Howard v. Union Carbide Corp.

21 So. 3d 1084, 8 La.App. 5 Cir. 750, 2009 La. App. LEXIS 1826, 2009 WL 3447451
CourtLouisiana Court of Appeal
DecidedOctober 27, 2009
Docket08-CA-750
StatusPublished
Cited by5 cases

This text of 21 So. 3d 1084 (Howard v. Union Carbide 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
Howard v. Union Carbide Corp., 21 So. 3d 1084, 8 La.App. 5 Cir. 750, 2009 La. App. LEXIS 1826, 2009 WL 3447451 (La. Ct. App. 2009).

Opinions

FREDERICKA HOMBERG WICKER, Judge.

|sThis is an appeal by Union Carbide Corporation, defendant/appellant, from a judgment fixing damages for randomly selected plaintiffs in this class action suit. The suit grew out of a chemical leak at defendant’s plant in Taft, Louisiana. For the following reasons, we vacate two of the awards and otherwise affirm the remaining damage awards.

The leak began at about 10:00 PM on Thursday, September 10, 1998, and it was contained at about 3:00 PM on Friday, September 11. On Thursday afternoon and throughout the next day, Tropical Storm Frances inundated the area with torrential rains. The weight of the accumulated rainwater on the floating roof of a large tank caused the roof to partially collapse. This in turn broke the seal and allowed some of the contents to leak onto the roof and evaporate. The substance in the tank was about 80% petroleum pen-tanes with a few other carbon compounds making up the remainder. By Friday afternoon plant personnel were able to cover the tank roof with chemical foam and thus |4stop the evaporation process. Air monitors in the area showed that once the evaporation was stopped, the residual naphtha in the air immediately dissipated.

Suit was filed on behalf of all people exposed to the compounds. At a hearing on the class certification the various experts testified as to the extent and direction of the plume of naphtha, its probable concentration, and its effects on people exposed during the release. At the conclusion of the hearing the trial judge certified the following class:

Those persons living or located between the Union Carbide Plant and the towns of Taft and Killona, including the towns of Taft and Killona, and the residents of the town of Montz, who were present in these locations for some time, from 10:00 PM on September 10, 1998 until 3:00 PM on September 11, 1998, and who experienced the physical symptoms which include any or all of the following — eyes, nose or throat irritation, coughing, choking or gagging, or nausea, as a result of their exposure to naphtha or other chemical substance released from Union Carbide.

By agreement of the parties a trial of thirty randomly selected plaintiffs was held to determine 1) whether claimants were exposed to the naphtha fumes, 2) whether they suffered compensable dam[1087]*1087ages, and 3) the amount of their damages. One claimant was dismissed for failure to comply with discovery, seven were dismissed for failure to appear at trial, and eight were found not to have been within the class boundaries during the relevant times. The remaining fourteen claimants were given damage awards ranging from $3,500 to $750. This appeal followed.

Union Carbide’s argues: (1) The trial court committed manifest error in awarding damages to Franklin McGinnis and Debra Brown due to the lack of any credible evidence that they were present in the area. (2) The trial court committed manifest error in awarding excessive damages ranging from $750-$3,500 to claimants who sustained minor symptoms and required no medical treatment or prescription medication. The exposure did not violate health based exposure limitations. The jurisprudence suggests that damage awards of $0J$2005 are appropriate. (3) The trial court committed manifest error in awarding any damages in this matter due to the lack of any medical evidence specifically linking each claimant’s symptoms to the alleged exposures.

In Reck v. Stevens, 373 So.2d 498 (La. 1979), the Louisiana Supreme Court pointed out that the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Reck disapproved the appellate court’s simply reviewing the medical evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the particular injuries on the particular plaintiff. Reck further disapproved of the use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Id. at 1260-61 (Citations omitted). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Id.

Youn explained:

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, |fi245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

623 So.2d at 1261.

Manifest Error-Clearly Wrong Standard

When factual findings are based on determinations regarding the credibility of [1088]*1088witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the factfinder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Hebert v. Rapides Parish Police Jury, 06-2001, p. 3 (La.4/11/07), 974 So.2d 635, 654 citing Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, a reviewing court may well find manifest error even in a finding purportedly based upon a credibility determination. Id. at 844-845.

Debra Brown

In a tort case, the plaintiff must prove by a preponderance of the evidence both the negligence of the defendant and the damages caused by the defendant’s fault. Coutee v. Global Marine Drilling Co., 05-0756 (La.2/22/06), 924 So.2d 112, 117 (Citation omitted). Union Carbide argues that Ms. Brown’s symptoms, if any, were minimal and there was a lack of credible evidence that she was present where she claimed to be during the naphtha release. Union |7Carbide also argues that there was no testimony that exposure to naphtha can cause sinus injury.

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Howard v. Union Carbide Corp.
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Bluebook (online)
21 So. 3d 1084, 8 La.App. 5 Cir. 750, 2009 La. App. LEXIS 1826, 2009 WL 3447451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-union-carbide-corp-lactapp-2009.