Henry Pete v. Boland Marine And Manufacturing

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #046
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 20th day of October, 2023 are as follows:
BY McCallum, J.:
2023-C-00170 HENRY PETE VS. BOLAND MARINE AND MANUFACTURING
COMPANY, LLC, ET AL. (Parish of Orleans Civil)
AFFIRMED AS AMENDED. SEE OPINION.
Hughes, J., concurs in part, dissents in part for reasons assigned by Griffin, J.
Crichton, J., concurs in part, dissents in part, and assigns reasons.
Griffin, J., concurs in part, dissents in part and assigns reasons.

SUPREME COURT OF LOUISIANA
No.
2023-C-00170
HEN
RY PETE
VS.
BOLAND MARINE AND MANUFACTURING
COMPANY, LLC, ET AL.
On W
rit of Certiorari to the Court of Appeal,
Fourth Circuit, Parish of Orleans Civil
Mc
CALLUM, J.
We granted certiorari in this case to address the issue of quantum . More
specifically, we are called upon to decide whether the court of appeal properly found
no abuse of discretion in the jury’s award of approximately $10 million in general
damages to plaintiff, Henry Pete, who developed mesothelioma as a result of his
exposure to asbestos.1 Intertwined with this issue is the fundamental question of the
manner by which appellate courts are to review damage awards for excessiveness;
necessarily, the same rules would apply in determining whether an award is too low.
Our jurisprudence has a long -standing general principle, most recently
reiterated by this Court in Jones v. Mkt. Basket Stores, Inc ., 22-00841, p. 16 (La.
3/17/23), 359 So. 3d 452, 464 (citation omitted), that, in reviewing a general damage
award, the “initial inquiry . . . is whether the trier of fact abused its discretion in
assessing the amount of damages.” Thereafter, and only when a determination has
been made that the “trier of fact has abused its ‘much discretion,’” will a court
“resort to prior awards . . . and then only for the purpose of determining the highest
or lowest point which is reasonably within that discretion.” Id.
1 Shortly after the trial of this matter, Mr. Pete succumbed to the disease and his son, Tyrone Pete,
was substituted as plaintiff under La. C.C.P. art. 801 and La. C.C. art. 2315.1.

2

We have carefully considered whether it remains a sound practice to allow
consideration of prior awards only after finding an “abuse of discretion,” or whether
those awards are a relevant factor to be considered in determining whether there has
been an abuse of discretion at the outset. There are no specific parameters by which
an “abuse of discretion” is me asured, nor a meani ngful definition of this phrase.
Such determinations are not subject to mathematical exactitude or scientific
precision. Indeed, as this Court has recognized, “[t]he standard for appellate review
for abuse of discretion in the award of general damages is difficult to express and is
necessarily non-specific.” Cone v. Nat’l Emergency Servs., Inc., 99-0934, p. 8 (La.
10/29/99), 747 So. 2d 1085, 1089 (citing Youn v. Mar. Overseas Corp., 623 So. 2d
1257, 1261 (La.1993)).
The inherently subjective nature of the abuse of discretion standard in the
context of r eviewing general damage awards compels that some measure of
objectivity be incorporated into the determination of an award’s reasonableness, so
that there is some standard for comparison.2 We now hold that an appellate court
must consider relevant prior general damage awards as guidance in determining
whether a trier of fact’s award is an abuse of discretion. Applying this principle to
the instant matter, we find that the jury ab used its discretion in awarding
$9,800,00.00 in general damages. The evidence presented at trial does not support
an award that far exceeds the h ighest reasonable awards in cases involving similar
injuries. Accordingly, based on the evidence adduced at trial, we find $5,000,000.00
to be the highest amount that could reasonably be awarded.

2 We recognize that there can be no completely objective standard for reviewing general damage
awards; however, this is no impediment. As lexicographer Samuel Johnson aptly stated: “The fact
that there is such a thing as twilight does not mean that we cannot distinguish between day and
night.”

3

FACTS AND PROCEDURAL BACKGROUND
After finishing high school, Henry P ete, who later became a chiropractor,
began his work life at the Port of New Orleans (“the Port”), where he worked a s a
longshoreman from 1964 -1968. Decades later, in 2019, Mr. Pete was diagnosed
with malignant mesothelioma.
Mr. Pete timely instituted this lawsuit in 2020, alleging that his mesothelioma
was caused by exposure to asbestos when he worked at the Port.3 Numerous parties
were named as defendants, but by the time of trial, three defendants remained: Ports
America Gulfport, Inc. (“Ports America”), SSA Gulf, Inc. (“SSA”), and James J.
Flanagan S hipping Corporation (“JFSC”). A jury trial was held in October and
November, 2020 , resulting in a verdict in Mr. Pete’s favor and against Ports
America; SSA and JFSC were found to be free of fault. 4 With respect to damages,
the jury awarded the total sum of $10,351,020.70, as follows:
Past and future physical pain and suffering: $2,000,000.00
Past and future mental pain and suffering: $2,300,000.00
Past and future physical disability: $3,000,000.00
Past and future loss of enjoyment of life: $2,500,000.00
Past medical expenses: $551,020.705
The trial court then signed a judgment conforming to the jury’s verdict.6 After
its motion for judgment notwithstanding the verdict was denied, Ports America

3 Mr. Pete also alleged exposure to asbestos through personal contact with his father who also
worked at the Port.

4 Two parties who had either settled or were dismissed prior to trial (Cooper T. Smith Stevedoring,
Co., Inc. and South African Marine Corp.) were found to bear fault as well. Each defendant was
cast in judgment for its virile share.

