Opinion
2024-C-0431
09-19-2024
VITA CHENET v. COLGATE-PALMOLIVE COMPANY
James M. Garner John T. Balhoff, II Curtis J. Case SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. COUNSEL FOR RELATOR, Colgate-Palmolive Company. Lance C. Unglesby Adrian M. Simm, Jr. Jamie F. Gontarek UNGLESBY & CROMPTON, LLC, Lindsey A. Cheek THE CHEEK LAW FIRM LLC COUNSEL FOR RESPONDENTS, Vita Chenet (deceased), Wayne Chenet, and Henry Chenet
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-12536, DIVISION "L" Honorable Kern A. Reese, Judge
James M. Garner John T. Balhoff, II Curtis J. Case SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. COUNSEL FOR RELATOR, Colgate-Palmolive Company.
Lance C. Unglesby Adrian M. Simm, Jr. Jamie F. Gontarek UNGLESBY & CROMPTON, LLC, Lindsey A. Cheek THE CHEEK LAW FIRM LLC COUNSEL FOR RESPONDENTS, Vita Chenet (deceased), Wayne Chenet, and Henry Chenet
(Court composed of Roland L. Belsome, Judge, Daniel L. Dysart, Judge, Rosemary Ledet, Judge, Paula A. Brown, Judge, Dale N. Atkins Judge)
Dale N. Atkins, Judge.
This is a mesothelioma case. Relator, Colgate-Palmolive Company ("Colgate"), seeks review of the trial court's June 18, 2024 judgment, which granted the Motion for New Trial filed by Respondents, Henry Chenet and Wayne Chenet. For the following reasons, we grant Colgate's writ application, and we reverse the trial court's judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Vita Chenet ("Ms. Chenet") was diagnosed with malignant mesothelioma in October 2018, and subsequently filed suit against Colgate, as well as other manufacturers and sellers of talcum powder. Ms. Chenet alleged that she used Colgate's talcum powder product (Cashmere Bouquet) and that it was contaminated with asbestos, which caused her to contract mesothelioma. When Colgate answered Ms. Chenet's suit, it denied that its talcum powder contained asbestos, and offered an alternative defense, i.e., that Ms. Chenet contracted mesothelioma from exposure to asbestos through her father's employment and because her family lived in housing on the Higgins Shipyard property in the 1940s. Ultimately, Ms. Chenet died in February 2019 at the age of 83, and her adult sons, Wayne Anthony Chenet and Henry Engler Chenet, III (hereinafter collectively "Chenets"), were substituted as plaintiffs in this litigation. Following discovery, the Chenets filed a motion for partial summary judgment, which the trial court granted. In that judgment, the trial court made the following two findings, which the parties agree are the law of the case: (i) Ms. Chenet was diagnosed with mesothelioma; and (ii) a cause of Ms. Chenet's mesothelioma is exposure to asbestos.
In March 2024, a three-week jury trial was held in this case. At the end of the trial, the jury answered no to the first jury interrogatory, which asked whether the Chenets proved by a preponderance of the evidence that Colgate's Cashmere Bouquet was contaminated with asbestos. Given that answer, the jury received instructions to stop, which the jury did. Thereafter, the trial court rendered judgment in Colgate's favor, thereby dismissing the Chenets' claims against Colgate.
On April 24, 2024, the Chenets filed a Motion for New Trial, wherein they asserted "that the April 15, 2024 final Judgment was clearly contrary to the law and evidence, thereby requiring [the] Court to grant [them] a new trial pursuant to La. C.C.P. art. 1972(1)." They also contended "that good grounds exist[ed]" for the trial court to grant them a new trial pursuant to La. C.C.P. art. 1973. In support, they cited, among other things, the alleged improper testimony at trial of Colgate's expert pathologist, Dr. Richard Attanoos ("Dr. Attanoos"). In response to the Chenets' counsel's questions in voir dire, Dr. Attanoos testified as follows:
And if you place a worker in a shipyard, the literature the world over will tell you consistently they are at increased risk of mesothelioma and other asbestos-related diseases. In fact, Ms. Chenet's father died, by every likelihood, of an asbestos-related disease. He had lung cancer, which is, in the setting, is an asbestos related disease. He was a shipyard worker during World War II.
