Alfred Watts and Rosa Lee Watts VS Georgia-Pacific Corp. (Individually and as Successor to Bestwall Gypsum Company); Metropolitan Life Insurance Company; Foster Wheeler Energy Corporation; Minnesota Mining and Manufacturing Company (a/k/a "3M"); North American Refractories Company; General

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0620 ALFRED WATTS AND ROSA LEE WATTS VERSUS PACIFIC GEORGIA CORP INDNIDUALLY AND AS SUCCESSOR TO BESTWALL GYPSUM COMPANY METROPOLITAN LIFE INSURANCE COMPANY FOSTER WHEELER ENERGY CORPORATION MINNESOTA MINING AND MANUFACTURING COMPANY A 3M K NORTH AMERICAN REFRACTORIES COMPANY GENERAL REFRACTORIES COMPANY HARBISON REFRACTORIES WALKER COMPANY FORMERLY A DIVISION OF INDRESCO INC UNIROYAL INC SUCCESSOR TO U RUBBER COMPANY THE MCCARTY S CORPORATION RAPID AMERICAN CORPORATION ET AL Judgment Rendered EP 1 6 2013 APPEALED FROM THE EIGHTEEN JUDICIAL DISTRICT COURT NUMBER 55 THE PARISH OF IBERVILLE 941 STATE OF LOUISIANA THE HONORABLE JAMES J BEST JUDGE e Denyr F Clancy y Linds Goldstein Baton Irouge Louisiana Attorneys for Plaintiffs Appellees H Alston Attorneys for Defendants Appellants Hebert Brothers Engineers Inc Johnson Daina Bray III Alfred Watts Rosa Lee Watts et al Baton Rouge Louisiana BEFORE KUHN PETTIGREW AND McDONALD JJ Dispositimn AMENDED AND AS AMENDED AFFIRMED y c e KLJFIN J appellant Defendant Hebert Brothers Engineers Inc Hebert Brothers appeals the trial court judgment awarding to plaintiffs Rosa Lee Watts s appellees and her children the Watts the survival action damages of the decedent Alfred Watts after his death from lung cancer contracted as a result of his employment with Hebert Brothers on the Dow Chemical Company Dow premises located in Plaquemine Louisiana We amend the judgment to reflect Hebert Brothers virile portion and as amended affirm FACTUAL AND PROCEDURAL BACKGROUND Alfred began working as a laborer for Hebert Brothers in 1963 in the cell service unit of the chlorine plant at the Dow premises In conjunction with the manufacturing process in the chemical plant Alfred and his coworkers were required to handle asbestos In 1994 after his voice box was removed as a result of laryngeal cancer Alfred retired from Hebert Brothers In the summer of 2001 Alfred was diagnosed with lung cancer from which he died on October 31 2001 Although this lawsuit filed on September 10 2001 named as defendants numerous entities including those who had manufactured ar distributed asbestos as well as Dow in its capacity as premises owners Hebert Brothers was not made a Although this corporate entity has had several predecessors Hebert Brothers Engineers Inc is the undisputed proper party defendant z The lawsuit was instituted by Alfred and his wife Rosa Lee After Alfred death the trial s court signed an order subsrituting as party plaintiffs Rosa Lee in hex capacity as Alfred s surviving spouse as well as Helen Mallion Gwen Burnstein Joyce Watts and Alfreda Watts who are Alfred ssurviving children 3 On April 21 2004 the trial court granted summazy judgment and dismissed the Watts claims of intentional tort wrongful death and loss of consortium Writs were subsequently denied by this court Watts v Georgia Corp 2004 La App lst Cir 6 unpublished Pacifu ll86 04 7 writ action and the Louisiana Supreme Court 2004 La 10 883 So 1018 At the 1705 04 2d trial on the merits the VJatts conceded that their recovery was limited to Alfred survival acrion s only On appeal the Watts have raised no contentions regarding entitlement to any other type of damages Accord Rando v Anca Insulations Inc 2008 La 5 16 So3d 1065 1163 09 22 1071 concluding that a worker stort claim against lus employer for asbestos cancer was caused not barred by the exclusive remedy provision of the Louisiana Workers Compensation Act under the pre version of the act 1975 2 party to the lawsuit until the Watts filed a supplemental petition on August 29 2003 Subsequently the Watts dismissed all the other named defendants from the lawsuit including Dow which was dismissed by an order signed on September 3 2003 Thereafter the matter proceeded to trial against Hebert Brothers A seven jury trial was held day After the presentation of evidence the Watts moved far a directed verdict arguing among other things that there was no evidence of the fault of any entity other than Hebert Brothers denied relief The trial court Hebert Brothers then moved for a directed verdict urging that because the Watts had not put on any evidence of the fault of anyone other than ostensibly that of Hebert Brothers the Watts claims were prescribed Emphasizing that the jury was impaneled and almost ready to deliberate the trial court denied Hebert Brothers motion for a directed verdict expressly noting that its ruling was not based on the merits of the request Although the trial court granted leave for Hebert Brothers to seek supervisory writs the jury was charged and retired After deliberations the jury rendered a verdict finding that Hebert Brothers was negligent and that its negligence was a substantial factor in causing both s Alfred laryngeal and lung cancers The jury also found that Alfred despite having been a heavy cigarette smoker who regularly consumed alcohol until the removal of his voice box in 1994 was not contributorily negligent in causing either of his cancers Damages totaling 3 00 000 625 were awarded to the Watts for s Alfred survival action Prior to entry of a final judgment the trial court granted Hebert Brother s motion to stay the proceedings while the issue of prescription was under supervisory review This court subsequently issued a ruling stating WRIT GRANTED IN PART DENIED IN PART REMANDED WITH INSTRUCTIONS The documents presented to this Court indicate that while the trial court denied Hebert Brothers motion 3 for directed verdict on the basis of prescription which issue was initially raised in Hebert Brothers answer it did not consider the merits of that motion Neither does it appear that the issue of prescription was presented to the jury for its consideration Under the particular