5 The total amount of general damages was $9,800,000.00.

6 The trial court’s judgment was $.70 off; the judgment was re ndered in the amount of
$10,351,020.00. The judgment contains another error. Although the judgment recites the various
itemized general damage awards, there is no specific mention of an award for past medical
expenses. The total amount of damages, however, includes the $551,020.00 in past medical
expenses awarded by the jury. No party objected to this oversight nor moved to amend the

4

appealed, raising three assignments of error, including the exce ssiveness of the
general damage award. The court of appeal affirmed . As to the general damage
award, the court of appeal cited general case law and acknowledged that the initial
inquiry is “whether the award for the particular injuries and their effects under the
particular circumstances on the particular injured person is a clear ‘abuse of
discretion’ of the trier of fact.” Pete v. Boland Marine & Mfg. Co., LLC , 21-0626,
pp. 25- 26 (La. App. 4 Cir. 1/5/23), 356 So. 3d 1147, 1164 (quoting Copell v.
Arceneaux Ford, Inc., 20-299, p. 12 (La. App. 3 Cir. 6/9/21), 322 So. 3d 886, 895).
Without a discussion of the evidence in the record, the court of appeal simply found:
Ports America has failed to demonstrate that based on the
evidence in this case that the general damages awarded to
Henry Pete, relevant to the pain and suffering attributable
to ultimate [sic] his inevitable death from mesothelioma[,]
shock the conscience. Thus, we do not find that the jury
abused its discretion when it awarded Henry Pete $10.5
million in general damages and decline to disturb the
jury’s award.

Id. Judge Dysart dissented, writing:
. . . This amount shocks the conscience and in my opinion
is an abuse of discretion. See Romano v. Metropolitan Life
Ins. Co. , 16 -0954 (La. App. 4 Cir. 5/24/17), 221 So.3d
176; see also Zimko v. American Cyanimid, 03-0658 (La.
App. 4 Cir. 6/8/05), 905 So.2d 465. Recent awards for the
particular type of damages suffered by plaintiffs in cases
similar to the instant case would suggest that a general
damage award should be somewhere in the neighborhood
of half of what was awarded to Mr. Pete. See Lege v.
Union Carbide Corp., 20-0252 (La. App. 4 Cir. 5/12/21),
[366] So.3d [75]; Terrance v. Dow Chemical Co., 06-2234
(La. App. 1 Cir. 9/14/07), 971 So.2d 1058. Accordingly, I
would reduce the damages awarded to Mr. Pete by one -
half.

Id., 21-026, p. 1, 356 So. 3d at 1164-65.

judgment under La. C.C.P. art. 1951 (allowing a judgment to be amended “to correct deficiencies
in the decretal language or errors of calculation.”). Because the judgment accurately reflects the
jury’s award (with the exception of the omitted $.70), we need not address this discrepancy.

5

We granted Ports America’s writ application and ordered briefing limited to the issue
of quantum. Pete v. Boland Marine & Mfg. Co., LLC, 23-00170, p. 1 (La. 4/18/23),
359 So. 3d 498.
LAW AND DISCUSSION
We have long recognized that a jury has great discretion in awarding general
damages. As this Court observed in Thibodeaux v. Donnell, 16 -0570, p. 7 (La.
1/20/17), 219 So. 3d 274, 278 (quoting Gaspard v. LeMaire, 158 So. 2d 149, 160
(1963)), “[s]ince an award of damages for personal injuries is of necessity somewhat
arbitrary and also must vary greatly with the facts and circumstances of each case,
the trial court is entrusted with large discretion [in] making such awards . . . .” See
also, CD v. SC, 22-00961, p. 4 (La. 6/1/23), 366 So. 3d 1245, 1249 (“[v]ast discretion
is accorded to the trier of fact in fixing general damage awards. ”). The importance
of the trier of fact’s discretion in awarding damages was made clear by the Louisiana
legislature with the enactment in 1984 of La. C.C. art. 2324.1, providing that, “[i]n
the assessment of damages in cases of offenses . . ., much discretion must be left to
the judge or jury.”
The discretion afforded to the trier of fact in awarding general damages is not,
however, unfettered. See, e.g., McFarland v. Illinois Cent. R. Co., 127 So. 2d 183,
187 ( La. 1961) (“While much discretion is vested in the trial judge or jury in
awarding damages, . . . the award is always subject to review by an appellate court.”).
Our jurisprudence instructs us that a general damage award may be modified, and
an appellate court’s role is to review the exercise of discretion by the trial court in
making the award. See Youn, 623 So. 2d at 1260; see also, Guillory v. Lee, 09-0075,
pp. 14-15 (La. 6/26/09), 16 So. 3d 1104, 1117 (“[t]he role of an appellate court in
reviewing a general damage award, one which may not be fixed with pecuniary
exactitude, 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.”).

