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Anderson v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

May 2, 2018

THOMAS ANDERSON, ET AL.
v.
CITY OF NEW ORLEANS, ET AL. THOMAS ANDERSON, ET AL
v.
CITY OF NEW ORLEANS, ET AL THOMAS ANDERSON, ET AL
v.
CITY OF NEW ORLEANS, ET AL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2000-07489, DIVISION "E-7" Honorable Melvin C. Zeno, Judge

          Roy F. Amedee, Jr. LAW OFFICES OF ROY F. AMEDEE, JR.

          Gary Joseph Gambel, MURPHY ROGERS SLOSS GAMBEL & TOMPKINS, Jennifer N. Willis, WILLIS & BUCKLEY, APC, Antonio Clayton, CLAYTON, FRUGE & WARD

          COUNSEL FOR PLAINTIFFS/APPELLEES, Darryl J. Foster, BRADLEY MURCHISON KELLY & SHEA LLC

          Kimlin S. Lee, Corwin M. St. Raymond, Derek Michael Mercadal, Rebecca H. Dietz, Cherrell S. Taplin, Deputy City Attorney

          John A. Stewart, Jr. Brodie G. Glenn BALDWIN HASPEL BURKE & MAYER, LLC 1100

          Robert B. Gilbreath HAWKINS PARNELL THACKSTON & YOUNG LLP, COUNSEL FOR DEFENDANTS/APPELLANTS

          (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dennis R. Bagneris, Ad Hoc [1] )

          Dennis R. Bagneris, Judge Ad Hoc

         This class certification issue was previously before this Court on defendants' appeal of the certification of a class related to an alleged toxic waste release at 2400 Canal Street, a building that operated as an Annex to New Orleans City Hall from 1982 until 1999. In the previous appeal, we vacated the trial court's judgment certifying the proposed class and remanded because there was no precise definition of the class. See Anderson, et al v. City of New Orleans, 16-1013 (La.App. 4 Cir. 6/14/17), 222 So.3d 800. On remand, the trial court issued Amended Reasons for Judgment, again indicating that plaintiffs had met the requirements of La. Code Civ. P. art. 591, certifying the class, and defining the class according to plaintiffs' proposal, as follows:

All persons who had an employment relationship with (meaning reported to work at) the building located at 2400 Canal Street ("The Annex") from 1982 to December 9, 1999 and who were exposed to toxic chemicals stored in the basement of the building at any time from August 1982 until December 9, 1999 and who suffered injury as a result of that exposure.

Defendants-appellants-the City of New Orleans ("the City"), NID Corp., [2] and Pan-American Life Insurance Company ("Pan-Am")-separately appealed the trial court's certification of the class and the class definition. We consolidated the defendants' appeals for our consideration. After careful review of the record and consideration of the trial court's amended judgment, amended reasons for judgment, and the applicable law, we reverse the trial court judgment certifying the class and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         The City began occupying the building at 2400 Canal Street in 1982 as a lessee but purchased the building in 1985 from Poydras Square, a predecessor to defendant-appellant NID Corporation. Before Poydras Square acquired it in 1982, the building was owned and occupied by Pan-Am. According to plaintiffs' recitation of the facts, Pan-Am used to print its own brochures, and the chemicals used in the printing processes were stored in the basement in barrels or drums. Plaintiffs allege that barrels of chemicals remained in the basement through changes in ownership from Pan-Am to Poydras Square in 1982 and from Poydras Square to the City in 1985. Plaintiffs further allege that when the City acquired the building, the barrels were not removed.[3]

         On December 9, 1999, approximately 17 years after the City assumed occupancy of the Annex, there was a chemical leak and "smoke" emanated from the east room in the basement where the barrels were stored. The New Orleans Fire Department responded to a call and, upon discovering that the smoke was caused by chemical vapors, dispatched its own HAZMAT team and also called United States Environmental Services ("USES"), a hazardous materials removal team.

