author: Judge Paula A. Brown

text:
    Lisa K. WATSON v. Melissa L. SMITH, et al.
    NO. 2017-CA-0913
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 16, 2018
    Robert R. Faucheux, Jr., Christophe L. Faucheux, Lindsay M. Faucheux, FAUCHEUX LAW FIRM, 197 Belle Terre Boulevard, Laplace, LA 70068, COUNSEL FOR PLAINTIFF/APPELLANT
    Thomas H. Barnett, Aaron J. Weidenhaft, LAW OFFICES OF THOMAS H. BARNETT, 400 Poydras Street, Suite 2425, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge Paula A. Brown

This matter involves a three-car vehicular accident. Plaintiff, Lisa K. Watson ("Plaintiff"), appeals the district court's grant of summary judgment in favor of Defendants, 21st Century Centennial Insurance Company ("21st Century") and Shelley Tannehill ("Ms. Tannehill"). For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On or about June, 24, 2014, at approximately 7:40 a.m., Plaintiff was traveling on the Interstate-10 ("I-10") South Carrollton exit in New Orleans. Plaintiff's lead vehicle was followed by a middle vehicle operated by Ms. Tannehill and a third vehicle driven by Melissa Smith ("Ms. Smith"). After Plaintiff's vehicle had come to a complete stop, Ms. Smith's vehicle (the "Smith vehicle") struck the rear of Ms. Tannehill's vehicle (the "Tannehill vehicle"), pushing it into the rear of Plaintiff's vehicle.

On June 23, 2015, Plaintiff filed a Petition for Personal Injuries and Damages (the "Petition") against Ms. Smith and her liability carrier, Allstate Property and Casualty Insurance Company ("Allstate"), and Ms. Tannehill and her insurer, 21st Century (collectively referred to as "Ms. Tannehill"). The Petition alleged, in part, that Plaintiff was stopped on the I-10 South Carrollton exit lane when the Tannehill vehicle followed her too closely and struck her from the rear; and she was also struck from the rear when the Smith vehicle rear-ended the Tannehill vehicle after the Tannehill vehicle had come to a sudden stop.

On March 15, 2017, after witness depositions had been completed, Ms. Tannehill filed a motion for summary judgment seeking to dismiss Plaintiff's action. Ms. Tannehill's Statement of Uncontested Material Facts and Affidavit attested that her vehicle was at a complete stop when it was struck in the rear by the Smith vehicle. Ms. Tannehill stated that her vehicle struck Plaintiff's vehicle only once, after the impact from the Smith vehicle caused the Tannehill vehicle to be pushed into the rear of Plaintiff's vehicle. Ms. Tannehill supported her motion with excerpts from Plaintiff's deposition, Ms. Smith's deposition, and the police accident report which contained her written statement. Ms. Tannehill argued that she was entitled to summary judgment relief as a matter of law.

In opposition, Plaintiff contended that a genuine issue of material fact existed as to whether the Tannehill vehicle struck her vehicle before the impact between the Smith vehicle and the Tannehill vehicle. In support, Plaintiff attached her Affidavit , attesting that her vehicle was struck by the Tannehill vehicle, and excerpts from Ms. Smith's deposition, wherein she testified regarding the number of impacts to Plaintiff's vehicle. Plaintiff argued that the number of impacts to her vehicle, and whether or not Ms. Tannehill's vehicle was following too closely behind her vehicle are factual disputes which precluded Ms. Tannehill's entitlement to summary judgment.

Plaintiff also objected to the district court's consideration of the police accident report arguing that, pursuant to La. C.C.P. art. 966(A)(4), a police report is not the type of document that may be filed in support of a motion for summary judgment.

The district court heard argument on the motion for summary judgment on July 7, 2017. On August 21, 2017, the district court granted the motion, dismissing Plaintiff's claims against Ms. Tannehill with prejudice.

This devolutive appeal followed.

STANDARD OF REVIEW

It is established jurisprudence that "[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966A(2). This Court, in Chanthasalo v. Deshotel , discussed the standard of review for a district court's ruling on a motion for summary judgment:

Appellate courts review the grant or denial of a motion for summary judgment de novo , using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

2017-0521, p. 5 (La. App. 4 Cir. 12/27/17, 5), 234 So.3d 1103, 1107 (citations omitted). Where a defendant moves for summary judgment based on the lack of proof of a material fact, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented." Huber v. Liberty Mut. Ins. Co. , 2000-0679, p. 7 (La. App. 4 Cir. 2/7/01), 780 So.2d 551, 554 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact." Huber , 2000-0679, p. 8, 780 So.2d at 555 (citation omitted).

DISCUSSION

Plaintiff argues that the district court erred in granting summary judgment, and asserts two assignments of errors: (1) whether a genuine issue of material fact exists as to the number of impacts to Plaintiff's vehicle; and (2) whether a genuine issue of material fact exists as to whether Ms. Tannehill was following Plaintiff's vehicle too closely.

We shall first examine whether a factual dispute exists regarding the number of impacts between the Tannehill vehicle and Plaintiff's vehicle.

Plaintiff argues that her Affidavit and portions of the deposition transcript of Ms. Smith support her claim that a material factual dispute exists as to whether the Tannehill vehicle rear-ended her vehicle before the Smith vehicle struck the Tannehill vehicle. Plaintiff's Affidavit provides: (1) "[t]hat on June 24, 2015 she was travelling eastbound on Interstate 10 in the right lane" and (2) "[t]hat her vehicle was struck from behind by a vehicle being driven by Shelley D. Tannehill."

Plaintiff submitted into evidence the following relevant portions of Ms. Smith's deposition:

Q. Did you see her write up a statement?
A. Everybody did it in their vehicles.
Q. Okay. So you-all didn't get out and talk to each other and then go write the statements? You-all just stayed apart and wrote you-all own statements?
A. Correct.
Q. Do you know what was contained in Ms. Tannehill's statement?
A. I couldn't tell you right now, but I know it's in the police report.
Q. Okay. And how about Ms. Watson's statement?
A. The same. I have read them, but I don't remember what-word for word.
Q. Ms. Tannehill's statement was that she was traveling in the right-hand lane when she was hit from behind very hard and was forced into the car in front of her.
Do you agree with that that, or you disagree with her statement?
A. Tannehill is the middle person?
Q. Right. That's correct.
A. I can't agree with that because from my opinion, I would say she hit first, but I-I can't-that's just-
Q. Well, we didn't want you to give opinions, but you thought that's what occurred?
A. From the way that her car stopped, to me it seemed that she first and then I hit her.
Q. Okay.
A. Because of-Because of the sudden stop and lights at the time.
Q. And your vehicle did impact with the rear of Ms. Tannehill's vehicle?
A. Yes.

(emphasis added.)

In rebuttal, Ms. Tannehill contends the admissions and omissions by Plaintiff and Ms. Smith during their respective deposition testimony support the district court's ruling that summary judgment was warranted as a matter of law. Ms. Tannehill relies on the following deposition testimony of Plaintiff to show that Plaintiff cannot meet her evidentiary burden of proof at trial:

Q. Do you know how long you were stopped before the impact?
A. No. I don't.
Q. Would you be able to tell, if you can, was it seconds,
minutes anything? Or you just don't know.
A. I don't know. We were stopped.
A. I don't remember if I had both.
* * *
Q. So you had no warning of any impacts or anything occurring behind you?
A. No.
Q. The first notice was when your vehicle was struck; is that correct?
A. Yes. That's what I remember.
Q. Where was your vehicle struck?
A. From behind.
Q. In the rear of your vehicle?
A. Yes.
Q. How many impacts were there to the rear of your vehicle?
A. I don't know.
Q. There was definitely one?
A. Definitely one.
Q. Okay. But you don't know if there was a second one?
A. I don't know if there was a second one.

(emphasis added.)

Ms. Tannehill also referenced the relevant deposition testimony of Ms. Smith in support of her motion for summary judgment:

Q. And you said you assumed that the car in front of you hit the car the car in front of her.
Did you actually witness the car in front of you hit the car that was-
A. No. That's why I assumed.
Q. Okay.
A. Because I couldn't see the distance-I couldn't see the two cars because I was, obviously, behind, but my presumption was that it hit first because of the way it stopped so abruptly .
Q. But you don't know if it did hit the car in front.
A. No.
Q. Do you recall seeing brake lights activated on the car in front of you immediately prior to the accident?
A. It seemed like simultaneous. At the same time she stopped, it was when I saw them. It wasn't giving me enough time to react.
Q. How fast do you think you were going at the time of the accident?
A. I would say 40, at the most.
Q. Did you hear any impact prior to your hitting the car in front of you?
A. No.

(emphasis added.)

The record before this Court establishes that neither Plaintiff's nor Ms. Smith's testimony disputed Ms. Tannehill's claim that she did not strike Plaintiff's vehicle before the Smith vehicle rear-ended the Tannehill vehicle. Plaintiff definitively recalls only one impact ; and, Ms. Smith concedes she does not know if the Tannehill vehicle had rear-ended Plaintiff's vehicle before she rear-ended the Tannehill vehicle. Moreover, Ms. Smith admits she did not hear another impact before she struck the Tannehill vehicle. The parties acknowledge that there are no other known witnesses to this accident. Plaintiff's mere allegation or Ms. Smith's "belief" that the Tannehill vehicle independently initiated contact with Plaintiff's vehicle does not give rise to a genuine issue of material fact to rebut Ms. Tannehill's testimony, via her Affidavit , that she rear-ended Plaintiff's vehicle only after the Smith vehicle struck her vehicle, causing it to be pushed into Plaintiff's vehicle.