Of note, the trial court ultimately struck Dr. Attanoos' testimony from the record and instructed the jury not to consider it. According to the Chenets, the ultimate issue for the jury to decide was causation, i.e., whether Ms. Chenet's mesothelioma was caused by exposure to asbestos in Colgate's Cashmere Bouquet or by her exposure to asbestos through her father's work at Higgins Industries' Shipyard when she was a young child. For this reason, the Chenets argued that Dr. Attanoos' testimony confused the jury and resulted in a miscarriage of justice, warranting the granting of a new trial.
In its June 18, 2024 judgment, the trial court agreed with the Chenets and granted their Motion for New Trial. In explaining its decision to grant the Chenets' Motion for New Trial, the trial court listed the following reasons for judgment:
1. The ultimate issue for the jury to decide in this case was whether Ms. Chenet's mesothelioma was caused by exposure to asbestos in Colgate's Cashmere Bouquet, or whether Ms. Chenet's mesothelioma was caused by exposure to asbestos through her father's work at Higgins Industries shipyard when she was a young child-which was Colgate's alternative exposure defense
2. During the last day of trial, Colgate called its last witness, Dr. Richard Attanoos, who testified before the jury that:
. . . And if you place a worker in a shipyard, the literature world over will tell you consistently they are at increased risk of mesothelioma and other asbestos-related diseases. In fact, Ms. Chenet's father died, by every likelihood, of an asbestos-related disease. He had lung cancer, which is, in the setting is an asbestos-related disease. He was a shipyard worker during World War II. . .
3. There was no foundation for Dr. Attanoos' said "in fact" opinion. Indeed Dr. Attanoos' opinion concerning the circumstances and cause of Ms. Chenet's father's death had never been referenced by any witness or attorney throughout the previous three weeks of trial, it was unsolicited, it was a new opinion, it was never previously disclosed in any expert report or deposition, and it was never previously disclosed to
this Court or to the Plaintiffs in violation of this Court's rules concerning expert opinions at trial.
4. There is no evidence in the record that Dr. Attanoos ever reviewed Ms. Chenet's father's medical records prior to giving an opinion about the cause of Ms. Chenet's father's death.
5. The Court was unequivocally floored by Dr. Attanoos' testimony, and when the Court heard that testimony after three weeks of trial in this case, it made the Court cringe -particularly considering that Dr. Attanoos is probably one of the best qualified experts this Court ever encountered.
6. The Court gave Colgate an opportunity to allow Dr. Attanoos to explain on the record the underlying factual basis for his opinion concerning Ms. Chenet's father's cause of death but Colgate rejected that opportunity.
7. The Court finds that Dr. Attanoos' improper testimony concerning the circumstances and cause of Ms. Chenet's father's death was "highly prejudicial" to the Plaintiffs['] case because such testimony could make the jury believe that, because Ms. Chenet's father died of an asbestos-related disease as a result of working at or living near Higgins, then Ms. Chenet's asbestos-related disease must have also been caused as a result of living near Higgins.
8. Compounding the prejudicial effect of Dr. Attanoos' improper testimony concerning the circumstances and cause of Ms. Chenet's father's death is the fact that the jury was not expeditiously told to disregard this foundationless and inadmissible testimony. Almost immediately after Dr. Attanoos gave this testimony, Plaintiffs' counsel orally moved to strike Dr. Attatnoos' improper testimony, which the Court denied, and then the Court excused the jury so that they could go on their lunch break. The Court believes that allowing the jurors to go to lunch right after they heard Dr. Attanoos' improper testimony gave the jurors the time and opportunity to consider, discuss, and be impacted by Dr. Attanoos' improper testimony.
9. While the Court did later instruct the jury to disregard Dr. Attanoos' improper testimony concerning the circumstances and causes of Ms. Chenet's father's death, the Court believes that its corrective instruction came too late and was insufficient to cure the prejudicial effect of the jury hearing Dr. Attanoos' improper testimony relating to an ultimate issue in this case.
10. Given Dr. Attanoos' impressive qualifications and experience, and the Court's belated corrective instruction, the Court
believes that in rendering its jury verdict, the jury may have erroneously given weight to, considered, and been impacted by Dr. Attanoos' improper opinion testimony concerning the circumstances and cause of Ms. Chenet's father's death.
11. The Court believes that the prejudicial effect of Dr. Attanoos' improper testimony had a substantial effect on the outcome of this case and made it impossible for the jury to reach a proper verdict.
