Broussard v. Multi-Chem Grp., LLC

• Decision Date: 11 July 2018
• Docket Number: 17–985
• Citation: Broussard v. Multi-Chem Grp., LLC, 252 So.3d 509 (La. App. 2018)
• Parties: Robert J. BROUSSARD, et al. v. MULTI–CHEM GROUP, LLC
• Court: Court of Appeal of Louisiana

252 So.3d 509

Robert J. BROUSSARD, et al.

v.MULTI–CHEM GROUP, LLC

17–985

Court of Appeal of Louisiana, Third Circuit.

July 11, 2018

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)

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

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

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 and relying upon the opinions of Dr. Monty Rizzo[.]

4) The trial court erred in admitting and relying upon the opinions of toxicologist Dr. Laura Plunkett[.]

5) The trial court erred in finding that any Bellwether Plaintiff established general or specific causation[.]

6) The trial court erred in finding that any Bellwether Plaintiff was entitled to damages for fear of future development of illness[.]

7) The trial court erred in awarding excessive damage awards[.]

Discussion

Expert Opinion

By their first four assignments of error, the defendants question the trial court's acceptance, and corresponding rejection, of certain opinion testimony offered by four experts. 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. With that standard in mind, we turn to each of the defendants' assignments of error relating to expert testimony, addressing the defendants' arguments by subject matter.

Meteorology

In their respective positions on whether plaintiffs were exposed to hazardous materials due to the fire, the parties presented conflicting versions of events as to the movement of air-borne material from the Multi-Chem site. As noted, the plaintiffs presented Dr. Mitchell who referenced radar imagery and wind direction in opining, in short, that within an hour of the initial fire and over the following day, smoke covered the area surrounding Multi-Chem exposing those in the subject areas to particulate matter from the explosion.

In contrast, the defendants presented the opinion testimony of meteorologist Nash Roberts. Mr. Roberts testified that, based on the wind direction throughout the period of the fire, the smoke plume...