Jack v. Citgo Petroleum Corp.

• Decision Date: 28 November 2018
• Docket Number: CA 18-176, CA 18-169
• Citation: Jack v. Citgo Petroleum Corp., 261 So.3d 38(Mem) (La. App. 2018)
• Parties: Ellis JACK, Jr. v. CITGO PETROLEUM CORPORATION, et al.
• Court: Court of Appeal of Louisiana

261 So.3d 38 (Mem)

Ellis JACK, Jr.

v.CITGO PETROLEUM CORPORATION, et al.

CA 18-176, CA 18-169

Court of Appeal of Louisiana, Third Circuit.

November 28, 2018

Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24^th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P. O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Ellis Jack, Jr.

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Ellis Jack, Jr.

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169(La.App. 3 Cir.11/28/18), ––– So.3d ––––, 2018 WL 6199877, the judgment of the trial court finding the damages alleged by Ellis Jack, Jr. were caused by the air release and/or slop oil is reversed, as are the damages in the amount of $27,700.00 awarded to Mr. Jack.

REVERSED AND RENDERED.

Pickett, J., concurs for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.

Pickett, J., concurs in part and dissents in part with written reasons.

A court of appeal will not set aside the findings of fact of a trial court unless it determines the trial court's finding were manifestly erroneous or clearly wrong.Stobart v. State, through DOTD , 617 So.2d 880(La.1993).In reviewing the entire record, the appellate court must find that a reasonable factual basis does not exist for the trial court's finding and that the finding is clearly wrong (manifestly erroneous) in order to reverse a trial court finding based on factual determinations.Mart v. Hill , 505 So.2d 1120(La.1987).When reviewing an issue of law, though, we review the record de novo to determine if the trial court's legal conclusions are correct, without deference to the trial court's findings.Foti v. Holliday , 09-93(La.10/30/09), 27 So.3d 813.

Causation

CITGO argues that nine plaintiffs failed to prove that their injuries were caused by exposure to either slop oil or the air release.In addition to specific arguments about each of the nine plaintiffs, CITGO re-urges the argument it made unsuccessfully in Bradford v. CITGO Petroleum Corp. , 17-296(La.App. 3 Cir.1/10/18), 237 So.3d 648, writ denied , 18-272 (La.5/11/18), 241 So.3d 314, namely that expert testimony is required to prove both general causation and specific causation in a toxic tort case."General causation" refers to whether a toxic substance can cause a particular harm in the general population, while "specific causation" refers to whether the toxic substance caused a specific person's injury or condition.Knightv.Kirby Inland Marine, Inc. , 482 F.3d 347, 351(5th Cir.2007).This court rejected that argument.SeeBradford , 237 So.3d at 659-660.The panel in Bradford found that while expert testimony is required to prove causation, it is sufficient that there is expert testimony to prove general causation and medical testimony to establish specific causation.I agree with that conclusion.

Dr. Barry Levy, a physician and epidemiologist, testified via deposition to establish general causation in this case, as he has done in numerous previous CITGO cases.Frank Parker, an industrial hygienist, also testified via deposition to establish general causation.Dr. Steve Springer, a family medicine doctor, testified as to the specific causation of each of the twenty-six plaintiffs in this case.This court went on in Bradford , though, to evaluate not only the medical testimony as to specific causation, but also the circumstances of the exposure as related by individual plaintiffs and evidence as to the spread of the oil slop from CITGO in the days following the release.Keeping in mind these principles, my review of the evidence provided in this case leads me to a different conclusion than the majority regarding five of the plaintiffs about whether these plaintiffs met their burden of proving specific causation.

