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Adams v. Grefer

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017

MS. DOTTIE ADAMS, MR. HERBERT ADAMS, ET AL
v.
JOSEPH GREFER, CAMILLE GREFER, ROSE MARIE GREFER HASSI, ET AL

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 624-278, DIVISION "K" HONORABLE BRADY M. FITZSIMMONS, JUDGE PRESIDING

          FOR PLAINTIFF/APPELLANT, AARON BOYD, DANA MICHELLE BOYD, ET AL George F. Riess

          FOR DEFENDANT/APPELLEE, EXXON MOBIL CORPORATION AND MOBIL OIL EXPLORATION AND PRODUCING SOUTHEAST, INC. Glen M. Pilie Martin A. Stern Valeria M. Sercovich David M. Stein Raymond P. Ward

          FOR DEFENDANT/APPELLEE, ALPHA TECHNICAL SERVICES, INC. Caleb H. Didriksen, III Erin Bruce Saucier Carl A. Woods, III Jeremy J. Pichon Michael S. Finkelstein

          FOR DEFENDANT/APPELLEE, CONOCO PHILIPS COMPANY / SHELL OIL COMPANY, SHELL OFFSHORE, INC. AND SWEPI LP Deborah D. Kuchler Janika D. Polk Michele H. DeShazo Mark E. Best Skylar B. Rudin Joshua J. Doguet

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

          SUSAN M. CHEHARDY CHIEF JUDGE

         Numerous plaintiffs[1] appeal the trial court's grant of summary judgments in favor of defendants, Exxon Mobil Corporation, Mobil Exploration and Producing North America, Inc. (hereinafter "Exxon"); Shell Oil Company, Shell Offshore, Inc., and SWEPI LP, ConocoPhillips Company; and Alpha Technical Services, Inc (hereinafter "Shell").[2] For the following reasons, we affirm the trial court's judgments.

         Facts and Procedural History

         On October 11, 2005, over 1100 plaintiffs, colloquially known as "the Dottie Adams plaintiffs, " filed a petition for damages alleging that they were directly or indirectly exposed to naturally occurring radioactive material ("NORM") by defendants'[3] contamination of the "Grefer tract, " a 33-acre industrial tract situated in Harvey, Louisiana.[4] The "Dottie Adams" plaintiffs are "present or former residents of … Harvey, Louisiana, or at some point worked near the 'Grefer Tract, ' near Peters Road, Sixteenth Street, Pailet Avenue and Breaux Avenue."

         After eleven years of litigation, Exxon filed its motions for summary judgment with respect to fifty-seven[5] specific "Dottie Adams" plaintiffs on the basis that the plaintiffs were not able to substantiate that either they or their property were exposed to NORM above naturally-occurring background levels.[6]To its motions for summary judgment, Exxon attached an affidavit from its expert health physicist, John R. Frazier, Ph.D., with attached exhibits, including a deposition from Andrew Gross of Radiation Technical Services; two reports from the Louisiana Department of Environmental Quality; and a list of plaintiffs' addresses. In his affidavit, Dr. Frazier attests that "no evidence of physical testing of Plaintiffs' properties … shows any NORM impacted dust or soil from operations on the [Grefer Tract]." In conclusion, Dr. Frazier surmises that "it is more likely than not that the properties owned by the subject Plaintiffs in Harvey, Louisiana, … would have not been impacted by NORM from oil pipe scale from operations in the [Grefer Tract] in Harvey, Louisiana."

         Within days, Shell filed its own motion for summary judgment, incorporating and adopting Exxon's motion for summary judgment and supporting exhibits, with respect to forty "Dottie Adams" plaintiffs on the basis that the plaintiffs were not able to substantiate that either they or their property were exposed to NORM above naturally-occurring background levels. To its motion for summary judgment, Shell attached a "Master Set of Requests for Admission, Interrogatories, and Requests for Production of Documents" propounded by Exxon and Shell to all remaining "Dottie Adams" plaintiffs on November 17, 2016. In support of its motion, Shell alleged that the plaintiffs named in its motion failed to respond within 30 days to the propounded interrogatories and, thus, Shell's requests for admission were deemed admitted by operation of law under La. C.C.P. art. 1467(A). Specifically, Shell argued that the named plaintiffs "have admitted they have no evidence of their alleged exposure to NORM, including exposure to their persons and/or their properties." Based on these supporting documents, Exxon and Shell contended that the plaintiffs at issue could not bear their burden of proof at trial and, thus, Exxon and Shell were entitled to summary judgment.

         In their opposition, plaintiffs argued that summary judgment was not appropriate as the parties had already reached an agreement to settle. Plaintiffs attached documents, which were sealed, to their opposition, including a copy of the offer to settle from 2008 and other privileged communications. Plaintiffs argued that they have "suffered as a minimum 'fear and fright' as a result of the warnings posted by the DEQ, …, the high incidence of cancers related to radiation, and the settlement confected between the parties."

         After a hearing on January 30, 2017, the trial court took the matter under advisement. On February 1, 2017, the trial judge granted Shell's motion for summary judgment with respect to eighteen plaintiffs.[7] On February 3, 2017, the trial judge granted Exxon's motions for summary judgment with respect to fifty-three[8] represented plaintiffs. On February 24, 2017, the trial judge granted Exxon's motion for summary judgment with respect to four pro se plaintiffs.[9] All of those rulings were designated as final judgments under La. C.C.P. art. 1915. On February ...


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