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Allison v. Citgo Petroleum Corp.

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

WILVON ALLISON, ET AL.
v.
CITGO PETROLEUM CORPORATION AND R & R CONSTRUCTION, INC.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-2925 HONORABLE SHARON D. WILSON, DISTRICT JUDGE.

          Robert E. Landry Scofield, Gerard, Pohorelsky, Gallaugher & Landry COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

          Craig Isenberg Joshua O. Cox Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C. COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

          Marshall Joseph Simien, Jr. Simien Law Firm COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

          Wells T. Watson Jake D. Buford Bagget, McCall, Burgess, Watson & Gaughan COUNSEL FOR PLAINTIFFS/APPELLEES: Daniel Mayes Darrin Kenny Kevin D. Lewis Frank Garland Weathersby Jimmy Guillory Tommie David Schexnayder Terrell D. Thierry James Bellard Wilvon Allison James Raymond Joseph Rowe Wilbert Richard, Jr. Patrick O. Mouton

          Richard E. Wilson Somer G. Brown COUNSEL FOR PLAINTIFFS/APPELLEES: Daniel Mayes Darrin Kenny Kevin D. Lewis Frank Garland Weathersby Jimmy Guillory Tommie David Schexnayder Terrell D. Thierry James Bellard Wilvon Allison James Raymond Joseph Rowe Wilbert Richard, Jr. Patrick O. Mouton

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE.

         On appeal, CITGO Petroleum Corporation ("CITGO") challenges the trial court's personal injury awards to the following twelve plaintiffs: Wilvon Allison, James Bellard, James (Jimmy) Guillory, Darrin Kenny, Kevin Lewis, Daniel Mayes, Patrick Mouton, Wilbert Richard, Jr., James Rowe, Tommie Schexnayder, Terrell Thierry, and Frank Weathersby (collectively referred to as the "Plaintiffs"). For the following reasons, we amend the trial court judgment to reduce Mr. Mayes' medical expenses associated with his exposure from $614.00 to $200.00 and, in all other respects, we affirm the trial court judgment as amended.

         FACTS AND PROCEDURAL HISTORY:

         On June 19, 2006, CITGO had two tremendous releases from its facility, an air release and a slop oil release. In Bradford v. CITGO Petroleum Corp., 17-296, pp. 2-3 (La.App. 3 Cir. 1/10/18), 237 So.3d 648, 657-58, writ denied, 18-272 (La. 5/11/18), 241 So.3d 314, (footnote omitted), this court summarized the operative facts as follows:

On June 19, 2006, following a local flash flood, CITGO's Calcasieu Parish Refinery released four million gallons of slop oil and seventeen million gallons of wastewater into the Calcasieu River, contaminating over 100 miles of coastline with toxic liquids and mousse-like substances that emitted toxic fumes in addition to being toxic upon contact. The spill was the result of the failure and overflow of CITGO's closed-system, waste-water treatment unit. The overflow was described as a catastrophic event and an environmental disaster by CITGO's own representatives. The clean-up of the spill lasted for approximately six months, from June to December, 2006.
CITGO's Material Safety Data Sheet (MSDS) on slop oil from March 2006 ranks it as a chronic health and fire hazard. The MSDS states that the oil is extremely flammable and poisonous, and it contains Hydrogen Sulfide (H2S) gas which may be fatal if inhaled. It can enter the lungs and cause damage. It is harmful or fatal if swallowed. Slop oil contains above di minimus levels of benzene, a known cancer hazard which can cause leukemia and other blood disorders, H2S, xylene, toluene, n-hexane, and ethylbenzene. Benzene, toluene, and xylene are volatile organic compounds (VOCs). VOCs are chemicals that evaporate from a solid or liquid form at room temperature; long-term exposure can cause damage to the liver, kidneys, and central nervous system; short-term exposure can cause eye and respiratory tract irritation, headaches, dizziness, visual disorders, fatigue, loss of coordination, allergic skin reactions, nausea, and memory impairment. Pursuant to CITGO's MSDS, slop oil also contains hexane, heptane, octanes, nonane, and trimethylbenzenes. Slop oil and/or its components are listed on the Toxic Substances Control Act (TSCA) inventory.
Also on June 19, 2006, CITGO's steam lines became submerged and the facility released (H2S) and sulfur dioxide (S02) from sixty stacks in illegal concentrations for a full day, approximately twelve hours. The wind was blowing from the southeast toward the north and northwest, then calming for parts of the day, allowing the toxic emissions to release into the surrounding community.

         CITGO's Material Safety Data Sheet ("MSDS") for slop oil, dated March 29, 2006, indicates that slop oil is amber to dark amber in color and has an odor similar to rotten eggs. Additionally, the MSDS states that slop oil is "Extremely Flammable and Poisonous" and that it "Contains Benzene - Cancer Hazard. Can cause leukemia and other blood disorders." The MSDS explains that if inhaled, "the gas or vapor may cause severe nose, throat, respiratory tract, and lung irritation . . . . Symptoms are characterized by coughing, choking, or shortness of breath. Breathing this material may cause central nervous system depression with symptoms including nausea, headache, dizziness, fatigue, drowsiness, or unconsciousness." If it comes into contact with the eyes, "[t]his material can cause eye irritation with tearing, redness, or a stinging or burning feeling." The MSDS also explains that slop oil can cause skin irritation, "with redness, an itching or burning feeling, and swelling of the skin."

         The MSDS explains that CITGO's slop oil is typically composed of eleven chemicals and describes the different signs and symptoms of acute exposure through inhalation, eye contact, skin contact, and ingestion, as well as the chronic health effects, conditions that may be aggravated by exposure, target organs, and the carcinogenic potential.

         In an April 28, 2016 deposition, Mr. Frank Parker, the Plaintiffs' industrial hygienist expert, testified to the toxicity of the chemicals spilled, how they are released, and the symptoms and health effects that occur in people who are exposed to those chemicals. Mr. Parker explained that slop oil is a complex mixture of chemicals without an exposure standard and that by the time you smell benzene, you have been overexposed. Specifically, he stated:

Q. And if you smell benzene, you're overexposed; right?
A. Yes, no question about that.

         Mr. Parker noted that workers within the plant generally withstand more exposure than people in the community and that some people are more susceptible to certain chemicals than others.

         The Plaintiffs filed suit against CITGO on May 25, 2007. CITGO stipulated to fault and contested the issue of damages. The Plaintiffs at issue in this appeal worked at the CITGO Refinery on the day of the releases and during the clean-up following the slop oil spill. They assert injuries as a result of their exposure to the toxic chemicals in the slop oil and the air releases.

         A bench trial was held on October 29, 2018. At trial, the Plaintiffs testified to their injuries and their medical records were admitted into evidence. Dr. Steve Springer ("Dr. Springer") also testified on behalf of the Plaintiffs and found that, in his medical opinion, the Plaintiffs' symptoms resulted from their exposure to the releases in June 2006.

         On January 4, 2019 and February 26, 2019, the trial court ruled in favor of the Plaintiffs on causation and damages. In a judgment signed on March 6, 2019, the trial court awarded expert fees and judicial interest from the date of judicial demand. It also awarded damages to the Plaintiffs as follows:

Wilvon Allison was awarded $30, 961.88, which accounts for pain and suffering ($24, 000.00), mental anguish ($3, 500.00), loss of enjoyment of life ($3, 000.00), and medical expenses ($461.88).
James Bellard (deceased) was awarded $30, 200.00, which accounts for pain and suffering ($30, 000.00), and medical expenses ($200.00).
James (Jimmy) Guillory was awarded $32, 500.00, which accounts for pain and suffering ($20, 000.00), mental anguish and fear of future illness ($7, 500.00), and loss of enjoyment of life ($5, 000.00).
Darrin Kenny was awarded $45, 150.00, which accounts for pain and suffering ($30, 000.00), fear of future illness ($10, 000.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($150.00).
Kevin Lewis was awarded $45, 150.00, which accounts for pain and suffering ($35, 000.00), loss of enjoyment of life ($10, 000.00), and medical expenses ($150.00).
Daniel Mayes was awarded $50, 614.00, which accounts for pain and suffering ($40, 000.00), mental anguish ($5, 000.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($614.00).
Patrick Mouton was awarded $56, 086.00, which accounts for pain and suffering ($40, 000.00), fear of future illness ($10, 000.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($1, 086.00).
Wilbert Richard, Jr. was awarded $35, 150.00, which accounts for pain and suffering ($20, 000.00), fear of future illness ($10, 000.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($150.00).
James Rowe was awarded $35, 150.00, which accounts for pain and suffering ($20, 000.00), fear of future illness ($10, 000.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($150.00).
Tommie Schexnayder was awarded $40, 350.00, which accounts for pain and suffering ($25, 000.00), fear of future illness ($10, 000.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($350.00).
Terrell Thierry was awarded $50, 212.00, which accounts for pain and suffering ($35, 000.00), fear of future illness ($10, 00.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($212.00).
Frank Weathersby was awarded $60, 350.00, which accounts for pain and suffering ($45, 000.00), fear of future illness ($10, 00.00), loss of enjoyment of life ($5, 000.00), and medical expenses ($350.00).

         CITGO filed a motion for suspensive appeal, which the trial court granted. CITGO now appeals alleging the following two assignments of error:

1. The district court abused its discretion by copying verbatim the Plaintiffs' Pre-Trial Memorandum as its ruling specific to each plaintiff and awarding grossly excessive general damages, which were unsupported by the evidence and beyond that which a reasonable trier of fact could assess for the minor health effects alleged and admitted by plaintiffs.
2. The district court abused its discretion in awarding damages for loss of enjoyment of life and mental anguish to plaintiffs who provided no testimony that supported such claims.

         Because both assignments of error deal with the amounts awarded for general ...


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