NEW ORLEANS - A month ahead of trial, a New Orleans federal judge is figuring out what a jury can hear when Jefferson Parish residents claim a Waggaman landfill emitted toxic odors and chemicals over two years.
Litigation started in December 2018 and ultimately turned into a mass tort featuring more than 500 plaintiffs who claim those who designed, operated and maintained the Jefferson Parish Landfill cost them the loss of use and enjoyment of their homes.
Physical injuries alleged include difficulties breathing, nausea, burning eyes, dizziness and lethargy. The first trial was to start last year but is now scheduled for Aug. 12.
News reports said the odors "terrorized" communities in the parish from 2017-2019, leading to a state-funded air quality monitoring station. Emissions from the J.P. Landfill contained high levels of hydrogen sulfide from large amounts of hydrated lime.
Judge Susie Morgan is in charge of the litigation and recently issued orders on what experts can say in court. The plaintiffs had filed a motion to exclude evidence of "other sources" of odors that defendants like the Louisiana Regional Landfill Company, Aptim Corp. Waste Connections and Jefferson Parish can point at to limit their own liabilities.
That motion said the defendants are attempting to blame the odors on the River Birch and Highway 90 landfills.
"For its part, the Parish hired River Birch to replace Waste Connections as the operator of the Jefferson Parish Landfill, and to fix the myriad problems that existed there," the plaintiffs' motion says.
"In what world would Jefferson Parish have taken this action if River Birch had been the cause of the odors?"
Despite that plea, Judge Morgan turned down the plaintiffs' motion on July 17. She said it improperly would dispose the defendants of their defenses, rather than asking the Court to decide a discrete evidentiary issue.
"Plaintiffs argue evidence related to other sources of odor is irrelevant to Defendants' defenses because Defendants cannot identify 'even one other source of odors' that they contend caused or contributed to Plaintiffs' injuries," she wrote.
"That argument does not touch on the admissibility of evidence at trial based on the risk of unfair prejudice, but rather seeks to use a motion in limine improperly to determine the viability of Defendants' defenses, which the Court would normally consider on a motion for summary judgment."
A month ago, the defendants filed a joint opposition to the plaintiffs' motion. They said it is the plaintiffs' burden to prove the odors came from the J.P. Landfill and not from other sources.
"The parties' competing evidence is for the jury to weigh; exclusion of evidence on other sources at this juncture would be an extraordinary step that would deprive the defendants from presenting a defense on a critical element of Plaintiffs' case."
The plaintiffs are represented by Eliza James and others at Forrest Cressy & James in New Orleans, plus lawyers at Whiteford, Taylor & Preston in Washington, D.C.