Rey

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TOMAS REY, et al. CIVIL ACTION

VERSUS NO. 21-1188

LCMC HEALTHCARE PARTNERS, SECTION M (1)

LLC, et al.

ORDER & REASONS

Before the Court is a motion in limine filed by defendants LCMC Healthcare Partners,

LLC, Louisiana Children’s Medical Center, Children’s Hospital, and LCMC Health Holdings, Inc.

(collectively, “Defendants”), seeking to exclude Arno Bommer’s expert opinions and testimony

and to bar any other expert testimony and opinions offered on plaintiffs’ behalf.1 Plaintiffs Tomas

Rey, Melisa Rey, Robert Denny, Victoria Emmerling, and Nicole Williamson (collectively,

“Plaintiffs”) respond in opposition,2 and both sides reply in further support of their respective

positions.3 Also before the Court is Defendants’ motion for summary judgment,4 to which

Plaintiffs respond in opposition,5 and both sides reply in further support of their respective

positions.6 Having considered the parties’ memoranda, the record, and the applicable law, the

Court issues this Order & Reasons.

I. BACKGROUND

This matter concerns complaints of noise caused by the operation of a patient-transport

helicopter to and from a helistop at Children’s Hospital in uptown New Orleans. Children’s

1 R. Doc. 105.

2 R. Doc. 120.

3 R. Docs. 124; 138; 139.

4 R. Doc. 106.

5 R. Doc. 123.

6 R. Docs. 125; 134; 136.

Hospital is a non-profit pediatric medical center that, since 1955, has operated as the Gulf South’s

only freestanding, comprehensive hospital for children.7 The hospital maintains a helicopter,

known as “Abby,” that transports critically ill and injured children from across the state and region

to the facility to receive life-saving care that cannot be provided elsewhere.8 Prior to May 18,

2020, Abby was operated from a helipad atop a one-story surgery building on the river side of the

hospital complex and next to one of the hospital’s towers.9 In December 2018, John Nickens, the

president and CEO of Children’s Hospital, decided to relocate the helipad to the top of the newly-

built “Infill Tower.”10 The Infill Tower is six stories high and “in the middle of [the hospital’s]

campus.”11 The City of New Orleans, the Louisiana Department of Transportation, and the Federal

Aviation Administration (“FAA”) granted the required approvals.12 The FAA “certified the new

helipad’s location, coordinates, dimensions, obstruction clearance and approved flight paths to and

from the new helipad.”13 On May 18, 2020, Defendants opened the new helipad and the old one

atop the surgery center was decommissioned.14

Plaintiffs, five residents who live near Children’s Hospital, filed this action in state court

as a putative class action alleging that Abby’s new helipad and flight path afflict them with

unacceptable levels of noise and vibration.15 They allege that the helicopter’s flights directly over

their homes and its takeoffs and landings from the heliport adjacent to the neighborhood “at all

hours of the day and night … emit deafening sounds and vibrations significant enough to cause

7 R. Doc. 106-1 at 2.

8 Id. at 1.

9 Id. at 3-5, 7.

10 Id. at 7. The parties dispute how and why the decision was made to move the helipad. See R. Docs. 106;

123. That dispute is immaterial to the resolution of the pending motions.

11 R. Doc. 106-1 at 5.

12 Id. at 7, 8 n.5.

13 Id. at 7.

14 Id.

15 R. Doc. 1-1 at 5.

physical and mental discomfort, property damage, and annoyance,” and thus constitute a

nuisance.16 Plaintiffs seek an injunction requiring Defendants to move the heliport back to its old

location or to another area that will not continue to damage and interfere with the enjoyment of

their property.17 Alternatively, they seek an injunction requiring Defendants to abate the helicopter

noise and vibrations.18 Plaintiffs also seek damages for personal injury and property damage under

Louisiana Civil Code articles 667, 668, and 669 (nuisance) and articles 2315 and 2317

(negligence).19 Specifically, Plaintiffs contend that they have sustained the following items of

damages: (1) hearing loss; (2) sleep disturbance; (3) mental health issues; (4) diminution of

property value; (5) property damage; (6) loss of use of their property; (7) cost to remediate their

property; (8) physical and mental suffering; (9) inconvenience; (10) past, present, and future

medical expenses; and (11) past, present, and future physical and mental pain and suffering.20

Defendants removed the action from state court to this Court asserting federal-question

subject-matter jurisdiction on the premise that Plaintiffs’ claim for injunctive relief, which seeks

to compel the relocation of the heliport, is preempted by federal law, specifically, the Federal

Aviation Act (“FAA”), 49 U.S.C. §§ 40101 et seq.21 In their notice of removal, Defendants also

invoked diversity subject-matter jurisdiction under the Class Action Fairness Act (“CAFA”), 28

U.S.C. § 1332(d).22

Plaintiffs moved to remand.23 The Court denied the motion, holding that CAFA provided

diversity jurisdiction over this action under 28 U.S.C. § 1332, and thus, it was unnecessary for the

16 Id.

17 Id. at 9.

18 Id.

19 Id. at 9-10.

20 Id. at 10.

21 R. Doc. 1 at 1, 3-7.

22 Id. at 2, 7-12.

23 R. Doc. 11.

Court to analyze whether it also had federal-question jurisdiction under 28 U.S.C. § 1331.24

Plaintiffs then asked the Fifth Circuit for leave to appeal, which the appellate court denied.25

Thereafter, Plaintiffs amended their complaint to remove the class-action allegations and

moved this Court to decline supplemental jurisdiction under 28 U.S.C. § 1332 since the basis for

jurisdiction under CAFA no longer existed.26 The Court denied the motion, holding that Plaintiffs’

dismissal of the class-action allegations plainly amounted to forum shopping and that jurisdiction

was appropriately exercised under § 1367.27

Defendants then moved for partial judgment on the pleadings, arguing that the Plaintiffs’

request for a permanent injunction was preempted by the FAA.28 The Court denied the motion

without prejudice, permitting Defendants to reassert the arguments in an appropriate motion

following discovery.29

Next, Defendants moved to dismiss all claims of this lawsuit pursuant to Rule 12(c) of the

Federal Rules of Civil Procedure, arguing that the noise and vibration resulting from helicopter

operations at their helistop do not constitute actionable nuisance because the noise level complies

with local ordinances.30 Plaintiffs countered with a motion to strike Defendants’ motion to dismiss

as untimely pursuant to Rule 12(g) of the Federal Rules of Civil Procedure.31 The Court denied

both motions, finding that Plaintiffs’ claims were not ripe for resolution on the face of the

pleadings.32

24 R. Doc. 30.

25 R. Doc. 39.

26 R. Docs. 42; 62.

27 R. Doc. 62 at 5.

28 R. Doc. 52.

29 R. Doc. 62 at 7.

30 R. Doc. 67.

31 R. Doc. 74.

32 R. Doc. 82.

Now that discovery has been conducted, Defendants file the instant motion in limine and

motion for summary judgment.33 In the motion in limine, Defendants argue that Bommer,

Plaintiffs’ sound expert, should be precluded from testifying because his opinions and

methodology do not satisfy Daubert.34 Defendants also argue that Plaintiffs should be precluded

from offering expert opinions from any other witness because they failed to produce expert reports

or summaries in compliance with Rule 26 of the Federal Rules of Civil Procedure.35 Defendants

also move for summary judgment, contending that Plaintiffs’ claim for injunctive relief is

preempted by the FAA and they cannot prevail on the nuisance and negligence claims for

damages.36

II. LAW & ANALYSIS

A. Defendants’ Motion In Limine

1. Arno Bommer

Plaintiffs retained Arno Bommer, a consultant with Collaboration in Science and

Technology Inc., to serve as an acoustics expert.37 In 1982, Bommer received a bachelor’s of

science degree in architectural design from the Massachusetts Institute of Technology and has

worked as an acoustical consultant ever since.38 He is a member of the Acoustic Society of

America and is board certified by the Institute of Noise Control Engineering.39 Bommer has

“designed walls and ceilings to improve noise isolation and/or speech privacy” for various types

33 R. Docs. 105; 106.

34 R. Doc. 105-1 at 4-13.

35 Id. at 13-14.

36 R. Doc. 106-1 at 11-24.

37 R. Doc. 105-2.

38 Id. at 4, 22.

39 Id.

of buildings, including residences.40 He has contributed to numerous publications and has

previously testified as an expert witness.41

In this case, Bommer attempted to measure the impact of the noise from Defendants’

helicopter using what he refers to as “a common method” that compares “the level of the intruding

sounds with the ambient sound level.”42 He explains that “[a]n increase of 10 dBA [(A-weighted

decibels)] is typically perceived as being about twice as loud and is used by some regulatory

agencies to define a significant increase.”43 Bommer cites six ordinances or guidelines that were

not promulgated in Louisiana and do not relate to aviation that “define a noise impact as 10 dBA

above ambient.”44 Using this method, Bommer took sound readings at several locations at various

times in the summer of 2021 and purports to show that the noise level increased significantly when

Defendants’ helicopter was in operation.45 Bommer explains that numerous factors contribute to

the noise level at the various locations, such as the distance from the helipad and obstructions that

block the noise.46 Ultimately, Bommer opines that:

Noise from hospital helicopter operations is loud and pervasive throughout the

neighborhood north of the hospital within about 1300 ft of the helipad. The levels

of sound are much greater than ambient sound levels and exceed common

guidelines. They are sufficiently loud to cause annoyance and aggravation, to

interfere with the use of property outside residences, and to interfere with sleep

within residences. This can reduce property values and adversely affect learning

and health. It is my judgment that sound levels from [the helicopter] are more

probable than not to constitute a nuisance to people of normal sensitivities. To

prevent this, significant reduction of sound levels must be achieved either by

relocating the helipad and flight paths and/or by significantly modifying the

residences for improved sound isolation.47

40 Id. at 22.

41 Id. at 23-24. Defendants do not generally contest that Bommer is qualified to testify as an acoustics expert.

See R. Doc. 105-1.

