Abadie v. Metropolitan Life Ins. Co.

• Decision Date: 28 March 2001
• Docket Number: No. 00-CA-344 to 00-CA-856.
• Citation: 784 So.2d 46
• Court: Court of Appeal of Louisiana — District of US
• Parties: Douglas A. ABADIE, et al. v. METROPOLITAN LIFE INSURANCE COMPANY, et al. Addressing Individual Appeals: Alfred Adams, Lester Badeaux, Leroy Bonamour, William Boudreaux, Oscar Champagne, Roger H. Quave, Alvin Robin.

784 So.2d 46

Douglas A. ABADIE, et al. v. METROPOLITAN LIFE INSURANCE COMPANY, et al.

Addressing Individual Appeals: Alfred Adams, Lester Badeaux, Leroy Bonamour, William Boudreaux, Oscar Champagne, Roger H. Quave, Alvin Robin.

Nos. 00-CA--CA-856.

Court of Appeal of Louisiana, Fifth Circuit.

March 28, 2001.

Rehearing Denied April 26, 2001.

Robert E. Caraway, III, Plauche, Maselli, Landry & Parkerson, New Orleans, LA, Attorney for Defendants/Appellants, Steven Kennedy, Peter Territo, and American Motorists Insurance Company.

Mary L. Dumestre, Marjorie M. Campbell, Stone, Pigman, Walther, Wittmann & Hutchinson, L.L.P., New Orleans, LA, Attorneys for Defendants/Appellants, Avondale Executive Officers.

Thomas G. Milazzo, James L. Fletcher, Jr., Pamela B. Gautier, LeBlanc, Miranda, Warwick & Milazzo, Metairie, LA, Attorneys for Defendants/Appellants, Asbestos Corporation Limited.

Leon Gary, Jr., William L. Schuette, Jr., Antonio D. Robinson, Avery Lea Griffin, Madeleine Fischer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre L.L.P., Baton Rouge, LA, Attorneys for Defendant/Appellant, CBS Corporation.

John J. Hainkel, III, Angela M. Bowlin, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, Attorneys for Defendant/Appellant, Owens Corning.

J. Burton LeBlanc, IV, Cameron R. Waddell, Brian F. Blackwell, Sandra A. Jelks, Dawn Smith Rodrigue, Steven M. Jupiter, LeBlanc, Maples and Waddell, L.L.C., and Robert E. Arceneaux, Barham & Arceneaux, New Orleans, LA, Attorneys for Plaintiffs/Appellees.

Frank J. Swarr, Mickey P. Landry, Landry & Swarr, L.L.C., New Orleans, LA, Attorneys for Plaintiffs/Appellees, Earlven Gauthe and Johnnie Johnson.

Panel composed of Judges DALEY, EDWARDS, and LOBRANO, Pro Tempore.

TABLE OF CONTENTS PAGE NO INTRODUCTION ............................................................. 58 COMMON ISSUE 1 ........................................................... 59 COMMON ISSUE 2 ........................................................... 62 COMMON ISSUE 3 ........................................................... 62 COMMON ISSUE 4 ........................................................... 65 COMMON ISSUE 5 ........................................................... 67 COMMON ISSUE 6 ........................................................... 69 COMMON ISSUE 7 ........................................................... 69 COMMON ISSUE 8 ........................................................... 70 COMMON ISSUE 9 ........................................................... 70 COMMON ISSUE 10 .......................................................... 70 COMMON ISSUE 11 .......................................................... 71 COMMON ISSUE 12 .......................................................... 73 COMMON ISSUE 13 .......................................................... 74 COMMON ISSUE 14 .......................................................... 75 COMMON ISSUE 15 .......................................................... 75 COMMON ISSUE 16 .......................................................... 77 COMMON ISSUE 17 .......................................................... 80 COMMON ISSUE 18 .......................................................... 82 COMMON ISSUE 19 .......................................................... 83 ACL COMMON ISSUES & DISCOVERY SANCTIONS .................................. 85 CAUSATION ................................................................ 89 JNOV ASSIGNMENTS OF ERROR................................................. 91 AVONDALE INTERESTS SPECIFIC ASSIGNMENTS OF ERROR ........................ 107 SUMMARY ................................................................. 118

EXPLANATION OF VIRILE SHARE CALCULATIONS ................................ 120 DECREE .................................................................. 122

PER CURIAM.

