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Adams v. Union Pacific Railroad Co.

Court of Appeals of Louisiana, Third Circuit

May 29, 2019

JOSHUA L. ADAMS, ET AL.
v.
UNION PACIFIC RAILROAD COMPANY, ET AL.

          APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 14-C-3165-B HONORABLE A. GERARD CASWELL, DISTRICT JUDGE

          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 PLAINTIFFS/APPELLEES: Sheryl Bobb, individually and on behalf of Alyiah Bobb

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

          CANDYCE G. PERRET JUDGE

         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 Plaintiffs, Sheryl Bobb, individually and on behalf of Alyiah Bobb, damages in the amount of $200.00. For the following reasons, we reverse.

         FACTUAL AND PROCEDURAL BACKGROUND:

         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 Plaintiffs, 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.

         Union Pacific presented its case on June 27-28, 2017, which testimony and evidence was carried forward pursuant to a stipulation of all counsel. Ms. Bobb presented her case-in-chief on August 14, 2017. The Special Master issued his report and recommendation on Ms. Bobb's case on October 20, 2017. The Special Master's report summarized Ms. Bobb's testimony as follows (citations to the record omitted):

At the time of the derailment, Sheryl Bobb was living at 107 Sunny Oak Trail, Carencro, Louisiana with her adult son, Martin Bobb Jr., and five-year-old daughter, Alyiah Bobb. At the time of the derailment, she and her daughter were at a family gathering at her mother's house at 475 Berry Road in Lawtell. . . . She heard a loud noise when the derailment occurred. She testified that she smelled something as well, but that she did not notice the smell right away. She was informed by some residents who live near her mother's house that a derailment had occurred. She did not evacuate from her mother's house but instead stayed there overnight with her minor daughter as she typically stayed there when she had work the next day so that she could spend quality time with her daughter. The only physical symptoms she suffered were watery and red eyes for a couple of hours. She used Visine and Benadryl to treat this. . . .
Ms. Bobb testified that her daughter, Alyiah Bobb, complained of irritated eyes and burning or itchy throat as a result of the derailment. She gave Alyiah Visine and Benadryl to treat this. She testified that her daughter did not have any fear or fright.
On cross-examination, Ms. Bobb testified that she never brought her daughter, Alyiah, to a doctor for her physical complaints.
Ms. Bobb testified that she also never treated with a physician for her physical complaints. . . .
Specifically, Ms. Bobb testified regarding her damages:
Q. Did you suffer any inconvenience as a result of the derailment?
A. As far as, like, loss of work you're trying to - - if that's what you're asking?
Q. Any inconvenience?
A. No, I would say.
Q. Did you suffer any fear and fright as a result of the derailment?
A. Well, we had a couple - - well, as a child, we had something that happened in that incident with the railroad track. One of the priests that was well-known had got hit; he was crossing the railroad track. I mean, it just brings back ...

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