circumstances presented here the application is hereby granted insofar as the case is remanded to the trial court with instructions to consider and rule on the merits of Hebert Brothers assertion that the Watts claims against it have prescribed and then to render a final judgment Thereafter the party or parties ultimately aggrieved by the judgment can seek a timely appeal with this Court In all other respects the application is hereby denied Watts v Pacific Georgia Corp 2005 La App 0933 lst Cir 6 05 17 unpublished writ action A hearing was held on the remand after which the trial court concluded that the Watts claims against Hebert Brothers were not prescribed A final judgment incorporating the jury verdict was signed on June 2 20ll and Hebert Brothers s timely appealed On appeal Hebert Brothers asserts the trial court erred by 1 concluding that the Watts claims were not prescribed 2 failing to render a judgment that limited Hebert Brothers liability to its virile share and 3 awarding an excessive amount of damages for Alfred ssurvival action in connection with his lung cancer PRESCRIPTION It is undisputed that when Hebert Brothers was made a defendant in the Watts lawsuit over a year had elapsed from the date of Alfred death Thus on s the face of the pleadings the Watts claims were prescribed But when prescription is interrupted against a solidary obligor the interruption is effective against all solidary obligors and their successors See La C art 3503 see also At the hearing held as a result of this court sremand order the parties argued over whether the matter was before the trial court as a directed verdict or an exception of prescription The distinction azose because if the trial court treated the issue of whether the Watts claims were timely asserted as an exception of prescription additional evidence was admissible under La P C art 931 Although the Watts additional evidence was admitted by the trial court in an abundance of caution that evidence is not contained in our record On appeal the Watts maintain that the evidence admitted at the trial on the merits established the timeliness of their claims Thus on review it is unnecessazy to classify the procedural basis for consideration of the timeliness of the Watts claims and we pretermit such a discussion 4 La C art 1799 the interruption of prescription against one solidary obligor is effective against all solidary obligors and their heirs Hoefly v Government Employees Ins Co 418 So 575 577 La 1982 plaintiff timely and Zd 78 s properly filed suit against tortfeasors interrupted prescription as to his uninsured motorist carrier who was solidarily liable to him Hebert Brothers urges that the record is devoid of any evidence that establishes a solidary relationship between it and another timely sued defendant An obligation is solidary far the obligors when each obligor is liable for the whole performance A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee La C art 1794 For purposes of prescription parties are solidarily liable to the extent that they share coextensive liability to repair certain elements ofthe same damage Glasgow u PAR Minerals Corp 2010 La 5 70 So3d 765 772 2011 11 10 Without levying any claims challenging the jury conclusions that Hebert s Brothers was a substantial factor in causing Alfred laryngeal and lung cancers or s that Alfred was not contributorily negligent in causing his cancers in this appeal Hebert Brothers asserts that the record fails to establish Dow liability so as to s create the necessary solidary relationship to support the trial court conclusion that s the Watts claims were timely asserted Thus in order to prove the solidary relationship between Hebert Brothers and Dow the Watts had to prove Dow s liability s Dow Liability It is undisputed in this case that it was the Dow premises upon which all manufacturing operations occurred and included Alfred handling of asbestos s With regard to a long occupational disease claim the law in effect at the latency time of the exposure applies See Cole v Celotex Corp 599 So 1058 1066 2d La 1992 Thus in our examination of the record to ascertain whether pow was 5 liable under a theory of strict liability see La C art 2317 the limitations imposed on strict premises liability set forth in La C art 2317 added by 1 Louisiana Acts 1996 lst Ex No 1 1 are not applicable Sess In a typical negligence case against the owner of a thing such as a manufacturing facility that utilizes asbestos in its process that is actively involved in the causation of injury the claimant must prove that something about the thing created an unreasonable risk of injury which resulted in the damage that the owner knew or should have known of that risk and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing Under traditional negligence concepts the knowledge actual or constructive gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm See Kent x GulfStates Utilities Co 418 2d So 493 497 La 1982 In a strict liability case against the same owner the claimant is relieved only of proving the owner knew or should have known of the risk involved The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage i must prove the thing e was defective The resulting liability is strict in the sense that the owner duty to s protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk the factor which usually gives rise to a duty under negligence concepts Under strict liability concepts the mere fact of the owner relationship with and responsibility for the damage thing s causing gives rise to an absolute duty to discover the risks presented by the thing in custody If the owner breaches that absolute duty to discover he is presumed to have discovered any risks presented by the thing in custody and the owner 6 accordingly will be held liable for failing to take steps to prevent injury resulting because the thing in his custody presented an unreasonable risk of injury to another Kent 418 So at 497 2d Accardingly in a strict liability case in which the claimant asserts that the s causing owner damage