Slocum et al v. International Paper Company et al
Filing
266
ORDER AND REASONS DENYING 234 Motion to Exclude and 235 Motion to Exclude. FURTHER ORDERED that 228 Motion to Exclude is DENIED. FURTHER ORDERED that 227 Motion Redefine Class Definition is GRANTED IN PART and DENIED IN PART. It is GRANTED to the extent Defendant seeks to redefine the class. It is DENIED with respect to the specific definition Defendant proposes. FURTHER ORDERED that the Class Definition be redefined as set forth in document. Signed by Judge Eldon E. Fallon on 3/9/2020. (jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHIRLEY SLOCUM, ET AL.
CIVIL ACTION
VERSUS
NO. 16-12563
INTERNATIONAL PAPER COMPANY, ET AL.
DERRICK SANDERS, ET AL.
NO. 16-12567
VERSUS
INTERNATIONAL PAPER COMPANY, ET AL.
BRENT JARRELL, ET AL.
NO. 16-13793
VERSUS
INTERNATIONAL PAPER COMPANY, ET AL.
SECTION "L" (1)
ORDER & REASONS
Pending before the Court is Defendant’s Motion to Redefine the Class Definition. 1 R. Doc.
227. Plaintiffs oppose the motion. R. Doc. 237. A hearing was held on November 12 and 13, 2019,
and the parties were ordered to submit post-hearing briefs regarding their respective positions.
Having considered the parties’ arguments and the applicable law, the Court now rules as follows.
I.
BACKGROUND
This plethora of cases arises out of damages allegedly sustained by Plaintiffs as a result of
a discharge of “black liquor” at the Bogalusa Paper Mill. R. Doc. 1-2 at 1. Plaintiffs assert claims
Identical motions have been filed in the consolidated cases, Sanders v. International Paper, No. 1612567, and Jarrell v. International Paper, No. 16-12793. For the sake of simplicity, this Order & Reasons only cites
the record in Slocum v. International Paper, No. 16-12563.
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against Defendant, 2 International Paper Company. Plaintiffs’ theories of liability sound in
negligence, strict liability, and nuisance. R. Doc. 1-2 at 21.
Black liquor is a by-product of the paper making process. Black liquor is typically recycled
in evaporator tanks for repeated use in the pulping process. R. Doc. 1-2 at 3. On June 10, 2015,
the sight glass on an evaporator tank containing black liquor ruptured at the Bogalusa Paper Mill,
which resulted in a stream of black liquor erupting several feet into the air and dispersing into the
atmosphere. R. Doc. 1-2 at 14. The next day, Defendant advised the media that there was a “slight
leak” in a process unit that led to the dispersal of diluted black liquor, but that Defendant was
“confident that there is no risk to human health or the environment.” R. Doc. 1-2 at 14.
Plaintiffs disagree. Plaintiffs contend that the dispersal of black liquor caused personal
injury, property damage and/or emotional distress, and argue Defendant is liable for Plaintiffs’
damages. R. Doc. 1-2 at 16. For example, the Welch Plaintiffs claim the dispersal caused a black
mist to descend on their house, and that the mist stuck the exposed skin of themselves and their
children. R. Doc. 1-2 at 18. For a few days after, the Welches “experienced itchy, burning, watery
eyes, [and] headaches with throat and upper respiratory irritation.” R. Doc. 1-2 at 18. The Welches
concede that their physical symptoms cleared “in a short period of time,” but argue they continue
to suffer emotional distress and fear about a reoccurrence of the event. R. Doc. 1-2 at 18. Other
Plaintiffs claim similar damages.
II.
PENDING MOTION
On May 21, 2019, the Court certified this matter as an issue-based class action. R. Doc.
207. The class consisted of “[a]ll persons or entities who were physically present or owned
property within Bogalusa, Louisiana, Parish of Washington on June 10, 2015, and who sustained
Initially, Plaintiffs filed claims against the mill manager, Bernard F. Chascin; however, these claims were
dismissed as they were not cognizable under Louisiana law.
