Jill Stauder and Shelly Stauder, Individually and on Behalf of the David Stauder, Jr. v. Shell Oil Company, Avondale Shipyards, Inc., Anco Insulations, Inc., Lou-Con, Inc., the McCarty Corporation and Taylor-Seidenbach, Inc.

JILL STAUDER AND * NO. 2022-CA-0593
SHELLEY STAUDER,
INDIVIDUALLY AND ON *
BEHALF OF THE DECEASED, COURT OF APPEAL
DAVID STAUDER, JR. *
FOURTH CIRCUIT
VERSUS *
STATE OF LOUISIANA
SHELL OIL COMPANY, *******
AVONDALE SHIPYARDS,
INC., ANCO INSULATIONS,
INC., LOU-CON, INC., THE
MCCARTY CORPORATION
AND TAYLOR-SEIDENBACH,
INC.

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-02190, DIVISION “F-14”
Honorable Jennifer M Medley,
******
Judge Rachael D. Johnson
******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge
Rachael D. Johnson)

ATKINS, J., CONCURS AND ASSIGNS REASONS.

Calvin Clifford Fayard, Jr.
D. Blayne Honeycutt
FAYARD ATTORNEY AT LAW
519 Florida Avenue Southwest
Denham Springs, LA 70726

Lewis Owens Unglesby
Lance C. Unglesby
Jamie F. Gontarek
Adrian M. Simm, Jr.
UNGLESBY LAW FIRM
246 Napoleon Street
Baton Rouge, LA 70802

Lindsey A. Cheek
THE CHEEK LAW FIRM
650 Poydras Street
Suite 2310
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

McGready Lewis Richeson
Ernest George Foundas
Milele N. St. Julien
David M. Stein
Francis Xavier deBlanc, III
PUGH ACCARDO HAAS RADECKER & CAREY, LLC
1100 Poydras Street, Suite 3300
New Orleans, LA 70163

Kelly B. Becker
Erin E. Bambrick
Trinity A. Morale
LISKOW & LEWIS
701 Poydras Street, Suite 5000
New Orleans, LA 70139-5099

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
February 15, 2023

RDJ
TFL

In this mesothelioma case, the Appellant, Union Carbide Corporation

(”UCC”), seeks review of the April 14, 2022 district court judgment, awarding the

Appellees, sisters Jill and Shelley Stauder (“the Stauders”), each $2,750,000 in

wrongful death damages for the death of their father, David Stauder, Jr. UCC

additionally seeks review of the district court’s award of judicial interest to the

Stauders against UCC relating back to the date the Stauders’ original petition was

filed.

Based upon our review of the facts and applicable law, we affirm the

wrongful death awards and the award of pre-judgment interest against UCC.

Facts and Procedural History

Mr. Stauder was a pipefitter, who worked for several employers at various

locations, spanning from the 1960s to the 1980s. Throughout his career, Mr.

Stauder worked with numerous asbestos products. In his seventies, Mr. Stauder

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was diagnosed with mesothelioma and within two months of his diagnosis, he

passed away on April 30, 2015. The Stauders are his two surviving children.

In 2016, the Stauders brought suit for a survival action and wrongful death

damages against their father’s past employers, Shell Oil Co. and Avondale

Shipyards, Inc., as well as four asbestos manufacturers: Anco Insolations, Inc.,

Lou-con, Inc., the McCarty Corporation and Taylor Seidenbach, Inc. The Stauders

alleged their father was exposed to asbestos and asbestos containing materials

during his employment that began in the 1960s, resulting in him contracting and

dying from mesothelioma. Subsequently, in their Sixth Supplemental and

Amending Petition, filed in July of 2018, the Stauders named UCC as a defendant,

alleging their father was exposed to asbestos while working at one of UCC’s

Louisiana facilities.

A multi-day trial was held in December 2021. At that time, UCC was the

sole remaining defendant. The jury rendered its verdict on December 17, 2021,

finding that seven defendants, including UCC, were negligent and strictly liable for

causing Mr. Stauder to contract mesothelioma. The jury assigned 20% fault to

UCC. The jury awarded survival damages in the amount of $4,851,034.31. The

Stauders were each awarded $2,751,793 in wrongful death damages. The district

court rendered judgment on April 14, 2022, in conformity with the jury verdict.

