COURT OF APPEAL
FOURTH CIRCUIT STATE OF LOUISIANA
JOSEPH THOMAS / NAMON JOSHUA,
ENTERGY LOUISIANA, INC.; ET AL,
On Appeal from the Civil District Court
For the Parish of Orleans
No. 2000-3410; Division “M”
The Honorable Paula A. Brown, Pro Tempore
Judgment Dated October 7, 2004
December 8, 2005
STATEMENT OF THE ISSUES
1. Whether the jury and trial court manifestly and clearly erred in finding that Appellant was negligent for exposing Namon Joshua to asbestos at Appellant’s Waterford 1 and 2 premises.
2. Whether the trial court improperly exercised its discretion in granting McCarty Corporation’s motion for directed verdict based on a lack of proof of McCarty’s culpability for exposing Namon Joshua to asbestos at Appellant’s Waterford 1 and 2 premises.
3. Whether the jury and the trial court manifestly and clearly erred in finding that Appellant was negligent for exposing Namon Joshua to asbestos at Appellant’s Waterford 3 premises.
4. Whether the trial court abused its discretion in striking John Houghtaling’s second day of testimony, which was redundant of his unstricken first day of testimony, to sanction Appellant for violation of a subpoena, a court order, and its duty of candor towards the tribunal, and if so, whether Appellant proved that it was substantially harmed as a result.
5. Whether the trial court abused its discretion in admitting Plaintiffs’ Exhibit 18, which proved the presence of asbestos at Waterford 3 and was used to impeach Appellant’s witnesses, and if so, whether Appellant proved that it was substantially harmed as a result of the abuse of discretion.
6. Whether the jury and trial court manifestly and clearly erred in failing to assign fault to Johns Manville where the only pertinent evidence was an unspecified, brief amount of time working with a Johns Manville product in a manner that was not proven to have generated respirable dust.
7. Whether the trial court abused its vast discretion in awarding Namon Joshua’s widow, Beatrice, $1.65 million in wrongful death damages.
STATEMENT OF THE CASE
Appellant Entergy Louisiana, Inc., owns the Waterford power generation facilities built for it in Taft, Louisiana. In 1974 and 1975, Namon Joshua worked during the construction of Waterford 1 and 2 as a carpenter building and dismantling scaffolding for insulators, R. Vol. 2 at 97:21-29, during which time he was frequently and regularly exposed to asbestos. Asbestos-containing insulation was used during the Waterford 1 and 2 construction. R. Vol. 4 at 46:26-28, 47:3-5, 47:11-14, 47:20-24; R. Vol. 7 at 169:17-19, 169:28. Dust emitted during asbestos insulation installment generated a “snow storm” in which Mr. Joshua worked unprotected. See R. Vol. 2 at 177:31-32; R. Vol. 5 at 6:10-24, 7:32 – 8:5. Mr. Joshua also was exposed to asbestos cloth, paper, and gaskets (see § I.A infra). Appellant failed to take reasonable precautions necessary to protect Mr. Joshua from asbestos exposures at Waterford 1 and 2. R. Vol. 2 at 95:10-15, 107:8-23, 158:25-28. Appellant controlled the construction site (see § I.C infra, discussing ELI Exs. 1-2, and witness testimony). Appellant’s contract with Mr. Joshua’s employer, McCarty, did not require that McCarty furnish asbestos-free insulation, nor did it prohibit asbestos (see ELI Ex. 2 and discussion at § I.B infra).
Mr. Joshua also worked for eight years at Appellant’s Waterford 3 premises during its construction from 1977 through 1985. He sustained substantial exposures to a variety of asbestos-containing products, including insulation, floor tiles, and gaskets, and for example performed constant remodeling work amidst asbestos dust generated from the tear out of asbestos tiles in approximately one hundred or more trailers or buildings. See R. Vol. 4 at 10-14, 16-20, 23-24, 75-88; R. Vol. 7 at 19-21, 42-50; Pl. Exs. 18, 25, 32, 33, 34, 35, 37, 38 (as discussed infra at § II). Appellant failed to take reasonable precautions necessary to protect Mr. Joshua from asbestos exposures at Waterford 3. R. Vol. 2 at 95, 105, 107, 157, 162-64; R. Vol. 4 at 20-21.
Namon Joshua died after a battle with lung cancer caused by his asbestos exposures at Appellant’s Waterford facilities. R. Vol. 3 at 9, 53-54. He is survived by his wife of 48 years, Beatrice Joshua, and their five children.
ACTION OF THE TRIAL COURT
The jury found that Appellant’s negligence caused Mr. Joshua’s death, assigned 60% fault to Appellant, and awarded survival and wrongful death damages. The trial court entered judgment against Appellant accordingly, awarding $666,666.66 to the family for the survival action, $1,650,000 to Namon Joshua’s widow, Beatrice, and $150,000 to each of their five children, with interest and costs. R. Vol. II at 463-65.
THE APPELLANT, NOT McCARTY, IS LIABLE FOR EXPOSING NAMON JOSHUA TO ASBESTOS AT WATERFORD 1 AND 2.
(responding to Appellant’s first and second assignments of error)
As explained below at Section I.A, a reasonable jury could find that Appellant was negligent in causing Mr. Joshua’s substantial asbestos exposures. In trying to blame McCarty, Appellant fixates solely on asbestos insulation, theorizing that because McCarty allegedly smuggled it onto Appellant’s property unbeknownst to Appellant, only McCarty is liable. The record belies Appellant’s theory of the case: 1) Mr. Joshua was exposed to asbestos cloth, asbestos blankets, and asbestos gaskets at Waterford 1 and 2 (see § I.A infra), yet Appellant’s arguments relate solely to insulation; 2) Appellant’s entire first and second error assignments rely on a fictitious account of the contract (see § I.B infra); and 3) Appellant’s argument that it “had absolutely nothing to do” with the facility’s construction (Appellant’s Br., p. 22) is equally shocking in its inaccuracy (see § I.C infra). These assignments of error depend upon “facts” which are not true.
Appellant Was Negligent in Exposing Namon Joshua to Asbestos at Waterford 1 and 2.
A trial court’s factual findings may not be reversed unless a reasonable factual basis does not exist in the record, and the record establishes that the finding is manifestly erroneous or clearly wrong. Hoerner v. ANCO Insulations, Inc., 2000-2333, p. 4 (La. App. 4 Cir. 1/23/02); 812 So. 2d 45, 53-54 (cit. om.). “Further, ‘where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.’” Martin v. Performance Motorwerks, Inc., 2003-1219, p. 5 (La. App. 4 Cir. 6/16/04); 879 So. 2d 840, 843 (cit. om.). The jury was not clearly wrong nor did it act without a reasonable factual basis in finding that Appellant negligently caused Mr. Joshua’s deleterious asbestos exposure at Waterford 1 and 2.
Appellant’s first error assignment depends on the fallacy that Plaintiffs are holding Appellant liable for what McCarty did. After discussing the alleged relationship among Appellant, Ebasco, and McCarty (which recital Plaintiffs deny), Appellant arrives at its only legal point, that “As a general rule, property owners are not liable for the negligence of an independent contractor.” Appellant’s Br., p. 13. This argument is irrelevant because Plaintiffs’ case against Appellant is not based on the negligence of an independent contractor, but rather the negligence of Appellant.
As the property owner, Appellant had a duty “to keep such property in a reasonably safe condition” and to “discover any unreasonably dangerous conditions on the premises and correct the condition or warn potential victims of its existence.” Hutchison v. Knights of Columbus, Council No. 5747, 2002-1817, p. 4 (La. App. 4 Cir. 5/7/03); 847 So.2d 665, 668 (cit. om.), aff’d, 2003-1533 (La. 2/20/04); 866 So.2d 228. Landowners have a general duty “to refrain from acting negligently toward those they know or should have known will come onto their property.” McGuire v. New Orleans City Park Imp. Ass’n, 2002-1401, p. 5 (La. 1/14/03); 835 So.2d 416, 419. A premises owner’s duty extends to individuals who are working under the employment of third parties while on the premises. Thus in Sandbom v. BASF Wyandotte, the court upheld a finding of negligence against a property owner because it failed to warn a contractor’s employee “to protect himself from exposure to potentially toxic chemicals” at the facility. 674 So.2d at 353. The court reasoned that workers “needed to be informed of the chemicals to which they would be exposed in the course of their work” and that the property owner “was in a superior position to Louisiana Environmental [the alleged independent contractor] and Mr. Sandbom [Louisiana Environmental’s employee] to test for and learn the exact nature of the chemicals.” Id. at 357. Under such circumstances the owner “owed to Louisiana Environmental and Mr. Sandbom the duty to notify them of the chemical hazards which could be encountered.” Id.
Here, too, Appellant as premises owner breached its duty to Namon Joshua. The Joshuas’ expert industrial hygienist, Dr. Vernon Rose, explained that Appellant did not take the control preventative measures and steps necessary at the time that Mr. Joshua worked at Waterford 1 and 2 to reduce and prevent asbestos exposure. R. Vol. 2 at 95:10-15; see also id. at 107:8-23 (lack of warnings and control measures); id. at 158:25-28 (lack of air sampling). Co-worker testimony further confirmed that necessary safety methods were not employed at Waterford 1 and 2. Compare id. with R. Vol. 2 at 176:1-27, 180:10-12; R. Vol. 4 at 49:27-31; R. Vol. 5 at 9:29 – 10:6. Appellant’s designated corporate representative testified in his deposition that there were no mechanisms to try to reduce dust, and he could not say that any workers were warned of asbestos at the site. R. Vol. 7 at 181:30 – 182:10, 185:13-29.
The Joshuas presented medical causation testimony that Mr. Joshua’s Waterford exposures were a substantial contributing factor causing his lung cancer and other asbestos-induced lung damage. R. Vol. 3 at 53-54. Appellant does not dispute the medical testimony in this appeal.
While Appellant disputes who is to blame for any asbestos exposure Namon Joshua sustained, it cannot deny that asbestos was used during the construction of its facility, while Mr. Joshua worked there. Appellant’s own counsel admitted in opening that, “There will also be evidence that there was some asbestos products at Waterford 1 and 2.” R. Vol. 1 at 42:22-24. Appellant’s corporate representative admitted that asbestos products were used during the construction of Waterford 1 and 2, and that in some cases they were required. R. Vol. 7 at 143:1-4, 144:3-7, 145:26-27; see also R. Vol. 2 at 102:15-23 (presence of asbestos at 1 and 2). Appellant quarrels over whether McCarty used asbestos insulation, and its first two assignments of error focus exclusively on this as the only alleged source of asbestos. Appellant’s analysis overlooks that it was negligent in causing Mr. Joshua’s exposure to other contractors’ work and to other asbestos products.
In addition to McCarty, there were numerous other contractors at Waterford. R. Vol. 7 at 182:23-25. All of the crafts worked together; the job set-up rendered segregation an impossibility. R. Vol. 2 at 191:3-6, 191:17-30; R. Vol. 4 at 53:19. Appellant is culpable for engineering a job site that forced different workers and disciplines together in the same space. See Hoerner v. ANCO Insulations, Inc., 2000-2333, p. 7 (La. App. 4 Cir. 1/23/02); 812 So. 2d 45, 55 (“Work situations where one
contractor’s employees were working next to another contractor’s employees violated federal standards.”).
Appellant – not McCarty – maintained a storeroom at the plant site. ELI Ex. 2, p. 103 at art. D-5.7 (“Owner’s storeroom at plant site”). One asbestos product that Appellant required was asbestos cloth. Three coworkers described the different uses of asbestos cloth. Oscar Lewis worked next to Namon Joshua at Waterford 1 and 2. R. Vol. 5 at 4:26-29. As a carpenter, Mr. Joshua’s job duties included building and tearing down scaffolding. Id. at 5:15 – 6:1. Mr. Lewis testified that asbestos cloth and other products were cut and applied, creating dust, and that he and Namon Joshua were in the area where these activities transpired and breathed that dust. Id. at 6:10-24, 7:32 – 8:7. For “a year or better” Mr. Lewis observed Mr. Joshua working six or seven times a day in the conditions he described. Id. at 9:5-10.
