PATRICIA RIVET MURRAY, Judge.
This is a maritime wrongful death suit. From a judgment notwithstanding the verdict ("JNOV") in favor of the plaintiff, Christina Torrejon, the defendant, Mobil Oil Company ("Mobil"), appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1938, Joseph Torrejon, Mrs. Torrejon's deceased husband, began working as a merchant mariner aboard various vessels in various crew positions. From 1941 to 1949 and in 1956, he sailed on Mobil vessels. During that time, according to plaintiff's calculations, Mr. Torrejon spent 2,066 days working and residing on Mobil vessels. During that time, he allegedly was required to maintain and to repair equipment surrounded with asbestos and to tear out and to repair asbestos-containing insulation. As a result, he allegedly was exposed to substantial amounts of asbestos dust.
In addition to maritime employment, Mr. Torrejon's career also included several land-based employments at which he also may have been exposed to asbestos-containing products.
In April 1994, at age seventy-seven, Mr. Torrejon died of mesothelioma, which the parties stipulated was caused by his exposure to asbestos. In March 1994, a month before he died, Mr. Torrejon, who was then residing in Arizona, filed a petition to perpetuate testimony in Arizona state court. In that petition, he represented that his life expectancy was less than a month and that he reasonably believed that his occupational exposure was a contributing factor to his asbestos-related disease. He further represented that he, or his surviving spouse, was planning to bring suit against the manufacturers of the asbestos-containing products to which he was exposed. He still further represented that he needed to perpetuate his testimony on three particular points: (i) the employment sites at which he was exposed to asbestos, (ii) the types and manufacturers of asbestos-containing products to which he was exposed,
Besides the perpetuation petition, the only other direct evidence of Mr. Torrejon's asbestos exposure was provided by Dr. Robert Hirsch's testimony. Dr. Hirsch, a general internist, testified that he was Mr. Torrejon's treating physician from January 3, 1994 until his death on April 22, 1994. According to Dr. Hirsch, Mr. Torrejon informed him on his first visit, as part of the patient history, that he worked with asbestos when he was a ship's engineer during World War II. Dr. Hirsch testified that Mr. Torrejon did not give him any other information regarding potential occupational exposure to asbestos. Dr. Hirsch documented Mr. Torrejon's statement in his report dated January 3, 1994, which reads: "[Mr. Torrejon] worked with asbestos when he was a ship's engineer during World War, II. Subsequent to that he was a restaurant owner.... He smoked briefly during the 1940's." Dr. Hirsch testified that Mr. Torrejon was mentally alert at the time he obtained that initial patient history from him. Although Dr. Hirsch testified that his working diagnosis of Mr. Torrejon was lung cancer, the autopsy revealed that lung cancer was a misdiagnosis and that the correct diagnosis was mesothelioma.
In March 1995, Mrs. Torrejon, as her deceased husband's personal representative, filed the instant maritime wrongful death action in Orleans Parish Civil District Court. In her original and amended petition, she named two groups of defendants: (1) Mr. Torrejon's Jones Act employer: Mobil Oil Company, individually and as successor to Socony Vacuum Oil Company and Socony Mobil Oil Company; and (2) eight manufacturers of asbestos-containing products: Babcock & Wilcox Company; Combustion Engineering, Inc.; Foster Wheeler Corporation; Combustion Engineering, Inc.; The Flintkote Company; Garlock Inc.; Owens-Corning Fiberglas Corporation; and Owens-Illinois, Inc. As to the latter defendants, plaintiff's claims were premised on maritime products liability. Although plaintiff's petition included both a Jones Act and an unseaworthiness claim against the Jones Act employer (i.e., Mobil), plaintiff pursued only the Jones Act claim at trial.
As to Mobil's Jones Act liability, plaintiff alleged that Mr. Torrejon was exposed to a substantial amount of asbestos while sailing as a seaman on various Mobil vessels in various capacities.
Mobil not only answered, generally denying plaintiff's allegations, but also filed a third-party demand against nine manufacturers of asbestos-containing products. Mobil's third party demand, filed in March 2002, sought indemnity, contribution, or both for the claims plaintiff asserted in this case as well as for the claims she asserted in the parallel federal suit she filed in Arizona.
In November 2002, an almost two-week jury trial was held in the instant matter. Due to settlements and dismissals, Mobil was the sole remaining defendant at the time of trial. At trial, the parties stipulated to the following facts:
Additionally, in response to plaintiff's motion for directed verdict on the issue, Mobil stipulated that Mr. Torrejon's contraction of mesothelioma was caused by his exposure to asbestos.
