Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Aaron v. McGowan Working Partners

Court of Appeals of Louisiana, Fifth Circuit

June 15, 2017

JOHN AARON, BARBARA ABLES, ET AL.
v.
MCGOWAN WORKING PARTNERS, MCGOWAN WORKING PARTNERS, INC., ET AL. RAFAEL ADAMS, ADRIAN ANDERSON, ET AL.
v.
MCGOWAN WORKING PARTNERS, MCGOWAN WORKING PARTNERS, INC., ET AL. ANDREW L. HICKS, JR.; ANNIE B. KENNEDY; ET AL.
v.
MCGOWAN WORKING PARTNERS, MCGOWAN WORKING PARTNERS, INC., ET AL.

         ON APPEAL FROM THE SECOND PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 091-885, DIVISION "A" HONORABLE ROY M. CASCIO, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, JOHN AARON, BARBARA ABLES, ET AL. R. Glenn Cater Alfred C. Barrera Roy F. Amedee, Jr.

          COUNSEL FOR DEFENDANT/APPELLANT, MCGOWAN WORKING PARTNERS, INC. AND AVONDALE OIL & GAS, L.L.C. (F/K/A MCGOWAN WORKING PARTNERS SOUTHEAST LOUISIANA, L.L.C.) Gary M. Zwain Kevin R. Derham

          COUNSEL FOR DEFENDANT/APPELLANT, FEDERAL INSURANCE COMPANY Daniel J. Caruso Susan M. Caruso

          Panel composed of Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

         AFFIRMED IN PART; AMENDED IN PART; AND REVERSED IN PART

         HJL

         SMC

         RAC

          HANS J. LILJEBERG JUDGE

         This is a mass tort suit involving several consolidated lawsuits filed in Second Parish Court in Jefferson Parish. The litigation arises out of a hydrochloric acid leak which occurred in Avondale, Louisiana, on April 5, 2001. This appeal involves twenty plaintiffs who proceeded to trial together. Defendants, McGowan Working Partners, Inc. and Avondale Oil and Gas, L.L.C. (f/k/a McGowan Working Partners Southeast Louisiana, L.L.C.) (hereinafter referred to collectively as "McGowan"), as well as McGowan's insurer, Federal Insurance Company, appeal the trial court's May 7, 2015 judgment finding defendants liable to all twenty plaintiffs for damages.

         For reasons set forth more fully below, we find the trial court was clearly erroneous in finding the following plaintiffs satisfied their burden to prove chemical exposure caused their injuries and reverse the awards in their favor: Eloise Caston, Eleanor Lawson, Gloria Byrd, Stacy Reid Lopez, Latangia Thornton, Laura Ann Birden, Ernest Chisholm and Doris Collins. We also find the trial court abused its discretion with respect to the amount of general damages awarded to nine of the other plaintiffs and reduce these awards. In all other respects, the judgment as amended is affirmed.

         PROCEDURAL HISTORY

         The trial court conducted two trials in these consolidated matters. The first trial, which involved 12 plaintiffs, occurred in November 2006. On June 4, 2008, the trial court issued a judgment awarding nine of the 12 plaintiffs monetary damages totaling $38, 000. Plaintiffs filed a suspensive appeal, but it was dismissed as untimely.

         The second trial, which is the subject of the current appeal, involved 20 plaintiffs. The trial commenced on July 9, 2012, and lasted two weeks. During the trial, the parties introduced transcripts of the testimony from many of the witnesses from the first trial, including plaintiffs' experts and several first responders who responded to the incident, as exhibits during the second trial. At the conclusion, the trial court held the matter open to allow the parties to take a rebuttal deposition of plaintiffs' air dispersion modeling expert witness, Dr. Vasilis M. Fthenakis, on July 23, 2012. Following extensive delays for post-trial motions and briefing, the trial court issued a judgment on May 7, 2015, which found as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be Judgment herein in favor of the below listed Plaintiffs and against the Defendants, finding one hundred percent (100%) fault on Defendants, the existence of general causation of the chemical's ability to cause physical injuries to human beings in the concentrations and periods of time established, and specific causation of individual damages to the listed individuals set forth below . . . .

