Guidry v. Dow Chemical Co.

214 So. 3d 78, 2016 La.App. 4 Cir. 0757, 2017 WL 809824, 2017 La. App. LEXIS 346
CourtLouisiana Court of Appeal
DecidedMarch 1, 2017
DocketNO. 2016-CA-0757
StatusPublished

This text of 214 So. 3d 78 (Guidry v. Dow Chemical Co.) 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
Guidry v. Dow Chemical Co., 214 So. 3d 78, 2016 La.App. 4 Cir. 0757, 2017 WL 809824, 2017 La. App. LEXIS 346 (La. Ct. App. 2017).

Opinion

Judge Rosemary Ledet

I iThis is a mass tort, toxic exposure case. This is the second time this case has come before this court on appeal. The previous appeal was from the trial court’s December 15, 2011 judgment certifying a plaintiff class. Guidry v. Dow Chem. Co., 12-0436, 12-0198 (La.App. 4 Cir. 11/14/12), 105 So.3d 900 (“Guidry I”), writ granted in part, Guidry v. Dow Chem. Co., 12-2696 (La. 3/1/13), 108 So.3d 755 (“Guidry II”). In Guidryl, this court affirmed the certification decision. In Guidry II, the Louisiana Supreme Court denied writs on that issue.1 The instant appeal is from the trial court’s April 5, 2016 judgment denying the joint motion to decertify the class (the “Joint Motion”) filed by the defendants, Union Carbide Corporation (“UCC”) and The Dow Chemical Company (“Dow”) (the “Defendants”).2 For the reasons that follow, we affirm.

| .FACTUAL AND PROCEDURAL BACKGROUND

The basic underlying facts of this case are undisputed. In the early morning hours of July 7, 2009, a tank failure occurred at a chemical facility in Taft, Louisiana, which is located in St. Charles Parish. The chemical facility was owned and operated by UCC, a wholly owned corporate subsidiary of Dow. As a result of the tank failure, ethyl acrylate (“EA”), a volatile organic compound, was released into the air (the “EA Release”). The EA that was released from the tank was actually a mixture of three chemicals; it included two stabilizing chemicals in various quanti[81]*81ties—Hydroquinone (“HQ”) and Methyl Ether of Hydroquinone (“MEHQ”).

On the morning of the EA Release, the St. Charles Parish Department of Emergency Preparedness closed nearby roads and evacuated residents within a two mile area east of UCC’s facility. As a result of the EA Release, residents and visitors in three parishes—St. Charles, Jefferson, and Orleans—voiced complaints of odors and physical symptoms. Immediately after the EA Release, multiple lawsuits were filed, including this one.3

|sOn July 29, 2009, Sheila Guidry filed this suit in Orleans Parish against two defendants—Dow and the LDEQ. In her petition, Ms. Guidry averred that on July 7, 2009, she noticed a foul smell and that the smell caused her to experience headache, dizziness, and burning eyes. She further averred that EA is “an organic compound” and that it is “a possible carcinogen and should be considered hazardous at all times in any concentration.” Finally, she asserted various tort theories of liability against Dow for the EA Release.

On July 30, 2009, Ms. Guidry amended her petition to include class action allegations and to assert claims on behalf of a proposed class. In her petition, she set forth the following definition of the class:

Persons throughout Louisiana who were exposed to a release of any chemical by Defendants DOW and Union Carbide on or around July 7, 2009 and said release caused to that person personal injuries, emotional distress, loss of income, or the loss of the beneficial use, enjoyment, and exclusive possession of their property, or any other damages provable at the trial of this matter.

On August 6, 2009, she amended her petition again to name UCC as a defendant.

On June 9, 2010, Ms. Guidry filed a motion for class certification. On May 12, 2011, before the class certification hearing, Ms. Guidry filed a motion to substitute class representative. The trial court granted this motion; removed Ms. Guidry; and replaced her with Ramona Alexander, Vanessa Wilson, and Melissa Berniard. In May 2011, a two-day class certification hearing was held. Following the hearing, the trial court thus certified the following class:

The class consists of those persons living or located in the following described geographic areas: starting at the northwest corner of the class boundary, included in postal zip code 70068 in St. John the Baptist Parish, proceeding ' eastward along Lake Pontchartrain to 14postal zip code 70065, located in Jefferson Parish, and further eastward to postal zip code 70117, located in Orleans Parish; and proceeding from the southwest corner of the class boundary, included in postal zip code 70057 in St. Charles Parish, then proceeding further southeast to postal zip code 70031, then proceeding further eastward to postal zip code 70094 in Jefferson Parish, and then east/northeast to postal zip code 70117 in Orleans Parish, and all areas [82]*82included in between those points; and who were present in these locations for some time, from 4:30 am on July 7, 2009, until 3:30 pm on July 8, 2009, and who experienced the physical symptoms which include any or all of the following—eyes, nose, throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues, as a result of their exposure to Ethyl Acrylate or other chemical substance released from tank 2310 at Union Carbide Corporation’s Taft, Louisiana Facility. Those persons living or located in those geographic areas and who experienced any of these physical symptoms will constitute the class and will be bound by the decision in this case.

This court affirmed the trial court’s decision certifying the class. Guidry I, supra. Although the Louisiana Supreme Court denied the Defendants’ writ on the certification issue, it granted the Defendants’ writ, in part, on another issue, holding:

Melissa Bernard [the spouse of appointed class counsel] is disqualified from serving as a class representative. See Stull v. Pool, 63 F.R.D. 702 (S.D.N.Y. 1974). In all other respects, the writ is denied. The matter is remanded to the district court for further proceedings pursuant to this Order.

Guidry II, 12-2696 at p. 1, 108 So.3d at 756.

On remand, Ms. Berniard was removed as a class representative and replaced by Bates Whiteside and Henry Homes. The case then proceeded to discovery. Thereafter, the Defendants filed a Joint Motion to Decertify Class (the “Joint Motion”). On October 21, 2015, a hearing was held on the Joint Motion. On April 5, 2016, the trial court rendered judgment denying the Joint Motion. This appeal followed.

^DECERTIFICATION MOTION GENERAL PRINCIPLES

In reviewing a trial court’s ruling on a decertification motion, the following general principles apply. First, a trial court’s decision denying a decertification motion is an interlocutory judgment that is immediately appealable by law. La. C.C.P. art. 592 A(3)(c);4 Billieson v. City of New Orleans, 09-0410, 09-0811 p. 4, n. 2 (La. App. 4 Cir. 11/12/09), 26 So.3d 796, 799; Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 07-146, 07-512 p. 7 (La.App. 3 Cir. 12/12/07), 971 So.2d 1257, 1263.5

Second, “[a] trial court’s decision denying a motion to decertify a class is one involving a valid exercise of discretion and therefore is reviewed under an abuse of discretion standard.” Jones v. Capitol Enterprises, Inc., 11-0956, pp. 11-12 (La.App. 4 Cir. 5/9/12), 89 So.3d 474, 484 (citing Billieson, 09-0410, 09-0811 at p. 9, 26 So.3d at 802 (citing Doerr v. Mobil Oil Co., 04-1789, p. 4 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 234); Richardson v. American Cyanamid Co., 99-675-82 (La. App. 5 Cir. 2/29/00), 757 So.2d 135).

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214 So. 3d 78, 2016 La.App. 4 Cir. 0757, 2017 WL 809824, 2017 La. App. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guidry-v-dow-chemical-co-lactapp-2017.