author: COOKS, Judge. PICKETT, J.,

text:
    Del Dean DAVID et ux v. VELSICOL CHEM. CORP. Wilhelm v. Mosaic Global Operations.
    Nos. 09-1237, 09-1239.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 27, 2010.

      Ranier, Gayle and Elliot, L.L.C., Drew A. Ranier, N. Frank Elliot, III, Brett M. Powers, Lake Charles, LA, Broussard & David, Richard C. Broussard, Lafayette, LA, The Moresi Firm, Paul G. Moresi, III, Abbeville, LA, Robinson, Clacagnie & Robinson, Mark Robinson, Kevin F. Calcagnie, Alexis W. Myer, Newport Beach, CA (Admitted Pro Hac Vice), for Plaintiffs/Appellants, Del Dean David Et Ux.
    Irwin Fritchie Urquhart & Moore LLC, James B. Irwin, .Quentin F. Urquhart, Jr., David M. Melancon, New Orleans, LA, Charles R. Sonnier, The Sonnier Firm, Abbeville, LA, for Defendant/Appellee, SmithKline Beecham Corp., d/b/a GlaxoS-mithKline.
   COOKS, Judge.

| ¡Facts and Procedural History

Plaintiffs in these consolidated cases allege Defendants’ product, Cooper’s Cattle Dip, contaminated then* land and drinking water with arsenic and other hazardous chemicals. They allege the contamination of their lands and drinking water occurred prior to 1970 when Cooper’s Cattle Dip was used in dipping vats located on, or adjacent to, all of the Plaintiffs’ properties. These dipping vats were used to dip cattle in an effort to eradicate ticks which were killing cattle across the United States. Plaintiffs further allege the product was also used in other applications in the area of Plaintiffs’ properties for many years, up to 1985. According to Plaintiffs’ allegations, the ground water under their lands, which they have consumed for many years, is contaminated with high levels of arsenic, in some instances eighty times the Environmental Protection Agency’s (EPA) acceptable levels. Plaintiffs allege that the presence of an alarmingly high rate of certain types of cancer among the residents of their area eventually lead to the discovery of the high levels of arsenic contamination in the ground water running through the entire community in which they live. A local Catholic priest, himself a victim of cancer, encouraged Plaintiffs’ community to test the ground water as a possible explanation for the high rate of certain types of cancer among the population of the area in which the Plaintiffs have lived for generations. The alarming results of those tests precipitated the subject lawsuits.

Plaintiffs’ initial Petition For Damages has been amended and supplemented several times, adding additional plaintiffs and defendants, adding or restating the factual allegations and legal theories upon which Plaintiffs’ claims for damages rely, and adding or restating the various legal capacities in which certain of the Plaintiffs 12make their claims.

On October 80, 2008, the trial court entered a judgment holding that the action is not governed by La.R.S. 9:2800.51, the Louisiana Products Liability Act (LPLA), but is governed by pre-LPLA strict liability law. Defendant did not seek review of that ruling. On December 11, 2008, the trial court ordered Plaintiffs to amend them petitions to address issues of standing. Plaintiffs filed supplemental and amended petitions. On February 9, 2009, the trial court rendered a partial summary judgment dismissing Plaintiffs’ claims that allege “defective construction or composition” and “defective design as to product formulation and composition.” These rulings are not at issue.

On July 6, 2009, the trial court rendered a judgment certified as a final judgment under La.Code Civ.P. art. 1915(B). The trial court ruled on nine motions and exceptions filed by Plaintiffs and Defendant. The trial court granted Defendant’s exceptions of no right of action and no cause of action as to twenty-one of the named Plaintiffs in the consolidated cases but denied the exceptions as to three Plaintiffs, namely Charles Broussard, Mary Olive Broussard Chappuis and Flying J. Ranch Lands, Inc. The trial court found the twenty-one dismissed Plaintiffs had no standing to proceed and their claims were prescribed on the basis that: (1) Louisiana’s survival action statute, La.Civ.Code art. 2315.1, applies to Plaintiffs’ property damage claims and therefore such claims are subject to a one year “preemptive” period from the date of death of the person who owned the property at the time of the alleged contamination; (2) no cause of action is created by the provisions of La.R.S. 30:2015.1 and there is therefore no cause of action for ground water remediation; (3) the utility of Defendant’s product, Cooper’s Cattle Dip, outweighed its danger-in-fact and it was therefore not dangerous per se; and (4) there is no evidence that arsenic levels have |3been found in any of the drinking water, no evidence that any of the Plaintiffs have suffered any adverse health problems as a result of high levels of arsenic in the drinking water, and no evidence of damage to the Chicot aquifer. The trial court also denied Plaintiffs’ motion for summary judgment asserting Cooper’s Cattle Dip was dangerous per se and granted Defendant’s motion for summary judgment asserting the product was not dangerous per se. Plaintiffs filed this de-volutive appeal.

LEGAL ANALYSIS

We review district courts’ rulings on exceptions of no cause of action de novo. Fakier v. State of Louisiana, Bd. of Suprvrs. Univ. of La. Sys., 08-111 (La.App.3 Cir. 5/28/08), 983 So.2d 1024. See also Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641. Likewise, we review exceptions of no right of action de novo, Joseph v. Hosp. Serv. Dist. No.2 of the Parish of St. Mary, 05-2364 (La.10/15/06), 939 So.2d 1206, as well as motions for summary judgment, see Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773.

Plaintiffs in both actions allege they have sustained injury, and continue to sustain injury, to their person and property as a result of alleged ground water contamination caused by Cooper’s Cattle Dip, manufactured by Defendant’s predecessor. Plaintiffs’ allege the contamination predates the 1988 passage of La.R.S. 9:2088.51. Defendant does not dispute this allegation and did not appeal the trial court’s ruling on the application of products liability law prior to 1988. We agree that these consolidated cases must be examined under Louisiana’s strict liability law as it existed prior to the enactment of La.R.S. 9:2088.1 in 1988.

Products Liability

The Louisiana Supreme Court set forth the fundamentals of early Louisiana products liability law in Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754, 755 (La.1971), a case which also involved Cooper’s Cattle Dip (emphasis added):

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated.

Plaintiffs allege in their petitions, and have presented evidence at the hearings on the motions for summary judgment, that arsenic-laden cattle dip was used in large vats on or adjacent to all of the Plaintiffs’ lands. Defendant presents no evidence to the contrary. The method used to “dip” the cattle entailed passing the cattle through large vats filled with a solution of Cooper’s Cattle Dip containing high concentrations of arsenic and other poisonous chemicals. The cattle would then be left standing around in closed pens, on the open ground near the vats, dripping poisonous dip directly onto the ground until they dried sufficiently to be released to pasture. Plaintiffs introduced evidence demonstrating there were no instructions from the manufacturer as to how to cleanup these areas where the dip was simply allowed to run-off onto the ground, allegedly contaminating the soil and eventually the water in the area. Defendant did not introduce any evidence nor present any argument asserting that any such warnings or instructions were given to users of this poisonous and hazardous product. Neither did Defendant allege that its predecessor provided warnings or methods to safely dispose of the used cattle dip to avoid contamination of the soil and ground water. Plaintiffs submitted evidence in the form of copies of the labels accompanying the product which clearly demonstrate the absence of any such warnings.

No one disputes that the arsenic-laden cattle dip was a toxic, hazardous substance designed to kill and known to be highly toxic, even deadly, to humans and animals. As the Louisiana Supreme Court noted in Weber, “The defendant | ¡¿manufacturer's dip is shown to be an inherently dangerous and deadly product due to its arsenic content.” 250 So.2d at 756. In that case, the court found that the particular batch which caused plaintiffs’ injuries and losses was a defective batch and therefore found it was unreasonably dangerous per se. The court in Weber did not reach the question of whether Cooper’s Cattle Dip, when properly manufactured, was dangerous per se. It did, however, determine that the product is “an inherently dangerous and deadly” product. Plaintiffs’ expert testified in his affidavit that Cooper’s Cattle Dip is a deadly poison and is an inherently dangerous product even when properly manufactured.

The Louisiana Supreme Court in Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 116-17 (La.1986) explained strict products liability in Louisiana:

The principle of strict products liability is analogous to the principles of legal fault or strict liability underlying civil code articles 2317-22. The manufacturer who places an unreasonably dangerous product on the market that causes injury to innocent victims is subject to strict liability even if he has not been guilty of any negligence. The liability arises from his legal relationship to the product and is based on the product’s unreasonably dangerous condition. One of the reasons for strict products liability is similar to that underlying the codal strict liability: The person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of its defective condition.

Plaintiffs presented evidence that the product was sold without sufficient warning about its inherently dangerous nature or recommendation to safely dispose of it. However, it specifically mentioned on its label that the product becomes concentrated when left in the vat as a result of water evaporation which made it even more deadly. Additionally, the manufacturer directed the user to dispose of the container in which the product was sold by making holes in the can, rinsing it out with water, and then burying the can. This direction itself created a possible avenue for contamination rather than providing a safe means of disposal. Defendant does not Lassert that the manufacturer was unaware of the dangers posed by its product. In fact, the manufacturer’s literature regarding the product mentions the possibility of contaminating ground water but offers no instruction on any means or method of safe disposal or means to neutralize the poison. Plaintiffs, however, introduced evidence from written materials circulated in the industry at the time this product was in use, which demonstrate that the danger of harm to humans through contamination of drinking water was well known and that there were methods of disposal known by others in the industry to safely dispose of the dip in a manner which would render it less harmful.