42 R. Doc. 105-2 at 6.

43 Id.

44 Id. at 6-7.

45 Id. at 9-17, 19-20.

46 Id.

47 Id. at 21.

Bommer offers the following suggestions for noise control: use quieter helicopters, move the

helipad oriented away from the residences, refuel the helicopter at the helipad to reduce flights,

use different flight paths away from the neighborhood, and modify the residences for better sound

isolation with certain types of windows, walls, doors, vents, and roofs.48

Defendants seek to preclude Bommer from testifying at trial because, say Defendants, he

failed to use a proper methodology and ensure that his noise-impact opinions were supported by

the facts.49 Defendants first argue that Bommer failed to establish that the noise from the helicopter

is excessive in light of local ordinances, specifically, the New Orleans Comprehensive Zoning

Ordinance and New Orleans Noise Ordinance (the “city noise ordinance”)50 that does not use a 10

dBA standard and from which emergency vehicles are exempt, and FAA noise regulations that

employ the day-night average sound level (DNL) to measure sound, which is a different measure

than the one used by Bommer.51 Defendants further argue that the “common method” Bommer

used, isolating the single-event noise (supposedly Defendants’ helicopter) from ambient sound, “is

what the on-point FAA standard is designed to avoid.”52 Next, Defendants contend that Bommer

48 Id. at 17-19.

49 R. Doc. 105-1 at 1, 5-11.

50 The city noise ordinance provides that the sound level limit for a residential area is between 60 L10 dBA

and 70 Lmax dBA from 7:00 a.m. to 10:00 p.m., and between 55 L10 dBA and 60 Lmax dBA from 10:00 p.m. to 7:00

a.m. CODE OF THE CITY OF NEW ORLEANS § 66-202 (2025). “L10 means the A-weighted sound pressure level which

is exceeded ten percent of the time period during which the measurement is made.” Id. § 66-136. “Lmax means the A-

weighted sound level allowed.” Id. “Noises resulting from any authorized emergency vehicles when responding to

an emergency” are exempt from the sound level limits. Id. § 66-138(2). “Emergency vehicles” are defined as

“authorized publicly or privately owned ambulances, or motor vehicles belonging to a fire or police department, or to

any federal, state, parish or municipal agency provided such vehicles are in use as emergency vehicles by one

authorized to use such vehicles for that purpose.” Id. § 66-136. “Emergency means any occurrence or set of

circumstances involving actual or eminent [sic] physical trauma or property damage which demands immediate

attention.” Id. (emphasis in original).

51 R. Doc. 105-1 at 5-10. DNL “means the 24-hour average sound level, in decibels, for the period from

midnight to midnight, obtained after the addition of ten decibels to sound levels for the periods between midnight and

7 a.m., and between 10 p.m., and midnight, local time.” 14 C.F.R. § 150.7. Aircraft noise at a level below 65 DNL

is considered compatible with all land uses. See id. § A150.101 & Table 1. “The DNL is the standard form of noise

measurement employed by the FAA, the United States Department of Housing and Urban Development, the

Department of Defense, and other federal agencies.” Zbitnoff v. James, 2016 WL 4251047, at *5 (D. Vt. Aug. 10,

2016), aff’d, 708 F. App’x 25 (2d Cir. 2017).

52 R. Doc. 105-1 at 8.

failed to ensure that sound spikes were emanating from the Defendants’ helicopter, and Plaintiffs’

attorneys, not Bommer, chose residences at which sound was measured, meaning that Bommer

cannot say that his measurements were representative of every single residence in the

neighborhood.53 Finally, Defendants urge that Bommer cannot offer opinions in “areas on which

he is not an expert or failed to conduct any expert analysis, such as health and medical conditions,

property values, home remediation and aviation safety.”54 At his deposition, say Defendants,

Bommer admitted that: (1) he is not a real estate expert and has not determined whether Plaintiffs

experienced a reduction in their property values; (2) he is not a medical doctor or an expert on

whether the noise caused any specific medical condition in any Plaintiff; (3) he has not inspected

Plaintiffs’ residences to determine what noise-reduction modifications would be appropriate or the

cost of such work; and (4) he is not an aviation expert and cannot opine on the feasibility of moving

the helipad back to its old location, changing flight paths, or using the helipad only for specific

purposes.55

Plaintiffs respond in opposition, arguing that Bommer’s use of the “common method” to

quantify noise was appropriate because it captured the effects of the “short, high-intensity

helicopter noise events,” which the DNL does not accurately measure in terms of noise impact.56

Plaintiffs explain how Bommer conducted his test and advocate that the test was appropriate to

measure “ambient conditions without helicopters and during helicopter takeoffs and landings” at

different locations to determine the effect the sudden noise has on the residents.57 Plaintiffs also

53 Id. at 10-11.

54 Id. at 1, 11-13 (quote at 1).

55 Id. at 11-13.

56 R. Doc. 120 at 3-4, 6-7 (quote at 3). Plaintiffs spend a lot of time discussing the testimony of Defendants’

corporate representative, Evan Bertucci, and Defendants’ sound expert, Eugene M. Reindel. Id. at 3-7. Because the

testimony of Bertucci and Reindel is not relevant to determining whether Bommer may testify as an expert, the Court

need not discuss it.

57 Id. at 8-9 (quote at 8).

contend that the FAA regulations do not apply to the private heliport at issue.58 Plaintiffs say that

the “question of the reliability of the application of the methodologies is dependent upon the

credibility of the results, which is a weight issue.”59 Further, Plaintiffs argue that Bommer is

qualified to testify as to ways to remediate the noise, which, in his opinion, ultimately involves

moving the helipad back to its old location.60 Finally, Plaintiffs urge that Bommer did not need to

consider the New Orleans noise ordinance because injunctive relief is available when excessive

noise amounts to an abuse of property rights.61

In reply, Defendants contend that Plaintiffs failed to “establish by a preponderance of the

evidence that Mr. Bommer’s methodology and opinions are reliable and supported by the facts.”62

Defendants again emphasize that Louisiana law requires the suppression of noise only if it is

excessive under local ordinances or customs, and Bommer failed to consider those ordinances in

rendering his opinions, particularly that the New Orleans Department of Health “has rejected

application of the [city noise] ordinance to [Defendants’] helicopter operations.”63 Defendants

continue to assert that the DNL standard employed by the FAA is the correct measure of aviation

noise and that Bommer cited “five obscure state or regulat[ory] provisions governing noise other

than aviation no[i]se” and failed to explain how they apply here.64 Moreover, say Defendants,

Plaintiffs failed to show that Bommer’s opinions are reliable and supported by the facts because

he testified that he did not verify whether the noise spikes he measured came from Defendants’

58 Id. at 4-5.

59 Id. at 10.

60 Id. at 9-10.

61 Id. at 10-13.

62 R. Doc. 124 at 1. Defendants point out that Plaintiffs “spend the majority of their opposition” critiquing

Reindel and the FAA’s noise-impact methodology, neither of which, say Defendants, make Bommer’s opinions

reliable. Id.

63 Id. at 2-3 (quote at 3).

64 Id. at 3-5 (quote at 5).

helicopter.65 Further, Defendants urge that, under Rule 702, “the sufficiency of an expert’s basis

and the application of the expert’s methodology” go to the admissibility of the testimony, not just

its weight.66 Defendants also maintain that Plaintiffs did not “establish that Mr. Bommer can offer

opinions on areas on which he is not an expert or failed to conduct any expert analysis,” such as

property values, health effects, sleep disturbances, residential sound modifications, or aviation

related topics.67

In their surreply, Plaintiffs reurge that Bommer’s method and the DNL are both appropriate

measures of noise, but that Bommer’s way is superior for the issue at hand.68 Plaintiffs also state

that Bommer did not need to calculate whether the helicopter violated the city noise ordinance.69

In a sur-surreply, Defendants again argue that Bommer’s methodology is unreliable

because he did not establish that the helicopter noise is excessive under the city noise ordinance, a

custom, or standard practice.70 Defendants assert that Bommer’s “common method” is not

“custom and standard practice,” but instead relies on “five obscure regulations dealing with

construction, wind farms, and other non-aviation noise to justify its use.”71 And again, Defendants

contend that the DNL is the customary method for measuring aviation noise.72 Finally, Defendants

note that “Plaintiffs do not address in their sur-reply why Mr. Bommer’s expert opinion on matters

on which he is not an expert or did not conduct any expert analysis should be excluded.”73

A district court has discretion to admit or exclude expert testimony under the Federal Rules

of Evidence. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow

65 Id. at 5-6.

66 Id. at 2.

67 Id. at 1-2, 6-7 (quote at 2).

68 R. Doc. 138 at 1-2, 4.

69 Id. at 3.

70 R. Doc. 139 at 2.

71 Id.

72 Id.

73 Id. at 4 n.3.

Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 of the

Federal Rules of Evidence requires a district court to act as a gatekeeper to ensure that “any and

all scientific testimony or evidence admitted is not only relevant, but reliable.” Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if the proponent

demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods

to the facts of the case.

