Craig Steven Arabie v. Citgo Petroleum Corporation

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-244

CRAIG STEVEN ARABIE, ET AL.

VERSUS

CITGO PETROLEUM CORPORATION, ET AL.

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APPEAL FROM THE

FOURTEENTH JUDICIAL DISTRICT COURT

PARISH OF CALCASIEU, NO. 2007-2738

HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX

CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and

James T. Genovese, Judges.

AFFIRMED.

M. Dwayne Johnson

Charles S. McCowan, Jr.

Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P.

P. O. Box 3513

Baton Rouge, LA 70825

Telephone: (225) 387-0999

COUNSEL FOR:

Other - Louisiana Chemical Association

William B. Baggett

Wells Talbot Watson

Baggett, McCall, Burgess, Watson & Gaughan

P. O. Drawer 7820

Lake Charles, LA 70606-7820

Telephone: (337) 478-8888

COUNSEL FOR:

Plaintiffs/Appellees - Bennett Talbot, Jason Doucet, Jerry Richard, Jr., John

Giovanni, Glen Miller, Dennie Bankston, Charles Hardy, Dexter Breaux, Scott

Levy, Craig Steven Arabie, Jimmy Buckelew, Larry Thomas, Joseph Burnett,

and Randall Fontenot

Peter J. Butler

2000 Belle Chase Hwy - Third Floor

Gretna, LA 70056

Telephone: (504) 433-9350

COUNSEL FOR:

Plaintiffs/Appellees - Bennett Talbot, Jason Doucet, Jerry Richard, Jr., John

Giovanni, Glen Miller, Dennie Bankston, Charles Hardy, Dexter Breaux, Scott

Levy, Craig Steven Arabie, Jimmy Buckelew, Larry Thomas, Joseph Burnett,

and Randall Fontenot

Michael Kenneth Dees

P. O. Box 3753

Lake Charles, LA 70602

Telephone: (337) 439-3661

COUNSEL FOR:

Lake Charles Harbor & Terminal District

Mat Marion Gray, III

E. Stuart Ponder

400 Poydras Street - 30th Floor

New Orleans, LA 70130

Telephone: (504) 523-2600

COUNSEL FOR:

Other - Louisiana Surplus Lines Association

Robert E. Landry

Scofield, Gerard, Singletary & Pohorelsky, L.L.C.

901 Lakeshore Drive - Suite 900

Lake Charles, LA 70601

Telephone: (337) 433-9436

COUNSEL FOR:

Defendant/Appellant - Citgo Petroleum Corporation

Kirk Albert Patrick, III

Law Offices of Donohue Patrick

450 Laurel Street - Suite 1500

Baton Rouge, LA 70801

Telephone: (225) 214-1908

COUNSEL FOR:

Defendant/Appellee - R & R Construction, Inc.

Yul Dubart Lorio

Doucet, Lorio & Moreno

One Lakeshore Drive - #1600

Lake Charles, LA 70629

Telephone: (337) 433-0100

COUNSEL FOR:

Defendant/Appellant - Citgo Petroleum Corporation

Marshall Joseph Simien, Jr.

Simien Law Firm

Capital One Tower - Suite 1110

One Lakeshore Drive

Lake Charles, LA 70629

Telephone: (337) 497-0022

COUNSEL FOR:

Defendant/Appellant - Citgo Petroleum Corporation

Patrick Craig Morrow, Jr.

Morrow, Morrow, Ryan & Bassett

P. O. Drawer 1787

Opelousas, LA 70570

Telephone: (337) 948-4483

COUNSEL FOR:

Others - BMF Partnership’s, Louisiana Landowner, Rice Farmers, Bradley

Zaunbrecher, and Kyle Smith

Richard Edward Sarver

Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C.

909 Poydras Street - Suite #2400

News Orleans, LA 70112

Telephone: (504) 589-9700

COUNSEL FOR:

Defendant/Appellant - Citgo Petroleum Corporation

Richard Elliott Wilson

Cox, Cox, Filo, Camel & Wilson

723 Broad Street

Lake Charles, LA 70601

Telephone: (337) 436-6611

COUNSEL FOR:

Plaintiffs/Appellees - Bennett Talbot, Jason Doucet, Jerry Richard, Jr., John

Giovanni, Glen Miller, Dennie Bankston, Charles Hardy, Dexter Breaux, Scott

Levy, Craig Steven Arabie, Jimmy Buckelew, Larry Thomas, Joseph Burnett,

and Randall Fontenot

THIBODEAUX, Chief Judge.

The defendant-appellant, CITGO Petroleum Corporation (CITGO),

released wastewater and slop oil from its Lake Charles refinery in 2006 when its

wastewater treatment unit (WWTU) overflowed following six inches of rainfall over

a three-hour period. Fourteen plaintiffs (the appellees) working down-river of the

release site brought suit for damages resulting from exposure to toxic chemicals in

the oil and wastewater.

The trial court found CITGO liable and awarded each plaintiff

compensatory damages, general damages, and fear of future injury damages. The trial

court also assessed litigation costs to CITGO and awarded punitive damages against

CITGO in the amount of $30,000.00 per plaintiff. The total damages awarded to each

plaintiff did not exceed $50,000.00. CITGO filed this appeal. We affirm the

judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether CITGO’s actions were the proximate cause

of the plaintiffs’ injuries;

(2) whether the trial court manifestly erred in awarding

damages for fear of future injury;

(3) whether the trial court erred in failing to allocate a

portion of the fault to the plaintiffs and to third

parties; and,

(4) whether the trial court erred in awarding punitive

damages.

II.

FACTS AND PROCEDURAL HISTORY

On June 19, 2006, CITGO released over four million gallons of

hazardous slop oil and seventeen million gallons of wastewater into the Calcasieu

River from the storm surge storage tanks in the CITGO Refinery’s waste water

treatment unit (WWTU) in Lake Charles. The WWTU was built in 1994. Its purpose

was to treat wastewater from the CITGO Refinery and discharge it into the Calcasieu

River. The WWTU contained two ten-million gallon storm tanks which were

designed to store untreated water. The tanks were equipped with skimmers to remove

oil from the water, but the skimmers had not been functional since shortly after the

WWTU was operational. Approximately eight feet of slop oil accumulated

underneath the water in the tanks. The tank levels were not drawn down before the

storm and flooding leading to the release. The capacity overload of the two tanks

during the heavy rainfall in a short period of time caused the tanks to overflow; the

dike around the tanks failed; and, CITGO released twenty-one million gallons of oil

and wastewater into Calcasieu waterways.

The slop oil, which contains hydrogen sulfide and benzene among other

toxic chemicals, ran into the Calcasieu River, affecting approximately one hundred

miles of shoreline. Within two days it had migrated to the Ron Williams

Construction site where the plaintiffs were working at the riverside location of the

Calcasieu Refining Company (CRC). CRC is a small plant that is basically an island,

with only one roadway connecting it to land. The plaintiffs’ work site was encircled

with the mixture. CITGO implemented a two-month clean-up project near and on the

CRC work site. Booms used to soak up the oil were deposited in a large dumpster,

called a roll-off box, approximately thirty feet from the plaintiffs’ lunch and break

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tent. Plaintiffs also attended daily construction meetings in this area. One of the

plaintiffs vomited shortly after arriving at the work site on the first work-day after the

release. Some of the plaintiffs working on the dock area at CRC were directly

exposed to the water and slop oil and alleged rashes and peeling skin as a result of the

exposure. As a result of inhaling the vapors from the chemicals in the slop oil, the

plaintiffs alleged respiratory and central nervous system injuries including, but not

limited to, headaches, nausea, dizziness, as well as eye, nose, and throat problems.

The fourteen plaintiffs from the Ron Williams Construction site at CRC

cumulated their actions and filed suit against CITGO and R & R Construction, Inc.

(R & R), in May of 2007. R & R was under contract with CITGO to provide

construction services for a new levee system around a third storm water tank being

built at the WWTU and was allegedly negligent in building the unit’s junction box.

On September 17, 2008, CITGO entered a plea agreement in federal

court for “Negligently Discharging a Pollutant from a Point Source into the Navigable

Waters of the United States in violation of Title 33 of the United States Code.” In the

plea agreement, CITGO agreed to pay a criminal fine in the amount of thirteen

million dollars in exchange for the Government’s agreement to forgo additional

criminal prosecution for any other environmental offenses that occurred before the

agreement and were known to the Government at the time of the signing of the plea

agreement. The offenses specifically included discharges of pollutants, Clean Air Act

violations, record keeping violations, and disposal and treatment violations.

On September 19, 2008, the trial court issued two judgments in favor of

the plaintiffs, granting them summary judgment on the issues of comparative fault (1)

of the plaintiffs, and (2) of their employer, Ron Williams Construction, and the

premise owner, CRC.

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In March of 2009, CITGO and R & R filed a joint admission of fault for

the release of slop oil from the CITGO refinery. In that document, CITGO agreed to

“pay (upon final judgment after all appeals) plaintiffs for all their compensatory

damages assessed to CITGO and R & R, if any, that plaintiffs are able to prove to the

Court were proximately caused by such release from the CITGO refinery in Calcasieu

Parish, Louisiana, on or about June 19, 2006.”

The plaintiffs amended their suit to include the defendants’ liability for

punitive damages as well as compensatory damages. They asserted that CITGO’s

corporate management—headquartered in Tulsa prior to 2004, and in Houston

thereafter—made decisions in the early 1990s to intentionally underbuild the 1994

WWTU by deleting a third storage tank from the original project plan in order to save

millions of dollars. The engineering for the project design of the third tank was

approved in 2004, and the funds for construction were approved in 2005. The

plaintiffs further asserted that, due to engineering delays caused by CITGO’s

corporate management and the priority given to profit-centered projects, the third tank

was not under construction until 2006 and was not complete and operational when the

flooding and release occurred in June of 2006. The plaintiffs further asserted that,

under a conflict of law analysis, the defendants are liable for punitive damages under

the punitive damage statutes of Oklahoma and Texas, the two states where the

corporate decisions, and thus the damage-causing conduct, occurred.

Following a lengthy trial, the trial court agreed with the plaintiffs and

entered judgment on October 22, 2009. CITGO appeals the trial court’s judgment on

the issues of causation, punitive damages, and costs. CITGO also asserts as error the

trial court’s failure to allocate portions of the fault to the plaintiffs and their employer,

Ron Williams Construction, and to the premise owner, CRC. For the reasons fully

4

set forth below, as to the issues raised by CITGO in this appeal, we affirm the

October 22, 2009 judgment of the trial court and the September 19, 2009 judgments

on allocation of fault.1

III.

