Plaintiffs, representing a class, appeal the trial court's decertification of the class and dismissal of their claims with prejudice.
We are called upon to determine the following:
FACTS AND PROCEDURAL HISTORY
This case arises from a sulfur dioxide emission from American Cyanamid Company's (Cyanamid) chemical facility located in Waggaman, Louisiana on August 11, 1992.
Immediately prior to this incident the plant was shut down to perform routine maintenance. During the start up process there was an imbalance in the plant's process. The amount of sulfur and the amount of oxygen being fed into the furnace were not adjusted properly resulting in a release of sulfur dioxide that exceeded the plant's DEQ Air Discharge Permit. The released sulfur dioxide formed a cloud or "plume," which was carried by the wind from the west bank of the Mississippi River, where the plant is located, towards the east bank in the direction of the City of Kenner. After 4:00 p.m. on April 11, 1992, several residents of Kenner called the fire department to report an unidentified odor in their neighborhood area. This prompted the Kenner Fire Department to send fire protection units to the areas where the odor was reported. These units detected no odor. Kenner officials called Cyanamid and were informed that a sulfur dioxide emission had occurred and that the levels of sulfur dioxide emitted exceeded the levels usually emitted by the facility. Cyanamid notified state and local authorities of the release. Thereafter, the company offered free medical examinations to anyone in the area who felt that they were adversely affected by the release. Three days after the release a class action petition was filed. The class members alleged physical and psychological injury as a result of the sulfur dioxide release with physical complaints ranging from burning eyes to diarrhea and nausea. Seven other lawsuits arising out of the same incident were consolidated with this class action.
A class action certification hearing was held on September 24, 1994. Judge Ellis, pro tem, certified the class. The defendant appealed to this court. With a five judge panel, this Court affirmed the certification but noted that La.Code Civ. P. art. 593.1(B) allows a trial judge to modify or recall his certification at any time prior to a decision on the merits. Richardson v. American Cyanamid Company, 95-898 (La.App. 5
ISSUE ONE—LAW AND ANALYSIS:
Appellants contend the trial court improperly decertified the class without the introduction of new evidence.
The plaintiffs argue incorrectly that the trial judge did not have authority to recall the certification order because the original certification was affirmed by this court, with writs to the Supreme Court being denied.
LSA-C.C.P. art. 592A(3)(c), which sets forth the current procedure scheme for class action certification, maintains the old rule that any time "before a decision of the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification." Based on these articles, we find the trial court had the authority to recall the class certification.
In Bernard v. Thigpen, 96-752 (La. App. 5
In this case the trial judge recalled the class certification after trial on the merits, but before a ruling on the merits of the class claims. The trial court's Judgment states:
The judgment recalls the prior certification order and then dismisses the claims of
On rehearing in Ford v. Murphy Oil, U.S.A., Inc., 96-2913 (La.10/10/97), 710 So.2d 235, Justice Calogero comments on article 593.1(A):
In this case after the class was decertified, but since the trial judge heard evidence on the issues of negligence, causation and damages as to the six individual plaintiffs, the trial judge ruled on their individual claims. All six class members were named plaintiffs. While the trial judge could not rule on non-named plaintiff class members after decertification without amendment to pleading or a new suit being filed, no amendment or additional evidence was necessary to rule on the six named plaintiffs. Judicial economy and fundamental fairness dictate that the trial judge rule on the claims of the six plaintiff class members who had the opportunity to present evidence of negligence, causation and damages at trial.
Appellants assert that the trial court recalled the class certification ruling without the presentation of new evidence. This claim ignores the extensive factual and expert testimony taken during the three days of trial. The trial judge concluded, based on the scientific evidence presented, that the exposure to the class was so minimal that the sulfur dioxide release would not cause injury to the vast majority of the class members. This finding by the trial court directly affected the numerosity and commonality requirements necessary for class certification. In order to sustain a class action, "it must be shown that the class is so numerous that joinder is impractical." Carr v. GAF, Inc., 97-0838 (La.App. 1
Appellants in their reply brief assert that this incident and the injuries suffered by the class are no different than a number of the contemporaneous petrochemical emission cases, citing Andry v. Murphy Oil, U.S.A, Inc., 97-0793 (La.App. 4
McGee v. Shell Oil Co., supra.
Clement v. Occidental Chemical Corp., supra.
In Hampton v. Illinois Central Railroad Co., 98-0430 (La.App. 1
The appellate court, in reversing the trial court's original certification, found that the plaintiffs did not establish the causal link connecting the complaints to the gas leak sufficient to satisfy the requirement that there was a definable group of persons who were aggrieved by the incident.
