Johnson v. E.I. Dupont Denemours & Co.

7 So. 3d 734, 8 La.App. 5 Cir. 628, 2009 La. App. LEXIS 66, 2009 WL 91481
CourtLouisiana Court of Appeal
DecidedJanuary 13, 2009
DocketNo. 08-CA-628
StatusPublished
Cited by15 cases

This text of 7 So. 3d 734 (Johnson v. E.I. Dupont Denemours & 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
Johnson v. E.I. Dupont Denemours & Co., 7 So. 3d 734, 8 La.App. 5 Cir. 628, 2009 La. App. LEXIS 66, 2009 WL 91481 (La. Ct. App. 2009).

Opinion

WALTER J. ROTHSCHILD, Judge.

|2In this class action litigation, plaintiffs appeal the trial court’s judgment in favor of defendant, E.I. DuPont deNemours and Company (hereinafter referred to as “Du-pont”), in which the trial court found that plaintiffs did not meet their burden of proof at trial and dismissed their claims against defendant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The named plaintiffs in this litigation are Michael Johnson, Sandra Johnson, Carol Lennix, Lathaniel Lennix, Louis Lennix, Jr., Brad Arceneaux, Eric Arcen-eaux, and Roland Arceneaux. On August 9, 1994, plaintiffs filed a Class Action Petition, alleging that earlier that day, at approximately 12:30 p.m., an explosion and release of toxic chemicals occurred at the Dupont facility in Reserve, Louisiana, causing them to suffer damages. According to Dupont, this incident occurred when a fiberpack drum of waste paint was fed into the rotating |3solids waste incinerator at the facility. The waste paint contained an amount of free liquid, which caused a pressure release at the rotating seal of the kiln, resulting in the release of a puff of smoke and an explosion or “pop” sound. Plaintiffs claim that after they heard the explosion, they began to smell fumes and they suffered symptoms, such as nausea, eye or skin irritation, headaches, coughing, and throat irritation. After the incident, plaintiffs were advised by their attorney to report to River Parishes Hospital for treatment and they did so.

On September 24, 1997, the trial judge certified this matter as a class action and set its geographic boundaries, and the ruling was affirmed by this Court. Johnson v. E.I. Dupont deNemours and Company, Inc., 98-229 (La.App. 5 Cir. 10/14/98), 721 So.2d 41, 44. On May 4, 2000, the parties filed a Stipulation in which Dupont stipulated to liability but reserved its right to trial on the issues of damages, causation of any alleged damages or injuries, the nature of the materials released, and the area allegedly affected. In the Stipulation, plaintiffs waived any and all claims for punitive damages. After several years, [738]*738trial of this matter was finally held on April 24 and 25, 2006.

At trial, each of the named plaintiffs testified either live or via his deposition. Plaintiffs testified that on August 9, 1994, they lived on East 30lh Street in Reserve, Louisiana, or were present there, when they heard a loud explosion coming from the Dupont facility. After a short time, they noticed a smell in the air that was irritating and they began to have symptoms, such as nausea, eye or skin irritation, and headaches. One of the plaintiffs, Carol Lennix testified that she called Du-pont and thereafter, representatives from Dupont came to her home to discuss what had happened. Some neighbors also got together and decided to see an attorney. After discussing the matter with their attorney, plaintiffs went to River Parishes Hospital, and most of them later followed up with |4Pr. Raul Reyes. Plaintiffs testified that their symptoms resolved within a relatively short period of time, some that day and some within a couple of days or a week.

Dr. Raul Reyes was called by plaintiffs, and he was accepted as an expert in field of general medicine with experience in treating people who may have some type of chemical exposure. He testified that he treated each of the named plaintiffs, except Louis Lennix and Lathaniel Lennix. Dr. Reyes stated that he diagnosed plaintiffs with fume inhalation, but his diagnosis was primarily based on the history given by plaintiffs. He did not notice objective symptoms for any of the plaintiffs, except Michael Johnson who had a discharge from his eye. He did not prescribe any medication or provide any specific treatment to plaintiffs, because their complaints were not severe. He further testified that he was told by plaintiffs that they had been involved in a chemical explosion, but he did not know what chemi-the cal they were exposed to and- could not provide any testimony on medical causation.

Richard Guidry, who was employed by Dupont as a chemist in the Environmental Department at the time of the accident, testified that he heard about the incident within a few minutes because he got a phone call. Although he was about 100 yards from the incinerator at the time of the incident, he did not hear the explosion, did not smell anything, and did not experience nausea, headaches, eye irritation, or other symptoms. He investigated to see if the amount of chemicals released was a quantity that had to be reported to the Department of Environmental Quality (“DEQ”), and it was not, but he made a courtesy call to DEQ the next day nonetheless. He identified the Material Safety Data Sheet (“MSDS”), which listed the constituents contained in the waste paint that was fed into the incinerator. Based on the investigation, he determined that a small amount of pressure caused a puff of smoke to escape, but it was insignificant and did not even shut down the He determined that less than one pound of material was released into the atmosphere, based on the fact that it was a very small cloud of smoke according to four or five operators at the incinerator, and it dissipated within a few feet of the kiln. I «incinerator.

Clarence Dykstra, the safety, health, and environmental manager for Dupont in 1994, testified that he was at the Dupont facility when the incident occurred, and he did not smell anything or have any symptoms, such as nausea, headaches, eye or skin irritation, or throat irritation. Darnell Hai'per, an operator in the incinerator area at Dupont in 1994, testified that at the time of the incident, he was in the control room, which is 100 or so yards from the incinerator. He stated that when [739]*739he heard a loud pop, he headed toward the incinerator and saw a puff of smoke that came from the stack in the incinerator and lasted seven to ten seconds before it dissipated. He stated that the puff of smoke did not cross Dupont’s fence line into the neighborhood. He also indicated that he did not experience any symptoms, such as nausea, headaches, or burning eyes. He stated that he went into the neighborhood with his supervisor, Jerry Matthews, to see if he could smell anything and to talk to the neighbors, but he did not smell anything, and he stated that the neighbors did not initially seem upset.

Dr. Sukh Sidhu, who was accepted as an expert in environmental and combustion engineering, was called to testify. After being retained by defendant, he visited the solids waste incinerator site and reviewed documents and materials regarding the incident, including materials that identified the types of materials that were fed into the incinerator. He stated that based on the information he received, an amount of solvent was put into a 35-gallon fiberpack drum, and the solvent was to be soaked up by the sawdust. However, there was some freestanding liquid that was not absorbed by the sawdust, which vaporized and ignited, causing the | ^pressure release that resulted in the “pop” sound. Because the exact composition of the waste paint was not known, Dr. Sidhu reviewed the eight possible organics listed on the MSDS and made his calculations using the highest possible concentration of organic compounds for the puff of smoke released, which would have been the worst-case scenario and would have indicated the exposure levels for someone standing directly over the incinerator. Dr. Sidhu determined that the puff of smoke would only have been 50 cubic feet, and the maximum amount of organics that could have been in the puff was 0.18 %,

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7 So. 3d 734, 8 La.App. 5 Cir. 628, 2009 La. App. LEXIS 66, 2009 WL 91481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ei-dupont-denemours-co-lactapp-2009.