the statutory employment doctrine and that a jury interrogatory concerning this issue be included in the verdict form. In denying CIBA-GEIGY's request, the trial court determined that it was for the court, not the jury, to decide the question of CIBA-GEIGY's statutory employer status.
Before we consider whether the trial court was correct in denying CIBA-GEIGY's motion for directed verdict, we will address the trial court's decision to consider the question of CIBA-GEIGY's statutory employer status rather than instructing the jury regarding same.
It is well settled in Louisiana law that issue of whether an accident is work related is to be decided by the court and not by the jury. Solet, supra. In the Solet case, the plaintiff filed a tort suit against K-Mart, her employer, seeking recovery for an injury she sustained in the K-Mart cafeteria on her lunch hour. The case was tried by a jury, and one of the jury interrogatories dealt with whether the accident occurred within the course and scope of the plaintiff's employment. The jury determined that the accident did occur within the course and scope of the plaintiff's employment. This court found that the trial court erred by allowing the jury to decide whether the accident was work related.
A jury trial is not available in a worker's compensation proceeding. La.C.C.P. art. 1732. Consequently, the central issue of whether an accident is work related is always determined by the court in a worker's compensation suit. A determination of whether an accident is work related is tantamount to a legal determination of whether worker's compensation provides coverage. It would not be logical to bar a jury from hearing worker's compensation cases but allow them to decide the central issue of worker's compensation coverage. Depending upon the posture of the case and the manner in which the question is presented to the court,
the court should at some point in the proceeding make the determination as a matter of law that the case is worker's compensation or tort. Only if it is determined by the court to be tort should the matter be presented to the jury.
Solet,
555 So.2d at 36-37 (emphasis added).
In the instant case, CIBA-GEIGY claimed it was entitled to tort immunity as Lemaire's statutory employer pursuant to the workers' compensation statutes. Lemaire denied that he was CIBA-GEIGY's employee. After considering the evidence, the trial court determined that Lemaire was not the statutory employee of CIBA-GEIGY, and, thus, no tort immunity was available. The court then submitted the remaining issues to the jury for a decision.
It is clear that as with the determination of whether an accident is work related, the question of statutory employer status is a question of law for the court to decide. The issue directly involves the workers' compensation statutes, namely La.R.S. 23:1061. Pursuant to La. Code Civ. P. art. 1732, no jury trial is available in such cases. Thus, the trial court was correct in refusing to allow the jury to decide this issue. Having so determined, we must now consider whether the trial court abused its "much" discretion in denying CIBA-GEIGY's motion for directed verdict on the statutory employment issue.
Under certain circumstances, an owner or principal can be held liable to pay workers' compensation to an employee of a contractor he engages. These circumstances are set forth in La.R.S. 23:1061. However, under such circumstances, workers' compensation is the exclusive remedy of the contractor's employee held to be a statutory employee of the principal, and the principal is immune from tort liability. La.R.S. 23:1032.
At all times pertinent hereto, La.R.S. 23:1061 provided, in part, as follows:
Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him. . . .
The exclusive remedy provision of La.R.S. 23:1032 provides, in pertinent part, as follows:
For purposes of this Section, the word "principal" shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
On appeal, CIBA-GEIGY argues that the trial court erred in applying the Berry test to the facts of this case. CIBA-GEIGY contends that at the time of Lemaire's alleged exposure in 1984, the integral relation test set forth in Sun Oil, supra, was controlling. We disagree. There is a long line of cases wherein the Berry test was applied to causes of action that arose prior to May 20, 1986, the date on which the supreme court handed down the Berry decision. Thus, in determining whether a statutory employment relationship exists in the present case, the facts must be analyzed according to the Berry three-tiered analysis.
See, e.g., Croy v. Bollinger Machine Shop and Shipyard, Inc., 578 So.2d 945 (La.App. 1 Cir.), writ denied, 586 So.2d 532 (La. 1991); Manuel v. Odeco, Inc., 563 So.2d 1179 (La.App. 1 Cir.), writs denied, 566 So.2d 401, 402 (La. 1990); Short v. Mobil Oil Corporation, 544 So.2d 572 (La.App. 1 Cir. 1989); Ardoin v. BASF Wyandotte Corporation, 525 So.2d 684 (La.App. 1 Cir. 1988); Hankins v. Woman's Hospital, 517 So.2d 217 (La.App. 1 Cir. 1987), writs denied, 518 So.2d 511, 512 (La. 1988).
