United States District Court, W.D. Louisiana, Alexandria Division
CYNTHIA ELLIOTT AYERS, et al.
A N R Pipeline Company et al.
JAMEB D. KIRK, UNITED STATES MAGISTRATE JUDGE.
Before the court is a motion for summary judgment (Doc. 200) filed by defendants, ANR Pipeline Company and TransCanada USA Pipeline Services, L.L.C. (“defendants”) as to the claims of Linda Parker; Darwin Thacker; Evelyn Thacker individually and on behalf of Hilliard Thacker, Tyler Thacker, and James Thacker; Michael Price; Roxann Price, individually and on behalf of Travis Poe; Angela Johnson; James V. Hayes on behalf of the Estate of Mary Hayes; Ricky Shirley; and Franky Trisler. All have been deposed. Also pending is a motion for summary judgment as to all remaining plaintiffs in the case, doc. #201, 202, who have not been deposed.
On May 28, 2009, an emergency shutdown (“ESD”) occurred at ANR Pipeline Company’s Jena Compressor Station. As a result of the ESD, roughly 350 gallons of natural gas and oil components were released from the pipeline and/or Compressor Station. On June 14, 2009, a second ESD and release of chemicals occurred at the Jena Compressor Station.
In May 2010, three separate groups of attorneys (the Knoll group, the Bollinger group and the Terrell group) filed a total of forty separate lawsuits seeking damages for personal injury and/or property damage arising from the May 28, 2009 ESD (Docket Nos. 10-925 through 10-964). Plaintiffs from the Terrell group also asserted claims arising from the ESD on June 14, 2009, however, all of those claims were dismissed. See doc. #’s 140 and 141.
All 40 lawsuits were ordered consolidated for pretrial purposes. Since that time some of the claims have been settled and some dismissed. The only claims remaining are those of the Terrell group. These motions apply to all those remaining plaintiffs.
Motion for Summary Judgment
The defendants’ current motions for summary judgment, like the previous ones as to certain other plaintiffs (see doc. #107, 170), focus on whether or not the remaining plaintiffs can establish a causal connection between the ESD and the alleged injuries. “The test for determining the causal relationship between the tortious conduct and subsequent injuries is whether the plaintiff proved through medical testimony that is was more probable than not that subsequent injuries were caused by the accident.” Arabie v. CITGO Petroleum Corp., 89 So.3d 307, 321 (La. 2012) (citing Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993); Maranto v. Goodyear Tire and Rubber Co., 650 So.2s 757, 759 (La. 1995)(Citations omitted). Plaintiffs must carry the burden of proof on their claims by a preponderance of the evidence, a burden which the defendants contend the plaintiffs are unable to carry.
The parties debate how the plaintiffs must prove medical causation. While the defendants contend medical causation must be established through expert testimony, the defendants argue they are entitled to the presumption regarding causation as provided for in Wisner v. Illinois Cent. Gulf R.R., 537 So.2d 740 (La.App 1 Cir. 1988).
The medical causation presumption provided in Wisner is a rebuttable presumption and is available only when two criteria are met:
First, the plaintiffs must establish they were in good health prior to the accident; Second, the medical evidence must show there is a reasonable possibility of a causal connection between the accident and injury. Id.
Linda Parker’s testimony by deposition fails to show that she was in good health prior to the incident. She testified that she suffers from a sore throat, nose bleeds, nausea and sinus headaches. However, she admits that he had experienced similar symptoms before the incident. She has submitted no medical evidence showing a reasonable probability of a causal connection between ...