author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Adam L. MARTIN, Appellant
    No. 52,674-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MEKISHA S. CREAL, RICHARD SOL FEINBERG, Assistant District Attorneys, Counsel for Appellee
    Before STONE, MOORE, and STEPHENS, JJ.
   STONE, J.

In this criminal case, the defendant, Adam Martin ("Martin"), was found guilty by a jury of attempted second degree murder. Pursuant to the Habitual Offender Law, Martin was sentenced as a second-felony offender to 80 years at hard labor without benefit of probation or suspension of sentence. The trial court denied Martin's motion to reconsider sentence, and Martin now appeals his sentence as excessive. For the following reasons, we affirm Martin's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

As of the date of the crime, April 12, 2015, Martin had been dating the victim, Jakare Fecunda ("Ms. Fecunda"), on and off for 4 to 5 years. That night, Martin and Ms. Fecunda were at her home on Masters Drive in Shreveport, Louisiana. Around 10 p.m., Ms. Fecunda told Martin she wanted to end her relationship with him. The conversation began at her home, but Martin suggested the two take a walk, and Ms. Fecunda agreed. Before departing from the house, Martin secretly grabbed a kitchen knife to bring with him on the walk. As the pair proceeded along Masters Drive, Ms. Fecunda continued to state that she wanted to end the relationship.

The pair stopped walking and Martin said to Ms. Fecunda, "I love you." Almost simultaneously with his utterance of those words, Martin turned toward her and stabbed her twice in the stomach with the aforementioned kitchen knife. Ms. Fecunda screamed for help and tried to run, but fell to the ground. Martin grabbed her and attempted to stab her in her face, but she raised her arm to block him and Martin stabbed her in her arm just above her elbow. During the struggle, Martin also stabbed Ms. Fecunda once in her head and twice in her back. As Ms. Fecunda lay on the ground, Martin stood over her while she said, "Please, please."

Upon realizing that Martin would not stop stabbing her as long as she struggled, Ms. Fecunda pretended to be dead. Thereupon, Martin, apparently believing he had succeeded in killing her, fled the scene. Once Martin got to the end of the street, Ms. Fecunda got up and tried to get help at a nearby house but no one was home. Ms. Fecunda screamed for help. A nearby resident came to her aid and contacted 911. Ms. Fecunda stated that she repeated Martin's name over and over, because she thought she was going to die and she wanted someone to know who stabbed her.

While Ms. Fecunda was being given first aid, Martin returned to the scene. Martin did not assist in rendering aid to Ms. Fecunda, but "just stood there" and falsely claimed to those present that someone armed with a gun and knife, driving a red car had attacked Ms. Fecunda. However, Ms. Fecunda told those present that Martin was lying and that he was the person who stabbed her.

Ms. Fecunda was transported by ambulance to an area hospital and was treated by a trauma surgeon. He testified that one of the wounds to her abdomen caused serious arterial bleeding which "shot out like a garden hose," and that she would have been dead within another hour if she had not received emergency care. Ms. Fecunda was hospitalized for three weeks and had four surgeries during that period, including one to remove her right kidney, and another to remove part of her liver.

Martin was charged by bill of information with the attempted second degree murder of Ms. Fecunda. Subsequently, he filed a motion for appointment of a sanity commission, which was granted. That motion asked that the sanity commission determine whether Martin had the mental capacity to proceed with the trial and report on whether Martin had a mental or neurological condition at the time of the offense. Both doctors appointed to the sanity commission found Martin competent to stand trial, and the trial court ruled accordingly. After trial, the jury found Martin guilty of attempted second degree murder. Martin filed a motion for post-verdict judgment of acquittal and a motion for a new trial. The trial court denied both motions.

Thereafter, the state filed a habitual offender bill charging Martin as a second-felony offender, and Martin was adjudicated and sentenced as such. Ms. Fecunda provided a victim impact statement at the sentencing hearing. In her testimony, she described the savagery of Martin's attack on her - specifically, her physical injuries, Martin's lies about who attacked her, his lack of remorse, her extensive and painful recovery process, and delaying her college education while she recovered. She also described the psychological trauma that still plagues her and her continuing mental health treatment. Her testimony was demonstrative of how severely Martin's knife attack ravaged her mental well-being as well as her body, and that the extensive scarring to her body will forever serve as a reminder of what Martin did to her.

Prior to sentencing, Martin's counsel asked the trial court to consider as mitigating factors that "Martin is a young man, that he has had a rough home life, that he has suffered abuse, that he does have some mental health issues, [and] that he had to watch a sibling commit suicide." Defense counsel also requested that the court not impose the maximum sentence. The trial court provided the sentencing range for a second-felony offender, and went through an extensive analysis of the aggravating and mitigating factors from La. C.Cr.P. art. 894.1.

In aggravation, the trial court found the following factors set forth La. C.Cr.P. art. 894.1 (A) (1), (2) & (3) as well as La. C.Cr.P. art. 894.1 (B) (1), (6), (9), (10) & (21).

A. When a defendant has been convicted of a felony...the court should impose a sentence of imprisonment if any of the following occurs:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant's crime.
...
B. The following grounds, while not controlling the discretion of the court, shall be...[considered]...
(1) The offender's conduct during the commission of the offense manifested deliberate cruelty to the victim.
...
(6) The offender used...actual violence in the commission of the offense.
...
(9) The offense resulted in a significant permanent injury...to the victim...
(10) The offender used a dangerous weapon in the commission of the offense.
...
(19) The offender used a... dangerous weapon while committing or attempting to commit an offense which has, as an element...the use...of physical force against...another [person], and which by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.

Additionally, La. C.Cr.P. art. 894.1(B)(21) allows the sentencing court to take into account "any other relevant aggravating circumstances." Pursuant thereto, the trial court also considered as an aggravating factor the fact that Martin's attempted murder of Ms. Fecunda was a "domestic offense." The trial court described this as "a greater betrayal because they take a trusting and affectionate relationship and involve violence in it." Ms. Fecunda had been a friend to and emotionally supportive of Martin throughout the tribulations of his life, but nonetheless he tried to kill her.

Likewise, the trial court found it to be an aggravating factor that Martin attempted to thwart the investigation by fabricating a lie about people in a red car having attacked Ms. Fecunda. Finally, the court also found Martin's "absolute and total lack of remorse" an aggravating factor.

The trial court also discussed on the record the mitigating factors listed in La. C.Cr.P. art. 894.1, and stated on the record his reasons why he found them to be of little or no relevance.

The trial court then sentenced Martin to 80 years of incarceration at hard labor without the benefit of probation or suspension of sentence, with credit for time served. The trial court also revoked Martin's probation on his second degree battery conviction (for shooting his own father) and stated that Martin's sentence therefor was to be served consecutively with the sentence for this attempted second degree murder. However, the second degree murder sentence was ordered to run concurrent with any other sentence. The trial court advised Martin of his right to an appeal and his post-conviction relief time limits. Martin filed a motion to reconsider sentence which the trial court denied. Martin now appeals.

DISCUSSION

Martin's assignment of error on appeal is that the trial court erred by imposing an unconstitutionally harsh and excessive sentence. Martin argues that, at the time he attempted to stab Ms. Fecunda to death, he was a 22-year-old with a severe psychological illness. Martin claims that his 80-year sentence is excessive because of his unique situation, and is, in effect, a life sentence. Martin asserts that the sanity commission reports show that he has a history of paranoia, suicidal ideation, cannabis abuse, and substance-induced mood disorder.

The state argues that Martin's crime was premeditated, and was not caused by "evil spirits." The state points out that Martin secretly took a knife from Ms. Fecunda's kitchen, lured her out onto a dark street, stabbed her, returned to the scene to watch her, offered her no help, and then lied about who committed the crime. The state also argues that the sanity commission reports on Martin do not support the theory that he was delusional. Instead, they show that Martin was oriented to time, place, and person, and that his memory was intact.

A trial court has broad discretion to sentence within the statutory limits. Absent manifest abuse of that discretion, a sentence will not be set aside as excessive. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Davis , 52,453 (La. App. 2 Cir. 2/27/19), 265 So.3d 1194 ; State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596. Generally, however, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 07-2031 (La. 2/15/08), 974 So.2d 665 ; State v. Hogan , 47,993 (La. App. 2 Cir. 4/10/13), 113 So.3d 1195, writ denied , 13-0977 (La. 11/8/13), 125 So.3d 445.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness: (1) whether the trial court properly took cognizance of the factors set forth in La. C.Cr.P. art. 894.1 ; and (2) whether the sentence is constitutionally excessive under La. Const. art. I § 20.

