Marcella

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NORMA MARCELLA, et al. CIVIL ACTION

VERSUS NO. 24-780

HUNTINGTON INGALLS SECTION M (4)

INCORPORATED, et al.

ORDER & REASONS

Before the Court is a motion by plaintiffs Norma Marcella, Scott Marcella, Troy Marcella,

and Toni Hebert (collectively, “Plaintiffs”) to alter or amend the judgment pursuant to Rule 59 of

the Federal Rules of Civil Procedure to include awards of prejudgment and post-judgment

interest.1 Defendant and third-party plaintiff Huntington Ingalls Incorporated (“Avondale”)

responds in opposition,2 and Plaintiffs and Avondale reply in further support of their respective

positions.3

Also before the Court are Avondale’s posttrial motions.4 Avondale moves for a judgment

notwithstanding the verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure5 and for a

new trial or, alternatively, remittitur pursuant to Rule 59.6 Plaintiffs and the third-party defendants7

1 R. Doc. 316.

2 R. Doc. 329.

3 R. Docs. 331; 343.

4 R. Docs. 324; 328.

5 R. Doc. 324.

6 R. Doc. 328.

7 The third-party defendants are: (1) Foster Wheeler LLC (“Foster Wheeler”); (2) General Electric Company,

now operating as GE Aerospace (“GE”); (3) International Paper Company (“IP”); (4) Paramount Global, f/k/a

ViacomCBS Inc., f/k/a CBS Corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation, f/k/a

Westinghouse Electric Corporation (“Paramount”); (5) Uniroyal Holding Inc. (“Uniroyal”); and (6) Bayer

CropScience, Inc, as successor to Rhone-Poulenc AG Company, f/k/a Amchem Products, Inc., f/k/a Benjamin Foster

Company (“Bayer”) (collectively, “Third-Party Defendants”).

respond in opposition,8 and Avondale replies in further support of its motions.9 Having considered

the parties’ memoranda, the record, and the applicable law, the Court issues this Order & Reasons.

I. BACKGROUND

This is a personal injury case arising from asbestos exposure. On October 21, 2023, Ronald

Marcella died, and an autopsy later revealed that he had asbestos-related mesothelioma.10 His

widow and adult children, Plaintiffs, filed this suit in the Civil District Court for the Parish of

Orleans, State of Louisiana, against Avondale and various other defendants, alleging that Marcella

was occupationally and environmentally exposed to asbestos in the 1960s and 1970s, including

when he worked at Avondale’s shipyard as a clerk from May 1962 to May 1964.11 Although

Marcella did not directly handle asbestos-containing products at Avondale’s shipyard, his work

took him aboard ships and around tradesmen who were cutting block insulation and working with

other asbestos-containing products.12 Plaintiffs contend that, in the early 1960s, Avondale was on

notice that asbestos exposure was harmful to employees and that Avondale was negligent for

failing to protect Marcella from, and warn him about, the dangers of asbestos.13

On March 27, 2024, Avondale removed this case to federal court on the basis of federal-

officer jurisdiction under 28 U.S.C. § 1442(a)(1), raising a Boyle government contractor immunity

defense and a Yearsley derivative sovereign immunity defense.14 The notice of removal did not

specifically invoke 28 U.S.C. § 1367 as the source of supplemental jurisdiction over Plaintiff’s

8 R. Docs. 354; 355; 357; 358; 359; 360. With respect to Avondale’s Rule 50 motion, third-party defendants

Foster Wheeler, GE, and Paramount state that they oppose the motion to the extent it seeks a new trial on Avondale’s

third-party claims. R. Doc. 360. Third-party defendant “Bayer takes no position on that motion.” R. Doc. 354 at 2

n.1.

9 R. Docs. 374; 375.

10 R. Doc. 2-1 at 3.

11 Id. at 1-4.

12 Testimony of Melvin Barnewold and Gene Fricke.

13 R. Doc. 2-1 at 8-22.

14 R. Doc. 2 at 1, 7-8.

state-law negligence claims.15 After removal, Avondale filed third-party demands against various

suppliers and manufacturers of asbestos-containing products that were used at its shipyard during

the relevant time.16 Shortly before trial, Plaintiffs filed a motion for partial summary judgment

seeking dismissal of Avondale’s Boyle and Yearsley government-immunity defenses with respect

to their state-law claims which alleged that Avondale (1) failed to warn its employees of the

dangers of asbestos and (2) failed to take precautions to prevent the spread of asbestos dust at the

Avondale shipyard during Marcella’s employment and exposure from 1962 to 1964.17 The Court

granted the motion.18

The case was tried before a jury from February 2, 2026, through February 11, 2026.19 At

the time of trial, Plaintiffs’ only remaining claim was against Avondale, but Avondale was still

pursuing its third-party claims against the six Third-Party Defendants, as well as seeking to have

two nonparty asbestos manufactures held responsible. The jury found Avondale negligent and

awarded Plaintiffs $6,625,000 in general damages.20 The jury also found in favor of the Third-

Party Defendants and nonparties on Avondale’s negligence and strict-liability claims.21 The Court

entered judgment in accordance with the jury verdict, but did not mention prejudgment or post-

judgment interest.22 The parties then filed the pending posttrial motions.23 Specifically, Avondale

moves for judgment notwithstanding the verdict, a new trial, or remittitur.24 Plaintiffs move to

alter the judgment to include awards of prejudgment and post-judgment interest.25

15 Id.

16 R. Doc. 9.

17 R. Doc. 107.

18 R. Doc. 174.

19 R. Docs. 291; 292; 293; 305; 306; 307; 308; 309; 310.

20 R. Doc. 311.

21 Id.

22 R. Doc. 314.

23 R. Docs. 316; 324; 328.

24 R. Docs. 324; 328.

25 R. Doc. 316.

II. LAW & ANALYSIS

A. Avondale’s Motion for Judgment Notwithstanding the Verdict (R. Doc. 324)

At the close of Plaintiffs’ evidence at trial, Avondale moved for judgment as a matter of

law pursuant to Rule 50(a).26 The Court orally denied the motion.27 Avondale now renews its

motion under Rule 50(b).28 Avondale contends that judgment as a matter of law in its favor is

warranted because Plaintiffs failed to prove the cause-in-fact and legal cause elements of their

negligence claim against Avondale.29

In ruling on a Rule 50(b) motion, a “court may: (1) allow judgment on the verdict, if the

jury returned a verdict; (b) order a new trial; or (3) direct the entry of judgment as a matter of law.”

Fed. R. Civ. P. 50(b). Judgment as a matter of law on an issue is appropriate when “the court finds

that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on

that issue.” Fed. R. Civ. P. 50(a). When evaluating a Rule 50(b) motion, courts “consider all of

the evidence drawing all reasonable inferences and resolving all credibility determinations in the

light most favorable to the non-moving party.” Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th

422, 431 (5th Cir. 2022) (quotation omitted). “Thus, a Rule 50 motion must be denied unless the

facts and inferences point so strongly and overwhelmingly in the movant’s favor that reasonable

jurors could not reach a contrary conclusion.” Id. (quotation omitted).