At the close of trial, the jury answered the special interrogatories as follows:
On November 20, 2002, the trial court entered judgment in accord with the jury's verdict, dismissing plaintiff's claims against Mobil. In response, plaintiff filed a motion for JNOV, or, in the alternative, a motion for new trial. Following a hearing on the motions, the trial court denied plaintiff's motion for new trial, but granted her motion for JNOV. The trial court rejected Mobil's claim for a reduction of liability based on the settling manufacturers' liability, finding Mobil failed to satisfy its burden of establishing the manufacturer's liability. The trial court rendered judgment awarding plaintiff $1.8 million dollars in general damages and $35,917.21 in special damages, for a total of $1,835,917.21 in damages. Mobil filed a motion for new trial, asserting two legal errors: (1) improper inclusion in the general damage award of an award for loss of society damages, which are not allowed under the Jones Act; and (2) improper award of judicial interest from the date of original demand. Plaintiff also filed a motion to amend or clarify the judgment for the same two reasons. The trial court denied Mobil's motion for new trial as to the damages issue, but granted its motion as to the interest issue. The trial court then entered an amended judgment on plaintiff's JNOV motion. From that judgment, Mobil appeals.
On appeal, Mobil assigns as error the following rulings by the trial court: (i) its grant of plaintiff's motion for JNOV; (ii) its finding that Mobil failed to prove fault on the settling manufacturers's part and thus to reduce Mobil's liability by the percentage of fault allocated to those manufacturers; and (iii) its denial of Mobil's
Because the standards for JNOV are procedural, state courts exercising concurrent maritime jurisdiction apply the state JNOV standards. See Milstead v. Diamond M Offshore, Inc., 95-2446, p. 11 (La.7/2/96), 676 So.2d 89, 95. The rules governing JNOV are set forth in La. C.C.P. art. 1811. Article 1811 authorizes a trial court to grant a JNOV motion "on the issue of liability or on the issue of damages or on both issues." La. C.C.P. art. 1811(F). Article 1811, however, is silent on the standard to be applied in ruling on a JNOV motion. Since Article 1811 was modeled after the Federal Rules of Civil Procedure, Rule 50, Louisiana courts have looked to the federal jurisprudence for guidance in determining the standard for deciding a motion for JNOV. Martin v. Heritage Manor South Nursing Home, 2000-1023, p. 6, n. 6 (La.4/3/01), 784 So.2d 627, 632 (citing Scott v. Hospital Service Dist. No. 1 of St. Charles Parish, 496 So.2d 270 (La.1986)).
Quoting Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969), the Louisiana Supreme Court in Scott, articulated the standard for JNOV as follows:
Scott, 496 So.2d at 273-74 (quoting Boeing, 411 F.2d at 374 and collecting federal cases). In Joseph v. Broussard Mill, Inc., 2000-0628 (La.10/30/00), 772 So.2d 94, the Supreme Court reiterated that same standard and added that "[i]n making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party." Joseph, 2000-0628 at pp. 4-5, 772 So.2d at 99 (citing Anderson v. New Orleans Pub. Serv. Inc., 583 So.2d 829, 832 (La.1991)); Robinson v. Fontenot, 2002-0704, 2002-0733 (La.2/7/03), 837 So.2d 1280. Moreover, the court further noted that "[t]he [JNOV] motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover." Joseph, 2000-0628 at p. 4, 772 So.2d at 99.
A motion for JNOV is subject to a stricter standard than a motion for new trial. The reason for this stricter standard is based on the drastic difference between the outcome of granting a JNOV as opposed to granting a new trial. Granting the latter motion results simply in a new trial; granting the former motion results in depriving the parties of their right to have a jury decide all disputed issues. As two commentators explain, "[t]he important distinction between a JNOV and a judgment granting a new trial is that a JNOV reverses the jury's award and makes the apparent winner the loser, while a judgment granting a new trial merely erases the jury verdict (or trial court judgment) and puts the parties in the positions they occupied prior to the trial." 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 13.4 (1999). In short, the stringent
Likewise, the federal commentators have noted that unlike a motion for new trial which the trial court has great discretion to determine if the verdict is contrary to the law or evidence, on a motion for JNOV (now termed under Rule 50 as a judgment as a matter of law),
In reviewing a JNOV on appeal, a two-part inquiry is imposed. First, the appellate court must determine if the trial judge erred in granting the JNOV. This is done by using the same criteria that the trial judge applies in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Martin, 2000-1023 at p. 6, n. 7, 784 So.2d at 632; Anderson, 583 So.2d at 832; Joseph, 2000-0628 at p. 5, 772 So.2d at 99. Second, "[a]fter determining that the trial correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review." Martin, 2000-1023 at p. 6, n. 7, 784 So.2d at 632 (citing Anderson, 583 So.2d at 832).