As previously stated, we must first determine whether the record shows that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 16-0959 (La. 5/1/17), 219 So.3d 332. Articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. DeBerry , supra .

The La. C.Cr.P. art. 894.1 factors to be considered include the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. DeBerry , supra . There is no requirement that any specific factor be given any particular weight at sentencing. State v. DeBerry , supra ; State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 07-0144 (La. 9/28/07), 964 So.2d 351.

Second, this court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry , supra .

The offense of second degree murder carries a mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. La. R.S. 14:30.1. The statute defining and punishing the crime of attempt, La. R.S. 14:27, in relevant part states: "If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence."

Louisiana's Habitual Offender Law, La. R.S. 15:529.1, gives the district attorney the option to pursue increased penalties upon the defendant's conviction of a felony if the defendant has already been convicted of certain other felonies within a specified time period (and certain other circumstances are present). Upon proof of the elements of the Habitual Offender Law, sentencing within the increased range provided thereunder is mandatory. Applicable in this case, La. R.S. 15:529.1(A)(1) states: "If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction."

Thus, the applicable sentencing range for Martin as a second-felony offender was 25 to 100 years at hard labor without benefits. At sentencing, the trial court conducted an extensive factual analysis pursuant to the aggravating and mitigating factors set forth in La. C.Cr.P. art. 894.1. The trial court stated that it was taking Martin's mental health into account in determining his sentence, but found it compelling that Martin secretly took a knife from Ms. Fecunda's kitchen, lured her to a dark street, stabbed her six times, left her after she appeared to be dead, and returned to the scene of the stabbing and gave a false story about how attackers in a red car had stabbed Ms. Fecunda. The trial court concluded that such actions are not those of a person in a delusional state, but those of a manipulative, remorseless and violent person.

We agree with the trial court. Martin caused Ms. Fecunda extreme physical pain, the loss of a kidney and part of her liver, extensive scarring and lasting psychological damage, including posttraumatic stress disorder. His stabbing of Ms. Fecunda six times in an attempt to murder her was premeditated, depraved, and horrific. Furthermore, it was only an approximate three weeks before this attempted murder that Martin was released from jail after being convicted of shooting his own father. He was still on probation for that shooting conviction at the time he attempted to murder Ms. Fecunda. Martin's 80-year sentence is in proportion to the seriousness of his offense.

ERRORS PATENT

A review of the record reveals two errors patent, both of which are harmless. First, the trial court failed to order that Martin's 80-year sentence be served without the benefit of parole as required by La. R.S. 14:30.1 and 14:27.

The trial court's failure to state that the sentence is to be served without benefits will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Hooter , 49,708 (La. App. 2 Cir. 2/26/15), 162 So.3d 532 ; State v. Braziel , 42,668 (La. App. 2 Cir. 10/24/07), 968 So.2d 853 ; State v. Klasek , 37,114 (La. App. 2 Cir. 4/11/03), 843 So.2d 646, writ denied , 03-1359 (La. 12/12/03), 860 So.2d 1149.

Second, at the sentencing hearing, the trial court incorrectly stated that the sentencing range for a habitual offender convicted of attempted second degree murder was 16 years and 8 months to 100 years at hard labor. That range is provided for in the 2017 amendments to La. R.S. 15:529.1. Because Martin's offense was committed in 2015, the 2017 amendments do not apply and the applicable sentencing range for Martin is 25 to 100 years at hard labor. Nonetheless, Martin's sentence falls within the proper range.

CONCLUSION

For the foregoing reasons, Martin's conviction and sentence are AFFIRMED .

      Martin pled guilty to aggravated second degree battery in 2014, and was sentenced to 10 years of incarceration, with all but 3 years suspended, and was placed on supervised probation for a period of 5 years.

      The trial court used the incorrect sentencing range, discussed infra .

      However, as explained above, while a sentence may be statutorily mandated it may still be constitutionally excessive.

      The trial court misstated Martin's possible sentencing range as 16 years and 8 months to 100 years, discussed infra .

      However, the minutes are, in fact, correct under La. R.S. 14:30.1 and 14:27. They state that Martin is to serve his sentence without probation, parole, or suspension of sentence.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Linzell JONES, Appellant
    No. 52,672-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, MICHAEL J. FONTENOT, Assistant District Attorney, Counsel for Appellee
    Before PITMAN, COX, and McCALLUM, JJ.
   COX, J.

This criminal appeal arises from the Fourth Judicial District Court, Ouachita Parish, Louisiana. Linzell Jones was convicted of aggravated arson and sentenced to 20 years' imprisonment at hard labor, with the first 2 years to be served without benefits. Jones now appeals his conviction and sentence. For the following reasons, we affirm Jones's conviction and sentence.

FACTS

In the early morning hours of April 6, 2016, the City of Monroe Fire Department and Police Department responded to a fire at 105 Vegas Drive, the home of Tayran Jones, Jones's now ex-wife. After investigating the fire, which originated in the carport, police arrested Jones. Jones was charged by amended bill of information with aggravated arson. A sanity commission was appointed to determine Jones's mental condition at the time of the offense, as well as his present mental capacity to proceed. On March 28, 2018, based on the reports, the trial court found that Jones was competent to stand trial.

Tayran testified that she married Jones in 2009, and they lived in her home at 105 Vegas Drive. Tayran stated that she acquired the house in 1989, and owned a green 1999 Nissan Quest van since at least 2006. Tayran testified that they were having marital problems at the time of the trial. She stated that Jones started drinking alcohol and would be extremely nice to her in front of others, but would become erratic behind closed doors. She testified that in 2014, she started recording Jones so he could hear how he sounded when he was drinking. On October 25, 2015, Tayran recorded one of Jones's rants, which was played for the jury. In the recording, Jones stated that he would "burn down all these s** of b****** house around all around these homes even this house right here... I'll burn this m***** f***** down."

Tayran testified that on March 9, 2016, her house flooded. She stated that around March 28, 2016, her insurer was prepared to pay her money to repair the residence and she was talking to a contractor. However, Jones was angry because he wanted her to let him do the work. She testified that as a result of the flood, she had to gut the house and many of the contents of the house and furniture were put under the carport. Tayran stated that she put books inside the van. The van was having mechanical issues, and the rear of the van was parked partially under the carport, with the van facing the street. She stated that she had removed the tags from the van because Jones started drinking and she did not want him driving it, and that made Jones angry.

Tayran testified that on the night of the fire, her seven-year-old grandson was spending the night at her house. Tayran stated that around midnight, Jones had been outside when she heard three loud "pop" sounds. She testified that she heard the first "pop" around 9:00 p.m., when she went outside looking for Jones. She stated that she discovered Jones had lit the grill in the backyard, and was burning old documents. She said she heard the second "pop" shortly after she took a picture of her grandson sleeping in a bedroom, around 11:50 p.m. She testified that she looked out the window and saw Jones near the rear of the van walking under the carport, but she did not see a fire at that time. She stated that Jones came inside the house and asked her about cucumbers, and she told him that they were on the table. She stated that Jones walked outside, but came back inside and asked about the cucumbers two more times. Tayran testified that she then heard the third "pop" shortly after midnight, looked out the window, and saw a fire inside the rear section of the van.

Tayran testified that she panicked because she thought the van was going to explode. She yelled for Jones, he came walking from the back, and she told him the van was on fire. She stated that she grabbed her phone, purse, and work bag; scooped up her grandson; and ran outside to the neighbor's house. She testified that she called 911 and moved her other vehicle, which was parked near the van, to her neighbor's house. Tayran stated that she then grabbed the neighbor's water hose and started spraying water toward the van, but stopped when she heard another loud "boom." She said the fire consumed the inside of the van, and started coming up above the van. She testified that at one point, she saw Jones in the yard with a bucket, throwing water or some liquid substance at the fire. She stated that she did not see him again until the fire was out.

Cecil Jeselink, a district fire chief for the City of Monroe Fire Department, testified that when he arrived at the scene, the firefighters were already spraying water on the van and working their way toward the house through the carport area. He stated that the first responding crew ensured that everyone was out of the house. He stated that as they were working on the fire, a then-unidentified man walked into the yard from the street. He testified that the man, later identified as Jones, grabbed a fire hose, pulled on it, and hollered, "Don't put that out." Chief Jeselink stated that he told Jones to put the hose down and come over by him. He testified that Jones introduced himself as the Archbishop of Louisiana. He noted that if the windows on a car are up when the car is on fire, it will cause a loud popping sound when the windows burst.