6

Historically, courts have employed a two-step analysis in evaluating general
damage awards. As enunciated in Reck v. Stevens, 373 So. 2d 498, 501 (La. 1979),
“the initial inquiry must always be directed at whether the trier court’s award for the
particular injuries and their effects upon this particular injured person is[] a clear
abuse of the trier of fact’s ‘[m]uch discretion.’” See also, Jones, 22-00841, p. 16,
359 So. 3d 452, 464; CD v. SC, 22-00961, p. 5, 366 So. 3d at 1249; Rando v. Anco
Insulations Inc., 08-1163, pp. 40-41 (La. 5/22/09), 16 So. 3d 1065, 1094. Once an
“articulated analysis of the facts discloses an abuse of discretion, [an] award may on
appellate review, for articulated reason, be considered either excessive . . . or
insufficient” and a “ resort to prior awards [be made] . . . for purposes of then
determining what would be an appropriate award for the present case. ” Reck, 373
So. 2d at 501.
It is the initial inquiry – determining whether there has been an abu se of
discretion in an award for general damages – that is problematic, as “[g]eneral
damages . . . are inherently speculative in nature and cannot be fixed with
mathematical certainty.” Wainwright v. Fontenot, 00-0492, p. 6 (La. 10/17/00), 774
So. 2d 70, 74. (Citation omitted). There are no objective guidelines to assess the
monetary “value” of a general damages claim, and as this Court has observed, “‘no
bright line rule at work’ [exists] to define when a trier of fact’s damages award is an
abuse of discretion .” Thibodeaux , 16-0570, p. 9, 219 So. 3d at 280 (quoting
Wainwright, p. 9, 774 So. 2d at 77).
The amorphous, subjective nature of awards for general damages was
recognized by Judge Schott in his concurrence in Sanders v. Hall, 345 So. 2d 590,
593-94 (La. App. 4 Cir. 1977):
One definition of the word ‘discretion’ is the ‘Power or
privilege of the court to act unhampered by legal rule.’
Black’s Law Dictionary revised 4th ed. 1968. Another is
‘Freedom to act or judge on one’ s own.’ The American
Heritage Dictionary of the English Language, 1969. One

7

definition of the word ‘abuse’ is ‘to make an extravagant
or excessive use, as to abuse one’s authority.’ Black’s Law
Dictionary, revised 4th ed. Another is ‘to use wrongly or
improperly.’ The American Heritage Dictionary of the
English Language, 1969. Thus, when we speak of abuse
of discretion we are in a sense using a phrase which is
inherently self[-]contradictory. If a trial court’s discretion
under C.C. Art. 1934 [now, La. C.C. 2324.1 ] means that
he can set awards for general damages ‘unhampered,’ how
can it ever be said that he has made extravagant or
excessive use of that discretion. If it means that he is free
to make awards on his own, how can it be said that he has
misused his authority even though everyone else considers
the award he made to be excessive. Furthermore, under
the definitions given for discretion it would seem that the
use of the word ‘much’ preceding ‘discretion’ in Art. 1934
is a redundancy. If the trial judge is to act unhampered and
if he has the freedom to act on his own in making general
damage awards[,] these expressions are absolute, and the
word ‘much’ does no more than emphasize what is said by
the word ‘discretion.’

To state it bluntly, if a trial court has absolute discretion in determining the
amount of general damages, then the appellate review process is redundant and
unnecessary. We agree that, in the context of a review of a general damage award,
the abuse of discretion standard lacks parameters and, for that reason, we are
compelled to find an approach that includes an element of objectivity.
Our case law indicates that, before an award “may be questioned as inadequate
or excessive, the reviewing court must look first, not to prior awards, but to the
individual circumstances of the . . . case.”
Reck, 373 So. 2d at 501. Courts have
applied this principle to the actual evaluation of an award; it is not directed to the
abuse of discretion standard of review. As to the latter, our case law is inconsistent.
Some cases explicitly reject the principle that a review of awards in similar cases is
appropriate in determining whether there has been an abuse of discretio n. See
Duncan v. Kansas City S. Ry. Co., 00-0066, p. 14 (La. 10/30/00), 773 So. 2d 670,
683 (“[o]nly after a determination that the trier of fact has abused its ‘much
discretion’ is a resort to prior awards appropriate . . . .”); See also, Cone, 99-0934,
p. 8, 747 So. 2d at 1089 (“[r]esorting to a comparison of prior awards is only

8

appropriate after the reviewing court has concluded that an abuse of discretion has
occurred.”); Youn, 623 So. 2d at 1260; Rando, 08-1163, p. 41, 16 So. 3d at 1094.7
However, language from other cases suggests that a court may consider prior
awards in the a buse of discretion phase of a challenge to a general damage award.
In Dimarco, the court of appeal applied the rule that a review of other cases is
appropriate only after an abuse of discretion is found, but also stated: “The reviewing
court may not merely look at past awards for similar injuries in the determination of
whether the trier of fact abused its much discretion. ” Dimarco, 21-530, p. 16, 345
So.3d 1087. (Emphasis added). Other decisions have made virtually identical
statements.8
This implication – that a court may consider past awards in evaluating whether
an award is an abuse of discretion – is incompatible with the rules set forth in Youn,
Rando, Duncan and Cone. Nevertheless, we find that this principle provides a
reasonable criterion by which courts can evaluate awards for general damages,
whether for excessiveness or insufficiency. Without an examination of other general
damage awards in similar cases, appellate courts have no objective, neut ral, or
equitable way to measure whether a general damage award is, in fact, an abuse of
discretion. Moreover, the “abuse of discretion” standard of review, absent a study
of prior award s, is overly subjective and , consequently, meaningless. A s Judge
Schott intimated, such an approach is entirely intuitive, based completely on the trier
of fact’s whim, and divorced, almost entirely, from empirical considerations. W e

7 All courts of appeal have followed this principle. See, e.g., Dimarco v. Jackson Indus. Serv. Inc.,
21-530, p. 16 (La. App. 5 Cir. 6/15/22), 345 So. 3d 1072, 1087; Watson v. Hicks, 15-0046, p. 29
(La. App. 4 Cir. 5/27/15), 172 So. 3d 655, 676; Burtner v. Lafayette Par. Consol. Gov’t, 14-1180,
p. 9 (La. App. 3 Cir. 4/15/15), 176 So. 3d 1056, 1063; Falcon v. Louisiana Dep’t of Transp., 13-
1404, p. 16 (La. App. 1 Cir. 12/19/14), 168 So. 3d 476, 489; Nestor v. Louisiana State Univ. Health
Scis. Ctr. In Shreveport, 40,378, p. 7 (La. App. 2 Cir. 12/30/05), 917 So. 2d 1273, 1279.