The district court further awarded the Stauders judicial interest against UCC from

the date the original petition was filed in 2016, and set forth that UCC is

responsible for paying the Stauders $693,004.90 of the survival damages. UCC’s

post-judgment motions, including its motion for new trial on judicial interest and

its “motion for new trial or in the alternative JNOV or in the alternative remittitur

exhibits,” were denied.

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This timely appeal followed. UCC raises three assignments of error: 1.) the

jury manifestly erred in awarding $2.75 million in wrongful death damages to each

of the Stauders; 2.) the district court legally erred in denying UCC’s Motion for

New Trial, or, in the Alternative, JNOV, or, in the Alternative, Remittitur as to

quantum; and 3.) the district court legally erred in allowing judicial interest to

relate back to the date that the lawsuit was filed when UCC was not added as a

defendant until two years later and where the record does not establish that Mr.

Stauder’s injuries were caused by a “single tortious occurrence.”

Wrongful Death Damages

UCC avers that the jury erred in awarding each of the Stauders $2.75 million

in wrongful death damages, which it alleges far exceeds any jurisprudential award

for damages to adult children in this Circuit. UCC asserts that only generalized

testimony was offered in support of the Stauders’ claims and this is deficient to

support the large award of the jury. Thus, UCC maintains the district court erred in

issuing its judgment in accordance with this extreme verdict, and subsequently

erred in failing to grant UCC’s motion for new trial, JNOV, or in the alternative,

remittitur as to quantum. The jury’s award to the Stauders, UCC argues, is wholly

inconsistent with the record and grossly excessive. Moreover, UCC further

contends that the jury erred in awarding the Stauders the same amount in wrongful

death damages because the testimony adduced at trial did not reflect that the sisters

were equally impacted.

“Damages for wrongful death are intended to compensate the victim's

beneficiaries for their loss, following the victim's death.” Turner v. Lyons, 03-

0186, p. 11 (La. App. 4 Cir. 1/28/04), 867 So.2d 13, 21; La. Civ. Code art. 2324.1.

“Elements of damages for wrongful death include loss of love and affection, loss

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of services, loss of support, medical expenses and funeral expenses.” Id., 03-0186,

pp. 11-12, 867 So.2d at 21. The plaintiff has the burden of proving definite loss.

Id., 03-0186, p. 13, 867 So.2d at 22 (citing Quinn v. Wal–Mart Stores, Inc., 34,280

(La.App. 2 Cir. 12/6/00), 774 So.2d 1093).

The determination of the amount of damages is factual determination for the

jury and is “entitled to great deference on review.” Norfleet v. Lifeguard Transp.

Serv., Inc., 05-0501, p. 10 (La.App. 4 Cir. 5/17/06), 934 So.2d 846, 855 (quoting

La. Civ. Code art. 2324.1). [Internal citations omitted]. The discretion vested in

the trier of fact is “great,” and even vast, so that an appellate court should rarely

disturb an award of general damages. Youn v. Mar. Overseas Corp., 623 So.2d

1257, 1261 (La. 1993).

Moreover, “[r]easonable persons frequently disagree about the measure of

general damages in a particular case.” Id. “It is only when the award is, in either

direction, beyond that which a reasonable trier of fact could assess for the effects

of the particular injury to the particular plaintiff under the particular circumstances

that the appellate court should increase or reduce the award.” Id. “Each case is

different, and the adequacy or inadequacy of the award should be determined by

the facts or circumstances particular to the case under consideration.” Id., 623

So.2d at 1260; see also Turner, 03-0186, p. 11, 867 So.2d at 21-22 (citing Coco v.

Winston Industries, Incorporated, 341 So.2d 332 (La.1977)).