Officer Tim Crum of the City of Monroe Police Department testified that he responded to the fire. He stated that the fire department advised him that Jones was getting too close to the scene, so he put Jones in his unit. Officer Crum testified that based on a conversation with Jones's wife, he considered Jones to be a suspect in the fire. Officer Crum stated that although he could smell a moderate odor of alcohol on Jones, Jones was able to understand him and he could understand Jones. Officer Crum testified that he advised Jones of his Miranda rights, and Jones told him that he (Jones) had been working on a lawnmower that was flipped upside down near the carport. He stated that Jones said that as he was working on the lawnmower, he lit a barbeque grill, which was under the carport, and that the fire in the grill must have ignited the gasoline from the overturned mower, which then traveled toward the van, and caught the van on fire. Officer Crum stated that he confirmed there was an overturned lawnmower and grill near the carport, but stated that there was no evidence that any fire was started in those grills. He noted that there was also a grill in the backyard, which was burning something.

David Hill, Chief Arson Investigator for the City of Monroe Fire Department, was accepted by the trial court as an expert in arson investigation, including origin and cause. Investigator Hill stated he was called to investigate the fire and determine the cause of the fire. He testified that he determined that the origin of the fire was inside the rear section of the van. In reviewing photos he took of the damage to the van, he explained that the rear seats were totally consumed, meaning that is the area that burned the longest and the hottest. Investigator Hill testified that the fire started on the rear seats with an introduced ignition source, such as a lighter, match, or something with an open flame. He stated that the back passenger door on the driver's side of the van was open. He explained that it is not necessary to use an accelerant because as long as there is air and something to burn, the fire will continue to slowly grow. Investigator Hill testified that the fire burned inside the passenger compartment of the van, left the van, caught the easement of the carport on fire, and then traveled along the carport until it entered the attic of the house. He also testified that there was no evidence of an engine fire, spontaneous combustion, or a lightning strike.

Investigator Hill stated that when he talked to Jones, Jones told him that he had lit a barbeque grill that was near the van and that apparently an ember had flown over and caught the van on fire. Investigator Hill stated that although there were two grills near the carport on the passenger side of the van, one flipped upside down and one upright, there was no evidence of a recent fire having burned in either of them, so he was able to rule out those grills as a cause of the fire. He stated that there was a grill in the backyard near a storage shed, where papers were being burned, but that grill had nothing to do with the fire. Investigator Hill testified that there were several spots in the backyard that had been set on fire, and that Tayran told him that Jones was wandering around the backyard acting intoxicated, "talking out of his head," and setting fires. He stated that as part of his investigation, he reviewed the weather report for the night of the fire; there was a light wind blowing from the southeast. He explained that the house faced southeast, so any ember from the lit grill would have blown away from the van. He also testified that an open flame would have been required to start this fire, not an ember.

In response to Jones's suggestion that the fire started when a spark ignited gasoline from an overturned lawnmower, Investigator Hill stated that the driveway slopes down away from the carport toward the road, so any gasoline would not have flowed toward the van. He also explained that there was no evidence of any burns or damage to the lawnmowers nor was there any evidence that the fire started under the van. He testified that for these reasons, he concluded that the lawnmowers had nothing to do with the fire. Chief Hill stated that when he told Jones that his story could not be true, Jones became irate, told him that he was the Archbishop of Louisiana, and said that the police arrested him so they could get with his wife. Investigator Hill stated that Jones appeared to be intoxicated or on some illicit drug.

Numerous photos of the van and house were presented at trial. The photos depict the interior of the van as burned down to the metal frame, the windows and the seats gone, and all of the paint on the rear half of the van gone. The pictures show that the front exterior of the van did not sustain as much damage and the tires were intact. The pictures of the house depict the carport awning, posts, all of the contents of the house under the carport, and the exterior and interior wall of the house as damaged. There are photos of the two lawnmowers and two grills on the passenger side of the van, under and near the carport area, which do not have any fire damage. Also, the photos show, as explained by Chief Hill, that the radiant heat from the fire damaged the neighbor's house, cracking a window and damaging the vinyl siding.

On May 9, 2018, the jury unanimously found Jones guilty as charged of aggravated arson. Jones filed a pro se motion for new trial, arguing that his trial attorney was ineffective in failing to establish a proper defense. The trial court denied the motion.

On August 2, 2018, the trial court sentenced Jones to 20 years' imprisonment at hard labor, with the first 2 years to be served without the benefit of parole, probation, or suspension of sentence. No motion to reconsider sentence was filed. This appeal followed.

DISCUSSION

Insufficient Evidence

Jones's first assignment of error is that there was insufficient evidence to prove that he was guilty beyond a reasonable doubt. He asserts that the case against him is entirely circumstantial as there is no testimony that he started the fire in the van. Jones argues that there is at least one reasonable hypothesis of innocence that should have precluded the jury from finding him guilty. Specifically, he claims that his mental state was compromised on the date of the fire based on his comments about being the Archbishop of Louisiana, and his wife had motive to set her own car on fire and blame him. He asserts that his wife did not receive enough insurance proceeds to cover the full extent of the damage caused by the flood, and his past statements threatening to burn down their house provided her with the opportunity to recoup her insurance losses and get rid of him.

In response, the State argues that the evidence presented at trial supports Jones's conviction. The State asserts that "Jones pretty much admitted responsibility for starting the fire," and Jones's false exculpatory statements, regarding the barbeque grill under the carport and the overturned lawnmower, directly point to Jones being the arsonist. The State claims that the suggestion that Jones's wife had anything to do with the fire is "preposterous," does not create a reasonable hypothesis of innocence, and was properly rejected by the jury.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied , 541 U.S. 905, 124 S. Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Steines , 51,698 (La. App. 2 Cir. 11/15/17), 245 So.3d 224, writ denied , 17-2174 (La. 10/8/18), 253 So. 3d 797. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So. 2d 517 ; State v. Nabors , 52,163 (La. App. 2 Cir. 7/19/18), 251 So. 3d 1214, writ denied , 2018-1477 (La. 9/21/18), 252 So. 3d 496.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So. 2d 471 (La. 1983) ; State v. Nabors, supra.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Mingo , 51,647 (La. App. 2 Cir. 9/27/17), 244 So. 3d 629, writ denied , 17-1894 (La. 6/1/18), 243 So. 3d 1064. If a case rests essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Mingo , supra. The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway , 07-2306 (La. 1/21/09), 1 So. 3d 417 ; State v. Mathis , 52,500 (La. App. 2 Cir. 1/16/19), 263 So. 3d 613.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So. 2d 442 ; State v. Mathis, supra. A reviewing court accords great deference to the jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Mathis, supra.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Cooley , 51,895 (La. App. 2 Cir. 5/23/18), 247 So. 3d 1159, writ denied , 2018-1160 (La. 3/6/19), 266 So.3d 899. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Id.

La. R.S. 14:51(A) defines aggravated arson as the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered.

The evidence presented at trial is sufficient to support Jones's conviction for aggravated arson. Investigator Hill, an expert in arson investigation, testified that the fire started in the rear passenger compartment of the van with an introduced ignition source. Contrary to Jones's explanations for the fire, Investigator Hill testified that there was no evidence of a recent fire having burned in either of the grills near the carport, nor was there any evidence of any damage to the lawnmowers near the carport or that the fire started under the van. Although he was unable to determine the exact cause of the fire, Investigator Hill testified that an open flame would have been required to start the fire, not an ember, and he was able to rule out an engine fire, the weather, and spontaneous combustion as possible causes of the fire. Jones's wife testified that Jones had been outside, both in the backyard and under the carport, prior to the fire and was burning old documents in the grill in the backyard. Further, Jones had previously threatened to burn down the house. This evidence is sufficient to establish that Jones intentionally set his wife's van on fire.

Further, it was foreseeable that human life might be endangered because Jones knew that his wife and her young grandson were inside the house at the time he set the van on fire. As shown by the fact that the fire spread from the van to the carport and the house, Jones's actions posed a real and substantial danger to human life.

Although Jones suggests that his wife set the van on fire, such a hypothesis of innocence is not reasonable or supported by the evidence presented at trial. This Court does not assess the credibility of witnesses or reweigh evidence. The jury's decision to reject Jones's hypothesis of innocence was reasonable and based on rational credibility and evidentiary determinations.

Considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis of innocence, that Jones was guilty of aggravated arson. This assignment of error is without merit.