In Kirkland v. Riverwood Intern. USA, Inc., 95-1830, p. 13 (La. 9/13/96), 681 So.2d 329, 336, the Louisiana Supreme Court noted that "the 1989 amendment [to La.R.S. 23:1061] was designed primarily to overrule the part of Berry dealing with specialization per se and to declare that a finding of specialization is not determinative of the absence of a statutory employment relationship." The Kirkland court noted that a majority of the appellate courts had determined that the 1989 amendments to La.R.S. 23:1061 was meant to overrule Berry. The court concluded, however, that the language of the 1989 amendment did not support such an interpretation.
The Berry analysis requires an initial determination of whether the contract work is specialized or non-specialized. In order to make this determination, Berry directs that "courts should consider whether the contract work requires a degree of skill, training, experience, education and/or equipment not normally possessed by those outside the contract field." Berry, 488 So.2d at 938. If the contract work is "specialized per se, as a matter of law the work is not a part of the principal's trade, business or occupation, and the principal is not the statutory employer of the specialized contractor's employees." Id. However, if the contract work is found to be non-specialized, "the inquiry shifts to a comparison of the principal's trade, business or occupation and the contract work to see if the latter can be considered a part of the principal's trade, business or occupation." Id. The Berry decision listed several factors that should be examined in order to resolve the factual issue of whether the contract work is part of the principal's trade, business or occupation:
1) "Is the contract work routine and customary? That is, is it regular and predictable?"
Id.
The Berry court reasoned that general maintenance and repair work usually are within the scope of coverage of the worker's compensation statute while non-recurring or extraordinary repairs are usually not within the scope of coverage.
2) "Does the principal have the equipment and/or manpower capable of performing the contract work?"
Id.
Pursuant to this question, the Berry court explained that the essential determination is whether the contract work is ordinarily performed by the principal's employees.
3) "What is the practice in the industry relative to the contract work? Do industry participants normally contract out this type of work or do they have their own employees perform the work?"
Id.
Again, the primary focus is whether the contract work is ordinarily handled by the principal's employees.
The last tier of the Berry analysis requires the court to decide whether the principal is engaged in the type of work being performed by the contractor at the time of the alleged accident.
Applying the Berry test to the facts of the present case, our analysis ends with the first level of inquiry, i.e., whether the contract work is specialized or non-specialized. Based on our review of the record, we find no manifest error in the trial court's factual finding that the work Lemaire was performing at the time of his exposure was specialized per se. Thus, according to the Berry test, "as a matter of law the work is not a part of [CIBA-GEIGY's] trade, business or occupation, and [CIBA-GEIGY] is not the statutory employer of [Lemaire]." Berry, 488 So.2d at 938.
For an appellate court to reverse a trial court's factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993); Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
Michael King was the CIBA-GEIGY Utilities Effluent Operation Superintendent at the time in question. King testified that the cleaning of the sand bed filter ponds was usually contracted out, as CIBA-GEIGY did not have the necessary equipment and CIBA-GEIGY employees lacked the expertise and training. When asked why CIBA-GEIGY used contract workers for the cleaning of the sand bed filter ponds, King responded, "We didn't have expertise for the Belt Press at that time." King further indicated that CIBA-GEIGY "wanted to see if [the Belt Press] would work in cleaning out the pond", but that CIBA-GEIGY "didn't have a Belt Press readily available."
Additional evidence regarding the specialized nature of the work that IT Corporation and Lemaire were performing at CIBA-GEIGY was presented in Lemaire's testimony. When asked why he considered the work to be of a specialized nature, Lemaire stated:
[Y]ou had [to] know how to operate the filter press safely and all the equipment that went with it, the proper pressures, the aligning of the belts, and the injection of the polymer, all the accessories and equipment that went with it and how to make it work all in unison so that you had a feasible and a working job that you just didn't have a filter press sitting there.
Lemaire further indicated that he had received the requisite training to operate the belt press used for the CIBA-GEIGY job.