Mobil acknowledges that the trial court correctly recited in its reasons for judgment the governing JNOV standard, but argues that the trial court erred in applying that standard. Mobil contends that the record supports the jury's reasonable finding that Mobil's negligence did not cause Mr. Torrejon's injuries. In support of that contention, Mobil provides the court with an illustrative list of evidence it contends supports the jury's reasonable finding; to wit:
Simply stated, Mobil's position is that there was an abundance of evidence presented at trial that Mr. Torrejon's Mobil exposures were negligible and that he had significant non-Mobil exposures. Mobil stresses that Mr. Torrejon worked on relatively new vessels, having an average age of slightly over three years, where the need to repair asbestos-containing insulation was minimal; that he worked at other land-based employments at which plaintiff claimed in the Arizona complaint that Mr. Torrejon was exposed to asbestos; and that Dr. Craighead testified that Mr. Torrejon's exposures at those other employment sites alone could have caused his mesothelioma. Mobil contends that the jury reasonably could have found that it was negligent in exposing Mr. Torrejon to even "de minimus" asbestos, yet found such exposures did not cause his mesothelioma.
Although Mobil acknowledges that the Jones Act causation standard is featherweight, it argues that even a featherweight burden must still be met and may be overcome. Mobil stresses that the two jury interrogatories, quoted earlier, implicitly recognize this point. Those interrogatories authorize the jury to find Mobil negligent by answering the first interrogatory in the affirmative, yet to find its negligence was not a cause of Mr. Torrejon's contraction of mesothelioma by answering the second interrogatory in the negative. Mobil argues that the jury's reasonable fact finding of no causation was both factually and legally sound and should be reinstated.
Plaintiff counters that since this is not a products liability claim, but rather a Jones Act claim, she did not have to prove whose asbestos caused Mr. Torrejon's injury; rather, she only had to prove that Mobil was negligent in exposing Mr. Torrejon to asbestos and that Mobil's negligence contributed, however slightly, to his injury. Plaintiff stresses that both medical doctors who were competent to render an opinion on causation — her own expert, Dr. Victor Roggli, and Mobil's expert, Dr. John Craighead — opined that Mr. Torrejon's occupational exposure to asbestos while sailing on merchant marine vessels was a cause of his mesothelioma. Moreover, plaintiff contends that the jury erred in failing to find she met her Jones Act burden of proving slight causation given the stipulations coupled with the following evidence:
Plaintiff further contends that even assuming, as Mobil contends, Mr. Torrejon was exposed to asbestos elsewhere than on Mobil vessels, the jury question presented was whether the Mobil exposures were "a" cause of Mr. Torrejon's mesothelioma, not "the" cause. Plaintiff cites Dr. Roggli's testimony that mesothelioma is a dose-responsive disease, which means that the more a person is exposed, the greater his risk of contracting the disease. Plaintiff posits that "any" exposure above background becomes a causative factor in producing the disease and that each additional exposure simply exacerbates the prior exposure.
Agreeing with plaintiff, the trial court in its amended reasons for judgment stated:
We find the trial court did not err in granting plaintiff's motion for JNOV. The evidentiary facts upon which the trial court's JNOV decision was based were largely undisputed. The parties stipulated that Mr. Torrejon died as a result of mesothelioma
The applicable law in this case is the Jones Act. To impose liability under the Jones Act upon a ship owner, a plaintiff must prove not only an injury but also that the negligent act or omission was a cause of his injury. In this case, both the injury and the employer's, Mobil's, negligence are not disputed. The sole dispute is whether Mobil's negligence caused Mr. Torrejon's injury, i.e., contraction of mesothelioma.
