Romano v. Metropolitan Life Ins. Co. (2017)

Our plain-English summary of Romano v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, May 24, 2017).

Frank Romano, Sr. and his wife Lynn sued Union Carbide and other defendants after he developed malignant mesothelioma. He had lived near a Johns-Manville plant in Marrero as a youth and later worked nine to ten months in 1967-68 at Union Carbide's Taft facility, mostly in the stores department, where workers cut asbestos gasket material that produced visible dust. A jury found for the Romanos and awarded medical expenses plus $250,000 for loss of enjoyment of life and $250,000 for other general damages. Both sides appealed. Union Carbide argued it should get a one-half reduction for Johns-Manville's fault and that the causation expert's testimony was unsupported. The court rejected both points: the Romanos never settled with Johns-Manville, so no credit applied, and the expert evidence supported causation. The Romanos argued the general damages were too low. Reviewing Mr. Romano's surgeries, chemotherapy and poor prognosis and comparing other mesothelioma awards, the court found an abuse of discretion and raised general damages to $1,500,000.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Louisiana Court of Appeals, 4th Circuit
• Decided: May 24, 2017
• Citation: 221 So.3d 176
• Docket: NO. 2016-CA-0954
• Stage: Appeal from judgment after trial
• State: Louisiana

Outcome. The court affirmed the jury's liability and causation findings against Union Carbide and refused it a credit for Johns-Manville's fault, but reversed the damages ruling and raised the general damages award for the Romanos from $500,000 to $1,500,000.

What the court held. A solidary obligor gets a virile share credit only if the plaintiff released the other tortfeasor and that tortfeasor's liability was established at trial; absent a settlement, no credit applies. A general damages award that is an abuse of discretion is raised to the lowest amount a jury could reasonably have awarded.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Compensatory Damages, Expert Testimony.

The people and their exposure

• Frank Romano, Sr.: mesothelioma

Who	Work	Where	When	Products
Frank Romano, Sr.	stores department worker (refineries and petrochemical plants)	Union Carbide Corporation's Taft facility, Louisiana	1967-1968	gaskets and packing, asbestos gasket material
Frank Romano, Sr.	nearby resident; lived nearby	Johns-Manville Corporation's plant, Marrero, Marrero, Louisiana	1940s-early 1960s	Johns-Manville

The defendants

• Union Carbide Corporation (premises owner)
• Johns-Manville Corporation (manufacturer)
• Claims Resolution Management Corporation

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Oddo v. Asbestos Corporation Ltd. (Louisiana Court of Appeals, 4th Circuit, 2015). The appeals court reversed the judgment against Clariant/Southern Talc, affirmed Ford's liability, reallocated fault to Ford 65%, Union Carbide 25% and Higgins 10%, and amended the survival damages award against Ford, so the plaintiffs lost against Southern Talc but kept their judgment against Ford.
• Chaisson v. Avondale Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2006). The Louisiana Court of Appeal, Fourth Circuit, affirmed the jury judgment for the Chaisson family against H.B. Zachry Company, including its 42.58% fault share and the wrongful death and survival awards, and rejected both Zachry's appeal and the family's cross-appeal for higher survival damages.
• Zimko v. American Cyanamid (Louisiana Court of Appeals, 4th Circuit, 2005). The appeals court reversed the judgment against Tate & Lyle because workers' compensation exclusivity barred it, affirmed liability and the survival award against American Cyanamid, and cut the wrongful death award against American Cyanamid to 50% by allocating fault equally between the two companies.
• Torrejon v. Mobil Oil Co. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed the trial court's judgment notwithstanding the verdict for plaintiff Christina Torrejon against Mobil Oil Company, including the $1.8 million general damage award, and refused to reduce Mobil's liability for the settling manufacturers' fault.
• Faulkner v. McCarty Corp. (Louisiana Court of Appeals, 4th Circuit, 2003). The Court of Appeal affirmed the bench-trial judgment for the Dock Board, holding it owed no legal duty to the longshoreman and was not strictly liable, so the Faulkner plaintiffs lost.