1. Cause-in-fact

Avondale argues that, to prove cause-in-fact, Plaintiffs had to show both that Avondale

failed to comply with the safety standards in effect at the time of Marcella’s employment and that

its compliance with those standards would have prevented Marcella from developing

26 R. Doc. 305.

27 Id.

28 R. Doc. 324.

29 Id.

mesothelioma.30 According to Avondale, Plaintiffs failed to demonstrate that Marcella would not

have developed mesothelioma if Avondale had followed the asbestos-related safety standards that

were in effect in the early 1960s.31 Those safety standards allowed significant amounts of daily

asbestos exposure.32 Thus, says Avondale, even if it had followed those standards, Marcella still

may have developed mesothelioma because the evidence at trial showed that there is no safe level

of asbestos exposure.33 Avondale points out that Plaintiffs’ medical causation expert, Dr. Brent

Staggs, testified that “[t]here’s no known safe level of using asbestos.”34 Further, continues

Avondale, Dr. Staggs, along with Plaintiffs’ historian (Gerald Markowitz) and Plaintiffs’ industrial

hygienist (Jerome Spear), all testified that any amount of asbestos exposure increases the risk of

cancer, particularly mesothelioma.35 Avondale thus argues that Plaintiffs did not, and cannot, prove

that Marcella would not have developed mesothelioma had Avondale complied with the asbestos-

related safety regulations of the early 1960s, which allowed for significant exposure.36 Indeed,

Avondale says that “Plaintiffs effectively argued that compliance with today’s standards [the

complete elimination of asbestos] – not the standards in 1962 – were the only measure that could

have prevented Mr. Marcella’s injury.”37 With that, Avondale argues that no reasonable jury could

have found that Avondale’s failure to comply with the asbestos regulations in force in the early

1960s was the cause-in-fact of Marcella’s injury.38

In opposition, Plaintiffs argue that they sued Avondale for negligence, alleging that

Avondale breached its duty to provide Marcella with a reasonably safe place to work because, even

30 R. Doc. 324-1 at 1-2, 4-8.

31 Id.

32 Id. at 6-7 (citing trial testimony of Gerald Markowitz).

33 Id. at 8.

34 Id. at 5 (citing trial testimony of Dr. Brett Staggs).

35 Id. at 5-6 (citing trial testimony of Dr. Staggs, Markowitz, and Jerome Spear).

36 Id. at 7-8.

37 Id. at 8.

38 Id.

though Avondale was on notice in the early 1960s that asbestos posed a danger to employees, it

“provided no warning and took no protective measures.”39 Plaintiffs contend that Avondale, in its

motion, “overlooks legally sufficient evidence establishing that Avondale’s breach of its duty to

provide Mr. Marcella a reasonably safe workplace was a substantial factor in causing Mr. Marcella

to develop mesothelioma and die.”40 To that end, Plaintiffs cite: (1) the testimony of Marcella’s

co-workers, Melvin Barnewold and Gene Fricke, showing that Marcella was exposed to significant

levels of asbestos while aboard ships and around tradesmen cutting block insulation; (2)

Markowitz’s testimony that the minimum standards established by the Walsh-Healey Act in the

1950s and 1960s demonstrate that Avondale, at the relevant time, knew or reasonably should have

known about the dangers of exposing its employees to asbestos; (3) the testimony of Brent

Levingston, Avondale’s industrial hygienist, that the Walsh-Healey Act notified private shipyards,

like Avondale, about the dangers of asbestos; (4) the testimony of Avondale’s safety-department

employee, Pete Territo, along with that of Barnewold and Fricke, showing that Avondale did not

warn employees about the dangers of asbestos exposure or otherwise take protective measures, such

as performing air sampling or providing respirators; (5) Spear’s and Levingston’s testimony that

Marcella’s asbestos exposure was significantly above background levels and increased his risk of

developing mesothelioma; and (6) Dr. Staggs’s testimony that mesothelioma is a dose-responsive

disease and Marcella’s significant exposure to asbestos at Avondale was a substantial contributing

factor in causing his mesothelioma.41 Plaintiffs further argue that Avondale’s reframing of the duty

owed to be compliance with the standards of the early 1960s is too narrow and contrary to Louisiana

law.42 Instead, Plaintiffs say that Avondale’s duty was to provide a reasonably safe place to work,

39 R. Doc. 357 at 5.

40 Id. at 6.

41 Id. at 6-7, 13-16.

42 Id. at 7, 17-19.

which the jury found it failed to do by not warning Marcella of the known or knowable risks related

to asbestos exposure and not providing to Marcella protective measures that could have reduced his

exposure and risk of developing mesothelioma.43

Avondale replies, arguing that Plaintiffs had no “essential evidence of causation,” meaning

that Plaintiffs did not show “that any of the measures a reasonably prudent employer in the 1960s

should or could have taken – whatever they are – would have prevented Mr. Marcella’s injuries.”44

Avondale further argues that Plaintiffs put on a strict-liability case and did not meet their actual

burden of proof for negligence.45 According to Avondale, Plaintiffs proved that the only measure

that would have prevented Marcella’s disease was eliminating asbestos from the shipyard, which

Avondale could not do because its federal contracts required the use of asbestos, and Plaintiffs

disclaimed a strict-liability claim to avoid Avondale’s federal contractor defenses.46 Avondale

maintains that “[n]ot holding Plaintiffs to task for their failure to establish the essential cause-in-

fact element of their deliberately narrow negligence claim amounts to [an] end-run around the

immunity conferred on Avondale by the United States Supreme Court precedent against state-law

liability based on conduct that contradicts government specifications.”47 Avondale further argues

that the jury cannot infer cause-in-fact from evidence that Avondale knew or should have known

of the risks of asbestos at the relevant time.48 Avondale does not dispute that it had a duty to provide

a reasonably safe workplace, but contends that Plaintiffs failed to prove what that means for the

1962-1964 timeframe and that Avondale failed to comply.49

43 Id.

44 R. Doc. 374 at 2, 4-7 (quote at 2; emphasis omitted).

45 Id.

46 Id.at 5-6.

47 Id. at 6.

48 Id. at 4.

49 Id. at 4-5.

The Court agrees with Plaintiffs that there was sufficient evidence adduced at trial for the

jury to reasonably find that Marcella’s exposure to asbestos at Avondale was a cause-in-fact of his

subsequent injury. “To prevail in an asbestos case a plaintiff must show, by a preponderance of the

evidence, he was exposed to asbestos and he received an injury substantially caused by that

exposure.” Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1088 (La. 2009), abrogated on other

grounds by Pete v. Boland Marine & Mfg. Co., 379 So. 3d 636 (La. 2023). In other words, a

plaintiff seeking to recover under a negligence theory “must prove that the [defendant’s] negligent

act … was a cause-in-fact of the injury.” Id. “[A] defendant’s conduct is a cause-in-fact if it is a

substantial factor generating plaintiff’s harm.” Id.

Avondale first attempts to escape liability by reframing its duty from providing a safe

workplace to compliance with the asbestos-exposure standards of the 1960s. Avondale cites no

asbestos case delineating the latter as the applicable duty. In Rando the Louisiana supreme court

recognized that employers who used asbestos-containing products had a broader duty – a duty to

provide a reasonably safe place for its employees to work. Id. at 1086-87. Indeed, if Avondale’s

theory were correct and the duty of an employer were to comply with the inadequate safety

standards of the early 1960s, no asbestos plaintiff exposed during those periods would ever be able

to prove negligence. Plaintiffs are not, as Avondale argues, saying that Avondale had to eliminate

asbestos. Instead, Plaintiffs’ theory is that Avondale had a duty to protect against or mitigate the

known or knowable effects of asbestos by warning its workers or providing safety equipment such

as respirators, which Avondale failed to do. Moreover, the evidence cited by Plaintiffs

demonstrates that the jury could have reasonably found that, in the early 1960s, Avondale knew or

reasonably should have known that asbestos was dangerous to its employees. Further, there was

no evidence that Avondale took any measures to warn its employees about the health risks posed

by asbestos fibers nor that it took protective measures available to it, such as air sampling or

providing dust masks to employees. The evidence showed that Marcella contracted mesothelioma

(a disease only caused by breathing asbestos fibers), that he was exposed to asbestos at Avondale

as an “onlooker,” see id. at 1088-92, and that Avondale was the only place he was ever exposed to

asbestos. Thus, taking this evidence together, the jury could have reasonably found that Avondale

breached its duty to provide a safe workplace and that this breach was the cause-in-fact of

Marcella’s injury.

