Berry v. Anco Insulations

• Decision Date: 22 May 2019
• Docket Number: No. 52,671-CA,52,671-CA
• Parties: Lynda BERRY, Plaintiff-Appellee v. ANCO INSULATIONS, et al., Defendant-Appellants
• Court: Court of Appeal of Louisiana — District of US

273 So.3d 595

Lynda BERRY, Plaintiff-Appellee
v.
ANCO INSULATIONS, et al., Defendant-Appellants

No. 52,671-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered May 22, 2019

FRILOT, LLC, By: John J. Hainkel, III, Angela M. Bowlin, Lacey T. McCoy, Counsel for Appellant Foster Wheeler, LLC

TANENBAUM KEALE, LLP, By: Christopher S. Marks, DEAN, OMAR, BRANHAM, SHIRLEY, LLP, By: Lisa White Shirley, WADDELL ANDERMAN, LLC, By: Jody E. Anderman, Counsel for Appellee

Before MOORE, GARRETT, and McCALLUM, JJ.

MOORE, J.

Foster Wheeler LLC appeals a jury verdict and JNOV that awarded the plaintiff, Lynda Berry, damages including $ 1 million in future medical expenses and found that certain other defendants were not responsible for the secondhand asbestos exposure that caused her mesothelioma. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

Ms. Berry's husband, William Berry, worked at the West Monroe Paper Mill from 1961 until 2010 as an EI (electrical and instrumentation technician). He was present, in the mid-1960s, when the mill's owners contracted with Foster Wheeler, an engineering and construction contractor, to install two large boilers to generate electric power. These stood roughly five stories tall and were covered with insulation panels or custom-fitted insulating cement, all made of asbestos. Mr. Berry testified that his work as an EI exposed him to asbestos daily. In addition, the boilers were placed on staggered, annual "outage" for one or two weeks for inspection and repair; this required removal and reinstallation of the asbestos, a process performed by Foster Wheeler and described by Mr. Berry as spawning a dust storm inside the building. Mr. Berry testified that Foster Wheeler always performed this work, and was still doing so when he retired, in 2010.

Mr. and Mrs. Berry got married in 1973. He testified that he always wore his work clothes home in the evenings; Ms. Berry testified that his work clothes were generally caked with dust and dirt, and she washed, dried and folded them daily.

In early 2015, Ms. Berry started having stabbing pains in her stomach. She was diagnosed with mesothelioma, which doctors ultimately ascribed to her secondhand exposure to asbestos fibers on her husband's work clothes.

PROCEDURAL HISTORY

Ms. Berry filed this suit in August 2015, against 26 defendants. She settled with most of the defendants pretrial. She proceeded to a jury trial in April 2017, against two remaining defendants: Foster Wheeler, the general contractor, who designed, manufactured, installed and serviced the boilers, and J. Graves Insulation Co., a sub-subcontractor who supplied the asbestos insulation for the boilers.

At the start of trial, the court ruled that because most of Ms. Berry's exposure occurred before 1980, pre-Comparative Fault law would apply: each defendant found to be at fault would be responsible for a virile share of the total judgment. Jury selection

273 So.3d 601

took two days. Then, over six days, Ms. Berry called 12 witnesses (some by video deposition) and introduced a large amount of documentary evidence. Shortly after she rested her case, Ms. Berry settled with J. Graves.

Over the next four days, Foster Wheeler called five witnesses (some by video deposition) and introduced its own large amount of documentary evidence. Closing arguments took nearly a full day.

The 12-member jury rendered a verdict that Ms. Berry had an asbestos-related injury; that Foster Wheeler's negligence was a substantial factor in her injury; that Foster Wheeler's products were unreasonably dangerous, not per se or because of their design, but because of a failure to warn of the hazards associated with asbestos; and that a nonparty defendant (Olin Corp., the former owner of the mill) was negligent in causing the injury and strictly liable as the premises owner.¹ The jury also found, however, that no other named defendants, including J. Graves, were negligent or provided an unreasonably dangerous product. The jury awarded Ms. Berry $ 1 million for past medical expenses and $ 2 million for future medical expenses, but nothing for physical pain and suffering, mental and emotional anguish, or loss of enjoyment of life. The court rendered judgment in favor of Ms. Berry and against Foster Wheeler for $ 1.5 million, reflecting Olin Corp's one-half virile share.