Based on our de novo review of the record evidence, Plaintiff has failed to produce countervailing to show the accident resulted from two impacts to her vehicle. This assigned error is unpersuasive.

Plaintiff next argues that a genuine issue of material fact exists as to whether Ms. Tannehill was following too closely.

La. R.S. 32:81(A) provides that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon the condition of the highway." A legal presumption exists that a following motorist who collides in the rear-end of a preceding vehicle is presumed to have breached that duty. See Mart v. Hill , 505 So.2d 1120, 1123 (La. 1987) (citations omitted). Established jurisprudence provides that "[a] following motorist may, however, rebut the presumption of negligence by demonstrating: (1) that he had his vehicle under control; (2) that he closely observed the preceding vehicle; and (3) that he followed at a safe distance under the circumstances."

Daigle v. Mumphrey , 1996-1891, p. 3 (La. App. 4 Cir. 3/12/97), 691 So.2d 260, 262.

This presumption was rebutted in LeBlanc v. Bouzon , 2014-1041 (La. App. 3 Cir. 3/4/15), 159 So.3d 1144, a case analogous to this matter. Bouzon also involved a three-vehicle collision where the district court granted the middle driver's motion for summary judgment. Bouzon, the driver of the third vehicle, was uncertain-as the driver of the third vehicle in this case-as to whether the middle driver had struck the plaintiff's vehicle before he rear-ended the middle driver's vehicle. On review, the Bouzon Court found that the evidence established the middle driver was stopped and the plaintiff presented no evidence to show that the middle driver rear-ended the plaintiff's vehicle before it was struck by Bouzon. Thus, the Court reasoned that Bouzon, not the middle driver, was presumed liable as the rear-ending motorist who caused the collision and subsequent chain reaction; and accordingly, affirmed the district court's summary judgment in favor of the middle driver. Bouzon , 2014-1041, pp. 7-8, 159 So.3d at 1149.

Similarly, Ms. Tannehill's uncontested Affidavit verifies that she was stopped at the time her car was struck by the Smith vehicle. Additionally, Ms. Smith's deposition testimony confirms that the Tannehill vehicle was stopped and its brake lights were on when Ms. Smith collided with the Tannehill vehicle. Plaintiff is uncertain as to the number of impacts and can only definitively recall one impact. Therefore, our finding that Ms. Tannehill's only impact with Plaintiff's vehicle was caused when the Smith vehicle rear-ended the Tannehill vehicle negates any issue of material fact and rebuts any presumption of liability on the part of Ms. Tannehill for following Plaintiff's vehicle too closely.

Plaintiff also contends that Ms. Tannehill improperly introduced into evidence a copy of the police accident report to establish that Ms. Smith was solely liable for the accident. According to Plaintiff, the district court improperly considered the police accident report in reaching its determination that Ms. Tannehill had no liability. In support, Plaintiff cites established Louisiana jurisprudence, that, in general, police accident reports are not admissible evidence and La. C.C.P. art. 966(A)(4).

We agree with Plaintiff that pursuant to the strict statutory language of La. C.C.P. art. 966(A)(4), a police accident report is not the type of documentation considered as admissible evidence in support of a motion for summary judgment. However, La. C.C.P. art. 966(D)(2) permits the court to consider documents filed in support or in opposition to a motion for summary judgment, such as the police accident report, provided no objection is raised in a timely filed opposition or reply brief. If a proper objection is made, the article further provides that "[t]he court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider."

In the case sub judice , Plaintiff specifically objected "to the police report being used by the Court in considering the motion for summary judgment filed by the defendant, Shelley D. Tannehill" in Plaintiff's written opposition to the summary judgment motion. Plaintiff represents the admission of the police accident report was crucial evidence in absolving Ms. Tannehill of liability.

There is no indication in the record that the district court considered Plaintiff's objection before rendering judgment on the merits of the motion. As Plaintiff lodged a timely objection to the introduction of the police accident report, the district court erred in its failure to consider the objection, and by allowing the police report to be admitted into evidence.

Notwithstanding, the record is unclear as to the degree, if any, the district court relied on the police accident report in reaching its judgment. This Court has conducted a de novo review on appeal. We based our determination that Ms. Tannehill rebutted any presumption of liability for following too closely on other evidence-our finding that Plaintiff failed to submit countervailing evidence that the Tannehill vehicle was stopped when it was rear-ended by the Smith vehicle, which, in turn, caused the Tannehill vehicle to rear-end Plaintiff's vehicle. We did not consider any information contained in the police accident report in reaching this finding. Accordingly, the district court's admission of the police accident report was, at best, harmless error. Its admission into evidence did not affect the result reached or deprive any party of any substantial rights. See Greenblatt v. Payne , 2005-0290, p. 6 (La. App. 4 Cir. 3/22/06), 929 So.2d 193, 197. This assignment of error is without merit.

CONCLUSION

Based upon our de novo review of the record, Plaintiff has failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial against Ms. Tannehill. Consequently, finding no genuine issue of material fact, we affirm the district court's grant of summary judgment in favor of Shelly Tannehill and 21st Century Centennial Insurance Company.

AFFIRMED

LEDET, J., CONCURS IN THE RESULT

LEDET, J., CONCURS IN THE RESULT

      Plaintiff was deposed on December 8, 2015.

      Ms. Smith was deposed on January 26, 2017.

      Ms. Smith and Allstate adopted Plaintiff's opposition to the motion for summary judgment.

      La. C.C.P. art. 966(A)(4) provides in part: "[T]he only documents that may be filed in support or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.

      See Ruthardt v. Tennant , 252 La. 1041,1047-48, 215 So.2d 805, 808 (La. 1968).


source: Caselaw Access Project

license: Public Domain

text:
    Michael ALBARADO, Individually, et al. v. CITGO PETROLEUM CORPORATION, et al.
    CA 17-823
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2018
   Robert E. Landry, Patrick D. Gallaugher, Jr., Kevin Paul Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, Louisiana 70601, (337) 433-9436, COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

Craig Isenberg, Kyle W. Siegal, Joshua O. Cox, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., 909 Poydras, 24th floor, New Orleans, Louisiana 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

Marshall Joseph Simien, Jr., Simien Law Firm, 2129 Fitzenreiter Road, Lake Charles, Louisiana 70601, (337) 497-0022, COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation

Richard Elliott Wilson, Somer G. Brown, Jason R. Bell, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, Louisiana 70601, (337) 436-6611, COUNSEL FOR PLAINTIFFS/APPELLEES: Michael Albarado, Individually, Michael Walls, Individually, Craig Miller, Individually, Michael Alfred, Individually, Ragle Celestine, Individually, Robert Long, Individually, Stafford Willis, Individually, Melvin Gray, Jr., Individually, Gary Gunter, Individually,

Wells Talbot Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, Post Office Drawer 7820, Lake Charles, Louisiana 70606, (337) 478-8888, COUNSEL FOR PLAINTIFFS/APPELLEES: Ragle Celestine, Individually, Melvin Gray, Jr., Individually, Gary Gunter, Individually, Stafford Willis, Individually, Robert Long, Individually, Michael Albarado, Individually, Craig Miller, Individually, Michael Walls, Individually, Michael Alfred, Individually

Kirk Albert Patrick, III, R. Heath Savant, Donahue, Patrick & Scott, PLLC, 450 Laurel Street, Suite 1600, Baton Rouge, Louisiana 70801, (225) 214-1908, COUNSEL FOR DEFENDANT/APPELLEE: R & R Construction, Inc.

Court composed of John D. Saunders, Phyllis M. Keaty, John E. Conery, D. Kent Savoie and Van H. Kyzar, Judges.

CONERY, Judge.

Defendant CITGO Petroleum Corporation (CITGO) appeals the trial court's judgment in favor of eight plaintiffs, who while working at the Firestone Polymers plant across Highway 108 from the CITGO refinery in Lake Charles, were exposed on June 19, 2006 to a higher-than-permitted air release of sulphur dioxide (SO2) and hydrogen sulfide (H2S). CITGO stipulated to fault and contested the issue of damages. The trial court awarded each of the eight plaintiffs, Mr. Michael Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long, Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis, general damages for pain and suffering, mental anguish, fear of future injury, and medical expenses associated with the exposure. For the following reasons, we affirm in part, reverse in part, and amend in part.

FACTS AND PROCEDURAL HISTORY

The exposure of the higher-than-permitted air release of the SO2 and H2S was the result of a June 19, 2006 incident at the CITGO refinery which resulted in a major oil and contaminated wastewater spill. The June 19, 2006 spill has been the subject of other cases appealed to this court, but this case presents the first involving the Firestone workers alleged exposure to the higher-than-permitted release of SO2 and H2S from CITGO's operating units, which lasted from approximately 3:00 a.m. until late afternoon on June 19, 2006. It is undisputed that CITGO did not inform the Firestone facility of the release of the SO2 and H2S coming from CITGO's operating units.

