William S. Walker v. Anco Insulations, Inc.

WILLIAM S. WALKER * NO. 2022-CA-0763

VERSUS * COURT OF APPEAL

ANCO INSULATIONS, INC., * FOURTH CIRCUIT
ET AL.
* STATE OF LOUISIANA

*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-07060, DIVISION “F-14”
Honorable Jennifer M Medley,
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Tiffany Gautier Chase)

David Ryan Cannella
Kristopher L. Thompson
Christopher C. Colley
Benjamin Rumph
BARON & BUDD, P.C.
909 Poydras Street, Suite 2100
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLEE

Madeleine Fischer
Ryan E. Johnson
JONES WALKER LLP
201 St. Charles Avenue
51st Floor
New Orleans, LA 70170-5100

Stephen N. Elliott
Michael R. Denton
BERNARD, CASSISA, ELLIOTT & DAVIS
3838 N. Causeway Blvd.
Suite 3050
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
MAY 03, 2023

TGC
RLB
JCL
Appellant/Defendant Level 3 Holdings, Inc. f/k/a Peter Kiewit & Sons, Co.

(hereinafter “Level 3”) seeks review of the trial court’s July 20, 2022 judgment

entering a jury verdict in favor of Plaintiff, William Walker (hereinafter “Mr.

Walker”). After consideration of the record before this Court and the applicable

law, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

In July 2021, Mr. Walker was diagnosed with malignant mesothelioma. One

month later, Mr. Walker filed a petition for damages against four defendants.1 He

later amended his petition adding approximately thirty defendants.2 Mr. Walker

alleges he contracted mesothelioma as a result of his exposure to asbestos-

containing products during work he performed for various employers at industrial

work sites over the course of his career as a pipefitter and welder. According to the

1 Mr. Walker’s first petition named the following defendants: Anco Insulations, Inc., Barnard

Lyons, Lou-Con, Inc., and Taylor Seidenbach, Inc.
2 Mr. Walker’s petition names two categories of asbestos related defendants: (1) asbestos
manufacturers, miners, contractors, professional vendors, sellers, suppliers, and/or distributors;
and (2) employers, premise owners, and/or executive officers. Level 3 was added under the
second category.

1

petition, Mr. Walker “was exposed to injurious levels … at various commercial

and industrial locations … from approximately 1967 through 1970.”

A seven-day jury trial commenced on May 16, 2022. Mr. Walker’s treating

physician, Dr. Suma Satti (hereinafter “Dr. Satti”) testified by video deposition.

She concluded that Mr. Walker’s mesothelioma was a result of asbestos inhalation.

The jury also heard the testimony of Dr. Brent Staggs (hereinafter “Dr. Staggs”),

who was qualified by the trial court as an expert medical witness. Dr. Staggs also

opined that Mr. Walker’s mesothelioma was a result of asbestos inhalation.

Mr. Walker and his wife, Anna Walker (hereinafter “Mrs. Walker”) testified

at trial and the jury was also presented with the video depositions of several

witnesses.3

At the conclusion of trial, the jury returned a verdict in favor of Mr. Walker

awarding him the following damages:

Past Physical Pain and Suffering: $750,000.00
Future Physical Pain and Suffering: $2,500,000.00
Past Mental Anguish: $2,500,000.00
Future Mental Anguish: $5,000,000.00
Physical Disability: $5,000,000.00
Loss of Enjoyment of Life: $20,000,000.00
Past Medical Expenses: $462,170.02
Future Medical Expenses: $546,000.00
TOTAL: $36,758,170.02

The trial court entered a judgment in accordance with the jury verdict on July 20,

2022. After considering the pleadings, testimony, evidence, and law, the trial court

3 The jury heard the testimony of Russel Riley, Jim Schneider, Dwight Corcoran, Dave Punch,

Terry Whitlock (hereinafter “Mr. Whitlock”), and Ellis Bourque (hereinafter “Mr. Bourque”).

2

assessed Level 3 liable for 11/21 virile shares and entered judgment in the amount

of $19,254,279.23 in favor of Mr. Walker and against Level 3.

Level 3 filed a motion for new trial and in the alternative, motion for

remittitur. The trial court denied the motion on August 31, 2022. Level 3 filed a

second motion for new trial and alternative motion for remittitur on September 12,

2022.4 This suspensive appeal followed. 5

DISCUSSION

Level 3 appeals the July 20, 2022 judgment and asserts the following five

assignments of error: (1) the jury abused its discretion in awarding $35,750,000.00

in general damages; (2) the trial court erred in assigning 11/21 virile shares to

Level 3; (3) the trial court erred in including Level 3 as strictly liable on the jury

interrogatory; (4) the trial court erred in allowing the deposition of Mr. Bourque to

4 Level 3 improperly filed a second motion for new trial and alternative motion for remittitur,

titled “Supplemental and Amending Motion for New Trial, and Alternative Motion for
Remittitur…” This Court and other Louisiana appellate courts have held:

[n]either the Louisiana Code of Civil Procedure nor any other law within our ken
or to which we have been cited countenances or permits the filing of a second
motion for new trial by the party who has been denied relief on his first motion.