The reliability inquiry requires a court to assess whether the reasoning or methodology

underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93. In Daubert, the

Supreme Court listed several non-exclusive factors for a court to consider in assessing reliability:

(1) whether the theory has been tested; (2) whether the theory has been subjected to peer review

and publication; (3) the known or potential rate of error; and (4) the general acceptance of the

methodology in the scientific community. Id. at 593-95. However, a court’s evaluation of the

reliability of expert testimony is flexible because “[t]he factors identified in Daubert may or may

not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular

expertise, and the subject of his testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150

(1999) (quotations omitted). In sum, the district court must ensure “that an expert, whether basing

testimony upon professional studies or personal experiences, employs in the courtroom the same

level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at

152. The party offering the testimony must establish its reliability by a preponderance of the

evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).

Next, the district court must determine whether the expert’s reasoning or methodology

“fits” the facts of the case and whether it will assist the trier of fact to understand the evidence,

i.e., whether it is relevant. Daubert, 509 U.S. at 591. An expert’s testimony is not relevant and

may be excluded if it is directed to an issue that is “well within the common sense understanding

of jurors and requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 155 (5th Cir.

2003). Further, an expert cannot make “legal conclusions reserved for the court,” credit or

discredit witness testimony, or “otherwise make[] factual determinations reserved for the trier of

fact.” Highland Cap. Mgmt., L.P. v. Bank of Am., N.A., 574 F. App’x 486, 491 (5th Cir. 2014).

Rule 702 also requires that an expert be properly qualified. Generally, if there is some

reasonable indication of qualifications, the district court may admit the expert’s testimony, and

then the expert’s qualifications become an issue for the trier of fact. Rushing v. Kan. City S. Ry.

Co., 185 F.3d 496, 507 (5th Cir. 1999), superseded in part by statute on other grounds as noted in

Lester v. Wells Fargo Bank, N.A., 805 F. App’x 288, 291 (5th Cir. 2020). A witness qualified as

an expert is not strictly confined to his area of practice but may testify regarding related

applications; a lack of specialization goes to the weight, not the admissibility of the opinion. Cedar

Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., 753 F. App’x 191, 195-96 (5th Cir.

2018).

The facts, data, and sources used in an expert’s opinion are generally considered by the

jury in weighing the evidence, but “in some cases ‘the source upon which an expert’s opinion

relies is of such little weight that the jury should not be permitted to receive that opinion.’” Jacked

Up, L.L.C. v. Sara Lee Corp., 807 F. App’x 344, 348 (5th Cir. 2020) (quoting Viterbo v. Dow

Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)). As the gatekeeper, a district judge must “extract

evidence tainted by farce or fiction. Expert evidence based on a fictitious set of facts is just as

unreliable as evidence based upon no research at all.” Guillory v. Domtar Indus. Inc., 95 F.3d

1320, 1331 (5th Cir. 1996). “Generally, the fact-finder is entitled to hear an expert’s testimony

and decide whether the predicate facts on which the expert relied are accurate. At the same time,

however, expert testimony that relies on completely unsubstantiated factual assertions is

inadmissible.” Moore v. Int’l Paint, L.L.C., 547 F. App’x 513, 515 (5th Cir. 2013) (internal

quotation marks, alterations, and citations omitted). Ultimately, the expert must “‘bring to the jury

more than the lawyers can offer in argument.’” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.

1992) (quoting In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986)).

Here, Bommer is qualified to testify as an expert in acoustics. While his methodology

differs from that employed by Defendants’ expert and the FAA, the Court cannot say that it was

an improper means to measure the effects of the helicopter noise on the surrounding neighborhood.

That the FAA standard (DNL) has been applied by other courts, see Seattle Cmty. Council Fed’n

v. FAA, 961 F.2d 829, 833 (9th Cir. 1992); Hausrath v. U.S. Dep’t of the Air Force, 491 F. Supp.

3d 770, 788 (D. Idaho 2020); Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 152

F. Supp. 3d 90, 110-11 (E.D.N.Y. 2015), and “‘courts have consistently upheld the [FAA’s]

discretion to choose its cumulative noise impact methodology [DNL] instead of single-event noise

analysis’” when the agency evaluates the noise impact of aircraft, Citizens of the Ebey’s Rsrv. for

a Healthy, Safe & Peaceful Env’t v. U.S. Dep’t of the Navy, 122 F. Supp. 3d 1068, 1079-80 (W.D.

Wash. 2015) (quoting City of Bridgeton v. FAA, 212 F.3d 448, 460 (8th Cir. 2000)), does not mean

that the DNL is the only way to measure the impact of aviation noise for purposes of a state-law

nuisance claim. Defendants do not cite, and the Court is not aware of, any cases applying the

FAA’s DNL to such claims. Moreover, Bommer’s failure to calculate whether the noise complied

with the city noise ordinance is not fatal to the admissibility of his testimony. As discussed later

in this opinion, the city noise ordinance is but one factor that is considered in determining whether

the helicopter is a nuisance under state law, so Defendants’ compliance or noncompliance with it

is not determinative. Defendants can address the differences between Bommer’s methodology,

and the methodology and measure used by their expert, the FAA, and the city noise ordinance,

through vigorous cross-examination and the presentation of countervailing expert testimony.

More concerning is Bommer’s failure to verify that the sound spikes he measured emanated

from Defendants’ helicopter. Bommer admitted in his deposition that he did not use the flight logs

provided by Defendants to verify whether the supposed helicopter noise recorded during his study

was actually produced by a helicopter at all, much less Defendants’ helicopter.74 This lapse may

reduce the reliability of Bommer’s testimony, but it does not undermine it completely. Again,

Defendants can employ vigorous cross-examination and countervailing expert testimony to expose

this hole in Bommer’s opinions.

Lastly, the Court does hold that Bommer cannot offer opinions on topics for which he is

not an expert or failed to conduct any expert analysis. In his deposition, Bommer admitted that he

did not conduct any analysis concerning what noise-remediation modifications could be made on

the Plaintiffs’ homes and he is not giving an opinion on that topic.75 He also admitted that he is

not a real estate expert and has not analyzed whether the Plaintiffs’ property values decreased as a

result of Defendants’ relocation of the helipad.76 Further, Bommer testified that he is not a medical

doctor or expert on whether the helicopter noise caused any specific medical condition in any

74 R. Doc. 105-3 at 5.

75 Id. at 25.

76 Id. at 26.

plaintiff.77 And, finally, Bommer has no expertise in aviation.78 Accordingly, because Bommer

lacks expertise or did not perform any expert analysis in these areas, he cannot offer any expert

testimony in the areas of property valuation as a function of the helicopter noise, health effects of

the helicopter noise, sleep disturbances caused by the helicopter noise, residential sound

modifications to abate the helicopter noise, or aviation-related topics, such as the feasibility of

moving the helipad back to its old location, changing flight paths, or using the helipad only for

specific purposes.

2. Other Experts

Defendants move to exclude any expert opinions and testimony from individuals not

properly disclosed by Plaintiffs pursuant to Rule 26.79 Defendants indicate that, save for Bommer,

Plaintiffs did not disclose or produce under Rule 26(a)(2)(B) reports for any retained experts, nor

did Plaintiffs provide proper disclosures for any non-retained experts pursuant to Rule

26(a)(2)(C).80 However, say Defendants, Plaintiffs’ witness list “discloses several individuals

whose description of testimony could be expert opinions although the cryptic summaries make

that unclear.”81 Specifically, the witness list says that: Dr. Mario Sicassa, Helen Cappo, Malies

Harold Counseling, and Debbie Granier will testify for plaintiff Melisa Rey about “[m]ental health

issues associated with helicopter noise”; Dr. Michael Darrin will testify about a “[s]leep study to

help Melisa Rey find ways to manage her sleep”; architect Gregory J. Hackenberg will testify

about “[a]coustic recommendations”; and Brien Rau of Rau Builds, LLC will testify about

“[e]stimates for acoustic recommendation work” and “the remediation work performed on the

77 Id. at 27.

78 Id. at 22.

79 R. Doc. 105-1 at 13-14.

80 Id. at 13.

81 Id.

[Reys’] house, including sound proofing.”82 Defendants argue that, to the extent any of the

healthcare providers or therapists are being called to offer medical causation opinions, their

testimony should be excluded because Plaintiffs did not provide the disclosures required by Rule

26(a)(2)(C).83 Similarly, Defendants contend that, “to the extent [Hackenberg and Rau] are being

called to offer acoustic analysis and recommendations and whether they could be applied to

Plaintiffs’ residence[s] or other residences,” those witnesses should be excluded because Plaintiffs

did not provide Rule 26(a)(2)(B) reports or Rule 26(a)(2)(C) disclosures.84 Finally, Defendants

assert that Plaintiffs cannot elicit expert opinions from Bill Davis, the president of Heliport

