Berry v. Anco Insulations
273 So. 3d 595
La. Ct. App.2019Background
- Lynda Berry sued after developing peritoneal mesothelioma attributed to secondhand asbestos exposure from her husband William Berry, an EI technician at a paper mill where large asbestos-insulated boilers were installed and serviced beginning in the 1960s.
- Foster Wheeler designed, installed, and serviced the boilers; plaintiff alleged its negligent conduct and failure to warn caused the exposure. Several other suppliers/contractors (GE, valve/pump makers, J. Graves insulation) settled pretrial or midtrial.
- Trial jury found Foster Wheeler liable (negligence and failure to warn) and Olin (mill owner) partly liable; exonerated most other named defendants. Jury awarded past medicals and substantial future medicals but no general damages; court later granted JNOV to add general damages and adjusted medical awards, yielding final judgment against Foster Wheeler for $2.25 million (reflecting Olin’s virile share).
- Foster Wheeler appealed five issues: (1) jury’s failure to assign fault to settled/exonerated defendants (virile share credits), (2) exclusion of union-knowledge evidence, (3) whether a midtrial settlement by J. Graves required automatic virile-share reduction, (4) sufficiency/quantum of future medical expenses, and (5) peremption under La. R.S. 9:2772 (10-year bar).
- The appellate court reviewed mixed standards (manifest-error for factual findings; abuse of discretion for evidentiary rulings; legal review where noted) and affirmed the judgment in all respects.
Issues
| Issue | Berry's Argument | Foster Wheeler's Argument | Held |
|---|---|---|---|
| Liability of settled/exonerated codefendants (virile-share credits) | Evidence (including plaintiff’s expert and witnesses) showed multiple suppliers/contractors were substantial contributing causes | Jury erred by exonerating settled defendants; Foster Wheeler entitled to virile-share credit under pre-comparative-fault law | Court: No manifest error; disparity in proof justified jury limiting liability to Foster Wheeler; burden to prove nonparty fault was on Foster Wheeler and it did not meet it |
| Exclusion of union-knowledge evidence | N/A (Berry sought to exclude) | Evidence that union knew asbestos hazards (Dr. Howard deposition, later Insulation Hygiene Reports) should be admitted to impute knowledge to J. Graves | Trial court did not abuse discretion; ample other evidence of union/industry knowledge existed and excluded materials were not outcome-determinative |
| Automatic virile-share reduction for midtrial settlement by J. Graves | Automatic reduction is too harsh; plaintiff had presented evidence of J. Graves at trial | Settlement after trial began prejudiced remaining defendant; merits automatic virile-share allocation | Court: No automatic virile share; apply fairness test from Raley—here Foster Wheeler had access to evidence, time to adjust, and did not show specific prejudice; no abuse of discretion |
| Future medical expenses — sufficiency and quantum | Expert testimony and treating physician supported future medicals estimate ($1M–$3M); jury could discredit plaintiff’s stated refusal to undergo surgery | Insufficient proof that proposed costly surgery would be undertaken or is probable; plaintiff’s statements showed reluctance | Court: No manifest error; medical testimony made future care probable and district court reasonably set $1M after JNOV reduction |
| Peremption (La. R.S. 9:2772 10-year bar) | N/A | Work was completed in 1965; suit filed 50 years later and should be perempted | Court: No manifest error; Foster Wheeler performed repeated maintenance/outage work through decades (last within 10 years), so action timely; statute construed narrowly against peremption |
Key Cases Cited
- Wall v. American Employers Ins. Co., 386 So.2d 79 (La. 1980) (discusses virile-share credit when released parties’ liability is litigated at trial)
- Joseph v. Broussard Rice Mill Inc., 772 So.2d 94 (La. 2000) (party asserting fault of nonparty must prove it by preponderance)
- Raley v. Carter, 412 So.2d 1045 (La. 1982) (settlement after trial begins does not automatically require virile-share reduction; apply fairness analysis)
- Danks v. Maher, 177 So.2d 412 (La. App. 4 Cir. 1965) (early case applying automatic reduction where late settlement prejudiced remaining defendant)
- Stiles v. K Mart Corp., 597 So.2d 1012 (La. 1992) (when future medicals are certain, court may award a reasonable minimum even without exact cost figures)
- Menard v. Lafayette Ins. Co., 31 So.3d 996 (La. 2010) (standard for proving future medical expenses and deference to factfinder)
- Won Suk Lee v. Holyfield Const. Inc., 93 So.3d 868 (La. App. 2 Cir. 2012) (trial court’s evidentiary rulings reviewed for abuse of discretion)