NEW ORLEANS – Just over two weeks before the start of trial involving litigation from Jefferson Parish residents claiming a Waggaman landfill emitted toxic odors and chemicals over two years, the parties are contesting whether or not the plaintiffs will be able to testify about their fear of contracting diseases.
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, emanating from large amounts of hydrated lime.
U.S. District Court for the Eastern District of Louisiana 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 said.
“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.
UPDATE
Now, the parties are arguing over whether or not testimony from the plaintiffs over their fear of contracting serious diseases resulting from their exposure to landfill emissions.
“The trial plaintiffs and/or their experts have testified at deposition, and will likely attempt to tell the jury, that the trial plaintiffs feared landfill odors caused permanent neurological injuries, damaged peoples’ lungs, shortened their life expectancy and even killed people – meritless allegations that the Court has dismissed, along with other ‘Non-Allowed Injuries,’ given the lack of causation evidence. The trial plaintiffs must not be allowed to ‘back door’ allegations of the Non-Allowed Injuries before the jury in the form of ‘fear of’ testimony, which Louisiana law holds to be inadmissible when, as here, plaintiffs lack evidence of any increased risk of disease,” according to a July 17 motion from the defense, in support eliminating that testimony.
“The August 2024 trial will be about whether the trial plaintiffs were exposed to emissions from the Jefferson Parish Landfill, and if so, whether those emissions caused them to suffer injuries such as loss of quality of life, headaches, nausea and the other ‘Allowed Injuries’ recognized by the Court. The trial will not be about meritless allegations of deadly respiratory ailments, permanent neurological injuries or other Non-Allowed Injuries. The trial plaintiffs’ testimony that they feared such injuries must be excluded as it would only serve to flout the Court’s recent summary judgment ruling, inflame the jury and deprive defendants of a fair trial.”
The defense contends “[the] plaintiffs should not be allowed to flout the Court’s recent summary judgment ruling and offer evidence of Non-Allowed Injuries through the back door.”
Meanwhile, the plaintiffs assert in a July 24 response motion that they “must be permitted to testify regarding their fears that the horrific odors emitted from the Jefferson Parish Landfill caused them anxiety, worry, fear, depression, etc. related to potential long-term health effects including permanent neurological injuries, damaged lungs, shortened life expectancy, death and even Non-Allowed Injuries.”
They argue the defense’s reasoning is “circular and inconsistent with the Court’s rulings.”
“Defendants’ position conflates the multiple separate injuries, including: (a) anxiety and worry; (b) stress; (c) concern regarding long term effects; (d) decrease in quality of life; (e) feeling sad and overwhelmed; (f) a decrease in mood; and (g) depression with other specific health conditions for which the Court has determined that general causation exists. But (a-g) above both explicitly and implicitly encompass fear of adverse health consequences such as the type of testimony cited by defendants’ in the Fear motion in limine,” the plaintiffs’ motion stated.
“For example, if anxiety and concern regarding long term effects are Allowed Injuries, the plaintiffs must be permitted at trial to explain why they were anxious, what long term effects concerned them, and what other facts support the Allowed Injuries (particularly (a-g) above). Courts that have considered whether such testimony is appropriate have concluded that it is admissible to prove emotional distress as a component of a plaintiff’s general damages. That is the purpose for which this testimony will be presented in this case.”
U.S. District Court for the Eastern District of Louisiana case 2:19-cv-11133
From the Louisiana Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com