         The trial court awarded all twenty plaintiffs general damages ranging in amounts from $1, 000 to $8, 000.[1] Defendants filed a timely motion for new trial, which, inter alia, asserted that according to the Louisiana Supreme Court's decision in Howard v. Union Carbide Corporation, 09-2750 (La. 10/19/10), 50 So.3d 1251, the amount of general damages awarded to each plaintiff was excessive.[2] After hearing arguments on the motion for new trial, the trial court ordered a limited new trial during which the parties were permitted to introduce evidence comparing the chemical released in this case, hydrogen chloride, with the chemical released in Howard, naphtha.

         The trial court conducted the new trial on January 28, 2016. On June 22, 2016, the trial court issued a judgment maintaining all general damage awards rendered in its May 17, 2015 judgment. From these judgments, plaintiffs filed a timely suspensive appeal.

         FACTUAL BACKGROUND

         The source of the hydrochloric acid leak at issue was a storage tank located on property owned and operated by McGowan. The property is located on the southeast corner at the intersection of Highway 90 (2700/2800 block) and Jamie Boulevard in Avondale, Louisiana. At 5:00 p.m. on April 4, 2001, McGowan unloaded 600 gallons of a solution of 31.4% hydrochloric acid and 68.6% water (hereinafter referred to as "HCl" or "HCl solution") into the storage tank. Several days prior to filling this tank, a McGowan employee, Elijah Gatlin, conducted maintenance on the tank and replaced a clear plastic hose. Mr. Gatlin used a fitting made of nylon to connect the hose to a valve on the tank. Mr. Gatlin was not aware HCl causes nylon to deteriorate. Sometime in the later hours of April 4, 2001, or early morning hours of April 5, 2001, the fitting began to dissolve and HCl started to leak from the tank. Ultimately, 470 gallons of HCl solution escaped onto the ground of the McGowan property.

         At approximately 3:10 a.m., Deputy Guillory with the Jefferson Parish Sheriff's Office saw smoke coming from the McGowan property and reported a grass fire. Lieutenant Paul Jackson of the Nine Mile Point Fire Department arrived at the scene at 3:18 a.m.[3] Lt. Jackson drove onto the McGowan property, exited his vehicle and stepped into the smoke. He immediately realized the smoke was vapor and was not from a fire. Lt. Jackson was not wearing protective gear and did not experience physical symptoms from the vapor. Lt. Jackson exited the property, notified hazardous materials authorities and requested additional manpower. Shortly thereafter, a command post was set up across the street from the McGowan property in a Burger King parking lot. The wind was blowing the vapor from the southeast to the northwest into the intersection of Jamie Blvd. and Hwy. 90.[4] The command post was located east of this intersection and was not in the path of the plume.

         Robert Darcey, the Hazardous Materials Coordinator for Jefferson Parish Emergency Management, was contacted and responded to the scene at 4:05 a.m. He saw a white vapor cloud that looked like steam emanating from the containment area and migrating to the northwest.[5] He went onto the property and approached the tank from the upwind side to avoid the vapor. He explained that he walked within ten feet of the tank in order to read the label and identify the chemical leaking from the tank. He did not smell any odors or feel any physical sensations at that time. Mr. Darcey testified that they asked people in four surrounding businesses, including the Shell station, McDonald's, Winn Dixie and Spur station, to shelter in place.

         Around that same time, first responders set up road blocks in the surrounding area to prevent cars from entering the intersection of Hwy. 90 and Jamie Blvd. The barricade to the east of the intersection was located at Hwy. 90 and Lapalco Blvd. The southern barricade was located at South Jamie Blvd. and Rosalie Dr. and the northern barricade was located at North Jamie Blvd. and South Tish Dr. The western barricade was initially located at Hwy. 90 and West Tish Dr. Later, first responders moved the western barricade back to Hwy. 90 and Avondale Garden Rd. to improve the flow of traffic. Mr. Darcey testified that roadblocks were not set up due to any concern regarding chemical exposure in the area, but rather to ensure the safety of the first responders crossing Hwy. 90. First responders testified that they did not wear protective gear and did not experience symptoms of HCl exposure.

