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Craft v. Ports America Gulfport, Inc.

Court of Appeals of Louisiana, Fourth Circuit

May 8, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-06069, DIVISION "I-14" Honorable Piper D. Griffin, Judge.

          Christopher C. Colley David Cannella Jeremiah S. Boling BARON & BUDD, P.C. COUNSEL FOR PLAINTIFF/APPELLANT

          Kevin J. LaVie Robert John Barbier Meredith W. Blanque PHELPS DUNBAR LLP Gus David Oppermann, V Charles Douglas Wheat WHEAT OPPERMANN PLLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins.

          Regina Bartholomew-Woods Judge.

         Jerry Craft ("Mr. Craft"), appeals the jury's award of $1, 600, 000.00 in general damages and the judgment notwithstanding the verdict ("JNOV") granted by the trial court in favor of Crowley Marine Services, Inc.'s (formerly known as Delta Steamship Lines, Inc.) and James J. Flanagan Shipping Corporation's (formerly known as New Orleans Stevedore), collectively hereinafter referred to as "Appellees", which struck the jury's award of $1, 000, 000.00 in future medical expenses. Appellees also appeal the trial court's judgment denying its JNOV motion as to the jury's finding of negligence. For the reasons that follow, we affirm, in part, and reverse, in part, the judgment rendered by the trial court.


         On May 26, 2017, at eighty-two (82) years old, Mr. Craft was diagnosed with malignant mesothelioma, a rare cancer caused by exposure to asbestos. Mr. Craft filed the instant personal injury lawsuit against his former employers asserting that he contracted the disease while working as a longshoreman on the New Orleans Riverfront from 1953 until his retirement in 1989. As a longshoreman[1], Mr. Craft worked for several stevedore companies, including Appellees. The record reflects that some of the stevedore companies from which Mr. Craft worked settled out of court, were dismissed from the litigation, or did not appear in the litigation. Appellees, however, pursued litigation and the matter was tried before a jury.

         At trial, Mr. Craft sought to prove that he was exposed to asbestos-containing products while employed by Appellees and that such exposure was the legal cause for his development of mesothelioma. Mr. Craft, Mrs. Clemmie Craft ("Mr. Craft's wife"), and Ms. Jermaine Craft ("Mr. Craft's daughter") testified at trial as to the severity of Mr. Craft's mesothelioma. Also, videotaped depositions of Mr. Kenneth Morris ("Mr. Morris"), Mr. Moses Powell ("Mr. Powell"), Mr. Clarence Wren ("Mr. Wren"), Mr. Larry Dillon ("Mr. Dillon"), and Mr. Monroe Wayne May ("Mr. May"), (collectively hereinafter referred to as "Co-workers"), were presented at trial. These men testified that they were longshoreman during Mr. Craft's tenure. Additionally, expert witnesses, Dr. Emily Cassidy ("Dr. Cassidy"), Dr. Eugene Mark ("Dr. Mark"), Dr. Willaim E. Longo ("Dr. Longo"), and Professor Gerald Markowitz ("Professor Markowitz"), a historian, testified at trial. Lastly, Tom Flanagan ("Mr. Flanagan"), the president of James Flanagan Shipping Company, also testified.

         At the conclusion of the trial, the jury was given a special verdict form, which was composed of eight (8) interrogatories related to Appellees' liability. In summary, the jury found, by a preponderance of evidence, that Mr. Craft was exposed to asbestos while employed by Appellees, that this exposure was a substantial contributing factor to Mr. Craft's development of mesothelioma, and that Appellees were negligent by not providing safeguards against such exposure during Mr. Craft's employment. The jury also awarded Mr. Craft the following: $1, 000, 000.00 for past & future physical pain and suffering; $250, 000.00 for past & future medical pain and suffering; $250, 000 for past & future physical disability; $100, 000.00 for past & future loss of enjoyment of life; $360, 000.00 for past medical expenses; and $1, 000, 000.00 for future medical expenses. The jury's award totaled $2, 960, 000.00. After considering the jury's verdict, the trial court rendered its judgment in favor of Mr. Craft. After a reduction for settled parties totaling $1, 973, 333.32, the trial court awarded Mr. Craft $986, 666.68 plus judicial interest from the date of filing of the initial petition until the amount is paid by the Appellees.

