Elray and Brenda Lege v. Union Carbide Corporation

ELRAY AND BRENDA LEGE * NO. 2020-CA-0252

VERSUS *
COURT OF APPEAL
UNION CARBIDE *
CORPORATION FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-05598, DIVISION “A”
Honorable Ellen M. Hazeur, Judge
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Judge Dale N. Atkins
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(Court composed of Judge Regina Bartholomew-Woods, Judge Paula A. Brown,
Judge Dale N. Atkins)

ON APPLICATION FOR REHEARING

Lewis O. Unglesby
Lance C. Unglesby
Jordan L. Bollinger
Jamie F. Gontarek
Christopher J. Murrell
UNGLESBY LAW FIRM
246 Napoleon Street
Baton Rouge, LA 70802

Jeffrey T. Gaughan
Wells T. Watson
BAGGETT MCCALL BURGESS WATSON & GAUGHAN
3006 Country Club Road
Lake Charles, LA 70605

COUNSEL FOR PLAINTIFFS/APPELLEES

Brian P. Marcelle
Darryl J. Foster
L. David Adams
David E. Redmann, Jr.
BRADLEY MURCHISON KELLY & SHEA LLC
1100 Poydras Street, Suite 2700
New Orleans, LA 70163

Michael S. French (pro hac vice)
Tiffany N. Watkins (pro hac vice)
WARGO & FRENCH, LLP
999 Peachtree Street, NE, 26th Floor
Atlanta, GA 30309

H. Alston Johnson, III
Kevin W. Welsh
PHELPS DUNBAR LLP
400 Convention Street
II City Plaza, Suite 1100
P. O. Box 4412
Baton Rouge, LA 70821-4412

COUNSEL FOR DEFENDANT/APPELLANT

APPLICATION FOR REHEARING GRANTED FOR CLARIFICATION;
ORIGINAL OPINION AFFIRMED AS CLARIFIED
MAY 12, 2021

DNA
PAB In this mesothelioma and wrongful death action, on April 1, 2021, this
RBW
Court amended, and affirmed as amended, the trial court’s November 5, 2019

judgment, which found Appellant, Birla Carbon USA, Inc. (“Birla”), fifty-one

percent at fault for the death of Appellee, Elray Lege, from mesothelioma, and

which awarded survival and wrongful death damages to Mr. Lege and his

surviving wife and children. On April 14, 2021, Birla timely filed an application

for rehearing, contending that this Court should reconsider two aspects of our

Opinion: (1) the conclusion that Birla is not entitled to a reduction in the survival

action award for the virile share of Orleans Parish defendant Taylor-Seidenbach,

with whom the Leges settled prior to trial; and (2) the decision to affirm the trial

court’s $4 million survival damage award to Mr. Lege in light of this Court’s

recent decision in Bagwell v. Union Carbide Corp., 2019-0414, 2020 WL 5651699

(La. App. 4 Cir. 9/23/20), writ granted, judgment rev’d, 2020-01242 (La. 1/12/21),

308 So.3d 289. We grant rehearing for the purposes of clarifying this Court’s April

1, 2021 Opinion on these two issues.

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Virile Share Assignment for Taylor-Seidenbach

In our original Opinion, we found that, although the trial court’s pre-trial

judgment denying Birla’s declinatory exception of improper venue was res

judicata, Birla still had the burden of proving Taylor-Seidenbach’s fault in order to

have the survival damage award reduced for Taylor-Seidenbach’s virile share. We

noted that Birla produced no evidence that Taylor-Seidenbach’s asbestos-

containing products were a substantial factor in causing Mr. Lege’s mesothelioma.

Thus, we reasoned that Birla had failed to meet its burden, and the trial court did

not err in refusing to assign Taylor-Seidenbach a virile share of the damage award.

We based our decision on the comparative fault principles, which provide that the

virile share of the liability of a co-obligor is proportionate to the percentage of fault

the trial court determined should be allocated to the obligor, based on the evidence

presented at trial.

In its application for rehearing, Birla contends this decision was in error, as

comparative fault is inapplicable to this case. Rather, because Mr. Lege’s exposure

to asbestos occurred in the late 1970’s, prior to when comparative fault law came

into effect in Louisiana in 1980, pre-comparative fault or virile share principles

apply here. Birla cites the Louisiana Supreme Court’s decision in Cole v. Celotex

Corp., 599 So.2d 1058 (La. 1992).

At the outset, we first note that Birla’s arguments on its entitlement to have

Taylor-Seidenbach’s virile share counted, both before the trial court and this Court,

centered not on the applicability of virile share principles, but on its arguments that

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the trial court’s judgment on Birla’s declinatory exception of improper venue was

res judicata. Birla’s arguments regarding virile share principles were not raised

until its application for rehearing.

“It is well settled that appellate courts will not consider issues raised for the

first time, which are not pleaded in the court below and which the district court has

not addressed.” Chaumont v. City of New Orleans, 2020-0017, p. 4 (La. App. 4

Cir. 6/3/20), 302 So.3d 39, 45-46 (citing Council of City of New Orleans v.

