Jerry Wayne Benoit v. Turner Industries Group, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1460

JERRY WAYNE BENOIT

VERSUS

TURNER INDUSTRIES GROUP, LLC

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 06-06963
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

AFFIRMED.

B. Scott Cowart
Sammie Maurice Henry
Taylor, Wellons, Politz & Duhe, APLC
7924 Wrenwood Boulevard - Suite C
Baton Rouge, LA 70809
Telephone: (225) 387-9888
COUNSEL FOR:
Defendant/Appellant - Turner Industries Group, LLC

Charles B. Cappel
Baggett, McCall, Burgess, Watson & Gaughan
P. O. Drawer 7820
Lake Charles, LA 70605-7820
Telephone: (337) 478-8888
COUNSEL FOR:
Plaintiff/Appellee - Jerry Wayne Benoit

THIBODEAUX, Chief Judge.

This is a workers’ compensation case. The employer, Turner Industries,

appeals a judgment in favor of the plaintiff’s widow, Marlene Benoit, which awarded

indemnity benefits as well as penalties and attorney fees in connection with Jerry

Wayne Benoit’s development of acute myeloid leukemia (AML) caused by exposure

to benzene.

In awarding benefits to Mrs. Benoit, the Workers’ Compensation Judge

(WCJ) found a causal link between Mr. Benoit’s exposure to benzene in the

workplace and AML.

Turner appeals. For the reasons below, we affirm the judgment.

I.

ISSUES

We must decide whether:

(1) the trial court erred in admitting the testimony of the
plaintiff’s expert witnesses, Dr. Frank Gardner and
Frank Parker;

(2) the trial court erred by concluding that Mrs. Benoit
met her burden of proof in establishing a causal link
between Mr. Benoit’s illness and his employment;

(3) the trial court erred in awarding penalties and
attorney fees to Mrs. Benoit; and,

(4) the trial court erred in finding that medical expenses
were due and owing in the amount of $625,168.27.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Benoit worked for Turner as a laborer for twenty-seven years. From

1979 to 1989, he worked primarily at the CITGO refinery in Lake Charles,

Louisiana.1 CITGO contracted with Turner to perform routine maintenance at the

facility such as cleaning the chemical muck, oily waste and chemical batch discharges

that accumulated in the sewers, ditches, and sump collection points throughout the

processing units. As a general laborer, Mr. Benoit’s duties included performing these

clean-up operations. Consequently, Mr. Benoit was routinely exposed to the

chemicals that collected in these areas. One chemical commonly found at the CITGO

facility and other similar facilities is benzene. Facilities such as CITGO frequently

monitor their employees for benzene exposure.2 Mr. Benoit became ill in July 2006.

He was diagnosed with AML shortly thereafter. Mr. Benoit requested compensation

from Turner under the Workers’ Compensation Act, alleging that he developed AML

because of his exposure to benzene during his employment with Turner at CITGO.

Turner refused Mr. Benoit’s claim, and Mr. Benoit filed the underlying lawsuit. After

his death, Mr. Benoit’s lawsuit was amended to a workers’ compensation benefits

claim for Mrs. Benoit.

After an almost four year delay,3 the matter was tried by the OWC. At

trial, the WCJ heard both deposition and live testimony from Mr. Benoit and from his

co-workers and family. The WCJ also heard testimony from two experts for the

plaintiff and one expert for the defense. Mr. Frank Parker, an industrial hygienist,

testified about the risks of overexposure to benzene, operations at facilities such as

CITGO, and symptomatic evidence of overexposure to benzene. Mr. Parker opined

that Mr. Benoit received significant exposure to benzene while working at CITGO.

1
The CITGO facility was previously known as Cities Service. For consistency, we refer to
the facility as CITGO throughout this Opinion.
2
Neither CITGO nor Turner maintained monitoring records for Mr. Benoit.
3
We attribute much of the unconscionable delay to Turner, who was less than forthcoming
in providing documentation to which Mr. Benoit was legally entitled to have. Specifically, Turner
was inexplicably unable to provide evidence documenting the quantity and duration of the benzene
levels to which Mr. Benoit was exposed.

