PETER AND LAURIE YAUKEY, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, PEIRSON YAUKEY AND AUSTIN YAUKEY
HENRY BALLARD AND MARIAN BALLARD
APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FO URTH
JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF
LOUISIANA NO. 752-372, DIVISION "P" HONORABLE LEE
V. FAULKNER, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/RESPONDENT, PETER AND LAURIE YAUKEY,
INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, PEIRSON
YAUKEY AND AUSTIN YAUKEY Peter Yaukey and Laurie Yaukey
COUNSEL FOR DEFENDANT/RELATOR, MARIAN BALLARD AND SOUTHERN
FIDELITY INSURANCE COMPANY Matthew D. Monson Rachel L.
Flarity Kevin P. Riche'
composed of Judges Susan M. Chehardy, Jude G. Gravois, and
Marc E. Johnson
E. JOHNSON JUDGE
Marian Ballard and Southern Fidelity Insurance Co., seek this
Court's supervisory review of the trial court's June
21, 2018 denial of their motion for summary judgment. We find
that Defendants are entitled to summary judgment as a matter
of law and, therefore, reverse the trial court's ruling,
grant summary judgment in favor of Defendants, and dismiss
Plaintiffs' claims against Defendants with
August 13, 2015, Plaintiffs, Laurie Yaukey, individually, and
Peter Yaukey, on behalf of their children Austin and Peirson,
filed suit seeking damages for alleged mold exposure at a
property located on Oak Avenue in Harahan that was leased to
Plaintiffs by Ms. Ballard beginning in June 2014. Plaintiffs
alleged that the mold resulted from water leaking inside the
premises over a period of time, which they discovered in May
2015 after a mold inspection. Plaintiffs asserted they have
suffered various medical conditions as a result of the mold
January 30, 2018, Defendants filed a motion for summary
judgment, or alternatively a motion for partial summary
judgment, asserting that Plaintiffs could not prove that the
mold exposure was of a dose sufficient to cause health
effects (general causation) and that there was a sufficient
causative link between Plaintiffs' alleged health
problems and the specific type of mold found on the property
(specific causation). Defendants maintained that Plaintiffs
did not have the required medical expert testimony to
establish both general and specific causation.
attached numerous exhibits in support of their motion for
summary judgment, including the partial depositions of Ms.
Yaukey, Peirson, Austin and various treating physicians,
voluminous medical records, and an affidavit of their expert
environmental scientist/microbiologist, William Feaheny,
along with his expert report attached. These exhibits
demonstrate that Ms. Yaukey has complained of mold exposure
since Hurricane Katrina in three different properties,
including the property involved in the current litigation.
Additionally, Ms. Yaukey has an extensive medical history
pre-dating the current alleged mold exposure, including
abnormal vaginal bleeding, anemia, anxiety, back injury, back
pain, chest pain, chronic constipation, chronic fatigue
syndrome, depression, dizziness, fibromyalgia, headache,
hyperthyroidism, irregular heartbeat, migraine, neck injury,
neck pain, neurological disorder, neuropathy, numbness,
shortness of breath, tingling, umbilical hernia, urinary
incontinence, urinary tract infection and varicose veins. In
early 2016, after moving out of the property at issue, she
was further diagnosed with breast cancer.
to his affidavit and attached report, Defendants' expert,
Mr. Feaheny, President and Owner of ATA Air Testing
Associates, LLC, conducted an inspection of the Oak Avenue
home on September 22, 2015. Upon inspection, he did not find
any water damage or mold growth. He conducted a moisture
inspection and found no active moisture concerns. He further
found that the indoor airborne fungal ecology within the
living areas sampled was within normal parameters.
to the various deposition excerpts attached to
Defendants' motion, none of Ms. Yaukey's treating
physicians, including Dr. Monty Glorioso, Dr. Newland Worley,
Dr. Mahmoud Sarmini, and Dr. Kashmir Rai, relate any of her
medical conditions to mold exposure, despite her reported
history of mold exposure to her doctors.
opposition to the motion for summary judgment, Plaintiffs
relied on the affidavit of their expert, Brent Driskill,
owner of Driskill Environmental Consultants, LLC, his
attached microbial assessment report, and the medical records
of Dr. Donald Dennis, an ENT in Atlanta, Georgia. According
to Mr. Driskill's report, he inspected the Oak Avenue
property on May 5, 2015 for the purpose of determining the
extent of visible and/or air borne fungal existence in the
home. His inspection revealed elevated levels of Cladosporium
and Trichoderma molds in a tape-lift sample taken from the
interior air conditioner. The air sample analysis from the
master bedroom was within the normal mold ecology levels as
compared to the outdoor air sample. And, the air sample
analysis from the children's bedroom revealed that the
indoor air had lower mold spore levels than the outdoor air
and was within the normal mold ecology levels.
Dennis' medical records indicate that Ms. Yaukey reported
three mold exposures beginning with Hurricane Katrina. Dr.
Dennis' records note that Ms. Yaukey "has had
significant toxic mold exposure" and specifically notes
that she was exposed to cladosporium and trichoderma. Dr.
Dennis' deposition has yet to be taken because of a
dispute over his fee. The records seem to indicate that Ms.
Yaukey tested negative for the various allergens related to
mold exposure, which is consistent with the findings of her
local treating physicians. While Dr. Dennis' medical
records show that Ms. Yaukey had sinus inflammation or
chronic sinusitis, nowhere in his records does he indicate
that her medical condition, or the medical conditions of
Peirson or Austin, were caused by mold exposure.
hearing on the motion for summary judgment, the trial court
denied the motion by written judgment on June 21, 2018. In
its reasons for judgment, the trial court indicated that
there were genuine issues of material fact. ...