Berry v. Anco Insulations
273 So. 3d 595
La. Ct. App.2019Background
- Plaintiff Lynda Berry developed peritoneal mesothelioma in 2015 and sued multiple defendants for secondhand asbestos exposure traced to her husband’s work at a paper mill where he handled asbestos-laden boiler insulation from the mid-1960s onward.
- Foster Wheeler LLC designed, installed, and serviced two large asbestos-insulated boilers at the mill and performed repeated outage work (removal/reinstallation of insulation) through 2010; plaintiff alleges this work generated dust her husband brought home on his clothes.
- Plaintiff originally sued 26 defendants, settled with most pretrial, and proceeded to a jury trial in 2017 against Foster Wheeler and J. Graves Insulation (J. Graves settled midtrial).
- Jury found Foster Wheeler liable (negligence and failure to warn) and Olin Corp. (mill owner) partly liable, but exonerated several settled or named defendants (GE, valve/pump makers, J. Graves). Jury awarded past and future medicals but no general damages; the court on JNOV awarded $3 million in general damages and reduced medical awards, yielding final judgment of $2.25 million against Foster Wheeler (reflecting Olin’s virile share).
- Foster Wheeler appealed five issues: (1) failure to assign virile-share credits to settled/exonerated defendants, (2) exclusion of union-knowledge evidence, (3) denial of automatic virile share for midtrial settlement, (4) sufficiency/quantum of future medical expenses, and (5) ten-year peremption (La. R.S. 9:2772) defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability of other (settled/exonerated) defendants | Berry relied on record testimony and expert Dr. Holstein tying multiple suppliers/contractors to exposure; jury’s exonerations reasonable | Foster Wheeler: settled parties (and J. Graves) were substantial causes; under pre-comparative-fault law those settled parties should get virile-share credit | Affirmed: no manifest error; jury reasonably limited liability to Foster Wheeler given disparity of proof and burden was on Foster Wheeler to prove nonparty fault |
| Exclusion of union-knowledge evidence | Berry: exclusion harmless; ample other evidence showed knowledge of asbestos hazards | Foster Wheeler: wanted to admit evidence showing union (J. Graves’s employees) knew of hazards as chargeable to J. Graves | Afforded trial court discretion; exclusion did not affect substantial rights given other evidence of knowledge; no abuse of discretion |
| Automatic virile share for midtrial settlement (J. Graves) | Berry: Raley prohibits automatic reduction; remaining defendant must prove settled party’s fault; automatic rule is harsh | Foster Wheeler: late settlement prejudiced its ability to prove J. Graves’s fault and warrants virile-share credit | Denied: no automatic rule; fairness inquiry applied (Raley); trial court properly found Foster Wheeler had evidence and opportunity and offered no specific prejudice |
| Future medical expenses (probability/quantum) | Berry: testimony supports inevitability and Drs. estimated $1–3 million; jury could reasonably award future medicals | Foster Wheeler: plaintiff’s stated reluctance to undergo surgery and speculative cost estimates insufficient | Affirmed: factfinder may infer inevitability despite plaintiff’s reluctance; $1M award not manifestly erroneous given expert estimates and lack of contrary proof |
| La. R.S. 9:2772 peremption (10-year bar) | Berry: peremption inapplicable because Foster Wheeler continued maintenance/repairs and/or had duty to warn once aware of hazard | Foster Wheeler: construction completed in 1965; action filed in 2015—perempted | Affirmed: court treated repeated outage/repair work as "work" within the statute; suit filed within 10 years of last work; no manifest error |
Key Cases Cited
- Wall v. American Employers Ins. Co., 386 So.2d 79 (La. 1980) (discusses virile-share credit where released defendants’ fault is established at trial)
- Joseph v. Broussard Rice Mill Inc., 772 So.2d 94 (La. 2000) (party asserting nonparty fault must preponderate the evidence)
- Raley v. Carter, 412 So.2d 1045 (La. 1982) (limits automatic imposition of virile-share reductions for late settlements; fairness inquiry governs)
- Stiles v. K Mart Corp., 597 So.2d 1012 (La. 1992) (future medicals may be awarded where record establishes necessity and a minimum amount can be fixed)
- Menard v. Lafayette Ins. Co., 31 So.3d 996 (La. 2010) (discusses proof required for future medical expenses and deference to factfinder)