Later decisions citing this one

16 later decisions in our library cite this one:

• Pete v. Boland Marine and Manufacturing Company, LLC (Louisiana Supreme Court, 2023). The Louisiana Supreme Court held the jury abused its discretion in awarding $9.8 million in general damages against Ports America, reduced that award to $5,000,000, and entered total judgment of $5,551,020.70 for Pete, affirming the rest.
• Pete v. Boland Marine and Manufacturing Company, LLC (Louisiana Court of Appeals, 4th Circuit, 2023). The appeals court affirmed the judgment on the jury verdict against Ports America Gulfport, Inc. (with Cooper T. Smith and Safmarine) for Henry Pete's take-home asbestos exposure and his mesothelioma, including the $10,351,020 award, and rejected Ports America's challenges.
• Walker v. Anco Insulations, Inc. (Louisiana Court of Appeals, 4th Circuit, 2023). The appeals court affirmed the jury verdict and the trial court's judgment for William Walker against Level 3 Holdings, Inc. (formerly Peter Kiewit & Sons), including its 11/21 virile share of the damages.
• Bagwell v. Union Carbide Corporation (Louisiana Court of Appeals, 4th Circuit, 2019). The appeals court affirmed the jury's finding that Union Carbide and Montello were not at fault and the trial court's evidence and instruction rulings, but raised the survival-action general damages against RMC Holdings, increasing the total award from $1,265,000 to $1,498,333.34 in favor of the Bagwell plaintiffs.
• Gooding v. Liberty Mutual Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The district court denied seven defendants' motions for summary judgment (Bayer CropScience, Swiftships, Foster Wheeler, General Electric, ViacomCBS, Bollinger Shipyards Lockport, Boland Marine), leaving the plaintiffs' claims for trial.
• Gooding v. Liberty Mutual Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The district court denied Buck Kreihs's motion for summary judgment against the plaintiffs' claims and Avondale's and Bossier's crossclaims, so the claims against Buck Kreihs go forward.
• Gooding v. Liberty Mutual Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Travelers Indemnity Company's summary judgment motion and dismissed with prejudice the plaintiffs' direct-action claims against it, because there was no evidence the decedent was at Swiftships during Travelers' coverage period.
• Hsieh v. Apache Deepwater, LLC (U.S. District Court, Middle District of Louisiana, 2021). The magistrate judge denied plaintiff David Hsieh's motions to compel discovery against BP, Chevron, Exxon and Texaco, so the defendants prevailed on the motions.
• Jackson v. Avondale Industries, Inc. (U.S. District Court, Eastern District of Louisiana, 2021). The court found genuine disputes of fact on exposure and causation, so Hopeman Brothers and Liberty Mutual (as insurer of Wayne Manufacturing) did not obtain summary judgment against plaintiff Patricia Jackson's estate representative; the issues go to the trier of fact.
• Gaddy v. Taylor Seidenbach, Inc. (U.S. District Court, Eastern District of Louisiana, 2020). The court granted Ethyl Corporation's motion for remittitur, cutting the verdict to $3,250,661.45 ($3,000,000 general damages plus medical expenses) unless Plaintiffs elect a new trial, and denied Ethyl's new-trial and judgment-as-a-matter-of-law motions on all other grounds.
• Gomez v. Aardvark Contractors, Inc. (U.S. District Court, Eastern District of Louisiana, 2020). The district court denied the Jefferson Parish School Board's motion for partial summary judgment seeking an automatic virile share credit for the Johns-Manville Trust, and denied Huntington Ingalls' withdrawn part of the motion as moot, so the plaintiffs prevailed on the motion.
• Lopez v. McDERMOTT, Inc (U.S. District Court, Eastern District of Louisiana, 2020). The court granted Exxon Mobil's motion for summary judgment, dismissing the Lopez plaintiffs' negligence and strict liability claims against Exxon as a premises owner, because Exxon owed no duty and had no care, custody or control of the asbestos.
• Lopez v. McDERMOTT, Inc (U.S. District Court, Eastern District of Louisiana, 2020). The court denied Crosby Valves' motion for summary judgment, finding Mr. Lopez's deposition admissible against Crosby and enough evidence of exposure and substantial-factor causation for the plaintiffs' claims to proceed.
• Lopez v. McDERMOTT, Inc. (U.S. District Court, Eastern District of Louisiana, 2020). The court denied Fisher Controls International's motion for summary judgment, so the Lopez plaintiffs' claims against Fisher go forward.
• Brazan v. Lamorak Insurance Co. (U.S. District Court, Eastern District of Louisiana, 2018). The court granted Joseph Brazan's motion to remand to Orleans Parish Civil District Court, holding that Union Carbide and Amchem failed to show complete diversity, and denied his request for costs, fees and sanctions.
• Gomez v. Aardvark Contractors, Inc. (U.S. District Court, Eastern District of Louisiana, 2018). The court granted Nicholls State's motion to dismiss the executive officer liability, products liability and punitive damages claims (the last two unopposed), denied it as to Gomez's negligence and strict liability claims, and ordered service on the Office of Risk Management within 60 days.