Plaintiffs alleging injury as a result of a defective product have “the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiffs injuries were caused by reason of the defect.” Weber, 250 So.2d at 755. However:

If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.

250 So.2d at 756.

The Louisiana Supreme Court later discussed in detail the major tenets of Louisiana products liability law in Halphen, 484 So.2d at 113 (La.1986) (emphasis added):

In order to recover from a manufacturer, the plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product left the manufacturer’s control. The plaintiff need not prove negligence by the maker in its manufacture or processing, since the manufacturer may be liable even though it exercised all possible care in the preparation and sale of its product. Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985); Hebert v. Brazzel, 403 So.2d 1242 (La.1981); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1978); Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971).
As strict products liability in tort was originally conceived, the manufacturer’s ability to know of the danger of its product at the time of sale was immaterial. Under pure strict liability theory, the product is on trial, not the knowledge or conduct of the manufacturer. Subsequently, additional products liability theories developed which permit the plaintiff to recover when the manufacturer fails to give adequate warning or adopt an alternate design to make the product safer. Under these later theories, the knowledge available to the manufacturer when it designs, manufactures, and markets the product may be material. Accordingly, whether the knowledge of the danger in a product is material, relevant, or admissible depends on the particular theory of recovery under which the plaintiff tries his case.
An essential element of a plaintiffs case under each strict liability theory of recovery is proof that the defendant’s product was unreasonably dangerous to normal use. The method of proof of this element varies under each theory, however, and this is why the knowledge available to the manufacturer is material only with regard to certain theories.

The Louisiana Supreme Court acknowledged that products which are “unreasonably dangerous per se” are a separate class of defective products, the purest form of strict liability. 484 So.2d at 114. The court explained that “A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product.” Id. This theory, the court explained, is based on consideration of the product’s “danger-in-fact” and not on whether the manufacturer knew or should have known of the danger. The purpose of that classification is to “evaluate the product itself, not the manufacturer’s conduct.” Id. This came to be known as the risk-utility test. The trial court relied upon this test in reaching its determination that Cooper’s Cattle Dip is not unreasonably dangerous per se. We find the trial court acted prematurely in reaching this decision as the record reveals there are genuine issues of material fact in dispute regarding whether the danger-in-fact outweighed the utility of this product. We further find, for reasons stated below, the trial court erred as a matter of law in its application of the risk-utility test.

|sAs the Louisiana Supreme Court hastened to point out in Halphen:

Although a product is not unreasonably dangerous per se or flawed by a construction defect, it may still be an unreasonably dangerous product if the manufacturer fails to adequately warn about the danger related to the way the product is designed. A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user. Winterrowd v. The Travelers Indemnity Co., 462 So.2d 639 (La.1985); Hebert v. Brazzel, 403 So.2d 1242 (La.1981); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978); cf. Rey v. Cuccia, 298 So.2d 840 (La.1974). In performing this duty a manufacturer is held to the knowledge and skill of an expert. It must keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby. [] Under the failure to warn theory evidence as to the knowledge and skill of an expert may be admissible in determining whether the manufacturer breached its duty. (Emphasis added).

484 So.2d at 114-15.

It is not enough to simply conclude, as the trial court did, that because Defendant put forth evidence that shows the dip effectively eradicated ticks it has shown the utility outweighed the danger-in-fact. Plaintiffs countered by placing substantial evidence in the record which demonstrates that the danger-in-fact was great. The trial judge concludes that just because a few landowners may have suffered injury because of the use of this product it was not a price too high to pay for the resulting eradication of ticks and the benefit of that to the general public. But this is not a full and proper analysis of the risk-utility test. As the Supreme Court further explained in Halphen:

A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product, [citations omitted]. This theory considers the products danger-in-fact, not whether the manufacturer perceived or could have perceived the danger, because the theory’s purpose is to evaluate the product itself, not the manufacturer’s conduct. Likewise, the benefits are those actually found to flow from the use of the product, rather than as perceived at the time the product was designed and marketed. [ ] A warning or other feature actually incorporated in the product when it leaves the manufacturer’s control, however, may reduce the danger-in-fact.

484 So.2d at 114.

In this case, the failure to include warnings about disposal of the dip solution, the great potential for contamination of the soil and ground water and the effects of such contamination, and information on how to decontaminate land upon which the arsenic dip necessarily fell, seriously increased the danger-in-fact which already existed in this toxic product. The failure to warn weighs heavy in the risk-utility test. It is apparent the trial judge did not consider this factor in concluding that this product was not unreasonably dangerous per se.

As the Louisiana Supreme Court in DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26, 30 (La.1981) stated “ ‘[unreasonably dangerous’ means simply that the article which injured the plaintiff was dangerous to an extent beyond that which would be contemplated by an ordinary consumer.” The record reveals many facts supporting the conclusion that genuine issues of material fact sufficient to defeat summary judgment exist. There were no instructions for safe disposal of the dip made with the product and no instructions on how to decontaminate the land saturated by the product outside the dipping vats where cattle were placed to dry after dipping. The process of keeping the cattle penned up after dipping before being released to pasture was in accordance with the manufacturer’s instructions. The manufacturer’s instructions explained that this was necessary to avoid injury to the cattle. The manufacturer failed to provide warnings and instructions despite warning consumers that evaporation of the water mixed with the concentrated arsenic solution made the product an even more potent toxic poison.

Our courts have held that even though a product may have a utility that outweighs its danger, it may still be unreasonably dangerous and subject to strict liability, as in the case of the danger of escalators to children.

| ,nIf the dangers are unavoidable, one is compelled to the question posed in Reynolds, supra: should infants be allowed to ride on escalators? The inescapable conclusion is that escalators, for all their utility, are unreasonably dangerous to small children. If escalators cannot be made reasonably safe for escorted children, children should be warned against riding them. Stores and manufacturers who do not warn against children riding escalators are strictly liable for any resulting injuries. [] Although not unreasonably dangerous “per se”, escalators are unreasonably dangerous to small children, making their manufacturers and custodians strictly liable for escalator injuries to those children. LSA-C.C. art. 231. There is no question that the injury here was foreseeable, which would also make the manufacturer liable under Weber, supra, (emphasis added)

Brown v. Sears, Roebuck and Co., 514 So.2d 439, 445-46 (La.1987).

Similarly, in another failure to warn case, the Louisiana Supreme Court found an ordinary hammer, though certainly not unreasonably dangerous per se, was “unreasonably dangerous to normal use” when placed on the market without a sufficient warning informing the consumer that if the hammer gets chipped during use it must be discarded immediately. Chappuis v. Sears, 358 So.2d 926 (La.1978). More to the point, we are satisfied Plaintiffs did put forth sufficient evidence to demonstrate there are genuine issues of fact in dispute in determining the risk versus the utility of the product and in assessing whether this product was dangerous per se. The trial court’s ruling in this regard was clearly legal error. Moreover, for all the utility the cattle dip may have offered by way of eradicating ticks carrying dangerous diseases, a reasonable factfinder might very well conclude the arsenic laden dip was unreasonably dangerous especially when used without proper warnings.

Exception of No Cause of Action

The peremptory exception of no cause of action raises a question of law based solely on the sufficiency of Plaintiffs’ petition. In considering whether to grant or deny the exception the trial court must accept every well-pleaded fact in the petition as true. In Badeaux v. Southwest Computer Bureau, Inc., 05-612, 05-719, p. 6 (La.3/17/06), 929 So.2d 1211, 1216-17, the Louisiana Supreme Court stated “the focus hfin an exception of no cause of action is on whether the law provides a remedy against the particular defendant.” The inquiry is whether “the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” 929 So.2d. at 1217. Plaintiffs allege they have suffered injury as a result of ground water contamination and as a result of drinking arsenic-contaminated water for many years without knowing of the presence of such high levels of arsenic. These allegations are sufficient to state a cause of action and a right of action against the Defendant manufacturer, and perhaps against the custodian of its product. The failure to remove contaminants creates an ongoing and damaging nuisance to Plaintiff property owners. Such failure to act to correct the problem is “tortious conduct.” See Risin v. D.N.C. Investments, L.L.C., 05-0415 (La.App. 4 Cir.12/7/05), 921 So.2d 133, writ denied, 06-0041 (La.4/17/06), 926 So.2d 519. Defendant does not deny that it is the successor to the manufacturer of Cooper’s Cattle Dip. Neither does Defendant deny that Cooper’s Cattle Dip was used in various dipping vats on or near all of the Plaintiffs’ properties in Vermilion Parish. In fact, Defendant explains the history of cattle dipping, and the use of Cooper’s Cattle Dip nationwide and in Vermilion Parish, Louisiana in its brief to this court. The petitions sufficiently set forth allegations which if true, establish Plaintiffs, and anyone similarly situated, in both suits, will be entitled to remedies against Defendant for contamination of Plaintiffs’ lands and ground water, and the effect this contamination has had or is likely to have on Plaintiffs’ health. The trial court erred as a matter of law in granting Defendant’s exception of no cause of action.

Exception of No Right of Action

The trial court also erred in granting Defendant’s exception of no right of action.