As noted earlier, the only direct evidence regarding Mr. Torrejon's exposure was provided in Mr. Torrejon's perpetuation petition and Dr. Hirsch's testimony regarding the initial history Mr. Torrejon gave to him. The circumstantial evidence regarding his exposures, as Mobil emphasizes, was conflicting; however, the undisputed factual finding by the jury that Mobil negligently exposed Mr. Torrejon to asbestos renders that conflicting evidence irrelevant. The relevant evidence on causation, as the trial court correctly concluded, was confined to the expert testimony of Dr. John Craighead, Mobil's expert, and Dr. Victor Roggli, plaintiff's expert. Those two doctors were the only witnesses who provided expert medical testimony regarding the causal link between Mr. Torrejon's exposures and his contraction of mesothelioma.
Dr. Craighead, a medical doctor who specialized in the fields of pathology and epidemiology, testified at trial by telephone deposition. He testified that in his review of Mr. Torrejon's pathology material he found pleural plaque, which to a reasonable degree of medical probability was caused by asbestos exposure. He diagnosed Mr. Torrejon as having mesothelioma. As to Mr. Torrejon's maritime exposure to asbestos, Dr. Craighead testified:
Although, as Mobil emphasizes, Dr. Craighead testified that exposures at non-Mobil employment sites could have caused Mr. Torrejon's mesothelioma, he also testified that, on a probability basis, the earlier exposures to asbestos are more likely to contribute to the development of mesothelioma than the later exposures. Finally, he acknowledged that he had no information about the levels of exposures Mr. Torrejon was subjected to at any of his occupational work sites.
Dr. Roggli, who was qualified as an expert pathologist in the field of asbestos-related diseases, testified as an expert for plaintiff. Dr. Roggli testified that he reviewed Mr. Torrejon's medical records and Dr. Craighead's report and deposition. Dr. Roggli testified that he agreed with Dr. Craighead's diagnosis of Mr. Torrejon as malignant mesothelioma, that he agreed pleural plaque was found in Mr. Torrejon's chest wall, and that he agreed that his mesothelioma was caused by exposure to asbestos while he sailed in the merchant marine in the 1940's and 1950's. Dr. Roggli testified that his opinion that Mr. Torrejon's exposure as a merchant mariner was the cause of his mesothelioma was based on several factors; to wit: (i) because they found pleural plaque in Mr. Torrejon's chest wall, (ii) because they found an asbestos body in the slide of his lung tissue, and (iii) because when they studied the common industries that are related to the contraction of mesothelioma, they found that the number two industry associated with the most number of mesothelioma cases in North America was the U.S. Navy/Merchant Marine. Dr. Roggli testified that every exposure above ordinary background level contributes to mesothelioma.
Both Dr. Craighead and Dr. Roggli opined that Mr. Torrejon's occupational exposure to asbestos caused his mesothelioma, and Mobil stipulated that Mr. Torrejon's mesothelioma was caused by asbestos exposure. Mobil, nonetheless, stresses that it did not stipulate that the Mobil exposures caused Mr. Torrejon to contract mesothelioma. Mobil further stresses that Dr. Craighead testified that the non-Mobil, land-based employment exposures alone could have caused Mr. Torrejon's mesothelioma. Mobil still further stresses that it presented abundant evidence at trial establishing that Mr. Torrejon had significant non-Mobil exposures and de minimus Mobil exposures.
Mobil's argument regarding the nature (Mobil versus non-Mobil) and the extent of Mr. Torrejon's Mobil exposures overlooks the impossibility of medical science to determine exactly which one of a tort victim's multiple exposures caused the victim's mesothelioma. Indeed, causation has been noted to be the "premier hurdle" faced by plaintiffs in asbestos litigation. Brian M. DiMasi, Comment, The Threshold Level of Proof of Asbestos Causation: The "Frequency, Regularity and Proximity Test" and a Modified Summers v. Tice Theory of Burden-Shifting, 24 Cap. U.L.Rev. 735, 738-41 (1995). "The many types of asbestos products, the many possible places of exposure, the lack of direct evidence of particular product exposure, and the possibility of contributing factors have forced the courts to develop various standards of causation." Id. The seminal case addressing this causation problem is Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973).
In Borel, supra, the federal Fifth Circuit applied the substantial factor standard and found cause in fact satisfied based on inferences, reasoning as follows:
Borel, 493 F.2d at 1094. The Borel court further noted that "[w]hether the defendant's conduct was a substantial factor is a question for the jury, unless the court determines that reasonable men could not differ." Id.