In Dixon v. Travelers Ins. Co., 02-1364, pp. 14-15 (La.App. 4 Cir. 4/2/03),

842 So.2d 478, this Court further explained Youn’s holding that it is only after a

determination has been made that the trier of fact abused its discretion that it

becomes appropriate for the appellate court to review the an award of damages in

comparison with prior awards:

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In Youn, the Supreme Court reiterated its
disapproval of an appellate court “simply reviewing the
medical evidence and then concluding that the award for
those injuries was excessive, without taking into
consideration the particular effect of the particular
injuries on the particular plaintiff” and also reiterated its
disapproval of “the use of a scale of prior awards in cases
with generically similar medical injuries to determine
whether the particular trier of fact abused its discretion in
the awards to the particular plaintiff under the facts and
circumstances peculiar to the particular case.” Id. Indeed
the settled jurisprudential rule is that resort to prior
awards is only appropriate after an appellate court has
concluded that an “abuse of discretion” has
occurred. Cone, 99-0934 at p. 8, 747 So.2d at 1089.1

In determining whether an “abuse of discretion”
has occurred, the Youn court notes that “[e]ach case is
different, and the adequacy or inadequacy of the award
should be determined by the facts or circumstances
particular to the case under consideration.” Id. Our
inquiry therefore is a narrow one: whether the particular
effects of the particular injuries on the particular plaintiff
are such that there has been an abuse of the much
discretion vested in the trier of fact. Youn, 623 So.2d at
1260-61.

Dixon, 02-1364, pp. 14-15, 842 So.2d at 487-88.

UCC principally relies on Lege v. Union Carbide Corporation, 20-252

(La.App. 4 Cir. 4/1/21), 2021 WL 1227137, as clarified on reh'g, 20-252 (La.App.

4 Cir. 5/12/21), 2021 WL 1917784,2 in support of its argument that the Stauders’

wrongful death awards are too high, particularly for Shelley because she did not

testify.

In Lege, a plant owner in a mesothelioma wrongful death and survival

action, sought review of the district court’s judgment finding it primarily at fault

for the plaintiff’s death. Id., 20-252, p. 1, 2021 WL 1227137, p. 1. Additionally,

the plant owner sought review of the district court’s award of damages to the

1 Cone v. National Emergency Services, Inc., 99-0934 (La.10/29/99), 747 So.2d 1085.
2 We note Lege, while published, is not a final opinion and is subject to revision or withdrawal.

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plaintiff for pain and suffering and wrongful death damages to his wife as well as

his four children, who were awarded $500,000 each. Id. The plant owner asserted

the $500,000 wrongful death awards were excessive because only two of plaintiff’s

four children testified and there was a lack of evidence to support the plaintiff’s

relationship to the non-testifying children. Id., 20-252, pp. 14-15, 2021 WL

1227137, pp. 30-32.

The Court recognized that while the plaintiff was loved by his family, it

noted that it is a “court of record.” Id., 20-252, p. 13, 2021 WL 1227137, p. 27

(citing Turner v. Lyons, 03-0186, p. 14, (La.App. 4 Cir. 1/28/04) 867 So.2d 13,

22). The Court in reviewing Turner’s applicable holdings, noted that “[b]ecause

loss of consortium is a personal loss, each child should be given a chance to

convey the impact the injury or death had on their respective lives.” Id., 20-252, p.

14, 2021 WL 1227137, pp. 30-31 (quoting Turner, 03-0186, p. 17, 867 So.2d at

25).3

The Court affirmed the wrongful death awards for the two children who

testified, finding “their testimony was not general; they each articulated a specific,

personal loss.” Id., 20-252, p. 14, 2021 WL 1227137, p. 30. The Court determined

that there was no abuse of discretion where one of Mr. Lege’s sons “testified that

he lost someone he considered a best friend,” and his daughter “wished Mr. Lege

would have lived longer so she could spend more time with him and testified that

3 A “wrongful death action arises at the death of the victim, and compensates the beneficiaries

for their injuries that occur at the moment of the victim’s death and thereafter,” similarly “a loss
of consortium action arises at the time an injured party’s condition deteriorates to such an extent
that his family is actually deprived of his consortium, service, or society and compensates the
beneficiaries for their injuries at that moment and thereafter.” Landry v. Avondale Indus., Inc.,
03-0719, p. 8 (La. 12/3/03), 864 So. 2d 117, 125 [internal citations omitted]. The two claims are
similar because they compensate “beneficiaries for their own injuries, separate and distinct from
the primary victim’s injuries.” McGee v. A C And S, Inc., 05-1036, p. 14 (La. 7/10/06), 933 So.
2d 770, 780 (citing Landry, 03-0719, p. 10, 864 So.2d at 126).

