Jerry R. Bagwell v. Union Carbide Corporation

Louisiana Court of Appeal

Jerry R. Bagwell v. Union Carbide Corporation

DecidedSeptember 23, 2020

Docket2019-CA-0414

StatusPublished

This text of Jerry R. Bagwell v. Union Carbide Corporation (Jerry R. Bagwell v. Union Carbide Corporation) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jerry R. Bagwell v. Union Carbide Corporation, (La. Ct. App. 2020).

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Opinion

JERRY R. BAGWELL * NO. 2019-CA-0414

VERSUS * COURT OF APPEAL UNION CARBIDE * CORPORATION, ET AL. FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-10146, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Edwin A. Lombard ****** ON APPLICATION FOR REHEARING

(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins)

JENKINS, J., DISSENTS WITH REASONS

Mickey P. Landry Frank J. Swarr Philip C. Hoffman Matthew C. Clark LANDRY & SWARR LLC 1010 Common Street, Suite 2050 New Orleans, LA 70112 -AND- Jeffrey A. O'Connell Ryan P. Phillips THE NEMEROFF LAW FIRM 12720 Hillcrest Road, Suite 700 Dallas, TX 75230

COUNSEL FOR PLAINTIFFS/APPELLANTS

McGready L. Richeson David M. Stein PUGH ACCARDO HAAS RADECKER & CAREY, LLC 1100 Poydras Street, Suite 3300 New Orleans, LA 70163

COUNSEL FOR MONTELLO, INC. Michael McAlpine, ESQ. Richard Cozad, ESQ. Jeff D. Peuler, ESQ. Morgan Kelley, ESQ. SCHOUEST BAMDAS SOSHEA AND BENMAIER, PLLC 365 Canal Street, Suite 2730 New Orleans, LA 70130 -AND- John C. Elliott, ESQ SCHOUEST BAMDAS SOSHEA & BENMAIER, PLLC 1001 McKinney Street, Suite 1400 Houston, TX 77002

COUNSEL FOR RMC HOLDINGS, LLC

Kelly Brechetel Becker, Appeal Counsel Kathryn Z. Gonski Katherine Seegers Roth LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139-5099 -AND- McGready L. Richeson Ernest G. Foundas Milele St. Julien Francis X. deBlanc David M. Stein Kathleen E. Jordan PUGH ACCARDO HAAS RADECKER & CAREY, LLC 1100 Poydras Street, Suite 3300 New Orleans, LA 70163

COUNSEL FOR UNION CARBIDE CORPORATION

APPLICATION FOR REHEARING GRANTED; DECEMBER 11, 2019 OPINION VACATED; NOVEMBER 27, 2018 AND FEBRUARY 19, 2019 JUDGMENTS VACATED; REMANDED

SEPTEMBER 23, 2020 EAL TFLE RBW This matter is before the Court on an Application for Rehearing filed by the DNA Appellants, plaintiffs Tawanah Lee Bagwell, and Jerrod Clinton Bagwell (“the

Bagwells”). The Bagwells seek the reversal of the December 11, 2019 opinion of

this Court as to the inconsistency of the jury verdict and the jury’s non-

apportionment of fault to four asbestos drilling mud companies, Union Carbide

Company (“UCC”), Montello, Inc., Chevron Phillips Chemical Company, LP

(“Chevron”) and Johns-Manville (“JM”). Additionally, the Bagwells request that

this Court apportion fault to the aforementioned manufacturers, or alternatively,

order a new trial in this matter.

The Bagwells request that this Court review our prior finding that the trial

court did not err in signing a November 27, 2018 judgment, asserting that jury’s

verdict was based on the inconsistent answers to interrogatories, and review a

February 19, 2019 judgment, denying their motion for a judgment notwithstanding

verdict, or in the alternative, motion for new trial, alleging the jury’s verdict was

clearly contrary to the law and evidence.