2. Legal cause

Avondale also argues that Plaintiffs failed to prove legal cause because they did not

introduce evidence demonstrating that any occupational asbestos-exposure at Avondale’s shipyard

was sufficient in terms of duration, proximity, and severity to have caused Marcella’s

mesothelioma.50 It points out that Plaintiffs’ counsel, in order to undermine Avondale’s third-party

claims, argued that there was no evidence placing Marcella in the vicinity of any specific asbestos-

containing product.51 And consequently, says Avondale, there was no evidence adduced at trial

showing that Marcella was exposed to asbestos at Avondale’s shipyard of sufficient duration,

proximity, and severity to have caused his injury.52

In opposition, Plaintiffs again contend that Avondale overlooks the evidence showing that

Marcella’s non-trivial asbestos exposure was a substantial contributing factor in causing his

mesothelioma.53 Plaintiffs cite: (1) Barnewold’s and Fricke’s testimony that Marcella was exposed

to asbestos while aboard ships; (2) Spear’s testimony that the asbestos exposure described by

Barnewold and Fricke was above background levels; (3) Levingston’s testimony that Marcella was

50 R. Doc. 324-1 at 2, 8-11.

51 Id.

52 Id.

53 R. Doc. 357 at 8, 19-22.

exposed to significant levels of asbestos at Avondale that increased his risk of developing

mesothelioma; and (4) Dr. Staggs’s testimony that Marcella’s exposure to asbestos at Avondale

was a substantial contributing factor in causing his mesothelioma.54 Plaintiffs further contend that

Avondale’s argument is erroneous because they were not required to show that Marcella was

exposed to a particular asbestos-containing product, but rather that Avondale breached its duty to

provide a reasonably safe workplace.55 Plaintiffs say that Avondale is attempting to morph their

negligence claim into a products-liability claim.56

As to medical causation, Avondale repeats in reply that Plaintiffs failed to prove proximity,

duration, and severity because “there was literally no evidence at all placing Mr. Marcella in

proximity of asbestos at any point in time.”57 Avondale acknowledges that there was testimony

that Marcella was seen on the gangplank of some vessels, but insists that this is insufficient to prove

exposure because “[t]here was no evidence of where he went, how often he went there, how long

he stayed, or to what he was or was not exposed.”58 Avondale points out that Spear testified that

he lacked direct evidence that would have allowed him to opine as to which asbestos-containing

product or products Marcella was exposed.59 And, says Avondale, this missing evidence is

necessary to prove Plaintiffs’ case.60

Again, the Court agrees with Plaintiffs. Because there is a medically demonstrated causal

relationship between asbestos exposure and mesothelioma, “every non-trivial exposure to asbestos

contributes to and constitutes a cause of mesothelioma.” McAskill v. Am. Marine Holding Co., 9

So. 3d 264, 268 (La. App. 2009) (observing that the legal cause “burden can be met by simply

54 Id.

55 Id. at 8-9, 21-22.

56 Id. at 21-22.

57 R. Doc. 374 at 2-3, 7-9 (quote at 3).

58 Id. at 3, 7-9 (quote at 3).

59 Id. at 8.

60 Id. at 3, 7-9.

showing that [the plaintiff] was actively working with asbestos-containing materials”). Here, the

evidence adduced at trial, as described in Plaintiffs’ opposition memorandum, was sufficient for

the jury to reasonably conclude that, while working at Avondale’s shipyard, Marcella was exposed

to significant levels of asbestos (above background), which increased his risk of developing

mesothelioma. And “[m]edical science has proven a causal relationship between asbestos exposure

and mesothelioma above background levels.” Id. Plaintiffs need not demonstrate that Marcella

was exposed to a specific asbestos-containing product, but rather that he was exposed to asbestos,

in general, while working at Avondale. Again, based on the evidence introduced at trial, the jury

could have reasonably found that he was. Accordingly, Avondale’s Rule 50(b) motion is denied.

B. Avondale’s Motion for New Trial or, Alternatively, Remittitur (R. Doc. 328)

Avondale also moves for a new trial or, alternatively, remittitur, pursuant to Rule 59.61

Avondale argues that it “was irrevocably prejudiced by the coordinated and improper tactics of

Plaintiffs and Third-Party Defendants at trial in this case, and the damages award was excessive.”62

“After a jury trial, Rule 59 of the Federal Rules of Civil Procedure authorizes courts to

grant motions for new trial for any reason for which a new trial has heretofore been granted in an

action at law in federal court.” Wantou, 23 F.4th at 431. Those reasons include “if the trial court

finds that the verdict is against the weight of evidence; the damages awarded are excessive; the

trial was unfair; or prejudicial error was committed.” Adams v. Ethyl Corp., 838 F. App’x 822,

827 (5th Cir. 2020). “Notwithstanding the broad sweep of Rule 59, courts do not grant new trials

unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice

has not been done, and the burden of showing harmful error rests on the party seeking the new

trial.” Gen. Access Sols., Ltd. v. T-Mobile USA, Inc., 2026 WL 823162, at *1 (E.D. Tex. Mar. 25,

61 R. Doc. 328.

62 R. Doc. 328-1 at 1.

2026) (quotation omitted). In other words, “a new trial is warranted only if the opposing party

shows that it was sufficiently prejudiced considering all the facts and circumstances of the case.”

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 180 (5th Cir. 2005). Counsels’ “improper

remarks become the basis for granting a new trial when the trial judge, with the benefit of his or

her first hand knowledge of the entire proceedings, believes that the remarks infected the

deliberations and conclusions of the jury.” Guar. Serv. Corp. v. Am. Emps.’ Ins. Co., 893 F.2d

725, 729 (5th Cir.), modified on reh’g on other grounds, 898 F.2d 453 (5th Cir. 1990).

1. Avondale’s motion for new trial premised on prejudice

a. Spear’s testimony

Avondale argues that it was prejudiced by Plaintiffs’ and Third-Party Defendants’ trial

tactics.63 First, Avondale contends that Plaintiffs improperly and materially altered the scope of

Spear’s testimony on the stand by having him testify that he was not retained to identify the

asbestos-containing products to which Marcella was exposed.64 Avondale says that these

statements contradicted Spear’s expert report and deposition testimony wherein he attributed

Marcella’s asbestos exposure to the Third-Party Defendants’ and nonparty-manufacturers’

products, particularly those of Johns Manville, Benjamin Foster, Taylor Seidenbach, Foster

Wheeler, GE, Westinghouse, and Uniroyal.65 Avondale claims that it was not permitted to cross-

examine Spear on the contradiction after Third-Party Defendants “feigned surprise,” but there was

no surprise because Spear’s deposition testimony attributed Marcella’s exposure to their

products.66 Avondale contends that it was further prejudiced when, “[i]n closing arguments,

63 R. Doc. 328

64 R. Doc. 328-1 at 1-2, 4, 13-16.

65 Id. at 2, 4-16.

66 Id.

counsel for Plaintiffs and the Third-Party Defendants all highlighted Mr. Spear’s purported

‘inability’ to give product-specific exposure testimony.”67

In opposition, Plaintiffs argue that “Avondale fails to show how its cross examination of

Spear was limited in any prejudicial way” and that “[t]he jury heard about [Spear’s] supposed

inconsistent testimony and drew its own conclusions.”68 Plaintiffs also argue that the Court

properly exercised discretion in the handling of Avondale’s cross-examination of Spear.69

According to Plaintiffs, Avondale fails to identify a direct contradiction between Spear’s trial

testimony and his expert report because Spear explained at trial that his report concerns “general

asbestos-containing products and exposures at Avondale Shipyard, but is not specific to Mr.

Marcella.”70 Plaintiffs further contend that Avondale was permitted to ask Spear about product-

specific asbestos exposure and his purportedly contradictory deposition testimony, and “[e]ach

time, as to each manufacturer’s product, Mr. Spear gave essentially the same answer: He would

agree that occupational exposure to the asbestos-containing product would have significantly

increased Mr. Marcella’s risk of developing mesothelioma if Mr. Marcella were in close proximity

to work being performed using the product. But Mr. Spear had no direct testimony placing Mr.

