Court Affirms $2.75M Lung Cancer Award But Reduces Liability By Half

by Tara Arick on September 19, 2013 · 0 comments

in Labor and Employment Law

Evidence of a premises owner’s liability allowed for the otherwise untimely naming of a defendant who ended up at trial, and the evidence supports a jury’s award against it on lung cancer claims, but the liability must be split between the two entities, a Louisiana court held Sept. 16 (Alfred Watts and Rosa Lee Watts v. Georgia-Pacific Corp., et al., No. 2012 CA 0620, La. App., 1st Dist.;2013 La. App. LEXIS 1863).

Rose Lee Watts filed suit in 2001 in the Iberville Parish District Court against numerous entities whose conduct allegedly exposed Alfred Watts to asbestos.

Alfred Watts allegedly contracted both laryngeal and lung cancer and died of lung cancer after exposure while employed with Herbert Brothers at a Dow Chemical Co. facility in Plaquemine, La. Rose Lee Watts added Herbert as a defendant in August 2003, dismissed all other defendants and proceeded to trial. Hebert argued that Watts’ claim was prescribed, but the motion was denied with leave to file supervisory writs.

The jury found that Hebert was negligent and that the negligence was a substantial factor in the decedent’s death. The jury did not find the decedent, a cigarette smoker, negligent. The jury awarded $ 3,625,000, including $ 2.75 million on the lung cancer claim.

Prescription Issue

Judge James J. Best granted Hebert’s motion to stay the proceedings while the issue of prescription was under review. The First District Louisiana Court of Appeal granted Hebert’s writ in part and remanded so that Judge Best could consider and rule on the merits.

On remand, Judge Best found that Watts’ claim was not prescribed. Hebert appealed, arguing that the claims were prescribed, that judgment should have limited Hebert’s liability to its virile share and that the award on the survival action was excessive.

A panel of the First District said the evidence regarding the lack of safety measures at the Dow facility allows for a reasonable individual to conclude that Dow is liable under strict custodial liability.

Hebert complained that Watts pointed to Hebert as the sole liable party when she sought directed verdict but then argued that Dow’s liability prevented Hebert’s prescription defense, the panel said.

‘Irony’

“While we do see the irony of the changed positions Watts argued before the trial court, arguments of counsel are not evidence,” the panel said. Notably, Judge Best denied Watts’ motion for directed verdict, finding that sufficient evidence that other parties were at fault, the panel said. Since the evidence allows one to conclude that Dow was liable, a solidary relationship existed between Hebert and Dow and Dow’s timely inclusion in the action stayed the statute of limitations for naming Hebert, the panel said.

However, since the evidence supported Dow’s liability, Judge Best erred in not reducing the damages against Hebert by half, the panel said.

Excessiveness

The panel rejected Hebert’s challenge to the $ 2.75 million award on the lung cancer claim. Nothing in the record suggests that the jury abused its “vast discretion,” the panel said. The evidence shows that the decedent’s lung cancer caused him great pain and rendered him unable to walk, stand, eat or do anything for himself and that he required his daughters to feed him and diaper him, the panel said.

“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,” the panel said.

Judge James E. Kuhn wrote for the court, joined by Judges John T. Pettigrew and J. Michael McDonald.

Denyse F. Clancy and Lindsey Goldstein of Baron & Budd in Dallas represent Watts. H. Alston Johnson III and Daina Bray of Phelps Dunbar in Baton Rouge, La., represent Hebert.

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