JOSHUA L. ADAMS, ET AL.
UNION PACIFIC RAILROAD COMPANY, ET AL.
FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST.
LANDRY, NO. 14-C-3165-B HONORABLE A. GERARD CASWELL, DISTRICT
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
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
A. Pecoraro Grant F. Freeman Anna M. Grand COUNSEL FOR
DEFENDANT/APPELLANT: Union Pacific Railroad Company
Blayne Honeycutt Colt J. Fore Hannah Honeycutt Calandro
Fayard & Honeycutt COUNSEL FOR PLAINTIFF/APPELLEE:
composed of D. Kent Savoie, Candyce G. Perret, and Jonathan
W. Perry, Judges.
CANDYCE G. PERRET JUDGE
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.
AND PROCEDURAL BACKGROUND:
August 4, 2013, a train derailed near Lawtell, Louisiana.
Twenty-six railcars 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.
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.
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. The cases were not consolidated and,
therefore, each plaintiff's case was tried separately and
resulted in separate judgments.
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
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
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
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
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
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
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.
case, the trial judge sat as the trier of fact. 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).
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.
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.
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; ...