Marcella in proximity to the particular product.”71 With that, Plaintiffs assert that there was no

ambush and that the Court appropriately limited Spear’s testimony to his expert report.72

Moreover, Plaintiffs point out that Levingston offered product-specific exposure testimony and

the jury simply was not persuaded by it.73

67 Id. at 4-5.

68 R. Doc. 358 at 5.

69 Id. at 11-13.

70 Id. at 12 (alteration omitted) (quoting Spear’s expert report).

71 Id. (footnote omitted).

72 Id. at 12-13.

73 Id. at 13.

Similarly, Third-Party Defendants argue that Avondale was not ambushed by Spear’s

testimony because his testimony was consistent throughout the litigation – attesting that Marcella

was exposed to asbestos-containing products when he worked at Avondale, but Spear could not

say with certainty which products Marcella was around in the shipyard.74 Indeed, Third-Party

Defendants argue that Spear could not have identified the specific products to which Marcella was

exposed because there was no direct evidence placing Marcella in the vicinity of any particular

asbestos-containing product.75 Third-Party Defendants assert that Spear was hired to address

asbestos exposure at Avondale generally, not whether a given manufacturer’s product increased

Marcella’s risk of injury.76 Nonetheless, say Third-Party Defendants, Avondale was able to cross-

examine Spear on product-specific hypotheticals to which he responded that Marcella could

potentially have been exposed to those products, but that Spear had not done that analysis.77 The

Third-Party Defendants also point out that, like Spear, Levingston testified that he had no specific

information regarding the particular products to which Marcella was exposed.78 In sum, Third-

Party Defendants argue that there was no ambush sufficient to justify granting Avondale’s motion

for a new trial.79

Avondale replies, reurging that it was prejudiced because Spear’s deposition testimony was

not consistent with the testimony he gave at trial and the Court limited its cross-examination and

ability to impeach him.80 According to Avondale, Spear clearly testified at his deposition that

Marcella was exposed to the Third-Party Defendant’s products and his reversal at trial was a

74 R. Docs. 354 at 3-6; 359 at 1, 7-8.

75 R. Docs. 354 at 5-6; 355 at 3-7.

76 R. Docs. 354 at 6; 355 at 3.

77 R. Docs. 354 at 6-7; 355 at 6-7; 359 at 1-2.

78 R. Doc. 355 at 2-3, 7-8.

79 R. Docs 354 at 7-8

80 R. Doc. 375 at 1-2.

surprise to Avondale and the Court erred by relying on the misrepresentations of Plaintiffs and

Third-Party Defendants regarding the scope of Spear’s report and deposition testimony.81

The Court agrees with Plaintiffs and Third-Party Defendants. Avondale was not prejudiced

by Spear’s trial testimony. Spear clearly and consistently testified at his deposition and at trial that

he could not, with reasonable certainty, attribute Marcella’s injury to any of the Third-Party

Defendant’s specific products because there was no direct evidence placing Marcella in their

vicinity. And Avondale was permitted to cross-examine Spear on hypotheticals regarding whether

the injury could be attributed to the Third-Party Defendants’ products if there was direct evidence

showing that Marcella came in contact with them. Apparently, the jury was not persuaded that

such direct evidence had been shown. Also, in closing, Avondale was allowed to argue to the jury

that Spear’s testimony was impeached, but again, the jury was not convinced. These are not

reasons to grant a new trial.

b. Improper statements

Avondale argues that Plaintiffs and Third-Party Defendants made numerous improper and

unduly prejudicial statements to the jury, communicating “anti-corporate bias, wealth of the

defendant, opinions of counsel about the evidence, arguments without factual support, incorrect

statements about the burden of proof, false statements about Avondale’s positions, and wildly

inaccurate assertions concerning the evidence of damages in the case.”82 In particular, Avondale

takes issue with the fact that counsel for Plaintiffs and the Third-Party Defendants, on numerous

occasions, emphasized that Plaintiffs themselves did not sue the Third-Party Defendants and

opined that Avondale’s claims against the Third-Party Defendants were thus meritless.83 Avondale

81 Id. at 2-4

82 R. Doc. 328-1 at 2-3, 16-25.

83 Id. at 18-21.

contends that the Court’s curative jury instruction on this issue was ineffective because “the

prejudice was already done” considering the combined effect of opposing counsels’ repeated

improper comments.84

Next, Avondale argues that it was prejudiced by Plaintiffs’ counsel’s improper emphasis

on the dollar value of Avondale’s contracts with the Navy, both when cross-examining Avondale’s

maritime expert, Christopher Herfel, and in closing arguments.85 Avondale argues that the amount

of its contracts had no relevance to the case and the statements were prejudicial because they

invited the jury to predicate its verdict on Avondale’s perceived wealth.86 Avondale also contends

that it was prejudiced both by Plaintiffs’ closing argument urging the jury to hold a big corporation

accountable for its actions and claiming that Avondale thought that Marcella was “worthless”

because of his comorbidities and by Plaintiffs’ opening statement that attempted to place the

burden of proof on Avondale.87 Further, Avondale cites as prejudicial Foster Wheeler’s assertion

in closing argument that Marcella was exposed to asbestos at Avondale’s shipyard because his

office was near the insulation shop, which made asbestos-containing blankets.88 Avondale says

this statement was improper argument because there was no evidence adduced at trial to support

it.89 Avondale argues that a new trial is warranted because the repeated improper remarks of

counsel for Plaintiffs and Third-Party Defendants, taken together, “crossed the line from oratory

and hyperbole to impermissible prejudice.”90

84 Id. at 18.

85 Id. at 21.

86 Id. at 21-22.

87 Id. at 22-23.

88 Id. at 23-24.

89 Id. at 24-25.

90 Id. at 25.

As to the claimed improper remarks, Plaintiffs and Third-Party Defendants argue that

Avondale forfeited most of those challenges by failing to make contemporaneous objections.91

They also contend that, assuming that the remarks were prejudicial and the objections preserved,

the Court’s jury instructions cured any potential prejudice.92 Further, the Third-Party Defendants

argue that there was no impropriety in their describing the procedural posture of the case – that

Plaintiffs did not sue them directly.93 Finally, Foster Wheeler argues that the theory that Marcella

encountered asbestos while working near the insulation shop at Avondale’s shipyard was not new

and was supported by the evidence, particularly Fricke’s testimony regarding the location of

Marcella’s office.94

Avondale replies, arguing that it was not required to make contemporaneous objections to

inflammatory statements made during the opposing parties’ opening and closing statements in

order to seek a new trial based on those grounds.95 Avondale contends that the sum total of the

opposing parties’ improper remarks, especially those made in closing arguments, resulted in

prejudice that could not have been cured by jury instructions.96 Avondale also argues that

Marcella’s office was not near the insulation shop, contrary to Foster Wheeler’s assertion.97

Pretermitting whether Avondale’s objections to the supposedly inflammatory remarks

were preserved and whether those remarks were prejudicial, the Court agrees with Plaintiffs and

Third-Party Defendants that the curative instructions to the jury eliminated any potential prejudice.

The Court instructed the jury that (1) “[t]he testimony of the witnesses and other exhibits

introduced by the parties constitute the evidence”; (2) “[t]he statements of counsel, including those

91 R. Docs. 358 at 5, 13-14; 354 at 8-9; 359 at 8-9.

92 R. Docs. 358 at 5, 11, 14-15; 354 at 9-14; 359 at 9-10.

93 R. Docs. 354 at 9; 355 at 3-5.

94 R. Doc. 359 at 11-14.

95 R. Doc. 375 at 5.

96 Id. at 5-8.

97 Id. at 6.

related to the amount of damages, do not constitute evidence, but are only arguments”; (3) they,

as jurors, must “decide this case in a fair, impartial, and unbiased manner, based entirely on the

law and on the evidence presented to [them] in the courtroom”; (4) they, as jurors, “should not be

influenced by passion, prejudice, or sympathy [they] might have for the Plaintiffs or any defendant

in arriving at [their] verdict”; and (5) “[a] plaintiff’s decision not to pursue claims directly against

any third-party defendant is not evidence and may not be considered by [them] when determining

whether a case has been proved.”98 The Court trusts that the jury heeded the curative instructions,

along with all of the other instructions, when reaching a verdict, thus minimizing the effect of any

improper remarks. See Heckman v. Gonzalez-Caballero, 65 F.4th 222, 228 (5th Cir. 2023) (“As

juries are presumed to follow the instructions of the court, we conclude that the trial court’s

instructions effectively minimized any prejudice flowing from the improper remarks.” (quotations

and alterations omitted)). Further, based on Fricke’s testimony, it was reasonable for the jury to

conclude that Marcella encountered airborne asbestos while working in close proximity to the

shipyard’s insulation shop. Thus, a new trial is not warranted based on counsels’ claimed improper

remarks.

c. Plaintiffs’ damages request

Avondale argues that a new trial or remittitur is warranted because it was prejudiced by

Plaintiffs’ closing argument that “mentioned damages that grossly exceeded, by multiple factors,

the highest permissible amount for a case of this nature,” which led to an excessive general

damages award.99 In closing argument, Plaintiffs’ counsel asked the jury to award $15.5 million,

which argument Avondale says was not made in good faith or supported by the law considering

98 R. Doc. 310-2 at 1-2, 6.

99 R. Doc. 328-1 at 3, 25-28.

the evidence.100 The jury awarded $6.625 million, a number that Avondale argues “is grossly

disproportionate given the evidence presented at trial of Mr. Marcella’s advanced age, underlying

health conditions, and limited evidence regarding pain and suffering.”101 Avondale contends that

“Plaintiffs put on scant evidence demonstrating what harm Mr. Marcella actually experienced due

to mesothelioma between July and October 2023, [and i]nstead … spoke to the type of person he

was and the activities that he enjoyed years before the manifestation of his disease – activities that

he had ceased due to his other numerous chronic medical conditions, as well as dementia.”102

Further, Avondale comments that “[t]he only medical evidence that the jury heard was that Mr.