The use of asbestos cloth at Waterford 1 and 2 was also recounted by Ellis Bourque and Steven Williams. R. Vol. 2 at 167:11-17, 167:24-28, 170:9-18, 170:22 – 171:22; R. Vol. 4 at 46:32, 49:32 – 50:3. 53:4-13. Dust was generated when the asbestos cloth was cut, installed, and removed; it became dry and brittle, “would generally come apart and fly all over the place,” and this dust “got in the air and it got all over the platform.” R. Vol. 2 at 170:22-25, 171:14-22; see also R. Vol. 4 at 53:11-13. Construction processes requiring asbestos cloth occurred throughout the plant, by dozens of workers at any one time, including in the vicinity of carpenters. Dust generated from asbestos cloth was deposited on scaffolding, would fall through the building when carpenters removed the scaffolding, and would also become airborne during sweeping. Appellant does not aver that this cloth was supplied by McCarty. Two coworkers described it as being cut from a big roll. R. Vol. 2 at 170:9-18; R. Vol. 4 at 53:4-8. Big rolls of asbestos cloth were kept on the heater deck, so situated for convenience at a midway point in the construction project. R. Vol. 2 at 168:22-30, 169:19-29.
Workers obtained asbestos paper from the same location, id., and it too was manipulated in a way that generated dust. As with the asbestos cloth, the testimony reflected frequent, widespread use of asbestos paper. See R. Vol. 2 at 173:11-28. Appellant does not theorize that McCarty furnished such paper.
Another source of asbestos was from gaskets, which Appellant’s designated corporate representative admitted were present. R. Vol. 6 at 76:13-15. Grinding of asbestos gaskets without safety instructions or precautions at Waterford 1 or 2 generated airborne asbestos dust. See R. Vol. 2 at 171:23 – 172:5, 172:14-26, 176:13-27, 186:10-20, 187:20-21, 187:24-26. Again, these gaskets were not smuggled onto Waterford 1 and 2 as part of some clandestine McCarty plot. Rather, they were delivered to the warehouse and the construction workers retrieved them on an as needed basis. R. Vol. 2 at 186:24-27, 186:31-32.
Appellant raises the specter of OSHA, but OSHA only evinces Appellant’s culpability. Documentary references to OSHA prove that Appellant knew that workers at its site were in danger of asbestos exposure. See, e.g., ELI Ex. 2, pp. 113, 120. On this issue, Dr. Rose explained that OSHA would hold Appellant accountable as the premises owner.
Appellant’s Arguments Rely on Fictitious Contract Language.
Appellant’s first and second “issues presented for review” depend on the purported fact that Appellant “had contracted to install asbestos-free thermal insulation” and that “McCarty violated its contract with ELI and Ebasco to provide asbestos-free thermal insulation,” respectively (Appellant’s Br., pp. 6-7). Further, Appellant’s second issue statement avers that it allegedly was “never advised” of the asbestos-containing thermal insulation (Appellant’s Br., p. 7). Appellant’s arguments rely on “facts” that are not true.
To make its case, Appellant fabricated contract language. Appellant claims that any asbestos insulation was installed by McCarty in violation of the contract and without Appellant’s knowledge (Appellant’s Br., p. 18). In support of the allegation that McCarty furnished materials, Appellant purports to quote the contract:
[P]ursuant to the terms and conditions set forth in the contract, McCarty was obligated to “furnish all materials, labor, tools, falsework, scaffolding, cribbing, rigging, water, air, steam, and electrical energy, equipment and supplies that may be required to accomplish the work under this Contract,” as well as “furnish and provide all material, labor, supervision, tools, plant, apparatus, conveyances, equipment and incidental expenses required for accomplishing the work covered by this Contract unless otherwise provided for.” ELI Exhibit No. 2, p. 87, 99.
Appellant’s Br., p. 12. The first quoted phrase appears to be plucked from page 84 (not 87), but omitting the pertinent clause “unless otherwise provided for.” ELI Ex. 2, p. 84 at art. C-8.C. The second quote is wrong, omitting the “except” clause which disproves Appellant’s case and, curiously, substituting other words in its place. The contract reads as follows, with bolding of the words that Appellant’s brief excised and replaced with different words:
The Contractor shall furnish and provide all material, labor, supervision, tools, plant, apparatus, conveyances, equipment and incidental expense required for accomplishing the work covered by this Contract, except the materials and services specifically mentioned in Article D-5 hereof to be provided by Owner.
ELI Ex. 2, p. 99; see also Pl. Ex. 29 (excerpt of same contract) (emph. supp.).
The bolded text, which Appellant’s brief changes, belies Appellant’s theory of the case. The “Owner” is Louisiana Power & Light, the name Appellant used at that time. ELI Ex. 2, p. 82; Pl. Ex. 29 at art. C-1.A.1. The copious materials that the Owner supplied per Article D-5 included “Insulation material and related incidentals for main turbines, piping and accessories – fob delivery conveyances at plant site.” ELI Ex. 2, p. 102; Pl. Ex. 29 at art. D-5.1. Appellant’s records prove that eight of eight
samples taken from the turbines were positive for asbestos. Pl. Ex. 30; R. Vol. 6 at 85:15-21.
Contradicting Appellant’s fictitious version of the contract, its designated representative, Gustave M. VonBodungen, testified as follows:
Q. Did it, as part of the contract, Louisiana Power and Light agreed to furnish insulation materials and related incidentals to the main turbine pipes and any accessories?
A. Yes, sir. That is what it says.
R. Vol. 6 at 62:12-16. Mr. VonBodungen also admitted that asbestos-containing insulation material “would probably be a material that could be used” under the terms of Subpart B of this contract. R. Vol. 6 at 70:21-26, 72:18-24. The contract repeatedly calls for the use of asbestos products, including asbestos insulation, and additionally discusses worker exposures to asbestos, including exposures in excess of OSHA limits. See, e.g., ELI Ex. 2, p.120, at art. D-9.
Contrary to the fiction repeatedly advanced in Appellant’s Brief, no contract forbade McCarty from installing asbestos insulation. To support the existence of the imaginary contract prohibition, Appellant relies on James Brooks’ testimony (Appellant’s Br., p. 18). Brooks lacks any indicia of credibility. He had been so brazenly untruthful in his deposition that defense counsel at trial tried to preemptively rehabilitate his several deceits by leading him (not without some irony) to blame inadequate deposition preparation. See, e.g., R. Vol. 7 at 154:9-11 (“Q. Were those provided to you for review at your deposition? A. No.”). The problem with making contradictory statements while under oath ultimately became so obvious to Brooks himself that he resorted to impeaching himself, repeatedly claiming that he could not remember what happened thirty years ago. Appellant’s Brief cites the pages of Brooks’ testimony in which he maintains that Thermo-12 was the asbestos-free insulation McCarty allegedly contracted to install (Appellant’s Br., p. 18 (citing R. Vol. 7 at 138-40, in which Brooks presents his Thermo-12 theory)). However, this is one of the subjects regarding which Brooks either “fibbed” or suffered one of his several memory lapses:
Q. [By Plaintiffs’ counsel]: Let’s talk about … Waterford 1 and 2. You seem to have a pretty clear idea today that the material that was used for thermal insulation was the product known as Thermo-12. Do you remember that?
A. [By Brooks]: That’s right.
Q. You were talking about that earlier. Two weeks ago [when he was deposed], however, you identified that product by the trade name Kaylo. Do you remember that?
Q. Which one was it?
Q. So you were fibbing to Mr. Waddell [Plaintiffs’ counsel at the deposition]?
A. No, I was not fibbing.
Q. What did you do?
A. I didn’t remember that it was that. I did not lie about it. I did not lie about it. It was my recollection that it was Kaylo.
Q. Because you saw boxes?
A. Because of a document I had seen recently had Kaylo in it. I came back to memory.
Q. You said you saw boxes with Kaylo written on the side of it in your deposition, do you remember that?
A. That again is a fact of 30 years ago. You are asking me a question today of what happened 30 years ago.
R. Vol. 7 at 169:10 – 170:6. Brooks’ testimony bears no evidentiary weight. Because there was never a contract provision prohibiting McCarty from installing asbestos insulation, Appellant’s first and second assignments of error fail.
Appellant Had Custody and Control Over the Site It Owned.
Appellant’s first two arguments also fail because they rely on another fallacy, that Appellant “had absolutely nothing to do” with the construction of Waterford 1 and 2 (Appellant’s Br., p. 22). This is another subject for which Appellant cites Brooks’ ill-fated testimony (Appellant’s Br., p. 9 (citing Vol. 7, Brooks’ testimony)). In addition, Appellant extracts the following contract sentence as purported proof that “McCarty exercised complete control”:
The means employed for doing the various classes of [insulation] work shall be at the option of the Contractor, subject to such suggestions or approval by the Engineer as may be necessary to safeguard the character and results of all features of the work.
Appellant’s Br. pp. 12-13 (quoting ELI Exhibit No. 2, p. 105)(emph. supp.). The “approval by the Engineer” clause disproves that McCarty had “complete control.” The Engineer means “the Chief Engineer of Louisiana Power & Light Company [Appellant’s name at the time] or his authorized agents.” ELI Ex. 2, p.82; Pl. Ex. 29 at art. C-1.A.2 (emph. supp.).
Not only is Appellant’s “complete control” conclusion inconsistent with the one sentence it plucks from an 178 page document, but this claim is further belied by the portions of the contract Appellant chose not to quote. The contract defines Appellant as the Owner, ELI Ex. 2, pp. 3, 82, and grants the Owner broad powers. The Owner could accept McCarty’s work or not. The Owner could change McCarty’s work and work schedule and even terminate McCarty’s work. McCarty provided “daily time sheets to the Owner showing each workman’s name and craft and the number of straight and overtime hours worked, together with such other substantiation as the Owner may require.” ELI Ex. 2, p. 76. McCarty had a duty to provide upon request “exposure hours of employees[.]” Id., p. 101 at art. D-4. On the issue of OSHA citations, evidence of a timely protest was to be given “to the Owner.” Id., p. 101 at art. D-4. The contract is replete with other miscellaneous powers the Owner exercised, as well as references to work the Owner itself performed.
Appellant cites the final construction report as allegedly proving its innocence (Appellant’s Br., pp. 11-12). The report, however, chronicles Appellant’s “responsible” participating employees, including superintendents. ELI Ex. 1, pp. 70-71. Among the list of Appellant’s employees is the Production Manager, D. L. Aswell (id. at 70), whose personal involvement, authority, and control are described throughout the report. Appellant also controlled the purse strings.
Appellant obviously knew what insulation materials it was buying per article D-5 of the contract, but in addition, all materials at Appellant’s construction site were subject to “minute inspection.” Appellant’s corporate representative John Houghtaling testified that Ebasco and Appellant worked together to specify the products that came on site and that Ebasco did not act without Appellant’s knowledge and consent. As Dr. Rose explained, Appellant controlled which products came onto the site and “certainly say what comes on and what doesn’t come onto their property.” R. Vol. 2 at 100:16-23; see also id. at 154:29-30.
Dr. Rose additionally testified that, “From my reading of the documents, [Appellant] had the ultimate authority to approve what workers were doing on the site that was being built.” R. Vol. 2 at 99:27-30; see also id. at 99:31-100:1. Appellant was therefore responsible. Id. at 163:29 – 164:5. Other witnesses testified that Appellant’s employees were present and inspected the construction, and that Appellant was the company empowered with ownership and control.
The credible evidence proves Appellant’s legal control. Appellant had a duty to undertake reasonable inquiries and inspections to ensure the safety of individuals on the property. While constructive notice alone can trigger liability, Appellant had actual notice of the products it furnished and minutely inspected.
McCarty was not an independent contractor. In Williams v. Gervais F. Favrot Co., 499 So. 2d 623 (La. App. 4 Cir. 1986) (quoted at Appellant’s Br., pp. 13-15), the independent contractor provided “all supervision,” provided all materials, provided all supplies, was “fully responsible,” had “full directing authority,” was “solely responsible,” and “controlled access to the job site[.]” 499 So. 2d at 625-26. Appellant, in stark contrast, supervised and controlled the site, provided insulation and other materials and supplies, inspected materials, and had sweeping powers over the work, including the powers to accept, reject, or demand changes. That its contract with McCarty parroted the words that McCarty was an independent contractor does not bind Namon Joshua, who was not a party to that contract.
Moreover, none of the exceptions to the independent contractor rule applied in Williams. 499 So. 2d at 626. One exception is that, “an owner may be liable for
exercising control over the contractor’s methods of operation or giving express or implied authorization to an unsafe practice.” Davenport v. Amax Nickel, Inc., 90-0289 (La. App. 4 Cir. 10/11/90); 569 So.2d 23, 28 (citing Williams). The recitals in the contract and in the final construction report, the eye witness accounts, and Dr. Rose’s testimony demonstrate the applicability of this exception.