LAW AND DISCUSSION

Standard of Review

When an appellate court finds that a reversible error of law was made in

the trial court, it must conduct a de novo review of the entire record and render a

judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate

court may not set aside a trial court’s findings of fact in the absence of manifest error

or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880

(La.1993). Regarding factual findings, a two-tiered test must be applied in order to

reverse the findings of the trial court: (a) the record reveals that a reasonable factual

basis does not exist for the finding of the trial court; and (b) the record establishes

that the finding is clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120

(La.1987).

Even where the appellate court believes its inferences are more

reasonable than the fact finder’s, reasonable determinations and inferences of fact

should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330

(La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s

findings are reasonably based upon the entire record and evidence, an appellate court

may not reverse said findings even if it is convinced that had it been sitting as trier

1

The plaintiffs filed an opposition to CITGO’s appeal. However, rather than answer this

appeal by CITGO, the plaintiffs filed a separate appeal of their own, No. 10-334, now pending in this

court, which assigns errors and requests increases in compensatory damages. Therefore, we will not

address the plaintiffs’ appeal or the quantum of their individual compensatory damages in this

opinion.

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of fact it would have weighed that evidence differently. Housely v. Cerise, 579 So.2d

973 (La.1991). The basis for this principle of review is grounded not only upon the

better capacity of the trial court to evaluate live witnesses, but also upon the proper

allocation of trial and appellate functions between the respective courts.

Causation

In a personal injury suit, a plaintiff must prove causation by a

preponderance of the evidence. The test for determining the causal relationship

between an accident and injury is whether the plaintiff proved through medical

testimony that it is more probable than not that the subsequent injuries were caused

by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La. 2/20/95),

650 So.2d 757.

Citing Molden v. Georgia Gulf Corp, 465 F.Supp. 2d 606 (M.D.La.

2006), In re Ingram Towing Company, 1995 WL 241828 (E.D.La.1995), and

Schexnayder v. Exxon Pipeline Company, 01-1236 (La.App. 5 Cir. 3/13/02), 815

So.2d 156, CITGO contends that the plaintiffs lacked scientific evidence that they

were exposed to harmful or unsafe levels of any chemical sufficient to prove that

CITGO caused the injuries alleged. We disagree. Molden involved exposure to low

concentrations of phenol; Ingram involved a diesel spill with exposure below the

level allowed by OSHA workplace standards; and, Schexnayder involved a denial of

damages for physical injury where residents sued for exposure to crude oil vapors.

Conversely, the present case involves the plaintiffs’ exposure to a mixture of toxic

chemicals, called slop oil, for which there is no government-issued permissible

exposure guideline.

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CITGO’s MSDS on Slop Oil

CITGO’s own Material Safety Data Sheet (MSDS) on “Slop Oil,” dated

March, 29, 2006, ranks it as a chronic health hazard and a fire hazard. The MSDS

section entitled “Emergency Overview” states that the oil is extremely flammable and

poisonous; it contains hydrogen sulfide gas which may be fatal if inhaled. The vapors

may cause flash fire or explosion and may travel a considerable distance. It further

states that the product is harmful or fatal if swallowed; it can enter the lungs and

cause damage. Notably, among numerous other chemicals, slop oil contains benzene,

a known cancer hazard which can cause leukemia and other blood disorders. In

addition to hydrogen sulfide and benzene, the MSDS also states that slop oil contains

xylene, toluene, n-Hexane, hexane, heptane, octanes, nonane, ethylbenzene, and

trimethylbenzenes.

Under the section entitled “Regulatory Information,” the MSDS explains

that slop oil and/or its components are listed on the Toxic Substances Control Act

(TSCA) inventory and that it contains above de minimus levels of the toxins xylene,

toluene, n-Hexane, ethylbenzene, benzene, and hydrogen sulfide. The MSDS further

states that slop oil may be subject to Proposition 65 in California, a state where the

components toluene, ethylbenzene, and benzene are known to cause cancer and birth

defects or other reproductive harm.

The MSDS states that breathing the gas or vapor from slop oil may cause

severe nose, throat, respiratory tract, and lung irritation, respiratory paralysis, and

death. Symptoms include coughing, choking, or shortness of breath. Additionally,

inhalation may cause central nervous system depression with symptoms including

nausea, headache, dizziness, fatigue, drowsiness or unconsciousness. It can cause eye

irritation with tearing, redness, stinging or burning, and can cause swelling of the

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eyes with blurred vision. Skin contact can cause skin irritation with redness, itching,

burning or swelling of the skin and may cause harmful effects in other parts of the

body. Ingesting slop oil can cause stomach or intestinal upset with pain, nausea,

and/or diarrhea. If the material gets into the lungs during swallowing or vomiting,

it can cause lung damage, possibly leading to chronic lung dysfunction or death.

Pursuant to the MSDS, even subacute exposure to low levels of

hydrogen sulfide can produce eye irritation, watering, light sensitivity and corneal

opacity, bronchitis, pulmonary edema, nausea, abdominal cramps, diarrhea, lung

cavity formation, and chronic lung dysfunction. Under the “Conditions Aggravated”

section, the MSDS states that organs or organ systems that may be aggravated by

significant exposure to this material or its components include: skin, respiratory

system, peripheral nervous system, central nervous system (CNS), blood-forming

system, and auditory system. The MSDS explains under the “Target Organs” section

that exposure to slop oil may cause damage to the blood, kidneys, lungs, liver,

mucous membranes, heart, lymphatic system, peripheral nervous system, upper

respiratory tract, immune system, skin, auditory system, bone marrow, central nervous

system (CNS), eye, lens or cornea, and testes. Slop oil further contains material

which may cause damage to the reproductive system, pituitary gland, and thyroid.

Under the section entitled “Carcinogenic Potential,” CITGO’s MSDS on

slop oil states that the carcinogenic effects of ethylbenzene are classified as 2B,

possible for humans; and the carcinogenic effects of benzene are classified as 1,

proven for humans.

Medical Reports and Expert Testimony

While the symptoms varied for each plaintiff, the related symptoms

included health issues identified on CITGO’s own MSDS, such as nausea, dizziness,

8

diarrhea, fatigue, headaches, sinus problems, vomiting, shortness of breath, burning

eyes, sore throat, insomnia, and rash. All of the plaintiffs were examined by Dr.

Robert Looney of Health Associates of Lake Charles, whose individual reports

supported exposure symptoms in varying degrees for each plaintiff. Some of the

plaintiffs were examined by Dr. Steve F. Springer of Lake Charles, who found

symptoms consistent with the adverse health effects listed on CITGO’s MSDS and

assessed petroleum exposure.

Likewise, Dr. Bryan Paul Barrilleaux with St. Luke’s Diagnostic Clinic

of Lake Charles, who examined all of the plaintiffs on behalf of CITGO, reported

evidence of exposure. As to his medical opinions, only one report was admitted into

evidence by CITGO. Dr. Barrilleaux was not called as a witness at trial, nor was he

deposed prior to trial. However, in the one report entered into evidence, Dr.

Barrilleaux opined that Mr. Arabie’s symptoms relating to smell, burning eyes,

nausea, and dizziness were “consistent with an irritant/noxious fume exposure.” Dr.

Barrilleaux did not agree that certain of Mr. Arabie’s symptoms were related to

exposure, and he did not agree that the symptoms would persist beyond the exposure

period. As to the other plaintiffs, Dr. Barrilleaux found some symptoms of each

plaintiff “consistent with an irritant/noxious fume exposure.” All reports of Dr.

Barrilleaux were individually reviewed aloud by Dr. Barry Levy from the witness

stand during Dr. Levy’s trial testimony.

Dr. Barry Stephen Levy testified on causation at trial and was accepted

as an expert in the fields of occupational and environmental medicine, and in the field

of epidemiology. He possesses impeccable academic and experiential credentials and

has received numerous awards from professional organizations for his contributions

to public, occupational, and environmental health.

9

Since 1993, Dr. Levy has been an Adjunct Professor of Public Health

at Tufts University School of Medicine. He has authored numerous articles and

edited and co-edited eight books on occupational and environmental health. Since

1994, Dr. Levy has also been a consultant in occupational and environmental

medicine with private companies and with federal agencies. He has consulted with

the National Institute for Occupational Safety and Health (NIOSH), the Occupational

Safety and Health Administration (OSHA), the Environmental Protection Agency

(EPA), the National Academy of Sciences (NAS), the World Health Organization, the

World Bank, the National Birth Defects Center, and the Harvard Institute for

International Development. Throughout his career, Dr. Levy has treated or evaluated

individuals, in the range of 3,500 to 4,000 patients, with work-related or

environmentally related problems.

Dr. Levy testified at trial regarding the specific damages claimed by each

individual plaintiff. In so doing, he established a causative link between the

plaintiffs’ exposure to CITGO’s slop oil and certain specific symptoms of each of the

fourteen individuals, while declining to relate other specific symptoms of each

individual plaintiff to the slop oil release. Dr. Levy found that, “more likely than not

to a reasonable degree of medical probability,” some symptoms of each one of the

fourteen plaintiffs, including certain respiratory and central nervous system problems,

were related to the spill. While individual symptoms varied, the related symptoms

included health issues identified on CITGO’s own MSDS, such as nausea, dizziness,

diarrhea, fatigue, headaches, sinus problems, vomiting, shortness of breath, burning

eyes, sore throat, insomnia, and rash.

Most of the related problems were the result of inhaling the toxic fumes

of the slop oil mixture on the water surrounding the CRC work site, but two of the

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plaintiffs had skin problems specifically related to touching the water. Other

plaintiffs had pre-existing conditions, such as a blood disorder in one case and a nasal

bone defect in another case, which Dr. Levy considered in making his determinations.

Some of the new symptoms that he declined to specifically relate for purposes of

causation were earache, unsteadiness, chest pains, gas, gurgling stomach, upset

stomach, decreased bowel movements, flu-like aches and pains, and increased

difficulty in controlling diabetes. During his trial testimony, Dr. Levy made it clear

that he was not providing an opinion on chronic symptoms, generally those lasting

a year or longer, but he was relating some symptoms for some individuals for up to

a year’s duration. Our review indicates that, depending upon the individual plaintiff,

the various symptoms that Dr. Levy found to be related to exposure to the spill ran

the gamut of one to twelve months in duration.

In arriving at his opinion on causation, Dr. Levy interviewed each

plaintiff and studied their individual medical reports, their depositions, and the

depositions of their family members and doctors. He studied the MSDS issued by

CITGO in March of 2006, prior to the spill, and the reports and depositions of experts

and individuals supplying information relevant to estimating the exposures. He also

scrutinized numerous texts and epidemiological studies and articles on oil spills and

the resulting physical and mental injuries on individuals and groups exposed to toxic

substances as compared to unexposed groups.

