Louisiana Court of Appeal Finds $500K Jury Verdict Not Enough Court of Appeal of Louisiana, Fourth Circuit, May 24, 2017

Plaintiffs Frank Romano, Sr. and Lynne Rome Romano filed suit in the Civil District Court, Orleans Parish against a number of defendants on September 12, 2014, after Romano contracted mesothelioma allegedly caused from occupational asbestos exposure. For a brief background, Romano grew up in Marrero, Louisiana and lived about two blocks away from the Johns-Manville Corporation’s plant for 20 years before he went away for college. As a result of this Johns-Manville connection, two defendants filed a third party demand against CRMC, a successor in interest to Johns-Manville. After college, Romano worked at defendant Union Carbide Corporation’s (UCC) Taft facility for nine to ten months during 1967 and 1968. For the majority of time that he worked at the Taft facility, Romano was assigned to the stores department, where his occupational asbestos exposure was thousands of times above background levels on a daily basis.

The case ultimately proceeded to a jury trial against UCC and went forward on March 14, 2016 through March 14, 2016. Here, the jury returned a verdict in favor of the plaintiffs and against the defendants for the following awards:

  • $566,274.00 in stipulated past medical expenses;
  • $150,000.00 in future medical expenses;
  • $250,000.00 for loss of enjoyment of life, past and future; and
  • $250,000.00 for general damages, including past and future physical pain and suffering, past and future mental anguish, and past and future disability.

Both parties filed post-trial motions that were denied. The plaintiff argued that the awards were grossly inconsistent with the evidence adduced at trial in similar cases. UCC requested a verdict reduction for Johns-Manville’s allocation of fault. The plaintiff and UCC both appealed and each argument was heard by the Court of Appeal of Louisiana, Fourth Circuit.

On appeal, among other arguments, UCC asserted that the trial court erred in not reducing the jury verdict by one-half for the fault of Johns-Manville because it is treated as a settled party under Louisiana law and under the provisions of its settlement trust. The Court of Appeal noted that under pre-comparative fault law in Louisiana, which governs this case, joint tortfeasors were solidarily (“jointly and severally”) liable for a tort victim’s injury. Under solidary liability, the obligee (i.e. plaintiff), at his choice, could demand the whole performance from any of the joint and indivisible obligors (i.e. defendants). Therefore, the only remedy available to a solidary defendant from whom the whole performance was sought was to seek “contribution” from the joint tortfeasors in the amount of the joint tortfeasor’s allocated share. [Citation Omitted]. In order for a solidary defendant to receive this allocated credit, they must show that (a) the plaintiff released a party, thereby precluding the remaining solidary defendants from seeking contribution from it, and (b) that the released party’s liability is established at trial. In the current matter, the Court of Appeal found that the plaintiff never settled with Johns-Manville and thus UCC was not entitled to this allocated credit under Louisiana’s solidary liability law.

The plaintiffs also argued on appeal that 1) the jury abused its discretion when it awarded general damages to plaintiffs in the amount of $250,000.00 for Romano’s past, present and future pain and suffering and an additional $250,000.00 for Romano’s past, present and future loss of enjoyment of life; and 2) the district court abused its discretion when it denied the plaintiffs’ motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative, motion for partial new trial on damages only because the jury’s award was grossly below other mesothelioma verdicts in this state.

In review of the plaintiffs’ arguments, the Court of Appeal emphasized noted that the role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. [Citation Omitted].

The court ultimately found that, based on the evidence put on at trial, Romano will most likely die from mesothelioma. Combining that fact, in combination with their review of the other cases, the court found the general damages award of only $500,000.00 appeared far too low. Upon further review of other verdicts, these numbers indicated that Romano’s general damages award should be somewhere in the $1.5 million to $2 million range. Due to instruction by jurisprudence to only raise a general damage award to the lowest reasonable amount that a trier of fact could have awarded, the court raised the amount of general damages awarded to the plaintiffs from $500,000.00 to $1,500,000.00.

In sum, the Court of Appeal of Louisiana affirmed the trial court’s decisions regarding the reduction of the verdict as to Johns-Manville and reversed the jury’s verdict as to damages only and the trial court’s judgment denying the plaintiffs’ motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative, motion for new trial on damages only, and increased the general damages award made to the plaintiffs from $500,000.00 to $1,500,000.00.

Read the full decision here.


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