Systems, Inc. (“Heliport Systems”), because Plaintiffs did not produce a Rule 26(a)(2)(B) expert

report for Davis or disclose him as a non-retained expert under Rule 26(a)(2)(C).85 Defendants

are concerned that Plaintiffs seek to use Davis as an expert because Plaintiffs state in their witness

list that Davis will testify about topics that Defendants say “clearly require expert opinions,” such

as “moving the helistop to its original location and reducing flights,” as well as “the FAA’s

involvement with the noise associated with landings and take offs.”86 Defendants represent that

their concern stems from Plaintiffs’ prior request for an extension of time to obtain an expert report

from Davis, which idea Plaintiffs abandoned in favor of Davis being a fact witness when

Defendants objected to the requested extension.87 Defendants further explain that Davis testified

as Heliport Systems’ corporate representative in a deposition taken pursuant to Rule 30(b)(6) of

82 R. Doc. 99 at 8-9. All the healthcare providers and therapists are said to have treated plaintiff Melisa Rey.

R. Doc. 120 at 16-17.

83 R. Doc. 105-1 at 13.

84 Id.

85 Id. at 14.

86 Id. (quoting R. Doc. 99 at 5).

87 Id.

the Federal Rules of Civil Procedure, and as such, say Defendants, any attempt by Plaintiffs to use

that deposition as the basis for expert testimony would be improper.88

Plaintiffs oppose the motion, arguing that Melisa Rey “disclosed all medical providers who

treated her for sleep disturbances and stress and anxiety from the helicopter noise in her initial

response to discovery in April of 2022 and in a second set of discovery sent by [Defendants].”89

Plaintiffs state that Defendants obtained Dr. Rebekah A. Byrne’s90 and Harold’s records for their

treatment of Melisa Rey, which contain their respective opinions that Defendants’ helicopter is a

cause of her anxiety and sleep issues.91 Plaintiffs also say that “Melissa [sic] Rey provided a

detailed explanation of her medical treatment in her responses to discovery and deposition” and

that “[h]er medical records note her history, diagnosis and treatment.”92 As to Hackenberg and

Rau, Plaintiffs contend that they met their discovery obligations by sending Defendants’ counsel

“all of the architecture plans, estimate and work performed, including the acoustical work.”93

Further, with respect to Davis, Plaintiffs assert that they “notified [Defendants’ counsel] by email

that Bill Davis would be called as an expert witness, attaching his Rule 26 testimony list and

curriculum vitae” and that “Davis further disclosed all of his opinions in his deposition.”94

In reply, Defendants reurge that Plaintiffs did not properly disclose Melisa Rey’s healthcare

providers and therapists or Hackenberg and Rau as retained or non-retained experts, and as such,

none of them can offer expert testimony.95 Defendants explain that production of the medical

records and construction contract documents in discovery is insufficient to satisfy the mandates of

88 Id. at n.6.

89 R. Doc. 120 at 16 (citing R. Doc. 120-9).

90 Dr. Byrne is not named on Plaintiffs’ witness list. See R. Doc. 99.

91 R. Doc. 120 at 16-17 (citing R. Docs. 120-10; 120-11).

92 Id. at 17.

93 Id.

94 Id. at 13.

95 R. Doc. 124 at 8-9.

Rules 26(a)(2)(B) or (C).96 As to Davis, Defendants reassert that Plaintiffs’ counsel asked for an

extension of the expert report deadline on the due date to obtain a report from Davis, but abandoned

the idea when Defendants’ counsel objected to the extension.97 Defendants also reiterate that

Davis was deposed as Heliport Systems’ corporate representative under Rule 30(b)(6), not as an

individual.98 In sum, Defendants contend that Davis can offer no expert opinions because

Plaintiffs did not properly disclose him as a retained or non-retained expert.99

Plaintiffs again claim in their surreply that production of Melisa Rey’s medical records and

“the completed remediation specifications for the renovation” are sufficient to prevent prejudice

to Defendants.100 Plaintiffs also argue that they should be able to use Davis as an expert witness,

even without a report, because Defendants were going to use him as an expert and relied on him

“for every facet of its original and new helistop.”101 Plaintiffs further assert that they referred to

Davis’s deposition because he “could not be forced to provide a report” and his opinions were

previously disclosed to Defendants.102

In their sur-surreply, Defendants reassert that Davis was not properly disclosed as an expert

under either Rule 26(a)(2)(B) or (C), and that Plaintiffs’ reference to Helistop Systems’ corporate

deposition does not suffice to make Davis an expert.103 Defendants also say that their own

consulting relationship with Davis does not “render him an expert” witness.104 Further, Defendants

reurge that production of Melisa Rey’s medical records is insufficient under Rule 26 to put them

“on notice that the medical providers would be experts” because they “should not have to guess as

96 Id.

97 Id. at 7.

98 Id.

99 Id.

100 R. Doc. 138 at 5-6.

101 Id. at 4-5.

102 Id.

103 R. Doc. 139 at 4.

104 Id.

to who Plaintiffs may call as non-retained experts or what opinions they may or may not offer

many of which, such as causation, may not be stated in the medical records.”105 Defendants state

that the same logic applies to Hackenberg and Rau.106 In sum, Defendants contend that they

“should not be required to depose multiple medical providers and contractors to determine what

their opinions are and guess whether they will provide expert rather than fact testimony at trial,”

because “Rule 26 and this Court’s Scheduling Order require more.”107

Rule 26(a)(2) of the Federal Rules of Civil Procedure governs the disclosure of expert

testimony. The rule provides a distinction between the type of report required of a retained expert

– someone with no prior knowledge of the case who is enlisted to provide expert testimony – and

a non-retained expert – a witness whose testimony arises from his or her “ground-level

involvement in the events giving rise to the litigation.” AX Wireless LLC v. Dell Inc., 2024 WL

1495784, at *1 (E.D. Tex. Apr. 5, 2024) (quotation omitted). The party sponsoring the testimony

must demonstrate whether its experts are retained or not. Id.

A retained expert is required to prepare and sign an expert report pursuant to Rule

26(a)(2)(B). The report must contain: “a complete statement of all opinions the witness will

express and the basis and reasons for them”; “the facts or data considered by the witness in

formatting them”; “any exhibits that will be used to summarize or support them”; “the witness’s

qualifications, including a list of all publications authored in the previous 10 years”; “a list of all

other cases in which, during the previous 4 years, the witness testified as an expert at trial or by

deposition”; and “a statement of the compensation to be paid for the study and testimony in the

case.” Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi).

105 Id. at 5.

106 Id.

107 Id.

Prior to 2010, non-retained experts were exempt from Rule 26’s expert reporting

requirements. See Tucker v. United States, 2019 WL 4198254, at *2 (E.D. La. Sept. 4, 2019). In

2010, Rule 26(a)(2)(C) was added, which provides a modified disclosure requirement applicable

to non-retained experts, such as treating physicians. Id. Rule 26(a)(2)(C) requires that a party,

with respect to a non-retained expert, provide a written disclosure, in lieu of a report, stating: “(i)

the subject matter on which the witness is expected to present evidence under Federal Rule of

Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is

expected to testify.”

A Rule 26(a)(2)(C) disclosure “need not be extensive,” but must include “an abstract,

abridgement, or compendium of the opinion and facts supporting the opinion.” Causey v. State

Farm Mut. Auto. Ins. Co., 2018 WL 2234749, at *2 (E.D. La. May 16, 2018) (quotation omitted;

emphasis in original); see AX Wireless, 2024 WL 1495784, at *1 (stating that “when a party fails

to provide a meaningful summary of the facts and opinions forming the basis of a non-retained

expert’s testimony, the disclosure is insufficient” (quotation, internal quotation marks, and

alteration omitted)). Although “the rule does not require overly comprehensive disclosure … it

does require disclosure in at least some form” in order “to provide opposing parties the opportunity

to prepare for effective cross-examination and to arrange for testimony from other experts, if

necessary.” Causey, 2018 WL 2234749, at *2 (emphasis in original); see also Collett v.

Weyerhaeuser Co., 512 F. Supp. 3d 665, 672 (E.D. La. 2021) (“In lieu of a report, the treating

physician’s records, summaries of the treatment, or a letter or summary report is produced

containing information sufficient to allow opposing counsel to understand the scope of the

expected testimony and supplement the information with a pretrial deposition.”), aff’d, 2022 WL

2387352 (5th Cir. July 1, 2022).

Rule 37(c)(1) states that, “[i]f a party fails to provide information or identify a witness as

required by Rule 26(a) …, the party is not allowed to use that information or witness to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is

harmless.” Further, this Court’s scheduling order states that “[t]he Court will not permit any

witness, expert or fact, to testify or any exhibits to be used unless there has been compliance with

this Order as it pertains to the witness and/or exhibits, without an order to do so issued on motion

for good cause shown.”108 The Fifth Circuit has outlined a four-factor standard to determine

whether the failure to meet Rule 26 disclosure requirements was substantially justified or is

harmless. Williams v. Louisiana, 2015 WL 5438596, at *5 (M.D. La. Sept. 11, 2015) (citing Sierra

Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 572 (5th Cir. 1996)). “To avoid

abusing their discretion, courts must: (1) examine the importance of the witness’s testimony; (2)

consider the prejudice, if any, to the opposing party of allowing the witness to testify; (3) decide

whether there is a possibility of curing such prejudice by granting a continuance; and (4) consider

the explanation, if any, for the party’s failure to comply with the discovery requirements.” Id.

(citing Sierra Club, 73 F.3d at 572).

