Opinion
Civil Action No. 04-995, Section: "J" (3).
April 14, 2005
ORDER AND REASONS
On February 16, 2005, the Court held oral argument on Plaintiff's Motion for Partial Summary Judgment on the Issue of Liability, Certain Plaintiffs' Motion for Summary Judgment on the Issues of Causation and Damages, and Plaintiffs' Motion to Exclude Defense Expert Testimony for Lack of Reliability. The Court also heard arguments pertaining to Defendant Monsanto Company's Motion for Summary Judgment. At the conclusion of the hearing, the Court (1) GRANTED Plaintiff's Motion for Partial Summary Judgment on the Issue of Liability, (2) DENIED Certain Plaintiffs' Motion for Summary Judgment on the Issues of Causation and Damages, (3) took under advisement Plaintiff's Motion to Exclude Defense Expert Testimony for Lack of Reliability, and (4) took under advisement Monsanto Company's Motion for Summary Judgment. Subsequent to the oral argument, the parties each filed a supplemental memorandum. After considering the motions, arguments, supplemental memoranda and applicable law, the Court finds that Plaintiff's Motion to Exclude Testimony for Lack of Reliability should be DENIED and Monsanto Company's Motion for Summary Judgment should be GRANTED in part and DENIED in part.
Rec. Doc. 22.
Rec. Doc. 23.
Rec. Doc. 26.
Rec. Docs. 29 and 32.
BACKGROUND
This lawsuit arises out of a release of ammonia at the Monsanto Company plant in Luling, Louisiana on September 18, 1998. As a result of the release, Plaintiffs filed suit in the 29th Judicial District Court for the Parish of Saint Charles, Louisiana on September 20, 1999, and Monsanto removed the action to this court on April 8, 2004. Following a status conference with counsel, the Court ordered the parties to file cross motions for summary judgment by January 14, 2005, with reply memoranda due on January 28, 2005. Oral argument was conducted on February 16, 2005, at the conclusion of which, the Court took the two aforementioned issues under advisement.
Rec. Doc. 1.
December 15, 2004 Minute Entry. (Rec. Doc. 21).
LAW AND DISCUSSION
A. Plaintiffs' Motion to Exclude Defense Expert Testimony
Before a district court can admit expert testimony under Federal Rule of Evidence 702, the court must conduct a preliminary inquiry to ensure that the testimony is both relevant and reliable. Plaintiffs contend that the methodology employed by Defendant's expert is unreliable. Plaintiffs' most convincing argument is that Defendant's expert failed to take into account the effect that the additional 11,000 to 12,000 pounds of gases released had on the plume. Plaintiffs assert that reliability is directly at issue because the "foundation of Monsanto's reports, i.e., what escaped and how much, has been artfully tailored to include only ammonia, thereby understating its geographic release." Citing General Electric v. Joiner, Plaintiff argues that an analytical gap exists between the data and the opinion proffered because Defendant's expert report is only based on 13.7% of the stream, rather than on the entire 100% of the release. Therefore, a model failing to consider the additional 86.3% of the release cannot be reliable.
Vargas v. Lee, 317 F.3d 498, 500-01 (5th Cir. 2003) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) ("[E]xpert testimony is admissible only if it is both relevant and reliable.").
See General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (noting that "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.").
Plaintiffs' Memorandum In Support, pp. 25-26 (Rec. Doc. 22).
Plaintiffs' Memorandum In Support, pp. 21-26 (Rec. Doc. 22).
As asserted by Plaintiffs and Defendant, ammonia only constituted approximately 13.7% of the total release. However, the parties dispute whether or not the additional 86.3% of the release constituted toxic or non-toxic gases. Defendant contends that the gases comprising the 86.3% were "odorless, tasteless gases, which act primarily as inert, simply asphyxiants without other significant physiologic effects, and thus require no further evaluation."
Memo in Opposition to Plaintiffs' Partial Motion for Summary Judgment, p. 19. (Rec. Doc. 24).
