High court slashes judgments in test cases for Union Carbide paint thinner class

Steve Korris Oct. 27, 2010, 1:23pm


Louisiana Supreme Court Justices slashed judgments by almost 90 percent in test cases for a class action against Union Carbide over release of paint thinner.

Five Justices agreed that St. Charles Parish District Judge Kirk Granier and Fifth Circuit appeals judges in Gretna compensated victims too generously.

They cut five judgments from $3,500 to $500, one from $2,500 to $250, two from $2,000 to $150, and four from $1,500 to $100.

"None of the claimants sought or required medical attention as a result of the exposure," the majority wrote in an unsigned opinion.

"They were not required to evacuate from the area as a result of the chemical release, nor did they miss any work or school," they wrote.

They compared symptoms to those from seasonal allergies, writing that they might be characterized as mere annoyances.

Justices Greg Guidry, Marcus Clark, John Weimer and Jeffrey Victory decided in favor of Union Carbide, as did temporary Justice Philip Ciaccio.

Dissenting Justice Jeannette Knoll wrote that it isn't the function of the Court to micromanage a district court's exercise of discretion in awarding damages.

Dissenting Justice Bernette Johnson wrote that she found no manifest error.

In 1998, at Union Carbide's plant in Taft, roof drains failed in a storm.

Water collected, the roof collapsed, and the water fell into a vat of paint thinner.

Almost five million pounds of thinner evaporated over 17 hours.

More than 2,000 individuals filed injury claims.

Granier picked about 100 for a "bellwether trial" to set a range of judgments for possible class settlement.

Thirty showed up for depositions, and most failed to state valid claims.

Granier granted summary judgment against 16, and held trial for the other 14.

He awarded damages for headaches, runny noses, itchy eyes and mild nausea.

He awarded $3,500 to those in the plant, $2,500 to those near the
plant, $2,000 to those in Montz and $1,500 to those in Killona.

Union Carbide moved for a new trial, and Granier denied it.

The company appealed to the Fifth Circuit, where judges affirmed 12 judgments and dismissed two due to contradictory testimony.

Union Carbide appealed to the Supreme Court.

David Bienvenu of Baton Rouge wrote, "All too often, class action claimants submit false claims, assuming that their claims will never be scrubbed for any elements of truth."

The U.S. Chamber of Commerce, American Chemistry Council, Louisiana Association of Business and Industry, and Louisiana Chemical Association submitted briefs on behalf of Union Carbide as friends of the court.

Louisiana Association for Justice countered that plaintiffs complied with discovery, subjected themselves to examination under oath, and presented evidence to satisfy their burden of proof.

At oral arguments on Sept. 9, Bienvenu asked the Justices to draw a line between compensation and economic opportunism.

He said if they affirmed the judgments, "class actions lines are going to expand from here to the Superdome."

Class counsel Andrew Lemmon of Hanhville said the class stood at about 1,100.

Clark asked if claims came from persons outside the area and persons who weren't born.

Lemmon said they did, and he said the trial court dismissed them.

Weimer said, "Why shouldn't those be dismissed in some fashion prior?"

Lemmon said, "That's a good question and we struggled with it as counsel in this case."

Guidry said, "Four days of irritation, how is that worth 15 hundred?"

Lemmon said, "Fifteen hundred for four days of burning eyes? You couldn't pay me 15 hundred to stick a chemical in my eyes for four days."

Weimer said, "It just doesn't make sense that someone would be exposed and be in so much pain and not go to a doctor."

The majority shrank the overall verdict by 88.5 percent, from $30,000 to $3,450.

Justice Jeffrey Victory concurred with the majority but objected to the method of awarding damages by location.

"Damages should have been based upon testimony as to an individual's actual damages, not on expert testimony that it was reasonable to assume someone closer to the source would suffer more damage than someone farther away," he wrote.

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