2

Dr. Frank Gardner, an oncologist and hematologist, testified about the effects of

inhalation and dermal absorption of benzene and the causal link between benzene and

AML. Dr. Gardner opined that Mr. Benoit’s AML was more likely than not caused

by overexposure to benzene.

Dr. William Nasetta testified on behalf of Turner. Dr. Nasetta testified

that simply showing exposure to benzene, with no information on the amount and

duration of exposure, cannot lead to any reliable opinion on a causal link between

benzene and AML because other causes of AML exist. Moreover, Dr. Nasetta opined

that Mr. Benoit’s AML is likely not the type associated with benzene exposure

because Mr. Benoit had no evidence of the chromosomal abnormalities associated

with benzene exposure linked to AML.

In addition to the expert witnesses, the WCJ heard testimony from

several lay witnesses including the preservation deposition testimony of Mr. Benoit

before his death, the testimony of Mr. Benoit’s co-workers, and the testimony of Mr.

Benoit’s wife and daughters. All of the lay witnesses provided similar testimony

about the deplorable conditions in which Mr. Benoit worked, the physical effects Mr.

Benoit suffered as a result of his work, and the condition of his appearance when he

returned home from work.

After reviewing the matter, the WCJ awarded indemnity benefits as well

as penalties and attorney fees to Mrs. Benoit. It is from that judgment that Turner

appeals.

III.

LAW AND DISCUSSION

Standard of Review

We review the trial court’s factual judgments for manifest error.

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[A] court of appeal may not set aside a trial court’s
or a jury’s finding of fact in the absence of “manifest error”
or unless it is “clearly wrong,” and where there is a conflict
in the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its
own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

Moreover, we review a trial court’s decision to accept the testimony and

methodologies employed by an expert under the abuse of discretion standard.

Chearis v. State Dep’t. of Transp. and Dev., 03-0680 (La. 12/3/03), 861 So.2d 536.

Expert Witness Qualifications

Turner asserts that the WCJ erred by admitting the testimony of Mr.

Benoit’s two expert witnesses, Frank Parker and Dr. Frank Gardner. Turner

challenged the admissibility of the two plaintiff experts in a motion in limine and

renewed those objections during trial.4 Specifically, Turner alleges that Mr. Parker

relied on “old” data and did not employ a scientific methodology in reaching his

conclusion that Mr. Benoit was exposed to dangerously high levels of benzene.

Because Dr. Gardner based his opinion on Mr. Parker’s findings and, because in

Turner’s opinion, Dr. Gardner also used “old” data, Turner reasons that admission of

his testimony was erroneous, as well. Instead, Turner urges that its expert, Dr.

William Nasetta, possessed superior data and superior methodology and should have

been the only expert allowed to testify. We disagree with Turner’s position.

Admissibility of expert testimony in Louisiana is governed by La.Code

Evid. art. 702, which provides as follows:

4
Mr. Benoit argues on appeal that Turner’s objections should have been limited to its motion
in limine to exclude the experts, which was denied by the trial court and that Turner’s later Daubert
objections at trial were belated and therefore improper. While this may be true, we note that Mr.
Benoit’s counsel did not object at trial. Moreover, this point is moot because we find that the trial
court did not abuse its discretion in admitting Mr. Benoit’s experts.

4

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.

A district court has broad discretion in whether or not an expert’s

testimony is admissible and who should or should not be permitted to testify as an

expert. Chearis, 861 So.2d 536.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113

S.Ct. 2786 (1993), the United States Supreme Court developed a new standard to

assist district courts in evaluating the admissibility of expert testimony. The Daubert

court established several non-exclusive factors for considering the admissibility of

expert testimony:

(1) The “testability” of the scientific theory or technique;

(2) Whether the theory or technique has been subjected to
peer review and publication;

(3) The known or potential rate of error; and

(4) Whether the methodology is generally accepted in the
scientific community.