Roch v. Accent Const. Co., 2007-0051, p. 3 (La.App. 4 Cir. 5/30/07), 961 So.2d 1265, 1267
(quoting Palmer & Palmer v. United Inv. Corp., 255 So.2d 611, 612 (La. App. 1 Cir. 1971).

Level 3 filed its second motion for new trial based on “new evidence” arguing that Mr. Bourque,
previously thought to be deceased was alive. The trial court held a hearing on Level 3’s second
motion for new trial, however the record does not include a signed judgment pertaining to Level
3’s second motion for new trial. Accordingly, we find Level 3’s second motion for new trial both
procedurally improper and not properly before this Court on appeal.

5 A denial of a motion for new trial is not a final, appealable judgment. See New Orleans Fire

Fighters Pension & Relief Fund v. City of New Orleans, 2017-0320, p. 5 (La.App. 4 Cir.
3/21/18), 242 So.3d 682, 688, n. 12 (citations omitted). However, this Court may consider an
interlocutory judgment as part of an unrestricted appeal from the final judgment. Id. Stated
differently, this Court may review an appeal from a denial of a motion for new trial as a final,
appealable judgment on the merits of the case if “it is clear from the appellant’s brief that [they]
intended to appeal the merits of the case.” Succession of Hickman, 2022-0730, p. 6 (La.App. 4
Cir. 3/15/23), --- So.3d ---, 2023 WL 2521916 at *3 (citing Clotworthy v. Scaglione, 2011-1733,
p. 3 (La.App. 4 Cir. 5/23/12), 95 So.3d 518, 520). Level 3’s appellate brief indicates it is
appealing the trial court’s July 20, 2022 judgment in favor of Mr. Walker.

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be read to the jury; and (5) the trial erred in admitting unauthenticated documents

from the National Safety Council. For ease of discussion, we summarize Level 3’s

assignments of error into the following categories: General Damages; Virile

Shares; Strict Liability; and Evidentiary Rulings. We address each in turn.

GENERAL DAMAGES

Level 3 seeks review of the jury’s award of $35,750,000.00 in general

damages in favor of Mr. Walker.6 Specifically, it alleges that the jury’s award was

improperly based upon “sympathy, emotion, and a desire to punish rather than the

law.” Level 3 also argues that a review of past awards in similar cases indicates

that the general damages award is excessive and improper.

“Prior to questioning the inadequacy or excessiveness of a trial

court’s general damages award, this Court must first look to the individual

circumstances of the current case, not prior awards.” McCloskey v. Higman Barge

Lines, Inc., 2018-1008, p. 11 (La.App. 4 Cir. 4/10/19), 269 So.3d 1173, 1181

(citation omitted). A jury has broad discretion in awarding damages. See PVCA,

Inc. v. Pacific West TD Fund LP, 2020-0327, p. 16 (La.App. 4 Cir. 1/20/21), 313

So.3d 320, 332. An award will not be disturbed by this Court unless it is

determined, by the record, that the fact finder abused its discretion. Wainwright v.

Fontenot, 2000-0492, p. 6 (La. 10/17/00), 774 So.2d 70, 74. An abuse of discretion

occurs if the award “is so disproportionate to the injury that it shocks the

conscience.” Wendel v. Travelers Ins. Co., 2014-0002, p. 6 (La.App. 4 Cir.

10/8/14), 151 So.3d 828, 834 (internal quotation omitted). This Court must inquire

“whether the award for the particular injuries and their effects under the particular

circumstances on the particular injured person is a clear abuse of the

6 Level 3 is not contesting the award of past and future medical expenses.

4

‘much discretion’ of the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d

1257, 1260 (La. 1993) (citations omitted).

We will therefore review the testimony to determine whether the jury abused

its discretion in awarding Mr. Walker $35,750,000.00 in general damages. The

jury listened and considered the totality of the testimony of Mr. Walker and other

witnesses. Mr. Walker testified that he grew up in New Orleans and had been

married to his wife since 1962. Mr. Walker has three children, five grandchildren,

and eight great grandchildren. He testified that he was aware of his imminent death

and stated, “I feel myself going down…” The jury also heard Mr. Walker testify

that he can no longer enjoy day-to-day activities such as gardening, playing pool,

hunting and fishing, traveling with his wife, playing with his grandchildren, or

visiting his family in other states. He emphasized that he chooses to fight his

condition, every day, to the best of his ability. Mr. Walker has endured many

treatments and invasive surgeries including a PleurX catheter insertion7 within the

wall of his rib cage which remained for three months. Mr. Walker experiences

depression and anxiety thinking about his wife living alone following his death.

Mr. Walker sleeps only a few hours each night as he lives in constant physical pain

and emotional fear of his death.

The jury also heard extensive testimony from Mr. Walker’s wife. Mrs.

Walker corroborated Mr. Walker’s testimony that he could no longer perform

normal day-to-day activities because of his condition. She explained how they

could no longer see their children and grandchildren in New York as Mr. Walker is

7 The PleurX catheter insertion remains in a patients rib cage/rib wall until a substantial amount

of fluid is drained from the lungs to where the patient can breathe. Mr. Walker had a PleurX
catheter from July 15, 2021 to September 8, 2021. Dr. Satti testified it was removed based upon
a fear of infection at the catheter insertion site.

