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
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
composed of Judge Roland L. Belsome, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins.
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.
AND PROCEDURAL BACKGROUND
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, 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.
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.
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.
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.
Craft asserts the jury abused its discretion in awarding him
only $1, 600.000.00 in general damages. We disagree.
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)).
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).
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.
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).
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.
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