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Broussard v. Multi-Chem Group, LLC

Court of Appeals of Louisiana, Third Circuit

July 11, 2018

ROBERT J. BROUSSARD, ET AL.
v.
MULTI-CHEM GROUP, LLC

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 118902 HONORABLE ANTHONY THIBODEAUX, DISTRICT JUDGE

          Richard G. Duplantier, Jr. Galloway, Johnson, Tompkins, Burr & Smith COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC Cade Bourque John Gauthier Nathan Walker Aaron Gauthier.

          Theodore M. "Trey" Haik, III Haik, Minvielle & Grubbs, LLP COUNSEL FOR PLAINTIFFS/APPELLEES: Robert J. Broussard R. J. Broussard General Contractors, Inc.

          Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.

          MARC T. AMY JUDGE.

         The plaintiffs of numerous consolidated proceedings sought personal injury damages associated with alleged exposure to chemicals following an industrial explosion at the defendant chemical facility. With liability established in pre-trial proceedings, the matters proceeded to trial for consideration of the bellwether plaintiffs' respective individual claims. Following a multi-day proceeding, the trial court awarded each plaintiff general damages, including those for fear of developing cancer or other illness. The trial court also awarded medical expenses for some of the plaintiffs. The defendants appeal.

         Factual and Procedural Background

         On June 14, 2011, a fire occurred at the facility of Multi-Chem Group, LLC in Iberia Parish, resulting in a series of explosions. Cade Bourque, Multi-Chem's Health, Safety, and Environmental Director at the time, confirmed that the facility housed 700, 060 gallons of chemicals at the time of the fire and that the close proximity of its storage vessels contributed to multiple explosions.[1] Numerous individuals described the scene, explaining that they witnessed debris, including drums and containers, flying into the air due to those explosions.

         Prescott Marshall, the Director of the Office of Homeland Security and Emergency Preparedness for Iberia Parish Government, estimated that between five and ten fire departments responded to the scene, which ultimately came under the control of the Louisiana State Police. According to Director Marshall, authorities evacuated a one-mile area[2] surrounding the scene. The fire actively burned for 22-24 hours by varying accounts.

         This matter was the first-filed of a number of suits[3] initiated after the occurrence, wherein the plaintiffs, workers at neighboring businesses and area residents, alleged that they were exposed to hazardous materials carried by smoke and wind. Multi-Chem was named as a defendant as were several of its employees. With the matters consolidated before the trial court, Multi-Chem's liability for resulting damages was established in pre-trial proceedings. Thereafter, the issues of causation and quantum of damages proceeded to a multi-day bench trial on a bellwether trial basis.[4] By stipulation, the parties chose bellwether plaintiff categories as follows:

[1.] Of those Plaintiffs who allege personal injury damages from exposure and who were located less than one (1) mile from the fire source, two (2) Bellwether Trial Representatives shall be jointly selected by Counsel for the Plaintiffs in the consolidated cases and two (2) Representatives shall be selected by Counsel for the Defendants.
[2.] Of those Plaintiffs who allege personal injury damages from exposure and who were located between one (1) and three (3) miles form the fire source, three (3) Bellwether Trial Representatives shall be jointly selected by Counsel for the Plaintiffs in the consolidated cases and three (3) Representatives shall be selected by Counsel for the Defendants.
[3.] Of those Plaintiffs who allege personal injury damages from exposure and who were located more than three (3) miles from the fire source, one (1) Bellwether Trial Representative shall be jointly selected by Counsel for the Plaintiffs in the consolidated cases and one (1) Representative shall be selected by Counsel for the Defendants.

         For Category 1, counsel for the plaintiffs selected Ryan Maturin and Dodie Boudreaux as representatives whereas counsel for the defendants chose Rickey Mergist and Trey LeBlanc. For Category 2 representatives, counsel for the plaintiff designated Sheral Iles, Julia Tillman, and Michael Honore, Sr., and counsel for the defendants chose Charles Antoine, Adam Curley, and Dorothy Lopez. Finally, as representatives for Category 3, counsel for the plaintiffs selected John R. Lopez, Sr., and counsel for the defendants chose Clarisse Armstead.[5]

         At trial, the parties presented expert testimony on the remaining issue before the court, i.e., whether the bellwether plaintiffs were exposed to hazardous materials as a result of the Multi-Chem fire and, as a result of that exposure, whether they sustained compensable damages. The plaintiffs presented the expert testimony of Dr. David Mitchell, a meteorologist, who opined that the smoke plume from the fire travelled in various directions, including the area south and southwest of the Multi-Chem facility.

