Broussard v. Multi-Chem Grp., LLC

• Decision Date: 17 March 2021
• Docket Number: CA 20-259
• Citation: Broussard v. Multi-Chem Grp., LLC, CA 20-259 (La. App. Mar 17, 2021)
• Parties: ROBERT BROUSSARD AND R.J. BROUSSARD GENERAL CONTRACTORS INC. v. MULTI-CHEM GROUP, LLC, ET AL.
• Court: Court of Appeal of Louisiana

ROBERT BROUSSARD AND R.J. BROUSSARD GENERAL CONTRACTORS INC. v. MULTI-CHEM GROUP, LLC, ET AL.

CA 20-259

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

March 17, 2021

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 118902

HONORABLE ANTHONY THIBODEAUX, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie, Judges.

AFFIRMED.

Edward P. Landry

Kreig A. Breaux

Landry, Watkins, Repaske & Breaux

211 Main Street

PO Box 12040

New Iberia, LA 70562-2040

(337) 364-7626

COUNSEL FOR PLAINTIFFS/APPELLEES:

Creig Fowler

Calvin J. Segura, Sr.

Tobin James Eason

Weiss & Eason, LLP

PO Box 8597

Mandeville, LA 70470

(985) 626-5358

COUNSEL FOR PLAINTIFF/APPELLEE:

K & J, LLC, et al

Theodore Michael Haik, Jr.

Haik, Minvielle & Grubbs

P. O. Box 11040

New Iberia, LA 70562-1040

(337) 365-5486

COUNSEL FOR PLAINTIFFS/APPELLEES:

R.J. Broussard General Contractors, Inc.

Robert Broussard

Jo Ann Nixon

Glenda August & Assoc.

129 W. Pershing St.

New Iberia, La 70560

(337) 369-7437

COUNSEL FOR PLAINTIFF/APPELLEE:

K & J, LLC, et al

Richard G. Duplantier, Jr.

Jason E. Wilson

Galloway, Johnson, Tompkins, Burr & Smith

One Shell Square, Suite 4040

701 Poydras Street

New Orleans, LA 70139

(504) 525-6802

COUNSEL FOR DEFENDANTS/APPELLANTS:

Nathan Walker

Cade Bourque

Aaron Gauthier

Multi-Chem Group, LLC

John Gauthier

Louis Clayton Burgess

605 W. Congress St.

Lafayette, LA 70501

(337) 234-7573

COUNSEL FOR PLAINTIFF/APPELLEE:

K & J, LLC, et al

Derriel Carlton McCorvey

102 Versailles Blvd, Ste. 620

Lafayette, La 70501

(337) 291-2431

COUNSEL FOR PLAINTIFF/APPELLEE:

K & J, LLC, et al

EZELL, Judge.

Multi-Chem Group, L.L.C., Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier (hereinafter collectively referred to as "Multi-Chem.") appeal the decision of the trial court below awarding damages to Calvin Segura and Creig Fowler resulting from an explosion at the Multi-Chem chemical facility. For the following reasons, we hereby affirm the decision of the trial court.

On June 14, 2011, a fire broke out at the Multi-Chem facility in New Iberia, Louisiana, producing several explosions. "Numerous individuals described the scene, explaining that they witnessed debris, including drums and containers, flying into the air due to those explosions." Broussard v. Multi-Chem Grp., LLC, 17-985, 17-986, 17-987, 17-988, 17-989, 17-990, 17-991, 17-992, p. 1 (La.App. 3 Cir. 7/11/18), 255 So.3d 661, 666, writ denied, 18-1347 (La. 11/14/18), 256 So.3d 258. The fire resulted in a chemical plume that required evacuation of the area within a mile radius of the facility. Multiple toxic chemicals were released. "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." Id. Mr. Segura and Mr. Fowler both worked at a K&J Supply Co., a business immediately adjacent to Multi-Chem, and were subject to the fall out of the explosion.

Multiple suits resulted from the fire, which were handled in multiple phases based on proximity to Multi-Chem. Liability for the fire was stipulated to by Multi-Chem. Most of the plaintiffs located within a mile of Multi-Chem were involved in Phase 1 and handled in a Bellwether manner (these plaintiffs will hereinafter be referred to as Phase 1 plaintiffs). However, Mr. Segura and Mr. Fowler were specifically excluded from that litigation due to their increased damages caused bytheir prolonged exposure, as they were the last to leave K&J and were subjected to the chemical plume for longer than prior plaintiffs in other related litigation.

After trial on the matter, the trial court awarded Mr. Segura past medical expenses in the amount of $157,406.09 and future medical expenses in the amount of $200,000.00. Mr. Segura also received $600,000.00 in past and future mental anguish, pain and suffering, and loss of enjoyment of life. Mr. Fowler was awarded $250,000.00 in in past and future mental anguish, pain and suffering, and loss of enjoyment of life, as well as $20,000.00 for fear of developing cancer. From those awards, Multi-Chem appeals.