A bench trial began on March 7, 2016, and on March 11, 2016, the trial court issued reasons from the bench. The trial court found that the Firestone workers' exposure to the higher-than-permitted release of SO2 and H2S from CITGO's operating units caused injury to the eight plaintiff workers. The injuries suffered primarily consisted of eye irritation, headaches, sore throats, coughing, and sinus irritation. The trial court specifically found that the damages awarded to the eight plaintiffs reflected their injuries for a three-year period from the June 19, 2006 exposure until 2009. Judgment was signed on April 5, 2017. CITGO filed a timely suspensive appeal of the trial court's awards to the eight plaintiffs alleging that the awards for fear of future injury were duplicative of the awards for mental anguish, and there was a lack of evidence to support the awards made to each plaintiff for fear of future injury and for medical expenses.

ASSIGNMENTS OF ERROR

CITGO asserts the following errors on appeal:

1. The district court erred in awarding damages for fear of future injury, and duplicative mental anguish damages, because plaintiffs presented no evidence that their claimed exposure to SO2 and H2S during the June 2006 event was capable of causing them to have future health problems.
2. The district court erred in granting awards for medical expenses totaling $15,000 ($1,000 to $3,000 for each plaintiff) because six plaintiffs undisputedly presented no evidence of medical expenses, and the remaining two plaintiffs submitted $150.00 each in medical expenses.

LAW AND DISCUSSION

Standard of Review

In Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain , LLC , 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115-16, the supreme court reiterated the duty of appellate courts in a manifest error review and stated in pertinent part:

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass'n , 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co. , 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court's factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Stobart v. State through Dept. of Transp. and Development , 617 So.2d 880, 882 (La.1993).
This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court's findings. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott , 02-1562, pp. 7-8 (La. 2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge's or jury's factfinding conclusion was a reasonable one. Rosell v. ESCO , 549 So.2d 840, 844 (La.1989) ; Canter v. Koehring Co. , 283 So.2d 716, 724 (La.1973).

Errors of law, however, are reviewed de novo . Foti v. Holliday , 09-93 (La. 10/30/09), 27 So.3d 813. Accordingly, when reviewing an issue of law, we "render[ ] judgment based on the record without deference to the legal conclusions of the lower courts." Id. at 817

Proof of causation in toxic tort cases has two components, general and specific. Pick v. American Medical Systems, Inc. , 958 F.Supp. 1151 (E.D. La. 1997). "General causation refers to whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury." Knight v. Kirby Inland Marine, Inc. , 482 F.3d 347, 351 (5th Cir. 2007) (quoting Merrell Dow Pharmaceuticals, Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997) ). A plaintiff cannot sustain his or her burden of proof with general causation proof alone; the plaintiff must also establish specific causation. See Berzas v. OXY USA, Inc. , 29,835 (La.App. 2 Cir. 9/24/97), 699 So.2d 1149.

The trial court in this case specifically found that CITGO did not contest the higher-than-permitted release of SO2 and H2S from its facility and that the plaintiffs "all reported symptomology consistent with exposure to H2S and SO2, and most likely both as found in the MSDS reports." The trial court further found that each plaintiff had proved that their complaints, symptoms, and physical injuries were causally related to the release of SO2 and H2S from the CITGO facility on June 19, 2006. The trial court's findings were based on expert testimony supporting general causation and some medical testimony supporting specific causation.

Assignment of Error Number One-Fear of Future Injury

In its first assignment of error, CITGO claims that the awards for mental anguish and fear of future injury are duplicative and that there is no medical evidence in the record to support the plaintiffs' claim that their exposure to the release of SO2 and H2S by CITGO has the potential to cause cancer or any other potential illness than might develop many years after the plaintiffs' exposure in 2006. The trial court awarded each plaintiff $5,000.00 "[f]or general damages (mental anguish)" associated with the exposure, and $10,000.00 each "[f]or general damages (fear of future injury)" associated with the exposure.

In Duncan v. Kansas City Southern Railway Co. , 00-66, p.13 (La. 10/30/00), 773 So.2d 670, 682 (citation omitted), the supreme court set forth the standard for a determination of general damages, stating: "General damages are those which may not be fixed with pecuniary exactitude; instead, they 'involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.' "

Fear of future injury and mental anguish damages fall under the category of general damages. A panel of this court stated in Jones v. Progressive Security Insurance Co. , 16-463, p. 20 (La.App 3 Cir. 12/29/16), 209 So.3d 912, 926 (quoting Watson v. Hicks , 15-56, (La.App. 4 Cir. 5/27/15), 172 So.3d 655 ):

General damages may be established in three ways: (i) the circumstances of the case, (ii) expert medical testimony, and (iii) the tort victim's testimony. Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7.02[3] (2004 ed.). "General damages do not have a common denominator and are determined on a case by case basis." Glasper v. Henry , 589 So.2d 1173, 1180 (La.App. 4th Cir.1991) (citing Bernard v. Royal Insurance Co. , 586 So.2d 607 (La.App. 4th Cir.1991) ). The jurisprudence holds that the duration of a plaintiff's symptoms and treatment are relevant factors that courts must consider in assessing general damages. See Gillmer v. Parish Sterling Stuckey , 09-0901 (La.App. 1 Cir. 12/23/09), 30 So.3d 782, 788 ; Glasper, supra (noting the factors to be considered in assessing quantum for pain and suffering are severity and duration).

To prove that a plaintiff has a legitimate fear of developing a disease in the future, there must be some basis for that fear, as it cannot be based on mere speculation. Broussard v. Olin Corp. , 546 So.2d 1301 (La.App. 3 Cir. 1989). In Broussard , a plaintiff who had been exposed to toxic phosgene gas was unable to recover damages for fear of developing cancer as there was no evidence submitted in the record that demonstrated that cancer could result from phosgene gas poisoning. Id.

After the plaintiffs in this case claimed that they had read the material safety data sheets (MSDS) for both SO2 and H2S, each of the eight was questioned at trial as to whether they had a fear of future injury from their exposure by CITGO to SO2 and H2S. Some plaintiffs continued to have concerns about their future health, even though the MSDS for both SO2 and H2S stated that neither substance is considered carcinogenic by OSHA and have not been known to cause cancer or other illnesses or conditions that could develop in the future.

In this case, as was the case in Broussard , there was no scientific support in the record to justify the eight plaintiffs' concerns or fears of future injury. The plaintiffs' expert, Barry S. Levy, M.D., M.P.H., P.C., testified that he was offering no opinion that any of the eight plaintiffs were at risk for any future health problems. Additionally, Dr. Steve Springer, who was hired by plaintiffs' counsel to offer medical causation opinions and who met with each plaintiff individually, never expressed an opinion to these plaintiffs, or anyone else, that they were at any risk for future illnesses.

In addressing the fear of future injury issue, the trial court stated in its reasons for ruling:

It is the fear of the unknown that bothers people a great deal.... Dr. Levy didn't say future effects could not happen. he just couldn't give an opinion on that issue. And, of course, we all know that some things which once were considered safe have now found to be unsafe.... With the rapid advancement of medical and scientific technology who knows what future studies will show with regards to these substances. Will these substances be found to be more dangerous than we once thought? We don't know.

In so ruling, the trial court failed to mention the relevant uncontradicted testimony of Dr. Levy, plaintiffs' epidemiology expert, who explained that "the health effects of both sulfur dioxide and hydrogen sulfide have been well-known and well-established, scientifically established for a very long time." Considering the position of the scientific community on the "health effects" of SO2 and H2S, neither Dr. Levy nor Dr. Springer was able to give an opinion that any of the eight plaintiffs were at risk of future health problems.

Although plaintiffs argue that prior cases involving the heavily litigated slop oil spill from CITGO's plant had awarded damages for fear of future injury, those cases involved plaintiffs that had been exposed to oil and wastewater that contained a carcinogen, benzine, which is known as a cancer hazard, and can cause leukemia and other blood disorders. See Arabie , 49 So.3d 529 ; Arabie II , 175 So.3d 1180 ; and Cormier , 228 So.3d 770.

This court is aware of the case of Raney v. Walter O. Moss Regional Hospital ., 93-145 (La.App. 3 Cir. 12/8/93), 629 So.2d at 491, wherein a panel of this court awarded "fear of future injury" damages to family members who had been exposed to contact with another family member who was a carrier of hepatitis B after contracting the illness at the hospital. As the basis for awarding damages for fear of future injury, this court found in Raney , 629 So.2d 485, "there is a real and genuine probability, albeit low, of developing hepatitis B." In this case, there is no "real and genuine probability" that any of the eight plaintiffs will suffer any serious future illness given the testimony of the experts and the evidence in this case.

The trial court noted, "[w]hile the Court is aware that none of the plaintiffs were exposed for a prolonged period of time, which is a relative observation or comment, or sought immediate medical attention or missed work, it is nonetheless-the Court is nonetheless convinced each suffered a compensable personal injury." As a result, the trial court gave each of the plaintiffs awards "[f]or general damages (pain and suffering)" associated with their exposure, ranging from $2,000.00 to a maximum of $6,000.00, based on a three-year time period. CITGO has not appealed these trial court general damage awards.

