United States District Court, E.D. Louisiana
DOROTHY GAIL COLLETT, ET AL.
WEYERHAEUSER COMPANY, ET AL.
ORDER & REASONS
E. FALLON U.S. DISTRICT COURT JUDGE
the Court are Defendant Weyerhaeuser Company's Motions
for Summary Judgment. R. Docs. 21, 28. Plaintiff Dorothy Gail
Collett opposes the motion relating to her case, R. Doc. 40,
and Plaintiff Joshua Collett opposes the motion relating to
his case, R. Doc. 41. Defendant Weyerhaeuser Company filed a
reply. R. Doc. 48.
Dorothy Gail Collett and Joshua Collett
(“Plaintiffs”) brought suit against Defendants
Weyerhaeuser Company (“Weyerhaeuser”), Thornhill
Forestry Service, Inc. (“Thornhill”), and
Lafayette Insurance Company (“Lafayette
Insurance”) for damages they allegedly sustained from
chemical exposure at their residence. R. Doc. 24 at 1, 3; R.
Doc. 46 at 2- 3. Specifically, Plaintiffs allege they were
exposed to formaldehyde in the 1980s that left them with
severe immunological and autoimmune disorders and other
health problems, causing them to live in a highly controlled
environment to control their symptoms. R. Doc. 24 at 2; R.
Doc. 46 at 2-3. Because of this prior exposure and subsequent
health problems, Plaintiff Dorothy Gail Collett contends she
has communicated regularly with the Louisiana Department of
Transportation and Development and Weyerhaeuser to have these
entities avoid spraying chemicals in the vicinity of her
property. R. Doc. 24 at 2. Plaintiffs aver that for 23 years,
the Louisiana Department of Transportation has refrained from
spraying within a two-mile radius of the Collett household,
and for over 18 years, the local Weyerhaeuser office also
avoided spraying chemicals within two miles of her property.
R. Doc. 24 at 3; R. Doc. 46 at 2. However, Plaintiffs allege
that on July 6, 2018, without any warning, employees and/or
contractors of Weyerhaeuser sprayed multiple chemicals in
close proximity to the Collett residence. R. Doc. 24 at 3; R.
Doc. 46 at 3. Plaintiffs further contend the Thornhill crew
were approached to stop spraying the chemicals by various
entities, but they refused to do so, and the Thornhill crew
returned again the following day and continued spraying. R.
Doc. 24 at 3; R. Doc. 46 at 3.
allege the spraying led to chemical exposure that caused
multiple, devastating illnesses to Plaintiff Dorothy Gail
Collett and aggravated preexisting conditions in Plaintiff
Joshua Collett that have required medical treatment. R. Doc.
24 at 3; R. Doc. 46 at 3. Plaintiffs contend Defendants'
acts and omissions amount to negligence, gross negligence,
and violations of state statutes and regulations. R. Doc. 24
at 4; R. Doc. 46 at 3-4. Plaintiffs assert they have suffered
and continue to suffer severe physical injury, mental anguish
and financial loss, including the following: (1) severe
aggravation of immunological and allergic health problems;
(2) fear of severe and continuing injury, cancer and other
ailments, including potential death, as a result of the
chemical exposure; (3) loss of enjoyment of life; (4)
Plaintiff Dorothy Gail Collett's displacement from her
home during a period of cleaning and decontamination of the
property; (5) an increase in past, present and future
medical, living and rehabilitation expenses, and (6) other
damages to be proven at trial. R. Doc. 24 at 5; R. Doc. 46 at
4-5. Plaintiffs seek damages, a preliminary injunction
prohibiting spraying of chemicals within a 2-mile radius of
the Collett property during the pendency of this action, a
permanent injunction prohibiting the spraying of chemicals
within a 2- mile radius of the Collett property, and court
costs, expert witness fees, attorney's fees and any other
costs. R. Doc. 24 at 6-7; R. Doc. 46 at 6.
denies the allegations and presents numerous affirmative
defenses, including but not limited to the following:
Plaintiffs' Petition fails to state a claim upon which
relief can be granted; Plaintiffs' claims are barred by
the applicable prescriptive periods or, alternatively, by the
doctrine of laches; any injuries or damages to Plaintiffs
were caused or contributed by independent, intervening or
superseding acts or omissions of others for whose acts
Weyerhaeuser has no liability; any injuries or damages to
Plaintiffs were caused, solely or in part, by Plaintiffs'
own negligence or contributory negligence; Plaintiffs failed
to exhaust administrative remedies; Plaintiffs' claims
are barred by the doctrine of waiver and estoppel; and
Plaintiffs failed to mitigate damages. R. Docs. 30, 49.
Thornhill also denies the allegations and presents numerous
affirmative defenses, including but not limited to the
following: Plaintiffs' claims are prescribed and/or time
barred; Plaintiffs' damages are the result of
pre-existing conditions and/or causes unrelated to the
incident(s) related to this litigation; Thornhill was not
negligent and/or did not breach any duty owed to Plaintiffs;
and the incident(s) sued upon were caused due to the fault
and/or negligence of third parties. R. Doc. 19.
these two motions, Weyerhaeuser moves for summary judgment
against both Plaintiffs, seeking a full dismissal with
prejudice of all claims by Plaintiffs. R. Doc. 21 at 1; R.
Doc. 28 at 1. Specifically, Weyerhaeuser argues there is no
genuine issue of material fact and it is entitled to judgment
in its favor as a matter of law for the following reasons:
(1) “Plaintiffs' claims of an ‘oral
promise' by Weyerhaeuser never to apply any chemicals
within a two-mile radius of Plaintiff[s'] residence are
unenforceable as a matter of law because they would impose a
negative servitude of unlimited duration, and Louisiana law
requires such servitudes to be in writing to be
enforceable” and (2) “Plaintiff[s'] claims
against Weyerhaeuser sounding in negligence fail because
Weyerhaeuser hired an independent contractor, Thornhill . . .
to perform the work, and Weyerhaeuser is not individually or
solidarily liable for the herbicide application at
issue.” R. Doc. 21 at 1; R. Doc. 28 at 1. For the
latter argument, Weyerhaeuser avers it informed Thornhill of
the presence of a “sensitive neighbor” and even
if Thornhill did act negligently, Weyerhaeuser is not liable
for any negligent acts of its independent contractor as a
matter of Louisiana law. R. Doc. 21-2 at 1; R. Doc. 28-2 at
1. Moreover, Weyerhaeuser contends Plaintiffs' attempt to
skirt Louisiana's independent contractor law fails
because herbicide application is not an ultrahazardous
activity. R. Doc. 21-2 at 2; R. Doc. 28-2 at 1-2.
Weyerhaeuser thus argues Plaintiffs' claims against it
must be dismissed. R. Doc. 21-2 at 2; R. Doc. 28-2 at 2.
opposition, Plaintiffs alleges Weyerhaeuser's motions for
summary judgment suffer from numerous defects, each of which
provide grounds for denial of the motions. R. Doc. 40 at 1;
R. Doc. 41 at 1. First, Plaintiffs contend Weyerhaeuser filed
the motions prematurely and without affording Plaintiffs the
opportunity to engage in “adequate discovery.” R.
Doc. 40 at 1; R. Doc. 41 at 1. Second, Plaintiffs argue
Weyerhaeuser's motions provide an “overly limited,
distorted version of the legal underpinnings of this action,
” R. Doc. 40 at 1; R. Doc. 41 at 1-2, meaning that
Plaintiffs believe the facts pleaded in their petitions give
rise to broader legal theories than the ones Weyerhaeuser
references in its motions, R. Doc. 40 at 6; R. Doc. 41 at 7.
Finally, Plaintiffs assert Weyerhaeuser “presents an
incomplete and distorted factual picture, portions of which
are inadmissible.” R. Doc. 40 at 1; R. Doc. 41 at 2.
reply, Weyerhaeuser reiterates that it is entitled to summary
judgment because Plaintiffs' claims are barred as a
matter of law, as Plaintiffs have conceded there was no
written agreement between the parties, have conceded there
was no promise about not spraying in a “two-mile
radius, ” have effectively conceded that Weyerhaeuser
never relinquished the right to have its timberlands treated
with herbicide, and have offered no evidence to rebut the
fact that Weyerhaeuser did not perform any spraying
activities. R. Doc. 48 at 1. Moreover, Weyerhaeuser also
emphasizes that Plaintiffs have not rebutted the fact that it
hired an independent contractor- Thornhill-to conduct the
spraying and Weyerhaeuser alerted Thornhill to the existence
of a “sensitive neighbor” nearby. R. Doc. 48 at
1-2. Finally, Weyerhaeuser argues Plaintiffs' attempts to
insert a nuisance claim under Civil Code Article 667 are
improper because there is no mention of any nuisance claim in
any of the Original or Amended Petitions and the deadline for
amending the Petitions has passed. R. Doc. 48 at 6.
judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56(c)). When ruling on a motion for summary
judgment, a court may not resolve credibility issues or weigh
evidence. See Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.
2008); Int'l Shortstop, Inc. v. Rally's
Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden of “informing the district court of
the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 322. “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which the party will bear the burden
of proof at trial.” Id. The court must find
“[a] factual dispute [to be] ‘genuine' if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party [and a] fact [to be]
‘material' if it might affect the outcome of the
suit under the governing substantive law.” Beck v.
Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). Moreover, the court must assess the
evidence and “review the facts drawing all inferences
most favorable to the party opposing the motion.”
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