8 See, e.g., Harris v. State, Dep’t of Transp. & Dev., 16-524, p. 18 (La. App. 5 Cir. 6/15/17), 223
So. 3d 695, 708; Harvey v. Traylor, 96-1321, p. 15 (La. App. 4 Cir. 2/5/97), 688 So. 2d 1324, 1333
(citing Reck); Abadie v. Metro. Life Ins. Co., 00-344, p. 92 (La. App. 5 Cir. 3/28/01), 784 So. 2d
46, 106; Page v. Gilbert, 598 So. 2d 1110 (La. App. 4 Cir. 1992).

9

therefore adopt this approach, and now hold that appellate courts must look at past
general damage awards for similar injuries in determining whether the trier of fac t
“abused its much discretion.”
Counsel for Mr. Pete suggests that a review of prior awards will “become not
only the overarching consideration but a rigid preordained scale, rather than
guideposts for context.” Counsel further argues that such a decision would “change
Louisiana law and make facile comparisons to prior awards the primary – if not
exclusive – consideration in every step for reviewing juries’ quantum
determinations.” We disagree.
To be clear, a review of prior awards is not the only factor to be considered in
evaluating whether a general damage award is an abuse of discretion; it is a starting
point. No two cases will be identical. The review of prior awards will simply serve
to illustrate and supply guidance in the determination of damages. Other factors are
to be considered as well. We explained in Youn that:
[r]easonable persons frequently disagree about the
measure of general damages in a particular case. 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.

Youn, 623 So. 2d at 1261. Youn is consistent with this Court’s earlier statement in
Reck, that “prior awards may serve as an aid in [the] determination [of excessiveness
or insufficiency] only where, on an articulated basis, the present award is shown to
be greatly disproportionate to past awards (not selected past awards, but the mass of
them) for (truly) ‘similar’ injuries.” Reck, 373 So. 2d at 501 (citing Coco v. Winston
Indus., Inc., 341 So. 2d 332, 334 (La.1976)).
We also recently reiterated that “ the adequacy or inadequacy of the award
should be determined by the facts or circumstances particular to the case under
consideration.” Malta v. Herb ert S. Hiller Corp., 21-00209, p. 32 (La. 10/10/21) ,

10

333 So. 3d 384, 408; see also, CD, 22-00961, p. 5, 366 So. 3d at 1249 (citing Coco,
341 So. 2d at 334) (“the question is whether the award of the trial court can be
reasonably supported by the evidence and justifiable inferenc es from the evidence
before it.”). Thus, to determine whether a trier of fact abused its discretion in its
award for general damages, an appellate court is to consider the particular facts and
circumstances of a case, in conjunction with a review of prior awards. This applies
to claims of excessiveness as well as insufficiency in an award.
We do not abandon the two-step analysis for the appellate review of a general
damage award but modify the analysis as follows. The question of whether the trier
of fact abused its discretion in assessing the amount of damages remains the initial
inquiry. However, to evaluate this issue, an appellate court is to include a
consideration of prior awards in similar cases, as well as the particular facts and
circumstances of the case under review. If an abuse of discretion is found, the court
is to then also consider those prior awards to determine “the highest or lowest point
which is reasonably within that discretion. ” Jones, 22-00841, p. 16, 359 So. 3d at
464.
With these principles in mind, we first address whether the ge neral damage
award in this case is an abuse of discretion; and, if so, determine the highest amount
of general damages reasonable under the evidence presented at trial. In each of these
tasks, we include a consideration of prior awards.
Importantly, we note that the court of appeal c ited no testimo ny or record
evidence on which it relied in affirming the general damage award. It simply found
that, “based on the record,” Ports America failed to demonstrate that the general
damage award “shock[ed] the conscience.” To determine whether an award is an
abuse of discretion or “can be reaso nably supported by the evidence,” some
discussion of the “ particular injuries and their effects upon this particular injured

11

person” is warranted.9 See, e.g., Miller v. LAMMICO, 07-1352, p. 29 (La. 1/16/08),
973 So. 2d 693, 712 (observing that the “Court of Appeal thoroughly reviewed and
found adequate support for each item of damages” in determining “that the jury did
not abuse its great discr etion in making its damage award; ” we found “ that the
articulated analysis employed by the Court of Appeal satisf[ied] the applicable
standard of review.”); see also, Coleman v. Deno, 01-1517, pp. 27-28 (La. 1/25/02),
813 So. 2d 303, 321 ( in affirming the trial court’s judgment on a general damage
award, “[t]he appellate court’s one paragraph analysis of this sizeable general
damage award was not sufficient to constitute a meaningful review of general
damages. Indeed, the appellate court failed to make even the initial inquiry required
for a meaningful review of a general damage award of ‘whether the particular effects
of the particular injuries to the part icular plaintiff are such that there has been an
abuse of the ‘much discretion’ vested in the judge or jury.”) (Citation omitted).
We further note that appellate courts “have a constitutional duty to review the
law and facts and thereafter render a judgment on quantum based on the merits,”
including “determining whether the jury has abused its ‘much discretion’ . . . in
awarding damages.” Carollo v. Wilson, 353 So. 2d 249, 252 (La. 1977) (citing La.
Const. art. V, 10 §(B), which provides, in pertinent part, that “appellate jurisdiction
of a court of appeal extends to law and facts.”).10 On this basis, and as instructed by
Carollo and Bouquet, we first examine the facts and circumstances of this case and

9 See Bolton v. Nagalla, 609 So. 2d 1134, 1139 (La. App. 2 Cir. 1992) (citing Reck) ( finding no
abuse of the trial court’s discretion in a general damage award, the court observed that “ [i]n [its]
review of general damage awards for excessiveness, the threshold inquiry is whether the trial
court’s award for the particular injuries and their effects upon this particular plaintiff is a cl ear
abuse of discretion, for reasons that can be articulated from the facts in the appellate record.”)
(Emphasis added).

10 See also, Coco, 341 So. 2d at 335 (“The Court of Appeal’s conclusion that this Court intends
for the appellate courts to continue to review quantum awards, is correct as is shown by all of the
cases previously cited, as well as by our recent decisions in Gonzales v. Xerox Corporation , 320
So.2d 163 (La. 1975) and Temple v. Liberty Mutual Ins. Co., 330 So. 2d 891 (La. 1976), wherein
we reaffirmed the constitutional authority of appellate courts to review and render quantum
awards.”).

12

the record “to determine whether the record clearly reveals that the jury abused its
discretion” in awarding general damages in the amount $9,800,000.00. Carollo, 353
So.2d at 252.11 Our review of the record, coupled with a study of prior awards in
truly similar cases, leads us to the conclusion that the jury abused its discretion in
this award.
The record reflects that much of the evidence at trial was directed at
determining where and to what extent Mr. Pete was exposed to asbestos while
working at the Port. The evidence as to damages was rather limited and consisted
of Mr. Pete’s testimony, that of his wife and his children, and general testimony
regarding the disease of mesothelioma . As to the dise ase process, the testimony
included that of Dr. Richard Cohen, an occupational medicine doctor, Dr. John
Maddox, a pathologist , and Dr. Arnold Brody, a former professor of pathology at
Tulane Medical School.12
The nature of the disease of mesothelioma was described m ostly in general
terms, as it pertains to patients in general. Dr. Cohen did, however, testify that,
although Mr. Pete had some health problems, none posed an “imminent cause of
death” and “the mesothelioma . . . is far and away the most likely future cause of his
death.” Dr. Cohen indicated that “these tumors are almost always fatal.” Dr.
Maddox, too, testified that mesothelioma is considered a “fatal disease” and, while
sometimes the progression of the disease can be delayed, “eventually it will kill the
patient.” Dr. Maddox further indicated that, as the disease progresses, “the involved

11 We are not persuaded by the suggestion by Mr. Pete’s counsel that Ports America essentially
waived the issue of quantum because it did not sufficiently address that issue in the court of appeal
insofar as “it made no reference to any damages-related evidence.” Ports of America clearly raised
the excessiveness of the award issue in the court of appeal and we consider it here, in accordance
with our grant of Ports America’s writ application.

12 Dr. Cohen was accepted by the trial court as an expert in preventive medicine, occupational
medicine, public health, toxicology and epidemiology, and occupational illness “including
asbestos [sic].” Dr. Maddox was accepted by the trial court as an expert in pathology and asbestos-
related pathology, while Dr. Brody was accepted as an expert in cell biology and “e xperimental
pathology as it related to asbestos and the diseases it causes.”

13

lung becomes nonfunctional.” Dr. Brody also described the manner by which
asbestos affects the lungs and causes mesothelioma. According to Dr. Brody, after
a latency period following exposure to asbestos (sometimes decades), some persons
will develop a mesothelial tumor. Eventually, th e tumor will grow and “keep
growing and cause fluid to build up in a person’s lung and start getting
uncomfortable, lots of pain.”
Much of Mr. Pete’s testimony was directed at issues concerning his exposure
to asbestos, al though he did provide testimony tending to support his general
damages claim. M r. Pete, 74 years old at the time of trial, testified that he was
diagnosed with mesothelioma after seeking treatment for a kidney stone. Testing at
that time (March 1, 2019) revealed pleural effusion . Mr. Pete underwent two
thoracenteses, which he described as procedures whereby a needle is inserted
between the ribs to drain fluid from the lungs. Despite the area having been
“deadened,” the procedure was painful. The results of the test were “suspicious of
tumor cells” and a later biopsy confirmed that Mr. Pete had mesothelioma.
Mr. Pete testified that it was devastating to receive the diagnosis. He was told
there is no cure, which was “depressing, heartbreaking,” but he was not informed as
to how long he might expect to live. He did not initially disclose this diagnosis to
his wife because of his depression. At trial, he indicated: “[i]t still has me depressed,
. . . not a suicidal thing, but it was depressing to know that I was supposedly in good
health and all of a sudden I got this diagnosis.” Mr. Pete worried about his wife and
children and how they would handle learning of the diagnosis and later, hi s death.
His resilient nature was clear when he stated: “I just decided, hey, we got to live with
it, so just let them [his family] know what’ s going on” and “sometimes I do get
depressed, but I keep on going and trying, I’m hoping things will get better.”
Mr. Pete underwent chemotherapy, and other forms of treatment, which were
“very rough on the body and mind.” The treatment left him tired, listless and with

14

shortness of breath. His fir st two treatments “just burned through both of [his]
arms.” Mr. Pete a lso ex perienced nausea, difficulty swallowing, joint pain and
weakness, shoulder pain, as well as difficulty sleeping. He ultimately had a port
placed in his chest for treatments so that he would not have to be “stuck” with a
needle each time. This allowed him to “receive [his] treatments without a lot of pain
now.” Mr. Pete indicated that he felt tired “a lot of the time” but that if he “got to
bed early and rest, [he’d] be good the next day,” although he had to “prop [himself]
up with pillows” and slept on the sofa.
As to how his condition impacted his life, Mr. Pete testified that he could no
longer do what he wants, or used, to do. He had to rely on his children to take him
places and do things for him and he could no longer treat his grandchildren to outings
as he once did. He did try to “get out each day to get out in the sun and rest.” His
biggest fear was that he “might go to sleep one day and not wake up.”
Mr. Pete’s children, Kenneth Pete, Tyrone Pete and Gail Pete testified about
their father’s condition and its effect on him. Kenneth testified that his father went
“through a lot,” including chest pain following the thoracenteses. Kenneth , a
physical the rapy assistant, would help his father but he remained functionally
limited. Kenneth indicated that, in the last year, he witnessed his father try to “give
it his all,” but the diagnosis took “a toll on his psyche.” He further testified:
Some days he’s up. Some days he’s down. Some days
he’s energetic. Some days he’s lethargic. So, I’ve just
noticed a change from the person that he was, the vigor
that he had, of course, the strength and mobility.

Tyrone noticed that his father seemed to be “withering away somewhat,” and
had shortness of breath and heavy coughing. Tyrone further testified as to his
father’s sleepless nights on the sofa, and an energy level that is “up and down.” He
also testified about his father’s depression, although his father tried to hide it. He
recalled his father being active, traveling and driving around, all of which has “kind

15

of been curtailed due to his diagnosis;” his father no longer even had the energy to
“so much as go get a newspaper and go to McDonald’s and get coffee.”
Gail testified as to her father’s weight loss, fatigue, rashes and a discoloration
to his skin. He had once been instrumental in helping with her children, but was no
longer able to pick them up or take them to school. Gail further testified that he r
father suffered difficulty breathing and seemed “down;” and, while he “trie [d] to
save face,” it affected him emotionally and had “taken a real toll on him physically.”
Mr. Pete’s wife, Rosalie, testified that Mr. Pete, who was always on the “go,”
and would frequently visit family in Louisiana, no longer had the same activity level,
as he tired easily, was in pain and no longer had energy. She indicated that he was
no longer able to “lend[] a helping hand” or do for others as he once was. Mrs. Pete
explained that Mr. Pete was sometimes unable to do anything for two to three days
after he had undergone chemotherapy treatments. Mrs. Pete further testified that she
saw fear, pain and discomfort in her husband’s eyes. She no longe r saw “a happy
Henry like [she] used to have. He’s a changed person.”
With this evidence in support of Mr. Pete’s general damage award, we now
review general damage awards in similar cases, keeping in mind, as we previously
noted, that no two cases are alike. We consider the following cases, as they are the
most recent and authoritative, in determining whether the award is so excessive as
to constitute an abuse of discretion.
Most recently, survival damages of $4,851,034.31 were awarded in Stauder
v. Shell Oil Co ., 22-0593 (La. App. 4 Cir. 2/15/23) , --- So.3d ----, 0 2023 WL
2009251. The case, however, focused on the wrongful death damages awarded to
the decedent’s two daughters and consequently, the damages testimony centered on
their relationship with their father. No appeal was taken of the award for survival
damages. Similarly , in Berry v. Anco Insulations , 52,671, p. 16 (La. App. 2 C ir.
5/22/19), 273 So. 3d 595, $3,000,000.00 in general damages was awarded to a

16

woman who contracted mesothelioma from her exposure to asbestos on the clothing
of her husband. There, too, the gene ral damage award was not raised on appeal.
These awards are, nevertheless, material to our consideration.
A recent comparable decision in which a general damage award of $4 million
to a former insulator was closely examined was Lege v. Union Carbide Corp., 20-
0252 (La. App. 4 Cir. 4/1/21), 365 So. 3d 617, 624, as clarified on reh’g, 20-0252
(La. App. 4 Cir. 5/12/21) , 366 So.3d 75, writ denied, 21-00792 (La. 10/1/21), 324
So. 3d 1054, and writ denied, 21-00775 (La. 10/1/21), 324 So. 3d 1059. In Lege ,
the decedent, like Mr. Pete, lived for two years following his diagnosis, 13 suffered
shortness of breath and had fluid drained from his lungs. He, too, underwent
chemotherapy which ultimately was unsuccessful. Mr. Lege was mostly confined
to his bed for the last four months of his life and, eventually, could neither eat nor
speak. His hospice nurse testified that
strong pain medications were used to control
his pain, which “never fully resolved, . . . , and. . . he suffered from delusions, which
necessitated his being given anti- psychotic medication.” Id., p. 25, 365 So. 3d at
636. His treating physician testified as to Mr. Lege’s difficulty breathing which
eventually led to lung failure. Witnesses testified as to his being a “tough man” who
struggled with his diagnosis and impending death and who suffered from depression.
Although he was in a “great deal of pain,” his hospice nurse testified, Mr. Lege only
sought medication as a last resort. Id. He was “quite distressed at not being able to
maintain his independence or continue the role of being head of his family.” Id.
An award of $1,450,000 in survival damages was made to a 57-year-old man
who developed mesothelioma and died three years later in Bagwell v. Union Carbide

13 We note that the court of appeal’s opinion contains some discrepancies as to the length of time
between diagnosis and death. It states: “Mr. Lege was then admitted to hospice care in December
2016, before he passed away in March 2017, two years after his diagnosis, ” Lege, p. 25, 365 So.
3d at 636, and “we note that Mr. Lege suffered for two years following his diagnosis ,” Id., p. 26,
365 So.3d at 637. The opinion elsewhere states: “Mr. Lege was diagnosed with mesothelioma in
March 2016. Mr. Lege died from mesothelioma in March 2017.” Id., p. 2, 365 So. 3d at 624.

