Bradham v. Union Carbide

985 So. 2d 846, 2007 La.App. 5 Cir. 919, 2008 La. App. LEXIS 790, 2008 WL 2190848
CourtLouisiana Court of Appeal
DecidedMay 27, 2008
DocketNo. 07-CA-919
StatusPublished
Cited by1 cases

This text of 985 So. 2d 846 (Bradham v. Union Carbide) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bradham v. Union Carbide, 985 So. 2d 846, 2007 La.App. 5 Cir. 919, 2008 La. App. LEXIS 790, 2008 WL 2190848 (La. Ct. App. 2008).

Opinion

CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

On April 23, 1999, Eddie Bradham (“Bradham”) and his wife, Betty, filed a Petition for Damages against Union Carbide Corporation (“UCC”), Cameron Cal-luiet, Larry Riley, and Mike Parker. The individual defendants were all employed by UCC. Bradham alleged he was employed by Fluor Daniel on April 23, 1998 as a millwright at the UCC facility in Taft, Louisiana. He further alleged that on that date, he was working in the EA-1 Unit and there was a pressure swing in the unit causing the release of toxic airborne chemicals which he came in contact with. As a result of this exposure to toxic chemicals, Bradham claimed he suffered burning of the eyes, nose and throat, shortness of breath, nauseau, and a skin rash over his entire body.

Bradham alleged he reported the incident and was sent to a company doctor. He continued to suffer headaches, sleeplessness, irritability, nervousness, and respiratory difficulties. He ceased his employment with Fluor Daniel on May 18, 1998. He claimed the sole cause of his injuries was exposure to teratogen, amines, and other hazardous and toxic materials released into the air by UCC. He claimed the injuries and damages he suffered were caused by UCC’s, and the other | individual defendant’s, failure to prevent the leak of toxic substances in the [848]*848EA-l Unit and their failure to warn of the existence and release of toxic substances.

Defendants filed a Peremptory Exception of No Cause of Action and No Right of Action and a Motion to Strike on January 26, 2004. Defendants argued the plaintiffs failed to allege a cause of action for strict or absolute liability and failed to allege a cause of action for exemplary damages. Defendants also alleged plaintiffs had no right of action regarding a nuisance action because they were not in the class of persons entitled to bring such a claim.

The trial court granted these exceptions by Judgment dated April 5, 2004. The trial court stated that all references by plaintiffs to strict liability, absolute liability, exemplary or punitive damages, negligence per se or a nuisance action were stricken from the petition.

Defendants then filed a motion for summary judgment on May 4, 2004 arguing the facts show that Bradham was not working in the EA-l unit at the time of the alleged incident and there was no evidence that a “pressure swing” occurred at the UCC facility on April 23, 1998. Defendants presented the incident report completed by Bradham following the alleged incident and it stated that he discovered a rash on his body on April 28, 1998 and the cause was unknown. The individual defendants stated in affidavits that they had no knowledge of a “pressure swing”. In addition, Bradham, in his own deposition, stated that he did not know of a specific pressure swing on that date. Further, when questioned during his deposition, he did not even know who the individual defendants were and he stated he had never spoken to them. UCC also produced its site coordinator logs that do not indicate anything abnormal for April 23, 1998. Finally, UCC produced evidence that showed Bradham was actually working in the Ole-fins Unit on April 23, 1998 and the logs show that nothing happened in that unit either.

|4In response to this motion for summary judgment, the plaintiffs filed a Second Supplemental and Amending Petition. That petition stated that from April 6, 1998 to April 27, 1998, Bradham was assigned to work in the Olefin 1 Unit and during his employment he inhaled, ingested and suffered dermal exposure to various toxic and hazardous chemicals. He stated specifically, on April 23,1998, he observed vapors escaping from a pipe approximately 25 feet away from where he was working. Bradham also claimed he was exposed to vapor emissions in other areas of the facility and that there were numerous ground and airborne releases at the UCC facility near where he was working. Bradham claimed he was continuously exposed to chemicals, including, ethyl acrylate, ethylene propylers, methane, ace-taledehyde, and other hazardous materials.

UCC filed a motion for partial summary judgment on April 14, 2004. UCC also filed a motion to exclude evidence and testimony of neurological testing. A judgment was issued by the trial court on June 1, 2005 denying the motion for partial summary judgment and the motion to exclude testimony and evidence. The motion for summary judgment regarding liability was granted.

Thereafter, on September 27, 2006, UCC filed another Motion for Summary Judgment based on Allegations of Exposure, Liability, and Prescription or alternatively, a Peremptory Exception of Prescription. UCC argued that the plaintiffs’ claims should be dismissed for lack of evidence of a specific chemical release that caused plaintiffs’ alleged injuries. Plaintiffs’ toxicologist, Dr. William Sawyer wrote a report dated May 15, 2005 stating that Brad-ham’s injuries were related to an April 19, [849]*8491998 ethylene oxide release in the Oxide 1 unit. The original suit alleged Bradham had been exposed to toxic chemicals on April 23, 1998 because of a “pressure swing” in the EA-1 unit where he was working. In a supplemental and amending petition, Bradham alleged he was working in the IsOlefin unit when he reported the rash. Bradham’s own deposition testimony was that he wasn’t present in the facility, or in the vicinity, on April 19, 1998 at the time of the alleged release. Based on these differing allegations of exposure and lack of evidence to support the allegations of exposure, UCC argued the claims by plaintiffs should be dismissed.

UCC also filed a Motion for Summary Judgment Based on Medical Evidence. UCC argued that there was no evidence to establish that any symptom or condition for which the plaintiffs seek recovery were related to any alleged chemical exposure, so the claims by plaintiffs should be dismissed.

Both motions for summary judgment were heard by the trial court on January 19, 2007. A ruling with reasons was transcribed by the trial court on February 28, 2007 and a Final Judgment was signed by the trial court on March 27, 2007. The trial court denied the Motion for Summary Judgment based on Medical Evidence and denied the Peremptory Exception of Prescription. The trial court granted the Motion for Summary Judgment Based on Allegations of Exposure and dismissed the suit in its entirety, with prejudice, at plaintiffs’ costs.

The trial court denied the Peremptory Exception of Prescription because it found that the plaintiff may not have reasonably known on April 19, 1998 that his injuries resulted from a chemical exposure on that date. Therefore, his petition filed on April 23, 1999 was not prescribed. The trial court denied UCC’s motion for summary judgment based on medical evidence finding that the testimony of plaintiffs’ expert toxicologist, Dr. William Sawyer, presents a genuine issue as to whether Bradham’s injuries and symptoms could be caused by exposure to ethylene oxide, which is an issue in which reasonable persons could disagree. The trial court granted UCC’s motion for summary judgment based on allegations of exposure, finding that the plaintiffs could not prove exposure to a specific release | fiof ethylene oxide or other harmful chemical, therefore, he could not meet his evidentiary burden of proof at trial. The trial court further found that plaintiffs’ claim of general, random exposure to chemicals at the Carbide plant is insufficient under Berzas v. OXY, 699 So.2d 1149 (La.App. 1st Cir.9/24/97).

Plaintiffs filed a Motion for New Trial on April 20, 2007.

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985 So. 2d 846, 2007 La.App. 5 Cir. 919, 2008 La. App. LEXIS 790, 2008 WL 2190848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradham-v-union-carbide-lactapp-2008.