Sanders et al v. International Paper Company et al

Filing 387

ORDER AND REASONS denying 284 Motion for Summary Judgment. Signed by Judge Eldon E. Fallon on 9/10/2021. (cwa)

Case 2:16-cv-12567-EEF-JVM Document 387 Filed 09/14/21 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRJCT OF LOUISIANA
SHIRLEY SLOCUM, ET AL.

CIYIL ACTION

VERSUS

NO. 16-12563

INTERNATIONAL PAPER COMPANY, ET AL.
DERRICK SANDERS, ET AL.

NO. l6-12567

VERSUS

INTERNATIONAL PAPER COMPANY, ET AL.
BRENT JARRELL, ET AL.
NO. t6-13793
VERSUS

INTERI{ATIONAL PAPER COMPANY, ET AL.
SECTTON

"L"

(1)

ORDER AND REASONS
Before the Court is Plaintiffs' Motion for Summary Judgment.r R. Doc. 359. Defendant
Intemational Paper Company ("IP") opposes the motion, R. Doc.371, and Plaintiffs replied, R.
Doc. 386. Having considered the parties' arguments and the relevant law, the Court now rules as

follows.

I.

BACKGROUNI)
This set ofcases arises out ofdamages allegedly sustained by Plaintiffs due to the discharge

of"black liquor" at the Bogalusa Paper Mill on June 10,2015. R. Doc. l-2 at 1. Plaintiffs assert
claims against Defendant, International Paper Company ("IP"), owner and operator of the Mill.

I ldentical motions were filed in the tfuee above-captioned consolidated cases. This Order refers to the record
document numbers in l6-12563 for simplicity.
1

Case 2:16-cv-12567-EEF-JVM Document 387 Filed 09/14/21 Page 2 of 6

Plaintiffs' theories of liability sound in negligence, strict liability, and nuisance. R. Doc. 1-2 at
21.
IP manufacture5 containerboard liner at the Mill, and black liquor is a byproduct of the
paper making process.2 Black liquor is typically recycled in evaporator tanks for repeated use in
the pulping process. On June 10, 2015, the sight glass on the dome ofthe 3'd Effect at the Bogalusa
Paper

Mill failed, which resulted in an offsite

release of steam and black

liquor. R. Doc. I -2 at 14.

Approximately 773 gallons of black liquor were released during the span of 38 minutes.3 Some of

the black liquor was dispersed beyond

Mill

property and came into contact with people and

property.a Plaintiffs contend that the dispersal of black liquor caused personal injury, property
damage and/or emotional distress, and argue Defendants are liable for Plaintiffs' damages. 1d at

16.

II.

PRESENT MOTIONS

Plaintiffs have filed a motion seeking summary judgment as to their claims under
Louisiana Civil Code Articles 667, 23i5,2317, and2317.l. R. Doc. 359. Plaintiffs contend that
the uncontroverted testimony of their experts, Michael D. Klein, P.E.,

CHMM, C.F.E.I. and Dr.

Thomas C. Shelton, Ph.D., P.E., as well as the consulting report of IP contractor Ivan Rogers,
regarding the preventative measures IP should have taken regarding the sight glass, proves the
essential elements

oftheir claims. Id. at 6. Plaintiffs further argue that Defendant's lack ofexpert

testimony is dispositive because issues related to mechanics and industry customs require expert
testimony. Id. at7-8.

In response, Defendant argues that Plaintiffs cannot meet their particularly heavy burden
on summary judgment here as both the moving party and the party who bears the burden ofproof

2

R. Doc. 434, Uncontested [ssues of Fact,

1

Id.1t6-t7.

!J

3

4\d.1t23.

2

Case 2:16-cv-12567-EEF-JVM Document 387 Filed 09/14/21 Page 3 of 6

at trial. R. Doc. 371. Defendant maintains that Plaintiffs' expert opinion testimony "does not
demonstrate there are no material facts in dispute," but rather, constitutes evidence that Plaintiffs
can put before the trier of fact at the appropriate time.

III.

LAW&ANALYSIS

a.

Summary Judgment Standard

Summary judgment is appropriate

if

the moving party can show "there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R.

CIV. P. 56(a). Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial
burden of "informing the district court of the basis for its motion, and identifying those portions

of

[the record] which

it

believes demonstrate the absence

of a

genuine issue

of

material

fact;'Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986); see also Klocke v. Watson,No.2010103, 2021

\\L

2351157 , at *4 (5th Cir. June 8, 2021).

"[I]fthe movant

bears the burden

ofproof

on an issue...he must establish beyond peradventure ail ofthe essential elements of the claim or
defense to wanant judgment in his favor." Fontenot v. Upjohn Co.,780 F.2d I 190, 1194 (5th Cir.

1986). Put differently, to obtain summary judgment, a plaintiff who bears tlle burden of proof

"must establish thereby the existence or nonexistence of enough of the essential elements of a
claim and its related defenses to permit disposition ofthe claim as a matter of law."

Id

The "beyond peradventure" standard imposes a "heavy" burden. Cont'l Cas. Co. v.

Fire & Marine Ins. Co., No.3:04-cv- 186GD,2007 WL2403656, at *10

St.

