STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-823
MICHAEL ALBARADO, INDIVIDUALLY, ET AL.
VERSUS
CITGO PETROLEUM CORPORATION, ET AL.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-2924 HONORABLE RONALD F. WARE, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of John D. Saunders, Phyllis M. Keaty, John E. Conery, D. Kent Savoie and Van H. Kyzar, Judges.
Keaty, J., concurs in part and dissents in part, assigning written reasons.
AFFIRMED IN PART, REVERSED IN PART, AND AMENDED IN PART. Robert E. Landry Patrick D. Gallaugher, Jr. Kevin Paul Fontenot Scofield, Gerard, Pohorelsky, Gallaugher & Landry 901 Lakeshore Drive, Suite 900 Lake Charles, Louisiana 70601 (337) 433-9436 COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation
Craig Isenberg Kyle W. Siegal Joshua O. Cox Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C. 909 Poydras, 24th floor New Orleans, Louisiana 70112 (504) 589-9700 COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation
Marshall Joseph Simien, Jr. Simien Law Firm 2129 Fitzenreiter Road Lake Charles, Louisiana 70601 (337) 497-0022 COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation
Richard Elliott Wilson Somer G. Brown Jason R. Bell Cox, Cox, Filo, Camel & Wilson, LLC 723 Broad Street Lake Charles, Louisiana 70601 (337) 436-6611 COUNSEL FOR PLAINTIFFS/APPELLEES: Michael Albarado, Individually Michael Walls, Individually Craig Miller, Individually Michael Alfred, Individually Ragle Celestine, Individually Robert Long, Individually Stafford Willis, Individually Melvin Gray, Jr., Individually Gary Gunter, Individually Wells Talbot Watson Jake D. Buford Baggett, McCall, Burgess, Watson & Gaughan Post Office Drawer 7820 Lake Charles, Louisiana 70606 (337) 478-8888 COUNSEL FOR PLAINTIFFS/APPELLEES: Ragle Celestine, Individually Melvin Gray, Jr., Individually Gary Gunter, Individually Stafford Willis, Individually Robert Long, Individually Michael Albarado, Individually Craig Miller, Individually Michael Walls, Individually Michael Alfred, Individually
Kirk Albert Patrick, III R. Heath Savant Donahue, Patrick & Scott, PLLC 450 Laurel Street, Suite 1600 Baton Rouge, Louisiana 70801 (225) 214-1908 COUNSEL FOR DEFENDANT/APPELLEE: R & R Construction, Inc. CONERY, Judge.
Defendant CITGO Petroleum Corporation (CITGO) appeals the trial court’s
judgment in favor of eight plaintiffs, who while working at the Firestone Polymers
plant across Highway 108 from the CITGO refinery in Lake Charles, were exposed
on June 19, 2006 to a higher-than-permitted air release of sulphur dioxide (SO2) and
hydrogen sulfide (H2S). CITGO stipulated to fault and contested the issue of
damages. The trial court awarded each of the eight plaintiffs, Mr. Michael Albarado,
Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long,
Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis, general damages for
pain and suffering, 1 mental anguish, fear of future injury, and medical expenses
associated with the exposure. For the following reasons, we affirm in part, reverse
in part, and amend in part.
FACTS AND PROCEDURAL HISTORY
The exposure of the higher-than-permitted air release of the SO2 and H2S was
the result of a June 19, 2006 incident at the CITGO refinery which resulted in a
major oil and contaminated wastewater spill. The June 19, 2006 spill has been the
subject of other cases appealed to this court,2 but this case presents the first involving
the Firestone workers alleged exposure to the higher-than-permitted release of SO2
and H2S from CITGO’s operating units, which lasted from approximately 3:00 a.m.
1 CITGO has not assigned as error the awards made to the eight plaintiffs by the trial court for pain and suffering associated with their exposure to the higher-than-permitted air release of the SO2 and H2S. Therefore, the trial court’s awards for pain and suffering to the eight plaintiffs are considered a final judgment. 2 Arabie v. CITGO Petroleum Corp., 10-244 (La.App. 3 Cir. 10/27/10), 49 So.3d 529, aff’d on liability and causation, rev’d on punitive damage issue, 10-2605 (La. 3/13/12), 89 So.3d 307 (referred to as Arabie I); Arabie v. CITGO Petroleum Corp., 15-324 (La.App. 3 Cir. 10/7/15) 175 So.3d 1180, writ denied, 15-2040 (La. 1/8/16), 184 So.3d 694 (referred to as Arabie II); Cormier v. CITGO Petroleum Corp., 17-104 (La.App. 3 Cir. 10/4/17), 228 So.3d 770, writ denied, 17-2138 (La. 2/9/18), — So.3d —. until late afternoon on June 19, 2006.3 It is undisputed that CITGO did not inform
the Firestone facility of the release of the SO2 and H2S coming from CITGO’s
operating units.