         McGowan's employee, Mr. Gatlin, arrived at the McGowan property at 4:30 a.m. Mr. Gatlin and Mr. Darcey walked to the containment area surrounding the tank. Mr. Gatlin approached the tank and shut off the leaking valve at 4:35 a.m. Mr. Gatlin testified that approximately 75% of the containment area was covered with liquid at that time.

         In order to monitor the air quality, Mr. Darcey took air samples at four different locations on and around the McGowan property at 4:35 a.m., 5:05 a.m. and 6:25 a.m. The first measurement he took at 4:35 a.m. was a control sample on the upwind side of the storage tank. He chose the location because he did not expect contamination at this location and the readings detected no HCl. He took the second set of measurements at the Shell station on the southwest corner of Hwy. 90 and Jamie Blvd., approximately 80 to 100 yards from the source of the leak. The readings at this location at 4:35 a.m. and 5:05 a.m. were 2 parts per million ("ppm").[6] Mr. Darcey also took air samples just south of the edge of the vapor cloud on South Jamie Dr. and near the entrance of the Winn Dixie parking lot west of the Shell station on Hwy. 90. All readings were negative for HCl at these two locations. Based on his findings, Mr. Darcey testified that people in the Shell station continued to shelter in place, but first responders determined evacuation orders were not necessary.

         HCl Dispersion and Concentration Expert Evidence

         At trial, the testimony and evidence presented by the parties focused primarily on the extent of the dispersion of HCl emissions into the surrounding neighborhoods. To support their positions, each side retained air dispersion modeling experts. Plaintiffs presented testimony and evidence from Dr. Fthenakis, who was accepted by the trial court as an expert in source emission characterization, air dispersion modeling and safety assessment and analysis. Defendants presented testimony from Kennard Kosky, who the trial court accepted as an expert in information and assessment of air emissions and air dispersion modeling.

         The parties agreed that in order to determine the amount of HCl emitted into the atmosphere, the experts must first determine the maximum surface area covered with acid. Dr. Fthenakis calculated a surface area of 1, 500 square feet and opined that acid covered this maximum surface area for a period of 15 to 30 minutes.[7] Based on this surface area and the prevailing conditions at the McGowan facility on the morning of the incident, Dr. Fthenakis estimated the maximum HCl emission rate to be 22 grams per second for a period of 15 to 30 minutes. He opined that a plume with concentrations sufficient to cause adverse health effects extended over a mile into the neighborhoods northwest of the facility during the maximum emission period.

         Dr. Fthenakis' testimony regarding the exact timing the maximum emissions occurred was less certain. In the testimony he provided during the first trial, Dr. Fthenakis opined that maximum evaporation levels were occurring between 3:00 a.m. and 4:00 a.m., but most likely at 3:30 a.m. He further testified that after 4:30 a.m., HCl emissions from the McGowan property would be minor because Mr. Gatlin reported the amount of liquid leaking from the tank when he shut off the valve at 4:35 a.m. was "pencil thin." Prior to the second trial, Dr. Fthenakis testified by deposition that HCl emissions causing adverse health effects in humans would have stopped sometime between 4:30 a.m. and 5:00 a.m. In his final rebuttal deposition taken after the second trial, Dr. Fthenakis adjusted the time for the maximum emissions from 3:30 a.m. to around 4:00 a.m. He repeatedly stated throughout his testimony that based on his analysis, maximum emissions definitely occurred much earlier than the time when Mr. Gatlin shut off the valve at 4:35 a.m. He also explained that his diagram only depicted the plume at the time of maximum emissions and after that time, the plume would be much smaller.