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she lost someone whom she spent time caring for and with whom she spent time

socializing.” Id.

Nevertheless, the Lege Court rationalized that the awards to the two non-

testifying children were an abuse of discretion. Id., 20-252, pp. 14-15, 2021 WL

1227137, pp. 31-32. The Court reasoned that although the siblings who testified

stated they were also testifying on behalf of their non-testifying siblings to avoid

taking up too much of the jury's time,” they provided only general testimony about

the closeness of the family. Id. The record was devoid of testimony of the

relationship between the plaintiff and the non-testifying children, who were present

in court during the trial. Id.

Having determined that the jury abused its discretion, the Court then

reviewed prior awards to determine the highest point that is reasonably within the

jury's discretion based on the record. See Youn, 623 So.2d at 1260-61. The Court

held that a review of applicable jurisprudence reflected that awards to adult

children for the death of an elderly parent ranges from $12,500 to $150,000. The

award to the non-testifying children was then reduced to $100,000 each. Id., 20-

252, pp. 14-15, 2021 WL 1227137, pp. 31-32.

Considering the standards set forth above, we review this matter under the

unique facts presented. We therefore focus our review on the evidence adduced at

trial pertaining to the relationship of each of the Stauders to their father.

We note that at the beginning of the trial, counsel for the Stauders explained

to the jury that Shelley would not be present at trial because she suffers from a

“mental disability” and that there was a doctor’s report which explained her

absence. The jury was instructed to listen to what witnesses said about Shelley’s

relationship with her father. Both Jill Stauder and Mr. Stauder’s girlfriend, Anna

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Bordelon, testified about the Stauders’ relationship with their father. Ms.

Bordelon’s testimony expounded on Shelley’s relationship with her father, while

Jill principally testified about her personal relationship with her father.

Ms. Bordelon, who was in a twenty-six year relationship with Mr. Stauder,

testified that the Stauders were both extremely close to their father, including prior

to Mr. Stauder’s illness. Shelley, Ms. Bordelon related, lived in a separate house on

the same property with Ms. Bordelon and Mr. Stauder for approximately five to six

years. She further testified that Shelley visited her father daily and would have

dinner with him. Ms. Bordelon further explained that it was Shelley who took her

father to the emergency room the first time he passed out at home because he was

unable to breathe.

Ms. Bordelon further attested to the Stauders being extremely upset when

their father was diagnosed with mesothelioma. She testified that while she took

care of Mr. Stauder, the Stauders also helped take care of him, including caring for

him on the weekends. Ms. Bordelon explained that Shelley was currently still

grieving her father and that she did not believe Shelley’s emotional state would

ever be the same following his passing. She further testified that Jill also took her

father’s death hard. She related that both sisters were “really close to their dad” and

were continuing to have “a very hard time.”

Jill testified that she is a registered nurse and at the time of her father’s

illness and passing she was a traveling nurse. She related that before her father

became sick, they spent time together daily and their relationship morphed into

more of a friendship. They ate Sunday dinner together every weekend and talked

all the time, she explained. According to her testimony, she and her father enjoyed

playing and watching golf games, as well as watching Saints games together.

8

She testified that both she and Shelley lived close to their father and spent a

lot of time with him. She related that her father loved his kids. She further

explained that she and her father had a stronger bond because of the loss of their

brother, who was close to both her and her father.

Jill testified that prior to placing Mr. Stauder in hospice she was taking care

of him with the assistance, at times, from Ms. Bordelon and Shelley. She explained

that she decided to place him in hospice after he fell and broke some of his ribs. He

was in hospice for two weeks before he passed. Jill testified that Shelley was with

their father when he passed.

Following Mr. Stauder’s death, Jill testified that she later met and married a

man from New Zealand, where she eventually relocated. She related being

unhappy at her wedding because of the void she felt from her father’s absence. She

also testified that she daily laments that her two-year old son did not get to meet

her father. It was hard to remain in New Orleans after her brother and father’s

deaths, so she relocated to New Zealand, she explained.

The jury heard testimony about the relationship Mr. Stauder had with each

of his daughters, who were both distraught and adversely impacted by their father’s

illness and death in distinct ways. Although generalized testimony about the

mutual love the Stauders and their father shared, specific testimony was offered

regarding the unique relationship each daughter had with their father.

For Shelley, who visited and dined with her father daily for six years, her

mental health worsened because of her father’s passing. Jill, who visited her father

often and bonded with him over activities after her brother’s death, experiences

guilt because Mr. Stauder missed her wedding and meeting his grandson. The

record reflects that both sisters loved their father and spent copious amounts of

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time with him in good health and in illness. The testimony establishes that each

sister has sustained loss of love and affection from their father, who they each still

grieve. The jury’s verdict evidences they understood Shelley was unable to testify

and believed the testimony made on her behalf. The testimony adduced at trial is

not generalized in nature and the jury’s reliance upon the same was not an abuse of

its vast discretion.

In light of the aforementioned testimony, we find UCC’s reliance on Lege is

misplaced. Lege is factually distinguishable from the matter sub judice. Shelley’s

inability to testify coupled with the detailed testimony, offered on her behalf, of the

bond she shared and lost with her father does not make her comparable to the non-

testifying children in Lege, who were both capable of testifying and present at trial.

Furthermore, the only facts set forth about the non-testifying Lege adult children’s

relationship with their father is that he was loved by his family and the family was

always together. Regarding Jill, she personally testified4 about the bond she shared

with her father, how they had become friends, and that she laments her father was

unable to enjoy the family she now has.

Based upon our review of the testimony and our narrow inquiry into

whether the particular effects of the particular injuries on the Stauders are such that

there has been an abuse of the much discretion vested in the trier of fact, we find

no abuse of discretion in the jurors’ award of $2.75 million to each of the Stauders

for wrongful death damages. The jury perceived that Jill and Shelley had

distinctive relationships with their father, but were equally close to him and were

devastated by his passing in their own way. While the wrongful death awards at

issue are larger than those in Lege, this Court first has to determine the jury abused

4 Jill testified through video from New Zealand.

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its discretion in awarding this amount before comparing the size of the awards. As

discussed above, we find no abuse of discretion. We cannot apply Lege as a litmus

test for setting the amounts of the respective wrongful death awards of the

Stauders, as this belies the Youn Court’s holding that the unique facts of each case

should be considered. This assignment of error is without merit.

We pretermit UCC’s assignment of error pertaining to the district court’s

denial of its motion for new trial, JNOV and remitter because we find the district

court did not err in issuing its judgment in accordance with the award of the jury.

Judicial Interest Award

In its final assignment of error, UCC asserts the district court committed

legal error in ordering that it pay judicial interest from the date the original lawsuit

was filed in March 2, 2016, instead of the date when UCC was added as a

defendant on July 31, 2018. Relying on Burton v. Foret, 498 So.2d 706 (La.1986),

UCC maintains that because the Stauders’ claim against UCC does not arise out of

a “single tortious occurrence” with the six original defendants it should not have to

pay judicial interest dating back to the filing of the Stauders’ original petition.

In Burton, the Supreme Court “held that interest was owed by a solidary

tortfeasor named in an amended petition from the date of the original petition in

the same state court action.” Nat'l Bldg. & Contracting Co. v. Alerion Bank & Tr.