5

unable to travel far distances because of his mesothelioma. She further testified

that she feared for life without her husband and constantly worried about how

many important life celebrations the two had left together. Mrs. Walker described

Mr. Walker as a hard working person who never failed to provide for his family.

Dr. Satti’s video deposition was also presented at trial. She opined that

although Mr. Walker occasionally responded well to monthly immunotherapy

treatments,8 he would die an uncomfortable and painful death from his

mesothelioma. She also noted it is likely that Mr. Walker’s immune system will

eventually stop responding positively to the immunotherapy treatment. She

pointed out that he is already experiencing its negative side effects such as nausea,

constipation, vomiting, diarrhea, and a kidney infection. Dr. Satti further testified

that he is not a candidate for surgery to remove portions of his lungs. Mr. Walker’s

second expert witness, Dr. Staggs, indicated that a mesothelioma patient’s life

expectancy is generally between six months and two years following their

diagnosis. He noted that Mr. Walker lives each day with extreme discomfort. Mr.

Walker, Mrs. Walker, Dr. Satti, and Dr. Staggs’ testimony was consistent; Mr.

Walker lives with constant pain in his back, ribs, sides, and legs.

The jury also considered the testimony of Mr. and Mrs. Walker regarding his

constant fear of imminent death. Mr. Walker was once an active man who enjoyed

many hobbies such as gardening, hunting, and playing pool. The jury was

presented with photos of Mr. Walker prior to his diagnosis which included photos

of him playing pool, enjoying time with his grandchildren, and vacationing with

his wife and family. Mr. Walker testified he could no longer partake in the

8 Immunotherapy treatment includes an IV insertion of fluids and medication to help manage a

patient’s mesothelioma symptoms.

6

activities he once enjoyed and is limited to the times he can visit with his children

and grandchildren. See McGee v. A C And S, Inc., 2005-1036, p. 5 (La. 7/10/06),

933 So.2d 770, 775 (determining that “[l]oss of enjoyment of life … refers to

detrimental alterations of the person’s life or lifestyle or the person’s inability to

participate in the activities or pleasures of life that were formerly enjoyed prior to

the injury”).

The jury weighed the testimony of Mr. and Mrs. Walker and reasonably

inferred that mesothelioma has caused a detrimental change to Mr. Walker’s life.

See McBride v. Lichtenstein, 2017-0715, p. 25 (La.App. 4 Cir. 12/5/18), 260 So.3d

658, 675. The jury heard and saw the toll that mesothelioma has taken on Mr.

Walker both physically and emotionally. The record also reflects that Mr. Walker

experiences periods of memory loss and often fails to remember many things as a

result of his inability to breathe from his mesothelioma. In one instance, Mr.

Walker was shown a photo of himself on vacation with his wife and he could no

longer remember where he traveled.9

Mr. Walker suffers daily and will continue to suffer as a direct result of his

diagnosis of mesothelioma. See e.g. Blair v. Tynes, 621 So.2d at 591, 601 (La.

1993) (holding when a jury’s findings are reasonable in light of the record

reviewed in its entirety, a court of appeal may not reverse). While we recognize

that the jury’s award of general damages may appear significant in relation to other

awards, “this Court is confined by the cases which instruct us to follow the

fundamental principle that great deference should be afforded to the factfinder…”

9 This photo, submitted into evidence at trial, captures Mr. and Mrs. Walker on a family trip in

Walt Disney World with the Disney character, Goofy.

7

Blakes v. Hallmark Specialty Ins. Co., 2021-0572, p. 11 (La.App. 4 Cir. 6/15/22), -

-- So.3d ---, 2022 WL 2155185 *5.

Although Level 3’s brief submits multiple damage awards within this

jurisdiction that deviate from the award granted to Mr. Walker, it fails to compare

the awards of the cases it cites with the degree and length of suffering of Mr.

Walker. There is no indication that the jury failed to exercise great care in reaching

this verdict.

We do not find that the jury’s award is “beyond that which a reasonable trier

of fact could asses for the effects of the particular injury to the particular plaintiff”

such that the jury abused is broad discretion. See Guillory v. Lee, 2009-0075, p. 6

(La. 6/26/09), 16 So.2d 1104, 1117 (quoting Youn v. Maritime Overseas Corp.,

623 so.2d 1257, 1261 (La. 1993). There is no evidence to indicate that the jury

abused its broad discretion in awarding $35,750,000.00 in general damages to Mr.

Walker. Additionally, we are mindful of the fact that general damages awards will

fluctuate and increase over time given changes in economic conditions, particularly

rampant inflation. See Coco v. Winston, 341 So.2d at 332, 335-36.

This Court will not substitute its finding for that of the jury who accepted all

the testimony and evidence. Blakes, 2021-0572, p. 13, --- So.3d ---, 2022 WL

2155185 *6. “It is not within our purview to substitute our findings for those of the

jury chosen by the parties to try their case.” Blakes, 2021-0572, p. 13, --- So.3d ---,

2022 WL 2155185 *8 (on reh’g). This Court has a duty to maintain the sanctity of

jury verdicts. Id.; See Plaquemines Par. Gov’t v. Getty Oil Co., 1995-2452, p. 6

(La. 5/21/96), 673 So.2d 1002, 1006.