After reviewing the record in its entirety, we conclude that the trial court was not manifestly erroneous in its finding that the work Lemaire was performing at CIBA-GEIGY was of a specialized nature. There is a reasonable factual basis in the record to support this finding and the conclusion that CIBA-GEIGY was not the statutory employer of Lemaire. Thus, it was within the trial court's discretion to deny CIBA-GEIGY's motion for directed verdict on this issue. These assignments of error are without merit.
We note that even if we were to assume that the work Lemaire was performing at CIBA-GEIGY was not specialized, this conclusion would stand. An examination of the factors set forth in the second level of the Berry analysis results in a finding that the contract work performed by IT Corporation and Lemaire was not a part of CIBA-GEIGY's trade, business or occupation.
EXPERT TESTIMONY
In assignment of error number three, CIBA-GEIGY contends that the trial court erroneously allowed speculative and scientifically unsupportable testimony from Lemaire's experts, Drs. Cone and Thoman. CIBA-GEIGY alleges that although a trial court has "wide discretion in determining the competence of an expert witness . . . that discretion was grossly abused in this case by the wholesale admission of the pseudo-science proffered by these witnesses."
Following a pre-trial hearing on the admissibility of the testimony of Drs. Cone and Thoman, the trial court found as follows:
I believe under Daubert, Foret, and all of the other Federal cases as well as Young, that [Drs. Cone and Thoman] can offer something, and I don't think they will be anymore confusing than experts normally are. And if you feel that their testimony isn't up to par as what you believe it should be[,] then as the cases say[,] we have cross examination.
All motions to exclude all experts are denied. Since they pass [the] Daubert case, when they take the stand I think they — I guess you can go through the qualifications but let's don't waste much time doing it.
At the conclusion of Lemaire's case, CIBA-GEIGY again moved to exclude the testimony of Drs. Cone and Thoman. The trial court denied the motion, stating that after "hearing the testimony of Dr. Thoman and Dr. Cone" and having conducted "an exhaustive research and study of the cases," its decision regarding the issue would remain the same.
The trial court has great discretion in determining whether to qualify a witness as an expert, and such discretion will not be disturbed on appeal in the absence of manifest error. Robinson v. Astra Pharmaceutical Products, Inc., 98-0361, 98-0362, p. 5 (La.App. 1 Cir. 3/31/00), 765 So.2d 378, 382, writ denied, 2000-1225 (La. 6/2/00), 763 So.2d 607.
Louisiana Code of Evidence article 702 sets forth the general rule for the admissibility of expert testimony in Louisiana:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court examined the admissibility of new techniques as a basis for expert scientific testimony. The Louisiana Supreme Court adopted Daubert, in State v. Foret, 628 So.2d 1116 (La. 1993), mandating state courts to follow the same standards established by Daubert for federal courts.
The Daubert court concluded that the trial court is to act in a gate-keeping function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. This requirement stems from a belief that the rules on expert testimony serve to relax "the usual requirement of first-hand knowledge" to ensure reliability on the part of a witness. This relaxation is justified so long as "the expert's opinion (has) a reliable basis in the knowledge and experience of his discipline." Foret, 628 So.2d at 1122 (citing Daubert, 509 U.S. at 590, 113 S.Ct. at 2796).
The reliability of expert testimony is to be ensured by a requirement that there be "a valid scientific connection to the pertinent inquiry as a precondition to admissibility." This connection is to be examined in light of "a preliminary assessment" by the trial court "of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue." Foret, 628 So.2d at 1122 (citing Daubert, 509 U.S. at 590, 113 S.Ct. at 2796).
Suggestions as to how a court could fulfill its gate-keeping role include whether or not the technique had been subjected to peer review and/or publication, the "known or potential rate of error," the existence of "standards controlling the technique's operation," the technique's "refutability" or, more simply put, testability, and, finally, an incorporation of the earlier jurisprudential rule of general acceptance in the scientific community as but one factor in the analysis. Foret, 628 So.2d at 1122 (citing Daubert, 509 U.S. at 590, 113 S.Ct. at 2797).
