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Handy v. Owens Corning Corp.

Court of Appeals of Louisiana, Fourth Circuit

December 26, 2018

THOMAS HANDY, JR., SANDRA HANDY AND THOMAS HANDY, III
v.
OWENS CORNING CORPORATION, ET AL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-05392, DIVISION "C" Honorable Sidney H. Cates, Judge

          Caleb 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

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Paula A. Brown

          ROLAND L. BELSOME JUDGE

         This 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.

         Facts and Procedural History

         Thomas 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.

         At the 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.

         This 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.

         Assignments of Error

         The 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 new trial.[1]

         Verdict

         On 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.[2] 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.[3] 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. [4]Therefore, if the record reveals a reasonable basis for the jury's determinations, the verdict must stand.

         To be 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." [5] 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.

         Even 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.[6] 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.

         During 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.[7] 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.[8] 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.[9] The parties also presented competing expert evidence regarding the level of asbestos exposure that is necessary to increase the risk of contracting lung cancer.

         This 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.[10]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. [11] 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.

         Jury Charges

         The 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 ...


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