12. A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law, pursuant to La. C.C.P. art. 1973.
In the "Judgment with Reasons" presented for the trial court judge's signature by the Chenets, number 12 read: "The Court finds that a miscarriage of justice has occurred, and therefore the Court will exercise its discretion and grant Plaintiffs a new trial pursuant to La. C.C.P. art. 1973." However, the trial court replaced that proposed language with the language included here.
Subsequently, Colgate timely filed its writ application with this Court.
ASSIGNMENTS OF ERROR
In its writ application to this Court, Colgate asserts four assignments of error:
(1) The district court erred by failing to apply the harmless error standard when it ordered a new trial based upon stricken evidence that had nothing to do with the question the jury ultimately decided.
(2) The district court erred when it granted a new trial without making the requisite finding of a miscarriage of justice.
(3) The district court erred when it ordered a new trial after [the Chenets] failed to move contemporaneously for a mistrial.
(4) The district court erred when it ordered a new trial after [the Chenets] failed to make other contemporaneous objections, including the prejudicial nature of testimony and the timing of the court's curative instruction.
Because all four of Colgate's assignments of error pertain to the trial court's decision to grant a new trial, we begin our discussion with the principles and standard of review applicable to motions for new trial.
DISCUSSION
Principles and Standard of Review Applicable to a Motion for New Trial
Louisiana Code of Civil Procedure Article 1971 states, in pertinent part, that "[a] new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only." The Louisiana Civil Code provides both peremptory and discretionary grounds for the grant of a new trial. In terms of peremptory grounds, La. C.C.P. art. 1972 outlines the followings:
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.
Discussing the discretionary grounds, La. C.C.P. art. 1973 states that "[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law." "[W]ithin ten days from the time it is submitted for decision," the trial court must decide a motion for new trial. La. C.C.P. art. 1979. If the trial court "grants a motion for a new trial, it shall specify each of its reasons in the order." Id. The party who files the motion for new trial bears the burden of proof. Lepree v. Dorsey, 2022-0853, p. 23 (La.App. 4 Cir. 8/11/23), 370 So.3d 1191, 1205 (first citing Jackson v. Wise, 2017-1062, p. 18 (La.App. 1 Cir. 4/13/18), 249 So.3d 845, 856; and then citing Porche v. Winn-Dixie La., Inc., 1993-2075, p. 5 (La.App. 1 Cir. 10/7/94), 644 So.2d 699, 702).
As this Court has previously held, a trial court has wide discretion in deciding whether to grant or deny a motion for new trial. Lepree v. Dorsey, 2022-0853, p. 22 (La.App. 4 Cir. 8/11/23), 370 So.3d 1191, 1204-05 (quoting Occidental Props. Ltd. v. Zufle, 2014-0494, p. 11 (La.App. 5 Cir. 11/25/14), 165 So.3d 124, 13), writ denied, 373 So.3d 982, 2023-01238 (La. 12/5/23). Because the trial court has such wide discretion in deciding a motion for new trial, "an appellate court 'reviews a ruling on a motion for new trial under an abuse of discretion standard of review.'" Id. at p. 22, 370 So.3d at 1205 (quoting Sunset Harbour, LLC v. Brown, 2022-0572, p. 9 (La.App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173. The appellate court applies the abuse of discretion standard of review "regardless [upon] which ground-peremptory or discretionary-the new trial motion is based." Id. (quoting Autin v. Voronkova, 2015-0407, p. 4 (La.App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070). This standard of review is "highly deferential," but a trial court abuses its discretion "if its ruling is based on an erroneous view of the law." Id.
Additionally, the Louisiana Supreme Court has cautioned that "[e]ven in light of this wide discretion of the trial court, that discretion is limited, as the trial court cannot freely interfere with any verdict with which it disagrees." Guillory v. Lee, 2009-0075, p. 38 (La. 6/26/09), 16 So.3d 1104, 1131 (citing Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 10 (La. 11/28/00), 774 So.2d 84, 93). Rather, the trial court's "discretionary power to grant a new trial must be exercised with considerable caution" because "a successful litigant is entitled to the benefits of a favorable jury verdict." Martin v. Heritage Manor S. Nursing Home, 2000-1023, p. 3 (La. 4/3/01), 784 So.2d 627, 630 (quoting Davis, 2000-0445, p. 10, 774 So.2d at 93). Moreover, because "[f]act finding is the province of the jury ... the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury's responsibility." Id. Accordingly, the trial court should not set aside the jury's verdict "if it is supportable by any fair interpretation of the evidence." Id. This Court has held that potential jury confusion may constitute a ground for granting a new trial. Provo sty v. Arc Constr., LLC, 2015-1219, pp. 8-9 (La.App. 4 Cir. 11/2/16), 204 So.3d 623, 629-30. However, this Court has further explained that such confusion must "be substantial enough to mislead the jury to the extent that it was prevented from dispensing justice." Martinez v. LG Electronics U.S.A, Inc., 2024-0445, p. 5 (La.App. 4 Cir. 8/2/24), So.3d, 2024 WL 3633518, at *3 (quoting Provosty, 2015-1219, p. 7, 204 So.3d at 628) (internal quotation marks omitted). The confusion must also be "unreasonable and a clear illustration of [the jury's] failure to impartially apply the reasoning faculty on the facts before W" Id. (quoting 66 C.J.S. § 107).