Chearis, 861 So.2d at 541.

“Moreover, determination of the admissibility of expert testimony under

La.Code Civ.P. art. 702 ‘turns upon whether it would assist the trier of fact to

understand the evidence or to determine a fact in issue.’” Chearis, 861 So.2d at 541-

42 (quoting Official Comment (c)). The party challenging the admissibility of the

expert witness has the burden of proving that Daubert factors were not met.

(1) Mr. Frank M. Parker

At trial, Mr. Benoit introduced the deposition of Frank Parker, who is

qualified as an expert in industrial hygiene, the science devoted to the determination
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of exposure levels in the workforce to substances including carcinogens such as

benzene. Mr. Parker has significant experience in this field. He worked as an

industrial hygienist for two large refineries, and he testified at trial in eleven cases

involving benzene, qualifying as an expert in all cases where he testified. Moreover,

Mr. Parker is extremely familiar with the CITGO facility where Mr. Benoit worked.

Having previously inspected the CITGO facility, Mr. Parker applied to his analysis

his personal knowledge of the facility, his work experience as an industrial hygienist,

and his personal knowledge of the many industrial hygiene studies performed by

CITGO regarding benzene exposure at the CITGO facility.

Mr. Parker based his expert exposure opinion on credible factual

accounts from witnesses, including Mr. Benoit, and on internal CITGO memoranda.

Contrary to Turner’s contention, Mr. Parker’s expert opinion was not based on

conjecture and speculation, but rather on years of direct experience and known factual

data. This factual information included: (1) descriptive accounts from Mr. Benoit

regarding his work conditions at CITGO; (2) descriptive accounts from Mr. Benoit’s

co-workers regarding the work conditions at CITGO; and, (3) numerous internal

CITGO memoranda regarding long-term benzene exposure problems at the facility.

Mr. Parker opined that Mr. Benoit’s work duties at CITGO exposed him

to hazardous levels of benzene.5 In doing so, Mr. Parker employed a methodology

of drawing on his own experience, analyzing witness testimony, and evaluating

internal CITGO memoranda. Despite challenging the admissibility of Mr. Parker’s

testimony and questioning the methodology employed, Turner fails to offer any

5
Turner argues that Mr. Parker’s expert opinion regarding Mr. Benoit’s benzene exposure
levels are unreliable because it is not supported by individual or area monitoring records. This court
notes, as did the WCJ, that Mr. Benoit’s counsel requested monitoring records from Turner on
numerous occasions. Turner was unable to produce monitoring records for Mr. Benoit. Thus, Mr.
Parker was forced to rely on his years of experience, factual accounts from Mr. Benoit and his co-
workers, and numerous internal memoranda regarding benzene exposure at CITGO to formulate his
expert opinion that Mr. Benoit was exposed to significant and hazardous levels of benzene.

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evidence that the methodology employed by Mr. Parker is unreliable and incorrect.

Instead, it merely states repeatedly that the methodology employed by its expert, Dr.

Nasetta, is reliable and correct. Turner’s position is nothing more than a “battle of

the experts” argument. Simply because Turner believes its expert is “right” does not

amount to an abuse of discretion by the WCJ in admitting the testimony of Mr.

Parker. Thus, we find that the trial court did not abuse its discretion in admitting the

testimony of Mr. Parker.

(2) Dr. Frank Gardner

Similarly, Turner challenges the WCJ’s admission of Dr. Frank

Gardner’s expert testimony. Turner reasons that because Dr. Gardner based his

opinion on Mr. Parker’s findings and because, in its opinion, Dr. Gardner did not

employ a proven methodology in reaching his findings, Dr. Gardner’s testimony

should have been excluded. We disagree.

Dr. Gardner is a medical doctor qualified as an expert in the fields of

oncology and hematology. Dr. Gardner has had extensive training and experience in

these fields over the course of fifty-five years. Dr. Gardner has written and

collaborated on numerous peer-reviewed articles, papers, and book chapters on the

subjects of oncology and hematology. Moreover, Dr. Gardner has testified as an

expert in oncology and hematology in numerous cases involving occupational

exposure to benzene.