Washington, 2009-1067, pp. 3-4 (La. 5/29/09), 9 So.3d 854, 856). Additionally,

appellate courts “generally do not grant rehearings to consider issues raised for the

first time in the application for rehearing.” Rodrigue v. LeGros, 563 So.2d 248,

257 (La. 1990) (citing Rayner v. Rayner, 216 La. 1099, 45 So.2d 637 (1950); State

ex rel. Murtagh v. Department of City Civil Serv., 215 La. 1007, 42 So.2d 65

(1949)).

Nevertheless, we also note that Birla is correct: pre-comparative fault law is

applicable to Mr. Lege’s survival action. See Cole, 599 So.2d at 1068 (“[W]e find

that substantial injury producing exposures giving rise to plaintiffs’ claims

occurred before the August 1, 1980, effective date of [the law on comparative

fault], and, therefore, affirm the Third Circuit’s holding that the provisions of the

Louisiana Comparative Fault Law are inapplicable and that this case is governed

by pre-Act law—contributory negligence and virile share principles.”).

Despite the applicability of pre-comparative fault law and virile share

principles, our decision is the same. The trial court’s judgment on Birla’s exception

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of improper venue was not a finding that Taylor-Seidenbach was at fault; rather it

was a judgment that venue remained proper in Orleans Parish. The judgment did

not relieve Birla of the burden of proving Taylor-Seidebach’s fault. Thus, in order

to claim a credit for the virile share of Taylor-Seidenbach, Birla had the burden of

proving Taylor-Seidenbach’s fault. See, e.g., Williams v. Placid Oil Co., 2016-839,

p. 12 (La. App. 3 Cir. 8/2/17), 224 So.3d 1101, 1108 (where the appellate court

affirmed the trial court’s ruling that virile share principles were applicable to the

plaintiff’s survival action, but that the non-settling defendant at trial was not

entitled to a virile share offset or credit for the alleged liability of other parties

where the non-settling defendant failed to provide any evidence of the other

parties’ fault); Raley v. Carter, 412 So.2d 1045, 1046 (La.1982) (“[T]he

negligence of parties released from the suit remains an issue in the trial because the

remaining tortfeasor is only entitled to a reduction of the award if the parties

released are proven to be joint tortfeasors.”).

Further, Birla pleaded to the trial court that it bore the burden of proving

Taylor-Seidenbach’s fault. Indeed, the record reflects that, in its own pre-trial

motion in limine filed on September 10, 2019, after stating that virile share

principles were applicable to this case, Birla admitted that it had a duty to establish

the fault of the released and/or settled entities at trial in order to claim credits for

the shares of the settling tortfeasors. As we noted in our original Opinion, Taylor-

Seidenbach is hardly mentioned in the trial record at all. Birla failed to meet its

burden to establish Taylor-Seidenbach’s fault in order to claim a credit for its virile

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share. Thus, we clarify our Opinion to state that virile shares principles apply here,

but that Birla is not entitled to a credit for Taylor-Seidenbach’s virile share.

Survival Damage Award

Birla also contends that this Court’s affirmation of the survival damage

award to Mr. Lege ignores this Court’s recent decision in Bagwell, arguing that the

plaintiff in Bagwell had a longer period of suffering than Mr. Lege and yet Mr.

Lege’s award was higher than the plaintiff in Bagwell. Birla contends that Bagwell

establishes that Mr. Lege’s survival damage award is excessive.

In its arguments to this Court on appeal, Birla cited this Court’s rehearing

Opinion in Bagwell on rehearing in support of its arguments regarding the jury

instructions, but Birla did not cite Bagwell for its arguments that the survival

damage award to Mr. Lege is excessive. Nevertheless, we discuss the issue because

the Louisiana Supreme Court’s reinstatement of this Court’s original Opinion in

Bagwell was not decided until the parties’ briefing and arguments herein had

concluded.

In Bagwell, this Court found the trial court’s $750,000 survival award to the

plaintiff was an abuse of discretion as it was “so out of proportion to the injury that

it shocks the conscience.” Antippas v. Nola Hotel Grp., LLC, 2017-0798, p. 16 (La.

App. 4 Cir. 2/27/19), 265 So.3d 1212, 1222-23 (quoting Lee v. Lu, 2005-899, p. 9

(La. App. 5 Cir. 4/11/06), 931 So.2d 365, 371). After reviewing prior awards from

this Court for similar claims, this Court raised the plaintiff’s damages to the lowest

reasonable amount to $1,450,000.

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Birla’s arguments regarding the survival damage award here are misplaced.

Birla seems to argue that Bagwell stands for the proposition that the ceiling of an

award for the suffering of a plaintiff like the one in Bagwell is between $1,450,000

and $1,800,000. On the contrary, Bagwell clarified that an appellate court is bound

to award the lowest reasonable amount (i.e. the floor) to the plaintiff when raising

the award, and that, under the facts presented in Bagwell, the lowest reasonable

award was $1,450,000.

As we did not find that Mr. Lege’s survival action award was an abuse of

discretion here, and we were not tasked with raising the award here as a result—

which we did in Bagwell—we find Bagwell to be inapposite to the survival damage

award here.

APPLICATION FOR REHEARING GRANTED FOR CLARIFICATION;
ORIGINAL OPINION AFFIRMED AS CLARIFIED

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