Dr. Springer's February 12, 2016 expert reports of each of the eight plaintiffs, submitted into evidence at trial in connection with his deposition testimony, discussed both the issues of medical causation and duration of each of the plaintiffs' symptoms. Dr. Springer stated that the plaintiffs' initial symptoms of irritation of the eyes, throat, and sinuses lasted from two to three days, for most, and up to several months for sinus and congestion issues for some. Dr. Springer also stated for each of the eight plaintiffs that they had suffered "an increased frequency of sinus irritation and congestion since the exposure which is believed and likely attributable to said exposure." This part of Dr. Springer's report was accounted for by the trial court when it limited general damage awards to three years as opposed to the ten-year period between the incident in June 2006 and Dr. Springer's February 2016 reports. The trial court stated, "[a]lso, I-with the increased frequency of sinus problems, I've discounted that over the three years, so it's just the-up to three years, not for the entire 10 year period."

In considering the circumstances of the plaintiffs' limited exposure to the release of the SO2 and the H2S, as found by the trial court in its reasons for ruling, these plaintiffs have no legal basis for a fear of future injury claim. Broussard , 546 So.2d 1301.

In applying the instructions of the supreme court in Hayes Fund , 193 So.3d at 1115, requiring that "the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard," we find after a full review of the entire record that the trial court committed manifest error in awarding each plaintiff $10,000.00 "[f]or general damages (fear of future injury)" based on their exposure on June 19, 2006. We therefore reverse the trial court's award of $10,000.00 for fear of future injury to each of the eight plaintiffs.

Past Mental Anguish Damages

Having reversed the trial court's award for fear of future injury to the eight plaintiffs, the trial court's award for mental anguish is no longer duplicative. In its reasons for ruling, the trial court discussed the issue of CITGO failing to notify Firestone of the release of SO2 and H2S, in violation of CITGO's own rules that require notification of their neighbors when there is a release and despite mandatory regulations also requiring notification.

Such a notification may have prevented the exposure and allowed the Firestone workers the opportunity to shelter-in-place, as the CITGO workers did at the CITGO CLAW unit, which was also in the path of the higher-than-permitted release of SO2 and H2S. Each of the plaintiffs expressed anger at the lack of notification. The trial court awarded $5,000.00 to each plaintiff for mental anguish based on the following reasoning:

Mental anguish involves not being notified and given a chance to better protect themselves, that being the plaintiffs, and because of Firestone's employees training and common sense they minimized some of their injury. However, it doesn't minimize the anger. They should have been told. And they were angry. Dr. Levy addressed this in his testimony. They were angry then and even now we witnessed one of the exchanges between defense counsel and Mr. Long on that point and he said that-CITGO's admissions now does (sic) not make him feel better today. Dr. Levy talked about that. And I'm referring to and citing "P-907" which was the article, Aftermath of a Chemical Spill: Psychological and Physiological Sequelae. They spelled sequel a little different than I would, but I looked up the word sequel, having just a general understanding of what that meant and it says, what follows. That is what followed. And they talk in that article about the-different case, obviously, "the inability of the-in the spill in California, the inability of the California Department of Health officials to give accurate and early information on the possible adverse health effects," and we have a little bit more. They didn't tell these plaintiffs they were in fact exposed to these substances. But anyway, "Failure to give the community the possible accurate and early information on the possible adverse health effects of the"-it appears to be "metam sodium exposure to spill residents was reported overwhelmingly as a contributing cause of fears and worries. Undoubtedly, this lack of accurate information contributed to a lingering anger at the authorities and a heightened fear of future illness." That's very similar to what happened here and I think their anger was justified and understandable. That's the mental anguish component of the award damages-damages award.

Although the awards in this case were in the extreme high end for such limited exposure and minimal medical evidence, we find no manifest error in the trial court's award "[f]or general damages (mental anguish)" to the eight plaintiffs, and therefore affirm the $5,000.00 awarded to each plaintiff for mental anguish. See Hayes Fund , 193 So.3d 1110.

Assignment of Error Number Two-Medical Expenses

CITGO argues that the trial court erred in awarding a total of $15,000.00 in medical expenses which reflects an award of $1,000.00 to $3,000.00 to each of the eight plaintiffs. CITGO states that there is no evidence in the record to support the award of medical expenses to six of the eight plaintiffs. It is undisputed that six of the eight plaintiffs, Mr. Albarado, Mr. Alfred, Mr. Celestine, Mr. Long, Mr. Miller and Mr. Walls, did not seek any formal medical treatment because of their exposure. Instead, these plaintiffs claimed that they "self-medicated" with over the counter pharmaceuticals. However, these six plaintiffs presented absolutely no documentation at trial of any medical expenses incurred because of their exposure to SO2 and H2S.

The remaining two plaintiffs, Mr. Gray, Jr. who was awarded $3,000.00 in medical expenses and Mr. Willis who was awarded $1,000.00 in medical expenses, each submitted a single invoice from the Springer Family Medical Clinic, LLC. Mr. Gray's invoice is dated August 1, 2006 and is for an office visit with Dr. Steve Springer on July 25, 2006, in the amount of $150.00. Mr. Willis's invoice is dated August 16, 2006 and is for an office visit with Dr. Springer on August 16, 2006, also in the amount of $150.00.

Special damages are those which theoretically may be determined with relative certainty and especially include past medical expenses and past lost wages. Kaiser v. Hardin , 06-2092 (La. 4/11/07), 953 So.2d 802. In reviewing a trial court's factual conclusions regarding special damages, an appellate court "must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusions, and the finding must be clearly wrong." Monte v. State Farm Mut. Auto Ins. Co. , 13-979, p. 14 (La.App. 3 Cir. 5/21/14), 139 So.3d 1139, 1148.

It is undisputed that the two invoices from Dr. Springer are the only two past medical expenses invoices submitted into the record at trial. In their briefing to this court and at oral argument, counsel for the plaintiffs argue that the awards made "for medical expenses associated with his exposure," are for future medical expenses . In their petition, the plaintiffs' prayer for damages claimed that each "will continue to incur future medical expenses as recommended by his treating physician."

Although a plaintiff, in addition to past medical expenses, can recover future (post-trial) medical expenses, to do so a plaintiff must establish the future medical expenses will "be necessary and inevitable". Stiles v. K Mart Corp. , 597 So.2d 1012, 1012 (La.1992). "To recover future medical expenses, the plaintiff must present medical testimony to show that it is more probable than not that future medical treatment is indicated and the probable cost of the treatment." Smith v. Municipality of Ferriday , 05-755, pp. 11-12 (La.App 3 Cir. 2/1/06), 922 So.2d 1222, 1231, writ denied , 06-934 (La. 9/29/06), 937 So.2d 860.

However, as we noted prior, the record is devoid of any testimony by a treating physician supporting the plaintiffs' claims that any medical expense awards given by the trial court were for necessary future medical expenses. In the trial court's reasons for ruling, the trial judge specifically stated that the damage awards were based on a three-year period from June 19, 2006 to June 2009.

Based on our review of the record as a whole, we find no reasonable basis in the record for the trial court's award for past medical expenses to the six plaintiffs who did not submit into evidence any documentation of any past medical expenses. Therefore, we reverse the trial court's awards for past medical expenses to Mr. Albarado, Mr. Alfred, Mr. Celestine, Mr. Long, Mr. Miller and Mr. Walls. See Monte , 139 So.3d 1139.

For the same reasons, we also amend the award for medical expenses made to Mr. Gray, Jr. from $3,000.00 to $150.00. Likewise, the award of medical expenses made to Mr. Willis is amended from $1,000.00 to $150.00. Both awards are based on records from Dr. Springer for his one-time treatment of these two individuals, which is the only documentation for medical expenses in the record before the court.

CONCLUSION

For the foregoing reasons, the trial court's judgment signed on April 5, 2017, ordering CITGO to pay damages of $5,000.00 for mental anguish to Mr. Michael Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long, Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis is affirmed. The trial court's judgment of April 5, 2017 awarding damages of $10,000.00 for fear of future injury to Mr. Michael Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long, Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis is reversed. We reverse the trial court's judgment of April 5, 2017 awarding damages for past medical expenses to Mr. Michael Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Robert Long, Mr. Craig Miller, and Mr. Michael Walls and amend the award for medical expenses made to Mr. Melvin Gray, Jr. from $3,000.00 to $150.00 and the award of medical expenses made to Mr. Stafford Willis from $1,000.00 to $150.00. Each party is to pay their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED IN PART.

Keaty, J., concurs in part and dissents in part, assigning written reasons.

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

I concur in the majority's finding that the plaintiffs, Mr. Michael Albarado, Mr. Michael Alfred, Mr. Ragle Celestine, Mr. Melvin Gray, Jr., Mr. Robert Long, Mr. Craig Miller, Mr. Michael Walls, and Mr. Stafford Willis are entitled to $5,000.00 each for mental anguish.

I also concur in the majority's decision to amend the award for past medical expenses because it was manifest error for the trial court to find past medical expenses when there was no evidence or documentation of such expenses. I further concur that the award for past medical expenses must be reduced for Mr. Gray and Mr. Willis to the amounts proven with evidence.

However, I respectfully disagree with the majority's reversal of the award of damages for fear of future injury to the plaintiffs. The record indicates that the plaintiffs were exposed to the gases for over twelve hours; CITGO's own health and safety documents include scientific evidence of the potential harmful effects of such exposure; hydrogen sulfide (H2S) is classified by OSHA as toxic; and finally, the exposure limits as established by the American Conference of Governmental Industrial Hygienist were exceeded. Thus, in my view, the record clearly establishes that there was a reasonable factual basis for the trial court's conclusion that there was a probability of fear of future injury.