With these principles and standard of review in mind, we turn to Colgate's assignments of error. Based on our review of the assignments of error and the record, the sole issue presented by Colgate's writ application is whether the trial court properly granted the Chenets' Motion for New Trial based on Dr. Attanoos' testimony regarding Ms. Chenet's father's lung cancer. We find that the trial court abused its discretion in granting a discretionary new trial under La. C.C.P. art. 1973 for two reasons: (i) the lack of relevance of the objectionable testimony; and (ii) the lack of a miscarriage of justice finding. That is, we agree with Colgate's first and second assignments of error.
Assignment of Error Number One: Lack of Relevance of the Objectionable Testimony
In its first assignment of error, Colgate asserts that the trial "court erred by failing to apply the harmless error standard when it ordered a new trial based upon stricken evidence that had nothing to do with the question the jury ultimately decided." This assignment of error has merit. Contrary to the Chenets' contention, the issue presented at trial was not confined to causation. Rather, the Chenets had the burden of proving two distinct elements to establish Colgate's liability, namely (1) contamination-Cashmere Bouquet was contaminated with asbestos; and (2) causation-the asbestos in Cashmere Bouquet caused Ms. Chenet's mesothelioma. Here, the law of the case established only that asbestos was a cause of Ms. Chenet's mesothelioma. The jury first had to decide whether Cashmere Bouquet was contaminated with asbestos and, if so, whether that exposure caused her mesothelioma. The jury answered no to the first question as to whether Cashmere Bouquet was contaminated and, therefore, the second question as to causation was pretermitted. Because Dr. Attanoos' objectionable testimony had bearing only on the issue of causation, his testimony was irrelevant to the contamination issue that the jury decided and had no effect on the jury's decision. Accordingly, the trial court abused its discretion in granting the Chenets' Motion for New Trial.
Assignment of Error Number Two: Lack of Miscarriage of Justice Finding
In its second assignment of error, Colgate contends that the trial court erred in granting the Chenets' Motion for New Trial because it did not make the requisite finding of a miscarriage of justice. We agree. In its reasons for judgment, the trial court stated that it was granting the Chenets' Motion for New Trial under La. C.C.P. art. 1973's discretionary grounds. This Court and the Louisiana Supreme Court have held that a trial court should grant a motion for new trial under La. C.C.P. art. 1973 if there is a finding of a "miscarriage of justice." McBride v. Lichtenstein, 2017-0715 (La.App. 4 Cir. 12/5/18), 260 So.3d 658, 676 (first citing La. C.C.P. art. 1973; and then citing Pitts v. La. Med. Mut. Ins. Co., 2016-1232, p. 9 (La. 3/15/17), 218 So.3d 58, 65); Lamb v. Lamb, 430 So.2d 51, 53 (La. 1983). This Court has further held that without there being such a finding of a "miscarriage of justice," a new trial is not warranted. Hebert v. C.F. Bean Corp., 2000-1029, p. 3 (La.App. 4 Cir. 4/25/01), 785 So.2d 1029, 1031. Further, the facts must actually support a finding that "a miscarriage of justice . . . would otherwise occur." Webster v. Hartford Accident &Indemn. Co., 2021-610, p. 3 (La.App. 5 Cir. 11/15/21), 2021 WL 5869565, at *3 (citing In re Gramercy Plant Explosion at Kaiser, 2004-1151, p. 17 (La.App. 5 Cir. 3/28/06), 927 So.2d 492, 502).