Excessive Sentence

Next, Jones argues that the trial court erred by imposing an unconstitutionally harsh and excessive sentence. He argues that his maximum 20-year sentence is excessive. Given his history of psychological and psychiatric illness, specifically paranoia, and its manifestations at the time of this incident, Jones contends that he is not the worst of offenders and the sentence imposed fails to contemplate or account for a reasonable combination of treatment, rehabilitation, and punishment.

In response, the State asserts that the trial court clearly articulated reasons for the sentence imposed, and that Jones's sentence is within the statutory limits and not excessive. The State notes that Jones has an extensive criminal history, that his criminal conduct threatened potential harm and even death to his wife and grandchild, and that the record is void of any evidence that Jones's mental health issues made him prone to commit criminal acts.

Ordinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the district court's compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. However, when a defendant fails to file a motion to reconsider sentence in the lower court, appellate review is limited to the second step, an analysis of the sentence for constitutional excessiveness. State v. Mims , 619 So. 2d 1059 (La. 1993) ; State v. Lewis , 52,367 (La. App. 2 Cir. 11/14/18), 260 So. 3d 1220. See also La. C. Cr. P. art. 881.1(E), which precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. State v. Pittman , 52,027 (La. App. 2 Cir. 4/11/18), 248 So. 3d 573.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato , 603 So. 2d 739 (La. 1992) ; State v. Lewis , supra.

A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So. 2d 1276 (La. 1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So. 2d 166 ; State v. Little , 50,776 (La. App. 2 Cir. 8/10/16), 200 So. 3d 400, writ denied , 16-1664 (La. 6/16/17), 219 So. 3d 341 ; State v. Lewis , supra.

The trial court has wide discretion in the imposition of sentences within the statutory limits, and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So. 2d 7 ; State v. Edden , 52,288 (La. App. 2 Cir. 11/14/18), 259 So. 3d 1196, writs denied , 2018-1961 (La. 4/15/19), 2018-2063 (La. 4/15/19), 267 So. 3d 1124, 267 So. 3d 1127. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Edden , supra. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Edden, supra.

As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 07-2031 (La. 2/15/08), 974 So. 2d 665 ; State v. Lapoole , 51,199 (La. App. 2 Cir. 2/15/17), 215 So. 3d 430, writ denied , 2017-0618 (La. 11/28/17), 230 So.3d 220.

La. R.S. 14:51(B) provides:

Whoever commits the crime of aggravated arson shall be imprisoned at hard labor for not less than six nor more than twenty years, and shall be fined not more than twenty-five thousand dollars. Two years of such imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence.

The trial court did not abuse its discretion in sentencing Jones to 20 years at hard labor. Because Jones failed to file a motion to reconsider sentence, review of his sentence is limited to a bare claim of constitutional excessiveness. Nevertheless, the record shows that the trial court complied with La. C. Cr. P. art. 894.1, and considered the appropriate factors in determining Jones' sentence.

In reviewing the PSI, the trial court noted that Jones is a third-felony offender. Jones's criminal history began as a juvenile in Caddo Parish, but the juvenile records are no longer available. In 1979, at the age of 17, he was arrested for aggravated assault. In 1980, Jones was arrested for simple burglary and sentenced to 2 years at hard labor, suspended, with 18 months of supervised probation, which was revoked when he was arrested for theft and unauthorized use of a movable. The trial court stated that Jones's history of misdemeanor convictions for various property crimes greatly escalated in 1982, when he was arrested for attempted first degree murder and armed robbery. The trial court noted the facts of that offense as follows: officers were dispatched to a reported shooting, and upon arrival, found the victim covered in blood. The victim told officers he was stopped at a traffic light when a black male, later identified as Jones, jumped into his vehicle, shoved a gun to his head, and ordered him to drive. After driving to a specific location, Jones ordered the victim to turn over all his money. Jones was enraged because the victim only had $ 12.00, and began to bludgeon the victim's head with an unknown object. The victim blew the vehicle's horn and Jones fled. Jones received concurrent sentences of 10 and 50 years at hard labor, respectively. He was released on parole in 2007 and was not arrested again for two years. In 2009, Jones was arrested for theft, but that charge was later dismissed. In 2014, he was arrested for DWI-first offense, and placed on misdemeanor probation. That probation was revoked as a result of the instant offense. From 2015 to 2016, Jones was arrested for theft, unauthorized use of an access card, simple burglary, and shoplifting. The trial court also noted that a parole warrant was issued for Jones on April 19, 2016, and that after he is sentenced on the instant offense, his parole will automatically be revoked.

The trial court reviewed Jones's family, education, and work history, noting that he grew up in Shreveport, Louisiana, took special education classes, never progressed past ninth grade, and attended school at the Louisiana Training Institute ("LTI"). The trial court noted that before his incarceration for attempted murder and armed robbery, Jones's work history was sporadic.

After his release on parole, he requested a transfer of his supervision from Shreveport to Monroe, Louisiana, where his girlfriend, the victim in this case, resided. They were later married, and during that time, Jones held jobs loading trucks, doing landscaping work, and working as a delivery driver. In addition, the trial court stated that Jones has learning difficulties and health problems, as a result of a football injury at LTI and sniffing gasoline, fingernail polish, and glue as a youth. The trial court noted that Jones suffered a drug overdose in 1975, and he reported regular marijuana use.

The trial court noted that Jones did not make a statement for the PSI, and only claimed that he was being set up. The victim provided a written statement, outlining the intensifying threats made by Jones against her and her family. The trial court noted that the victim, who has now divorced Jones, is understandably fearful of Jones and what he might do if given an opportunity to carry out his threats, and that she is not seeking restitution because her insurer reimbursed her for damage to the vehicle and repairs to her home.

Pursuant to La. C. Cr. P. art. 894.1, the trial court found that there was an undue risk that Jones would reoffend if given a suspended or probated sentence, that he was in need of correctional treatment, and that a lesser sentence would deprecate the seriousness of his crime. As an aggravating factor, the trial court stated that Jones knowingly created a risk of death or great bodily harm to more than one person by setting fire to a vehicle under a carport, noting that the fire spread to the carport and could have extended throughout the residence, with the victim and her grandson inside the house. The trial court found that there were no applicable mitigating factors. Further, the trial court specifically found that a maximum sentence was warranted in this case, noting that Jones threatened the victim with physical harm for years, he created a risk of serious injury to her and her grandson, and Jones is a third-felony offender with a history of violence and other offenses spanning his entire adult life.

Jones's maximum 20-year sentence is not constitutionally excessive. After months of threatening the victim and her family, Jones set the victim's van, which was partially parked under the carport, on fire, while the victim and her young grandson were in the house. The record supports the sentence imposed. Considering the facts of this case and Jones's lengthy criminal history, the sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Linzell Jones's conviction and sentence are affirmed.

AFFIRMED.

      Three doctors were appointed to examine Jones: Dr. Mark Vigen, Dr. Phillip Scurria, and Dr. James Pinkston. Dr. Scurria and Dr. Pinkston agreed that Jones was competent to stand trial and that he knew right from wrong at the time of the offense. However, Dr. Vigen disagreed and found that Jones was not competent to proceed based on his "ongoing delusional ideation that his wife and her sons are attempting to kill and/or incarcerate him."


author: MOORE, J.

text:
    Lynda BERRY, Plaintiff-Appellee v. ANCO INSULATIONS, et al., Defendant-Appellants
    No. 52,671-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    FRILOT, LLC, By: John J. Hainkel, III, Angela M. Bowlin, Lacey T. McCoy, Counsel for Appellant Foster Wheeler, LLC
    TANENBAUM KEALE, LLP, By: Christopher S. Marks, DEAN, OMAR, BRANHAM, SHIRLEY, LLP, By: Lisa White Shirley, WADDELL ANDERMAN, LLC, By: Jody E. Anderman, Counsel for Appellee
    Before MOORE, GARRETT, and McCALLUM, JJ.
   MOORE, J.

Foster Wheeler LLC appeals a jury verdict and JNOV that awarded the plaintiff, Lynda Berry, damages including $ 1 million in future medical expenses and found that certain other defendants were not responsible for the secondhand asbestos exposure that caused her mesothelioma. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

Ms. Berry's husband, William Berry, worked at the West Monroe Paper Mill from 1961 until 2010 as an EI (electrical and instrumentation technician). He was present, in the mid-1960s, when the mill's owners contracted with Foster Wheeler, an engineering and construction contractor, to install two large boilers to generate electric power. These stood roughly five stories tall and were covered with insulation panels or custom-fitted insulating cement, all made of asbestos. Mr. Berry testified that his work as an EI exposed him to asbestos daily. In addition, the boilers were placed on staggered, annual "outage" for one or two weeks for inspection and repair; this required removal and reinstallation of the asbestos, a process performed by Foster Wheeler and described by Mr. Berry as spawning a dust storm inside the building. Mr. Berry testified that Foster Wheeler always performed this work, and was still doing so when he retired, in 2010.