thing presented an unreasonable risk of harm the standard for determining liability is to presume the owner knowledge of the risk s presented by the thing under his control and then to determine the reasonableness according to traditional notions of blameworthiness of the owner conduct in s the light ofthat presumed knowledge Ir The evidence introduced at trial established that Dow was the owner of the asbestos that Hebert Brothers employees utilized in their day operations in to the cell service unit of the chlorine plant on Dow premises Charles Snearl who s worked far Hebert Brothers at the Dow facility from 1972 through 1988 primarily as a foreman testified that the orders on what day tasks were undertaken to came from Dow the workers used Dow equipment and Dow provided the asbestos which was utilized in the cell service unit Sirkil Pania worked for Hebert Brothers at Dow from 1957 through 1996 He was assigned to Dow cell s service unit from 1957 through 1972 and warked as a laborer with Alfred from 1963 through 1972 Pania testified that he and Alfred did the same type of tasks on a daily basis In conformity with Snearl Pania tesrified that all the asbestos utilized by Alfred and him was provided by Dow Omer King Hebert the present owner and president of Hebert Brothers stated that no one could get on Dow s premises without Dow permission Hebert Brothers workers did whatever pow s told them to do and Dow was in charge of everything at the facility Hebert testified W relied e what dangers they on Dow I mean it was their fJacility They knew had and didn have and t uidelines gand directions 7 we always just went by their There is really no dispute in this case that asbestos is a substance that creates an unreasonable risk of harm when inhaled The testimony of nearly every witness who worked on Dow premises Dr Antonio Edwards Alfred treating physician s s who diagnosed the lung cancer and Dr Alfredo Suarez the pathologist who performed the autopsy on Alfred along with the testimony of Dr Richard Lemen an expert in epidemiology and industrial hygiene Dr Arnold Brody Dr Jerrold Abraham and Dr Travis Harrison experts in pathology and Dr Robert Jones an expert in pulmonary disease established that asbestos was a substance that created an unreasonable risk of harm While the views of the expert wimesses reflected differing opinions on whether Alfred lung cancer was a result of a significant s exposure to asbestos his longtime heavy cigarette smoking or the synergistic effect of the two factors none disagreed with the dangerous propensities of asbestos when inhaled and on appeal Hebert Brothers does not suggest that asbestos inhalation in significant quantities is anything other than an unreasonable risk of harm Thus we turn our attention to the reasonableness of Dow conduct in the s light of its presumed knowledge of the risk presented by the asbestos which was under its control Hebert Brothers presented evidence of the safety measures Dow undertook to protect both its own workers and those employed by Hebert Brothers from the dangers presented by the inhalation of significant quantities of asbestos Both Snearl and Hebert testified about the extensive protocols in place at the Dow facility certainly no later than the 1980s But Snearl who testified that workers had safety equipment including some sort of respirator on them the entire time they worked in facility until the asbestos 1972 vat did not commence his employment at the Dow And Hebert conceded that during his early part time employment as an assistant timekeeper in 1972 he was not usually in the cell 8 service unit of the chlorine plant just on occasions and that he would use whatever safety precautions he observed workers in the unit undertaking Pania however described in detail the significant asbestos exposure that he and Alfred experienced as laborers working for Hebert Brothers at the Dow facility between 1963 and 1972 on a daily basis when no protective gear was provided According to Pania in putting cells together in the chlorine plant a crew would go into a railroad box car and load sacks of raw asbestos off the car and onto a pallet One worker would bring the pallet out with a forklift and another would begin stacking the individual sacks Occasionally a sack would bust open in the railroad car or when it was in transit Once opened the vicinity became dusty Each sack of asbestos weighed approximately 100 pounds When asbestos was needed in the building cell process a laborer including Pania and Alfred would get a couple sacks cut each open with a knife and dump the raw asbestos into a vat for mixing A ceiling fan would stir up the asbestos dust that was created upon dumping Additionally part of the cell process included use of an asbestos rope that making created dust when pounded into place The laborers were also exposed to asbestos dust in the cell breakdown process which required use of a hatchet to physically remove baked asbestos a process that also created dust as well as in the clean on up process of the asbestos debris which included sweeping the displaced asbestos particles into piles Pania acknowledged that beginning in 1974 Dow began conducting annual physical exams had a physician on the premises and performed chest x But rays he stated that between 1963 and 1972 no one ever told him of the dangers of asbestos exposure there were no posted warning signs he was not advised either to wear a respiratar to protect himself from asbestos fibers or of the heighten danger created by asbestos inhalation and cigarette smoking 9 Given Pania undisputed testimony about the lack of any safety precautions s in the Dow facility between 1963 and 1971 we find a reasonable factual basis exists to support the trial court implicit finding that Dow is liable based on a s theory of strict custodial liability under La C art 2317 before Louisiana Acts 1996 lst Ex No 1 1 Specifically Pania testimony established that as a Sess s laborer between 1963 and 1972 Alfred inhaled significant quantities of asbestos Dow owned the asbestos