We note that in the matter sub judice, the trial court expressly rejected the Chenets' suggestion that it include a miscarriage of justice finding in its written reasons for judgment. The facts and circumstances presented herein do not present a miscarriage of justice because, as previously explained, Dr. Attanoos' objectionable testimony was irrelevant to the contamination issue the jury decided; the trial court struck the objectionable testimony; and the trial court admonished the jury not to consider the objectionable testimony. Though the trial court expressed concern in its written reasons for judgment that the timing of its admonition to the jury (after the jury returned from lunch) might have accentuated the jury's confusion regarding the objectionable testimony, we find this of no consequence. Again, Dr. Attanoos' objectionable testimony was not relevant to the sole issue the jury decided of asbestos contamination and thus could not have confused the jury. Further, as previously explained, jury confusion must be "substantial enough to mislead the jury to the extent that it was prevented from dispensing justice" or "a clear illustration of [the jury's] failure to impartially apply the reasoning faculty on the facts before it." Martinez v. LG Electronics U.S.A, Inc., 2024-0445, p. 5 (La.App. 4 Cir. 8/2/24), __ So.3d at __, 2024 WL 3633518, at *3 (first quoting Provosty, 2015-1219, p. 7, 204 So.3d at 628; and then quoting 66 C.J.S. § 107). Neither of these circumstances is present in this matter given the irrelevance of the testimony to the jury's conclusion on the contamination issue. Therefore, the facts do not support a finding that there was a miscarriage of justice so as to justify the trial court's grant of the Chenets' Motion for New Trial.
Having already found merit in Colgate's first and second assignments of error, we pretermit discussion of its third and fourth assignments of error.
DECREE
For the foregoing reasons, we grant Colgate's writ application and reverse the trial court's June 18, 2024 judgment, which granted the Chenets' Motion for New Trial.
WRIT GRANTED; JUDGMENT REVERSED.
RLB
BELSOME, J., DISSENTS WITH REASONS.
The foundation of the majority's reasoning is that Dr. Richard Attanoos's ("Attanoos's") objectionable testimony was irrelevant to the contamination of Colgate-Palmolive Company's ("Colgate's") product, which was the sole issue that the jury decided. I disagree with the reasoning of the majority.
The majority acknowledges that a partial summary judgment granted prior to trial detennined that Vita Chenet ("Ms. Chenet") died from mesothelioma that was caused by inhalation of asbestos crystals. Both parties have postulated this case as a contest between two possible sources of asbestos exposure. Plaintiffs contend that defendant's product, Cashmere Bouquet, was the source of the asbestos that killed Ms. Chenet. Colgate's position is that asbestos contamination from Higgins Shipyard was the cause.
Cashmere Bouquet was a cosmetic talcum powder manufactured and sold by Colgate from 1871 until 1995.
In opening statements in the trial, both parties told the jury that Ms. Chenet's exposure to asbestos came either from defendant's body powder or from the shipyard where her father worked. Defense counsel made the following representations to the jury:
The jury would see evidence that Ms. Chenet's father was bringing asbestos home from Higgins shipyard to her every day for years;
Ms. Chenet's doctor would testify that she was exposed to asbestos at Higgins Shipyard;
That evidence would show that some Higgins contained 85% asbestos; and that Dr. Herfel would testify that working at a shipyard increases mesothelioma risk, living near a shipyard increases mesothelioma risk, and living in a household where someone working in a shipyard and brings it home increases the risk of mesothelioma; and
Expert testimony would show that Ms. Chenet was exposed to asbestos at the shipyard.
After three weeks of trial, Colgate had failed to provide any admissible evidence that Ms. Chenet had exposure to asbestos as a child when her father, Camille Carnaggio, Sr. ("Mr. Camaggio") worked at Higgins Shipyard. On the other hand, plaintiffs had presented the testimony of Dr. William Longo that 100% of the Cashmere Bouquet containers he tested contained trace amounts of chrysotile asbestos.
Q. ...100 percent of the Cashmere Bouquet you tested did have chrysotile asbestos?
A. Correct.
There was no proof that Mr. Camaggio encountered asbestos in his work. Ms. Chenet's sister, Gertrude Camaggio ("Trudy") testified that she, "didn't think [Mr. Camaggio] physically worked on the boat. I think he was more like a brain." When asked what she thought Mr. Camaggio did at Higgins, she responded: "I don't really know. But I think he worked in the office." There was also testimony that the boats built in the Higgins Shipyard where he worked were made of plywood instead of steel and asbestos. Further, there was no evidence adduced at trial that Ms. Chenet had any significant exposure to her father's clothing during the time that she shared with him during the single year that she lived near the shipyard. Ms. Chenet's treating physician specifically rejected and denied Colgate's representation that he determined that Ms. Chenet encountered asbestos from the shipyard. The treating physician, Dr. Henry Jackson ("Dr. Jackson"), testified:
Q: Now the people who said she was exposed to asbestos at Higgins was not us, it was her doctor, and it was her who said that. Is that accurate?