The Trial Court Did Not Abuse Its Much Discretion in Granting McCarty a Directed Verdict.
Appellant fails to elucidate that it was harmed by the directed verdict in McCarty’s favor. Had Appellant truly believed that McCarty was to blame, it could have pursued a third party claim against it, but chose not to do so. See R. Vol. 11 at 52:27-30.
A trial judge has much discretion in determining whether to grant a directed verdict. Davis v. Bd. of Supervisors of La. State Univ., 2003-2219, p. 7 (La. App. 4 Cir. 11/17/04); 887 So.2d 722, 727. In explaining why a directed verdict was granted in McCarty’s favor, the trial court stated, “I sat up here for 10 or 12 days and I listened to the testimony that was elicited and that was directed toward you [Appellant] not toward McCarty…. [Plaintiffs] didn’t put on any evidence against them. They put it on against you.” R. Vol. 11 at 56:12-15, 56:21-22.
Plaintiffs’ coworkers described the presence of Appellant’s employees at the site, but not the McCarty supervisors, who did not own the premises and had no authority to control the mishmash of overlapping trades fulfilling Appellant’s bidding. Appellant contends that McCarty controlled Mr. Joshua’s work and posits that if Appellant is liable then McCarty must be liable. Appellant’s Br., pp. 15-17. This analysis overlooks that there were seven or eight contractors, R. Vol. 7 at 182:23-25, and Appellant as the owner of the site was empowered to hire, fire, and control them, all of which McCarty was powerless to do.
Appellant’s analysis depends upon the untrue claim that it had “absolutely nothing to do” with the Waterford 1 and 2 construction, the falsity of which is elaborated above. Indeed, at the pretrial stage of this litigation, Appellant argued that it was Namon Joshua’s “statutory employer” and as such enjoyed immunity. R. Vol. IV at 27:30 – 29:21. Now, Appellant theorizes that Mr. Joshua’s employer is not immune and in fact is liable under the same Title that Appellant invoked in its erstwhile advances of putative immunity (compare id. with Appellant’s Br., pp. 16-17 (citing Rev. Stat. Title 23)). Citing this Title, Appellant now theorizes that McCarty breached its duty by sneaking asbestos onto Appellant’s premises. Appellant’s argument depends on the repeated “fact” that any asbestos to which Mr. Joshua was exposed was surreptitiously smuggled against Appellant’s innocent wishes and contrary to a contract prohibition forbidding McCarty from doing so. Because this is not true (see § I.B supra), the McCarty argument fails.
Appellant’s reliance on Dr. Rose’s testimony likewise is misplaced. Appellant quotes Dr. Rose’s answer to a question, “‘let’s assume that the contractor informed Ebasco under the contract specifications that we are going to be installing asbestos-free insulation.’” Appellant’s Br., p. 20. Because Appellant never proved the assumption, Dr. Rose’s answer to this inapposite hypothetical is unavailing.
THE JURY WAS NOT MANIFESTLY AND CLEARLY WRONG, AND DID NOT ACT WITHOUT ANY REASONABLE BASIS, IN FINDING APPELLANT NEGLIGENT FOR EXPOSING NAMON JOSHUA TO ASBESTOS AT WATERFORD 3.
(responding to Appellant’s third assignment of error)
A trial court’s factual findings should not be reversed unless a reasonable factual basis does not exist in the record, and the record establishes that the finding is manifestly erroneous or clearly wrong. See Hoerner v. ANCO Insulations, Inc., 2000-2333, p. 4 (La. App. 4 Cir. 1/23/02); 812 So. 2d 45, 53-54 (cit. om.). “Further, ‘where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.’” Martin v. Performance Motorwerks, Inc., 2003-1219, p. 5 (La. App. 4 Cir. 6/16/04); 879 So. 2d 840, 843 (cit. om.). The jury was not clearly wrong nor did it act without a reasonable factual basis in finding that Appellant was negligent in causing Namon Joshua’s substantial exposure to asbestos at Waterford 3.
Medical causation testimony linked the Waterford exposures to Mr. Joshua’s illness and death. R. Vol. 3 at 53-54. Plaintiffs’ industrial hygienist Dr. Vernon Rose testified that Appellant did not take the control preventative steps necessary, that it failed to warn, and that it was responsible for asbestos products on the site. R. Vol. 2 at 95:10-15, 105:22-26, 107:8-11, 107:24-31, 162:19-25, 163:29 – 164:5; see also R. Vol. 4 at 24:17-20 (coworker testimony that he was not warned about asbestos until the late 1990s). Appellant inspected the products used at Waterford 3. R. Vol. 2 at 157:9-21. Appellant was on site during the construction, had authority, and acted as it chose. See R. Vol. 4 at 44:6-21, 93:13-24. Appellant’s own witness described its knowledge and active involvement. See R. Vol. 7 at 14:5-18.
Appellant does not seriously challenge these facts at to Waterford 3, but rather posits that Mr. Joshua was not substantially exposed to asbestos during the eight years that he worked at the Waterford 3 construction site. In advancing this argument, Appellant ignores the evidence against it. Appellant represents that “there was absolutely no evidence” that Mr. Joshua was exposed at Waterford 3 (Appellant’s Br., p. 25), a curious statement given that Appellant’s counsel admitted to the trial judge (who, after all, was there) that Plaintiffs presented evidence of exposure: “They can conclude that he was exposed,” R. Vol. 11 at 49:30-31, counsel conceded, choosing to then quibble over how exposed he was. On appeal, Appellant inconsistently declares there was “absolutely” no exposure evidence.
Houghtaling, Appellant’s witness designated to testify regarding asbestos at Waterford 3, admitted that Appellant did not intend to build Waterford 3 free of asbestos and that asbestos-containing materials were used in the construction. R. Vol. 7 at 3:29 – 4:2, 12:25-27, 14:22-25. A 1990 report proved that three samples tested in an area where craftsmen or tradesmen worked were positive for asbestos. R. Vol. 7 at 51:29 – 52:1. One of Plaintiffs’ coworkers testified that he searched his computer terminal in the materials handling department for asbestos products, that “list, after list, after list” of asbestos products popped up, and that he could tell by the dates that these were products used during site construction. R. Vol. 4 at 9:5-16, 9:23-28, 10:14-17; see also Pl. Ex. 18. Plaintiffs proved through Appellant’s records where the asbestos materials were, and proved through the testimony of two of Mr. Joshua’s coworkers that Mr. Joshua worked with and inhaled dust from these materials.
Through coworker testimony, Plaintiffs proved that Namon Joshua worked around and was exposed to pipe insulation while building scaffolding during the construction of Waterford 3, that particles of the insulation became airborne when it was cut, that there “was nothing but dust,” and that the amount of insulation involved was massive. Even Appellant’s representative Houghtaling admitted that insulation may release fibers upon installation and removal. R. Vol. 7 at 13:28 – 14:1 Appellant’s own documents declare that, “All thermal and system insulation is presumed to be asbestos-containing material, unless otherwise identified as not containing asbestos,” and Houghtaling admitted that none of the Waterford 3 pipe insulation is designated as not containing asbestos. R. Vol. 7 at 80:10-15, 81:3-6; see also Pl. Exs. 37, 38. Testing for insulation at Waterford 3 revealed a significant amount of asbestos. R. Vol. 7 at 49:3-4, 49:17-22. A reasonable jury could conclude that Namon Joshua inhaled particulates of asbestos-containing insulation.
Mr. Joshua sustained substantial exposure to asbestos particularly in the areas of the turbine generators and the turbine doghouse. Appellant’s internal documents proved that spray-on in the turbine area contained asbestos, that bulk sampling from the turbine doghouse was positive for asbestos, and that wedges of insulation removed from the turbine generators had a significant amount of asbestos. R. Vol. 7 at 19:14-21, 20:22-27, 21:4-6, 23:3-6, 42:29 – 43:15, 49:3-4, 49:17-22, 50:1-17; see also Pl. Exs. 34, 35. Mr. Landry testified that he and Mr. Joshua worked together on the turbine and in the turbine doghouse, that the doghouse was congested and filled with insulated pipe, that they built scaffolding for pipefitters, insulators and millwrights in and around the turbine area, and that during this process the insulation was disturbed. R. Vol. 4 at 77:27-31, 83:1 – 84:8, 84:26 – 85:7, 87:25-30, 88:3-13, 88:26. Appellant largely ignores this evidence.
In addition, Appellant called for the use of asbestos gaskets at multiple locations throughout Waterford 3. R. Vol. 7 at 60:18-25; see also Appellant’s Br., p. 36 n.9. Garlock 900 asbestos-containing gaskets were one such product. Pl. Ex. 18. Even when non-asbestos gaskets were available, Appellant continued to order and stock hundreds of asbestos gaskets. R. Vol. 7 at 61:7-15, 62:1-9. Namon Joshua’s coworkers testified that he worked as a carpenter building scaffolding for pipefitters removing gaskets, that the grinding of asbestos gaskets always created dust, that this was a normal and commonly seen occurrence, that carpenters built scaffolds so that pipefitters could access the gaskets, that dust was then created and fell on the scaffolds, that the dust was on the scaffolds when the carpenters removed them, that precautions such as vacuuming to ameliorate the dispensation of dust from the scaffolds were not taken, and that dust was further created during sweeping. R. Vol. 4 at 10:27-28, 11:4-6, 11:17 – 12:1, 13:6-15, 13:21 – 14:3, 14:32 – 15:2, 80:15-30, 81:6 – 82:11, 82:27-32. The practice of using grinders to remove asbestos gaskets, the foreseeability of such practice, and the resulting emission of respirable asbestos fibers has been well documented. See, e.g., Hennegan v. Cooper/T. Smith Stevedoring Co., 2002-0282, p. 17-18 (La. App. 4 Cir. 12/30/02); 837 So.2d 96, 107-08.
One of Mr. Joshua’s coworkers testified that he supervised Mr. Joshua at Waterford 3, and that, “[w]e would tear down buildings and cut holes in buildings and install air conditioning, remodel them, tear down trailers, put up trailers, removing flooring, put down flooring. That was my constant thing.” R. Vol. 4 at 16:30 – 17:2. Two coworkers testified that Mr. Joshua removed floor tile. R. Vol. 4 at 19:18-22, 20:8-10, R. Vol. 4 at 75:29 – 76:2. The tile was tenaciously attached, and its extraction required a machine-powered scraper with a six-inch blade. R. Vol. 4 at 19:26-30. During removal, the brittle tile flew into “millions of pieces” and there was “no question” that a dusty atmosphere was created. R. Vol. 4 at 19:31 – 20:6, see also id. at 20:25-26 (“it is unbearable the dust”), 38:27-32. Mr. Joshua was in the room breathing the dust created during this process. R. Vol. 4 at 76:8-15. No precautions were taken. R. Vol. 4 at 20:31 – 21:1. There were 100 trailers, now gone, in addition to 30 or 40 buildings, only a “very few” of which Mr. Joshua and Mr. Cosse did not work in. R. Vol. 4 at 20:8-19; see also R. Vol. 4 at 75:11-17 (describing “Trailer City,” and remodeling performed to change up office space).
Houghtaling testified that asbestos-containing products were “part of the specifications. Like in floor tile, it was literally specified to be vinyl asbestos floor tile.” R. Vol. 7 at 14:29-32. He further stated that the Vinyl Asbestos Tile Flooring document (see Pl. Ex. 25) was the specification for vinyl asbestos floor tiling for the Waterford 3 facility. R. Vol. 7 at 15:4-9. His admission on the stand would lead a reasonable person to conclude that there were no other floor tiles used at Waterford 3: Houghtaling admitted that, “I am not aware of there being a substitute available at the time.” R. Vol. 7 at 15:23-24. Test results on tile at Waterford 3 came back positive for asbestos content. R. Vol. 7 at 42:1-19, 45:13-20; Pl. Ex. 35.
