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Bradford v. Citgo Petroleum Corp.

Court of Appeals of Louisiana, Third Circuit

January 11, 2018


         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NOS. 2007-2492, 2007-2498, 2007-2519, 2007-2911, 2007-3324, 2007-2921, 2007-3482, 2007-3394, 2007-2919, 2007-2610, 2007-2521, 2007-2625, 2007-2515, 2007-2507, 2007-2915, 2007-2598, 2007-2511, 2007-3332, 2007-2929, 2007-2603, 2010-922, 2007-2932, 2007-2497, 2007-3337, 2007-2516, and 2007-2502 HONORABLE SHARON D. WILSON, DISTRICT JUDGE.

          Mat Marion Gray, III, Ashley E. Bane, Fowler Rodriguez, COUNSEL FOR: Other - Louisiana Surplus Lines Association.

          Robert E. Landry, Kevin Paul Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation.

          Kirk Albert Patrick, III Donahue, Patrick & Scott, COUNSEL FOR: Defendant/Appellee - R & R Construction, Inc.

          Wells T. Watson, Jake Buford, Baggett, McCall, Burgess, Watson & Gaughan, COUNSEL FOR: Plaintiff/Appellee - Emma Bradford.

          Marshall Joseph Simien, Jr. Simien Law Firm, COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation.

          Matthew David Monson, The Monson Law Firm, LLC, COUNSEL FOR: Other - Louisiana Surplus Lines Association.

          Richard E. Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, COUNSEL FOR: Plaintiff/Appellee - Emma Bradford.

          Craig Isenberg, Joshua O. Cox, Barrasso Usdin Kupperman, Freeman & Sarver, L.L.C., COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation.

          R. Heath Savant Donohue Patrick, PLLC, COUNSEL FOR: Defendant/Appellee - R & R Construction, Inc.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.


         CITGO Petroleum Corporation (CITGO) appeals the trial court's judgment in favor of twenty plaintiffs on the issue of causation. It also appeals the trial court's judgment in favor of thirteen plaintiffs on the issue of symptom duration following exposure to CITGO's chemical spill and release. Finding no error or manifest error in the trial court's judgment, we affirm.



         We must decide:

(1) whether the trial court manifestly erred in finding that the twenty plaintiffs at issue established causation between their injuries and CITGO's slop oil spill and air release on June 19, 2006; and
(2) whether the trial court manifestly erred in awarding damages for symptoms of thirteen plaintiffs beyond the duration of that suggested by the medical testimony.



         The facts of the spill and air release are well-documented, as several cases have come before this appellate court and the Louisiana Supreme Court. See, e.g., Arabie v. CITGO Petroleum Corp., 10-244 (La.App. 3 Cir. 10/27/10), 49 So.3d 529, aff'd on liability and causation, rev'd on punitive damage issue, 10-2605 (La. 3/13/12), 89 So.3d 307 (referred to as Arabie I); Arabie v. CITGO Petroleum Corp., 15-324 (La.App. 3 Cir. 10/7/15), 175 So.3d 1180, writ denied, 15-2040 (La. 1/8/16), 184 So.3d 694 (referred to as Arabie II); and Cormier v. CITGO Petroleum Corp., 17-104 (La.App. 3 Cir. 10/4/17), __So.3d__, 2017 WL 4401592.

         On June 19, 2006, following a local flash flood, CITGO's Calcasieu Parish Refinery released four million gallons of slop oil and seventeen million gallons of wastewater into the Calcasieu River, contaminating over 100 miles of coastline with toxic liquids and mousse-like substances that emitted toxic fumes in addition to being toxic upon contact. The spill was the result of the failure and overflow of CITGO's closed-system, waste-water treatment unit. The overflow was described as a catastrophic event and an environmental disaster by CITGO's own representatives. The clean-up of the spill lasted for approximately six months, from June to December, 2006.