A: No, it's not.
Q: [In opening statement, Colgate said] Dr. Jackson believes it was clear just like the testimony shows she believes that's why she got it- talking about Higgins.
A: That's not accurate.
Dr. Jackson added that Ms. Chenet did not tell him that her father had worked in a shipyard or made any comment regarding the shipyard. In fact, Dr. Jackson said that he asked Ms. Chenet whether she had worked in a shipyard. When asked if he had evidence that Ms. Chenet was exposed to shipyard asbestos, he replied, "I don't. It was simple speculation on my part, never substantiated and unfortunately the fact is that once something like that gets into a medical record, it tends to perpetuate itself forever."
With that record behind him, halfway through the last day of a three-week trial, Colgate's expert, Dr. Richard Attanoos, blurted out the testimony that formed the basis of plaintiffs' motion for new trial. He opined that Ms. Chenet was at increased risk of asbestos-related diseases because of her father's shipyard work during World War II. He also testified that "by every likelihood" Mr. Camaggio died of lung cancer, "which is, in the setting, is an asbestos-related disease", intimating that he died of mesothelioma. This opinion was given without laying any foundation in the form of an examination of the father's cause of death, his medical records or the type of shipyard work he performed.
Despite the fact that the defense was not able to make good on any of opening statement promises of evidence to come, Attanoos gave his opinion that assumed all those facts had been proven. Attanoos's comment was not even responsive to the question that was posed. In granting the plaintiffs' motion for new trial, the trial court commented that there was no factual support for the opinion that shipyard asbestos exposure was a factor that the jury should weigh in determining whether the source of contamination was more likely than not, Colgate's product, Cashmere Bouquet.
The jury's first interrogatory called on it to decide whether Cashmere Bouquet was contaminated. The jury was instructed to stop deliberating if it found that Cashmere Bouquet was not contaminated. After finding that the powder was not contaminated, the jury ceased its deliberation and the trial ended.
The majority holds that the issue of shipyard contamination and Attanoos's opinion are not relevant to the jury's decision that Cashmere Bouquet is not contaminated. I disagree with the majority and I agree with the trial court that the comment was both relevant and highly prejudicial.
Relevance is defined by La. C.E. art. 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." It was a pre-determined fact that Ms. Chenet died as a result of exposure to asbestos. Given the binary choice of shipyard or Cashmere Bouquet, the jury implicitly chose shipyard. Since there was no admissible evidence supporting the shipyard as a source of Ms. Chenet's cancer, it becomes apparent that the jury determined that the inadmissible opinion by Attanoos was considered and was, in fact, determinative of the outcome. Attanoos's opinion meets La. C.E. art. 401's definition of relevance because it is the only evidence available that could have led the jury to determine that it was more probable that the source of the fatal carcinogen was the shipyard, not the cosmetic powder.
The Code of Evidence cautions that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." La. C.E. art. 403. The trial court gave a curative instruction to the jury to disregard Attanoos's opinion. However, the judge acknowledged in his reasons for judgment that the instruction to the jury was given too late to overcome the prejudicial effect of the testimony. Under the best circumstances, expert opinion that includes an assumption of facts not in evidence, can hardly be "unheard" or ignored in the contemplation of the jury.
A new trial may be granted upon motion of a party or by the court on its own motion. A new trial is mandatory when the verdict or judgment appears clearly contrary to the law and the evidence. La. C.C.P. arts. 1971 and 1972(1). Trial courts are also given discretion to grant a new trial "in any case if there is good ground therefor". La. C.C.P. art. 1973.
In the case before us, there is no admissible evidence that favors Colgate's version of medical causation. Dr. Longo provided evidence that Cashmere Bouquet could have been the cause of Ms. Chenet's mesothelioma. Plaintiffs' proposition is supported by that expert opinion evidence. Colgate's proposition is supported by no evidence except Attanoos's inadmissible opinion. Therefore, the jury's finding favoring Colgate is contrary to the facts offered at trial and a new trial is mandatory in nature.