CITGO argues that Dr. Levy could not identify any air monitoring data

showing that any plaintiff was exposed to harmful levels of the chemicals in the slop

oil. At trial, Dr. Levy was cross-examined exhaustively by CITGO’s attorney on the

threshold limit values (TLVs), the time weighted averages (TWAs), and the

permissible exposure levels (PELs) issued by OSHA and other government agencies

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on the individual chemicals in slop oil, particularly benzene, hydrogen sulfide,

xylene, toluene, and ethylbenzene. So thoroughly exhaustive was the cross-

examination that the trial court on one occasion referred to it as “Sarver v. Levy.” Dr.

Levy was directly and repeatedly responsive on this issue, articulating that

particularly important to this case is the fact that OSHA’s PELs and other agency

TLVs refer to an exposure to one given chemical at a time, not to multiple chemicals

at the same time as present in the slop oil and acknowledged by CITGO.

As an epidemiologist, Dr. Levy studied numerous texts and published

articles on the acute health effects of oil spills around the world, including the

Prestige oil spill, the Sea Empress oil spill, and the Tasman Spirit tanker spill. While

the plaintiffs in this case did not personally assist in the clean-up on the Calcasieu

River surrounding their work-site, Dr. Levy opined that their exposure was

comparable to the fishermen assisting with clean-up of the Prestige oil spill off the

coast of Spain in November of 2002. The fishermen in that study suffered acute

respiratory problems, headaches, dizziness, and eye and throat symptoms.

Citing Young v. Burton, 567 F.Supp.2d 121 (D.D.C. 2008), CITGO

argues that Dr. Levy’s reasoning was circular and his methodology flawed because

he worked backward from an assumption of causation. We disagree. Young involved

a former apartment dweller’s claims of mold exposure, insufficient evidence of an

actual exposure to mold toxins, and a lack of peer-reviewed literature on mold illness

and its causes. In the present case, the record is replete with evidence of the plaintiffs

having been surrounded by slop oil at their island work site, and Dr. Levy used

numerous texts and published epidemiological studies on the health effects of

exposure to oil spills in forming his opinion.

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CITGO also cited Castellow v. Chevron USA, 97 F.Supp.2d 780

(S.D.Tex. 2000), a wrongful death suit. There, expert testimony that a deceased

service station worker developed acute myelogenous leukemia (AML) as a result of

his thirty years of exposure to the benzene contained in gasoline was found unreliable

and inadmissible. This was due in great part to the fact that the experts in Castellow

were operating under the erroneous assumption that the decedent not only pumped

gas but also used pure benzene on a daily basis to wash automotive parts. When the

testimony revealed otherwise, and the question became gasoline exposure, the experts

were looking at a different case, and the issue turned upon the absence of studies

showing that gasoline exposure causes AML.2

The court’s criticism of expert witnesses, who “worked backward” from

the conclusion that the decedent’s AML was caused by harmful levels of benzene

exposure, followed the court’s explanation of the experts’ erroneous assumption of

daily use of “pure” benzene. Castellow, 97 F.Supp.2d at 786. It did not follow an

attack on a methodology that uses epidemiology studies of other incidents. Further,

the court in Castellow made it clear that it was not requiring the plaintiffs to produce

a precise level of benzene exposure, but “merely requiring them to produce

information, adequately supported, from which [the hygienist], and the others, [could]

make a causal connection.” Id. at 797.

In fact, Castellow is one of a line of cases articulating the importance,

usefulness, and conclusiveness of epidemiological studies as evidence in toxic tort

2

In Castellow, 97 F.Supp.2d 780, the court noted that the plaintiffs, the widow and daughter

of the deceased Mr. Castellow, in filing their suit, relied upon an affidavit of one of the decedent’s

former co-workers regarding the employees’ daily use of pure benzene; but their case changed when

the co-worker testified that the cleaning solvent used at that job only contained an element of

benzene. Consequently, the five plaintiffs’ experts reviewed new allegations and information, and

their reports and opinions changed. One of those experts was Dr. Barry Levy, who testified that the

hygienist’s calculations were very important in that case, and if those calculations were inaccurate,

then he [Dr. Levy] could not offer an opinion as to causation. Id. at 794.

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cases. See Brock v. Merrill-Dow Pharmaceuticals, Inc., 874 F.2d 307 (5th Cir.

1989), modified by 884 F.2d 166 (5th Cir. 1989), cert. denied, 494 U.S. 1046, 110

S.Ct. 1511 (1990) (lack of conclusive epidemiological proof was fatal to plaintiffs’

case); and see Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5 Cir. 1996)

(most useful and conclusive evidence is epidemiological studies; numerous reputable

epidemiological studies indicate there is not a correlation between ethylene oxide

exposure and cancer of the human brain).

The court in Castellow, the case cited by CITGO, stated as follows:

It is accepted that, in evaluating a purported causal link

between a chemical agent and a particular disease,

epidemiological studies are the most informative. See

Allen, 102 F.3d at 196. One set of criteria, widely used by

epidemiologists in the study of disease mechanisms, is the

one detailed by Sir Austin Bradford-Hill in 1965. Richard

D. Irons, Ph.D., a toxicologist with an extensive

background in hematology, was designated by Defendants

as an expert witness in this case. In submissions before

this court, Dr. Irons stated, without contradiction, that

scientists generally rely on the Bradford-Hill factors to

ascertain valid opinions on medical causation.

Castellow v. Chevron USA, 97 F.Supp.2d at 786-87.

At trial, Dr. Levy testified that he determined both general causation, that

slop oil and its ingredients can cause various symptoms and health problems, and

specific causation, that slop oil exposure caused certain symptoms of each specific

plaintiff. When cross-examined about his methodology, Dr. Levy testified as follows:

A. With regard to general causation what I did is a

review of the pertinent medical literature both on oil

spills and other similar spills that I felt were

pertinent to the issues in this case, as well as

literature reviews on the various ingredients

according to the Material Safety Data Sheets present

in the slop oil. I did that by looking for articles that

I had within my own office and chapters in books

within my own office, as well as a so-called

pub-med search on the database of the National

Library of Medicine of NIH, National Institute of

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Health. I reviewed each article. I not only reviewed

each article individually with regard to what was

stated, if it was a study, how it was done what the

results were, and what could be concluded from the

results, and I also looked at the body of literature as

a whole with regard to oil spills with regard to

certain types of issues related to oil spills such as

odors, such as psychological effects as well as

individual chemicals that make up slop oil such as

benzene, toluene, xylene, ethylbenzene, etcetera, and

then came to the conclusions. I applied the Bradford

Hill Principles which have to do with strength of

association, consistency, specificity, temporality,

dose response relationship, biological plausibility

and coherence. Those are the primary Bradford Hill

Principles.

Q. Are there nine?

A. There [are] two others that Dr. Bradford Hill added

later. One is called experiment and one basically

relates to animal studies and also whether an

intervention took place in a given situation. After

the intervention you might logically expect, that is

removing the exposure, for example, a reduction in

symptoms. And the other, the last one was

reasoning by analogy. Those two are sometimes

cited, but the first seven that I listed are seen as the

primary Bradford Hill[] Principles.

Q. Okay. Go ahead.

A. So I applied the Bradford Hill Principles in coming

to conclusions with regard to the association, the

causal association of both oil, as well as the

components of the slop oil in causing various

symptoms and other health conditions. I also noted

other information, for example, Material Safety Data

Sheets of Citgo which indeed are relatively

consistent with my findings from the literature with

regard to the symptoms that slop oil and its

constituents can cause. That was my methodology

with regard to general causation. It’s a fairly

standard methodology that I have used many years

that scientists, physicians, epidemiologists all use.

Q. All right. Can you give us a citation to the literature

that says, if you are going to come to a conclusion

on general causation, this is how you do it?

15

A. One such citation is Dr. Austin Bradford Hill[’]s

initial paper published I believe in 1965 based on a

speech he had given the year before. Another

citation is the chapter by Kenneth Rothman in his

textbook, Modern Epidemiology. It’s something I

refer to often. I believe the pages are 23 to 28 of

that particular chapter in which the principles are

laid out and discussed.

Dr. Levy clarified that the Bradford Hill principles are guidelines, not

unyielding criteria, stating that, “[i]ndeed, the only one that is essential of the total of

nine is temporality, that is[,] the exposure must precede the end point when looking

at a body of literature.” Accordingly, Dr. Levy relied upon, applied, and cited the

same literature and principles as those used and found authoritative by the court in

Castellow v. Chevron, the case cited by CITGO.

Similarly, with regard to the methodology used in determining specific

causation, Dr. Levy detailed his reliance upon information regarding not only the

chemicals and chemical mixture at issue, but all relevant information, including the

plaintiffs’ medical records, interviews, deposition testimony, and other information

specific to each individual. Next, he looked at the relevant medical literature,

exposure factors, and other factors such as the individual’s genetic factors,

medications, pre-existing conditions and disorders, infections, allergies, and other

exposures, including smoking, that may have caused certain symptoms and illnesses.

Using this information, Dr. Levy performed what is referred to as a differential

diagnosis or, in his field, a differential etiological analysis, to arrive at a reasonable

diagnosis of the disease or adverse health outcome and conclusion, weighing and

synthesizing all of the evidence in relation to that given individual. While Dr. Levy

did not have error-rate statistics on this methodology, he explained that the inhalation

of toxic substances is not analogous to taking a pill for which an absorption rate can

be measured in the body.

16

CITGO argues that the blood work and urinalysis results on the plaintiffs

were normal in most cases, further indicating no hazardous exposure. However,

because the plaintiffs were led to believe that there were no harmful chemicals in the

slop oil, they did not seek medical assistance and were not tested until months after

the spill. Moreover, Dr. Levy explained that the symptoms or health effects

associated with this kind of exposure do not generally lead to abnormalities in the

complete blood count (CBC) or the serum chemistries with the uranalysis, and that

normal CBCs tends to rule out other etiologies, such as infectious processes, further

indicating toxic exposure in these cases. Notwithstanding, Dr. Levy also pointed out

that Dr. Springer, who had examined three of the plaintiffs, had found abnormalities

consistent with their symptoms. Dr. Levy further stated that phenol testing (for

derivatives of aromatic hydrocarbons) is not included in a standard urinalysis, but

rather is a special test not performed on the plaintiffs in this case. With regard to

benzene testing, urinary phenol testing would have had to occur immediately after the

exposure.

Because there was no personal monitoring done on the plaintiffs at the

work site, Dr. Levy did not have any dose response or quantitative exposure

information, but relied upon qualitative information regarding the plaintiffs’

proximity and length of exposure to the slop oil and the chemicals in the slop oil.

While admittedly not a toxicologist, Dr. Levy stated that there were at least ten (10)

chemicals to be considered in this case, not just the benzene, toluene, xylene,

ethylbenzene and hydrogen sulfide, which were the chemicals most discussed in this

litigation.

17

Dr. Angela Harris, CITGO’s toxicologist, testified regarding the

chemicals in slop oil and the importance of evaluating studies that addressed similar

mixtures:

Q. I’m going to quote directly from your report [where]

you said that “Like crude oil, waste treatment slop

oil that was spilled was a complex mixture of

hundreds of different chemicals,” correct?

A. Yes, it is.

Q. And you said, “The exact chemical composition is

unknown”?

A. Yes.

....

Q. You said, “The interaction of chemicals in a mixture

can be described as additive.”

A. That’s not the whole sentence, though.

Q. Okay. Well, explain it to us in context, if that’s not

it.

A. Well, what I was trying to say here was that there are

[sic] when you’ve got a complex mixture, even a

simple mixture, there’s three possibilities: One is if

[sic] it can be additive, meaning that you just add

together the effects in a mixture, and that sort of

intuitively makes sense; it can be synergistic when

one chemical works with another chemical and

causes a health effect later, then both of the two

combined; or it can be antagonistic where if you’re

exposed to one chemical, it reduces the adverse

effects caused by the other chemical. So, there’s

[sic] three different things that can happen. And in

a mixture of hundreds of different chemicals, there’s

no way to predict what all those interactions are

going to be which is why you want to evaluate

literature on a similar mixture.

Q. Good point. Your answer is better than my question.

A. Oh, okay.

18

Q. . . . . So you said . . . “The most logical approach in

assessing the potential health effects for an

individual exposed to slop oil due to cleanup would

be to evaluate studies that address the toxicity of

slop oil or a similar mixture like crude oil and a

cohort similar to the CRC workers. The advantage

of this approach is that any interaction of chemical

constituents on health effects will be apparent in the

studies involving the mixture as a whole,” correct?

A. Correct.

Dr. Mark Roberts, CITGO’s expert in environmental medicine,

epidemiology, and public health, testified that he did not use any epidemiological

studies in preparing and submitting his opinion prior to trial. Dr. Roberts stated that

air monitoring done during the response and cleanup efforts indicated extremely low

levels of volatile constituents of the spill outside the immediate spill area of the Citgo

refinery. He opined that not one symptom of a single plaintiff was related to his

work-site exposure to the slop oil. When questioned at trial, Dr. Roberts disagreed

with Dr. Levy that the Prestige oil spill study was applicable in this case because the

fishermen in that study were involved in the clean-up activities, and the plaintiffs in

this case were not.

Frank Parker III testified as an expert in industrial hygiene and safety.

He interviewed the plaintiffs, reviewed monitoring records, depositions, CITGO’s

MSDS, opinions of CITGO’s experts, maps, documents and photographs related to

the spill, and he consulted the applicable literature, including published exposure

levels and ranges, chemical handbooks, and industrial hygiene and toxicology

textbooks. In his opinion, the plaintiffs’ symptomology was the result of their

exposure to CITGO’s wastewater and slop oil. Mr. Parker identified four sources of

the plaintiffs’ exposure: (1) the vapors that were initially released, especially after

the wind turned and started coming toward CRC; (2) the slop oil itself that migrated

19

to and encircled CRC; (3) the vacuum trucks involved in the clean-up; and, (4) the

roll-off boxes near the plaintiffs’ lunch/break tent.

Mr. Parker testified that CITGO’s release of over four million gallons

of slop oil and seventeen million gallons of wastewater created a third substance, a

layer of emulsified oil and water and chemicals known as “mousse.” He further

stated that the slop oil contained numerous hazardous chemicals, that the

hydrocarbons attack the central nervous system, and that there is an additive effect.

He stated that one cannot look at the chemicals individually but must look at them all

together because they all create somewhat the same symptoms. In reviewing

CITGO’s March 2006 MSDS, which characterizes the slop oil as flammable, Mr.

Parker testified that it is the vapor emanating from a chemical, not the liquid form,

that burns. He stated that the lower explosive limit for most hydrocarbons is 10,000

to 15,000 parts per million; therefore, the mere fact that slop oil is flammable

indicates that there are very high concentrations of hydrocarbons being generated by

the material. Mr. Parker further stated that what is considered a safe level of

concentration from a fire standpoint is still very hazardous from an occupational

health standpoint.

Mr. Parker, who chaired the American Petroleum Institute’s Task Force

on benzene, stated that benzene is a hydrocarbon that becomes adsorbed, not

absorbed, into the wastewater. He explained that benzene has a disassociation curve

that brings it into water, like putting sugar in tea; it is in a solution but it is not part

of the water molecule. It latches onto the water, travels with the water, but it remains

benzene. When the vapor pressure in liquids such as benzene, toluene, and xylene

is brought down, the propensity of the vapor to come out goes up because there is less

pressure holding it down. Therefore, the clean-up activities using vacuum trucks at

20

the plaintiffs’ work site at Calcasieu Refinery created a more significant source of

vapors to which they were exposed.

Mr. Parker described the vacuum trucks as “a vacuum still on wheels,”

a process used to remove the light ends of hydrocarbons. He explained that when the

vacuum hose sucks up the water and slop oil, “it reduces the atmospheric pressure

which allows these to volatilize much quicker and it exhausts them into the work

area.” In layman’s terms, Mr. Parker explained that the liquid is transferred to an

empty tank, causing the displacement of air. The air that is pumped out with an air

pump is dumped right at the truck, like an exhaust pipe. The result of extracting these

vapors out of the wastewater, out of the slop oil and mousse, and exhausting them,

is “higher vapors, higher concentrations coming out of these vapors than you would

[have] if they were just exposed to normal atmospheric pressure.”

With regard to the roll-off boxes used in the clean-up activities, Mr.

Parker explained that the booms used to soak up the slop oil and mousse were placed

in a box, which was near the plaintiffs’ lunch tent. The vapors generated from the

box were so strong that, by way of illustration, Mr. Parker related, “one guy even said

it masked out the odor of the chemical toilet.” Dexter Breaux, a supervisor at Ron

Williams Construction, testified that after he vomited at the dock, he pulled his men

off the docks, and they subsequently started moving items from under the lunch tent

in order to relocate it. He further testified that he was present when two CITGO men

were in the control room at the work-site telling CRC operators that “everything was

clear.” He stated that, as a result, they did not move the lunch tent.

Mr. Breaux further stated that he asked Jerry Lemons, the safety man at

CRC, for an MSDS repeatedly and that Mr. Lemons did not have one. He testified

that he did not order respirators for his men because they were told that all was clear.

21

He stated that they did not know about the chemicals until after the odor was gone,

which was after the roll-off boxes were removed.

Monitoring Samples

CITGO argues that thousands of air samples were taken at CITGO and

in the community, showing only low, safe levels of oil constituents. However, no

personal monitoring was done on the plaintiffs, and no meaningful monitoring was

done at their work site at CRC. CITGO quotes an LDEQ monitoring report stating

that “the concentrations of most of the air toxics [sic] compounds detected while

above normal ambient concentrations, are well below ATSDR acute minimal risk

levels (MRL) and do not pose an immediate health concern.” However, CITGO does

not quote the remainder of the report. More specifically, the report is in the form of

an e-mail from LDEQ’s senior environmental scientist, Jim Hazlett. It continues to

state that, of the three air cannister samples taken on June 21, 2006, the benzene

sample reflected a concentration slightly above the ATSDR acute MRL.

Notwithstanding, Mr. Hazlett believed that the benzene would be expected to

dissipate within a few days and, therefore, did not present a major health concern.

Mr. Hazlett’s e-mail further states that “[a]n MRL is an estimate of the

daily human exposure to a hazardous substance that is likely to be without

appreciable risk of adverse noncancer health effects over a specified duration of

exposure.” It explains that the estimates are intended to identify contaminates and

potential health effects at a spill site, and it concludes with: “It is important to note

that MRLs are not intended to define clean-up or action levels for ATSDR or other

agencies.” (Emphasis added.) The record reveals that the three samples referenced

in the e-mail were not taken at the plaintiffs’ work site. According to the LDEQ

sample readings themselves, their locations were: on the Southwest corner of the

22

intersection of Carlyss Drive and Walker Road; on Highway 1133 between Highway

108 and Clifton Ridge Road; and, one location was left blank. When questioned

about LDEQ’s monitoring, Mr. Parker responded that the monitoring did not apply

to the plaintiffs working at CRC, and he indicated that the cannister method used by

LDEQ is limited because the cannister only draws in air directly in front of the

cannister’s valve at the moment that it is opened.

As to CRC’s monitoring results from June 25, 26, and 28, showing

thirty-nine pages with columns of zeros and the clocked time of day, Mr. Parker

testified that a zero is not a technically appropriate number. Even the lowest reading

should reflect an actual number and indicate that the concentration was “less than”

whatever the detection level of the instrument was. Mr. Parker further testified that

the type of instrument used by CRC was not indicated at all, and there was no back-

up data to support the findings. In particular, he had a problem with a zero reading

on carbon monoxide (CO) which exists at some level in every environment.

Therefore, zero readings are not only the results of inaccurate recordings on forms

with no meaningful information, but they also indicated to Mr. Parker that CRC’s

instruments were not sufficiently sensitive.

Mr. Parker provided an “Industrial Hygiene Sampling Data Sheet” which

contains over thirty cells for needed information when reporting sampling results, in

order for the sampling to be useful and meaningful. Some examples of the data to be

recorded include wind speed, barometer, humidity and temperature readings,

employee identification number, job classification, facility address, sample type,

sampled by, sample number, instrument identification, calibration date, calibrated by,

sample time, flow rate, protective equipment worn, and contaminants.

23

Mr. Delno Malzahn, an industrial hygienist and meteorologist testifying

on behalf of CITGO, admitted that, while he had no personal monitoring data on the

plaintiffs, he did have personal monitoring data on individuals working right down

in the oil. Under a worst case analysis, he opined that where those individuals in

locations with maximum exposure had readings well below the hazardous exposure

levels, then the plaintiffs, who were far removed from the maximum exposure areas,

could not have suffered significant exposures. Mr. Parker vehemently disagreed with

this worst case scenario method, stating that it often happened that the man least

likely to have been exposed turned out to be the sickest or most exposed man. Mr.

Parker gave an example of workers cleaning out a huge junction box in a refinery; the

“hole watch” sitting on top of the hole suffered the highest exposure, while the men

inside the box, hydroblasting the residue from the walls, suffered less toxic exposure.