         In contrast, defendants' air modeling expert, Mr. Kosky, calculated a surface area of 166 sq. ft. at the time of maximum emissions. He opined that the HCl solution evaporated quickly. Therefore, all significant emissions occurred within ten minutes after the solution leaked from the tank and emissions after the initial ten minutes would be negligible. The model generated by Mr. Kosky indicated that HCl concentrations causing adverse health effects never travelled beyond the McGowan property.

         With respect to the length of time the emissions continued, Dr. Fthenakis agreed the maximum emissions occurred within the first ten minutes. However, he did not agree that emissions would be negligible after that time. In support of his position, he pointed to a test conducted by a McGowan engineer and partner, Willem "Mart" Lamar, during which he determined that emissions continued for 31 minutes after pouring a gallon of HCl solution on the ground. Dr. Fthenakis also pointed to a container test conducted on behalf of McGowan after the spill, which indicated significant emissions continued for 22 minutes after pouring HCl solution into the container. He further noted Mr. Darcey's testimony regarding the 2 ppm reading he took at the Shell station at 5:05 a.m., 30 minutes after Mr. Gatlin closed the valve.

         In its reasons for judgment, the trial court rejected Mr. Kosky's findings as inferior in credibility and competency and adopted its findings from the first trial which stated:

As such, the Court specifically finds that the dispersion geography, concentrations, and times testified to by Dr. Fthenakis on direct examination constitute the fact findings of this Court of the area into which the chemical dispersed, the concentrations the chemical existed in at said dispersion locations, and at the applicable time periods of dispersion and concentration. These findings are based on the direct examination, cross examination, and re-direct examination of Dr. Fthenakis as opposed to the direct, cross and re-direct of Mr. Kosky. The rebuttal testimony and exhibits from Dr. Fthenakis merely served to reinforce the Court's foregoing findings.

         The trial court also attached and adopted a diagram prepared by Dr. Fthenakis demonstrating the location of the plume and levels of HCl emissions into the surrounding area at the time of maximum emissions. The trial court did not render any specific findings regarding the times these HCl concentrations existed in the adjacent areas.

         HCl Exposure Level Guidelines

         The parties presented evidence regarding several different HCl exposure level guidelines through their toxicology experts, Dr. William Nassetta (plaintiffs) and Dr. Christopher Teaf (defendants). Dr. Nassetta explained that when a person is exposed to 1.8 ppm of HCl for a period of 10 minutes, he or she may begin to manifest adverse health effects. He also agreed that pursuant to the Acute Exposure Guideline Levels ("AEGLs"), established by the United States Environmental Protection Agency ("EPA"), the lowest reported safe level of exposure to HCl is at 1.8 ppm. According to the EPA, the lowest exposure level (AEGL-1) is described as follows:

. . .the airborne concentration, expressed as parts per million or milligrams per cubic meter (ppm or mg/m3) of a substance above which it is predicted that the general population, including susceptible individuals, could experience notable discomfort, irritation, or certain asymptomatic nonsensory effects. However, the effects are not disabling and are transient and reversible upon cessation of exposure.

         The EPA provides the AEGL-1 for hydrogen chloride is above 1.8 ppm regardless of whether the time of exposure is for 10 minutes or 8 hours. According to Dr. Nassetta, low-level HCl exposure ranges from 1.8 ppm to 20 ppm. He explained that when the HCl exposure level is at or below 20 ppm, the amount of time of exposure is not a factor because the health effects resulting from exposure are immediate.

         Defendants also introduced evidence regarding permissible exposure levels set by the Occupational Safety and Health Administration ("OSHA") and the American Conference of Government Industrial Hygienists ("ACGIH"). OSHA provides the permissible level of HCl exposure to workers during an eight hour workday in an enclosed environment is 5 ppm without the need for protective gear. Dr. Teaf testified that the ACGIH's ceiling for HCl exposure is 2 ppm.