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injuries or damages as a result of the discharge of ‘black liquor’ at the Bogalusa Paper Mill owned
by the International Paper Company.” R. Doc. 207. Having completed additional discovery,
Defendant now seeks to redefine the class more narrowly as follows:
All persons or entities who were physically present or owned property within the following
boundaries on June 10, 2015 and who sustained injuries or damages as a result of the
discharge of “black liquor” at the Bogalusa Paper Mill owned by the International Paper
Company:
• Northern boundary: Mississippi Avenue, Bogalusa, Louisiana
• Eastern boundary:
Richmond Street, Bogalusa, Louisiana/S. Columbia Street,
Bogalusa, Louisiana
• Southern boundary: Willis Avenue, Bogalusa, Louisiana
• Western boundary: Cumberland Street, Bogalusa, Louisiana
Defendant bases this class definition on evidence produced by Class Representatives,
reports by the Bogalusa Police and Fire Departments, and the conclusions of defense experts. In
particular, Defendant relies on the expert report of Dr. Timothy Myers, an engineer who concluded
that 773 gallons of black liquor was released during the event. R. Doc. 227-1 at 8. Defendant also
relies on the expert report of Gale Hoffnagle, a meteorologist and air quality modeler, who
analyzed the path, air concentrations, and deposition of the black liquor release. R. Doc. 277-1 at
8. Relying on the data provided by Dr. Myers and weather data from IP’s weather station, the
National Weather Service, and the United States Geological Survey, Mr. Hoffnagle opines that the
plume traveled exclusively in a north-ward direction and that “airborne concentrations and
deposition of black liquor droplets per square meter was confined to distances of no more than
2000 meters north and northeast of the release point.” R. Doc. 227-1 at 9. Defendant lastly relies
on the expert report of Dr. Glenn Millner, a toxicologist and risk assessment expert, who concluded
that any individual located outside of the proposed boundary could not have sustained any adverse
physical effects from the exposure. R. Doc. 277-1 at 10. In addition, Defendant sought to exclude
the testimony of Plaintiffs’ expert Patrick Campbell. R. Doc. 228.
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Plaintiffs oppose the motion. R. Doc. 237. Plaintiffs contend that the class definition should
not be redefined, or alternatively, defined to encompass those individuals located within the
following boundaries:
•
•
•
•
Northern Boundary:
Western Boundary:
Eastern Boundary:
Southern Boundary:
Intersection of Highway 21 and 436
Powerline Road
Pearl River Waterway
Davenport Road
Plaintiffs base these boundaries on the conclusions of Dr. Williams and Dr. Campbell. In
particular, Dr. Williams calculated that between 2,160 and 3,240 gallons of black liquor were
discharged over the course of the thirty-eight-minute incident. R. Doc. 237 at 5. Based on Dr.
Williams’s calculations, as well as the data provided by Defendants, Dr. Campbell used HYSPLIT
to model the path of the plume. R. Doc. 237 at 4. The HYSPLIT model revealed that the plume
traveled much further than Defendant’s model suggests. In addition, Plaintiffs sought to exclude
the testimony of Defendant’s experts Gale Hoffnagle, R. Doc. 234, and Glenn C. Millner, R. Doc.
235.