For these reasons, I respectfully dissent in the majority's reversal of the trial court's award for damages for fear of future injury.

      CITGO has not assigned as error the awards made to the eight plaintiffs by the trial court for pain and suffering associated with their exposure to the higher-than-permitted air release of the SO2 and H2S. Therefore, the trial court's awards for pain and suffering to the eight plaintiffs are considered a final judgment.

      Arabie v. CITGO Petroleum Corp. , 10-244 (La.App. 3 Cir. 10/27/10), 49 So.3d 529, aff'd on liability and causation, rev'd on punitive damage issue , 10-2605 (La. 3/13/12), 89 So.3d 307 (referred to as Arabie I ); Arabie v. CITGO Petroleum Corp. , 15-324 (La.App. 3 Cir. 10/7/15), 175 So.3d 1180, writ denied , 15-2040 (La. 1/8/16), 184 So.3d 694 (referred to as Arabie II ); Cormier v. CITGO Petroleum Corp. , 17-104 (La.App. 3 Cir. 10/4/17), 228 So.3d 770, writ denied , 17-2138 (La. 2/9/18), 237 So.3d 491.

      In Bradford v. CITGO Petroleum Corp. , 17-296 consolidated with 17-298, 17-299, 17-300, 17-301, 17-302, 17-303, 17-304, 17-305, 17-306, 17-307, 17-308, 17-309, 17-310, 17-311, 17-312, 17-313, 17-314, 17-315, 17-316, 17-317, 17-318, 17-319, 17-320, 17-321 (La.App. 3 Cir. 1/10/18), 237 So.3d 648, a panel of this court affirmed the awards to another group of plaintiffs who were exposed to the higher-than-permitted releases of both SO2 and H2S.

      A material safety data sheet (MSDS) "is a detailed informational document prepared by the manufacturer or importer of a hazardous chemical. It describes the physical and chemical properties of the product." Safety Data Sheet Overview , Blink, UC San Diego , https://blink.ucsd.edu/safety/resources/SDS/index.html (July 29, 2016, 2:28 p.m.). An MSDS "also contain[s] useful information such as toxicity, flash point, procedures for spills and leaks, storage guidelines, and exposure control." Id.


text:
    Milo A. NICKEL, Jr. v. FORD MOTOR COMPANY, et al.
    17-978
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 2018
   Kenneth Michael Wright, Attorney at Law, 203 West Clarence Street, Lake Charles, LA 70601, (337) 439-6930, COUNSEL FOR PLAINTIFF/APPELLEE: Milo A. Nickel, Jr.

Robert W. Maxwell, Bernard, Cassisa, Elliott & Davis, 130 Terra Bella Boulevard, Covington, LA 70433, (985) 590-5019, COUNSEL FOR DEFENDANTS/APPELLANTS: Ford Motor Company, Bolton Ford, LLC

Allen J. Mitchell, II, Mitchell & Blanco, LLC, One Lakeshore Drive, Suite 1495, Lake Charles, LA 70629, (337) 436-8686, COUNSEL FOR DEFENDANT/APPELLEE: State Farm Mutual Automobile Insurance Company

Jeffrey G. LaGarde, Bernard, Cassisa, Elliott & Davis, 3838 N. Causeway Blvd, Suite 3050, Metairie, LA 70002, (504) 834-2612, COUNSEL FOR DEFENDANTS/APPELLANTS: Ford Motor Company, Bolton Ford, LLC

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

GREMILLION, Judge.

Ford Motor Company (Ford) and Bolton Ford, LLC (Bolton Ford) appeal the trial court's judgment in favor of Milo A. Nickel, Jr. (Nickel) awarding him $37,347.40 for rescission of the sale of a 2009 Ford Flex; $37,582.04 in rental charges minus a credit for use at $.20 per mile totaling $15,480.00; $15,000.00 for inconvenience and emotional distress; $379.91 for out-of-pocket expenses; $5,381.88 in costs; and $30,000.00 in attorney's fees. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Nickel purchased a new 2009 Ford Flex on September 11, 2008 from Don Shetler Ford, Inc. (Shetler Ford) in Sulphur, Louisiana, for $37,347.10. The 2009 Ford Flex debuted the Ford SYNC system, an in-vehicle communications and entertainment system designed by Microsoft. Nickel experienced multiple problems with the system due to incompatibility issues between Microsoft and Apple, and Shetler Ford eventually replaced the radio navigation system.

Nickel was involved in an accident on October 21, 2008. His vehicle was repaired by Shetler Ford and a collision repair center. The repairs cost $9,057.61. Subsequent to the repair, Nickel stated in his petition that in addition to the other SYNC problems he was experiencing, "the gauges would sporadically stop working, all of the warning lights/and indicators would activate, the air conditioner would stop cooling and chimes would sound."

Nickel filed a petition against Ford, State Farm Automobile Insurance Company (State Farm), and Bolton Ford in February 2013 for rescission of the sale due to vice or defect.

Bolton Ford filed a peremptory exception of no cause of action on April 3, 2013, arguing that, since it had not sold the vehicle to Nickel, it should be dismissed as no cause of action could lie in redhibition. Nickel filed an amending petition for damages in June 2013, urging rescission of the sale against Ford and for damages against Bolton Ford for negligent repairs, stating that Bolton Ford was liable to him for, "failure to diagnose and repair the vehicle for extended periods of time, and all damages suffered as a result thereof, including, but not limited to loss of use, reimbursement for rental charges, inconvenience and aggravation, mental anguish, or any other damages which the facts support ...."

Following a two-day trial in November 2016, the trial court rendered a judgment as follows: Ford and Bolton Ford's peremptory exception of prescription was denied; State Farm's motion for involuntary dismissal was granted; discovery sanctions in favor of Nickel's counsel in the amount of $3,000.00 was made final; and the trial court further rendered judgment in favor of Nickel as follows:

1. Re[s]cission of the sale and return to Plaintiff, MILO A. NICKEL, JR., of the sale price of the 2009 Ford Flex vehicle in the sum of $37,347.40;
2. Reimbursement to Plaintiff, MILO A. NICKEL, JR., of plaintiff's vehicle rental charges in the amount of $37,582.04, minus a credit of 20 [cents] per mile in the amount of $15,480.00, resulting in a reimbursement in the total amount of $22,102.04;
3. General damages for inconvenience and emotional distress payable to Plaintiff, MILO A. NICKEL, JR., in the total amount of $15,000.00;
4. Reimbursement to Plaintiff, MILO A NICKEL, JR., for out-of-pocket expenses in the amount of $379.91; and
5. Payment of attorney's fees to Kenneth Michael Wright as counsel for Plaintiff, MILO A. NICKEL, JR., are to be determined at a subsequent hearing on attorney's fees and costs.

Ford filed a motion for new trial in May 2017, which was denied in June 2017. The trial court rendered a judgment in June 2017 casting Ford and Bolton Ford with all court costs and awarding Nickel's counsel $30,000.00 in attorney's fees and $1,000.00 in paralegal fees. Ford and Bolton Ford now appeal.

ASSIGNMENTS OF ERROR

Ford assigns as error:

1. The trial court erred in denying Ford's Peremptory Exception of Prescription despite undisputed evidence that the prescriptive period expired on Nickel's redhibition claims during the 28-month period that Nickel drove the vehicle 69,000 miles without once tendering the vehicle for repairs.
2. The evidence is insufficient to support the trial court's finding that a redhibitory defect existed in Nickel's vehicle and that the problems he experienced were unrelated to software incompatibility issues between the "SYNC" system and Nickel's mobile device and not caused by an accident involving the vehicle that occurred six weeks after Nickel purchased it.
3. The trial court erred in permitting Nickel to recover from Bolton Ford under a redhibition or negligent repair theory even though Bolton Ford was not the seller off Nickel's vehicle, Nickel did not give Bolton Ford essential information concerning the vehicle's collision history when he tendered his vehicle for repairs, and Nickel denied Bolton Ford authorization to perform repairs to Nickel's vehicle once the problem was diagnosed.
4. The trial court erred in awarding $15,000 in non-pecuniary damages to Nickel for his inconvenience and emotional distress related to his redhibition claims in the absence of any argument or finding that Nickel purchased the vehicle for any non-pecuniary purposes.
5. The trial court erred in awarding Nickel excessive damages for his rental care fees, most of which directly resulted from Nickel's failure to mitigate his damages and which he failed to prove with any documentation. Ford should not be charged for a year's worth of rental fees that Nickel incurred after refusing repairs and then abandoning his vehicle at a dealership for over a year.
6. The trial court erred in awarding Nickel the full purchase price of his vehicle because he failed to maintain the vehicle as a prudent administrator when he abandoned the vehicle to the elements, allowing its condition to deteriorate.
7. The trial court erred in awarding Nickel $30,000 in attorney's fees for a straightforward redhibition action and for awarding him costs for which he provided no evidence. Moreover, the trial court erred in awarding Ford credit for use in the amount of $.20 per-mile, when the current government rate is $.54.

DISCUSSION

Prescription

Louisiana Civil Code Article 2534 provides (emphasis added):

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer , whichever occurs first.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.
C. In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.

