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Collett v. Weyerhaeuser Co.

United States District Court, E.D. Louisiana

November 20, 2019

DOROTHY GAIL COLLETT, ET AL.
v.
WEYERHAEUSER COMPANY, ET AL.

         SECTION "L" (5)

          ORDER & REASONS

          ELDON E. FALLON U.S. DISTRICT COURT JUDGE

         Before 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.

         I. BACKGROUND

         Plaintiffs 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.

         Plaintiffs 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.

         Weyerhaeuser 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.

         II. PRESENT MOTION

         In 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.

         In 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.

         In 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.

         III. LEGAL STANDARD

         Summary 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).

         Under 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.” Reid v. State Farm ...


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