29,835 La.App. 2 Cir. 9/24/97, Berzas v. OXY USA, Inc.

• Decision Date: 24 September 1997
• Citation: 699 So.2d 1149
• Parties: 29,835 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1149

699 So.2d 1149

29,835 La.App. 2 Cir. 9/24/97

Regina M. BERZAS, et al., Plaintiffs-Appellants, v. OXY USA, INC., et al., Defendants-Appellees.

No. 29835-CA.

Court of Appeal of Louisiana Second Circuit.

Sept. 24, 1997.

Jack R. Brown, Shreveport, for Plaintiffs-Appellants.

Liskow & Lewis by Frederick W. Bradley, New Orleans, Blanchard, Walker, O'Quin & Roberts by Robert Roberts, III, W. Michael Adams, James C. McMichael, Jr., Shreveport, for Defendants-Appellees.

Before HIGHTOWER, GASKINS and PEATROSS, JJ.

GASKINS, Judge.

The plaintiffs, Regina M. Berzas and Mary Jeanette Tate, appeal from a trial court ruling granting a motion for summary judgment on behalf of the defendants, OXY USA, Inc. and OXY Oil and Gas USA, Inc. (collectively referred to as OXY). For the following reasons, we affirm the trial court judgment.

FACTS

The original plaintiffs in this case were numerous residents of the Alexis Park Apartments in Bossier City, which were constructed on the site of an old oil refinery previously operated by OXY or its predecessor companies. ¹ Suit was filed on January 18, 1991 against various defendants including OXY. In a very broadly drawn petition, the plaintiffs alleged that in the 1930s, dangerous, toxic, hazardous and poisonous chemicals were deposited in the ground at the site which now includes the Alexis Park Apartments. This area is also known as the Highway 71/72 refinery site. The plaintiffs, who lived in the apartments in 1989 and 1990, alleged that chemicals and pollutants creating a hazard to their health were in the possession, custody and control of various defendants, including OXY. The plaintiffs alleged that the defendants' negligent handling of hazardous and toxic materials was a cause in fact "of the problems they now encounter." The petition further alleged that the plaintiffs have lived in a dangerous, unhealthy environment and have been exposed to potentially damaging water and soil pollution. They also alleged that their fears of health problems have increased. The plaintiffs claimed entitlement to damages caused by evacuation of their apartments, inconvenience of being exposed to noxious odors and fear of exposure to deadly, dangerous and unhealthy chemicals.

During the course of the proceedings, OXY propounded interrogatories and requests for the production of documents to the plaintiffs. On several occasions OXY was required to bring motions to compel to secure responses from the plaintiffs. The plaintiffs undertook no discovery of their own. The matter was set for trial on July 8, 1996, with a cut off date for discovery set for May 31, 1996. However, the plaintiffs did not designate experts or provide OXY with any expert reports or witness lists by this date. On June 27, 1996, the plaintiffs filed a motion to continue the July 1996 trial date until further testing of the site was completed by governmental agencies. The trial court granted the motion, continuing the trial of the matter until an unspecified later date.

On June 11, 1996, a motion for summary judgment was filed on behalf of OXY, alleging that the plaintiffs' case, claiming damages for exposure to toxic chemicals in the soil under their apartment complex, would necessarily require the introduction of testimony and evidence by experts to carry their burden of proof. According to OXY, the plaintiffs would be required to show that (1) some chemical was released by OXY (2) the plaintiffs were exposed to the chemical (3) concentrations of the chemical were such that a causal relationship existed between the exposure and (4) any injury sustained by the plaintiffs. OXY contended that, during the course of discovery, the plaintiffs had declined to secure any experts to support their claims. On July 9, 1996, the trial court denied OXY's motion for summary judgment, finding that this is a case in which the ultimate decision will be based upon opinion evidence and therefore, summary judgment was not appropriate.

On July 18, 1996, OXY filed a motion for reconsideration and rehearing of their motion for summary judgment. OXY contended that there were three compelling reasons for summary judgment. First, the plaintiffs' failure to designate experts or provide expert reports before the trial court's discovery cut off deadline of May 31, 1996 meant that no expert testimony would be admissible at trial. OXY again asserted that the plaintiffs' could not prove their claim of damages due to exposure to chemicals without experts. Second, OXY argued that the plaintiffs have failed to establish the existence of proof of elements essential to their claims. Finally, OXY noted that in denying the motion, the trial court applied the law on summary judgment in effect prior to the 1996 amendment to the summary judgment article, La. C.C.P. art. 966.