A bench trial began on March 7, 2016, and on March 11, 2016, the trial court
issued reasons from the bench. The trial court found that the Firestone workers’
exposure to the higher-than-permitted release of SO2 and H2S from CITGO’s
operating units caused injury to the eight plaintiff workers. The injuries suffered
primarily consisted of eye irritation, headaches, sore throats, coughing, and sinus
irritation. The trial court specifically found that the damages awarded to the eight
plaintiffs reflected their injuries for a three-year period from the June 19, 2006
exposure until 2009. Judgment was signed on April 5, 2017. CITGO filed a timely
suspensive appeal of the trial court’s awards to the eight plaintiffs alleging that the
awards for fear of future injury were duplicative of the awards for mental anguish,
and there was a lack of evidence to support the awards made to each plaintiff for fear
of future injury and for medical expenses.
ASSIGNMENTS OF ERROR
CITGO asserts the following errors on appeal:
1. The district court erred in awarding damages for fear of future injury, and duplicative mental anguish damages, because plaintiffs presented no evidence that their claimed exposure to SO2 and H2S during the June 2006 event was capable of causing them to have future health problems.
2. The district court erred in granting awards for medical expenses totaling $15,000 ($1,000 to $3,000 for each plaintiff) because six plaintiffs undisputedly presented no evidence of medical expenses, and
3 In Bradford v. CITGO Petroleum Corp., 17-296 consolidated with 17-298, 17-299, 17- 300, 17-301, 17-302, 17-303, 17-304, 17-305, 17-306, 17-307, 17-308, 17-309, 17-310, 17-311, 17-312, 17-313, 17-314, 17-315, 17-316, 17-317, 17-318, 17-319, 17-320, 17-321 (La.App. 3 Cir. 1/10/18), ___So.3d ___, a panel of this court affirmed the awards to another group of plaintiffs who were exposed to the higher-than-permitted releases of both SO2 and H2S.
2 the remaining two plaintiffs submitted $150.00 each in medical expenses.
LAW AND DISCUSSION
Standard of Review
In Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-
McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115-
16, the supreme court reiterated the duty of appellate courts in a manifest error
review and stated in pertinent part:
In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court’s factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).
This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court’s findings. The court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La. 2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge’s or jury’s factfinding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).
Errors of law, however, are reviewed de novo. Foti v. Holliday, 09-93 (La.
10/30/09), 27 So.3d 813. Accordingly, when reviewing an issue of law, we “render[ ]
judgment based on the record without deference to the legal conclusions of the lower
courts.” Id. at 817
3 Proof of causation in toxic tort cases has two components, general and specific.
Pick v. American Medical Systems, Inc., 958 F.Supp. 1151 (E.D. La. 1997).
“General causation refers to whether a substance is capable of causing a particular
injury or condition in the general population, while specific causation is whether a
substance caused a particular individual’s injury.” Knight v. Kirby Inland Marine,
Inc., 482 F.3d 347, 351 (5th Cir. 2007) (quoting Merrell Dow Pharmaceuticals, Inc.
v. Havner, 952 S.W.2d 706 (Tex. 1997)). A plaintiff cannot sustain his or her burden
of proof with general causation proof alone; the plaintiff must also establish specific
causation. See Berzas v. OXY USA, Inc., 29,835 (La.App. 2 Cir. 9/24/97), 699 So.2d
1149.
The trial court in this case specifically found that CITGO did not contest the
higher-than-permitted release of SO2 and H2S from its facility and that the plaintiffs
“all reported symptomology consistent with exposure to H2S and SO2, and most
likely both as found in the MSDS reports.”4 The trial court further found that each
plaintiff had proved that their complaints, symptoms, and physical injuries were
causally related to the release of SO2 and H2S from the CITGO facility on June 19,
2006. The trial court’s findings were based on expert testimony supporting general
causation and some medical testimony supporting specific causation.