         Additionally, the plaintiffs presented Dr. Laura Plunkett, a toxicologist and pharmacologist, who opined that air sampling data[6] revealed that particulate matter existed for days following the fire and that those levels exceeded regulatory standards. She further explained that, while the air sampling data monitored volatile chemicals, it did not measure chemicals absorbed into the particulates. Given the materials involved, she explained that a "chemical soup of particulate[s]" resulted, with unknown properties.[7] She explained, however, that the type of acute symptoms complained of by the plaintiffs were consistent with exposure to particulate matter more than likely contained within the plume and that some of the associated chemicals are potential carcinogens.

         Finally, the plaintiffs presented Dr. Monty Rizzo, who evaluated numerous plaintiffs, including two of the bellwether plaintiffs, and who explained that the type of acute injuries reported by those plaintiffs more likely than not resulted from their exposure. He identified potential problems with exposure to visible smoke as well as to smaller, invisible particulate matter.

         In opposition, the defendants disputed Dr. Mitchell's testimony regarding the direction of the smoke plume, suggesting through the opinion of meteorologist Nash Roberts that the smoke plume travelled only in a north-northeast direction due to the direction of the wind. Finally, the defendants presented Dr. John Kind, as an expert in industrial hygiene, toxicology, and emergency response, who testified that there was no evidence of a potential for adverse health effects outside of the Multi-Chem facility. Dr. Kind concluded instead that the hazardous vapors involved in the fire were consumed in its heat and that there was no evidence that any of the hazardous chemicals were absorbed into the particulate matter. Further, given the direction of the smoke plume as suggested by Mr. Roberts, Dr. Kind suggested that the plaintiffs could not have come in contact with the particulates for such a period of time as to pose a risk.

         Ultimately, the trial court rendered extensive written reasons upon a finding that each of those plaintiffs established exposure. The trial court awarded damages as follows:

         Category 1 (located less than one mile from the fire source)

Ryan Maturin

Medical Expenses

$539.75

General Damages

$15, 000.00

Mental Anguish (fear of developing cancer)

$7, 000.00

Dodie Boudreaux

Medical Expenses

$593.36

General Damages

$17, 000.00

Mental Anguish (fear of developing cancer)

$7, 000.00

Rickey Mergist

Medical Expenses

$729.30

General Damages

$15, 000.00

Mental Anguish (fear of developing cancer)

$7, 000.00

Trey LeBlanc

General Damages

$15, 000.00

Mental Anguish (fear of developing cancer)

$7, 000.00

         Category 2 (located between one and three miles from the fire source)

Charles Antoine

Medical Expenses

$742.37

General Damages

$15, 500.00

Mental Anguish (fear of developing cancer)

$7, 000.00

Sheral Iles

Medical Expenses

$4, 039.75

Lost Wages

$392.00

General Damages

$7, 000.00

Mental Anguish (fear of developing cancer)

$5, 000.00

Julia Tillman

General Damages

$5, 000.00

Mental Anguish (fear of developing cancer)

$5, 000.00

Michael Honore, Sr.

General Damages

$5, 000.00

Mental Anguish (fear of developing cancer)

$5, 000.00

Adam Curley

General Damages

$5, 000.00

Mental Anguish (fear of developing cancer)

$5, 000.00

Dorothy Lopez

Medical Expenses

$73.00

General Damages

$2, 500.00

Mental Anguish (fear of developing cancer)

$5, 000.00

         Category 3 (located more than three miles from the fire source)

John Lopez, Sr.

Medical Expenses

$239.75

General Damages

$2, 500.00

Mental Anguish (fear of developing cancer)

$5, 000.00

Clarisse Armstead

General Damages

$2, 000.00

Mental Anguish (fear of developing cancer)

$2, 000.00

         The defendants appeal the resulting final judgment, assigning the following as error:

1) The trial court erred in excluding the opinions of meteorologist Nash Roberts[.]
2) The trial court erred in admitting and relying upon the opinions of meteorologist Dr. David Mitchell[.]
3) The trial court erred in admitting and relying upon the opinions of Dr. Monty Rizzo[.]
4) The trial court erred in admitting and relying upon the opinions of toxicologist Dr. Laura Plunkett[.]
5) The trial court erred in finding that any Bellwether Plaintiff established general or specific causation[.]
6) The trial court erred in finding that any Bellwether Plaintiff was entitled to damages for fear of future development of illness[.]
7) The trial court erred in awarding excessive damage awards[.]