Both sides moved for JNOV. Ultimately, the district court granted Ms. Berry's motion by awarding her $ 3 million in general damages, an item the jury had inexplicably denied; granted Foster Wheeler's motion by reducing past medicals to $ 500,000 and future medicals to $ 1 million; and denied Foster Wheeler's motion by refusing to assign a virile share to J. Graves or to any other defendant who had settled pretrial or was exonerated by the jury. The court rendered final judgment in favor of Ms. Berry and against Foster Wheeler for $ 2.25 million, again reflecting Olin Corp's virile share.

Foster Wheeler has appealed, raising five assignments of error.

DISCUSSION

Liability of Other Defendants

By its first assignment of error, Foster Wheeler urges the jury erred in failing to find six entities who settled pretrial and one entity who settled midtrial, J. Graves, were liable for the plaintiff's injuries.²

Foster Wheeler shows that under pre-Comparative Fault law, a solidary obligor received a virile share credit when the plaintiff settled with and released a party and that party's liability was established at trial. Wall v. American Employers Ins. Co. , 386 So.2d 79 (La. 1980). Foster Wheeler also shows that Ms. Berry settled with, and received money from, seven entities who provided asbestos insulation to the boilers, and argues that Ms. Berry's own occupational medicine expert, Dr. Edwin Holstein, testified that all seven were substantial contributing causes to her disease. Foster Wheeler cites two asbestos cases, and one benzene case, in which juries exonerated settled defendants but the courts of appeal found manifest error and assigned

273 So.3d 602

fault to them.³ It contends that the evidence against the settling defendants was established by "undisputed fact." Specifically, GE installed turbines between the Foster Wheeler boilers and then engaged in much work that created asbestos dust; these facts were documented by a 1994 abatement record; and Dr. Holstein considered GE a substantial factor in Ms. Berry's disease. J. Graves was a "professional vendor and contractor" who supplied and installed the asbestos-containing insulation on the boilers; Mr. Berry keenly recalled inhaling dust from when J. Graves was installing or reinstalling insulation; and Dr. Holstein considered J. Graves a substantial factor in Ms. Berry's disease. As to the valve and pump defendants, Foster Wheeler submits that there were literally thousands of valves, pumps and pipes at the mill, all covered with asbestos packing material, gasket material and insulation, and all produced dust when handled; and Dr. Holstein felt the dust from all these sources was a substantial cause of Ms. Berry's illness. Foster Wheeler concludes that the jury's finding exonerating these defendants was plainly wrong, and that this court should assign seven virile share credits.

Ms. Berry agrees with the application of Wall v. American Employers Ins. Co. , supra , but argues that when a defendant urges the fault of a nonparty, that defendant must provide evidence "which preponderates that fault actually exists" on the part of that nonparty, Joseph v. Broussard Rice Mill Inc. , 2000-0628 (La. 10/30/00), 772 So.2d 94. She contends that remaining defendants often fail to prove the fault of a settling defendant.⁴ She submits that Foster Wheeler simply failed to prove J. Graves's fault. Specifically, the only evidence of causation was from her own expert, Dr. Holstein, but he provided "no detail about the underlying basis" for his opinion; there was no evidence that GE supplied any asbestos materials to the mill; J. Graves was merely a subcontractor hired to do installation work; and the evidence against the valve and pump defendants was "insubstantial." She concludes the jury committed no manifest error.

The trier of fact's findings are reviewed under the plainly wrong/manifest error standard. Warren v. Shelter Mutual Ins. Co. , 2016-1647 (La. 10/18/17), 233 So.3d 568 ; BRP LLC (Delaware) v. MC La. Minerals LLC , 50,549 (La. App. 2 Cir. 5/18/16), 196 So.3d 37. Under this standard, if the trier of fact's findings are reasonable in light of the record viewed in its entirety, the appellate court cannot reverse even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Lomont v. Bennett , 2014-2483 (La. 6/30/15), 172 So.3d 620 ; Emerson v. Willis Knighton Med. Ctr. , 52,216 (La. App. 2 Cir. 9/26/18), 257 So.3d 243. Notably, the appellate court will avoid making "its choice of the evidence," and instead will look for clear error in the reasonable basis found by the

273 So.3d 603

trier of fact. BRP LLC (Delaware) v. MC La. Minerals...