In an attempt to rebut Plaintiffs’ proof that the floor tile contained asbestos, Appellant cites Brooks’ and Houghtaling’s testimony allegedly showing that the asbestos tile is present only in the Ebasco construction office (Appellant’s Br., p. 27). This is yet another of the points that Brooks was caught “fibbing” about in his deposition. The very page cited in Appellant’s brief – R. Vol. 7 at 154 – includes defense counsel’s desperate attempts to rehabilitate Brooks by blaming inadequate deposition preparation and his inadequate memory. Brooks did not “have any knowledge of any asbestos-containing floor tile being applied anywhere else,” R. Vol. 7 at 155:1-4, which is the feeble testimony Appellant invokes. This “evidence” – that a dishonest witness professed no knowledge – proves nothing, and Appellant’s citation to it (Appellant’s Br., p. 27), is meaningless. Similarly, Houghtaling merely testified that “I have not seen any other locations where it’s been … used.” R. Vol. 8 at 14:27-29. Houghtaling was not there at the time (R. Vol. 8 at 4:16 (Houghtaling joined Appellant in 1989)), and Mr. Joshua was exposed to the tile while removing it from temporary trailers. Accordingly, Houghtaling’s statement is consistent with Plaintiffs’ case: Houghtaling did not see the tile because it had been removed by Mr. Joshua and his coworkers before he arrived.
Appellant would evade the evidence that Mr. Joshua was exposed to substantial quantities of asbestos floor tile during its dusty removal from scores of trailers and buildings by arguing that coworker Burton Cosse’s testimony allegedly proves that Plaintiffs’ Exhibit 25 does not describe the asbestos tile. To the contrary, Mr. Cosse stated that “Kentile was the type tile we used,” R. Vol. 4 at 17:30, and he assumed it was vinyl asbestos, id. at 18:21-22. Plaintiffs’ Exhibit 25 is a Waterford 3 document calling for the use of Kentile vinyl asbestos tile (id. at ¶ 3.1), and Appellant at no time proved that there was any other floor tile specification or any other Kentile tile. Mr. Cosse’s testimony confirms that the asbestos-containing Kentile tile described in Plaintiffs’ Exhibit 25 was the same Kentile tile Mr. Joshua installed and removed. Mr. Cosse stated that the tile he found upon his arrival in 1975 never changed, and this is the only tile he would have found in 1975.
THE COURT DID NOT ABUSE ITS DISCRETION OR DAMAGE APPELLANT’S DEFENSE BY STRIKING JOHN HOUGHTALING’S REDUNDANT AUGUST 31, 2004 TESTIMONY.
(responding to Appellant’s fourth assignment of error)
John Houghtaling is a corporate representative witness whom Plaintiffs called in their case in chief. Houghtaling’s first day of testimony was not stricken from the record. The court struck Houghtaling’s second day of testimony to sanction Appellant for its failure to produce a subpoenaed document and for Appellant’s lack of candor with the court.
Striking Houghtaling’s Second Day of Testimony Did Not Harm the Defense.
“The proper inquiry for determining whether a party was prejudiced by a trial court’s alleged erroneous ruling is whether the alleged error, when compared to the entire record, had a ‘substantial effect’ on the outcome of the case.” Thornton v. Nat’l R.R. Passenger Corp., 2000-2604, p. 5 (La. App. 4 Cir. 11/14/01); 802 So. 2d 816, 819 (cit. om.). Striking Houghtaling’s second day of testimony did not inflict a substantial deleterious effect on Appellant’s defense. First, Houghtaling could not bolster Appellant’s defense because he was not at Waterford 3 when Namon Joshua was, and therefore he was an incompetent witness on the issues chronicled in Appellant’s Brief. Second, exclusion of testimony is harmless if the factual testimony is otherwise presented to the jury. The second day was largely redundant of Houghtaling’s unstricken, first-day testimony.
As to each point recited by Appellant, the stricken testimony is beyond Houghtaling’s knowledge and/or redundant of his unstricken testimony:
Galbestos: Appellant argues Houghtaling testified that Galbestos was only used in one allegedly unaltered building (Appellant’s Br., p. 30). However, Houghtaling had already testified on the first day that Galbestos was sprayed on one building which allegedly has a warning sticker. R. Vol. 7 at 77:22-29. Further, his testimony merely stated that there was no other Galbestos “to my knowledge,” R. Vol. 8 at 5:4, which has little probative value as he did not arrive until 1989, R. Vol. 8 at 4:16.
Doghouse: Again, Houghtaling merely testified “to my knowledge.” R. Vol. 8 at 4:30. His testimony was that to his knowledge something had not happened at a time when he was not there to see it happen, which has little if any probative value.
Grinding procedures: Appellant argues that Houghtaling denied that grinding wheels were used to remove gaskets. Houghtaling opined as to the allegedly “proper” procedure, R. Vol. 8:19, but admitted that he was ignorant of written procedures – whether they existed or if they did, what they said. R. Vol. 7 at 54:32 – 55:1. Further, in his first day of testimony he already had admitted that power driven wire-wheel brushes could be used to remove gaskets and that this generates dust, R. Vol. 7 at 63:14-18, 64:11-17, and his later attempt to recant this was readily impeached.
Asbestos Floor Tiles: Appellant claims that Houghtaling’s testimony was important in impeaching the evidence that Namon Joshua was exposed to asbestos floor tile (Appellant’s Br., pp. 30-31). However, the stricken testimony – that Houghtaling only knew of asbestos floor tiles being used in the Ebasco building – was redundant of Houghtaling’s unstricken testimony. R. Vol. 7 at 16:25 – 17:13. Admitting this, Appellant itself cites Houghtaling’s first day testimony on the floor tile issue (Appellant’s Br., p. 27 (citing Vol. 7 at 16)).
The Trial Court Acted Well Within Its Discretion in Punishing Appellant for Its Many Abuses, Including Lack of Candor.
On February 18, 2004, Plaintiffs subpoenaed the Waterford contracts between Ebasco and Appellant. See R. Vol. II at 387-388. Appellant failed to turn over a 1972 contract. The Trial Order which Appellant’s counsel signed required the exchange of
exhibits, and the court also ordered the production of documents during trial. See, e.g., R. Vol. 7 at 131:22-24. However, Appellant concealed this document’s existence. “Over the weekend” in the middle of trial and just prior to Houghtaling’s first day of testimony, Appellant finally turned over the contract. See R. Vol. 8 at 40:11. This was one of many such discovery abuses Judge Brown faced throughout trial. She finally punished Appellant not only for its failure to timely produce documents, but also for its brazen dishonesty. Appellant’s counsel told Judge Brown that Houghtaling had not relied on the contract, but Judge Brown discovered that this was untrue when she questioned Houghtaling on her own:
THE COURT: I’m appalled and this really saddens me. You [Appellant’s counsel] looked at me and said that he [Houghtaling] did not review this document…. When I questioned him in chambers he had, in fact, reviewed this document in preparation of his testimony….
[I]t was a misrepresentation to the Court. Okay. I have a big problem with that.
R. Vol. 8 at 43:11-22, 46:6-8. Appellant’s counsel did not deny that he had made untrue statements to Judge Brown, but rather claimed that he had “had no knowledge.” R. Vol. 8 at 43:26-28.
Appellant posits that the trial court was powerless to exact any punishment because Plaintiffs allegedly failed to move for production pretrial. There was nothing Plaintiffs could or could not do pretrial to divest Judge Brown from her authority to punish the bare-faced untruths told to her during trial. Appellant attempted to back door a contract that had been both omitted from the court-ordered exhibit disclosure and indefensibly withheld from a subpoena return, looked the judge in the face and denied that Houghtaling had relied on the contract, and the judge discovered the truth. Judge Brown had the inherent power to sanction Appellant for failing to timely
Appellant’s case law is inapposite. Wall v. Alleman only applies to “the remedies provided by Arts. 1469-71[,]” 488 So. 2d 1130, 1132 (La. App. 2 Cir. 1986), which articles address noncompliance with particular discovery provisions of Chapter 3 of Book 2, Title 3. Appellant, however, violated a subpoena issued pursuant to Article 1354 of Chapter 1. And, Wall nowhere suggests that a party’s pretrial failure to move to compel grants its opponent carte blanche to lie to the judge during the trial. Judge Brown had the inherent power to maintain the integrity of a trial over which she
The Houghtaling imbroglio was the last straw for a frustrated trial court. Appellant argues – without any citation to the record – that it “diligently attempted to comply with each and every discovery request propounded by plaintiffs.” Appellant’s Br., p. 34. To the contrary, the record reveals that Judge Brown’s decision to strike the second day of Houghtaling’s testimony came after a long series of abuses. Documents had mysteriously vanished from Appellant’s files and had curiously missing pages. Appellant could not authenticate documents because of revisions to prior versions not produced notwithstanding a corporate retention policy. Documents had mysteriously appeared and reappeared throughout discovery, not to mention the unexplained failures to produce documents, and counsel’s relentless pattern of passing the buck to others. With regard to the misrepresentation that ultimately prompted Judge Brown to impose a penalty, Appellant’s counsel continued to blame persons unknown, a tact the trial court was well within her right to reject.
APPELLANT’S SUBSTANTIAL RIGHTS WERE NOT HARMED BY THE TRIAL COURT’S EXERCISE OF ITS VAST DISCRETION IN ADMITTING THE ROOT CAUSE ANALYSIS REPORT SHOWING THE PRESENCE OF ASBESTOS AT WATERFORD 3.
(responding to Appellant’s fifth assignment of error)
The trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion. Error may not be predicated on the admission of evidence “unless a substantial right of the party is affected[.]” La. C.E. art. 103(A). The trial court acted well within its vast discretion in admitting Plaintiffs Exhibit No. 18, a “root cause analysis report” proving the presence of asbestos at Waterford 3. Appellant’s theory as to why the trial court erred is internally inconsistent. Appellant cannot decide whether the evidence consists of an incident that accidentally happened or a subsequent remedial measure that was intentionally taken, lobbing both theories in its Brief. Neither theory applies.
Appellant’s primary contention with regard to Exhibit 18 is untrue. Appellant claims that, “There is absolutely no correlation between what took place in 2002 and what may, or may not, have taken place prior to 1985 during the construction of
Waterford 3.” Appellant’s Br., p. 37. The correlation is that asbestos was in place in 2002 because it was installed during the pre-1985 construction, during which Namon Joshua was exposed. Indeed, defense counsel argued at trial that the installed components remained unchanged, thereby conceding this connection.
“Under the express provisions of La. C.E. art. 407, admission of evidence of subsequent remedial measures is allowed when they are offered for any ‘other purpose’ besides proving negligence or culpable conduct.” One such other purpose of Exhibit 18 was to prove the presence of asbestos at Waterford 3. This exhibit includes a computer printout of literally hundreds of “Stockcodes” of products described as containing asbestos. The “other purpose” exception of Article 407 includes impeachment. Even on appeal, Appellant invokes the specter of Houghtaling’s testimony regarding the alleged proper procedure for removal of gaskets, testimony impeached by Plaintiffs’ Exhibit 18. Similarly, in questioning Houghtaling, plaintiffs’ counsel used Exhibit 18 to impeach Appellant’s claim that it had a policy to avoid asbestos-containing products. Finally, Exhibit 18 was drafted by Appellant and is therefore admissible to show Appellant’s responsibility, authority, and control.
Appellant’s other theory for why Exhibit 18 was inadmissible is that it described a “subsequent incident.” Appellant’s Br., p. 37. Contrary to Appellant’s claim, the case law does not sweepingly forbid any “subsequent incident,” but rather addresses the issue of “subsequent accidents,” such as trip and fall cases. Here, the report was used to prove the presence of asbestos at Waterford 3, and stated on its face that the concentration of airborne asbestos that resulted from the incident was unknown. See R. Vol. 7 at 64:25-29. Thus, the point of the report was not to show that other workers had also been exposed to cancer-causing levels of asbestos, but to show that asbestos was present and to impeach Appellant’s witnesses.
Even were there any error in admission of the report, which is denied, Appellant cannot make the requisite showing that any purported error was reversible.
THE JURY DID NOT CLEARLY AND MANIFESTLY ERR IN FAILING TO FIND JOHNS MANVILLE LIABLE.
(responding to Appellant’s sixth assignment of error)
Appellant argues that the jury manifestly erred in failing to fault Johns Manville. “When a defendant urges the fault of a non-party, it is incumbent upon that defendant to provide evidence which preponderates that fault actually exists on the part of the non-party.” Joseph v. Broussard Rice Mill, Inc., 2000-0628, p. 7 (La. 10/30/00); 772 So.2d 94, 100 (cit. om.). “The issue of proper allotment of fault between multiple parties at fault is a question of fact; the findings of the lower court should not be disturbed unless they are clearly wrong or manifestly erroneous.” Appellant did not carry its burden of proving Johns Manville’s alleged liability at trial. Appellant’s purported proof of exposure to Johns Manville asbestos distills to a scant page of vague testimony of a coworker who provides no details as to the date, duration, or means. Coworker Landry explained that the lone job at which transite was used “wasn’t for too long,” that it entailed scaffolding around one tank, and that “[i]t wasn’t a long time job.” R. Vol. 4 at 91:26, 91:32 – 92:3. Because this testimony lacks any quantification, Appellant failed to carry its burden of proof.