After considering the arguments presented by the parties and the evidence before it, the Court does not find that the exclusion of the 86.3% of the release makes the report unreliable as to warrant its exclusion. The Court will consider the factor raised by Plaintiffs when evaluating the expert opinions presented by both parties. Accordingly, Plaintiff's motion to exclude Defendant's expert report should be DENIED.
B. Defendant's Motion for Summary Judgment
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party bears the initial burden of demonstrating to the court that there is an absence of genuine factual issues. Once the movant meets that burden, the non-moving party must produce evidence sufficient to establish that there is a genuine issue of material fact in dispute. Accordingly, a factual controversy exists when both parties have submitted evidence of contradictory facts. On summary judgment, factual controversies are resolved in favor of the non-moving party.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Fed.R.Civ.Proc. 56(c)).
Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992).
Id.
Little, 37 F.3d at 1075.
Id.
In the Louisiana Supreme Court case of Moresi v. Department of Wildlife and Fischeries, the court explained what elements are necessary to recover mental distress damages, i.e., fear and fright damages. The court explained that as a general rule, "if defendant's conduct is merely negligent and causes only mental disturbance, without accompanying physical injury, illness or other physical consequences, the Defendant is not liable for such emotional disturbance." The court recognized, however, that several exceptions to this rule exists and every exception has in common the "especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious."
Moresi v. Department of Wildlife and Fischeries, 567 So. 2d 1081 (La. 1990).
Id. at 1095.
Id. at 1096. The United States Fifth Circuit Court of Appeals has emphasized that in order to recover for fear and mental anguish sustained in an ordeal in progress, a petitioner must prove "he was involved in a hazardous situation, . . . within the zone of danger — and that his fear was reasonable given the circumstances." Harper v. Illinois Central Gulf R.R., 808 F.2d 1139, 1141 (5th Cir. 1987).
In the recent case of Howard v. Union Carbide Corp., the Louisiana Fifth Circuit Court of Appeal relied on the Moresi decision and further explained that the exception arising from special circumstances guarantees the claim is not spurious. The court stated:
[I]n certain circumstances, a plaintiff may recover for fear and mental anguish sustained while a traumatic ordeal is in progress, regardless of whether the plaintiff sustained physical injury. However, to recover for such mental anguish, . . . an individual must show that he was involved in a hazardous situation — that is, within the zone of danger — and that his fear was reasonable given the circumstances. More than minimal inconvenience and worry must be shown before damages may be awarded.
Howard v. Union Carbide Corp., 2005 WL 356594, at *5 (La.App. 5 Cir. 2005).
Id.
Therefore, for Plaintiffs in this matter to recover damages from actions of a "merely negligent" defendant, the negligence must cause physical injury, illness or other physical consequences. However, an exception to this rule exists which allows recovery provided that a plaintiff can prove an especial likelihood of genuine and serious mental distress, arising from special circumstances. To prove the likelihood of serious mental distress, Plaintiffs must demonstrate they were within the zone of danger and their fear was reasonable considering the situation. Thus, absent evidence of physical illness or injury, the question becomes whether or not Plaintiffs were within the zone of danger and whether their fear was reasonable under the circumstances.
Defendant contends that the Plaintiffs were not within the zone of danger because the ammonia concentration levels never reached a harmful level outside of Monsanto's facility. To support this assertion Defendant submits the affidavit of Bruce Eley ("Eley"), an industrial hygienist experienced in the area of exposure/hazard assessment. Eley's affidavit explains that although some of the Plaintiffs may have been able to smell ammonia, no person beyond the Monsanto facility grounds was exposed to a level of ammonia that could have caused harm. Further, Eley cites a number of sources that establish the necessary concentration level for ammonia to be considered hazardous. According to these sources, the concentration level determined by Plaintiffs' expert ("Dr. Sajo") is insufficient to cause harm.
