LEON J. ARCENEAUX, ET AL.
CITGO PETROLEUM CORPORATION, ET AL.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2007-2879 c/w 2007-3392 and 2007-3052
HONORABLE RONALD F. WARE, DISTRICT JUDGE
E. Landry 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.
Marshall Joseph Simien, Jr. Simien Law Firm COUNSEL FOR
DEFENDANT-APPELLANT: CITGO Petroleum Corporation.
Talbot Watson Jake D. Buford Bagget, McCall, Burgess, Watson
& Gaughan COUNSEL FOR PLAINTIFF-APPELLEE: Rickey Haley
Gardenia Amos Sara Stevens Bill Peltier Linda Harris.
Richard Elliott Wilson Somer G. Brown Cox, Cox, Filo, Camel
& Wilson, LLC COUNSEL FOR PLAINTIFF-APPELLEE: Sara
Stevens, Gardenia Amos, Linda Harris, Rickey Haley.
Albert Patrick, III Heath Savant Donahue, Patrick & Scott
COUNSEL FOR DEFENDANT: R & R Construction, Inc.
composed of John D. Saunders, Billy Howard Ezell, and Candyce
G. Perret, Judges.
CANDYCE G. PERRET, JUDGE
case is one of many stemming from the well-documented CITGO
slop oil release and air release that occurred at its
Calcasieu Parish Refinery on June 19, 2006.
Defendant-Appellant CITGO Petroleum Corporation
("CITGO") appeals the trial court's judgment
finding causation and awarding damages in favor of six
Plaintiffs: Sarah Stevens, Linda Harris, Ricky Haley,
Gardenia Amos, and Patrick Richard, individually, and on
behalf of his minor son, Logan Richard. CITGO also appeals
the trial court's judgment awarding Plaintiff Leon
Arceneaux damages for fear of future injury. We affirm.
AND PROCEDURAL HISTORY:
19, 2006, CITGO had two tremendous releases from its
facility, an air release and a slop oil release. The slop oil
release is at issue in this appeal. The supreme court in
Arabie v. CITGO Petroleum Corp., 10-2605, pp. 1-2
(La. 3/13/12), 89 So.3d 307, 310-11, summarized the event as
On the night of June 18 and the morning of June 19, 2006,
southwest Louisiana experienced a severe rainstorm. As a
consequence of the storm, the stormwater drainage and storage
system, including the wastewater treatment facility, at the
Lake Charles, Louisiana, refinery of defendant, CITGO
Petroleum Company (CITGO), was filled beyond available
capacity and overflowed, resulting in a major oil spill. The
system was designed to collect the water used in day-to-day
operations at the refinery and the runoff from most areas of
the refinery due to rainfall.
. . . .
Over 21 million gallons of waste, including 17 million
gallons of contaminated wastewater and 4.2 million gallons of
slop oil, escaped from the two existing wastewater storage
tanks into an area around the tanks which was surrounded by
levees or dikes. . . . Of the 4.2 million gallons of slop oil
which escaped, over 1 million gallons were released into the
Calcasieu River. . . . The oil spill, which was described at
trial as "major" and "catastrophic,"
eventually contaminated over 100 miles of shoreline along the
Calcasieu River, and required several months to clean up.
Material Safety Data Sheet ("MSDS") for slop oil,
dated March 29, 2006, indicates that slop oil is amber to
dark amber in color and has an odor similar to rotten eggs.
Additionally, the MSDS states that slop oil is
"Extremely Flammable and Poisonous" and that it
"Contains Benzene - Cancer Hazard. Can Cause leukemia
and other blood disorders." The MSDS explains that
CITGO's slop oil is typically composed of eleven
chemicals and describes the different signs and symptoms of
acute exposure through inhalation, eye contact, skin contact,
and ingestion, as well as the chronic health effects,
conditions that may be aggravated by exposure, target organs,
and the carcinogenic potential.
has stipulated to its fault in the release. Plaintiffs at
issue in this appeal worked and socialized in areas they
alleged the slop oil contaminated. They assert injuries as a
result of their exposure to the toxic chemicals in the slop
trial, Plaintiffs gave live testimony. Expert testimony was
submitted via video depositions and exhibits, which included
prior trial testimony and prior depositions in the other
CITGO litigation cases and expert reports. Plaintiffs'
medical records, with the exception of the Richards, were
also admitted into evidence.