which was unreasonably dangerous and the inhalation occurred on Dow premises and Dow failed to take reasonable steps to prevent s his injury As such there is no manifest error See Slobart u State Dep of t Transp and Dev 617 So 880 882 La 1993 2d 83 Hebert Brothers complains about the Watts having moved for a directed verdict averring after the close of evidence that there was no evidence of fault of any entity other than Hebert Brothers and then took the exact opposite position after Hebert Brothers moved for a directed verdict on the issue of the timeliness of their claims against it While we do see the irony of the changed positions the Watts argued before the trial court arguments of counsel are not evidence Importantly the trial court denied the Watts motion for a directed verdict on that 5 In issuing its ruling on remand the trial court stated that as fact finder it finds substantial evidence of Dow s solidary liabil Hebert Brothers maintains the trial court applied the ty wrong standard of proof to find that the Watts had proven Dow solidazy liability and suggests s that this consfituted legal error that interdicted the fact finding process Proof by a preponderance of the evidence means that taldng the evidence as a whole such proof shows that the fact ar cause sought to be proved is more probable than not Connelly u Connelly 94 0527 La App lst Cir 10 644 So 789 798 It is asiomatic that proof by substantial 94 7 2d evidence is necessarily a heightened standard While we agree with Hebert Brothers suggestion that the applicable standard of proof in this case is pxeponderance of the evidence we question whether the trial court actually applied a heightened burden of proof Even so any such error did not and could not have prejudiced Hebert Brothers Thus this assertion is without merit 6 We note moreover that the record also supports a finding of Dow liability based on s negligence Because there is an almost universal duTy to use reasonable care to avoid injury to another see Rando u Anco Insulalions Inc 2008 La 5 16 So 1065 1086 1163 09 22 3d 94 s Dow custodial liability falls within the ambit of such a broad duty and this record contains evidence to support findings that Alfred experienced significant exposure to asbestos he received an injury substantially caused by that exposure Dow failure to use reasonable care to s avoid injury was a cause i a substantial factor in generating Alfred harm and the fact in e s risk that he would develop laryngeal and lung cancers was one within the scope of Dow duty s 10 basis implicitly finding that evidence of other entities fault existed Moreover we point out by analogy that altemative assertions are frequently advanced in the 1ega1 conteat Indeed our system of pleading permits parties to assert alternative theories of liability See La C art 892 a petition may set forth two or more P causes of action in the alternative even though the legal or factual bases thereof may be inconsistent or mutually exclusive There is no prejudice shown by Hebert Brothers and the legal effect of the Watts inconsistent arguments are of no moment in our appellate review Accordingly there is no error in the trial court determination that Dow s s liability was proven by the evidence admitted a trial Thus a solidary relationship existed between Hebert Brothers and Dow a timely sued defendant and the trial court correctly concluded that the Watts claims were timely VIRILE SHARE The trial court incorporated the jury verdict awarding damages to the s Watts without reducing the percentage of fault attributable to Dow that it found after the jury verdict on remand from this court was a proven co of s obligor Hebert Brothers Because the record establishes without dispute that Alfred inhaled significant quantities of asbestos between 1963 and 1971 prior to the enactment of Louisiana Comparative Fault Law the case is governed by prior law and virile share principles apply See Cole v Celotex Corp 599 So at 1072 2d 74 We find no merit in Hebert Brothers contention that the VJatts failed to sufficiently plead a solidary relationship between it and since Dow was no longer a defendant at the time the Dow Watts filed the supplemental petition that added Hebert Brothers the supplemental allegations did not include any averred liability on Dow part and therefore the Watts blanket s allegations of the solidary relationship of all the defendants could not have included Dow Un objected to evidence of issues not contained in the pleadings that is admitted at trial serves to enlarge the pleadings Such evidence is treated in all respects as if it had been raised by the sHopkins v American Cyanamid Co 95 La 1 666 So 615 623 pleading 1088 96 16 2d 24 citing La C art 1154 Because the record contains evidence that supports a solidazy P relationship between Hebert Brothers and Dow which was admitted wobjection we find thout no merit in this contention 8 See La Acts 1979 No 431 11 On appeal the Watts suggest that because the jury was not asked to determine whether pow bore any fault Hebert Brothers waived entitlement to a reduction for pow virile share s But neither the Watts nor Hebert Brothers requested that Dow fault be resented to the jury Thus both Hebert Brothers s and the Watts waived their rights to have the jury resolve the issue See La C P art 1812A if the court omits any issue of fact raised by the pleadings or by the evidence each party waives his right to a trial by jury of the issue Some issues may be tried by a jury while others in the same trial may be decided by the judge See Char v American Southern Ins 295 So 437 La 1974 Under zpagne Co 2d the particular facts ofthis case we find no error in the resolution of Dow liability s by the trial judge A plaintiff release of a joint tortfeasor reduces the amount recoverable s against the remaining tortfeasors by the amount of the virile share pro rata share of the one released Raley u Carter 412 So 1045 1046 La 1982 2d Nonetheless the remaining tortfeasor is only entitled to a reduction of the award if the parties released