On January 5, 2023, a Louisiana appellate court issued a divided opinion that addressed the nature of take-home asbestos claims. Pete v. Bolan Marine & Manufacturing Co., LLC, 2021-0626 (La. App. 4 Cir. 1/5/23), 2023 La. App. LEXIS 2* (La. Ct. App. Jan. 5, 2023). Despite an order limiting Plaintiff’s ability to rely on take-home exposure in proving his claims, a Louisiana appellate court affirmed a jury award of $10.35M in finding that Plaintiff’s take-home exposure was a substantial contributing factor in the development of his mesothelioma.
Plaintiff Henry Pete was diagnosed with mesothelioma in May of 2019. Later that year, he filed a petition for damages in Orleans Parish Civil District Court against numerous Defendants, attributing his disease to asbestos exposure during his work as a longshoreman from 1964 to 1968 where he loaded burlap bags of raw asbestos on cargo ships in the Port of New Orleans.
Plaintiff also alleged that his father had worked with asbestos cargo as a longshoreman at the same port from 1946 to 1968. In addition to his direct exposure claims, Plaintiff also alleged secondary or “take-home” asbestos exposure in his childhood home as a result of personal contact with his father’s unwashed work clothes.
Trial Court’s Handling of Take-Home Claims and Jury Verdict
Several Defendants, including Ports America Gulfport Inc., moved for summary judgment on the take-home claims. The District Court denied the Motion in part, finding that Plaintiff had failed to present competent evidence to support the theory that, prior to 1964, his father was exposed to and brought home asbestos giving rise to Plaintiff’s illness. However, Plaintiff was allowed to discuss what he personally observed at the Port once he began working alongside his father from 1964 to 1968. This decision limited the scope of Plaintiff’s take-home claim to the four years where Plaintiff and his father both worked at the Port.
At a later hearing on motions in limine, Plaintiff’s counsel advised the Court that they had just received Plaintiff’s father’s social security records showing work at the Port prior to 1964. Ultimately, the Court admitted the social security records for the “sole use” of substantiating that Plaintiff and his father worked together for Defendants from 1964 to 1968. The Court denied Plaintiff’s motion to reopen the take-home claim as to exposures prior to 1964.
The matter went forward to trial with a jury verdict form and interrogatories that distinguished between Defendants’ potential liabilities for direct and take-home exposures. No Defendant timely objected to these jury forms. After deliberation, the jury found that Ports America Gulfport, Inc. was the only Defendant liable to for Plaintiff’s developing mesothelioma attributable to take-home exposure through his father. Specifically, Jury Interrogatory Question #5 read:
Do you find by the preponderance of the evidence that the plaintiff Henry Pete, and his father Preston Pete, were exposed to asbestos while employed by any of the following company (companies) between 1964 and 1968, that Henry was exposed to asbestos taken home by his father from this work, and that such exposure was a substantial contributing factor in his development of mesothelioma?
Of the four companies listed, the jury marked “Yes” for Defendant Ports America and nonparty Cooper T. Smith Stevedoring Co., Inc.
After the jury verdict and interrogatories were entered, the District Court informed the parties that it would make the jury verdict the judgment of the Court. General and special damages were awarded totaling $10,351,020, including $2,000,000 for past and future physical pain and suffering; $2,300,000 for past and future mental pain and suffering; $3,000,000 for past and future physical disability; $2,500,000 for past and future loss of enjoyment of life; and $551,020 in past medical expenses. Ports America Gulfport, Inc. appealed.
Appellate Court’s Stamp of Approval
A three-judge panel for Fourth Circuit Louisiana Court of Appeal addressed three issues on review: (1) whether the District Court erred in denying Defendants’ Motion to Continue; (2) whether there was sufficient evidence to support the jury verdict and judgment; and (3) whether the jury’s general damage award was excessive.
The Appellate Court held that the take-home claims were “always part of the case.” The Appellate Court stated, “We can only conclude that the defendants failed to support their assertion that they were surprised or ambushed by the newly discovered evidence.”
Ports America also argued on appeal that Jury Interrogatory Question #5 did not support the ultimate verdict because it did not address theories of liability or breach of duty, only causation and damages. However, because the jury interrogatories regarding Plaintiff’s father’s exposures were not objected to by Defendants before or at trial, they were upheld. The Court found the evidence presented in total was sufficient to support the jury verdict as well as the $10.35M damages award. Judge Daniel L. Dysart, dissenting alone, argued that the size of the verdict shocks the conscience and was an abuse of discretion that he would reduce by half.
Louisiana asbestos defendants must be diligent when defending against take-home exposure claims, especially in pre-trial motion practice and at trial. Defendants cannot take for granted that evidence admitted for a limited purpose will actually be considered by the jury for only the allowed purpose. It is likewise imperative to pay close attention to jury verdict forms and jury interrogatories with respect to secondary exposure claims. Defendants should object on the record whenever the forms have potential to confuse the jury as to issues of exposure type or fault. Finally, the large verdict in this case emphasizes the danger of taking mesothelioma cases to trial in Louisiana courts. While the dissent in this case illustrates that there are some exceptions, Louisiana judges and juries are generally unafraid to render and uphold significant verdicts in favor of asbestos claimants.