March 30, 2017, the trial court ruled in favor of Plaintiffs
on causation and damages. In a judgment dated September 20,
2017, the court awarded expert fees, trial prep fees, and
judicial interest from the date of judicial demand. It also
awarded damages to Plaintiffs as follows:
• Leon Arceneaux was awarded $40,
492.00, which accounts for pain and suffering ($23, 000.00),
loss of enjoyment of life ($10, 000.00), fear of future
illness ($7, 000.00), and medical expenses ($492.00). Only
the award for fear of future illness is challenged on appeal.
• Sarah Stevens was awarded $36,
150.00, which accounts for pain and suffering ($21, 000.00),
loss of enjoyment of life ($5, 000.00), fear of future
illness ($10, 000.00), and medical expenses ($150.00).
• Ricky Haley was awarded $8, 200.00,
which accounts for pain and suffering ($6, 000.00), loss of
enjoyment of life ($2, 000.00), fear of future illness
($0.00), and medical expenses ($200.00).
• Linda Harris was awarded $52, 200.00,
which accounts for pain and suffering ($32, 000.00), loss of
enjoyment of life ($10, 000.00), fear of future illness ($10,
000.00), and medical expenses ($200.00).
• Patrick Richard was awarded $7,
000.00, which accounts for pain and suffering ($4, 000.00),
loss of enjoyment of life ($3, 000.00), fear of future
illness ($0.00), and medical expenses ($0.00).
• Patrick Richard for the benefit of his minor
son, Logan Richard, was awarded $4, 000.00, which
accounts for pain and suffering ($3, 000.00), loss of
enjoyment of life ($1, 000.00), fear of future illness
($0.00), and medical expenses ($0.00).
• Gardenia Amos was awarded $41,
400.00, which accounts for pain and suffering ($25, 000.00),
loss of enjoyment of life ($6, 000.00), fear of future
illness ($10, 000.00), and medical expenses ($400.00).
filed a motion for suspensive appeal, which the district
court granted, and timely posted bond on October 18, 2017.
CITGO now appeals asserting three assignments of error:
1. The [trial] court erred in finding that six of the
plaintiffs [Sara Stevens, Ricky Haley, Linda Harris, Patrick
Richard, Logan Richard, and Gardenia Amos, ] proved
causation, because they failed to present expert testimony or
other objective evidence that they were exposed to chemicals
released by CITGO. Plaintiffs' unscientific testimony
about detecting an unusual odor or seeing an oily substance
in the water, and experiencing common symptoms such as
headaches or sinus congestion, is insufficient, in the
absence of expert testimony, to establish exposure to
2. The [trial] court erred in awarding damages for fear of
future illness to two plaintiffs - Leon Arceneaux and
Gardenia Amos - who did not testify that they had any fears
or concerns for their future health. These awards should be
reversed based on the lack of any supporting evidence.
3. The [trial] court erred in awarding damages for loss of
enjoyment of life to five plaintiffs, [Ms. Harris, Ms. Amos,
Mr. Haley, Mr. Richard, and Logan Richard, ] because they did
not testify or offer any other evidence about whether and how
their quality of life diminished because of their alleged
exposure-related injuries. These awards should be reversed
based on the lack of supporting evidence.
