135 So. 3d 53
La. Ct. App.2013Background
- Alfred Watts worked as a laborer for Hebert Brothers at Dow’s Plaquemine, LA, chlorine plant, handling asbestos in the 1960s–early 1970s.
- Alfred diagnosed with laryngeal cancer in 1994, had voice box removed, and died of lung cancer on Oct. 31, 2001 from exposure-related diseases.
- Plaintiffs sued multiple entities; Dow was dismissed; suit proceeded against Hebert Brothers, which was added as a party in 2003.
- Jury found Hebert Brothers negligent, substantial factor in causing Alfred’s laryngeal and lung cancers; damages totaled $3,625,000.
- Remand proceedings concluded Watts’ claims against Dow were prescribed and later found Dow liable, creating a solidary relationship with Hebert Brothers.
- Trial court amended damages to reflect virile share, reducing Watts’ judgment to half of total damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Solidary liability interruptions and prescription | Watts timely interrupted prescription via solidary liability | Dow not proven solidary obligor; prescription improper | Dow proven solidary obligor; prescription timely against Hebert Brothers |
| Dow’s liability theory and standard of proof | Dow liable under custodial negligence/strict liability theory | Dow’s liability not established; focus remains Hebert Brothers | Dow’s liability proven; solidary relationship established; Dow deemed liable |
| Virile share allocation | Dow’s fault warrants virile share reduction; trial court erred in not applying | No waiver; Dow’s fault not proven to reduce Hebert Brothers’ liability | Virile share applied; damages reduced by one-half; Dow’s share allocated to Watts’ award |
| Quantum of damages for lung cancer | Damages for lung cancer reasonable given suffering | Award excessive; should be reduced | No abuse of discretion; damages upheld (with virile share adjustment) |
Key Cases Cited
- Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992) (apply law governing long-latency occupational disease claims and strict liability concepts)
- Kent v. Gulf States Utilities Co., 418 So.2d 493 (La. 1982) (duty to discover risks under traditional negligence concepts; strict liability contrasts)
- Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993) (manifest error standard in appraisal of trial court findings)
- Raley v. Carter, 412 So.2d 1045 (La.1982) (virile share and effects of settling joint tortfeasors; burden shifting)
- Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993) (abuse-of-discretion standard for general damages; review framework)
- Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976) (general damages reviewed for abuse of discretion; comprehensive framework)