Ned ex rel. January v. Union Pac. Corp.

• Court: Court of Appeal of Louisiana
• Writing for the Court: KEATY, Judge.
• Citation: Ned ex rel. January v. Union Pac. Corp., 176 So.3d 1095 (La. App. 2015)
• Decision Date: 15 April 2015
• Docket Number: Nos. 14–1310.,s. 14–1310.
• Parties: Gloria M. NED, individually, and on Behalf of Jessie January and Jacqueline January v. UNION PACIFIC CORPORATION, et al.

176 So.3d 1095

Gloria M. NED, individually, and on Behalf of Jessie January and Jacqueline January

v.UNION PACIFIC CORPORATION, et al.

Nos. 14–1310.

Court of Appeal of Louisiana, Third Circuit.

April 15, 2015.

J. Arthur Smith, III, Smith Law Firm, Baton Rouge, Louisiana, for Plaintiffs/Appellants, Gloria M. Ned, et al.

Leonard Knapp, Attorney at Law, Lake Charles, Louisiana, for Plaintiffs/Appellants, Gloria M. Ned, et al.

Brian Crawford, Crawford & Ogg, Monroe, Louisiana, for Plaintiffs/Appellants, Gloria M. Ned, et al.

David A. Fraser, Pamela L. Courtney, Fraser, Wheeler & Bergstedt, L.L.P., Lake Charles, Louisiana, for Defendants/Appellees, Union Pacific Corporation Dallas Stutes.

H. Alston Johnson, III, Steven J. Levine, Kevin W. Welsh, Phelps Dunbar LLP, Baton Rouge, Louisiana, for Defendants/Appellees, Union Pacific Corporation Dallas Stutes.

Merrick Walton, Attorney at Law, Houston, Texas, for Defendants/Appellees, Union Pacific Corporation Dallas Stutes.

William B. Monk, Allyson E. Champagne, Kathleen T. Deanda, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, Louisiana, for Defendants/Appellees, PPG Industries, Inc., A.L. Greathouse, Tommy G. Brown, W.J. Peard.

Opinion

KEATY, Judge.

Plaintiffs¹appeal the trial court's granting of a partial motion for summary judgment in favor of Defendants, Union Pacific Corporation, Union Pacific Railroad Corporation (Union Pacific), PPG Industries, Inc. (PPG), W.J. Peard, A.L. Greathouse, Tommy G. Brown, and Dallas Stutes. For the following reasons, the trial court's judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

In this toxic tort matter, residents of the Fisherville neighborhood in Lake Charles, Louisiana, which was located near a railroad yard wherein a hazardous chemical spill occurred, filed a negligence suit against the railroad owner and others. The chemical spill occurred on April 20, 1983, when a railcar carrying at least 11,000 gallons of perchloroethylene (PCE) released this toxic chemical through an open valve while parked at the Lake Charles Rail Yard. Southern Pacific Transportation Company (Southern Pacific), the predecessor-in-interest of Union Pacific, owned the rail yard and railcar, whereas PPG owned the PCE. Southern Pacific and PPG cleaned the area where the spill occurred, allegedly eliminating all PCE from the ground surface level by mid-July 1983.

After July 1983, approximately 1,150 gallons of PCE remained underground. Cleaning and remediation efforts continued by way of groundwater monitoring, treatment and extraction of impacted groundwater, maintenance, and installation of monitored wells at the release site and in areas north and south. Between 1996 and 1998, additional monitoring wells were installed on railroad property and in the Fisherville neighborhood.

As a result of the leak, numerous lawsuits were filed. Specifically, on October 5, 1998, Gwendolyn Guillory and other Fisherville residents filed suit in Guillory v. Union Pacific Corp.,01–960 (La.App. 3 Cir. 5/15/02), 817 So.2d 1234, writ denied,02–2094 (La.11/1/02), 828 So.2d 575. In Guillory,the trial court denied the Fisherville plaintiffs' motion for class certification. Id.On appeal, we reversed and remanded, finding that the record supported all of the requirements for class certification under La.Code Civ.P. art. 591. Id.In the instant matter, through its appellate brief, Defendants assert that the Guilloryclass action was settled in 2007, subject to a fairness hearing wherein class representatives acknowledged that they could not offer credible evidence of actual injuries caused by the remaining underground PCE.

This litigation stems from five similar individual civil actions filed on March 3, 2003, in the Calcasieu Parish trial court. The suits have been consolidated, forming the proceeding as it stands today. In its appellate brief, Defendants contend that the consolidated suits involve 360 Plaintiffs who allegedly opted out of the Guilloryclass action. Defendants allege that approximately 100 Plaintiffs of the original 360 were dismissed for either or both of the following reasons: (1) res judicata resulting from settling and signing releases in other suits or (2) as a sanction resulting from the failure to comply with orders requiring discovery. Defendants contend that none have appealed those dismissals.