The Louisiana Pigment Employees

Mr. Doucet, Ms. McZeal, Mr. Mumford, and Mr. Smith were employees of Louisiana Pigment Company when they claim they were exposed to chemicals released from CITGO.Louisiana Pigment is located to the northeast of the CITGO plant.To support their claim of exposure, these plaintiffs rely on Mr. Parker's opinion about the amount of hydrogen sulfide and sulfur dioxide released from CITGO's stacks, and a chart purporting to show the wind direction at the time of the thirteen-hour release, beginning at 3 a.m. on June 19, 2006.We note that the map and wind direction chart introduced in the record in this case, exhibit seven to Mr. Parker's deposition, has print so small as to be illegible.Further, Mr. Parker's testimony indicates that the map is color-coded, yet the copy introduced into the record before us is black and white.Thus, we can rely on Mr. Parker's testimony that the wind was generally calm on June 19, 2006, and when it did blow it went from the southeast to the northwest.Exhibit 8 to Mr. Parker's deposition shows the 911 calls made that day, with most of the calls made within a mile radius of CITGO and to the northwest of the facility.Mr. Parker testified that there were no calls from the northeast of CITGO.Mr. Parker also testified that employees of Firestone Polymers, a company directly across the street from CITGO, were exposed to the air release.SeeAlbarado v. CITGO Petroleum Corp. , 17-823(La.App. 3 Cir.5/16/18), 247 So.3d 818, where the plaintiffs were employees of Firestone Polymers.

The plaintiffs' brief argues that a plaintiff in Bradford , Clara Espree, was east of Louisiana Pigment when she was found to have been exposed to the air release.The majority relies on this allegation in reaching its conclusion pertaining to causation.Ms. Espree's location is not in the trial court record before us, and because in issues of fact we are confined to the evidence entered in the record before us, the majority improperly considered her location in this appeal.The specific testimony of these four plaintiffs, and of Dr. Springer about each of these four plaintiffs, must be examined to determine if there is sufficient evidence in this record to support the judgment of the trial court.

Albert Doucet, Jr.

Mr. Doucet testified that he was an operator at Louisiana Pigment in June 2006.Mr. Doucet testified that he was on break and remembered a strong smell.He did not remember specifically what day his exposure occurred.He remembers his eyes burning and his throat burning.He claimed at the trial that he still had headaches that would come and go.While he testified that he saw his personal doctor for his symptoms, there were no records of this appointment and Mr. Doucet does not remember when this appointment occurred.Mr. Doucet did not see any oil or come in contact with any oil.Mr. Doucet did not receive any documented treatment for his injuries related to the exposure until he saw Dr. Springer on January 22, 2007.

Dr. Springer testified that Mr. Doucet suffered several days of eye pain, sore throat, nausea, and sinus irritation from exposure to chemicals, and approximately seven months of increased headaches related to exposure of either slop oil or hydrogen sulfide.Dr. Springer did not have an opinion on whether Mr. Doucet was exposed to slop oil or the air release.

The trial court found that Mr. Doucet was exposed to the air release.I find manifest error in that conclusion.There is no evidence in the record to show what day Mr. Doucet smelled the strong odor which allegedly caused his injuries.There is no contemporaneous record of Mr. Doucet seeking medical treatment for these injuries at the time he suffered them.There is no evidence he was actually at work on the day of the release.I would reverse the trial court's finding that Mr. Doucet's injuries are related to exposure to the air release from CITGO.I would also reverse the damages awarded to Mr. Doucet.

Debra McZeal

Ms. McZeal testified that she was at work at Louisiana Pigment on the day of the release.She was on a break outside when she noticed a strong smell.Her eyes started burning, her throat hurt, and she became nauseated.She retreated inside.She never saw any oil on the water or came in contact with oil.Dr. Springer treated Ms. McZeal for her injuries in August 2006.At the time of the trial, she had forgotten about her exposure in June 2006.

Dr. Springer testified that in his medical opinion, one to two days of nausea, sore throat, and eye burning, and nine months of headaches, sinus congestion, and pain related to sinus congestion were caused by Ms. McZeal's exposure to chemicals from CITGO.Dr. Springer testified that he did not know the details of Ms. McZeal's exposure, except that she was at Louisiana Pigment at the time.

While the evidence is paltry, the fact that Ms. McZeal testified that she was at Louisiana Pigment "on the day of the release" constitutes sufficient evidence for the trial court to determine that she was exposed on June 19, 2006.Thus, I concur with the majority that there is no manifest error in the trial court's conclusion that Ms. McZeal was exposed to the air release on June 19, 2006.

Tommy Mumford

Mr. Mumford testified that he was working at Louisiana Pigment on the day of the release.Mr. Mumford noticed a distinct smell, and he recalled his supervisor instructing him to make sure it was not emanating from their site.He suffered some nausea, a little eye irritation, and some sinus...