ELRAY AND BRENDA LEGE * NO. 2020-CA-0252
VERSUS * COURT OF APPEAL UNION CARBIDE * CORPORATION FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-05598, DIVISION “A” Honorable Ellen M. Hazeur, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Regina Bartholomew-Woods, Judge Paula A. Brown, Judge Dale N. Atkins)
ON APPLICATION FOR REHEARING
Lewis O. Unglesby Lance C. Unglesby Jordan L. Bollinger Jamie F. Gontarek Christopher J. Murrell UNGLESBY LAW FIRM 246 Napoleon Street Baton Rouge, LA 70802
Jeffrey T. Gaughan Wells T. Watson BAGGETT MCCALL BURGESS WATSON & GAUGHAN 3006 Country Club Road Lake Charles, LA 70605
COUNSEL FOR PLAINTIFFS/APPELLEES
Brian P. Marcelle Darryl J. Foster L. David Adams David E. Redmann, Jr. BRADLEY MURCHISON KELLY & SHEA LLC 1100 Poydras Street, Suite 2700 New Orleans, LA 70163 Michael S. French (pro hac vice) Tiffany N. Watkins (pro hac vice) WARGO & FRENCH, LLP 999 Peachtree Street, NE, 26th Floor Atlanta, GA 30309
H. Alston Johnson, III Kevin W. Welsh PHELPS DUNBAR LLP 400 Convention Street II City Plaza, Suite 1100 P. O. Box 4412 Baton Rouge, LA 70821-4412
COUNSEL FOR DEFENDANT/APPELLANT
APPLICATION FOR REHEARING GRANTED FOR CLARIFICATION; ORIGINAL OPINION AFFIRMED AS CLARIFIED MAY 12, 2021 DNA PAB In this mesothelioma and wrongful death action, on April 1, 2021, this RBW Court amended, and affirmed as amended, the trial court’s November 5, 2019
judgment, which found Appellant, Birla Carbon USA, Inc. (“Birla”), fifty-one
percent at fault for the death of Appellee, Elray Lege, from mesothelioma, and
which awarded survival and wrongful death damages to Mr. Lege and his
surviving wife and children. On April 14, 2021, Birla timely filed an application
for rehearing, contending that this Court should reconsider two aspects of our
Opinion: (1) the conclusion that Birla is not entitled to a reduction in the survival
action award for the virile share of Orleans Parish defendant Taylor-Seidenbach,
with whom the Leges settled prior to trial; and (2) the decision to affirm the trial
court’s $4 million survival damage award to Mr. Lege in light of this Court’s
recent decision in Bagwell v. Union Carbide Corp., 2019-0414, 2020 WL 5651699
(La. App. 4 Cir. 9/23/20), writ granted, judgment rev’d, 2020-01242 (La. 1/12/21),
308 So.3d 289. We grant rehearing for the purposes of clarifying this Court’s April
1, 2021 Opinion on these two issues.
1 Virile Share Assignment for Taylor-Seidenbach
In our original Opinion, we found that, although the trial court’s pre-trial
judgment denying Birla’s declinatory exception of improper venue was res
judicata, Birla still had the burden of proving Taylor-Seidenbach’s fault in order to
have the survival damage award reduced for Taylor-Seidenbach’s virile share. We
noted that Birla produced no evidence that Taylor-Seidenbach’s asbestos-
containing products were a substantial factor in causing Mr. Lege’s mesothelioma.
Thus, we reasoned that Birla had failed to meet its burden, and the trial court did
not err in refusing to assign Taylor-Seidenbach a virile share of the damage award.
We based our decision on the comparative fault principles, which provide that the
virile share of the liability of a co-obligor is proportionate to the percentage of fault
the trial court determined should be allocated to the obligor, based on the evidence
presented at trial.
In its application for rehearing, Birla contends this decision was in error, as
comparative fault is inapplicable to this case. Rather, because Mr. Lege’s exposure
to asbestos occurred in the late 1970’s, prior to when comparative fault law came
into effect in Louisiana in 1980, pre-comparative fault or virile share principles
apply here. Birla cites the Louisiana Supreme Court’s decision in Cole v. Celotex
Corp., 599 So.2d 1058 (La. 1992).
At the outset, we first note that Birla’s arguments on its entitlement to have
Taylor-Seidenbach’s virile share counted, both before the trial court and this Court,
centered not on the applicability of virile share principles, but on its arguments that
2 the trial court’s judgment on Birla’s declinatory exception of improper venue was
res judicata. Birla’s arguments regarding virile share principles were not raised
until its application for rehearing.
