The opinion
VITA CHENET * NO. 2024-C-0431
VERSUS *
COURT OF APPEAL
COLGATE-PALMOLIVE *
COMPANY FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-12536, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Dale N. Atkins
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(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge
Rosemary Ledet, Judge Paula A. Brown, Judge Dale N. Atkins)
BELSOME, J., DISSENTS WITH REASONS.
BROWN, J., DISSENTING WITH REASONS
James M. Garner
John T. Balhoff, II
Curtis J. Case
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.
909 Poydras Street, 28th Floor
New Orleans, Louisiana 70112
COUNSEL FOR RELATOR, Colgate-Palmolive Company
Lance C. Unglesby
Adrian M. Simm, Jr.
Jamie F. Gontarek
UNGLESBY & CROMPTON, LLC
607 St. Charles Ave., Ste. 300
New Orleans, Louisiana 70130
Lindsey A. Cheek
THE CHEEK LAW FIRM LLC
650 Poydras Street, Suite 2310
New Orleans, LA 70130
COUNSEL FOR RESPONDENTS, Vita Chenet (deceased), Wayne Chenet,
and Henry Chenet
WRIT GRANTED; JUDGMENT REVERSED
SEPTEMBER 19, 2024
DNA
DLD
RML
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
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“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.
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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
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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
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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.[1]
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.
In the “Judgment with Reasons” presented for the trial court judge’s
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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.
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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).
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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
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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. Provosty 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 it.” 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.
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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
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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
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“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
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