On April 6, 1994, three employees at an air separation plant near Plaquemine, Louisiana, owned and operated by Air Liquide America Corporation ("ALAC"), were severely injured in an oxygen flash fire. One of those employees, Ray Hracek, died of his injuries several days after the incident. The other two injured employees, Joseph Bujol and Don Perkins, sustained 90% third degree burns. The flash fire occurred after the ALAC facility unexpectedly shut down due to a power disturbance and while the three employees were assisting in restarting the plant. Don Perkins, Joseph Bujol, their families, and Ray Hracek's surviving family members filed suit against several defendants, but proceeded to trial against only Entergy Services, Inc. ("ESI"), Gulf States Utilities Company ("GSU"), and Louisiana Power and Light, Inc. ("LP&L").
After a bench trial, the trial court concluded that the negligence of ESI, LP&L, and GSU was a cause of the accident. The court assessed the electric utility companies with 40% of the fault for the plaintiffs' injuries. Additionally, the court determined that ALAC and Big Three were at fault and assessed those defendants with 40% and 20% of the fault, respectively. Total damages determined by the trial court were $22,728,450.00 (subject to reduction for fault allocations).
The electric utility companies appealed. Determining that the trial court was manifestly erroneous in holding the electric utility companies liable for plaintiffs' damages, the court of appeal reversed. The court of appeal found: (1) that the trial court imposed the wrong legal duty on the utility companies; (2) that even under a less stringent standard of care, the defendants
The plaintiffs filed a writ application with this court, assigning as error (1) the court of appeal's failure to allow them to reargue the case in front of a larger appellate panel; (2) the court of appeal's application of a less stringent legal duty to the defendants;
At 1:52 a.m. on April 6, 1994, a static shield wire, suspended above three transmission conductors at the Exxon refinery in Baton Rouge, broke as a result of a tenknot wind and fell onto the transmission wires below it. Prior to its breaking, the static shield wire was improperly held together with only one of its original seven strands. The initial breakage of the shield wire caused a circuit breaker to open the line, producing an "A phase to ground" fault, or a fault in the uppermost wire. This electrical fault was cleared in seven cycles, or 7/60 of a second, which was normal. However, shortly thereafter, when Entergy personnel attempted to reclose the breaker manually in order to reenergize the line, the electrical fault was reinitiated and escalated to a full three-phase fault, or a fault in all three wires. The escalation occurred because the first three levels of GSU's automatic relay equipment failed to operate properly and isolate the fault. This resulted in a 58-cycle (58/60 of a second), three-phase electrical fault that caused a significant loss of voltage to be felt by all entities connected to the grid, which is the utility alignment that allows for a large number of customers to be serviced simultaneously. ALAC suffered a 47.5% voltage sag, which was one of the most serious experienced in the Entergy system.
By approximately 4:45 a.m., two of the four compressors were up and working.
LAW AND ANALYSIS
First, the plaintiffs argue that the court of appeal denied them their constitutional right to reargument in front of a larger appellate panel. Due to the complexity of the issues, the voluminous record, and the amount of the award, this case was originally heard by a five-judge appellate panel, with the hope that potential delays inherent in having the matter initially heard by a three-judge panel could be avoided. The plaintiffs argue that, because two judges on the five-judge panel dissented, they were constitutionally entitled to reargue their case in front of a larger panel of the court of appeal, pursuant to La. Const. art. V, § 8.
Section 8 of Article V provides that appellate courts shall sit in panels of at least three judges and that a majority of judges must concur to render judgment. The article further provides that:
La. Const. art. V, § 8(B). This provision entitles a trial court's judgment to more weight by requiring at least two additional judges to hear the case when two out of three judges on the original three-judge
However, this provision does not, and was not intended to, entitle parties to reargument when a five-judge panel hears the case in the first instance. This is best demonstrated by the comments of Delegate Chris J. Roy, who proposed the amendment, to the Constitutional Convention. When asked what would happen under this provision in the event an appellate court chose to sit in a five-judge panel initially and one judge dissented, Mr. Roy answered that, in that scenario, you would already have the reargument and the parties would not be entitled to reargue the case; "The court simply considers it reargued and then renders its decision." Id. at p. 757.