Mr. Malzahn testified on the various sampling devices used by CITGO.

While Mr. Malzahn testified that the overall sampling showed a daily decrease in

VOCs (volatile organic compounds) as the oil weathered, he admitted that no benzene

tests were performed on the first day of the release. When questioned about samples

showing higher levels of VOCs on June 22 than on June 21, he said the increase was

due to the variability of the wind and the location of the sample. He also testified that

a sampling reflected one minute in one spot over an eight hour work-day. This fact

tends to support the plaintiffs’ position that the various samplings represented one

snapshot in time and did not address the plaintiffs’ exposures at CRC.

The record also contains evidence that the monitoring by CITGO was

limited in its weight value where CITGO’s head of corporate safety, Bill Jones,

admitted that the geographic area of the spill was large and that monitoring was

difficult. He related that CITGO would get complaints of an odor and arrive to take

24

a sample perhaps an hour later, after the odor had disappeared. Mr. Jones also

testified that CITGO did not specifically monitor for xylene, toluene, hexane, heptane

or any octanes, nonane, ethylbenzene, or trimethylbenzenes.

Additionally, John Grabowski, CITGO’s corporate industrial hygienist,

could not identify a passive dosimetry badge that was worn in the vicinity of CRC or

any personal monitoring that would relate to the workers at CRC. Mr. Malzahn

opined that “[t]he appropriate hierarchy for determining occupational health risks

begins with personal monitoring,” which was not provided for the plaintiffs in this

case. Therefore, the eight-hour time-weighted averages and permissible exposure

levels cannot be quantified with exactitude as CITGO insists. Moreover, the

plaintiffs worked ten hour-shifts and some testified to working weekends at times.

CITGO attempted to show at trial that any benzene in the slop oil would

have evaporated in the first few hours, before it ever reached CRC, by introducing an

article by Coast Guard Lt. W.D. Eley, et.al., entitled, Is Overexposure to Benzene

Likely During Crude Oil Spill Response? That article explained that, depending upon

the API gravity of the spill, whether it is sunny or cloudy, windy or calm, and whether

the waters are open sea or more restricted, the benzene may volatilize slowly from the

liquid. The article stated that in restricted waters, “[t]he dense vapor will seek low

areas and pocket. Restricted waters create thicker layers of oil, slowing benzene

evaporation and prolonging the period for the risk of overexposure.” We note that

in this case, the release did not occur on open seas, traffic on the river was almost

completely halted, the ship channel was closed for twenty-two miles, and CRC was

unable to move its barges and vessels for some time. The article also indicated that

in December of 1987, OSHA lowered the benzene PEL from 10 parts per million to

25

1 part per million as a time-weighted average. Mr. Parker opined that there is no safe

level of exposure for benzene.

CITGO criticizes Mr. Parker’s methodology. However, the trial court

denied CITGO’s Daubert challenge, finding that, while monitoring is one method for

establishing exposure, Mr. Parker’s reasons and rationale for finding significant

exposures in this case satisfied the challenge and would be weighed by the court.

With regard to his methodology, Mr. Parker stated that he came up with a range of

exposures for the plaintiffs somewhere in the hundreds of parts per million, probably

the upper range. He studied the NIOSH IDLH (immediately dangerous to life and

health) ratings for all of the chemicals involved and established a range of between

500 to 1,100 parts per million. Mr. Parker stated that he was not offering an absolute,

and he indicated a wide margin of error. However, he stated that the IDLH is defined

as that level at which one begins to be impaired, and the literature provides a sense

of what the concentrations were. Mr. Parker stated that he interviewed the plaintiffs

and found consistent evidence of central nervous system (CNS) symptomology,

including headaches and lightheadedness. The fact that no one had passed out helped

him determine the upper end of the range. He stated that he did not add the IDLH for

benzene, plus toluene, plus xylene, plus ethylbenzene, etc, but he looked at all of

them and considered them together to determine a range.

In reviewing the literature on the wide spectrum of chemicals, Mr. Parker

found that the plaintiffs inhaled the vapors from the slop oil, were exposed to

hydrocarbons, and experienced the symptoms as reported in CITGO’s MSDS. He

consulted the NIOSH Pocket Guide to Chemical Hazards. Our review of that

handbook indicates that the IDLH for toluene is 500 parts per million; the IDLH for

ethylbenzene is 800 parts per million; the IDLH for xylene is 900 parts per million;

26

and the IDLH for n-Hexane is 1,100 parts per million, thus confirming Mr. Parker’s

exposure estimates in terms of IDLH. During his testimony, Mr. Parker also

referenced specific, well-known industry textbooks and publications on threshold

limit values and industrial hygiene and toxicology.

CITGO cited our decision in Trent v. PPG Industries, Inc., 05-989

(La.App. 3 Cir. 5/10/06), 930 So.2d 324, for the proposition that a plaintiff cannot

prove causation without showing chemical exposure at a certain level. However, the

Trent case is factually distinguishable and fails to support CITGO’s position on

causation. In Trent, there was no event or oil spill migrating to the plaintiffs’ work

site. Plaintiffs suspected that ammonia was in the ground when they began digging

footings for construction of a pipe rack. Evidence indicated that before any work

commenced on the project, a geophysical analysis of the soil had been done, and

thirty-foot borings were conducted by the defendants with no indication of toxic or

hazardous substances. Additionally, an excavation permit identified no hazards, and

the defendants issued safe work permits each day of the construction project.

In Trent, we articulated a clear lack of evidence by the plaintiffs. Based

upon those facts, the court in Trent granted summary judgment to the defendants on

the issue of causation. Conversely, in the present case, the plaintiffs have well-

documented evidence of a major spill of slop oil containing not one but numerous

toxic chemicals which migrated to and surrounded the plaintiffs’ work site at CRC.

In fact, the record in this case contains over 30,000 pages and approximately 1,000

exhibits including, but not limited to, CITGO’s MSDS, medical reports from

physicians, testimony by health experts, epidemiologists, and industrial hygienists.

This case does not involve a minor event. Even CITGO’s chemical engineer, Harvey

Yee, testified that the term “catastrophe” could be used to describe the release.

27

CITGO Vice-President William Hatch did not dispute that the release was an

environmental disaster, calling it a “significant event.” The local news media, KPLC,

televised interviews with Coast Guard personnel who issued warnings to the public,

and with local small business owners located on the affected waterways regarding

their loss of business due to the release. Based upon the body of facts in this case

surrounding a major release and upon the plaintiffs’ evidence of exposure, we do not

find the Trent case analogous.

The trial court stated that there was disagreement among the experts

regarding causation. It is well-settled that the effect and weight to be given expert

testimony is within the broad discretion of the trier of fact. Vaughn v. Progressive

Sec. Ins. Co., 03-1105 (La.App. 3 Cir. 3/2/05), 896 So.2d 1207. Furthermore, a trial

court is not bound by expert testimony; the court has the power to substitute its own

judgment and common sense for the conclusion of an expert witness where the

evidence as a whole warrants doing so. Ryan v. Zurich Am. Ins. Co., 07-2312 (La.

7/1/08), 988 So.2d 214. We find no abuse of discretion in the trial court’s

determination that CITGO’s spill of slop oil caused the plaintiffs’ injuries.

Fear of Future Injury

In addition to general damages in the amount of $5,000.00, the trial court

awarded each plaintiff $2,500.00 for “fear of developing disease.” CITGO contends

that this award was in error, arguing a lack of evidence and arguing that fear of a

future injury must be more than speculative or merely possible. CITGO cites

Broussard v. Olin Corp., 546 So.2d 1301(La.App. 3 Cir. 1989), where a panel of this

court denied recovery for a fear of cancer, finding that Mr. Broussard did not show

that cancer can result from phosgene gas poisoning. There, we cited Berry v. City of

Monroe, 439 So.2d 465 (La.App. 2 Cir.), writ denied, 443 So.2d 597 (La.1983), and

28

we stated that “mere speculation concerning an event cannot provide the basis for an

award for anxiety.” Broussard, 546 So.2d at 1303.

However, in Broussard, we also referred to Anderson v. Welding Testing

Laboratory, Inc., 304 So.2d 351 (La.1974), which Mr. Broussard had cited as

dispositive of the fear of cancer issue. In Anderson, the court found that the

plaintiff’s fear of cancer resulting from a radiation burn to his hand was a

compensable residual of the accident because evidence was adduced that cancer could

result from a radiation burn. In the present case, the plaintiffs’ fear of future injury

is not based upon the “mere speculation” described in Broussard. CITGO’s own

MSDS indicates that more than one of the chemicals in the slop oil can cause cancer,

particularly benzene, a known carcinogen, and the MSDS discusses chronic lung

dysfunction, organ and system damage. Therefore, as in Anderson, evidence was

adduced here that future injury can result from exposure to some of the chemicals at

the plaintiffs’ work site. See also, Wisner v. Illinois Cent. Gulf R.R., 537 So.2d 740

(La.App. 1 Cir. 1988), writ denied, 540 So.2d 342 (La.1989) (state trooper could

recover for justified fear of cancer; evidence showing an increased risk of cancer

indicates that trooper is reasonable in his fear of acquiring cancer and therefore is

likely truthful about his fear).

CITGO further cites Bonnette v. Conoco, Inc., 01-2767 (La. 1/28/03),

837 So.2d 1219, which we find inapplicable in the present case. There, multiple

plaintiffs purchased dirt excavated by Conoco and spread it on their lawns. The dirt

contained pieces of transite, an asbestos-containing material. The Louisiana Supreme

Court reversed mental anguish awards ($12,500.00) and fear of future injury awards

($10,000.00) to the plaintiffs, affirming only the awards for property damage.

However, the court in Bonnette found that the plaintiffs’ past medical expenses were

29

for psychiatric examinations, and the court’s reasoning for reversal was the lack of

physical injury. Conversely, in the present case, the fourteen plaintiffs worked on an

island surrounded by toxic oil and wastewater and suffered physical injuries leading

them to fear that they could develop injuries in the future.

At trial, Dexter Breaux, a construction supervisor who vomited the first

morning that he encountered the oil at CRC, had nausea and shortness of breath for

a month, headaches for six months, sinus problems for ten months, and fatigue,

testified that he worried when he found out about the benzene in the slop oil. He

indicated that he did not know what will happen in ten years as a result of his

exposure. He testified that the oil surrounding the island was thick on the water, and

everyone was scared and complaining about the strong odor.

