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Albarado v. Citgo Petroleum Corp.

Court of Appeals of Louisiana, Third Circuit

May 16, 2018

MICHAEL ALBARADO, INDIVIDUALLY, ET AL.
v.
CITGO PETROLEUM CORPORATION, ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-2924 HONORABLE RONALD F. WARE, DISTRICT JUDGE

          Robert E. Landry Patrick D. Gallaugher, Jr. Kevin Paul Fontenot Scofield, Gerard, Pohorelsky, Gallaugher & Landry

          Craig Isenberg Kyle W. Siegal Joshua O. Cox Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C. COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

          Marshall Joseph Simien, Jr. Simien Law Firm COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

          Richard Elliott Wilson Somer G. Brown Jason R. Bell Cox, Cox, Filo, Camel & Wilson, LLC COUNSEL FOR PLAINTIFFS/APPELLEES: Michael Albarado, Individually Michael Walls, Individually Craig Miller, Individually Michael Alfred, Individually Ragle Celestine, Individually Robert Long, Individually Stafford Willis, Individually Melvin Gray, Jr., Individually Gary Gunter, Individually

          Wells Talbot Watson Jake D. Buford Baggett, McCall, Burgess, Watson & Gaughan COUNSEL FOR PLAINTIFFS/APPELLEES: Ragle Celestine, Individually Melvin Gray, Jr., Individually Gary Gunter, Individually Stafford Willis, Individually Robert Long, Individually Michael Albarado, Individually Craig Miller, Individually Michael Walls, Individually Michael Alfred, Individually

          Kirk Albert Patrick, III R. Heath Savant Donahue, Patrick & Scott, PLLC COUNSEL FOR DEFENDANT/APPELLEE: R & R Construction, Inc.

          Court composed of John D. Saunders, Phyllis M. Keaty, John E. Conery, D. Kent Savoie and Van H. Kyzar, Judges.

          JOHN E. CONERY JUDGE

         Defendant CITGO Petroleum Corporation (CITGO) appeals the trial court's judgment in favor of eight plaintiffs, who while working at the Firestone Polymers plant across Highway 108 from the CITGO refinery in Lake Charles, were exposed on June 19, 2006 to a higher-than-permitted air release of sulphur dioxide (SO2) and hydrogen sulfide (H2S). CITGO stipulated to fault and contested the issue of damages. The trial court awarded each of the eight plaintiffs, Mr. Michael Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long, Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis, general damages for pain and suffering, [1] mental anguish, fear of future injury, and medical expenses associated with the exposure. For the following reasons, we affirm in part, reverse in part, and amend in part.

         FACTS AND PROCEDURAL HISTORY

         The exposure of the higher-than-permitted air release of the SO2 and H2S was the result of a June 19, 2006 incident at the CITGO refinery which resulted in a major oil and contaminated wastewater spill. The June 19, 2006 spill has been the subject of other cases appealed to this court, [2] but this case presents the first involving the Firestone workers alleged exposure to the higher-than-permitted release of SO2 and H2S from CITGO's operating units, which lasted from approximately 3:00 a.m. until late afternoon on June 19, 2006.[3] It is undisputed that CITGO did not inform the Firestone facility of the release of the SO2 and H2S coming from CITGO's operating units.

         A bench trial began on March 7, 2016, and on March 11, 2016, the trial court issued reasons from the bench. The trial court found that the Firestone workers' exposure to the higher-than-permitted release of SO2 and H2S from CITGO's operating units caused injury to the eight plaintiff workers. The injuries suffered primarily consisted of eye irritation, headaches, sore throats, coughing, and sinus irritation. The trial court specifically found that the damages awarded to the eight plaintiffs reflected their injuries for a three-year period from the June 19, 2006 exposure until 2009. Judgment was signed on April 5, 2017. CITGO filed a timely suspensive appeal of the trial court's awards to the eight plaintiffs alleging that the awards for fear of future injury were duplicative of the awards for mental anguish, and there was a lack of evidence to support the awards made to each plaintiff for fear of future injury and for medical expenses.

         ASSIGNMENTS OF ERROR

         CITGO asserts the following errors on appeal:

1. The district court erred in awarding damages for fear of future injury, and duplicative mental anguish damages, because plaintiffs presented no evidence that their claimed exposure to SO2 and H2S during the June 2006 event was capable of causing them to have future health problems.
2. The district court erred in granting awards for medical expenses totaling $15, 000 ($1, 000 to $3, 000 for each plaintiff) because six plaintiffs undisputedly presented no evidence of medical expenses, and the remaining two plaintiffs submitted $150.00 each in medical expenses.

         LAW AND DISCUSSION

         Standard of Review

         In Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr- McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115- 16, the supreme court reiterated the duty of appellate courts in a manifest error review and stated in pertinent part:

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass 'n, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court's factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no ...

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