FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-05392,
DIVISION "C" Honorable Sidney H. Cates, Judge
H. Didriksen, III Erin Bruce Saucier Jeremy J. Pichon
DIDRIKSEN SAUCIER WOODS & PICHON, PLC, Tony M. Clayton
ATTORNEY AT LAW COUNSEL FOR PLAINTIFFS/APPELLANTS
Lawrence G. Pugh, III Donna M. Young PUGH ACCARDO HAAS
RADECKER & CAREY, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Roland L.
Belsome, Judge Paula A. Brown
L. BELSOME JUDGE
appeal is taken from the verdict rendered by the jury in
which the defendant was found free of fault for the injuries
sustained by the plaintiffs. For the following reasons, the
jury verdict is affirmed.
and Procedural History
Handy, Jr. died of lung cancer at the age of 79. Prior to his
death, he, his wife Sandra Handy, and his son Thomas Handy,
III (collectively referred to as "the plaintiffs")
filed suit against multiple defendants. The plaintiffs'
allegations maintained that Mr. Handy's exposure to
asbestos-containing products during his many years of
employment was the cause of his lung cancer.
time of trial, Ferguson Enterprises, Inc. was the only
remaining defendant. The allegations against Ferguson
Enterprises, Inc. were that it was the successor corporation
of Louisiana Utility Supply Co. (hereafter referred to as
"Ferguson/LUSCO"). It was further alleged, that
Ferguson/LUSCO supplied and/or distributed
asbestos-containing cement pipe to Mr. Handy's employer,
C. J. Calamia Construction. Additionally, it was alleged that
Mr. Handy was exposed to asbestos that was airborne due to
the cutting of that asbestos-containing cement pipe.
matter was tried before a jury. After trial, the jury
returned a verdict that found: 1) Mr. Handy's exposure to
asbestos-containing products were a substantial contributing
factor in causing his lung cancer; 2) That Ferguson
Enterprises Inc. was a successor to Louisiana Utilities
Supply Co. ("LUSCO"); and 3) the products supplied
and/or distributed by LUSCO were not a substantial
contributing factor in causing Mr. Handy's lung cancer.
Subsequent to the verdict, the plaintiffs filed a motion for
new trial which was denied. This appeal followed.
plaintiffs claim that the jury's verdict in
defendant's favor was contrary to the law and evidence.
Next, the plaintiffs contend that the trial court erred in
charging the jury with incorrect law and in failing to give
additional instructions to the jury when asked. Also raised
on appeal, is the trial court's denial of the motion for
appeal, the plaintiffs maintain that the jury's verdict
was contrary to the law and evidence presented at trial. The
long-standing jurisprudence on appellate review of jury
verdicts is that a court of appeal may not set aside the
jury's finding unless it is clearly wrong or manifestly
erroneous. So, the issue to be resolved by a
reviewing court is not whether the trier of fact was right or
wrong, but whether the factfinder's conclusion was a
reasonable one. Even if an appellate court considers its
own evaluations and inferences to be more reasonable than the
factfinder's, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review where conflict exists in the testimony. Therefore, if the
record reveals a reasonable basis for the jury's
determinations, the verdict must stand.
successful in this case, the plaintiffs had to prove that Mr.
Handy "had significant exposure to the product
complained of to the extent that it was a substantial factor
in bringing about his injury."  Here, the plaintiffs'
allegations against Ferguson/LUSCO arise out of claims that
the company sold asbestos-containing cement pipe to Mr.
Handy's employer. Thus, the plaintiffs had to prove that
the specific cement pipe supplied and/or distributed by
Ferguson/LUSCO was a substantial contributing factor in
causing Mr. Handy's lung cancer.
though Ferguson/LUSCO argued that Mr. Handy's lung cancer
was caused by smoking three packs of cigarettes a day for
decades, the jury found that Mr. Handy's exposure to
asbestos-containing products was a substantial contributing
factor in causing his lung cancer. However, the jury also found
that the cement pipe sold by Ferguson/LUSCO was not a
substantial contributing factor and Ferguson/LUSCO bore no
fault in Mr. Handy contracting lung cancer. As stated above,
our inquiry is whether the jury was reasonable in that
finding given the entirety of the record.
Mr. Handy's employment with Calamia Construction he cut
asbestos-containing cement pipe. At trial, the jury heard
conflicting testimony regarding the supplier of that pipe.
Some testimony indicated that Calamia Construction used
CIMSCO, Inc. as its primary supplier of cement
pipe. This was confirmed by the testimony of a
CIMSCO sales representative. That witness recalled Mr. Handy
cutting cement pipe on CIMSCO's premises. In a search for
documentation to prove that Ferguson/LUSCO was also a
consistent supplier of the cement pipe for Calamia
Construction, only one document was found that linked
Ferguson/LUSCO to a delivery for Calamia
Construction. The document was an invoice indicating
that on one occasion Johns Manville Corporation, the cement
pipe manufacturer, shipped pipe directly to Calamia
Construction on behalf of Ferguson/LUSCO. The parties also
presented competing expert evidence regarding the level of
asbestos exposure that is necessary to increase the risk of
contracting lung cancer.
case was highly contested and the jury was presented with
contradictory testimony and evidence. As the factfinder, the
jury can accept or reject, in whole or in part, any
witness's testimony including expert
witnesses.Even though this record contains evidence
that could lead a reasonable person to find differently, this
court cannot substitute its view of the evidence for that of
the jury. Where there are two permissible views of the
evidence, the jury's choice between the two cannot be
manifestly erroneous or clearly wrong.  Thus, given
the parameters under which we review a jury's verdict and
the record in the instant case, this Court cannot find that
the jury's determinations were so unreasonable that they
were manifestly erroneous or clearly wrong.
plaintiffs assign as error the trial court's refusal to
give certain requested instructions to the jury. Also, the
plaintiffs contend that the trial court incorrectly charged
the jury on the issue of causation and further erred by not
answering a question posed by the jury. Ferguson/LUSCO
contends that the plaintiffs are precluded from raising any
issues concerning the jury ...