Correct Quantum Query: Damage Awards and Abuse of Discretion in Louisiana after Pete v. Boland Marine & Manufacturing Co., LLC

by Tyler J. LeBlanc


“Damages are designed, not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.”[1] This assertion is emblematic of the importance of, and the policies underlying, the remedy of legal damages by implicating both the economic and the corrective justice theories of damages.[2] The economic analysis of damages posits that damages are intended to deter misconduct by imposing a monetary penalty upon the defendant.[3] The corrective justice analysis states that it is not the defendant’s payment that is paramount, but the vindication of the plaintiff’s rights and making the plaintiff whole so far as money can.[4]

The importance of these policies suggests that a methodological shift in how a judiciary reviews damage awards to plaintiffs can have an outsized impact on how citizens structure their relations with one another.[5] As a result, decisions such as the Louisiana Supreme Court’s recent findings in Pete v. Boland Marine & Mfg. Co., LLC on general damages must be closely examined.[6] General damages refer to “losses suffered that… can be difficult to put a clear price on.”[7] In Pete, the Louisiana Supreme Court provided a new test for appellate courts in determining whether a general damage award at trial is excessive and correlatively, whether such an award is inadequate.[8]


After his high school graduation, Henry Pete began career as a longshoreman at the Port of New Orleans in 1964.[9] He worked there for several years until 1968, before later becoming a chiropractor.[10] In 2019, Pete was diagnosed with malignant mesothelioma.[11] Soon after, in 2020, he filed suit alleging that his mesothelioma was caused by exposure to asbestos when he worked at the Port of New Orleans.[12] Three defendants went to trial for his claims: Ports America Gulfport (Ports America); SSA Gulf, Inc. (SSA); and James J. Flanagan Shipping Corporation (Flanagan Shipping).[13] In late 2020, a jury awarded Pete a favorable verdict against Ports America, while the court found the other two defendants not at fault.[14]

The total award amounted to $10,351,020.70.[15] This included $2,000,000.00 in physical pain and suffering, $2,300,000.00 in mental pain and suffering, $3,000,000.00 for physical disability, $2,500,000.00 for loss of enjoyment of life or “hedonic” damages, and $551,020.70 for medical expenses.[16] Thus, the general damages portion of this award constituted $9,800,000.00 of the total award.[17] The jury verdict was left undisturbed by the trial judge.[18]

Ports America appealed on several grounds, one of which was based on excessiveness of the general damage award.[19] The Louisiana Fourth Circuit Court of Appeal affirmed the trial judgment based on established jurisprudence that reviewing quantum is a two-step inquiry, beginning with “whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear ‘abuse of discretion’ of the trier of fact.”[20] The court of appeal determined that there was no abuse of discretion in determining the quantum of the award.[21] The Louisiana Supreme Court, in its assessment of the court below, stated that the court of appeal summarily determined there was no abuse of discretion and that the award did not “shock the conscience.”[22] Notably, the Louisiana Supreme Court highlighted Judge Dysart’s dissent on the court of appeal , that “[r]ecent awards . . . in cases similar to the instant case would suggest that a general damage award should be somewhere in the neighborhood of half of what was awarded to Mr. Pete. . . . Accordingly, I would reduce the damages awarded to Mr. Pete by one-half.”[23] Ports America sought writ from the Louisiana Supreme Court after its initial appeal, and the Court granted writ on the limited issue of quantum.[24]

I. Pre-Boland Law

In beginning its discussion of pre-Boland law, the Louisiana Supreme Court restated the general principle that juries have great discretion in awarding general damages.[25] Further, “[s]ince an award of damages for personal injuries is of necessity somewhat arbitrary and also must vary greatly with the facts and circumstances of each case, the trial court is entrusted with large discretion [in] making such awards . . . .”[26] However, this general principle is delimited by appellate review of general damage awards.[27] “The role of an appellate court in reviewing a general damage award . . . is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.”[28] Thus, an appellate court may not overturn a trial court’s decision merely because it would have found differently on the facts.[29]

Traditionally, appellate review of the excessive, or inadequate, nature of the quantum of general damage awards has been a two-step inquiry.[30] The first step is to ask whether the trial court’s award for the plaintiff’s injuries is a clear abuse of the factfinder’s discretion.[31] Once a determination has been made that such an abuse of discretion has occurred, only then may an appellate court proceed to the second step.[32] The second step of the analysis requires consideration of prior awards in similar cases to assess the maximum and minimum awards reasonably within that discretion.[33] Using this range of reasonable awards, the reviewing court may then designate the trial court’s award as either excessive or insufficient and set the award accordingly for the case.[34]