On appeal, Multi-Chem asserts four assignments of error. The first two claim that the trial court erred in deviating from the law of the case in awarding the Plaintiffs higher awards than the prior Phase 1 plaintiffs, and that the trial court failed to follow Louisiana precedent in awarding damages. Because these assignments of error overlap greatly, they will be addressed together. Multi-Chem also claims that the trial court erred in admitting and relying on the testimony of Caroline Boudreaux, and that the trial court erred in finding Mr. Segura met his burden of proof on past and future medical expenses.

Mr. Segura and Mr. Fowler answer the appeal, asserting that the damage awards were insufficient.

THE TESTIMONY OF CAROLINE BOUDREAUX

As the assignment of error concerning the admission of the testimony of Ms. Boudreaux directly affects the remaining assignments of error, we will address that first. Multi-Chem claims that the trial court erred in admitting and relying on the testimony of Ms. Boudreaux.

Louisiana Code of Evidence Article 702 is pertinent to these claims, providing that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the facts of the case.

The Louisiana Supreme Court has recognized that Article 702 now codifies Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which addresses the methodology employed by prospective experts. See Freeman v. Fon's Pest Mgmt., Inc., 17-1846 (La. 2/9/18), 235 So.3d 1087. Of course, a trial court is accorded broad discretion in its determinations of whether expert testimony should be admissible. Cheairs v. State, Dep't of Transp. & Dev., 03-0680 (La. 12/3/03), 861 So.2d 536.

Broussard, 255 So.3d at 671. The trial court has "wide discretion" to admit expert testimony, and "its rulings should not be reversed in the absence of clear error." Holzenthal v. Sewerage & Water Bd. of New Orleans, 06-796, 06-797, 06-798, p. 29 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, 73-74, writ denied, 07-294 (La. 3/30/07), 953 So.2d 71. "This discretion is even greater in a bench trial." Id. at 74. This also applies to the trial court's Daubert analysis because "to do otherwise would hamstring the trial court's discretionary authority." Johnson v. Melton, 03-1132, pp. 6-7 (La.App. 4 Cir. 2/4/04), 867 So.2d 804, 808, writ denied, 04-562 (La. 4/23/04), 870 So.2d 303.

Ms. Boudreaux testified that she was a CPA for thirty-nine years and participated in litigation in both state and federal courts during that time. She statedthat she had specialties in the areas of calculating economic losses, including lost wages, benefits, and medical expenses. She stated that she calculated Mr. Segura's losses using accounting formulas, itemized medical invoices, and discussions with Dr. George Sagrera. She received invoices from all hospitals and providers concerning charges Dr. Sagrera related to the accident. She calculated Mr. Segura's future medical expenses based on his past medical charges, his future life expectancy, and discussions with Dr. Sagrera concerning Mr. Segura's future medical outlook. The trial court accepted both Ms. Boudreaux and Multi-Chem's economist, Charles Theriot, as experts, heard their methods and testimony, and clearly chose between them. We can find no abuse of the trial court's discretion in the admission of Ms. Boudreaux's testimony.

MR. SEGURA'S MEDICAL EXPENSES

Next, Multi-Chem claims the trial court erred in finding Mr. Segura met his burden of proof as to past and future medical expenses.

[T]he plaintiff in a toxic tort suit has the burden of proving that the offending substances caused his or her injury. Bradford [v. CITGO Petroleum Corp., 17-296 (La.App. 3 Cir. 1/10/18), 237 So.3d 648, writ denied, 18-0272 (La. 5/11/18), 241 So.3d 314] (citing Knight v. Kirby Inland Marine, Inc., 482 F.3d 347 (5th Cir. 2007); Berzas v. OXY USA, Inc., 29,835 (La.App. 2 Cir. 9/24/97), 699 So.2d 1149). In Arabie v. CITGO Petroleum Corp., 10-2605, p. 19 (La. 3/13/12), 89 So.3d 307, 321, the supreme court framed the issue of causation as "whether the plaintiff proved through medical testimony that it was more probable than not that subsequent injuries were caused by the accident." The supreme court further analyzed the causation issue before it upon consideration of the plaintiffs' testimony regarding the circumstances of their symptoms upon exposure, along with expert opinion and medical records. Id.

Broussard, 255 So.3d at 686.

Applying the manifest error standard to an award of special damages, such as medical expenses, requires the appellate court to employ a two-step analysis basedupon the entire record. First, we must conclude that there is no reasonable factual basis for the trial court's award, and second, we must conclude that the award is clearly wrong. Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802.

Multi-Chem claims in brief that Mr. Segura failed to prove a causal relationship between the accident and his injuries. This is directly contrary to the testimony of Mr. Segura's treating physician, Dr. George Sagrera, who clearly stated that he attributed Mr. Segura's COPD directly to the fire and resulting exposure to toxic chemicals. He noted that he infrequently saw Mr. Segura for issues such as colds or back problems prior to the fire,...