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VIRILE SHARES

Level 3 asserts that the trial court erred in assigning 11/21 virile shares in

favor of Mr. Walker and against Level 3. The record indicates Mr. Walker’s

asbestos exposure occurred between 1967 and 1970, thus pre-comparative fault

law governs this case. See Cole v. Celotex Corp., 599 So.2d 1058, 1067-68 (La.

1992). Before addressing Level 3’s second assignment of error, a discussion

regarding pre-comparative fault law relative to virile shares, joint tortfeasors, and

solidary obligors is necessary.

Pre-Comparative Fault:
Solidary Obligors,
Joint Tortfeasors, and Virile Shares

“Under pre-1980 jurisprudence, the term virile share had come to be used as

short hand expression for the equal joint-obligor-type liability set forth explicitly in

the former article 2873 of the [Civil] Code.” 7 La. Civ. L. Treatise, Business

Organizations § 2:10. “[S]olidary liability among joint tortfeasors has been a part

of the Louisiana civilian tradition for over 150 years.” Touchard v. Williams, 617

So.2d 885, 892 (La. 1993). Prior to Act No. 431 of 1979,10 a claimant could seek

full recovery from any joint tortfeasors, “who were left to seek their respective

contribution and indemnity from each other.” Id. The legal concept of solidary

obligors, as instituted in our Civil Code, comes from French law. See Maryland

Cas. Co. v. Liberty Mutual Ins. Co., 254 La. 489, 495-96, 224 So.2d 465, 467-68

(1969). Specifically, Article 1213 of Code Napoleon provided that solidary

10 Act No. 431 revised La. C.C. art. 2324 to reaffirm the principle of solidarity liability amongst

joint tortfeasors. Dumas v. State ex rel. Dep’t of Culture, Recreation, and Tourism, 2002-0563, p.
5 (La. 10/15/02), 828 So.2d 530, 533. The revision essentially stated that “the primary effect of
solidarly liability is that any tortfeasor may be made to pay the judgment in full for other
defendants who are insolvent, unknown, or absent.” Id., 2002-0563, p. 6, 828 So.2d at 534.

9

obligors are bound to contribute to each other in equal portions. Id., 254 La. at 496,

224 So.2d at 468.

When the negligence of two persons combines to produce the injury of a

third, the parties at fault are joint tortfeasors and are liable, in solido, to the injured

plaintiff. Harvey v. Travelers Ins. Co., 163 So.2d 915, 918 (La.App. 3d Cir. 1964).

A solidary obligation is one which each obligor is liable for the whole

performance. 11 La. C.C. art. 1794. Prior to Louisiana’s Civil Code revision in

1980, Article 2103, amended in 1960, of the Civil Code provided:

When two or more debtors [obligors] are liable in solido, whether the
obligation arises from a contract, a quasi-contract, an offense, or quasi
offense, it should be divided between them. As between solidary
debtors [obligors], each is liable for their virile portion.

Article 2103 provided that “a tort-feasor may enforce contribution against a cotort-

feasors by the use of a third party demand even though the latter was not initially

sued by the plaintiff.” Harvey, 163 So.2d at 920. Thus, if determined that multiple

obligors, in solido, are liable for a plaintiff’s (obligee’s) injuries, each obligor is

assigned a portion of the debt owed. Accordingly, if five joint torfeasors are found

liable for the injuries of a plaintiff, each joint tortfeasor is liable for 1/5 of the

damage owed to the plaintiff.

Under pre-comparative fault law a plaintiff may seek recovery or payment in

whole from one obligor. See Harvey, 163 So.2d at 921. When one obligor pays the

entire debt to a plaintiff:

That one [paying obligor] is entitled to be subrogated the rights of the
creditor against the others [non-paying obligor]; [a]nd so far as the
creditor has impaired this right of subrogation he is barred from
recovering.

11 The revision comments to La. C.C. art. 1794 provides that this article restates the principal

contained in La. C.C. art. 2091 from the 1870 Civil Code.

10

Id. (Citing Ledoux v. Rucker, 5 La. Ann. 500 (1850)). Therefore, one joint

tortfeasor may be liable for the entire debt owed to a plaintiff, but it may

seek contribution from other joint tortfeasor for its own individual virile

portion. Our Supreme Court has noted:

[T]he substantive right of action for eventual contribution vests at the
time of the delict. This construction would explain how the third party
practice is available to the joint tortfeasor sued. Thus the joint
tortfeasor has a right of action from the time of the tort, but the cause
of action matures only on payment. Thus at the time of the delict there
is vested one cause of action and two rights of action: the injured
party has a right of action and cause of action in tort against the joint
tortfeasors; the joint tortfeasors as between themselves have a right of
action or title to sue for contribution which includes the right to use
the third party practice. If one of the tortfeasors pays in excess of his
virile portion his vested interest or right of action matures and he
acquires a separate cause of action for contribution against his fellow
tortfeasor.