Mr. and Mrs. Berry got married in 1973. He testified that he always wore his work clothes home in the evenings; Ms. Berry testified that his work clothes were generally caked with dust and dirt, and she washed, dried and folded them daily.

In early 2015, Ms. Berry started having stabbing pains in her stomach. She was diagnosed with mesothelioma, which doctors ultimately ascribed to her secondhand exposure to asbestos fibers on her husband's work clothes.

PROCEDURAL HISTORY

Ms. Berry filed this suit in August 2015, against 26 defendants. She settled with most of the defendants pretrial. She proceeded to a jury trial in April 2017, against two remaining defendants: Foster Wheeler, the general contractor, who designed, manufactured, installed and serviced the boilers, and J. Graves Insulation Co., a sub-subcontractor who supplied the asbestos insulation for the boilers.

At the start of trial, the court ruled that because most of Ms. Berry's exposure occurred before 1980, pre-Comparative Fault law would apply: each defendant found to be at fault would be responsible for a virile share of the total judgment. Jury selection took two days. Then, over six days, Ms. Berry called 12 witnesses (some by video deposition) and introduced a large amount of documentary evidence. Shortly after she rested her case, Ms. Berry settled with J. Graves.

Over the next four days, Foster Wheeler called five witnesses (some by video deposition) and introduced its own large amount of documentary evidence. Closing arguments took nearly a full day.

The 12-member jury rendered a verdict that Ms. Berry had an asbestos-related injury; that Foster Wheeler's negligence was a substantial factor in her injury; that Foster Wheeler's products were unreasonably dangerous, not per se or because of their design, but because of a failure to warn of the hazards associated with asbestos; and that a nonparty defendant (Olin Corp., the former owner of the mill) was negligent in causing the injury and strictly liable as the premises owner. The jury also found, however, that no other named defendants, including J. Graves, were negligent or provided an unreasonably dangerous product. The jury awarded Ms. Berry $ 1 million for past medical expenses and $ 2 million for future medical expenses, but nothing for physical pain and suffering, mental and emotional anguish, or loss of enjoyment of life. The court rendered judgment in favor of Ms. Berry and against Foster Wheeler for $ 1.5 million, reflecting Olin Corp's one-half virile share.

Both sides moved for JNOV. Ultimately, the district court granted Ms. Berry's motion by awarding her $ 3 million in general damages, an item the jury had inexplicably denied; granted Foster Wheeler's motion by reducing past medicals to $ 500,000 and future medicals to $ 1 million; and denied Foster Wheeler's motion by refusing to assign a virile share to J. Graves or to any other defendant who had settled pretrial or was exonerated by the jury. The court rendered final judgment in favor of Ms. Berry and against Foster Wheeler for $ 2.25 million, again reflecting Olin Corp's virile share.

Foster Wheeler has appealed, raising five assignments of error.

DISCUSSION

Liability of Other Defendants

By its first assignment of error, Foster Wheeler urges the jury erred in failing to find six entities who settled pretrial and one entity who settled midtrial, J. Graves, were liable for the plaintiff's injuries.

Foster Wheeler shows that under pre-Comparative Fault law, a solidary obligor received a virile share credit when the plaintiff settled with and released a party and that party's liability was established at trial. Wall v. American Employers Ins. Co. , 386 So.2d 79 (La. 1980). Foster Wheeler also shows that Ms. Berry settled with, and received money from, seven entities who provided asbestos insulation to the boilers, and argues that Ms. Berry's own occupational medicine expert, Dr. Edwin Holstein, testified that all seven were substantial contributing causes to her disease. Foster Wheeler cites two asbestos cases, and one benzene case, in which juries exonerated settled defendants but the courts of appeal found manifest error and assigned fault to them. It contends that the evidence against the settling defendants was established by "undisputed fact." Specifically, GE installed turbines between the Foster Wheeler boilers and then engaged in much work that created asbestos dust; these facts were documented by a 1994 abatement record; and Dr. Holstein considered GE a substantial factor in Ms. Berry's disease. J. Graves was a "professional vendor and contractor" who supplied and installed the asbestos-containing insulation on the boilers; Mr. Berry keenly recalled inhaling dust from when J. Graves was installing or reinstalling insulation; and Dr. Holstein considered J. Graves a substantial factor in Ms. Berry's disease. As to the valve and pump defendants, Foster Wheeler submits that there were literally thousands of valves, pumps and pipes at the mill, all covered with asbestos packing material, gasket material and insulation, and all produced dust when handled; and Dr. Holstein felt the dust from all these sources was a substantial cause of Ms. Berry's illness. Foster Wheeler concludes that the jury's finding exonerating these defendants was plainly wrong, and that this court should assign seven virile share credits.

Ms. Berry agrees with the application of Wall v. American Employers Ins. Co. , supra , but argues that when a defendant urges the fault of a nonparty, that defendant must provide evidence "which preponderates that fault actually exists" on the part of that nonparty, Joseph v. Broussard Rice Mill Inc. , 2000-0628 (La. 10/30/00), 772 So.2d 94. She contends that remaining defendants often fail to prove the fault of a settling defendant. She submits that Foster Wheeler simply failed to prove J. Graves's fault. Specifically, the only evidence of causation was from her own expert, Dr. Holstein, but he provided "no detail about the underlying basis" for his opinion; there was no evidence that GE supplied any asbestos materials to the mill; J. Graves was merely a subcontractor hired to do installation work; and the evidence against the valve and pump defendants was "insubstantial." She concludes the jury committed no manifest error.

The trier of fact's findings are reviewed under the plainly wrong/manifest error standard. Warren v. Shelter Mutual Ins. Co. , 2016-1647 (La. 10/18/17), 233 So.3d 568 ; BRP LLC (Delaware) v. MC La. Minerals LLC , 50,549 (La. App. 2 Cir. 5/18/16), 196 So.3d 37. Under this standard, if the trier of fact's findings are reasonable in light of the record viewed in its entirety, the appellate court cannot reverse even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Lomont v. Bennett , 2014-2483 (La. 6/30/15), 172 So.3d 620 ; Emerson v. Willis Knighton Med. Ctr. , 52,216 (La. App. 2 Cir. 9/26/18), 257 So.3d 243. Notably, the appellate court will avoid making "its choice of the evidence," and instead will look for clear error in the reasonable basis found by the trier of fact. BRP LLC (Delaware) v. MC La. Minerals , supra , and citations therein.

The common standard of proof in civil cases is a preponderance of the evidence. Joseph v. Broussard Rice Mill , supra . A defendant must also meet this burden of proof if he asserts the fault of a nonparty. Id. ; State v. Cecil , 42,433 (La. App. 2 Cir. 9/19/07), 966 So.2d 131, writ denied , 2007-2063 (La. 12/14/07), 970 So.2d 536.

Foster Wheeler presented some evidence pertaining to GE: it played the video deposition of Vance Stark, the corporate representative for the mill's current owner, Graphic Packaging. He stated that until 1976 there were five power turbines between the boilers, all but one manufactured by GE; he referred to a 1994 work order for "removal of asbestos containing material" by GE, but testified that the mill had no record that GE ever provided any warnings about the dangers associated with asbestos. The bulk of the evidence, however, was presented by the plaintiff. Mr. Berry testified that GE installed six turbines, all insulated with asbestos; these were opened annually for maintenance, exposing the insides and releasing dust; he carried this dust home on his clothes. The plaintiff's occupational medicine expert, Dr. Holstein, who was on the stand for an entire day, intricately traced the history of asbestos studies, discussed Ms. Berry's medical results, and analyzed the physical components of the mill. On cross-examination, he testified that GE was a contributing factor to Ms. Berry's disease.

Foster Wheeler attempted to present some evidence pertaining to J. Graves: it introduced the video deposition of Dr. Thomas Howard, a pulmonologist, who also traced the history of asbestos studies and stated the view that the medical community did not fully appreciate the risk of secondhand asbestos exposure until about 1976. After the district court sustained Ms. Berry's objection, Foster Wheeler tendered additional portions of Dr. Howard's deposition to show that J. Graves was a union contractor subject to OSHA regulations on asbestos after 1971, that the union was aware of the hazards of asbestos, and this knowledge should be charged to J. Graves. Again, however, the bulk of the evidence was presented by Ms. Berry: she called Eddie Scott, J. Graves's corporate representative, who testified that his company installed insulation, including pipe coverings, at the mill, and that in the 1960s this was made of asbestos. Mr. Berry distinctly recalled that J. Graves installed the boilers, returned to the mill regularly to remove and reinstall it during outages, and that these operations created dust that he carried home on his clothes for Ms. Berry to wash. On direct examination, Dr. Holstein testified that J. Graves was a significant contributing factor in Ms. Berry's disease.