Memorandum in Support of Motion for Summary Judgment (Rec. Doc. 23).
Memorandum In Support of Motion for Summary Judgment, Exh. "G", at Exh. "A" (Rec. Doc. 23).
Memorandum In Support of Motion for Summary Judgment, Exh. "G", at Exh. "A" (Rec. Doc. 23).
Memorandum In Support of Motion for Summary Judgment, Exh. "G", at Exh. "A" (Rec. Doc. 23). Specifically, Eley refers to the American Industrial Hygiene Association's Emergency Response Planning Guidelines, the Environmental Protection Agency's threshold exposure limits, and the Louisiana Department of Environmental Quality standards to demonstrate that the levels graphed by Plaintiffs' expert did not rise to a level that could cause harm. Id.
Plaintiffs contend that "[t]he exposure to syn gas, without knowing the amount or duration of exposure when it begins; the chemical warnings and sirens; the ammonia smell; and the overall uncertainty surrounding the event, would be expected to evoke genuine and serious fear and fright." In other words, Plaintiffs assert that the smell of the gas coupled with additional factors is sufficient for someone to raise an especial likelihood of genuine and serious mental distress, which serves as a guarantee that the claim is not spurious.
Plaintiffs' Memorandum In Support, pp. 16-17 (Rec. Doc. 22).
Evaluating the facts in a light most favorable to the nonmoving party, the Court finds that those claimants who were located outside of the odor plume depicted in Dr. Sajo's report cannot prove a likelihood of serious mental distress and should be dismissed. The Court finds that those plaintiffs outside of the odor plume were clearly outside of the zone of danger and, absent evidence demonstrating physical injury, cannot recover damages. Therefore, summary judgment should be granted in favor of Defendant with respect to those persons who were located beyond Dr. Sajo's odor plume. Accordingly,
Utilizing Dr. Sajo's report, which concluded that a 0.5 mg/m3 NH3 concentration level is the concentration level detectable through smell, Plaintiffs' Memorandum in Response to Monsanto Company's "Reply Memorandum In Support of Motion for Summary Judgment," Exh. "A," p. 2 (Rec. Doc. 32), Defendant geo-plotted the claimants to determine who was located within the odor plume. It is uncontested that the geo-plot places approximately 1,064 of the plaintiffs within Dr. Sajo's odor plume, however, Plaintiffs assert that roughly 5,800 of the plaintiffs are not plotted at all "either because their discovery responses were unclear, they were not located or did not otherwise answer discovery, or discovery was not propounded on them." Plaintiffs' Memorandum in Response to Monsanto Company's "Reply Memorandum In Support of Motion for Summary Judgment" p. 9 (Rec. Doc. 32). Because the Court has not been informed as to the exact number of plaintiffs (plotted and not plotted) located within Dr. Sajo's odor plume, the Court cannot dismiss a finite number of claimants at this time.
Although at oral argument Defendant alluded to the fact that a number of plaintiffs were not geo-plotted as a result of their failing to submit claim forms in accordance with discovery, the present summary judgment motion does not address issues related to discovery, and the Court has not received motions to compel or dismiss parties based on failure to comply with discovery.
IT IS ORDERED that Plaintiff's Motion to Exclude Testimony for Lack of Reliability should be and hereby is DENIED; IT IS FURTHER ORDERED that Monsanto Company's Motion for Summary Judgment should be and hereby is GRANTED in part and the claims of those persons located outside of the odor plume as determined by Dr. Sajo are DISMISSED; otherwise, the remander of Monsanto Company's Motion for Summary Judgment should be and hereby is DENIED. IT IS FURTHER ORDERED that a status conference in chambers is scheduled for May 24, 2005 at 10:00 a.m., for the purpose of discussing the impact of the Court's ruling on specific claimants, as well as entry of an appropriate scheduling order. Counsel are instructed to confer and submit to the Court a status report on what claims remain viable and which should be dismissed pursuant to the Court's ruling.