Asbestos-Containing Cement Pipe Not a Substantial Contributing Factor to Development of Plaintiff’s Lung Cancer Court of Appeal of Louisiana, Fourth Circuit, December 26, 2018

LOUISIANA — The plaintiffs Thomas Handy, Jr. (Handy), his wife Sandra Handy, and son Thomas Handy, III filed suit against numerous entities, claiming that exposure to asbestos caused Thomas, Jr.’s lung cancer. By the time of trial, only one defendant remained – Ferguson Enterprises, Inc.. The plaintiffs alleged that Ferguson was the successor corporation of Louisiana Utility Supply Co. (Ferguson/LUSCO), and that Ferguson/LUSCO supplied or distributed asbestos-containing cement pipe to the plaintiff’s employer, C.J. Calamia Construction. The plaintiffs alleged that Handy was exposed to asbestos that was airborne due to the cutting of the asbestos-containing cement pipe

During the initial trial, the jury held the following: 1) Handy’s exposure to asbestos-containing products were a substantial contributing factor in causing his lung cancer; 2) Ferguson was as successor to LUSCO; and 3) the products supplied or distributed by LUSCO were not a substantial contributing factor in causing Handy’s lung cancer. The plaintiffs’ filed a motion for new trial, which was denied, and subsequently appealed.

On appeal, the plaintiffs made three claims: 1) the jury’s verdict in the defendant’s favor was contrary to the law and evidence; 2) the trial court erred in charging the jury with incorrect law and failing to give additional instructions to the jury when asked; and 3) the trial court erred in denying the motion for new trial.

The appeals court held that “even though the record contains evidence that could lead a reasonable person to find different, this court cannot substitute its view of the evidence for that of the jury. Where there are two permissible views of the evidence, the jury’s choice between the two cannot be manifestly erroneous or clearly wrong.”

The appeals court further held that upon “reviewing the jury charges, that were excluded and properly met with a timely objection, together with the full set of charges given to the jury, we do not find that the proposed changes declare any applicable principle of law that applies to this case and that was not already included in the trial court’s jury charges.” Therefore, there was no error in the trial court’s exclusion of the plaintiffs’ proposed jury charges.

Lastly, the appeals court stated that the trial court did not abuse its discretion in denying the motion for a new trial.

The appeals court affirmed the jury’s verdict, and directed the judgment to be entered by the trial court.

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