Freeman v. Phillips 66 Co.
208 So. 3d 437
La. Ct. App.2016Background
- Freeman, a former oil-field worker, sued multiple defendants in 2011 claiming asbestos-related disease from drilling-mud products; by trial (Aug 2015) only Union Carbide and Montello remained.
- Jury returned a verdict finding Freeman does not have asbestosis. Trial court entered a final judgment dismissing all claims with prejudice on Nov. 24, 2015; Freeman appealed.
- Appellate court found the judgment lacked required decretal language naming the party against whom relief was ordered, so appellate jurisdiction was defective. Court converted the appeal into an application for supervisory writs and granted it.
- Freeman raised four evidentiary assignments of error: (1) admission of a newspaper lawyer advertisement; (2) admission of correspondence between Freeman and his lawyers (asserted attorney-client privilege); (3) defense references to "drive-by screenings" and publication of a color photograph of the screening clinic; (4) publication of Freeman’s Seaman’s Petition during closing.
- The court reviewed evidentiary rulings under abuse-of-discretion, applying the rule that an evidentiary error requires reversal only if it had a "substantial effect" on the outcome; legal errors would require de novo review.
- The court denied all four assignments of error, concluding Freeman failed to show the challenged rulings substantially affected the outcome, and affirmed the trial judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Admission of newspaper attorney advertisement | Advertisement irrelevant and highly prejudicial; suggests lawsuit was generated by counsel | Relevant to origin of screening and potential bias; admissible | Admitted evidence did not substantially affect outcome; no merit |
| 2. Admission of counsel's August 16, 2010 letter (privilege) | Letter protected by attorney-client privilege | Freeman waived privilege by placing the letter into medical records and using it at trial | Waiver found; admission proper; no merit |
| 3. References to "drive-by screenings" and use of a clinic photo (not admitted) | References and photo were prejudicial and impermissible demonstratives | Expert testified about such screenings; demonstrative photo relevant and not inflammatory; trial court discretion | No substantial effect on verdict; objections waived; photo permissible demonstrative aid |
| 4. Showing Freeman’s Seaman’s Petition in closing (not admitted) | Petition not in evidence and its publication prejudiced jury | Brief display was not prejudicial; no timely objection | Waived by failure to object; not prejudicial; no merit |
Key Cases Cited
- Tsegaye v. City of New Orleans, 183 So.3d 705 (La. App. 4th Cir. 2015) (final judgment must include decretal language naming parties and relief to be appealable)
- Jones v. Stewart, 203 So.3d 384 (La. App. 4th Cir. 2016) (discussion of decretal-language requirements)
- Roger v. Dufrene, 718 So.2d 592 (La. App. 4th Cir. 1998) (legal error requires de novo review; otherwise appellate courts defer on fact findings)
- Thomas v. A.P. Green Indus., Inc., 933 So.2d 843 (La. App. 4th Cir. 2006) (party alleging evidentiary error must show substantial effect on outcome)
- Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138 (La. 1987) (using attorney communications at trial waives attorney-client privilege)
- Schwamb v. Delta Air Lines, Inc., 516 So.2d 452 (La. App. 1st Cir. 1987) (trial courts may permit demonstrative aids not admitted into evidence if relevant and not unduly prejudicial)