The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
12-635
TANGELA ANNETTE BROWN, ET AL.
VERSUS
GEORGIA GULF LAKE CHARLES, LLC
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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-5068
HONORABLE CLAYTON DAVIS, JUDGE
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J. DAVID PAINTER
JUDGE
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Court composed of Jimmie C. Peters, J. David Painter, James T. Genovese, Judges.
AFFIRMED
Louis C. LaCour, Jr.
Raymond P. Ward
701 Poydras St., Ste. 4500
New Orleans, LA 70139
Counsel for Defendant-Appellant:
Georgia Gulf Lake Charles, LLC
Ernest P. Geiger, Jr.
John E. W. Baay, II
William A. Barousse
701 Poydras St., Ste. 4800
New Orleans, LA 70139
Counsel for Defendant-Appellant:
Georgia Gulf Lake Charles, LLC
Wells T. Watson
P.O. Drawer 7820
Lake Charles, LA 70605
Counsel for Plaintiffs-Appellees:
Tangela Annette Brown, et al.
PAINTER, Judge
Defendant, Georgia Gulf Lake Charles, LLC (GGLC) appeals the judgment
of the trial court finding that Defendant was liable for Plaintiffs’ chemical
exposures, that the exposures were sufficient to cause Plaintiffs’ symptoms, and
awarding damages. For the following reasons, we affirm the judgment of the trial
court.
FACTS
On September 17, 2006, an explosion and fire occurred at GGLC’s Westlake
facility, as a result of which hazardous chemicals were released. Plaintiffs, Patrick
Mouton, Norma Miles, John Miller, Donald and Dora Pryor, Ashley Fuselier,
Casey Budge, Kimberly Lambert, and Cecelia Collins, filed suit against GGLC
alleging injuries resulting from the chemical exposure. GGLC stipulated to fault
for the chemical release, and the trial was limited to the questions of whether the
release caused Plaintiffs’ symptoms and the appropriate amount of damages. The
trial court found Defendant liable for Plaintiffs’ injuries and awarded special and
general damages. Defendants appeal the trial court’s ruling with regard to
causation and its decision to exclude the testimony of one of its expert witnesses.
Plaintiffs answered the appeal asking for additional damages but dismissed their
answer.
DISCUSSION
Exclusion of Expert Testimony
We first consider Defendant’s assertion that the trial court erred in excluding
the testimony of its expert witness, Dr. Scott Phillips.
During traversal of Dr. Phillips’s qualifications by counsel for Plaintiffs, Dr.
Phillips read from his report with regard to what he was asked to do concerning the
case, as follows:
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I’ve been asked if on a scientific basis from the information provided
thus far it can be stated to a reasonable degree of medical and
scientific certainty that the alleged exposure to vinyl chloride,
ethylene dichloride, hydrogen chloride, ethylene, hydrogen sulfide,
and other chemicals from the Gulf - - Georgia Gulf Lake Charles
Facility’s fire caused or contributed to the alleged injuries.
Based on this statement in Dr. Phillips’ report, counsel for Plaintiffs objected
to the acceptance of Dr. Phillips as an expert and to his testimony as such.
Although counsel for Defendant argued that this could be addressed on cross
examination or that Dr. Phillips could be questioned with regard to what his
opinion was based on the proper standard, it is important to note that the objection
was not to the factual basis of Dr. Phillips’ opinion, which could be addressed on
cross-examination. Cox v. Shelter Ins. Co., 09-958 (La.App. 3 Cir. 4/7/10), 34
So.3d 398, writ denied, 10-1041 (La. 9/17/10), 45 So.3d 1044. Nor is it an
objection to the scientific basis or reliability of the opinion, which would be
appropriately addressed in a Daubert motion. Rather, Plaintiffs assert that because
Dr. Phillips used an inappropriate standard in reaching his conclusion, i.e. scientific
certainty, his opinions were irrelevant to the case before the court. The trial court
sustained the objection, stating that it did not feel that the expert could change the
standard used “on the fly.” The trial court further stated that, contrary to the
argument by counsel for Defendant, this is not simply a matter of semantics such
that substituting the word probability for certainty would effect no change in the
outcome. “[I]f I decided this case on reasonable degree of medical and scientific
certainty, that would change the result.” The trial court excluded the testimony,
stating that: “[Dr. Phillips has] prepared an extensive report, he’s done a lot of
work, but he’s based it on a standard that’s not relevant to the case.”
The starting point for analyzing the trial court’s actions is La.Code
Evid. art. 702 which states:
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If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise.
Comment (d) to Article 702 states that the trial judge should
have broad discretion in determining whether expert testimony should
be admissible and who should be permitted to testify as an expert.
Moreover, well-established case law supports the trial court’s great
discretion in determining who should be allowed to testify as an
expert, and the trial court’s decision should not be reversed on appeal
absent clear error. Cleland v. City of Lake Charles, 01-1463, 02-805
(La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-
1385 (La.9/19/03), 853 So.2d 644, 645; Mistich v. Volkswagon of
Germany, Inc., 95-939 (La.1/29/96), 666 So.2d 1073, on rehearing on
other grounds, 95-939 (La.11/25/96), 682 So.2d 239; Massie v. Cenac
Towing Co., Inc., 00-1596 (La.App. 3 Cir. 4/25/01), 796 So.2d 14,
writ denied, 01-1511 (La.8/31/01), 795 So.2d 1213.
Taylor v. Progressive Sec. Ins. Co., 09-791, p. 5 (La.App. 3 Cir. 4/7/10), 33 So.3d
1081, writ denied, 10-1024 (La. 9/17/10), 45 So.3d 1044.
Our review convinces us that the trial court did not abuse its discretion in
excluding the testimony of Dr. Phillips based on relevancy.
Causation
Defendant asserts that the trial court erred in finding that Plaintiffs
demonstrated a causal link between the chemical release and their injuries.
A cause is a legal cause in fact if it has a proximate relation to
the harm which occurs. Butler v. Baber, 529 So.2d 374 (La.1988). “A
proximate cause is generally defined as any cause which, in natural
and continuous sequence, unbroken by any efficient, intervening
cause, produces the result complained of and without which the result
would not have occurred.” Sutton v. Duplessis, 584 So.2d 362, 365
(La.App. 4 Cir.1991). If there is more than one cause of injury, “a
defendant’s conduct is a cause-in-fact if it is a substantial factor
generating plaintiff’s harm.” Rando v. Anco Insulations, Inc., 08-1163,
08-1169, p. 31 (La.5/22/09), 16 So.3d 1065, 1088. Causation is an
issue of fact subject to the manifest error standard of review. Id.
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Hutto v. McNeil-PPC, Inc., 11-609, pp. 17-18 (La.App. 3 Cir. 12/7/11), 79 So.3d
1199, 1213, writ denied, 12-402 (La. 4/27/12), 86 So.3d 628, cert. denied, ___ U.S.
___, ___ S.Ct. ___ (2012).
The trial court’s factual findings may not be reversed unless there is no
reasonable basis for the finding in the record and the finding is manifestly
erroneous.
“Factual determinations of the trier of fact may not be
reversed absent manifest error or unless they are clearly
wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) In
order to reverse a trial court’s determination of fact, an
appellate court must review the record in its entirety and
(1) find that a reasonable factual basis does not exist for
the finding, and (2) further determine that the record
establishes that the factfinder is clearly wrong or
manifestly erroneous. Stobart v. State, Department of
Transportation and Development, 617 So.2d 880, 882
(La.1993). The appellate court must be cautious not to
reweigh the evidence or to substitute its own factual
findings just because it would have decided the case
differently. Ambrose v. New Orleans Police Department
Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8
(La.7/5/94), 639 So.2d 216, 221.”
Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 p.
11 (La.4/3/02), 816 So.2d 270, 278-279.
Green v. K-Mart Corp., 03-2495, pp. 3-4 (La. 5/25/04), 874 So.2d 838, 841-42.
The trial court gave oral reasons for its finding of causation as follows:
I find that the plaintiffs satisfied the burden of proof by a
preponderance of the evidence through the eyewitnesses of the --
dozen or so eyewitnesses who testified that they were exposed by
smell, taste, visual, and because of, in some cases, the immediate
effects reactions to their exposures supports the finding of an exposure
to these plaintiffs.
