Written by: Barbara Ormsby

On May 3, 2023, the Fourth Circuit affirmed a $35.75 million jury award for general damages assessed by an Orleans Parish jury for the pain, suffering, mental anguish, disability, and loss of enjoyment of life endured by a plaintiff diagnosed with mesothelioma as a result of alleged asbestos exposure. Walker v. Anco Insulations, Inc., et al., No. 2022-CA-0763 (4th Cir. 2023). 

Background
In July 2021, William Walker was diagnosed with malignant mesothelioma. One month later, he filed a Petition for Damages alleging occupational exposure to asbestos from his work as a pipefitter/welder at numerous industrial and petrochemical sites up and down the Mississippi River in Louisiana from approximately 1967 through 1970. Several of Mr. Walker’s former employers, premise owners, and asbestos-containing product manufacturers, suppliers, and contractors were named as defendants. Prior to trial, Plaintiff resolved with all defendants, leaving one contractor defendant (“Level 3”) against whom Plaintiff tried the case.   

A seven-day jury trial commenced on May 16, 2022. Mr. Walker was 79 years old at the time of trial. The jury heard from plaintiff experts, defense experts, as well as from Mr. Walker and his wife. On May 23, 2022, the jury returned a total verdict of nearly $37 million ($35,750,000 in past and future pain & suffering, plus $1,008,170 in past and future medical expenses).  

Because Mr. Walker’s asbestos exposure occurred between 1967 and 1970, Louisiana’s pre-comparative fault governed the case. Level 3 was held liable for 11/21 virile shares and the Court entered a judgment against Level 3 in the amount of $19,254,279.23. The jury verdict form listed a total of twenty-seven entities as possible joint tortfeasors for Mr. Walker’s asbestos-related injuries. The jury determined that twenty-one (21) of the twenty-seven (27) entities were solidarily liable for Mr. Walker’s injuries. Ten (10) of the twenty-one (21) entities settled with Mr. Walker prior to trial (“Settled Parties”). Another two (2) entities were voluntarily dismissed (“Dismissed Parties”), and eight (8) entities were not named as parties (“Non-Parties”).

Ruling
On appeal, the Fourth Circuit affirmed the $35,750,000 jury award for general damages, finding that the jury did not abuse its broad discretion in awarding the $35,750,000. The decision highlighted the extensive testimony from Mr. and Mrs. Walker, as well as from treating physicians, detailing Mr. Walker’s physical and emotional damages since the mesothelioma diagnosis, including constant fear of imminent death. Although the jury’s award was “indeed significant in relation to other awards,” the Fourth Circuit found that great deference should be afforded to the factfinder, noting that “general damages will fluctuate and increase in time given changes in economic conditions, particularly rampant inflation.”

On the issue of virile shares, the Fourth Circuit affirmed the jury’s assessment of 11/21 virile shares against the remaining defendant. First, regarding the Settled Parties, Level 3 received a virile share credit for the ten Settled Parties because (a) Mr. Walker released the ten Settled Parties, and (b) the released ten Settled Parties were found liable for Mr. Walker’s asbestos-related injuries by the jury at trial. Second, regarding the Non-Parties, the Fourth Circuit agreed that a non-party found liable at trial may be assigned a virile share. However, as noted in a footnote in the decision, upon payment to Mr. Walker, Level 3 has a cause of action against each of the Non-Parties. When the whole performance is sought from a single solidary obligor that solidary obligor may seek “contribution” from other joint tortfeasors “in the amount of the joint tortfeasor’s virile share. Thus, Level 3 in this case may seek contribution from the Non-Parties for each of their virile share portions of 1/21. Third, regarding the Dismissed Parties, the Fourth Circuit found that Level 3 was not entitled to two extra virile share credits because an obligor is entitled to a virile share credit when it is shown that (a) the plaintiff settled and released the party and (b) the party is liable as a joint tortfeasor. Thus, similar to available recourse against the Non-Parties, Level 3 has a cause of action, in the form of contribution, from the Dismissed Parties. 

Implications
This sizeable adverse jury verdict highlights the importance of understanding Louisiana’s virile share implications when a jury is assessing liability at trial.