         The toxicologists agreed this event involved low-level exposures to HCl, ranging from 1.8 ppm to 20 ppm. Both plaintiffs' and defendants' experts, which included their toxicologists and special causation experts, testified that the effects of low-level HCl exposure begin with eye irritation (i.e. stinging, watery eyes) and nose irritation (i.e. burning, runny nose).[8] The symptoms could progress to throat irritation and then breathing difficulty. These experts further agreed the onset of symptoms would be immediate following low-level HCl exposure. Defendants' experts testified the symptoms would cease almost immediately after exposure ends. However, plaintiffs' experts testified that symptoms could last from 48 hours to two weeks depending on the level of HCl exposure. Plaintiffs' experts also testified that the primary symptoms described above could lead to secondary symptoms such as headaches, nausea and vomiting.

         DISCUSSION

         FIRST ASSIGNMENT OF ERROR

         In their first assignment of error, defendants contend the trial court erred by adopting the air dispersion models prepared by Dr. Fthenakis. Defendants first contend this error occurred in part due to evidentiary errors committed by the trial court, including the exclusion of testimony and evidence offered by defendants' toxicology expert, Dr. Teaf, and the trial court's failure to exclude Dr. Fthenakis under Daubert.[9]

         It is well-settled that a court of appeal may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). However, if upon review, we find the trial court committed one or more evidentiary errors that interdict the fact-finding process, we are required to instead conduct a de novo review. Faulkner v. Better Servs., 10-867 (La.App. 5 Cir. 5/24/11), 67 So.3d 646, 651. As such, because a finding of an evidentiary error may affect the standard of review we should apply, we will address the alleged evidentiary errors first in this appeal.

         We note, however, that in regard to defendants' allegations that the trial court improperly admitted or excluded certain evidence, the trial court is granted broad discretion in determining the admissibility of evidence and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Color Stone Int'l, Inc. v. Last Chance CDP, LLC, 08-35 (La.App. 5 Cir. 5/27/08), 986 So.2d 707, 715.

         Exclusion of Dr. Teaf's Charts and Testimony

         With respect to their toxicology expert, Dr. Teaf, defendants claim the trial court erred in excluding testimony and charts Dr. Teaf prepared regarding the percentage of claimants who were outside of the plume calculated by Dr. Fthenakis at the time of alleged HCl exposure. Defendants argue Dr. Teaf's analysis indicated that 27% of the people who submitted notarized claim forms were located outside of the plume area defined by Dr. Fthenakis.

          In the first trial, the trial court entered a case management order which provided that in lieu of formal written discovery, plaintiffs would submit notarized forms providing detailed information regarding their claims. At the first trial, plaintiffs produced 450 claim forms. Defendants provided these forms to Dr. Teaf to compare claimants located within and outside of the HCl plume calculated by Dr. Fthenakis. According to defendants, Dr. Teaf determined that 15% of the claimants were outside of the plume, but reported the same symptoms as claimants located inside the plume. Dr. Teaf testified his findings were significant because they indicated it was not scientifically possible to conclude HCl exposure took place due to the similarity of symptoms of those both inside and outside of Dr. Fthenakis' plume.

         Between the first and second trials, plaintiffs provided an additional 772 claim forms for a total of 1, 222 forms. These forms represented 1, 611 claimants, as some forms included entries for multiple claimants residing in a household. Defendants provided these additional forms to Dr. Teaf to conduct the same analysis he previously prepared.

         Just prior to the second trial, defendants indicated their intent to introduce Dr. Teaf's testimony and charts regarding his updated analysis that included the additional 772 claim forms produced after the first trial. Defendants argued this information was relevant to demonstrate the inaccuracies of Dr. Fthenakis' air dispersion models. Plaintiffs objected based on their claim that defendants waited to provide plaintiffs with notice of their intent to introduce this new testimony and evidence until just days prior to the trial and they did not have time to prepare their cross-examination regarding his new analysis.

         The trial court upheld plaintiffs' objection and only allowed Dr. Teaf to testify regarding his analysis of the original 450 claim forms presented in the first trial. The trial court reasoned the new charts prepared by Dr. Teaf were exhibits which defendants failed to provide to plaintiffs in a timely manner. The trial court also noted that defendants failed to list the notarized claim forms as exhibits and that without these forms, the trial court would have to accept Dr. Teaf's testimony without the ability to review the underlying data supporting it. At the end of the trial, defendants proffered Dr. Teaf's testimony and charts with respect to the additional 722 claim forms.