In the early 1990's, over one thousand individual law suits were filed in the 24th Judicial District Court by plaintiffs who were exposed to asbestos over the previous decades. Numerous manufacturers and producers of asbestos products were named as defendants and the Executive Officers of plaintiffs' employers. These cases were cumulated and consolidated for trial under the direction of Judge Jacob Karno. On December 20, 1994, the trial court issued a trial plan setting four consolidated trials, broken down into groups of eight, nineteen, fifty-eight, and a final group of 323. Over the course of the next several months, suits in the first two groups were settled. The remaining suits involved exposure to asbestos at three major shipyards. In an Order dated July 18, 1995, the trial court separated the remaining cases according to the site of exposure. This Order set the trial of the suits involving exposure at Avondale Shipyards for September 18, 1995. The claims of 129 Avondale employees were tried before one jury. The resulting judgments from that trial form the basis of this appeal.

The first two weeks of trial were consumed by pre-trial motions and jury selection. Opening statements began on September 29, 1995, and the trial continued over the course of the next six months. At the conclusion of trial, 118 plaintiffs were awarded damages and eleven were not. Most defendants were found liable, while several were exonerated.

The non-settling defendants, Asbestos Corporation Limited (hereinafter referred to as ACL), and the Executive Officers of Avondale Shipyard, as well as their insurers (hereinafter referred to as the Avondale Interests), have perfected the instant appeals. Owens Corning had also appealed, but settled and dismissed their appeals with all but two plaintiffs, Earlven Gauthe and Johnny Johnson. CBS Corporation, formerly known as Westinghouse Electric Corporation (hereinafter referred to as Westinghouse), settled and dismissed their appeals with all plaintiffs but Earlven Gauthe and Johnny Johnson after oral argument, but days before this opinion was rendered. In the interest of judicial economy and in attempt to simplify the issues, we have consolidated these matters for appeal purposes. At a hearing held by this Court, the appellants identified nineteen Common Issues. By Order dated May 20, 2000, these issues were ordered briefed, and on September 28, 2000 they were orally argued.

To facilitate the appeals regarding causation and quantum for individual plaintiffs, twelve groups of plaintiffs were established (Groups I-XII). The parties then briefed the issues specific to the ten plaintiffs comprising the Group I plaintiffs. Oral argument with respect to those Group I plaintiffs was held on October 26, 2000. However, immediately prior to oral argument this Court received notice from the U.S. Bankruptcy Court that Owens Corning had sought relief in that court. Because of the Stay Order issued by that court, this court has severed and stayed all appeals pertaining to Mr. Gauthe and Mr. Johnson, relative to all defendants and all issues therein. And because of the nature of the injuries received by Patrick Clark, we have decided to dispose of the appeal in his case by separate opinion.¹ Therefore, this opinion relates only to Group I plaintiffs Alfred Adams, Lester Badeaux, Leroy Bonamour, William Boudreaux, Oscar Champagne, Roger Quave, and Alvin Robin.

The jury rendered a verdict in favor of each of these seven plaintiffs against ACL and six Avondale Executive Officers. In addition, the jury also found several other manufacturers and suppliers responsible either on a negligence and/or strict liability (unreasonably dangerous per se or failure to warn) theory. However, those parties either settled before trial or after judgment was rendered, and are not part of this appeal. Nonetheless, because of the virile share apportionment necessitated by the jury's findings, their liability or non-liability is an issue that has been raised by the defendants who have appealed.² Via a Judgment Notwithstanding the Verdict (JNOV), the trial judge reversed the jury's findings with respect to nine of those settling parties. Finally, included in those same JNOV rulings, the trial judge also increased most of the damage awards. Thus, in addition to the various arguments with respect to their own liability, ACL and the six Avondale Executive Officers also argue the incorrectness of the trial judge's grant of the JNOVs, and the correctness of the jury's finding of liability on the part of the settling defendants.

In an attempt to present this opinion in a logical and orderly fashion, we first turn to a discussion and resolution of the issues common to all of the defendants. We next turn to a general discussion of causation in asbestos cases, and the basic guidelines that we will apply in determining whether ACL and the settling defendants bear any responsibility to each of these seven plaintiffs. Finally, we will discuss and resolve the specific arguments raised by each appellant.

COMMON ISSUE 1:

Whether the trial court erred in cumulating, transferring, and consolidating cases in forming the 129-plaintiff trial group?

Appellants argue that the trial court erred in cumulating, transferring, and consolidating cases in forming the 129 plaintiff trial group. The brief filed by ACL does not specifically address the issue of consolidation. Rather, ACL adopts the position of Westinghouse and the Avondale Interests with regard to this issue, and though Westinghouse has since settled with plaintiffs, we relate the arguments as they briefed them. Specifically, Westinghouse argues that the manner in which the trial group was formed violated its right to an individualized determination of the claims. First, Westinghouse contends that the aggregation of claims was prejudicial because it confused the jury, prevented a fair and impartial trial, and gave the plaintiffs an undue advantage. Westinghouse argues that the repetition of accusations against it validated the claims regardless of the...