Brown v. Evans Harvey Corp.

170 So. 3d 244, 2015 WL 1786631
CourtLouisiana Court of Appeal
DecidedApril 15, 2015
DocketNos. 14-CA-590, 14-CA-591
StatusPublished
Cited by1 cases

This text of 170 So. 3d 244 (Brown v. Evans Harvey Corp.) 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.

Bluebook
Brown v. Evans Harvey Corp., 170 So. 3d 244, 2015 WL 1786631 (La. Ct. App. 2015).

Opinion

MARC E. JOHNSON, Judge.

I ¿This is a mass tort suit involving a 1998 chemical gas release. This appeal involves a flight of ten plaintiffs who proceeded to trial together. Defendants, Evans Harvey Corp. and its insurer Lexington Ins. Co., appeal the trial court’s October 22, 2013 judgment, finding Evans Harvey Corp. liable to Plaintiffs for damages sustained as a result of exposure to the chemical gas and awarding general damages to each of the plaintiffs in amounts ranging from $2,500 to $13,500. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On April 1, 1998, Plaintiff, Donald Brown, individually and on behalf of others similarly situated, filed a class action petition against Defendant, Evans Harvey Corp. (“Evans Harvey”), for damages sustained from exposure to a chemical gas leak that occurred on the morning of March 31, 1998 at Defendant’s facility in Harvey. In a second supplemental and amending petition, it was alleged that various chemicals, including benzene, styrene, methylene chloride, toluene, | sand xylene, which were known carcinogens, were released during the leak. Over time, additional plaintiffs were added to the lawsuit, and other plaintiffs filed their own lawsuits. In November 1999, the plaintiffs were certified as a class and the lawsuits were ultimately consolidated; however, in January 2003, the class was decertified.

As a result of the decertification, Plaintiffs filed a third supplemental and amending petition in March 2006, re-naming and adding plaintiffs for a total of 63 plaintiffs claiming damages as a result of the exposure." Plaintiffs further added Lexington Insurance Company, Evans Harvey’s general liability insurer, as a defendant.

The parties agreed to try the case in flights. The first flight, involving ten plaintiffs,1 was tried before the trial judge on July 22 and 23, 2013 and August 5, 2013. The trial was bifurcated with damages being tried first on July 22nd and 23rd and liability being tried on August 5th. On August 30, 2013, the trial court rendered judgment finding Evans Harvey liable to Plaintiffs for damages caused by the March 31, 1998 chemical release from its facility. It awarded various amounts to each Plaintiff ranging from $2,500 to $13,500, plus unspecified special damages and outstanding liens. Four days later, on September 3, 2013, the trial court amended its judgment to award damages to three Plaintiffs omitted from the August 30, 2013 judgment.

Defendants subsequently filed a motion to annul the amended judgment and a motion for new trial. Defendants claimed the amended judgment was an absolute [248]*248nullity because it made substantive amendments to the judgment by awarding damages to three additional plaintiffs, and asserted that the proper procedure for |4correcting the judgment was a new trial. The trial court agreed, annulled the September 3, 2013 amended judgment, and granted a new trial. On October 22, 2013, the trial court rendered judgment on the new trial, again finding Evans Harvey liable for damages caused by the chemical release and awarding damages to each of the ten Plaintiffs in amounts ranging from $2,500 to $13,500. The trial court further specified special damages for two of the Plaintiffs, Mr. Leglue and Mr. Rojas, in the amounts of $10,868.67 and $6,142.55, respectively, based on the parties’ stipulations of the amount of workers’ compensation benefits paid to each. Defendants, Evans Harvey and Lexington Ins. Co., appeal this judgment.

FACTS

On the morning of March 31,1998, there was a chemical release from Evans Harvey’s drum reconditioning unit at its facility on Peters Rd. in Harvey, Louisiana. The release occurred when Evans Harvey was installing a baghouse and lime injection system on the drum furnace to control emissions. During the process, pressure in the ventilation system caused the oven furnace to emit smoke. It was believed that the emission contained hydrogen chloride and hydrogen sulfide. Evans Harvey estimated the chemicals were emitted for approximately ten minutes before the unit was shut down. Evans Harvey. subsequently notified the Louisiana Department of Environmental Quality, which responded to the scene.

Nearby workers at Ocean Technical Services (OTECH), C & C Marine, and Dynamic Industries reported seeing a yellowish cloud coming from the Evans Harvey yard shortly after beginning their 7:00 a.m. shifts. As the cloud descended upon the area, the workers began experiencing various symptoms including burning eyes, burning and itchy throat, bitter or metallic taste, itchy skin and nausea. Some workers began vomiting. The work yards were evacuated and the | r,workers were moved to an area across the street. The cloud, which dissipated to a whitish-gray mist, remained in the area between 20-45 minutes.

A medical bus from West Jefferson Medical Center arrived at the scene at approximately 9:00 a.m. with Dr. Garrett Tucker, who is board certified in occupational medicine, and several nurses and respiratory therapists. The medical personnel examined over 100 workers from nearby businesses, whose main complaints were eye, throat and skin irritation with some complaints of nausea and weakness. Five or six workers were immediately sent to the hospital for evaluation, while the remaining workers were evaluated on site by Dr. Tucker. Dr. Tucker examined approximately 118 people and determined that all of their symptoms were consistent with chemical exposure. Dr.' Tucker treated the workers with Visine for the eye irritation and told them to drink Gatorade for the nausea and use lotion for the skin irritation. The majority of the workers were also seen by an eye doctor the next day, who prescribed an eye moisturizer for the eye irritation.

Of the ten Plaintiffs involved in this appeal, seven (Steven Grass, Donald Brown, Jose Portillo, Jay Brugger, Line Leglue, John Caminita and Steve Rojas) were workers at either OTECH, C & C Marine or Dynamic Industries and three (Susie Davis, Rose Harris and Lionel Bib-bins) were visitors to the nearby businesses. Of the seven workers, four (Grass, Brugger, Leglue and Caminita) were [249]*249treated at West Jefferson Medical Center and three (Brown, Portillo and Rojas) were treated on site. Two of the workers (Leglue and Rojas) continued to treat with doctors several times after the exposure. The three visitors self-treated with over-the-counter medication and were never examined by a doctor.

\JSSUES

On appeal, Defendants challenge the trial court’s finding of liability and the amount of damages awarded. Defendants first contend the trial court erred in finding Plaintiffs carried their burden of proving causation. They maintain there was no evidence that Plaintiffs were exposed to any particular chemical, for any particular period of time, and at any particular dose: in other words, there was no scientific evidence showing exposure levels sufficient to cause the injuries alleged. As such, Defendants argue that Plaintiffs failed to prove that it was more probable than not that their injuries were caused by the exposure. Defendants next assert the damage awards are not supported by the evidence and are excessive.

DISCUSSION

Liability

In a tort case, the plaintiff has the burden of proving every essential element of his case (negligence, cause and injury) by a preponderance of the evidence. Laska v. Olin Corp., 625 So.2d 1002, 1005 (La.1993).

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170 So. 3d 244, 2015 WL 1786631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-evans-harvey-corp-lactapp-2015.