         According to a report authored by District Fire Chief Dave Tibbetts, the Fire Department called for an evacuation of the building "because of the potential complete release of the chemicals while the drums were being over packed." USES secured and removed 19 barrels containing aqueous solutions of various acids and bases. The December 9, 1999 report prepared by USES explains that the "initial assessment" was that three drums of corrosive material containing a combination of sodium 2-mercaptobenzothiazole and potassium hydroxide were leaking.[4] A HAZMAT crew over packed these three leaking metal drums by placing them in even larger drums for removal. A second crew then entered the area to neutralize any spilled material and to remove other contaminated material from the room, such as parking meters, immobilization devices (boots), and other equipment. According to the report, USES also removed an additional 16 (plastic) drums, "all of which contained (1-Hydrofluoric acid, 3-Hydrochloric acid, 12-Mineral acid)." The USES report states: "there was liquid on the floor surrounding the drums, and a pH test indicated the liquid was acid." The next day, USES continued to remove contaminated material. According to the USES report, "it was impossible to identify which drums of acid were leaking." Thus, all 16 (plastic) drums were over packed in much larger drums. The over-packed drums were sent to Pollution Control Industries (PCI) for disposal. According to the PCI Material Data Surveys, there were 12 drums of "mineral acid, " three drums that contained concentrated hydrochloric acid and water, one drum of Aluma Brite, which contains 10-15% of hydrofluoric acid, and two [or three, according to the USES report] drums of Cecotrol, with the active ingredients in Cecotrol being sodium 2-mercaptobenzothiazole and potassium hydroxide, a basic rather than acidic solution. There was also a drum of aluminum phosphate, a non-hazardous material. The PCI data, like the USES data, do not reveal which, if any, of the drums containing acidic compounds were leaking, nor indicate how much of the contents of any of the drums may have leaked.

         In a letter to the New Orleans Fire Department dated December 13, 1999, USES further recommended that the electrical wiring in the room be rewired by an electrician, because it may have been affected by acid fumes. USES also revealed the results of its "wipe tests."[5] A wipe sample performed on one of the air vents in the east room revealed a pH of 2.88, with additional wipe samples taken in the east room revealing pH values between 3.44 and 5.18.[6] USES therefore stated: "Since it is impossible to accurately determine the extent of acid contamination, U.S.E.S. recommends that an HVAC engineer assess the entire vent system for removal." Wipe tests performed in the west room of the basement and ducts in the west room revealed pH values of 6.21, 7.48, 4.77, and 6.45, closer to neutral. No wipe tests were performed on any other floors or any other areas of the building. The City ultimately relocated all of the offices that had been housed in the Annex at 2400 Canal Street to other City buildings.

         On May 12, 2000, five plaintiffs, Thomas Anderson, Pamela Davenport, Evelle Thomas, June Harvey, and Joseph Wong, filed a putative class action against the City of New Orleans on behalf of all persons who sustained harm because they were "exposed to chemicals at 2400 Canal Street, " the City Hall Annex. Plaintiffs alleged that the City was aware that "hazardous, dangerous chemicals were present" but alleged the City "nonetheless ordered petitioners and those similarly situated to work in this dangerous environment." Plaintiffs alleged that the City "negligently and intentionally caused and/or allowed" these chemicals to remain at the Annex.

         Plaintiffs amended their petition on April 6, 2001, to add Pan-Am as a defendant. Plaintiffs alleged that Pan-Am placed the chemicals in the building and that the storage of the chemicals created an unreasonably dangerous condition within the Annex. Plaintiffs again amended their petition to clarify that Pan-Am was the former owner of the Annex, and plaintiffs alleged that chemicals stored in containers not appropriate for long-term use were used to clean Pan-Am's printing presses. The amended petition contends that the "leakage, spillage and/or diffusion of chemical vapors" contaminated the building. Plaintiffs further allege that the building's contamination persisted until the chemicals were removed in December 1999.

