Watters v. Department of Social Services

102 So. 3d 118, 2011 La.App. 4 Cir. 1174, 2012 WL 860386, 2012 La. App. LEXIS 350
CourtLouisiana Court of Appeal
DecidedMarch 14, 2012
DocketNo. 2011-CA-1174
StatusPublished
Cited by8 cases

This text of 102 So. 3d 118 (Watters v. Department of Social Services) 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
Watters v. Department of Social Services, 102 So. 3d 118, 2011 La.App. 4 Cir. 1174, 2012 WL 860386, 2012 La. App. LEXIS 350 (La. Ct. App. 2012).

Opinion

CHARLES R. JONES, Chief Judge.

11 This is an appeal of a judgment awarding damages to 46 out of 50 class members involved in a toxic tort class action concerning injuries suffered while working at the Plaza Tower office building between 1996 and 2002. The Appellees, Sherry Watters, et al., (Appellees) are members of a class comprised of State employees who allege that while working in the Plaza Tower office building, they were exposed to mold. The class is made up of Department of Health and Hospitals (DHH) and Department of Social Services (DSS) employees, who suffered a variety of health issues due to their exposure to mold and mold byproducts. Finding that the district court did not err in awarding damages to the Appellees, we affirm the judgment of the district court.

On October 25, 2001, Appellees Sherry Watters, Gina Recasner, Wendy Lemiux, Frances Breyne, and Gretchen Wiltz, the five class representatives in this case, filed a class action suit against the State alleging therein personal injuries through their exposure to toxic mold in the Plaza Tower. Particularly, they allege |2that they suffered “inter alia”, headaches, respiratory infections, sore throats, body aches, flu-like symptoms, itching, and increases in allergy reactions caused by their exposure to mold, mold spores, and their by-products during their occupancy of the Plaza Tower as State employees from 1996 to 2002. After a class was certified and the certification was affirmed on appeal, the district court conducted a seven-day bench trial in November 2007, to determine the common issues for the class and damages for the five class representatives.

On March 10, 2008, the district court rendered judgment on liability in favor of the class and awarded each of the five class representatives $25,000 in general damages for pain and suffering, and $10,000 for mental anguish and emotional distress. On June 17, 2009, this Court affirmed the judgment of the district court as to every issue; however, we reduced the State’s percentage of fault from 100% to 35%.1 On October 30, 2009, the Louisi[123]*123ana Supreme Court denied the writ applications of both parties.

Thus, by the end of 2009, the Appellees had established on behalf of the class that:

(1) the Plaza Tower was infested with harmful mold, particularly Staehybotrys, related to deplorable building conditions; (2) the State had breached its duty to its employees by requiring them to work in a building with such conditions; (3) that Sta-chybotrys mold can cause a variety of symptoms including respiratory symptoms, nasal irritation, sinus discomfort, watery eyes, throat discomfort, coughing, nasal symptoms, runny, blocked, or stuffy nose, headaches, |sitchy skin, weak voice, swallowing problems, and other related issues; and (4) the State is liable for 35% of the damages suffered by the Appellees.

The State insisted and repeatedly requested that each individual class member prove at trial that he or she suffered harm because of the exposure to mold. However, because of the logistical issues of trying over 600 individual claims, the parties decided to try the damage claims in flights, with the first fifty (50) class members’ damage claims being tried over three days in October 2010. In March 2011, the district court, based on this Court’s determination of a benchmark for damages in this case set at $25,000 for general damages, and $10,000 for mental anguish, awarded to qualifying class members damages with a starting point of the aforementioned set amount. Thus, the State flies this timely appeal.2

The State raises seven (7) assignments of error on appeal:

1. The Appellees failed to prove specific causation because they did not introduce medical evidence linking their particular injuries to mold exposure at the Plaza Tower.
2. The district court committed reversible error because the evidence introduced at trial does not justify the amount of damages awarded to the Appellees.
3. The district court awarded damages for health concerns that were not shown to be causally related to mold exposure.
4. The district court erred in admitting “Proof of Loss” forms into evidence at trial. The court improperly relied on the hearsay content of the documents to formulate its damage awards.
5. The district court erred in admitting into evidence and relying on uncerti-fied and partial copies of the Appel-lees’ medical records.
6. The district court erred in overruling the State’s Exceptions of Prescription as to the claims of Michelle Armstead Allen, Pauline Banks, Alma Brule, Charles Ellis, and Betty Lou Bell.
7. The district court impermissibly applied a mathematical formula to determine the amount of the Appellants’ damage awards.

14Factual findings (including breach of duty, cause-in-fact, legal causation, and actual damages) are subject to the manifest error standard of review. Watters v. Dept. of Social Services, 08-[124]*1240977, p. 16, (La.App. 4 Cir. 6/17/09), 15 So.Sd 1128, 1142, (citing Snearl v. Mercer, 99-1738, 99-1739, p. 11 (La.App. 1 Cir. 2/16/01), 780 So.2d 563, 574). When the factual findings are based on the credibility of a witness’s testimony, the appellate court must give great deference to the fact finder’s decision to credit a witness’s testimony. Id., citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “... Because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listeners understanding and belief in what is said.” Orleans Sheet Metal Works & Roofing, Inc. v. Rabito, 04-0359, pp. 3-4 (La.App. 4 Cir. 8/17/05), 916 So.2d 1143, 1146-1147, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

In the first assignment of error raised on appeal, the State asserts that the Appellees failed to prove specific causation because they did not introduce medical evidence linking their particular injuries to mold exposure at the Plaza Tower. The State argues that the district court manifestly erred in determining that it was more probable than not that 46 of the class members suffered harm due to their exposure to mold while working for the State in the Plaza Tower between 1996 and 2002.

“Specific causation refers to proving a sufficient causation link between the alleged health problems and the specific type of mold.” Watters, 08-0977, p. 17, 15 So.3d at 1143. “The test for determining the causal relationship between the tortious conduct and subsequent injuries is whether the plaintiff proved through medical testimony that it was more probable than not that subsequent injuries were caused by accident.” Id., p. 31,15 So.3d at 1152. “A trial court’s finding of causation is a factual finding that should not be disturbed unless the record does |snot furnish a basis for that finding, and it is clearly wrong or manifestly erroneous.” Zimko v. Am. Cyanamid, 03-0658, p. 29 (La.App. 4 Cir. 6/8/05), 905 So.2d 465, 486, writ denied, 05-2102 (La.3/17/06), 925 So.2d 538, citing Egan v. Kaiser Aluminum & Chemical Corp., 94-1939, p. 8 (La.App. 4 Cir. 5/22/96), 677 So.2d 1027, 1034. The manifest error rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Id.

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Bluebook (online)
102 So. 3d 118, 2011 La.App. 4 Cir. 1174, 2012 WL 860386, 2012 La. App. LEXIS 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watters-v-department-of-social-services-lactapp-2012.