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Arceneaux v. CITGO Petroleum Corp.

Court of Appeals of Louisiana, Third Circuit

January 9, 2019

LEON J. ARCENEAUX, ET AL.
v.
CITGO PETROLEUM CORPORATION, ET AL.

          APPEAL 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

          Robert E. Landry 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.

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

          Wells 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.

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

          Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET, JUDGE

         This 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.

         FACTS AND PROCEDURAL HISTORY:

         On June 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 follows:

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.

         CITGO's 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.

         CITGO 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 oil.

         At 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.

         On 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:[1]

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).

         CITGO 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 CITGO's chemicals.
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.

         DISCUSSION:

         On 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 erroneous." Id.

         Assignment of Error Number One:

         In its 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.

         In 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.

         CITGO 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.

         In 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.

         Similarly, this court in Broussard v. Multi-Chem Group, LLC, 17-985, p. 34 (La.App. 3 Cir. 7/11/18), ___ So.3d ___, [2] 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.

         The 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.

         As in 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.

         Mr. 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.

         Mr. 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 release.

         Upon 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 that information.

         Additionally, 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.[3]

         Mr. 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.

         Mr. 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 ...


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