The legal standard regarding the level of causation under the Jones Act is different than that required for other torts and under the general maritime law, such as for unseaworthiness and products liability claims. Under the Jones Act, a seaman is only required to prove that the employer's negligence was "a" cause of his injury, regardless of how slight; whereas, under the general maritime law, a seaman is required to prove the traditional tort proximate cause standard. 2 Martin J. Norris, The Law of Seamen § 30:40 (5th ed.2003). This significant distinction was first articulated in the seminal case Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). In Rogers, the Supreme Court reasoned that the test is whether the employer's negligence played any part, "even the slightest" in producing the injury or death for which damages are claimed. The Supreme Court further stated:
Rogers, 352 U.S. at 506-07, 77 S.Ct. at 448-49. The Court further noted that "for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the objection of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference." Rogers, 352 U.S. at 508, 77 S.Ct. at 449.
The Rogers holding of negligent acts playing any part, no matter how slight, was adopted as "the simple rule of physical causation" to reduce the injured employee's burden of establishing a case under traditional proximate cause standards. Eric Hanson, Recent Development: Gautreaux v. Scurlock Marine, Inc.: The
This featherweight standard, "in common with most workers' compensation statutes, extends common law definitions of legal cause to include precipitation as well as aggravation." Evans v. United Arab Shipping Co. S.A.G., 4 F.3d 207, 210 (3rd Cir.1993). This standard extends traditional views on the limits of legal or proximate cause by recognizing a "broader rippling effect." Id.
Our finding is buttressed by the nature of the disease at issue. Mesothelioma, an unusual, lethal form of cancer, can develop from relatively short, high-intensity exposure to asbestos, as opposed to asbestosis, which develops as a result of relatively high levels of exposure over fairly lengthy periods. Egan, 94-1939 at p. 12, 677 So.2d at 1035. Mesothelioma is a classic example of a signature disease. A signature disease is one which is "extremely rare in the general population but far more prevalent among those exposed to a particular substance; the disease in a sense bears the signature of the substance." Daniel A. Farber, Toxic Causation, 71 Minn. L.Rev. 1219, 1251-52 (1987). For this reason, a commentator suggests that the proper approach to causation is to apply "an irrebuttable presumption of causation in mesothelioma cases." Id. As another commentator points out, "[e]ven `easy' toxic tort causation cases are based on statistical correlations, but ones so strong and so exclusive that courts have little trouble believing them." Steve Gold, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence, 96 Yale L.J. 376, 384 n. 43 (1986)(citing as illustrative the extremely strong link between asbestos exposure and mesothelioma).
The causal link between asbestos exposure and mesothelioma contraction has been demonstrated to such a high degree
Applying that same reasoning to the undisputed facts in this case leads to the inescapable conclusion that Mobil's exposure of Mr. Torrejon to asbestos was "a" cause of his mesothelioma. In this case, the jury found Mobil negligently exposed Mr. Torrejon to asbestos. The parties stipulated that Mr. Torrejon's mesothelioma was caused by asbestos exposure. It logically follows that Mobil's negligence caused Mr. Torrejon's mesothelioma. A contrary inference is simply not reasonable. Rougeau, 432 So.2d at 1167 (defining a reasonable inference as one that makes the existence of the inferred fact more probable than not and noting that a court has a duty to withdraw a case from the jury when an inference is so tenuous that it rests upon speculation or conjecture).
Summarizing, the trial court's decision granting plaintiff's JNOV motion is supported by the featherweight standard of causation applicable in Jones Act cases, the signature nature of mesothelioma, and the application of logical reasoning to the undisputed facts. We thus affirm the trial court's decision granting plaintiff's motion for JNOV.
FAULT OF SETTLING MANUFACTURERS
Mobil's second assignment of error is that the evidence established the
Mobil relies on the testimony of Dr. Richard Lemen, an expert in epidemiology, occupational safety and health, state of the art as it applies to asbestos and the public health effects of asbestos on human beings. Dr. Lemen testified that there was no asbestos-containing product that could be safely used if it released asbestos into a worker's breathing zone. Mobil contends that this testimony by Dr. Lemen that there is no asbestos-containing products that can be used safely satisfied the requirement that it prove the manufacturers' products were unreasonably dangerous. Mobil also relies on Dr. Lemen's testimony to satisfy the requirement that it prove these products caused Mr. Torrejon's injuries. Finally, Mobil relies on the allegations in plaintiff's Arizona complaint to satisfy the requirement that it prove Mr. Torrejon was exposed to the identified manufacturers' products.
