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Brunet v. Avondale Industries12/5/2000
ard of general damages. 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.
The trial court determined that Brunet suffered for six months prior to his death. He was seventy-three (73) years old at the time of his passing and had suffered from prior heart conditions. Considering his prior health conditions as well as his advanced age, and taking into account the amount of time that he actually suffered from the lung cancer, I do not believe that the trial court abused its vast discretion in its award of general damages to Brunet. The wrongful death claim has not been made a part of this appeal and was not taken into consideration by the jury in its award of damages. The award of $250,000 in general damages is not abusively low and should be affirmed.
In the third assignment of error, Brunet alleges that the trial court erred by admitting into evidence deposition testimony of witnesses taken in previous litigations that Brunet was not given notice of, did not attend, and was not adequately represented at the taking of. Brunet alleges that the deposition testimonies of Edmond Torbonne, Willis Hazard, John Thomas, Richard Shannon and Abdon Perque prejudiced his case and led to the jury finding various product manufacturers and manufacturer officers at fault.
LSA-C.C.P. art. 1450(A)(3)(a) states in part:
"A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3)(a) The deposition of a witness, whether or not a party may be used by any party for any purpose if the court finds that the witness is unavailable.
Brunet alleges that in accordance with this article, the deposition testimony of the above listed witnesses could not be used in this trial because plaintiff's counsel was not present at or given notice of any of these depositions.
Avondale alleges that Brunet had notice that the deposition testimonies were to be used at trial and failed to object to them in a timely manner. Furthermore, Avondale alleges these witnesses are either dead, or live beyond the subpoena power of the trial court and were unavailable to them. Each of these witnesses testified to the potential liability of the various manufacturers in relation to Avondale and none of the testimony implicating any wrongdoing on the part of Brunet.
Avondale alleges that LSA-C.E. art. 804(B)(1) and (6) are pertinent to the admissibility of these deposition testimonies. The article states in part:
"B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(6) Other exceptions. In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the pa
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Louisiana Personal Injury Attorneys
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