Amounts in the opinion

• $566,274.00 (other)
• $150,000.00 (other)
• $250,000.00 (compensatory)
• $250,000.00 (compensatory)
• $1,500,000.00 (compensatory)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

221 So.3d 176 (2017)

Frank S. ROMANO, Sr. and Lynn Rome Romano

v.

METROPOLITAN LIFE INSURANCE COMPANY, etal.

NO. 2016-CA-0954.

May 24, 2017.

Court of Appeal of Louisiana, Fourth Circuit.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-08969, DIVISION "M" Honorable Paulette R.

Irons, Judge.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

LAWRENCE J. CENTOLA III, SCOTT R. BICKFORD, JASON Z. LANDRY, MARTZELL & BICKFORD, APC, 338 Lafayette

Street, New Orleans, Louisiana 70130 AND LAWRENCE BLAKE JONES, JOSHUA LEE RUBENSTEIN, PATRICK J.

ESKEW, SCHEUERMANN & JONES, 701 Poydras Street 41st Floor, New Orleans, Louisiana 70139, COUNSEL FOR

PLAINTIFF/APPELLANT.

DEBORAH D. KUCHLER, McGREADY LEWIS RICHESON, ERNEST GEORGE FONDAS, FRANCIS XAVIER deBLANC

III, PERRY S. LEE, LEIGH ANN SCHELL, KUCHLER POLK SCHELL, WEINER & RICESON, LLC, 1615 Poydras Street,

Suite 1300, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore). [*179] JAMES F. McKAY III, CHIEF JUDGE

In this mesothelioma case, both the defendant Union Carbide Corporation and the plaintiffs, Frank Romano, Sr. and Lynn Romano, appeal a jury verdict entered by the trial court as well as the trial court's denial of their respective attempts to nullify the jury's verdict. The plaintiffs seek an increase in the quantum of damages, while the defendant questions liability and causation.

FACTS AND PROCEDURAL HISTORY

Frank Romano, Sr. grew up in Marrero, Louisiana and lived about two blocks away from the Johns-Manville Corporation's plant there from the 1940's until he went away to college in the early 1960's. Following college, Mr. Romano worked at Union Carbide Corporation's Taft facility for nine to ten months during 1967 and 1968. For the majority of time that he worked at the Taft facility, Mr. Romano was assigned to the stores department, where his occupational asbestos exposure was thousands of times above background levels on a daily basis.

After he contracted malignant mesothelioma, Mr. Romano and his wife Lynn filed suit against Union Carbide and ten other defendants on September 12, 2014.[1] Two of the defendants, Capital Rubber and Specialty Company, LLC and Gulf Belting and Gasket Corporation, Inc., filed a third party demand against Claims Resolution Management Corporation, as successor in interest to Johns-Manville. The case proceeded to a jury trial, which ran from March 14 through 22, 2016. At trial, Mr. Romano and his treating physicians, Drs. Pettiford and Satti, all testified. Mr. Romano's medical causation expert, Dr. John Maddox, also testified via a video deposition. Testimony at trial indicated that as a result of the diagnosis and treatment of mesothelioma, Mr. Romano underwent a PleurX catheter insertion, or tunnel catheter, to periodically drain fluid build-up in his lungs; suffered from a staph infection as a result of the PleurX catheter insertion that necessitated hospitalization for a week; underwent a radical pleurectomy procedure to remove part of the lining of his lung as well as one of his ribs; endured "hot" chemotherapy (a treatment where physicians bathe the chest cavity with a very high temperature, high concentration chemotherapy agent); endured four rounds of what would be considered traditional chemotherapy; and underwent an additional procedure following his radical pleurectomy to repair diaphragmatic herniation, because Mr.