Cole v. Celotex Corp., 599 So.2d 1058, 1070 (La. 1992) (quoting Comment,

Contribution Among Joint Tortfeasors: Louisiana’s Past, Present, and Future, 37

Tul.L.Rev. 525, 532(1963)). In accordance with Cole, a joint tortfeasor has a right

of action from the moment the tort occurs. Id. Further, the moment a plaintiff seeks

payment from a joint tortfeasor, a cause of action accrues between the remaining

co-tortfeasors as amongst themselves. Id. As to the example with five joint

tortfeasors, a plaintiff may seek an entire payment from one joint tortfeasors and

that paying joint tortfeasor may then seek contribution from the remaining four

obligors for their individual virile portion, i.e., 1/5.

A plaintiff may also settle and release a joint tortfeasor reducing his claim

against the other obligors in proportion to the debt owed by the released obligor.

Harvey, 163 So.2d at 920. Specifically, within a tort claim, the plaintiff may still

recover the full debt from another joint tortfeasor, subject to a credit for the amount

paid in the settlement by the joint tortfeasor. Id. Turning again to the example of

11

five obligors or joint tortfeasors, a plaintiff may settle and release one obligor for

his virile portion, i.e. one share, and may still seek payment from any remaining

obligors or joint tortfeasors. The remaining joint tortfeasors are subject to a credit

from the settled obligor and would only be liable to the plaintiff for four of the five

shares, i.e., 4/5.

Thus, when analyzing pre-comparative fault matters such as the one in the

case sub judice, courts should consider the above principles in determining issues

relative to virile shares, joint tortfeasors, contribution, and virile share credits. With

these fundamental principles in mind, we now turn to Level 3’s second assignment

of error.

On appeal, Level 3 asserts that they should only be liable for 1/11 virile

shares based upon a theory that non-parties should not be considered when

allocating virile shares. This argument is without merit.

Under pre-comparative fault law, joint tortfeasors are solidarily liable for a

tort victim’s injury. Romano v. Metropolitan Life Insurance Co., 2016-0954, p. 5

(La.App. 4 Cir. 5/24/17), 221 So.3d 176, 180. Further, a plaintiff can demand the

whole performance from any joint and/or indivisible obligor. Id., 2016-0954, p. 5,

221 So.3d at 181.

The jury verdict form listed a total of twenty-seven entities as possible joint

tortfeasors who are all solidarily liable for Mr. Walker’s asbestos related injuries.

The jury determined that twenty-one of the twenty-seven entities were solidarily

liable for Mr. Walker’s injuries. Ten of the twenty-one entities settled with Mr.

Walker (hereinafter “Settled Parties”).12 Another two entities were voluntarily

12 These ten entities included: Chevron Oronite Company, LLC; Entergy Louisiana, LLC; Homer

Knost Construction Co., Inc.; Jacobs Construction and Maintenance Contractors, Inc.;

12

dismissed (hereinafter “Dismissed Parties”)13 and eight entities were not named as

parties to this litigation (hereinafter collectively “Non-Parties”).14 Thus, we group

the three entities as follows: (1) Settled Parties; (2) Non-Parties; (3) Dismissed

Parties. Each will be addressed in turn.

Settled Parties

Mr. Walker’s recovery against Level 3 was properly reduced by the ten

virile shares of the Settled Parties. See e.g. Romano, 2016-0954, p. 6, 221 So.3d at

181. This is known as a virile share credit. “[W]hen [the] plaintiff settle[s] with a

joint tortfeasor, the joint tortfeasor [is] also released from paying contribution to

the solidary obligor.” Id., 2016-0954, p. 5, 221 So.2d at 181. Level 3 received a

virile share credit for the ten Settled Parties as the following occurred: (1) Mr.

Walker released ten of the twenty-one parties and (2) the released ten parties were

found liable for Mr. Walker’s asbestos related injuries by the jury at trial. See Id;

See also Dempster v. Lamorak Insurance Co., No. 2020-0095, 2020 WL 5666697

(E.D. La. Sept. 23, 2020) (concluding that a party is entitled to a “virile share

credit if: (1) the plaintiff released the party and (2) the released party is liable as a

joint tortfeasor”).

Accordingly, a virile share credit does not absolve a party of liability but

rather alters the total amount a joint tortfeasor is required to pay a plaintiff.

Harvey, 163 So.2d at 920. As the jury found the ten Settled Parties to be liable, in

Occidental Chemical Corporation; Resco Holdings, LLC; Shell Oil Company; Union Carbide
Corporation; Witco Chemical Co.; and Westinghouse Electric Co.
13 The two entities are: Benjamin F. Shaw Co. and E.I. DuPont De Nemours and Co.

14 These include: Brindell Bruno Inc., Dravo Co.; Ebasco Services, Inc.; Emile M. Babst and

Co.; Godchaux Sugars, Inc.; HB Fowler; J & J Construction and Maintenance Contractors, Inc.;
and Tompkins Beckwith, Inc.

13

solido, for Mr. Walker’s injuries, the trial court properly reduced Level 3’s share

by 10/21 shares, leaving 11/21 virile shares.

Non-Parties

The jury determined that the Non-Parties were liable, in solido, for Mr.

Walker’s asbestos related injuries and were subsequently cast in judgment by the

trial court. Although we are cognizant of the fact that Mr. Walker did not name the

Non-Parties in his original petition, Level 3 urged the fault of each of the Non-

Parties at trial.15 “When a defendant urges the fault of a non-party, it is incumbent

upon that defendant to provide evidence which preponderates that fault actually

exists on the part of the non-party.” Williams v. Placid Oil Co., 2016-0839, p. 11

(La.App. 3 Cir. 8/12/17), 224 So.3d 1101, 1108 (quoting Joseph v. Broussard Rice

Mill, Inc., 2000-0628, pp. 8-9 (La. 10/30/00), 772 So.2d 94, 99). If multiple causes

of injuries are present, a defendant’s conduct is a cause in fact if it is a substantial

factor in plaintiff’s harm. Abadie v. Metropolitan Life Ins. Co., 2000-0344, p. 65

(La.App 5 Cir. 3/28/01), 784 So.2d 46, 90. “There can be more than one cause in

fact of an accident as long as each cause bears a proximate relation to the harm that

occurs and it is substantial in nature.” Id., 2000-0344, p. 64, 784 So.2d at 90.

During Mr. Walker’s cross-examination, Level 3 posed questions regarding

more than thirty-five different entities who employed Mr. Walker as a pipefitter

and welder. Of those, Mr. Walker specifically testified being “exposed to” and

“breathing in” asbestos fibers while working for the Non-Parties. Specifically, he

noted the type of work he performed which included using asbestos blankets,

15 This is known as the empty-chair defense defined by this Court as “a trial tactic in a multiparty

case whereby one defendant attempts to put all the fault on a defendant who … settled before
trial or on a person who was [not] … a named party.” Pizani v. St. Bernard Parish, 2012-1084,
pp. 7-8 (La.App. 4 Cir. 9/26/13), 125 So.3d 546, 552 (citations omitted).

14

cutting into asbestos filled insulation, and creating hot welds. The jury reasonably

found the actions of the Non-Parties were a substantial factor in Mr. Walker’s

asbestos exposure. The record contains sufficient evidence that Mr. Walker’s

injuries were caused by exposure to asbestos containing products at various

worksites.16

A non-party found liable at trial may be assigned a virile share. See Abadie,

2000-0344, p. 71, 784. So.3d at 94 (reversing the trial court’s decision to reduce

the virile share of a non-party found liable at trial). Joint tortfeasors are assigned a

virile share, regardless of whether they were named a party to the litigation. See

Harvey, 163 So.2d at 918; See also La. C.C. art. 2103 (prior to 1980 revisions).

Thus, the trial court did not err in allotting one virile portion to each of the Non-

Parties.17

Dismissed Parties

As to the Dismissed Parties, this Court finds that Level 3 is not entitled to

two extra virile share credits. The Dismissed Parties were found liable, in solido,

for Mr. Walker’s asbestos related injuries but Mr. Walker has not settled with the

alleged “Dismissed Parties.” An obligor is entitled to a virile share credit when it is

shown that the plaintiff settled and released the party and the party is liable as a

joint tortfeasor. See Romano, 2016-0954, p. 5, 221 So.2d at 181. Thus, upon

16 See Abadie, 2000-0344, p. 69, 784 So.3d at 93 (the term exposure in asbestos cases refers to

inhalation of asbestos fibers into the lungs).
17 However upon payment to Mr. Walker, Level 3 has a cause of action against each of the Non-

Parties. When the whole performance is sought from a single solidary obligor that solidary
obligor may seek “contribution” from other joint tort-feasors “in an amount of the joint
tortfeasor’s ‘virile share.’” Romano, 2016-0954, p. 5, 221 So.2d at 181 (citation omitted). Level
3 was cast in judgment owing 11/21 virile shares to Mr. Walker and the jury concluded that the
Non-Parties were solidary liable for Mr. Walker’s injuries. Accordingly, Level 3 may seek
contribution from the Non-Parties for each of their virile portions, i.e. 1/21. See Harvey, 163
So.2d at 920; See also Cole, 559 So.2d at 1070.

15

payment to Mr. Walker, Level 3 has a cause of action, in the form of contribution,

from the Dismissed Parties. Id. Accordingly we find that Level 3 is not entitled to

two virile share credits or a reduction of 2/21 shares as Mr. Walker has yet to settle

and release the Dismissed Parties.

STRICT LIABILITY

Level 3 asserts that the trial court erred in including strict liability within

Jury Interrogatory No. 4.18 Specifically, Level 3 avers that it was not a premises

owner of the Union Carbide Plant, Waterford I, or Waterford II thus it should not

be held strictly liable for Mr. Walker’s asbestos related injuries. Jury instructions

are reviewed under the manifest error standard. Fireman’s Fund Insurance Co., v.

R.S. Homes, L.L.C., 2019-0621, pp. 3-4 (La.App. 4 Cir. 3/25/20), 294 So.3d 54, 59.

“A trial judge is only required to give a jury instruction which properly reflects the

law that is applicable to the facts of a particular case. Fireman’s Fund Ins. Co.,

2019-0621, p. 7, 294 So.3d at 61 (citation omitted).

La. C.C. art. 2317 imposes responsibility for damage caused by things in our

custody.19 To establish liability, pursuant to La. C.C. art. 2317, a plaintiff must

prove: (1) the thing which caused the injury must be in the care, custody, and

control of the defendant; (2) the thing had a vice or defect which created an

unreasonable risk of harm; and (3) the injuries in question were caused by said

defect. Palermo v. Port of New Orleans, 2004-1804, p. 18 (La.App. 4 Cir.

18 Strict liability, as defined in La. C.C. art. 2317 provides:

We are responsible, not only for the damage occasioned by our own act, but for
that which is caused by the act of persons for whom we are answerable, or for the
things which we have in our custody.
19At the time of Mr. Walker’s asbestos exposure, La. C.C. art. 2317 was not enacted. However,

the Acts of 1996 combined the previous Civil Code Articles, La. C.C. arts. 660, 667, 2321, and
2322 and subsequently enacted La. C.C. art. 2317.

16

1/19/07), 951 So.2d 425, 438. “Under a strict liability theory, it is the defendant’s

legal relationship with property containing a defect that gives a rise to the duty.”

Oster v. Department of Transp. and Development, State of La., 582 So.2d 1285,

1288 (La. 1991). For purposes of strict liability, custody does not depend upon

ownership but instead “involves the right of supervision, direction, and control as

well as the right to benefit from the thing controlled.” Haydel v. Hercules

Transport, Inc., 1994-0016, p. 9 (La.App. 1 Cir. 4/7/95), 654 So.2d 408, 414;

Smith v. Union Carbide Corp., 2013-6323, 2014 WL 4930457, at *2 (E.D. La. Oct.

1, 2014) (applying Louisiana law).

The critical issue before this Court is whether Level 3 had custody, care or

control over asbestos containing products and materials at Union Carbide,

Waterford I and II. Mr. Walker worked as a pipefitter for Level 3.20 At trial, Mr.

Walker submitted multiple exhibits indicating a contractual relationship between

Level 3 and Union Carbide. The contracts reveal that Level 3, the contractor,

supplied materials and products to employees in constructing multiple pumping

stations, underground pipes, and plant expansions at the Union Carbide plant. A

construction order was also submitted which instructs Level 3 to change gaskets

within multiple lines from white asbestos to teflon-enveloped asbestos filler.

There is no dispute that Mr. Walker was exposed to asbestos containing

materials at the aforementioned power plants. Mr. Walker’s work as a pipefitter

required him to cut and install pipes while tearing out asbestos pipe insulation. He

was required to cover multiple pipes with asbestos blankets. This work was

ongoing and considered consistent maintenance, a part of Mr. Walker’s job as an

20 At the time of Mr. Walker’s employment, Level 3 was known as Peter Kiewit & Sons Co. For

consistency in this opinion, we will refer to Peter Kiewit & Sons, Co. as Level 3.

17

employee of Level 3. Although we note that Level 3 was not the owner of any of

the industrial worksites and testified that it “relied on premises owner to provide a

facility free of defects …,” we find that Level 3 had custody and control of

asbestos containing materials when it instructed pipefitters, such as Mr. Walker, to

remove insulations from pipes and create hot welds at various worksites. Thus, we

find the trial court did not err in including Level 3 within Jury Instruction No. 4

regarding strict liability.

EVIDENTIARY RULINGS

In its last two assignments of error, Level 3 contends that the trial court erred

in allowing the jury to hear the deposition of Mr. Bourque and in admitting

documents from the National Safety Council. A trial court is vested with wide

discretion in determining the relevancy of evidence. Fireman’s Fund Insurance

Co., 2019-0621, p. 9, 294 So.3d at 62. This Court reviews evidentiary issues under

an abuse of discretion standard. Joseph v. Williams, 2012-067, p. 10 (La.App. 4

Cir. 11/14/12), 105 So.3d 207, 214. We address each evidentiary ruling in turn.

Mr. Bourque’s Deposition

Level 3 argues that Mr. Bourque’s deposition should not have been read at

trial for the following two reasons: (1) it had no opportunity to properly cross

examine Mr. Bourque as the deposition was from a previous trial in 2004; and (2)

Mr. Bourque was available for trial, contrary to assertions made by Mr. Walker’s

counsel. Conversely, Mr. Walker argues that Mr. Bourque’s deposition is relevant

because it demonstrates that both men were employed by Level 3, worked at

Waterford I and II, and subsequently contracted mesothelioma.

We find that allowing Mr. Walker’s counsel to read Mr. Bourque’s deposition

to the jury constitutes harmless error. An error is harmless when it is “trivial,

18

formal, merely academic, and not prejudicial to the substantial rights of the party

assigning it, and where it in no way affects the final outcome of the case.” Said v.

Federated Rural Elec. Ins. Exch., 2021-0078, p. 1 (La. 4/20/21), 313 So.3d 1241,

1242 (citations omitted). An “error is prejudicial when it consists of the exclusion

of evidence related to a ‘material point in issue’ and adversely affects the

substantial rights of the party opposed to the exclusion.” Buckbee v. United Gas

Pipe Line Co. Inc., 561 So.2d 76, 85 (La. 1990).

Although counsel for Mr. Walker misinformed the trial court that Mr.

Bourque was deceased and unavailable for trial, the portions of Mr. Bourque’s

deposition read to the jury were cumulative reiterations of Mr. Walker’s live

testimony. Mr. Walker indicated that he was employed by Level 3 as a pipefitter at

Waterford I and II and Union Carbide from 1967 to 1969 and 1973 to 1974,

respectively.21 Mr. Walker recalled working with asbestos materials and products

while employed by Level 3 at the Waterford I, II, and Union Carbide worksites. He

specifically testified as to the types of materials he worked with and the number of

hot welds he created for Level 3 at the Union Carbide Worksite. He also noted that

he often worked with asbestos insulation, provided by Level 3 at each worksite.

Mr. Bourque’s deposition also reveals he was an employee of Level 3 during

the same time period as Mr. Walker. Mr. Bourque’s deposition further indicates

that he was pipefitter and Welder at Waterford I, II, and the Union Carbide

worksites and recalled working with asbestos containing products and materials.

Mr. Bourque’s testimony merely corroborated Mr. Walker’s live testimony. See H

& O Investments, LLC v. Parish of Jefferson Through Sheng, 2021-0188, p. 11

21 The jury also viewed Mr. Walker’s social security earnings deposit slips indicating he was an

employee of Level 3 from 1967 to 1969 and from 1973 to 1974.

19

(La.App. 5 Cir. 11/24/21), 347 So.3d 1074, 1083 (holding when “evidence is

admitted that is merely cumulative of other evidence in the record, any error in its

admission is harmless”). There is no indication that the jury solely relied on Mr.

Bourque’s thirteen page deposition to reach its verdict. Accordingly, even if the

trial court’s decision to allow the jury to hear the deposition of Mr. Bourque was

erroneous, the error is harmless as it did not affect the result reached by the jury or

deprive Level 3 of any substantial rights. La. C.E. art. 103; H & O Investments,

LLC, 2021-0188, p. 10, 347 So.2d at 1083.

National Safety Council Documents

Level 3 asserts that the trial court erred in allowing Mr. Walker to admit

documents from the National Safety Council (hereinafter “the NSC documents”).

Level 3 also submits that the trial court erred in allowing Mr. Walker to question

Jim Schneider about the NSC documents. Mr. Walker counters and contends that

the trial court did not err in admitting the NSC documents, citing to La. C.E. art.

803(16) to support its contentions.22

The NSC documents, ranging from 1930 to 1960, are based upon field

investigations that provide dust counts within industrial and commercial worksites.

Mr. Walker presented the documents to establish Level 3’s notice of the hazardous

dust and the duration of the exposure that was harmful to workers. He further

introduced the documents to show that Level 3 likely knew, as far back as the

1930s, that the exposure to asbestos dust could harm workers.

A document must be authenticated or identified as a condition precedent to

its admissibility. La. C.E. art. 901(A). Further, an ancient document may be

22 La. C.E. art. 803(16) provides: [s]tatements in a document in existence thirty years or more the

authenticity of which is established, or statements in a recorded document as provided by other
legislation.

20

authenticated if it: is in such condition as to create no suspicion concerning its

authenticity; was in a place where it, if authentic, would likely be; and has been in

existence thirty years or more at the time it is offered. La. C.E. art. 901(B)(8).

We find the trial court did not err in admitting the NSC documents at Mr.

Walker’s trial. In support of the NSC documents, Mr. Walker submitted an

affidavit and a 2001 deposition of the National Safety Council’s librarian of fifteen

years, Mr. Robert Maracek. Mr. Maracek’s affidavit indicated: that he reviewed the

exhibits presented to him by Mr. Walker’s counsel, that the exhibits were from

1936, and that they were authentic to the best of his knowledge. Thus, the NSC

documents were properly admitted pursuant to La. C.E. art. 803(16).

CONCLUSION

We do not find that the jury’s award of general damages to Mr. Walker is so

disproportionate to his injury that it shocks the conscience. Finding no legal error,

the jury’s determination should be upheld. See PVCA, Inc. v. Pacific West TD

Fund LP, 2020-0327, p. 16 (La.App. 4 Cir. 1/20/21), 313 So.3d 320, 332;

Wainwright v. Fontenot, 2000-0492, p. 6 (La. 10/17/00), 774 So.2d 70, 74; Wendel

v. Travelers Ins. Co., 2014-0002, p. 6 (La.App. 4 Cir. 10/8/14), 151 So.3d 828,

834;Goldstein v. Chateau Orleans, Inc., 2020-0401, p. 28 (La.App. 4 Cir.

11/12/21), 331 So.3d 1027, 1055. Further, multiple parties were found liable, in

solido, for Mr. Walker’s asbestos exposure. See Abadie, 2000-0344, p. 65, 784

So.2d at 90. Thus, the trial court did not err when assessing Level 3 liable for 11/21

shares or determining that Level 3 had custody, care, and control over the asbestos

related products used by Mr. Walker during his employment as a pipefitter and

welder at various industrial worksites.

DECREE

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Accordingly, we affirm the jury verdict and the judgment of the trial court in

favor of Mr. Walker and against defendant, Level 3.

AFFIRMED

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