Several of the epidemiological studies in the record provide scientific

evidence of psychological and physiological sequelae among those who are exposed

to chemical spills, including greater levels of depression, anxiety, somatic symptoms,

greater environmental worry, lower perceived social support, higher blood pressure,

less fluctuation of cortisol levels, and worse mental health.3

Dr. Looney, who examined all of the plaintiffs, stated that, “[w]hen

you’re exposed to volatile organic chemicals of the nature that we believe that these

people have been exposed to, you incur some potential liability for trouble in the

future.” Dr. Levy testified at trial that the plaintiffs expressed concern to him about

future health issues arising from their exposure. He further agreed with the last

sentence of the Prestige oil spill study stating that individuals with recurrent exposure

to oil should undergo “medical surveillance to detect potential clinical disorders in

3

See R.M. Bowler et al., Aftermath of a Chemical Spill: Psychological and Physiological

Sequelae, 15(3) NeuroToxicology 724-730 (1994); H.H. Dayal et al., Hazardous Chemicals:

Psychological Dimensions of the Health Sequelae of a Community Exposure in Texas, 48 Journal

of Epidemiology and Community Health 560-568 (1994); R.A. Lyons, Acute Health Effects of the

Sea Empress Oil Spill, 53 Journal of Epidemiology and Community Health 306-310 (1999).

30

the longer term.” Accordingly, the plaintiffs had a justified fear of future injury. We

find no merit in CITGO’s position.

Allocation of Fault

In July of 2008, the plaintiffs filed two motions for summary judgment

on the issue of comparative fault—one motion addressing the fault of the plaintiffs,

and one motion addressing the fault of third parties or non-parties. On September 19,

2008, the trial court entered two separate judgments granting summary judgment on

both issues in favor of the plaintiffs and against the defendants, CITGO and R & R

Construction. In the judgment addressing the comparative fault of third parties, the

trial court stated that it was granting the judgment under La.Code Civ.P. art. 966(E),

which states: “A summary judgment may be rendered dispositive of a particular

issue, theory of recovery, cause of action, or defense, in favor of one or more parties,

even though the granting of the summary judgment does not dispose of the entire

case.” La.Code Civ.P. art. 966(E). The trial court’s judgment addressing third party

fault specifically struck CITGO’s defense as to third party fault of the plaintiffs’

employer, Ron Williams Construction, and of “Calcasieu Refining Company

Refinery” (CRC). The other judgment disposed of the issue of the plaintiffs’ fault.

Neither judgment was designated as a final judgment, and neither was

immediately appealable under La.Code Civ.P. art. 1915. The defendants did not file

applications for supervisory writs following the entry of the judgments. The plaintiffs

suggest that CITGO has still not appealed the issue of comparative fault, presumably

because CITGO did not reference or attach the prior judgments on the issue.

However, CITGO did assign as error on appeal the trial court’s refusal to hear

argument at trial on the issue of comparative fault, and the interlocutory judgments

entered by the trial court are in the record. It is well settled in our jurisprudence that,

31

while an interlocutory judgment may not be immediately appealable, it is nevertheless

subject to review by an appellate court when a judgment which is appealable is

rendered in the case. Firemen’s Pension and Relief Fund for City of Lake Charles v.

Boyer, 420 So.2d 1323 (La.App. 3 Cir. 1982).

Summary judgments are reviewed de novo. Under La.Code Civ.P. art.

966,

The initial burden of proof to show there is no genuine

issue of material fact remains with the movant. Hutchinson

v. Knights of Columbus, Council No. 5747, 03-1533 (La.

2/20/04), 866 So.2d 228. If the movant has made a prima

facie case that the motion should be granted, the burden

shifts to the adverse party to produce enough evidence to

show that some issues of material fact remain. Id. If the

non-moving party fails to produce the evidence, the court

must grant the motion as a matter of law. Id.

Moreno Properties Two, L.L.C. v. Acadiana Investment Group, L.L.C., 09-634

(La.App. 3 Cir. 12/9/09), 25 So.3d 232, 235-36.

In this case, the plaintiffs submitted memoranda in support of their

motions for summary judgment on the issues of the plaintiffs’ and third party fault

and attached the deposition testimony of William Hatch, CITGO’s head of operations,

who was second in command, nation-wide. Mr. Hatch testified that the release was

preventable and that CITGO violated its policies when the skimmers failed to take the

oil from the tanks, and when the seventeen feet of water and slop oil in the storm

tanks was not drawn down to five and one-half feet as part of CITGO’s pre-storm

procedure. The plaintiffs also attached the testimony of Matteson Bell, who installed

clean-up booms on the water to absorb the oil, and David Hollis, CITGO’s

environmental manager, who both testified that the material released by CITGO

migrated in two directions due to wind, current, and tidal changes, traveling through

the Calcasieu River to the plaintiffs’ work site at CRC. The wastewater and slop oil

32

surrounded CRC, which was basically on an island a short distance from CITGO’s

Refinery and the WWTU. Mr. Bell testified that he did not arrive at the site until the

day after the release, at which time he placed booms around the oil.

In addition to this testimony, the plaintiffs attached CITGO’s responses

to interrogatories regarding what evidence CITGO had that the plaintiffs themselves,

or other parties, caused the damages suffered by the plaintiffs. CITGO’s responses

to interrogatories stated that CITGO was investigating the use of protective

equipment by certain plaintiffs responding to the incident and that it may rely on the

deposition testimony of the plaintiffs and their coworkers, medical records, and other

information. Accordingly, the pleadings, depositions and answers to interrogatories

indicate that the plaintiffs made a prima facie case that neither they, nor their

employer, Ron Williams Construction, nor the premise owner, CRC, played any part

in the release or the ensuing damages.

In order to defeat summary judgment, CITGO then bore the burden of

proving the plaintiffs’ comparative fault, and the fault of the plaintiffs’ employer, Ron

Williams Construction, and the fault of the premise owner, CRC. CITGO failed to

meet that burden. In opposing the motions for summary judgment, CITGO attached

CRC’s policy statement that it would provide a safe work environment and would

control hazards under its jurisdiction. However, CITGO offered no proof that it had

provided MSDS documentation on the contents and dangers of slop oil or that Ron

Williams Construction or CRC had any knowledge or control of the hazard caused

by CITGO’s release.

CITGO also attached portions of depositions of the plaintiffs. Glenn

Miller was one of the plaintiffs whose skin blistered and peeled after working in the

water. He stated that he worked on the firewater system, digging up the line and

33

adding hydrants to the system. The pump supplying the water for this system pumped

straight out of the Calcasieu River. Mr. Miller testified that when the men asked what

the odor was, no one knew. Likewise, Jerry Richard Jr. testified that he worked with

Glenn Miller on the firewater system, that his hand peeled, and that he had a rash on

his feet. He further stated that a CRC safety man told him that the lunch tent was

moved away from the water for one day but then moved back. Mr. Richard explained

that the workers could not move away from the contaminated water because it

surrounded their work-site.

Craig Arabie testified that no one told the men they were in danger, and

he did not hear anyone ask for fresh air equipment; the men just thought that the odor

was a smell they would have to deal with. Dexter Breaux, the project supervisor with

Ron Williams Construction, testified that no one, including CITGO, told them that

they were in danger. Bennett Talbot, safety coordinator, testified that the CRC

employees were working right alongside them, and they said they had dealt with spills

before, and everyone was under the assumption that the problem would go away.

Dennis Bankston testified that he was all over the plant tying rebar, that the “whole

water was oil slick,” and that no one knew anything. He said that the “plant [CRC]

knew it wasn’t theirs.” Jimmy Buckalew testified that he was never aware of anyone

calling a shelter in place and that the lunch area was their shelter in place.

Accordingly, the testimony of the plaintiffs does nothing to support a

finding of fault against the plaintiffs, their employer, Ron Williams Construction, or

the premise owner, CRC. Moreover, both CITGO and R & R filed a joint admission

of fault in March 2009 for the release of slop oil from CITGO’s refinery and agreed

to pay for all damages caused by the June 19, 2006 release. We find no error in the

34

trial court’s granting of the plaintiffs’ motions for summary judgment on allocation

of comparative fault.

Punitive Damages

CITGO asserts that the trial court erred in awarding punitive damages

under the laws of Oklahoma and Texas because Louisiana law governed the

plaintiffs’ claims and does not permit an award of punitive damages. We disagree.

While it is true that punitive damages must be expressly authorized by statute in

Louisiana,4 at least four articles in the Louisiana Civil Code currently provide for

punitive damages, and punitive damages in the form of penalties abound in the

Insurance Code in the Louisiana Revised Statutes. Louisiana Civil Code art. 2315.3

provides for punitive damages in the instance of child pornography, while

La.Civ.Code art. 2315.4 provides for punitive damages when the defendant is driving

intoxicated, and La.Civ.Code art. 2315.7 provides for punitive damages in the

instance of child molestation.

Additionally and specifically, La.Civ.Code art. 3546, entitled “Punitive

Damages,” was enacted in 1991 and provides for an award of punitive damages in

Louisiana if the state where the defendant is domiciled awards punitive damages for

the injury-causing conduct. Article 3546 is located in Book IV, Conflict of Laws,

Title VII, Delictual and Quasi-Delictual Obligations. It provides that a Louisiana

court can award punitive damages if two of three criteria are met: (1) punitive

damages are authorized by the state where the injury-causing conduct occurred;

and/or (2) punitive damages are authorized by the state where the injury occurred;

4

Pursuant to a 2005 survey by Professor Michael L. Rustad, Suffolk University Law School,

Boston, punitive damages were completely prohibited in only three states, Nebraska, New

Hampshire, and Washington, while two states, Louisiana and Massachusetts, allowed punitive

damages only when authorized by statute. See Michael L. Rustad, The Closing of Punitive

Damages’ Iron Cage, 38 Loy. L.A. L. Rev. 1297 (Spring, 2005).

35

and/or (3) punitive damages are authorized by the state where the defendant is

domiciled.5

The trial court found that CITGO was domiciled where its headquarters

were located at pertinent times relative to this litigation and that CITGO’s injurious

conduct occurred at its corporate headquarters where it made budget and management

decisions leading to the subject release in 2006. CITGO was headquartered in Tulsa,

Oklahoma, in 1994, at the time that the WWTU was built and at the time that

corporate decisions were made to delete the third tank, No. 340, from the WWTU

project. CITGO moved its headquarters to Houston, Texas, in 2004 and was

headquartered there in 2006 when it released over four million gallons of slop oil and

seventeen million gallons of wastewater into Louisiana waterways in Calcasieu

Parish. Oklahoma awards punitive damages pursuant to 23 Okl.St.Ann. § 9.1, and

Texas awards punitive damages pursuant to V.T.C.A., Civil Practice & Remedies

Code § 41.003, more fully discussed below.