Assignment of Error Number One - Fear of Future Injury
In its first assignment of error, CITGO claims that the awards for mental
anguish and fear of future injury are duplicative and that there is no medical evidence
4 A material safety data sheet (MSDS) “is a detailed informational document prepared by the manufacturer or importer of a hazardous chemical. It describes the physical and chemical properties of the product.” Safety Data Sheet Overview, BLINK, UC SAN DIEGO, https://blink.ucsd.edu/safety/resources/SDS/index.html (July 29, 2016, 2:28 p.m.). An MSDS “also contain[s] useful information such as toxicity, flash point, procedures for spills and leaks, storage guidelines, and exposure control.” Id.
4 in the record to support the plaintiffs’ claim that their exposure to the release of SO2
and H2S by CITGO has the potential to cause cancer or any other potential illness
than might develop many years after the plaintiffs’ exposure in 2006. The trial court
awarded each plaintiff $5,000.00 “[f]or general damages (mental anguish)”
associated with the exposure, and $10,000.00 each “[f]or general damages (fear of
future injury)” associated with the exposure.
In Duncan v. Kansas City Southern Railway Co., 00-66, p.13 (La. 10/30/00),
773 So.2d 670, 682 (citation omitted), the supreme court set forth the standard for a
determination of general damages, stating: “General damages are those which may
not be fixed with pecuniary exactitude; instead, they ‘involve mental or physical
pain or suffering, inconvenience, the loss of intellectual gratification or physical
enjoyment, or other losses of life or life-style which cannot be definitely measured
in monetary terms.”’
Fear of future injury and mental anguish damages fall under the category of
general damages. A panel of this court stated in Jones v. Progressive Security
Insurance Co., 16-463, p. 20 (La.App 3 Cir. 12/29/16), 209 So.3d 912, 926 (quoting
Watson v. Hicks, 15-56, (La.App. 4 Cir. 5/27/15), 172 So.3d 655):
General damages may be established in three ways: (i) the circumstances of the case, (ii) expert medical testimony, and (iii) the tort victim’s testimony. Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7.02[3] (2004 ed.). “General damages do not have a common denominator and are determined on a case by case basis.” Glasper v. Henry, 589 So.2d 1173, 1180 (La.App. 4th Cir.1991) (citing Bernard v. Royal Insurance Co., 586 So.2d 607 (La.App. 4th Cir.1991)). The jurisprudence holds that the duration of a plaintiff’s symptoms and treatment are relevant factors that courts must consider in assessing general damages. See Gillmer v. Parish Sterling Stuckey, 09-0901 (La.App. 1 Cir. 12/23/09), 30 So.3d 782, 788; Glasper, supra (noting the factors to be considered in assessing quantum for pain and suffering are severity and duration).
5 To prove that a plaintiff has a legitimate fear of developing a disease in the
future, there must be some basis for that fear, as it cannot be based on mere
speculation. Broussard v. Olin Corp., 546 So.2d 1301 (La.App. 3 Cir. 1989). In
Broussard, a plaintiff who had been exposed to toxic phosgene gas was unable to
recover damages for fear of developing cancer as there was no evidence submitted
in the record that demonstrated that cancer could result from phosgene gas poisoning.
Id.
After the plaintiffs in this case claimed that they had read the material safety
data sheets (MSDS) for both SO2 and H2S, each of the eight was questioned at trial
as to whether they had a fear of future injury from their exposure by CITGO to SO2
and H2S. Some plaintiffs continued to have concerns about their future health, even
though the MSDS for both SO2 and H2S stated that neither substance is considered
carcinogenic by OSHA and have not been known to cause cancer or other illnesses
or conditions that could develop in the future.
In this case, as was the case in Broussard, there was no scientific support in
the record to justify the eight plaintiffs’ concerns or fears of future injury. The
plaintiffs’ expert, Barry S. Levy, M.D., M.P.H., P.C., testified that he was offering
no opinion that any of the eight plaintiffs were at risk for any future health problems.
Additionally, Dr. Steve Springer, who was hired by plaintiffs’ counsel to offer
medical causation opinions and who met with each plaintiff individually, never
expressed an opinion to these plaintiffs, or anyone else, that they were at any risk for
future illnesses.