Marcella experienced approximately three months of discomfort and frustration over his disease,

conditions that ‘came and went’ and were not present even a month before his passing.”103 Thus,

Avondale contends that the verdict was “vastly higher than the highest reasonable amount a jury

could have awarded based on this evidence,” demonstrating that “the jury was improperly

influenced by passion and prejudice.”104 According to Avondale, the excessive award warrants a

new trial.105

Avondale replies that neither Plaintiffs nor any Third-Party Defendant specifically

responded to the portion of Avondale’s motion seeking a new trial based on Plaintiffs’ damages

request.106 Instead, says Avondale, Plaintiffs focus on trying to show that this case is similar to

Pete v. Boland Marine & Manufacturing Co. in an effort to stave off remittitur.107 The Court

recognizes that Plaintiffs’ counsel suggested to the jury a very high damages award. Because the

100 Id.

101 Id. at 25-26.

102 Id. at 3.

103 Id.

104 Id. at 3-4, 26.

105 Id. at 25-28.

106 R. Doc. 375 at 9-10.

107 Id.

jury returned a verdict of less than half of that award, it cannot say that Avondale was prejudiced

by the argument in a manner that would require a new trial. Indeed, the Court instructed the jury

that counsels’ statements on damages were not evidence, but simply argument. The jury appears

to have followed the instruction by independently reaching its own dollar figure for a damages

award. Thus, the Court will not grant a new trial on this basis, but will consider remittitur.

2. Avondale’s alternative motion for remittitur due to an excessive award

In the alternative, Avondale moves for remittitur of the jury’s award.108 Avondale argues

that the jury’s general damages award is excessive when compared to the typical range of such

jury awards in factually similar cases in the relevant jurisdiction – namely, Louisiana.109 Avondale

contends that $6.625 million constitutes an excessive general damages award considering

Marcella’s advanced age (81 years), underlying health conditions (blood clotting, benign prostatic

hypertrophy, coronary artery disease, cerebral vascular accident, diabetes, hypertension,

hyperlipidemia, renal failure, and possible dementia), and the limited evidence concerning

Marcella’s pain and suffering during the three-and-a-half months between his first mesothelioma

symptoms and his death.110 Avondale points out that Dr. Staggs testified that Marcella’s chronic

medical conditions affected his quality of life and longevity.111 Avondale also highlights that much

of the testimony showed that Marcella’s quality of life had markedly declined prior to July 2023,

when he first experienced any mesothelioma symptoms.112 For example, Marcella’s wife took

over their finances in 2020; his appetite declined and he began losing weight in 2021; and, at a

doctor’s appointment in 2022, he could not remember his name and was noted to have “progressive

108 R. Docs. 328; 328-1 at 28-36.

109 R. Doc. 328-1 at 29.

110 Id. at 29-30.

111 Id. at 30.

112 Id. at 30-31.

cognitive/functional decline over the past several years.”113 As of 2022, Marcella could no longer

function independently in any complex areas of daily living – his wife managed his medication,

he stopped driving, he did not know his age, and he did not know the year or town he was in when

visiting a doctor.114 Marcella was diagnosed with mesothelioma after he died.115 Avondale

reiterates that Plaintiffs “offered scant evidence about what Mr. Marcella actually experienced due

to mesothelioma” from the time he first experienced symptoms of the disease, July 3, 2023, until

he passed away on October 21, 2023.116 Although Avondale acknowledges that while there was

testimony about Marcella’s discomfort and frustration with not having a diagnosis, there was no

detailed testimony, it says, as would support the jury’s award.117 Avondale states that Plaintiffs

discussed hobbies that Marcella once enjoyed and ceased doing years before he experienced any

mesothelioma symptoms, but they presented “almost no evidence” regarding “how he actually

suffered due to mesothelioma in the last three months of his life.”118 Avondale further argues that

Marcella underwent relatively little medical treatment for mesothelioma – no radiation or

chemotherapy – and no evidence of his mesothelioma-related medical bills was introduced at trial,

which counsels against a high general damages award.119 In sum, Avondale maintains that when

compared to other cases involving remittitur – particularly, Gaddy v. Taylor Seidenbach, Inc. and

Pete v. Boland Marine & Manufacturing Co. – the evidence in this case does not support a general

damages award of $6.625 million.120

113 Id. at 30.

114 Id. at 30-31.

115 Id. at 31.

116 Id.

117 Id. at 31-32.

118 Id. at 32.

119 Id. at 35-36.

120 Id. at 32-35.

Plaintiffs argue that remittitur is unwarranted because the jury’s general damages award

was within 150% of the remitted award in Pete, which Plaintiffs say is the most recent, comparable

case in the relevant jurisdiction – and thus “sufficiently similar – even though, in their view, it has

a “weaker” record on damages.121 Plaintiffs contend that Marcella’s suffering was described in

detail, whereas the description of Pete’s pain was “described only generally.”122 The “detail” of

Marcella’s pain that Plaintiffs cite consists of excerpts from Marcella’s post-July 3 medical visits,

coupled with Dr. Staggs’s testimony about what Marcella would have likely experienced at those

points in time based on the doctor’s knowledge of the mesothelioma disease process.123 Plaintiffs

also contend that Gaddy is irrelevant because it predates Pete and Gaddy testified that he did not

have any pain, whereas “Marcella’s suffering was extreme.”124

Avondale replies, arguing that “Plaintiffs’ [o]pposition takes a 30,000-foot view of

remittitur and fails to engage with the specific facts of this case, Pete, or Gaddy.”125 Avondale

asserts that Plaintiffs did not present any evidence of what Marcella actually experienced due to

mesothelioma, other than periodic pain and frustration from not having a diagnosis, but rather they

relied on Dr. Staggs’s testimony about mesothelioma in general.126 Avondale reiterates that

Plaintiffs testified as to hobbies Marcella ceased years before the disease manifested, but presented

little evidence explaining how he actually suffered from mesothelioma in the last three months of

his life.127 Avondale also argues that the specific facts of Gaddy are more comparable to this case

than are the facts of Pete.128 As to Pete, Avondale contends that it is not analogous because (1)

121 R. Doc. 358 at 5, 11, 15-18 (quotes at 16). The Third-Party Defendants do not take a position on

Avondale’s motion for remittitur. R. Docs. 354 at 13; 355 at 1 n.1; 359 at 1 n.1.

