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Hebert v. ANCO Insulation7/31/2002
oration. Additionally, the jury concluded that six manufacturers with whom plaintiffs had settled prior to trial, Garlock Corporation, Johns-Manville Corporation, Pittsburgh Corning Corporation, Owens-Corning Fiberglas Corporation, Armstrong World Industries, Inc. and Flexitallic Gasket Company, Inc., had introduced into commerce unreasonably dangerous products to which Mr. Hebert had been exposed and that these products were substantial contributing causes of his disease. The jury then awarded Mr. Hebert $2,000,000.00 in general damages and $500,000.00 in past and future medical expenses.
In entering judgment in accordance with the jury verdict, the trial court cast Dow with a one-eighth virile share of the verdict, based on Dow's strict liability and the fault of seven of the settling defendants. Thus, judgment was rendered against Dow in the amount of $312,500.00.
Both Dow and Mr. Hebert filed motions for judgment notwithstanding the verdict. While Mr. Hebert's motion was denied in its entirety, Dow's motion was granted in part, on the issue of the award of medical expenses. The trial court then rendered an amended judgment, reducing the total amount awarded for medical expenses from $500,000.00 to $125,000.00. Thus, the amended judgment cast Dow for damages in the amount of $265,625.00, its virile share of the total amended award, plus interest and costs.
Dow suspensively appealed from the amended judgment on the merits, assigning the following as error:
(1) The trial court erred in its application of strict liability to the facts and circumstances of Mr. Hebert's claim against Dow by failing to direct a verdict in favor of Dow on the strict liability claim and then erroneously instructing the jury on the law of strict liability under La. C.C. art. 2317.
(2) The trial court committed legal error by failing to hold that plaintiffs' settlement with the manufacturers of asbestos-containing products to which Mr. Hebert had been exposed on Dow's premises extinguished Dow's secondary or derivative strict liability as premises owner.
(3) The jury erred in failing to allocate any fault to the settling defendants, BASF and Georgia Pacific, because Mr. Hebert's own admissions established that he was exposed to asbestos-containing products on the premises owned by these settling defendants, plaintiffs' own experts opined that every exposure to asbestos-containing products was a substantial contributing cause of Mr. Hebert's disease, and these settling defendants had care or custody of the same unreasonably dangerous thing that formed the basis of Dow's strict liability.
(4) The jury's general damage award of $2,000,000.00 was excessive as a matter of law.
Thereafter, plaintiffs appealed devolutively from three judgments: the judgment granting the exceptions of lack of personal jurisdiction and dismissing plaintiffs' claims against Gordon, Holder and Hoyle; the judgment granting Dow's motion for partial summary judgment and dismissing Mrs. Hebert's loss of consortium claim; and the amended judgment on the merits. They have set forth the following assignments of error:
(1) The trial court erred in granting the exceptions of lack of personal jurisdiction filed on behalf of defendants, Harold Gordon, Benjamin Holder and Harold Hoyle.
(2) The trial court erred in granting the motion for partial summary judgment filed on behalf of Dow and dismissing Mrs. Hebert's claim for loss of consortium.
(3) The jury erred in failing to find that Dow was negligent in causing Mr. Hebert's mesothelioma.
(4) The jury erred in finding Kaiser Aluminum Corporation, Garlock Corporation
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