are proven to be joint tortfeasors Thus a pre settlement trial shifts the burden of proving liability on the part of the released tortfeasors from the plaintiff to the remaining defendant or defendants Raley 412 So at 1047 2d At the commencement of trial the Watts read into the record the names of thirteen defendants including Dow who had settled with them Because the respective liability of the settling defendants was not established on the record the judgment cannot be reduced to reflect their respective pro rata shares But we have found no manifest error in the trial court determination that Dow was at fault in s causing Alfred injuries s Since the record reflects Dow fault the trial court s erred in failing to attribute one the damages to Dow and reduce the total half damages awarded to the Watts against Hebert Brothers by one Accardingly half 12 we amend the judgment to award to the Watts one their total damages half reflecting Hebert Brothers virile share QUANTUM In its final challenge of the trial court judgment Hebert Brothers maintains s that the general damages award for Alfred lung cancer is beyond what a s reasonable trier of fact could assess and suggests the amount should be reduced Thus without challenging the awards made by the jury for Alfred laryngeal s cancer Hebert Brothers urges that jury award of 2 consisting of s 00 000 750 00 000 750 far physical pain and suffering 1for mental anguish 00 000 000 and 1 for loss of enjoyment of life for the lung cancer from which 00 000 000 Alfred died was excessive In its appellate brief Hebert Brothers provides us with a series of reported cases that it contends are most similar to the Watts and asserts that 2is the maximum amount the jury could have awarded without 00 000 000 abusing its discretion The trial court determination of the amount of an award of damages is a s finding of fact The Civil Code provides that i the assessment of damages in n cases of offenses quasi offenses and quasi contracts much discretion must be left to the judge or jury La C art 2324 Under the manifest error standard in 1 order to reverse a trial court determination of a fact an appellate court must s review the record in its entirery and 1 find that a reasonable factual basis does not exist for the finding and 2 further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous On review an appellate court must be cautious not to re the evidence or to substitute its own factual weigh findings just because it would have decided the case differently Mareover the initial inquiry must always be directed at whether the trier court award for the s particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact great discretion It is only after articulated analysis of s 13 the facts discloses an abuse of discretion that the award may on appellate review for articulated reason be considered excessive Only after such determination of abuse has been reached is a resort to prior awards appropriate for purposes of then determining what would be an appropriate award for the present case However absent an initial determination the trial court very great discretion in the award of s general damages has been abused under the facts of this case the reviewing court should not disturb the trier award Rando v Anco Insulations Inc 2008 s ll63 La 5 16 So3d 1065 1093 09 22 94 Our review of the record shows no abuse of the jury vast discretion s Alfred was 69 years old when he was diagnosed with lung cancer in July 2001 Although he had suffered from aryngeal cancer and could no longer speak after the removal of his voice box Alfred recovered fairly well from the surgery and regained his animated personality To communicate he wrote things down read lips used hand gestures and clapped Once he was diagnosed with lung cancer Alfred was in denial He could no longer walk stand eat or do anything for himself Alfred grown daughters had to put diapers on him and feed him with a s syringe Someone had to turn him over every two hours To see his doctor he could no longer stay upright in a wheelchair so he had to be transported by ambulance According to Dr Edwards Alfred treating physician beginning in 2000 s when he met Alfred he was a bright person who communicated with others eyed through clapping He described W you would say something and Alfred hen agreed with it he clapped as though he was excited Dr Edwards explained to the jury that during Alfred last three weeks of life he stopped engaging in life s He went from an excited person to one who was nonresponsive to his environment Gwen Alfred second oldest daughter testified that her father was a proud s man who never asked anyone for anything She explained that her father became 14 so depressed as a result of his condition that on his birthday in September 2001 he refused to take pictures with his children or grandchildren because he knew he would not be around much longer When his family convinced him to take a picture Alfred was confused and did not understand what was going on around him In his final days accarding to Gwen Alfred was like a baby with no life in his body Helen Alfred youngest daughter told the jury that she watched her father s go from a man to a baby after the onset of the lung cancer She recalled that her father a man not apt to show his emotions cried when the doctor told him he had lung cancer Describing her father as a very proud man Helen told the jury of the indignity Alfred felt as he watched his own child put diapers on him bathe him and feed him through a tube Helen stated that his whole manhood was taken away from him and that he could not do a thing about it Helen testified that she could see the pain in his eyes and that in the last three weeks of his life his pain was constant and severe Her testimony about Alfred final days was in s conformity to that of Gwen Helen reminded the jury that without a voice box Alfred could not speak He had communicated his feelings to his family through hugs and claps Once he became too weak he lost his only means of communication and so was unable to fu11y