appeal, this court may not set aside a trial court's
factual findings absent manifest error or unless the trial
court was clearly wrong. Stobart v. State, Through
DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO,
549 So.2d 840 (La.1989). To reverse a trial court's
factual findings, the appellate court must apply a two-tiered
test when reviewing the facts and must find that (1) the
record does not establish a reasonable factual basis for the
finding of the trial court, and (2) "the record
establishes that the finding of the trial court is clearly
wrong (manifestly erroneous)." Bradford v. CITGO
Petroleum Corp., 17-296, p. 4 (La.App. 3 Cir. 1/10/18),
237 So.3d 648, 658-59, writ denied, 18-272 (La.
5/11/18), 241 So.3d 314. However, "[i]f the trial
court's findings are reasonable in light of the record
reviewed in its entirety, the appellate court may not
reverse." Arabie, 89 So.3d at 312. Thus,
"when there are two permissible views of the evidence,
the factfinder's choice between them cannot be manifestly
of Error Number One:
first assignment of error, CITGO argues that the six non-CRC
(Calcasieu Refining Company) Plaintiffs did not prove
causation. CITGO argues that Plaintiffs failed to present
expert testimony or other objective evidence that they were
exposed to chemicals released by CITGO and that the alleged
exposure was the cause of their symptoms. Additionally, CITGO
argues that Dr. Steve Springer's medical causation
testimony does not establish exposure, but instead assumes
exposure. Finally, CITGO argues that Plaintiffs were in
locations where exposure to CITGO's slop oil was
implausible and that the evidence is undisputed that oil did
not arrive where Plaintiffs were located.
Arabie, 89 So.3d at 321, the supreme court explained
that "[t]he test for determining the causal relationship
between the tortious conduct and subsequent injuries is
whether the plaintiff proved through medical testimony that
it was more probable than not that subsequent injuries were
caused by the accident." Causation is a factual finding
subject to the manifest error standard of review.
Bradford, 237 So.3d 648. In Bradford, 237
So.3d at 659 (citations omitted), this court explained:
"Proof of causation in toxic tort cases has two
components, general and specific. 'General causation'
refers to whether a substance is capable of causing a
particular injury or condition in the general population,
while 'specific causation' refers to whether a
substance caused a particular individual's injury."
After a review of various cases, this court concluded that
the "cases only establish that expert testimony on
causation is required." Id.
suggests that this panel should not follow Bradford,
237 So.3d 648 in determining whether causation was
sufficiently proven, arguing that the Bradford
decision conflicts with earlier jurisprudence requiring
expert testimony in chemical exposure cases for both general
and specific causation. Additionally, CITGO argues that the
Bradford decision incorrectly finds that Dr.
Springer's expert testimony satisfied the specific
causation requirement because his medical opinions assumed
that exposure was established.
Bradford, general causation was established by Dr.
Barry Levy, the plaintiffs' occupational and
environmental health physician and epidemiologist expert. Dr.
Levy testified via prior deposition and trial testimony
regarding numerous epidemiology studies that involved people
working around or living in the vicinity of oil spills to
help explain the association between exposure and symptoms of
exposure. Mr. Frank Parker, the plaintiffs' industrial
hygienist expert, was also submitted as a general causation
expert. Mr. Parker testified regarding the toxicity of the
chemicals spilled, how they are released, and the symptoms
and health effects that occur in people who are exposed to
those chemicals. Finally, the Bradford court
reviewed CITGO's MSDS and significant events reports,
which it used to establish the parameters of the CITGO
release. To establish specific causation, the plaintiffs
submitted their own testimony as well as medical testimony
from Dr. Robert Looney and Dr. Steve Springer, who related
the plaintiffs' symptoms to slop oil exposure.
this court in Broussard v. Multi-Chem Group, LLC,
17-985, p. 34 (La.App. 3 Cir. 7/11/18), ___ So.3d ___,
reviewed evidence "in the face of limitations in the
available data" as Multi-Chem failed to conduct
sufficient air monitoring of a release following an explosion
at the Multi-Chem facility. This court reviewed expert
testimony regarding the amount and nature of the chemicals
stored at the facility; expert testimony regarding the
direction of the smoke plume generated by the explosion;
expert testimony that if a plaintiff smelled or tasted the
smoke or chemicals and thereafter suffered from certain
symptoms, those plaintiffs were likely exposed to the
chemicals; the plaintiffs' testimony regarding their
symptoms, location, and experience; and medical expert
testimony regarding causation for those plaintiffs who sought
medical treatment. Thereafter, this court affirmed the
finding of causation.
supreme court has denied writs on the Bradford
decision. We find no error with the Bradford
court's analysis of the jurisprudence on causation.