         Appellees, in response to this judgment, filed two JNOV motions. The trial court denied Appellees' JNOV motion as to the jury's negligence finding, but granted the Appellees' JNOV motion as to the jury's award for future medical expenses in the amount of $1, 000, 000.00. It is from this judgment that Appellees and Mr. Craft appeal.


         General Damages

         Mr. Craft asserts the jury abused its discretion in awarding him only $1, 600.000.00 in general damages. We disagree.

         There is no question that the abuse of discretion standard of review applies when an appellate court examines a factfinder's award of general damages. Gaunt v. Progressive Security Insurance Company, 2011-1094, p. 30 (La.App. 4 Cir. 6/8/12), 92 So.3d 1250, 1270 (citing Wainwright v. Fontenot, 2000-0492, p.6 (La. 10/17/00), 774 So.2d 70, 74). In Gaunt, this Court, relying on the Louisiana Supreme Court, stated:

The assessment of "quantum," or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, "the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). Moreover, before a Court of Appeal can disturb an award made by a [factfinder, ] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. (Emphasis added.)

Id. (citing Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La. 1977)).

         General damages are those which may not be fixed with pecuniary exactitude; instead, they "involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms." Duncan v. Kansas City So. Ry. Co., 00-0066, p. 13 (La. 10/30/00), 773 So.2d 670, 682 (quoting Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993)). Vast discretion is accorded the trier of fact in fixing general damage awards. Id. (citing La. C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13 (La.App. 1 Cir. 11/8/96); 685 So.2d 163, 172).

         In the case presently, Mr. Craft argues the jury's award is grossly inadequate to compensate him for his pain and suffering and loss of enjoyment of life since his diagnosis. Mr. Craft testified that he enjoyed traveling with his wife, singing in the church choir, and performing lawn work at his home, activities he argues he can no longer enjoy because of mesothelioma. Mr. Craft's wife and Mr. Craft's daughter similarly testified that this disease has significantly impacted his enjoyment of life. Mr. Craft also testified that he has undergone invasive surgeries and other painful procedures to fight this disease.

         While we acknowledge Mr. Craft has substantially suffered since his diagnosis, we do not find the jury abused its discretion. The jury awarded Mr. Craft $1, 600, 000.00 in general damages, which included $1, 000, 000.00 in past and future physical pain and suffering; $250, 000.00 in past and future mental pain and suffering; $250, 000.00 in past and future physical disability; $100, 000.00 in past and future loss of enjoyment of life; and $360, 000.00 in past medical expenses. The record indicates that Mr. Craft's medical bills at the time of trial totaled about $360, 000.00. The record also supports that Mr. Craft has undergone several procedures and has continually received chemotherapy treatments since his diagnosis. In Louisiana, it is a well-established rule that, "[b]efore a Court of Appeal can disturb an award made by a [fact finder], the record must clearly reveal that the trier of fact abused its discretion in making its award. Scarberry v. Entergy Corp., 2013-0214, p. 30 (La.App. 4 Cir. 2/19/14), 136 So.3d 194, 213-14. The jury, as the fact finder in this matter, allocated amounts it deemed appropriate for damages. (See Rando, v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So.3d 1065; Egan v. Kaiser Aluminum & Chemical Corp., 1994-1939 (La.App. 4 cir. 5/22/96), 677 So.2d 1027).

         Thus, we do not find that the jury abused its discretion when it awarded Mr. Craft $1, 6000, 000.00 in general damages and decline to disturb the jury's award.


         Appellees and Mr. Craft respectively contest the trial court's judgments on the JNOV motions filed by Appellees in this matter. Appellees argue that the trial court erred in denying its JNOV motion as it relates to the jury's negligence finding. Mr. Craft argues that the trial court improperly granted ...

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