Even if the grounds for the new trial were discretionary, longstanding jurisprudence informs us that the trial court has "wide discretion" to grant a judgment notwithstanding the verdict. "The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand." Bouquet v. Wal-Mart Stores, Inc., 08-0309, p. 5 (La. 4/4/08), 979 So.2d 456, 459. Our court has previously and often held that the standard of review for the grant of a motion for new trial is abuse of the trial court's wide discretion. This is true whether the new trial is based on mandatory grounds or discretionary grounds. Autin v. Voronkova, 15-0407, p. 4 (La.App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070. "In a motion for new trial under either La. C. C. P. arts. 1972 or 1973, the trial court may evaluate the evidence without favoring either party; it may draw its own inferences and conclusions; and evaluate witness credibility to determine whether the jury erred in giving too much credence to an unreliable witness." McBride v. Lichtenstein, 17-0715, p. 27 (La.App. 4 Cir. 12/5/18), 260 So.3d 658, 676. In granting a new trial on discretionary grounds, it is necessary for the trial court to state an articulable reason or reasons as to why the trial court is exercising its discretionary powers. Martinez v. LG Electronics U.S.A., Inc., 24-0445, p. 5 (La.App. 4 Cir. 8/2/24), So.3d, 2024, WL 36335182024. In the case before us, the trial court articulated his reasoning as follows:
The ultimate issue for the jury to decide in this case was whether Ms. Chenet's mesothelioma was caused by exposure to asbestos in Colgate's Cashmere-Bouquet, or whether Ms. Chenet's mesothelioma was caused by exposure to asbestos through her father's work at Higgins Industries shipyard when she was a young child-which was Colgate's alternative exposure defense.
During the last day of trial, Colgate called its last witness, Dr. Richard Attanoos, who testified before the jury that:
... And if you place a worker in a shipyard, the literature the world over will tell you consistently they are at increased risk of mesothelioma and other asbestos-related diseases. In fact, Ms. Chenet's father died, by every likelihood, of an asbestos-related disease. He had lung cancer, which is, in the setting, is an asbestos-related disease. He was a shipyard worker during World War II...
There was no foundation for Dr. Attanoos's said "in fact" opinion. Indeed, Dr. Attanoos's opinion concerning the circumstances and cause of Ms. Chenet's father's death had never been referenced by any witness or attorney throughout the previous three weeks of trial, it was unsolicited, it was a new opinion, it was never previously disclosed in any expert report or deposition, and it was never previously disclosed to this Court or to the Plaintiffs in violation of this Court's rules concerning expert opinions at trial.
There is no evidence in the record that Dr. Attanoos ever reviewed Ms. Chenet's father's medical records prior to giving an opinion about the cause of Ms. Chenet's father's death. (Emphasis added)
The reasons announced by the trial court show insight into the relevance and impact of Attanoos's opinion. When a jury hears the witness's impressive credentials followed by the court's declaration that the witness is an expert in his or her field, the jury trusts that the judge and the attorneys have properly tested the credentials and they rely on the opinions of the expert.
In this case, however, the witness expounded an opinion that is nothing more than speculation, fabrication, and supposition. This type of testimony is never permitted in a trial. In every case, juries are instructed that they are not to consider any information except the evidence adduced in the courtroom. The trial judge is the gatekeeper of that evidence. In this case, it is clear that the trial judge recognized that Attanoos had presented the jury with evidence that had no more credibility than neighborhood gossip. He noted that Mr. Camaggio died of lung cancer and from that he inferred a cornucopia of opinions, none of which were supported by any evidence proven at trial. The functional equivalent of Attanoos's opinion would be to permit plaintiff to introduce expert testimony that asbestos is sometimes found in mines that produce talc, therefore, Colgate's talc had asbestos that caused Ms. Chenet's mesothelioma. Or, let us suppose that during deliberation, one of the jurors commented that he knew that Mr. Camaggio died from mesothelioma and that he almost certainly brought asbestos fibers into the home where Ms. Chenet lived. For either statement to reach the jury is impermissible. Both situations should properly result in a new trial because they would be prejudicial to a fair finding of facts by the jury.
The majority holds that the trial court made no finding of a miscarriage of justice because Attanoos's offensive comment was not relevant. In fact, it appears that the comment was not only relevant, but the only possible source of the jury's finding that Ms. Chenet's mesothelioma was caused by anything other than Cashmere Bouquet. As outlined above, the jury's finding cannot be squared with the facts proven at trial. This is both a miscarriage of justice that supports the trial court's discretion in granting a new trial and a verdict clearly contrary to the law and the evidence that supports a mandatory judgment granting a new trial.