A hearing was held on November 12 and 13, 2019 to allow the parties to present evidence
in support of their respective positions. Following the hearing, the Court instructed the parties to
discuss, and prepare post-hearing memoranda about, two inter-related issues: (1) the amount of
black liquor released during the incident, and (2) the geographic area over which the released black
liquor was dispersed. In its post-hearing brief, Plaintiffs conceded that the south-western most
boundary of the release was Avenue H. R. Doc. 262 at 29. Accordingly, Plaintiffs propose
redefining the class to include anyone located, or anyone owning property located within the
following boundary:
•
•
Northern Boundary: Intersection of Highway 21 and 436
Western Boundary: Powerline Road to Willis Avenue, east on Willis Avenue to
Avenue H, and south on Avenue H to Davenport Road
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•
•
Eastern Boundary:
Pearl River Waterway
Southern Boundary: Davenport Road
Defendant’s proposed boundaries also changed after the hearing. In its post-hearing brief,
Defendants ask the Court to redefine the class to include anyone or anyone owning property
located within the following perimeter:
• Northern Boundary: Redmond Street
• Eastern Boundary:
Richmond Street
• Southern Boundary: Willis Avenue
• Western Boundary: Railroad tracks
Recognizing the importance of the motion and the complexity of the factual issues
involved, the Court, after notifying the parties, traveled to Bogalusa, Louisiana, on February 4,
2020 to better understand the geography of the area and the proximity of the third effect evaporator
to a number of affected sites. The Court together with the attorneys for the Plaintiffs and Defendant
inspected the area in dispute.
III.
EXCLUSION OF EXPERTS
Before addressing the motion to redefine the class, the Court will first discuss the parties’
respective motions to exclude expert testimony from the November 12th and 13th hearing. These
motions were submitted as in limine motions in advance of the hearing and the Court orally denied
all three. The Court takes this opportunity to explain its reasoning in greater detail.
A. Legal Standard
The admissibility of expert testimony is governed by Rule 702 of the Federal Rule of
Evidence, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training or education,
may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
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Fed. R. Evid. 702. This rule codifies the Supreme Court’s decisions in Daubert v. Merrell
Dow Pharma., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999).
The Court must act as a “gate-keeper” to ensure the proffered expert testimony is “both
reliable and relevant.” Wells v. SmithKline Beecham Corp., 601 F.3d 375, 378 (5th Cir. 2010). This
requires the Court conduct a two-pronged assessment to determine whether the expert testimony is:
(1) based on reliable methodology and (2) will assist the trier of fact to understand the evidence or
to determine a fact in issue. See Daubert, 509 U.S. at 589–91.
The first prong “entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Wells, 601 F.3d at 378 (quoting Daubert, 509 U.S.
at 592–93). With respect to reliability, the Court’s focus “must be solely on principles and
methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. In Daubert,
the Supreme Court set forth a non-exclusive list of factors to consider in determining the scientific
reliability of expert testimony. Id. at 593–95. These factors are: (1) whether the theory has been
tested; (2) whether the theory has been subject to peer review and publication; (3) the known or
potential rate of error; (4) whether standards and controls exist and have been maintained with
respect to the technique; and (5) the general acceptance of the methodology in the scientific
community. Id. Whether some or all these factors apply in a particular case depends on the facts,
the expert’s particular expertise, and the subject of his testimony. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 138 (1999).
The second prong ensures that an expert’s testimony is “reliable and relevant.” Daubert,
509 U.S. at 589. “Whether the situation is a proper one for the use of expert testimony is to be
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determined on the basis of assisting the trier.” Advisory Committee Notes Fed. R. Evid. 702.
Assisting the finder of fact requires the expert testimony to reveal more than the attorneys in
arguments can offer. See In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1233 (5th
Cir. 1986). Expert testimony does not assist the fact-finder when the jury “could adeptly assess
[the] situation using only their common experience and knowledge.” Peters v. Five Star Marine
Serv., 898 F.2d 448, 449 (5th Cir. 1990). However, complex issues are considered to fall outside
the scope of the jury’s common experience and knowledge. See In re Horizon Vessels, Inc., No.
CIV. H -03-3280, 2007 WL 655927, at *8 (S.D. Tex. Feb. 28, 2007); McMullen v. BP Expl. &
Prod., No. CIV.A. 12-1206, 2013 WL 2556032, at *7 (E.D. La. June 10, 2013).
Ultimately, a court’s role as a gatekeeper does not replace the adversary system. Daubert,
509 U.S. at 596. “Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Id. Proper deference is to be accorded to the jury’s role “as the arbiter of
disputes between conflicting opinions.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077
(5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)). “As a
general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to
be assigned that opinion rather than its admissibility and should be left for the jury’s
consideration.” Id. (quoting Viterbo, 826 F.2d at 422).