Agreeing with plaintiff's argument that Mobil failed to satisfy its burden of establishing liability on the part of the settling manufacturers, the trial court reasoned:
We find no error in the trial court's reasoning. Mobil's reliance on plaintiff's allegations in her Arizona complaint to establish Mr. Torrejon's exposure to the settling manufacturers' products is misplaced. "An allegation, admission or confession in a pleading in another suit is an extrajudicial admission and is admissible as evidence, but is not a conclusive presumption and does not operate as estoppel unless the party invoking it has been prejudiced by relying upon it." Cross v. Cutter Biological, Div. of Miles, Inc., 94-1477, p. 21 (La.App. 4 Cir. 5/29/96), 676 So.2d 131, 144 (citing Lakeshore Property Owners Ass'n, Inc. v. Delatte, 524 So.2d 126, 130 (La.App. 4th Cir.
Given the lack of evidence establishing Mr. Torrejon was exposed to the settling manufacturers' products, we find no manifest error in the trial court's factual finding that Mobil failed to establish liability on the part of the settling manufacturers and that Mobil is liable for all of Mr. Torrejon's injuries. Nonetheless, we expressly adopt the trial court's reasoning that "[e]ven though this Court finds that apportionment is presently not warranted, Mobil may still have a future contribution action against other potential tortfeasors."
GENERAL DAMAGE AWARD
Mobil's final assignment of error is that the general damage award must be reduced by the amounts improperly included in that award for damages not allowed under the Jones Act, i.e., loss of society damages. Although the trial court denied Mobil's motion for new trial on this issue, it amended its reasons for judgment to delete the reference to loss of society damages and to reflect that the general damage award of $1.8 million was solely for Mr. Torrejon's pain and suffering. Mobil contends that the trial court's correction of its erroneous award by simply rewording its reasons for judgment should be reversed. Particularly, Mobil stresses that the trial court at the hearing on its motion for new trial acknowledged that its original $1.8 million general damage award included amounts intended to compensate not only Mr. Torrejon, but also Mrs. Torrejon and the Torrejon children for loss of society damages. Despite that acknowledgement, the trial court refused to reduce the general damage award by the amounts erroneously included in the original award. As a result, Mobil contends that the trial court, in effect, increased the award for Mr. Torrejon's damages by including in the general damage award amounts not recoverable under the Jones Act for loss of society damages.
Plaintiff counters that there was no evidence presented at trial from which the trial court could have made an award for loss of society because the plaintiff only presented evidence as to Mr. Torrejon's pain and suffering. Indeed, the parties stipulated that plaintiff was only "seeking damages for his physical and mental pain and suffering, medical expenses and funeral expenses as allowed under the Jones Act and general maritime law." Plaintiff further counters that although the trial court's original reasons for judgment erroneously referred to loss of society damages, the original judgment simply awarded Mr. Torrejon $1.8 in general damages. Moreover, the trial court judge at the hearing stated that she clearly intended to award that "envelope lump sum" for Mr.
As to the amount of general damages awarded by the trial court, we find no abuse of discretion. Plaintiff established at trial the extreme pain and suffering Mr. Torrejon endured as a result of contracting mesothelioma. Particularly, the trial court stated in its reasons for judgment that:
Given these facts, we cannot say the trial court's award of $1.8 million in general damages was an abuse of discretion.
For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to defendant, Mobil Oil Company.
See also Held v. Avondale Industries, Inc., 95-1788 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106, 1109 (citing Dr. Roggli's testimony that "there is no known level of asbestos which would be considered safe with regard to the development of mesothelioma.")
Margaret Fordham, Case and Legislation Comment: Causation in the Tort of Negligence — a Dispensable Element?, Fairchild v. Glenhaven Funeral Services Ltd and Others, 2003 Sing. J. Legal Stud. 285. Finding that C was entitled to recover damages against either A or B or both of them, the House of Lords' consensus was that any other outcome would offend justice and fairness. Id. In reaching that result, the court openly acknowledged that its decision involved a variation of the ordinary tort rules of causation. Id. Moreover, the court cited to the American Law Institute, Restatement of the Law, Torts 2d, § 433(3), which provides: "Where the conduct of two or more actors is tortuous, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm." See also Jessica Burt, Employers' Liability for Asbestos Diseases: House of Lords Takes a Turn in English Law, 69 Def. Couns. J. 326 (2002).