“It is well settled that appellate courts will not consider issues raised for the
first time, which are not pleaded in the court below and which the district court has
not addressed.” Chaumont v. City of New Orleans, 2020-0017, p. 4 (La. App. 4
Cir. 6/3/20), 302 So.3d 39, 45-46 (citing Council of City of New Orleans v.
Washington, 2009-1067, pp. 3-4 (La. 5/29/09), 9 So.3d 854, 856). Additionally,
appellate courts “generally do not grant rehearings to consider issues raised for the
first time in the application for rehearing.” Rodrigue v. LeGros, 563 So.2d 248,
257 (La. 1990) (citing Rayner v. Rayner, 216 La. 1099, 45 So.2d 637 (1950); State
ex rel. Murtagh v. Department of City Civil Serv., 215 La. 1007, 42 So.2d 65
(1949)).
Nevertheless, we also note that Birla is correct: pre-comparative fault law is
applicable to Mr. Lege’s survival action. See Cole, 599 So.2d at 1068 (“[W]e find
that substantial injury producing exposures giving rise to plaintiffs’ claims
occurred before the August 1, 1980, effective date of [the law on comparative
fault], and, therefore, affirm the Third Circuit’s holding that the provisions of the
Louisiana Comparative Fault Law are inapplicable and that this case is governed
by pre-Act law—contributory negligence and virile share principles.”).
Despite the applicability of pre-comparative fault law and virile share
principles, our decision is the same. The trial court’s judgment on Birla’s exception
3 of improper venue was not a finding that Taylor-Seidenbach was at fault; rather it
was a judgment that venue remained proper in Orleans Parish. The judgment did
not relieve Birla of the burden of proving Taylor-Seidebach’s fault. Thus, in order
to claim a credit for the virile share of Taylor-Seidenbach, Birla had the burden of
proving Taylor-Seidenbach’s fault. See, e.g., Williams v. Placid Oil Co., 2016-839,
p. 12 (La. App. 3 Cir. 8/2/17), 224 So.3d 1101, 1108 (where the appellate court
affirmed the trial court’s ruling that virile share principles were applicable to the
plaintiff’s survival action, but that the non-settling defendant at trial was not
entitled to a virile share offset or credit for the alleged liability of other parties
where the non-settling defendant failed to provide any evidence of the other
parties’ fault); Raley v. Carter, 412 So.2d 1045, 1046 (La.1982) (“[T]he
negligence of parties released from the suit remains an issue in the trial because the
remaining tortfeasor is only entitled to a reduction of the award if the parties
released are proven to be joint tortfeasors.”).
Further, Birla pleaded to the trial court that it bore the burden of proving
Taylor-Seidenbach’s fault. Indeed, the record reflects that, in its own pre-trial
motion in limine filed on September 10, 2019, after stating that virile share
principles were applicable to this case, Birla admitted that it had a duty to establish
the fault of the released and/or settled entities at trial in order to claim credits for
the shares of the settling tortfeasors.
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ELRAY AND BRENDA LEGE * NO. 2020-CA-0252
VERSUS * COURT OF APPEAL UNION CARBIDE * CORPORATION FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-05598, DIVISION “A” Honorable Ellen M. Hazeur, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Regina Bartholomew-Woods, Judge Paula A. Brown, Judge Dale N. Atkins)
ON APPLICATION FOR REHEARING
Lewis O. Unglesby Lance C. Unglesby Jordan L. Bollinger Jamie F. Gontarek Christopher J. Murrell UNGLESBY LAW FIRM 246 Napoleon Street Baton Rouge, LA 70802
Jeffrey T. Gaughan Wells T. Watson BAGGETT MCCALL BURGESS WATSON & GAUGHAN 3006 Country Club Road Lake Charles, LA 70605
COUNSEL FOR PLAINTIFFS/APPELLEES
Brian P. Marcelle Darryl J. Foster L. David Adams David E. Redmann, Jr. BRADLEY MURCHISON KELLY & SHEA LLC 1100 Poydras Street, Suite 2700 New Orleans, LA 70163 Michael S. French (pro hac vice) Tiffany N. Watkins (pro hac vice) WARGO & FRENCH, LLP 999 Peachtree Street, NE, 26th Floor Atlanta, GA 30309
H. Alston Johnson, III Kevin W. Welsh PHELPS DUNBAR LLP 400 Convention Street II City Plaza, Suite 1100 P. O. Box 4412 Baton Rouge, LA 70821-4412
COUNSEL FOR DEFENDANT/APPELLANT