B. Discussion
The Court found that Dr. Campbell has extensive credentials in the area of meteorology
and offered testimony regarding a highly technical matter in this case. The use of the HYSPLIT
model is a “scientifically verifiable” method of determining where the black liquor plume traveled
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after the incident. Further, the HYSPLIT model has been used for over thirty years in the industry
and specifically uses an ensemble approach to produce a viable range of outcomes.
Similarly, Mr. Hoffnagle holds multiple degrees and certifications in meteorology and has
previously testified in numerous state and federal courts regarding air modeling. Furthermore,
Defendants have provided detailed explanations for the alleged omissions in Mr. Hoffnagle’s
report, which is based on a widely accepted air modeling software system and data collected from
the IP weather station itself.
Lastly, Dr. Glenn Millner is a professional toxicologist who has previously been testified
before this Court in Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597 (E.D. La. 2006). His
testimony regarding the chemical composition of the black liquor and its potential health affects
is the product of his experience in the field and knowledge of the subject matter. To the extent the
adverse parties disagreed with the data or methodologies employed by these experts, the parties
had ample opportunities to vigorously cross-examine the witness. Finding that any critique of their
methodologies and conclusion affected the weight of their opinions and not their admissibility, the
Court denied all three motions, R. Docs. 228, 234, 235. The Court now turns to the motion to
redefine the class.
IV.
MOTION TO REDEFINE CLASS
A. Legal Standard
Federal Rule of Civil Procedure 23, governing class actions, requires district courts to
“monitor[] . . . class decisions in light of the evidentiary developments of the case.” Richardson v.
Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983) (“The district judge must define, redefine, subclass, and
decertify as appropriate in response to the progression of the case from assertion to facts.”). One
of the unwritten requirements of Rule 23 is that the class to be certified must be “adequately
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defined and clearly ascertainable.” DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970). A
precise definition is essential to identify those entitled to notice and those bound by a judgment.
In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir.2004). As the Fifth Circuit has
explained, class action litigation requires “ongoing refinement and give-and-take . . . particularly
in the formation of a workable class definition.” In re Monumental Life Ins. Co., 365 F.3d 408,
414 (5th Cir. 2004). Accordingly, “[d]istrict courts are permitted to limit or modify class
definitions to provide the necessary precision.” Id.
B. Discussion
Having presided over a two-day hearing, read the parties’ informative briefs, and visited
the site of the release event in person, the Court concludes that the geographic scope of the class
depends on two factors: (1) how much black liquor was released into the air during the release
event; and (2) where the black liquor was dispersed. The Court reviews the uncontroverted facts
and then discusses each issue in turn.
1. Uncontroverted Facts
The parties agree that on June 10, 2015, a sight glass located on the 3rd Effect Evaporator
at the International Paper Mill in Bogalusa, Louisiana, failed, allowing black liquor liquid and
vapor to enter the atmosphere. R. Doc. 261 at 1. The sight glass was located 64 feet above ground
level and the event lasted from 6:40 p.m. to 7:18 p.m. R. Doc. 261 at 1. The main steam valve that
pressurized the evaporator during normal operations was closed at 7:03 p.m. R. Doc. 261 at 1.
Using data generated by IP, Mr. Frank Arrufat, an engineer employed by IP, determined that an
amount of black liquor was released during the event. The LDEQ was notified that the discharge
contained 37-38% solids. R. Doc. 261 at 2. The parties later respectively hired experts to calculate
the quantity of black liquor released into the atmosphere and the area of the black liquor deposition.