In addressing the fear of future injury issue, the trial court stated in its reasons
for ruling:
6 It is the fear of the unknown that bothers people a great deal. . . . Dr. Levy didn’t say future effects could not happen. he just couldn’t give an opinion on that issue. And, of course, we all know that some things which once were considered safe have now found to be unsafe. . . . With the rapid advancement of medical and scientific technology who knows what future studies will show with regards to these substances. Will these substances be found to be more dangerous than we once thought? We don’t know.
In so ruling, the trial court failed to mention the relevant uncontradicted
testimony of Dr. Levy, plaintiffs’ epidemiology expert, who explained that “the
health effects of both sulfur dioxide and hydrogen sulfide have been well-known and
well-established, scientifically established for a very long time.” Considering the
position of the scientific community on the “health effects” of SO2 and H2S, neither
Dr. Levy nor Dr. Springer was able to give an opinion that any of the eight plaintiffs
were at risk of future health problems.
Although plaintiffs argue that prior cases involving the heavily litigated slop
oil spill from CITGO’s plant had awarded damages for fear of future injury, those
cases involved plaintiffs that had been exposed to oil and wastewater that contained
a carcinogen, benzine, which is known as a cancer hazard, and can cause leukemia
and other blood disorders. See Arabie, 49 So.3d 529; Arabie II, 175 So.3d 1180; and
Cormier, 228 So.3d 770.
This court is aware of the case of Raney v. Walter O. Moss Regional Hospital.,
93-145 (La.App. 3 Cir. 12/8/93), 629 So.2d at 491, wherein a panel of this court
awarded “fear of future injury” damages to family members who had been exposed
to contact with another family member who was a carrier of hepatitis B after
contracting the illness at the hospital. As the basis for awarding damages for fear of
future injury, this court found in Raney, 629 So.2d 485, “there is a real and genuine
probability, albeit low, of developing hepatitis B.” In this case, there is no “real and
7 genuine probability” that any of the eight plaintiffs will suffer any serious future
illness given the testimony of the experts and the evidence in this case.
The trial court noted, “[w]hile the Court is aware that none of the plaintiffs
were exposed for a prolonged period of time, which is a relative observation or
comment, or sought immediate medical attention or missed work, it is nonetheless –
the Court is nonetheless convinced each suffered a compensable personal injury.”
As a result, the trial court gave each of the plaintiffs awards “[f]or general damages
(pain and suffering)” associated with their exposure, ranging from $2,000.00 to a
maximum of $6,000.00, based on a three-year time period. CITGO has not appealed
these trial court general damage awards.
Dr. Springer’s February 12, 2016 expert reports of each of the eight plaintiffs,
submitted into evidence at trial in connection with his deposition testimony,
discussed both the issues of medical causation and duration of each of the plaintiffs’
symptoms. Dr. Springer stated that the plaintiffs’ initial symptoms of irritation of
the eyes, throat, and sinuses lasted from two to three days, for most, and up to several
months for sinus and congestion issues for some. Dr. Springer also stated for each
of the eight plaintiffs that they had suffered “an increased frequency of sinus
irritation and congestion since the exposure which is believed and likely attributable
to said exposure.” This part of Dr. Springer’s report was accounted for by the trial
court when it limited general damage awards to three years as opposed to the ten-
year period between the incident in June 2006 and Dr. Springer’s February 2016
reports. The trial court stated, “[a]lso, I -- with the increased frequency of sinus
problems, I’ve discounted that over the three years, so it’s just the -- up to three years,
not for the entire 10 year period.”
8 In considering the circumstances of the plaintiffs’ limited exposure to the
release of the SO2 and the H2S, as found by the trial court in its reasons for ruling,
these plaintiffs have no legal basis for a fear of future injury claim. Broussard, 546
So.2d 1301.
In applying the instructions of the supreme court in Hayes Fund, 193 So.3d at
1115, requiring that “the appropriate standard for appellate review of factual
determinations is the manifest error-clearly wrong standard,” we find after a full
review of the entire record that the trial court committed manifest error in awarding
each plaintiff $10,000.00 “[f]or general damages (fear of future injury)” based on
their exposure on June 19, 2006. We therefore reverse the trial court’s award of
$10,000.00 for fear of future injury to each of the eight plaintiffs.