An exception of no right of action is a threshold procedural device used to terminate a suit brought by a person who has no legally 112recognized right to enforce the right asserted. Unless otherwise provided by law, an action can only be brought by a person having a real and actual interest in the matter asserted. LSA-C.C.P. art. 681. An exception of no right of action is a peremptory exception designed to test whether plaintiff has a real and actual interest in the action. LSA-C.C.P. art. 927(A)(5). The function of the exception is to determine whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted. Industrial Companies, Inc. v. Durbin, 02-0665, p. 11 (LA.1/28/03), 837 So.2d 1207, 1216; Louisiana Riverboat Gaming Commission, 94-2015, p. 4 (La.11/30/94), 646 So.2d 885, 888. Evidence is admissible on the trial of the exception of no right of action to support or controvert any of the objections pleaded. LSA-C.C.P. art. 931.

Joseph v. Hosp. Serv. Dist. No.2 of the Parish of St. Mary, 05-2364, p. 5 (La.10/15/06), 939 So.2d 1206, 1210.

Plaintiffs offered sufficient evidence at the hearings on the motions for summary judgment to state a right of action for damages under products liability law based on the product being unreasonably dangerous and the manufacturer’s failure to warn. Plaintiffs in these consolidated cases have the ultimate burden of proving if and to what extent they have been damaged by Defendant’s product. Our review of the record also convinces us the trial court erred in finding Plaintiffs have not been harmed and that there is no evidence of ground water contamination in the area. Plaintiffs presented evidence in the record establishing ground water contamination in their community through the presence of high levels of arsenic in amounts as much as eighty times the amount considered a safe level by the EPA and Louisiana Department of Environmental Quality (DEQ). The record further reveals expert evidence that high levels of arsenic in drinking water can increase the likelihood that persons who drink contaminated water have a higher probability of developing certain types of cancer. It is true Plaintiffs ultimately bear the burden of proving that the high concentrations of arsenic in their groundwater, used for drinking and other purposes, came from Cooper’s Cattle Dip. The evidence in the record at this stage of the proceedings is certainly sufficient to show arsenic in fact has entered the community 11swater system and may be causing serious health problems for the residents.

Additionally, we find the trial court erred as a matter of law in dismissing Plaintiffs’ claims based on rules of property law. The decisions relied on by the trial court in this regard are not applicable to product liability cases. The Louisiana Supreme Court held in DeBattista, 403 So.2d. at 32, “rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to supersede Civil Code Article 2315 which serves the much broader purpose of governing the liability of a manufacturer or processor to those injured by his defective products.” The Louisiana Supreme Court concluded in DeBattista, that although blood used for transfusion is not unreasonably dangerous per se, blood used for transfusions which is tainted with the hepatitis virus is defective and is unreasonably dangerous to normal use. This is so because the risks in receiving the tainted blood are clearly greater than a reasonable consumer would expect. As the court explained, “a ‘defective condition’ is one ‘not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.’ Restatement (Second) Torts, s 402A comment g.” 403 So.2d at 31. As the court further explained in DeBattista, 403 So.2d at 31 (emphasis added):

We recognize that the words ‘unreasonably dangerous’ may serve the beneficial purpose of preventing the manufacturer from being treated as the insurer of its products. We conclude, however, that the term may be used only for this purpose, and certainly not to burden the injured plaintiff with proof of an element which rings of negligence. Otherwise, the formulation of strict liability in practice would rarely lead to a different conclusion than would have been reached under the laws of negligence. Cronin v. J.B.E. Olson, Corp., supra, 104 Cal.Rptr. At 442, 104 Cal.Rptr. 433, 501 P.2d at 1162. See, Comment, 40 La. L.Rev. 207 (1979). Yet the very purpose of strict liability is to relieve the plaintiff from problems of proof inherent in pursuing negligence and warranty remedies, and thereby to insure that the costs of injuries resulting from the defective things are borne by those responsible for them. See Loescher v. Parr, supra, at 446.

114Succinctly put, under our jurisprudence as it existed prior to 1988, “strict liability results from the conduct or defect of a person or thing which creates an ‘unreasonable risk’ of harm to others. Loescher v. Parr, supra.” 403 So.2d at 30. Strict liability for injury suffered as the result of an unreasonably dangerous product attaches to a claim by any person injured by such product. See Weber, 250 So.2d at 755 and Halphen, 484 So.2d at 116-117. There is no requirement that an injured person have an ownership interest in the land contaminated by arsenic. “Any person” injured by the contaminated water or soil has a right of recovery and has standing to enforce that right.

The underlying principle is provided by Article 2315: ‘Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.* * * ‘The remaining articles constitute amplifications as to what constitutes ‘fault’ and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible. Loescher v. Parr, 324 So.2d 441 (La.1975).

DeBattista, 403 So.2d at 29.

Recognizing the long-held, fundamental principle in Louisiana that “reparation must be made to him who suffered injury”, Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 09-298, p. 4, 47 So.3d 428 (La.App. 4 Cir. 2/10/10), citing Clark v. Warner, 6 La.Ann. 408, 408 (La.1851), the fourth circuit aptly stated:

The injury is not dispelled by a subsequent purchase, and therefore we see no reason why the right to seek remedy for it should be. The injured party should not be precluded from seeking reparation merely because the damage remained hidden long enough for the property to be sold. In such cases, injury is deemed to occur when the damage is, or should have been discovered, (citations omitted).

Defendant in this case argues, and the trial court reasoned, that Plaintiffs have no standing to bring this action because they did not own the property when the original contamination occurred and because none of the plaintiffs acquired the right to pursue recovery for such damage from the previous landowners. This is a |, ¿misapprehension of the law. We find Plaintiffs do have standing to assert their claims under Louisiana products liability law based on their allegations that they have been injured as a result of exposure to high levels of arsenic in the ground water they have ingested for many years. Defendant’s reliance on this court’s holding in LeJeune Bros., Inc. v. Goodrich Petroleum Co. LLC, (La.App. 3 Cir. 11/28/07), 981 So.2d 23, writ denied, 08-298(La.4/4/08), 978 So.2d 327, is misplaced. We expressly stated in LeJeune, that the only issue which remained to be decided in that case was “whether LeJuene Brothers’ contract claim is supported by the facts of this case and Louisiana law.” 981 So.2d at 25. (emphasis added). We held in Le-Jeune that the facts demonstrated Plaintiff had not acquired any right to sue pursuant to a pre-existing lease which was terminated prior to the purchase. We further stated the specific issue remaining was “whether Plaintiff acquired the right to sue, pursuant to the Baez Lease, by virtue of a stipulation pour auturi.” 981 So.2d at 25-26. We held Plaintiff was not a third party beneficiary under the Baez Lease and could not acquire any rights as an assignee under an expired mineral lease. In addressing the exception of no right of action in LeJeune we further held “a claim for damages, whether it arises under a predial lease or a mineral lease, is a personal right which must be specifically assigned to run with the property.” 981 So.2d at 32. We expressly noted in Le-Jeune that La.R.S. 30:2015.1 “applies to the rights of a landowner to collect money for damages to usable ground water ” and that Plaintiffs in LeJeune specifically denied they were making any claim under this statute. 981 So.2d at 35. The Plaintiffs in LeJeune stated “[T]he provisions of La.R.S. 30:2015.1 do not apply to this action.” Id. We therefore rejected the plaintiffs’ attempt on appeal in LeJeune to raise that issue. The Plaintiffs in the present action, however, assert they have a right to claim damages for ground water contamination. The trial court erred as a matter of law in concluding that [ ! ¿Plaintiffs do not have such a claim.

Recently, in Eagle Pipe, 09-298 at p. 2, 47 So.3d 428, our sister circuit court of appeal, on rehearing before a five-judge panel, had occasion to consider a similar legal question. That court noted:

The trial court decided as a matter of law that Eagle Pipe possessed no right of action for contamination of its property because the contamination occurred under a lease prior to purchase, and thus created a personal (as opposed to real) right that the former owners did not expressly assign to Eagle Pipe. The trial court concluded that, because Eagle Pipe did not acquire an expressed subro-gation of its vendors’ rights against their lessee, Union Pipe, it had no right of action.

The fourth circuit, on rehearing, reversed the trial court’s finding. The trial court based its ruling on its interpretation of the holding in Prados v. South Central Bell Telephone Company, 329 So.2d 744 (La.1975) and St. Jude Med. Office Bldg. Ltd. P’ship v. City Glass and Mirror, Inc., 619 So.2d 529, 530 (La.1993). The trial court and the exceptors in Eagle Pipe relied on the rule enunciated in this line of cases which they maintained “comprehensively provide that ‘a purchaser cannot recover from a third party for damage to the property incurred prior to sale.’ ” Eagle Pipe, 09-298 at p. 2, 47 So.3d 428, citing Prados v. South Central Bell Telephone Company, 329 So.2d 744 (La.1975) (on rehearing). This is the argument artfully advanced by Defendant in the case before us and relied upon by the trial court. The fourth circuit’s analysis in reaching its decision on rehearing is instructive in the present matter and is in complete accord with our analysis in the present case.