Other rules of evidence govern expert testimony, namely, the balancing test of La. Code Evid. art. 403, which excludes probative evidence if outweighed by its potential for unfair prejudice. Because there is a possibility that the expert's testimony can be quite misleading and prejudicial if this gate-keeping role is not properly satisfied, a flexible approach and a careful evaluation of the methodology surrounding the testimony and its conclusions is required.See Foret, 628 So.2d at 1122.
Louisiana Code of Evidence article 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
In exercising this gate-keeping function, the trial court properly conducted a preliminary hearing to determine the admissibility of the testimony of Drs. Cone and Thoman. After considering arguments from the parties, the trial court concluded that both Drs. Cone and Thoman qualified under the Daubert/Foret standards. We have thoroughly reviewed the evidence presented by the parties at the preliminary hearing as well as the actual testimony of these witnesses. We find no abuse of discretion in the trial court's decision to qualify Drs. Cone and Thoman as expert witnesses. Further, we are satisfied that the trial court complied with the requirements of Daubert/Foret in allowing Drs. Cone and Thoman to testify before the jury. Thus, this assignment of error is without merit.
DAMAGES
We now turn to CIBA-GEIGY's argument that the general damages awarded by the jury were grossly excessive and unsupportable by the jurisprudence. As previously indicated, the jury awarded Lemaire $428,200.00 in damages. This award represented the following components of damages:
Past Medical Expenses $8,200.00
Future Medical Expenses $150,000.00
Past, present and future physical injury, pain and suffering or aggravation of pre-existing condition $150,000.00
Past, present and future mental pain and suffering $50,000.00
Past, present and future fear of cancer $40,000.00
Past, present and future loss of enjoyment of life $30,000.00
Total Award: $428,200.00
CIBA-GEIGY argues that only $8,200.00 of this award represents actual damages and that the remaining $420,000.00 "apparently represents the jury's response to Lemaire's appeal to sympathy, and simply cannot be justified in light of the paucity of evidence offered in support of these items of damage." CIBA-GEIGY further contends that the awards for mental pain and suffering and loss of enjoyment of life are duplicative of the jury's award for physical pain and suffering. In response, Lemaire asserts that the trier of fact is accorded much discretion in fixing general damages and that the jury's award in this case is supported by the record.
It is well settled that the trier of fact has much discretion in awarding damages. La.C.C. art. 2324.1. The standard for appellate review of general damages is set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein the Louisiana Supreme Court stated that "the discretion vested in the trier of fact is `great,' and even vast, so that an appellate court should rarely disturb an award of general damages." The appellate court's first inquiry should be "whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the `much discretion' of the trier of fact." Youn, 623 So.2d at 1260. "It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award." Youn, 623 So.2d at 1261.
Lemaire testified at length about the physical and mental problems he has suffered since this incident. The first incidence of exposure-related symptoms that Lemaire endured was approximately two months after beginning the job at CIBA-GEIGY. Lemaire was hospitalized for four days with complaints of nausea, vomiting, diarrhea, headaches, and nostril burning. Lemaire was hospitalized again three months later with the same complaints. According to Lemaire's medical records, he has suffered from severe flank and kidney pain since his initial exposure at CIBA-GEIGY. Further, Lemaire has persistent proteinuria and hematuria, both of which have been attributed to his exposure to various chemicals at CIBA-GEIGY.
Lemaire stated that based on the information he has read concerning the effects of exposure to Atrazine and Galecron, he has developed a fear of cancer that has caused insomnia. Lemaire indicated that since 1988, he has averaged about three hours of sleep a night. He has been treated by a psychiatrist and has been prescribed sleeping pills and anxiety medication for his condition.
One of Lemaire's treating physicians, Dr. James Cone, testified regarding Lemaire's injuries. Dr. Cone, who is board certified in internal medicine and occupational preventive medicine, indicated that a cystoscope performed on Lemaire revealed no evidence of any lesions in the bladder or kidneys. Thus, he concluded, the bleeding Lemaire was complaining of was coming from above the bladder in the kidney area. Dr. Cone testified that based on what he had reviewed, he believed Lemaire had been exposed to both Atrazine and Galecron, or Chlordimeform, which is a known human carcinogen. It was a combination of the effects of these exposures that have caused Lemaire's health problems. Further, Dr. Cone indicated that if Lemaire was exposed to Galecron, such exposure would result in an increased risk of cancer. Dr. Cone opined that Lemaire's kidney problems should be monitored for the remainder of his life with medical check-ups approximately every six months. Dr. Cone added that if Lemaire's condition did not improve, it may be necessary for him to undergo a kidney biopsy in the future. Dr. Cone could not say with any certainty whether Lemaire would, in fact, need such a procedure or what costs would be associated with same.