17

Corp., 2019-0414 (La. App. 4 Cir. 12/11/19), 364 So. 3d 378, writ granted, decision
rev’d, 20-01242 (La. 1/12/21) 308 So. 3d 289.14 The evidence at trial reflected that
he:
. . . he suffered immensely from the time of his diagnosis.
During the three years leading up to his passing, his
breathing and overall condition worsened to the point that
he could no longer care for himself, eventually ending up
in hospice care. He testified about enduring numerous
painful and uncomfortable procedures including, but not
limited to: thoracic cavity incisions to have drain tubes
inserted in his right lung to drain over 3 liters of fluid from
his chest; several biopsies and surgeries on his thoracic
cavity; pleural effusion and fluid in the lungs causing lung
collapse; intravenous chemo treatments with chemicals
that burned his hand; chemo-t reatment cycles that led to
debilitating after-effects of oral lesions, nosebleeds, rectal
bleeding, rashes, and a super flu or super pneumonia like
sickness; shortness of breath requiring oxygen; and, an
unsuccessful cytoreductive surgery including thoracotomy
that resulted in the removal of a rib.

Id., pp. 19-20, 364 So. 3d at 389. The evidence also included his testimony that “he
was at the pinnacle of his career as an aerospace welder when he physically became
unable to work. Expecting to live into his eighties based upon family history, [his]
condition deteriorated to the point that his wife had to retire early to care for him and
he was later removed to hospice care prior to his death. ” Id., p. 20, 364 So. 3d at
389.
Other recent reported mesothelioma cases include: (1) Craft v. Ports Am.
Gulfport, Inc., 18-0814, p. 4 (La. App. 4 Cir. 5/8/19 ) 273 So. 3d 517, 522, writ
denied, 19-00940 (La. 10/15/19), 280 So.3d 587, where the court of appeal found
that an award of $1,600.000.00 was not “grossly inadequate;” the evidence reflected
that the plaintiff was no longer active and able to engage in activities, his
mesothelioma “significantly impacted his enjoyment of life,” and he underwent

14 The jury awarded only $750,000.00 in general damages and the court of appeal, finding the
award to be an abuse of discretion, increased the award to $1,450,000.00. On rehearing, the court
of appeal affirmed the trial court’s determination of liability; however, it concluded that the jury’s
verdict was internally inconsistent and granted a new trial. This Court reversed and reinstated the
court of appeal’s original judgment on the merits.

18

invasive surgeries and painful procedures; (2) Romano, 16-0954, p. 11, 221 So. 3d
at 183, where an award of $500,000.00 in general damages was increased by the
court of appeal to $1,500,000.00 ; there, the plaintiff endured numerous invasive
surgeries, had a catheter placed to periodically drain fluid from his lungs, underwent
a radical procedure to remove part of the lung lining, and two years later, he
continued to be in pain and “ha [d] to live with the knowledge that there is no cure
for mesothelioma;” (3) Williams v. Placid Oil Co., 2016-839, p. 20 (La. App. 3 Cir.
8/2/17), 224 So. 3d 1101, 1113 , writ denied, 17-1501 (La. 11/17/17), 229 So. 3d
929, affirming an award of $3,000,000 .00 in damages to a wife who developed
mesothelioma after being exposed to asbestos from her husband’s clothing; the
evidence included testimony that her “last few months were extremely painful as
tumors ravaged her body, breaking through her rib cage and encasing her heart” and
she went “from an energetic, healthy woman to someone bedridden and in such
excruciating pain that even Oxycontin provided no relief.”
15
Earlier decisions include: Oddo v. Asbestos Corp. Ltd., 14-0004, p. 5 (La.
App. 4 Cir. 8/20/15); 173 So. 3d 1192, 1199, affirming an award for damages and
medical expenses of $2,301,393.15 for an 81-year-old man who was diagnosed with
mesothelioma and died two months later; quantum was not raised on appeal; White
v. Entergy Gulf States Louisiana, L.L.C. , 13-1608, p. 9 (La. App. 1 Cir. 11/10/14),
167 So. 3d 764, 771, affirming an award of $3,800,000.00 where the decedent lived

15 In a recent federal court decision involving a mesothelioma claim, an award of $7,500,000.000
was found to be excessive and was reduced to $3,000,000.00. See Gaddy v. Taylor Seidenbach,
Inc., 446 F.Supp.3d 140, 162 (E.D. La. 2020), aff’d sub nom. Adams v. Ethyl Corp., 838 Fed.Appx.
822 (5th Cir.2020). We note, however, that a different review process is employed by this court:

Courts in the Fifth Circuit apply the “maximum recovery rule” to determine
whether an award is excessive. . . Under the maximum r ecovery rule, “the verdict
must be reduced to the maximum amount the jury could properly have awarded . .
. . ” However, courts “will decline to reduce damages where the amount awarded
is not disproportionate to at least one factually similar case from the relevant
jurisdiction.”

Id., 446 F.Supp.3d at 159. (Citations omitted).