         Discussion

         Expert Opinion

         By their first four assignments of error, the defendants question the trial court's acceptance, and corresponding rejection, of certain opinion testimony offered by four experts. Louisiana Code of Evidence Article 702 is pertinent to these claims, providing that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.

         The Louisiana Supreme Court has recognized that Article 702 now codifies Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), which addresses the methodology employed by prospective experts. See Freeman v. Fon's Pest Mgmt., Inc., 17-1846 (La. 2/9/18), 235 So.3d 1087. Of course, a trial court is accorded broad discretion in its determinations of whether expert testimony should be admissible. Cheairs v. State, Dep't of Transp. & Dev., 03-0680 (La. 12/3/03), 861 So.2d 536. With that standard in mind, we turn to each of the defendants' assignments of error relating to expert testimony, addressing the defendants' arguments by subject matter.

         Meteorology

         In their respective positions on whether plaintiffs were exposed to hazardous materials due to the fire, the parties presented conflicting versions of events as to the movement of air-borne material from the Multi-Chem site. As noted, the plaintiffs presented Dr. Mitchell who referenced radar imagery and wind direction in opining, in short, that within an hour of the initial fire and over the following day, smoke covered the area surrounding Multi-Chem exposing those in the subject areas to particulate matter from the explosion.

         In contrast, the defendants presented the opinion testimony of meteorologist Nash Roberts. Mr. Roberts testified that, based on the wind direction throughout the period of the fire, the smoke plume consistently travelled only north-northeast of the Multi-Chem facility. Upon questioning, Mr. Roberts rejected Dr. Mitchell's interpretation of the radar images. While Dr. Mitchell found that those images depicted smoke from the explosion in areas beyond the northerly directions, Mr. Roberts suggested that the images depicted either clouds or false echoes.

         The trial court accepted both witnesses as experts, qualifying Dr. Mitchell as an expert in forensic meteorology and air modeling, [8] and, in turn, Mr. Roberts as an expert in meteorology. However, in evaluating the witnesses' respective positions in its reasons for ruling, the trial court favored that offered by Dr. Mitchell. By their first two assignments of error, the defendants challenge the trial court's assessments of the experts' opinion and suggest that the trial court erred in "excluding" the opinion of Mr. Roberts and in "admitting and relying upon" that of Dr. Mitchell.

         After review of Dr. Mitchell's pertinent credentials, [9] the trial court explained:

