Legal Update: The Role of the Courts in Excessive Jury Awards (Pete v. Boland)

November 13, 2023

Louisiana courts have long recognized that a jury has great discretion in awarding general damages. However, the discretion afforded to the trier of fact in awarding general damages is not unfettered.[1]

As recently noted by the Supreme Court, 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.”[2]

A general damage award may be modified; however, the role of the appellate court is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court in making the award. [3]

Historically, courts have employed a two-step analysis in evaluating general damage awards. As enunciated in Reck v. Stevens, “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 ‘much discretion,” 373 So. 2d 498, 501 (La. 1979).[4]

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 determining what would be an appropriate award for the present case.” Id.

This has proven itself impractical, so much that the Louisiana Supreme Court has recognized that, “[this] standard for appellate review for abuse of discretion in the award of general damages is difficult to express and is necessarily non-specific.”[5]

Thus, in attempt to incorporate some measure of objectivity and create a reasonably predictable standard of comparison, the Supreme Court recently modified this analysis in Pete v. Boland Marine and Manufacturing Company, LLC, holding that an appellate court must consider relevant prior general damage awards as guidance to determine whether a trier of fact’s award is an abuse of discretion. Pete v. Boland Marine & Mfg. Co., LLC, 2023-00170 (La. 10/20/23).

Under the modified analysis, 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.”  Pete v. Boland Marine and Manufacturing Company, LLC, citing Jones, 22-00841, p. 16, 359 So. 3d at 464.

The court further noted held that to determine whether an award is an abuse of discretion or “can be reasonably supported by the evidence,” some discussion of the “particular injuries and their effects upon this particular injured person” is warranted.[6] Thus, courts should look to the evidentiary record, examining all facts and circumstances of the case, coupled with a study of prior awards in truly similar cases.

In Pete v. Boland, Plaintiff was initially awarded $10.5 million in damages after being diagnosed with malignant mesothelioma, caused by exposure to asbestos when he worked at the Port of New Orleans as a longshoreman from 1964-1968.

Through application of the previously modified analysis, the court held that the jury abused its discretion in awarding general damages to the Plaintiff in the amount of $9,800,000 and reduced it down to $5,000,000 after having taken into consideration other cases[7]^,[8] involving other insulators suffering similar injuries. The court noted that 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, which mainly focused on the emotional toll the diagnosis had taken on the Plaintiff.

In so doing, the court emphasized the fact-centered nature of the inquiry, noting that record of evidence demonstrated that Plaintiff’s injuries were not so dissimilar to the other cases as to warrant an award so greatly disproportionate to the mass of past awards for truly similar injuries.

Justice Griffin, concurring in part, and dissenting in part, wrote to emphasize that the overriding factor in determining the reasonableness of general damages award 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, “further “adding that testimony related to general damages invariably contains an emotional component best evaluated by a jury.

Based on this result, a careful consideration of the unique facts and circumstances of each case, namely, focus on the particular injuries and their effects on the particular injured person, in conjunction with a mindful review of prior awards in truly similar cases can provide realistic guidance as to potential damage exposure over the course of litigation.

[1] McFarland v. Illinois Cent. R. Co., 127 So. 2d 183, 187 (La. 1961). (damage awards are always subject to review by an appellate court).

[2] Carollo v. Wilson, 353 So. 2d 249, 252 (La. 1977) See also La. Const. art. V, 10 §(B), which provides, in pertinent part, that “appellate jurisdiction of a court of appeal extends to law and facts.”)

[3] See Youn v. Mar. Overseas Corp, 623 So. 2d at 1260; see also, Guillory v. Lee, 09-0075, pp. 14-15 (La. 6/26/09), 16 So. 3d 1104, 1117.

[4] 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.

[5] 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))

[6] See, e.g., Miller v. LAMMICO, 07-1352, p. 29 (La. 1/16/08), 973 So. 2d 693, 712 (observing that there was adequate support for each item of damages – jury did not abuse its great discretion in making its damage award); 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).

[7] 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.

[8] 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 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

Duplass Attorneys Philip Watson and Linda Adams Secure Complete Defense Verdict in 15th JDC, Lafayette, Louisiana on Behalf of Developer and Contractor

October 24th, 2023

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Plaintiffs alleged that defendants’ drainage trench cut the roots of Plaintiffs’ water oaks, thereby causing the trees to become unstable and necessitating their removal and replacement. Defendants, who were the developer and the developer’s dirt work contractor, took precautions to move the drainage line away from the boundary line where the trees stood, used smaller equipment to cut fewer roots, and explored alternatives to minimize the impact of the trench. Plaintiffs asked for over $300,000 for tree damage, alleged mental anguish, marital discord, and loss of enjoyment of property. Following a short deliberation, the jury found that the defendants exercised reasonable care, and they returned a verdict in defendants’ favor.

Duplass Attorneys Andrew Weinstock and Joe McAloon Secure Jury Trial Verdict in St. John the Baptist Parish on Behalf of Commercial Auto Insurer

October 24th, 2023

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Duplass Attorneys Andrew Weinstock and Joe McAloon recently secured a jury trial verdict in St. John the Baptist Parish on behalf of a commercial auto insurer and its insured. Plaintiff’s counsel asked the jury for more than $820,000 in an uncontested liability, rear-end collision case. The net award was $5,460 after the jury determined that pre-existing injuries were only aggravated 12%.

Andrew Weinstock, who led the trial team, has over 40 years of experience defending insurers and self-insureds. He has successfully tried over 100 single and multi-defendant cases involving #productliability, #constructiondefect, mTBI, #erisa, #generalliability, #toxictort, #asbestos, and catastrophic #trucking claims and is the acting president of the Louisiana chapter of the American Board of Trial Advocates (National ABOTA).

More details on the case can be found here.

Yamaha Motor Corporation Co-Counsel/Duplass Attorneys Joseph Glass and Laura Pousson Secure Unanimous Defense Verdict in Two-Week, Nine-Figure Product Liability Jury Trial in Lake Charles, LA Federal Court

October 20th, 2023

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After 8 days of trial and 30 minutes of deliberation, a federal jury in Lake Charles, Louisiana denied Plaintiff’s jury request of close to $130M in damages and agreed that Yamaha Motor Corporation, U.S.A. was not responsible for a boat explosion and fire that injured three men. Details on the case can be found here.

In addition to Joseph Glass and Laura Pousson, Yamaha was also represented by Frank Hosley and Don Blackwell of Bowman and Brooke, Orlando, FL; and Thomas M. Flanagan, Flanagan Partners LLP, New Orleans, LA.