In this case the trial court recognized that some, but clearly not most residents of Kenner, may have been injured by the exposure to sulfur dioxide. Class action procedure should not be used as a method to allow non-meritorious claims to be combined with legitimate claims thereby severely discounting the value of meritorious claims. The decertification of the class does not prejudice the rights of any individual class member. Individual class members, post-decertification, may pursue individual law suits. Decertification merely eliminates the class action procedural device. The trial court did not err when decertifying this class because no ruling on a common issue to all class members was made by the trial judge.
ISSUE TWO LAW AND ANALYSIS
Appellants also contend the trial court improperly dismissed the six class member plaintiffs' claims. The trial court found that, "the plaintiffs who testified in this case have failed to prove that their injuries resulted from this emission and the suit is dismissed as to them."
The trial court determined, "no individual in Kenner could have been exposed to a concentration of more than .36 parts per million, and then for only a few minutes." Plaintiffs' expert in toxicology, Dr. Schraeger, testified that he thought the concentrations were higher. He relied on the fact that since the plaintiffs complained of physical abnormalities, burning eyes, nausea and other physical symptoms, that these symptoms must have been caused by the sulfur dioxide emission of a high concentration. Dr. Schraeger testified that based on data he reviewed,
Dr. Laura Green, the defendant's expert toxicologist, testified that she was asked to evaluate whether the health of the plaintiffs was harmed by the Cyanamid release. She explained that sulfur dioxide is a very common gas in the atmosphere and that 70% of the sulfur dioxide is produced by nature. This gas has been studied for decades and these studies have shown that there is a sensitive subpopulation of people who are affected by low levels of sulfur dioxide. This group consists of certain asthmatics. These studies also show there are no long lasting effects from exposure to low levels of the gas.
Dr. Green examined the symptoms of each plaintiff based on their testimony and opined that the continuing complaints expressed by plaintiffs were not related to sulfur dioxide exposure. She concluded that some individuals who were exposed to sulfur dioxide may have experienced watery eyes or coughing over a few minutes to a few hours, but there were no long term health effects from this incident. She further opined that the nausea complained of by some plaintiffs could not be caused by the level of sulfur dioxide released. Finally, Dr. Green testified that even hyper-susceptible asthmatics would have had no long lasting health effects from this exposure. She strongly disagreed with Dr. Schraeger's opinion that RADS could develop from low level exposure; to develop RADS, one must be exposed to "screamingly" high values in the range of 40 to 60 ppm. She explained that the only reports of RADS in the literature involves people exposed to high levels of sulfur dioxide in a mine explosion.
The parties agreed that excess sulfur dioxide entered the atmosphere. The amount of sulfur dioxide released was a critical fact because the amount of sulfur dioxide released determined the concentration levels of exposure. Air modeling experts for each party calculated the exposure level of the citizens in Kenner by taking the amount of sulfur dioxide gas released, determining its dispersion rate into the atmosphere, and then projecting its direction of travel by using wind direction and speed.
The trial judge found that the plaintiffs did not establish the actual rate of emission with any degree of certainty. Dr. Reible, plaintiffs' expert, only testified as to the extreme bounds of the rate of emission, these being zero and 17 pounds per second. Plaintiffs' expert in air modeling, Mr. Francis Courtney, initially issued a
The trial court found that "none of the severe and ongoing symptoms testified to by the plaintiffs could have resulted from this emission." The testimony of the defendant's expert, Dr. Green, supports this finding as does the OSHA standard admitted by Dr. Schraeger during cross examination. The federal OSHA safety standard allows for exposure of five parts per million of sulfur dioxide averaged over an eight hour work day. Based on the trial court's findings the exposure to the residents of Kenner was below the OSHA safety standard. Dr. Green testified that even using the highest levels alluded to in this case of 10 to 20 ppm, there would have been no long term health effects. Dr. Green's testimony was supported by articles on sulfur dioxide exposure prepared by the federal government. Furthermore, the testimony of Dr. John Schneller, the Chief Chemist at Cyanamid, established that shortly before this incident, the DEQ guidelines were revised to allow for additional sulfur dioxide emissions during start up, and that within a year of this incident, the defendant obtained a permit allowing for additional emissions. Dr. Schneller testified that had the new permit been obtained prior to this incident, the incident would not have been reportable under the DEQ standards. Additionally, Dr. Schneller testified that the sulfur dioxide levels are monitored by stations within the plant area and there was no evidence that the new ambient air standards were violated during this emission.
