Bradford v. Citgo Petroleum Corp.

• Decision Date: 10 January 2018
• Docket Number: 17–299, 17–320, 17–318, 17–313, 17–319, 17–302, 17–303, 17–308, 17–301, 17–298, 17–311, 17–306, 17–300, 17–304, 17–305, 17–317, 17–316, 17–307,17–296 consolidated with 17–297, 17–321, 17–310, 17–309, 17–312, 17–314, 17–315
• Citation: Bradford v. Citgo Petroleum Corp., 237 So.3d 648 (La. App. 2018)
• Parties: Emma BRADFORD, et al. v. CITGO PETROLEUM CORPORATION, et al.
• Court: Court of Appeal of Louisiana

237 So.3d 648

Emma BRADFORD, et al.

v.CITGO PETROLEUM CORPORATION, et al.

17–296 consolidated with 17–297

17–298

17–299

17–300

17–301

17–302

17–303

17–304

17–305

17–306

17–307

17–308

17–309

17–310

17–311

17–312

17–313

17–314

17–315

17–316

17–317

17–318

17–319

17–320

17–321

Court of Appeal of Louisiana, Third Circuit.

January 10, 2018

Mat Marion Gray, III, Ashley E. Bane, Fowler Rodriguez, 400 Poydras Street—30th Floor, New Orleans, LA 70130, Telephone: (504) 523–2600, COUNSEL FOR: Other—Louisiana Surplus Lines Association

Robert E. Landry, Kevin Paul Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive—Suite 900, Lake Charles, LA 70601, Telephone: (337) 433–9436, COUNSEL FOR: Defendant/Appellant—CITGO Petroleum Corporation

Kirk Albert Patrick, III, Donahue, Patrick & Scott, 450 Laurel Street—Suite 1600, Baton Rouge, LA 70801, Telephone: (225) 214–1908, COUNSEL FOR: Defendant/Appellee—R & R Construction, Inc.

Wells T. Watson, Jake Buford, Baggett, McCall, Burgess, Watson & Gaughan, 3006 Country Club Road, Lake Charles, LA 70605, Telephone: (337) 478–8888, COUNSEL FOR: Plaintiff/Appellee—Emma Bradford

Marshall Joseph Simien, Jr., Simien Law Firm, 2129 Fitzenreiter Road, Lake Charles, LA 70601, Telephone: (337) 497–0022, COUNSEL FOR: Defendant/Appellant—CITGO Petroleum Corporation

Matthew David Monson, The Monson Law Firm, LLC, 900 West Causeway Approach—Suite A, Mandeville, LA 70471, Telephone: (985) 778–0678, COUNSEL FOR: Other—Louisiana Surplus Lines Association

Richard E. Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, Telephone: (337) 436–6611, COUNSEL FOR: Plaintiff/Appellee—Emma Bradford

Craig Isenberg, Joshua O. Cox, Barrasso Usdin Kupperman, Freeman & Sarver, L.L.C., 909 Poydras Street—24th Floor, New Orleans, LA 70112, Telephone: (504) 589–9700, COUNSEL FOR: Defendant/Appellant—CITGO Petroleum Corporation

R. Heath Savant, Donohue Patrick, PLLC, 450 Laurel Street—Suite 1600, Baton Rouge, LA 70801, Telephone: (225) 214–1908, COUNSEL FOR: Defendant/Appellee—R & R Construction, Inc.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.

THIBODEAUX, Chief Judge.

CITGO Petroleum Corporation (CITGO) appeals the trial court's judgment in favor of twenty plaintiffs on the issue of causation. It also appeals the trial court's judgment in favor of thirteen plaintiffs on the issue of symptom duration following exposure to CITGO's chemical spill and release. Finding no error or manifest error in the trial court's judgment, we affirm.

I.ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding that the twenty plaintiffs at issue established causation between their injuries and CITGO's slop oil spill and air release on June 19, 2006; and

(2) whether the trial court manifestly erred in awarding damages for symptoms of thirteen plaintiffs beyond the duration of that suggested by the medical testimony.

II.FACTS AND PROCEDURAL HISTORY

The facts of the spill and air release are well-documented, as several cases have come before this appellate court and the Louisiana Supreme Court. See, e.g., Arabie v. CITGO Petroleum Corp. , 10-244 (La.App. 3 Cir. 10/27/10), 49 So.3d 529, aff'd on liability and causation, rev'd on punitive damage issue , 10-2605 (La. 3/13/12), 89 So.3d 307 (referred to as Arabie I ); Arabie v. CITGO Petroleum Corp. , 15-324 (La.App. 3 Cir. 10/7/15), 175 So.3d 1180, writ denied , 15-2040 (La. 1/8/16), 184 So.3d 694 (referred to as Arabie II ); and Cormier v. CITGO Petroleum Corp., 17-104 (La.App. 3 Cir. 10/4/17), 228 So.3d 770.