At first glance, it seems inconsistent for the jury to decide that Foster Wheeler, who installed and serviced the boilers, was liable, while GE, who installed and serviced the turbines, and J. Graves, who provided the asbestos insulation for the entire project, were not. On close examination, however, we cannot say this was plainly wrong. While the evidence against GE and J. Graves was significant, their input does not approach the long and intensive involvement of Foster Wheeler, as described by Mr. Berry and confirmed by Eddie Scott and Vance Stark. This disparity of proof may have led the jury to discount Dr. Holstein's rather blanket opinion that every entity that provided, installed or worked on asbestos in the mill was a substantial factor in Ms. Berry's disease. The jury could reasonably find a practical limit to various parties' liability, based on the length and kind of conduct they engaged in. While this court might have cast the net of liability a little farther out than did the jury, we simply cannot say the jury abused its discretion. Moreover, we observe that most of the evidence against GE and J. Graves was offered by Ms. Berry, even though the burden was on Foster Wheeler to prove the fault of these nonparties, Joseph v. Broussard Rice Mill , supra ; State v. Cecil , supra .

As for the valve and pump defendants, Foster Wheeler introduced a copy of the 1964 piping specifications showing that all pipes in the project were to be insulated with 1 to 4½ inches of asbestos (with trade names like Thermobestos, Kaylo, Therma-K, Unibestos, etc.) and a copy of a 1974 approved valve list showing that all valves supplied by Crane would be insulated with one inch of finishing cement "made of asbestos fiber and suitable binding materials." Most of the evidence, however, was offered by the plaintiff: Mr. Berry testified that he worked on "thousands" of valves and pumps, made by Northern Pump Co., Warren Pumps, Goulds Pumps, Gardner Denver and Crane Co.; all of these were coated with asbestos packing material which generated dust whenever it was manipulated or removed; he sometimes, to get it off, he had to pound the insulation with a hammer, resulting in asbestos dust "like a sandstorm." Ms. Berry's expert, Dr. Holstein, also voiced the view that asbestos dust from each of these products was a substantial contributing cause of her disease.

In the context of this long trial and mountain of documentary evidence, the case against the valve and pump defendants really pales in perspective. The jury was called to decide what level of involvement was sufficient to create liability, and found that the smaller players did not reach that level. The jury may also have felt that Dr. Holstein's monolithic view of liability, while scientifically justified, was impractical. We cannot say that the verdict is an abuse of discretion. And, as with GE and J. Graves, we note that most of the evidence against the valve and pump defendants was actually adduced by the plaintiff, not by Foster Wheeler, the entity that owed the burden of proving the fault of settled parties. Joseph v. Broussard Rice Mill , supra ; State v. Cecil , supra . We find no manifest error.

This assignment of error lacks merit.

Exclusion of Evidence of Union Knowledge

By its second assignment of error, Foster Wheeler urges the trial court erred in refusing to allow it to present evidence of union knowledge regarding the hazards of asbestos. It established, through the testimony of Eddie Scott, J. Graves's corporate representative, that J. Graves was a union shop, and, through the cross-examination of Dr. Holstein, that J. Graves was subject to OSHA regulations by June 1972. After J. Graves settled midtrial, Foster Wheeler tried to offer the deposition of Dr. Howard, its expert pulmonologist, to state that J. Graves's union knew about the hazards of asbestos, and this knowledge should be charged to J. Graves. Ms. Berry objected, and the trial court sustained it, stating that there was no evidence that the union assumed the duty of workplace safety; Foster Wheeler proffered portions of Dr. Howard's deposition. The court also denied a post-trial motion on the issue. Foster Wheeler contends this was error, and urges the standard of review is de novo, Gonzales v. Xerox Corp. , 254 La. 182, 320 So.2d 163 (1975).

Ms. Berry responds that the standard of review for an evidentiary ruling is abuse of discretion, Won Suk Lee v. Holyfield Const. Inc. , 47,204 (La. App. 2 Cir. 6/20/12), 93 So.3d 868, not de novo. She submits that the excluded evidence would not have altered the verdict. She also contends that labor unions have no duty to warn their members about workplace hazards unless they have affirmatively undertaken this duty, United Steelworkers of Amer. v. Rawson , 495 U.S. 362, 110 S Ct. 1904, 109 L.Ed.2d 362 (1990), and no duty to search out workplaces for hazards associated with asbestos or other toxins, Doiron v. Southern Silica of La. , 613 So.2d 1064 (La. App. 3 Cir.), writ denied , 619 So.2d 546 (1993).

A ruling on the admissibility of evidence is a question of law and is not subject to the manifest error standard of review. Trascher v. Territo , 2011-2093 (La. 5/8/12), 89 So.3d 357, citing Frank L. Maraist, Evidence & Proof , 2 ed. (19 La. Civ. L. Treatise, Thomson West ©2007); Port City Glass & Paint Inc. v. Brooks , 52,534 (La. App. 2 Cir. 2/27/19), 266 So.3d 516. A party may not complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling affected a substantial right of the party. Id. Nonetheless, a district court is afforded great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal absent an abuse of that discretion. Medine v. Roniger , 2003-3436 (La. 7/2/04), 879 So.2d 706 ; Won Suk Lee v. Holyfield Const. Inc. , supra . On appeal, the court must consider whether the contested ruling was erroneous and whether the error affected a substantial right of the party. La. C.E. art. 103 A; Won Suk Lee v. Holyfield , supra . If not, reversal is not warranted.

Specifically, the court excluded the fall 1971 copy of Insulation Hygiene Progress Reports , a publication of the Insulation Industry Hygiene Research Program, and a portion of Dr. Howard's deposition discussing the lead article therein. Foster Wheeler was allowed to introduce an earlier copy of Insulation Hygiene Progress Reports , spring 1969, which featured a long article about the first cooperative effort by labor unions, industry, scientists and the government to undertake health research for insulation workers; it quoted Dr. Irving Selikoff, a pioneer in asbestos research, as seeking to minimize exposure to dust and fumes. Foster Wheeler also introduced a copy of United Paper , a union publication, dated March 29, 1972, with an article headlined "Workers Face Death From Asbestos Dust" and quoting Dr. Selikoff. In addition, Dr. Holstein testified very expansively that knowledge of asbestos's hazards was readily available by 1964, from public libraries, Encyclopaedia Britannica , and on boxes of Johns-Manville insulation, one of the types used by J. Graves. In short, there was considerable evidence from which the jury could have found that the union representing J. Graves's employees had knowledge of the hazards of asbestos. Compared to the record as a whole, the later issue of Insulation Hygiene Progress Reports , and of the pulmonologist's commentary on it, cannot have had a substantial effect on the outcome of the case. Won Suk Lee v. Holyfield , supra . We perceive no abuse of the trial court's discretion.

This assignment of error lacks merit.

Automatic Virile Share for Settlement

By its third assignment of error, Foster Wheeler urges the district court erred in failing to allocate a virile share for the liability of J. Graves, who settled during trial. Foster Wheeler contends that whenever a settlement is reached after the start of trial, the plaintiff's award must be reduced by the virile share of the settling defendant. Danks v. Maher , 177 So.2d 412 (La. App. 4 Cir. 1965) ; Raley v. Carter , 412 So.2d 1045 (La. 1982). This is because last-minute settlements impair a defendant's ability to prove the negligence of the settling defendant. Haney v. Francewar , 588 So.2d 1172 (La. App. 1 Cir. 1992). Foster Wheeler argues that what happened here was unfair, as it had worked with J. Graves for the first two weeks of trial, conducting voir dire together and cross-examining six of Ms. Berry's witnesses in collaboration. Foster Wheeler concludes that the district court committed a legal error and that this court should amend the judgment to reflect J. Graves's virile share.

Ms. Berry responds that the essential question is whether Foster Wheeler presented competent evidence to prove that J. Graves was at fault, that the automatic virile share for settlement is "harsh," Raley v. Carter , supra , and that since Raley , no published opinion has ever relieved a defendant of the burden of proving the fault of a settling codefendant.