A party asserting a claim in redhibition must tender the vehicle for repair in order to interrupt prescription and maintain the action. Granger v. Deville , 583 So.2d 583 (La.App. 3 Cir. 1991). We review the trial court's finding that Nickel's claim was not prescribed using the manifest error standard of review because evidence was adduced at hearing on the exception. Leija v. Ford Motor Co. , 49,574 (La.App. 2 Cir. 1/14/15), 161 So.3d 1020. Accordingly, if the trial court's finding is reasonable after thoroughly reviewing the record, we cannot reverse it even if we may have held differently. Stobart v. State, Through Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993).

[W]here documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

Id. at 882.

The trial court found that there was no paper trail because Nickel was personal friends with the owner of the Shetler Ford dealership. The trial court denied the exception based on its finding that there was an ongoing pattern of the vehicle being brought in for inspection and that prescription was interrupted until Bolton Ford sent notice to Nickel on January 18, 2013 that its repair efforts had ceased. The trial court stated at the conclusion of the trial:

Due to the personal relationship Mr. Nickel had with Mr. Don Shetler, who owned the dealership at the time, and the fact that the vehicle never malfunctioned at the shop, formal work orders or repair orders were not executed or generated on every occasion Mr. Nickel brought the truck in because of these continuous, constant, reoccurring problems.
The Court is satisfied with the explanations and reasons offered for the lack of a so-called paper trail detailing the dates and number of times the truck was brought in for inspection and repair.
The defendant's peremptory exception of prescription is denied. Evidence of this ongoing pattern of the truck being brought in for inspection when it was having problems and the problems being undetectable once at the shop is found throughout the record. Again, therefore, prescription has not been proven. It was interrupted until Ford Motor Company sent notice to Mr. Nickel on January 18, 2013 that its repair efforts had ceased.

We find the trial court manifestly erred in its finding. There was no reasonable basis upon which the trial court could have found that Nickel brought the vehicle in for repair subsequent to May 29, 2009, but before the next records were generated by Bolton Ford on September 6, 2011.

The evidence relating to this issue was as follows. Mike Shetler, the owner of Shetler Ford when Nickel purchased the vehicle, testified that he has known Nickel for a number of years as they grew up together. Shetler testified that Nickel, an attorney, had also represented the dealership and him personally in legal matters, which included a redhibition claim. Shetler said that Nickel had purchased vehicles from him in the past. The Ford Flex that Nickel purchased was the first year that it was released. Shetler stated that the Ford Flex was much different than any vehicle that had come before it because it had a different electronics system meant to be a more comprehensive computerized electronic component. Shetler ordered the car for Nickel, and it took approximately six months to arrive. As Nickel was a family friend, Shetler sold the car to him at "cost." Nickel picked up the 2009 model vehicle on September 11, 2008. According to Shetler's testimony, this Ford Flex was the first one sold by Shetler's dealership.

Shetler stated that Nickel would call him directly if he needed to address a problem. After about a week of owning the vehicle, Nickel called Shetler and said that the computer navigation system screen would turn off and lose the memory of information Nickel had input into the system. Shetler said that Nickel also reported that the blinkers would turn on and off and the dash lights "would do goofy things" but that the problems could not be duplicated at the dealership. Shetler testified that Nickel brought the vehicle in for repairs but the dealership was never able to determine what was causing the problems with the vehicle.

Shetler testified that Nickel called him from the scene of the October 21, 2008 accident and reported that he rear-ended someone. The vehicle was sent out for body work by Lloyd Lauw Repair Shop. During that time, Shetler Ford ordered a part from Ford and awaited the return of the vehicle. Shetler noted the part was installed in January 2009, after the vehicle came back from the body shop. Shetler testified that in the spring following the purchase of the vehicle, Nickel reported that the vehicle died going down the road, but the dealership could not duplicate the concern.

Shetler then reviewed repair orders issued by his dealership dated January 9, 2009, January 15, 2009, and May 27, 2009. In January 2009, the radio/navigation assembly was replaced; in March 2009, the radio navigation was replaced again; and in May 2009, Nickel's steering wheel sensor was replaced. In August 2009, Shetler sold the dealership to Tarver Ford.

Brian Bates, a service manager at Bolton Ford started working there in 2009 and was promoted to service manager in July 2012. Bates testified as to the procedure when someone brings in a car for repair. He said a technician writes down the complaints or problems the customer is having with the vehicle and then has the customer sign the paper, which authorizes the dealership to work on the car. A repair order is then generated and given to a dispatching agent, who assigns a technician to work on the car. Bates said this procedure is followed in every case for insurance reasons and so that they can be paid by Ford. Even if no problems are found or can be identified, a repair order is always generated because the dealership is still paid for diagnostic tests and time.

Christopher Furnas, an expert in automotive technology, had worked for Ford for over twenty-four years. Furnas explained that Ford's policy is that a vehicle does not come into a service bay without having a ticket written up. He said he has worked in every Lake Charles service department and all follow this procedure.

Ford generated no records whatsoever of Nickel bringing his vehicle in for repair for nearly two years and four months. Shetler Ford's last-generated repair order was May 27, 2009. Shetler sold the dealership three months later in August. The subsequent owner of the dealership was not a witness at trial.

Nickel was very vague in his allegations that he brought his vehicle in for repair but no repair orders were generated. His testimony relating to the two plus years of no records was as follows:

Q. Okay. Then from the-from the spring of '09, Mr. Shetler sold the dealership, until September 6th of 2011, there were no repair records, no service, nothing done at Shetler Ford or Tarver or anyone. We have a complete lack from 2009 to 2011. If my math is correct it's two years and four months; and when the vehicle came in, it had 69,357 more miles than you did, you know, at the time when you were having the-after it got back from the repair shop. So, does that sound about correct?
A. Some of that sounds correct. I disagree with the statement that I didn't take it anywhere from 5/09 to whatever, two years. I disagree with that.
Q. Well, if you did-you-you told us, I believe-is it correct, sir-that you didn't have this vehicle at any non-Ford dealership. You just took it to Ford dealerships.
A. That's correct.
Q. Okay. And if I ask you to assume that there's no repair records of any sort during this two-year-and-four-month period during which you drove 69,000 miles, if I'm incorrect, could tell me where you went and-
A. I-
Q. -where the repair record is?
A. I don't know about the repair record, but I know that I stopped at-the Ford dealership-Shetler Ford dealership in Crowley between 2009 and 2011.
Q. And that was one day you had called them and they couldn't look at your vehicle; am I correct?
A. That's right.
Q. Okay. I didn't mean-let me limit the question a little bit better, Mr. Nickel. I'm not talking about maybe you stopped in or you called somebody on the telephone. I'm talking about you bringing the vehicle in, saying, please service this vehicle and them doing some sort of work on it and giving you the vehicle back and giving you the repair order because the records indicate that there was a two-year-and-four-month gap; and when we next see the vehicle being serviced, it had an additional 69,357 miles on the odometer.
A. Sure. It's an objectively true statement.
Q. Okay.
A. But it's not accurate to say that there were no complaints during that period because-

Nickel generally claimed to have no control over what paperwork Ford generated. He produced no records or proof of any kind that he brought the car into Tarver Ford or any other Ford dealership for repair. As an attorney with experience in redhibition claims, Nickel would have had more awareness than a regular customer that a paper-trail of attempted repairs, even one he created for himself, should have been generated. Furthermore, because there was no special relationship with the owner of Tarver Ford, there is no reason that Tarver Ford would not generate the same records that every other Ford dealership generates when a customer brings a vehicle in for repair. Moreover, the records generated by Shetler Ford generally disprove Nickel's claim that he would bring it in but no records would be generated. Further, the start of the Shetler Ford service records is January 2009, some three months following the accident which required over $9,000.00 in repairs. In the meantime, over the two-year period, Nickel accumulated 77,000 miles on the car that allegedly constantly caused him problems.

We find that it was unreasonable for the trial court to conclude that Nickel continued to bring the car in for repairs but that no orders were generated. Accordingly, Nickel's redhibition claim against Ford prescribed on May 27, 2010, one year after his last attempt at service at Shetler Ford. Even if we gave Nickel the benefit of the doubt and concluded that he did bring it in to Shetler for repairs or to be looked at, Shetler sold the dealership in August 2009. Nickel established no special relationship with the subsequent owner whereby he would just bring it in with no formal paperwork generated in the routine and ordinary course of business. The subsequent owner did not testify at trial. Therefore, even if we assume that Nickel brought in the vehicle through August 2009 while Shetler was still the owner, we find reasonable people could only conclude that Nickel may have brought it in without any records being generated by Shetler Ford before Shetler sold the dealership in 2009. Thus, even under this strained scenario, Nickel's claim is prescribed.

Because we find that Nickel's claim is prescribed, all of the remaining assignments of error pertaining to redhibition are rendered moot, and the judgment of the trial court in favor of Nickel is reversed.