I find that the release exceeded Georgia Gulf’s estimate in both
the volume released and the duration. The evidence was compelling
that the release of chemicals began before the fire started and
continued beyond the time the fire was extinguished. The estimate
was low, because the release began earlier than they were willing to
admit and continued later, but also because the -- we had that issue of
the -- I think it was the ESC feed line that could be shut down and that
issue was presented in kind of a vague way at first through
Butterworth’s testimony and sought to be clarified by Dr. Murphy or
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Haussmann -- I think it was Haussmann but even then, when we
finally got to the point that the -- this was a system shutdown that had
to be initiated by operators, and we really didn’t have any record of --
didn’t have any record of when that system was shut down. We simply
had information relayed to the expert that it was -- there was
immediate isolation but nothing to support that. And I would have to
believe that in a facility like this, you have documents, such as the
monitoring data, that would tell you what was happening on a line
such as this. So the release exceeded the estimate.
The release, even based on the numbers admitted to by Georgia
Gulf was enormous. We’re talking about 43,000 pounds of HCL []
versus an exposure to people that are calculated in parts per million so
it’s not hard to -- you know, unless I want to simply reject out of hand
the dozen or so eyewitnesses who testified about the exposure and
accept experts, primarily Dr. Murphy who presented a super, which
may well have dealt with a large amount of the release -- I mean, it
may well have modeled the -- the direction of a good bit of the release
but not a hundred percent. And this was a toxic mix of chemicals.
That’s undisputed. The mix is more potent than any individual
chemical. I don’t believe that was even disputed. But, obviously, the
model had problems, because there were specific readings in the DEQ
monitor and the 4.2 ppm at the ferry that were known and not really
picked up in the model.
Dr. Murphy’s explanation for the high reading at the ferry was
because it was in a depression, which I don’t really understand. We
don’t have depressions around here. So the model, as he described, is
useful at times. It probably dealt with the direction and movement of a
large bit of the release but not all of it. The turbulence created by the
fire and I watched the video -- dispersed the chemicals in all
directions, and that’s proven again by the onsite monitoring locations
which picked up chemicals in all directions. And then there were -- we
also had the Moss Bluff cloud that was called in that tells you that
chemical went to that northeast direction.
I accept the testimony of the plaintiffs’ experts as to the
amounts, but all of that is imprecise to some degree, because, again,
you have a mix, but you can’t deny the exposure because of what
eyewitnesses testified to.
The shelter-in-place argument that Georgia Gulf knew there
were going to be certain concentrations to justify the shelter in place is
not an argument that I accept, because otherwise, you’d put a chilling
effect on facilities in calling a shelter in place. They didn’t know what
concentrations, and they had to err on the side of caution; so that
argument, I reject. They did what they felt like they had to do under
the circumstances, and they called the shelter in place.
That does not mean that certain concentrations then appeared
everywhere. You just can’t -- that’s not persuasive. That’s not the
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evidence. But, clearly, there were sufficient concentrations to cause
effects on people in the community. And that’s the finding of the
Court.
Each of the plaintiffs testified as to effects and symptoms that they had after
the exposure, which they did not have previously or which exacerbated pre-
existing conditions. Plaintiffs’ expert physicians, including Doctors Robert Looney,
Gerald Mouton, and Barry Levy, each testified as to their opinion that the GGLC
fire and chemical release more probably than not was the cause of the symptoms
and duration of symptoms that Plaintiffs suffered. Further, as the court stated in
Rosell 549 So.2d at 844-45 (La.1989):
When findings are based on determinations regarding the credibility
of witnesses, the manifest error--clearly wrong standard demands
great deference to the trier of fact’s findings; for only the factfinder
can be aware of the variations in demeanor and tone of voice that bear
so heavily on the listener’s understanding and belief in what is said.
Where documents or objective evidence so contradict the witness’s
story, or the story itself is so internally inconsistent or implausible on
its face, that a reasonable factfinder would not credit the witness’s
story, the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a
factfinder’s finding is based on its decision to credit the testimony of
one of two or more witnesses, that finding can virtually never be
manifestly erroneous or clearly wrong.
Given the record herein and the reasonable credibility evaluations made by
the trial court, we conclude that the determination that the fire and chemical release
caused the symptoms suffered by Plaintiffs is reasonable. Further, the
determination is not clearly wrong or manifestly erroneous. As a result, we may not
overturn the trial court’s determination that Plaintiffs carried their burden of
showing a causal link between the release of chemicals and the injuries they
incurred.
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CONCLUSION
For these reasons, the judgment of the trial court is affirmed. Costs of this
appeal are assessed to Defendant, Georgia Gulf Lake Charles.
AFFIRMED.
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