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2. Volume of Release
As a threshold issue, the Court recognizes that “it is impossible to calculate the exact
amount of Black Liquor that was discharged during the Release Event; this figure can only be
estimated with modeling.” R. Doc. 262 at 7. Experts on both sides presented convincing testimony
regarding the volume of the release, and unsurprisingly, their respective models produced wildly
disparate results. Plaintiffs’ expert Dr. Wesley Williams, a nuclear engineer with an expertise in
two-phase fluid flow and thermal fluid systems, calculated that 2,703 gallons of black liquor were
released during the incident. 3 R. Doc. 262 at 8. Dr. Williams determined that the release occurred
in two phases, one vapor and one liquid. He calculated that 1,830 gallons of vapor were released,
followed by 873 gallons of liquid, with a margin of error of plus or minus 20%. R. Doc. 262 at 9.
Defendant disagrees with Dr. William’s calculations. 4
By Defendant’s account, 773 gallons of black liquor were released during the incident. R.
Doc. 263 at 16. This figure was determined by Dr. Timothy Myer, who fundamentally disagrees
with Dr. Willams’ two-phase approach. Dr. Myer opined that the headspace of the evaporator
contained steam, which, when the sight glass failed, escaped into the atmosphere, carrying with it
Dr. Williams assigned a 20% margin of error to his calculation. Accordingly, he determined that the
minimum volume released was 2,160 gallons, and that the maximum was 3,240 gallons. R. Doc. 262 at 9.
4
Defendant argues that Dr. William’s methodology and conclusions are fundamentally flawed because Dr.
Williams lacked expertise in the paper-making process and the contents of black liquor and failed to account for the
fact that steam inevitably accounted for at least half of the released material. R. Doc. 263 at 17-19. Defendant explains
that steam, which is not harmful, made up at least half of the material released by mass, and was collected in the
headspace of the dome as the black liquor was heated in the distribution pan at the bottom of the effect. R. Doc. 263
at 18. Lastly, Defendant explains that Dr. Williams’ account is inconsistent with uncontroverted facts. In particular,
Defendant argues there is no evidence to support a two phase process as described by Dr. Williams, particularly
because it rests on the assumption that the entire effect was filled with black liquor liquid at the time of the release. R.
Doc. 263 at 20. Defendant notes that “[t]his presumption is flatly disproved by the level sensors in the PI data, which
show that Effect Three was not filled with black liquor.” R. Doc. 263 at 20. According to Defendant, the PI data does
not reflect any significant change in the black liquor liquid level in the evaporator during the incident. R. Doc. 263 at
20. Overall, Defendant argues that because there is no evidence to support a “liquid only” phase of release, this portion
of Dr. Williams’ calculation, representing 873 of the 2,703 gallons, or 32%, is inaccurate and demonstrates that his
entire opinion is “vastly overstated.” R. Doc. 263 at 21. Defendant also argues that Dr. Williams overestimated the
length of the release event. R. Doc. 263 at 21.
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droplets of black liquor. R. Doc. 263 at 24. According to Dr. Myer, the plume’s buoyance indicates
that it constituted at least 50% by mass steam and 50% by mass black liquor. R. Doc. 263 at 24.
Lastly, Defendant explains that eliminating the liquid-only phase of Dr. Williams’ calculation and
reducing it by 50% to account for the portion of the release that was entirely harmless steam results
in an estimate of 913 gallons released, which is similar to Dr. Myer’s calculation of 773 gallons.
R. Doc. 263 at 25. Plaintiffs’ expert Dr. Williams disagrees with Dr. Myer’s calculations. 5
The Court is convinced that approximately 773 gallons of black liquor were released during
the release event. Plaintiffs’ calculation depends on a two-phase process and Defendant
successfully demonstrated the flaws in this theory at the hearing. After considering all the evidence
regarding the paper-making process and the capacity and operation of the evaporators, the Court
concludes that a large quantity of steam was contained in the third effect evaporator before the
sight glass failed. As Dr. Myer, an expert in chemical engineering and the paper-making process,
explained, the evaporator functions by heating black liquor in the base of the evaporator, allowing
steam and particles to collect in the headspace of the evaporator. Accordingly, Dr. Myer explained
that Dr. William’s two-phase release, first purely vapor and the second purely liquid, erroneously
relied on the assumption that the entire effect was filled with black liquor liquid at the time of the
release. Hearing trans. at 97:4-11. However, the Court notes that the level sensors in the PI data
indicated that at the time of the release, the evaporator was not full of black liquor. Hearing trans.
at 97:4-11. Therefore, Defendants successfully demonstrated a lack of evidence to support Dr.
Williams’ theory regarding a “liquid only” phase of the release. Finding Dr. Myer’s credible and
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Dr. Myers used a Homogenous Equilibrium Model (“HEM”), which assumes a single-phase flow. Dr.
Williams testified that the accident involved a two-phase flow. Further, Dr. Williams testified that a HEM analysis
assumes that the discharge flows through a long nozzle, and that the nozzle in question, which was three inches long
and five inches in diameter, “does not meet this requirement.” R. Doc. 262 at 10.
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his testimony thorough and convincing, the Court will adopt his calculations with respect to the
volume of the release.
3. Geographic Area of Release
The parties also disagree about the geographic scope of the release. Plaintiffs urge the Court
to adopt the geographic scope modeled by either AERMOD or HYSPLIT, as both are valid models
that produced similar results. R. Doc. 262 at 10. Plaintiffs’ expert Dr. Campbell performed
HYSPLIT ensemble modeling for four different proposed volumes of black liquor: 2,400 gallons
(the amount initially reported by Defendant to the LDEQ), 2,160 gallons (the minimum calculated
by Dr. Williams), 3,240 gallons (the maximum calculated by Dr. Williams), and 697 gallons (the
amount initially proposed by IP). Based on this ensemble, he concluded that the most likely
geographic perimeter of the release could be depicted as the area within the Intersection of
Highway 21 and Highway 436, the Pearl River Waterway, Davenport Avenue, and Powerline
Road. Plaintiffs explain that although “the volume released did not significantly impact the
perimeter or geographic footprint of the release,” the varying proposed volumes did dramatically
affect the amount of deposition of black liquor over any particular area. R. Doc. 262 at 11.
Alternatively, Plaintiffs stand by the AERMOD scientific model employed by defense
expert Mr. Hoffnagle. Defendant also urges this Court to adopt the geographic scope modeled by
AERMOD. The AERMOD model uses isopleths to represent the areas in which an equal incidence
of airborne concentration and deposition of black liquor occurred. However, the parties disagree
as to which isopleths should be used to restrict the class definition. Defendants argue that the class
definition should be based on the area in which airborne concentrations of black liquor were at
least 1 mg/m3, because Defendant’s expert toxicologist, Dr. Millner, testified that any
concentrations of less than 1 mg/m3 “were de minimus and would not be expected to cause any
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injury.” 6 R. Doc. 263 at 3. Additionally, Dr. Millner explained that airborne concentrations, not
deposition rates, is the relevant metric for analyzing potential health risks. R. Doc. 263 at 3.
Plaintiffs argue that Mr. Hoffnagle’s model is misleading because he “severely limited the
perimeters of the AERMOD model he presented to the Court but readily admitted that the
‘Unabridged’ version of the AERMOD model would have projected additional Black Liquor
deposition to the North, South, East, and West.” R. Doc. 262 at 12-13. Indeed, Mr. Hoffnagel
testified that although AERMOD modeled black liquor deposition to the south of the release point,
“AERMOD is wrong for putting in plume meander in this case.” Hearing trans. at 190:24. He
explained that the plume moved “to the north, with no airborne concentrations or surface
depositions to the south.” R. Doc. 263 at 6. Plaintiffs disagree, arguing that there are fact witnesses
who testified to witnessing black liquor deposition south of the mill and that AERMOD itself
reflected southward deposition that Mr. Hoffnagel simply chose to ignore.
The Court concludes that AERMOD model is most representative of the release event.