The Louisiana Supreme Court seemed to take primary issue with the first step of the review process.[35] The justices disapprove of the subjective nature of this step and the lack of any guiding principle or objective factors that would inform an appellate judge when a trial court has abused its discretion.[36] Bearing in mind these concerns, the Louisiana Supreme Court proceeded to craft a modified analysis for the review of quantum within an objective mold.[37]

II. Post-Boland Law

The Court began its modification of the first step of quantum review by reflecting on two contradictory lines of jurisprudence.[38] One line of jurisprudence explicitly rejects the principle that an appellate judge may undertake a review of awards in similar cases to assist him or her in determining whether there has been an abuse of discretion.[39] Another line of jurisprudence suggests that appellate courts could consider these other prior awards in the first step of quantum review.[40]

The Louisiana Supreme Court explained that the consideration of prior awards provides an objective “reasonable criterion” in the evaluation of the quantum of a general damage award.[41] Further, having some metric by which to test the trial court removes the subjective element of the analysis and proscribes reviewing quantum by judicial whim.[42] For these reasons, and while noting that the two lines of jurisprudence are incompatible, the Louisiana Supreme Court decided that adopting the line of case law permitting review of analogous awards at step one is best.[43]

While agreeing with the majority’s decision to introduce objectivity into the review process, Justice Griffin, concurring in part and dissenting in part, asserted that “the overriding factor must always be the individualized circumstances of the particular case lest the guideposts provided by prior awards devolve into the substitution of an individual’s unique injuries and suffering in favor of a spreadsheet of numbers.”[44] Justice Griffin also sought to encourage the consideration of economic factors such as inflation, which might impact how historical awards are analogized to more contemporary awards.[45]

While the consideration of prior awards at step one may seem to blend the analysis from step two into a single determination, the Louisiana Supreme Court was quick to disavow this inference:

We do not abandon the two-step analysis for the appellate review of a general damage award but modify the analysis as follows. The question of whether the trier of fact abused its discretion in assessing the amount of damages remains the initial inquiry. However, to evaluate this issue, an appellate court is to include a consideration of prior awards in similar cases, as well as the particular facts and circumstances of the case under review. If an abuse of discretion is found, the court is to then also consider those prior awards to determine “the highest or lowest point which is reasonably within that discretion.”[46]

With this new review mechanism in place, the Court then turned back to the case of longshoreman Henry Pete and gave an example of the test’s application, considering prior awards at both steps.[47]

III. Application to the Facts of Boland

The Louisiana Supreme Court began by rebutting the appellate court for summarily finding an abuse of discretion with little discussion of record evidence.[48] “To determine whether [the $9,800,000.00 general damage award to Henry Pete] is an abuse of discretion or ‘can be reasonably supported by the evidence,’ some discussion of the ‘particular injuries and their effects upon this particular injured person’ is warranted.”[49] The record evidence at trial on damages was limited and composed of the testimony of Pete, his family, and several doctors.[50]

The experts provided general testimony on the lethality of mesothelioma and that, while Pete had some health problems, the mesothelioma was “far and away the most likely future cause of death.”[51] Pete’s testimony detailed his exposure to mesothelioma as a longshoreman, the invasive procedure required to diagnose mesothelioma, and the trauma of being suddenly diagnosed with an incurable disease.[52] Pete further explained how he underwent treatment methods that were taxing upon his body, leaving him short of breath, nauseated, and with sleeplessness and joint pain.[53] He also testified as to the hedonic damages he suffered, stating that he could no longer do what he wants or used to do—he required his children to care for him, resulting in less time with his grandchildren.[54] Pete’s family provided testimony that they saw a noticeable change in his activity level, that he was “withering away,” and that he was no longer able to help others as he once had.[55]

While still in step one of its new quantum review inquiry, the Louisiana Supreme Court acknowledged the above evidence in support of the general damage award granted at trial and turned to review awards in analogous cases involving mesothelioma to determine whether the $9,800,000.00 general damage award was excessive and thus constituted an abuse of discretion.[56] Among others, the Court focused on four more recent and authoritative cases to compare to Henry Pete’s case.[57] These cases were (1) Strauder v. Shell Oil Co., (2) Berry v. Anco Insulations, (3) Lege v. Union Carbide Corp., and (4) Bagwell v. Union Carbide Corp.[58]

Regarding Strauder, the Louisiana Supreme Court noted that the award granted was $4,851,034.31.[59] However, this award was based primarily on testimony focusing on the relationship between the decedent and his two daughters.[60] Berry involved a woman who developed mesothelioma due to asbestos exposure from her husband’s clothes.[61] The court there found $3,000,000.00 to be an appropriate measure of her damages.[62]

Turning to closer analogues, the Louisiana Supreme Court began its discussion of Lege.[63] The decedent in that case lived for two years following his mesothelioma diagnosis, similar to Henry Pete.[64] Further, the decedent in Lege also suffered from similar shortness of breath, invasive procedures to drain lung fluids, and taxing treatment measures.[65] Near his passing, the decedent was confined to his bed for several months and had to take anti-psychotic medication to prevent delusions.[66] The court in that case found that a mere $4,000,000.00 was an appropriate measure of damages.

