Opinion
CIVIL ACTION NUMBER 03-2100, SECTION "L"(2)
November 7, 2003
ORDER REASONS
Pending before the Court is the Plaintiffs' Motion to Remand the matter to Civil District Court for the Parish of Orleans, State of Louisiana. For the following reasons that motion is DENIED.
I. BACKGROUND
Richard Travis, a citizen of Mississippi, worked as a truck driver for Dairy Farmers of America, Inc. Travis claims that he entered the Defendant's Lafayette, Louisiana, plant on August 2, 2002, as a business invitee. The Plaintiffs allege that while Travis was on the plant's premises, the plant experienced a chemical leak, exposing Travis to noxious chemicals.
Travis avers that he now suffers from serious, disabling injuries. He brought suit in Civil District Court for the Parish of Orleans alleging that his injuries were caused by Borden's negligence. Travis's wife, Mona Daigle, filed a derivative claim for loss of consortium. The Defendant, a New Jersey corporation with principal business operations in Ohio, removed the matter to the Eastern District of Louisiana on July 23, 2003, invoking this Court's diversity
The Plaintiffs now move the Court to remand the matter to the Civil District Court for the Parish of Orleans. The Plaintiffs challenge this Court's subject matter jurisdiction, arguing that the removing Defendant has failed to establish that the amount in controversy exceeds $75,000, the jurisdictional threshold for diversity suits brought under 28 U.S.C. § 1332(a) (2000). After hearing on Plaintiffs' Motion to Remand, this Court took the motion under submission and allowed the parties three weeks in which to supplement their memoranda. During these three weeks, the Defendant has begun discovery, including taking the deposition of Plaintiff Richard Travis.
The Plaintiffs also challenge the Court's supplemental jurisdiction under 28 U.S.C. § 1367 (2000), and argue that the Court has no supplemental jurisdiction over Plaintiff Mona Daigle's loss of consortium claim. Thus, the Plaintiffs contend that Mona Daigle's claim must in itself satisfy the jurisdictional amount in controversy requirement.
II. LAW AND ANALYSIS
Unless otherwise provided in the U.S. Code, the federal removal statute permits a defendant to remove any civil action in which the United States district courts have original jurisdiction. 28 U.S.C. § 1441 (a) (2000). The removing party carries the burden to establish the existence of federal jurisdiction, including the burden to demonstrate that the amount in controversy exceeds the statutory requirement DeAguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). The removing party must allege the elements of federal jurisdiction by a preponderance of the evidence. Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
Louisiana law expressly prohibits ad damnum clauses specifying numerical amounts of damages. La. R. Civ. Proc. 893(A)(1) (2003). A removing defendant may nonetheless satisfy the jurisdictional amount in controversy by preponderance of the evidence. Louque v. Allstate Ins. Co., 314 F.3d 776, 779 (5th Cir. 2002). This may be done in one of two ways: 1) if it is facially apparent from the petition that the claims are likely to exceed $75,000, or alternatively 2) if the removing party produces `"summary judgment type evidence' of facts in controversy that support a finding of the requisite amount." Manguno v. Prudential Property Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
It is not facially apparent from the Plaintiffs' Petition for Damages that the claims are likely to exceed $75,000. Plaintiffs' state court petition refers to "serious and disabling injuries," and lists categorical descriptions of damages, including past, present and future physical pain and suffering; past, present, and future mental pain and suffering; and past, present and future loss of wages and/or impairment of earning capacity. This Court has previous stated that a petition fails to meet the "facially apparent" standard when it "does not contain a description of the nature and the extent of the injury that plaintiff allegedly sustained." Nelson v. Nationwide Mut. Ins. Co., 192 F. Supp.2d 617, 620 (E.D. La. 2001). Although the Plaintiffs have provided categories of damages in the Petition, the Plaintiffs have not specified the types of injury they allegedly sustained, or the severity of those injuries. The vague description of injury in the Petition cannot itself support a finding that the amount in controversy requirement has been met in this case.
However, the Defendant can still satisfy the amount in controversy requirement by presenting "summary judgment type evidence" that the Plaintiffs' alleged damages are likely to exceed $75,000. Manguno, 276 F.3d at 723. The Defendant must meet this standard by a preponderance of the evidence. See Louque, 314 F.3d at 779. In its Supplemental Memorandum in Opposition to Plaintiffs' Motion to Remand, the Defendant has supplied selections from the deposition of Plaintiff Richard Travis. Travis describes a diagnosis of chemical conjunctivitis; emergency room hospitalization; numerous hospital and doctor visits, including at least one visit to an out-of-state environmental health specialist; burning throat; sensitivity to light; shortness of breath; and a continuous dull and burning sensation in his eyes, a condition which affects his ability to earn a living as a truck driver. Travis indicates that his symptoms have continued with little abatement for the year following the incident, suggesting that the condition is at least long-term and possibly permanent. Further, Travis states that his employment as a truck driver makes it impossible for him to take pain medication to treat his condition.
With this deposition testimony, the Defendant has provided a detailed description of the nature and extent of the Plaintiffs' injuries in this case. The Defendant has demonstrated that Travis has alleged a long-term, debilitating injury to his eyes as well as other serious physical and mental conditions arising from the incident. These injuries could result in a permanent or long-term loss of earning capacity, creating damages which more likely than not will exceed $75,000.
In addition, the Fifth Circuit has considered evidence of comparable cases and verdicts as a factor tending to show that the amount in controversy is met. See DeAguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993); Marcel v. Pool Co., 5 F.3d 81, 83 (5th Cir. 1993). A review of Louisiana jurisprudence indicates that verdicts in similar chemical exposure cases often exceed $75,000. See, e.g., Brodtmann v. Duke, 708 So.2d 447 (La.App. 4 Cir. 1998) (affirming a $200,000 verdict for post-traumatic stress disorder arising from exposure to carbon monoxide and the death of the plaintiffs co-workers); Jeffery v. Thibaut Oil Co., 652 So.2d 1021, 1026 (La.App. 5 Cir. 1995) (upholding a $600,000 verdict for chemical conjunctivitis and post-traumatic stress disorder arising from petroleum exposure); Smith v. Two R Drilling Co., 606 So.2d 804 (La.App. 4 Cir. 1992) (upholding a verdict of over $750,000 for permanent lung damage and psychological trauma arising from exposure to toxic fumes in a mud tank); Soileau v. Olin Corp., 467 So.2d 128 (La.App. 3 Cir. 1985) (affirming verdict of $175,000 for post-traumatic neuroses and loss of earning capacity after exposure to phosphene gas during delivery at chemical plant). This comparative evidence and the detailed description of Travis' alleged injuries tends to show that, more likely than not, the amount in controversy has been satisfied and that this court has subject matter jurisdiction.
Regarding Mona Daigle's claim for loss of consortium, a federal court may exercise supplemental jurisdiction over any claims "so related" to the claim within the court's original jurisdiction "that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a) (2000). Daigle's consortium claim is derivative of and closely related to her husband's personal injury claim. See Booty v. Shoney's Inc., 872 F. Supp. 1524 (E.D. La. 1995). Because supplemental jurisdiction is appropriate, Mona Daigle's claim need not meet the amount in controversy requirement. See In re Abbott Labs, 51 F.3d 524, 529 (5th Cir. 1995); Booty, 872 F. Supp. at 1528.
III. CONCLUSION
For the foregoing reasons, the Court finds that the Defendant has proven by a preponderance of the evidence that the amount in controversy exceeds $75,000 in this case. The Court also finds that supplemental jurisdiction over Plaintiff Mona Daigle's loss of consortium claim is appropriate. Accordingly, the Plaintiffs' Motion to Remand is DENIED.