Romano's intestinal contents herniated from the inside of his abdomen into his chest cavity, causing severe abdominal pain, nausea, vomiting, inability to eat and significant weight loss. His medical bills totaled over $566,274.00 and he continued to be in pain two years following his diagnosis and his numerous surgical procedures. His treating physicians, Drs. Pettiford and Satti, testified that Mr. Romano's survival probability for five years beyond diagnosis was between 10-20%. Dr. Satti believed that reoccurrence was probable in an inoperative location, and that Mr. Romano's future would be filled with prolonged palliative chemotherapy and a very painful and uncomfortable death from mesothelioma. Mr. Romano would experience considerable fatigue, decrease in appetite, weakness and shortness of breath due to accumulating fluid in the lungs. Dr. Satti also testified that Mr. Romano was very stressed when he was diagnosed and that he lives a life of anxiety as he anticipates a reoccurrence of mesothelioma.

[*180] On March 22, 2016, the jury returned a verdict in favor of plaintiffs and against the defendants. Included in the jury verdict were awards of $566,274.00 in stipulated past medical expenses; $150,000.00 in future medical expenses; $250,000.00 for loss of enjoyment of life, past and future; and $250,000.00 for general damages, including past and future physical pain and suffering, past and future mental anguish, and past and future disability. The trial court entered judgment on April 18, 2016, in accord with the jury verdict. After the jury's verdict was entered, the plaintiffs filed their motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative motion for partial new trial on damages only, arguing that these awards were grossly inconsistent with the evidence adduced at trial and quantum in similar cases. On May 26, 2016, the trial court denied this motion. The trial court also denied Union Carbide's request for a verdict reduction for Johns-Manville's fault. On June 3, 2016, the plaintiffs filed a motion and order for devolutive appeal, which the trial court signed on June 6, 2016. Union carbide filed a petition and order for suspensive appeal, which the trial court signed on June 29, 2016.

DISCUSSION

On appeal, Union Carbide raises the following assignments of error: 1) the trial court erred in not reducing the jury verdict by one-half for the fault of Johns-Manville because it is treated as a settled party under Louisiana law and under the provisions of its settlement trust; and 2) the trial court erred in allowing plaintiffs' only medical causation expert to testify regarding unsupported hypotheticals and then erred in not granting a directed verdict due to the absence of any testimony to support a causation finding. Alternatively, the jury's verdict finding Union Carbide at fault should be reversed because plaintiffs' only medical causation expert's opinion was solely based on unfounded hypothetical questions which carry no weight. The Romanos also raise two assignments of error on appeal: 1) the jury abused its discretion when it awarded general damages to plaintiffs in the amount of $250,000.00 for Frank Romano's past, present and future pain and suffering and an additional $250,000.00 for Frank Romano's past, present and future loss of enjoyment of life; and 2) the district court abused its discretion when it denied plaintiffs' motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative, motion for partial new trial on damages only because the jury's award was grossly below other mesothelioma verdicts in this state.

