Simoneaux et al v. E.I. du Pont de Nemours & Company

Filing 85

RULING denying DuPont's 53 Motion for Summary Judgment and Simoneaux's 56 Motion for Partial Summary Judgment. Signed by Judge Shelly D. Dick on 11/10/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JEFFREY M. SIMONEAUX

CIVIL DOCKET NUMBER

VERSUS

12-219-SDD-SCR

E.I. du PONT de NEMOURS & COMPANY

RULING
Before the Court are two pending summary judgment motions. Relator,
Jeffrey M. Simoneaux (“Simoneaux”, has a filed a Motion for Partial Summary
Judgment,1 to which Defendant, E.I. DuPont de Nemours & Company (“Dupont”)
has filed an opposition.2 DuPont has also filed its own Motion for Summary
Judgment3 that Simoneaux has opposed.4 Each party has filed reply briefs in
support of their respective motions.5 For the following reasons, both motions
shall be denied.
I.

INTRODUCTION AND RELEVANT FACTUAL AND PROCEDURAL HISTORY
DuPont’s Burnside facility manufactures and/or processes sulfur trioxide (SO3),

sulfur dioxide (SO2), and sulfuric acid. Simoneaux, a former employee of DuPont’s
Burnside facility, initiated this lawsuit against DuPont under the qui tam provision of the
False Claims Act (“FCA”). Simoneaux has claimed that DuPont failed to comply with its
obligation under 15 U.S.C. § 2607 of the Toxic Substances and Control Act (“TSCA”) to
1

Rec. Doc. 56.
Rec. Doc. 63.
3
Rec. Doc. 69.
4
Rec. Doc. 62.
5
Rec. Doc. 73 and Rec. Doc. 69.
2

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report the release of SO2, SO3, and sulphuric acid at its Burnside Plant to the
Environmental Protection Agency (EPA).
It is not in dispute, that during the relevant time period for which Simoneaux
bases his claim, DuPont has had periodic leaks of SO2, SO3, and sulphuric acid from
its process equipment at its facility in Burnside, Louisiana. The parties also concur that
“an exposure to sulphur dioxide, sulphur trioxide or sulphuric acid in sufficient dose and
duration can cause human health effects, and that those effects have been known for
years generally in the scientific community.”6 Furthermore, SO2 and SO3 are known to
be carcinogenic and are listed under the TSCA.
Both parties have filed what the Court deems to be cross motions for summary
judgment 7 disputing whether DuPont had “substantial risk information” so as to trigger
its reporting obligation under Section 8(e) of the TSCA. In addition, DuPont reasserts is
its previous summary judgment argument that that that Simoneaux’s FCA retaliation
claim be dismissed because he cannot satisfy his burden of demonstrating that he
made DuPont aware of his concern about possible fraud.

II.

LAW

a. Summary Judgment Standard
The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”8

“When assessing whether a dispute to any

material fact exists, we consider all of the evidence in the record but refrain from

6

Rec. Doc. 53-1, p. 7.
Rec. Doc. 53; Rec. Doc. 56.
8
Fed.R.Civ.P. 56(a)(West 2014).
7

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making credibility determinations or weighing the evidence.”9 A party moving for
summary judgment “must ‘demonstrate the absence of a genuine issue of
material fact,’ but need not negate the elements of the nonmovant’s case.”10 If
the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the
existence of a genuine issue concerning every essential component of its
case.’”11 However, the non-moving party’s burden “is not satisfied with some
metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.”12
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’”13 All
reasonable factual inferences must be resolved in favor of the nonmoving party.14
Nevertheless, “[t]he Court has no duty to search the record for material fact
issues. Rather, the party opposing the summary judgment is required to identify
specific evidence in the record and to articulate precisely how this evidence
9

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir.
2008)(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000)).
10
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (5th Cir. 2003)(quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, at 323-25, 106 S.Ct. at 2552).
11
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)(internal quotations omitted)).
12
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(internal citations omitted)).
13
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). See also,
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (“If a
rational trier could not find for the nonmoving party based on the evidence presented, there is no genuine
issue for trial.”).
14
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
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supports his claim.”15

“Conclusory allegations unsupported by specific facts,

however, will not prevent the award of summary judgment; ‘the plaintiff [can]not
rest on his allegations … to get to a jury without any “significant probative
evidence tending to support the complaint.”’”16 Ultimately “[t]he substantive law
dictates which facts are material.”17
b. False Claims Act and the TSCA
In this case, Simoneaux has asserted a “reverse false claim” under the False
Claims Act (“FCA”). Section 3729(a)(1)(G) of the FCA imposes liability on any person
who:
knowingly makes, uses or causes to be made or used, a false record or
statement material to an obligation to pay or transmit money or property to
the Government, or knowingly conceals or knowingly and improperly
avoids or decreases an obligation to pay or transmit money or property to
the Government.18
For purposes of the FCA, the term “obligation” is defined as “an established duty,
whether or not fixed, arising from … statute or regulation.”19 The term knowingly” is
also defined under the FCA as follows:
(1) the terms ‘knowing’ and ‘knowingly’—
(A) mean that a person, with respect to information-(i)
has actual knowledge of information;
(ii)
acts in deliberate ignorance of the truth or falsity of the
information; or
(iii)
acts in reckless disregard of the truth or falsity of the
information; and
(B) require no proof of specific intent to defraud.20
15

RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(citing Ragas v. Tenn. Gas
Pipeline, Co., 136 F.3d 455, 458 (5th Cir. 1998)).
16
Nat’l. Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
17
Canady v. Bossier Parish School Bd., 240 F.3d 437, 439 (5th Cir. 2001).
18
31 U.S.C. §3729(a)(1)(G).
19
31 U.S.C. §3729(b)(3).
20
31 U.S.C. §3729(b).
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Here, Simoneaux contends that DuPont had a statutory duty arising under Section 8(e)
of the TSCA, which provides:
Any person who manufactures, processes, or distributes in commerce a
chemical substance or mixture and who obtains information which
reasonably supports the conclusion that such substance or mixture
presents a substantial risk of injury to health or the environment shall
immediately inform the Administrator [of the EPA] of such information
unless such person has actual knowledge that the Administrator has been
adequately informed of such information.21
According to Simoneaux, DuPont had a duty to report the sulphuric gas leaks at its
Burnside facility to the EPA, but instead, DuPont knowingly concealed and acted in
deliberate ignorance of and in reckless disregard of the truth or falsity of the “Substantial
Risk Information” for over two years, thereby avoiding or decreasing its monetary
penalties owed to the Government.
III.

ANALYSIS
The parties are in agreement that Simoneaux must satisfy each of the following

prima facie elements to establish a violation under Section 8(e) of the TSCA: (1) DuPont
manufactured, processed or distributed in commerce, a chemical substance or mixture;
(2) DuPont obtained information “which reasonably supports the conclusion that such
substance or mixture presents a substantial risk of injury to health or the environment”;
and (3) DuPont had an obligation to and failed to immediately inform the EPA
Administrator of such information. The parties are in agreement that the first prima facie
element has been satisfied. It is the second element that has become the bone of
contention between parties’ and the central focus of their respective summary judgment
motions.
21

15 U.S.C. §2607(e).

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1. Substantial Risk Information
The parties are at odds as to whether DuPont had Substantial Risk Information to
trigger its reporting obligation under the TSCA. Simoneaux argues that “it is clear that
DuPont possessed Substantial Risk Information and intentionally ignored that
information in an effort to decrease its monetary obligations to the United States.”22 In
support of his stance, Simoneaux points to evidence showing that (1) DuPont has been
operating with continuous SO2, SO3, and sulphuric acid gas leaks over the last two
years, (2) DuPont employees and at least one citizen made complaints about gas leaks
at the Burnside facility; and (3) individuals working on or nearby the Burnside facility
sustained various injuries related to sulfuric gas leaks.
DuPont contends that there is no evidence in this case upon which a jury could
conclude that DuPont’s releases actually contaminated the environment.

DuPont

further argues that Simoneaux has no evidence that any of the releases at issue
contained the necessary dosage, or existed for the necessary duration of time to cause
the scientifically known health effects related to exposure to SO2, SO3, and sulphuric
acid.23

Therefore, DuPont contends that Simoneaux cannot satisfy his evidentiary

burden of proof or make the necessary showing that DuPont had Substantial Risk
Information in its possession.

22

Rec. Doc. 56-2, p. 8.
DuPont’s ultimate position is that it had no obligations under the TSCA Section 8(e) because it did not
measure the concentration levels of the chemical releases on its Burnside property.

23

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While both parties cite to various cases and regulatory guidance, the Court finds
that the In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation (herein
after “MTBE”) decision is most instructive.24
2. The MTBE Decision
In the MTBE case, the plaintiffs sued Exxon Mobil Corporation and Lyondell
Chemical Company for violating section 8(e) of the TSCA for failure to inform the EPA
of “information which reasonably supports the conclusion” that MTBE or releases of
gasoline with MTBE into the environment present “a substantial risk of injury to health or
the environment.25” In particular, plaintiffs filed suit against the defendants to compel
them to provide the EPA with four types of information, including “notification whenever
defendants [knew] that a substantial amount of gasoline with MTBE has been spilled,
leaked or otherwise released into the environment (e.g., discovery of a leaking
underground storage tank.).”26

The MTBE court denied the defendants motion for

summary judgment on this particular claim.27
In its analysis, the MTBE court emphasized that “[t]he essential aspect of
plaintiffs’ section 8(e) claim involves proving that defendants have information that
should be provided to the EPA.”28 In reaching a determination of whether this burden

24

In re Methyl Tertiary Butyl Ethyl (“MTBE”) Products Liability Litigation, 559 F.Supp.2d 424 (S.D.New
York 2008).
25
Id. at 426.
26
Id.
27
The MTBE court denied the defendants’ summary judgment motion to the extent the claims were based
on “(1) notice about releases of gasoline with MTBE into the environment, (2) information generated once
the gasoline release has been discovered, and (3) studies about MTBE’s effect on the taste and odor of
water.” But the court granted summary judgment “with respect to any information that plaintiffs believe a
reasonable manufacturer would have generated to determine the potential liability for MTBE
contamination in ground water.” Id. at 442.
28
Id. at 435.
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has been satisfied, the court identified two questions that a jury must resolve when
presented with a claim arising under Section 8(e) of the TSCA:
First, have the plaintiffs proven by a preponderance of the evidence that
defendants ‘obtain[ed] information which reasonably supports the
conclusion that such substance or mixture [i.e., MTBE or gasoline with
MTBE] presents a substantial risk of injury to health or the environment?
Second, if so, have the defendants proven by a preponderance of the
evidence that they had ‘actual knowledge that the [EPA] Administrator has
been adequately informed of such information?’29
The MTBE defendants argued that releases of gasoline with MTBE were excluded from
disclosure to the EPA under federal law, including the TSCA.

The MTBE court,

however, did not agree.
The MTBE court explained that such arguments “ignore[d] the plain language of
the TSCA. Whether information should be reported under section 8(e) depends on
whether the information ‘reasonably supports the conclusion that such substance or
mixture presents a substantial risk of injury to health or the environment….’”30
Acknowledging the broad definitions of environment under the TSCA, the MTBE court
concluded that “a reasonable jury could easily find that spills, leaks or releases of
gasoline containing MTBE present a ‘substantial risk of injury’ to ‘water’ as well as ‘all
living things’ and must be reported to the EPA.”31 The MTBE court further emphasized
how extraneous regulations and statutes “are irrelevant to a determination of whether
defendants ‘have obtain[ed] information which reasonably supports the conclusion that
such substance or mixture presents a substantial risk of injury to health or the
environment.’”32

29

Id.
Id. at 436.
31
Id.
32
Id. at 437.
30

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Considering the MTBE decision in light of the evidence submitted by the parties
on summary judgment, the Court finds that there is a genuine issue of material fact as
to whether DuPont had substantial risk information in its possession so as to trigger its
reporting obligation under section 8(e) of the TSCA. Contrary to DuPont’s position
otherwise, the jury will not be required to determine whether actual contamination
occurred as a result of the gas releases at the Burnside facility. Rather, the jury will be
asked to determine whether DuPont possessed information which “reasonably supports
the conclusion” that its SO2, SO3, and sulphuric acid gas leaks “present[ed] a
substantial risk of injury to health or the environment.”

Simoneaux has offered

evidence, including reports of gas leaks by the general public and DuPont employees,
injuries sustained by workers on and nearby DuPont’s Burnside facility, and DuPont’s
practices for detecting and repairing gas leaks. The Court finds that collectively this
information creates a genuine issue of material fact as to whether DuPont had
Substantial Risk Information in its possession. Furthermore, while precise dosage or
concentration data is unavailable, this, in and of itself, does not warrant summary
judgment on DuPont’s behalf. A reasonable trier of fact could determine, based on
certain physical human reactions to exposure in combination with expert testimony, that
a certain level of gas was present such that DuPont had Substantial Risk Information in
its possession and either intentionally ignored or concealed this information or acted
with deliberate indifference so as to avoid its obligation under the TSCA.
Ultimately, the evidence relied upon by the parties in support of their respective
motions reinforces the Court’s ultimate finding that there is a genuine issue of material
fact as to whether DuPont had Substantial Risk Information in its possession so as to

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trigger its reporting requirements under section 8 of the TSCA. The Court further finds
that a genuine issue of material fact exists as to whether DuPont acted with deliberate
ignorance or with reckless disregard of the truth or falsity of the Substantial Risk
Information. Additionally, certain credibility determinations will need to be made when
weighing the testimony of the parties’ witnesses, which is best reserved for the trier of
fact. Accordingly, the parties’ motions for summary judgment shall be denied on these
grounds.
3. Simoneaux’s Retaliation Claim
DuPont has also re-urged its argument that Simoneaux’s retaliation claim should
be dismissed on summary judgment. The Court recognizes that successive motions for
summary judgment are generally disfavored unless it is based on an expanded record.33
However, the Fifth Circuit has explained that whether successive motions for summary
judgment should be permitted “best lies at the district court’s discretion.”34 While it is
true that DuPont’s prior summary judgment motion was dismissed in its entirety and the
record before the Court has not been expanded, the Court acknowledges that it never
reached the merits of whether Simoneaux could produce evidence showing that he
informed his employer about his concern that they were defrauding the government by
not reporting the gas leaks to the EPA.

After considering the evidence in the record

before it, the Court finds there are genuine issues of material fact that precludes
summary dismissal of Simoneaux’s retaliation claim. The record contains evidence that
could lead a reasonable trier of fact to find that Simoneaux put his employer, DuPont,
on notice about his concerns about the company’s failure to report the sulfuric gas leaks

33
34

Enlow v. Tishomingo County, Ms., 962 F.2d 501, 506 (5th Cir. 1992).
Id., at 507.

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as required by law to a federal agency, the EPA, and that he was concerned about
defrauding the Government. Accordingly, DuPont’s motion for summary judgment shall
be denied as to Simoneaux’s retaliation claim.
IV.

CONCLUSION
For the foregoing reasons, Simoneaux’s Motion for Partial Summary Judgment35

and DuPont’s Motion for Summary Judgment36 are hereby denied.
Signed in Baton Rouge, Louisiana, on November 10, 2014.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

35
36

Rec. Doc. 56.
Rec. Doc. 69.

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