In Danks v. Maher , supra , the plaintiff filed a medical malpractice suit against her doctor, the hospital and their respective insurers. After trial was almost completed but before the case was submitted to the jury, the plaintiff settled her claim against the doctor and his insurer, and those parties were released and dismissed, but she reserved her rights against the remaining defendants. The Fourth Circuit found that the dismissal of the doctor so near the end of trial unfairly shifted the burden of proving the released defendants' negligence from the plaintiff to the remaining defendants. The court therefore reduced the judgment rendered against the hospital by one-half.

In Wall v. American Employers Ins. Co. , supra , the plaintiff sued three defendants for the wrongful death of her daughter. She settled with two of the three pretrial, and proceeded to trial in which the negligence of the released defendants was litigated. The district court found that the evidence proved the fault of the released defendants but did not prove causation against the remaining defendant. On appeal, this court reversed, finding sufficient proof of the fault of the remaining defendant, but we reduced the award by two-thirds to reflect the virile share of the released defendants. On review, the Supreme Court affirmed our result, but held that it was based on the quality of proof introduced at trial, and not on an automatic reduction for virile shares.

In Raley v. Carter , supra , the plaintiff filed a personal injury suit against the job supervisor, safety officer, plant manager and project manager of the company to which his employer was under contract. On the morning of trial, the plaintiff dismissed his claims against three of the defendants but reserved his rights against the job supervisor. At trial, neither the plaintiff nor the remaining defendant offered any evidence tending to prove or negate the liability of the released defendants. After judgment was rendered in the plaintiff's favor, the district court refused to reduce it by 75% to reflect the released defendants' virile shares, but the First Circuit granted this reduction, citing Danks v. Maher , supra . On review, however, the Supreme Court reinstated the district court's judgment, carefully discussing Danks and Wall , supra . The court's operative reasoning was as follows:

In the area of law considered in Danks v. Maher , supra , and Wall v. American Employers Insurance , supra , fairness to the defendant was of paramount importance. In order to claim contribution from a released tortfeasor, the remaining defendant will ordinarily be required to establish the negligence of the released defendant at trial. In cases where a plaintiff reaches settlement with one or more defendants well prior to trial, the remaining defendant is afforded ample opportunity to prepare to carry this burden of proof.
* * *
The result reached in Danks , supra , was harsh and its application should be strictly limited to cases in which settlement is reached only after the commencement of trial.

In light of the entire discussion in Raley , we do not consider the second paragraph, quoted above, as requiring the automatic imposition of virile shares any time the plaintiff settles with one codefendant after the start of trial. The linchpin is fairness to the remaining defendant. The Supreme Court noted in Raley that the remaining defendant failed to request a continuance or offer any evidence of negligence on the part of the released defendants; thus, he "cannot complain of a judgment finding them solely liable to plaintiff." The court also stated that to hold otherwise would seriously impair pretrial settlement negotiations. Finally, the court said it would not require a plaintiff "to prepare two cases, one to establish the negligence of all named defendants; the other (held in reserve) to establish the lack of fault of any defendant with whom the plaintiff may happen to compromise prior to trial."

In its oral ruling on Foster Wheeler's request for an automatic virile share for J. Graves's settlement, the district court showed an exemplary grasp of the operative reasoning of Raley , supra , and meticulously applied it to the facts of this case. The court first stated that Foster Wheeler had benefited from all the evidence that Ms. Berry marshalled against J. Graves during her case in chief, most notably, the testimony of J. Graves's corporate representative, Eddie Scott. The court then noted the "long weekend" between the settlement and the resumption of trial the following week, giving Foster Wheeler ample time to adjust its defense. Finally, the court found that the jury had been given the opportunity to find J. Graves at fault, under four different theories, and declined to do so. In our view, these considerations honor the objectives of fairness to the defendant, the encouragement of settlement discussions, and fairness to the plaintiff advanced in Raley . This court would merely add that after the settlement, Foster Wheeler did not object to resuming the trial or attempt to recall Mr. Scott for cross-examination. On appeal, Foster Wheeler does not allege any specific prejudice - what other evidence it would have offered, or other strategy it would have pursued, had J. Graves not settled. We perceive no abuse of the district court's discretion. This assignment of error lacks merit.

Future Medical Expenses

By its fourth assignment of error, Foster Wheeler urges the jury erred in awarding future medical expenses, and the district court erred in not eliminating this award. As noted, the jury awarded future medicals of $ 2 million; on JNOV, the court reduced it to $ 1 million. Foster Wheeler argues that a plaintiff must show, more probably than not, that these expenses will be incurred, and must offer medical testimony that such expenses are indicated and setting out their probable cost. Hunt v. Long , 33,395 (La. App. 2 Cir. 6/21/00), 763 So.2d 811. It further argues that appellate courts have reversed or reduced such awards because of insufficient proof, Boothe v. New Orleans Publ. Serv. , 447 So.2d 620 (La. App. 4 Cir. 1984) ; Austin v. Pascarelli , 612 So.2d 201 (La. App. 3 Cir. 1992), writs denied , 614 So.2d 1256, 1256 (1993). Specifically, Foster Wheeler cites Ms. Berry's own admission, "I don't think I'm going to do that" and "I don't see the point in doing it," referring to a proposed 17-hour procedure to enter her abdomen and "debulk" numerous tumors. It also contends that Ms. Berry's own expert pathologist, Dr. Brent Staggs, was ambivalent about the costs, and her treating physician and oncologist in Monroe, Dr. Benjamin B. Weinberger, was indecisive about the need for, such surgery. Foster Wheeler concludes that the record falls short of meeting the standard of future medicals, and urges this court to render judgment deleting that award.

Ms. Berry submits that the award is not manifestly erroneous. She argues that the court should not reject an award of future medicals on the basis that the record does not provide the exact value of necessary expenses, if the record will support a minimum amount that reasonable minds could not disagree will be required. Stiles v. K Mart Corp. , 597 So.2d 1012 (La. 1992). She graphically relates the regimen of treatment she has already undergone, and suggests that Dr. Staggs's round estimate of $ 1 million to $ 3 million, and Dr. Weinberger's estimate of $ 1 million, for her future medical expenses fully support the award of the JNOV.

A tort victim may recover past and future medical expenses caused by tortious conduct. La. C.C. art. 2315 ; Menard v. Lafayette Ins. Co. , 2009-1869 (La. 3/16/10), 31 So.3d 996. A plaintiff shows the probability of future medical expenses with supporting medical testimony and estimations of their probable cost. Id. Awards of future medicals generally do not involve determining amounts, but turn on questions of credibility and inferences, such as which side's experts and other witnesses the jury believes. Id. ; Shephard v. AIX Energy Inc. , 51,965 (La. App. 2 Cir. 5/23/18), 249 So.3d 194, writ denied , 2018-1266 (La. 11/5/18), 255 So.3d 1050. Future medical expenses must be established with some degree of certainty, but:

[w]hen the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required.

Stiles v. K Mart Corp. , supra at 1012 ; Cooley v. Adgate , 52,000 (La. App. 2 Cir. 5/30/18), 248 So.3d 753.

The judge's or jury's assessment of quantum, as a finding of fact, is entitled to great deference on review.

La. C.C. art. 2324.1 ; Menard v. Lafayette Ins. Co. , supra . The standard of review is manifest error: an appellate court will reverse only if there is no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Id.

Ms. Berry received her diagnosis of peritoneal mesothelioma in March 2015, at the age of 65. This disease is a cancer of the abdominal lining, often resulting in bowel obstruction (which had indeed happened to Ms. Berry, requiring surgery to resect and unblock her colon), kidney failure and death. Dr. Kanwal Raghav, Ms. Berry's treating oncologist at M.D. Anderson Cancer Center in Houston, testified that she had "a lot of disease in her peritoneum" and lymph nodes that were positive, making her not a candidate for surgery. For two years, she received chemotherapy, which seemed to keep the tumors in check, for a while, but this led to another hospitalization, for "rigors." Despite first-line chemo, the tumors resumed their growth and, in early 2017, Dr. Weinberger advised that she was now a candidate for surgery, with the alternative of continued chemotherapy. He testified that even without the proposed surgery, she was still at risk for bowel obstructions, which would require their own surgeries.

At trial, in early May 2017, Ms. Berry testified, regarding the proposed surgery, "I don't think I'm going to do that, because it's still a terrible surgery," "I'm not at all sure I'm going to do that," and "I don't see the point in doing it."