The Court finds that the opinions given by Dr. Mitchell in this case were based upon reliable scientific evidence, in that his testimony was based upon sufficient facts and data, his testimony was the product of reliable principles and methods, and he applied those principles and methods reliably to the [f]acts of this case. The court makes no such finding for Nash Roberts' testimony. Mr. Roberts refused to reveal the principles and methods that he used in forming his opinions on the basis that it was "proprietary". The court will therefore not consider Mr. Roberts' opinion.
Dr. David Mitchell reviewed and analyzed the weather conditions and wind patterns associated with the release of toxic smoke, particulate matter, and hazardous chemicals in the subject atmosphere as a result of the emissions from combustible sources from the June 14, 2011 explosions and fire at the Multi-Chem facility in New Iberia. He also considered case documents, photographs, and high resolution radar data and images produced by the National Weather Service from radar sites located in New Orleans and Lake Charles, Louisiana. Dr. Mitchell testified that the data showed that the skies were clear, absent of any clouds, at the time of the explosion. The radar images are high reflectivity images of dense matter, as opposed to cumulous clouds which are low density in nature. He also testified that the satellite imagery used does not reflect false echoes, and, if they did, it would render satellite imagery useless.
The radar images from the New Orleans based radar site show that, even though the winds were blowing from the west and southwest, within fourteen minutes of the first explosion, smoke was covering areas south, and heading southwest, of the explosion site. At 4:06 p.m., smoke was blowing west/northwest. There were also two other cloud-covered areas southeast of the explosion site, with the smoke clouds heading in an easterly direction. At 4:16 p.m., smoke clouds covered large areas in all directions of the explosion site, and the two clouds south/southeast of that site grew wider over the residential area located in the southeast while appearing to lessen in density. The National Weather Service's NEXRAD (radar site) at Lake Charles produced radar images that corroborated those satellite images produced by the New Orleans radar site, providing a broader view of the area of cloud coverage.
Dr. Mitchell does not dispute that eventually fire will create a vacuum that will draw all of the available smoke and particulate matter inward toward the center of the heat source and then rise to a higher level and travel toward the direction that the winds are blowing (in this case, northeasterly). However, he did opine that initially, a fire storm such as this one creates its own microcosm that is not affected by prevailing winds and, in fact, is chaotic. It generates its own winds that will push smoke and particulate matter in the direction it causes. Eventually, the plumes rise and stabilize. Their paths are then dictated by prevailing wind direction and speeds at certain elevations, temperatures, and densities.
The photographs and radar images viewed by this court, along with the testimony of the witnesses located close to the explosion site, overwhelmingly support Dr. Mitchell's opinion and completely discredit Mr. Roberts' opinion. The court thus accepts Dr. Mitchell's opinion as fact that at least until 4:49 p.m. on the day of the incident, and presumably for a reasonable time thereafter, the hazardous chemicals listed in the abovementioned MSDS exploded and affixed themselves to the particulate matter in the smoke. That particulate matter, which measured at PM2.5 levels and PM10 levels and above, then entered the environment of the plaintiffs, exposing the plaintiffs to dosages of the hazardous chemical components.
This court finds that it [is] more likely than not that the particulate matter with standard measurements of PM2.5 is not detected by radar. Furthermore, as the particulate matter with standard measurements of PM10 or greater cooled, it became invisible as well to the radar images. The particulate matter then lingered in the environment of the plaintiffs for a sufficient amount of time such as to have caused the plaintiffs to sustain the injuries which they have reported.

         As noted, the trial court did not credit Mr. Roberts' conflicting opinion. In addition to its reference to Mr. Roberts' proprietary method of formulating opinions, the trial court further remarked on his lack of post-graduate degree or certification. The trial court did, however, summarize Mr. Roberts' testimony in its reasons, noting that "Mr. Roberts opined that fire causes heat, and that heat creates a vacuum which travels upward and away." Referencing Mr. Roberts' evaluation of wind data from the area airport, the trial court noted that "Mr. Roberts testified that the smoke was heading in a north to northeasterly direction." However, the trial court found that Mr. Robert's opinion in that regard was contrary to photographic evidence. In particular, the trial court referenced a photograph that it determined "shows the lower elevation smoke heading in an easterly direction toward K&J." The trial court further noted that witness testimony indicated "that K&J was covered in black smoke."

         Specifically addressing Mr. Roberts' criticism of Dr. Mitchell's testimony regarding evidence of smoke on the radar data, the trial court explained:

The radar imagery shows smoke clouds south of and then southwest of the explosion site shortly after the explosion. Mr. Roberts opined that those clouds were either cumulous clouds or "false echoes". Yet, he did not base that opinion on any weather report admitted as evidence which revealed cumulous clouds were present that day during the pertinent time period. Instead, Mr. Roberts identifies what he believes to be a cumulous cloud in a photograph that appears to be at a very low elevation.
The court notes that the white cloud at issue is very similar in appearance to the white plume of smoke which manifested itself at the beginning of the explosions. Additionally, Defendants' exhibit 9 (fire department photographs) clearly show multiple plumes of smoke of various colors from white to gray to black forming and spreading throughout the area in different directions during the early stages of the incident.

         The defendants pointedly contend that the trial court erred in concluding that Mr. Roberts did not reveal his methodologies due to their proprietary nature. They instead argue that "[t]he trial court misconstrued Roberts' testimony regarding the proprietary nature of his commercial methodology as justification for discarding the opinions that Roberts formulated in the context of the instant litigation."