express his feelings in his final days Although the duration of his suffering from lung cancer was but a short period it is clear from the record that the evidence proved Alfred suffered intense and severe changes in his life after the lung cancer diagnosis Those members of his family who testified at trial established that Alfred was an old man fashioned who took pride in being with and providing for his family Alfred said little but demonstrated much When he lost his ability to speak he did not quit communicating adapting a nonverbal articulation that those who interacted with him readily understood But with the lung cancer Alfred watched in constant 15 physical and emotional pain as all his means of communication vanished and life left him In light of the testimony of his family and treating physician we cannot say this jury abused its vast discretion in awarding the Watts the amounts of 00 000 750 for Alfred physical pain and suffering 1for mental s 00 000 000 anguish and 1for loss of enjoyment of life 00 000 000 DECREE For these reasons the trial court judgment is amended to reduce to one s half i Hebert Brothers virile share the amounts of damages awarded to the e Watts In all other respects the judgment is affirmed Appeal costs are assessed to Hebert Brothers Engineering Inc AMENDED AND AS AMENDED AFFIRMED 16 FREU CTS AC WA AND STATE OF LOUISIANA ROSA LEE W ATTS COURT OF APPEAL RSUS V T FIRS CIRCUIT PACIFIC GEORGIA CORP I E AL 1 2012 CA 0620 McDONALD J Agreeing in part and dissenting in part NOV 2 Q I must respectfully dissent from the majority opinion in several respects irst F on the issue of solidary obligors and the tinding of liability on Dow secondly on affirming the tria court refusal to grant a directed verdict on behalf s of the defendants and thirdly applying the wrong standard of review to the jury s award of general damages However having made the determination that Dow and Hebert Brothers werE both liable i believe the majority is correct in finding the quantum award should be reduced as Hebert Brothers is only liable for its virile share The defendants point out tihat there seemed to be some confusion in this case That seems to be an understalement No one seemed to know whether comparative law principles apptied what solidary obligors neant or what the law oi virile share entails The trial court even enlisted the assistance of a law profcssor to explain some of these principles For whatever reason the plaintiffs set out from the slart to prove that the only defendant with any liability defendants that they succeeded Hebert Brothers was 1 believe as did the The tesrimony and questioning of wimesses sllould be understood in that conteXt Liabilitv of Dow The majoriry discusses the theory of strict liability in connection with fault on the part of Dow However at the charge conference between the trial eourt and the attorneys the plaintiffs insisted that this was not a strict liability case but rather a negligence case based on a failure to provide a safe place to work They 1 had requested a jury charge on strict liability but withdrew it Thus believe the majority should not have gone down a road tllat the plaintiffs chose not to travel If ihc plaintiffs did not believe strict liability was applicable then do not believe we should havc considered it either Nevertheless since the majority considered this issue I will also do so In examining this issue I find that the testimony of the various eYperts demonstrated the increasing knowledge of the dangers of exposure to asbestosis but none attributed any liability to Dow Whether pow had any liability is open to speculation and conjecture This is easily undei considering the plaintiffs stood wcre determined and had an objective to prove none theii goal was to prove all liability on the part of Hebert Brothers Charles Snearl a co of Mr Watts during much of the time that he worker worked at Dow testified as follows Q Okay Did you have written procedures that you had to follow that Hebert Brothers gave you regarding the use of respirators and working asbestos A Did I have written Q From Hebert Brothers A No Q Did you ever have a Safety Manual from Hebert Brothers or any infot about this is what you do hen you working around re asbestos A No Q Were you ever did were you ever trained from HeberY did Brothers about how to properly fit the respirator on A No Q or a mask on A Na Q All right and so Dow Hebert Brothers ever provide yt with did u any escape respirator A No Q Did Hebert Brothers ever provide you with a dust mask A No Q Did Iebert Brothers ever provide you with Comfo Two A No Q Did Hebert Brothers ever provide you with anything in regards to safety A No 2 Q Okay So if we took what Hebert Brothers did when it came to safety you would have no protection at all would you A No audible response Q Is that true A mean Dow supplied us with with the safety but you know Hebert Brothers didn give it to us if you going to say it like that t re Q And if you going to have to get it from Hebert Brothers if they re were going to provide you with a safe place to work you would have gotten nothing right A No audibie response Q Is that con ect A Yeah I guess Emphasis added The najority suggests Mr Snearl testimony is less important because he s did not begin to work at Dow until 1972 some nine yeacs after Mr Watts began working there The majority relies heavily on the testimony of Sirkil Pania who worked there from 1957 until 1972 However Mr Pania testimony was almost s the same as that of Mr Snearl he stated Q Let be right up front Did anybody every instruct you from Hebert s Brothers to put on respiratory protection when you were around that slurry when they were dumping those bags in and the asbestos was flying up and the fans was pushing it down out into the building Anybody ever tell you to wear respiratory protection A No fo l Q Okay In fact sir the only respiratory protection you were ever given by Hebert Brothers was a little escape thing wasn it t A Right Right Q Al right In any of your time or I should say did you ever