Here, Dr. Gardner opined that Mr. Benoit’s occupational exposure to

hazardous concentrations of benzene was more likely than not the cause of Mr.

Benoit’s AML, which caused his death. To reach this conclusion, Dr. Gardner

utilized his personal experience and knowledge gained from similar benzene exposure

cases, and he methodically evaluated a variety of evidence including: (1) descriptive

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evidence of Mr. Benoit’s duties as a laborer at CITGO; (2) Mr. Benoit’s medical

records; (3) cytogenetic measurements; (4) witness testimony regarding the

conditions of the CITGO facility; (5) Mr. Parker’s expert opinion that Mr. Benoit was

exposed to hazardous levels of benzene; (6) numerous internal CITGO memoranda

concerning long-term benzene exposure problems at CITGO; and, (7) medical

literature and studies regarding occupational exposure to benzene.

Turner belabors the same points it made regarding Mr. Parker’s

testimony. Specifically, Turner argues that Dr. Gardner’s testimony was unreliable

because, in its opinion, the methodology and studies relied on by Dr. Gardner were

“old” and “outdated.” Turner states that the WCJ should have instead relied on the

methodology and studies of its expert, Dr. Nasetta. Again, Turner’s argument boils

down to a “battle of experts” and does not lead to a finding of abuse of discretion.

Moreover, Turner argues that the type of AML suffered by Mr. Benoit—type

M6—could not be caused by benzene exposure, as opined by Dr. Gardner. Turner’s

own expert, however, admitted that type M6 AML could be caused by overexposure

to benzene. Finally, Turner relies on its fall-back position that because Dr. Gardner

based his opinion, in part, on Mr. Parker’s findings, Dr. Gardner’s testimony is

inadmissible. Because we find that the WCJ did not abuse its discretion in admitting

the testimony of Mr. Parker, Turner’s argument is without merit.

Thus, after thoroughly reviewing the evidence and testimony presented,

we find no abuse of the WCJ’s wide discretion in its determination to accept the

expert testimony of Mr. Parker and Dr. Gardner.

Mrs. Benoit’s Burden of Proof

Turner asserts that the WCJ erred in concluding that Mrs. Benoit met her

burden of proving that her husband’s M6 AML was related to benzene exposure at

8

CITGO. The WCJ’s findings of fact are reviewed under the “manifest error” or

“clearly wrong standard.” Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879

So.2d 112, 117. We cannot disturb the WCJ’s findings of fact as long as they are

reasonable and supported by the record. Id. The WCJ’s findings as to whether the

claimant has met his burden of proof are factual and cannot be disturbed on review

unless clearly wrong or manifestly erroneous. Stutes v. Koch Services, Inc., 94-782,

p. 4 (La.App. 3 Cir. 12/7/94), 649 So.2d 987, 990, writ denied, 95-846 (La. 5/5/95),

654 So.2d 335.

In analyzing causation, “[t]he initial question is factual, i.e. whether the

plaintiff sustained an occupational disease resulting from causes and conditions

characteristic of and peculiar to his particular occupation, process, or employment.”

Stutes, 649 So.2d at 990. The plaintiff need not prove the causal connections with

absolute certainty but instead must only show the cause of his illness or disability

with reasonable certainty. Id.

In this case, the WCJ found Mrs. Benoit had proven by a preponderance

of the evidence the causal relationship between her husband’s disease and his

employment.

The WCJ first considered the testimony of all testifying experts in the

case—Dr. Frank Gardner, Mr. Frank Parker, and Dr. William Nasetta. Dr. Gardner,

relying on the expert opinion of Mr. Parker as well as other data, concluded that Mr.

Benoit’s illness was more likely than not caused by Mr. Benoit’s exposure to

hazardous levels of benzene while employed by Turner at the CITGO facility.

Though Dr. Gardner never personally examined Mr. Benoit, for the obvious reason

that Mr. Benoit was deceased, he relied on the information provided to him about Mr.