Past Mental Anguish Damages
Having reversed the trial court’s award for fear of future injury to the eight
plaintiffs, the trial court’s award for mental anguish is no longer duplicative. In its
reasons for ruling, the trial court discussed the issue of CITGO failing to notify
Firestone of the release of SO2 and H2S, in violation of CITGO’s own rules that
require notification of their neighbors when there is a release and despite mandatory
regulations also requiring notification.
Such a notification may have prevented the exposure and allowed the
Firestone workers the opportunity to shelter-in-place, as the CITGO workers did at
the CITGO CLAW unit, which was also in the path of the higher-than-permitted
release of SO2 and H2S. Each of the plaintiffs expressed anger at the lack of
notification. The trial court awarded $5,000.00 to each plaintiff for mental anguish
based on the following reasoning:
9 Mental anguish involves not being notified and given a chance to better protect themselves, that being the plaintiffs, and because of Firestone’s employees training and common sense they minimized some of their injury. However, it doesn’t minimize the anger. They should have been told. And they were angry. Dr. Levy addressed this in his testimony. They were angry then and even now we witnessed one of the exchanges between defense counsel and Mr. Long on that point and he said that - - CITGO’s admissions now does (sic) not make him feel better today. Dr. Levy talked about that. And I’m referring to and citing “P-907” which was the article, Aftermath of a Chemical Spill: Psychological and Physiological Sequelae. They spelled sequel a little different than I would, but I looked up the word sequel, having just a general understanding of what that meant and it says, what follows. That is what followed. And they talk in that article about the --different case, obviously, “the inability of the -- in the spill in California, the inability of the California Department of Health officials to give accurate and early information on the possible adverse health effects,” and we have a little bit more. They didn’t tell these plaintiffs they were in fact exposed to these substances. But anyway, “Failure to give the community the possible accurate and early information on the possible adverse health effects of the” -- it appears to be “metam sodium exposure to spill residents was reported overwhelmingly as a contributing cause of fears and worries. Undoubtedly, this lack of accurate information contributed to a lingering anger at the authorities and a heightened fear of future illness.” That’s very similar to what happened here and I think their anger was justified and understandable. That’s the mental anguish component of the award damages -- damages award.
Although the awards in this case were in the extreme high end for such limited
exposure and minimal medical evidence, we find no manifest error in the trial court’s
award “[f]or general damages (mental anguish)” to the eight plaintiffs, and therefore
affirm the $5,000.00 awarded to each plaintiff for mental anguish. See Hayes Fund,
193 So.3d 1110.
Assignment of Error Number Two - Medical Expenses
CITGO argues that the trial court erred in awarding a total of $15,000.00 in
medical expenses which reflects an award of $1,000.00 to $3,000.00 to each of the
eight plaintiffs. CITGO states that there is no evidence in the record to support the
award of medical expenses to six of the eight plaintiffs. It is undisputed that six of
10 the eight plaintiffs, Mr. Albarado, Mr. Alfred, Mr. Celestine, Mr. Long, Mr. Miller
and Mr. Walls, did not seek any formal medical treatment because of their exposure.
Instead, these plaintiffs claimed that they “self-medicated” with over the counter
pharmaceuticals. However, these six plaintiffs presented absolutely no
documentation at trial of any medical expenses incurred because of their exposure
to SO2 and H2S.
The remaining two plaintiffs, Mr. Gray, Jr. who was awarded $3,000.00 in
medical expenses and Mr. Willis who was awarded $1,000.00 in medical expenses,
each submitted a single invoice from the Springer Family Medical Clinic, LLC. Mr.
Gray’s invoice is dated August 1, 2006 and is for an office visit with Dr. Steve
Springer on July 25, 2006, in the amount of $150.00. Mr. Willis’s invoice is dated
August 16, 2006 and is for an office visit with Dr. Springer on August 16, 2006, also
in the amount of $150.00.
Special damages are those which theoretically may be determined with
relative certainty and especially include past medical expenses and past lost wages.
Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802. In reviewing a trial court’s
factual conclusions regarding special damages, an appellate court “must satisfy a
two-step process based on the record as a whole: there must be no reasonable factual
basis for the trial court’s conclusions, and the finding must be clearly wrong.” Monte
v. State Farm Mut. Auto Ins. Co., 13-979, p. 14 (La.App. 3 Cir. 5/21/14), 139 So.3d
1139, 1148.