There was no proof that dust was released from any Johns Manville asbestos product. Appellant cites Dr. Weir’s testimony (Appellant’s Br., p. 40), but he in truth testified that unsafe fibers would not be released if one were careful with a handsaw, as opposed to using a power saw. R. Vol. 10 at 59:24-32, 60:15-17. Appellant never established that a power saw was used; Mr. Landry merely states that transite was “cut.” See R. Vol. 4 at 92:15-26. Therefore, Weir’s testimony is meaningless to prove that Mr. Joshua was harmed by transite. Further, Weir testified that “the transite itself wasn’t at fault,” R. Vol. 10 at 60:15-16, and the jury was instructed that it could find that Johns Manville had no duty to warn Monsanto if Monsanto was a sophisticated user. See R. Vol. 12 at 95:27 – 96:1. Therefore, for several different reasons, it was well within the jury’s discretion to conclude that John Manville’s culpability had not been proven.
THE TRIAL COURT DID NOT ABUSE ITS VAST DISCRETION IN AWARDING DAMAGES.
(responding to Appellant’s seventh assignment of error)
Beatrice Joshua was awarded $1,650,000 in wrongful death damages, calculated as Appellant’s percent fault of the jury’s $2,750,000 damage assessment. The jury’s discretion in assigning damages is great, and even vast, such that an appellate court should rarely disturb a damage award. Jones v. Harris, 2004-0965, p. 4 (La. App. 4 Cir. 2/2/05); 896 So.2d 237, 241 (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993)). The initial inquiry must always be directed at “whether the particular effects of the particular injuries on the particular plaintiff are such that there has been an abuse of the much discretion vested in the trier of fact[.]” Jones, 896 So.2d at 240 (citing Youn, 623 So.2d at 1260). Past awards are not to be examined until after an abuse of discretion is established. Jones, 896 So.2d at 241; Youn, 623 So.2d at 1260. As this Court explained in Jones, “Although Defendants invite us to resort to a consideration of awards for generically similar injuries and contend that the award in this case is disproportionate to such prior awards, the jurisprudence is settled that ‘resort to prior awards is only appropriate after an appellate court has concluded that an “abuse of discretion” has occurred.’” Jones, 623 So.2d at 241 (cit. om.).
To establish the jury’s purported “abuse,” Appellant describes the testimony as “scant” and presumes from this scantiness that the jury had “personal sympathy.” Appellant’s Br., p. 41. Appellant’s sole theory of jury abuse – the “scant” theory – is manifestly at odds with the record. It is uncontested that Mr. Joshua and his wife Beatrice had a loving marriage for forty-eight years and that Namon was deeply devoted to Beatrice, their five children, and their twelve grandchildren. The couple met at church, Namon courted his future wife by paying visits to her home, and they were married the year after they met. R. Vol. 3 at 114:29 – 115:5. The thing that Namon Joshua enjoyed most in life was being with his family. R. Vol. 3 at 116:11-12. The loneliness that is now Mrs. Joshua’s province stands in stark contrast to the life she enjoyed with Namon. “He was never a person to be gone all the time. He stayed home,” Mrs. Joshua testified. R. Vol. 3 at 117:13-14. Prior to his death, Namon Joshua spent his retirement with Beatrice and pursuing homebody hobbies. R. Vol. 3 at 116:6-8; R. Vol. 5 at 20:17-24. The couple strolled together in the mornings and afternoons. R. Vol. 5 at 20:24-26. Beatrice treasured Namon’s ability to reach out to people everywhere the couple went together. See R. Vol. 4 at 105:13-17. The record is replete with descriptions of an extraordinarily close-knit family to which Namon was singularly devoted. “[M]y father put all of us through college on his hammer,” Mr. Joshua’s son and namesake Namon Joshua, III, explained. R. Vol. 3 at 27:14-15.
Namon III testified that as his Dad was dying of cancer, he was not afraid to die, but “[h]is biggest concern was leaving my mother. That was his biggest concern.” R. Vol. 3 at 29:21-23. In the last few days he told his son “to take care of mother.” Id. at 33:10. Namon and Beatrice’s relationship was described by another son:
[T]he relationship between my mom and my dad … set a basis for how I should respect my wife…. She was placed so high…. [T]here is an expectation and my dad would demand it. You are a man. You are going to respect your wife. He would have it no other way. And she is going to always be that precious jewel to you. That is the way I looked at my mom and dad. When I see him giving her that kiss when he goes off to work and comes home, and she would have dinner waiting for him. He looked at her – oh, she didn’t work, she didn’t have a job. He recognized the fact that although she was a homemaker, that that was an important duty…. Mom was there when we came home from school, but we knew dad would be coming home because when work was done he was there for her.
R. Vol. 4 at 109:1-28; see also R. Vol. 3 at 29:26 – 30:1. Namon never forgot to kiss Beatrice goodbye and doted on her when she was sick, to name a few examples.
The time period preceding Namon Joshua’s death, when he was battling cancer, losing his appetite, losing weight, and sustaining falls, was hard on Beatrice. R. Vol. 5 at 23:17-19, 23:21-22, 23:29-30, 24:7. Toward the end, “He was so weak his breath was real short and it was a horrible feeling. It was a horrible feeling just knowing that he was going to leave us,” one daughter explained. R. Vol. 5 at 26:18-27.
Namon Joshua’s death was “devastating.” R. Vol. 5 at 23:7. The couple’s wedding anniversary fell on the night of his wake. R. Vol. 3 at 114:29, 116:12-14. During her testimony, Ms. Joshua described her husband in the present tense and struggled to articulate her grief. Id. at 115:9-13 (“He is a good man, Christian, everything, so caring. He loved us so much. He loved his children. Took care of us. I am wondering how I can make it without him. It is hard.”). Mrs. Joshua’s life is irretrievably altered. See Vol. 3 at 116:32 – 117:1. Beyond the missed doctors appointments, see id. at 117:7-10, and the sleepless nights, see id. at 114:25-26, the jury learned of the loneliness that has replaced Mrs. Joshua’s previous life of security and companionship: “Most of the time I am alone,” Beatrice Joshua explained. Id. at 117:12-13. She spent her 50th wedding anniversary without her husband, after the couple had together looked forward to this milestone. R. Vol. 3 at 116:27-28. The traditional family division of labor Beatrice and Namon shared resulted in her dependence on him, Mrs. Joshua testified:
[Namon Joshua was a] Hard worker. He worked. I stayed home and took care of the children while he worked….
He took me everywhere I had to go he took me. I never learned to drive. I had to go to the doctor a lot. He took me. We’d go shopping together. We just did everything together.
R. Vol. 3 at 115:23 – 116:1. One daughter described Beatrice’s incapacity:
My mom has been with my dad for 48 years. She has spent more of her life with him than without him. When he died, that was really hard for her. We were really concerned about her because my mom is not really an independent person. She always had my dad to rely on. So when he died, that was something she really had to deal with. She really had to adjust. My sister and I for five months took turns sleeping at the house with her because we didn’t want to leave her there. We knew that she needed someone there with her. Every other night, I would go one night and she would go the other night…. she was having a hard time.
R. Vol. 5 at 27:27 – 28:11. Another daughter explained that Beatrice was unprepared for Namon’s death. Id. at 39:29-32 (“[W]e’ve prayed so much. I think mom was in a state like, he was going to get better. She really didn’t expect him to die.”).
Every holiday that comes and goes without Namon takes its toll. R. Vol. 3 at 116:28-29. One of their sons described his mother’s emotional devastation during the Christmas holidays, that she is unable to shop and share gifts “because it brings back the memories. He used to be with us and now he is no longer with us.” R. Vol. 4 at 110:26-31, 111:4-9.
Appellant’s sole reason for labeling the jury’s decision as abusive is to call the evidence “scant.” It was within the jury’s unique province to decide what it means to this elderly and lonely woman that her husband of 48 years will never walk through the door again. The jury weighed the damage to Beatrice Joshua as she sits home alone, when she misses doctors’ appointments because Namon is not there to drive her, to the doctor or anyplace else, ever again. It was for the jury to hear Beatrice Joshua’s description of her life today, “Most of the time I am alone,” and to decide her credibility. Providence did not allot such loneliness to Beatrice Joshua by mere chance, rather, the defendants caused it, and it was for the jury to say what damages ensued. The trial judge declined to find that the jurors abused their role.
Appellant has no substantiation for its complaint that the jury committed abuse. “Scant” is in the eye of the beholder, and under the law the jury is assigned the task of beholding. What Appellant seeks is to separate Beatrice Joshua and her children from those who would adjudicate their loss; Appellant wants this tribunal alone to decide how much Mrs. Joshua is damaged on a cold record, without ever hearing or seeing her, as the jury and trial judge did. If a widow’s appearance, her sincerity, her credibility, and the true import of her plainspoken words are eliminated from the damage calculus, then Appellant will pay less. This does not demonstrate abuse and cannot abolish the jurors’ legally assigned role as the finders of fact.
Comparison to other jury awards is impermissible unless this jury’s abuse is first established. See Jones, 896 So.2d at 241 (“Because we find no abuse of discretion, a comparison of prior awards is not appropriate.”). Because the record does not support Appellant’s “scant” claim, and because it has no other theory for “abuse,” other cases are irrelevant. Plaintiffs note, in any event, that this Court has affirmed awards that are higher than similar comparisons, that the $1,650,000 wrongful death award is not that disproportionate, and that comparable wrongful death awards have been affirmed by appellate courts across the country.
Notwithstanding Appellant’s attempts to unduly complicate this case and obfuscate the facts, the jury and the trial court fulfilled their roles without error or abuse. Appellees respectfully urge the Court to reject Entergy Louisiana, Inc.’s arguments and affirm the judgment entered in favor of the Joshua family.
- ↑ R. Vol. 5 at 5:15-19, 5:30 – 6:3, 6:10-24, 7:24 – 10:6; see also R. Vol. 2 at 167:8-17, 167:24 – 169:31, 170:9 – 178:5; R. Vol. 4 at 46:16 – 54:7, 56:16 – 59:11; Pl. Ex. 30. It is unclear the degree to which Appellant disputes this. Without providing any citation either in its Statement of the Case or anywhere else in its brief, Appellant posits that, “Mr. Joshua was never exposed to dust emanating from asbestos-containing products at Waterford 1 and 2.” Appellant’s Br., p. 4. Appellant later appears to contradict this wholly unsupported contention by arguing that McCarty is liable for exposing Mr. Joshua to asbestos at Waterford 1 and 2 (Appellant’s Br., pp. 18-20).
- ↑ See, e.g., Guidry v. Coregis Ins. Co., 04-325, p. 12 (La. App. 3 Cir. 12/29/04); 896 So.2d 164, 177 (property owner, Lucky, had a duty to the plaintiff, who was acting in the course and scope of his employment as a billboard and sign repairman for Signko); Sandbom v. BASF Wyandotte, Corp., 95 0335 (La. App. 1 Cir. 4/30/96); 674 So.2d 349 (property owner negligent for failing to warn contractor’s employee); Stockstill v. C.F. Indus., Inc., 94 2072, p. 12 (La. App. 1 Cir. 12/15/95); 665 So.2d 802, 813 (finding no manifest error in jury’s conclusion that premises owner, C.F., was liable for its negligence to plaintiff, who was working as employee of subcontractor NDT).
- ↑ The Joshuas had to prove: (1) the property which caused the damage was in the custody of Appellant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and (3) the defect in the property was a cause-in-fact of the resulting injury. Quinn v. RISO Invs., Inc., 2003-0903, p. 7 (La. App. 4 Cir. 3/3/04); 869 So.2d 922, 928 (cit. om.). It is unclear the extent to which Appellant challenges these elements. The first element is addressed infra at § I.C, and the second and third elements are addressed here.
