FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2007-2612 HONORABLE SHARON D. WILSON, DISTRICT
E. Landry Patrick D. Gallaugher Kevin P. Fontenot Scofield,
Gerard, Pohorelsky, Gallaugher & Landry COUNSEL FOR
DEFENDANT-APPELLANT: Citgo Petroleum Corporation
Isenberg Kyle W. Siegel Joshua O. Cox Barrasso Usdin
Kupperman Freeman & Sarver, LLC COUNSEL FOR DEFENDANT
APPELLANT: Citgo Petroleum Corporation
T. Watson Jake D. Buford Baggett, McCall, Burgess, Watson
& Gaughan COUNSEL FOR PLAINTIFF-APPELLEE: John Thibodeaux
Richard Elliott Wilson Somer G. Brown Cox, Cox, Filo, Camel
& Wilson, LLC COUNSEL FOR PLAINTIFF-APPELLEE: John
composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth
A. Pickett, Judges.
R. COOKS JUDGE.
reasons assigned by this court in Bowling v. CITGO
Petroleum Corp., 18-169 (La.App. 3 Cir. ___/___/___),
___ So.3d ___, the judgment of the trial court awarding $10,
000.00 in damages to John Thibodeaux for fear of developing
disease is reversed. In all other respects, the judgment of
the trial court is affirmed.
IN PART, REVERSED IN PART, AND RENDERED.
BOWLING, ET AL.
PETROLEUM CORPORATION, ET AL.
18-169, CA 18-170, CA 18-171, CA 18-172, CA 18-173, CA
18-174, CA 18-175, CA 18-176, & CA 18-179
Pickett, J., concurs in part and dissents in part with
of appeal will not set aside the findings of fact of a trial
court unless it determines the trial court's finding were
manifestly erroneous or clearly wrong. Stobart v. State,
through DOTD, 617 So.2d 880 (La.1993). In reviewing the
entire record, the appellate court must find that a
reasonable factual basis does not exist for the trial
court's finding and that the finding is clearly wrong
(manifestly erroneous) in order to reverse a trial court
finding based on factual determinations. Mart v.
Hill, 505 So.2d 1120 (La.1987). When reviewing an issue
of law, though, we review the record de novo to
determine if the trial court's legal conclusions are
correct, without deference to the trial court's findings.
Foti v. Holliday, 09-93 (La. 10/30/09), 27 So.3d
argues that nine plaintiffs failed to prove that their
injuries were caused by exposure to either slop oil or the
air release. In addition to specific arguments about each of
the nine plaintiffs, CITGO re-urges the argument it made
unsuccessfully in Bradford v. CITGO Petroleum Corp.,
17-296 (La.App. 3 Cir. 1/10/18), 237 So.3d 648, writ
denied, 18-272 (La. 5/11/18), namely that expert
testimony is required to prove both general causation and
specific causation in a toxic tort case. "General
causation" refers to whether a toxic substance can cause
a particular harm in the general population, while
"specific causation" refers to whether the toxic
substance caused a specific person's injury or condition.
Knight v. Kirby Inland Marine, Inc., 482
F.3d 347, 351 (5th Cir. 2007). This court rejected
that argument. See Bradford, 237 So.3d at 659-660.
The panel in Bradford found that while expert
testimony is required to prove causation, it is sufficient
that there is expert testimony to prove general causation and
medical testimony to establish specific causation. I agree
with that conclusion.
Barry Levy, a physician and epidemiologist, testified via
deposition to establish general causation in this case, as he
has done in numerous previous CITGO cases. Frank Parker, an
industrial hygienist, also testified via deposition to
establish general causation. Dr. Steve Springer, a family
medicine doctor, testified as to the specific causation of
each of the twenty-six plaintiffs in this case. This court
went on in Bradford, though, to evaluate not only
the medical testimony as to specific causation, but also the
circumstances of the exposure as related by individual
plaintiffs and evidence as to the spread of the oil slop from
CITGO in the days following the release. Keeping in mind
these principles, my review of the evidence provided in this
case leads me to a different conclusion than the majority
regarding five of the plaintiffs about whether these
plaintiffs met their burden of proving specific causation.
Louisiana Pigment Employees
Doucet, Ms. McZeal, Mr. Mumford, and Mr. Smith were employees
of Louisiana Pigment Company when they claim they were
exposed to chemicals released from CITGO. Louisiana Pigment
is located to the northeast of the CITGO plant. To support
their claim of exposure, these plaintiffs rely on Mr.
Parker's opinion about the amount of hydrogen sulfide and
sulfur dioxide released from CITGO's stacks, and a chart
purporting to show the wind direction at the time of the
thirteen-hour release, beginning at 3 a.m. on June 19, 2006.
We note that the map and wind direction chart introduced in
the record in this case, exhibit seven to Mr. Parker's
deposition, has print so small as to be illegible. Further,
Mr. Parker's testimony indicates that the map is
color-coded, yet the copy introduced into the record before
us is black and white. Thus, we can rely on Mr. Parker's
testimony that the wind was generally calm on June 19, 2006,
and when it did blow it went from the southeast to the
northwest. Exhibit 8 to Mr. Parker's deposition shows the
911 calls made that day, with most of the calls made within a
mile radius of CITGO and to the northwest of the facility.
Mr. Parker testified that there were no calls from ...