We will first address the assignments of error raised by Union Carbide. In its first assignment of error, Union Carbide contends that the trial court erred in denying its motion in limine and not reducing by one-half for the fault of Johns-Manville because it is treated as a settled party under Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46[2] and the terms of its settlement trust. The trial court found that Union Carbide was not entitled to a virile share credit under the facts of this case as the plaintiffs never settled with the Johns-Manville Settlement Trust. Under pre-comparative fault law, which governs this case, joint tortfeasors were solidarily liable for a tort victim's injury. Under solidary liability, "the obligee, at his choice, [could] demand the whole performance from any of the joint and indivisible [*181] obligors." Berlier v. A.P. Green Industries, Inc., 2001-1530 (La. 4/3/02), 815 So.2d 39, 48. The only remedy available to a solidary obligor from whom the whole performance was sought was to seek "contribution" from the joint tortfeasors in the amount of the joint tortfeasor's "virile share." Daniels v. Conn, 382 So.2d 945 (La. 1980). However, when a plaintiff settled with a joint tortfeasor, the joint tortfeasor was also released from paying contribution to the solidary obligor. See Wall v. American Employers Insurance Co., 386 So.2d 79, 82-83 (La. 1980). The law imposed a tradeoff in this situation that would both produce settlements and cure the solidary obligor's inability to seek contribution from the settling party; plaintiff's recovery against the solidary obligor was reduced by the settling joint tortfeasor's virile share. Id. Before the solidary obligor could receive a "credit" for the settling parties' virile share, the fact that the settling party was in fact a joint tortfeasor had had to be established. Id.; Abram v. EPEC Oil Co., 2005-0626 (La.App. 4 Cir. 6/28/06), 936 So.2d 209, 213.

The risk that a joint tortfeasor was insolvent was borne by the solidary obligor. See former La. C.C. art. 2014.[3] The solvency or insolvency of a joint tortfeasor pertained only to a solidary obligor's ability to recover contribution from the joint tortfeasor, not to the ability of a plaintiff to recover "the whole judgment" from any one solidary obligor. Id. The sine qua non for a solidary obligor's right to receive a "virile share credit" were that 1) the plaintiff released a party, thereby precluding the remaining solidary obligors from seeking contribution from it, and 2) that the released party's liability is established at trial. Wall v. American Employers Insurance Co., 386 So.2d 79. A solidary obligor cannot benefit from a virile share credit unless both of these requirements are met.

A settlement or "compromise" under Louisiana law "is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship." La. C.C. 3071. It is well-settled that a contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. Additionally, La. C.C. art. 3072 provides "[a] compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings." As recognized by this Court, the written compromise is "valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached." Feingerts v. State Farm Mut. Auto. Ins. Co., 2012-1598 (La. App. 4 Cir. 6/26/13), 117 So.3d 1294, 1301. Thus, a compromise or settlement is valid only when the parties intend to enter into a settlement. In the instant case, the Romanos have not settled with Johns-Manville. Therefore, Union Carbide is not entitled to a virile share credit under Louisiana's solidary liability regime. Accordingly, we find no error in the trial court's denial of Union Carbide's motion in limine and not reducing by one-half Union Carbide's liability because of the fault of Johns-Manville. In its second assignment of error, Union Carbide contends that the trial court erred in allowing the plaintiffs' medical causation expert to testify regarding unsupported hypotheticals and then erred [*182] in not granting a directed verdict due to the absence of any testimony to support a causation finding.

Causation is a factual issue to be determined by the fact finder. Cay v. State, DOTD, 93-0887 (La. 1/14/94), 631 So.2d 393, 398. A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La. 1989). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong but whether the factfinder's conclusion was a reasonable one. See Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La. 1992); Housley v. Cerise, 579 So.2d 973 (La. 1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

The "standard of proof in asbestos cases, developed by Louisiana courts over years of asbestos litigation, is known as the `substantial factor' test." "[T]he plaintiff must prove by a preponderance of the evidence that: (1) his exposure to the defendant's asbestos product was significant; and (2) that this exposure caused or was a substantial factor in bringing about his mesothelioma (or other asbestos-related disease)." Oddo v. Asbestos Corp., Ltd., 2014-0004 (La.App. 4 Cir. 8/20/15), 173 So.3d 1192, 1202 citing Robertson v. Doug Ashy Blg. Materials, Inc., 2010-1551, p. 19 (La.App. 1 Cir. 10/4/11), 77 So.3d 360, 372 (citing Rando v. Anco Insulations, Inc., XXXX-XXXX, 2008-1169, p. 38, 16 So.3d at 1092). In the instant case, the plaintiffs' expert industrial hygienist, Kenneth Garza, CIH, testified that any asbestos exposure above a background level is a substantial factor in bringing about the subsequent mesothelioma; he defined background as .001 f/cc. Thus any exposure above .001 f/cc was a substantial factor. The plaintiffs' pathology expert, Dr. John Maddox, confirmed the opinion that asbestos exposure above background is a substantial contributing factor to cause mesothelioma. Dr. Maddox defined background as .0002 f/cc — an order of magnitude less than Mr. Garza'a opinion of background. Wallace Borne, a former Union Carbide employee who worked in the stores department, testified that employees in the stores department handled and cut asbestos gasket material with saws, knifes or box cutters multiple times per day and the cutting process would create visible asbestos dust. Mr. Garza testified that if you can see asbestos dust, the asbestos level is 8 to 10 fibers per cubic foot — well above background level. Union Carbide's own records show that an employee handling gaskests in the stores department was exposed to .07 f/cc levels of asbestos fibers.