Plaintiffs utterly failed to comply with Rules 26(a)(2)(B) and (C) with respect to disclosing

Davis, Hackenberg, Rau, and Melisa Rey’s healthcare providers and therapists, whether as retained

or non-retained experts. With respect to Davis, Plaintiffs do not deny that they did not obtain an

expert report from Davis, but rather baldly state that sending Davis’s curriculum vitae and “Rule

26 testimony list” to defense counsel constitutes a sufficient disclosure because Davis was

deposed.109 The lack of a Rule 26(a)(2)(B) expert report is fatal to Plaintiffs’ misguided attempt

to use Davis as a retained expert. Moreover, Davis cannot testify as a non-retained expert because

108 R. Doc. 93 at 3.

109 R. Docs. 120 at 13; 138 at 4-5.

Plaintiffs provided no meaningful summary of the facts and opinions forming the basis of Davis’s

testimony as would satisfy Rule 26(a)(2)(C), “[a]nd referral to depositions is not an adequate

substitute for the summary required by Rule 26.” AX Wireless, 2024 WL 1495784, at *1 (quotation

omitted). Plaintiffs offer no explanation for their failure and the Court sees no good cause to

excuse them from complying with Rule 26. Thus, although Davis may testify as a fact witness,

Plaintiffs may not attempt to elicit expert opinions from him.

Plaintiffs also failed to provide Rule 26(a)(2)(C) summaries of the expected testimony from

Melisa Rey’s healthcare providers and therapists. Instead, Plaintiffs insist that providing the

records from these witnesses is sufficient “to provide notice of the nature and extent of the

testimony that is going to be offered.”110 It is not. “Providing medical records and expecting

defendants to search for the opinions that may be contained therein does not satisfy Rule

26(a)(2)(C).” Matthews v. Amtrust Grp., Ins., 2020 WL 206186, at *2 (E.D. La. Jan. 14, 2020).

To allow such a practice places the onus on Defendants to search the medical records for any

causation opinions and the supporting facts, which opinions, say Defendants, are not present in the

medical records.111 Again, Plaintiffs offer no explanation for their failure and the Court sees no

good cause to excuse them from complying with Rule 26. Accordingly, none of Melisa Rey’s

healthcare providers or therapists can offer causation opinions as an expert, although they can

testify about any causation determination necessary to and made during the course of Melisa Rey’s

treatment, if contained in the medical records.112 See Rea v. Wis. Coach Lines, Inc., 2014 WL

4981803, at *5-6 (E.D. La. Oct. 3, 2014) (excluding treating physician’s causation opinions that

110 R. Docs. 120 at 16-18 (quote at 17-18); 139 at 6-7.

111 R. Doc. 105-1 at 13.

112 Because she was not included on the witness list, Dr. Byrne may not testify at all. See R. Doc. 99; see

also R. Doc. 93 at 3 (the scheduling order required witness and exhibit lists to be filed by August 20, 2025, and states

that “[t]he Court will not permit any witness, expert or fact, to testify or any exhibits to be used unless there has been

compliance with this Order as it pertains to the witness and/or exhibits, without an order to do so issued on motion for

good cause shown”).

were not established by the medical records when plaintiff failed to comply with the disclosure

requirements of Rule 26(a)(2)(C)).

Lastly, it is unclear from the cryptic entries on the witness list whether Hackenberg and the

contractor Rau are being offered by Plaintiffs as retained or non-retained experts. Regardless, they

cannot testify as either type of expert because Plaintiffs failed to provide a Rule 26(a)(2)(B) report

or a Rule 26(a)(2)(C) disclosure with respect to these witnesses. And, again, Plaintiffs offer no

explanation for such failure and the Court sees no good cause to excuse them from complying with

Rule 26. As with the other improperly disclosed purported experts, the architect and contractor

can testify as fact witnesses, if appropriate, but Plaintiffs cannot elicit any expert opinions from

them.113

B. Defendants’ Motion for Summary Judgment

1. Summary Judgment Standard

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. “Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a party who fails

to make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. A party

moving for summary judgment bears the initial burden of demonstrating the basis for summary

judgment and identifying those portions of the record, discovery, and any affidavits supporting the

conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets

113 The Court will not attempt to rule in a vacuum as to what these witnesses can or cannot say, but instead

will rule on contemporaneous objections lodged at trial.

that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate

the existence of a genuine issue of material fact. Id. at 324.

A genuine issue of material fact exists if a reasonable jury could return a verdict for the

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive

law identifies which facts are material. Id. Material facts are not genuinely disputed when a

rational trier of fact could not find for the nonmoving party upon a review of the record taken as a

whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); EEOC

v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory

allegations, and merely colorable factual bases are insufficient to defeat a motion for summary

judgment. See Anderson, 477 U.S. at 249-50; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment

motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co.

v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court

must assess the evidence, review the facts, and draw any appropriate inferences based on the

evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton,

572 U.S. 650, 656-57 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet,

a court only draws reasonable inferences in favor of the nonmovant “when there is an actual

controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37

F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

After the movant demonstrates the absence of a genuine issue of material fact, the

nonmovant must articulate specific facts showing a genuine issue and point to supporting,

competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v.

Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A), (c)(2). Such

facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475

U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue,

the moving party may simply point to insufficient admissible evidence to establish an essential

element of the nonmovant’s claim in order to satisfy its summary-judgment burden. See Celotex,

477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could

support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37

F.3d at 1075-76.

2. FAA preemption

Defendants move for summary judgment on Plaintiffs’ request for a preliminary injunction

requiring them to relocate the helipad and change the flight paths to abate the noise, arguing that

such a remedy is preempted by the FAA, because both moving the helipad and changing flight

paths affect federally controlled airspace.114 Defendants point to the testimony of Bertucci and

Heliport Systems and the report of Keith Cianfrani, their aviation expert, to support their

argument.115 Bertucci, say Defendants, testified that “the FAA determined the primary and

secondary routes to and from the helipad based on historical wind patterns, obstructions, and

helipad orientation.”116 And Helipad Systems, which “designed, constructed and installed the new

helipad at [Children’s Hospital] testified about the FAA approval process for the relocated

helipad,” involving the FAA’s “evaluat[ion] whether the proposed flight paths conflict with flight

paths from other airports or helipads and … confirm[ation] that there are no obstructions that the

helicopter can hit using those flight paths.”117 Then the FAA issues a letter of determination.118

114 R. Doc. 106-1 at 11-15.

115 Id. at 13-14.

116 Id. at 13.

117 Id.

118 Id.

Defendants observe that aviation expert Cianfrani, in his report, explains that, before the helipad

could be moved back to its old location, the FAA would have to conduct a new airspace study, and

approval is not guaranteed, because the old helipad has been decommissioned for five years during

which time circumstances could have changed.119

In their opposition, Plaintiffs argue that their request for an injunction arises from their

state-law nuisance claim, which they say is not preempted by the FAA.120 Plaintiffs contend that

their request for injunctive relief is not preempted because they “do not seek to control flight paths,

altitudes, or airspace management,” but “[r]ather, they challenge a discretionary land-use decision:

[Defendants’] choice to relocate [their] helipad from a buffered site to the rooftop of a tower

adjacent to homes,” which, say Plaintiffs, make “[t]he resulting noise and nuisance … questions

of state property law, not federal preemption.”121 While Plaintiffs acknowledge that FAA

regulations preempt state laws affecting airspace, they assert that the case law recognizes that state

and local authorities have control over land use for airports and heliports and allows for state-law

nuisance claims related to noise.122 Plaintiffs cite testimony from Bertucci, Heliport Systems, and

Cianfrani, which they claim supports their theory that the FAA does not regulate helipad noise or

site selection.123 Plaintiffs further admit that they “are not seeking to eliminate helicopter

operations or impede patient care,” but instead, “[t]hey seek only to require that the helipad be

located in a place that balances hospital needs with community welfare” in accord with local land-

use regulations and state nuisance law.124

119 Id. at 13-14. Defendants also argue that Plaintiffs cannot meet their burden to secure a mandatory

permanent injunction. Id. at 14-15. The Court need not discuss this because the Court finds that Plaintiffs’ request

for an injunction is preempted by the FAA.