         In a third amended petition filed on June 22, 2005, plaintiffs added Poydras Square, Inc. and New Orleans Centre Associates, a Louisiana partnership in commendam, as additional defendants, arguing that Poydras Square owned the property after Pan-Am.[7] Plaintiffs argue that even though Poydras Square did not buy the chemicals, it allowed the chemicals to remain on the property and it failed to warn of the alleged danger associated with the chemicals.

         As a result of the alleged chemical exposure, plaintiffs claim to have suffered from or continue to experience a variety of medical problems including runny nose, coughing, sinus problems, headaches, and eye problems. When plaintiffs filed a motion to set hearing on class certification in 2014, their motion indicated that the case had been pending for some time [14 years] because their toxicological experts indicated that the injuries to the class could not be fully determined without the passage of time.

         In September and October 2015, after extensive discovery, the trial court presided over a four-day hearing that included live testimony of plaintiffs, Thomas Anderson and June Harvey-Armour, as well as testimony from a number of expert and fact witnesses. Plaintiffs introduced additional fact witness testimony via deposition, plus the Claimant Questionnaires of Thomas Anderson and Evelle Thomas and the Client Form for June Harvey-Armour, three of the named plaintiffs in the lawsuit.

         Thomas Anderson worked for the City from the mid-1980s through 2000. He remembers seeing barrels when he first occupied a section of the basement in the 1980s. He reported smelling a "rotten egg" smell throughout the building. Mr. Anderson testified that he never saw any of the drums leaking. June Armour, another named plaintiff, began working as a parking control officer in late October 1999. She spent approximately one hour per day in the Annex basement for the almost six weeks that she worked in the Annex before it was evacuated on December 9, 1999. She never saw the drums in the east room, but she said there was a funny, unpleasant smell. Ms. Harvey-Armour complained of itchy eyes, runny nose, asthma, sinusitis, and migraines. Her Client Form, introduced into evidence, indicates that she was diagnosed with serious allergies and chronic sinusitis before she ever began working at the Annex in 1999. In addition, she admitted that she did not see a doctor about any of her symptoms until many years after she left the Annex at the end of 1999.

         Patricia Williams, Ph.D., plaintiffs' expert in toxicology, epidemiology, and environmental exposure, among other disciplines, testified regarding the adverse effects of hydrochloric and hydrofluoric acids-effects that include severe burns, skin redness or irritation, sinus problems, asthma, and coughing. Dr. Williams also testified that these compounds can cause cataracts and glaucoma.[8] Dr. Williams agreed that the symptoms plaintiffs have alleged are consistent with exposure to hydrochloric or hydrochloric acid, but she also agreed that these symptoms are non-specific, meaning that they can be caused by any number of irritants and do not necessarily indicate acid exposure.

         Plaintiffs' expert in environmental science and chemistry, Paul Templet, Ph.D., testified regarding the chemicals involved and how people in the Annex may have been exposed. Based on the USES "wipe tests" taken in the east room, the west room, and the duct work in the east room after the December 9, 1999 incident, which returned pH levels in the low acidic range, as well as the level of corrosion that USES found in the east room, Dr. Templet believed that there was an acid leak over an extended period of time and that the leak did not occur in just one day. He believed that the inhalation exposure to acid gases was "very likely and probable." He stated that the basis for his opinion was the history of the complaints, and that the acid leak could have started with a pin-hole size leak to one of the drums containing acid.

         On cross examination, Dr. Templet agreed that there was "no evidence prior to 1999" of the size of any acid leak. He agreed that three metal drums (containing a base) were leaking, and that the USES report indicated that it was impossible to tell if any of the other drums (containing acids) were leaking. Dr. Templet explained that if the three metal drums containing Cecotrol had been leaking, the USES wipe tests and the USES report would have indicated hydroxides (bases) on the floor of the east room instead of the acidic pH ranges that the wipe tests from the east room confirmed. Dr. Templet agreed that the "rotten egg" smell detected by some witnesses indicated a sulphur or sulphur compound, and that sodium 2-mercaptobenzothiazole, which is found in Cecotrol, would emit that odor; on the other hand, that hydrochloric acid and hydrofluoric acid would have an acrid, biting smell. Dr. Templet further agreed that the wipe tests performed by USES could not be correlated with any particular dose or exposure of the toxic compounds to anyone in the vicinity.