         CITGO's Material Safety Data Sheet (MSDS) on slop oil from March 2006 ranks it as a chronic health and fire hazard. The MSDS states that the oil is extremely flammable and poisonous, and it contains Hydrogen Sulfide (H2S) gas which may be fatal if inhaled. It can enter the lungs and cause damage. It is harmful or fatal if swallowed. Slop oil contains above di minimus levels of benzene, a known cancer hazard which can cause leukemia and other blood disorders, H2S, xylene, toluene, n-hexane, and ethylbenzene. Benzene, toluene, and xylene are volatile organic compounds (VOCs). VOCs are chemicals that evaporate from a solid or liquid form at room temperature; long-term exposure can cause damage to the liver, kidneys, and central nervous system; short-term exposure can cause eye and respiratory tract irritation, headaches, dizziness, visual disorders, fatigue, loss of coordination, allergic skin reactions, nausea, and memory impairment.[1] Pursuant to CITGO's MSDS, slop oil also contains hexane, heptane, octanes, nonane, and trimethylbenzenes. Slop oil and/or its components are listed on the Toxic Substances Control Act (TSCA) inventory.

         Also on June 19, 2006, CITGO's steam lines became submerged and the facility released H2S and sulfur dioxide (S02) from sixty stacks in illegal concentrations for a full day, approximately twelve hours. The wind was blowing from the southeast toward the north and northwest, then calming for parts of the day, allowing the toxic emissions to release into the surrounding community.

         The plaintiffs in these consolidated cases live, work, and socialize in the areas around the CITGO facility. They asserted various injuries as a result of their exposure to the toxic chemicals in the slop oil and wastewater spills and in the air emissions emanating from the CITGO facility on June 19, 2006. The trial court found in favor of thirty-four of the thirty-six plaintiffs, and made awards in accordance with the court's assessment of the evidence. CITGO appeals the parts of the judgment awarding damages to twenty-two of those plaintiffs.[2] CITGO has stipulated to liability, and its appeal is based upon causation and duration of damages only.



         An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court: (a) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and (b) the appellate court must further determine that the record establishes that the finding of the trial court is clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120 (La.1987).

         Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court's findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housely v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).



         CITGO first contends that the trial court manifestly erred in awarding damages to twenty plaintiffs "without expert testimony establishing that they actually had been exposed to harmful chemicals released by CITGO."


         In any personal injury suit, the plaintiff bears the burden of proving causation by a preponderance of the evidence. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La. 2/20/95), 650 So.2d 757. A cause is a legal cause in fact if it has a proximate relation to the harm which occurs. Butler v. Baber, 529 So.2d 374 (La.1988). "A proximate cause is generally defined as any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the result complained of and without which the result would not have occurred." Sutton v. Duplessis, 584 So.2d 362, 365 (La.App. 4 Cir.1991). The test for determining the causal relationship between an accident and injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Maranto, 650 So.2d 757. If there is more than one cause of injury, "a defendant's conduct is a cause-in-fact if it is a substantial factor generating plaintiff's harm." Rando v. Anco Insulations, Inc., 08-1163, p. 31 (La. 5/22/09), 16 So.3d 1065, 1088. Causation is an issue of fact subject to the manifest error standard of review. Id.

         Proof of causation in toxic tort cases has two components, general and specific. Pick v. American Medical Systems, Inc., 958 F.Supp. 1151, 1164 (E.D. La.1997). "General causation" refers to whether a substance is capable of causing a particular injury or condition in the general population, while "specific causation" refers to whether a substance caused a particular individual's injury. Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007). A plaintiff cannot sustain his or her burden of proof with general causation proof alone; the plaintiff must also establish specific causation. See Berzas v. Oxy USA, Inc., 29, 835 (La.App. 2 Cir. 9/24/97), 699 So.2d 1149.

