The opinion
JOHN JOHNSON, * NO. 2022-CA-0639
INDIVIDUALLY AND AS A
REPRESENTATIVE OF THE *
CLASS OF THOSE COURT OF APPEAL
SIMILARLY SITUATED *
FOURTH CIRCUIT
VERSUS *
STATE OF LOUISIANA
ORLEANS PARISH SCHOOL *******
BOARD, XYZ INSURANCE
COMPANY, CITY OF NEW
ORLEANS AND ABC
INSURANCE COMPANY
CONSOLIDATED WITH: CONSOLIDATED WITH:
JOHN JOHNSON, INDIVIDUALLY NO. 2022-CA-0700
AND AS A REPRESENTATIVE OF
THE CLASS OF THOSE
SIMILARLY SITUATED
VERSUS
ORLEANS PARISH SCHOOL
BOARD, XYZ INSURANCE
COMPANY, CITY OF NEW
ORLEANS AND ABC INSURANCE
COMPANY
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 1993-14333 C\W 1994-05446, 1994-12996, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Rachael D. Johnson
******
(Court composed of Judge Joy Cossich Lobrano, Judge Rachael D. Johnson, Judge
Nakisha Ervin-Knott)
ERVIN-KNOTT, J., CONCURS IN THE RESULT.
Linda Suzanna Harang
Law Offices of Warren A. Forstall, Jr., P.L.C.
320 N. Carrolton Ave, Suite 200
New Orleans, LA 70119-5111
Joseph M. Bruno
BRUNO & BRUNO LLP
855 Baronne Street
New Orleans, LA 70113
George J. G. Roux
ATTORNEY AT LAW
823 Saint Louis Street
New Orleans, LA 70112
Suzette P. Bagneris
THE BAGNERIS FIRM, LLC
1929 Jackson Avenue
New Orleans, LA 70113
Stephen B. Murray
MURRAY LAW FIRM
701 Poydras Street, Suite 4250
New Orleans, LA 70139
Roy J. Rodney, Esq.
John Karl Etter, Esq.
RODNEY & ETTER, LLC
935 Gravier Street,
New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLANT
Beverly A. DeLaune
DEUTSCH KERRIGAN, LLP
755 Magazine Street
New Orleans, LA 70130-3672
Kimlin S. Lee
Derek Michael Mercadal
Donesia D. Turner
Corwin M. St. Raymond
CITY OF NEW ORLEANS
1300 Perdido Street, Room 5E03
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
MAY 31, 2023
RDJ In this consolidated matter, the Appellants, the Housing Authority of New
JCL
Orleans and the City of New Orleans (collectively “the Appellants”), seek review
of the district court’s June 10, 2022 judgment, granting the Appellees’ motion for
summary judgment, who are 5002 class action claimants who resided, owned
homes, and/or owned businesses and/or worked on the Agriculture Street Landfill
site,1 and awarding them compensable damages for emotional distress and
diminution of property value in the amount of $75,323,455.71. Pursuant to our de
novo review, we affirm the judgment of the district court.
Facts and Procedural History
The underlying facts of this matter have been detailed previously, most
recently in Johnson v. Orleans Par. Sch. Bd., 22-0731, pp. 1-4 (La. App. 4 Cir.
3/15/23), 2023 WL 2521922. Below we recount the facts and procedural history
germane to the matter sub judice.
1 The Agriculture Street Landfill is a superfund site defined as the area bounded on the north by
Higgins Boulevard, on the east by Louisa Street, on the south by Florida Avenue and on the west
by Almonaster Avenue and Peoples Avenue Canal.
1
The instant appeal stems from a 30-year old class action regarding damages
suffered by residents who lived on or adjacent to a former municipal landfill in
New Orleans known as the Agriculture Street Landfill site (ASL) as well as
business owners and their employees who owned businesses or worked on the ASL
and students and employees of Moton School, which was located on the ASL.
Four categories of claimants existed when the class was originally certified
by the district court in 1999: 1) current and former residents of the ASL; 2) current
and former business owners and their employees who operated businesses and
worked on the ASL; 3) current residents who owned homes or who are buying
homes but have not completed their payments on the ASL; and 4) former students
and employees of the Moton Elementary School, who attended or worked at the
school, which is located on the ASL. The instant appeal pertains to the grant of
summary judgment on behalf of the first three categories of claimants, as the
claims of the students and employees of the Moton School have already been
resolved.2 Below is the relevant procedural history.
In 2005, a bench trial was held on the common claims of the total class
against the Appellants, four former HANO insurers and the Orleans Parish School
Board (“OPSB”). 3 The district court rendered judgment on January 12, 2006, in
2 The class members who are former students or employees at Moton Elementary School and
who do not also have a claim against the Appellees, are not included as movers on the Motion
for Summary Judgment at issue. Those class members claims against the Orleans Parish School
Board were settled pursuant to a consent judgment dated October 11, 2017.
3 Various district court judges have presided over this matter throughout the decades. Notably,
Judge Nadine Ramsey presided over this case from 1996 to 2010. In 2013, Judge Ramsey was
appointed to serve as Judge ad hoc, and tried the cases of the first flight of 65 plaintiffs.
Subsequently, Judge Tiffany Chase presided over the class action settlement between the
claimants and HANO’s insurers in 2013 and in 2014, which included her appointment of the
2
favor of all the claimants, except those who attended and worked at the Moton
School, and against the Appellees and HANO’s insurers. The district court held
that the Appellees and HANO’s insurers were liable “jointly and in solido for all
compensatory damages hereafter judicially determined to have been sustained by
each member of these groups of the Class, with judicial interest from the date of
demand on August 31, 1993, and for costs to be fixed by the Court.” The district
court further specified the amount of compensation due to the groups and/or
subgroups of class members for emotional damages and property damages as
follows:
1. For current and former residents who have lived on
the ASL for at least twelve months prior to February 1,
1994:
a. for 1- up to 5 years $4,000.00/per year
b. for 5 - up to 10 years $25,000.00 (total);
c. for 10 - up to 15 years $30,000.00 (total);
d. for 15 - up to 20 years $40,000.00 (total);
e. for 20 years or more $50,000.00 (total).
2. Current and former business owners and their
employees who have operated a business on the former
landfill site for at least twelve months, prior to February
1, 1994, and who operated and or were employed there
for:
a. 1 - up to 5 years $4,000.00/per year;
b. 5-up to 10 years $25,000.00 (total);
c. 10 - up to 15 years $30,000.00 (total);
d. 15- up to 20 years $40,000.00 (total);
e. 20 years or more $50,000,00 (total).
3. Current and former residents who have lived in the
Adjacent Area within the boundaries of the class but
outside of the EPA Super Fund site, which is generally
Special Master and Court Appointed Distribution Agent. Judge D. Nicole Sheppard presided
over the hearing on the motion for summary judgment at issue in the instant appeal.
3
south of Higgins, west of Louisa, north of Industry, and
cast of Montegut, $2,500.00 (total).
4. Current residents of homes that are located in the EPA
Super fund site who are owners of record of their homes,
and who are buying their homes but have not yet
completed their payments. The full amount of the fair
market value is determined at the time they are appraised
in support of their claim.