Another expert called on behalf of Lemaire was Dr. Mark Edward Thoman, a board certified toxicologist. Dr. Thoman testified that he had reviewed Lemaire's exposure history and medical records and believed that Lemaire had been exposed to Atrazine and possibly Galecron. Dr. Thoman indicated that he, too, believed Lemaire's medical problems were associated with his exposure to these chemicals.
With regard to the award of $150,000.00 for future medical expenses, CIBA-GEIGY argues that it is purely speculative. We note that while future medical expenses must be established with some degree of certainty, such an award is by nature somewhat speculative. Martino v. Sunrall, 619 So.2d 87, 91 (La.App. 1 Cir.), writ denied, 621 So.2d 821 (La. 1993). After careful consideration of the record, we find no clear abuse of the jury's discretion in its award of $150,000.00 for future medical expenses. On review, we find the record supports the award, and we find no basis to upset the amount awarded.
Similarly, we will not disturb the jury's award for general damages. General damages are those which may not be fixed with any degree of pecuniary exactitude but that involve mental or physical pain and suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Angeron v. Martin, 93-2381, p. 3 (La.App. 1 Cir. 12/22/94), 649 So.2d 40, 43. This court has previously held that loss of enjoyment of life is a separate item of damages and independent from physical pain and suffering. See In re Medical Review Panel, 94-1661, p. 13 (La.App. 1 Cir. 6/23/95), 657 So.2d 713, 722.
Based on our review of the evidence contained in the record, we find sufficient evidence to support the jury's finding that Lemaire has suffered and will continue to suffer from the injuries he sustained as a result of this incident. We are satisfied that Lemaire's fear of cancer, anxiety, and insomnia are all reasonable given the fact that he was exposed to a known human carcinogen, Galecron, and Atrazine and its metabolites. While the damage award in this case may be on the high side, it is not so high as to constitute an abuse of the jury's vast discretion. Given the "particular injuries and their effects under the particular circumstances" on Lemaire, the jury's damage award is not beyond that which a reasonable trier of fact could assess. See Youn, 623 So.2d at 1260. CIBA-GEIGY's assignment of error regarding damages is without merit.
ALLOCATION OF FAULT
In its final assignment of error, CIBA-GEIGY argues that the jury abused its discretion in finding IT Corporation completely free of fault. Citing La.R.S. 23:13, CIBA-GEIGY contends that IT Corporation had a fundamental duty to provide its employees with a safe place to work. CIBA-GEIGY maintains that IT Corporation's failure to discharge this duty cannot be ascribed to it. Further, CIBA-GEIGY asserts that IT Corporation "was on equal footing with [CIBA-GEIGY] in its ability to determine what materials its employees might be exposed to, and to decide how best to protect its employees."
In response, Lemaire contends "[t]he knowledge about the contents in the pond was possessed by [CIBA-GEIGY], but was not shared with IT Corporation or its employees." According to Lemaire, he inquired as to the contents of the sand bed filter pond and was told by Murry McMillan, a chemical engineer employed by CIBA-GEIGY, that it was calcium carbonate sludge, or lime. Lemaire maintains that CIBA-GEIGY "is solely responsible for [his] injuries and damages because it expressly or impliedly authorized [him] to work with, and be exposed to, the contents of the Sand Bed Filter Pond without the proper safety gear and without running the appropriate tests to identify the chemicals to which he was being exposed so that he could take appropriate precautions."
Murry McMillan testified that it was his understanding that the waste in the sand bed filter ponds was nonhazardous. McMillan indicated that the waste stream contained waste associated with the production of Atrazine, which would obviously include Atrazine. McMillan also acknowledged that in the summer of 1976, CIBA-GEIGY was manufacturing Galecron at the St. Gabriel plant. According to McMillan, waste from the Galecron production unit was directed from storage tanks to the liquid incinerator, then into the incinerator pond, and finally into a ditch that led to the Mississippi River. McMillan stated that CIBA-GEIGY stopped manufacturing Galecron because there was some concern expressed about its possible carcinogenic effects.