Benoit’s work, as well as his own knowledge about the effects of overexposure to

benzene, to detail the causal connection between the chemicals and the leukemia.
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Specifically, Dr. Gardner discussed in detail the significant exposure to benzene that

would most likely occur when an individual was engaged in the work of cleaning out

sewers, pumps, and ditches at a chemical plant. Dr. Gardner pointed out that Mr.

Benoit likely both inhaled benzene and absorbed it through the skin.

Dr. Gardner explained that strong scientific evidence suggests that

intermittent high levels of benzene enhance the risk of leukemia. Dr. Gardner

repeatedly stressed that all of the factors involved, including the type of work, type

of environment, and type of climate, combine to make it more probable than not that

Mr. Benoit’s AML was caused by overexposure to benzene.

The WCJ also carefully considered Mr. Parker’s testimony. Mr. Parker

explained that the scientifically-accepted peak standard for benzene is five parts per

million. Any exposure beyond that level fosters concern. He noted that an individual

can smell benzene when its concentration reaches sixty parts per million, and

symptomatic responses to benzene, such as headaches, nausea, and dizziness, all

symptoms exhibited by Mr. Benoit, start around one thousand parts per million.

When asked directly, Mr. Parker unwaveringly concluded that Mr. Benoit more likely

than not received significant exposure to benzene.

Mr. Parker explained that he arrived at that conclusion by referring to

data that had been gathered by a variety of sources, including the refinery itself, as

well as analyzing the testimony regarding Mr. Benoit’s physical symptoms prior to

becoming ill with AML.

In rebuttal, Turner presented the testimony of Dr. William Nasetta. Dr.

Nasetta testified that he could not be absolutely certain as to the exact cause of Mr.

Benoit’s AML, but he saw no evidence linking Mr. Benoit’s illness to benzene. Dr.

Nasetta believes that for a physician to prove that benzene exposure in the workplace

caused leukemia, the physician must know the rate and length of exposure to the
10

chemical. Dr. Nasetta proclaimed that he saw no causal link between Mr. Benoit’s

benzene exposure and his AML, but he could not definitively state that type M6 AML

could not be caused by overexposure to benzene.

The WCJ weighed the credibility of the experts and clearly assigned

more weight to Dr. Gardner’s and Mr. Parker’s testimony. Indeed, the WCJ

glowingly described Dr. Gardner as “sure-footed” and “unwavering.” He stated that

Dr. Gardner does not appear to fall into the category of a “hired physician,” and he

“appeared to concentrate on explaining his views, not merely selling or promoting

them.” Similarly, the WCJ described Mr. Parker’s methodology, research, and

reasoning as “even-handed, scholarly, and rational.” Moreover, the WCJ stated that

“[Dr. Parker’s] testimony never created the impression that he was simply broad-

siding and blindly attacking the petroleum refining industry.” In contrast, while not

criticizing Dr. Nasetta directly, the WCJ criticized Turner’s defense of the case as

“rigid and uncompromising” and as containing a “gap in . . . logic.” Clearly, the WCJ

found Mr. Benoit’s experts to be more credible, and we find no manifest error in that

decision.

Moreover, compelling lay testimony buttressed the expert testimony in

this case. The WCJ heard testimony from Mr. Benoit’s co-workers regarding the

disgusting and arguably hazardous conditions he faced at CITGO. The descriptions

of the chemical muck and noxious smells he encountered during his employment

painted a vivid picture for the WCJ and for us. Similarly, Mr. Benoit’s family

members testified about the greasy, grimy, and smelly state their husband and father

returned home in each day. They testified that he had frequent headaches and

dizziness and, on occasion, vomited after returning home from work. Their

testimony, too, provided the WCJ with a clear view of Mr. Benoit’s working

environment. He judged their testimony as credible, and again, we find no manifest
11

error in that determination. The WCJ was not clearly wrong in his determination that

Mrs. Benoit established the causation of her husband’s occupational disease by a

reasonable probability.