Lastly, the Court noted that the decedent in Bagwell was a 57-year-old man who lived for three years following his diagnosis.[67] Similar to Henry Pete, he suffered from shortness of breath due to fluid buildup, which necessitated several invasive and painful procedures.[68] These procedures included draining three liters of fluid from his chest via thoracic cavity tubes, several biopsies and surgeries on his thoracic cavity, and general treatment measures for mesothelioma such as chemotherapy.[69] The record evidence reflects that the treatment cycles caused burns, oral lesions, nosebleeds, rectal bleeding, and a “super pneumonia” like sickness.[70] Further, the record informed the trial court that “he was at the pinnacle of his career as an aerospace welder.”[71] The award granted was $1,450,000.00 in survival damages.[72]

The Louisiana Supreme Court, in completing its step one of quantum review, found that Henry Pete’s award was “greatly disproportionate to the mass of past awards for truly similar injuries.”[73] Further the Court determined Pete’s injuries are not so different as to justify an award exceeding the general range of the above cases.[74] Concluding that the jury abused its discretion in granting an excessive general damage award, the Court proceeded to step two of the quantum review inquiry—requiring the award to Pete to be lowered to the “highest point which is reasonably within the discretion” of the trial court.[75]

In concluding its opinion, the Louisiana Supreme Court lowered Pete’s general damage award by several million dollars:

Our goal 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. Considering the record before us, coupled with prior awards for similar injuries, we find that the highest award reasonably within the jury’s discretion for general damages in this matter is $5,000,000.00. We therefore reduce the general damage award from $9,800,000.00 to $5,000,000.00 and, together with the past medical expenses, render judgment in the sum of $5,551,020.70.[76]

Notably, Justice Griffin, in applying her additional considerations of (1) the overriding nature of the individual case facts and (2) economic conditions such as inflation, would affirm the $9,000,000.00 general damage award granted to Pete.[77] She asserted that appellate jurists must remember that testimony related to general damages usually contains an emotional aspect best evaluated by the fact finder.[78]


In Pete v. Boland, the Louisiana Supreme Court instituted a new objective analysis for the review of quantum of a general damage award.[79] Significantly, the Court resolved any lasting ambiguity between conflicting lines of jurisprudence about whether analogous awards may be considered at both steps of the inquiry.[80] Notably, however, the Court in its majority opinion failed to explicitly instruct appellate courts to consider other factors such as economic conditions—merely stating that “review of prior awards is not the only factor to be considered” in finding an abuse of discretion.[81] In not delimiting what may be considered, it seems the Court has left some residual subjectivity in the appellate review of general damages quantum. Regardless of whether subjectivity remains, appellate courts should take care to analyze other factors, such as Justice Griffin’s additional considerations, so that this new objective inquiry does not lead to thoughtless and mechanical application

[1] Lake Shore & Mich. S. Ry. Co. v. Prentice, 147 U.S. 101, 107 (1893).

[2] See Doug Rendleman & Caprice L. Roberts, Remedies: Cases and Materials 19 (9th ed. 2017).

[3] See id.

[4] See id.

[5] A legislative analogue is the impact and controversy of tort reform. Tort reform refers to “any attempt on the part of state or federal lawmakers to: [1] Make it more difficult for injured victims to file lawsuits against those who hurt them[, or] [2] Limit the amount of compensation victims can recover when they do file a lawsuit.” Christy Bieber, What is Tort Reform?, Forbes, [] (last updated Feb. 3, 2023). Proponents of tort reform argue that plaintiffs are too litigious and juries too eager to give excessive awards. Id. Opponents argue that it makes it more difficult to receive justice if injured, limiting the money one receives and the types of injuries that can be remedied. See id.

[6] See generally Pete v. Boland Marine & Mfg. Co., LLC, 2023 WL 6937381 (La. Oct. 20, 2023), reh’g denied, 374 So. 3d 135 (La. 2023).

[7] Christy Bieber, What Are General Damages? Definitions & Examples, Forbes, [] (last updated Feb. 3, 2023, 3:02 AM).