         Defendants' expert in toxicology and industrial hygiene, James Rasmuson, testified that the best evidence of the types of chemicals in the barrels is to look at the three identified brand names found on some of the barrels-Cecotrol, Deox, and Aluma-Brite-plus the report from Pollution Control Industries (PCI), the company that was tasked with disposing of the barrels. The PCI report confirmed that the active ingredients in Cecotrol are sodium 2-mercaptobenzothiazole and potassium hydroxide. The City of New Orleans Emergency Incident Site Safety Plan, as well as the USES report, also state that the metal barrels that had corroded contained sodium 2-mercaptobenzotiazole and potassium hydroxide, the components of Cecotrol.[9] Mr. Rasmuson testified that Cecotrol smells strongly of rotten eggs or burned rubber but it does not have any vapor pressure and does not pose an inhalation threat if it remains in solution and is not sprayed. The testimony of plaintiffs' experts, Dr. Williams and Dr. Templet, did not contradict Mr. Rasmuson's testimony in this regard.

         Record evidence shows that a Deox label was found on at least one of the barrels in the east room. Deox contains a 5-10% concentration of hydrochloric acid and citric acid. Mr. Rasmuson stated that the acids in Deox are not very concentrated and are not very volatile. The evidence showed that at least three drums were Deox (or a similar solution) that contained hydrochloric acid. Aluma-Brite, the third brand name identified, contains 7-13% of hydrofluoric acid. At least one drum of Aluma-Brite/hydrofluoric acid solution was found in the east room. Also, one drum of aluminum phosphate was identified, which Dr. Templet indicated is a solid and is not characterized as a hazardous waste. According to PCI's Material Data Survey found in the record, there were 12 additional barrels of unspecified "mineral acid" found. Mr. Rasmuson testified that "mineral acids" could mean hydrochloric acid, sulfuric acid, or more dilute acids, but the contents of these barrels were never identified.[10] Mr. Rasmuson further explained that acids are sold in plastic drums, not metal drums, because plastic materials are not easily attacked by acids.

         In contrast to Dr. Templet's testimony, Mr. Rasmuson opined that there could not have been an acid leak for a long period of time because the odor of acid is so irritating that no one would have been able to be around it for very long. In other words, the "odor threshold" was very low, and if acids were present in dangerous quantities, someone within the vicinity would have smelled it.

         Dr. Rasmuson testified that people who worked in the east room or close to the east room in the basement could have been exposed to hydrochloric acid above the acceptable occupational exposure limits, but employees who worked in other parts of the building would not have been exposed above those limits. He also stated that glaucoma and cataracts could not be caused by only low-level exposure to hydrochloric or hydrofluoric acid. Finally, Dr. Rasmuson testified that exposure to acid is not cumulative, meaning that any potential long-term exposure in very low doses would not result in subsequent damage.

         Plaintiffs also presented expert testimony of Mr. Joseph Handlin, a mechanical engineer with experience in designing heating, ventilation, and air conditioning ("HVAC") systems and plumbing systems. Mr. Handlin explained his evaluation of the HVAC system and, based on a number of assumptions that he used in evaluating the system, he believed that air contaminated with acid particles from the basement could have circulated throughout the rest of the building.

