JOHN AARON, BARBARA ABLES, ET AL.
MCGOWAN WORKING PARTNERS, MCGOWAN WORKING PARTNERS, INC., ET AL. RAFAEL ADAMS, ADRIAN ANDERSON, ET AL.
MCGOWAN WORKING PARTNERS, MCGOWAN WORKING PARTNERS, INC., ET AL. ANDREW L. HICKS, JR.; ANNIE B. KENNEDY; ET AL.
MCGOWAN WORKING PARTNERS, MCGOWAN WORKING PARTNERS, INC., ET AL.
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
composed of Susan M. Chehardy, Robert A. Chaisson, and Hans
IN PART; AMENDED IN PART; AND REVERSED IN PART
J. LILJEBERG JUDGE
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.
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
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.
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 . . . .
trial court awarded all twenty plaintiffs general damages
ranging in amounts from $1, 000 to $8, 000. 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. 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,
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
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
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. 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. The command post
was located east of this intersection and was not in the path
of the plume.
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. 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.
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
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.
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"). 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.
Dispersion and Concentration Expert Evidence
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.
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. 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.
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
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.
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.
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
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
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.
Exposure Level Guidelines
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
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.
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.
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). 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.
ASSIGNMENT OF ERROR
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
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.
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.
of Dr. Teaf's Charts and Testimony
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.
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.
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.
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.
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.
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
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.
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
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
Challenge to Dr. Fthenakis
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
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.
to Trial Court's Adoption of Dr. Fthenakis' Air
Dispersion Model and Testimony
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.
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
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.
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.
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. They contend that by accepting Dr.
Fthenakis' air dispersion model, the trial court failed
to consider or account for Mr. Lamar's testing.
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.
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.
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.
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 ...