[8] Pete v. Boland, 2023 WL 6937381, at *1.

[9] Id. at *2.

[10] Id.

[11] Id. Pete passed away two years after his diagnosis. Id. at *9.

[12] Id. at *2.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] See id. at *1. This $9,800,000.00 figure is computed as $10,351,020.70, the total award, minus the economically specific part of the award, $551,020.70, for medical expenses.

[18] Id. at *2.

[19] Id.

[20] Id. (quoting Pete v. Boland Marine & Mfg. Co., LLC, 356 So. 3d 1147, 1164 (La. Ct. App. 4th Cir. 2023) (quoting Copell v. Arceneaux Ford, Inc., 322 So. 3d 886, 895 (La. Ct. App. 3d Cir. 2021))).

[21] Id.

[22] See id.

[23] Id. (quoting Pete v. Boland Marine & Mfg. Co., LLC, 356 So. 3d 1147, 1164–65 (La. Ct. App. 4th Cir. 2023) (Dysart, J., dissenting)).

[24] Id. at *3.

[25] Id.

[26] Id. (quoting Thibodeaux v. Donnell, 219 So. 3d 274, 278 (La. 2017) (quoting Gaspard v. LeMaire, 158 So. 2d 149, 160 (1963))).

[27] Id.

[28] Guillory v. Lee, 16 So. 3d 1104, 1117 (La. 2009).

[29] See id.

[30] Pete, 2023 WL 6937381, at *3.

[31] Id. at *1, *3.

[32] Id.

[33] Id.

[34] See id.

[35] See id. at *4.

[36] Id.

[37] See generally id. at *4–6.

[38] See id. at *4.

[39] Id. (citing Duncan v. Kan. City S. Ry. Co., 773 So. 2d 670, 683 (La. 2000) (“[o]nly after a determination that the trier of fact has abused its ‘much discretion’ is a resort to prior awards appropriate . . . .”); Cone v. Nat’l Emergency Servs., Inc., 747 So. 2d 1085, 1089 (La. 1999) (“[r]esorting to a comparison of prior awards is only appropriate after the reviewing court has concluded that an abuse of discretion has occurred.”); Youn v. Mar. Overseas Corp., 623 So. 2d 1257, 1260 (La. 1993); Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1094 (La. 2009)).

[40] Id. at *5 (citing Dimarco v. Jackson Indus. Serv. Inc., 345 So. 3d 1072, 1087 (La. Ct. App. 5th Cir. 2022)).

[41] Id.

[42] Id.

[43] Id.

[44] Id. at *12 (Griffin, J., concurring in part and dissenting in part).

[45] Id. (Griffin, J., concurring in part and dissenting in part).

[46] Id. at *6.

[47] Id.

[48] Id.

[49] Id. (emphasis in original) (citing Miller v. LAMMICO, 973 So. 2d 693, 712 (La. 2008); Coleman v. Deno, 813 So. 2d 303, 321 (La. 2002).

[50] Id. at *7.

[51] Id.

[52] Id. at *8. The invasive procedure was described as painful, involving the insertion of a needle between the ribs to drain the lungs of fluid. Id.

[53] Id.

[54] Id. Hedonic damages means generally “either a loss of enjoyment of life or loss of life’s pleasures.” Loth v. Truck-A-Way Corp., 60 Cal. App. 4th 757, 760 n.1 (Cal. Ct. App. 1998).

[55] See generally Pete, 2023 WL 6937381, at *8–9.

[56] Id. at *9.

[57] See id. at *9–10.

[58] Id.

[59] Id. at *9.

[60] Id. No appeal was taken of the award in Strauder. Id.

[61] Id. No appeal was taken of the award in Berry. Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id. at *10.

[68] Id.

[69] Id. (citing Bagwell v. Union Carbide Corp., 364 So. 3d 378, 389 (La. Ct. App. 4th 2019)).

[70] Id. (citing Bagwell, 364 So. 3d at 389).

[71] Id. (citing Bagwell, 364 So. 3d at 389).

[72] Id.

[73] Id. at *11 (citing Bouquet v. Wal-Mart Stores, Inc., 979 So. 2d 456, 459 (La. 2008)).

[74] Id.

[75] Id. (citing Coco v. Winston Indus., Inc., 341 So. 2d 332, 335 (La. 1976)).

[76] Id.

[77] Id. at *12 (Griffin, J., concurring in part and dissenting in part).

[78] Id. (Griffin, J., concurring in part and dissenting in part).

[79] See generally id. at *5–7.

[80] Id. at *4–5.

[81] See id. at *5, *12 (Griffin, J., concurring in part and dissenting in part).