19

less than six weeks after his mesothelioma diagnosis, prior to which he led an active
life; he experienced chest pain, shortness of breath, fatigue, coughing, and other
breathing problems and his physician testified that he was “miserable at the end of
his life as he lay dying of mesothelioma and ‘starving for breath’ due to the lack of
oxygen in his body, despite being on an oxygen machine.”16
There can be no doubt that Mr. Pete suffered physically and mentally because
of his mesothelioma and the record supports a substantial award of general damages.
Ports America even admits in its brief that “[u]ndoubtedly, this supports a large
damage award.” We agree with Ports America, however, tha t the award of almost
$10 million is “greatly disproportionate to the mass of past awards for truly similar
injuries.” Bouquet, 08-0309, p. 5, 979 So.2d at 459. We further find that the record
evidence of Mr. Pete’s injuries is not so dissimilar to these other cases to warrant an
award so greatly exceeding the range of these cases. We thus find that the jury
abused its discretion in its general damage award.
Having found that the trial court abused its much discretion, “damages should
[now] be set in accordance with Coco . . . 341 So. 2d [at] 335 . . . that is, lower[ed]
. . . to the highest point which is reasonably within the discretion afforded to the trial
court.” Malta, 21-00209, p. 35, 333 So. 3d at 409. Our goal is not to balance the
number of high and low awards and arbitrarily adjust the jury’s award to an average
of these awards but to determine the highest reasonable award. Considering the
record before us, coupled with prior awards for similar injuries, we find that the
highest award reasonably within the jury’s discretion for general damages in this

16 The parties point to a recent Fourth Circuit decision in which a general damage award of
$35,750,000.00 to a pipefitter/welder who developed mesothelioma was affirmed. Walker v. Anco
Insulations, Inc., 2022-0763, p. 4 (La. App. 4 Cir. 5/3/23), --- So.3d ----, 2023 WL 3237690. While
a writ application was filed in connection with that decision, it was later dismissed following
settlement. Accordingly, that matter is not before this Court and we decline to consider it among
our review of other cases as it is clearly an outlier. We also decline to consider district court
decisions cited by plaintiffs which were not appealed, or cases cited in the amici briefs from other
jurisdictions. We need not resort to damage s awarded in other states when there is relevant case
law in Louisiana.

20

matter is $5,000,000.00. We therefore redu ce the general damage award from
$9,800,000.00 to $5,000,000.00 and, together with the past medical expenses, render
judgment in the sum of $5,551,020.70.
DECREE
Based on the foregoing, the judgment in this matter is amended to reduce the
general damage award from $9,800,000.00 to $5,000,000.00, and enter judgment in
the total amount of $5,551,020.70. In all other respects, the judgment is affirmed.
AFFIRMED AS AMENDED.

S
UPREME COURT OF LOUISIANA
No.
2023-C-00170
HEN
RY PETE
VS.
BOLAND MARINE AND MANUFACTURING COMPANY, LLC, ET AL.
On
Writ of Certiorari to the Court of Appeal,
Fourth Circuit, Parish of Orleans Civil
Cr
ichton, J., concurs in part, dissents in part, and assigns reasons.
I
agree with the majority’s reasoning, analysis, and the determination that the
trial court abused its discretion in this matter. I disagree solely with the majority’s
finding that the highest award reasonably within the jury’s discretion for general
damages in this matter is $5,000,000. In my view, the highest award reasonably
within the jury’s discretion in this matter is $4,000,000. See Lege v. Union Carbide
Corp., 20-0252 (La. App. 4 Cir. 4/1/21), 365 So. 3d 617, 624, as clarified on reh’g,
20-0252 (La. App. 4 Cir. 5/12/21), 366 So. 3d 75 (awarding $4,000,000 in general
damages with much more significant record evidence to support high general
damages award).

SUPREME COURT OF LOUISIANA
No. 2023-C-00170
HENRY PETE
VS.
BOLAND MARINE AND MANUFACTURING COMPANY, LLC, ET AL.
On Writ of Certiorari to the Court of Appeal, Fourth Circuit,
Parish of Orleans Civil
GRIFFIN, J., concurs in part, dissents in part and assigns reasons.
I concur in part with the majority’s decision that, to introduce a measure of
objectivity, relevant prior awards may serve as a factor in determining the
reasonableness of a general damages a ward. I write separately , however, to
emphasize the overriding factor must always be the individualized circumstances of
the particular case lest the guideposts provided by prior awards devolve into the
substitution of an individual’s unique injuries and suffering in favor of a spreadsheet
of numbers. See Coco v. Winston, 341 So.2d 332, 335 (La. 1976) (admonishing the
overemphasis on prior awards and observing that “whether two cases are so similar
as to produce like quantum judgments is hardly discernible by gleaning the facts of
the comparable decision from simply a written opinion of an appellate tribunal”). I
would further overtly acknowl edge the reality that general damages awards will
fluctuate and increase over time given changes in economic conditions, including
inflation. Walker v. Anco Insulations, Inc., 22-0763, p. 8 (La.App. 4 Cir. 5/3/23), --
- So.3d ----, 2023 WL 3237690 (citing Coco, 341 So.2d at 335-36).
In light of the above considerations, I respectfully dissent in part with the
majority’s finding that the jury abused its discretion and would affirm the amount
awarded. Although the majority extensively surveys the record evidence, appellate
jurists must be mindful that testimony related to general damages invariably contains

an emotional component best evaluated by a jury. See Rosell v. ESCO, 549 So.2d
840, 844 (La. 1989) (“only the factfinder can be aware of the variations in demeanor
and tone of voice that bear so heavily on the listener’s understanding and belief in
what is said”).