Co., 01-2201, p. 6 (La.App. 4 Cir. 10/30/02), 832 So.2d 341, 344. The Burton

Court explained “[u]nder LSA–R.S. 13:4203, legal interest runs from the date of

11

plaintiff's first judicial claim against all parties responsible for a single tortious

occurrence. LSA–C.C.P. art. 1153.” Burton, 498 So.2d at 712.5

UCC argues that the basis of awarding pre-judgment judicial interest is La.

Code Civ. Proc. art. 1153, which provides “[w]hen the action or defense asserted in

the amended petition or answer arises out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original pleading, the

amendment relates back to the date of filing the original pleading.” UCC further

relies upon Ray vs. Alexandria Mall, Through St. Paul Prop. & Liab. Ins., 434

So.2d 1083, 1086-87 (La. 1983), wherein the Louisiana Supreme Court set forth

four factors to determine whether relation back applies under art. 1153:

1. The amended claim must arise out of the same
transaction or occurrence set forth in the original
pleading;

2. The purported substitute defendant must have
received notice of the institution of the action such
that he will not be prejudiced in maintaining a defense
on the merits;

3. The purported substitute defendant must know or
should have known that but for a mistake concerning
the identity of the proper party defendant, the action
would have been brought against him;

4. The purported substitute defendant must not be a
wholly new or unrelated defendant, since this would
be tantamount to assertion of a new cause of action
which would have otherwise prescribed.

5 “Legal interest shall attach from date of judicial demand, on all judgments,
sounding in damages, “ex delicto”, which may be rendered by any of the courts.”
La. Rev. Stat. 13:4203

12

UCC avers that this Court should apply the Ray factors to the facts of this

matter. We decline to apply the Ray factors to the matter sub judice, where there is

no precedent to do so in matters involving prejudgment interest.

UCC fails to provide any caselaw to support its definition of a “single

tortious occurrence,” and there is a lack of legal authority supporting UCC’s

interpretation that Burton requires both solidary liability and “a single tortious

occurrence”. Furthermore, the Louisiana Supreme Court clarified its Burton

holding in Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992).

In Cole, three former refinery workers, who were exposed to asbestos, filed

suit against several manufacturers of asbestos-containing products as well as the

primary liability insurer of some of the refinery executives. Id., 599 So.2d at 1061.

At trial, the jurors determined that the insurer and manufacturer-defendants were

solidarily liable for plaintiffs' injuries. Id. The “district court rendered judgment

awarding legal interest on the damages from the date of judicial demand.”

Thereafter, the Third Circuit amended the judgment on appeal “to clarify that legal

interest was to run from the date of judicial demand in the present case in state

court.” Id., 599 So.2d at 1081.

In a writ application to the Louisiana Supreme Court, the plaintiffs raised

several issues, including “whether pre-judgment interest should run from the date

plaintiffs filed suit” in state court, as the Third Circuit held, or from the date

plaintiffs first filed suit in federal court. Prior to filing suit in state court, the

plaintiffs each commenced a separate suit in federal court, joining only the

manufacturer-defendants. The insurer was not sued until the plaintiffs filed suit in

state court. Cole, 599 So.2d at 1081.

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While addressing the plaintiffs’ argument that the Third Circuit should have

held that interest relates back to the judicial demands they made in federal court,

the Cole Court clarified the Supreme Court’s holding in Burton means that pre-

judgment interest relates back to the date the plaintiff filed suit against the first

solidary defendant:

. . . Our citation to LSA–C.C.P. Art. 1153 in support of
this conclusion evidences the limited nature of our
holding in Burton, supra. Burton simply stands for the
proposition that when an amended petition is filed to
add another joint tortfeasor, interest against that
tortfeasor runs not from the date of the amendment,
but from the date suit was originally commenced in
state court.

Cole, 599 So.2d at1081-1082. [Emphasis added].

Considering the Supreme Court’s holding in Cole, and the absence of

jurisprudence supporting UCC’s interpretation of a “single tortious occurrence,”

we affirm the ruling of the district court finding no legal error. This assignment of

error is without merit.

DECREE

For the foregoing reasons, the April 14, 2022 judgment of the district court

is affirmed.

AFFIRMED

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