Penalties and Attorney Fees

Turner next challenges the WCJ’s award of penalties and attorney fees

in this matter. The WCJ found that Mrs. Benoit was entitled to penalties and attorney

fees for Turner’s failure to pay indemnity benefits to Mr. Benoit while he was alive

and its failure to pay indemnity benefits to Mrs. Benoit following Mr. Benoit’s death.

An employer is liable for statutory penalties for withholding benefits

without evidence to “reasonably controvert” the employee’s right to compensation

and medical benefits. La.R.S. 23:1201. Section 1201(B) provides a specific time

requirement for the first installment of compensation to be paid. Specifically, it

provides that the first installment is due on the fourteenth day after the employer or

insurer has knowledge of the claimant’s injury or death. We review the WCJ’s

decision to award penalties and attorney fees under the manifest error/clearly wrong

standard. Scott v. City of Pineville, 08-1410 (La.App. 3 Cir. 4/1/09), 8 So.3d 813,

writ denied, 09-981 (La. 6/19/05), 10 So.3d 742.

Here, Turner had countless pieces of evidence to support Mr. Benoit’s

claim that his AML was caused by his occupational environment. Specifically, in

2006, Mr. Benoit was diagnosed with AML, rendering him disabled. He filed a claim

for benefits, which Turner denied. In 2007, his preservation deposition was taken.

At his deposition, Mr. Benoit placed Turner on notice of the following facts: (1) he

worked in deplorable conditions at CITGO; (2) he was exposed to oil, chemicals, and

hazardous waste during his employment; and, (3) he frequently suffered from

dizziness and nausea while on the job. At this point, Turner could have begun

12

benefits or made an effort to “reasonably controvert” Mr. Benoit’s claim that his

illness was linked to his occupational environment. Instead, Turner did nothing. Mr.

Benoit died in November 2007. In March 2008, Mr. Frank Parker prepared his expert

report and opined that Mr. Benoit was overexposed to benzene while employed by

Turner at CITGO. Again, Turner did nothing. One month later, in April 2008, Dr.

Frank Gardner prepared an expert report which stated that it was more probable than

not that Mr. Benoit’s AML was caused by his workplace environment. Turner took

no action. On July 15, 2008, Mr. Benoit’s co-workers were deposed and corroborated

Mr. Benoit’s testimony. Shortly thereafter, counsel for Mrs. Benoit provided Turner

with hundreds of internal documents from CITGO that further substantiated the

evidence of Mr. Benoit’s overexposure to benzene. Still, however, Turner paid no

benefits to Mrs. Benoit nor did it take any action to “reasonably controvert” Mr.

Benoit’s claims. Indeed, Turner’s expert, Dr. William Nasetta, did not issue his

report until October 30, 2008.

The record supports the WCJ’s factual determination that Mr. Benoit,

and later Mrs. Benoit, provided sufficient factual information to support a claim for

workers’ compensation benefits. Moreover, the record indicates that Turner took no

action to reasonably controvert the claim for benefits. Thus, we find that the WCJ did

not manifestly err in awarding penalties and attorney fees in this matter.

Medical Expenses

Turner asserts that the WCJ erred in finding that medical expenses were

due and owing in the amount of $625,168.27. The WCJ reviewed evidence that

Medicaid paid the medical expenses and asserted a lien of $203,124.68. Pursuant to

La.R.S. 23:1212(B), payments by Medicaid do not extinguish the claim, and

payments are subject to recovery by the state from the employer. Louisiana Revised

13

Statutes 23:1212(B) does not prevent payment of medical expenses to the claimant.

The statute merely limits the parties upon whom the state may assert a claim for the

lien amount. Again, it does not dictate to whom the payment should be made. Turner

has cited no statutory or codal authority that prevents awarding the full amount of the

medical expenses to Mrs. Benoit. Thus, we find that the WCJ’s award of

$625,168.27 to Mrs. Benoit was not manifestly erroneous and was legally correct.

IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of WCJ. Costs of this

appeal are assessed to Turner.

AFFIRMED.

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