have any l safety meetings while you worked for Hebert Brothers A About once a month Q All right A I chlorine s hat in Q ln chlorine A That sright Q Okay Okay and we can talk about the other side in a moment but for purposes of right now we want to talk about what you were doing with Mr Watts So in the Chlorine Unit you have a safety meeting about once a month A About once a month Q Okay Was there ever ever any tin betwecn 1963 and 1972 when you e were working in the Chlorine Unit that anybody at any of those safety meetings ever discussed the dangers of asbestos A No Q Okay We talked for a moment earlier about the escape respirator excuse me A Right 3 Q Did anybody for Hebert Brothers ever tell you to wear a dust mask when you worked around asbestos A No Q Anybody for Hebert Brothers ever tell you to wear a respirator when you worked around A No Q asbestos Q Okay and we already establisl that nobody at Hebert Brothers ve ed ever told you about the dangers of asbestos n Right Emphasis added Again the questions all were concerned with the failure of Hebert Brothers to provide adequate protection for Mr Watts or other loyees em But these questions must be considered in the context of an attempt by the plaintiffs attorneys to prove all the responsibility was on Hebert Brothers None of the witnesscs wece asked what Dow did or did not provide or did or did not tell the employees These questions were only asked about Hebert Brothers In spite of the lack of evidence on the issue the majority makes a huge leap and concludes that Dow failed to take reasonable steps to prevent the injuries to Mr Watts There is ample evidence that Hebert Brothers failed to prevent Mr Watts injuries there is no such evidence that Dow failed to do so The vast majority of testimonia evidence regarding Dow practices was s about the safety measures it instituted Dow placed air monitors on Hebert Brothers employees and provided them with safety equipment induding respirators Dow plant doctor performed annual physical examinations on Hebert s Brothers employees including chest x and breathing tests and Dow rays conducted safety orientations and weekly safery meetings There is testimony that Dow supervised Hebert employees to the extent that Dow could cause an s employee to be fired for not wearing a respiratar and that Dow employees told Hebert Brothers what work was to be done But there was absolutely no evidence elicited by the plaintiffs that indicated an intention to establish that Dow and 4 Hebeit BroYhers were solidarily liable In fact they argued vigorously that Hebert F3roihers was tlie only party at fault Dow did provide the asbesYos to Hebert Brothers for distribution to their employees so they could perform the tasks that Dow required Also there was testimony that a Dow employee was on the premises in a supervisory capacity when Hebert Brothers were working However we cannot say that Dow failed to take eeasonable measures to protect persons on its premises fi unreasonable n o risks of harm In fact the evidence adduced at trial established that Dow did make reasonable efforts to protect persons on its premises from harm The plaintiffs failed to prove that these efforts were inadequate or unreasonable Directed Verdict Estoppel Judicial The plaintiffs moved for a directed verdict arguing that it had been conclusively proven that I Watts was not contributorily negligent 2 Hebert Brothers was at fault and 3 no party other than Hebert Brothers was at fault Ihis indicates that the plaintiffs did not have any intention of proving fault on the t pa of Dow and they did not believe any proof of Liability by Dow had been established They vigorously maintained this posirion throughout the trial Plaintiffs counsel avoided presenting any evidence of the fault of any entiry other than Hebert then advised the court that it had presented no such evidence While recognize that this argument is not evidence it is certainly the plaintiffs opinion of the evidence The majarity suggests this coznplete shift in positions is analogous to a party pleading alternarive theories of liability ar causes of action The majority suggests thcre is no prejudice shown by f Brothers and the legal effect of the Iebert plaintiffs inconsistent arguments is of no noment to its appellate review This ion posi completely ignores the facts First the plaintiffs perition made no al fegations of fault on the part of Dow and alleged that Hebert Brothers was solely 5 responsible for their damages An alternative plea provides notice to the defendant of the various theories that may be raised and argued The defendant knows what to expect and more importantly what he must defend against even if it is in the e natw of an alternative claim No notice equates to prejudice to the defendant Secondly this is not a case analogous to alternative pleading Rather it is a case where judicial estoppe should apply The doctrine of judicial estoppel prohibits parties from deliberately changing positions according to the exigencies of the mo The doch is intended to prevent the perversion of the judicial nent process and prevents playing fast and loose with the courts Lowman v Merrick 0921 a 2006 IApp l Cir 3 960 So 84 92 07 23 2d Plaintiffs counsel argued strenuously as follows in describing the evidence or lack of evidence as to any fault by Dow s here evidence of fault of any other party other than the employer Hebert Brothers in this case I know there has been some talk about what goes on the verdict but just for the record we move for Directed Verdict on the issue of any other fault other than the employer on sic this case And in conjunction with that we move for a Directed Verdict because the only evidence uncontradicted is the employei is at no fiault in this case In fact the only evidence in this casc that could be the light most favorable is that Dow provided certain things viewing in Dow did this Dow did that t unclear when Dow did all those things priar to s 1976 that the employers duty to provide a safe place to work s s There no evidence thatthere any evidence