In response to Plaintiffs' suit, Defendants filed a peremptory exception of prescription. Hearings on the exception were held in March and September 2009. On April 1, 2010, the trial court issued written reasons for denying Defendants' exception based upon its finding that Plaintiffs “have the right to continue with their action through application of the continuing tort theory.” The trial court's ruling was reduced to written judgment dated April 19, 2010. Defendants filed a Motion for New Trial and/or Reconsideration or Clarification of the trial court's denial of Defendants' peremptory exception of prescription, which was denied. Defendants sought supervisory writs from this court and the supreme court, which were also denied.

Defendants filed a partial motion for summary judgment on April 28, 2014. It sought dismissal of two groups of Plaintiffs listed in its exhibits based upon prescription and Plaintiffs' alleged failure to provide discovery responses. After a hearing on June 18, 2014, the trial court granted Defendants' partial motion for summary judgment, dismissing those two groups of Plaintiffs.

Plaintiffs appeal the trial court's granting of Defendants' partial motion for summary judgment, alleging the following four assignments of error:

(1) The trial court erred in dismissing seventy-nine Plaintiffs' claims on the grounds that they had actual and/or constructive knowledge of their onset of symptoms more than one year prior to filing suit when the trial court previously determined that Plaintiffs established a basis for concluding that continuous tortious conduct occurred.

(2) The trial court erred in sustaining Defendants' prescriptive defense when there lacked competent evidence that they had actual knowledge of the cause of their injuries and that, therefore, Plaintiffs' claims have not prescribed under the federally required commencement date pursuant to 42 U.S.C. § 9658(a)(1)for actions brought under state law for personal injury damages arising from exposure to hazardous substances.

(3) The trial court erred and/or abused its discretion in admitting into evidence the affidavit of two employees of one of the law firms representing Defendants, even though it failed to comply with the requirements set forth in La.Code Civ.P. art. 967.

(4) The trial court erred and/or abused its discretion in excluding as untimely the affidavit of Plaintiffs' expert, Dr. Paul H. Templet, which was dated, filed, and served on June 9, 2014.

STANDARD OF REVIEW

In Whitbeck v. Champagne,14–245, p. 9 (La.App. 3 Cir. 10/1/14), 149 So.3d 372, 379, this court stated the following:

Summary judgments are reviewed de novo, applying the same standard to the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp., Inc.,93–2512 (La.7/5/94), 639 So.2d 730. Summary judgment is favored by law and provides a vehicle by which the just, speedy, and inexpensive determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).

Thus, we will use the de novo standard of review in the instant matter.

DISCUSSION

I. Actual or Constructive Notice

In their first assignment of error, Plaintiffs contend that the trial court erred in dismissing seventy-nine Plaintiffs' claims based on their actual and/or constructive knowledge of the onset of their symptoms more than one year prior to filing suit despite the trial court's previous ruling that they properly established a basis for concluding that continuous tortious conduct occurred. Plaintiffs allege that “the pivotal issue in this case is what role does notice play in a continuing tort case with regard to prescription.” We find that Plaintiffs are mistaken as to the pivotal issue. According to the trial court's April 1, 2010 ruling on Defendants' peremptory exception of prescription, the issue is whether it correctly held that Plaintiffs could “continue with their action through the application of the continuing tort theory.” Given the subsequent rulings in Hogg v. Chevron USA, Inc.,09–2632, 09–2635 (La.7/6/10), 45 So.3d 991; Marin v. Exxon Mobil Corp.,09–2368, 09–2371 (La.10/19/10), 48 So.3d 234; and Bernard v. City of Marksville,14–730 (La.App. 3 Cir. 12/17/14), 154 So.3d 1246, Plaintiffs' reliance on the continuing tort doctrine is misplaced.

The continuing tort doctrine provides that “[w]hen the tortious conduct and resulting damages continue, prescription does not begin until the conduct causing the damage is abated.” S. Cent. Bell Tel. Co. v. Texaco, Inc.,418 So.2d 531, 533 (La.1982). “A continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act.” Crump v. Sabine River Auth.,98–2326, p. 9 (La.6/29/99), 737 So.2d 720, 728. When the tortious conduct is continuous and gives rise “to successive damages, prescription dates from cessation of the wrongful conduct causing the damage.” S. Cent. Bell Tel. Co.,418 So.2d at 533. In South Central Bell Telephone Co.,418 So.2d 531, the supreme court held that the wrongful conduct causing the damage was the leaking underground storage tanks and that the cause of the damage abated when the offending tanks were removed and replaced.

Recent supreme court cases that were decided after the hearing on Defendants' partial motion for summary judgment under...