Therefore, reliance on Bradford is not misplaced.
Bradford and Multi-Chem, Plaintiffs in this
case provided expert testimony establishing general causation
and provided medical testimony establishing specific
causation. Furthermore, each Plaintiff testified regarding
when they were exposed to the slop oil and their
contemporaneous or near-contemporaneous symptoms, which are
consistent with those expected from slop oil exposure, as
Plaintiffs' experts previously testified.
Parker testified regarding general causation and exposure
through his prior trial testimony, depositions, and reports.
He testified regarding how far the slop oil and wastewater
traveled, the hazardous nature of the chemicals in the slop
oil, and the procedures that CITGO should have implemented at
the time of the release. Although Mr. Parker issued a report
dated December 6, 2016, discussing his opinions regarding the
CRC plaintiffs, he did not address the non-CRC Plaintiffs at
issue on appeal.
Parker did not specifically opine on Plaintiffs'
locations in this case. However, Mr. Parker's April 28,
2016 deposition, taken in lieu of live testimony for the
Bradford case, was admitted into evidence. In the
Bradford deposition, Mr. Parker agreed that it took
approximately two days for an oil sheen to reach CRC, which
was roughly two to two and a half miles south of CITGO, and
that heavier parts arrived sometime around June 23, 2006.
Additionally, Mr. Parker agreed that he previously opined
that oil product reached Talens Marine, roughly four to four
and a half miles south of CITGO, several days after the
release. He also recalled that the oil remained around CRC
for three to four weeks. Furthermore, although pressed by
defense counsel, Mr. Parker would not give an opinion
regarding when the oil travelled beyond the mouth of the
Indian Marias. He did admit, based on the documents in the
record at the time of his deposition, that he did not see any
evidence that slop oil migrated north of the I-210 bridge.
However, it was also Mr. Parker's understanding that
CITGO controlled the monitoring of the release, what to
monitor, and what information was given out regarding the
reviewing a colored map showing the different degrees of oil
found in the area, Mr. Parker noted that, as of July 3, 2006,
there was moderate oil on the east side of the I-210 bridge
as well as moderate oil at Prien Lake. However, he was unable
to form an opinion regarding when the oil reached these
locations because he had not seen any documents reporting
Mr. Parker's report written for the Cormier
trial, and admitted into evidence in this case, noted that no
waste oil from CITGO was reported in the I-210 area or Big
Lake area, but he also clarified that he did not doubt the
plaintiffs' reports of smelling an odor or experiencing
symptoms consistent with slop oil exposure. Instead, he could
not provide an opinion concerning the significance of their
exposure at that time.
Parker also opined on slop oil's composition, toxicity,
and characteristics during his April 28, 2016
Bradford deposition. Mr. Parker explained that slop
oil is a complex mixture of chemicals without an exposure
standard. CITGO recommended fresh air breathing protection if
there was any potential exposure to slop oil. Importantly, he
explained that when you smell benzene, you have been
overexposed. Specifically, he stated:
Q. And if you smell benzene, you're overexposed; right?
A. Yes, no question about that.
Parker further likened how benzene reacts in slop oil to
sugar in iced tea; it does not become absorbed into the water
but instead still exists as benzene. Therefore, when the
water is exposed or disturbed, the benzene will start to
"evolve off of the water" and droplets of mist
containing the chemicals are released anew. Mr. Parker also
explained that slop oil would have the sheen people typically
relate to oil in water, but it would also appear as a mousse,
which is a mixture of the slop oil, water, and air.
Furthermore, due to ...