- ↑ See ELI Ex. 2, p. 111 at art. D-8 (under the heading “Insulation Materials Properties,” the contract references, “All insulation and jacketing materials used in the installation, including … asbestos cloth”); ELI Ex. 2, p. 112 at art. D-8 (also under the heading “Insulation Materials Properties,” the contract provides, “Conventional insulation, if applied to stainless steel shall be isolated from the stainless steel by applications of silicate of soda impregnated AAA asbestos cloth.”).
- ↑ Mr. Lewis used the term asbestos “blanket,” R. Vol. 5 at 6:12, which is another word for asbestos “cloth.” See R. Vol. 2 at 181:31 – 182:2.
- ↑ Ellis Bourque, Jr., worked at Waterford 1 and 2 from 1973 through 1975 as a welder for a contractor that installed piping on the boiler. R. Vol. 2 at 166-67. He explained that two dozen people in his hot weld crew would be welding at any one time, in addition to which the same process using the same products (including asbestos cloth) were conducted by the turbine work crew. R. Vol. 2 at 173:11-28; see also id. at 174:20-21 (testifying that he worked around carpenters who built and tore down scaffolding).
- ↑ See R. Vol. 2 at 174:28-32, 175:10-20, 176:10-12; see also R. Vol. 4 at 53:19 (Williams testifying that everyone worked together); id. at 57:12 – 58:2 (Williams describing that there was “a lot” of asbestos cloth and discussing the dust generated from tear down of scaffolding).
- ↑ R. Vol. 2 at 167:11-17, 167:29-30, 168:1 – 169:13. Mr. Bourque detailed the stress welding and strip welding processes whereby copious asbestos dust was released from the asbestos paper and asbestos cloth. R. Vol. 2 at 169:3-13, 171:3-22. Appellant’s argument that the stress welding occurred in an allegedly contained area (Appellant’s Br., p. 21 n.5) is unavailing. Mr. Bourque explained under cross examination that, “It was a contained area until they demo it and let everything fall out of it,” and that, to relieve themselves from the excessive heat, the welders kept the door open and cut holes in the Visqueen. Id. at 184:27-28, 185:2-7.
- ↑ Fibers “would fly all over” during the process of gasket removal. R. Vol. 2 at 172:19. The pipe was pre-fabricated, such that “a lot of time it didn’t fit,” which prompted gasket removal. Id. at 174:4-6. The instance of this was fairly described as a regular occurrence. See id. at 174:12-14.
- ↑ Appellant took a cavalier attitude about OSHA generally, as illustrated in Appellant’s witness’s boast that seven different OSHA citations involving 34 different items was “damn good.” R. Vol. 7 at 183:11-19, 184:26. Nonetheless, Appellant peppers its brief with the specter of OSHA, quoting self-serving and unsubstantiated references to intended OSHA compliance. See Appellant’s Br., pp. 11, 17. Even were these statements proof of actual compliance, which is denied, compliance with OSHA does not prove that no tort has been committed. See, e.g., Asbestos v. Bordelon, Inc., 96-0525, p. 52 (La. App. 4 Cir. 10/21/98); 726 So.2d 926, 958 (“Mere compliance with federal standards or any other safety standards without more is not prima facie proof that a product is not dangerous or is no longer dangerous.”). Further, Dr. Rose explained the OSHA standards failed to protect workers. Dr. Rose’s work with NIOSH included asbestos standards, regarding which NIOSH made recommendations to OSHA. R. Vol. 2 at 17-19. The OSHA asbestos limits did not take cancer into consideration. Id. at 79:15-17, 80:11-19. Further, OSHA documents recount that the OSHA standard was not set low enough to protect workers. Id. at 161:17-24.
- ↑ R. Vol. 2 at 85:20-30 (“OSHA is also going to take a look at who has, what is known as, just the ultimate control of the work situation, the work site…. and most often that is a combination of the general contractor but ultimately the owner of the premises,” including “the owner of the plant that is being built[.]”).
- ↑ This fact is repeated throughout the contract, making Appellant’s deletion of it all the more curious. See ELI Ex. 2, p. 4 (“The Owner agrees to furnish to the Contractor the materials and services as provided for under Article D-5 of the Specifications.”); id. at p. 97, art. D-1 (“The lump sum work of DIVISION A shall also include the application of heat insulation and protective covering (materials furnished by Owner) on main turbines….”).
- ↑ ELI Ex. 2, p. 111 at art. D-8 (under the heading “Insulation Materials Properties,” the contract references, “All insulation and jacketing materials used in the installation, including… asbestos cloth”); Id., p. 112 at art. D-8 (also under the heading “Insulation Materials Properties,” the contract provides, “Conventional insulation, if applied to stainless steel shall be isolated from the stainless steel by applications of silicate of soda impregnated AAA asbestos cloth.”); Id., p. 113 at art. D-8 (under the “Insulation and Lagging Materials”/“Types of Materials” headings, the use of asbestos insulation is specifically discussed: “Insulation containing asbestos shall be subjected to the restrictions as imposed by OSHAS Federal Register Vol. 36, No. 105, Part II, Paragraph 1910.93.”); Id., p. 115 at art. D-8, Types of Material, B (specifications for cement and joint filler include a reference to “asbestos fiber”); Id., p. 119 at art. D-8, Types of Material, L-3 (section on box insulation calls for sealant “such as Armstrong LT Sealer,” which contains asbestos, see Pl. Ex. 26, p. 5145); Id., p. 120 at art. D-9.a (section on application of heat insulation discusses preformed insulating “materials containing asbestos,” noting OSHA restrictions and discussing the potential for “exceed[ing] the limits indicated” by OSHA); Id., p. 142 at art. D-11 (discussion of freeze protection includes reference to “asbestos tap build-up”).
- ↑ R. Vol. 7 at 159:32 – 160:4 (“I was just relying on my memory. That was 30 years ago. Q. Since you met with Appellant’s lawyers your memory got a lot better?”), 161:24-27 (“You are trying to put me in the same spot that I was put in in the deposition of trying to recall what happened 30 years ago. I can’t answer that question.”), 170:4-6 (“That again is a fact of 30 years ago. You are asking me a question today of what happened 30 years ago.”), 178:5-6 (“That was 30 years ago. I don’t remember….”), 188:22-24 (“I can’t remember. We had so many contracts….”).
- ↑ The presence of Kaylo was consistent with the recollection of one of plaintiffs’ coworker witnesses. R. Vol. 4 at 51:13; see also Pl. Ex. 26 at p. 5156 (Kaylo contains asbestos). Appellant’ Brief at page 18 also cites “ELI Exhibit No. 2”, which possibly intends to reference a vague statement on exhibit page 151 that, “It is preferred that insulating materials not contain asbestos.” What is meant by “insulating materials” is not defined, and as article D-5 provides that Appellant provided the insulation (see ELI Ex. 2 at 99, 103), and considering that the contract otherwise references the use of asbestos insulation and other asbestos products (see note 13 supra) the ambiguous statement on page 151 fails to prove that McCarty provided asbestos insulation in violation of a contract prohibition. The word “preferred” is not a prohibition in any event, which further undermines Appellant’s theory.
- ↑ ELI Ex. 2, p. 77 (“until the work is completed and accepted by the Owner”); see also id. at 85 (“the Owner may, at its discretion, withhold any payment….”).
- ↑ ELI Ex. 2, p. 5 (Contractor must work additional time “[s]hould Owner require”), p. 76 (similarly discussing operation of additional hours at “Owner’s convenience”), p. 84 (“… Owner may …order such changes to be made…”), p. 87 (“work may be suspended as follows: … The Owner will notify the contractor to discontinue….”), p. 88 (article D.1 discussing Owner’s election to temporarily suspend performance), p. 88 (article E.1 discussing Owner’s election to terminate work).
- ↑ ELI Ex. 2, p. 86 (McCarty “may be required, when deemed advisable by the Owner, to maintain an officer on or adjacent to the site of the work….”); id. (“The Owner reserves the right to have others as it may elect enter upon the property or location upon which the works herein contemplated are being constructed, for the purpose of constructing or installing such collateral works as the Owner may desire.”), p. 87 (assignment only at permission of Owner), p. 88 (art. C-22, Owner monitoring McCarty’s ongoing indebtedness), p. 90 (art. C-26.A, discussing Owner’s option to grant Contractor use of lands); p. 91 (art. C-34.A, requiring Contractor to give Owner its books; art. C-34.B, providing that, “If Owner desires, it will have the right to place competent employees in any position of accounting, timekeeping, or checking….”).
- ↑ ELI Ex. 2, p. 130 (discussing “freeze protection cable, applied by Owner”), p. 133 (“Sleeves will be set in roofs and decks by Owner….”).
- ↑ ELI Ex. 1, p. 55 (describing how the Purchasing Department copies “Mr D L Aswell, Louisiana Power & Light Company Production Manager” on inquiries), p. 55 (bids reviewed by Aswell), p. 56 (discussing “the purchase authorization and approval [that] was received from Mr. Aswell”), p. 61 (“Ebasco billings for engineering and construction services were sent to Mr D L Aswell, Production Manager, of Louisiana Power & Light Company for approval”), p. 66 (charges for engineering and management services mailed in triplicate to J H Irwin (apparently the LP&L treasurer, see p. 71), and “approved by Mr. D L Aswell, Production Manager”).
- ↑ See ELI Ex. 1, p. 64 (“The Field office had to obtain approval from both Louisiana Power & Light Company and the New York Purchasing Department before releasing final payment of Purchase Contract/Orders which provided for a retention” and requests were “sent to Mr J M Wyatt of Louisiana Power & Light Company”), p. 65 (referencing Wyatt’s authority to approve final payments).
- ↑ ELI Ex. 2, p. 83 at art. C-3.A (“The Owner contemplates and the Contractor hereby agrees to a thorough, minute inspection by the Engineer of all the work and material furnished under the Contract.”) (emph. supp.); ELI Ex. 2, p. 82 at C-1.A.2, p. 107 at D-8; Pl. Ex. 29 at C-1.A.2, D-8 (“An inspector representing the Engineer,” which “mean[s] the Chief Engineer of Louisiana Power & Light Company or his authorized agents,” “shall have the right to inspect all material at the factory or at the site”); ELI Ex. 2, p. 83 at art. C-3.B (“The Contractor shall furnish to the Engineer, access at all times to the work and to the premises used by the Contractor, and shall provide them every reasonable facility for the purpose of inspection and even to the extent of discontinuing portions of the work temporarily, or of uncovering or taking down portions of finished work.”); see also ELI Ex. 2, p. 91 at art. C-33 (receiving and handling of the Owner-furnished material), p. 145 (“The Contractor shall also furnish to the Owner before starting work a letter of guarantee from the Manufacturer of the insulation…..”).
- ↑ R. Vol. 7 at 14:9-18; see also id. at 24:21-26 (LP&L and Ebasco would have approved specifications at Waterford 3), 77:10-17. Mr. Houghtaling was designated to testify regarding Waterford 3; nonetheless, Ebasco’s and LP&L’s respective roles were the same in the construction of 3 as in the construction of 1 and 2. R. Vol. 7 at 149:17-20; see also Appellant’s Br., p. 23.
- ↑ R. Vol. 2 at 179:6-11 (“LP&L used to have people walk around on the job and kind of oversee what was going on…. They would walk around and watch construction and see what was taking place.”); R. Vol. 5 at 10:18-22 (LP&L was at Waterford I & II checking the area).
- ↑ R. Vol. 2 at 179:14-15 (Mr. Bourque understood that “LP&L was the owner”).
- ↑ See Olivier v. Alexander, 97-1463, p. 4 (La. App. 4 Cir. 1/6/99); 737 So.2d 772, 775 (“In summary, Alexander owned an apartment building which was under renovation from 1984 to 1987. The scaffolding was attached to his building for over four years with his knowledge and he had control and visited the job site regularly. Alexander directly benefitted from the scaffolding because it had been used to renovate his building. The trial court determined that Alexander was at the construction site weekly, that he provided plumbers and electricians, signed acceptances of work, hired and fired contractors, and was ‘intimately involved in the construction project.’ Considering the record, the trial court’s conclusion that Alexander had custody and control of the scaffolding is not manifestly erroneous and should not be disturbed.”).
