Broussard v. Multi-Chem Grp., LLC

• Decision Date: 11 July 2018
• Docket Number: 17-985, 17-986, 17-987, 17-988, 17-989, 17-990, 17-991, 17-992
• Citation: Broussard v. Multi-Chem Grp., LLC, 255 So.3d 661 (La. App. 2018)
• Parties: Robert J. BROUSSARD, et al. v. MULTI-CHEM GROUP, LLC
• Court: Court of Appeal of Louisiana

255 So.3d 661

Robert J. BROUSSARD, et al.

v.MULTI-CHEM GROUP, LLC

17-985, 17-986, 17-987, 17-988, 17-989, 17-990, 17-991, 17-992

Court of Appeal of Louisiana, Third Circuit.

July 11, 2018

Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier

Theodore M. "Trey" Haik, III, Haik, Minvielle & Grubbs, LLP, Post Office Box 11040, New Iberia, LA 70562-1040, (337) 365-5486, COUNSEL FOR PLAINTIFFS/APPELLEES: Robert J. Broussard R. J. Broussard, General Contractors, Inc.

Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.

AMY, Judge.

The plaintiffs of numerous consolidated proceedings sought personal injury damages associated with alleged exposure to chemicals following an industrial explosion at the defendant chemical facility. With liability established in pre-trial proceedings, the matters proceeded to trial for consideration of the bellwether plaintiffs' respective individual claims. Following a multi-day proceeding, the trial court awarded each plaintiff general damages, including those for fear of developing cancer or other illness. The trial court also awarded medical expenses for some of the plaintiffs. The defendants appeal.

Factual and Procedural Background

On June 14, 2011, a fire occurred at the facility of Multi-Chem Group, LLC in Iberia Parish, resulting in a series of explosions. Cade Bourque, Multi-Chem's Health, Safety, and Environmental Director at the time, confirmed that the facility housed 700,060 gallons of chemicals at the time of the fire and that the close proximity of its storage vessels contributed to multiple explosions.¹ Numerous individuals described the scene, explaining that they witnessed debris, including drums and containers, flying into the air due to those explosions.

Prescott Marshall, the Director of the Office of Homeland Security and Emergency Preparedness for Iberia Parish Government, estimated that between five and ten fire departments responded to the scene, which ultimately came under the control of the Louisiana State Police. According to Director Marshall, authorities evacuated a one-mile area² surrounding the scene. The fire actively burned for 22-24 hours by varying accounts.

This matter was the first-filed of a number of suits³ initiated after the occurrence, wherein the plaintiffs, workers at neighboring businesses and area residents, alleged that they were exposed to hazardous materials carried by smoke and wind. Multi-Chem was named as a defendant as were several of its employees. With the matters consolidated before the trial court, Multi-Chem's liability for resulting damages was established in pre-trial proceedings. Thereafter, the issues of causation and quantum of damages proceeded to a multi-day bench trial on a bellwether trial basis.⁴ By stipulation, the parties chose bellwether plaintiff categories as follows:

[1.] Of those Plaintiffs who allege personal injury damages from exposure and who were located less than one (1) mile from the fire source, two (2) Bellwether Trial Representatives shall be jointly selected by Counsel for the Plaintiffs in the consolidated cases and two (2) Representatives shall be selected by Counsel for the Defendants.

[2.] Of those Plaintiffs who allege personal injury damages from exposure and who were located between one (1) and three (3) miles form the fire source, three (3) Bellwether Trial Representatives shall be jointly selected by Counsel for the Plaintiffs in the consolidated cases and three (3) Representatives shall be selected by Counsel for the Defendants.

[3.] Of those Plaintiffs who allege personal injury damages from exposure and who were located more than three (3) miles from the fire source, one (1) Bellwether Trial Representative shall be jointly selected by Counsel for the Plaintiffs in the consolidated cases and one (1) Representative shall be selected by Counsel for the Defendants.

For Category 1, counsel for the plaintiffs selected Ryan Maturin and Dodie Boudreaux as representatives whereas counsel for the defendants chose Rickey Mergist and Trey LeBlanc. For Category 2 representatives, counsel for the plaintiff designated Sheral Iles, Julia Tillman, and Michael Honore, Sr., and counsel for the defendants chose Charles Antoine, Adam Curley, and Dorothy Lopez. Finally, as representatives for Category 3, counsel for the plaintiffs selected John R. Lopez, Sr., and counsel for the defendants chose Clarisse Armstead.⁵

At trial, the parties presented expert testimony on the remaining issue before the court, i.e. , whether the bellwether plaintiffs were exposed to hazardous materials as a result of the Multi-Chem fire and, as a result of that exposure, whether they sustained compensable damages. The plaintiffs presented the expert testimony of Dr. David Mitchell, a meteorologist, who opined that the smoke plume from the fire travelled in various directions, including the area south and southwest of the Multi-Chem facility.

