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Jack v. CITGO Petroleum Corp.

Court of Appeals of Louisiana, Third Circuit

November 28, 2018

ELLIS JACK, JR.
v.
CITGO PETROLEUM CORPORATION, ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 20072494 HONORABLE SHARON D. WILSON, DISTRICT JUDGE.

          Robert E. Landry Patrick D. Gallaugher Kevin P. Fontenot Scofield, Gerard, Pohorelsky, Gallaugher & Landry COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

          Craig Isenberg Kyle W. Siegel Joshua O. Cox Barrasso Usdin Kupperman Freeman & Sarver, LLC COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

          Wells T. Watson Jake D. Buford Baggett, McCall, Burgess, Watson & Gaughan COUNSEL FOR PLAINTIFF-APPELLEE: Ellis Jack, Jr.

          Richard Elliott Wilson Somer G. Brown Cox, Cox, Filo, Camel & Wilson, LLC COUNSEL FOR PLAINTIFF-APPELLEE: Ellis Jack, Jr.

          Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

          SYLVIA R. COOKS JUDGE.

         For the 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 finding the damages alleged by Ellis Jack, Jr. were caused by the air release and/or slop oil is reversed, as are the damages in the amount of $27, 700.00 awarded to Mr. Jack.

         REVERSED AND RENDERED.

         PATRICK BOWLING, ET AL.

         v.

         CITGO PETROLEUM CORPORATION, ET AL.

         Nos. CA 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 written reasons.

         A court 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 813.

         Causation

         CITGO 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.

         Dr. 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.

         The Louisiana Pigment Employees

         Mr. 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 ...


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