Hebert v. ANCO Insulation7/31/2002
osure to asbestos. Thus, according to Balzer, at the time Mr. Hebert worked at the Dow Plaquemine facility, there was no information available to indicate a risk of contracting mesothelioma from mere bystander exposure.
In sum, based on the record on appeal, the jury was presented with evidence that Dow's knowledge at the time of Mr. Hebert's exposure was limited to knowledge of the risk of lung injury (i.e., asbestosis) above certain exposure levels and that Dow attempted to protect against such risks by attempting to limit exposure at its facilities below those levels. Thus, considering the record as a whole, and the conflicting evidence on the issue of knowledge, I would conclude that there was a reasonable basis in the record to support the jury's obvious determination that Dow did not know nor should it have known of the unreasonable risk of harm presented herein. Accordingly, after careful review of the extensive, conflicting testimony on this issue, I would be unable to conclude that this finding was manifestly erroneous.
FAULT OF THE SETTLING DEFENDANTS (Plaintiffs' Assignment of Error Number 4; Dow's Assignment of Error Number 3)
In rendering its verdict, with regard to the settling defendants, the jury made specific findings as to the fault of each of those defendants. Dow asserts on appeal that the jury erred in failing to find BASF and Georgia Pacific strictly liable as premises owners. Plaintiffs, on the other hand, argue that the jury erred in finding Kaiser Aluminum Corporation, Garlock, Inc., Johns-Manville Corporation, Armstrong World Industries, Inc. and Flexitallic Gasket Company, Inc. at fault in causing Mr. Hebert's mesothelioma.
A plaintiff's release of a joint tortfeasor reduces the amount recoverable against the remaining tortfeasors by the amount of the virile share (pro rata share) of the one released. Raley v. Carter, 412 So. 2d 1045, 1046 (La. 1982). Nonetheless, the remaining tortfeasor is only entitled to a reduction of the award if the parties released are proven to be joint tortfeasors. Thus, a pre-trial settlement shifts the burden of proving liability on the part of the released tortfeasors from the plaintiff to the remaining defendant or defendants. Raley, 412 So. 2d at 1047.
When evaluating liability in an asbestos claim, traditional theories of tort liability (e.g., negligence, strict premises liability and products liability) apply, which require proof of causation. Emery v. Owens-Corporation, 2000-2144, p. 12 (La. App. 1st Cir. 11/9/01), 813 So. 2d 441, 452, writ denied, 2002-0635 (La. 5/10/02), 815 So. 2d 842; Summerville, 95-2224 at p. 3, 676 So. 2d at 240. Asbestos cases typically involve multiple defendants, and courts have evaluated the cause-in-fact element as to multiple parties, in that, often, more than one defendant substantially contributed to the plaintiff's injury. Quick v. Murphy Oil Co., 93-2267, p. 8 (La. App. 4th Cir. 9/20/94), 643 So. 2d 1291, 1294, writ denied, (La. 1/6/95), 648 So. 2d 923; Emery, 2000-2144 at p. 12, 813 So. 2d at 452. Where two or more causes are present, the cause-in-fact element is established if the defendant's conduct or fault was a "substantial factor" in bringing about the plaintiff's harm. Quick, p. 10, 643 So. 2d at 1295. Whether a party caused another's injuries is a question of fact subject to the manifest error rule. Emery, 2000-2144 at p. 13, 813 So. 2d at 452. Thus, if the jury's findings are reasonable in light of the entire record and are not clearly wrong or manifestly erroneous, they must be affirmed on appeal. Stobart v. State, Department of Transportation and Development, 617 So. 2d 880, 881-882 (La. 1993). Accordingly, as a reviewing court, if there is a reasonab
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