- ↑ See, e.g., Anderson v. Tenneco Oil Co., 2001-0295-6, pp. 12-13 (La. App. 4 Cir. 5/22/02); 826 So.2d 1143, 1153, writ denied, 2002-2035 (La. 11/1/02); 828 So.2d 585 (the State as owner of immovable property had “a clear duty to warn against and correct dangerous conditions when it has actual or constructive notice”; constructive notice was proven where dangerous condition “would never have been allowed to remain on the State’s property if the State had properly inspected its work.”); Cortez v. Zurich Ins. Co., 98-2059, p. 18 (La. App. 1 Cir. 12/28/99); 752 So.2d 957, 967 (“The jury may have concluded that Channel Shopping Center [the premises owner] was negligent in allowing R & M to engage in the practice of tying banners to the light poles for years without inquiring of the manufacturer whether the light pole was designed to withstand such use. Likewise, the jury may have concluded that Channel Shopping Center should not have allowed R & M to modify the light pole by adding lights without inquiring of the manufacturer whether such modification was safe.”).
- ↑ Anderson, supra., 826 So.2d at 1153-54. Appellant perhaps persists in pressing the fallacies that it was deceived and uninvolved in the construction in a vain attempt to distinguish Anderson, which reasons that the State as property owner had constructive knowledge and knew or should have known of the condition of its well site because proper inspections would have caused the problem to be corrected, the work Tenneco performed on the State property was under the direction of and approved by the State, and “Tenneco did not make any false representations to the State.” 826 So.2d at 1153-54. Here, too, Appellant was in no way deceived and could not have been deceived as it supervised, inspected, and participated in the construction.
- ↑ Hughes v. Goodreau, 2001-2107, p. 11 (La. App. 1 Cir. 12/31/02); 836 So.2d 649, 659 (“Although the parties entered into a written contract in which Broussard and Haber were identified as independent contractors, and this designation may have some validity between the parties, it is not binding or controlling on the rights of third persons.”).
- ↑ R. Vol. 2 at 179:6-11 (“LP&L used to have people walk around on the job and kind of oversee what was going on…. They would walk around and watch construction and see what was taking place.”); R. Vol. 2 at 179:14-15 (Mr. Bourque understood that “LP&L was the owner”); R. Vol. 5 at 10:18-22 (LP&L was at Waterford I & II checking the area).
- ↑ Appellant admits that McCarty was not the only insulator (see Appellant’s Br., p. 18 n.4).
- ↑ Appellant’s second assignment of error relies upon this oft repeated claim. See Appellant’s Br., p. 18 (quoting hypothetical testimony from Dr. Rose regarding McCarty’s duty to inform Appellant of asbestos), id. (arguing that contract allegedly required McCarty to provide asbestos-free insulation), id. at 18-19 (falsely claiming that “plaintiffs elicited testimony from Mr. Joshua’s co-workers that McCarty violated the contract ”), id. at 19 (alleging that McCarty acted “in violation of the contract specifications”), id. at 20 (quoting testimony based on the assumption that McCarty pledged to provide asbestos-free insulation), id. (arguing there is “uncontroverted evidence” for these myths), id. at 22 (referencing McCarty’s alleged “direct violation” of fictitious contract provisions).
- ↑ Further, even had Appellant proven the existence of the alleged contract prohibition, which is denied, Dr. Rose testified that this would not absolve Appellant. See R. Vol. 2 at 138:12-27 (even if told the product is asbestos-free, given the time period, sampling should have been conducted), 144:30 – 145:5 (same), 150:26-30 (“Again, I say that ‘72, 73, 74, I think that their [antenna] should be up and they should be a little leery and ask for some documentation and samples”).
- ↑ R. Vol. 4 at 78:16 – 79:22. See also R. Vol. 4 at 23:23-27, 23:32 – 24:4, 24:9-16 (carpenters built and dismantled scaffolding for the insulators and in the process were exposed to a dusty environment), 87:2-13 (describing dust).
- ↑ To support its assignment of error on the fact-intensive issue of whether Mr. Joshua was exposed to asbestos insulation at Waterford 3, Appellant invokes the testimony of James Brooks (Appellant’s Br., pp. 23-24), who was proven to be an unreliable witness. See § I supra. Appellant is really attempting to rely on an alleged contract that was never admitted into evidence (Appellant’s Br., p. 24 & n.7). Appellant cites its own proffer without assigning error to the trial court’s decision not to admit the exhibit. Appellant’s Br., p. 24 n.7. A document that was never admitted in the trial court cannot be the basis for overturning a jury verdict.
- ↑ In its Section IV, Appellant does not address this evidence of Mr. Joshua’s substantial exposure to asbestos used in the turbine generator and doghouse areas. Later, Appellant discusses the sound deadener applied to the interior of the doghouse (Appellant’s Br., p. 30). However, the sound deadener is only one of the materials that tested positive for asbestos.
- ↑ Although Appellant argues that Mr. Landry’s testimony did not place Mr. Joshua in the area when pipefitters were removing gaskets (Appellant’s Br., p. 28), Mr. Landry testified that he was working with Mr. Joshua at such times. R. Vol. 4 at 80:15-24. Contrary to Appellant’s assertion (Appellant’s Br., p. 28), Mr. Landry did not testify that respiratory protection was always available. See R. Vol. 4 at 90:13. Appellant also attempts to minimize what happened during turnarounds by claiming that Mr. Joshua would not have been present, but Mr. Landry testified that he worked turnarounds with Mr. Joshua at Waterford 3. R. Vol. 4 at 86:5-7.
- ↑ Appellant’s Brief cites R. Vol 7 at 154. On that page, Brooks tries to explain, “I subsequently learned that we did have some floor tile in the Ebasco construction office that was vinyl asbestos.” R. Vol. 7 at 154:4-6. To try to explain his contrary sworn statements in his deposition, defense counsel prompted, “Were those [specifications] provided to you for review at your deposition? A. No.” R. Vol. 7 at 154:9-11. Continuing this desperate attempt to rehabilitate a witness caught lying under oath, defense counsel then prompted Brooks to blame his other untruths on lack of memory: “Had you remembered at your deposition that there were asbestos-containing gaskets and/or floor tiles install [sic] at Waterford III? A. At the time of the deposition? Q. Yes, sir. A. No.” R. Vol. 7 at 154:16-21.
- ↑ Mr. Cosse explained that the tile at issue “was there before I got there.” R. Vol. 4 at 37:1-2. When he arrived in 1975, the tile was in the warehouse, and he “kept the same stuff.” R. Vol. 4 at 38:16-18. Mr. Cosse worked with the warehouse inventory. R. Vol. 4 at 6:25-30. The tile brand was never changed from what he found when he arrived in 1975 and to his knowledge it was asbestos tile. R. Vol. 4 at 18:3-8 (explaining that what was in stock was standardized for quick remodeling), 19:16-17 (the same brand was used), 36:23-25 (“as far as vinyl tile, asbestos tile, I didn’t know they made any other kind of tile”). Plaintiffs’ Ex. 25 is the only floor tile specification in evidence. It was originally promulgated in 1972 and updated in 1975 (see Pl. Ex. 25, bottom of second page). Therefore, this is the only tile Mr. Cosse would have found, and because it was unchanged, this is the only tile Mr. Joshua installed and removed. Ignoring this, Appellant argues that Mr. Cosse allegedly “conceded” that “the specifications had nothing to do with temporary buildings.” Appellant’s Br., p. 26. The testimony Appellant seizes upon states that Mr. Cosse had not seen the specifications at the time he worked with the tile (Appellant’s Br., pp. 26-27 (quoting testimony)). Mr. Cosse saw Plaintiffs’ Ex. 25 for the first time during trial (see Appellant’s Br., p. 26). The fact that Mr. Cosse had not seen the exhibit before does not prove that it has “nothing to do” with the floor tile, as Appellant rashly concludes. To the contrary, when shown the exhibit during trial, Mr. Cosse responded, “It does say tile. It says asbestos, it says vinyl. That is what I got.” R. Vol. 4 at 38:4-6 (emph. supp.).
- ↑ Houghtaling joined Appellant in 1989. R. Vol. 8 at 4:16. He thus admitted that it was reasonable to assume that other witnesses are better sources regarding Namon Joshua’s work. R. Vol. 8 at 21:19 – 22:5, 22:12-13.
- ↑ See Emery v. Owens-Corp., 2000-2144, p. 9 (La. App. 1 Cir. 11/9/01), 813 So. 2d 441, 450, writ denied, 2002-0635 (La. 5/10/02), 815 So. 2d 842 (“the factual testimony Exxon asserts Dr. Hammond would have provided actually was presented to the jury by Exxon witness Dr. Neill Weaver”).
- ↑ Houghtaling’s grinder testimony was premised on his assertion that the gasket “falls right out,” R. Vol. 8 at 19:27, an assertion he withdrew on cross. R. Vol. 8 at 27:5-7 (“Q. And when you open – you open those two flanges it don’t fall out, does it? A. No, it does not.”); id. at 27:20-27 (admitting that gaskets can stick); id. at 28:18-27 (admitting that removal takes work).
- ↑ R. Vol. II at 452. Certain dates were later revised. See, e.g., R. Vol. II at 455 (revised scheduling order). These changes did not speak to the necessity of timely exhibit exchange.
- ↑ For example, in Robinson v. Apria Healthcare, Inc., the plaintiff objected to the introduction of documents that were not listed as exhibits on the pretrial order and they were not produced in discovery. 38,438, p. 12 (La. App. 2 Cir. 5/27/04); 874 So.2d 418, 425-26. “While [the defendant] had these records, they were neither disclosed to the plaintiff in response to discovery requests nor were they listed as an exhibit on the pretrial order.” Id. at 826. The appellate court found no error in the trial court’s exclusion of the documents, reasoning that, “Courts have regularly exercised their inherent powers by imposing sanctions for failing to timely supplement discovery responses.” Id. (cit. om.). Further, “La. C.C.P. art. 1551 gives a court wide discretion to provide for implementation of a pretrial order and to insure that the items of the pretrial order are enforced.” Id. See also Bozeman v. State, 34,430, p. 10 (La. App. 2 Cir. 4/4/01); 787 So.2d 357, 365 (finding no abuse of discretion arising from trial court decision to strike certain testimony and reasoning that, “Courts have regularly exercised their inherent powers by imposing sanctions for failing to timely supplement discovery responses. A trial court generally has great discretion to determine whether to admit testimony after a party objects on the ground that his opponent failed to fulfill the statutory mandate of La. C.C.P. art. 1428 to supplement discovery responses.” (cit. om.)).
- ↑ Appellant’s counsel admitted that the contract “is not listed as an exhibit.” R. Vol. 8 at 42:23-24. Nonetheless, Houghtaling reviewed this document in preparation for his testimony, which was the subject of Appellant’s lack of candor. See R. Vol. 8 at 43:11-22, 46:6-8. Therefore, the underlying dishonesty not only implicated a discovery violation, but also Appellant’s attempt to play fast and loose with the Trial Order. Cf. State v. Mills, 235 La. 479, 485, 104 So. 2d 428, 430 (1958) (“It is within the inherent power and authority of every court to enforce the orders which it has the power to render, and to punish those who show contempt for its authority by flouting these orders.”).
- ↑ “Under the doctrine of inherent powers, courts have the power (other than those powers expressly enumerated in the constitution and the statutes) to do all things reasonably necessary for the exercise of their functions as courts.” In re Succession of Grimmett, 31,975, p. 12 (La. App. 2 Cir. 3/5/99); 738 So.2d 27, 34 (cit. om.); see also La. C.C.P. 191 (“A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”); La. C.C.P. 1 (broadly defining jurisdiction as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.”).
- ↑ Contrast Wall, 488 So.2d 1130, which addressed a party’s failure to answer interrogatories, a fact of which the opposing parties were obviously aware well before trial. Horton v. McCary, 93-2315 (La. 4/11/94); 635 So. 2d 199, 200-01 is also distinguishable, as it addressed a default liability judgment rendered as a sanction for failing to answer interrogatories or produce documents. The original defense counsel in Horton was replaced with counsel who introduced evidence that the client was innocent. Id. at 202. Here, Appellant was never proven to be the innocent victim of its own counsel, nor was a default judgment entered against it.
- ↑ See R. Vol. 8 at 41:8-19 (plaintiffs’ counsel summarized Appellant’s discovery obstructions as a “continuing theme of this trial”).
- ↑ R. Vol. 6 at 77:3-17, 77:26-27, 78:3-5, 79:11-15.
- ↑ See, e.g., R. Vol. 4 at 94:7-10 (“I just pointed out to Mr. Brown, this page 14, page 16, where is 15? We have asked for this stuff continuously over the last six months.”), 102:16-18 (“We start going through the documents, whoa, the page normally on controls is missing.”).