The jury listened to the abundant evidence and obviously discounted Ms. Berry's protestation that she would not submit to the proposed surgery. In light of the severity and inevitable advance of the disease, it was not unreasonable for them to find that she would ultimately elect to have it. As noted, such a decision turns on questions of credibility and inferences. Menard v. Lafayette Ins. Co. , supra ; Shephard v. AIX Energy , supra . If the showing of medical necessity is strong, the fact finder may discount the plaintiff's reluctance or refusal to undergo a stated medical procedure. Melancon v. Lafayette Ins. Co. , 2005-762 (La. App. 3 Cir. 3/29/06), 926 So.2d 693, writs denied , 2006-0974, -1006 (La. 6/16/06), 929 So.2d 1291, 929 So.2d 1293. We perceive no manifest error in the jury's finding that future medicals would probably be incurred.

As to quantum, the expert testimony was somewhat speculative. Dr. Staggs admitted, "We don't know exactly," and offered, "One, two, three million dollars." Dr. Weinberger, discussing Ms. Berry's overall outlook, testified, "If she is hospitalized for any complications, you're talking * * * maybe over a year, two, three years, like I suggested, close to a million dollars. This is just off the top of my head." Notably, Foster Wheeler introduced no expert medical or economic evidence showing that a smaller amount would likely cover her anticipated future medical expenses, as was done in Shephard v. AIX Energy , supra . While more concrete estimates of costs would have been helpful (both to the district court and to this court), we cannot say the district court abused its discretion in fixing the award at $ 1 million.

This assignment of error lacks merit.

Peremption of 10 Years

By its fifth assignment of error, Foster Wheeler urges the district court erred in failing to grant its motion for directed verdict and then in failing to submit jury charges or interrogatories on La. R.S. 9:2772 A and E. Subsection A prohibited any action against any person "performing the construction of immovable, or improvement to immovable property," more than 10 years after the work was accepted. Foster Wheeler argues that it completed construction of the boilers in 1965, but Ms. Berry did not file this suit until 2015, 50 years later. In support, it cites Exxon Corp. v. Foster Wheeler Corp. , 2000-2093 (La. App. 1 Cir. 12/28/01), 805 So.2d 432, writ denied , 2002-0261 (La. 3/28/02), 812 So.2d 633, in which the court applied § 2772 to dismiss a products liability claim arising out of a pipe fitting that was installed in 1963, malfunctioned and caused a fire in 1993, and was the subject of a lawsuit in 1994. Foster Wheeler argues that its work at Olin satisfied the statute, and if the jury had known about § 2772, this would have materially affected the outcome of the case. It asks this court to reverse the judgment, based on § 2772 peremption, or to vacate the judgment and remand for a new trial in which the jury can consider the statute.

Ms. Berry responds that Foster Wheeler waived this issue because it never requested a jury instruction or interrogatory on R.S. 9:2772. On the merits, she contends that the statute does not apply "when a contractor acquires knowledge of a dangerous defect and fails to warn the owner," Curtis v. Branton Indus. Inc. , 2006-675 (La. App. 3 Cir. 11/2/06), 944 So.2d 716, writs denied , 2007-0291 (La. 4/20/07), 954 So.2d 161 -0295, -0297 (La. 4/20/07), 954 So.2d 162. She also argues that Foster Wheeler's regular maintenance and repair work on the boilers amounted to "possession or control, as owner, lessor, tenant, or other possessory interest," and this disqualifies Foster Wheeler from asserting the peremption, under Subsection E. Rando v. Anco Insulations Inc. , 2008-1163 (La. 5/22/09), 16 So.3d 1065 ; Chaisson v. Avondale Indus. Inc. , 2005-1511 (La. App. 4 Cir. 12/20/06), 947 So.2d 171, writ denied , 2007-0411 (La. 4/5/07), 954 So.2d 145.

From this record, it is difficult to say whether or when Foster Wheeler may have requested jury charges regarding R.S. 9:2772. Its proposed jury charges, supplemental jury charges and jury interrogatories, filed in open court after closing arguments, do not mention peremption or R.S. 9:2772. However, Foster Wheeler made an oral motion for directed verdict on these issues, which the district court entertained and denied. For our purposes, the issue was properly presented to the district court.

Peremptive statutes are strictly construed against the peremption and in favor of the claim. Lomont v. Bennett , supra ; Hunter v. Jindal , 45,130 (La. App. 2 Cir. 10/13/09), 20 So.3d 592, writ denied , 2009-2237 (La. 10/15/09), 18 So.3d 1292. La. R.S. 9:2772 A stated, in pertinent part:

[N]o action * * * including but not limited to an action * * * to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning * * * or administration related to any building, construction, demolition, or work, shall be brought against any person * * * performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1 [.]

The statute applies to "planning, construction, design, or building," but this is broadly defined to include "building, construction, demolition, or work." The record shows that even though Olin accepted Foster Wheeler's initial construction of the boilers in 1965, Foster Wheeler continued to come to the mill semiannually for outages, through the time Mr. Berry retired, in 2010. The district court was entitled to treat this regular maintenance and repair as "work." Ms. Berry's suit was filed within 10 years of the last work that exposed her husband, and herself, to asbestos fibers. We perceive no manifest error in the district court's ruling.

This assignment of error lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Foster Wheeler LLC.

AFFIRMED.

      The current owner of the mill is Graphic Packaging International.

      The defendants who settled pretrial were General Electric Co. ("GE"), and the "valve and pump defendants," Northern Pump Co., Warren Pumps LLC, Goulds Pumps Inc., Gardner Denver Inc. and Crane Co.

      Roberts v. Owens-Corning Fiberglas Corp. , 2003-0248 (La. App. 1 Cir. 4/2/04), 878 So.2d 631, writ denied , 2004-1834 (La. 12/17/04), 888 So.2d 863 ; Oddo v. Asbestos Corp. Ltd. , 2014-0004 (La. App. 4 Cir. 8/20/15), 173 So.3d 1192, writ denied , 2015-1712 (La. 11/6/15), 180 So.3d 308 ; Warren v. Sabine Towing & Transp. Co. , 2001-0573 (La. App. 3 Cir. 10/30/02), 831 So.2d 517, writs denied , 2002-2926, -2927 (La. 2/14/03), 836 So.2d 116, 2002-2936 (La. 2/14/03), 836 So.2d 117.

      Williams v. Placid Oil Co. , 2016-839 (La. App. 3 Cir. 8/2/17), 224 So.3d 1101, writ denied , 2017-1501 (La. 11/17/17), 229 So.3d 929 ; Emery v. Owens-Corp. , 2000-2144 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, writ denied , 2002-0635 (La. 5/10/02), 815 So.2d 842.

      Ms. Berry had also filed a pretrial motion to exclude evidence of such knowledge on the part of Mr. Berry's union at the mill.

      Foster Wheeler also cites two recent, unpublished cases. In one, the First Circuit reversed a trial court and assessed a virile share for a codefendant's settlement "following the swearing in of the jury," although the Supreme Court reversed this on other grounds, Williams v. Dow Chem. Co. , 17-0885 (La. App. 1 Cir. 7/20/17), 2017 WL 3096782, writ granted, judgment vacated , 2017-1712 (La. 12/15/17), 231 So.3d 605. In the other, the Orleans Civil District Court assessed a virile share to two defendants who settled "several days after trial had begun," Truxillo v. Bossier , 10-10951 (CDC Orl.), writ denied , 11-0651 (La. App. 4 Cir. 5/16/11) (unrep.), writ denied , 2011-1020 (La. 5/18/11), 63 So.3d 968.

      She also contends that the Orleans Civil District court case cited by Foster Wheeler, Truxillo v. Bossier , was overruled by a later, unpublished opinion, Hayden v. 3M Co. , 2017-0308 (La. App. 4 Cir. 4/4/17) (unpub.), writ denied , 2017-0565 (La. 4/5/17), 218 So.3d 107.

      La. R.S. 9:2772 A was amended by 1999 Acts, No. 1024, § 1, to reduce the peremptive period to seven years, and again by 2003 Acts, No. 919, § 1, to reduce it to its current five years. Subsection A was also amended by 1990 Acts, No. 712, § 1, to add "failure to warn" as a kind of action prohibited by the statute.

      After Foster Wheeler filed this appeal, the court reporter sent a cost estimate based on the complete record, of over 19,000 pages. Pursuant to a "motion for actual costs," the parties culled out roughly three-quarters of the pages of the pleadings, bringing the record down to 5,300 pages. We commend the parties for their agreement to make the record more manageable, but have noticed certain gaps and cannot state to a certainty that Foster Wheeler never requested an instruction on R.S. 9:2772.