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Romano v. Metropolitan Life Insurance Co.

Court of Appeals of Louisiana, Fourth Circuit

May 24, 2017

FRANK S. ROMANO, SR. AND LYNN ROME ROMANO
v.
METROPOLITAN LIFE INSURANCE COMPANY, ET AL

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-08969, DIVISION "M" Honorable Paulette R. Irons, Judge

          LAWRENCE J. CENTOLA III SCOTT R. BICKFORD JASON Z. LANDRY MARTZELL & BICKFORD, APC AND LAWRENCE BLAKE JONES JOSHUA LEE RUBENSTEIN PATRICK J. ESKEW SCHEUERMANN & JONES COUNSEL FOR PLAINTIFF/APPELLANT.

          DEBORAH D. KUCHLER McGREADY LEWIS RICHESON ERNEST GEORGE FONDAS FRANCIS XAVIER deBLANC III PERRY S. LEE LEIGH ANN SCHELL KUCHLER POLK SCHELL WEINER & RICESON, LLC COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore

          JAMES F. MCKAY, III CHIEF JUDGE

         In this mesothelioma case, both the defendant Union Carbide Corporation and the plaintiffs, Frank Romano, Sr. and Lynn Romano, appeal a jury verdict entered by the trial court as well as the trial court's denial of their respective attempts to nullify the jury's verdict. The plaintiffs seek an increase in the quantum of damages, while the defendant questions liability and causation.

         FACTS AND PROCEDURAL HISTORY

         Frank Romano, Sr. grew up in Marrero, Louisiana and lived about two blocks away from the Johns-Manville Corporation's plant there from the 1940's until he went away to college in the early 1960's. Following college, Mr. Romano worked at Union Carbide Corporation's Taft facility for nine to ten months during 1967 and 1968. For the majority of time that he worked at the Taft facility, Mr. Romano was assigned to the stores department, where his occupational asbestos exposure was thousands of times above background levels on a daily basis.

         After he contracted malignant mesothelioma, Mr. Romano and his wife Lynn filed suit against Union Carbide and ten other defendants on September 12, 2014.[1] Two of the defendants, Capital Rubber and Specialty Company, LLC and Gulf Belting and Gasket Corporation, Inc., filed a third party demand against Claims Resolution Management Corporation, as successor in interest to Johns-Manville. The case proceeded to a jury trial, which ran from March 14 through 22, 2016.

         At trial, Mr. Romano and his treating physicians, Drs. Pettiford and Satti, all testified. Mr. Romano's medical causation expert, Dr. John Maddox, also testified via a video deposition. Testimony at trial indicated that as a result of the diagnosis and treatment of mesothelioma, Mr. Romano underwent a PleurX catheter insertion, or tunnel catheter, to periodically drain fluid build-up in his lungs; suffered from a staph infection as a result of the PleurX catheter insertion that necessitated hospitalization for a week; underwent a radical pleurectomy procedure to remove part of the lining of his lung as well as one of his ribs; endured "hot" chemotherapy (a treatment where physicians bathe the chest cavity with a very high temperature, high concentration chemotherapy agent); endured four rounds of what would be considered traditional chemotherapy; and underwent an additional procedure following his radical pleurectomy to repair diaphragmatic herniation, because Mr. Romano's intestinal contents herniated from the inside of his abdomen into his chest cavity, causing severe abdominal pain, nausea, vomiting, inability to eat and significant weight loss. His medical bills totaled over $566, 274.00 and he continued to be in pain two years following his diagnosis and his numerous surgical procedures. His treating physicians, Drs. Pettiford and Satti, testified that Mr. Romano's survival probability for five years beyond diagnosis was between 10-20%. Dr. Satti believed that reoccurrence was probable in an inoperative location, and that Mr. Romano's future would be filled with prolonged palliative chemotherapy and a very painful and uncomfortable death from mesothelioma. Mr. Romano would experience considerable fatigue, decrease in appetite, weakness and shortness of breath due to accumulating fluid in the lungs. Dr. Satti also testified that Mr. Romano was very stressed when he was diagnosed and that he lives a life of anxiety as he anticipates a reoccurrence of mesothelioma.

         On March 22, 2016, the jury returned a verdict in favor of plaintiffs and against the defendants. Included in the jury verdict were awards of $566, 274.00 in stipulated past medical expenses; $150, 000.00 in future medical expenses; $250, 000.00 for loss of enjoyment of life, past and future; and $250, 000.00 for general damages, including past and future physical pain and suffering, past and future mental anguish, and past and future disability. The trial court entered judgment on April 18, 2016, in accord with the jury verdict. After the jury's verdict was entered, the plaintiffs filed their motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative motion for partial new trial on damages only, arguing that these awards were grossly inconsistent with the evidence adduced at trial and quantum in similar cases. On May 26, 2016, the trial court denied this motion. The trial court also denied Union Carbide's request for a verdict reduction for Johns-Manville's fault. On June 3, 2016, the plaintiffs filed a motion and order for devolutive appeal, which the trial court signed on June 6, 2016. Union carbide filed a petition and order for suspensive appeal, which the trial court signed on June 29, 2016.

         DISCUSSION

         On appeal, Union Carbide raises the following assignments of error: 1) the trial court erred in not reducing the jury verdict by one-half for the fault of Johns-Manville because it is treated as a settled party under Louisiana law and under the provisions of its settlement trust; and 2) the trial court erred in allowing plaintiffs' only medical causation expert to testify regarding unsupported hypothetical and then erred in not granting a directed verdict due to the absence of any testimony to support a causation finding. Alternatively, the jury's verdict finding Union Carbide at fault should be reversed because plaintiffs' only medical causation expert's opinion was solely based on unfounded hypothetical questions which carry no weight. The Romanos also raise two assignments of error on appeal: 1) the jury abused its discretion when it awarded general damages to plaintiffs in the amount of $250, 000.00 for Frank Romano's past, present and future pain and suffering and an additional $250, 000.00 for Frank Romano's past, present and future loss of enjoyment of life; and 2) the district court abused its discretion when it denied plaintiffs' motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative, motion for partial new trial on damages only because the jury's award was grossly below other mesothelioma verdicts in this state.

         We will first address the assignments of error raised by Union Carbide. In its first assignment of error, Union Carbide contends that the trial court erred in denying its motion in limine and not reducing by one-half for the fault of Johns-Manville because it is treated as a settled party under Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46[2] and the terms of its settlement trust. The trial court found that Union Carbide was not ...


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