5. Current residents of homes located in the Adjacent
Area who are owners of record of their homes, and who
are buying their homes but who have not yet completed
the payment. 10% of the full amount of the fair market
value of the home as that value is determined at the time,
they are appraised in support of their claim.
On appeal of the 2006 judgment, this Court reduced the emotional distress
damages of the claimants by half, but affirmed the judgment in all other respects.
Johnson v. Orleans Par. Sch. Bd., 06-1223, p. 24 (La. App. 4 Cir. 1/30/08), 975
So. 2d 698, 714. The Louisiana Supreme Court subsequently denied writs.4 Thus,
the modified emotional distress damage award became:
1. For current and former residents who have lived on
ASL site for at least twelve months prior to February
1,1994, and resided there:
a. for 1- up to 5 years $2,000.00/per year
b. for 5 - up to 10 years $12,500.00 (total);
c. for 10 - up to 15 years $15,000.00 (total);
d. for 15 - up to 20 years $20,000.00 (total);
e. for 20 years or more $25,000.00 (total).
2. Current and former business owners and their
employees who operated a business on the ASL site for
at least twelve months, prior to February 1, 1994, and
who operated and or were employed there for:
4 The Louisiana Supreme Court denied the eight writs sought. Johnson v. Orleans Par. Sch. Bd.,
08-0607 (La. 6/27/08), 983 So.2d 1289, writ denied, 08-0664 (La. 6/27/08), 983 So.2d 1289; writ
denied, 08-0671 (La. 6/27/08), 983 So.2d 1289; writ denied, 08-0672 (La. 6/27/08), 983 So.2d
1290; writ denied, 08-0673 (La. 6/27/08), 983 So.2d 1290: writ denied, 08-0674 (La. 6/27/08),
983 So.2d 1290; writ denied, 08-0675 (La. 6/27/08), 983 So.2d 1291; and, writ denied, 08-0682
(La. 6/27/08), 983 So.2d 1291.
4
a. 1 - up to 5 years $2,000.00/per year;
b. 5 - up to 10 years $12,500.00 (total);
c. 10 - up to 15 years $15,000.00 (total);
d. 15 - up to 20 years $20,000.00 (total);
e. 20 years or more $25,000,00 (total).
2. Current and former residents who have lived in the Adjacent
Area within the boundaries of the class but outside of the
ASL site: $1,250.00 (total).
Subsequently, in 2013, a bench trial was conducted for the first flight of 65
class members, who were not class representatives.5 While the remaining plaintiffs
were awarded damages for emotional distress “in accordance with the methods
established at the initial trial,” the district court’s awards for diminution of property
value differed from those of the 2005 trial. The district court made the following
determinations: Gordon Plaza6 properties were determined to have suffered a 20%
loss in the present-day value of their homes; Press Park7 properties were
determined to have suffered a 20% loss of their pre-Katrina values; and properties
adjacent to the ASL were awarded 10% of their average value of both parties
appraisers. The judgment of the district court was affirmed on appeal. Johnson v.
Orleans Parish School Board, 14-0277, (La. App. 4th Cir. 4/26/17) 219 So.3d 452.8
5 Four of these claimants were dismissed for cause. Additionally, the claimants from the first
flight trial are excluded from the motion for summary judgment at issue because their claims
were resolved at trial.
6 Gordon Plaza was a development of 67 single-family homes that were built on the ASL site in
the late 1970s. The Gordon Plaza homebuyers were never informed that their homes were built
on a former landfill site. Johnson, 14-0277, p. 3, 219 So.3d at 458.
7 Press Park was a HANO owned and operated development that was constructed in the early
1970s as a result of a cooperative endeavor agreement between the City and HANO. It consisted
of apartments and townhomes. “No remediation or special site preparation was done before Press
Park was constructed.” Id., 14-0277, p. 2, 219 So.3d at 458. Additionally, the Press Park tenants
and home buyers were not forewarned that the site had been a part of the City’s landfill. Id., 14-
0277, pp. 2-3, 219 So.3d at 458
8 Jimmie Thorns, Jr., a real estate appraiser, served as an expert for the Appellants in the 2013
trial. He testified as to the diminished values of the affected properties, but was noted to not
5
The Appellees and HANO’s insurers subsequently entered into settlement
negotiations. The Appellees moved for the appointment of a special master to
oversee the settlement process. The district court appointed Paul R. Valteau, Jr., as
special master, pursuant to La. Rev. Stat. 13:4165.9 Subsequently, the district court
appointed the accounting firm of Bourgeois, Bennett, LLC, to serve as the Court
Appointed Disbursing Agent (CADA).10
possess expert experience in stigma or environmental damages. Id., 14-0277, p. 20, 219 So. 3d at
469. The district court found that Mr. Thorns’ calculations were reasonable as well as the expert
for the plaintiffs, Appellees herein; therefore, the court averaged the figures and awarded a
percentage of damages between the experts’ percentages as described above. Id., 14-0277, pp.
21-22, 219 So. 3d at 469-470. Mr. Thorns’ conflicting affidavits related to the subject motion for
summary judgment are discussed later in this opinion.
9 The powers given to Special Master Valteau by the district court were to:
a) supervise the distribution of Notice to the Class; b) develop a
plan for establishing appropriate reserves to be deducted from
the settlement funds and “judgment funds”, so that the Court
can determine the amount of money available from the
settlement funds and “judgment funds” for distribution to Class
members; c) establish criteria for evaluating the claims of Class
members; d) review and evaluate claims of Class members in
accordance with the established criteria, and resolve any
objections to the proposed settlements and/or any proposed
allocations; e) propose allocations for each Class member in
accordance with the evaluation protocol; f) prepare a plan for
distribution of the individual allocations; g) review and make
findings and recommendations regarding payment of attorneys'
fees and reimbursement of approved litigation costs; h)
establish, a protocol for the receipt of and repository of
objections; and i) such other acts and functions as may be
necessary or appropriate to fulfill his/her duties and
responsibilities as the Court may direct, and to engage such
staff, deputies and experts as are deemed necessary, and are
approved by the Court.
10 When the district court appointed the CADA, it ordered that it:
shall perform the duties and responsibilities of the CADA under
the supervision of the Court and/of its designee, and as such, will
be charged with the responsibility, in conjunction with the Special
Master, of maintaining records pertaining to receipts and
disbursements; managing the final aspects' of claims, fees costs,
taxes and expenses; and administering, with the Escrow Agent, the
settlement fund, subject in all respects to further orders and
direction from the Court.
6
Special Master Valteau, with the assistance of the CADA, reduced the
number of claimants from 7702 to 5002. Additionally, Special Master Valteau was
assisted by appraiser Jimmie Thorns, Jr., who prepared drive-by appraisals of
properties on and adjacent to the ASL. Special Master Valteau filed his report with
the district court, recommending settlement of the claims as calculated therein. His
report was accepted, and the district court adopted his calculations in dispersing the
settlement proceeds.