         On appeal, defendants argued the case management order governing the second trial did not require the parties to provide updated expert reports. Defendants further argued they complied with the deadline to exchange demonstrative evidence by providing plaintiffs with the charts it would use during Dr. Teaf's testimony three days prior to trial. Defendants noted that since the trial court allowed Dr. Teaf's analysis of the 450 plaintiffs into evidence in the first trial, the updated analysis of the additional notarized claim forms should be admitted in the second trial. Defendants finally argued that plaintiffs' medical causation expert, Dr. Charles Mary, testified that it would be important to know whether persons in the same area had similar complaints.

         In response, plaintiffs argued Dr. Teaf's statistical analysis provided no probative value in determining the validity of Dr. Fthenakis' air dispersion models and further noted that it is not uncommon for people outside the exposure zone of a chemical leak event to submit a claim. Plaintiffs argued that Dr. Teaf's analysis only proves that 27% of the claimants may not have a compensable claim for HCl exposure.

         The record is unclear with respect to the deadlines the parties were required to follow prior to the second trial. However, our review of the record indicates it was not unreasonable for the trial court to require defendants to provide plaintiffs with advanced notice of their intent to introduce new evidence during the second trial to allow adequate time for review and preparation. We further find the trial court did not abuse its discretion by finding defendants should have listed the claim forms which formed the basis for Dr. Teaf's opinions as trial exhibits. As explained above, a trial court enjoys broad discretion in determining the admissibility of evidence. Color Stone, supra. Therefore, we find that the trial court did not abuse its discretion by excluding Dr. Teaf's charts and testimony regarding the additional 722 claim forms produced by plaintiffs.

         Furthermore, even if the trial court erred by excluding Dr. Teaf's additional analysis, we find the error was harmless, as the trial court allowed defendants to introduce similar evidence regarding Dr. Teaf's analysis of the original 450 claim forms submitted by plaintiffs. In addition, the fact that a percentage of plaintiffs claimed symptoms of HCl exposure despite being outside of the plume calculated by Dr. Fthenakis does not necessarily require a finding that the plume is inaccurate. The findings could simply indicate that a percentage of claimants filed unfounded or unsupported claims.

         Daubert Challenge to Dr. Fthenakis

         Defendants also complain the trial court should have rejected Dr. Fthenakis as an expert pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Plaintiffs contend that defendants failed to challenge Dr. Fthenakis on Daubert grounds during the second trial and may not do so for the first time on appeal.

         Defendants do not deny plaintiffs' assertion that they did not raise a new Daubert challenge regarding Dr. Fthenakis during the second trial. Defendants rely on the Daubert challenge raised during the first trial which questioned the methodologies employed by Dr. Fthenakis. However, defendants agreed to allow plaintiffs to introduce Dr. Fthenakis' prior trial testimony in lieu of his live testimony at the second trial without any limitations or objections. Defendants cannot rely on objections raised during the first trial without renewing the objection with the trial court during the second trial. Therefore, we find that defendants failed to properly preserve their Daubert challenge with respect to Dr. Fthenakis and cannot raise the issue for the first time on appeal.

         Challenge to Trial Court's Adoption of Dr. Fthenakis' Air Dispersion Model and Testimony

         As stated, defendants contend the trial court erred in accepting the air dispersion models generated by Dr. Fthenakis. Defendants claim the evidence contradicts his opinions regarding the HCl emissions levels and size of the plume.

         When considering expert testimony, a trial judge is free to accept or reject, in whole or in part, the opinions expressed by the experts. Allensworth v. Grand Isle Shipyard, Inc., 15-257 (La.App. 5 Cir. 10/28/15), 178 So.3d 191, 197. The effect and weight to be given to the expert testimony presented is within the broad discretion of the trial judge. Id. The decision reached by the trial judge regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its broad discretion. Id.