While there is no question that Eagle Pipe’s vendors were the lessors of Union Pipe before the sale, and that Union Pipe’s lease terminated prior to the sale, Eagle Pipe’s claims against the oil companies and transporters do not arise from Union Pipe’s activities as a lessee qua lessee. (FN 10 — If Eagle Pipe’s cause of action was against Union Pipe for breach of its lease obligations, which had terminated prior to Eagle Pipe’s purchase of the property, Prados may well be controlling). The explicit holding of Prados on rehearing is ‘that the present owner has no right to recover damages against the former lessee.’ Prados, 329 So.2d at 751 (emphasis supplied). But Prados, like LeJeune Bros., Inc. v. Goodrich Petroleum Co., L.L.C., 06-1557 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, ‘involve [ ] rights arising under a lease and [are] distinguishable from the instant facts.’ Hopewell, Inc. v. Mobil Oil Company, 00-3280 (La.2/9/01), 784 So.2d 653, 653 (per curiam). In Hopewell the purchaser contended that, through oil and gas operations, hazardous and toxic wastes were deposited in the ground and asserted that the oil company had a duty to restore the property, which duty extended to subsequent landowners. See Hopewell, Inc. v. Mobil Oil Company, 33,774 (La.App. 2 Cir. 11/1/00), 770 So.2d 874,876. The second circuit concluded that Prados requires sustaining the exception of no right of action. But the Louisiana Supreme Court, rejecting that authority and reasoning, reversed the second circuit and reinstated the trial court’s ruling denying the exception of no right of action.
We understand the Supreme Court’s decision in Hopewell to make this same important distinction which we now make: that Prados is limited to actions by a subsequent purchaser against a former lessee arising out of the terminated lease. Notably, the cases cited by the defendants to support the application of this rule relied upon by the trial court all involve causes of action arising under leases.
Moreover, the decision in Prados relied upon the rule that ‘a buyer is presumed to know the overt condition of the property and to take that condition into account in agreeing to the sale price.’ Prados, 329 So.2d at 751. This is a sound rule, but one not applicable to the facts of this case. [ ]
While the rule of law announced in Prados is a sound rule, it is limited to its dispositive facts and we, therefore, conclude that Prados is not controlling in this case which does not involve a lease and does not involve an overt condition of property.

Eagle Pipe, 09-298 at pp. 3-4, 47 So.3d 428.

Likewise in this case, our decision in LeJeune, expressly was limited to the issue presented therein, and it is not applicable to the product liability claims asserted by the Plaintiffs in this case. Defense counsel has skillfully used the language in LeJeune and similar cases but he has missed the mark.

Prescription

In Hazelwood Farms, Inc. v. Liberty Oil and Gas Corp., 02-266, p. 12 (La.App. 3 Cir.4/2/03), 844 So.2d 380, 389, we held:

Damage is sustained, within the meaning of prescription, only when it has manifested itself with sufficient certainty to support the | ^accrual of a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154 (La.1993). The damages suffered must at least be actual and appreciable in quality. Where a claimant has suffered some but not all damages, prescription runs from the day on which he suffered actual and appreciable damages even though he may thereafter realize more precise damages. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992). However, prescription will not commence at the earliest possible indication that plaintiff may have suffered some wrong. It will begin to run when plaintiff has a reasonable basis to pursue a claim against a specific defendant. Jordan v. Employee Transfer Corporation, 509 So.2d 420 (La.1987). Prescription should not be used to force a potential plaintiff who believes that he may have a cause of action to rush to the courthouse to file suit against all parties that may have caused the damage. Miley v. Consolidated Gravity Drainage District No. 1, 93-1321 (La.App. 1st Cir.9/12/94); 642 So.2d 693.

Labbe Serv. Garage, Inc. v. LBM Distrib., Inc., 94-1043, p. 11 (La.App. 3 Cir.2/1/95), 650 So.2d 824, 829.

The trial court’s error was compounded when it determined the issue of prescription in this case. In holding that Plaintiffs’ claims are governed solely by Louisiana property law, the trial court found, to avoid prescription, Plaintiffs had to be owners of the affected property at the time of the contamination of the ground water or they had to acquire the landowner’s right of action in the transfer of the property. The trial court also based its ruling on prescription as to some of the Plaintiffs on the provisions of La.Civ.Code art. 2315.1, survival actions. As we have concluded, the trial court’s reliance on Louisiana property law was erroneous. Plaintiffs have properly alleged sufficient facts to state claims under Louisiana products liability law as the law on the subject stood prior to 1988. Until the expert rendered his opinion that the ground water was contaminated with high levels of arsenic and that this could be the cause of the high incidence of certain types of cancer in the area affected by the contamination, Plaintiffs were not aware of the injury they may have suffered or of the affects the contamination of their soil and groundwater may have upon them and their children in the future. In other words, until that time the damage had not “manifested haitself with sufficient certainty to support the accrual of a cause of action.” Id. Likewise, until Plaintiffs realized that cattle dip used prior to 1970 is the likely cause of the arsenic contamination, they could not have had a reasonable basis “to pursue a claim against a specific defendant.” Id.

Father William Ragallo, the local parish priest, was the first to have a water well in the affected area tested after his diagnosis of cancer in 2004. His inquiry lead to investigations by the Louisiana Department of Environmental Quality and the Louisiana Department of Health. This lead to the discovery that the drinking water in the local wells on Plaintiffs’ lands are contaminated with as much as eighty times the acceptable levels of this toxic chemical. The first Petition For Damages was filed on November 8, 2004 by Del. Dean and Paul Ronald Dale David. The Third Supplemental and Amended Petition For Damages was filed July 14,2005. The Third Amended Petition added twenty-five plaintiffs to the original petition, namely: Connie Langlinais Broussard, John Glynn Broussard, Jude Broussard, The Estate of J. Ray Broussard, Joseph A. Couvillion, William Jude Couvillion, Tina S. Couvillon, Julia A. Couvillon, Todd David, Flying J Ranch Lands, Inc., Joyce M. Harrington, George Harrington, Olga J. Harrington, Brian Hollier, Walton Hollier, Jr., Phillip Lynn Langlinais, Dudley Lemaire, Rayetta B. Meaux, Beverly B. Monseur, Alton Romero, Jr., Bonnie Stelly, Nathan Stelly, Raywood Stelly, Suzette Couvillon Trahan, and David Trahan identified as residents and/or property owners in the Cow Island area of Vermilion Parish, Louisiana. The amended petition alleges that these plaintiffs “have an interest in contaminated property in Cow Island, or have property which is or may become contaminated by the defendants’ products. They have used and personally consumed water from the Cow Island area.” The trial court dismissed these parties, except for Flying J. Ranch Lands, Inc., because they were not owners ofj^allegedly affected properties at the time the alleged contamination occurred and did not acquire the previous landowners’ right to sue by any specific written authority. As we have discussed herein this reasoning was legal error. The trial court also dismissed certain of the Plaintiffs’ claims because they were not brought timely under La.Civ.Code art. 2315.1, survival action. This is not a survival action but is an action based on products liability. The trial court’s ruling in this regard is also legal error.

The amended petition does not allege when or how these plaintiffs became aware of the arsenic contamination of the soil and/or drinking water. Plaintiffs again filed a Restated Amended And Supplemental Consolidated Petition For Damages, wherein, the “David plaintiffs” are listed in their individual capacities and in various other legal capacities purportedly representing other parties or entities. Both Mrs. Mary Olive Broussard Chappuis and Mr. Charles Broussard were added in this amended petition. Mrs. Chappuis was added in her individual capacity as a co-owner, and as a legatee, heir, and usufruc-tuary of James Ray Broussard, decedent. Mr. Charles Broussard was added as the agent for Flying J. Ranch, Lands, Inc. The trial court’s ruling on prescription did not lead to a dismissal of Mary Chappuis’ claims because the trial court found her claims were not perempted under La.Civ. Code art. 2315.1. That ruling is not at issue. The court deferred ruling on the exception of prescription as to Charles Broussard and that ruling is not at issue. The trial court did not rule on Defendant’s exception of prescription as to Edward and Susan Wilhelm because the trial court found the exception was moot in light of its dismissal based on Defendant’s exceptions of no right of action and no cause of action.

Under our de novo review of the consolidated cases on the question of prescription we find the trial court eiTed in applying precepts of Louisiana property law and in applying the provisions of La.Civ.Code art. 2315.1 as the basis to find |2iSome of the Plaintiffs’ claims are prescribed. There remain many issues of fact in dispute as to whether the addition of the later added plaintiffs relate back to the original petition and whether any of the Plaintiffs’ claims have prescribed under appropriate provisions of law. These questions are not before us and we make no finding in those regards. The case is remanded to the trial court with instructions to reinstate all dismissed Plaintiffs in the consolidated cases and to proceed in accordance with the law. The trial court’s grant of summary judgment in favor of Defendant finding Cooper’s Cattle Dip was not dangerous per se is reversed. All costs of this appeal are assessed against Defendant.

REVERSED AND REMANDED

PICKETT, J., dissents in part and concurs in part.

PICKETT, J.,

dissenting in part and concurring in part.

hThe majority determines that the plaintiffs have stated a cause of action against GSK. I would not reach this issue as to the twenty-one plaintiffs dismissed by the trial court, as I would find that these plaintiffs do not have standing to bring the instant action. That is, I believe the trial court correctly sustained the exception of no right of action as to Brian Hollier, Tina Couvillion, Monsour Realty, LLC, John & Gayle Broussard Revocable Trust, Wilhelm Farms, LLC, Paul Ronald Dale David, Del Dean Mouton David, Walton Hollier, Beverly Monsour, Edward Wilhelm, Susan Wilhelm, Rayetta Meaux, Mary Olive Broussard, Josette Hanks, Jamie Charbonnet, Julia A. Couvillion, William Jude Couvillion, Joseph Couvillion, John Glynn Broussard, Philip Lynn Lan-glinais, and Connie Langlinais Bruoussard. I also agree with the trial court that these plaintiffs do not have a separate cause of action pursuant to 30:2015.1.

