Jury Verdict Upheld Against Boiler Defendant Court of Appeal of Louisiana, Second Circuit, May 22, 2019

LOUISIANA — Lynda Berry alleged that she was exposed to asbestos through the electrical work of her husband, William, at a Louisiana paper mill, causing her peritoneal mesothelioma. William Berry testified that he was present when defendant Foster Wheeler removed and replaced asbestos insulation materials on their boilers, which were installed in the paper mill. The matter was tried before a jury who determined that Foster Wheeler was liable for the plaintiff’s injuries, and assessed a final award of $2.25 million against them.

Foster Wheeler appealed, and raised five assignments of error, all of which the appellate panel disagreed with, affirming the judgment. First, the panel determined that there was no abuse of discretion in the jury’s failure to find settling parties liable for the plaintiff’s injuries. They reasoned that Foster Wheeler bore the burden of proving the fault of settled parties, and that most evidence of alternate exposures had come from the plaintiff’s experts and evidence, not from Foster Wheeler’s defense. Second, the panel determined that the trial court did not err in refusing to allow Foster Wheeler to present evidence of union knowledge of the hazards of asbestos, as the jury had been presented with sufficient alternative information from which they could come to that conclusion.

Next, the panel declined to find an abuse of discretion in the trial court’s decision to not allocate a virile share for another defendant who settled during trial. They reasoned that the settlement had no impact on Foster Wheeler’s ability to prove the negligence of the settling defendant, and that the jury had been presented with adequate information from which they could have determined that the settling defendant was also liable for the plaintiff’s injuries. In addition, the panel determined that there was no abuse of discretion in the jury’s award of future medical expenses, and that an appellate court could only reverse this finding if it was clearly wrong. Despite the plaintiff’s testimony that she may not have future surgical procedures for her illness, the panel determined that there was no manifest error in the jury’s finding that future medical expenses would likely be incurred. Finally, the appellate panel found no error in the trial court’s decision to deny Foster Wheeler’s motion for a directed verdict given Louisiana’s 10 year peremption statute. They concluded that although Foster Wheeler completed construction of the boilers at issue in 1965, they returned to the mill semi-annually for maintenance work, and the plaintiff’s suit was filed within 10 years of the last work that Foster Wheeler did that exposed the Berry couple to asbestos.

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