Mr. Romano worked at Union Carbide's Taft facility for 9 to 10 months. He spent 5 to 6 of those months in the stores department. Dr. Maddox testified that if Mr. Romano was exposed to visible asbestos dust at the Taft facility once a week for 6 to 8 months, those exposures would be a substantial contributing factor to cause the mesothelioma. Once a week for six to eight months is somewhere between 24 and 32 times. However, the testimony shows that Mr. Romano would have been exposed to visible asbestos dust from gaskets everyday he worked in the stores department (more than 100 times). Dr. Maddox testified that Mr. Romano was exposed to asbestos at Union Carbide at a level ten times above the level necessary

for the experts to opine that the exposure was a substantial contributing factor in causing Mr. Romano's mesothelioma.[4] Accordingly, [*183] we find no error in the trial court's allowing Dr. Maddox's medical causation testimony. We will now address the assignments of error raised by Mr. and Mrs. Romano. In their first assignment of error, the Romanos contend that the jury abused its discretion in awarding general damages of only $500,000.00 for the injuries suffered by Frank Romano, Sr. "General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty." Bouquet v. Wal-Mart Stores, Inc., 2008-0309 (La. 4/4/08), 979 So.2d 456, 458 citing Duncan v. Kansas City So. Rail. Co., 2000-0066, p. 13 (La. 10/30/00), 773 So.2d 670, 682; Boswell v. Roy O. Martin Lumber Co., 363 So.2d 506, 507 (La. 1978).

The standard of review applicable to a general damages award is the abuse of discretion standard. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La. 1976). The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Duncan, 2000-0066, p. 13, 773 So.2d at 682. An appellate court may disturb a damages award only after an articulated analysis of the facts reveals an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Duncan, 2000-0066, p. 13, 773 So.2d at 682-83; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993). To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Theriot, 625 So.2d at 1340; Youn, 623 So.2d at 1261. Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Duncan, 2000-0066, p. 14, 773 So.2d at 683. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Theriot, 625 So.2d at 1340; Reck v. Stevens, 373 So.2d 498, 501 (La. 1979). Prior awards, however, are only a guide. Theriot, 625 So.2d at 1340.

In the instant case, Mr. Romano has suffered and will continue to suffer as a result of his contraction and the treatment of mesothelioma. Mr. Romano endured numerous invasive surgeries and other treatments in his fight against this disease. These included a PleurX catheter insertion to periodically drain fluid build-up in his lungs, undergoing a radical pleurectomy procedure to remove part of the lining of his lung as well as one of his ribs, enduring a radical treatment known as "hot" chemotherapy where physicians bathe the chest cavity with a very high temperature/high concentration chemotherapy agent, enduring four rounds of traditional chemotherapy, and undergoing an additional procedure following his radical pleaurectomy surgery to repair diaphragmatic herniation, where his intestinal contents herniated from the inside of his abdomen into his chest cavity. Mr. Romano also suffered from a staph infection that necessitated hospitalization for a week. Mr. Romano continued to be in pain two years following his diagnosis and his numerous surgical procedures. He will continue to have pain from these procedures and also has to live with the knowledge that there is no cure for mesothelioma. Accordingly, the facts and circumstances surrounding the injuries sustained by Mr. Romano and how [*184] the injuries specifically impacted him show that the jury abused its discretion in awarding general damages of only $500,000.00. We must now resort to a review of past awards for similar injuries. In Zimko v. American Cyanamid, 2003-0658 (La.App. 4 Cir.6/8/05), 905 So.2d 465, an Orleans Parish jury awarded damages of $2,500,000.00 on a survival action for a mesothelioma victim who filed suit against his father's employer, his own employer, and a contractor of his employer alleging negligence, strict premises liability, fraud and intentional acts leading to household, bystander, and occupational exposure to asbestos. The appellate court upheld the verdict against the premises owner.