Thus, the criterion under La.Civ.Code art. 3546, that punitive damages

be authorized by the law of the state of domicile and by the law of the state of

conduct, are met by both Oklahoma and Texas. When a defendant’s conduct occurs

in more than one state, Comment (d) to La.Civ.Code art. 3546 directs us to

La.Civ.Code art. 3543 and its comments, which we will discuss more fully below.

With regard to domicile, Comment (d) to Article 3546 directs us to La.Civ.Code arts.

3518 and 3548.

5

La.Civ.Code art. 3546. Punitive damages: “Punitive damages may not be awarded by a

court of this state unless authorized: (1) By the law of the state where the injurious conduct occurred

and by either the law of the state where the resulting injury occurred or the law of the place where

the person whose conduct caused the injury was domiciled; or (2) By the law of the state in which

the injury occurred and by the law of the state where the person whose conduct caused the injury was

domiciled.”

36

Louisiana Civil Code Article 3518, entitled “Domicile,” provides that

“[a] juridical person may be treated as a domiciliary of either the state of its formation

or the state of its principal place of business, whichever is most pertinent to the

particular issue.” However, CITGO argues that under La.Civ.Code art. 3548, a

juridical person domiciled outside of the state is considered a Louisiana domicile if

it transacts business in Louisiana and incurs an obligation in Louisiana. We disagree.

Article 3548 specifically provides:

For the purposes of this Title, and provided it is

appropriate under the principles of Article 3542, a

juridical person that is domiciled outside this state, but

which transacts business in this state and incurs a delictual

or quasi-delictual obligation arising from activity within

this state, shall be treated as a domiciliary of this state.

La.Civ.Code art. 3548 (emphasis added).

Therefore, treating CITGO as a Louisiana domiciliary under

La.Civ.Code art. 3548 is contingent upon whether it is appropriate under the

principles of La.Civ.Code art. 3542, which provides for an interest analysis, as

follows:

Except as otherwise provided in this Title, an issue

of delictual or quasi-delictual obligations is governed by

the law of the state whose policies would be most seriously

impaired if its law were not applied to that issue.

That state is determined by evaluating the strength

and pertinence of the relevant policies of the involved

states in the light of: (1) the pertinent contacts of each

state to the parties and the events giving rise to the dispute,

including the place of conduct and injury, the domicile,

habitual residence, or place of business of the parties, and

the state in which the relationship, if any, between the

parties was centered; and (2) the policies referred to in

Article 3515, as well as the policies of deterring wrongful

conduct and of repairing the consequences of injurious

acts.

La.Civ.Code art. 3542.

37

In the present case, CITGO clearly has pertinent contacts with Louisiana

because it has a refinery here. However, CITGO, whose parent company is

Venezuelan, has refineries in Texas and Illinois as well, and it has chosen to

headquarter its American operations in Texas. Under La.Civ.Code art. 3542, and

according to CITGO’s own policies, the events giving rise to the dispute originated

with CITGO’s corporate management. CITGO’s “Safety, Health, & Environmental

Management Policy 80-00” provides that, while all employees and contractors share

responsibility for the health, safety, and environmental performance of their

organizations, “Executive Management of the Corporation establishes policies,

approves standards and goals for performance, and reviews HS&E compliance for all

facilities.” It further provides that “The Corporate HS&E Department will conduct

comprehensive reviews and assessment of facility compliance through verification

of field practices to established procedures” and “assessment of the adequacy of and

the adherence to the elements of the HS&E management systems.”

With regard to the events giving rise to the dispute under Article 3542,

the plaintiffs argue that CITGO’s corporate management intentionally underbuilt the

WWTU in 1994 and caused delays such that construction of the third tank did not

begin until 2006, when it was too late. A memo dated August 15, 1992, indicates that

Tulsa management came to Lake Charles to review the scope and cost of the WWTU,

with the primary focus on modifying the scope of work and reducing the cost. The

1994 project deadline was to be extended. Directives were issued for cost reduction

studies expected to take four to six months to complete. Work was to be split

between the Cambridge and Tampa offices. Seven items were deleted under the

heading of “Wastewater Equipment Eliminated for Cost Reduction.” The total cost

38

reduction was estimated at $35,300,000.00. The fourth item eliminated was “One

Stormwater Tank” at a savings of $12,000,000.00.

Shortly after the WWTU became operational, there were near overflow

situations and diversion events of wastewater to a surge pond that had been

environmentally closed. Lake Charles suggested a recheck on the capacity

requirements and was asking for a third tank as early as 1996. Deposition testimony

indicates that a third tank was recommended in 2002 by an engineering firm hired to

assess WWTU capacity, but budget decisions directed funds elsewhere. The record

contains evidence that other multi-million dollar projects were given priority; the

projects actually increased the load on the WWTU’s existing system and violated

some of CITGO’s own policies regarding environmental projects.

An interim amount of $2,700,000.00 was approved in May of 2004 for

engineering and project design of the capacity upgrade. Another report based upon

a 2004 study indicates that corporate management approved the use of an

“engineering value center” located in Venezuela. Pursuant to a 2005 e-mail,

however, the use of the Venezuelan engineering firm resulted in ineffective

communication and problems. Final approval of the remainder of the $14,450,000.00

capacity upgrade was granted in March of 2005. The reasons given for the approval

request included three reported permit exceedances in 2002 leading to an LDEQ

warning letter in 2003. The reasons acknowledged a total of twelve permit

exceedances since the WWTU expansion in 1994 and eight storm events that had

pushed the WWTU beyond its capacity since 1999. Construction of the third tank did

not begin until the Spring of 2006 and was not completed when the storm event and

release occurred on June 19, 2006.

39

CITGO argues that the WWTU was not intentionally underbuilt, that

CITGO’s corporate management had nothing to do with the delays that left the third

stormwater tank project incomplete in June of 2006, and that decisions on how and

when to build the upgrade occurred at CITGO’s refinery in Lake Charles, not in

Oklahoma and Texas. CITGO argues that these points were “explained by witnesses

personally involved in the decisions” and points extensively to the trial testimony of

Adolph Lechtenberger, the 1996-1999 plant manager in Lake Charles who had retired

from Tulsa management in 2004. Mr. Lechtenberger testified that the design of the

WWTU was a “best practice” industry design and that designing a unit for one

hundred percent capability could cause other problems, basically resulting in over-

design. He further testified that the non-functional skimmers, the oil build-up, and

the breach in the dike in 2006, as summarized by CITGO, would have been his

responsibility had those events occurred while he was plant manager. However, the

trial court specifically indicated in response to this testimony that because of the

“temporal issues” and the time frame of his employment as plant manager, Mr.

Lechtenberger’s testimony regarding management protocol would not be given much

weight.

Moreover, under cross-examination, Mr. Lechtenberger testified that he

would have given high priority to maintaining the levels in the tanks and assuring that

the skimmers worked. He could not explain and did not refute testimony that the

skimmers had indeed stopped functioning a couple of years after installation, which

would have been while he was the Lake Charles plant manager between 1996 and

1999.

CITGO further pointed to the testimony of CITGO capital budget

manager in Houston, Cresha Sivinski, who testified that from a budgeting standpoint,

40

corporate did not get into the execution of the refinery projects. However, she also

testified that corporate did at one time require that forty percent of the engineering

on major projects be done by Venezuelan contractors. The trial court heard and

weighed over 5,000 pages of trial testimony in this case and determined that CITGO

was domiciled in Texas and Oklahoma, and the injurious conduct occurred there

under La.Civ.Code arts. 3546 and 3542.

Under its interest analysis argument, CITGO cites thirty-year-old cases

for the propositions that Louisiana has had an unswerving interest in rejecting

punitive damages and protecting defendants like CITGO who do business in

Louisiana. See Commercial Union Ins. Co. v. Upjohn Co., 409 F.Supp. 453 (E.D.La.

1976) and Karavokiros v. Ind. Motor Bus Co., 524 F.Supp. 385 (E.D.La. 1981),

respectively. CITGO paints with too broad a brush and too heavy a hand. Louisiana

does not have a policy of protecting all out of state defendants from their own state’s

laws. Nor does Louisiana have an unswerving interest in rejecting all punitive

damages, as indicated by the statutes discussed.

In 1984, subsequent to Upjohn and Karavokiros, Louisiana enacted a

specific statute which provided for the assessment of punitive damages against a

tortfeasor for injuries caused by wanton or reckless disregard of public safety in the

storage, handling, or transportation of hazardous or toxic substances. This provision

had been added by Acts 1984, No. 335, § 1 as La.Civ.Code. art. 2315.1, was

redesignated as La.Civ.Code art. 2315.3 in 1986, amended by Acts 1990, No. 302, §

1, and it was repealed by Acts 1996, 1st Executive Session, No. 2, § 1, effective April

16, 1996. CITGO argues that the repeal in 1996 of then article 2315.3 was based

upon a legislative intent to allow criminal statutes to regulate the handling of toxic

substances, “thus negating the need for exemplary damages which serve only to

41

punish.” However, La.Civ.Code art. 2315.3 and its precursor were in Book III of our

Civil Code, under Modes of Acquiring Ownership of Things, Title V, Obligations

Arising Without Agreement. In this case, the issue is punitive damages in the context

of a conflict of law analysis, and the specific punitive damage statute, La.Civ.Code

art. 3546, was enacted in 1991, was not repealed, and must be considered in the

framework of the conflict of law statutes in Book IV, Conflict of Laws, Title VII,

Delictual and Quasi-Delictual Obligations.

Under the interest analysis test, La.Civ.Code art. 3542 requires that a

court also evaluate the strength of the policies referred to in Article 3515, as well as

the policies of deterring wrongful conduct and of repairing the consequences of

injurious acts. Louisiana Civil Code article 3515 is the general and residual rule for

determining the applicable law, and it provides that the choice of law state

is determined by evaluating the strength and pertinence of

the relevant policies of all involved states in the light of:

(1) the relationship of each state to the parties and the

dispute; and (2) the policies and needs of the interstate and

international systems, including the policies of upholding

the justified expectations of parties and of minimizing the

adverse consequences that might follow from subjecting a

party to the law of more than one state.

La.Civ.Code art. 3515 (emphasis added).

When the conduct and injury occur in different states and pertain

specifically to issues of conduct and safety, as opposed to financial protection, we

must consider the law of the state which provides for a higher standard of conduct.

In this case, the states awarding punitive damages for negligent conduct have higher

standards of conduct than states not awarding punitive damages for the same conduct.

42

More specifically, La.Civ.Code art. 3543 provides in pertinent part:

Art. 3543. Issues of conduct and safety

Issues pertaining to standards of conduct and safety are

governed by the law of the state in which the conduct that caused

the injury occurred, if the injury occurred in that state or in

another state whose law did not provide for a higher standard of

conduct.