On June 19, 2006, following a local flash flood, CITGO's Calcasieu Parish Refinery released four million gallons of slop oil and seventeen million gallons of wastewater into the Calcasieu River, contaminating over 100 miles of coastline with toxic liquids and mousse-like substances that emitted toxic fumes in addition to being toxic upon contact. The spill was the result of the failure and overflow of CITGO's closed-system, waste-water treatment unit. The overflow was described as a catastrophic event and an environmental disaster by CITGO's own representatives. The clean-up of the spill lasted for approximately six months, from June to December, 2006.

CITGO's Material Safety Data Sheet (MSDS) on slop oil from March 2006 ranks it as a chronic health and fire hazard. The MSDS states that the oil is extremely flammable and poisonous, and it contains Hydrogen Sulfide (H₂S) gas which may be fatal if inhaled. It can enter the lungs and cause damage. It is harmful or fatal if swallowed. Slop oil contains above di minimus levels of benzene, a known cancer hazard which can cause leukemia and other blood disorders, H₂S, xylene, toluene, n-hexane, and ethylbenzene. Benzene, toluene, and xylene are volatile organic compounds (VOCs). VOCs are chemicals that evaporate from a solid or liquid form at room temperature; long-term exposure can cause damage to the liver, kidneys, and central nervous system; short-term exposure can cause eye and respiratory tract irritation, headaches, dizziness, visual disorders, fatigue, loss of coordination, allergic skin reactions, nausea, and memory impairment.¹ Pursuant to CITGO's MSDS, slop oil also contains hexane, heptane, octanes, nonane, and trimethylbenzenes. Slop oil and/or its components are listed on the Toxic Substances Control Act (TSCA) inventory.

Also on June 19, 2006, CITGO's steam lines became submerged and the facility released H₂S and sulfur dioxide (S02) from sixty stacks in illegal concentrations for a full day, approximately twelve hours. The wind was blowing from the southeast toward the north and northwest, then calming for parts of the day, allowing the toxic emissions to release into the surrounding community.

The plaintiffs in these consolidated cases live, work, and socialize in the areas around the CITGO facility. They asserted various injuries as a result of their exposure to the toxic chemicals in the slop oil and wastewater spills and in the air emissions emanating from the CITGO facility on June 19, 2006. The trial court found in favor of thirty-four of the thirty-six plaintiffs, and made awards in accordance with the court's assessment of the evidence. CITGO appeals the parts of the judgment awarding damages to twenty-two of those plaintiffs.² CITGO has stipulated to liability, and its appeal is based upon causation and duration of damages only.

III.STANDARD OF REVIEW

An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD , 617 So.2d 880 (La.1993) ; Rosell v. ESCO , 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court: (a) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and (b) the appellate court must further determine that the record establishes that the finding of the trial court is clearly wrong (manifestly erroneous). Mart v. Hill , 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue , 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court's findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housely v. Cerise , 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co. , 283 So.2d 716 (La.1973).

IV.LAW AND DISCUSSION

CITGO first contends that the trial court manifestly erred in awarding damages to twenty plaintiffs "without expert testimony establishing that they actually had been exposed to harmful chemicals released by CITGO."

Causation

In any personal injury suit, the plaintiff bears the burden of proving causation by a preponderance of the evidence. Maranto v. Goodyear Tire & Rubber Co. , 94-2603 (La. 2/20/95), 650 So.2d 757. A cause is a legal cause in fact if it has a proximate relation to the harm which occurs. Butler v. Baber, 529 So.2d 374 (La.1988). "A proximate cause is generally defined as any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the result complained of and without which the result would not have occurred." Sutton v. Duplessis , 584 So.2d 362, 365 (La.App. 4 Cir.1991). The test for determining the causal relationship between an accident and injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Maranto , 650 So.2d 757. If there is more than one cause of injury, "a defendant's conduct is a cause-in-fact if it is a substantial factor generating plaintiff's harm." Rando v. Anco Insulations, Inc. , 08-1163, p. 31 (La. 5/22/09), 16 So.3d 1065, 1088. Causation is an issue of fact subject to the manifest error standard of review. Id.

Proof of causation in toxic tort cases has two components, general and specific. Pick v. American Medical Systems, Inc. , 958 F.Supp. 1151, 1164 (E.D. La.1997). "General causation" refers to whether a substance is capable of causing a particular injury or condition in the general population, while "specific causation" refers to whether a substance caused a particular individual's injury. Knight v. Kirby Inland Marine, Inc. , 482 F.3d 347, 351 (5th Cir. 2007). A plaintiff cannot sustain his or her burden of proof with general causation...