122 R. Doc. 358 at 15-18 (quote at 16).

123 Id. at 16-18.

124 Id. at 5, 11, 18-19 (quote at 5).

125 R. Doc. 375 at 10.

126 Id. at 10, 12.

127 Id. at 12-13.

128 Id. at 12-16.

the plaintiff was alive at the time of trial, and testified as to his own pain and suffering, and (2) the

damages award included sums to compensate the plaintiff for future physical pain and suffering,

mental pain and suffering, physical disability, and loss of enjoyment of life.129 Also, Pete’s past

damages award spanned 18 months, whereas Marcella was ill with mesothelioma for only three-

and-a-half months, and Pete endured arduous medical treatment, such as chemotherapy, that

Marcella did not.130 Further, in Pete there was extensive testimony regarding how mesothelioma

affected the plaintiff’s quality of life, whereas the record in this case lacks such evidence

considering that Marcella was no longer functioning independently in the complex activities of

daily living before he experienced his first symptoms of mesothelioma.131 Avondale argues that

Gaddy, on the other hand, is more factually similar to this case because the plaintiff there suffered

with mesothelioma for six months prior to death, had a variety of other health conditions that

contributed to his loss of enjoyment of life and mental anguish, and underwent less medical

treatment than the plaintiff in Pete.132 Avondale also points out that neither the district court nor

the Fifth Circuit discussed the 150% rule in Gaddy, suggesting, says Avondale, that the “rule” is

not mandatory in fact-specific mesothelioma cases.133 Avondale thus contends that this case

should be valued “on the lower end of the spectrum presented … in Gaddy: $1.5 million.”134

Under Rule 59(a)(1)(A), a court may “grant a new trial when the jury’s award is excessive

and against the great weight of the evidence in a manner that suggests bias or prejudice.” Gaddy

v. Taylor Seidenbach, Inc., 446 F. Supp. 3d 140, 159 (E.D. La.) (citing Brunnemann v. Terra Int’l,

Inc., 975 F.2d 175, 178 (5th Cir. 1992)), aff’d sub nom., Adams v. Ethyl Corp., 838 F. App’x 822

129 Id. at 13.

130 Id.

131 Id. at 13-15.

132 Id. at 15-16.

133 Id. at 16 (“Indeed, no court has applied the 50% enhancement to a mesothelioma case.”).

134 Id.

(5th Cir. 2020). If, however, the damages award is “merely excessive or so large as to appear

contrary to right reason … remitter, not a new trial,” is the appropriate remedy. Brunnemann, 975

F.2d at 178. “An award is excessive only if it is greater than the maximum amount the trier of fact

could properly have awarded.” Moore v. M/V Angela, 353 F.3d 376, 384 (5th Cir. 2003).

Courts in the Fifth Circuit utilize a “maximum recovery rule” to determine whether a jury’s

general damages award is excessive. Puga v. RCX Sols., Inc., 922 F.3d 285, 297 (5th Cir. 2019).

“The inquiry looks to other published decisions from the relevant jurisdiction … involving

comparable facts.” Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019). The

“relevant jurisdiction” in this context “is the state providing the substantive law for the claim.”

Puga, 922 F.3d at 297 (quotation omitted). Although “[p]ast verdicts can provide an objective

frame of reference,” they do not control, because “[w]hen determining the excessiveness of a jury

verdict, courts must review each case on its own facts.” Id. (quotations omitted). The maximum

recovery rule allows a verdict that is less than or equal to 150% of the highest inflation-adjusted

awards in analogous, published cases from the relevant jurisdiction. Longoria, 932 F.3d at 365,

367.

In Longoria, the Fifth Circuit acknowledged that it has been “inconsistent about where in

the analysis the [maximum recovery] rule has a role.” Id. at 365. The court stated that sometimes

the rule had been applied “at the outset to determine whether the damages [were] excessive,” and

“[o]ther times … the rule [was used] only to determine how much of a reduction [was] warranted

after deciding the award [was] excessive.” Id. The difference may matter when state law applies

to the substantive claims. Id. Although the Fifth Circuit recognized that the maximum recovery

rule is a useful “guidepost in setting a remitter, which is itself a discretionary act,” at step two, it

declined to decide whether the rule could be used in step one – determining excessiveness –

because, in the case before it, the result was the same under both the rule and the applicable state

law (Texas). Id. at 366. Thus, this Court must examine Louisiana law on remittitur in conjunction

with its application of the federal maximum recovery rule.

Under Louisiana law, courts evaluating the excessiveness of a jury’s damages award must

consider “prior awards in similar cases, as well as the particular facts and circumstances of the

case under review.” Pete v. Boland Marine & Mfg. Co., 379 So. 3d 636, 644 (La. 2023). Then

“the court is to … also consider those prior awards to determine the highest or lowest point which

is reasonably within [the jury’s] discretion.” Id. (quotation omitted). The goal in remitting an

award “is not to balance the number of high and low awards and arbitrarily adjust the jury’s award

to an average of these awards but to determine the highest reasonable award.” Id. at 650.

The outcome in this case at step one (the question of excessiveness) is the same under the

Louisiana or federal standard. An examination of the facts and circumstances of this case, coupled

with a review of the prior jury awards in comparable cases, leads to the conclusion that the jury’s

general damages award was excessive. As Avondale points out, Plaintiffs presented very little

evidence at trial of what Marcella actually endured in the three months between his first symptoms

of mesothelioma and when he passed away. Because he was not diagnosed with mesothelioma

until after death, the record does not contain a first-hand account of his pain and suffering or mental

anguish attributable to the disease. The record also lacks evidence of Marcella’s mesothelioma-

related medical bills. Indeed, he underwent little medical treatment for mesothelioma – no

radiation or chemotherapy. That is not to say that there was no evidence supporting some kind of

general damages award. The record reflects medical appointments at which Marcella presented

with complaints consistent with the disease and that he underwent two thoracenteses procedures

to relieve fluid buildup from his lungs. The medical records recount pain reported by Marcella.

These records were supplemented by Dr. Staggs’s testimony about the mesothelioma disease

process and his assumptions about what Marcella would have experienced at various stages of the

disease, including a drowning sensation as a result of the fluid buildup. Plaintiffs – Marcella’s

wife and children – offered little insight into what Marcella suffered due to mesothelioma during

the last three months of his life. They testified as to what Marcella was like as a husband and

father. They also discussed hobbies that Marcella enjoyed in his younger years, but had ceased

due to other health conditions preexisting his first symptoms of mesothelioma. They did testify

that he was frustrated by the lack of a diagnosis for his symptoms. Although this evidence is

relevant and supports a damages award, it does not support an award of $6,625,000, especially in

light of the other evidence. Marcella was advanced in age (81 years), had underlying health

conditions that affected his quality of life long before developing mesothelioma (blood clotting,

benign prostatic hypertrophy, coronary artery disease, cerebral vascular accident, diabetes,

hypertension, hyperlipidemia, renal failure, and possible dementia), and suffered from

mesothelioma for a relatively short time (approximately three months). The record also reflects

that, prior to manifesting this disease, Marcella was already unable to function in many tasks of

daily living due to his other ailments. For example, Marcella’s wife took over their finances in

2020; his appetite declined and he began losing weight in 2021; and, as of 2022, he had shown

progressive cognitive and functional decline – his wife managed his medication, he stopped

driving, and he could not report basic information (name, age, location) when visiting a doctor.

Considering this particular decedent and the particular circumstances of this case, the general

damages award is not within the range that a reasonable jury could have appropriately awarded

based on the evidence.

Awards from both jury and bench trials in comparable cases from Louisiana support the

finding that the general damages award in this case was excessive. See Gaddy, 446 F. Supp. 3d at

160-62. This Court uses Gaddy as its guide. While Gaddy is the most factually similar to this

case, it cannot serve as a barometer of what a reasonable jury would award because it involved a

remitted award.135 See Longoria, 932 F.3d at 367 (explaining that, in analyzing remittitur, the

benchmark is jury awards in comparable cases, not awards remitted by a court). Nevertheless,

Gaddy is instructive because it is factually similar to this case and the district court there undertook

a review of the relevant Louisiana jury and bench awards.

Plaintiff Gaddy, like Marcella, died of mesothelioma. Gaddy, 446 F. Supp. 3d at 160. Also

like Marcella, Gaddy was of advanced age at death (86 years), suffered with the disease for a

relatively short time (six months), and had “a variety of afflictions that contributed to his loss of

enjoyment of life and mental anguish.” Id. The record in Gaddy, like this case, contained little

evidence of Gaddy’s pain and suffering, but was supplemented by medical-expert testimony about

the disease process. Id. In contrast to the record here, Gaddy incurred $250,661.45 in

mesothelioma-related medical expenses. Id. at 148-49. The jury awarded $7,500,000 in general

damages to Gaddy’s survivors. Id. at 148. The defendant moved for remittitur. Id. at 149.

After reviewing the general damages awards in comparable Louisiana cases, particularly,

White v. Entergy Gulf States Louisiana, L.L.C., 167 So. 3d 764 (La. App. 2014), the district court

in Gaddy held that the jury’s award of general damages to Gaddy was excessive. Id. at 160-61.

The Gaddy court found White to be the most factually similar case from the relevant jurisdiction.