         Citing various federal cases, CITGO asserts that expert testimony is required to prove both general and specific causation in toxic tort cases. But the cited cases only establish that expert testimony on causation is required. See Atkins v. Ferro Corp., 03-945 (M.D. La. 2/11/08), 534 F.Supp.2d 662 (the expertise of plaintiff's only expert was in weather and climate); Seaman v. Seacor Marine L.L.C., 08-30911 (5th Cir. 4/30/09), 326 Fed.Appx. 721 (plaintiff's medical causation expert was disqualified); Allen v. Pennsylvania. Eng. Corp., 96-30209 (5th Cir. 12/31/96), 102 F.3d 194 (plaintiff's experts failed the Daubert analysis).

         In Bell v. Foster Wheeler Energy Corp., 15-6394 (E.D. La. 3/6/17), 2017 WL 889083, *2-3 (footnote omitted), Louisiana's middle district federal court stated as follows:

Several of the defendants argue that William Bell does not offer sufficient specifics or detail in his deposition testimony to conclude that he was exposed to asbestos in or on the defendant's products. But the Fifth Circuit "has inferred proximity to products from purely circumstantial evidence similar to the evidence in this case." See Slaughter v. S. Talc Co., 949 F.2d 167, 172 (5th Cir. 1991). "In Whatley v. Armstrong World Industries, 861 F.2d 837 (5th Cir. 1988), for instance, [the Fifth Circuit] upheld a jury's allocation of fault for plaintiff's asbestos-related injury, even though there was no direct evidence that the plaintiff had worked with the defendants' products." Id. Except with respect to York International Corporation and Foster Wheeler Energy Corporation, there is sufficient evidence in the record to create a genuine material fact dispute as to the extent of William Bell's exposure to each defendant's products. The causation issue is best left for trial, where the jury can decide for itself the extent of William Bell's exposure and the jury can benefit from detailed expert testimony from both sides regarding the nature of asbestos exposure.
There is one additional causation issue worth addressing with respect to expert testimony. IMO Industries, Inc. argues that a plaintiff cannot meet his burden of proof on causation in a toxic tort case without expert testimony as to specific causation. . . . But the cases cited by IMO Industries . . . only establish that expert testimony on causation is required-not that an expert opinion as to specific causation is required. See, e.g., Seaman v. Seacor Marine L.L.C., 326 Fed.Appx. 721, 729 (5th Cir. 2009) ("And, without admissible expert evidence in this toxic-tort case, Seaman cannot prove causation.").
IMO Industries essentially alleges that if an expert cannot render a reliable opinion as to specific causation, then a jury cannot find that the plaintiff proved specific causation as a matter of law. But that is incorrect. The standard for offering an opinion as an expert is wholly distinct from the standard by which a jury must judge the plaintiff's case. Expert testimony regarding general causation combined with specific evidence regarding the nature of the decedent's exposure may be sufficient to permit the jury to conclude that a particular defendant's product was a substantial factor in causing William Bell's mesothelioma.

         Here, contrary to CITGO's assertions, the plaintiffs in this case provided expert testimony establishing general causation and provided medical testimony establishing specific causation.

         Dr. Barry Levy, an occupational and environmental health physician and epidemiologist with thirty-five years of experience, established general causation in this case via his prior depositions and trial testimony[3] submitted into evidence at the trial of these consolidated cases. Dr. Levy received a Bachelor of Science degree summa cum laude from Tufts College, a Master of Public Health degree from the Harvard School of Public Health, and a Doctor of Medicine degree from Cornell University Medical College. He has worked as a Medical

         Epidemiologist for the Centers for Disease Control, for which he received the U.S. Public Health Service Commendation Medal. He founded and directed the Occupational Health Program at the University of Massachusetts Medical School. Dr. Levy has written more than 150 journal articles and book chapters and edited thirteen books, including five editions of the textbook now entitled "Occupational and Environmental Health: Recognizing and Preventing Disease and Injury" and two editions of the book "Preventing Occupational Disease and Injury." Dr. Levy has clinically evaluated thousands of individuals who had developed, or were at risk of developing, a wide range of adverse health effects as a result of environmental and/or occupational exposure to chemical substances.

         Frank M. Parker III, a Certified Industrial Hygienist, also established general causation. Mr. Parker has a Bachelor of Science in Civil Engineering from Virginia Military Institute (VMI) and a Masters in Aerospace Operations Management from the University of Southern California. He was Chief, Military Public Health, Occupational Medicine Services Section, and Chief, Bio- environmental Section, while in the Air Force, and has been Manager, Industrial Hygiene for Shell and Tenneco. Mr. Parker was also Adjunct Assistant Professor of Industrial Hygiene, Environmental Sciences, School of Public Health, University of Texas, Houston. He is a retired Colonel in the U.S. Air Force Reserve. Since 2004, he has been the Partner and Chief Executive Officer of Caliche, Ltd., a consulting firm. He has published numerous articles throughout his career on industrial hygiene, toxic exposure, health and safety.

         Mr. Parker opined on the failure of CITGO to warn the community and the likelihood of the plaintiffs' exposure to both volatile and non-volatile chemicals contained in the slop oil and in the air release. In reaching his opinion, Mr. Parker considered the depositions of the plaintiffs, numerous CITGO documents, correspondence with the Louisiana Department of Environmental Quality (LDEQ), regulations of the Occupational Safety and Health Administration (OSHA) on Hazardous Waste Operations and Emergency Response, and Standard Operating Safety Guides by the Environmental Protection Agency (EPA) for Hazardous Waste. He also explained OSHA regulations regarding respiratory protection, numerous depositions of CITGO employees and fact witnesses, photographs, maps, CITGO's internal call logs and monitoring practices, and CITGO's MSDS documents on slop oil and S02. Based on these documents, a review of scientific literature, and his vast experience as an Industrial Hygienist, Mr. Parker opined that CITGO's and LDEQ's air monitoring data were inconsistent with first hand observations obtained from fact witnesses as well as documents provided by CITGO. He testified to the unsafe concentrations of toxic chemicals spilled and released on June 19, 2006, and to the symptoms and health effects that occur in people who are exposed to these chemicals.

         Dr. Robert Looney, a physician with more than fifty years of experience, established specific causation for a number of the plaintiffs. He practices general medicine and occupational and environmental medicine at Health Associates of Lake Charles and is the Chairman of the Occupational Medicine Department. Dr. Looney holds professional memberships in the American College of Occupational and Environmental Medicine, the Southeastern Occupational and Environmental Medicine and the American Board of Medical Review Officers. His experience diagnosing patients and providing treatment for their symptoms and illnesses associated with the petro-chemical industry is extensive. Dr. Looney is and has been the Medical Examiner for Dyn-McDermott Strategic Oil Storage since 2004. In the past, he has been Medical Director for P.P.G. Industries, Hercules, Inc., Boeing Aircraft, and Amoco Oil. Dr. Looney also examined and treated approximately 300 ethylene dichloride exposure patients in Lake Charles.

         Dr. Steve Springer, a board certified physician in Family Practice, also established specific causation for the plaintiffs who he examined or ran tests on. He is the sole proprietor of Springer Family Medical Clinic. Dr. Springer has seen hundreds of chemical exposure patients. Dr. Springer was the Family Medicine Chief at Christus St. Patrick Hospital from 2006 to 2008 and is presently the Medical Director of Christus St. Patrick Hospital Diabetes Education Center.

         Exposure to Slop oil

         MSDS on Symptoms of Exposure

         The MSDS states that breathing the gas or vapor from slop oil may cause severe nose, throat, respiratory tract, and lung irritation, respiratory paralysis, and death; symptoms include coughing, choking, or shortness of breath. Additionally, inhalation may cause central nervous system depression with symptoms including nausea, headache, dizziness, fatigue, drowsiness or unconsciousness. It can cause eye irritation with tearing, redness, stinging or burning and can cause swelling of the eyes with blurred vision. Skin contact can cause skin irritation with redness, itching, burning or swelling of the skin and may cause harmful effects in other parts of the body. Ingesting slop oil can cause stomach or intestinal upset with pain, nausea and/or diarrhea. If the material gets into the lungs during swallowing or vomiting, it can cause lung damage, possibly leading to chronic lung dysfunction or death.

         The MSDS states that exposure to slop oil may cause damage to the blood, kidneys, lungs, liver, mucous membranes, heart, lymphatic system, peripheral nervous system, upper respiratory tract, immune system, skin, auditory system, bone marrow, central nervous system eye, lens or cornea, and testes.

         Epidemiology Studies

         Dr. Barry Levy testified regarding numerous epidemiology studies involving people who worked around oil spills, people who lived in the vicinity of oil spills, and people who participated in the clean-up of oil spills. Residents of Karachi, Pakistan were the subject of a study on health effects of exposure to the crude oil spill from the Tasman Spirit. Dr. Levy explained the association between the residents' exposure and their symptoms of skin irritation, nausea, headaches, dizziness, irritability, weakness of arms and legs, fever, loss of appetite, fatigue, eye, and respiratory symptoms. Studies also showed related exacerbation of asthma, vertigo, headache, back and leg pains, and psychological ailments.

         Prolonged respiratory problems of one or two years showed up in the study of the Prestige oil spill, and a follow-up to the study showed five years of symptoms. Dr. Levy explained that for various reasons, including but not limited to genetics and underlying diseases, people react differently to chemical exposure. Thus, an important factor regarding duration of symptoms is individual susceptibility. The conclusion was that even short periods of exposure to oil sediments could have detrimental health effects. Other studies addressed psychological injuries such as depression and anxiety.

         Parameters of the CITGO Spill

         CITGO's Significant Events Report indicates that closures of the Ship Channel increased northward and southward each day after the spills on June 19 and June 20. The report log for 7:35 p.m. on June 23 states that the Captain of the Port increased the safety zone at 4:00 p.m. to what appears to be the final, official, northern and southern parameters of the spill zone for prohibiting marine traffic. The northern parameter was Channel Light 116 just south of Coon Island, which is north of the I-210 Bridge; and the southern parameter was Channel Light 52 south of Calcasieu Lake, also known as Big Lake. The Intracoastal Canal was closed from Calcasieu Lock to mile marker 242. The report states that this was necessary because heavy currents from recent rains sped the oil into both lakes and because the concentration of fumes from oil could cause nausea, headaches, dizziness, and could make travel hazardous. Finally, at 7:39 p.m. on June 23, CITGO made what appears to be its first public announcement, stating that the spill may irritate upper airways and cause mild nausea in "sensitive individuals, " but with no long term effects. It warned the public to stay away from the oil spill.

         Permissible Exposure Levels

         Slop oil is an amber to dark amber liquid which has an odor of rotten eggs if H2S is present. Industrial Hygienist Frank Parker characterized the slop oil as the refinery's "garbage dump." He testified that it probably contains hundreds of chemicals. CITGO's toxicologist, Mr. Washburn, stated that slop oil also contains Polycyclic Aromatic Hydrocarbons (PAHs). Mr. Parker testified that because slop oil is a mixture of chemicals, there are no published exposure limits. However, the components have published limits. The primary release hazards in slop oil include benzene, and the acid gas, hydrogen sulfide/H2S.

         Benzene is a carcinogenic that causes blood abnormalities and central nervous system depression. CITGO's MSDS indicates that up to ten percent of slop oil is benzene. CITGO argued that the benzene had evaporated within the first twenty-four hours of the spill. Mr. Parker testified that this is not correct. He testified that benzene does not attach to water molecules or become absorbed in water. It remains benzene and combines with wind and water to form mousse-like clumps which sit partially on top and partially submerged in the water. When it is disturbed, for example by boats or vacuum trucks or other clean-up activities, droplets of mist containing all of the chemicals are released anew. Thus, he testified that CITGO's position that the hazardous materials were liberated or evaporated early in the spill is incorrect. Mr. Parker explained that this is borne out in the data and documentation showing high peak days later on. On June 22, 2006, a ship called the Sea Bolt Trader recorded a benzene level of nine parts per million (9ppm). One of CITGO's toxicologists found a benzene reading of 11ppm. Mr. Parker testified that the Permissible Exposure Level (PEL) for benzene is 1ppm. Dr. Levy testified that the American Petroleum Institute issued a document in 1948 that said no exposure to benzene is safe. Mr. Parker confirmed that if one smells benzene, you are already unquestionably overexposed.

         CITGO's 1997 MSDS indicates that up to five percent of slop oil is Polynuclear Aromatic Hydrocarbons (also PAHs) which cause photosensitivity and eye irritation; if inhaled, it can cause irritation with cough and bronchitis. Xylene also irritates eyes, skin, and mucous membranes. CITGO's 1997 MSDS and its March 2006 MSDS state that up to three percent of slop oil is hydrogen sulfide/ H2S. It can irritate the eyes at 4ppm. Olfactory fatigue occurs rapidly at 50ppm; thus odor is not a reliable warning property. It can irritate the respiratory tract with possible pulmonary edema at levels above 50ppm. The 1997 MSDS states that H2S is severely toxic at 200ppm and can cause bronchitis at 250ppm, but the March 2006 MSDS states that the National Institute of Occupational Safety and Health (NIOSH) has determined that levels above 100ppm are immediately dangerous to life and health (IDLH). Exposure to H2S can cause loss of consciousness, depressed respiration, and death at 500ppm.

         The March 2006 MSDS states that even sub-acute exposure to low levels of H2S can produce eye irritation, watering, light sensitivity and corneal opacity, bronchitis, pulmonary edema, nausea, abdominal cramps, diarrhea, lung cavity formation and chronic lung dysfunction. The organs or organ systems that may be aggravated by significant exposure to this material or its components include skin, respiratory system, peripheral nervous system, central nervous system, blood-forming system, and auditory system.

         Maps show that on July 3, 2006, two weeks after the spill, heavy oil was still around Calcasieu Refinery. Documents prepared by one of CITGO's industrial hygienists, Mr. Melancon, shows peak levels of H2S around July 4, 2006.

          A July 12, 2006 damage assessment report by Lisa DiPinto, Ph.D. states that airboat surveys identified shorelines and marshes with "extensively oiled sediments" which she characterized as having "PAH odor, sheen when probed, surface and/or buried oil layer in trenches." Michael Lee is one of the plaintiffs in this case whose awards are not being appealed, but it is noteworthy that Dr. Levy related his symptoms to slop oil exposure at Calcasieu Refinery beginning on July 17, 2006.

         In addition to previously discussed occurrences, CITGO's Significant Events Report contained numerous comments and complaints, some of which are summarized below:

June 21, 2006
• Oil on property of homeowner on Port Street near Moss Lake.
• CII Carbons sent folks home sick from potential exposure.
• One admitted to Lake Charles Memorial with chest pains.
June 22, 2006
• Oil on property at Port Road address in Sulphur.
June 23, 2006
• Odor and Oil on Property Road address in Carlyss; reported to 911; Local Fire Department responded and registered high benzene levels.
• Prien, Moss, and Calcasieu Lakes all closed to traffic.
• Heart patient sick for two days.
• Two Hydrochem employees taken for evaluation and urinary phenol testing.
• First public service announcement: smell may irritate upper airway and cause mild nausea in sensitive individuals; no long term effects; stay away from oil spill.
June 24, 2006
• Oil in Lagoon and dead turtle at Keel Road, north end ...

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