That scenario is what occurred here. The First Circuit, anticipating that some disagreement might result among the members of the original three-judge panel due to the complexity and scope of the various issues in this case, chose to sit in a five-judge panel in the first instance. Therefore, the parties were not entitled to reargue the case in front of a larger panel of the appellate court; rather, the case was considered reargued for purposes of this provision, as the parties were already afforded the opportunity to have five appellate judges hear their case.
Next, the plaintiffs' principal argument is that the court of appeal erred by reversing the trial court's findings of causation. Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis. The determination of liability under the duty/risk analysis usually requires proof of five separate elements: (1) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. Louisiana Transit Co., Inc., 96-1932, pp. 8-9 (La.3/4/98), 707 So.2d 1225, 1230 (citing David W. Robertson et al., Cases and Materials on Torts 83-84 (1989); Fowler v. Roberts, 556 So.2d 1 (La.1989) (on original hearing)). See also Roberts v. Benoit, 605 So.2d 1032, 1051 (La.1991). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. See Mathieu v. Imperial Toy Corporation, 94-0952, p. 11 (La.11/30/94), 646 So.2d 318, 326. Accordingly, because we find that the plaintiffs failed to prove the cause-in-fact element of their negligence case, there is no liability in this case.
Generally, the initial determination in the duty/risk analysis is cause-in-fact. Boykin, 707 So.2d at 1230. Cause-in-fact usually is a "but for" inquiry, which tests whether the accident would or would not have happened but for the defendant's substandard conduct. Id. Where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident.
This court has made several different inquiries when applying the substantial factor test. For example, the court has stated that when there are multiple causes, clearly cause-in-fact exists when the plaintiff's harm would not have occurred absent the specific defendant's conduct. Graves v. Page, 96-2201, p. 9 (La.11/7/97), 703 So.2d 566, 570. The court has also applied the substantial factor test by asking whether each of the multiple causes played so important a role in producing the result that responsibility should be imposed upon each item of conduct, even if it cannot be said definitively that the harm would not have occurred "but for" each individual cause. See id. (citing Trahan v. State, Department of Transportation & Development, 536 So.2d 1269, 1272 (La. App. 3 Cir.1988)). See also Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law, § 4-3 at 86-88 (1996) (noting that the substantial factor test operates well in cases where there are multiple possible causes-in-fact, but the trial judge or jury may not be able to conclude that the accident most likely would not have happened but for any one of the causes). Additionally, in LeJeune v. Allstate Ins. Co., 365 So.2d 471, 475 (La.1978), the court, in describing the substantial factor test, stated that "one must consider whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm."
Whether the defendant's conduct was a substantial factor in bringing about the harm, and, thus, a cause-in-fact of the injuries, is a factual question to be determined by the factfinder. Theriot v. Lasseigne, 93-2661, p. 5 (La.7/5/94), 640 So.2d 1305, 1310 (citing Cay v. State DOTD, 93-0887 (La.1/14/94), 631 So.2d 393 (La.1994)). A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Id. (citing Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La. 1990)). In order to reverse a trial court's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La. 1993). Further, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221. In sum:
Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); Ambrose, 639 So.2d at 224, n. 1 (Lemmon, J., concurring)
However, while deference must be given to the factfinder's determinations, this court clarified in Ambrose that our purpose in Stobart was not "to mandate that the trial court's factual determinations cannot ever, or harldy ever, be upset." Ambrose, 639 So.2d at 221. Recognizing that great deference should be accorded to the factfinder, the court of appeal and this court have a constitutional duty to review facts. Id. To perform its constitutional duty properly, an appellate court must determine whether the trial court's conclusions were clearly wrong based on the evidence or clearly without evidentiary support. Id.
