Union Carbide wants judgments overturned in chemical release class action

Steve Korris Sep. 23, 2010, 4:38am


Chemical company Union Carbide wants the Louisiana Supreme Court to reverse 12 judgments ranging from $750 to $3,500, in a personal injury class action over a release that sent no one to any doctor.

St. Charles Parish District Judge Kirk Granier awarded damages for headaches, runny noses, itchy eyes and mild nausea in an opening "bellwether trial."

Enough cases remain to run the cost to millions, though Union Carbide has enjoyed success in exposing the weakness of many claims.

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

James Babst of New Orleans, on behalf of the U.S. Chamber of Commerce, American Chemistry Council, Louisiana Association of Business and Industry, and Louisiana Chemical Association, urged the Justices to throw out the awards.

"The judgment below stands to set an astonishing precedent that a person who starts sneezing or feels nauseous after short term exposure to a chemical at a safe level can establish entitlement to thousands of dollars of damages," Babst wrote.

"Class actions were intended only to serve as procedural devices," he wrote. "They were not designed to alter the merits of underlying claims.

"It is precisely this sort of transfer of wealth from the responsible corporate citizen to claimants who sustained little or no injury that casts serious doubt on the fairness and integrity of the judicial process."

For Louisiana Association for Justice, Bruce Dean of Metairie countered that the release was far more dangerous and injurious than Union Carbide assumes.

He wrote that plaintiffs complied with discovery, subjected themselves to examination under oath, and presented evidence to satisfy their burden of proof.

The release happened at Union Carbide's plant at Taft, in 1998.

Roof drains failed in a storm, and water collected until the roof collapsed.

Water poured into a vat of naphtha, a paint thinner.

According to class counsel Andrew Lemmon of Hahnville, 4.6 million pounds of naphtha evaporated over 17 hours.

More than 2,000 individuals filed injury claims.

Among about 100 that Granier picked for trial, 30 showed up for depositions.

Most flunked the test, proving by their own words that they had no claim.

Granier granted summary judgment against 16, and Fifth Circuit appeals judges in Gretna tossed out two more due to contradictory testimony.

Union Carbide seeks to shed the 12 that remain.

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

He said a class of roughly 2,000 was certified in 2004 or 2005. Bienvenu called naphtha a sensory irritant and said it was an odor, not a poison.

He said the symptoms were complaints of everyday life.

"This is not a medical event," Bienvenu said.

He said no plaintiff requested medical care, no plant employee sought treatment, and no plaintiff missed an hour of work.

He told the Justices that if they affirm the judgments, "class actions lines are going to expand from here to the Superdome."

When Lemmon rose, Justice Bernette Johnson asked the size of the class.

"About eleven hundred as it stands now," Lemmon said.

Justice Marcus 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.

Justice John 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."

Justice Greg Guidry asked him to justify the dollar amounts.

Lemmon said experts testified and plaintiffs presented evidence.

Guidry said, "But 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, "Nobody went to a doctor. It just doesn't make sense that someone would be exposed and be in so much pain and not go to a doctor."

Lemmon said a doctor can validate symptoms but people have to suffer through it.

Clark asked if there were blisters on the skin and throat.

Lemmon said, "That's essentially what it is."

Clark asked if it went away in 12 or 24 hours for some, and Lemmon said that was right.

On rebuttal, Bienvenu said, "There was no evidence of chemical blisters or anything of that nature."

He said claims from people who weren't born were rejected because Union Carbide moved for summary judgment.

"This isn't a situation where the system took care of itself," he said.

Johnson asked him if plaintiff attorneys processed all claims, and he said yes.

The Justices took it under advisement.

Editor's note: The Louisiana Record is owned by the U.S. Chamber of Commerce.

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