         Furthermore, it is well-settled that a court of appeal may not set aside a trial court's findings of fact in the absence of "manifest error" or unless it is "clearly wrong, " and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Richardson v. American Cyanamid Co., 99-675 (La.App. 5 Cir. 2/29/00), 757 So.2d 135, 143, writ denied, 00-921 (La. 5/12/00), 761 So.2d 1291. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

         The air dispersion experts, Dr. Fthenakis and Mr. Kosky, agreed that as the size or area of the HCl spill increased, the amount of evaporation or emissions increased, thereby increasing the concentration level of HCl in the air. The experts also agreed the rate at which the HCl solution flowed from the tank affected the size or surface area of the spill. The more quickly the solution leaked from the tank, the greater the surface area of the spill. Therefore, the main disputes between the air modeling experts involved the amount of time and manner in which the 470 gallons of HCl leaked from the tank, as well as the size of the surface area of the spill and duration of evaporation.

         On appeal, defendants contend Dr. Fthenakis' air modeling conclusions arise from his inaccurate determination that, at the time of maximum emissions, the HCl evaporation rate was 22 grams per second. Defendants assert Dr. Fthenakis assumed a surface area of 1, 500 sq. ft. in order to increase the concentration of HCl emissions during the maximum emission period. Defendants contend this required Dr. Fthenakis to assume the nylon fitting burst and the HCl solution leaked out all at once to quickly cover an area of 1, 500 square feet. Defendants claim these assumptions are incorrect and contrary to actual testing completed by McGowan engineer and partner, Mr. Lamar.[10] They contend that by accepting Dr. Fthenakis' air dispersion model, the trial court failed to consider or account for Mr. Lamar's testing.

         At trial, Mr. Lamar explained several different tests he conducted in an attempt to recreate the April 5, 2001 incident. He first conducted a tank test, which involved filling the tank at issue in this matter with 500 gallons of water. Based on the time required to drain 470 gallons of water from the tank, Mr. Lamar calculated it would take 51 minutes for 470 gallons of 31.4% HCl solution to leak from the tank through a ¾" valve opening. Defendants contend this test demonstrated that Dr. Fthenakis' theory of the fitting suddenly bursting open could not be accurate as the leak was first reported at 3:10 a.m. and was still ongoing over an hour later when Mr. Gatlin closed the valve at 4:35 a.m.

          In his second test, Mr. Lamar used an exemplar fitting and placed it in HCl solution to determine how long it would take for the fitting to degrade. He testified that small pinholes began to develop in the fitting after seven hours in the acid and the fitting completely dissolved after 20 hours. On the day prior to the incident, the tank was filled with acid at 5:00 p.m. Based on his experiment, Mr. Lamar concluded the tank began to leak at 12:00 a.m., which would have been seven hours after filling the storage tank. Defendants contend this test demonstrates the fitting degraded over a long period of time and the acid slowly leaked from the tank as opposed to the instantaneous bursting assumed by Dr. Fthenakis.

         Finally, Mr. Lamar conducted two tests to calculate the surface area of the spill. First, he ran 500 gallons of water from a hose at approximately eight gallons per minute at the location where the leak started. He compared the path of the water to the stains left on the ground from the acid on the day of the spill and determined the acid which leaked from the tank covered three times the surface area of the water. The water covered 300 sq. ft. causing Mr. Lamar to conclude the acid would have covered 900 sq. ft. Mr. Lamar also released one gallon of water and one gallon of HCl solution on the ground to compare the area each covered. He testified that based on the results of this test, he again determined the HCl solution covered an area three times greater than the water.

         McGowan also retained EFEH & Associates to conduct a container test to measure the evaporation rate of 31.4% HCl solution when applied to soil from the McGowan property. During the test, 40 ppm of HCl was measured at 12" above the soil. Defendants argue in response that only 2 ppm of HCl was measured at the top of the container another 16" above. Defendants also argue that Dr. Fthenakis did not conduct any tests to contradict the results of Mr. Lamar's testing, but continued to use a surface area of 1, 500 sq. ft. Defendants argue ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.