         In the Amended Reasons for Judgment, the trial court described Mr. Handlin's testimony as follows:

Mr. Handlin testified that hazardous chemicals in the air could move from the east room in the basement and be circulated through the remainder of the building. The AC
unit was served by a GE or fan room and another fan room called GW. GA was connected to GE and the contaminated air flowed from GE into GA and followed a duct path back to GE. Then GE would be reconditioned in the fan room and distributed to the upper floor via a duct chase. There was also a HVAC system feeding the building from the penthouse floor as well which was all interconnected. Air would have moved from the air in the east print room where the chemicals were stored and circulated throughout the building through the HVAC, the elevators or the corridors and stairwells. Mr. Handlin indicated that if chemicals were leaking over a long period of time that would result in a greater amount of chemicals being circulated throughout the building.
Mr. Handlin concluded that any of the three interconnected handling units, AHU-GA, AHU-E or AHU-W would circulate contaminated air throughout the ground floor area served by this system and the small area on the first floor. He opined the supply isolation dampers were open, permitting contaminated air flow throughout the ground floor area served by this system. Mr. Handlin opined that based on the corroded fan scroll of AHU-E located in the east room, the unit operated while corrosive air was present. Ultimately, Mr. Handlin concluded the chemicals at issue would have circulated throughout the HVAC system.

         In short, Mr. Handlin testified that if chemicals had leaked over a long period of time, the return duct would be a pathway for these particles to be distributed throughout the rest of the building. In evaluating the system, Mr. Handlin assumed that AHU-E was working during the time of the chemical leaks. Mr. Handlin also assumed that the dampers for the general HVAC system that serves other parts of the Annex, AHU-GA, were closed, which would restrict the introduction of fresh air into the building. Mr. Handlin acknowledged that the USES picture taken on December 9 or 10, 1999, showed that AHU-E did not have a door on it and further agreed that during his inspection in 2008, the dampers for the general HVAC system were open rather than closed. He also agreed that upon moving farther away from "ground zero" (farther from the east room), the air would become more dilute due to the introduction of air from the above floors and air from outside of the building. Finally, Mr. Handlin stated that he did not find any abnormal corrosion in the fan room of AHU-GA.

         Defense expert Ervin Ritter, a mechanical engineer who designs HVAC systems, relied upon the report prepared by plaintiffs' expert, Mr. Handlin, when evaluating the HVAC system in the Annex. The trial court's iteration of Mr. Ritter's testimony states:

[Mr. Ritter] concluded that the HVAC system would have maintained a positive pressure in the upper five floors which would have limited the exposure of the acid gases to the ground floor. Mr. Ritter explained that the Annex had a chilled water air conditioning system, which used two water wells for the condenser side. The chilled water is then circulated through cooling coils in the building. The system is a hybrid coil system with spray coils, meaning air has direct contact with the chilled water and then flows through the chilled water coil. He indicated that water spray provides the benefit of removing dust and airborne particles, and also absorbing gas in the air path through the cooling system. He pointed out that there were two fan rooms on the ground level and two fan rooms in the penthouse, with ducts that feed from the ground level upward and ducts feeding from the fan rooms downward, all of which are connected together. He concluded that air from the east room where the barrels were found could not have circulated throughout the building.

         Additionally, Mr. Ritter testified that because AHU-GA had low levels of corrosion, unlike AHU-E, which had a high level of corrosion, he believed that the AHU-GA system was operating before and on December 9, 1999, and serving the east room and west room at that time. Mr. Ritter determined that AHU-E could not have been operating on December 9, 1999, because the controls had been "ripped out of it, " as depicted in the USES pictures, and that it had not been operating for some time, based on the amount of rust on it. Even if AHU-E had been operating at that time, however, Mr. Ritter testified that it would have circulated air in the area of the east room and possibly to the west room. On cross examination, Mr. Ritter agreed that some air from the east and west rooms on the ground floor could have escaped to the first floor.

         Mr. Ritter further explained that any HVAC system must bring in outside air to "flush out the contaminants of the human body" such as carbon dioxide and water vapor. Mr. Ritter calculated that the entire air volume of the building would be exchanged once per hour. He found no evidence to indicate that the dampers on the roof would fail to a closed position, as Mr. Handlin assumed, because it was just as likely that they could have failed to an open position. Similarly, Mr. Ritter testified that Mr. Handlin could have assumed that the dampers in the east and west room ...


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