AERMOD is a model developed by the American Meteorological Society and the Environmental
Protection Agency. R. Doc. 262 at 12. Unlike HYSPLIT, the AERMOD model incorporated both
surface weather conditions from the IP weather station and the vertical conditions from the Slidell
weather balloon. R. Doc. 262 at 12. Furthermore, Dr. Campbell testified that Mr. Hoffnagel’s
“unabridged” AERMOD model “was very consistent and is comparable with the HYSPLIT
modeling of the Most Likely Geographic Boundaries of the Release.” R. Doc. 262 at 13.
However, the Court does not accept the AERMOD model as presented by Mr. Hoffnagle.
Mr. Hoffnagle testified that AERMOD erroneously shows deposition of black liquor to the south
According to Dr. Millner, “only those people situated within the yellow boundary of [Mr. Hoffnagle’s]
isopleths during the release event would have exposures sufficient to possibly cause health effects, and even those
effects would have only been transient.” R. Doc. 263 at 5.
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of the third effect evaporator. He attributes this to AERMOD’s unchangeable assumption that there
were brief moments of relative calm that would cause the plume to temporarily flatten, creating a
wide, round area of black liquor above and surrounding the release site. According to Mr.
Hoffnagle, this southward deposition is impossible because there were no moments of relative
calm or southward-blowing winds that could produce “plume meander.” Mr. Hoffnagel explained
that the weather data collected at the IP weather station show consistent winds blowing from south
to north at the time of the release, and that “occasional light winds from other directions were
infrequent, brief, and without consequence.” R. Doc. 263 at 6. These infrequent winds “did not
last for more than 30 seconds before returning to the general south to north direction and the total
time for any wind blowing from north to south was less than 15 seconds for the entire 38-minute
Release Event.” R. Doc. 263 at 6. Accordingly, Mr. Hoffnagel excluded this portion of
AERMOD’s model from his expert report.
Nevertheless, the Court notes that there is evidence, from both expert and fact witnesses,
that black liquor was deposited south of the mill. R. Doc. 262 at 18. Dr. Fitzpatrick, Plaintiffs’
expert in atmospheric science and meteorology, testified that that at 7:13 p.m. and again at 7:15
p.m., the wind changed speed and direction, such that the plume was blown momentarily to the
southeast of the evaporators. R. Doc. 262 at 19. Dr. Fitzpatrick testified about “brief moments” of
winds “from the northwest, the west, southwest, southeast, and northeast.” R. Doc. 262 at 19. Data
from the IP weather station confirms a 180 degree change in wind direction at 7:14 p.m. that caused
winds to blow from north/northwest to south/southeast. R. Doc. 262 at 20. Major Troy Tervalon
testified that there was black liquor on his windshield while driving southwest of the mill, and four
other witnesses filed affidavits representing that they witnessed black liquor deposition while
attending a ballgame at the Avenue B ballpark southwest of the Mill at the time of the incident. R.
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Doc. 262 at 20-21. The Court is not willing to discount or discredit this testimony at this stage of
the litigation.
Considering the unabridged AERMOD model and the testimony of fact witnesses who
were south of the third effect evaporator at the time of the release, the Court concludes that
individuals who could potentially have viable claims against Defendant must have been in the area
within the orange isopleth on the AERMOD model depicting deposition. R. Doc. 227-16 at 10.
This area is substantially larger than the area in which airborne concentrations were at least 1
mg/m3, the maximum area in which individuals could have experienced adverse health effects.
The Court recognizes that airborne concentrations, not deposition rates, are the relevant metric for
physical injuries. Nevertheless, the case also involves property damage claims, R. Doc. 1-2 at 30,
and nuisance claims, for which the relevant metric is clearly deposition rates. At this stage, the
Court is merely trying to determine the maximum size of the class, rather than test the viability of
individual claims. Accordingly, using a larger geographic footprint based on deposition rates is
preferable to the smaller scope produced by considering airborne concentration alone. Therefore,
the relevant geographic scope in this case can be defined by reference to streets as follows:
•
•
•
•
Northern Boundary: Derbigny Street to Austin Street, north on Austin Street to
Bayer Street, east on Bayer Street
Eastern Boundary:
Columbia Street to Saba Street, east on Saba Street to
Florence Avenue, south on Florence Avenue to North Avenue, east on North Ave
to Ruby Road, south on Ruby Road
Southern Boundary: St Lewis Street to New Orleans Street to West 12th Street
Western Boundary: Avenue F to Willis Avenue to Madison Street
These boundaries are depicted on the image below.
15
The Court believes that the rectangle formed by these boundaries represents the maximum
area in which any plaintiff with viable claims against IP must have been located, or had property
located, at the time of the release. This perimeter encompasses the area in which the deposition of
black liquor were at least .01 grams per square meter. At the hearing, Defense counsel illustrated
that this is the equivalent of one pushpin spread out over 100 square meters. Hearing trans. at
212:5-7. The Court concludes that this represents the maximum range in which any individual
16
could have suffered cognizable property damage and nuisance claims. The Court further notes that
this perimeter aligns with the testimony of fact witnesses such as Major Tervalon, who testified
that while he was on Avenue H between 5th and 6th Street, he “didn’t notice any [black liquor] on
the street.” Hearing trans. at 329:13–19. To the extent the class definition captures individuals
who were not actually harmed by the release, the parties will have the opportunity to challenge
those claims at later stages in this litigation.
V.
CONCLUSION
Considering the foregoing,
IT IS ORDERED that Plaintiffs’ Motions to Exclude Defendant’s Experts Gale
Hoffnagle, R. Doc. 234, and Glenn Millner, R. Doc. 235, are DENIED. 7
IT IS FURTHER ORDERED that Defendant’s Motion to Exclude Plaintiffs’ Expert
Patrick Campbell, R. Doc. 228, is DENIED. 8
IT IS FURTHER ORDERED that Defendant’s Motion to Redefine the Class Definition,
R. Doc. 227, is GRANTED in part and DENIED in part. 9 It is GRANTED to the extent Defendant
seeks to redefine the class. It is DENIED with respect to the specific definition Defendant
proposes.
IT IS FURTHER ORDERED that the Class Definition be redefined as:
All persons or entities who were physically present or owned property within the following
boundaries on June 10, 2015 and who sustained injuries or damages as a result of the
discharge of “black liquor” at the Bogalusa Paper Mill owned by the International Paper
Company:
This ruling also applies to Plaintiffs’ identical Motions to Exclude Defendant’s Experts Gale Hoffnagle
and Glenn Millner in Sanders et al v. International Paper Company, No. 16-12567, R. Docs. 168, 169, and in
Jarrell et al v. International Paper Company, No. 16-12793, R. Docs. 177, 178.
8
This ruling also applies to Defendant’s identical Motions to Exclude Plaintiffs’ Expert Patrick Campbell
in Sanders et al v. International Paper Company, No. 16-12567, R. Doc. 162, and in Jarrell et al v. International
Paper Company, No. 16-12793, R. Doc. 171.
9
This ruling also applies to Defendant’s identical Motions to Redefine the Class Definition in Sanders et al
v. International Paper Company, No. 16-12567, R. Doc. 161, and in Jarrell et al v. International Paper Company,
No. 16-12793, R. Doc. 170.
7
17
•
•
•
•
Northern Boundary: Derbigny Street to Austin Street, north on Austin Street to
Bayer Street, east on Bayer Street
Eastern Boundary:
Columbia Street to Saba Street, east on Saba Street to
Florence Avenue, south on Florence Avenue to North Avenue, east on North Ave
to Ruby Road, south on Ruby Road
Southern Boundary: St Lewis Street to New Orleans Street to West 12th Street
Western Boundary: Avenue F to Willis Avenue to Madison Street
New Orleans, Louisiana this 9th day of March, 2020.
____________________
Eldon E. Fallon
United States District Judge
18
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