APPLICATION FOR REHEARING GRANTED FOR CLARIFICATION; ORIGINAL OPINION AFFIRMED AS CLARIFIED MAY 12, 2021 DNA PAB In this mesothelioma and wrongful death action, on April 1, 2021, this RBW Court amended, and affirmed as amended, the trial court’s November 5, 2019
judgment, which found Appellant, Birla Carbon USA, Inc. (“Birla”), fifty-one
percent at fault for the death of Appellee, Elray Lege, from mesothelioma, and
which awarded survival and wrongful death damages to Mr. Lege and his
surviving wife and children. On April 14, 2021, Birla timely filed an application
for rehearing, contending that this Court should reconsider two aspects of our
Opinion: (1) the conclusion that Birla is not entitled to a reduction in the survival
action award for the virile share of Orleans Parish defendant Taylor-Seidenbach,
with whom the Leges settled prior to trial; and (2) the decision to affirm the trial
court’s $4 million survival damage award to Mr. Lege in light of this Court’s
recent decision in Bagwell v. Union Carbide Corp., 2019-0414, 2020 WL 5651699
(La. App. 4 Cir. 9/23/20), writ granted, judgment rev’d, 2020-01242 (La. 1/12/21),
308 So.3d 289. We grant rehearing for the purposes of clarifying this Court’s April
1, 2021 Opinion on these two issues.
1 Virile Share Assignment for Taylor-Seidenbach
In our original Opinion, we found that, although the trial court’s pre-trial
judgment denying Birla’s declinatory exception of improper venue was res
judicata, Birla still had the burden of proving Taylor-Seidenbach’s fault in order to
have the survival damage award reduced for Taylor-Seidenbach’s virile share. We
noted that Birla produced no evidence that Taylor-Seidenbach’s asbestos-
containing products were a substantial factor in causing Mr. Lege’s mesothelioma.
Thus, we reasoned that Birla had failed to meet its burden, and the trial court did
not err in refusing to assign Taylor-Seidenbach a virile share of the damage award.
We based our decision on the comparative fault principles, which provide that the
virile share of the liability of a co-obligor is proportionate to the percentage of fault
the trial court determined should be allocated to the obligor, based on the evidence
presented at trial.
In its application for rehearing, Birla contends this decision was in error, as
comparative fault is inapplicable to this case. Rather, because Mr. Lege’s exposure
to asbestos occurred in the late 1970’s, prior to when comparative fault law came
into effect in Louisiana in 1980, pre-comparative fault or virile share principles
apply here. Birla cites the Louisiana Supreme Court’s decision in Cole v. Celotex
Corp., 599 So.2d 1058 (La. 1992).
At the outset, we first note that Birla’s arguments on its entitlement to have
Taylor-Seidenbach’s virile share counted, both before the trial court and this Court,
centered not on the applicability of virile share principles, but on its arguments that
2 the trial court’s judgment on Birla’s declinatory exception of improper venue was
res judicata. Birla’s arguments regarding virile share principles were not raised
until its application for rehearing.
“It is well settled that appellate courts will not consider issues raised for the
first time, which are not pleaded in the court below and which the district court has
not addressed.” Chaumont v. City of New Orleans, 2020-0017, p. 4 (La. App. 4
Cir. 6/3/20), 302 So.3d 39, 45-46 (citing Council of City of New Orleans v.
Washington, 2009-1067, pp. 3-4 (La. 5/29/09), 9 So.3d 854, 856). Additionally,
appellate courts “generally do not grant rehearings to consider issues raised for the
first time in the application for rehearing.” Rodrigue v. LeGros, 563 So.2d 248,
257 (La. 1990) (citing Rayner v. Rayner, 216 La. 1099, 45 So.2d 637 (1950); State
ex rel. Murtagh v. Department of City Civil Serv., 215 La. 1007, 42 So.2d 65
(1949)).
Nevertheless, we also note that Birla is correct: pre-comparative fault law is
applicable to Mr. Lege’s survival action. See Cole, 599 So.2d at 1068 (“[W]e find
that substantial injury producing exposures giving rise to plaintiffs’ claims
occurred before the August 1, 1980, effective date of [the law on comparative
fault], and, therefore, affirm the Third Circuit’s holding that the provisions of the
Louisiana Comparative Fault Law are inapplicable and that this case is governed
by pre-Act law—contributory negligence and virile share principles.”).