It is undisputed that the two invoices from Dr. Springer are the only two past
medical expenses invoices submitted into the record at trial. In their briefing to this
court and at oral argument, counsel for the plaintiffs argue that the awards made “for
medical expenses associated with his exposure,” are for future medical expenses.
11 In their petition, the plaintiffs’ prayer for damages claimed that each “will continue
to incur future medical expenses as recommended by his treating physician.”
Although a plaintiff, in addition to past medical expenses, can recover future
(post-trial) medical expenses, to do so a plaintiff must establish the future medical
expenses will “be necessary and inevitable”. Stiles v. K Mart Corp., 597 So.2d 1012,
1012 (La.1992). “To recover future medical expenses, the plaintiff must present
medical testimony to show that it is more probable than not that future medical
treatment is indicated and the probable cost of the treatment.” Smith v. Municipality
of Ferriday, 05-755, pp. 11-12 (La.App 3 Cir. 2/1/06), 922 So.2d 1222, 1231, writ
denied, 06-934 (La. 9/29/06), 937 So.2d 860.
However, as we noted prior, the record is devoid of any testimony by a
treating physician supporting the plaintiffs’ claims that any medical expense awards
given by the trial court were for necessary future medical expenses. In the trial
court’s reasons for ruling, the trial judge specifically stated that the damage awards
were based on a three-year period from June 19, 2006 to June 2009.
Based on our review of the record as a whole, we find no reasonable basis in
the record for the trial court’s award for past medical expenses to the six plaintiffs
who did not submit into evidence any documentation of any past medical expenses.
Therefore, we reverse the trial court’s awards for past medical expenses to Mr.
Albarado, Mr. Alfred, Mr. Celestine, Mr. Long, Mr. Miller and Mr. Walls. See
Monte, 139 So.3d 1139.
For the same reasons, we also amend the award for medical expenses made to
Mr. Gray, Jr. from $3,000.00 to $150.00. Likewise, the award of medical expenses
made to Mr. Willis is amended from $1,000.00 to $150.00. Both awards are based
12 on records from Dr. Springer for his one-time treatment of these two individuals,
which is the only documentation for medical expenses in the record before the court.
CONCLUSION
For the foregoing reasons, the trial court’s judgment signed on April 5, 2017,
ordering CITGO to pay damages of $5,000.00 for mental anguish to Mr. Michael
Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr.
Robert Long, Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis is
affirmed. The trial court’s judgment of April 5, 2017 awarding damages of
$10,000.00 for fear of future injury to Mr. Michael Albarado, Mr. Michael Alfred,
Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long, Mr. Craig Miller, Mr.
Michael Walls, and Mr. Stafford Willis is reversed. We reverse the trial court’s
judgment of April 5, 2017 awarding damages for past medical expenses to Mr.
Michael Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Robert Long, Mr.
Craig Miller, and Mr. Michael Walls and amend the award for medical expenses
made to Mr. Melvin Gray, Jr. from $3,000.00 to $150.00 and the award of medical
expenses made to Mr. Stafford Willis from $1,000.00 to $150.00. Each party is to
pay their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND AMENDED IN PART.
13 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-823
KEATY, J., concurs in part and dissents in part.
I concur in the majority’s finding that the plaintiffs, Mr. Michael Albarado,
Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long,
Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis are entitled to
$5,000.00 each for mental anguish.
I also concur in the majority’s decision to amend the award for past medical
expenses because it was manifest error for the trial court to find past medical
expenses when there was no evidence or documentation of such expenses. I
further concur that the award for past medical expenses must be reduced for
Mr. Gray and Mr. Willis to the amounts proven with evidence.
However, I respectfully disagree with the majority’s reversal of the award of
damages for fear of future injury to the plaintiffs. The record indicates that the
plaintiffs were exposed to the gases for over twelve hours; CITGO’s own health
and safety documents include scientific evidence of the potential harmful effects of
such exposure; hydrogen sulfide (H2S) is classified by OSHA as toxic; and finally,
the exposure limits as established by the American Conference of Governmental
Industrial Hygienist were exceeded. Thus, in my view, the record clearly establishes that there was a reasonable factual basis for the trial court’s conclusion
that there was a probability of fear of future injury.
For these reasons, I respectfully dissent in the majority’s reversal of the trial
court’s award for damages for fear of future injury.