In Faulkner v. McCarty, 2002-1337 (La. App. 4 Cir. 6/11/03), 853 So.2d 24, this Court upheld a $2,300,000.00 verdict in a case involving death from mesothelioma. In Faulkner, the plaintiff, a longshoreman, filed suit against asbestos manufacturers, the Board of Commissioners for the Port of New Orleans and others. Mr. Faulkner died on August 21, 1998, from malignant mesothelioma as a result of asbestos exposure. Mr. Faulkner's son was substituted in the survival action and asserted a wrongful death claim as well.

In Torrejon v. Mobil Oil Co., 2003-1426 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, an Orleans Parish judge granted the plaintiff's motion for JNOV and awarded general and special damages of $1,800,000 for the plaintiff's decedent (a former merchant mariner) who had contracted mesothelioma after the jury had returned a verdict for the defendant.

In Chaisson v. Avondale Industries, Inc., 2005-1511 (La.App. 4 Cir. 12/20/06), 947 So.2d 171, a pipe-fitter and his daughter sued his former employer seeking damages based on his wife's contraction of mesothelioma as the result of take-home exposure. The appellate court affirmed the Orleans Parish jury award of $1,416,580.54 in survival damages. Based on the evidence put on at trial, Mr. Romano, like most of the individuals who contracted mesothelioma in the aforementioned cases, will most likely die from the reoccurrence of his mesothelioma. Considering that fact in combination with our review of the other cases, a general damages award of only $500,000.00 appears far too low. Our review of the other cases indicates that Mr. Romano's general damages award should be somewhere in the $1.5 million to $2 million range. Since we are instructed by jurisprudence that we should only raise a general damage award to the lowest reasonable amount that a trier of fact could have awarded, we will raise the amount of general damages awarded to the plaintiffs from $500,000.00 to $1,500,000.00.

Due to the position we have taken above it is also evident that the trial court erred in not granting the plaintiffs' motion for a partial judgment notwithstanding the verdict on the issue of damages only, or, in the alternative motion for partial new trial on damages only. The standard for granting or denying a judgment notwithstanding the verdict is whether reasonable minds could differ. Scott v. Hosp. Service Dist. No 1 of St. Charles Parish, 496 So.2d 270, 273-274 (La. 1986). The motion should be granted when the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable jurors could not arrive at a contrary verdict. Id.; See also Joseph v. Broussard Mill, Inc., 2000-628 (La, 10/30/00), 772 So.2d 94; Torrejon v. Mobil Oil Co., 2003-1426 pp. 7-8 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, 884. Likewise, a new trial must be granted when the verdict or [*185] judgment appears clearly contrary to the law and evidence. La. C.C.P. art. 1972(1). CONCLUSION

For the above and foregoing reasons, we affirm the jury and trial court's decisions regarding liability and causation. However, we reverse the jury's verdict as to damages only and the trial court's judgment denying plaintiffs' motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative, motion for new trial on damages only. Accordingly, we now increase the general damages award made to Mr. and Mrs. Romano from $500.000.00 to $1,500,000.00.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED

[1] The Romanos later amended their lawsuit to add two additional defendants.

[2] Unlike the plaintiff in Abadie, Mr. and Mrs. Romano neither settled with nor made a claim against nor received payment from Johns-Manville.

[3] Former Louisiana Civil Code Article 2014 stated: "If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each. If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment."

[4] Prior to trial, Union Carbide had retained its own medical pathology expert, Dr. Thomas Wheeler. However, it chose not to call him at trial.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites