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Brown v. Evans Harvey Corp.

Court of Appeals of Louisiana, Fifth Circuit

April 15, 2015

DONALD D. BROWN, ET AL
v.
EVANS HARVEY CORPORATION C/W; ROBERT LE DOUX AND KRISTYN LE DOUX, ET AL
v.
EVANS HARVEY CORPORATION, ET AL

Page 245

[Copyrighted Material Omitted]

Page 246

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 522-539 C/W 535-715, DIVISION " C" . HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING.

JOHN L. YOUNG, MATTHEW W. LAGENBERG, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

LOUIS C. LACOUR, JR., ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst.

OPINION

Page 247

MARC E. JOHNSON, J.

[14-590 La.App. 5 Cir. 1] This is a mass tort suit involving a 1998 chemical gas release. This appeal involves a flight of ten plaintiffs who proceeded to trial together. Defendants, Evans Harvey Corp. and its insurer Lexington Ins. Co., appeal the trial court's October 22, 2013 judgment, finding Evans Harvey Corp. liable to Plaintiffs for damages sustained as a result of exposure to the chemical gas and awarding general damages to each of the plaintiffs in amounts ranging from $2,500 to $13,500. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On April 1, 1998, Plaintiff, Donald Brown, individually and on behalf of others similarly situated, filed a class action petition against Defendant, Evans Harvey Corp. (" Evans Harvey" ), for damages sustained from exposure to a chemical gas leak that occurred on the morning of March 31, 1998 at Defendant's facility in Harvey. In a second supplemental and amending petition, it was alleged that various chemicals, including benzene, styrene, methylene chloride, toluene, and xylene, which were known carcinogens, were released during the leak. Over time, additional plaintiffs were added to the lawsuit, and other plaintiffs filed their [14-590 La.App. 5 Cir. 2] own lawsuits. In November 1999, the plaintiffs were certified as a class and the lawsuits were ultimately consolidated; however, in January 2003, the class was decertified.

As a result of the decertification, Plaintiffs filed a third supplemental and amending petition in March 2006, re-naming and adding plaintiffs for a total of 63 plaintiffs claiming damages as a result of the exposure. Plaintiffs further added Lexington Insurance Company, Evans Harvey's general liability insurer, as a defendant.

The parties agreed to try the case in flights. The first flight, involving ten plaintiffs,[1] was tried before the trial judge on July 22 and 23, 2013 and August 5, 2013. The trial was bifurcated with damages being tried first on July 22nd and 23rd and liability being tried on August 5th. On August 30, 2013, the trial court rendered judgment finding Evans Harvey liable to Plaintiffs for damages caused by the March 31, 1998 chemical release from its facility. It awarded various amounts to each Plaintiff ranging from $2,500 to $13,500, plus unspecified special damages and outstanding liens. Four days later, on September 3, 2013, the trial court amended its judgment to award damages to three Plaintiffs omitted from the August 30, 2013 judgment.

Defendants subsequently filed a motion to annul the amended judgment and a motion for new trial. Defendants claimed the amended judgment was an absolute nullity

Page 248

because it made substantive amendments to the judgment by awarding damages to three additional plaintiffs, and asserted that the proper procedure for correcting the judgment was a new trial. The trial court agreed, annulled the September 3, 2013 amended judgment, and granted a new trial. On October 22, [14-590 La.App. 5 Cir. 3] 2013, the trial court rendered judgment on the new trial, again finding Evans Harvey liable for damages caused by the chemical release and awarding damages to each of the ten Plaintiffs in amounts ranging from $2,500 to $13,500. The trial court further specified special damages for two of the Plaintiffs, Mr. Leglue and Mr. Rojas, in the amounts of $10,868.67 and $6,142.55, ...


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