McMillan testified that in 1984, he did not believe there was any possibility that there was Galecron in the sand bed filter ponds where Lemaire was working. In fact, an analysis taken from sand bed filter pond number two in 1982 reported Galecron as "N/D" or "none detected." McMillan indicated that both sand bed filter pond number two and sand bed filter pond number one, the pond in which Lemaire had been working, received the same waste material. He did, however, note that when he was advised that Lemaire had hematuria, it "raised a red flag" because he knew that Galecron had been associated with hematuria. Nonetheless, McMillan stated that he did not take any steps to determine if there was any Galecron in the sand bed filter ponds because he "didn't expect there to be any."
McMillan also indicated that Lemaire and other IT Corporation employees were allowed to eat, drink, and take rest breaks in the area where the sludge was being processed. This activity was allowed by CIBA-GEIGY even though there were other areas of the plant where the work areas and break areas were kept separate. McMillan further testified that Galecron was detected in the ditch that Lemaire had traversed several times.
Robert Babb, a chemist employed by CIBA-GEIGY at the time in question, testified that CIBA-GEIGY toxicologist and plant physicians had advised them to monitor their employees for hematuria and proteinuria as an indication of exposure to Galecron. The plant monitored urine samples of employees who worked in the Galecron unit or anyone who may have been exposed to it, even if in an incidental manner. It was Babb's understanding that Galecron was considered a carcinogen and was rapidly absorbed through the skin. According to Babb, hematuria and proteinuria had both been documented as being associated with exposure to Galecron. Babb agreed that Galecron was "renal toxic."
Jennifer Handy Bennett, a lab technician working for CIBA-GEIGY at the time in question, testified about CIBA-GEIGY's process of taking samples from various monitor wells in and around the plant and analyzing same. Bennett testified that the reports for monitor wells "M-1" and "M-2" revealed that there was Galecron in the monitor wells in 1983.
CIBA-GEIGY's Material Safety Data Sheets for both Atrazine (also called Atrazine Technical) and Galecron 4E (also called Chlordimeform) appear in the record. This information, however, was not provided to Lemaire or IT Corporation when they began the job at CIBA-GEIGY. With regard to Atrazine, the health hazard information is listed as follows:
EFFECTS OF OVEREXPOSURE:
Irritation of eyes, skin, nose or throat may result from overexposure to Atrazine Technical. If swallowed, nausea, vomiting or diarrhea can occur. Skin sensitization reactions may occur in sensitive individuals.
Long-term exposure to low levels of the material is not known to cause any ill effects in humans.
The heath hazard information for Galecron 4E is reported as follows:
EFFECTS OF OVEREXPOSURE:
Overexposure to Chlordimeform may affect the bladder, causing cystitis (inflammation) or hematuria (blood in the urine). Other symptoms may be nausea, vomiting, diarrhea, headache, dizziness, weakness, chills, fever, insomnia, nervousness, nosebleed or loss of appetite. A large single ingested dose has caused breathing difficulty, coma and death.
Galecron 4E is severely irritating to eyes. If swallowed, vomiting should be avoided as the petroleum solvent in this product, if drawn into the lungs, can cause chemical pneumonia.
It is well settled that the allocation of fault is a factual finding within the sound discretion of the trier of fact and is subject to the manifest error standard of review. Haydel v. Hercules Transport, Inc., 94-1246, p. 19 (La.App. 1 Cir. 4/7/95), 654 So.2d 418, 430, writ denied, 95-1172 (La. 6/23/95), 656 So.2d 1019. We have thoroughly reviewed the record in the instant case and conclude that it was within the jury's discretion to assign 100 percent of the fault to CIBA-GEIGY. Thus, this assignment of error lacks merit.
CONCLUSION
For the above and foregoing reasons, the judgment of the trial court is affirmed in all respects. All costs associated with this appeal are assessed against CIBA-GEIGY.
AFFIRMED.
Gonzales, J., respectfully dissents and assigns reasons.