Bolton Ford/Negligent Repair

Forgetting the fact that it is legally impossible for Bolton Ford to be liable to Nickel for a redhibitory defect in a car he purchased from another dealership, Nickel's claim in redhibition was prescribed as discussed above. See La.Civ.Code art. 2520. Therefore, the only remaining claim against Bolton Ford to be reviewed for manifest error is whether the trial court reasonably found that Bolton is liable to Nickel for negligent repair, a cause of action lying in tort rather than redhibition. See La.Civ.Code art. 2316 ; Landry v. Int'l Harvester Co. , 452 So.2d 806 (La.App. 3 Cir. 1984). The trial court found that Nickel did not abandon his vehicle at the dealership:

I don't think he just abandoned the vehicle. They were in possession of the vehicle for quite some time. As I said earlier, they didn't expect it and they didn't-for a while. And Mr. Nickel, I think, was that, we're not going to do anything more. That should have been made clear to him sooner than it was. And I, you know, I don't think he necessarily abandoned the vehicle. He was waiting to hear from Ford Motor Company and Ford Motor Company was-it took them a while to get to that point, which I thought-when listening at the trial, I thought they should have gotten there much sooner and I thought they-it would be in their interest if they had, but they didn't. They were a little delinquent in getting that-making that known to Mr. Nickel while everything is just-you know, nothing is happening for a number of months.
So I don't think he necessarily abandoned the vehicle.

The evidence at trial indicated that a repair order was generated by Bolton Ford on September 6, 2011. The repair order indicates that Nickel stated that the car would not start, but when the technician started the car the following morning it started every time, and no repairs were made. Subsequent repair orders generated by Bolton Ford show multiple attempts to diagnose and fix the problems Nickel claimed to be having with the vehicle. The vehicle remained at Bolton Ford until Furnas was able to assess the vehicle in April 2012. After getting a rundown of the car's history from the technicians, Furnas immediately had the car "racked" and determined it had been wrecked, a fact which had not been reported by Nickel. Furnas said that he could see evidence of body work and damage to the electrical area. He determined that the problems were electrical and most likely caused by the October 2008 accident. Furnas recommended that the power distribution box and electrical wiring harness be replaced. The cost of the repair was $2,500.00. Nickel subsequently contacted his insurer, State Farm, who refused to pay for the repair. Nickel testified that he refused to pay for the repair unless the dealership could guarantee 100% that the car would be fixed. Nickel was questioned:

Q. And after that time, since you declined to pay and State Farm declined to pay, there was nothing else done on the vehicle, correct?
A. Correct.
Q. And it sat there on the dealer lot for almost 18 months with nothing being done, correct? You left it there?
A. Eighteen months?
Q. Yes, sir.
A. From when? You're saying-
Q. Well, from the spring of 2012 through the middle of 2013, so maybe 18 months-it was, say, 12 months, 12 or 13 months.
A. Whatever that period of time was. I don't know the number of months, but it was there until we took it back.
Q. And during that time period, no one from Bolton Ford told you to please leave the car here for this year, right?
A. That's correct.
Q. No one said we're repairing your car during this year from 2012 to 2013, did they sir?
A. No.
Q. And, in fact, you finally got a certified letter from Bolton Ford from the service manager saying, please come get [y]our vehicle off of our lot?
A. That's true.

Bolton Ford sent a letter to Nickel in January 2013 requesting that he retrieve his vehicle from the Bolton Ford lot. The facts and testimony are clear that Nickel refused to pay for the repair and, effectively, abandoned his vehicle at the dealership. Considering that Bolton never actually repaired anything because Nickel refused to pay for the repair, it is hard to fathom how it could be found to have negligently repaired Nickel's Ford Flex or was otherwise negligent for allowing Nickel's vehicle to remain in storage on its lot. Accordingly, we reverse any finding by the trial court that Bolton Ford was negligent in any way pertaining to this vehicle.

CONCLUSION

The judgment of the trial court finding Ford Motor Company and/or Bolton Ford, LLC liable in redhibition is reversed, as Nickel's redhibition claim is prescribed. Accordingly, all money judgments in his favor are reversed. The trial court's judgment casting Bolton Ford, LLC in judgment is reversed. All costs of this appeal are assessed to the Plaintiff-Appellee, Milo A. Nickel, Jr.

REVERSED .

      Shetler explained that the way that Ford rates dealerships relates to the timing between the ordering of a part and the closing of the ticket. Therefore, in order to maintain a good rating, even though the part had been ordered in the fall of 2008, the official Ford "ticket" was not dated until January 2009.


text:
    Antonio FONTENOT, et al. v. CITGO PETROLEUM CORPORATION, et al.
    Donald Welch, et al. v. Citgo Petroleum Corporation, et al.
    17-924
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 2018
   Robert E. Landry, Kevin P. Fontenot, Patrick D. Gallaugher, Jr., Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT/APPELLANT: Citgo Petroleum Corporation

Kirk Patrick, III, Heath Savant, Donahue, Patrick & Scott, P.O. Box 1629, Baton Rouge, LA 70821-1629, (225) 214-1908, COUNSEL FOR DEFENDANT/APPELLEE: R & R Construction Co.

Wells T. Watson, Jake D. Buford, Bagget, McCall, Burgess, Watson & Gaughan, 3006 Country Club Road, Lake Charles, LA 70605, (337) 478-8888, COUNSEL FOR PLAINTIFF/APPELLEE: Antonio Fontenot, et al.

Marshall Simien, Jr., Simien Law Firm, One Lakeshore Drive, Suite 1110, Lake Charles, LA 70629, (337) 497-0022, COUNSEL FOR DEFENDANT/APPELLANT: Citgo Petroleum Corporation

Richard E. Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLEE: Antonio Fontenot, et al.

Craig Isenberg, Joshua Cox, Kyle W. Siegel, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C., 909 Poydras Street, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLANT: Citgo Petroleum Corporation

James Patrick Cooney, Royston, Razor, Vickery, & Williams, LLP, 1600 Smith Street, Ste. 5000, Houston, TX 77002, (713) 224-8380, COUNSEL FOR DEFENDANT/APPELLANT: Citgo Petroleum Corporation

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Elizabeth A. Pickett, Shannon J. Gremillion, and Candyce J. Perret, Judges.

SAUNDERS, Judge.

This appeal involved the claims of fourteen plaintiffs who allege that they sustained injuries from an exposure to sulfur dioxide and hydrogen sulfide released by a refinery. The trial court awarded the plaintiffs for their injuries as well as for fear of future injury and a combination of mental anguish/loss of enjoyment of life.

The owner of the refinery appeals raising two assignments of error. We affirm, in part, and reverse, in part.

FACTS AND PROCEDURAL HISTORY :

The plaintiffs in this case include a group of workers at the Firestone Polymers plant across Highway 108 from the Citgo Petroleum Corporation's refinery in Lake Charles, Louisiana. The plaintiffs were exposed to sulfur dioxide and hydrogen sulfide on June 19, 2006, when a gas release occurred. The symptoms the plaintiffs endured included eye, nose, and throat irritation, headaches, congestion, and chest pains.

After a trial, the trial court awarded damages to nine of the plaintiffs for fear of future injury. Further, the trial court awarded damages to all fourteen of the plaintiffs for a combination of mental anguish/loss of enjoyment of life. Citgo files this appeal, alleging two assignments of error.

ASSIGNMENTS OF ERROR:

1. The district court erred in awarding damages for fear of future injury to nine plaintiffs because they presented no evidence that their claimed exposure to SO2 and H2S during the June 2006 event was capable of causing future health problems.
2. The district court erred in awarding damages for mental anguish and loss of enjoyment of life to 10 plaintiffs who either did not provide testimony at all regarding these claims, or whose testimony on these matters solely was tied to future health concerns (and, thus, the awards were duplicative of the invalid awards based on fear of future injury.)

ASSIGNMENT OF ERROR NUMBER ONE:

Citgo's first assignment of error is that the trial court's award for fear of future injury to nine plaintiffs was in error because there is no evidence in the record that the substances released during the June 2006 event can cause future health problems, and such evidence is necessary in order to recover for fear of future injury.

Findings of fact are subject to the well-established manifest error standard of review. Stobart v. State, through Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993). Contrarily, legal errors are subject to the likewise well-established de novo standard of review. Evans v. Lungrin , 97-541 (La. 2/6/98), 708 So.2d 731.

Citgo argues that the trial court's award was in error because there is no evidence in the record that the substances the plaintiffs were exposed to can cause future health problems. Its argument is predicated on the fact that a plaintiff seeking damages for fear of future injury must show at least the possibility of suffering damages from the result of some tortious conduct, citing Broussard v. Olin Corp. , 546 So.2d 1301 (La.App. 3 Cir. 1989). We agree that a plaintiff bringing a fear of future injury claim must show a possibility that the injury at least could happen in the future.

In Broussard , 546 So.2d at 1303 (emphasis added), this court stated:

Plaintiff argues that the trial court erred in not allowing plaintiff to testify as to his fear of cancer. Defendant filed a motion in limine relative to such testimony which the trial judge granted for oral reasons which have not been included in the record on appeal.
Plaintiff cites Anderson v. Welding Testing Laboratory, Inc. , 304 So.2d 351 (La.1974), as dispositive of the issue. The court in Anderson concluded that plaintiff's fear of cancer resulting from a severe radiation burn was a compensable residual of the accident. Evidence was adduced that cancercould result from a radiation burn.
In the case before us[,] plaintiff did not show that cancercan result from phosgene gas poisoning. Plaintiff would have us distinguish between compensating plaintiff for an actual risk of cancer and compensating plaintiff for his fear of cancer. Mere speculation concerning an event cannot provide the basis for an award for anxiety.
Berry v. City of Monroe , 439 So.2d 465 (La.App. 2d Cir.), writ denied , 443 So.2d 597 (La.1983). The trial court did not abuse its discretion in disallowing testimony as to plaintiff's fear of cancer.

