Court of Appeal of Louisiana, Fourth Circuit
In this action, the plaintiffs alleged decedent Vita Chenet had asbestos exposure from personal use of various talcum powder products, including Cashmere Bouquet, throughout her lifetime. As a result of this asbestos exposure, the plaintiffs further claimed Ms. Chenet developed malignant mesothelioma in October 2018 and passed away at the age of 83 in February 2019. A defendant filed an answer offering an alternative exposure. This defendant specifically alleged Ms. Chenet developed mesothelioma through her father’s employment as a shipyard worker and because her family lived in housing on the Higgins Shipyard property in the 1940s. Following discovery, the plaintiffs filed a motion for partial summary judgment, which the trial court granted. In that judgment, the trial court made the following two findings, which the parties agree are the law of the case: (i) Ms. Chenet was diagnosed with mesothelioma; and (ii) a cause of Ms. Chenet’s mesothelioma is asbestos exposure. In March 2024, a three-week jury trial was held in this case. At the end of the trial, the jury answered no to the first jury interrogatory, which asked whether the plaintiffs proved by a preponderance of the evidence that the decedent’s Cashmere Bouquet was contaminated with asbestos. Given that answer, the jury received instructions to stop, which they did. Thereafter, the trial court rendered judgment in the defendant’s favor, thereby dismissing the plaintiffs’ claims against the defendant.
On April 24, 2024, the plaintiffs filed a Motion for New Trial, asserting that the final judgment was “clearly contrary to the law and evidence, thereby requiring [the] Court to grant [them] a new trial pursuant to La. C.C.P. art. 1972(1).” They also contended “that good grounds exist[ed]” for the trial court to grant them a new trial pursuant to La. C.C.P. art. 1973. In support of this motion, the plaintiffs cited, among other things, the alleged improper testimony at trial of the defendant’s expert pathologist, Dr. Richard Attanoos. In response to the plaintiffs’ counsel’s question in voir dire, Dr. Attanoos testified as follows: “And if you place a worker in a shipyard, the literature the world over will tell you consistently they are at increased risk of mesothelioma and other asbestos–related diseases. In fact, Ms. Chenet’s father died, by every likelihood, of an asbestos-related disease. He had lung cancer, which, in the setting, is an asbestos-related disease. He was a shipyard worker during World War II.” Of interest is the fact that the trial court ultimately struck Dr. Attanoos’ testimony from the record and instructed the jury not to consider it. According to the plaintiffs, though, the ultimate issue for the jury to decide was causation, i.e., whether Ms. Chenet’s mesothelioma was caused by exposure to asbestos in Cashmere Bouquet or by her exposure to asbestos through her father’s work at Higgins Industries’ Shipyard when she was a young child. For this reason, the plaintiffs argued that Dr. Attanoos’ testimony confused the jury and resulted in a miscarriage of justice, warranting the granting of a new trial. On June 18, 2024, the trial court agreed with the plaintiffs and granted the motion for a new trial. The defendant appealed.
La. C.C.P. art. 1971 states, in pertinent part, that a new trial may be granted by motion of any party or by the court on its motion, to all or any of the parties and on all or part of the issues. Louisiana law provides both peremptory and discretionary grounds for the grant of a trial. In terms of peremptory grounds, La. C.C.P. art. 1972 declares a new trial shall be granted upon motion of any party in the following cases: (1) When the verdict or judgment appears clearly contrary to the law and the evidence; (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done. Discussing the discretionary grounds, La. C.C.P. art 1973 provides “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” A trial court has wide discretion in deciding whether to grant or deny a motion for new trial. Lepree v. Dorsey, 2022-0853, p. 22 (La. App. 4 Cir. August 11, 2023), 370 So.3d 1191, 1204-05 (quoting Occidental Props. Ltd. v. Zufle, 2014-0494, p. 11 (La. App. 5 Cir. November 25, 2014), 165 So.3d 124, 131), writ denied, 373 So. 3d 982 (La. December 5, 2023).