The majority believes that the exception of no right of action was improperly sustained because the twenty-one dismissed plaintiffs have proven groundwater | contamination. It eschews the idea that property law should govern a case in which pre-LPLA strict liability for manufacturers of unreasonably dangerous products is at issue. I disagree. If Cooper’s Cattle Dip is found to be unreasonably dangerous per se, the harm to the land was caused when the product was used before 1985. A claim for damage to immovable property is a personal action belonging to the owner of the land. The twenty-one dismissed plaintiffs were not the owners of the affected land when the product was used. They cannot prove that the right to bring a personal action held by the owners of the land at the time of the contamination was transferred to them, or that they inherited the right pursuant to La.Civ.Code art. 2315.1 and brought suit within one year. I would affirm the dismissal of the twenty-one plaintiffs, either because they have no right of action or because they failed to bring their cause of action in a timely manner.

For these reasons, I respectfully dissent in part from the majority opinion. In all other respects, I concur in the result.


source: Caselaw Access Project

author: PETERS, J. AMY, J.,

license: Public Domain

text:
    Robbie PAYNE, et al. v. Brett GARDNER, et al. Robbie Payne, et al. v. Brett Gardner, et al.
    Nos. 10-0021, 10-0022.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 27, 2010.

      Michael C. Palmintier, Degravelles, Pal-mintier, Holthaus & Frugé, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellants, Robbie Payne, individually and as natural tu-trix of Henry Goudeau, Jr.
    Albín A. Provosty, John D. Ryland, Pro-vosty, Sadler, deLaunay, Fiorenza & So-bel, Alexandria, LA, for Defendant/Appel-lee, Lufkin Industries, Inc.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PETERS, J.

Robbie Payne, individually and as tu-trix of her minor son, Henry Goudeau, Jr., appeals the trial court’s grant of summary judgment in favor of Lufkin Industries, Inc., dismissing her claim for damages against that particular defendant. For the following reasons, we reverse the grant of summary judgment and remand the case for further proceedings.

DISCUSSION OF THE RECORD

This litigation arises from an accident that occurred in rural Rapides Parish on March 9, 2004. On that day, thirteen-year-old Henry Goudeau, Jr. (Henry) sustained injuries when he climbed onto the moving pendulum of an oil well pump (sometimes referred to as the “pumping unit”) and attempted to “ride” the pendulum. When he climbed on the moving pendulum, his pants became entangled in other parts of the pump and, as the pendulum continued to move upward, he sustained severe personal injuries. The well to which the pumping unit was attached is identified as Tarver A-2 and is located on forty acres of undeveloped property.

Ms. Payne initially filed suits to recover the damages she and her son sustained in both East Baton Rouge Parish and Rap-ides Parish and named Lufkin Industries, Inc. (Lufkin Industries), among others, as a defendant in both suits. The East Baton Rouge Parish suit was eventually transferred to Rapides Parish pursuant to a 'grant of an exception of improper venue and was consolidated with the Rapides Parish suit. Thereafter, on December 16, 2008, Lufkin Industries filed the motion for summary judgment that is now before us.

In support of its motion, Lufkin Industries filed a Statement of Undisputed Material Facts as well as copies of the depositions of Henry; Jon Rand Tarver, the co-owner of the limited liability company that owns the pumping unit; and Brett | ..Gardner, a gauger for Tarver A-2. In opposition to the motion, Ms. Payne filed copies of the same three depositions; copies of her own deposition and that of Maurine T. Noone, the owner of the land where the well is located; and a photograph of the oil well pump on which Henry was injured. In addition, the plaintiffs submitted to the trial court cases from California, Texas, and Oklahoma in which children had been injured while attempting to “ride” on an oil well pumping unit: Titus v. Bethlehem Steel Corp., 91 Cal.App.3d 372, 154 Cal.Rptr. 122 (Cal.App.2d Dist.1979), Burk Royalty Co. v. Pace, 620 S.W.2d 882 (Tx.App. 12th Dist.1981), Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, 771 P.2d 208 (1989).

The Statement of Undisputed Material Facts filed by Lufkin Industries establishes the following:

1.LUFKIN is the manufacturer of the oil jack pump subject to this litigation.
2. On or about March 9, 2004, Henry Goudeau, Jr. was seriously injured when he attempted to ride the pump.
3. LUFKIN manufactured the pump for the sole purpose of extracting oil from the ground.
4. LUFKIN never intended for anyone to ride the pump.
5. Henry Goudeau, Jr. would not have gone near the pump had his mother been with him.

The other filings in support of, and in opposition to, the summary judgment establish that there is little dispute over most of the remaining facts surrounding the accident. Tarver A-2 was drilled sometime prior to 1990, and the pump at issue was manufactured by Lufkin Industries some fifty years before Henry’s injury. At the time of the accident, the pump was owned by CABA, L.L.C., a limited liability | ..¡company owned by Jon Rand Tarver and his mother, Connie Tarver. Ms. Noone, who was ninety-two years of age when her deposition was taken in May of 2008, inherited the property upon which Tarver A-2 is located from her father. The property is a wooded area and the well itself bears no warning signs and is not fenced. The evidence also establishes that Ms. Payne and Henry moved to the rural area where the Noone property is located in early 2004, or only a short time before the March 9, 2004 accident. At the time of the accident, thirteen-year-old Henry was in the sixth grade, and was receiving special education in math and reading because he suffers from an attention deficit hyperactivity disorder and dyslexia.

On the day of the accident, Henry and three other boys were walking through the woods when they came upon the Tarver A-2 well. Before that day, Henry had only seen pumping oil wells from a vehicle as he rode by them. One of the other boys attempted to “ride” the oil well pump before Henry, but the boy’s legs were too short. When Henry made his attempt to ride the pumping unit, the accident occurred.

In the memorandum accompanying its motion for summary judgment, Lufkin Industries asserted that it

is not liable for plaintiffs injuries because Lufkin did not “anticipate” at the time it designed and manufactured the product in the 1950s that it would be “used” for the recreational purpose— “riding” — by persons, including teenagers.

Ms. Payne argued in opposition to the motion that there existed a foreseeable risk that children would attempt to play on the oil well pump.

Following the July 27, 2009 hearing on the motion, the trial court granted Lufkin Industries the relief it prayed for and dismissed it from the litigation. Ms. Payne perfected this appeal, asserting four assignments of error.

LOP INION

In her first and fourth assignments of error, Ms. Payne asserts that the trial court erred in granting the motion for summary judgment, arguing that there are genuine issues of material fact concerning what constitutes the “reasonably anticipated use” of an oil well pump.

The motion for summary judgment is a procedural device to avoid a trial on the merits when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Summary judgment procedure is “designed to secure the just, speedy, and inexpensive determination of every action,” except certain domestic actions; the procedure is favored and shall be construed to accomplish those ends. La.Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. Appellate review of a summary judgment is de novo, applying the same standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. The movant has the burden of proof on the motion for summary judgment. La.Code Civ.P. art. 966(C)(2).

|aHowever, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Id.

The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code CivJP. art. 966(B).

A “genuine issue” is a “triable issue.” Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987) (citing Brown [v. B & G Crane Service, Inc., 172 So.2d 708, 710 (La.App. 4 Cir.1965) ]). More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1983). In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3d Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988); Pace v. Zilka, 484 So.2d 771 (La.App. 1st Cir.), writ denied, 488 So.2d 691 (La.1986); Mecom v. Mobil Oil Corp., 299 So.2d 380, 386 (La.App. 3d Cir.), writ denied, 302 So.2d 308 (La.1974). “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.” Brown, 172 So.2d at 710; Sally Beauty Co. v. Barney, 442 So.2d 820, 822 (La.App. 4th Cir.1983).
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La.1992). Simply | ¿put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345, 352 (La.1993); Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied, 457 So.2d 1194 (La.1984) (noting that “[sjummary judgment may not be used as a substitute for trial”).

Smith, 639 So.2d at 751.

In determining whether a fact is material, the court must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427.

The substantive law governing this litigation, which provides Ms. Payne’s exclusive remedy against Lufkin Industries, is La.R.S. 9:2800.1 et seq., the Louisiana Products Liability Act (LPLA). Under the LPLA, the manufacturer’s responsibility to a party injured by its product is set forth in La.R.S. 9:2800.54(A), which provides:

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.

Louisiana Revised Statutes 9:2800.54(B) provides that a product can only be unreasonably dangerous in construction, or composition [La.R.S. 9:2800.54(B)(1) ], in design [La.R.S. 9:2800.54(B)(2) ], when not provided with adequate warnings [La.R.S. 9:2800.54(B)(3) ] or when it does not conform to an express warranty [La.R.S. 9:2800.54(B)(4) ].

Lufkin Industries did not address whether or not its product was unreasonably dangerous as defined in La.R.S. 9:2800.54(B). Instead, it based its motion for summary judgment on the argument that, regardless of the nature of its product, |7riding the pendulum was not a “reasonably anticipated use” of the oil well pump. Lufkin Industries supported this position by the assertion in its Statement of Undisputed Material Facts that it manufactured the pumping unit for the sole purpose of extracting oil from the ground, and that it never intended for anyone to “ride” it; and by the deposition testimony of Mr. Tarver, who stated that oil well pumps are made for work, and not for riding. With that evidence, Lufkin Industries satisfied its burden of pointing out to the court that there was an absence for factual support for a finding that Henry’s accident arose from a reasonably anticipated use of the pumping unit. La.Code Civ.P. art. 966(C)(2).