Dr. Barry Levy, plaintiff's expert epidemiologist, stopped short of testifying that the plaintiffs "are at risk for future health problems that result from the June 19, 2006 exposure" stating "I've offered no opinion on that." Contrarily, there is evidence in the record from studies indicating that there are no known future health threats from either sulfur dioxide (SO2) or hydrogen sulfide (H2 S) in the type of exposure endured by the plaintiffs.

Regardless of this, the trial court stated in its reason for judgment:

It is fear of the unknown that bothers people a great deal. The plaintiffs fear in this regard is not something they conjured up in their own minds in some fanciful or imaginary way. Their fears for years have a rational basis and can be expected and even anticipated. Dr. Levy didn't say future affects could not happen. He just didn't give an opinion on that issue. And of course we all know that some things which once were considered safe have now been found to be unsafe.... [W]ho knows what future studies will show with regard to these substances[?] Will these substances be found to be more dangerous than we once thought? We don't know.

Accordingly, after a thorough review of the record, we find that the plaintiffs produced no evidence that the substances they were exposed to, sulfur dioxide (SO2) and hydrogen sulfide (H2 S), can cause future injury. We find that the trial court's judgment awarding the plaintiffs damages for fear of future injury is based on "mere speculation" as referenced in Broussard . Accordingly, we find merit to Citgo's first assignment of error, and we reverse the trial court's judgment awarding the plaintiffs damages for fear of future injury.

ASSIGNMENTS OF ERROR NUMBER TWO:

Citgo's second assignment of error is that the trial court erred in awarding damages for mental anguish and loss of enjoyment of life to ten plaintiffs who either did not provide testimony at all regarding these claims, or whose testimony on these matters was tied solely to future health concerns, which make the awards duplicative of the awards based on fear of future injury. We find some merit to this assignment of error.

As stated above, findings of fact are subject to the well-established manifest error standard of review. Stobart v. State, through Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993). Contrarily, legal errors are subject to the likewise well-established de novo standard of review. Evans v. Lungrin , 97-541 (La. 2/6/98), 708 So.2d 731.

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. Duncan v. Kansas City So. Ry. Co. , 00-66 (La. 10/30/00), 773 So.2d 670, 682. The standard of review applicable to a general damages award is the abuse of discretion standard. Bouquet v. Wal-Mart Stores, Inc. , 08-309 (La. 4/4/08), 979 So.2d 456, 459.

"Mental anguish and grief refers to the 'pain, discomfort, inconvenience, anguish, and emotional trauma' that accompany the injury. McGee [v. A C And S, Inc., 05-1036 (La. 7/10/06), 933 So.2d 770,] 775." Rachal v. Brouillette , 12-794, p. 5 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137,1142. The McGee court went on to describe loss of enjoyment of life as the "detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury." McGee , 933 So.2d at 775.

In this case, the trial court gave awards to ten plaintiffs under a combination of mental anguish and loss of enjoyment of life. It is recognized jurisprudence that loss of enjoyment of life is recoverable as a separate element of general damages. See McGee , 933 So.2d 770. While mental anguish is considered merely an element of general damages, "general damages in Louisiana are routinely dissected. Courts commonly list different elements of general damages, including mental anguish and physical pain and suffering, both past and future, separately." Id at 775-76.

Citgo divided the ten plaintiffs into two categories. First, it claims that four of the plaintiffs, Donald Guillory, Leslie Landry, Jeremy LaPoint, and Gregory McDonald, provided no testimony regarding mental anguish or emotional distress. We agree.

Donald Guillory, Leslie Landry, Jeremy LaPoint, and Gregory McDonald testified to various symptoms from the exposure. However, none of those plaintiffs testified to any mental anguish or loss of enjoyment of life. Thus, we reverse their awards for mental anguish/loss of enjoyment of life.

Second, Citgo admits that the remaining six plaintiffs, Antonio Fontenot, Jeffery Guillory, Shelia Nickerson, Daniel Racca, Bryan Thomas, and Donald Welch, it addresses in this assignment of error raised general concerns regarding their future health, but it points out that their awards for mental anguish/loss of enjoyment of life were duplicitous of their awards for fear of future injury. We find no merit to this position.

We reversed their awards for fear of future injury in Assignment of Error Number One. Thus, any argument that these awards are duplicitous is negated. Further, there is ample evidence in the record to support the awards to each of these six plaintiffs as they expressed concerns indicative of mental anguish or at least some emotional trauma. One plaintiff testified that he was "worried about later ... if it comes back." Others, while just learning at trial that their fears were unfounded, nevertheless, can reasonably be found to have suffered mental anguish for having fear of what they were exposed to and what those substances could cause in the future from the time of the injury up until trial. For example, one plaintiff expressed a fear of cancer until trial when she learned that the substances she was exposed to do not cause cancer. Another stated, "I don't know what I was exposed to or how bad the effects could be, chronically."

Given the status of the record, we find that the trial court abused its discretion in awarding Donald Guillory, Leslie Landry, Jeremy LaPoint, and Gregory McDonald for mental anguish/loss of enjoyment of life. Thus, we reverse their awards. However, we find no abuse of the discretion afforded the trial court to award the six plaintiffs, Antonio Fontenot, Jeffery Guillory, Shelia Nickerson, Daniel Racca, Bryan Thomas, and Donald Welch, for mental anguish/loss of enjoyment of life. As such, we affirm their awards.

CONCLUSION:

Citgo Petroleum Corporation raises two assignments of error. We find merit to the first that the trial court erroneously awarded damages for fear of future injury. We find merit to part the second regarding four of the ten plaintiffs' awards for mental anguish/loss of enjoyment of life, while finding no merit to the remaining part of the second regarding six of the ten plaintiffs' awards for mental anguish/loss of enjoyment of life. Each party is to pay its own costs of these proceedings.

AFFIRMED, IN PART, REVERSED, IN PART.

Thibodeaux, Chief Judge, concurs in part and dissents in part and assigns written reasons.

Pickett, J., concurs in part and dissents in part with written reasons.

Perret, J., concurs in part and dissents in part for the reasons assigned by Chief Judge Thibodeaux.

THIBODEAUX, Chief Judge, concurs in part and dissents in part.

I concur in the award of mental anguish to the six plaintiffs, Antonio Fontenot, Jeffery Guillory, Shelia Nickerson, Daniel Racca, Bryan Thomas, and Daniel Welsh. I disagree with the reversal of the awards to Donald Guillory, Leslie Landry, Jeremy LaPoint, and Gregory McDonald and with the reversal of the awards for fear of future injury.

CITGO does not complain of general damages; it only complains of damages for fear of future injury and for mental anguish. It was established that 200,000 pounds of sulphur dioxide and massive amounts of hydrogen sulfide were released into the atmosphere and into the area of the Firestone employees. Firestone is located directly across the highway from CITGO. The trial court heard extensive testimony from experts Frank Parker, an industrial hygienist, and Barry Levi, a preeminent toxicologist and epidemiologist. The trial court also heard testimony that sulphur dioxide turns into sulfuric acid when it reaches the mucus membrane of the respiratory track. The Occupational Health Guideline recommends medical surveillance because it just doesn't vanish; it lingers. Dr. Springer who examined all of the plaintiffs testified that sulfur dioxide can be difficult to get rid of and it does not take much to throw someone into a chronic condition.

Moreover, the trial court said: "I find each plaintiff credible and worthy of belief in so far as to their exposures to hydrogen sulfide and sulphur dioxide air releases on June 19, 2006, at CITGO's Refinery AND how each individual was affect [sic] initially and thereafter." (Emphasis added). It is axiomatic and needs no citation that we must give vast deference to these findings. The majority has not.

For the foregoing reasons, I concur in part and dissent in part.

Pickett, J., concurs in part and dissents in part with written reasons.

I agree with Judge Saunders that the plaintiffs failed to prove that the chemicals released could cause future injury. Therefore, I concur in the reversal of the trial court's award of damages to the plaintiffs for fear of future injury.

I also agree that the award of damages for mental anguish/loss of enjoyment of life to Donald Guillory, Leslie Landry, Jeremy LaPoint, and Gregory McDonald are not supported by the evidence. Therefore, I concur in the reversal of mental anguish/loss of enjoyment damages to those four plaintiffs.

I disagree with Judge Saunders that the remaining six plaintiffs can recover damages for mental anguish for fear of future injury from the date of the injury to the date of trial. Having determined that the plaintiffs failed to prove that sulfur dioxide and hydrogen sulfide have any long-term health effects, Judge Saunders appropriately finds that any award for fear of future injury would be "mere speculation," and such damages are not recoverable pursuant to Broussard v. Olin Corp. , 546 So.2d 1301 (La.App. 3 Cir. 1989). The plaintiffs attempt to re-characterize this same fear as mental anguish/loss of enjoyment of life damages. I do not believe the scope of the defendant's duty extends to damages which the plaintiff has failed to prove exist, whether characterized as fear of future injury or mental anguish for fear of future injury. Thus, I respectfully dissent from the majority opinion to the extent it affirms mental anguish/loss of enjoyment of life damages to Antonio Fontenot, Jeffery Guillory, Shelia Nickerson, Daniel Racca, Bryan Thomas, and Donald Welch.