NEW ORLEANS (Legal Newsline) - The Louisiana Supreme Court cut a $10.5 million jury verdict in an asbestos lawsuit in half, saying an analysis of whether a jury abused its discretion must include an examination of awards in similar cases.
Acknowledging state law gives “much discretion” to juries, the Supreme Court said appeals courts still must take an objective look at damages awards in other cases to decide if an abuse of discretion has occurred. The decision revises a prior rule under which courts first decided whether an abuse of discretion occurred, then decided how much the award should be by looking at other verdicts.
Henry Pete worked as a longshoreman in New Orleans from 1964 to 1968 and later became a chiropractor. He sued a number of companies after he was diagnosed with mesothelioma in 2020, claiming direct exposure to asbestos as well as take-home exposure from his father’s work clothing. Only three defendants went to trial. The jury found Ports America liable for $10.4 million in damages including $2 million for physical pain and suffering, $2.3 million for mental pain and $551,000 for past medical expenses.
Ports America appealed the verdict as excessive but the appeals court affirmed, without comparing it to other cases. Judge Daniel Dysart dissented, writing that recent verdicts in similar cases suggested damages should be half as much. Ports America then appealed to the Louisiana Supreme Court, which cut the award to $5.5 million in an Oct. 20 decision.
Acknowledging it was wading into murky waters, the high court said it was still possible to decide when a jury award was too high.
“We recognize that there can be no completely objective standard for reviewing general damage awards; however, this is no impediment,” opinion author Justice Jay McCallum observed in a footnote. “As lexicographer Samuel Johnson aptly stated: `The fact that there is such a thing as twilight does not mean that we cannot distinguish between day and night.’”
As one justice wrote in 1977, the phrase “abuse of discretion” is inherently self-contradictory, since discretion means the power to decide. But that discretion is not “unfettered,” the Louisiana Supreme Court said, and the only way to judge whether it has been abused is to take an objective look at awards in other cases.
“Without an examination of other general damage awards in similar cases, appellate courts have no objective, neutral, or equitable way to measure whether a general damage award is, in fact, an abuse of discretion,” the court ruled. Otherwise, appellate review would be “overly subjective and, consequently, meaningless.”
Awards in other recent mesothelioma cases included $4 million to a former insulator and $1.5 million to the survivors of a 57-year-old man who died three years after being diagnosed. The court dismissed as “an outlier” a $36 million verdict for a pipefitter this year in a case that was later settled.
“Our goal is not to balance the number of high and low awards and arbitrarily adjust the jury’s award to an average of these awards but to determine the highest reasonable award,” the court concluded.
Justices Scott J. Crichton, Piper Griffin and Jefferson D. Hughes III partially dissented, with Justice Crichton saying the highest award should be $4 million and justices Griffin and Hughes saying prior awards can be examined but the original verdict in this case should stand.