Subsequently, on April 9, 2021, the Appellees filed a Motion for Summary
Judgment on behalf of 5,002 confirmed eligible members of the John Johnson
class, seeking to recover compensable damages for emotional distress and
diminution of property value, asserting:
There is no genuine issue of material fact regarding these
Class claimants’ entitlement to individual Judgments in
their favor against HANO and the City jointly and in
solido, based on the Court’s final 2006 Judgment, the
final 2013 Flight 1 Judgment, and this Court’s rulings
approving the distribution of the HANO insurers’
settlement proceeds based on the certified review and
report of the Special Master.
The Appellees attached seven exhibits to their motion: 1) the affidavit of
CADA Li Downing with supporting spreadsheets; 2) the affidavit of Special
Master Valteau; 3) an April 30, 2019 affidavit of appraiser Jimmie Thorns, Jr.;11
4.) the affidavit of attorney Suzette Bagneris; 5.) the affidavit of attorney Linda
Harang; 6.) a May 10, 2011 district court order; and 7.) a March 24, 2011 district
court judgment. The Appellants sought a judgment against the Appellees jointly
11 In their motion for summary judgment, the Appellees explained that the original affidavit of
Mr. Thorns was submitted to the district court by Special Master Valteau, in support on his
Special Master’s report. Mr. Thorns’ appraisal values were ultimately accepted by the district
court to approve settlement and the allocations to class members for loss of property value.
7
and in solido for emotional distress and property damages totaling $75,323,455.71,
plus judicial interest.
The affidavit of Linda Harang, counsel for the Appellees, was stricken by
the district court when it granted the Appellants’ motion to strike. Additionally, the
district court partially granted the Appellants’ motion to strike the affidavit of
Special Master Valteau by striking paragraph 21 of his affidavit. The motion was
denied in all other respects.
In Special Master Valteau’s affidavit he attests to the mandate given to him
by the district court in February 2014, to evaluate all of the claims submitted
through the proof of claim process, and ascertain which claims were eligible to
receive a settlement distribution from the proceeds of the class settlement with
HANO’s four former insurers. He verifies that he reviewed the proof of claim
forms (“POCs”) submitted to determine: which claims met the criteria for class
membership; which claims were eligible to receive settlement proceeds pursuant to
the Court’s criteria; and how much each claimant was entitled to receive based
upon their unique circumstances. He further attests to the methodology he
employed, including “how he performed his court appointed tasks and how he
compiled numerical data that resulted in this Court (the district court) approving
the actual dollar amount owed to each qualified Class member by HANO and the
City of New Orleans in solido.”
Special Master Valteau states that he was assisted by Bourgeois Bennett, the
CADA, in determining the claimants’ identities and classifying what claimants
8
belonged in each eligible claims group and sub-group. He further describes
working with appraiser Jimmie Thorns, Jr., to have the homes of each eligible
claimants on the ASL site and the Adjacent Area appraised. He verifies that he
included Mr. Thorns’ appraisal values in his submission to the district court, noting
that the Gordon Plaza homeowners were entitled to 20% of post-Katrina value,
Press Park homeowners were entitled to 20% of pre-Katrina value and
homeowners in the Adjacent Area were entitled to 10% of post-Katrina present
value.
He attests to submitting his findings to the district court, and that following a
fairness hearing, the district court approved the settlement, the POC process and
his POC evaluations of each class member. He further verifies that the information
contained in the POCs combined with the information he obtained as Special
Master, including from Mr. Thorns, provides the district court with sufficient
evidence “to now make compensatory awards to each of the remaining eligible
Class members, using the criteria set out in the 2006 and 2013 judgments, which
were reviewed and affirmed by the 4th Circuit Court of Appeal and the Louisiana
Supreme Court.” Lastly, he states that after reviewing the 2006 and 2013 district
court judgments and the timely and correctly completed POC forms, he finds that a
determination of the total award now due to the remaining claimants from the
Appellees can appropriately be made based upon the classifications of claimants
provided in the 2006 district court judgment.
9
In Ms. Downing’s affidavit, she attests to being a member and director of the
Bourgeois Bennett public accounting and consulting firm, which since October
2008 has been engaged in this class action in three capacities: as a claims
administrator; performing proof of claim processing and reporting; and serving as
the court appointed disbursing agent. She states that her affidavit is based upon her
personal knowledge and in conjunction with information provided to her. She
verifies that Special Master Valteau made all of the claims eligibility
determinations, including determining that of the 5002 class claimants, 5000
people made claims for emotional distress damages whereas 365 people made a
claim for loss of property value. She verifies that each of the Appellants was
assigned 50% responsibility for compensatory damages and judicial interest.
Based upon the Special Master’s review, Ms. Downing attests to
documenting the identity of the claimants with claims against the Appellants,
categorizing their claims, and calculating their compensatory damages based upon
the 2006 and 2013 judgments as well as the judicial interest. She sets forth that she
calculated two types of judicial interest rates representing interest on the
compensatory damages for the period from August 31, 1993, up until the February
24, 2015 class action settlement with HANO’s insurers, and a second rate from the
period of February 25, 2015 to April 9, 2021. She attests that her calculations for
compensatory damages with judicial interest for the 5002 claimants totaled
$75,323,455.71. Attached to Ms. Downing’s affidavit were exhibits, specifically
spreadsheets, detailing the identity of the 5002 claimants, and dividing their claims
10
into the categories and subcategories for compensable claims as set forth in the
2006 and 2013 judgements. Her spreadsheets also delineated her calculations for
the amounts due to each claimant for unpaid compensatory damages from the
Appellants combined with unpaid judicial interest.
In Mr. Thorns’ affidavit he attests to being an independent fee appraiser that
was retained in this matter to appraise the properties located on the ASL as well as
in the Adjacent Area. He states that only a certain number of properties met the
qualifications to receive an award pursuant to the district court’s judgment. He
received a list of the qualifying properties from Special Master Valteau that
included 88 properties on the ASL and 173 properties in the Adjacent Area.
Lastly, he attests to his methodology for estimating the market value of each
affected property and preparing a report of his findings that he submitted to Special
Master Valteau for inclusion in the record of this matter.
Suzette Bagneris, who serves as Lead Counsel on the Plaintiffs’ Steering
Committee, executed an affidavit attesting to the collaborative process the parties
engaged in when creating the official form of the POC, pursuant to the June 25,
2009 order of the district court. Ms. Bagneris further sets forth that the district
court ordered that each POC form be notarized and ruled that the failure to timely
submit a complete and notarized POC would result in exclusion from eligibility to
receive any payment with it by judgment or settlement. Lastly, Ms. Bagneris
verifies that she assisted with claimants executing the POC form as well as
producing and gathering supporting documentation for the forms, such as act of
11
sale documents, birth certificates, and Moton School employment records as well
as report cards.
Prior to filing their opposition to the motion, the Appellants moved to
continue the hearing on the motion for summary judgment and sought discovery of
the claims files for the 5002 claimants as well as depositions of Special Master
Valteau and his staff regarding the claims handling process. The district court
denied the motion.
The Appellants filed an opposition to the motion requesting additional time
for discovery and contesting the affidavits submitted in support of the motion for
summary judgment. They moved to recuse Special Master Valteau. Moreover,
HANO submitted an affidavit of Mr. Thorns, wherein he retracted and recanted his
prior opinions and his 2013 appraisals.12
Subsequently, a motion to unseal the record filed by Appellant HANO was
denied as moot by the district court on December 29, 2021.13 However, on the
same date, the district court granted a motion to unseal the record of Special
Master Valteau’s subject to three conditions: 1) the Special Master’s records
12 HANO, in support of its opposition to the Motion for Summary Judgment, attached an
affidavit of Mr. Thorns, wherein he states that the appraisals of the 261 properties he performed
in 2013, while assisting Special Master Valteau, are presently invalid and do not reflect present
fair market values because the values of some of those properties have increased while others
have decreased. He further sets forth that the opinions and analyses he expressed during the
2013 environmental stigma impact on the fair market value of the affected properties are no
longer valid. Lastly, he attests that he has not been asked to update the 261 appraisals and has no
present opinions on the current fair market values of those properties.
13 On December 29, 2021, the district court also rendered moot the Appellant HANO’s motion to
unseal the record and issued a judgment: denying the Appellants’ respective motions to continue
the hearing on the appellees’ motion for summary judgment; and denying the Appellants’ request
to conduct discovery and conduct depositions related to the appellees’ motion for summary
judgment.
12
related to insurance settlement allocations in this matter were unsealed for the
limited purpose of allowing the parties to obtain a copy of the sealed records from
the Clerk of Civil District Court at the cost of the requesting party, conditioned on
the parties agreement to abide by an attached Stipulated Confidentially Agreement
and Protective Order; 2) the Appellees pay fees and costs incurred by the Special
Master and CADA in connection with the motion and order; and 3) said records
would be re-sealed by the Clerk after all copies had been made.14 Moreover, on
February 3, 2022, the district court denied Appellee HANO’s motion to recuse
Special Master Valteau and granted his motion to quash the subpoena duces tecum
of the Appellants.
Following a hearing on the Appellees’ motion for summary judgment,15 the
district court granted the Appellees’ motion, rendering judgment on March 14,
2022. The Appellees were awarded $75,323,455.71 plus judicial interest against
the Appellants. However, the Appellees filed a motion for new trial because the
March 2022 judgment lacked the requisite decretal language. The motion was
granted and the district court later rendered a June 10, 2022 judgment, granting the
Appellees’ motion, vacating the March 2022 judgment and rendering judgment
against the Appellants.
14 The record reflects that counsel for HANO emailed and e-filed a letter to the district court
dated February 13, 2022, requesting a status conference to modify this order and proposing that
the Appellant be allowed to view the records without the necessity of copying “the entire cache
of documents that are under seal.” In the alternative, counsel for HANO requested that the order
should be modified to direct Special Master Valteau and the CADA to produce the sealed
records in electronic format at no cost.
15 The Appellees produced the POCs for the district court to review at the motion for summary
judgment hearing.
13
In its Reasons for Judgment, the district court explained:
Issues of liability have been resolved and there is now no
need to make any determinations regarding Defendants’
liability. As such, the sole responsibility of the Special
Master now is the allocation and distribution of funds to
Class member claimants. It is the determination of this
Court that the Special Master has acted in accordance
with his duties and determined the eligibility of claimants
and, in conjunction with the CADA, the appropriate
amount of compensation due them based on the
established criteria. Defendants’ arguments against the
grant of summary judgment are a disguised attempt at
relitigating the issue of liability, which the Court
rejects.16
The Appellants each appealed the June 10, 2022 judgment. Their appeals
were later consolidated by this Court.
The Appellants raise the following assignments of error:
1) The district court erred and abused its discretion
when it failed to allow adequate time for discovery
and denied the Appellants’ motion for continuance,
which violated the Appellants’ due process rights;
2) The district court erred in awarding damages for
diminution of property value and emotional distress
to 5,002 class action claimants via a motion for
summary judgment because such motions: are not
designed for class-wide claims resolution; deny the
Appellants substantive and procedural due process;
and there are remaining issues of determining
causation and damages that need to be proven at
trial;
3) The Appellees did not meet their burden of proof of
establishing that there were no genuinely disputed
issues of material fact as numerous genuine issues
of material fact remain;
16 Appellate courts review district court judgments, not reasons for judgment. Wooley v.
Lucksinger, 09-0571, p. 77 (La. 4/1/11), 61 So. 3d 507, 572. Nevertheless, an appellate court
“may review the trial court's reasons for judgment to ‘gain insight’ into the trial court's
judgment.” Id., 09-0571, p. 78, 61 So. 3d at 572.
14
Summary Judgment Standard
An appellate court applies a de novo standard of review to a district court’s
decision to grant a motion for summary judgment. Guilbeaux v. Lupo Enterprises,
L.L.C., 21-0053, p. 4 (La. App. 4 Cir. 5/19/21), 321 So. 3d 447, 451. This Court
further explained the de novo standard as follows:
This standard of review requires the appellate court to
look at the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, to determine if they show that no
genuine issue as to a material fact exists, and that the
mover is entitled to judgment as a matter of law. A fact is
material when its existence or nonexistence may be
essential to the plaintiff's cause of action under the
applicable theory of recovery; a fact is material if it
potentially insures or precludes recovery, affects a
litigant's ultimate success, or determines the outcome of
the legal dispute.
Id., 21-0053, pp. 4-5 (La. App. 4 Cir. 5/19/21), 321 So. 3d 447, 451-52 (quoting
Chatelain v. Fluor Daniel Const. Co., 14-1312, p. 3 (La. App. 4 Cir. 11/10/15),
179 So.3d 791, 793).
Discovery
The Appellants assert that the district court abused its discretion when it
failed to allow adequate time for discovery, denied their motion to continue and
prematurely granted the Appellees’ motion for summary judgment. They allege
that these failures resulted in due process violations. They aver that further
discovery was required before the district court ruled on the Appellees’ motion for
summary judgment because they “were not afforded adequate and reasonable time
to conduct limited and relevant discovery” despite making repeated requests.
They contend that the parties were not ready for trial and they informed the
15
Appellees that further discovery was needed, including the taking of the
depositions of Special Master Valteau and Ms. Downing. Moreover, they alleged
the Appellees refused to produce a copy of the 7,702 POC forms.
The Appellants assert they did not have a reason to take any depositions of
Ms. Downing, Special Master Valteau or Mr. Thorns, review the POC forms,
and/or review the appraisals of the Appellees’ properties until the Appellees’ filed
their motion for summary judgment and the Appellants were properly served
therewith. Moreover, they assert that the work performed by Special Master
Valteau was solely performed to effect class wide settlement with HANO’s
insurers. The Appellants maintain they were not parties to that process and were
not noticed of his reports, methodology, conclusions, and allocations.
Lastly, the Appellants aver that they were not served with the motion for
summary judgment and the memorandum in support of the motion until October
13, 2021. By that time, each of the Appellants had filed a motion to continue the
hearing on the Appellees’ motion for summary judgment, which was initially set
for November 2, 2021. They argue that failing to allow adequate discovery, even
in a limited capacity, was extremely prejudicial to the defense of the Appellants.
The Appellees respond that the Appellants’ assertion that they were unduly
deprived of pre-hearing discovery is meritless. Recognizing that as movers on
motion for summary judgment that they bore the burden of proof, the Appellees
contend that the Appellants were nevertheless tasked with availing themselves of
the documents available to them as well as taking the initiative to oppose the
motion for summary judgment. They maintain that seven months passed from May
2021 to December 2021, with the Appellants failing to notice any depositions, or
16
make requests or propose dates for the depositions of Special Master Valteau and
Ms. Downing.
Additionally, the Appellees assert that as to service of the motion for
summary judgment, the Appellants were served via U.S. Mail and e-mail on April
9, 2021, as stated in their Certificate of Service. The Appellees certified that the
motion was served upon the Appellants “either by hand, by telefax, by electronic
mail, or by placing the same [motion] in the United States mail” on April 9, 2021.
They further aver the Appellants took no action to effectively prepare
themselves to oppose the motion and specifically failed by: not noticing or
providing dates for Special Master Valteau’s or Ms. Downing’s depositions;
neglecting to research the record at the Clerk’s office to ascertain that the district
court’s March 5, 2015 order that the Appellees’ Exhibit 3G was to be placed under
seal, was in fact a list of Potential Class members that was already contained in an
electronic database created in 2011; not paying for their copy of the electronic
claims database pursuant to the district court’s March 24, 2011 judgment,17 which
17 In the March 24, 2011 judgment, the district court, Judge Paulette Irons of Division “M”
presiding, selected a claims administrator to design a database and creating a claim form
database. The judgment set forth that the cost of these services is $174,800, of which the
Appellants were each ordered to pay $24, 232.34 to have “All Defendant claims” entered in to
the database. The judgment further provided that any party who failed to pay their pro rata share
of the database costs would not receive an electronic copy of the claimant database:
Upon completion of the custom database design and data entry,
and receipt of payment from the parties as set forth below, the
Claims Administrator is hereby directed to forward a copy of the
electronic claimant database to both Suzette Bagneris, Class
Counsel, and Mary Johnson, Counsel for National Union, who will
distribute same to defense counsel as soon as each defendant has
fully funded its share of these costs. . . . . Any party which has
not paid its respective share of the Claims Administrator costs
shall not be provided the electronic claimant database by the
Claims Administrator or any other party. [Emphasis added].
This judgment was admitted into evidence at the motion for summary judgment hearing as
Exhibit F for the Appellees.
17
would have provided them with the POC forms for all claimants with the
supporting documents for each claim; and neglecting to hire Mr. Thorns to perform
work in support of the affidavit he executed in support of the Appellant’s
opposition to the motion for summary judgment. We agree.
This Court has explained that an abuse of discretion standard of review
applies when a district court decides whether to delay hearing on a motion for
summary judgment when discovery is alleged to be incomplete. We further set
forth four factors to be applied when determining whether to grant a continuance
and delay the hearing of a motion for summary judgment:
When discovery is alleged to be incomplete, a trial court
has the discretion either to hear the summary judgment
motion or to grant a continuance to allow further
discovery. Simoneaux v. E.I. du Pont de Nemours and
Co., 483 So.2d 908, 912 (La. 1986); Eason v. Finch,
32,157, p. 7 (La.App. 2 Cir. 8/18/99), 738 So.2d 1205,
1210. In this procedural context, a trial court's choice to
hear a motion for summary judgment or to grant a
continuance is reviewed under an abuse of discretion
standard. Rivarde v. City of New Orleans, 15-0655, p. 5
(La.App. 4 Cir. 3/9/16), 190 So.3d 400, 403, writ denied,
16-0670 (La. 5/27/16), 192 So.3d 744.
Construing Article 966, this court has held that
“[a]lthough the language of article 966 does not grant a
party the absolute right to delay a decision on a motion
for summary judgment until all discovery is complete,
the law does require that the parties be given a fair
opportunity to present their case.” Leake & Andersson,
LLP v. SIA Ins. Co. (Risk Retention Grp.), Ltd., 03-1600,
pp. 3-4 (La.App. 4 Cir. 3/3/04), 868 So.2d 967, 969.
Similarly, the Louisiana Supreme Court, construing that
Article 966, has held that “[u]nless plaintiff shows a
probable injustice a suit should not be delayed pending
discovery when it appears at an early stage that there is
no genuine issue of fact.” Simoneaux, 483 So.2d at 913.
Addressing an adequate discovery claim, the
jurisprudence has identified the following four relevant
factors for the court to consider:
18
(i) whether the party was ready to go to trial,
(ii) whether the party indicated what additional
discovery was needed,
(iii) whether the party took any steps to conduct
additional discovery during the period between the filing
of the motion and the hearing on it, and
(iv) whether the discovery issue was raised in the trial
court before the entry of the summary judgment.
Roadrunner Transportation Sys. v. Brown, 17-0040, pp. 11-12 (La. App. 4 Cir.
5/10/17), 219 So. 3d 1265, 1272-73.
In the instant matter, the Appellants assert they were unprepared to proceed
with trial because they were unable to depose Special Master Valteau and Ms.
Downing, and they were unable to review the POCs and underlying documents
upon which Ms. Downing and Special Master Valteau relied. The Appellants did
make known to the Appellees and the district court that they needed further
discovery prior to the motion for summary judgment being granted by the district
court. However, the record does not reflect that the Appellants set dates for
deposing Special Master Valteau and Ms. Downing nor asked their availability for
the same prior to the hearing on the motion for continuance. Additionally, there is
no evidence in the record of the Appellants complying with the district court’s
order and paying the costs associated with the compilation and creation of the
claims database so that they could receive their electronic copy of the POC forms
and associated documents of the claimants. Thus, the application of the factors in
this matter militates toward finding that the district court did not err in holding that
no further discovery was required.
We find that the district court did not abuse its discretion in determining that
further discovery in this matter, a case that has been pending for three decades, was
unwarranted. Aside from seeking a continuance and emailing counsel for the
19
Appellees, the record does not reflect that the Appellants availed themselves of the
procedures available to them under the Louisiana Code of Civil Procedure to
depose Special Master Valteau and Ms. Downing. Furthermore, we agree with the
Appellees that the Appellants had access to the POC forms and the claimants
underlying documentation since the March 24, 2011 judgment was rendered. The
March 24, 2011 district judgment prohibited the Appellees from producing an
electronic copy of the database to the Appellants because the Appellants were
ordered to pay their share for the creation of the claims database in order to receive
their copy. Therefore, we find that this assignment of error is without merit.
Propriety of Summary Judgment Procedure and Denial of Due Process
The Appellants contend that summary judgment is procedurally improper
here and the Appellees are not entitled to judgment as a matter of law because
emotional distress damages cannot be determined on summary judgment. They
aver that in order for a district court to make an award for emotional distress each
plaintiff’s credibility must be assessed, which should be done at a trial on the
merits. The Appellants rely on cases such as Thompson v. Cenac Towing Co., 19-
1185 (La. App. 1 Cir. 3/25/21) 322 So. 3d 852, [holding in a Jones Act case that a
district court erred in granting summary judgment that dismissing the plaintiff’s
emotional distress claims because the plaintiff’s credibility should have been
assessed at trial] and Bonnette v. Conoco, Inc., 01-2767, pp. 24-25 (La. 1/28/03),
837 So. 2d 1219, 1235, [holding in an asbestos case, that in order for plaintiffs to
recover emotional distress damages in the absence of a manifest physical injury,
they must prove their claim is not spurious by showing a particular likelihood of
genuine and serious mental distress arising from special circumstances].
20
They contend that the use of summary judgment procedure in this manner
deprives them of their fundamental due process rights of confrontation regarding
each class members’ claims of individual causation and damages because they
were unable to depose or otherwise conduct discovery to ascertain whether each
claimant is entitled to compensable damages. The district court, the Appellants
assert, must conduct further trial flights of individual causation and individual
damages until either all class members’ claims have been tried to verdict, or the
parties agree to settle.
The Appellants further maintain that use of summary judgment procedure to
resolve class wide claims is precluded by La. Code Civ. Proc. art. 592 (E)(5),
entitled Certification procedure; notice; judgment; orders, which provides:
Dealing with similar procedural matters, including but
not limited to case management orders providing for
consolidation, duties of counsel, the extent and the
scheduling of and the delays for pre-certification and
post-certification discovery, and other matters which
affect the general order of proceedings; however, the
court shall not order the class-wide trial of issues
dependent for their resolution on proof individual to a
member of the class, including but not limited to the
causation of the member's injuries, the amount of the
member's special or general damages, the individual
knowledge or reliance of the member, or the applicability
to the member of individual claims or defenses.
In response, the Appellees assert that the precedent of the Louisiana
Supreme Court as well as the precedent of this Court supports the method they
employed to resolve the damage claims of the remaining class members.
Specifically, the Appellees rely upon Watters v. Dep’t of Soc. Servs., 11-1174, p.
(La. App. 4 Cir. 3/14/12), 102 So. 3d 118, and Oubre v. La. Citizens Fair Plan, 11-
0097 (La. 12/16/11), 79 So. 3d 987.
21
In Oubre v. La. Citizens Fair Plan, 11-0097 (La. 12/16/11), 79 So. 3d 987,
the Louisiana Supreme Court reviewed an appellate court’s reversal of a district
court judgment granting a motion for summary judgment in favor of 18,573
claimants, who sued their insurance company for failing to timely institute loss
adjustment following Hurricanes Katrina and Rita. Id., 11-0097, pp. 1-2, 79 So. 3d
at 990. The district court awarded the claimants $5,000 each, totaling $92,865,000,
as a statutory remedy due to them, but did not make a determination as to whether
the insurer acted in bad faith. Id. The appellate court found that factual
determination of whether the insurer breached its duty of good faith was required
before penalties could be assessed; thus, it reversed the judgment of the district
court. Id. The Supreme Court, however, reinstituted the judgment of the district
court. The issue of whether summary judgment was an impermissible procedural
vehicle to resolve the damage claim of the class was never raised. Indeed, the
Supreme Court approved the award of statutory damages to the 18,573 claimants
via summary judgment. Id., 11-0097, p. 27, 79 So. 3d at 1006.
Watters v. Dep’t of Soc. Servs., 11-1174 (La. App. 4 Cir. 3/14/12), 102 So.
3d 118, involved a class action brought by State employees, working in the Plaza
Tower office building in New Orleans, who claimed exposure to toxic mold. An
initial trial of the class representatives was held, where the district court rendered
judgment in favor of the claimants on common issues affecting the class and
awarded the class representatives $25,000 in general damages for pain and
suffering, and $10,000 for mental anguish and emotional distress. Id., 11-1174, p.
2, 102 So. 3d at 122.
Although the defendant, the State of Louisiana, initially insisted that each
individual class member establish “at trial that he or she suffered harm because of
22
the exposure to mold,” the parties subsequently decided to try the claims in flights
because it would be burdensome to hold 600 individual trials for the remaining
claimants. Id., 11-1174, p. 2, 102 So. 3d at 122. A bench trial was then held for the
first flight of 50 class members, which concluded with the district court awarding
$25,000 for general damages, and $10,000 for mental anguish to all the claimants,
in accordance with the damages awarded at the initial trial. Id., 11-1174, p. 3, 102
So. 3d at 123.
The State appealed the judgment raising several issues, including that each
plaintiff should have been medically examined before damages were awarded, and
the district court erred by applying a mathematical formula to determine the
claimants’ awards. Id. The State argued that each claimant should have been
required to provide medical evidence to prove their claims. The Watters Court
determined these arguments were erroneous, reasoning that “[t]he State’s assertion
seeks to deter from the purpose and intentions of class actions. Class actions are
utilized to provide cost-effective and expedited litigation for all of the parties
involved.” Id., 11-1174, p. 8, 102 So. 3d at 126 (internal citation omitted).
Moreover, the State asserted that the district court erred by applying a
mathematical formula to determine the claimants’ damage awards. The Watters
Court further rejected this argument, reasoning that in addition to awarding
damages based on the totality of the circumstances of each class member, the
district court followed award guidelines that had previously been established this
Court in an earlier appeal of the same case. Id., 11-1174, p. 20, 102 So. 3d at 132.
In light of the foregoing jurisprudence and unique facts of this case, we find
that the use of summary judgment was procedurally proper to resolve the claims of
the remaining class members where liability of the Appellants had previously been
23
determined as well as the damages due for emotional distress damages and
diminution of property value. Although the damages in Oubre were statutorily
determined, it is clear that procedurally there was no issue with resolving the
pending claims of the class via a motion for summary judgment. Moreover,
Watters’ holding evidences that it is proper for the district court to apply award
guidelines established in earlier flights of the same class action.
In the matter sub judice, award guidelines were set forth in the 2006 and
2013 holdings of the district court, as modified by this Court, as to what claims are
compensable and on what basis. Special Master Valteau, with the assistance of the
CADA and Mr. Thorns, applied those guidelines to determine which claimants
were entitled to settlement proceeds from HANO’s insurers and how much they
were to receive. The same parameters employed by Special Master Valteau are
applicable here against the Appellants, which includes HANO itself. The district
court’s application of the aforementioned award guidelines in this matter resulted
in particularized damage awards. This is because once a determination was made
as to whether each claimant was entitled to emotional distress and/or diminution of
property damages, their claim was ascribed to the appropriate category and/or
subcategory for compensable damages, based upon the information contained in
his or her notarized POCs and supporting documents.
Lastly, we find that res judicata applies here. “Res judicata precludes re-
litigation of claims and issues arising out of the same factual circumstances when
there is a valid final judgment; moreover, it promotes judicial efficiency and final
resolution of disputes.” Johnson, 14-0277, pp. 9-10, 219 So.3d 462-63. The
following three factors set forth in Louisiana Rev. Stat. 13:4231 must be met for
this doctrine to apply:
24
Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except
on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of the litigation are extinguished and merged in the
judgment.
(2) If the judgment is in favor of the defendant, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of the litigation are extinguished and the judgment bars a
subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action
between them, with respect to any issue actually litigated
and determined if its determination was essential to that
judgment.
The Johnson Court further noted that in the context of a class action, “[a]
definitive judgment on the merits rendered in a class action concludes all members
of the class, whether joined in the action or not, if the members who were joined as
parties fairly insured adequate representation of all members of the class.” Id.
(quoting La. Code Civ. Proc. art. 597). “The purpose and intent of class action
procedure is to adjudicate and obtain res judicata effect on all common issues
applicable not only to the representatives who bring the action, but to all others
who are ‘similarly situated’ . . . . .” Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4
(La. 9/9/97), 703 So. 2d 542, 544.
In Johnson, this Court held that the three statutory res judicata requirements
were met in applying the district court’s 2006 trial determinations of liability and
methods of awarding emotional distress damages to the plaintiffs in the flight one
trial. Thus, this Court rejected the Appellants’ argument that the district court erred
in applying a formula for awarding emotional distress damages. Johnson, 14-0277,
25
p. 10, 219 So. 3d at 463. Moreover, this Court upheld the district court’s
determination that it was reasonable to award emotional distress damages to the
flight one plaintiffs based upon the length of time he or she lived or worked on the
ASL site prior to the year 2001, considering these claimants were exposed to
hazardous and toxic materials on a daily basis. Id., 14-0277, p. 18, 219 So. 3d at
468. This Court reasoned that “the amounts awarded coincided with the methods
previously established and upheld.” Id., 14-0277, p. 20, 219 So. 3d at 468-69.
In the instant matter, this Court similarly finds that res judicata applies. The
parameters for awarding emotional distress and diminution of property value
damages set forth by the district court in 2006 and 2013 were properly applied in
granting the Appellees’ motion for summary judgement to resolve the remaining
claims of the Appellees.
Finally, we do not find that the Appellants were denied due process in this
matter because, as discussed above, they had access to the notarized POC forms
and supporting documentation for each claimant, pursuant to the March 24, 2011
judgment. Therefore, the Appellants had the opportunity to determine whether to
challenge the recovery of any claimant they deemed ineligible; nevertheless, the
Appellants seemingly failed to comply with said order to access these documents.18
Genuine Issues of Material Fact
The Appellants assert that in order for the Appellees to prevail on a motion for
summary judgment for the 5002 class members, the Appellees had to establish that
18 As the Appellees note, in Oubre, supra, the same due process argument raised by the
Appellants currently was raised by the defendant insurers in a writ taken to the United States
Supreme Court. Louisiana Citizens Prop. Ins. Corp. v. Oubre, et al, 2012 WL 1374528 (U.S.
4/18/12). The insurers asserted that every class action claimant is required to establish each
element of his or her claim and the defendant should receive a full and fair opportunity to mount
a defense. The Supreme Court denied writs and rejected this argument. Louisiana Citizens Prop.
Ins. Corp. v. Oubre, 561 U.S. 935, 133 S. Ct. 30 (2012).
26
there were no genuinely disputed material facts and that the class members are
entitled to judgment as a matter of law, for each element of the prima facie case as
to each class member. They aver that numerous genuine issues of material fact
exist which precluded the grant of summary judgment:
- Whether each claimant satisfies the class definition.
The Appellants dispute that the eligibility of each
claimant was established. They point to the fact that
Special Master Valteau disqualified a third of the
POCs, but they will not know how many other
claimants would have been disqualified if HANO had
the opportunity for discovery and cross-examination.
- Whether all the claimants seeking emotional distress
damages during the applicable time period resided
with the ASL boundaries or in the Adjacent Area.
They claim the Appellees again failed to produce the
records Special Master Valteau relied upon for
residency.
- Whether all the claimants seeking emotional distress
damages for being employed on the ASL during the
applicable time period was established because there
were no pay stubs, employer confirmations or records,
or W-2 forms introduced in support of the Motion for
Summary Judgment. Any such records produced to
Special Master Valteau have been kept under seal and
not provided to HANO;
- Disputed genuine issues of material fact as to whether
the Special Master’s methodologies, processes, and
procedures met Daubert standards or the standards of
its progeny because the Appellants were not permitted
to take the deposition of Special Master Valteau;
- Present property ownership, property condition and
property values for the claimants who were
homeowners on the ASL site or Adjacent Area are
unknown? Assert that the record reflects that several
properties within the class boundaries were sold after
the 2013 insurance settlement with HANO’s insurers.
- The present fair market value of the affected
properties were not established because the Appellees
did not submit current appraisals and new expert
opinions on whether the values of the affected
27
properties have decreased value in comparison to
similar properties outside of the class boundaries.
- The application of 2013 and 2014 appraisals to award
the Appellees’ present property damages raises
genuine issues of material fact because those values
do not reflect present day value nor their stigma value.
The Appellees should have presented current
appraisals as they did for the 2013 trial. The district
court erred in applying the 2013 judgment of the
district court regarding diminution of property value
because in the 2013 trial the district court changed
several damage awards from the 2005 trial levels after
considering expert testimony. The stigmas values
from the 2005 trial were reduced from 100% to 20%
for those who lived on the ASL whereas there was a
reduction to 10% for those who lived adjacent to the
site while using post-Katrina property values.
Moreover, Mr. Thorns 2019 affidavit does not details
the date he performed appraisals of the properties on
the list he received from Special Master Valteau, and
Special Master Valteau’s affidavit does not state the
dates those appraisals were completed.
- The second affidavit of Mr. Thorns, executed on
October 20, 2021, and submitted by the Appellants in
opposition to the motion for summary judgment
creates a genuine issue of material fact as to whether
his prior appraisals are currently valid to determine
property value and environmental stigma impact. He
attested to the appraisals only being valid for one year
pursuant to the Uniform Standards of Professional
Appraisal Practice, and that he has not been requested
to re-appraise the 261 properties.
- The affidavits of Mr. Thorns and Special Master
Valteau raise genuine issues of material fact. The
district court in the 2013 trials based its awards of
20% and 10% stigma on the appraisals performed in
the same year, 2013 and the testimony of two
appraisers, including Mr. Thorns. However, Special
Master Valteau’s affidavit states that he calculated
present day value as of March 13, 2013, which was
the date when the trial for the first flight of plaintiffs
began, in order to provide uniformity in valuation of
the properties. The Appellants assert that Special
Master Valteau did not establish that his use of 2013
appraisal awards or stigma values can be used instead
28
of current day appraisals and how this may affect
stigma, if any exists.
- Genuine issues of material fact exist as to whether the
Special Master’s affidavit should have been stricken
from the record or if he should have been recused for
the appearance of impropriety in engaging in ex parte
communications with counsel for the Appellees, filing
an affidavit on the Appellees’ behalf and failing to
provide proper notice to the Appellants under La.
Rev. Stat. 13:4165(C). Special Master Valteau did not
disclose that he was communicating with counsel for
the Appellees which gives the appearance of
impropriety. It was also improper for his to request
payment for this additional work from Appellees.
- Special Master Valteau did not indicate that he served
or noticed the Appellants with his: 1) Report and
Recommendation of Allocation Model Regarding the
Agriculture Street Landfill Class Fund- November 20,
2014; 2) Motion to Approve Special Master’s
Statement of Allocation and Notice of Rights- January
27, 2015; 3) Motion to File Final Allocation Ledger-
February 6, 2015; 4) Motion for the Introduction of
the Special Master’s affidavit of Methodology,
Application and Conclusion- February 10, 2015; and
5) Motion to Include Special Master
Recommendations and Judge’s Approval of Same in
Final Distribution List and to File the List Under Seal-
May 28, 2015. The Appellants further aver that the
Special Master’s Recommendations, Final distribution
and Order filed on October 11, 2019 were never
shared or served on the Appellants; thus, they could
not have filed an opposition or response within 10
days under La. Rev. Stat. 13:4165(C)(3).
Discovery
We note that the first four aforementioned issues are based upon the
Appellants assertion that they were unable to conduct further discovery, such as
deposing Special Master Valteau and were denied access to documents supporting
the Appellees’ claims. Having already discussed that the district court did not err
29
in allowing further discovery, we pretermit discussion of these alleged genuine
issues of material fact.
Current Property Ownership
The Appellants assert that several properties in the class boundaries and/or
Adjacent Area were sold after the settlement with HANO’s insurers and that the
condition of affected properties is unknown, which should preclude the granting of
summary judgment. The issues of current ownership and property conditions do
not create genuine issues of material fact so as to preclude the grant of summary
judgment where claimants have been determined to fit within the class definition
as well as the award categories and subcategories as previously discussed. As
Special Master Valteau attested to in his affidavit, the class definition stated that a
claimant must have owned property for one full year prior to February 1, 1994, or
by January 31, 1993. Thus, the issue of whether a claimant presently owns
property in the affected area is irrelevant and insufficient to create a genuine issue
of material fact.
Fair Market Value and the 2021 Affidavit of Mr. Thorns
The Appellants raise several issues about the fair market values of the
affected properties not being established and that application of 2013 and 2014
appraisals to award the Appellees’ present property damages raises genuine issues
of material fact because those values do not reflect present day value nor their
stigma value. However, the Appellants fail to present any legal authority for the
proposition that the district court or this Court is required to impose present day
fair market values of the ASL and Adjacent Area properties.
Where there is a legal right to recovery of damages but the amount cannot be
exactly determined, district courts have reasonable discretion to assess damages
30
based upon all the facts and circumstances of the particular case. Fortson v.
Louisiana Power & Light Co., 509 So.2d 743, 745 (La.App. 3 Cir.1987). Damage
awards will only be disturbed when the district court has clearly abused that
discretion. La. Civ. Code art. 2324.1; Williams v. City of Baton Rouge, 98-1981,
98-2024, pp. 11-12 (La. 4/13/99), 731 So.2d 240, 249. “Reasonable persons
frequently disagree about the measure of general damages in a particular case.”
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). “It is only
when the award is, in either direction, beyond that which a reasonable trier of fact
could assess for the effects of the particular injury to the particular plaintiff under
the particular circumstances that the appellate court should increase or reduce the
award.” Id.
Moreover, res judicata applies, as discussed above, to the district court’s
award of damages to the Appellees. We further note that the Appellants did not
submit any evidence of how current fair market values for the affected properties
differed from the 2013 appraisals. Mr. Thorns’ second affidavit executed in 2021,
does not include any information on the current fair market value of the affected
properties that would demonstrate that the values are no longer the same as when
he performed the 2013 appraisals.
Additionally, the Appellants aver that Mr. Thorns’ 2021 affidavit creates a
genuine issue of material fact because he essentially recants his previous affidavit
and attests that his 2013 appraisals are currently invalid. The Appellants assert that
Mr. Thorns’ conflicting affidavits create a genuine issue of material fact as to
whether the 2013 appraisals should have been relied upon by the district court in
granting the Appellees’ motion for summary judgment.
31
While portions of Mr. Thorns’ affidavits conflict, they do not evidence that a
genuine issue of material fact exists as to whether the district court applied the
correct values in the instant matter where the court applied values that have already
been jurisprudentially approved, have res judicata effect and the district court had
vast discretion to determine the amount of awards.
Moreover, “[a]n inconsistent affidavit offered only after the motion for
summary judgment was filed is not sufficient to create a genuine issue of material
fact where no justification for the inconsistency is offered.” George v. Dover
Elevator Co., 02-0821, p. 4 (La. App. 4 Cir. 9/25/02), 828 So. 2d 1194, 1197.
“This is to prevent the too easy thwarting of summary judgment procedure by the
mere filing of an affidavit contradicting inconvenient statements found in previous
deposition testimony when the mover has no opportunity to cross-examine the
witness concerning the inconsistencies and the trial court is prevented from
weighing evidence by the rules of summary judgment.” Id. As the George Court
noted, we recognize that Mr. Thorns’ latter affidavit of October 2021 was executed
after the Appellees’ motion for summary judgment was filed in April of the same
year, which indicates that the Appellees had this affidavit prepared to thwart the
Appellees’ motion for summary judgment.
Special Master Valteau
The Appellants remaining alleged genuine issues of material fact pertain to
Special Master Valteau and his conduct in confecting an affidavit on the
Appellees’ behalf and at their request. They contend that genuine issues of material
fact exist as to whether Special Master Valteau’s affidavit should have been
stricken from the record or if he should have been recused for: the appearance of
impropriety in engaging in ex parte communications with counsel for the
32
Appellees; filing an affidavit on the Appellees’ behalf; and, failing to provide
proper notice to the Appellants under La. Rev. Stat. 13:4165(C).
At the hearing held on the Appellants’ motions to strike, Special Master
Valteau and counsel for the Appellees’ argued that his affidavit simply served to
recount for the district court what had transpired during prior trials and during his
service as Special Master. This is because the currently presiding judge was not the
same judge who presided over the prior trials nor was she the judge who appointed
him to serve as Special Master.
We find that the district court did not abuse its discretion in declining to
disqualify Special Master Valteau and in considering the affidavit in support of the
Appellee’s Motion for summary judgement. Further, the district court’s
acceptance of and reliance upon the affidavit does not create a genuine issue of
material fact in this matter such that summary judgment would not be warranted.
Lastly, the Appellants’ assertion that the Special Master’s reports and other
filings were not served upon them dating back to 2014 is not an issue that, if true,
would preclude the granting of the motion for summary judgment. The record in
this matter begins with motions filed in October 2019. It does not include the
disputed filings of Special Master Valteau in 2014. Moreover, this is an issue that
should have been raised approximately a decade ago, at least by the time the
district court adopted the Special Master’s report and approved the settlement with
HANO’s insurers, of which each of the Appellants were aware. Finally, although
the Appellants aver that Special Master Valteau’s affidavit does not comply with
La. Rev. Stat. 13:4165, said statute is applicable to reports of Special Masters, not
affidavits.
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DECREE
For the foregoing reasons and pursuant to our de novo review, we affirm the
June 10, 2022 judgment of the district court, granting the motion for summary
judgment in favor of the Appellees and awarding damages for emotional distress
and diminution of property value in the amount of $75,323,455.71, against the
Appellants.
AFFIRMED
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