Despite the applicability of pre-comparative fault law and virile share
principles, our decision is the same. The trial court’s judgment on Birla’s exception
3 of improper venue was not a finding that Taylor-Seidenbach was at fault; rather it
was a judgment that venue remained proper in Orleans Parish. The judgment did
not relieve Birla of the burden of proving Taylor-Seidebach’s fault. Thus, in order
to claim a credit for the virile share of Taylor-Seidenbach, Birla had the burden of
proving Taylor-Seidenbach’s fault. See, e.g., Williams v. Placid Oil Co., 2016-839,
p. 12 (La. App. 3 Cir. 8/2/17), 224 So.3d 1101, 1108 (where the appellate court
affirmed the trial court’s ruling that virile share principles were applicable to the
plaintiff’s survival action, but that the non-settling defendant at trial was not
entitled to a virile share offset or credit for the alleged liability of other parties
where the non-settling defendant failed to provide any evidence of the other
parties’ fault); Raley v. Carter, 412 So.2d 1045, 1046 (La.1982) (“[T]he
negligence of parties released from the suit remains an issue in the trial because the
remaining tortfeasor is only entitled to a reduction of the award if the parties
released are proven to be joint tortfeasors.”).
Further, Birla pleaded to the trial court that it bore the burden of proving
Taylor-Seidenbach’s fault. Indeed, the record reflects that, in its own pre-trial
motion in limine filed on September 10, 2019, after stating that virile share
principles were applicable to this case, Birla admitted that it had a duty to establish
the fault of the released and/or settled entities at trial in order to claim credits for
the shares of the settling tortfeasors. As we noted in our original Opinion, Taylor-
Seidenbach is hardly mentioned in the trial record at all. Birla failed to meet its
burden to establish Taylor-Seidenbach’s fault in order to claim a credit for its virile
4 share. Thus, we clarify our Opinion to state that virile shares principles apply here,
but that Birla is not entitled to a credit for Taylor-Seidenbach’s virile share.
Survival Damage Award
Birla also contends that this Court’s affirmation of the survival damage
award to Mr. Lege ignores this Court’s recent decision in Bagwell, arguing that the
plaintiff in Bagwell had a longer period of suffering than Mr. Lege and yet Mr.
Lege’s award was higher than the plaintiff in Bagwell. Birla contends that Bagwell
establishes that Mr. Lege’s survival damage award is excessive.
In its arguments to this Court on appeal, Birla cited this Court’s rehearing
Opinion in Bagwell on rehearing in support of its arguments regarding the jury
instructions, but Birla did not cite Bagwell for its arguments that the survival
damage award to Mr. Lege is excessive. Nevertheless, we discuss the issue because
the Louisiana Supreme Court’s reinstatement of this Court’s original Opinion in
Bagwell was not decided until the parties’ briefing and arguments herein had
concluded.
In Bagwell, this Court found the trial court’s $750,000 survival award to the
plaintiff was an abuse of discretion as it was “so out of proportion to the injury that
it shocks the conscience.” Antippas v. Nola Hotel Grp., LLC, 2017-0798, p. 16 (La.
App. 4 Cir. 2/27/19), 265 So.3d 1212, 1222-23 (quoting Lee v. Lu, 2005-899, p. 9
(La. App. 5 Cir. 4/11/06), 931 So.2d 365, 371). After reviewing prior awards from
this Court for similar claims, this Court raised the plaintiff’s damages to the lowest
reasonable amount to $1,450,000.
5 Birla’s arguments regarding the survival damage award here are misplaced.
Birla seems to argue that Bagwell stands for the proposition that the ceiling of an
award for the suffering of a plaintiff like the one in Bagwell is between $1,450,000
and $1,800,000. On the contrary, Bagwell clarified that an appellate court is bound
to award the lowest reasonable amount (i.e. the floor) to the plaintiff when raising
the award, and that, under the facts presented in Bagwell, the lowest reasonable
award was $1,450,000.
As we did not find that Mr. Lege’s survival action award was an abuse of
discretion here, and we were not tasked with raising the award here as a result—
which we did in Bagwell—we find Bagwell to be inapposite to the survival damage
award here.
APPLICATION FOR REHEARING GRANTED FOR CLARIFICATION; ORIGINAL OPINION AFFIRMED AS CLARIFIED