Id. In White, which was tried to the bench without a jury, a Louisiana appellate court upheld the

trial court’s $3,800,000 general damages award to the survivors of a 79-year-old mesothelioma

135 The Court notes that Pete also involves a remitted jury award. See Pete, 379 So. 3d at 650.

victim who died a little more than one month after his diagnosis and never complained about pain

although “he was frail, suffered from fluid retention and mouth sores, could not chew or eat his

food, and lost weight.” Id. at 161 (citing White, 167 So. 3d at 767, 771-72). Given the factual

similarities between the two cases, the district court in Gaddy noted that the jury’s award to

Gaddy’s survivors was clearly excessive because it was “almost twice the award upheld in White.”

Id. at 161. The same holds true here. The jury’s award to Plaintiffs was clearly excessive as it

was nearly 75% higher than the amount upheld in White – which, like Gaddy, is a case factually

similar to Marcella’s.

Plaintiffs advocate that remittitur is unwarranted because, in their view, the jury’s general

damages award is not excessive when compared to the remitted award in Pete. However, Pete is

not an appropriate comparator. Pete had a much stronger record on the plaintiff’s pain and

suffering. Pete, unlike Marcella, was alive at the time of trial and testified as to how his

mesothelioma diagnosis and treatment affected him. Pete, 379 So. 3d at 645-46. He explained

that the news was “devastating,” leading to depression and a decision to keep it to himself for a

time because he was worried about how it would affect his wife and children. Id. at 646. In

contrast, Marcella never knew he had the disease. Pete underwent chemotherapy and other

treatments that were “very rough on the body and mind” and caused “nausea, difficulty

swallowing, joint pain and weakness, shoulder pain, as well as difficulty sleeping.” Id. He had a

port inserted in his chest to receive treatments. Id. Marcella had relatively little treatment related

to mesothelioma symptoms and did not undergo chemotherapy. Mesothelioma, not other

preexisting ailments, prevented Pete from enjoying his life and aiding his family in the ways he

did before the disease manifested. Id. at 646-47. There was little evidence of how Marcella’s

quality of life was diminished by mesothelioma, as opposed to his other preexisting ailments that

had greatly affected him prior to July 2023. In all, Pete lived for two years following his diagnosis

and incurred $551,020.70 in mesothelioma-related medical expenses. Id. at 640, 647. Marcella

lived for a little more than three months from the first symptoms of the disease and no evidence of

his relatively small medical bills was introduced at trial. Pete is not the most factually similar case

to this one.

“Having found that the jury’s award was excessive, the Court must now determine the

highest amount the jury could have awarded based on the evidence without abusing its discretion.”

Gaddy, 446 F. Supp. 3d at 161. Again, Gaddy serves as a useful guide. The district court in Gaddy

surveyed the relevant, factually similar cases from Louisiana and determined that “[m]ost survival

actions involving mesothelioma have generated recoveries ranging from $1,500,000.00 to

$3,000,000.00,” and “the majority of these cases involve more evidence of obvious and extreme

pain and suffering.” Id. at 162. The cases reviewed, in addition to White, include: Roberts v.

Owens-Corning Fiberglas Corp., 878 So. 2d 631 (La. App. 2004) (upholding a $3,000,000 general

damages award where the record reflected that the plaintiff suffered “incredible pain” and had a

morphine pump that could not control it); Hennegan v. Cooper/T. Smith Stevedoring Co., 837 So.

2d 96 (La. App. 2002) (upholding a $2,500,000 general damages award where the record reflected

that the plaintiff took large amounts of pain medication); Chaisson v. Avondale Indus., Inc., 947

So. 2d 171 (La. App. 2006) (upholding a $1,416,580.54 general damages award where the

decedent’s children testified that her pain was evident from her facial expressions); Torrejon v.

Mobil Oil Co., 876 So. 2d 877 (La. App. 2004) (upholding a $1,800,000 general damages award

where the victim lost 40 pounds, could not bath himself, developed bed sores, and was prescribed

large amounts of medication for great pain); Terrance v. Dow Chem. Co., 971 So. 2d 1058 (La.

App. 2007) (upholding as $5,000,000 general damages award to a mesothelioma victim who had

terrible pain, numerous hospitalizations, painful procedures, nausea, severe weight loss, and

fatigue and used powerful pain medication). See Gaddy, 446 F. Supp. 3d at 160-62 (collecting

cases). With these cases as a backdrop, the Gaddy court again discussed the evidence of Gaddy’s

pain and found that the evidence “authorize[d] a larger general damage award than the majority of

the [surveyed] cases [which generated recoveries in the range of $1.5 to $3 million] but” not one

as large as the one in White ($3.8 million). Id. at 162. The Gaddy court then concluded that a

general damages award of $3 million was appropriate.

The same analysis pertains here. Marcella reported pain to physicians on a few occasions,

and Dr. Staggs used his understanding of the mesothelioma-disease process to explain what

Marcella would have been experiencing during those appointments, even if he did not precisely

articulate it. Also, photographs of Marcella in his last days depict a feeble and emaciated man.

Plaintiffs explained that, although Marcella had largely given up his hobbies by the time he

manifested mesothelioma, they noticed a swift decline once the disease’s symptoms began.

Marcella underwent two thoracenteses procedures to address a particularly distressing medical

problem. He was ill with the disease for about three months and had underlying medical conditions

that affected his quality of life. These facts are very similar to Gaddy. Therefore, this Court finds

that an award in line with Gaddy – and the cases underlying that decision – is appropriate.

A consideration of Pete and the cases cited therein bolsters this conclusion. As previously

discussed, Pete is factually distinguishable from this case. The remitted general damages award

there – $5,000,000 – compensated for two years of physical and mental suffering, the effects of

numerous medical procedures, and a marked disease-related decline in the quality of life. Pete,

379 So. 3d at 645-47. It also included a future damages award because Pete was alive at the time

of trial. Id. at 640. A remitted award of $5,000,000 in this case would be unreasonable considering

the numerous factual distinctions.

In finding $5,000,000 to be a reasonable award, the Pete court primarily relied on Lege v.

Union Carbide Corp., 365 So. 3d 617 (La. App. 2021). See Pete, 379 So. 3d at 647-48. The

appellate court in Lege, upheld a $4,000,000 general damages award where the decedent lived for

two years following his diagnosis, suffered immense pain, depression, and shortness of breath, had

fluid removed from his lungs, underwent unsuccessful chemotherapy, was confined to bed for the

last four months of his life, and could not eat or speak. Id. These facts were clearly analogous to

Pete. The Pete court, in addition to White, reviewed the following cases: Bagwell v. Union Carbide

Corp., 364 So. 3d 378 (La. App. 2019) (increasing survival damages award to $1,450,000 where

a 57-year-old mesothelioma victim suffered for three years with immense pain and numerous

medical procedures, was forced into retirement from an aerospace career, sustained loss of

enjoyment of life, and had a greatly diminished life expectancy), rev’d on other grounds, 308 So.

3d 289 (La. 2021); Craft v. Ports Am. Gulfport, Inc., 273 So. 3d 517 (La. App. 2019) (refusing to

increase a $1,600,000 general damages award where mesothelioma victim testified as to

significant impact on enjoyment of life and numerous medical procedures); Romano v. Metro. Life

Ins. Co., 221 So. 3d 176 (La. App. 2017) (increasing a $500,000 jury award of general damages

to $1,500,000 where plaintiff had numerous invasive surgeries, including partial removal of the

lung lining, and suffered for two years); Williams v. Placid Oil Co., 224 So. 3d 1101 (La. App.

2017) (affirming survival damages award of $3,000,000 where wife developed mesothelioma from

asbestos on husband’s clothes and evidence showed tumors encased her heart); and Oddo v.

Asbestos Corp., 173 So. 3d 1192 (La. App. 2015) (affirming survival damages award of

$2,301,393.15 for 81-year-old man who died two months after mesothelioma diagnosis). See Pete,

379, So. 3d at 648-49. The facts of the case at bar are clearly closer to those on the lower end of

the spectrum of these cases than they are to either Pete or Lege.