The plaintiffs' theory of causation in this case is that the electrical disturbance on the night of the fire resulted in an "unusual," "severe," and "traumatic" voltage sag at the ALAC facility. The magnitude of the voltage sag then caused a "violent" shut down at the plant, producing excessive vibration of the machinery, which, in turn, loosened debris in the form of metallic particles contained within the ALAC piping system. When the ALAC plant was restarted, this debris, which had already begun to move about in the system, was transported to the valve at the letdown station and ignited the oxygen flash fire, either by impact on the valve or friction within the valve.
The trial court accepted the plaintiffs' theory of causation and found that the power disturbance was a substantial factor in the subsequent oxygen flash fire. The court of appeal, upon its review of the record, concluded that there is not a reasonable factual basis for the trial court's finding that the electrical fault was a cause-in-fact of the plaintiffs' injuries. Further, the court of appeal found that the trial court was clearly wrong in determining that the plaintiffs satisfied their causein-fact burden of proof.
The plaintiffs outline their cause-in-fact case against Entergy as entailing two steps:
While there is adequate evidence in the record to support the trial court's conclusion that the plaintiffs established step (a) by a preponderance of the evidence, the record does not support a finding that the plaintiffs proved step (b).
The second step in the plaintiffs' cause-in-fact case depends on the factual finding that the ALAC plant experienced an unusually turbulent shutdown the night of the flash fire as a result of the voltage sag and that, during the shutdown, the equipment vibrated violently, thereby dislodging particulate matter in the system.
The primary evidence presented by the plaintiffs on the issue of causation was from the Schmidt Report and the testimony of their expert, Roger Owens. The Schmidt Report is an investigative report on the oxygen flash fire at the ALAC facility, which was prepared by an ALAC investigative committee and an independent accident investigation consultant from JEI Metallurgical, Inc. The investigating committee examined the remains of the piping involved in the incident and the plant's facilities. Inspection of the valve's surviving components confirmed "the long term presence of foreign material within the piping system." The control valve's plug was pitted and gouged. Different components of the valve exhibited abrasion and gouge damage, indicating there had likely been contact with some foreign material.
The Schmidt Report concludes that:
The Schmidt Report notes that, normally, particles such as those believed to have caused the oxygen flash fire are incapable of being transported through the piping system because of their mass or because of insufficient gas velocity.
The plaintiffs argue that the Schmidt Report directly supports their theory of causation, pointing to the Report's conclusion that, while normally any particles existing in the pipeline would remain fixed, "during highly abnormal pipeline operating conditions, which occurred during the early hours of April 6, 1994, circumstances could have developed which caused the movement of metallic particles through the piping network." However, nowhere does the Schmidt Report actually link the Entergy power collapse to the flash fire. The passage quoted above is the only passage in the Schmidt Report that could be interpreted as linking the power disturbance
Mr. Owens, the plaintiffs' expert in electrical engineering and casualty control, opined at trial that the severe voltage sag could have caused severe turbulence in the equipment at the ALAC plant during the shutdown, which could have resulted in particulate matter becoming mobile as described in the Schmidt Report. Owens testified that, based on his knowledge regarding the ALAC plant and its equipment and his knowledge of effects of similar disturbances on pressurized flow systems, during such a traumatic electrical event as the 45.7% voltage sag, transients, or severe drops and spikes in power supply, would probably be produced over the entire grid of utility service. Owens further testified that he would expect the ALAC plant to experience those transients, "only stepped down to their voltage level," because "its a linear thing;"—i.e., the ALAC plant would proportionately experience the same transients felt by other customers over the entire grid. His testimony continued that, because of these transients, the plant most likely would have experienced more severe mechanical and flow problems, compared to those that arise during a normal shutdown, because of the "very unique, uncontrolled and unsystematized shutdown." Owens concluded that the type of transients that likely occurred at the ALAC facility due to the voltage sag could lead to the introduction of debris or particles within the flow system as described in the Schmidt Report. Based on the evidence he had examined, he believed that this was the most likely scenario.
However, while stating he believed this to be the most likely scenario, Owens was careful to qualify his testimony at trial:
Additionally, on cross examination, Mr. Owens stated:
Regarding the question of whether transients occurred at the ALAC plant, we also recognize that the defendant's expert in electrical utility operating practices and electrical equipment failure analysis testified at trial that the ALAC plant most likely did not experience any severe transients the night of the electrical disturbance. Mr. Brooks explained at trial that he reviewed outage data from fault recorders, devices that are triggered by a power abnormality and which record each cycle of voltage or current, from the night of the electrical fault. Mr. Brooks testified that, while there was no device at the ALAC facility in Plaquemine, there were recorders at a couple of other stations closer to Exxon and one at an outlying station that was about the same distance from Exxon as the ALAC plant, but in the opposite direction. Brooks stated that his investigation did not indicate any type of spikes or dips on the grid, but indicated a smooth drop or transition from 100% voltage down to about 55% voltage or lesser percentage at some of the stations.
In addition to the Schmidt Report and Mr. Rogers' testimony, the trial court relied heavily on an article discussing oxygen compatibility of metals and alloys, authored by Dr. Robert Lowrie, who has spent a lifetime in the oxygen industry and served on the American Society of Testing and Materials committee on oxygen compatibility. The article notes that startup and shutdown of oxygen equipment involve the most dangerous possibility of pipeline fires because of unsteady conditions. The article explains that resonance peaks with attendant danger of excessive vibration and rubbing can occur in rotating machines during such procedures. Further, Lowrie notes that the danger of high gas velocity and particle impact ignition is increased during those times. The trial court found that Lowrie's article directly supported the plaintiffs' theory that the ALAC equipment experienced excessive vibrating during the shutdown of the plant. However, the article is similar to the testimony of Owens, in that it only provides further generic evidence of what can possibly occur at any oxygen plant during an unplanned shutdown.
To further support their argument that the ALAC plant experienced a violent and turbulent shutdown as a result of the voltage sag, the plaintiffs point to the testimony of Ricky Webber, the shift supervisor on duty when the voltage sag occurred. In describing the power failure, Webber stated: "It's such—it's kind of a shock when you're sitting there talking about baseball and stuff at 2:00 and everything gets dark on you. It makes a lot of noise." The plaintiffs argue that electric motors shutting down smoothly do not make noise and that Webber's description of the shutdown as noisy supports the trial court's conclusion that the shutdown was unusual. The plaintiffs note that because the voltage sag lasted just under a second and because most, if not all, of the ALAC machines began to shut down even more quickly than that, it should not be surprising that Webber is the only employee present at the plant who recalled nothing more than the plant shut down.
Contrary to the plaintiffs' assertion that no one else present at the plant on the night of the shutdown recalled anything, several of the other employees testified as to the nature of the shutdown. Richie Landry, through deposition, testified that
At oral arguments before this court, the plaintiffs also referred to Mr. Bujol's testimony that the plant "shakes, rattles, and rolls" during unplanned shutdowns and startups. However, Mr. Bujol was not present at the plant when this shutdown occurred, and his testimony only further supports the fact that this shutdown did not differ from any other shutdown.
The record further demonstrates that the equipment at the ALAC facility was designed to account for power disturbances. While the nature and degree of the electrical fault and the resulting voltage sag were unusual in this case, the compressors were designed to respond to such a loss of voltage at a maximum of 30 cycles. Therefore, the compressors did not suffer the full impact of the 58-cycle sag, and the consensus among witnesses was that the compressors most likely were shut off as designed within 10 to 30 cycles of the electrical disturbance. Moreover, there was evidence that no electrical equipment was damaged, including equipment sensitive to electrical transients. Mr. Tony Mabile, the assistant plant manager of the ALAC facility at the time of the shutdown, also testified at trial that all four of the compressors at the plant were equipped with vibration monitors that are designed to set off an alarm and automatically shut the machines off if there is excessive vibrating. There is no evidence that the alarms were tripped during the shutdown of the plant.
Finally, the plaintiffs have not presented sufficient evidence to prove that it is more likely than not that the power disturbance was a substantial factor in the occurrence of the flash fire. There is nothing in the record showing that the malfunctioning of the automatic pressure control valve, which indisputably was a substantial factor causing the fire, was linked to the power outage. To the contrary, the evidence shows that nothing out of the ordinary was noted during startup of the facility, other than the synchronizer pack failing in the No. 3 plant, until low pressure in the Exxon pipeline was discovered, some time after the shutdown occurred, as a result of the valve not closing properly. There was additional evidence that the valve had malfunctioned in the past and was known to leak on occasion. Based on the lack of
Therefore, it cannot be said that the plaintiffs have proved that it is more likely than not that, absent the disturbance and shutdown, the valve would not have malfunctioned and the fire ignited. Graves, 703 So.2d at 570; Dixie Drive It Yourself, 137 So.2d at 302. Nor can it be said that the power fault at the Exxon refinery played so important a role in producing the fire that responsibility should be imposed on Entergy even though it has not been demonstrated that the fire would have occurred but for Entergy's conduct. Graves, 703 So.2d at 570. Finally, the plaintiffs failed to prove by a preponderance of the evidence that Entergy's conduct, which resulted in the power fault, created an active force in continuous operation leading directly up to the time of the harm, LeJeune, 365 So.2d at 475, especially considering the three hour lapse between the ALAC plant's shutdown and the ignition of the fire.
Thus, when reviewed in its entirety, we find that the record only supports the trial court's conclusions that the electrical fault in this case was an unusual event and that the foreign particulate matter within the ALAC system was a contributing factor to the oxygen flash fire. However, regarding the issue of causation, the only evidence in the record that attempts to directly link the power outage to the flash fire is the testimony of Mr. Owens. While Mr. Owens opines that the scenario he presents is the most likely cause of the fire, the foundation for his opinion is simply that, based on his experience and the documents he examined in this case, it is possible that the equipment might have violently shaken in the way he described.
There is, however, a lack of objective evidence in the record supporting the plaintiffs' theory of causation. There is only Dr. Lowrie's article, which provides further proof that it is possible for oxygen equipment to vibrate excessively during shutdowns, and the testimony of one employee that it was noisy at the plant when the facility shut down. Additionally, we cannot ignore the substantial amount of evidence contradicting the trial court's finding that the plant experienced a violent and turbulent shutdown, primarily consisting of the testimony of the employees present when the shutdown occurred, evidence that none of the vibration monitors were triggered, and the fact that the equipment shut down before it could experience the full impact of the voltage sag.
While great deference must be given to the fact-finder, we find that the trial court's conclusion that the plaintiffs proved their cause-in-fact case by a preponderance of the evidence is clearly wrong. Examining the evidence in a light most favorable to the plaintiffs, at best, it could be said that the plaintiffs have proved that it was possible that the voltage sag caused the machines at the plant to shake violently. However, the plaintiffs cannot meet their burden of proof by demonstrating that the voltage sag might have caused a violent shutdown at the facility, which might have caused particulate matter to loosen, which might have been a contributing factor to the ignition of the flash fire. Rather, the plaintiffs must prove that it is more likely than not that the voltage sag caused an unusual amount of turbulence at the plant, which, in turn, caused debris
While we, too, sympathize with the plaintiffs, we agree with the court of appeal that the record does not include a reasonable factual basis for the trial court's finding that the electrical fault was a cause-in-fact of the plaintiffs' injuries. We further agree that the trial court was clearly wrong in concluding that the plaintiffs established their cause-in-fact case by a preponderance of the evidence. Because there is no factual causation in this case, our inquiry is over. Therefore, the judgement of the court of appeal is affirmed.
JOHNSON J., dissents and assigns reasons.
KNOLL, J., dissents and assigns reasons.
JOHNSON, J., dissenting.
The court of appeal reversed the trial court's decision in this matter solely on the issue of causation. The issue of causation turned on whether the 58 cycle "unplanned and unsystematic" voltage sag resulted in a "turbulent shutdown" which ultimately caused the oxygen flash fire in which plaintiffs were injured. In affirming the court of appeal's decision, the majority concluded that the record does not include a reasonable factual basis for the trial court's finding that the electrical fault shutdown was a cause in fact of the plaintiffs' injuries.
I respectfully disagree. There is sufficient evidence in the record to support the trial court's decision that there was a causal relationship between the electrical fault shutdown and the flash fire, which caused plaintiffs' injuries.
It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). This Court has announced a two-part inquiry for the reversal of the trier of fact's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the factfinder, and (2) the appellate court must also determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). Thus, the inquiry is whether the factual findings are reasonable, not whether the trier of fact was right or wrong. Id. If, in light of the record in its entirety, the trial court's findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).
Plaintiffs' expert witness, Mr. Roger Owens, testified that in all probability, the voltage sag which occurred during the unplanned and uncontrolled shutdown ultimately caused the flash fire. Mr. Owens testified that there was severe turbulence in the equipment during the shutdown. This, he opined, resulted in the introduction of debris or particles in the flow system, which ultimately caused the accident. Defendants' expert witness, Frederick Brooks, testified that although he had no opinion as to what actually caused the explosion, it was not caused by the voltage sag.
It is apparent that the trial judge was presented with conflicting testimony from
There is no evidence in the record to disprove plaintiffs' theory of causation other than the conflicting testimony of defendants expert witnesses. Based on my review of the record, I find that there was sufficient evidence to support the trial judge's acceptance of plaintiffs' theory of causation. Although the court of appeal's evaluations may be as reasonable, it was error to reverse the decision of the trial court under our well settled "manifest error" standard of review.
KNOLL, Justice, dissenting.
For the following reasons, I respectfully dissent from the majority's determination concerning the issue of reargument. Although this practice is frequently utilized in the First Circuit, in my view it is clearly unconstitutional. The record shows that this case was initially assigned to a three-judge panel (Gonzales, Guidry, Weimer). Before the case was heard, and without the knowledge of the litigants, the panel conferred and decided that because of the complexity of the case and the strong likelihood that the three would not agree, the three-judge panel decided to have the case heard by a five-judge panel. Citing, Uniform Rules—Courts of Appeal, Rule 1-5.
Ultimately, the court rendered a 3-2 judgment reversing the trial court. The plaintiffs filed for a rehearing/reargument citing La. Const. art. V, § 8(A), (B). The plaintiffs contended that because two judges dissented after the initial argument, the constitution required reargument before the court en banc. The court of appeal disagreed and denied reargument.
The court of appeal held that the plaintiffs were not entitled to reargument on the merits of the case. They reasoned that when a case is heard initially by a three-judge panel, a party has a constitutionally provided right to reargument because a judgment cannot be rendered in a civil matter when one of the original three judges dissents. However, the court held that once a judgment is rendered by a five-judge panel, there is no right to reargument or en banc consideration, because five judges are deciding the case, and no right to rehearing, because rehearing is discretionary.
In my view, the plaintiffs are entitled to a reargument by a larger panel. Under the Constitution, each court of appeal shall sit in panels of at least three judges. La. Const. art. V, § 8(A). Thus, in this case, the court's decision to initially hear the case in a panel of five judges does not violate the Constitution. However, clearly the intent of subsection (B) is to grant the parties a constitutional right to reargument before a larger panel when the decision of the initial panel is to reverse or modify the judgment and that decision is not unanimous.
As to the number of judges that should hear the reargument in a case initially heard before a five-judge panel, the answer is not so clear. The Constitution states that reargument shall be heard before a panel of a least five. However, in a case that is initially heard before five judges, reargument before five would still effectively deny the right to reargument afforded by the constitutional article because it is unlikely that one will change his view. This is what the constitutional article sought to avoid. See, Vol. VI, p. 756 of the transcripts from the Constitutional Convention (stating that the present rules of the courts are that if you apply for a rehearing, the rehearing goes back to the same panel that heard the case. So what happens, the two judges that already decided against you and reversed the district judge naturally deny the rehearing).
Thus, in order to adhere to the intent of the constitutional article, I see two possible alternatives to the size of the reargument panel when the case is initially decided before a five-judge panel. First, the panel should be increased by the number of judges in the original panel that vote to reverse or modify the trial court. Thus, if the vote is 4-1, the reargument panel would be increased to a nine-judge panel or if the vote was 3-2, the reargument panel would be increased to eight-judge panel (because an even-number panel would create its own problems, I would recommend that the panel always be nine judges). The second alternative when a judgment of a district court is to be modified
Notwithstanding my dissent on the above issue, I further dissent from the majority's conclusion on the merits of the case. Judge Guidry, in his dissent, succinctly stated the major error in the court of appeal's opinion. He concluded that:
Perkins v. Entergy Corp., 98-2801 (La. App. 1 Cir.12/28/99), 756 So.2d 388, 414 (Guidry, J., dissenting).
The trial court's findings concerning factual matters should be afforded great discretion. Creekmore v. Elco Maintenance, 94-1571 (La.App. 1 Cir.6/30/95), 659 So.2d 815. The factfinder's choice between two permissible views of the evidence cannot be clearly wrong. Id., citing, Stobart v. State, 617 So.2d 880 (La.1993). This Court has held that in the absence of such factors as internally inconsistent testimony of an expert or contradictory documents or objective evidence, determinations of fact that are based on evaluations of the credibility of expert witnesses can "virtually never be manifestly erroneous or clearly wrong." Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems, 99-0201 (La.10/19/99), 748 So.2d 417, 421. "Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinders, reasonable evaluations of credibility ... should not be disturbed upon review where conflict exists in the testimony." Cormier v. Comeaux, 98-2378, (La.7/7/99), 748 So.2d 1123, 1127 (emphasis added).
In my view, it is significant that this complicated evidentiary trial was based largely on expert testimony from both sides. Essentially, it was a trial of expert opinions. The trial court heard the testimony of the plaintiff's expert who testified that the most likely scenario was that the voltage sag led to the introduction of debris or particles within the flow system as described in the Schmidt Report. The trial court found that "Owens' opinions and conclusions [were] entirely consistent with, and supported by, the Entergy investigative report, ..., and the findings of the Exxon investigative team...." Thus, the evidence demonstrated that the failure of the static shield wire and subsequent failure of the relaying schemes were the direct result of negligent maintenance and operation by the defendants. The trial court then determined that it was this negligence which caused the accident at the plant based on, among other things, the testimony of Owens that the voltage sag was a very serious event that caused transients to break loose all over the ALAC system. Owens distinguished this type of sag from a total power outage, testifying that this sag caused the equipment to shut down out of sequence causing the plant to lose control of overflow and pressure.
Thus, the trial court determined, based on the expert testimony which was supported by a plethora of additional evidence, that the voltage sag more probably than not produced the abnormal pipeline conditions which led to the flash fire. In other words, the trial court had two sets of expert testimony, both of which were internally consistent and equally contradicted by the evidence presented by each party, and chose the plaintiff's expert over the defendant's expert. The court of appeal then examined all of the evidence and, despite the clear mandate of Sportsman Store of Lake Charles, Inc. (that evaluations of the credibility of expert witnesses can "virtually never be manifestly erroneous
We first note that we do not reach the question of what legal standard of care should have been applied in this case, because, as discussed in the body of the opinion, we find that the first necessary question—whether the defendants' conduct was a cause-in-fact of the plaintiffs' injuries—is answered negatively, thereby ending our inquiry as to whether the defendants are liable. Nor do we reach the question of whether a de novo review would have constituted reversible error, because, contrary to the plaintiffs' assertion, the court of appeal did not discuss whether a de novo review was appropriate when the duty was erroneously defined in the first instance. Rather, the court of appeal determined that the trial court was clearly wrong under the manifest error standard.
A review of the Legislative history of La. Const. art. V § 8(B) leads to Vol. VI, p. 756 of the transcripts from the Constitutional Convention. Therein, Delegate Chris J. Roy explained § 8(B) upon its presentation to the delegates. In the debate over the article on the floor of the Convention, only "reversal" is discussed in considering the effect of the article. Below is a transcript of the pertinent portions of the debate.