The trial court, in its Reasons for Judgment, seriously questioned the credibility of the six plaintiff class members, finding that the physical symptoms and injuries they attested to did not correspond with the scientific evidence. The trial court noted that plaintiff Wesley Tumblin did not experience burning eyes until the next day. This delayed symptomology is contrary to the scientific evidence presented that any adverse physical effects from sulphur dioxide exposure would be felt immediately. The trial court noted that plaintiff Christine Brown was located outside the limits of the plume when she allegedly smelled a foul odor at 5:00 p.m. The trial court found that the event, which precipitated this case, involves the production and discharge of sulphur dioxide "over a period of 75 minutes" in the late afternoon. Ms. Brown's alleged second exposure at 10:00 p.m., while within the plume area, is not supported by the time chronology. Additionally, Ms. Brown testified that she continues to suffer with problems catching her breath. The trial court determined that there was no scientific evidence or medical evidence to establish a causal connection between her continued shortness of breath and this incident.
Plaintiff Veronica Braggs testified that she was three miles away from the plant when she first smelled the odor, and then traveled to her home which, according to the trial court's finding, "lies outside of the boundaries of eastern most wind direction, testified to by the experts." Ms. Braggs testified that she continues to suffer from shortness of breath, nausea and has "constant problems." The trial court likewise found that these symptoms are not supported by the scientific evidence or any evidence of medical causation. Plaintiffs, Lugene Gray, Shelita Dunbar and Jannie
At trial, appellants failed to introduce any medical records or other documents to substantiate plaintiffs' complaints. The trial judge noted in his twelve page Reasons for Judgment: "Although every plaintiff but one testified to having received medical attention as a result of this event, not one physician was called to testify that their symptoms were related to the sulphur dioxide emission."
Appellants allege that the trial court erred by not entering an order in favor of appellants on the issue of liability. While the trial court did not specifically address appellee's negligence, this was not error because the trial judge relied on the lack of causation to support the decertification of the class and the dismissal of six individual claims. We note that the record supports a finding that Cyanamid was negligent. Cyanamid was restarting their processing plant after maintenance. During the startup period excess sulphur was introduced into the process without sufficient air circulation, causing the excess venting of sulphur dioxide. A meter that was supposed to measure the sulphur as it was being injected into the furnace was out of service and being repaired. Mr. Richard Bywater, Superintendent of the Cyanamid plant, testified that the "root cause (of the release) was an overfeed of sulfur, and obviously a contributing cause to that was having a sulfur flow meter that was not indicating." The operation of the plant without necessary metering devices necessary to comply with the plant's air discharge permit was a negligent act.
Appellate review of a trial court's factual findings is limited to a determination of whether the record contains a reasonable factual basis for the trier of fact's findings. In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Court stated:
In the instant case, the trial judge focused on causation and credibility. When causation and credibility are major issues, a factfinder's findings are entitled to "great deference," and may not be overturned unless they are manifestly erroneous. Guillory v. Insurance Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029. The issue of causation is a fact specific inquiry and we are called to decide whether the factfinder's conclusion is reasonable. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566.
In Rivera v. United Gas Pipeline Co., 96-502 (La.App. 5
This court has, in the past, affirmed trial court damage awards where class members have been exposed to chemical or gas releases that resulted in similar physical symptomology as complained of in this case (i.e. burning eyes, coughing, nausea, fear and anxiety). See Rivera v. United Gas Pipeline Company, supra and Adams v. Marathon Oil Company, 96-693 (La. App. 5
The trial court in this case identified similar reasons for dismissing the six class members in its Reasons for Judgment.
Had this court been sitting as the trier of fact, given Cyanamid's violation of its discharge permit, and plaintiffs' expert, Dr. Schraeger's, testimony that the sulfur dioxide exposure caused the adverse health effect complained of by plaintiffs, we may have decided this case differently and awarded damages consistent with the awards in Rivera and Adams. However, our task, in this case, is not to make findings of fact; rather, we are called upon to determine whether the trial court's findings of fact are supported by the record. We find that the evidence, taken in the light favorable to the defendant supports the trial judge's finding and that the trial court did not commit manifest error in his findings.
We do not, however, hold that suit arising from chemical releases that damage large numbers of people are not proper for class action certification. Our holding is limited to the facts presented in this case. As noted by Justice Calogero in his concurrence in Ford v. Murphy Oil, 96-2913 (La.9/9/97), 703 So.2d 542, at p. 551.
For the foregoing reasons, the judgment of the trial court is affirmed. All cost of this appeal are assessed to plaintiffs.