United States Court of Appeals for the Fifth Circuit
In December 2018, Sue Perry (“decedent”) passed away following her second lung cancer diagnosis. Her surviving husband and daughters (“plaintiffs”) alleged that she developed lung cancer from laundering Mr. Perry’s work clothes when he worked as a millwright at the Union Carbide Corporation (“UCC” or “defendant”) Taft facility for 8-10 weeks in 1978. He alleged his work on cranes, pumps, turbines, and other equipment created asbestos dust and fibers that got on his work clothes which were laundered by the decedent. Every defendant besides UCC was dismissed with prejudice prior to the March 2024 bench trial. In June 2025, the district court entered a final judgment ruling that UCC was at fault for causing the decedent’s lung cancer and awarded the plaintiffs more than $2.75 million.
UCC set forth multiple errors in its appeal. First, UCC contended the court erred in awarding damages to the plaintiffs for the decedent’s wrongful death as (1) the decedent’s treating physician opined her cause of death was COPD and (2) the record contained no evidence that asbestos exposure caused Ms. Perry’s COPD. UCCalso argued that even if damages were appropriate, the $700,000 allotted to each daughter was erroneous. UCCnext argued that the court’s award for survivorship was erroneous because the decedent’s COPD caused the majority of her hospitalizations and treatment. Lastly, UCC contended the court erred in awarding funeral and medical expenses for hospice care.
In Louisiana State Court, a judicial notice of a fact may exist if it is (1) generally known within the territorial jurisdiction of the court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Critically, there had been no wide-spread agreement between parties that COPD could be caused by asbestos and thus no judicial notice of fact. Accordingly, the district court veered outside the record and conducted independentscientific research prior to issuing its decision. Although an appellate court typically does not question a district court’s findings of fact, it will when such findings are clearly or manifestly wrong. As such, the district court’s unwarranted external research materially affected the damages awarded to plaintiffs, requiring the circuit court to review the facts de novo on the issue of damages alone.
According to UCC, the district court’s decision as to causation was erroneous because it impermissibly considered evidence outside the record. To recover damages, the plaintiffs were required to prove by a preponderance of the evidence that UCC’s conduct was a substantial factor that brought about the decedent’s death. Dabog v. Deris, 625 So.2d 492, 493 (La. 1993). UCC argued that Ms. Perry’s COPD from smoking cigarettes was the sole cause of her death. The appeal prompted a battle of the experts and the Fifth Circuit referred to both parties as well as an independent expert witness to rule on this issue. The defendant’s medical expert put forth several opinions, including that: (1) the decedent’s significant smoking history caused her to develop lung cancer, (2) asbestos could not have been a cause of Ms. Perry’s illness because she did not have asbestosis, (3) asbestosis is a perquisite to lung cancer and the decedent’s 8-10 week period of exposure was insufficient to cause asbestosis, (4) the decedent died from multiple severe exacerbations of her COPD over a short period, (5) asbestos exposure does not cause COPD, and smoking is its sole cause, and (6) the decedent’s death certificate listed COPD as her immediate cause of death.
The plaintiffs produced one of the decedent’s treating physicians, who opined that both asbestos exposure and smoking caused Ms. Perry’s lung cancer, as proven by the existence of pleural plaques in her lungs. He could not identify any other possible source of pleural plaques besides asbestos exposure and specifically stated that COPD did not cause pleural plaques to form. In the months leading to her death,he treated the decedent for recurrent respiratory failure. He opined this was her cause of death and that COPD contributed to it. Another medical expert opined that Ms. Perry died from a combination of COPD and respiratory failure related to her lung cancer.
The Fifth Circuit weighed the opinions with additional evidence in the record (medical records, hospice care plans, and the decedent’s death certificate) and then evaluated each experts’ credibility based on a number of factors. Importantly, the Fifth Circuit found UCC’s expert to be less credible than the others. Not only did the expert fail to address the existence of pleural plaques, but he had also worked exclusively for defendants throughout his career. Subsequently, the Fifth Circuit referenced the other opinions as well as medical records to conclude the decedent’s asbestos exposure through her husband’s work at UCC was a substantial contributing factor to her death.
Finally, the Fifth Circuit concluded that precedent supported the awarded wrongful death and survivorship damages. Ms. Perry’s physical decline and suffering over a two-year period, combined with her distress, depression, and loss of quality of life, warranted these awards and did not constitute abuses of discretion. Thus, the Fifth Circuit affirmed the district court’s amended final judgment.
Read the full decision here.