Considering the foregoing, and having concluded that the jury’s general damages award of

$6,625,000 was excessive, the Court must determine the highest award the jury could have

rendered. As noted in Gaddy, and confirmed in Pete, survival actions involving mesothelioma

generate recoveries ranging from $1,500,000 to $5,000,000, with the higher end encompassing

cases involving more protracted periods of living with the disease, more medical intervention, and

a stronger record of pain and suffering. After reviewing all of the evidence in the record, especially

witness testimony, the Court, applying the maximum recovery rule applicable to claims arising

under Louisiana law, concludes that an appropriate award in this case is $3,900,000. This figure

is derived from the $3 million award the Gaddy court held to be the highest amount the jury could

have properly awarded in that case, after surveying the most comparable published decisions from

the relevant jurisdiction and applying the maximum recovery rule, which award was subsequently

upheld by the Fifth Circuit. Using the U.S. Bureau of Labor Statistics’ CPI Inflation Calculator,136

this Court then adjusted this $3 million figure for inflation and rounded the result upwards, yielding

$3.9 million as the highest reasonable award for this case.

C. Plaintiffs’ Rule 59(e) Motion to Alter or Amend Final Judgment (R. Doc. 316)

Plaintiffs move under Rule 59(e) to alter or amend the final judgment to include awards of

prejudgment interest at the applicable Louisiana state judicial interest rate from February 8, 2024

(the date of judicial demand), through February 12, 2026 (the date of final judgment), and post-

judgment interest based on the standard federal judicial interest rate.137 Plaintiffs assert that post-

judgment interest is governed by federal law and is automatically awarded as a matter of course

136 See Longoria, 932 F.3d at 367 n.6; Puga, 922 F.3d at 298 n.12.

137 R. Doc. 316.

pursuant to 28 U.S.C. § 1961(a).138 Plaintiffs argue that Louisiana law applies to the award of

prejudgment interest because this Court exercised supplemental jurisdiction over their state-law

negligence claims.139 They further argue that, under La. R.S. 13:4203, prejudgment interest is

mandatory in tort cases brought under Louisiana law.140

Avondale does not dispute that post-judgment interest at the federal interest rate should be

awarded pursuant to § 1961(a).141 But Avondale does take issue with the Plaintiffs’ position on

prejudgment interest, urging instead that the Court decline to exercise its discretion to award

prejudgment interest or, alternatively, award it at the federal interest rate, not the Louisiana rate.142

Avondale contends that an award of prejudgment interest is not governed by Louisiana law in this

case because this Court exercised neither diversity jurisdiction pursuant to 28 U.S.C. § 1332, nor

supplemental jurisdiction pursuant to 28 U.S.C. § 1367, over Plaintiffs’ state-law negligence

claims.143 Instead, Avondale removed this case on the basis of federal-officer jurisdiction pursuant

to 28 U.S.C. § 1442(a)(1).144 Thus, says Avondale, federal law, which neither permits nor

precludes prejudgment interest, applies and the Court should either decline to award it or award it

at the federal interest rate.145

Plaintiffs reply, arguing that upon dismissal of Avondale’s federal defenses, this Court

retained supplemental jurisdiction over Plaintiffs’ claims by virtue of § 1367.146 Thus, Plaintiffs

138 Id. at 1.

139 R. Doc. 316-1 at 3.

140 Id.

141 R. Doc. 329 at 1 n.2.

142 Id. at 1.

143 Id. at 1-6.

144 Id. at 2.

145 Id. at 2-6.

146 R. Doc. 331 at 1-6.

contend that prejudgment interest is governed by state law and is mandatory at the Louisiana rate

under La. R.S. 13:4203.147

In a surreply, Avondale argues that § 1367 is not applicable in this case.148 Instead,

Avondale states that § 1442(a)(1) creates a type of ancillary jurisdiction over the nonfederal claims

in the case so that those claims remain in federal court even after the dismissal of the federal claims,

without reliance on § 1367.149 Avondale continues to assert that this means that state law does not

apply to the award of prejudgment interest.150

As Avondale says, this case was removed to federal court based on federal-officer

jurisdiction pursuant § 1442(a)(1).151 The notice of removal does not invoke diversity (§ 1332) or

supplemental (§ 1367) jurisdiction.152 And the Order & Reasons dismissing Avondale’s federal

defenses makes no mention of § 1367 (or any other law) as the basis for retaining jurisdiction over

Plaintiffs’ state-law negligence claims.153 No party, nor the Court, questioned the retention of

jurisdiction. Indeed, the Fifth Circuit has held that, when a case is removed under § 1442(a)(1),

the “elimination of the removable [federal] controversies d[oes] not deprive the court of power to

enter judgment” on a state-law claim because “§ 1442(a)(1) creates a species of ancillary

jurisdiction over the nonfederal elements of the case.” IMVC Pro. Servs. of Fla., Inc. v. Latin Am.

Home Health, Inc., 676 F.2d 152, 158 (5th Cir. 1982). Under this view, this ancillary jurisdiction

is not dependent on a party’s invocation of § 1367. See id. at 158-59; see Deroche v. Anco Insuls.,

Inc., 2025 WL 2848059, at *4 (E.D. La. Oct. 8, 2025) (observing that federal jurisdiction over

state-law claims was retained under § 1442(a) after the dismissal of federal defenses, without

147 Id. at 6-8.

148 R. Doc. 343 at 1-2.

149 Id. at 2.

150 Id. at 1-4.

151 R. Doc. 1.

152 Id.

153 R. Doc. 175.

exercising supplemental jurisdiction under § 1367). Courts have recognized that “‘a federal

court’s r[o]le under § 1442(a) is similar to that of a federal court sitting in diversity.’” McAllister

v. McDermott, Inc., 2020 WL 4745743, at *9 (M.D. La. Aug. 14, 2020) (alteration omitted;

collecting cases) (quoting Kolibash v. Comm. on Legal Ethics of W. Va. Bar, 872 F.2d 517, 577

(4th Cir. 1989)). If this Court were sitting in diversity, prejudgment interest would be governed

by Louisiana law and mandatory under La. R.S. 13:4203. Harris v. Mickel, 15 F.3d 428, 429 (5th

Cir. 1994) (“State law governs the award of prejudgment interest in diversity case.”); La. R.S.

13:4203 (“Legal interest shall attach from the date of judicial demand, on all judgments, sounding

in damages, ‘ex delicto’, which may be rendered by any of the courts.”). Under this reasoning, the

Court finds that it should act as if it were sitting in diversity, and prejudgment interest should be

awarded at the Louisiana rate.154

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Avondale’s motion for judgment notwithstanding the verdict (R.

Doc. 324) is DENIED.

IT IS FURTHER ORDERED that Avondale’s motion for new trial (R. Doc. 328) is

DENIED.

IT IS FURTHER ORDERED that Avondale’s motion for remittitur (R. Doc. 328) is

GRANTED. The general damage award is remitted to $3,900,000.00. Plaintiffs must file either

154 Alternatively, the IMVC court’s notion of ancillary jurisdiction discussed in that 1982 case was subsumed

within the concept of supplemental jurisdiction upon the adoption of § 1367 in 1990. Cf. King v. Enter. Leasing Co.,

2007 WL 840302, at *1 (N.D. Tex. Mar. 20, 2007) (observing that “ancillary” jurisdiction over indemnification claim

was subsumed within supplemental jurisdiction by means § 1367). If so, it also follows that “[w]hen state law claims

are before a federal court based on supplemental jurisdiction, state law governs the award of prejudgment interest.”

5G Studio Collaborative, LLC v. Dall. Uptown Hosp., LLC, 2017 WL 4750697, at *2 (N.D. Tex. Oct. 20, 2017).

Either way, then, state law governs the award of prejudgment interest.

an acceptance of the remittitur or notice of intent to retry the case within 21 days of the issuance

of this Order & Reasons.

IT IS FURTHER ORDERED that Plaintiffs’ Rule 59(e) motion to alter or amend the final

judgment to include prejudgment and post-judgment interest (R. Doc. 316) is GRANTED.

Plaintiffs are awarded prejudgment interest at the applicable Louisiana state judicial interest rate

from the date of judicial demand (February 8, 2024), through the date of the final judgment

(February 12, 2026), along with post-judgment interest at the standard federal judicial rate.

IT IS FURTHER ORDERED that, if Plaintiffs elect to accept the remitted award, the

parties must jointly submit to the Court a proposed final judgment within five days of the date of

Plaintiffs’ notification to the Court of their choice.

New Orleans, Louisiana, this 26th day of May, 2026.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE