LeBeouf v. Evonik Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOAN LEBOUEF CIVIL ACTION

VERSUS No. 22-1523

EVONIK CORPORATION, ET AL. SECTION: “J”(3)

ORDER & REASONS

Before the Court are two Motions to Dismiss for Failure to State a Claim (Rec.

Docs. 4, 12) filed respectively by Defendants, Shell Oil Company (“Shell”) and Evonik

Corporation (“Evonik”; collectively, with Shell, “Defendants”) and oppositions (Rec.

Docs. 8, 13) filed by Plaintiff, Joan LeBouef (“Plaintiff”). Having considered the

motions and legal memoranda, the record, and the applicable law, the Court finds

that both motions should be DENIED.

FACTS AND PROCEDURAL BACKGROUND

This case arises out of alleged exposure to ethylene oxide (“EtO”) near a

petrochemical plant located in Reserve, Louisiana (“the facility”), owned and operated

by Defendants, Evonik and Shell. Shell owned and operated the facility from 1991

until 1999, and Evonik has owned and operated the facility since that time. Plaintiff

is a sixty-six-year-old woman, who resides within three miles of the facility. She was

diagnosed with breast cancer on June 2, 2010, allegedly caused by years of exposure

to EtO emitted by the facility. EtO is a colorless, odorless toxic emission that is a well-

known carcinogen.

Originally, this suit consisted of fourteen plaintiffs who all were Louisiana

residents who live within seven miles of the facility, and who either contracted cancer,

or had a spouse die from cancer, allegedly because of unknowing exposure to

dangerous levels of EtO emitted by the facility. On April 26, 2021, the original

plaintiffs filed suit in the Civil District Court for the Parish of St. John the Baptist,

alleging that inhalation of EtO emitted from the facility was a substantial factor in

causing plaintiffs’, or their spouses’, cancer. On June 4, 2021, Evonik removed the

case to federal court, and it was allotted to Judge Sarah Vance.

On November 5, and 9, 2021, respectively, defendants Shell and Evonik filed

motions to dismiss the original plaintiffs’ complaint under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. Both movants contended that plaintiffs’ claims against them

were time-barred, because suit was filed beyond expiration of the one-year

prescriptive period. Defendants additionally asserted that the claims must be

dismissed on the merits, because the plaintiffs did not state a claim for negligence,

battery, or nuisance under Louisiana law.

On May 27, 2022, Judge Vance granted Shell’s motion to dismiss without

prejudice on the grounds of prescription and the non-applicability of contra non

valentem and granted plaintiffs leave to amend their complaint to plead facts, specific

to each plaintiff, to support the application of contra non valentem after their dates

of diagnoses. Moreover, Judge Vance found that the plaintiffs had not stated a claim

for negligence under Louisiana law, because they had no specific standard of care

with which Evonik and Shell ought to have complied. Judge Vance granted in part

Evonik’s motion to dismiss without prejudice and granted plaintiffs leave to amend

their negligence allegations to articulate a specific duty of standard of care that the

defendants are alleged to have breached. Finally, Judge Vance severed the plaintiffs

into fourteen distinct civil actions.

Plaintiff’s, Joan LeBouef’s, case was allotted to this Court. She subsequently

filed an amended complaint pursuant to Judge Vance’s Order & Reasons, and Shell

and Evonik filed the instant motions to dismiss the amended complaint for failure to

state a claim.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient

facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible when the plaintiff pleads facts that allow the court to “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. The

factual allegations in the complaint “must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555. “[D]etailed factual allegations” are

not required, but the pleading must present “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. The court must

accept all well-pleaded facts as true and must draw all reasonable inferences in favor

of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

However, “‘conclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.’” Beavers v. Metro. Life Ins.

Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation omitted).

DISCUSSION

The three main questions before the court are 1) whether Plaintiff’s claims are

prescribed, 2) whether Plaintiff’s amended general negligence allegations articulate

a specific standard of care and breach of that standard, and 3) whether Plaintiff

properly stated a claim under Articles 667-669.

I. Prescription

First, Evonik contends that Plaintiffs’ claims are time-barred by Louisiana’s

one-year prescriptive period applicable to delictual actions. (Rec. Doc. 12-1, at 1).1 In

opposition, Plaintiff argues that the prescriptive period was suspended under the

doctrine of contra non valentem, and hence, her claims are not prescribed. (Rec. Doc.

13, at 5).

Article 3492 of the Louisiana Civil Code provides that “[d]elictual actions are

subject to a liberative prescription of one year.” La. Civ. Code art. 3492. This period

“commences to run from the day injury or damage is sustained.” Id.; see also Brown

v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th Cir. 1995) (quoting La. Civ. Code

art. 3492). “Damage is considered to have been sustained, within the meaning of the

article, only when it has manifested itself with sufficient certainty to support accrual

1 It is telling that Shell chose to not challenge the timeliness of Plaintiff’s claims nor applicability of

contra non valentem. In fact, in one of her former co-plaintiff’s case, Shell uses Plaintiff’s case as a

comparative example of when contra non valentem applies. Shell compares the former co-plaintiff,

Mr. Jack, who includes no allegations of communications with his doctor, with Plaintiff in this case,

who “discussed a potential cause of cancer with her physician and, after genetic testing, he told her it

was not caused by genetics. However, her physician did not offer any other possible explanations

despite her inquiries.” Jack v. Evonik Corp. et al., No. 22-1520, Rec. Doc. 12-1, at 9 n. 33.

of a cause of action.” Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993) (citing

McCray v. N.E. Ins. Co., 579 So. 2d 1156 (La. App. 2 Cir. 1991)).

Here, Plaintiff filed suit on April 26, 2021, which makes April 26, 2020 the

cutoff date required to render this suit timely. (Rec. Doc. 4-1, at 1). Plaintiff was

diagnosed with breast cancer on June 2, 2010, which significantly predates the cutoff

date. Accordingly, unless the one-year period was suspended or another exception

applies, all of Plaintiff’s claims are prescribed. Plaintiff does not dispute this

proposition, but she argues that the prescriptive period was suspended under the

doctrine of contra non valentem. (Rec. Docs. 8, at 4; 13, at 5).

Under Louisiana law, contra non valentem is a doctrine that tolls the statute

of limitations and is thus “an exception to the general rules of prescription.” Wimberly

v. Gatch, 635 So. 2d 206, 211 (La. 1994). This doctrine suspends the prescriptive

period under certain circumstances, including situations in which the cause of action

is not known or reasonably knowable by the plaintiff, even though his ignorance is

not induced by the defendant. Renfroe v. State ex rel. Dept. of Transp. & Dev., 809 So.

2d 947, 953 (La. 2002). But this exception, sometimes known as the “discovery rule,”

is available only in “exceptional circumstances.” Meggs v. Davis Mortuary Serv., Inc.,

301 So. 3d 1208, 1213 (La. App. 5 Cir. 2020) (quoting Renfroe, 809 So. 2d at 953).

Courts assessing the applicability of contra non valentem must focus on the

reasonableness of the tort victim’s action or inaction. See Griffin v. Kinberger, 507 So.

2d 821, 824 n.2 (La. 1987). As the Louisiana Supreme Court has explained:

Prescription will not begin to run at the earliest possible indication that

a plaintiff may have suffered some wrong. Prescription should not be

used to force a person who believes he may have been damaged in some

way to rush to file suit against all parties who might have caused that

damage. On the other hand, a plaintiff will be responsible to seek out

those whom he believes may be responsible for a specific injury.

Jordan v. Emp. Transfer Corp., 509 So. 2d 420, 423 (La. 1987) (emphasis added).

The law is clear that the prescriptive period begins to run once a party has

“constructive knowledge . . . of the facts that would entitle him to bring a suit,” even

if he does not have actual knowledge of those facts. Campo v. Correa, 828 So. 2d 502,

510 (La. 2002). “Constructive knowledge is whatever notice is enough to excite

attention and put the injured party on guard and call for inquiry.” Id. at 510–11.

“Such notice is tantamount to knowledge or notice of everything to which a reasonable

inquiry may lead,” and therefore “is sufficient to start running of prescription.” Id. at

511 (citations omitted); see also Meggs, 301 So. 3d at 1213 (“If the plaintiff could have

discovered the cause of action by exercising reasonable diligence, the doctrine will not

prevent the running of prescription.” (citations omitted)); Miles v. MEMC Pasadena,

Inc., 2009 U.S. Dist. LEXIS 39069, at *3 (E.D. La. May 8, 2009) (“The plaintiff must

show that the cause of action for his injuries was not reasonably knowable. This is a

heavy burden.”). The discovery rule provides that, for prescription to run, a plaintiff

must have actual or constructive notice of the “tortious act, the damage caused by the

tortious act, and the causal link between the act and the damage.” Ducre v. Mine

Safety Appliances, 963 F.2d 757, 760 (5th Cir. 1992) (citing Knaps v. B & B Chem.

Co., 828 F.2d 1138, 1139 (5th Cir. 1987)).

The question here is whether Plaintiff’s cancer diagnosis put her “on guard and

call[ed] for inquiry,” such that she had constructive knowledge of her cause of action

against Evonik. If she had constructive knowledge as of the date of her diagnosis,

then prescription was triggered and contra non valentem does not save her otherwise

untimely claims. Therefore, the Court must determine whether a medical diagnosis,

standing alone, constitutes constructive knowledge and triggers a duty to investigate.

State and federal case law regarding prescription and contra non valentem

strongly suggest that a medical diagnosis puts a plaintiff on constructive notice of her

cause of action, and thereby starts the prescriptive period. Tenorio v. Exxon Mobil

Corp., 170 So. 3d 269, 275 (La. App. 5 Cir. 2015) (“Although [plaintiff] claims to not

have had knowledge of the radiation exposure at Alpha Tech, the commencement of

prescription began when he should have discovered the facts upon which his cause of

action was based, which was [when he was diagnosed with cancer] in November

2009.”); Lennie v. Exxon Mobil Corp, 251 So. 3d 637, 648 (La. App. 5 Cir. 2018)

(holding decedent’s “diagnosis of lung cancer in January 2010 was constructive notice

sufficient to put [the plaintiffs] on guard and to call for them to inquire further into

the cause of his condition.”); Guerin v. Travelers Indem. Co., 296 So. 3d 625, 631 (La.

App. 1 Cir. 2020) (“[Plaintiff’s] inaction was not reasonable in light of the knowledge

that he possessed, and that his diagnosis in 2015 was constructive notice sufficient to

put him on guard and to call him to inquire into the cause of his condition.”).

The Fifth Circuit recently considered the above-cited trio of cases and

emphasized the significance of a medical diagnosis in starting a plaintiff’s

prescriptive period. See Butler v. Denka Performance Elastomer, LLC, 16 F.4th 427,

439-40 (5th Cir. 2021). In Butler, the plaintiff alleged various health conditions

resulting from chloroprene emissions from a nearby neoprene plant. Id. at 432. In

holding that the plaintiff had adequately alleged contra non valentem at the pleadings

stage, the court distinguished Tenorio, Lennie, and Guerin, as cases in which “a

plaintiff’s diagnosis, more than one year prior to filing suit, constitute[d] constructive

notice.” Id. at 440 (emphasis in original). The court stated that this “diagnosis”

distinction is “critical,” and that, because the Butler plaintiff “was not diagnosed or

otherwise told that her symptoms were a result of excessive chloroprene emissions

more than one year prior to filing suit,” she was able to rely on contra non valentem

at the pleadings stage. Id.

Bearing these cases in mind, Judge Vance found plaintiffs’ original complaint

was prescribed on its face. The cancer diagnoses spanned from 1999 to April 6, 2020.

But despite that the diagnoses gave the plaintiffs “constructive notice sufficient to

put [them] on guard and to call [them] to inquire into the cause of [their] condition[s],”

Guerin, 296 So. 3d at 631, their pleadings contained no allegations about what

specific actions they took to investigate or otherwise inquire about the causes of their

cancers, which could justify the application of contra non valentem.

After Plaintiff’s claims were severed and her case was allotted to this section,

Plaintiff heeded Judge Vance’s order and added a number of allegations to support a

finding of contra non valentem. First, Plaintiff investigated the cause of her illness.

See Miles, 2009 U.S. Dist. LEXIS 39069, at *4 (applying contra non valentem when

plaintiff investigated cause and asked his doctor if his kidney condition was the result

of a chemical exposure accident at work); see also Young v. Clement, 367 So. 2d 828,

829-30 (La. 1979). Specifically, Plaintiff alleges:

She discussed a potential cause of cancer with her physician and, after genetic

testing, he told her it was not caused by genetics. However, her physician did

not offer any other possible explanations despite her inquiries. No physician

ever advised Plaintiff that Plaintiff’s cancer may have been caused by exposure

to EtO so as to reasonably put Plaintiff on notice of her cause of action against

Defendants. Plaintiff did not know anything about EtO to ask the physicians

any questions about her exposure, which was also unknown to her at the time,

and cancer.

(Rec. Doc. 2-1, at 12). These allegations are significant. Plaintiff asked her physicians

questions to inquire how she contracted breast cancer, but they provided no answers.

Even after she underwent genetic testing to find the cause of her illness, the

physicians still gave her no answer besides the fact her cancer was not caused by

genetics.

Second, Plaintiff alleges facts that make the inaction between her initial

inquiries and the later advertisement from the Voorhies Law Firm reasonable.

Plaintiff explains:

Plaintiff did not have any reasonable access to or knowledge of the body of

industry and scientific information regarding the dangers of EtO. Nor did she

know about the 2014 NATA results, as those results were not widely publicized

to lay persons in the communities around the facility until after this suit was

filed.

. . . Plaintiff did not know how to research information related to operation of

the facility. The first time Plaintiff had any reason to think that EtO emission

from the facility was a substantial factor in causing Plaintiff’s cancer was when

Plaintiff received an advertisement in the mail from The Voorhies Law Firm

on or after April 28, 2020. That the facility emitted EtO was not common

knowledge among lay persons in the community and was never discussed or

brought to Mr. Plaintiff’s attention prior to receiving the mailer. The receipt of

the advertisement was the first time Plaintiff ever knew of the existence of EtO

and in her own words “opened her eyes” for the first time about a potential

cause of her cancer . . . Thereafter Plaintiff took reasonable steps to investigate

whether exposure to EtO had caused Plaintiff’s cancer or created a risk of

future health problems. Plaintiff filed this action within one year of learning

facts supporting that she had a cause of action against Defendants.

(Rec. Doc. 2-1, at 12-13). Although the information about EtO-related cancer risks

was not entirely unknown or unavailable, at the time of her diagnosis, the amended

complaint’s allegations show that such information was not easily accessible to lay

persons. Surely, if the local doctors did not know the nearby facility was causing

cancer in the community, a lay person should not be expected to know. Moreover,

Plaintiff only attended high school to the eleventh grade up to the level of chemistry,

which enhances the technical, equivocal character of the facts regarding EtO. (Rec.

Doc. 2-1, at 13); see Lennie, 251 So. 3d at 645 (noting “ultimate issue is the

reasonableness of the plaintiff’s action or inaction in light of his education,

intelligence, and the nature of defendant’s conduct”) (citations omitted)); see Ducre v.

Mine Safety Appliances, 963 F.2d 757, 761 (5th Cir. 1992) (applying contra non

valentem for plaintiff who left school after finishing tenth grade, and noting

“equivocal character of facts known by [plaintiff] is enhanced by [his] limited

education”).

For these reasons, the Court finds that contra non valentem applies in this

case, and therefore, Plaintiff’s claims are not prescribed.

II. Negligence

A. Duty

Plaintiff alleges that Defendants are liable for negligence, and the parties’ key

dispute focuses on whether Plaintiff has adequately alleged a duty owed by

Defendants. Under article 2315 of the Louisiana Civil Code, “[e]very act whatever of

man that causes damage to another obliges him by whose fault it happened to repair

it.” La. Civ. Code art. 2315(A). Louisiana courts conduct a duty-risk analysis to

determine whether to impose liability under article 2315. Lemann v. Essen Lane

Daiquiris, Inc., 923 So. 2d 627, 632-33 (La. 2006). Liability requires satisfaction of

five elements: (1) the defendant had a duty to conform his conduct to a specific

standard; (2) the defendant’s conduct failed to conform to the appropriate standard;

(3) the defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries;

(4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries;

and (5) actual damages. Id. at 633.

In Butler v. Denka Performance Elastomer, LLC, the Fifth Circuit considered

plaintiff’s appeal of the district court’s dismissal of her claims arising from allegedly

unsafe emissions of chloroprene in the community. 16 F.4th at 432. As to whether

plaintiff had adequately alleged a duty under Louisiana law, the court explained:

Butler asserts that Denka violated Louisiana’s general duty “to use reasonable

care to avoid injury to another.” Rando v. Anco Insulations, Inc., 16 So. 3d 1065,

1086 (La. 2009). She says Denka’s chloroprene emissions—untethered from

any particular emissions threshold — are nonetheless unreasonably

excessive . . .

Butler’s retreat to generalized grievances is unavailing. While Louisiana law

does impose a “universal duty” on defendants in a negligence action to use

“reasonable care,” Rando, 16 So. 3d at 1086, plaintiffs are still required to

assert a “specific standard” of care. See Lemann, 923 So. 2d at 633. The inquiry

into a defendant’s particular duty “is whether the plaintiff has any law

(statutory, jurisprudential, or arising from general principles of fault) to

support the claim that the defendant owed him a duty.” Id.; accord Boykin v.

La. Transit Co., 707 So. 2d 1225, 1230 (La. 1998) (emphasizing that in a

“proper duty-risk analysis” the court should first identify “the duty imposed

upon the defendant by statute or rule of law”) . . .

Here, Butler relies not on the EPA, OSHA, or other agencies’ recommended

emissions thresholds but on generalized pronouncements that Denka has

violated its duty to take “reasonable care.” Yet, Butler points to no “statutory,”

“jurisprudential,” or any other source of law—and we have likewise found

none—in which such generalized references to “excessive emissions,”

“acceptable risk threshold,” and “unreasonably dangerous emissions,”

constitutes a sufficient legal duty to support a negligence . . . claim. See Bd. Of

Comm’rs v. Tenn. Gas Pipeline Co., 850 F.3d 714, 727-28 (5th Cir. 2017)

(dismissing negligence [claim] . . . because plaintiffs failed to allege an

applicable legal duty under the federal and state statutory and regulatory

schemes . . . ).

Butler, 16 F.4th at 443-46.

In the original plaintiffs’ case, Judge Vance found that plaintiffs’ complaint

cited no cognizable source or articulation of the duty alleged. The original plaintiffs

instead rested on the notion that Evonik had a broad duty to exercise “ordinary care,”

to “avoid an unreasonable risk of harm to persons located in the surrounding areas,”

and to “reduce emissions to a level that do[es] not pose an unreasonable risk of harm.”

But plaintiffs went no further. They failed to specify a “specific standard” of care with

which Evonik should have complied. See Lemann, 923 So. 2d at 633. Thus, Judge

Vance dismissed the negligence claims without prejudice, granting plaintiffs leave to

amend their complaint to allege a specific duty.

In amending her complaint, Plaintiff in this case forewent the generalized

pronouncements that Defendants had a duty to exercise “ordinary care” to not emit

“excessive emissions” that posed an “unreasonable risk.” Rather, her amended

complaint now alleges that Defendants have a duty to conform to the standard of care

set forth in the Environmental Protection Agency (“EPA”) approved state operating

permit program, which is administered by the Louisiana Department of

Environmental Quality (“LDEQ”), and is set forth in the Louisiana Administrative

Code Title 33, Part III. Specifically, the amended complaint alleges:

Pursuant to the Code, the Defendants have a duty to control the overall

emissions of EtO into the atmosphere through installing and diligently

maintaining emissions control systems and equipment at ‘point sources’ where

emissions are planned to occur and through a LDAR program to control

unplanned fugitive emissions. Emission controls were to be installed and

diligently maintained for the purpose of protecting public health, safety, and

welfare regardless of whether the emissions are within permit limits and

regulatory ambient air quality standards.

(Rec. Doc. 2, at 10-11 (citing 33 La. Admin. Code Pt. III, § 905,2 § 21213)).

Both Shell and Evonik maintain that Plaintiff still has failed to articulate a

specific duty in her amended complaint. (Rec. Docs. 4, at 1; 12-1, at 11-12). Shell

argues that the amended complaint contains contradictory facts (like the allegation

that the emissions are state-authorized amounts) and lacks allegations that Shell

failed to abide by permits or failed to install pollution controls. Because of these

factual contradictions and omissions, Shell believes Plaintiff failed to articulate a

specific standard of care. However, these factual issues are pertinent to breach, not

duty. See Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 539 (5th Cir.

2015) (“Whether a duty exists is a question of law to be decided by the court; whether

a duty is breached is a question of fact.”). Shell’s contentions focus its actions taken

in relation to duty, or in other words, whether it breached the standard of care set

2 L.A.C. 33:III.905(a) provides, “Except as provided in Subsection B of this Section, to aid in

controlling the overall levels of air contaminants into the atmosphere, air pollution control facilities

should be installed whenever practically, economically, and technologically feasible. When facilities

have been installed on a property, they shall be used and diligently maintained in proper working

order whenever any emissions are being made which can be controlled by the facilities, even though

the ambient air quality standards in affected areas are not exceeded.”

3 L.A.C. 33:III.2121 sets forth extensive, precise requirements to control fugitive emissions.

forth in 33 La. Admin. Code Pt. III, § 905 and § 2121. The factual issues raised have

no bearing on whether a duty exists. Thus, Shell improperly grafts factual allegations

of breach onto the element of duty, and so, Shell’s argument is not persuasive.

In Evonik’s motion to dismiss, Evonik argues that Plaintiff’s reliance on the

Environmental Regulatory Code to support her allegations of negligence “are far too

vague and conclusory.” (Rec. Doc. 12-1, at 14). Specifically, Evonik claims that “[b]y

citing generally to the environmental code, . . . Plaintiff does not establish a statutory,

jurisprudential, or other rule of law that creates a specific duty of care that Evonik

owed to her, but rather asserts that the regulatory code establishes a blanket

reasonableness standard with respect to emissions.” (Id. at 13-14).

However, Evonik misrepresents Plaintiff’s citations to the Louisiana

Administrative Code Title 33, Part III. Plaintiff clearly cites to specific provisions, 33

La. Admin. Code Pt. III, § 905 and § 2121, which have been found to support legal

duties in previous cases. In the recent state court decision, Spencer v. Valero Refining

Meraux, LLC, the appellate court affirmed the district court’s finding that the

defendant refinery “had a duty to control the overall levels of air contaminants

entering the surrounding area by conforming its conduct to a specific standard of care

under LAC 33.III.905(A).” No. 21-3838, (La. App. 4 Cir. 2/2/22); 2022 La. App. LEXIS

157, at *7-8. Hence, state court precedent bolsters the finding that refineries and like

facilities are held to a specific standard of care pursuant to the Louisiana

Administrative Code Title 33, Part III.

Moreover, it is sufficient that Plaintiff alleges the legal standards expressed in

33 La. Admin. Code Pt. III, § 905 and § 2121 and applies the facts to the standards to

render her expression of the law case-specific.4 This is a far-cry from the Butler

plaintiff’s allegations and the allegations in the unsevered plaintiffs’ original

complaint that generally alluded to “unreasonably excessive emissions.” Thus, the

Court finds that Plaintiff articulates specific legal duties to control emissions

expressed in sections of Louisiana Administrative Code Title 33, Part III, which

Evonik and Shell must adhere to in operating the facility.

In sum, Plaintiff has successfully amended her complaint to allege a specific

standard of care, and the Court does not dismiss her negligence claim.

B. Breach

Next, Evonik argues that even if Plaintiff has alleged a specific duty of care,

Plaintiff has failed to properly allege that Evonik breached that duty of care. (Rec.

Doc. 12-1, at 15). Specifically, Evonik contends that Plaintiff does not identify any

comments, findings, or information that support her conclusion that Evonik violated

or otherwise failed to comply with the cited regulations. (Id. at 16). Plaintiff’s failure

to include any facts that support her inferences that Evonik was using faulty

equipment or failing to comply with a leak detection program, Evonik asserts, renders

her First Amended Complaint insufficient. (Id. at 17). In reply, Plaintiff argues that

4 Plaintiff alleges, “[p]ursuant to the Code, the Defendants have a duty to control the overall emissions

of EtO into the atmosphere through installing and diligently maintaining emissions control systems

and equipment at ‘point sources’ where emissions are planned to occur and through a LDAR program

to control unplanned fugitive emissions. Emission controls were to be installed and diligently

maintained for the purpose of protecting public health, safety, and welfare regardless of whether the

emissions are within permit limits and regulatory ambient air quality standards.” (Rec. Doc. 2, 10-11).

she provided a sufficient factual basis to support her allegations of breach. (Rec. Doc.

13, at 15-19).

The amended complaint alleges that “Defendants have operated the facility

without sufficient emissions and leak controls to reasonably limit and/or eliminate

the toxic EtO” (Rec. Doc. 2, at 7). Plaintiff claims that “fugitive leaks are caused by

undetected and unrepaired leaks, faulty equipment, and other negligence.” (Id. at 8).

Moreover, Plaintiff alleges that at a community outreach meeting regarding the

facility’s EtO emissions organized by the EPA with LDEQ,

the EPA explained that, based on the cancer risk the facility’s EtO

emissions cause to the communities around it, the EPA considers the

facility’s emission levels to “not be sufficiently protective of human

health” despite a reported reduction in emissions from 2014 to 2020.

Even though the EPA advised that Evonik has decreased its EtO

emissions from 2014 to 2020 by nearly 50%, the levels emitted were still

not “sufficiently protective of human health” according to EPA

guidelines and standards even though within permitted limits

(Id. at 10). Plaintiff claims that the reduction in emissions from 2014 to 2020 was

“mostly attributable to the facility reducing fugitive EtO emissions i.e., unplanned

emissions caused by leaks in equipment, faulty processes, accidents, and other

negligence,” and the facility was able to reduce unplanned fugitive emissions “mostly

[as] the result of improvements in the facility’s mandated leak detection and repair

program (“LDAR”).” (Id.). Moreover, Plaintiff alleges that “the remaining reduction

in EtO emissions was due to improvements to the operation of the facility’s stack

scrubber, which is the system and equipment used to control planned and known EtO

emissions from the facility.” (Id.). Finally, Plaintiff claims that, [a]ccording to the

EPA, Evonik has plans to continue improving and ‘enhancing’ its LDAR program and

scrubber operations to reduce further fugitive and planned EtO emissions from the

facility . . . ” (Id.). Finally, Plaintiff alleges that

Defendants failed to act reasonably and diligently in controlling planned

EtO emissions from its scrubber, located at a source point, and from

unplanned fugitive emissions from leaks and faulty equipment and are

still taking steps to try to conform their conduct to the required

standards of care to protect the public health of the Plaintiff and other

residents who have lived and still live near the facility.

(Id. at 11). Taken together, the Court finds that the above allegations in Plaintiff’s

First Amended Complaint are sufficient to state a claim to relief that is plausible on

its face.

III. Nuisance

Despite the fact Judge Vance previously found that the unsevered plaintiffs

properly stated a claim for nuisance in their original complaint, and amendment was

unnecessary, Evonik once again argues that Plaintiff’s nuisance allegations are too

vague and fail to adequately support the negligence element baked into the claim.5

However, for the second time:

[Evonik’s argument] conflates the general negligence standard under article

2315 with the distinct negligence requirement for a nuisance claim under

Louisiana’s vicinage articles, which deal specifically with a proprietor’s

relationship to his neighbors . . . [and u]nlike their article 2315 general-

negligence claims, plaintiffs’ nuisance claims do not require an allegation of a

separate source of duty.

Ellis v. Evonik Corp., 2022 U.S. Dist. LEXIS 95318, at *39-40 (E.D. La. May 27, 2022).

Judge Vance thus denied in part Defendants’ motion to dismiss the original plaintiffs’

5 To assert a nuisance claim, a plaintiff must show that “a defendant is (1) a proprietor who (2) negligently (3)

conducts ‘work’ on his property (4) that causes damage to his neighbor.” Ictech-Bendeck v. Progressive Waste Sols.

Of LA, Inc., 2019 U.S. Dist. LEXIS 147008, at *2 (E.D. La. Aug. 29, 2019) (citing Bd. Of Comm’rs of Se. La. Flood

Prot. Auth.-E v. Tenn. Gas Pipeline Co., LLC, 88 F. Supp. 3d 615, 643 (E.D. La. 2015)) (emphasis added).

nuisance claims. Here, the Court finds that Plaintiffs allegations are sufficient at the

pleadings stage to support a nuisance claim. Thus, the Court declines to reverse

Judge Vance’s ruling.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss for Failure

to State a Claim (Ree. Docs. 4, 12) are DENIED.

New Orleans, Louisiana, this 8th day of August, 2022.

□

CARL J. BAR

UNITED STA DISTRICT JUDGE

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