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La. court's $3.8 million judgment in survival action asbestos case affirmed

By Heather Isringhausen Gvillo | Nov 13, 2014

BATON ROUGE, La. (Legal Newsline) – Appealing a $3.8 million judgment, a defendant named in a Louisiana asbestos case unsuccessfully argued the lower court erred by considering the surviving plaintiffs’ own pain and suffering in a survival action.

Judge Ernest Drake delivered the Nov. 10 opinion for the majority in Louisiana’s First Circuit Court of Appeals affirming the lower court’s $3.8 million judgment in favor of the plaintiffs. Judges Michael Guidry and Jewel E. Welch concurred. Judge William J. Crain filed a separate concurring opinion.

Judge Randolph H. Parro dissented, concluding that the damages award was excessive given the time period and severity of the decedent’s pain and suffering.

“I respectfully disagree with the affirmance of the trial court’s award of $3.8 million in survival damages in this case, which I believe was an abuse of discretion given the factual circumstances of Mr. White’s illness,” Parro stated.

Plaintiffs Dorothy Carter White, Lucy White, Tommy Lloyd White, Jr., Frederick White and William White filed the survival action for decedent Tommy Lloyd White, Sr., in East Baton Rouge Court against several defendants.

White worked as an operator for defendant Entergy Gulf States Louisiana, LLC, also known as the Louisiana Station, from 1955 until 1974.

As part of his work, the decedent was required to ensure that the equipment was running correctly by performing minor maintenance work in machinery including boilers, turbines and support pumps, where he was allegedly exposed to asbestos.

As a result of his work, White developed mesothelioma in July 2011 and died in August 2011.

Prior to trial, the plaintiffs stipulated that the case would only proceed against Entergy as a survival action.

After a two-day bench trial, the district court ruled in favor of the plaintiffs on June 27, 2013, and awarded general damages of $3.8 million. The district court offered no written reasons for the ruling but spoke briefly on the topic orally. Entergy appealed.

On appeal, Entergy argues that the district court erred when it based the damages award on injuries that are not compensable in survival actions.

Because the plaintiffs did not provide a wrongful death claim for their own anguish and distress due to the decedent’s death, the district court erred when it considered evidence beyond the scope of the survival claim and used the evidence to support the award, the defendant argued.

“The survival claim in this matter is particularly heartfelt by the adult children and through their testimony, the pain of their mother who have been married all of her life to Mr. White,” the district judge said in support of the verdict.

Entergy argues that the district court’s statement demonstrates the error of the lower court, revealing that the court based the survival damages on the plaintiffs’ anguish and distress – rather than the decedent’s anguish – which are not compensable in a survival action.

The appeals court concluded that all of the evidence and testimony presented at trial focused solely on the decedent’s pain and suffering as a result of his asbestos-related injury.

“Although the court made ‘kind statements’ from the bench regarding the heartfelt nature of the case and plaintiffs’ pain in losing her husband and father, there is no indication that the district court was attempting to compensate the plaintiffs for their own injuries, suffered as a result of Mr. White’s death. This assignment of error is without merit,” Drake wrote.

Furthermore, Entergy also argues that the damage award is an abuse of the courts discretion, because survival actions only permit recovery for damages suffered by White from the time of the injury to the moment of death, which was less than six weeks in this case.

Prior to his diagnosis, the decedent had a physically active life. Then during the final weeks of his life, Entergy argues that he was surrounded by his family, was provided with 24-hour care, reported to his caregivers that he was pain free and slipped into a coma several days before his death. He also allegedly told his wife that he was not afraid of dying, meaning his pain and suffering could not have been extensive enough to warrant a $3.8 million judgment.

However, the appeals court found the record reflects the decedent suffered from asbestos-related problems including chest pain, shortness of breath, fatigue, coughing and other breathing problems as early as 2005, and the symptoms worsened as time progressed.

White’s primary care physician Dr. Stephen Speer testified at the trial that the decedent was “miserable” at the time of his death. He said White was “starving for breath” from a lack of oxygen in his body despite being on an oxygen machine, among other worsening symptoms.

“While the award is arguably on the high end of the general damage spectrum, we cannot conclude that the district court abused its vast discretion. Accordingly, Entergy’s assignment of error in this regard lacks merit,” Drake wrote.

In Crain’s concurring opinion, he admitted that he would not have awarded $3.8 million in damages in this case. However, it is the role of the appellate court to review the trier of fact’s exercise of its vast discretion when awarding damages.

“Despite my belief that the damage award in this case is too high, when reviewed under the controlling standard of appellate review, I cannot conclude that the trier of fact’s award for the particular injury and its effect under the particular circumstances on the particular plaintiff is a clear abuse of the trier of fact’s vast discretion,” Crain concluded.

In Parro’s dissent, he compared the damages in this case to awards in other mesothelioma and asbestos-related cases for guidance on an appropriate award.

He found that while two previous cases awarded survival damages for $3 million and $5 million, the plaintiffs in those cases suffered for longer periods of time from “severe, debilitating physical pain as well as mental suffering.”

“Based on the above comparisons, I believe the highest reasonable amount that the trial court could have awarded is $2.8 million. Therefore, I respectfully dissent,” Parro concluded.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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