Accordingly, the injuries in this case occurred in Louisiana, a state

whose law does not provide for a higher standard of conduct. Therefore, the issues

in this case are governed by the law of the state where the injurious conduct occurred.

The comments to La.Civ.Code art. 3543 explain why Louisiana does not

have the greater interest in this case, and they provide a method for determining

which state’s law should apply, Texas or Oklahoma:

(f) Conduct and injury in different states:

Application of the law of the state of conduct. The first

paragraph of this Article provides that, if the injurious

conduct and the resulting injury occur in different states,

the law of the state of conduct applies, if the law of the

state of injury “did not provide for a higher standard of

conduct: than the state of conduct. Phrased affirmatively,

this means that the law of the state of conduct applies if it

provides for the same or a higher standard of conduct than

does the state of injury. Indeed, when the standards

prescribed by the two states are the same, there is no

actual conflict and the application of the law of the state of

conduct need not be explained or defended. When the law

of the state of conduct provides for a higher standard of

conduct than does the law of the state of injury, the

application of the law of the state of conduct may be

justified both in terms of the interest of the two states and

from the perspective of the individuals involved. In terms

of the interests of the two states, applying the law of the

state of conduct when that state imposes the higher

standard promotes the policy of that state in policing

conduct and preserving safety within its borders, without

subordinating whatever policies may be embodied in the

law of the state of injury which allows a lower standard of

conduct. The effectiveness of the conduct-regulating law

of the state of conduct would be seriously impaired if

exceptions to it were made for out-of-state injuries. Such

exceptions are not warranted by the fact that the state of

43

injury happens to allow a lower standard of conduct, since

such a lower standard is designed to protect conduct

within, not without, that state. Finally, from the

perspective of the individuals involved, there is nothing

unfair about subjecting a tortfeasor to the law of the state

in which he acted. Having violated the standards of

conduct of that state, he should bear the consequences of

such violation and should not be allowed to invoke the

lower standards of another state. See Symeonides,

“Choice of Law for Torts,” 445-46 and authorities cited

therein.

La.Civ.Code art. 3543, Comment (f) (emphasis added).

Comment (e) provides that, “[w]hen the law of the state of conduct is the

one prescribing the higher standard, this Article authorizes the application of that law

without any qualifications, but subject always to the escape clause of Article 3547.”

La.Civ.Code art. 3543, Comment (e) (emphasis added).

The comments to article 3543 further provide:

(h) Conduct in more than one state. Cases in which

the injurious conduct occurs in more than one state should

be approached under the principles of causation of the law

of the forum. Ordinarily, these principles will make it

possible to determine which particular conduct was, legally

speaking, the principal cause of the injury. Following such

a determination, the case will be governed by either the law

of the state of that conduct or the law of the state of injury,

depending on which paragraph of this Article is applicable,

and subject always to the “escape clause” of Article 3547,

infra. In the latter case, as well as in all cases in which the

principles of causation would not yield a clear answer, the

applicable law will be determined in accordance with

Article 3542. It is also possible that the fact that the

injurious conduct was not localized in any single state

could, in appropriate circumstances, evoke the escape

clause of Article 3547, even without resorting to the

principles of causation.

La.Civ.Code art. 3543, Comment (h) (emphasis added).

In this case, the trial court found La.Civ.Code art. 3547 applicable in the

alternative, but did not determine which state’s law applied, Texas or Oklahoma. The

article provides:

44

Art. 3547. Exceptional cases

The law applicable under Articles 3543-3546 shall

not apply if, from the totality of the circumstances of an

exceptional case, it is clearly evident under the principles

of Article 3542, that the policies of another state would be

more seriously impaired if its law were not applied to the

particular issue. In such event, the law of the other state

shall apply.

We will apply the punitive damage law of Texas because it is appropriate

under articles 3515, 3518, 3542, 3543, 3546, and it is not inappropriate under article

3547, to which many of the articles are subject. More specifically, we find that

Oklahoma and Texas both have punitive damage laws; therefore, there is no true

conflict as to those states, and the conflict analysis does not have to be defended as

to one over the other, pursuant to article 3543. Notwithstanding, under the interest

analysis of article 3542, and under article 3546, Texas is the current domicile of

CITGO and likely has a greater interest in enforcing its punitive damage law in this

case than does Oklahoma. Under the legal cause analysis of article 3543, while

causation occurred in both states, but for the release in 2006, the damages to the

plaintiffs would not have occurred. Therefore, the legal cause of the injuries indicates

CITGO’s Texas domicile.

Punitive Damages; Burden of Proof

The trial court awarded punitive damages based upon the seriousness of

the spill, the trial court’s previous ruling on fraud, CITGO’s failure to warn the local

populace of its existing MSDS on the spilled product, and upon CITGO’s having

cognizantly misinformed government agencies of the status and capabilities of its

WWTU. Each plaintiff received $30,000.00 in punitive damages, and no plaintiff

received a total award exceeding $50,000.00 due to the jurisdictional limits for a

bench trial.

45

The standards for recovery of exemplary damages in Texas are: (1)

fraud; (2) malice; or, (3) gross negligence. The plaintiffs must prove punitive

damages by clear and convincing evidence. V.T.C.A., Civil Practice & Remedies

Code § 41.003. Punitive damages are capped at: (a) two times the compensatory

damages plus an amount equal to non-economic damages, not to exceed $750,000;

or (b) $200,000, whichever is greater. V.T.C.A., Civil Practice & Remedies Code §

41.008.

In Texas, under V.T.C.A., Civil Practice & Remedies Code § 41.001 (6),

“‘Fraud’ means fraud other than constructive fraud.” CITGO contends that the trial

court’s reference, in its written reasons, to its prior finding of civil fraud is improper

because that was a finding made as part of a discovery hearing which was not part of

the trial record. The plaintiffs argue that the fraud finding referenced by the trial

court occurred in a pre-trial hearing where the crime/fraud exclusion to the attorney-

client privilege vitiated CITGO’s prior efforts to exclude evidence. They argue that

the trial court’s adoption of other written reasons is certainly permissible. The

plaintiffs further argue that CITGO twice filed applications for writs on the issue, that

this appellate court twice declined to exercise its authority for supervisory review,

and that the Supreme Court eventually denied writs as well. However, the plaintiffs

do not attach the writ denials or the trial court’s judgment on fraud and privilege, and

they do not appear to be in the record.

The record does contain the supreme court’s May 2009 remand of the

issue back to the trial court for a more complete ruling after taking briefs and

performing an in camera inspection of the documents. The record also contains the

trial court’s July 2009 written reasons and order, indicating his review and inspection,

and again indicating his finding of fraud, and listing the excluded documents. The

46

record further contains CITGO’s July 30, 2009 request for a stay indicating an intent

to file a second writ application with this court, but the trail appears to end there.

While this court does have access to its own prior rulings, neither the

issue of fraud, nor the prior rulings on fraud are on appeal by CITGO. Moreover, as

stated, there appears to be no judgment in the record on fraud. The October 22, 2009

judgment being appealed by CITGO does not mention or address fraud in any way.

Accordingly, the issue of fraud is not properly before us, and we will pretermit the

issue of fraud with regard to Texas punitive damage law.

Under V.T.C.A., Civil Practice & Remedies Code § 41.001(7), “‘Malice’

means a specific intent by the defendant to cause substantial injury or harm to the

claimant.” While the plaintiffs have charged CITGO with “intentionally”

underbuilding the WWTU in its original design in 1994, and with misinformation,

and with changing its MSDS in December 2006 after the June 2006 release, the

record does not support a specific intent to cause substantial harm to the plaintiffs

under Texas law on malice.

However, we do find that the record supports the punitive damages

awarded by the trial court under the gross negligence law of the Texas punitive

damages statutes. In Texas, gross negligence involves two components: (1) viewed

objectively from the actor’s standpoint, the act or omission complained of must

involve an extreme degree of risk, considering the probability and magnitude of the

potential harm to others; and, (2) the actor must have actual, subjective awareness of

the risk involved, but nevertheless proceed in conscious indifference to the rights,

safety, or welfare of others. V.T.C.A. Civil Practice & Remedies Code § 41:001(11);

Bennett v. Reynolds, 315 S.W.3d 867 (Tex. 2010); Transportation Insurance Co. v.

Moriel, 879 S.W.2d 10 (Tex. 1994).

47

The first element, extreme risk, does not mean a remote possibility of

injury or even a high probability of minor harm, but rather the likelihood of serious

injury to the plaintiff. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex. 1998);

Universal Servs. Co. v. Ung, 904 S.W.2d 638 (Tex. 1995); Moriel, 879 S.W.2d 10.

The second element, actual awareness, means that the defendant knew about the

peril, but its acts or omissions demonstrated that it did not care. Ellender, 968

S.W.2d 917; Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322 (Tex. 1993).

Circumstantial evidence is sufficient to prove either element. Ellender, 968 S.W.2d

917; Moriel, 879 S.W.2d 10.

“Evidence of gross negligence is legally sufficient if, considered as a

whole in the light most favorable to the prevailing party, it rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.” General

Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex. 1999). Some evidence of

simple negligence is not evidence of gross negligence. Id.; Ellender, 968 S.W.2d

917; Ung, 904 S.W.2d 638; Moriel, 879 S.W.2d 10. Conversely, some evidence of

care does not defeat a finding of gross-negligence. Sanchez, 997 S.W.2d 584.

In the present case, CITGO’s corporate management had the

responsibility of establishing its standards and performance goals, and for reviewing,

approving, and assuring adherence to established health, safety, and environmental

compliance. It had knowledge and was constantly aware of the problems with the

WWTU but made decisions and enforced policies regarding engineering and

construction that resulted in the ultimate release of millions of gallons of toxic oil and

wastewater into the Calcasieu waterways, causing injuries and damages to the

plaintiffs. The detailed and voluminous analyses in Parts II and III of this opinion

clearly support a finding of gross negligence by CITGO.

48

IV.

CONCLUSION

Accordingly, based upon the foregoing, we affirm the October 22, 2009

judgment of the trial court with regard to causation and with regard to the awards of

damages for fear of future injury and punitive damages. While we agree that the trial

court should have clarified whether Texas or Oklahoma law should be applied when

it recorded its written reasons, and that it should have provided further legal analysis

in that regard, the trial court’s results were supported by the record.

For the reasons given, we further affirm the trial court’s judgments of

September 19, 2008, on allocation of fault. We also affirm the trial court’s

assessment of costs to the defendant, CITGO Petroleum Corporation. Likewise, the

costs of this appeal are assessed to CITGO.

AFFIRMED.

49