Lege v. Union Carbide Corp.

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)

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

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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

AMENDED AND AFFIRMED AS AMENDED

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DNA
RBW
PAB

This is a mesothelioma wrongful death and survival action. Appellant, Birla Carbon USA, Inc. ("Birla"), appeals the trial court's November 5, 2019 judgment that found Birla fifty-one percent at fault for the death of Appellee, Elray Lege, from mesothelioma, and awarded $4 million to Mr. Lege for his pain and suffering; $2 million to Mr. Lege's wife, Brenda Lege, for wrongful death; $500,000 to each of Mr. Lege's four adult children; medical expenses in the amount of $198,405.06; and funeral expenses in the amount of $16,074.29. For the following reasons, we amend the trial court's judgment awarding wrongful death damages to two of Mr. Lege's adult children, Rodney Lege and Kristina Lege LeBlanc, and affirm the trial court's judgment as amended.

Mr. Lege began working as a helper and insulator at a Texaco plant in late 1971 or early 1972, while employed by three different companies. In 1975, Mr. Lege began working for The Cajun Company as an insulator. Through his work with The Cajun Company, Mr. Lege was assigned to work at various plants, including Union Carbide, DuPont, and a different Texaco plant, until 1978. In late 1978 or early 1979, while still employed by The Cajun Company, Mr. Lege began

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working at the Cabot Corporation carbon black plant in Centerville, Louisiana. During this time, Mr. Lege would sometimes be sent across the highway to work at another plant owned by Columbian Chemicals (Birla's predecessor). As an insulator, Mr. Lege was responsible for tearing out and installing insulation which contained asbestos. As a result, Mr. Lege was exposed to a significant amount of asbestos while he worked for The Cajun Company.

Three decades later, beginning in 2013, Mr. Lege began to experience breathing difficulties while engaging in physical activity. By November 2015, Mr. Lege was having regular breathing difficulties, and sought medical attention. Mr. Lege was diagnosed with mesothelioma in March 2016. Mr. Lege died from mesothelioma in March 2017.

On June 3, 2016, Mr. Lege filed suit in Orleans Parish Civil District Court, naming a number of defendants, including so-called "premises" defendants such as Texaco, Union Carbide, DuPont, Cabot and Birla. Mr. Lege also named Orleans Parish defendant Taylor-Seidenbach, a distributor of asbestos-containing products. The Leges settled with all of the other defendants including Texaco, Union Carbide, DuPont, Cabot, and Taylor-Seidenbach; only Birla remained at the time of trial. Mr. Lege died of mesothelioma in 2017, and this action was converted into a wrongful death and survival action. Mr. Lege's wife, Brenda Lege, and his four adult children, Kristina Lege LeBlanc, Rodney Lege, Bridgette Lege Stelly, and Tyler Lege (collectively, the "Leges"), were substituted as plaintiffs.

On July 20, 2016, Birla filed an answer to Mr. Lege's petition for damages and included an exception of improper venue. Because of the need for discovery on the facts affecting venue, the trial court ordered that the exception of improper

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venue would not be set for hearing until discovery was complete. On July 2, 2019, Birla filed a motion to set its exception of improper venue for hearing, arguing that discovery was complete and that it demonstrated that venue was improper in Orleans Parish and was more appropriate in St. Charles Parish. Birla argued that venue was improper in Orleans Parish because: (1) none of Mr. Lege's allegations included exposure to asbestos in Orleans Parish; and (2) no evidence established that Mr. Lege was exposed to asbestos due to activities from an Orleans Parish defendant, despite the fact that Mr. Lege named the Orleans Parish defendant Taylor-Seidenbach. Birla contended that Mr. Lege was not familiar with Taylor-Seidenbach and did not say that he ever worked for Taylor-Seidenbach or saw anything with Taylor-Seidenbach's name on it.

During the hearing on the exception on August 23, 2019, Birla admitted that if it later wanted to receive credit for any settlement Mr. Lege may reach with Taylor-Seidenbach, it would need to prove that Taylor-Seidenbach exposed Mr. Lege to asbestos, and that it did not have the evidence to prove that Mr. Lege was exposed to asbestos by Taylor-Seidenbach. The Leges countered that they had properly alleged that Birla, along with Taylor-Seidenbach and the other defendants, were solidary obligors. The Leges also responded that their claims against Taylor-Seidenbach were based on Taylor-Seidenbach being an asbestos supplier and distributor to another defendant, Union Carbide, where Mr. Lege did work. The Leges maintained that they had already settled with Taylor-Seidbenbach and, thus, did not need to prove their case against Taylor-Seidenbach to maintain venue. The trial court found that the Leges properly pleaded that Taylor-Seidenbach is a joint tortfeasor and is solidarily liable for Mr. Lege's injuries. On September 3, 2019, the trial court denied Birla's exception of improper venue.

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On October 3, 2019, prior to trial, Birla filed a motion in limine and supplemental exception of improper venue. Birla once again argued that the Leges' only basis for venue in Orleans Parish was the alleged solidary obligation of Birla with Taylor-Seidenbach, who had been dismissed after settling with the Leges prior to trial. Birla asked that the trial court order the Leges to declare before trial whether Taylor-Seidenbach is a solidary obligor with Birla for the purposes of both venue and apportionment of damages. Birla contended that such a ruling would prevent the inconsistent outcomes of having Taylor-Seidenbach be found a solidary obligor for purposes of venue, but not for assessment of damages. The Leges responded, and the trial court agreed, that Taylor-Seidenbach was a solidary obligor for venue purposes but that it was Birla's burden to show Taylor-Seidenbach's fault in order to get a credit for its settlement with the Leges. On the morning of trial, the trial court denied the motion in limine and the re-urged exception of improper venue.

The matter proceeded to jury trial on October 7, 2019, and concluded on October 14, 2019. During trial, Mr. Lege's pre-trial deposition testimony as well as that of his treating physician Dr. Kelvin Raybon was played for the jury.¹

THE LEGES' CASE-IN-CHIEF

Mr. Lege

In his pre-trial deposition testimony, Mr. Lege testified that, while working for The Cajun Company in late 1978 or early 1979, he worked at the carbon black plant in Centerville, Louisiana as an insulator, where he was responsible for tearing

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out and installing insulation, which contained asbestos. In this job, which required a lot of physical labor, Mr. Lege would tear down insulation held on "bag collectors" by chicken wire and put up more insulation on the bottom of the "bag collectors" at Columbian. After tearing out the old insulation, Mr. Lege install "block" insulation and "mud." As a result, Mr. Lege alleged, he was exposed to a significant amount of asbestos. Mr. Lege stated that during this time, he would occasionally be sent across the highway to work at another plant owned by Columbian Chemicals where he was exposed to asbestos. Mr. Lege stated that he worked at the Columbian plant for approximately four months.

Dr. Kelvin Raybon

Dr. Raybon testified that, prior to becoming the medical director at Augusta Health Center in Fishersville, Virginia, he had a practice in Lafayette, Louisiana where he treated Mr. Lege. Dr. Raybon explained that, while he was in Lafayette, he was the director of the oncology program at University Medical Center in Lafayette. Dr. Raybon testified that, according to Mr. Lege's medical records, he began having trouble breathing in July 2013, but Dr. Raybon did not start treating Mr. Lege until March 2016 after Mr. Lege had a biopsy in February 2016 that confirmed a malignant growth—a tumor—in his right lung. Dr. Raybon explained that he had Mr. Lege undergo chemotherapy, but determined that Mr. Lege's condition was not improving his tumors. Dr. Raybon recommended Mr. Lege stop chemotherapy after seeing the physical toll it was taking on Mr. Lege.

Dr. Raybon testified that mesothelioma is a painful disease and that, as a cancer, it "literally invades" the body. Dr. Raybon determined that Mr. Lege's mesothelioma was fatal because there was no way to keep the tumor from growing or to remove it. Dr. Raybon explained that, in Mr. Lege's case, the cancer caused

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his right lung to fail. Eventually, Dr. Raybon directed Mr. Lege to go to hospice in December 2016, expecting that he would not live longer than six months. Dr. Raybon opined that exposure to asbestos was consistent with Mr. Lege's mesothelioma presentation.

Dr. Victor Roggli

The jury also heard testimony from Dr. Victor Roggli, an expert lung...