120 R. Doc. 123 at 10-16.

121 Id. at 10.

122 Id. at 10-11.

123 Id. at 12-14.

124 Id. at 16.

In reply, Defendants reurge that Plaintiffs’ request for a mandatory injunction is

preempted.125 Defendants explain that their “motion does not argue that the FAA regulations

preempt state law nuisance and negligence claims or local land use regulation, such as zoning and

permitting.”126 But “[r]ather, [Defendants] argue[] only that FAA regulations preempt Plaintiffs’

request for a mandatory injunction that [Defendants] be ordered to ‘relocate [their] heliport’ and

otherwise abate noise from helicopters by relocating the helipad, which would necessarily

implicate FAA airspace and require FAA approval.”127 Defendants also point out that Plaintiffs’

injunction request is preempted by the FAA because: “(1) Plaintiffs testified that the flight paths

were an issue; and (2) the relocation of the helipad necessarily involves the FAA approving flight

paths to and from the helipad.”128 Again, Defendants contend that moving the helipad would

“require the FAA to conduct an aeronautical study to determine if the flight paths to the old pad

conflict with existing flight paths or obstructions in the area, some of which could have been put

in place during the previous five years.”129

Plaintiffs file a surreply reasserting that they only challenge Defendants’ land-use decision

on relocating the helipad and do not seek to control flight paths, altitudes, or airspace.130 Plaintiffs

acknowledge, however, that an injunction requiring a change in flight paths to abate noise is one

component of their claim.131 Additionally, Plaintiffs admit that “the FAA may be involved in

reviewing flight paths” for a helipad but, say Plaintiffs, that involvement does not warrant

preemption of their request for an injunction because “the process is straightforward” for

Defendants to “simply resubmit its proposed flight paths, and the FAA would either object or not

125 R. Doc. 125 at 2-6.

126 Id. at 2.

127 Id. at 2-3.

128 Id. at 3.

129 Id. at 5.

130 R. Doc. 134 at 2.

131 Id. at 2-3.

object.”132 Plaintiffs further maintain that the siting of helipads is a matter of local concern that is

not preempted by the FAA.133

In their sur-surreply, Defendants argue that, although “Plaintiffs admit that the FAA would

be involved in reviewing flight paths to and from the relocated helipad,” they downplay this

involvement without disputing “that the relocated helipad would not be allowed to operate unless

and until the flight paths were not objected to (approved) by the FAA.”134 Defendants again cite

evidence – namely, Heliport Systems’ testimony – of the necessity of the FAA’s involvement in

approving the location of the helipad.135

The analysis must begin with a discussion of preemption. The Supreme Court has

explained:

The Supremacy Clause provides that “the Laws of the United States” (as well

as treaties and the Constitution itself) “shall be the supreme Law of the Land ... any

Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”

Congress may consequently pre-empt, i.e., invalidate, a state law through federal

legislation. It may do so through express language in a statute. But even where …

a statute does not refer expressly to pre-emption, Congress may implicitly pre-empt

a state law, rule, or other state action.

It may do so either through “field” pre-emption or “conflict” pre-emption. As

to the former, Congress may have intended “to foreclose any state regulation in the

area,” irrespective of whether state law is consistent or inconsistent with “federal

standards.” In such situations, Congress has forbidden the State to take action in

the field that the federal statute pre-empts.

By contrast, conflict pre-emption exists where “compliance with both state and

federal law is impossible,” or where “the state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.’”

In either situation, federal law must prevail.

132 Id. at 3.

133 Id. at 4-5.

134 R. Doc. 136 at 2.

135 Id. at 2-3.

Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376-77 (2015) (internal citations omitted; emphasis in

original). Defendants here advocate for the application of “field preemption.”

Field preemption of “areas that have been traditionally occupied by the States” occurs only

where “congressional intent to supersede state laws [is] clear and manifest.” English v. Gen. Elec.

Co., 496 U.S. 72, 79 (1990) (quotations omitted); see also City of Burbank v. Lockheed Air

Terminal Inc., 411 U.S. 624, 643 (1973) (Rehnquist, J., dissenting) (recognizing that “noise

regulation has traditionally been an area of local, not national, concern”). Courts do not “infer pre-

emption from the comprehensiveness of regulations” because “agencies normally address

problems in a detailed manner and … we can expect that they will make their intentions clear if

they intend for their regulations to be exclusive.” Hillsborough Cnty. v. Automated Med. Lab’ys,

Inc., 471 U.S. 707, 717-18 (1985). Absent clear field preemption, state and local authorities may

identify additional needs or impose further requirements in a federally regulated field. Id. at 717.

However, once a court determines that field preemption applies, it must then determine whether

the state law at issue falls within the scope of the preemption. Goodspeed Airport LLC v. E.

Haddam Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 211 (2d Cir. 2011). “The key

question is thus at what point the state [law] sufficiently interferes with federal regulation that it

should be deemed pre-empted.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 107 (1992).

As noted in Lewis v. Bell Helicopter Textron, Inc., “[c]ases addressing preemption in the

context of suits [related to air transportation] or airports commonly involve a state or local

government that, using its police powers, passes a law or ordinance regulating the operation of an

airport or air carrier.” 2015 WL 3542887, at *4 (Tex. App. June 4, 2015). This case, like Lewis,

instead “involves a different scenario” whereby Plaintiffs seek to use state “nuisance laws that do

not expressly mention or address aviation to regulate” the location of a heliport and the helicopter

flight paths. Id.

Defendants do not contend that Plaintiffs’ nuisance claim is entirely preempted by the

FAA. Indeed, Plaintiffs’ nuisance claim for damages is not. See, e.g., id., at *8-9 (refusing to hold

that the FAA preempted plaintiffs’ state-law nuisance claim for damages caused by helicopter

noise); Wood v. City of Huntsville, 384 So. 2d 1081, 1084-85 (Ala. 1980) (holding that a private

nuisance action related to helicopter noise was not preempted by the FAA). Rather, Defendants

argue that Plaintiffs’ requested injunctive relief is preempted. The question presented, then, is: if

Plaintiffs prove that the helicopter is a nuisance under Louisiana law, can this Court issue an

injunction requiring Defendants to relocate their helipad and reroute their helicopter flights to abate

noise? The answer is resoundingly no.

The FAA states that “[t]he United States Government has exclusive sovereignty of airspace

of the United States.” 49 U.S.C. § 40103(a)(1). The administrator of the FAA is charged with

“develop[ing] plans and policies for the use of navigable airspace and assign[ing] by regulation or

order the use of the airspace necessary to ensure the safety of aircraft136 and the efficient use of

airspace.” Id. § 40103(b)(1). That duty includes “prescrib[ing] air traffic regulations on the flight

of aircraft (including regulations on safe altitudes) for (A) navigating, protecting, and identifying

aircraft; (B) protecting individuals and property on the ground; (C) using the navigable airspace

efficiently; and (D) preventing collision between aircraft, between aircraft and land or water

vehicles, and between aircraft and airborne objects.” Id. § 40103(b)(2).

136 “Aircraft” is defined as “any contrivance invented, used, or designed to navigate, or fly in, the air.” 49

U.S.C. § 40102(a)(6). “[T]he term ‘aircraft’ includes helicopters which are designed and used to fly in the air.” United

States v. Greene, 2013 WL 5488653, at *15 (E.D. Tenn. Sept. 30, 2013).

These statutes clearly “indicate that the federal government has exclusive sovereignty over

assigning the use of the United States airspace in order to efficiently use the airspace and to protect

individuals and property on the ground.” Lewis, 2015 WL 3542887, at * 6 (citing City of Burbank,

411 U.S. at 633-34). As such, due to field preemption, this Court certainly cannot issue an

injunction requiring Defendants to change their helicopter flight paths to abate noise under the

auspice that the noise is a nuisance under Louisiana law.

The murkier question is whether this Court can issue an injunction requiring Defendants to

move the helipad if it is determined to be a nuisance. Courts have held that state and local

authorities are empowered to enact ordinances regulating the location of airports and helipads.

Hoagland v. Town of Clear Lake, 415 F.3d 693, 697 (7th Cir. 2005) (holding that “[t]he siting of

an airfield – so long as it does not interfere with existing [air] traffic patterns, etc. – remains an

issue for local control” because the court was not “convinced that Congress meant to take the siting

of air fields out of the hands of local officials”); Gustafson v. City of Lake Angelus, 76 F.3d 778,

783 (6th Cir. 1996) (distinguishing between “the United States’ sovereign regulation of the

airspace over the United States and the regulation of aircraft in flight” and “the regulation of the

designation of plane landing sites, which involves local control of land … use”); Thul v. State, 657

N.W.2d 611, 619 (Minn. App. 2003) (holding that the ordinance at issue was not preempted by

the FAA “because regulating the location of heliports has been determined to be within the

province of local governments”); City of Cleveland v. City of Brook Park, 893 F. Supp. 742, 751

(N.D. Ohio 1995) (stating that the FAA has the “authority to regulate the use of airspace, but this

does not of necessity lead to the conclusion that localities are no longer free to regulate the use of

land within their borders, even where land use regulations may have some tangential impact on

the use of airspace”); Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir. 1990) (stating

that the court saw “no conflict between a city’s regulatory power over land use, and the federal

regulation of airspace, and ha[d] found no case recognizing a conflict”). However, this case does

not involve a state or local ordinance regarding the siting or location of a helipad. Instead,

Plaintiffs rely on a private action under Louisiana nuisance law to attempt to force Defendants to

move the helipad. In Wood v. City of Huntsville, the court upheld the issuance of an injunction

prohibiting the defendant from operating a helicopter from his home because it was determined to

be a nuisance. 384 So. 2d at 1082-85. Thus, it appears that this Court could, under state nuisance

law, enjoin Defendants from operating a helipad on their property if the equities favor Plaintiffs.

See Badke v. USA Speedway, LLC, 139 So. 3d 1117 (La. App. 2014) (upholding an injunction

prohibiting the operation of a racetrack as a nuisance); see also Par. of E. Feliciana ex rel. E.

Feliciana Par. Police Jury v. Guidry, 923 So. 2d 45, 51 (La. App. 2005) (upholding an injunction

prohibiting the operation of a motocross track as a nuisance). But Plaintiffs expressly state that

they “are not seeking to eliminate helicopter operations or impede patient care.”137 And the parties

have not cited, nor is the Court aware of, any case in which a court has issued an injunction under

state nuisance law requiring a helipad, particularly a hospital helipad, to be moved.

So what we are left with is the determination that the FAA preempts any state or local law

that would affect airspace, but it does not preempt any state or local laws regulating land use. Here,

the requested injunction – to move the helipad – would affect airspace. Although the relocated

helipad would still be on Defendants’ property, it would be in a different location and the flight

paths would necessarily be different, even if only slightly. As explained by Bertucci, Heliport

Systems, and Cianfrani, the FAA is involved in approving the location of a helipad by conducting

an aeronautical airspace study to examine whether the proposed flight paths interfere with existing

137 R. Doc. 123 at 16.

air traffic patterns.138 Depending on the results of that study, the FAA then issues a letter of

determination, either objecting or not objecting to the location of the helipad.139 Cianfrani further

states in his report that approval is not guaranteed, even for the Defendants’ old helipad, because

it has been decommissioned for five years and flight paths, airspace use, and obstructions in the

area could have changed in the interim.140 Plaintiffs have offered no countervailing evidence.

Plaintiffs try to downplay the FAA’s involvement in the approval of helipad locations by labeling

the application and approval process as “straightforward,” but they admit that the FAA is involved

in reviewing flight paths.141 Plaintiffs position seems to be that the Court should be able to issue

the requested injunction because FAA will likely allow a helipad relocation to the former site as,

in their view, that would involve minimal change to the flight paths. However, the amount of

change to the flight paths – especially from a lay vantage point – is immaterial. The FAA would

still need to be involved in determining that the flight paths to and from the relocated helipad do

not conflict with other airspace use. And it is this impingement on airspace that is fatal to

Plaintiffs’ injunction request. See Lewis, 2015 WL 3542887, at *7 (holding that a court cannot

compel a new flight path as a remedy for nuisance through the application of state law because the

federal government occupies the field of flight path regulation). Accordingly, Defendants’ motion

for summary judgment is granted as to Plaintiffs’ request for injunctive relief, and that claim is

DISMISSED WITH PREJUDICE.

138 R. Docs. 106-2 at 11-12 (Bertucci deposition); 106-5 at 7-8, 12-13 (Heliport Systems deposition); 106-6

at 10-11 (Cianfrani report).

139 R. Doc. 106-5 at 7.

140 R. Doc. 106-6 at 10-11.

141 R. Doc. 134 at 2.

3. Nuisance claim for damages

a. Viability of the claim

Defendants argue that Plaintiffs’ nuisance claim fails as a matter of law.142 Defendants say

that they cannot be liable for nuisance because Louisiana Civil Code article 669 “only allows

suppression of certain inconveniences if they are excessive under local ordinances or customs,”

and their helicopter, as an emergency vehicle, is exempt from the city noise ordinance, meaning

that Plaintiffs cannot prove that the helicopter noise is excessive under a local ordinance or

custom.143 Defendants also point out that Plaintiffs’ sound expert, Bommer, did not calculate the

noise from the Defendants’ helicopter operations in light of the city noise ordinance, and that the

New Orleans Department of Health has opined that the helicopter is exempt from the ordinance

when it is responding to an emergency.144 Defendants further contend that “[t]he FAA regulates

permissible levels of noise from general aviation operations, and it is undisputed that the noise

emanating from [their] heliport and helicopter is well within the levels permitted by the FAA.”145

Defendants support that argument by citing to the opinions of their sound expert, Reindel, and the

testimony of Heliport Systems, which was the company involved in designing the heliport.146 In

summary, Defendants conclude that “Plaintiffs’ nuisance claim must be dismissed as a matter of

law,” because, “[a]t most, the alleged noise emanating from the helicopter is nothing more than an

inconvenience permissible under [article] 669.”147

Plaintiffs respond in opposition, arguing that the FAA regulations do not establish a

permissible noise threshold for hospital helicopter operations and, in their view, Bommer’s method

142 R. Doc. 106-1 at 15-20.

143 Id. at 16, 18-19 (emphasis in original).

144 Id. at 18-19.

145 Id. at 17.

146 Id. at 17-18.

147 Id. at 20.

appropriately measured the impact of the helicopter noise on the neighborhood.148 Plaintiffs also

argue that Defendants’ helicopter is exempt from the city noise ordinance only when it is

responding to emergencies, and Defendants have not identified “which specific flights were true

emergency responses and which were not,” meaning that, in Plaintiffs’ view, “Defendants cannot

establish as a matter of law that the [city] [n]oise [o]rdinance is inapplicable.”149 Plaintiffs further

contend that Defendants’ “compliance with zoning or noise regulations does not immunize their

operations from nuisance liability,” and “[w]hether the helicopter operations at issue rise to [the]

level [of nuisance] requires a fact-intensive inquiry,” which precludes summary judgment.150

Additionally, Plaintiffs assert that there are disputed issues of material fact concerning whether

Defendants knew or should have known that relocating the helipad to its current location would

cause Plaintiffs real damages or excessive inconvenience.151

In their reply, Defendants reassert that Plaintiffs’ nuisance claim fails as a matter of law

because Defendants have “firmly established that any noise is not excessive under local ordinances

and customs” and Plaintiffs have not presented any evidence to show that it is.152 Defendants also

reurge that courts have adopted the FAA’s method for calculating noise, as have Reindel and

Heliport Systems.153 Further, Defendants point out that Plaintiffs have not “cite[d] to any record

evidence to describe or measure the noise [about] which Plaintiffs complain.”154

In their surreply, Plaintiffs contest Defendants’ assertion that courts, Reindel, and Heliport

Systems have accepted the FAA’s method for calculating noise but insist, nonetheless, that any

148 R. Doc. 123 at 17-19. Most of Plaintiffs nuisance arguments relate to the availability of injunctive relief.

Id. at 14-20.

149 Id. at 19.

150 Id. at 19-20.

151 Id. at 21-22.

152 R. Doc. 125 at 6-9 (quote at 7).

153 Id. at 7-8.

154 Id. at 7.

such acceptance by a court does not apply to preclude “state-law nuisance claims against a

privately owned helipad.”155

In their sur-surreply, Defendants once again say that Plaintiffs’ nuisance claim fails as a

matter of law because they do not “present any reliable and valid evidence that the aviation noise

they complain of is excessive under local ordinance or custom as required by Louisiana nuisance

law.”156 They also reurge that the DNL is the proper standard for measuring aviation noise, as

attested by Reindel and Heliport Systems.157

Claims for nuisance are governed by the vicinage articles 667 through 669 of the Louisiana

Civil Code. Article 667 states in pertinent part:

Although a proprietor may do with his estate whatever he pleases, still he cannot

make any work on it, which may deprive his neighbor of the liberty of enjoying his

own, or which may be the cause of any damage to him. However, if the work he

makes on his estate deprives his neighbor of enjoyment or causes damage to him,

he is answerable for damages only upon a showing that he knew or, in the exercise

of reasonable care, should have known that his works would cause damage, that the

damage could have been prevented by the exercise of reasonable care, and that he

failed to exercise such reasonable care.

La. Civ. Code art. 667. Article 668, however, appears to place a limit on the conduct actionable

under article 667, as it implies that mere inconvenience is noncognizable: “Although one be not at

liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has

the liberty of doing on his own ground whatsoever he pleases, although it should occasion some

inconvenience to his neighbor.” Id. art. 668. Finally, notwithstanding article 668’s seeming

tolerance of inconveniences, article 669 states:

If the works or materials for any manufactory or other operation, cause an

inconvenience to those in the same or in the neighboring houses, by diffusing

smoke or nauseous smell, and there be no servitude established by which they are

155 R. Doc. 134 at 5-6 (quote at 6).

156 R. Doc. 136 at 3.

157 Id. at 3-4.

regulated, their sufferance must be determined by the rules of the police, or the

customs of the place.

Id. art. 669.

Louisiana’s vicinage articles thus “‘embody a balancing of rights and obligations

associated with the ownership of immovables.’” Ellis v. Evonik Corp., 604 F. Supp. 3d 356, 374

(E.D. La. 2022) (quoting Badke, 139 So. 3d at 1126). While a landowner has wide latitude to

“‘exercise his rights of ownership in any manner he sees fit’” and may subsequently cause some

inconvenience to neighbors, activities cannot cause “‘real damage to his neighbor.’” Id. (quoting

Badke, 139 So. 3d at 1126). Article 667 “prohibits uses which cause damage to neighbors or

deprive them of the enjoyment of their property, while [article] 668 permits uses which merely

cause neighbors some inconvenience. [Article] 669 allows suppression of certain inconveniences

if excessive under local ordinances or customs, and requires tolerance of lesser inconveniences.”

Barrett v. T.L. James & Co., 671 So. 2d 1186, 1190 (La. App. 1996). “A finding of liability under

[a]rticle 667 requires either proof of personal injury or physical damage to property or proof of the

presence of some type of excessive or abusive conduct.” Myers v. Union Carbide Corp., 2022

WL 17092121, at *4 (E.D. La. Nov. 21, 2022) (quotation and alteration omitted).

“With the exception of the ‘ultrahazardous’ activities of pile driving and blasting with

explosives – neither of which is at issue here – a claim under any or all of these three Code articles

requires a showing of negligence.” Id. Thus, to prevail on a nuisance claim under any or all of

these articles, a plaintiff must prove 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 WL 4111681, at *2 (E.D. La. Aug. 29, 2019).

In analyzing whether conduct is excessive or abusive, i.e., more than an inconvenience, a

court must determine the reasonableness of the conduct in light of the circumstances including

“the character of the neighborhood, the degree of the intrusion and the effect of the activity on the

health and safety of the neighbors.” Rodrigue v. Copeland, 475 So. 2d 1071, 1077 (La. 1985).

“[W]hether an inconvenience is excessive or not is to be determined in the light of local ordinances

and customs.” Barrett, 671 So. 2d at 1191. But “local nuisance ordinances must be construed in

reference to the applicable civil code provisions.” Par. of E. Feliciana, 923 So. 2d at 51.

Moreover, for noise to constitute a nuisance that is subject to an action for damages, the noise must

be “excessive, unreasonable in degree, and of such character as to produce actual physical

discomfort and annoyance to a person of ordinary sensibilities.” King v. W. Club, Inc., 587 So. 2d

122, 124 (La. App. 1991). “When the actions or work cease to be inconveniences and become

damaging is a question of fact.” Badke, 139 So. 3d at 1126.

Defendants hinge their argument that Plaintiffs’ nuisance claim fails as a matter of law on

the premise that Plaintiffs must, and cannot, prove that Defendants violated a local ordinance or

custom.158 This is not what Louisiana nuisance law requires. Nowhere does Louisiana law provide

that compliance with a noise ordinance provides an escape hatch to a nuisance claim. However,

while a city ordinance or permit cannot validate a nuisance or, conversely, invalidate a nuisance

claim, Meyer v. Kemper Ice Co., 158 So. 378, 381 (La. 1934), a court “must consider” the zoning

and planning standards as one of several relevant factors in determining whether an alleged

nuisance exists. Jones v. Capitol Enters., 89 So. 3d 474, 508 (La. App. 2012) (stating that among

the relevant factors are “[t]he place where the activity occurs,” which includes “consider[ing] the

neighborhood, zoning and planning standards, environmental goals”). Indeed, under Louisiana

law, whether an inconvenience is so excessive as to rise to the level of a nuisance is evaluated in

light of numerous factors that include not only local ordinances and customs, but also the character

158 R. Doc. 106-1 at 15-20.

of the neighborhood, the degree of intrusion, the effect of the activity on the health and safety of

the neighbors, and whether it causes actual physical discomfort and annoyance to a person of

ordinary sensibilities. See Barrett, 671 So. 2d at 1191; Rodrigue, 475 So. 2d at 1077; King, 587

So. 2d at 124. In short, the Defendants’ compliance (or not) with the city noise ordinance is one

factor that will be considered by the factfinder in determining whether their helicopter is a

nuisance. The same is true of the FAA aviation noise standard. Defendants have not shown that

this standard applies in such a way as to negate a state-law nuisance claim arising from the

operation of a private helicopter.159 Thus, Defendants’ compliance with the FAA standard, as with

the city noise ordinance, is a factor to be evaluated in determining whether their helicopter

operations constitute a nuisance. At this juncture, viewing the evidence in the light most favorable

to Plaintiffs, they have identified sufficient disputed issues of material fact (e.g., their own

experiences with the noise) to defeat Defendants’ motion for summary judgment on their nuisance

claim for damages.

b. Damages

Defendants argue that Plaintiffs cannot recover damages for personal injuries, including

(1) hearing loss, (2) sleep disturbance, (3) mental health issues, (4) physical and mental suffering,

(5) past, present, and future medical expenses, and (6) past, present, and future mental pain and

suffering, because “Plaintiffs have failed to identify or disclose any retained or non-retained

experts to offer expert general or specific causation testimony for their alleged medical injuries.”160

Defendants also contend that Plaintiffs cannot recover for diminution of property value and

159 Defendants cite Seattle Cmty. Council Fed’n, 961 F.2d at 834-35, for the proposition that “courts have

consistently upheld this FAA standard [i.e., the DNL] to measure noise impacts from aviation operations.” R. Doc.

125 at 7-8. While the DNL standard is one way to measure noise, Defendants have not cited, nor is the Court aware

of, any case establishing that the DNL is the only way to measure aviation noise, particularly in the context of a state-

law nuisance claim.

160 R. Doc. 106-1 at 22-23 (quote at 23).

property damage because they “did not disclose a real estate expert and have no evidence to

establish the diminution of value to [their] residences.”161 Lastly, Defendants argue that Plaintiffs

cannot recover damages for the cost to remediate their properties because they “have no expert

who can opine on what sound remediation is needed for each of the three homes, the costs, and the

success of such remediation.”162 To that end, Defendants observe that Plaintiffs listed an architect

(Hackenberg) and contractor (Rau) on their witness list, but failed to properly designate them as

retained or non-retained experts, and “there has been no disclosure on how much if any [of] the

cost [Plaintiffs incurred] was for sound remediation as opposed to other construction work,

including adding on a bedroom, bathroom, and replacing the electrical and plumbing.”163

Plaintiffs did not address these arguments in their summary-judgment response.164 They

thus concede that they cannot prevail on these items of damages. See Magee v. Life Ins. Co. of N.

Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003) (stating that “failure to brief an argument in

the district court waives that argument in that court”); see also Kellam v. Metrocare Servs., 2013

WL 12093753, at *3 (N.D. Tex. May 31, 2013) (“Generally, the failure to respond to arguments

constitutes abandonment or waiver of the issue.” (quotation omitted)), aff’d, 560 F. App’x 360

(5th Cir. 2014). Moreover, in ruling on Defendants’ motion in limine this Court held that Plaintiffs

failed to properly disclose retained or non-retained experts to address these issues. Accordingly,

Plaintiffs’ claims for damages related to: (A) personal injuries, including (1) hearing loss, (2) sleep

disturbance, (3) mental health issues, (4) physical and mental suffering, (5) past, present, and future

medical expenses, and (6) past, present, and future mental pain and suffering; (B) diminution of

161 Id. at 23-24 (quote at 24).

162 Id. at 24.

163 Id.

164 See R. Doc. 123.

property value; (C) property damage; and (D) the cost to remediate their properties, are

DISMISSED WITH PREJUDICE.165

4. Negligence

Defendants assert that Plaintiffs’ negligence claim must be dismissed because it is not an

independent general negligence claim, but rather a nuisance-negligence claim that is subsumed by

Plaintiffs’ claim under the vicinage articles.166 In response, Plaintiffs affirm that they “have not

asserted a stand-alone negligence claim under article 2315, but rather a nuisance claim under Civil

Code articles 667-669, which incorporates negligence as a component.”167

Under Louisiana law, “[i]t is well established [that] any negligence action based on the

vicinage articles is governed by the same duties and considerations as a direct action under those

Code [a]rticles. In other words, whether it is called a negligence action or an action under 667-

669, the same legal standards apply.” Yokum v. Pat O’Brien’s Bar, Inc, 2023 WL 11893172, at

*5 (La. Dist. Ct. May 24, 2023). And while “there is a distinction between a general negligence

claim under article 2315 and the distinct negligence requirements for a nuisance claim under the

vicinage articles,” id. (citing LeBouef v. Evonik Corp., 620 F. Supp. 3d 463, 474 (E.D. La. 2022)),

because Plaintiffs admit that they allege only a nuisance-negligence action under the vicinage

articles, any negligence claim purportedly stated in the complaint is DISMISSED WITH

PREJUDICE.

165 What remains to be tried is Plaintiffs’ nuisance claim for damages related to loss of use of their property

and inconvenience. See R. Doc. 1-1 at 10.

166 R. Doc. 106-1 at 20-22.

167 R. Doc. 123 at 20. Defendants acknowledge Plaintiffs’ admission in their reply but argue that the claim

should also be dismissed because Plaintiffs cannot prevail on a nuisance claim. R. Doc. 125 at 9.

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Defendants’ motion in limine to exclude Bommer’s opinions and

testimony from trial (R. Doc. 105) is GRANTED as to excluding Bommer’s testimony and

opinions regarding property valuation, health effects and sleep disturbances caused by noise,

residential sound modifications, and aviation-related topics, such as the feasibility of moving the

helipad back to its old location, changing flight paths, or using the helipad only for specific

purposes. The motion is otherwise DENIED.

IT IS FURTHER ORDERED that Defendants’ motion in limine to exclude any other

retained or non-retained experts from offering opinions for Plaintiffs at trial (R. Doc. 105) is

GRANTED. However, these witnesses (i.e., Melisa Rey’s healthcare providers and therapists,

Hackenberg, and Rau) may testify as fact witnesses, if appropriate.

IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (R. Doc.

106) is GRANTED as to dismissing Plaintiffs’ claim for injunctive relief, which is DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant’s motion for summary judgment (R. Doc.

106) is DENIED as to dismissing Plaintiffs’ nuisance claim for damages, generally.

IT IS FURTHER ORDERED that Defendant’s motion for summary judgment (R. Doc.

106) is GRANTED as to dismissing Plaintiffs’ stand-alone negligence claim, and that claim is

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (R. Doc.

106) is GRANTED as to dismissing Plaintiffs’ claims for damages related to: (A) personal injuries,

including (1) hearing loss, (2) sleep disturbance, (3) mental health issues, (4) physical and mental

suffering, (5) past, present, and future medical expenses, and (6) past, present, and future mental

pain and suffering; (B) diminution of property value; (C) property damage; and (D) the cost to

remediate their properties, and those claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 3rd day of November, 2025.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE