Albert et al v. Axiall Corp et al

Filing 14

MEMORANDUM RULING: On 2/15/2015, defendant Axiall Corp filed a Notice of Removal, removing the instant action on grounds that the requirements for federal subject matter jurisdiction based on diversity of citizenship under 28 U.S.C § 1332 are met. Before the Court is 7 Motion to Remand filed by the plaintiffs. For the reasons stated above, the plaintiffs' 7 Motion to Remand is hereby DENIED. Signed by Magistrate Judge Kathleen Kay on 9/24/2015. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

SHIRLEY WILLIAMS ALBERT, ET AL

:

DOCKET NO. 2:15-cv-438

VERSUS

:

JUDGE MINALDI

ALXIAL CORP., ET AL.

:

MAGISTRATE JUDGE KAY

MEMORANDUM RULING

On February 25, 2015, defendant Axiall Corp. filed a Notice of Removal in this court
removing the instant action on grounds that the requirements for federal subject matter jurisdiction
based on diversity of citizenship under 28 U.S.C § 1332 are met. Before the Court is a Motion to
Remand filed by the plaintiffs. For the reasons stated below the plaintiffs’ motion is DENIED.
I.
FACTS & PROCEDURAL HISTORY
This is a negligence suit arising from an explosion and resulting fire alleged to have
occurred at a refinery owned and operated by Axiall Corp. in Westlake, Louisiana. Doc. 1, att. 1,
pp. 2-3. The incident allegedly caused the release of toxic chemicals, gases, and smoke into the
air which affected the surrounding area. Id. Plaintiffs are numerous Louisiana residents who claim
that they were exposed to the toxic release and that various injuries have resulted. Id. at p. 1.
Plaintiffs filed a petition in state court alleging negligence and seeking damages against two
defendants, Axiall Corp., a foreign corporation and Eagle U S 2 LLC, an entity whose sole member
is Eagle Spinco, Inc., a Delaware corporation with its principal place of business in Georgia. Id.
at pp. 1-2.

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While their petitions sets forth a plethora of injuries and resulting damages, most relevant
for our purposes here is the claim that plaintiffs suffered “past, present, and future increased risk
of contracting life threatening disease and/or illness.” Id. at pp. 8-9. As a result, plaintiffs state that
pre-existing medical monitoring procedures designed to afford early detection of the various
diseases associated with the chemical exposures alleged are necessary and that they “are entitled,
as part of the damages for which the Defendants are liable, to have a fund established to provide
for these medical monitoring programs.” Id.
Also included in the petition is a paragraph stating “that the total damages sustained and
sought to be recovered by each Petitioner…do not exceed $74,900.00…[and]…[m]oreover each
petitioner specifically waives, renounces, and foregoes that portion of any judgment …for such
damages…in excess of the stipulated recovery…” Doc. 1, att. 1, pp. 9-10. Specifically referenced
in the aforementioned paragraph and separately attached to the petition are nine, pre-removal (one
per plaintiff) “Affidavit[s] And Stipulation[s]” containing the following language:
I stipulate that my damages in the foregoing Petition do not exceed $74, 900.00 nor
do I seek to recover damages in excess of $74,900.00, exclusive of interest and
costs… Moreover, I expressly waive, renounce, and forgo any portion of any
judgment that may be rendered…in my favor…in excess of $74,900.00.
See Id. at pp. 15-23. The plaintiffs each signed their respective affidavits and stipulations before
two witnesses. Id.
Axiall removed the case to this court asserting that the parties are completely diverse and
that the “gravity and quantity of the injuries and damages alleged make it facially apparent that the
amount in controversy exceeds $75,000.” Doc. 1, p. 4. With respect to the stipulations plaintiffs
have provided, Axiall argues that the affidavits address only damages and do not limit any
injunctive relief they seek. Id at pp. 11-12. The defendant further asserts that the plaintiffs’ claim
for “medical monitoring” is injunctive in nature and is thus not covered by the stipulations. Axiall
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contends that the amount in controversy is met because the plaintiffs’ damages are limited to
$74,900.00 and their medical monitoring claim (injunctive relief) amounts to an undetermined sum
that, for various reasons, would far exceed the $100.01 necessary to establish our jurisdiction over
this matter. Id. at pp. 12-16.
In support of remand, the plaintiffs rely on their pre-removal affidavits arguing that they
have legally bound themselves to damages under $75,000. Doc. 7, att.1, pp. 4-5. They further
contend that their medical monitoring claims are not injunctive relief but are compensable
“damages” under Louisiana law, and that they are therefore fully covered by the allegedly binding
stipulations. See Id. at pp. 5-12.
On June 30, 2015, a hearing was held before this court during which both parties provided
oral arguments largely reiterating those made in brief. We have taken all of the arguments into
consideration and we now rule on the motion.
II.
LAW & ANALYSIS
The burden of proof for establishing federal jurisdiction is on the party seeking removal.
Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). Under 28 U.S.C. § 1441, “any
civil action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such action is pending.” 28 U.S.C.
§ 1441(a). If removal is based on diversity of citizenship, the action is removable only if the
amount in controversy exceeds $75,000, there is complete diversity, and “none of the parties in
interest properly joined and served as defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b).

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Since complete diversity clearly exists in this case and the plaintiffs do not dispute the
issue, the questions before us are first, whether the plaintiffs’ pre-removal stipulations are
sufficiently binding to limit their total recovery to an amount less than the jurisdictional threshold,
and second, if not, whether Axiall has shown that the requisite amount in controversy is satisfied.
Under Louisiana law plaintiffs in state courts are not permitted to plead a specific
numerical value of damages. Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir.2000)
(citing La.Code Civ. Proc. Art. 893). Therefore, when a case originally filed in a Louisiana state
court is removed to federal court on the basis of diversity, the removing defendant must prove by
a preponderance of the evidence that the amount in controversy exceeds $75,000.00. Id. (citing
Lucket v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir.1999)). A defendant may meet this
burden by either: 1) showing that it is facially apparent from the petition that the amount in
controversy exceeds $75,000.00, or 2) setting forth facts in its removal petition that support a
finding of the requisite amount in controversy. Lucket, 171 F.3d at 298.
Even if a defendant meets this burden, however, remand is still proper if the plaintiff
demonstrates to a “legal certainty” that its recovery will not exceed the jurisdictional amount. De
Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995). As the Fifth Circuit has noted, there
are many ways a plaintiff can meet this burden. For instance,
Plaintiff's state complaint might cite…to a state law that prohibits recovery of
damages that exceed those requested in the ad damnum clause and that prohibits
the initial ad damnum to be increased by amendment. Absent such a statute,
“[l]itigants who want to prevent removal must file a binding stipulation or
affidavit with their complaints; once a defendant has removed the case, St. Paul
makes later filings irrelevant.” In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992)
(per curiam).
Id. at 1412 (emphasis added).
Applying these principles to the instant case, we first note that plaintiffs’ stipulations were
attached to their state court petition and thus were filed more than three months prior to Axiall’s
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removal. Consequently, if plaintiffs’ stipulations limit their total recovery to less than $75,000,
our inquiry would end as plaintiffs would have established to a legal certainty that their recovery
would not exceed the jurisdictional amount. We must still, however, consider whether the
plaintiff’s medical monitoring claim is included within that stipulation or, more specifically,
whether that claim is one for injunctive relief or one for compensatory damages. To address this
issue, we turn to the express language of the petition itself. Paragraph 27 contains plaintiff’s prayer
for relief with respect to medical monitoring and it reads.
…Petitioners have been significantly exposed to proven hazardous…substances.
Petitioners have manifested symptoms consistent with these exposures and suffer a
significantly increased risk of contracting…serious latent diseases, the risk of
which is greater than (a) the risk of contracting the same disease had she not been
exposed to the Release and (b) the chances of members of the public at large of
developing these diseases. There is a monitoring procedure that exists that makes
the early detection of these diseases possible and the monitoring procedure has been
prescribed by a qualified physician and is reasonably necessary according to
contemporary scientific principles. Moreover, the prescribed monitoring regime is
different from that normally recommended in the absence of exposure and there
is…demonstrated clinical value in the early detection…of these diseases.
Petitioners are entitled, as part of the damages for which Defendants are liable, to
have a fund established to provide for these medical monitoring programs.
Doc. 1, att. 1, pp. 8-9. We find particular significance in the last sentence: “Petitioners are
entitled…to have a fund established to provide for these medical monitoring programs.” Id.
(emphasis added). In asserting that the plaintiffs medical monitoring claims constitute injunctive
relief, the defendant cites Holcombe v. Smithkline Beecham Corp., 272 F. Supp. 2d, 792, 799 (E.D.
Wis. 2003) wherein the court attempted to differentiate between equitable relief and damages by
stating that “[d]amages compensate for past harm, whereas equitable relief looks to the future and
is preventative in nature.” Id.
Here, the plain language of the petition demonstrates that rather than request money
damages so that they, themselves, could provide for medical monitoring, plaintiffs specifically

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request that a “fund be established” in order to do so. Doc. 1, att. 1, p. 9. It is clear that plaintiffs
are asking this court to issue an order commanding an action, the establishment of a medical
monitoring fund. We cannot conclude that paragraph 27 is anything other than a request for
injunctive relief. Rather than seeking damages to establish a fund, plaintiffs seek “to have a fund
established.” Id.
Aside from the language of the petition, our conclusion is further bolstered by its structure.
The fact that plaintiffs specifically request “future medical expenses” as a part of their
compensable damages described in paragraph 28 while their claim for the establishment of a
medical monitoring fund is found in paragraph 27 indicates that the two claims are wholly separate
and apart from each other. See Doc. 1, att. 1, pp. 8-10. Plaintiffs’ choosing to plead each claim in
separate allegations, in separate parts of the petition suggests to us that those two claims are not
one in the same as they argue. Furthermore, as the defendant notes, countless federal courts across
the country 1 that have reviewed such claims seeking the establishment of medical monitoring
funds have found them to be injunctive in nature.
Accordingly, we interpret plaintiffs’ request for the establishment of a medical monitoring
fund as an attempt to seek injunctive relief from this court in addition to the damages sought for
“future medical expenses.” Doc. 1, att. 1, p. 8-10. 2

1
Barnes v. American Tobacco Co., 161 F.3d 127, 132 (3d Cir. 1998); Cf. Doyle v. Coombe, 976 F. Supp. 183, 185,
n.1 (W.D.N.Y. 1997); In Re: Baycol Prods. Litig., 2003 WL 22038708, at *4 (D. Minn. 2003); Rice v. CSX
Transp., Inc., 2002 WL 35467650 (N.D.W. Va. 2002); Dimich v. Med-Pro, Inc., 304 F. Supp. 2d 517 (S.D.N.Y.
2004) (quoting Katz, infra); Jackson v. Johnson & Johnson, Inc., 2001 U.S. Dist. LEXIS 22329 (W.D. Tenn.
2001); Rosmer v. Pfizer, Inc., 2001 WL 34010613, at *3 (D.S.C. 3/30/2001); Elliott v. Chicago Hous. Auth., 2000
WL 263730, at *15 (N.D. Ill. 2/28/2000); Katz v. Warner–Lambert Co., 9 F. Supp. 2d 363, 364 (S.D.N.Y. 1998);
Gibbs v. DuPont De Nemours & Co., Inc., 876 F. Supp. 475, 477 (W.D.N.Y. 1995); Raft v. Vanderbilt Univ.,
174 F.R.D. 396, 406 (M.D. Tenn. 1996); Yslava v. Hughes Aircraft Co., 845 F. Supp. 705, 713 (D. Ariz. 1993).
2
Plaintiffs have citied Bourgeois v. A.P. Green Indus., Inc., 716 So. 2d 355 (La. 1998) and Lester v. Exxon Mobil
Corp., 120 So. 3d 767 (La. Ct. App. 2013) in an attempt to suggest that Louisiana law explicitly provides that medical
monitoring claims are recoverable as an item of compensable damages. However, neither court in those cases was
confronted with the issue we face here, i.e. how to classify the types of remedies sought. Indeed, the Bourgeois court
explicitly stated, “A…fund compensates…for only the monitoring costs actually incurred. In contrast, a lump-sum

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It is clear that the plaintiffs in this case have affirmatively bound themselves to “damages”
less than the jurisdictional amount by attaching stipulations to their petition. It is equally clear
from the face of the petition that the damages in this case will likely reach the stipulated limit due
to the nature and extent of both the injuries alleged and the damages sought. Allen v. R & H Oil &
Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995). Indeed, these are very serious injuries with equally
serious, far-reaching, and long-lasting consequences. Nonetheless, the language the plaintiffs have
chosen to use in their stipulations is confined only to judgments for compensatory damages and as
we have noted above, damages are not the only relief sought in this case. The plaintiffs also seek
injunctive relief in the form of the establishment of a medical monitoring fund which must also be
included in any valuation of the amount in controversy. Thus, the final question we must address
is whether the plaintiffs’ medical monitoring fund claims amount to at least $100.01 per plaintiff.
In this circuit, when a party seeks injunctive relief, the amount in controversy is measured
by value of the object of the litigation. The object of the litigation is either the value of the right
sought to be protected or the extent of the injury sought to be prevented. Leininger v. Leininger,
705 F.2d 727, 729 (5th Cir.1983); St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250,
1252–53 (5th Cir.1998). Further, the Fifth Circuit has long subscribed to the rule that it is “the
value to the plaintiff of the right to be enforced or protected that determines the amount in
controversy.” Alfonso v. Hillsborough Cnty. Aviation Auth., 308 F.2d 724, 727 (5th Cir. 1962)
(emphasis added).
Here, we find that the plaintiffs’ medical monitoring claim will easily push the relief sought
in this case beyond the jurisdictional limit. Attached to the Notice of Removal, is the
uncontroverted affidavit of Dr. Robert M. Bourgeois, MD, MPH, FACOEM, a professional both

award of damages is a monetary award that the plaintiff can spend as he or she sees fit….we offer no opinion
concerning whether lump-sum damages are recoverable under Louisiana law.” 716 So. 2d at 357, n. 3.
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“[b]oard [c]ertified in Occupational and Environmental Medicine…” and “experienced in
performing…medical monitoring for workers exposed to…hazardous chemicals.” Doc. 1, att. 2,
p. 4. According to Dr. Bourgeois, a comprehensive medical monitoring program including
protocols, surveillance, examinations, and testing would exceed $75,000.00 per plaintiff.
Id. at p. 5.
Taking this into consideration, we find that defendant has met its burden of showing that
the amount in controversy is met and we conclude that removal of this action was proper. 3
III.
CONCLUSION
For the reasons stated above, the plaintiffs’ Motion to Remand is hereby DENIED.
THUS DONE this 24th day of September, 2015.

3

Defendant additionally argues that the unilateral stipulations are not binding because they do not flow from an
agreement or compromise between the parties but instead are purely the result of the plaintiffs’ own declarations.
Defendant cites to various cases that have allowed plaintiffs to revoke unilateral stipulations purporting to limit
recovery. See e.g., Nunez v. Commercial Union Ins. Co., 774 So.2d 208 (La. App. 3 Cir. 8/23/00); Eddy v. State Farm
Fire & Cas. Co., 2010 WL 1424374 (La. App. 1 Cir. 4/9/10); Degeyter v. Allstate Ins. Co., WL 3339425, at *1-2
(W.D. La. Aug. 23, 2010) adhered to, 2010 WL 3829395 (W.D. La. Sept. 24, 2010). While these cases may cast
doubt on the binding effect of unilateral stipulations, the federal courts have not been clear on the issue and courts in
this district in particular have recognized that uncertainty. See House v. AGCO Corp., 2005 WL 3440834, at *3 (W.D.
La. Dec. 14, 2005)(“Such a unilateral stipulation may or may not be sufficient in Louisiana; a compromise agreed to
by both parties might be required to make the statement irrevocable.”). As we find that the amount in controversy is
otherwise satisfied, we decline to address this argument.
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