An Appellate Court reviews a ruling on a motion for new trial under an abuse of discretion standard of review, Id. at p. 22, 370 So.3d at 1205 (quoting Sunset Harbour, LLC v. Brown, 2022-0572, p. 9 (La. App. 4 Cir. January 9, 2023), 356 So.3d 1167, 1173, regardless upon which ground – peremptory or discretionary – the new trial motion is based. Id. (quoting Autin v. Voronkova, 2015-0407, p. 4 (La. App. 4 Cir. October 21, 2015), 177 So.3d 1067, 1070). This standard of review is “highly deferential,” but a trial court abuses its discretion “if its ruling is based on an erroneous view of the law.” Id. The Louisiana Supreme Court has further cautioned that “[e]ven in light of this wide discretion of the trial court, that discretion is limited, as the trial court cannot freely interfere with any verdict with which it disagrees.” Guillory v. Lee, 2009-0075, p. 38 (La. 6/26/09), 16 So.3d 1104, 1131 (citing Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 10 (La. 11/28/00), 774 So.2d 84, 93). Rather, the trial court’s “discretionary power to grant a new trial must be exercised with considerable caution” because “a successful litigant is entitled to the benefits of a favorable jury verdict.” Martin v. Heritage Manor S. Nursing Home, 2000-1023, p. 3 (La. 4/3/01), 784 So.2d 627, 630 (quoting Davis, 2000-0445, p. 10, 774 So.2d at 93). Moreover, because “[f]act finding is the province of the jury … the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility.” Id. Accordingly, the trial court should not set aside the jury’s verdict “if it is supportable by any fair interpretation of the evidence.” Id. This court has held that potential jury confusion may constitute a ground for granting a new trial. Provosty v. Arc Constr., LLC, 2015-1219, pp. 8-9 (La. App. 4 Cir. 11/2/16), 204 So.3d 623, 629-30. However, this court has further explained that such confusion must “be substantial enough to mislead the jury to the extent that it was prevented from dispensing justice.” Martinez v. LG Electronics U.S.A, Inc., 2024-0445, p. 5 (La. App. 4 Cir. 8/2/24), So.3d, 2024 La. App. LEXIS 1235, 2024 WL 3633518, at *3 (quoting Provosty, 2015-1219, p. 7, 204 So.3d at 628) (internal quotation marks omitted). The confusion must also be “unreasonable and a clear illustration of [the jury’s] failure to impartially apply the reasoning faculty on the facts before it.” Id. (quoting 66 C.J.S. § 107).
In light of these principles, the sole issue presented to the Appellate Court was whether the trial court properly granted the plaintiffs’ motion for new trial based on Dr. Attanoos’ testimony regarding Ms. Chenet’s father’s lung cancer. The Appellate Court ultimately held that the trial court abused its discretion in granting a discretionary new trial under La. C.C.P. art. 1973 for two (2) reasons: (i) – the lack of relevance of the objectionable testimony; and (ii) – the lack of a miscarriage of justice finding. With regard to the first reason, the Appellate Court found the law of the case established only that asbestos was a cause of Ms. Chenet’s mesothelioma. The jury first had to decide whether Cashmere Bouquet was contaminated with asbestos and, if so, whether that exposure caused her mesothelioma. The jury answered no to the first question. The second question as to causation was therefore pretermitted. As Dr. Attanoos’ objectionable testimony had bearing only on the issue of causation, his testimony was not relevant to the contamination issue that the jury decided and had no effect on the jury’s decision. The trial court therefore abused its discretion in granting the plaintiffs’ motion for new trial. As to the second reason, the Appellate Court did not find a miscarriage of justice because, as mentioned above, Dr. Attanoos’ objectionable testimony was not relevant to the contamination issue the jury decided. The trial court struck the objectionable testimony and admonished the jury not to consider the objectionable testimony. Notwithstanding, the purported jury confusion, if any, did not establish the governing standard of being “substantial enough to mislead the jury to the extent that it was prevented from dispensing justice” or a “clear illustration of the jury’s failure to impartially apply the reasoning faculty on the facts before it.” See Martinez, 2024-0445, p. 5 (La. App. 4 Cir. 8/2/24), So.3d, 2024 La. App. LEXIS 1235, 2024 WL 3633518, at *3 (first quoting Provosty, 2015-1219, p. 7, 204 So.3d at 628; and then quoting 66 C.J.S. § 107). Consequently, the Appellate Court maintained the facts do not support a finding that there was a miscarriage of justice so as to justify the trial court’s grant of the plaintiffs’ motion for new trial. For the foregoing reasons, the Appellate Court reversed the trial court’s judgment which granted the plaintiffs’ motion for new trial.
Read the full decision here.