         However, the relevant testimony is not precise on this point. For instance, Mr. Roberts responded as follows upon questioning by plaintiffs' counsel:

Q. [W]hen you first were tendered, you talked about you used a proprietary secretive method for you to generate your reports. Is that correct?
A. I'm not saying this report but what we did on daily forecast to sell to our clients. If you selling [sic] something people aren't going to pay for it if you say it's not gonna rain and it rains or the seas are three feet and you can't get your guys off because their, the waves are too high. So you have to, you have to develop techniques from looking at the atmosphere, looking at the observations to make a forecast accurate.
Q. Let me ask you this simple football question. Did you use some of your proprietary techniques in generating the reports for Multi-Chem, your client?
A. I used my over forty years of experience in daily weather forecasting and consulting and forensic work to develop that report.
Q. Okay. Could another meteorologist use your same techniques and come to the same conclusion you reached?
A. If they had, if they were an applied meteorologist, somebody that was very familiar with daily weather, looking at observations, making a forecast to that and developing those skills, probably.
Q. Probably. But they still would need your proprietary techniques that you've developed over your forty-something years of doing this for commercial gain?
A. I would think that would be awful helpful to them.
Q. Okay. So they couldn't follow you is what, what I'm trying to get at. They, they couldn't follow in your footsteps without this proprietary information that you've gathered over the years?
A. Personally, I don't think so.
Q. Okay.
A. It's possible.
BY THE COURT:
You got secret methods you [sic] using?
BY [COUNSEL FOR THE PLAINTIFFS]:
That's what I'm saying, Your Honor.
BY THE WITNESS:
A. I have years and years of experience, fought out what'[s] wrong and figured the right way.
Q. You don't have shared methods?
A. What's that?
Q. You're not using methods that are shared with other meteorologists?
A. No. I'm sorry?
Q. You're not using methods that are shared with the other meteorologists in the community?
A. No unless they came through my office.

         As the defendants observe, the general availability of the underlying data is clear. Yet, as demonstrated by the lack of clarity in the above passage, the record supports the trial court's exercise of discretion in questioning the reliability of methodology employed in arriving at his opinion in this matter. See La.Code Evid. art. 702 (providing that an expert witness may testify in opinion form if, in part, their "testimony is the product of reliable principles and methods" and that he or she "has reliably applied the principles and methods to the facts of the case."). See also Freeman, 235 So.3d at 1090 (emphasis added) (noting that La.Code Evid. art. 702 codifies Daubert, 509 U.S. 579, which, in turn, "concerns the methodology employed by the experts").

         Turning to consideration of the defendants' corresponding suggestion that the trial court erred in accepting Dr. Mitchell's opinion, it is clear that the trial court's reasons reflect its further assessment of the experts' respective opinions rather than a determination strictly under the standards of La.Code Evid. art. 702. Recall that both witnesses were qualified as experts. Only after that qualification, and upon consideration of their conflicting views, did the trial court place greater weight on that offered by Dr. Mitchell. To the extent we evaluate that decision here, it is important to recall that a factfinder's decision to credit the testimony of one witness over that of another "can virtually never be manifestly erroneous." Snider v. La. Med. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323. That "rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony." Id. In fact, "'[t]he only time [the trial court's decision to accept the opinion of one expert and to reject that of another] will be deemed manifestly erroneous is when the court was clearly wrong in accepting the expert's opinion on which it relied.'" Veroline v. Priority One EMS, 13-865, p. 3 (La.App. 3 Cir. 2/12/14), 153 So.3d 1050, 1052 (quoting Tullis v. Rapides Parish Police Jury, 95-905, p. 8 (La.App. 3 Cir. 1/17/96), 670 So.2d 245, 250). On that latter point, we find no abuse of discretion in the trial court's acceptance of Dr. Mitchell's opinion.

         The defendants suggest that Dr. Mitchell's opinion regarding the direction of the smoke plume was unreliable due to the lack of reference to wind direction data from the regional airport or to photographic and video imagery which the defendants assert demonstrate that the smoke plume moved only in a northerly direction. However, extensive questioning of Dr. Mitchell undermines that position as he was questioned on the emphasized wind evidence. In particular, he explained that "as soon as the fire begins, it creates its own microclimate with turbulence. So we don't know. It's what we call, in meteorology, chaos. It's a chaotic situation that can't be modeled or defined by ordinary meteorological equations or principles." Specifically, with regard to the importance of the wind data from the Acadiana Regional Airport, [10] Dr. Mitchell explained:

Once the fire has lofted up and got the heated particulate in the air, the surface winds can be very chaotic. They can move it to the south. Now here's the important part, though. Once this falls back down, then and if it falls back down out here where you pointed out at Center Street and East St. Peter Street, then those winds may take over and it's going to move it right back across the neighborhood. Those eleven-mile-an-hour winds you keep talking about at the airport, once it reaches the surface, those winds away from the fire could push it right back. That's what I call in my report a double whammy, or in my deposition. They're not only ...

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