In opposition to the motion for reconsideration, the plaintiffs asserted that they are unable to offer expert evidence to support their contentions until such time as specific substances are identified on the site through testing by the Environmental Protection Agency, the Department of Environmental Quality and the Louisiana Office of Public Health.

On October 24, 1996, the trial court held a hearing on OXY's motion for reconsideration and rehearing on the motion for summary judgment. At that time, the trial court granted the motion for reconsideration, reversed its prior ruling and granted OXY's motion for summary judgment. The plaintiffs then filed a motion for new trial which was denied by the trial court on November 18, 1996. The plaintiffs appealed devolutively from the grant of summary judgment in favor of OXY.

Based upon the jurisprudence construing motions for summary judgment prior to the 1996 amendment to La. C.C.P. art. 966, the plaintiffs argue that the trial court erred in granting OXY's motion for summary judgment. The plaintiffs claim that they have provided the court with abundant facts and documents from the Louisiana Department of Environmental Quality, the Louisiana Office of Public Health and the United States Environmental Protection Agency to show that the site is highly contaminated with chemicals and that the contamination was caused by OXY. The plaintiffs contend that further test data will soon be available and they are unable to proceed to trial until site testing is completed. The plaintiffs also assert that no health impact determinations can be made until all laboratory data are compiled and analyzed. These arguments are without merit.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Bullock v. Homestead Insurance Company, 29,536 (La.App.2d Cir. 6/20/97), 697 So.2d 712. An appellate court thus asks the same question as does the trial court in determining whether summary judgment is appropriate: whether there is any issue of material fact, and whether the mover is entitled to judgment as a matter of law. Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318 (La.1993); Powers v. Tucker, 29,190 (La.App.2d Cir. 2/26/97), 690 So.2d 922; Bullock v. Homestead Insurance Company, supra.

In Louisiana, the law regarding summary judgment is set forth in La. C.C.P. art. 966. Previously, the jurisprudence construing this article provided that summary judgments were not favored, were to be used only cautiously and sparingly and supporting documents of the mover were to be strictly construed by the courts while the documents submitted by the party opposing the motion were to be treated indulgently. Any doubt was to be resolved against granting the summary judgment and in favor of trial on the merits. Hayes v. Autin, 96-287 (La.App. 3d Cir. 12/26/96), 685 So.2d 691, writ denied 97-0281 (La.3/14/97), 690 So.2d 41.

In 1996, La. C.C.P. art. 966 was amended to legislatively overrule the jurisprudential presumption against summary judgment. The amendment "leveled the playing field" between the parties by allowing the supporting documents submitted by the two parties to be scrutinized equally and removing the overriding presumption in favor of trial on the merits. Hayes v. Autin, supra; La. Acts 1996 (First Ex. Session), No. 9.

As noted in Hayes v. Autin, supra, under the 1996 amendment, the initial burden of proof remained with the mover to show that no genuine issue of material fact exists. However, once the mover made a prima facie showing that the motion should be granted, the burden of proof shifts to the nonmoving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Hayes v. Autin, supra; Dinger v. Shea, 96-448 (La.App. 3d Cir. 12/11/96), 685 So.2d 485; Tybussek v. Wong, 96-1981 (La.App. 4th Cir. 2/26/97), 690 So.2d 225.

The court in Hayes v. Autin, supra, recognized that the 1996 amendment to La. C.C.P. art. 966 brings the Louisiana standard for summary judgment closely in line with Federal Rule of Civil Procedure 56 (FRCP 56). In the federal system, when the nonmoving party bears the burden of proof at trial, there is no genuine issue of material fact if the nonmoving party cannot come forward at the summary judgment stage with evidence of sufficient quantity and quality for a reasonable juror to find that the party can satisfy his substantive evidentiary burden. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Company v. Zenith Radio Corporation, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In construing summary judgments under FRCP 56, the United States Supreme Court stated that summary judgment shall be granted...