- ↑ See, e.g., R. Vol. 4 at 94:25-30 (“We have asked for all of those revisions, which we understand from their representatives are kept as part of the policy to keep them….. We have never been provided with them.”), 95:29 – 96:2 (trial judge warning defense counsel that, “You are going to have problems introducing revisions….”).
- ↑ See, e.g., R. Vol. 4 at 97:1-9 (“I show up for Mr. Houghtaling’s deposition, well, I don’t have these records. I had them in my file. What happened to it? Well, I don’t know; it disappeared. Last time I saw it they were with the lawyer. Boom. Next deposition I get the record. It is all of a sudden appearing again.”), 99:17-28 (describing same), 100:13-25 (describing appearing and disappearing survey), 101:7-12 (“They all say it was in the file. We kept the files in these places. Have you looked there? Yes. No longer in the file. Then all of sudden it comes back.”); see also R. Vol. 6 at 8:25-26 (Appellant’s counsel claiming that, “The document that Mr. Blackwell is referring to is missing”).
- ↑ See, e.g., R. Vol. 7 at 68:4-21 (witness explaining that document he described is in document control center and he has no idea why it was not produced).
- ↑ See, e.g., R. Vol. 4 at 94:10-13 (“We keep hearing, I don’t know, somebody who is not here knows, I don’t know, the other lawyer knows.”); see also id. at 98:13-14.
- ↑ R. Vol. 8 at 43:4-6 (“it’s only my understanding, and I am not, I guess you call it the document custodian”), 46:12-15 (“I will do my best. I will check with co-counsel. As I said, I am not the person that’s been handling the documents.”).
- ↑ Appellant’s suggestion that Plaintiffs’ counsel and the court somehow delayed in punishing Appellant is curious. The contract was not produced until “over the weekend” in the middle of trial, see R. Vol. 8 at 40:11, and the trial court’s sanction was rendered the next Tuesday following that weekend. Before the trial court, Appellant’s counsel did not argue that they lacked notice or needed more time. After Judge Brown stated that she was appalled by counsel’s untruthfulness, Appellant’s counsel requested permission to “respond briefly,” R. Vol. 8 at 43:24, and did not request more time to respond. See id. at 43-47.
- ↑ Miller v. S. Baptist Hosp., 2000-1352, p. 15 (La. App. 4 Cir. 11/21/01); 806 So. 2d 10, 21, writ denied, 2001-3379 (La. 3/28/02); 811 So. 2d 943 (cit. om.); see also James v. Jackson, 2004-0912, p. 2 (La. App. 4 Cir. 3/2/05); 898 So.2d 596, 599, writ denied, 2005-0867 (La. 5/13/05); 902 So. 2d 1005 (reciting general rule that district court is afforded great discretion in admitting evidence and reversal requires abuse of discretion).
- ↑ See, e.g., R. Vol. 12 at 45:20-22 (defense counsel arguing that, “Power plants do not change the products….”); see also R. Vol. 6 at 24:21 (defense witness arguing that a majority of installation is original). Further, as plaintiffs’ counsel pointed out during trial, Appellant used 2004 evidence to prove what happened during Namon Joshua’s tenure, see R. Vol. 6 at 6:25-28, which belies its appellate argument that subsequent evidence allegedly is unconnected.
- ↑ Thornton v. Nat’l R.R. Passenger Corp., 2000-2604, p. 8 (La. App. 4 Cir. 11/14/01); 802 So. 2d 816, 820; La. C.E. art. 407 (“This Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.”).
- ↑ Although Appellant now concedes this issue as to gaskets, Appellants’ Br., p. 36 n.9, at trial it challenged plaintiffs’ witness’s testimony that asbestos-containing gaskets were present. See, e.g., R. Vol. 2 at 186:8-9; cf. R. Vol. 12 at 39:16-18 (defense counsel’s closing argument that “they haven’t established that Mr. Joshua was exposed to asbestos through gaskets”).
- ↑ Thornton, 2000-2604, p. 8; 802 So. 2d at 821 (trial court did not abuse its discretion because documents fell within “other purpose” exception to La. C.E. art. 407, to attack credibility).
- ↑ The report proves that Waterford 3 workers removed gaskets using a motor driven wire-wheeled brush. R. Vol. 7 at 59:25-30 (discussing Exhibit 18). This impeaches Houghtaling’s false testimony – which Appellant continues to rely on – that “all it took to remove [a gasket] was a paint scraper.” Appellant’s Br., p. 30. Plaintiffs’ counsel’s cross examination of Houghtaling invoked the Root Cause Report to impeach him on this issue. R. Vol. 8 at 27:16 – 28:13.
- ↑ R. Vol. 7 at 61:10-15, 62:1-9 (Plaintiffs used Ex. 18 to force Houghtaling into admitting that in 2002, Appellant had 600 stock codes for asbestos or Garlock 900 products, proving that Appellant continued to order asbestos products on a recurring basis notwithstanding asbestos-free alternatives); see also R. Vol. 7 at 160:7-10 (defense witness Brooks had claimed that there was allegedly a prohibition on the use of asbestos products at Waterford 3, which Pl. Ex. 18 disproves).
- ↑ See, e.g., Patterson v. City of New Orleans, 96-0367, pp. 7-8 (La. App. 4 Cir. 12/18/96); 686 So. 2d 87, 91 (evidence of remedy implemented after accidents involved in case was admissible for the purpose of proving control and was “also indicative that the filter beds are the responsibility of the City rather than the S & WB”); Gary on Behalf of Gary v. Meche, 626 So. 2d 901, 904-05 & n.3 (La. App. 3 Cir. 1993) (evidence of subsequent remedial measures constituted evidence of authority to supervise school children and that certain supervisory measures were feasible).
- ↑ See Jones v. Parish of Jefferson, 95-659 (La. App. 5 Cir. 11/28/95); 665 So. 2d 570, 572 (cited at Appellant’s Br., p. 37). This line of cases clearly refers to other “accidents.” See also Brown v. State Through Dept. of Transp. & Dev., 572 So. 2d 1058, 1065 (La. App. 5 Cir. 1990), clarified on other grounds, 577 So. 2d 1226 (La. App. 5 Cir. 1991), writ denied, 581 So. 2d 710 (La. 1991) (citing same cases cited in Jones and discussing “other accidents occurring under different circumstances”).
- ↑ “The proper inquiry for determining whether a party was prejudiced by a trial court’s alleged erroneous ruling is whether the alleged error, when compared to the entire record, had a ‘substantial effect’ on the outcome of the case.” Thornton, 2000-2604, p. 5, 802 So. 2d at 819 (cit. om.); see also, e.g., Wilson v. Nat’l Union Fire Ins. Co. of La., 27,702, p. 18 (La. App. 2 Cir. 12/6/95); 665 So. 2d 1252, 1264 (no prejudicial error in admitting testimony deemed inadmissible under La. C.E. art. 407); Brown, 572 So. 2d at 1066 (if error occurred in admission of testimony regarding prior accident, such error was not of sufficient magnitude to invalidate result of eight-day trial).
- ↑ Appellant misidentifies Johns Manville as a settling defendant (Appellant’s Br., p. 39). In fact, Johns Manville was not named as a defendant in this case.
- ↑ Nelson v. La. Stadium & Exposition Dist., 2001-1764, p. 8 (La. App. 4 Cir. 11/13/02); 832 So.2d 1043, 1048, writ denied, 2002-3085 (La. 2/21/03); 837 So.2d 630 (cit. om.).
- ↑ See, e.g., Torrejon v. Mobil Oil. Co., 2003-1426, pp. 24-25 (La. App. 4 Cir. 6/2/04); 876 So.2d 877, 894 (rejecting assignment of error blaming settling asbestos product manufacturer and reasoning that minimal exposure alone does not establish liability; claims required proof of harm resulting from the product’s condition, that product was unreasonably dangerous to normal use, and that the dangerous condition existed when product left the manufacturer’s control) (cit. om.).
- ↑ See, e.g., Emery v. Owens-Corp., 2000-2144, p. 15 (La. App. 1 Cir. 11/9/01); 813 So.2d 441, 453-54 (“the record is devoid of any evidence of the duration or intensity of Wayne Bendily’s exposure to any asbestos” contained in a product manufactured by a company other than the trial defendant; “Thus, based on this lack of evidence, we are compelled to conclude that [the trial defendant] failed the burden of proof”) (citing Raley v. Carter, 412 So. 2d 1045 (La. 1982)).
- ↑ See also Martin v. Performance Motorwerks, Inc., 2003-1219, p. 7 (La. App. 4 Cir. 6/16/04); 879 So. 2d 840, 845 (“The fact finder has great discretion in determining the amount of damages, and appellate courts should rarely disturb such an award.”) (citing Youn); see also Dupree v. City of New Orleans, 99-3651, p. 5 n.4 (La. 8/31/00); 765 So. 2d 1002, 1007 n.4 (noting the trier of fact’s “much discretion” in making a damage award of $4,747,134.87 to a quadriplegic) (cit. om.); La. Civ. Code art. 2324.1 (“In the assessment of damages in case of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.”).
- ↑ See, e.g., R. Vol. 3 at 24:27 – 25:2 (“My father was the senior deacon in the Church. We all grew up in the Church…. It was a very cohesive type family and a family of strong moral values.”), 109:31 – 110:7 (describing family Sundays of Church and fellowship), 110:11-12 (“what he enjoyed most about Christmas was having his kids at home.”); R. Vol. 5 at 23:10-13 (“We have always been a strong family, a close family because of our love that they have taught us, the way they brought us up”), 28:28 – 29:3 (daughter explaining the relationship between Mr. Joshua and her son, “my dad was actively involved with the parenting center at school…. My dad was the one who walked him to the school bus every morning. He was the one who fixed his broken bicycles. You have to know my son, he was hard on his bicycles…. [H]e said, mom, he is not going to die is he. I said, yes, Darius, I think he will, He said, no, he can’t. He is my best friend.”), 37:22-27 (son explaining that, “When I received my calling into the ministry, I did my first sermon and my dad was there… I was still at the podium and he grabbed me and he said, son, you did good.”).
- ↑ R. Vol. 4 at 107:1-5, 108:17-23 (“There were also times when my mother didn’t feel well and my dad would ask her to stay in bed and he would cook breakfast. And kids notice things…. When he would go off to work I noticed he would kiss my mom goodbye. He would always kiss my mom goodbye before going to work. I could just feel the relationship between the two from being a little boy up until the time he was in his 70s and retired, how much he cared for her.”).
- ↑ For example, the Jones defendant unsuccessfully argued that because a similar injury had been awarded $370,000 in a previous case, a $500,00 award should be remitted. 896 So.2d at 240.
- ↑ Although the judgment was for $1,650,000, Appellant focuses exclusively on the $2,750,000 jury assignment from which the judgment was calculated. It is appropriate, however, to consider the lower amount that the plaintiff actually received. Cf. LeBlanc v. Barry, 00-709, p. 9 (La. App. 3 Cir. 2/28/01); 790 So.2d 75, 82 (finding no abuse of discretion in trial court’s award of damages, and considering the award “in light of the reduction in damages necessitated by the damage cap” of the medical malpractice statute).
- ↑ See e.g., Barry v. Owens-Corning Fiberglas Corp., 668 N.E.2d 8 (Ill. App. Ct. 1996) (holding an erroneous verdict form was not prejudicial and affirming $6,850,000 verdict, of which jury had apportioned $3,000,000 for wrongful death and $500,000 for loss of society to decedent’s wife); Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 780 (Tex. App. – Corpus Christi 1999) (finding jury had sufficient basis to support damages of $8,158,900, of which $2,145,825.70 was apportioned to decedent’s spouse, based on her pecuniary losses, loss of companionship and society, and mental anguish); Holston v. Sisters of Third Order of St. Francis, 650 N.E.2d 985, 998 (Ill. 1995) (affirming $6,200,000 wrongful death award, including $1,200,000 for decedent’s spouse and $5,000,000 for decedent’s children); Mason v. Texaco, Inc., 948 F.2d 1546, 1558-59 (10th Cir. 1991)(finding reasonable $5,025,000 wrongful death award, of which $3,600,000 was attributed to economic value of loss of services and care); Il. Cen. R.R. Co. v. Hawkins, 830 So.2d 1162, 1181 (Miss. 2002) (affirming $3,000,000 award to son and sole beneficiary).