Additionally, the plaintiffs presented Dr. Laura Plunkett, a toxicologist and pharmacologist, who opined that air sampling data⁶ revealed that particulate matter existed for days following the fire and that those levels exceeded regulatory standards. She further explained that, while the air sampling data monitored volatile chemicals, it did not measure chemicals absorbed into the particulates. Given the materials involved, she explained that a "chemical soup of particulate[s]" resulted, with unknown properties.⁷ She explained, however, that the type of acute symptoms complained of by the plaintiffs were consistent with exposure to particulate matter more than likely contained within the plume and that some of the associated chemicals are potential carcinogens.

Finally, the plaintiffs presented Dr. Monty Rizzo, who evaluated numerous plaintiffs, including two of the bellwether plaintiffs, and who explained that the type of acute injuries reported by those plaintiffs more likely than not resulted from their exposure. He identified potential problems with exposure to visible smoke as well as to smaller, invisible particulate matter.

In opposition, the defendants disputed Dr. Mitchell's testimony regarding the direction of the smoke plume, suggesting through the opinion of meteorologist Nash Roberts that the smoke plume travelled only in a north-northeast direction due to the direction of the wind. Finally, the defendants presented Dr. John Kind, as an expert in industrial hygiene, toxicology, and emergency response, who testified that there was no evidence of a potential for adverse health effects outside of the Multi-Chem facility. Dr. Kind concluded instead that the hazardous vapors involved in the fire were consumed in its heat and that there was no evidence that any of the hazardous chemicals were absorbed into the particulate matter. Further, given the direction of the smoke plume as suggested by Mr. Roberts, Dr. Kind suggested that the plaintiffs could not have come in contact with the particulates for such a period of time as to pose a risk.

Ultimately, the trial court rendered extensive written reasons upon a finding that each of those plaintiffs established exposure. The trial court awarded damages as follows:

Category 1 (located less than one mile from the fire source)

 Ryan Maturin
                  Medical Expenses                                  $539.75
                  General Damages                                $15,000.00
                  Mental Anguish (fear of developing cancer)      $7,000.00
                

Dodie Boudreaux
                  Medical Expenses                                  $593.36
                  General Damages                                $17,000.00
                  Mental Anguish (fear of developing cancer)      $7,000.00
                  Rickey Mergist
                  Medical Expenses                                  $729.30
                  General Damages                                $15,000.00
                  Mental Anguish (fear of developing cancer)      $7,000.00
                  Trey LeBlanc
                  General Damages                                $15,000.00
                  Mental Anguish (fear of developing cancer)      $7,000.00
                

Category 2 (located between one and three miles from the fire source)

Charles Antoine
                  Medical Expenses                                  $742.37
                  General Damages                                $15,500.00
                  Mental Anguish (fear of developing cancer)      $7,000.00
                  Sheral Iles
                  Medical Expenses                                $4,039.75
                  Lost Wages                                        $392.00
                  General Damages                                 $7,000.00
                  Mental Anguish (fear of developing cancer)      $5,000.00
                  Julia Tillman
                  General Damages                                 $5,000.00
                  Mental Anguish (fear of developing cancer)      $5,000.00
                  Michael Honore, Sr
                  General Damages                                 $5,000.00
                  Mental Anguish (fear of developing cancer)      $5,000.00
                  Adam Curley
                  General Damages                                 $5,000.00
                  Mental Anguish (fear of developing cancer)      $5,000.00
                  Dorothy Lopez
                  Medical Expenses                                   $73.00
                  General Damages                                 $2,500.00
                  Mental Anguish (fear of developing cancer)      $5,000.00
                

Category 3 (located more than three miles from the fire source)

John Lopez, Sr
                  Medical Expenses                                  $239.75
                  General Damages                                 $2,500.00
                  Mental Anguish (fear of developing cancer)      $5,000.00
                  Clarisse Armstead
                  General Damages                                 $2,000.00
                  Mental Anguish (fear of developing cancer)      $2,000.00
                

The defendants appeal the resulting final judgment, assigning the following as error:

1) The trial court erred in excluding the opinions of meteorologist Nash Roberts[.]

2) The trial court erred in admitting and relying upon the opinions of meteorologist Dr. David Mitchell[.]

3) The trial court erred in admitting

...