1 The Bagwells aver that this Court erred in its December 2019 opinion, in

reasoning that the jury had a reasonable basis to conclude there was another source

of Mr. Bagwell’s asbestos exposure other than Visbestos, SuperVisbestos and

Flosal. On appeal, we noted that there was testimony adduced at trial that Mr.

Bagwell was exposed to asbestos material, aside from the aforementioned asbestos

products, and there was testimony that said mud additives may not have been

aboard the rigs where Mr. Bagwell worked. The Bagwells contest this reasoning.

They argue that prior to trial the parties agreed there was no competent evidence

that Mr. Bagwell was exposed to any other products at RMC; consequently,

directed verdicts were entered excluding these products, including welding

blankets and other drilling products, as possible sources of exposure aboard the

rigs.

On rehearing, we find that there were inconsistencies in the jury verdict.

Thus, we grant the Application for Rehearing; vacate our December 11, 2019

opinion, as well as the trial court judgments of November 27, 2018 and February

19, 2019 judgment, and remand this matter to the trial court for a new trial.

The Bagwells maintain that because RMC neither manufactured nor

supplied asbestos drilling mud additives, the jury was clearly confused in

determining that RMC exposed Mr. Bagwell to drilling mud additives, yet

simultaneously found no exposure to drilling mud additives used by RMC. The

Bagwells maintain that this finding is a factual impossibility. They assert, “the

parties and Trial Court agreed there was no competent evidence Mr. Bagwell was

exposed to any other products at RMC,” except for Visbestos, SuperVisbestos and

Flosal. “Thus, directed verdicts were entered as to any other possible sources of

exposure aboard the rigs, including welding blankets and other drilling products.”

2 The Bagwells’ argument is that the jury reached a logically impossible

result, finding RMC, Mr. Bagwell’s employer, 75% at fault, for his exposure to

asbestos without finding any of the actual producers of the asbestos products used

by RMC to be at fault.1

Prior to the conclusion of trial, the district court granted several directed

verdicts that removed all other potential asbestos sources used by RMC from

consideration. On November 8, 2018, the district court made the following

pertinent rulings:

 Granted a directed verdict in favor of the Bagwells, finding that the Appellees failed to show that International Paper Company and Dixie Machine Welding and Machine Works, Inc., (“Dixie Machine”) exposed Mr. Bagwell to asbestos or established any evidence that they engaged in any conduct that would constitute a substantial contributing factor in causing his mesothelioma;

 Granted a directed verdict in favor of the Bagwells, finding that Mr. Bagwell’s work with and/around asbestos products, such as the Dixie Machine’s blankets, were not a substantial cause of his mesothelioma; and

 Granted directed verdicts in favor of UCC and Montello, holding that drilling mud additives of International Minerals Company (“IMCO”) and Visquick, an asbestos product, were not a substantial cause of Mr. Bagwell’s mesothelioma.

The jury’s verdict, the Bagwells assert, is in direct contravention of the

directed verdicts granted by the district court, which excluded all other viable

manufacturers of asbestos products, except for the three aforementioned products.

We agree.

1 The jury assigned the remaining 25% of fault to CAPCO, the employer of Mr. Bagwell’s father.

3 In this matter, the jury instructions and interrogatories set forth causes of

action for negligence, and strict products liability—including theories of

unreasonably dangerous per se, unreasonably dangerous due to design defect,

unreasonably dangerous due to construction or composition, and unreasonably

dangerous due to failure to warn—against the defendants.

The first interrogatory questioned the jurors as to what entities exposed Ms.

Bagwell to asbestos and whether those exposures were a substantial contributing

cause of his mesothelioma. The Jury responded “YES” as to RMC, Mr. Bagwell’s

former employer, and CAPCO, the asbestos pipe company where Mr. Bagwell’s

father worked in Alabama. The jury ultimately determined that no other asbestos

manufacturers substantially contributed to Mr. Bagwell’s contraction of

mesothelioma and apportioned 75% fault to RMC and 25% to CAPCO.

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