thatthat happened In s fact the evidence is totally opposite If anybody did anything it was Dow who is not even in this case who I have already moved for a Directed Verdict on that issue Anyone else fault any other causation s I have moved for a directed verdict on both issues that there is no evidence on causation from asbestos exposure other than Hebert Brothers I move far that and no evidence of fault of any other party The only evidence presented from the stand is that the plaintiffs Ilave put evidence through their witnesses that the employer failed to provide a safe place to work Who cares what Dow did or didn tdo e W move for a Directed Verdict since there is uncontroverted evidence that asbestos if is sic a causc it was caused only because of the tault and the exposure due evidence in this case to the employcr s That the only Having advanced this argument throughout the trial the plaintifFs should not be allowed to advance an inconsistent and different argument when the initial one 6 no longer suits their needs Indeed the theory of judicial estoppel is designed to prevent this exact type of gamesmanship Hotard v Staze Farm Fire Cas Co 286 F 814 818 5 Cir 2002 citing Sltowboat Star P v Slauglater 2000 3d ship 7 12 La 4789 So 554 561 Ol 3 2d Quantum also disagree with the majarity decision on quantum I do not believe the s s juiy determination of the amount of an award of general damages is a finding of fact as maintained by the majority The majority cites La C art 2424 which 1 provides that the judge or jury has much discretion in tlle assessment of damages Further the majority suggests that its review of the record shows no abuse of the jury vast discretion I think both stateinents correctly state the law s that a general damage award is subject to a review for an abuse of discretiotl n contrast a special damage award is a factual determination and subject to review under the manifest e standard or 7 Special damages are those which refer to specific expenses that may be quantified and which arose out of the consequcnces of the defendant sbehavior See Pirtle v Allstate Ins Co 11 La App lst Cir 5 92 So 1064 1063 12 4 3d 1067 writ denied 12 La 9 98 So 839 The standard of review 1268 12 28 3d far special damages was set forth by the Louisiana Supreme Court in Kaiser v Harclin Ob La 4 953 So 802 810 as follows 2092 07 11 2d Special damages are those which have a market value such ready that the amount of the damages theoretically may be determined with relative certainty including inedical expenses and lost wages ln reviewing a jury factual conclusions with regard to special damages s an appellate court must satisfy a two process based on the record step as a whole ln order to reverse tmust be no reasonable factual here basis for the trial court conclusions and the finding must be clearly s wrong Citations omitted Thus special damages would include past lost wages future loss of income or earnin capacity and past and future medical expenses 7 On the other hand general damages involve mental or physical pain or suffering inconvenience loss of gratification or intellectual or physical enjoyinent or other losses of lifestyle that cannot be measured definitively in terms of money r ner Buudieuu v Fai 604 So 641 654 La App lst Cir writs denied 605 2d d So 1373 and 1374 La 1992 The factors to be considered in assessing quantum oC damages for pain and suffering are severity and duration Jenkins v Stnte ex rel Dep tof Transp ayid Dev 06 La App 1 st Cir 8 993 1804 08 19 2d So 749 767 writ denied 08 La 12 996 So 1133 2471 08 19 2d Much discretion is left to the judge or jury in the assessment of general damages La C art 23241 ln reviewing a general damage award a court does not review a particular item in isolation rather the entire damage award is reviewed for an abuse ofi discretion Smith v Goetzfrzan 97 La App lst Cir 9720 0968 98 25 2d So 39 48 It is only when the general damage 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 silould increase or reduce the award Youra v Mm Overseas Co 3 itirne p6 2d So 1257 1261 La 1993 cert denied 510 U 1114 114 S 1059 127 S Ct 2d Ed L 379 1994 Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropiiate and then only to determine the highest or lowest point of an award within that discretion Coco v Winston Indus lac 341 So 332 335 La 1976 Turrzer v Ostrowe O1 La App lst Cir 2d 1935 02 27 9 828 So 212 1216 writ denied 02 La 2 836 So 2d 17 2940 03 7 2d 107 Therefore I believe the tnajority is incorrect in its assertion that the amount af an award of general damages is a finding of fact and subject to the manifest error standard of review This appeal only involves the general damage award for 8 the plaintiffs survival action claims believe a general dainage award is subject to the abuse of discretion standard of review The jury gave a general damage award of 875 for Mr Watts laryngeal cancer 00 000 This was diagnosed in 1994 and resulted in the removal of his larynx and he had to live tnute until his death in 2001 over seven years The jury gave a general damage award of 00 000 750 2for his lung cancer t was diagnosed in the summer of 2001 and Mr Watts died only a few months later on October 31 2001 lt is only the amount of this latter award that is being appealed as the award for the laryngeal cancer was not appealed The majority concludes that this award for Mr Watts lung cancer was not an abuse ofdiscretion however i disagree and think this amount is indeed an abuse of discretion particularly when the ainount is compared to the much le5ser award for the laryngeal cancer from which Mr Watts suffered for a ictl m longer time For these reasons I respectfully dissent frotn the majority opinion would reverse the fuiding that any liability on the pa Dow was proven and under the tof principlc oi estoppel would have prevented the plaintiffs from making that judicial ient argui Further I would review the general damage award under an abuse of discretion standard and reduce it accordingly 9

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