The burden shifted to Ms. Payne to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial. La. Code Civ.P. art. 966(C)(2); Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. At trial, Ms. Payne’s first burden of proof under La.R.S. 9:2800.54 would be to establish by a preponderance of the evidence that Henry’s injury arose from a reasonably anticipated use of the pumping unit. Under the LPLA, “ ‘[reasonably anticipated use’ means a use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” La.R.S. 9:2800.53(7). This is an objective inquiry, which requires the court “to ascertain what uses of its product the manufacturer should have reasonably expected at the time of manufacture.” Blanchard v. Midland Risk Ins., 01-1251, p. 3 (La.App. 3 Cir. 5/8/02), 817 So.2d 458, 460, writs denied, 02-1517, 1594 (La.9/20/02), 825 So.2d 1178, 1181. This court has recognized that, under the LPLA, a manufacturer is not responsible for every conceivable foreseeable use of its product. Id.

|sTo demonstrate that attempts to “ride” the pumping unit are a use of the product that Lufkin Industries should have reasonably expected at the time that it manufactured the pumping unit, Ms. Payne presented Mr. Gardner’s deposition testimony that he had heard of a fatal accident in the Shreveport, Louisiana area involving teenagers attempting to “ride” a pumping unit and introduced evidence of three cases in other states — California, Oklahoma, and Texas — where children had been injured while “riding” a pumping unit. In assessing the evidence thus presented, the court cannot make determinations on the merits of the case, evaluate the weight of the evidence, nor make credibility calls, but must draw from the undisputed facts those inferences that are most favorable to the party opposing the motion for summary judgment — here Ms. Payne. See Ind. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

Here, although the evidence presented by both parties was scanty, there was conflicting evidence on whether an attempt to “ride” the pumping unit is a use or handling of the pumping unit that Lufkin Industries should reasonably expect of an ordinary person in the same or similar circumstances. After a de novo review of the record, we cannot conclude that the scintilla of direct evidence presented by Ms. Payne was insufficient to allow a reasonable juror to conclude that Lufkin Industries should have expected an ordinary person in the same or similar circumstances to use or handle the pumping unit in this way. See Ind. Fire Ins. Co., 755 So.2d 226 and Latiolais v. Teachers’ Ret. Sys. of La., 08-1792 (La.App. 1 Cir. 8/24/09), 22 So.3d 948, writ granted 09-2081 (La.1/8/10), 24 So.3d 872.

^DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of summary judgment and remand for further proceedings. We assess all costs of this appeal to Lufkin Industries, Inc.

REVERSED AND REMANDED.

AMY, J., dissents and assigns written reasons.

COOKS, J., dissents for the reasons assigned by Judge AMY.

AMY, J.,

dissenting.

| ,In my opinion, an affirmation is warranted as I find that the evidence submitted demonstrates an absence of genuine issues of material fact with regard to whether an attempt to “ride” the pump was a reasonably anticipated use pursuant to La.R.S. 9:2800.54(A).

It seems to me that the plaintiffs focus on the state of the products liability law as it existed before the 1988 enactment of the Louisiana Products Liability Act, now the exclusive remedy against manufacturers for an allegedly defective product. The pre-LPLA law included a “normal use” standard, which included all intended uses of a product, including all reasonably forer seeable uses and misuses. Blanchard v. Midland Risk Ins., 01-1251 (La.App. 3 Cir. 5/8/02), 817 So.2d 458, writ denied, 02-1517 (La.9/20/02), 825 So.2d 1178, writ denied, 02-1594 (La.9/20/02), 825 So.2d 1181. As the majority points out, the LPLA does not hold a manufacturer responsible for all foreseeable uses of a product. Id. Instead, a manufacturer is liable for uses it 12should reasonably expect of an ordinary consumer. Butz v. Lynch, 99-1070 (La.App. 1 Cir. 6/23/00), 762 So.2d 1214, writ denied, 00-2660 (La.11/17/00), 774 So.2d 980. See also Daigle v. Audi of America, Inc., 598 So.2d 1304 (La.App. 3 Cir.) (quoting John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La. L.Rev. 565 (1989)), writ denied, 604 So.2d 1306 (La.1992).

In light of the LPLA standard and upon review of the record, I find no evidence indicating that this accident occurred pursuant to a use reasonably expected of an ordinary consumer. Further, and even assuming the misuse in this case could be considered a use as encompassed by the applicable statute, I find no evidence that it should have been reasonably anticipated at the time the pump was manufactured in the early 1950s. The jurisprudence relied on by the plaintiffs involved occurrences well after that date. Also, that jurisprudence involved attractive nuisance claims and not ones controlled by the LPLA, which I believe to be the law applicable to this case.

Because I would affirm the trial court’s judgment, I respectfully dissent.

      . Mrs. Tarver's husband was the individual responsible for drilling the initial well.

      . On appeal, Ms. Payne asserts four assignments of error:
      1) The trial court erred in failing to find that Henry’s conduct concerning the Lufkin pumping unit is a reasonably anticipated use for a 13 year old boy.
      2) The trial court erred in failing to find the Lufkin pumping unit an attractive nuisance under Louisiana jurisprudence.
      3) The trial court erred in failing to find that the Lufkin design of the pumping unit in question is inherently dangerous and, therefore, lacked the appropriate safety guards and warnings to justify its sale and use by the public at large.
      4) The trial court erred in failing to find material issues of fact existed that precluded the granting of Lufkin's Motion for Summary Judgment.
      The second and third assignments of error are easily disposed of as having no merit. The doctrine of attractive nuisance applies to suits against owners or possessors of land. Saxton v. Plum Orchards, 215 La. 378, 40 So.2d 791 (1949). Ms. Payne cannot avail herself of this cause of action to avoid the exclusive remedy afforded a plaintiff against a manufacturer under the LPLA. With regard to the absence of safety guards and warnings, that issue was not the subject of Lufkin Industries’ motion for summary judgment, was not addressed by the trial court, and is not now before this court.


author: GENOVESE, Judge. DECUIR, J.,

text:
    TENSAS POPPADOC, INC. v. CHEVRON U.S.A. INC., et al.
    No. 10-124.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 27, 2010.
    Rehearing Denied Dec. 8, 2010.

      James D. “Buddy” Caldwell — Attorney General, Stephen J. Oats — Special Assistant Attorney General, Lawrence E. Mari-no — Special Assistant- Attorney General, George 0. Luce — Special Assistant Attorney General, Oats & Hudson A, Partnership of Professional Corporations, Lafayette, LA, for Non-Party Appellant, Scott Angelle, then Secretary of the Louisiana Department of Natural Resources.
    Megan K. Terrell, Ryman M. Seide-mann, Office of the Attorney General, Civil Division, Division, Baton Rouge, LA, for Non-Party, Louisiana Department of Natural Resources and James Welsh.
    Winston Stephen Walker, John W. Adams, Joe Wilson, Louisiana Department of Natural Resources, Office of Conservation, Baton Rouge, LA, for Non-Party, Louisiana Department of Conservation.
    Donald T. Carmouche, Victor L. Marcel-lo, John H. Carmouche, William R. Coe-nen, III, John S. DuPont, III, Brian T. Carmouche, Kenneth Jay DeLouche, Talbot, Carmouche & Marcello, Gonzales, LA, Jerold Edward Knoll The Knoll Law Firm, L.L.C. Marksville, LA, James Edward Paxton, APLC St. Joseph, LA, Wade N. Kelly, Robichaux, Mize, Wadsack & Richardson, LLC, Lake Charles, LA, for Plaintiff/Appellee, Tensas Poppadoc, Inc.
    Brent Stafford Gore, Ferriday, LA, G. William Jarman, Kean, Miller, Hawthorne, D’Armond, McGowan & Jarman, Baton Rouge, LA, Robert E. Meadows, Carol M. Wood, King & Spalding, LLP, Houston, TX, Michael R. Phillips, Kean, Miller, Hawthorne, D’Armond, McGowan & Jar-man, Louis M. Grossman, Patrick A. Talley, Jr., Frilot, LLC, New Orleans, LA, for Defendant/Appellee, Chevron U.S.A., Inc.
    Albert Moore Hand, Jr., Cook, Yancy, King & Galloway, Shreveport, LA, for Defendants/Appellees, Devon Energy Production, Merit Management Partners I, L.P., Merit Energy Company, Merit Energy Partners, III, L.P., and Merit Energy Partners D-III, L.P.
    John Men Jeansonne, Jr., Donovan J. O’Pry, II, John A. Jeansonne, III, Jean-sonne & Remondet, L.L.C., New Orleans, LA, for Defendants/Appellees, McGowan Working Partners, Inc, Spokane Oil & Gas, L.L.C. and Sunset Oil & Gas, LLC.
    D. Russell Holwadel, Adams, Hoefer, Holwadel & Eldridge, LLC, New Orleans, LA, for Defendants/Appellees, Denbury Onshore, LLC, LSJ Exploration, L.L.C., Oil & Ale LSJ, LLC, Smith Operating and Management Company, and Diamond South Operating, LLC.
    Guy Earl Wall, Wall, Bullington & Cook, LLC, New Orleans, LA, for Defendant/Ap-pellee, LSJ Exploration, L.L.C.
    James Marshall Jones, Jr., Jones, Odom, Davis & Politz, L.L.P., Shreveport, LA, for Defendant/Appellee, Diamond South Operating, LLC and Oil & Ale LSJ, LLC.
   GENOVESE, Judge.

hln this environmental remediation case, Scott Angelle, then Secretary of the Louisiana Department of Natural Resources (LDNR), a non-party to the instant litigation, appeals a judgment of the trial court ordering the issuance of a subpoena for his testimony at trial and permitting the taking of his deposition in this litigation. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS

Plaintiff, Tensas Poppadoc, Inc. (Poppa-doc), filed suit for environmental damage to its property for which Defendant, Chevron U.S.A., Inc, was found to be liable as a responsible party. Subsequently, in accordance with La.R.S. 30:29 the LDNR approved a plan for remediation, which Pop-padoc contended was not the most feasible plan. As required by the statute, the trial court set the matter for hearing on February 22, 2010. On August 18, 2009, Poppa-doc filed a motion pursuant to La.R.S. 13:3667.3, which sets forth the procedure for compelling the testimony of certain persons as witnesses in a lawsuit, seeking an order of the trial court for the issuance 12of a trial subpoena to Mr. Angelle and permitting Poppadoc to take Mr. Angelle’s deposition prior to the hearing to be held pursuant to La.R.S. 30:29(C)(5).