The majority pretermitted discussion of Colgate's other assignments of error as moot based on the finding that there was no miscarriage of justice. I would pretermit discussion of those assignments as lacking in merit.
The record in this case shows clearly that the trial court properly exercised its discretion to grant a new trial. We are compelled by the facts and longstanding case law to affirm the decision below and deny this writ.
PAB
BROWN, J., DISSENTING WITH REASONS
Contrary to the majority, I would deny the writ application filed by Relator-Colgate-Palmolive Company-seeking review of the district court's June 18, 2024 judgment, which granted Respondents'-Vita Chenet (Deceased), Henry Chenet, and Wayne Chenet-motion for new trial.
"The decision to grant or deny a motion for new trial 'rests within the wide discretion of the trial court.'" Lepree v. Dorsey, 22-0853, p. 22 (La.App. 4 Cir. 8/11/23), 370 So.3d 1191, 1204 (quoting Occidental Props. Ltd. v. Zufle, 14-0494, p. 11 (La.App. 5 Cir. 11/25/14), 165 So.3d 124, 131). In the district court's thorough reasons for judgment, the motion for new trial was granted because, among other reasons, the testimony given by Relator's expert "had a substantial effect on the outcome of this case and made it impossible for the jury to reach a proper verdict." Despite not using the term "miscarriage of justice," I find that the district court provided ample articulable reasons as to why the motion for new trial was granted. See Burris v. Wal-Mart Stores, Inc., 94-0921, p. 7 (La.App. 1 Cir. 3/3/95), 652 So.2d 558, 562, writ denied, 95-0858 (La. 5/12/95), 654 So.2d 352 (holding that the words "miscarriage of justice" need not be present for granting a motion for new trial where the district court provides other articulable reasons for exercising discretionary power).
Additionally, this Court has noted that "[t]he Louisiana Supreme Court has consistently found that jury confusion constitutes good ground for granting a new trial." Martinez v. LG Electronics U.S.A, Inc., 24-0445, p. 5 (La.App. 4 Cir. 8/2/24), So.3d,, 2024 WL 3633518, at *3 (citing Napoleon v. LAMMICO, unpub., 22-0667, p. 2 (La.App. 4 Cir. 12/1/22); see also Pitts v. La. Med. Mut. Ins. Co., 16-1232, p. 11 (La. 3/15/17), 218 So.3d 58, 66; Warren v. ShelterMut. Ins. Co., 16-1647, p. 19 (La. 10/18/17), 233 So.3d 568, 581-82. This confusion must be "substantial enough to mislead the jury to the extent that it was prevented from dispensing justice." Martinez, 24-0445, p. 5, So.3d,, 2024 WL 3633518, at *3 (quoting Provosty v. Arc Constr., LLC, 15-1219, p. 7 (La.App. 4 Cir. 11/2/16), 204 So.3d 623, 628) (internal quotation marks omitted). As stated by the majority in its opinion, the law of this case established that asbestos was a cause of Vita Chenet's ("Ms. Chenet") mesothelioma. In hearing testimony so establishing that fact, the jury was tasked with determining: (1) whether Relator's powder contained asbestos; and (2) whether Ms. Chenet's contraction of asbestos was caused by usage of Relator's powder or from another form of exposure, such as Ms. Chenet's time spent at Higgins shipyard.
While the first question for the jury may appear simple on its face-whether Relator's powder contains asbestos-the statement made by Dr. Attanoos conflated the two questions posed to the jury. Both the unfounded insinuation that Ms. Chenet's father died as a result of an asbestos-related disease from his time spent as a shipyard worker and the evidence regarding Ms. Chenet's own time spent in shipyards are highly relevant and prejudicial to the jury's determination of whether Relator's powder contained asbestos. Put more simply, if the jury accepted Dr. Attanoos' statement as fact, they would be more influenced to conclude that the cause of Ms. Chenet's illness mirrored that of her father, i.e., her time spent in a shipyard. I find the baseless statement was substantial enough to impact and influence the jury's consideration of whether Relatofs powder contained asbestos.
Accordingly, I do not find that the district court abused its discretion in granting a new trial because, not only was Dr. Attanoos' statement relevant, but it "made it impossible for the jury to reach a proper verdict." For these reasons, I dissent.
DMA
PLP
RML