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Adams v. Union Pacific Railroad Co.

Court of Appeals of Louisiana, Third Circuit

May 29, 2019



          Kenneth Warren DeJean Attorney at Law SPECIAL MASTER William H. Howard, III Alissa A. Allison Kathlyn G. Perez Laura E. Carlisle Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C. COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          H. Alston Johnson, III Steven J. Levine Paul LeBlanc John B. Shortess Phelps Dunbar, LLP COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          Antonio M. Clayton Clayton, Frugé & Ward COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          Elena A. Pecoraro Grant F. Freeman Anna M. Grand COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          D. Blayne Honeycutt Colt J. Fore Hannah Honeycutt Calandro Fayard & Honeycutt COUNSEL FOR PLAINTIFF/APPELLEE: Charlene Brown

          Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.


         This case is one of several stemming from a train derailment in Lawtell, Louisiana ("Lawtell Derailment") and those injuries suffered by members of the surrounding community. Defendant-Appellant Union Pacific Railroad Company ("Union Pacific") appeals the trial court judgment that awarded Plaintiff, Charlene Brown, damages in the amount of $6, 400.00. For the following reasons, we amend the award to $2, 200.00 and affirm as amended.


         On August 4, 2013, a train derailed near Lawtell, Louisiana. Twenty-six railcars[1] derailed, causing lube oil, dodecanol, and sodium hydroxide solution (also referred to as sulfidic caustic solution), to spill from three of the derailed train cars onto the land and into a nearby drainage ditch. The other derailed cars also contained chemical substances, including vinyl chloride. The derailment prompted a one-mile radius evacuation zone that remained in effect until August 7, 2013. Many of those evacuated were directed to Evangeline Downs and were housed there at the hotel for several days.

         Multiple residents, including Plaintiff, Charlene Brown, filed suit on July 11, 2014, against Union Pacific. In the April 1, 2016 case management order, all cases pending in the Louisiana Twenty-Seventh Judicial District Court related to the Lawtell Derailment were consolidated into one division for the purpose of determining liability. Union Pacific stipulated to liability on September 12, 2016, but reserved its causation and damages defenses.

         On February 8, 2017, the trial court appointed Kenneth DeJean as Special Master to preside over the causation/damages trials of the pending claims pursuant to La.R.S. 13:4165.[2] The cases were not consolidated and, therefore, each plaintiff's case was tried separately and resulted in separate judgments.

         Ms. Brown presented her case-in-chief on June 27, 2017. Union Pacific presented its case on June 27-28, 2017. The Special Master issued his report and recommendation on Ms. Brown's case on October 11, 2017. The Special Master's report summarized Ms. Brown's testimony as follows (citations to the record omitted):

Charlene Brown testified that at the time of the derailment, she was living at 119 McClendon Road, Opelousas, Louisiana, 70570 with her daughter, Lillian Frederick, and John Simien, Sr. At the time of the derailment, she was in her house and heard a loud noise. She then grabbed her shopping list off her refrigerator, got in her car and left her house to head to Opelousas to run some errands and as she was driving away, she saw the derailment. She testified that she panicked when she saw the derailment. She testified that when she drove by the derailment site on the date of the derailment, she saw "like a fog." She testified that when she was leaving her house after the derailment she could smell something. She said it smelled like acid or something burning and her eyes started burning and got red. As a result, she bought and applied some Visine in Opelousas which made the irritation to her eyes subside. She testified that her eyes burned for about 10-15 minutes. She testified that after the derailment, she began suffering from sinus infections.
She was evacuated for three days as a result of the derailment. At the time she left home, after the derailment had occurred, she did not have her heart medicine with her. After she was evacuated, she called John Simien, Sr. and asked him to pick up Lillian from their house and to pick up her heart medicine. She now always keeps her heart medicine on her body. Besides her heart medicine, at the time she was told by the state trooper that she could not go back home, she also did not have her other medications, including her anti-depressants.
She testified that the cleanup process which she witnessed increased her anxiety and depression. She testified that the clean up after the derailment was extensive. She said the derailment caused her to have flashbacks to when her husband was hit by a train in Palmetto, Louisiana in 1996. She testified that before the derailment, she was suffering from anxiety and post-traumatic stress disorder. She testified that she used to drink the water but does not anymore because "it's still brown by times."
She testified that the derailment increased her anxiety substantially and that she was inconvenienced as a result of the derailment. She testified that she had problems before the derailment but they got worse after the derailment. She testified that her daughter, Lillian, was sleeping when she left the house after the derailment. She testified in her deposition that she was not concerned with her daughter, Lillian, at the time of the derailment because Lillian was in college. This was addressed at trial during cross-examination[.][3]
She testified that she had a prior history, five years before the derailment, of taking anti-depressants and anti-anxiety medication. . . . She testified that although she was concerned about the water, she never had it tested or reached out to anyone in Lawtell about the quality of the water. She testified that when she went back home after the evacuation order was lifted, a representative of DEQ tested her home and said it was safe to enter.
She testified that she did not specifically treat with a counselor in relation to the derailment. . . .
She testified that she did not see a doctor in relation to the derailment and no doctor has ever told her that any of her problems are related to the derailment. . . . Ms. Brown testified that after the derailment, her anxiety issues increased and she experienced physical symptoms such as trouble eating, trouble sleeping and weight loss and that these symptoms still exist today.
She drove into the town of Opelousas after the derailment occurred and called her daughter who was at home and told her about the derailment and told her to stay home. When she tried to go back home, she was then informed by a state trooper that she could not go back into Lawtell and that she had to go to the shelter at Delta, which she did. She remained at the shelter that night until they transferred her to Evangeline Downs around 10:30 p.m. on the night of the derailment.

         The Special Master recommended "that the District Court find that causation and damages has been established by the plaintiff, Charlene Brown" and recommended that the trial court award Ms. Brown $5, 000.00 for "Evacuation/Inconvenience[, ]" $1, 200.00 for "Mental Anguish[, ]" and $200.00 for "Pain and Suffering" for a total amount of $6, 400.00 in general damages.

         Union Pacific objected to the recommendation alleging that the court should conduct a de novo review, asserting that the Special Master erred in finding causation based on Ms. Brown's self-diagnosed symptoms and that Louisiana law does not recognize a cause of action for mental anguish when there is no risk of actual harm or for negligent infliction of mere inconvenience in the absence of physical injury or property damage.

         After a hearing on July 27, 2018, regarding Union Pacific's objection to the Special Master's recommendation, the trial court affirmed the Special Master's recommendation in favor of Ms. Brown, according to La.R.S. 13:4165C(3); awarded $6, 400.00 plus judicial interest from the date the Petition was filed, July 11, 2014, until paid; and cast all costs, including the Special Master's fees, against Union Pacific. The trial court awarded Ms. Brown a lump sum in the amount of $6, 400.00, without specifying what damages were included in the award. The trial court's judgment was signed September 6, 2018, and was designated as final and immediately appealable.

         On appeal, Union Pacific assigns four assignments of error:

1. The trial court erred in awarding damages to Charlene Brown for physical injuries, absent any evidence showing that the alleged damages were caused by the Lawtell Derailment or exposure to chemicals released during the Lawtell Derailment.
2. The trial court erred in awarding damages to Charlene Brown for mental anguish, absent any accompanying physical injury or property damage.
3. The trial court erred in awarding damages to Charlene Brown based on negligent infliction of inconvenience, absent any accompanying physical injury or property damage.
4. The trial court abused its discretion by awarding $5, 000.00 for inconvenience.


         In this case, the trial judge sat as the trier of fact.[4] On appeal, factual findings are not set aside absent manifest error or unless the trial court was clearly wrong. Stobart v. State, Dep't of Transp. and Dev., 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 v. CITGO Petroleum Corp., 10-2605, p. 19 (La. 3/13/12), 89 So.3d 307, 312. Thus, "when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous." Id. This court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. See generally Housely v. Cerise, 579 So.2d 973 (La.1991).

         Further, the trial court has much discretion in assessing general damages, and an appellate court should not modify the award unless it is "beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances[.]" Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994). Only if the appellate court finds an abuse of discretion may it examine prior awards of general damages to determine the amount the trier of fact reasonably could award. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). "In instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court." Id. at 1340.


         Before addressing the merits of Union Pacific's assignments of error, it is worth noting that a lump sum judgment of damages, as we have in this case, "is presumed to award all items of damages claimed, and the appellant's burden of proving the fact finder clearly abused its great discretion is more difficult than usual because the intention to award a specific amount for any particular item is not readily ascertainable." Boutte v. Nissan Motor Corp., 94-1470, p. 12 (La.App. 3 Cir. 9/13/95), 663 So.2d 154, 161.

         In this case, Ms. Brown's petition requests the following damages: costs of medical treatment; past, present, and future lost wages; past, present, and future mental anguish; loss of enjoyment of life; inconvenience; nuisance; medical monitoring expenses; contamination to property; trespass; ...

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