Louisiana Revised Statutes 30:29(A) states that “this Section provides the procedure for judicial resolution of claims for environmental damage to property arising from activities subject to the jurisdiction of the Department of Natural Resources, office of conservation.” According to that statute, “the court shall order the party or parties who admit responsibility or whom the court finds legally responsible for the damage to develop a plan or submittal for the evaluation or remediation to applicable standards of the contamination that resulted in the environmental damage.” La.R.S. 30:29(C)(1). The plan is then “developed and submitted to the [LDNR] and the court.” Id. The LDNR is then required to “conduct a public hearing on the plan or plans submitted.” La.R.S. 30:29(C)(2). “Within sixty days of the conclusion of the hearing,” LDNR is required to “approve or structure a plan based on the evidence submitted which the department determines to be the most feasible plan to evaluate or remediate the environmental damage and protect the health, safety, and welfare of the people.” Id. Written reasons for the plan ultimately “approvefd] or structure^]” must then be issued by the LDNR. Id. The plan is then adopted by the court “unless a party proves by a preponderance of the evidence that another plan is a more feasible plan to adequately protect the environment and the public health, safety, and welfare.” La.R.S. 30:29(C)(5)(emphasis added).

In the instant matter, when presented with Poppadoc’s motion relative to Mr. IsAngelle’s testimony at and prior to the “preponderance hearing,” the trial court signed an order on September 2, 2009, stating that: “[T]he motion of [Poppadoc] appears to be well founded and that the denial of the motion may prejudice the case of [Poppadoc], and that there is sufficient cause to schedule a hearing under La.R.S. 13:3667.3.” The hearing required by the statute was held by the trial court on November 19, 2009. The trial court granted Poppadoc’s motion. Mr. Angelle appeals.

ISSUE

In his brief to this court, Mr. Angelle delineates nine particular issues for review. However, collectively, the ultimate issue to be decided by this court is whether Mr. Angelle may be compelled to provide testimony at the “preponderance hearing” and whether he must submit to a deposition prior thereto.

LAW AND DISCUSSION

Standard of Review

The issue before this court involves the application of La.R.S. 13:3667.3. It is, therefore, a question of law. “Questions of law are reviewed under the de novo standard of review. Therefore, we must determine whether the ruling of the trial court was legally correct.” Moon Ventures, L.L.C. v. KPMG, L.L.P., 06-1520, p. 3 (La.App. 3 Cir. 8/15/07), 964 So.2d 446, 449, writ denied, 07-1862 (La.11/21/07), 967 So.2d 1156 (citations omitted).

Applicable Law

Louisiana Revised Statutes 13:3667.3 sets forth the procedure to be used to compel the appearance of certain individuals for the procurement of their testimony. Undisputedly, Mr. Angelle, then Secretary of the LDNR, is included within the ambit |4of the protection afforded by this statute, the relevant portions of which are as follows:

A. (1) A party litigant in a civil case or in a criminal misdemeanor case seeking to compel the attendance of a statewide elected official, or the head of any department of the state of Louisiana appointed to the position by the governor, as a witness in a suit that arises out of, or in connection with, the person’s exercise of his duties as an official of the state, shall file a written motion with the proper court requesting a hearing on the matter. The motion shall set forth the facts sought to be proved by the person’s testimony, the relevance of those facts to the case, and the basis for the mover’s belief that such person has knowledge of those facts. This Subsection shall not apply to any person who is subpoenaed as a prospective factual witness to an incident resulting in criminal prosecution.
(2) If the judge determines that the motion is well-founded and that denial of the motion may prejudice the case of the mover, the judge shall order a hearing and shall notify the mover and the witness of the hearing time and date by certified mail, return receipt requested, and the hearing shall be conducted in open court. At that time, the witness may present evidence or argument in opposition. After the hearing, if the court determines that the mover has established that the witness is necessary to the case, it shall issue a subpoena as sought. The court’s ruling shall be an appealable order.

Id. (emphasis added).

In accordance with the mandates of La. R.S. 13:3667.3(A)(1), Poppadoc set forth in its motion “the facts sought to be proved” by Mr. Angelle’s testimony. Poppadoc asserted that the thirteen facts set forth in its motion were relevant to the case since they constituted proof that the feasibility plan failed to comply with the relevant statutory provisions and, further, that it was not the most feasible plan. Additionally, Poppadoc asserted that Mr. Angelle had knowledge of the facts set forth in the motion.

|sOn appeal, there is a dispute as to whether the express terms of La.R.S. 13:3667.3 require the trial court to hold two hearings. Mr. Angelle contends that the trial court erroneously held a “necessity hearing” under La.R.S. 13:3667.3(A)(2), without first conducting a “relevancy hearing” under La.R.S. 13:3667.3. We disagree.

Louisiana Revised Statutes 13:3667.3(A)(1) specifically states what must be set forth in the motion of “[a] party litigant” who seeks to compel the attendance of those individuals contemplated by the statute. There is no provision that the relevancy of these assertions be the subject of a hearing before the trial court. Rather, when presented with a motion, the trial judge must determine (1) “that the motion is well-founded!7” and (2) “that the denial of the motion may 'prejudice the case of the mover[.]” La. R.S. 13:3667.3(A)(2) (emphasis added). If these two elements are met, the trial court “shall order a hearing.” Id.

In the instant case, the trial court expressly stated that the allegations of Pop-padoc’s motion were “well founded and that the denial of the motion may prejudice the case of [Poppodac.]” Considering the allegations required by La.R.S. 13:3667.3(A)(1) as set forth by Poppadoc in its motion, and mindful of the purpose for which the testimony is sought, i.e., the “preponderance hearing” pursuant to La. R.S. 30:29(0(5), we find that the ruling of the trial court setting the matter for hearing was the legally correct application of the statute.

Louisiana Revised Statutes 13:3667.3(A)(2) (emphasis added) provides that “[a]fter the hearing, if the court determines that the mover has established that the witness is necessary to the case, it shall issue a subpoena as sought.” We, therefore, must next consider whether the trial court was legally correct in its application of ^La.R.S. 13:3667.3(A)(2) relative to the “necessity hearing” held by the trial court on November 19, 2009.

With respect to the “necessity hearing,” Mr. Angelle argues that the trial court failed to give him proper notice of the hearing. However, it is evident from the record that Mr. Angelle was represented by counsel who had actual notice of the hearing. Not only did counsel appear and argue on behalf of Mr. Angelle at the scheduled hearing, the issue of notice, or lack thereof, was not raised. We, therefore, find no merit to this contention.

Mr. Angelle also argues that the trial court erroneously excluded his affidavit from evidence at the “necessity hearing.” He argues that the affidavit was “the one piece of evidence that went right to the heart of the necessity inquiry” because he “categorically den[ied] any knowledge of or involvement with the Act 312 plan at issue.” When the trial court sustained Poppadoc’s objection to the affidavit, it was proffered.

The transcript of the “necessity hearing” reveals that when Mr. Angelle’s affidavit was offered into evidence, the attorney for Poppadoc objected on the grounds that it was improper hearsay evidence. Additionally, Poppadoc argued to the trial court, and again on appeal, that introduction of Mr. Angelle’s affidavit effectively would have denied Poppadoc an opportunity to cross-examine him on the affidavit’s contents. Moreover, “[t]he reason [Poppadoc] subpoenaed Secretary Angelle in the first place was because it wanted the opportunity to eross[-]examine [him] on these very issues.”

While we agree with Mr. Angelle that La.R.S. 13:3667(A)(2) affords him the opportunity to “present evidence or argument in opposition” to the motion at the 17“necessity hearing,” we find that the affidavit was properly excluded from evidence on hearsay grounds. There is merit in Poppadoc’s argument that “[u]nder Secretary Angelle’s theory, all a department head need do to avoid a deposition is submit an affidavit denying all knowledge of any facts, with no fear of ever having to be cross[-]examined under oath on the [contents of the] affidavit.” Poppadoc concludes, and we agree, that this result “cannot have been the intent of the legislature when it drafted [La.R.S.] 13:3667.3.” For these reasons, we conclude that the trial court did not abuse its discretion in excluding Mr. Angelle’s affidavit.

Before issuing the requested subpoenas, it was incumbent upon the trial court to consider the “necessity5’ of Mr. Angelle’s testimony. However, given the exclusion of Mr. Angelle’s affidavit, the “necessity hearing” was concluded without the trial court having evidence before it upon which to make a determination as to whether Mr. Angelle’s testimony is “necessary” at the upcoming “preponderance hearing” under La.R.S. 30:29(0(5). Accordingly, we reverse that portion of the judgment of the trial court granting Pop-padoc’s motion for the issuance of a trial subpoena and permitting Poppadoc to take Mr. Angelle’s deposition. Considering the lack of evidence to support the motion, we are compelled to remand this matter to the trial court so that it may conduct a hearing in open court in accordance with La.R.S. 13:3667.3(A)(2). At said hearing, Mr. An-gelle “may present [competent] evidence or argument in opposition” to Poppadoc’s motion. Thereafter, “if the [trial] court [ ^determines that [Poppadoc] has established that [Mr. Angelle’s testimony] is necessary to the case, it shall issue the subpoenas sought. The [trial] court’s ruling shall be an appealable order.” Id.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Tensas Poppa-doc, Inc. is affirmed in part and reversed in part. Further, the matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed equally between Ten-sas Poppadoc, Inc., and Scott Angelle, then Secretary of the Louisiana Department of Natural Resources.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

DECUIR, J.,

concurs in part, dissents in part, and assigns written reasons.

_JjThe majority opinion is critically flawed by its omission of two critical pieces of information. In omitting this information, the majority opinion undermines both La. R.S 30:29 and La.R.S. 13:3667.3.

In the first instance, the majority lays out the process for resolving environmental damage claims under La.R.S. 30:29. However, the majority fails to mention that the statute includes a provision making LDNR’s feasibility plan unappealable on the grounds that a party is aggrieved by its content or the process of its submission until the plan is actually adopted by the trial court. La.R.S. 30:29 C(4).

In the second instance, the majority fails to provide the facts alleged by Poppadoc in support of its motion to compel Secretary Angelle’s testimony under La.R.S. 13:3667.3. These are the facts alleged by Poppadoc:

1. Secretary Angelle consulted with Commissioner Welsh, Gary Snell-grove, and possibly others concerning Act 312 cases.
2. Secretary Angelle consulted with Commissioner Welsh, Gary Snell-grove, and possibly others concerning the Poppadoc case.
3. Secretary Angelle consulted with members of the oil and gas industry concerning Act 312 cases.
|¾4. Secretary Angelle consulted with members of the oil and gas industry concerning the Tensas Poppa-doc case.
5. Secretary Angelle had influence and input regarding the adoption of the feasible plan in this case, even though he was not a member of the agency panel that determined the feasible plan.
6. Secretary Angelle was involved in the development of Act 312 before the 2006 legislative session, and his testimony was entered into evidence at the agency hearing in this case.
7. Secretary Angelle has knowledge of the legislative intent behind Act 312.
8. Secretary Angelle testified before the legislature that economic feasibility was not a consideration in the adoption of the feasible plan, which testimony directly conflicts with testimony of Gary Snellgrove, a member of the agency panel that decided the feasible plan.
9. Secretary Angelle consulted with LDNR employees concerning the development of the feasible plan.
10. Secretary Angelle encouraged and approved the adoption of the feasible plan, even though the plan is inconsistent with applicable regulations.
11. The plan should not have been adopted if it did not comply with applicable regulations.
12. The exemptions and variances granted in the plan were not explained or justified.
13. The agency panel that decided the plan was instructed to issue a remediation plan regardless of whether it believed it had sufficient horizontal and vertical delineation of the plumes of contamination.

This information provides a critical framework for evaluating where we are in this proceeding. As the majority notes, LDNR has adopted a plan. This plan and the agency’s actions in adopting it are not subject to appeal until adopted by the trial court. La.R.S. 30:29 C(4). The plan has been presented to the trial court and will be | .^adopted unless Poppadoc shows, by a preponderance of the evidence, that another plan is more feasible.

To meet this burden of proof, Poppadoc filed a motion to compel Secretary An-gelle’s testimony as provided in La.R.S. 13:3667.3. The threshold question for the trial court under the statute was whether the motion was well founded and that denial of the motion might prejudice Poppa-doc’s case. In order for the motion to be well-founded, the thirteen facts alleged by Poppadoc must be relevant to Poppadoc’s burden of proving that another plan is more feasible than the one submitted by LDNR. In addition, Poppadoc had to show that Secretary Angelle had knowledge of those facts.

The majority concludes that the trial court was legally correct in determining that Poppadoc’s motion was well founded and that the denial of the motion might prejudice Poppadoc’s case. I respectfully disagree.

Louisiana Code of Evidence Article 401 defines “relevant evidence” as follows:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

I fail to see how any of the facts alleged in Poppadoc’s motion are relevant to its burden of proof. Rather than supporting Poppadoc’s burden of showing that another plan is more feasible than the plan submitted by LDNR, the facts alleged attack the process by which LDNR arrived at the plan and Secretary Angelle’s conduct in both that process and the legislative process which established Act 312. Raising these issues at this stage of the litigation is premature and specifically prohibited by La.R.S. 30:29 C(4). Moreover, the facts alleged by Poppadoc do not even address the feasibility of an alternate plan.

^Accordingly, I would find that the trial court erred as a matter of law in concluding that Poppadoc’s motion was well founded and, therefore, reverse the judgment of the trial court and render judgment denying Poppadoc’s motion to compel Secretary Angelle’s testimony.

However, the majority, having found the motion well founded, moves on to the necessity hearing and addresses three issues.

First, the majority finds that the failure of the trial court to send notice of the hearing by certified mail, return receipt, was not error because Secretary Angelle had actual notice of the hearing. I do not agree. The statute provides, “the judge shall order a hearing and shall notify the mover and the witness of the hearing time and date by certified mail, return receipt requested.” La.R.S. 13:3667.3 A(2). The language of the statute is mandatory with regard to method of service and provides no exception for actual notice. See Ray v. South Central Bell Tel. Co., 315 So.2d 759 (La.1975). I find the trial court erred in failing to send notice as required by statute.

Second, the majority finds that the trial court properly excluded Secretary An-gelle’s affidavit as hearsay. I concur. There is no statutory exception for the admission of an affidavit in this instance. In my opinion, there should be such an exception.

Finally, the majority finds that after excluding Secretary Angelle’s affidavit, the trial court simply granted Poppadoc’s motion without taking any more evidence. The majority finds this was error and reverses and remands for more evidence. I disagree. I find that the trial court erred as a matter of law by applying the wrong standard in granting Poppadoc’s motion at the necessity hearing. The court determined that the facts alleged by Poppadoc were necessary for Poppadoc to meet |Bits burden of proof. The appropriate determination was whether Secretary Angelle’s testimony was necessary to establish those facts. The burden at the hearing remained with Poppadoc. Under the statute, Secretary Angelle’s first opportunity to oppose the motion was at the necessity hearing, and there he was permitted, but not required, to present evidence or argument. La.R.S. 13:3667.3 A(2). The majority finds that there was no evidence presented that Secretary Angelle’s testimony was necessary and, therefore, remands the case for more evidence. The majority should have concluded that Poppadoc did not carry its burden and, therefore, the trial court erred in granting Poppadoc’s motion.

For the foregoing reasons, I concur in the majority opinion insofar as it reverses the judgment of the trial court and finds the Secretary’s affidavit properly excluded. In all other respects, I respectfully dissent.

      . Louisiana Revised Statutes 30:29 (codified by 2006 La. Acts No. 312, § 1) sets forth procedures for the remediation of oilfield sites and exploration and production sites. As explained by our supreme court:
      Act 312 is comprised of six basic components. First, the act requires timely notice of such litigation to the State. La.Rev.Stat. § 30:29(B)(1). Second, the act stays the litigation until thirty days after notice is given. Id. Third, the act permits the State to intervene in the litigation. La.Rev.Stat. § 30:29(B)(2). Fourth, the act provides a role for the Office of Conservation with the Louisiana Department of Natural Resources ("LDNR”) in the determination of the most feasible plan for evaluation and/or remediation of environmental damage. La.Rev. Stat. § 30:29(C). Fifth, the act provides for the payment of all damages for the evaluation or remediation of environmental damages and further provides that the Court shall oversee actual implementation of the plan adjudicated to be "most feasible.” La. Rev.Stat. §§ 30:29(D) and (F). Sixth, the act allows the landowner and the State to recover attorney and expert fees, as well as costs from the responsible party or parties. La.Rev.Stat. § 30:29(E).

        M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 29 (La.7/1/08), 998 So.2d 16, 36.

      . Poppodac’s motion also sought an order permitting the issuance of subpoenas to James Welsh, the Commissioner of Conservation. However, the ruling of the trial court relative to the testimony of Mr. Welsh was not appealed and is not an issue before this court.

      . Throughout this opinion, we will refer to the hearing required by this provision as the "preponderance hearing."

      4. Throughout this opinion, we will refer to the hearing required by this provision as the "relevancy hearing."

      5. Throughout this opinion, we will refer to the hearing required by this provision as the "necessity hearing.”

      . Louisiana Code of Evidence Article 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” There was no exception to the hearsay rule offered or argued at the hearing.

      . "The trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of discretion.” Succession of Jones, 08-1088, p. 4 (La.App. 3 Cir. 3/4/09), 6 So.3d 331, 335 (citing Bellsouth Telecomm., Inc. v. City of

        Lafayette, 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844).