Paul

Q',I.D. Tex. Aug.23,

2007). The moving party must demonstrate that there are no genuine and material fact disputes
and that the party is entitled to summary judgment as a matter of law. See, e.9.,

Martin v. Alamo

Cmty. Coll. Dist.,353 F.3d 409, 412 (5th Cir. 2003). On such a motion, the Court will, again,

"draw all reasonable inferences in favor of the non-moving party." Chaplin v. Nations Credit
Corp.,307 F.3d 368, 372 (sth Cir. 2002).
3

Case 2:16-cv-12567-EEF-JVM Document 387 Filed 09/14/21 Page 4 of 6

b.

Discussion

Here, the thrust of Plaintiffs' argument is that that they are entitled to summary judgment
on their claims pursuant to Louisiana

Civil Code Articles

667

,2315, and 2317;2371 . I because IP

has not designated any expert to refute Plaintiffs' allegations of negligence.s R. Doc. 359-1. The

Court finds this argument rinpersuasive because Plaintiffs are both the movants and the party that
bears burden of proof at trial. Put differently, summary judgment as to

Plaintiffs negligence claims

is not warranted simply because Plaintiffs have offered expert opinion testimony in support

liability and IP

ofIP's

has not.

The Fifth Circuit has made clear that "the trier

of fact is not

bound by expert

testimony." First Am. Bankv. First Am. Transp. Title Ins. Co.,759 F.3d427,434 (sth Cfu. 2014)
(quoting Webster v. Offshore Food Serv., Inc., 434 F.2d 1191, 1193 (5th Cir.1970). "While the
court is not at liberty to disregard arbitrarily the unequivocal, uncontradicted and unimpeached
testimony of an expert witness, it may weigh the credibility of the witness and substitute its own
common-sense judgment for that of the experts.

factfinder at trial

will

Id

(citing Webster, 434 F.2d at 1193). The

evaluate the credibility of Plaintiffs' witnesses, the weight of Plaintiffs'

evidence, and the merits of IP's arguments, and decide whether Plaintiffs have carried their burden

ofproof and of persuasion.
Moreover, because of the peculiarly elusive nature ofthe term "negligence," "[t]he use

5

of

The Court has repeatedly explained that Plaintiffs' various statutory claims all require a showing ofnegligence.
Article 2315 ofthe Louisiana Civil Code establishes a general cause ofaction for negligence: "[e]very act whatever
ofman that causes damage to another obliges him by whose fault it happened to repair it." La. C.C. art. 2315 tn
determining whether to impose liability under Article 23 15, Louisiana courts employ a duty-risk analysis. Audler v.
CBC Innovis Inc., 519 F.3d 239,249 (5th Cir. 2008). Similarly, Louisiana Civil Code Articles 667-669 are the
source ofnuisance actions in Louisiana and after the 1996 amendments, require a showing ofnegligence for a claim
of damages. Alford v. Anqdarka E& P Onshore LLC, No. CIV.A. l3-5457, 2015 WL 471596, at *9 (E.D. La. Feb. 4,
2015).5 Lastly, Article 23 l7 ofthe Civil Code imposes liability only if the o\.r'ner or custodian knew or should have

known ofth€ defect and failed to use reasonable care to prevent the damage. La. C.C. arts.2317 ,2317.l; see ulso
Cormier v. Dolgencorp,lnc., 136 F. Ap/x 62'7,62'7-28 (5th Cir. 2005).

4

Case 2:16-cv-12567-EEF-JVM Document 387 Filed 09/14/21 Page 5 of 6

surnmary judgment is rarely appropriate in negligence ... cases, even where the material facts are

not disputed." Perry v. Zurich Am. /ns. Co., No. CV 18-4185, 2019 WL 4257256, at *3 (E.D. La.
Sept. 9, 2019). Courts generally agree that claims that require the factfinder to determine the
reasonableness of the acts and conduct of the parties under all the facts and circumstances

ofthe

case cannot ordinarily be disposed of by summary judgment. Moore v. Louisiana Dep't of Pub.
Safety

& Corr., No. CIV.A. 99-1108, 2002 WL

1791996, at *2 (E.D. La. Aug. 5,2002) (citations

omitted).
Lastly, while some key facts sunounding the incident are undisputed, genuine issues of
material fact remain unresolved, including whether IP knew or should have known that a break in
the sight glass on the dome of the 3'd Effect of the Evaporator was imminent and whether IP knew
or should have known that a break in the sight glass on the dome ofthe 3'd Effect ofthe Evaporator

would result in an offsite release ofthe material contained in the Effect.6

In view of these factual issues, Plaintiffs have not met their burden to establish "beyond
peradventure" all elements of their claims. Fontenot v. UpjohnCo.,780 F.2d 1190,

ll94(5thCir.

1986). IP faces a significant hurdle at trial based on the undisputed historical facts before the Court,

but factual issues remain to be resolved by the factfinder with assistance from experts. Summary

judgment on Plaintiffs' negligence claims under La. C.C. arts. 667,2315,2317, and,2317.1,
therefore, is inappropriate at this time.

Iv.

CONCLUSION
For the foregoing reasons,

IT IS

ORDERED that the motion for summary judgment, R. Doc. 359, is hereby

DENIED.
New Orleans, Louisiana, this lOth day of September, 2021.
6

l{1.]fi 5-6.

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LINITED ST TES DISTRICT

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