IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 96-30329
Summary Calendar
___________________
SONYA JONES; KIM BROWN, THOMAS BENNETT,
TROY LOCKLEAR, ETHEL HUDSON, ET AL.,
Plaintiffs-Appellants,
versus
DOW CHEMICAL COMPANY, THE PEOPLE’S
WATER SERVICE COMPANY OF LOUISIANA, INC.
Defendants-Appellees.
----------------------------------
MURRAY CHASE; RUDY BALL; KEVIN BOYD; LEON BURB;,
Plaintiff-Appellants,
versus
DOW CHEMICAL COMPANY,
Defendants-Appellees.
Appeals from the United States District Court
for the Middle District of Louisiana
(95-CV-453)
February 3, 1997
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Toxic tort plaintiffs appeal the district court’s grant of
summary judgment. We affirm.
Facts and Proceedings Below
On the morning of December 19, 1993, a quantity of
perchloroethylene, assertedly a potentially dangerous chemical, was
accidentally spilled at the Plaquemine plant of defendant-appellee
Dow Chemical Company (Dow). Dow was able to contain most of the
spill, but despite its efforts approximately 74.1 gallons (1001
pounds) of the chemical escaped into the Mississippi River. Upon
learning of the spill Dow began containment efforts and contacted
the appropriate governmental authorities. In addition, pursuant to
prearranged procedures downriver water intake systems, including
the Bayou Lafourche Fresh Water District (BLFWD), were notified of
the spill.1 The BLFWD shut down its pumps at around 6:30 p.m. on
the 19th, shortly after receiving its notification.
Defendant-appellee Peoples’ Water Service Company of
Louisiana, Inc. (Peoples’), which provides the water supply for the
people of Donaldsonville, is the first water intake on Bayou
Lafourche downstream from the BLFWD pumping station at the
headwaters of the bayou. Peoples’ does not draw its water directly
from the Mississippi River, and the only way water from the river
makes its way into the bayou is when it is pumped there by the
1
The BLFWD pumping station at Donaldsonville pumps water from
the Mississippi River into Bayou Lafourche, which has no other
connection to the river.
2
BLFWD pumping station. The pumping station is about thirty-five
miles down river from the site of the spill.
On January 25, 1994, Sonya Jones and other plaintiffs (Jones
plaintiffs) filed suit against Dow and Peoples’ in state court.
Jones plaintiffs sought recovery for personal injuries, emotional
distress, and inconvenience due to a cutoff of drinking water
occasioned by the spill; in addition, Jones plaintiffs sought
punitive damages under LSA-C.C. art. 2315.3. A similar lawsuit was
filed by Murray Chase and other plaintiffs (Chase plaintiffs) on
December 19, 1995.2 Both of these cases were removed to federal
district court and ultimately consolidated in the Middle District
of Louisiana.
Discovery ensued, and Dow filed motions for summary judgment
against both Jones plaintiffs and Chase plaintiffs.3 In support of
these motions Dow produced affidavits asserting that water samples
taken after the spill revealed that the maximum concentration of
perchloroethylene in the river at any location downstream of the
spill was less than 0.5 part-per-billion, far less than the safe
drinking water standard for perchloroethylene of five parts-per-
billion established by the Environmental Protection Agency.4
2
Jones plaintiffs and Chase plaintiffs are represented by the
same attorney.
3
This litigation has not been certified as a class action under
Fed. R. Civ. Pro. 23.
4
This standard is the level considered safe by the EPA for
lifetime exposure in drinking water.
3
Similar testing in Bayou Lafourche did not indicate the presence of
any amount of the chemical. In addition to this information and
related summary judgment evidence that the local population faced
no risk of harm from this spill, Dow produced newspaper reports and
transcripts of television broadcasts from local news agencies
concerning the spill, none of which indicated any threat of danger
to the population downriver from the Dow facility. Dow and
Peoples’ also submitted summary judgment evidence that neither
Peoples’ nor the Assumption Parish Waterworks District No. 1 (which
served Napoleonville, some fourteen miles downstream of
Donaldsonville on Bayou Lafourche) had cut off water service.
Jones plaintiffs and Chase plaintiffs filed six affidavits
into the record, each made by a named plaintiff. These affidavits
related a fairly identical story, i.e., that the residents of
Donaldsonville, after learning about the spill through the media,
had stopped using tap water and begun purchasing bottled water due
to a fear of drinking contaminated water. All of the affidavits
save that of Jones herself suggested that water service in
Donaldsonville had continued uninterrupted after the spill; Jones,
however, averred that “[h]er water was . . . shut off as a result
of the spill.” Affidavits, pressure charts, and other
documentation filed by Dow and Peoples’ contradicted Jones’ vague
assertion that the water supply was interrupted at any time due to
the spill.
4
In response to Dow’s proffered summary judgment evidence
regarding the actual risk of harm posed by the spill, Jones
plaintiffs stipulated to a dismissal of most of their claims. This
stipulation was incorporated into an order of the district court
granting Dow partial summary judgment on all of Jones plaintiffs’
claims except those “for inconvenience associated with interrupted
water service and . . . punitive or exemplary damages.” Chase
plaintiffs opted not to file such a stipulation. None of the
plaintiffs questions the stipulation on this appeal. In response
to Dow’s motion for summary judgment, Chase plaintiffs conceded
that Dow was entitled to summary judgment on the issues of physical
harm (and they do not contend otherwise on appeal). Chase
plaintiffs, however, continued to assert the viability of their
claims for inconvenience, fear of harm from contamination, and
punitive damages.
The district court heard arguments on the two motions for
summary judgment on February 14, 1996. After hearing oral
argument, the district court indicated on the record that, due to
the paucity of the plaintiffs’ evidentiary proffer, he was going to
grant the defendants’ motions in toto and dismiss all remaining
claims. On February 23, 1996, the district court entered a
judgment dismissing the plaintiffs’ remaining claims. Plaintiffs
timely appeal the district court’s judgment.
Discussion
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“[T]he party moving for summary judgment must demonstrate the
absence of a genuine issue of material fact, but need not negate
the elements of the nonmovant’s case.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis in original)
(citations omitted) (internal quotation marks omitted). Once the
movant has met this burden, the burden shifts to the nonmovant to
go beyond the pleadings and designate, by competent summary
judgment evidence, specific facts which demonstrate genuine triable
issues. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553-2554
(1986). The nonmovant’s burden “is not satisfied with some
metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla
of evidence.” Little, 37 F.3d at 1075 (citations omitted)
(internal quotation marks omitted). In reviewing a district
court’s grant of summary judgment we consider the record de novo.
Wittorf v. Shell Oil Co., 37 F.3d 1151, 1154 (5th Cir. 1994). The
district court’s application of Louisiana law, which governs this
case, is also subject to de novo review. Salve Regina College v.
Russell, 111 S.Ct. 1217 (1991).
Plaintiffs challenge the district court’s ruling that they
have not presented any evidence which would support an award of
punitive damages. Civil Code article 2315.3 provides for the award
of exemplary damages “if it is proved that plaintiff’s injuries
were caused by the defendant’s wanton or reckless disregard for
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public safety.” Plaintiffs have completely failed to point to any
fact or circumstance indicating that Dow acted with “wanton or
reckless disregard for public safety.” On the contrary, the record
indicates that quite the opposite is true. Compare Landry v.
Uniroyal Chemical Co., Inc., 94-1274 (La.App. 1 Cir. 3/3/95), 653
So.2d 1199, writ denied, 95-1381 (La. 9/15/95), 660 So.2d 461;
Lasha v. Olin Corp., 91-459 (La.App.3 Cir. 3/2/94), 634 So.2d 1354;
Fuselier v. Amoco Production Co., 607 So.2d 1044 (La.App.3 Cir.
1992). For this reason, plaintiffs’ argument fails.
Plaintiffs next argue that once the district court dismissed
the punitive damages claim it should have then remanded the
remaining state law claims to state court. Plaintiffs, correctly,
do not contend that original removal jurisdiction was lacking;
rather, they argue that once the punitive damages claim was removed
from the damages calculation their combined claims totaled less
than the jurisdictional amount, rendering the district court’s
continued exercise of diversity jurisdiction nugatory. This
contention is specious. Once the punitive damages claim was
dismissed, the district court enjoyed supplemental jurisdiction
over the remaining state law claims. 28 U.S.C. § 1367. The
district court’s decision to retain and adjudicate these claims was
fully within his discretion. Eastus v. Blue Bell Creameries, 97
F.3d 100 (5th Cir. 1996); Hubbard v. Blue Cross & Blue Shield
Ass’n, 42 F.3d 942 (5th Cir. 1995); John G. and Marie Stella
7
Kennedy Memorial Foundation v. Mauro, 21 F.3d 667 (5th Cir. 1994).
Plaintiffs claim that a genuine issue of material fact exists
regarding whether Peoples’ cut off the area water supply after the
spill. Of the six affidavits submitted by plaintiffs, only that of
Jones suggests that this occurred. Even Jones’ affidavit, however,
does not expressly relate who shut off her water (or where it was
shut off), nor does she aver specific facts demonstrating the
alleged causal nexus between the spill and any cessation of water
service. A plenary review of the affidavits submitted by both
plaintiffs and defendants and Peoples’ documentary evidence showing
its continuing operation after the spill leads us to the conclusion
that the plaintiffs have presented at most only a “scintilla” of
evidence that Donaldsonville’s (or Napoleonville’s) water service
was ever interrupted, much less that it was interrupted due to the
spill. Counsel for Jones plaintiffs admitted to the court at the
summary judgment hearing “I have to concede that we cannot prove
that the water was shut off at Peoples’.” Jones’ conclusory
affidavit averment——which is essentially contradicted by her prior
deposition testimony, without any explanation for the
contradiction——is insufficient to overcome Dow’s motion on this
issue.
Plaintiffs further argue that even if, as the evidence
indicates, the plaintiffs opted to cut off their own water service,
they are nonetheless entitled to general damages for the resulting
8
inconvenience. We conclude that this claim is barred because under
the facts of this case Louisiana law affords these plaintiffs no
remedy for their alleged injuries.
Under Louisiana law, a plaintiff can recover on a claim of
inconvenience only if the inconvenience rises to the level of being
excessive. Irby v. Panama Ice Co., 184 La. 1082, 168 So. 306, 309
(1936) (inconvenience must be “excessive and unreasonable”). See
also Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La. 1975). To
determine whether an inconvenience is excessive, a court is to
employ an objective standard which measures whether the
inconvenience would produce actual discomfort and annoyance to an
average person of ordinary sensibilities. See McGee v. Yazoo &
Miss. R.R., 106 La. 121, 19 So.2d 21, 25 (1944); Woods v.
Tuberville, 168 So.2d 915 (La. App. 2d Cir. 1964). If the
inconvenience is not excessive under the circumstances, there is no
relief; it is a mere inconvenience. See Constance v. State of
Louisiana, 626 So.2d 1151 (La. 1993), cert. denied, 114 S.Ct. 2706
(1994); State Through DOTD v. Chambers Inv. Co., 595 So.2d 598 (La.
1992).
Applying the above objective standard to the facts and
circumstances of the present case, we conclude that the only
inconvenience to the plaintiffs shown by the summary judgment
evidence does not rise to the level of excessiveness. There was no
perchloroethylene detectable in Bayou Lafourche (the source of the
9
plaintiffs’ water) and the level of perchloroethylene in the
Mississippi River was far less than the safe drinking water
standard for perchloroethylene. Local media reported that there
was no risk of harm from the spill to the downriver population, and
water service was never cut off.
Finally, we turn to plaintiffs’ claims for reimbursement of
the price of bottled water allegedly purchased due to fear arising
from the spill. This claim seeks compensation for an economic
loss, yet it is wholly unrelated to any physical injury to person
or property and is wholly caused by plaintiffs’ mental state of
fear. The policy considerations underlying our decision in Neesom
v. Tri Hawk Int’l, 985 F.2d 208 (5th Cir. 1993), dictate rejection
of this claim, as well as of the inconvenience claim. As we stated
in Nesom, “[t]o sanction the theory of recovery argued here, would
open the door to thousands of plaintiffs who claim that they have
suffered damages caused by fear of possible exposure to some
dangerous substance or another without even proof of actual
exposure to that danger.” Nesom, 985 F.2d at 211. See PPG
Industries, Inc. v. Bean Dredging, 447 So.2d 1058, 1061 (La. 1984)
(citation omitted) (internal quotation marks omitted) (tortfeasor
should not be responsible for economic damages when “imposition of
responsibility on the tortfeasor for such damages could create
liability in an indeterminate amount for an indeterminate time to
an indeterminate class”). Dismissal would also be in accordance
10
with Louisiana’s policy “against compensation for purely economic
loss not the result of either bodily harm to the claimant or
physical injury to property in which claimant has a proprietary
interest.” Great Southwest Fire Ins. Co. v. CNA Ins. Companies,
557 So.2d 996, 970 (La. 1990). See also Community Coffee Company,
Inc. v. Tri-Parish Construction & Materials, Inc., 490 So.2d 1109
(La.App.1 Cir. 1986).
With the foregoing policy considerations in mind, we turn to
the question of Dow’s duty to the plaintiffs. In Louisiana,
“[d]uty-risk analysis is still the usual method by which a court
should determine which risks are compensable and which are not.”
Roberts v. Benoit, 605 So.2d 1032, 1057 (La. 1991) (on rehearing).
This analysis to some extent conflates the traditional tort law
elements of duty and proximate cause by asking if the scope of the
defendant’s duty includes the particular risk of injury and nature
of the loss suffered by plaintiff. Mart v. Hill, 505 So.2d 1120,
1122 (La. 1987). See also Pitre v. Opelousas General Hosp., 530
So.2d 1151, 1155 (La. 1988). The duty-risk approach arises out of
a realization that “[r]ules of conduct are designed to protect some
persons under some circumstances against some risks” and that
“[p]olicy considerations determine the reach of the rule.” PPG
Industries, 447 So.2d at 1061. This duty-risk inquiry, while cast
as a question of law, is nevertheless a case-by-case inquiry
dependent upon the particular circumstances presented. Roberts,
11
605 So.2d at 1055.
In this case, we conclude that the risk that the plaintiffs
would voluntarily shut off their own water supply and buy bottled
water in response to news reports of this chemical spill does not
fall within the scope of Dow’s duty when the plaintiffs in fact
faced no risk of physical harm and encountered no circumstances
which would cause a reasonable person to fear such a risk. We
reach this conclusion in reliance upon policy considerations
articulated by the Louisiana Supreme Court and reflected in our
opinion in Nesom (applying Louisiana law) regarding the allowable
scope of recovery for economic damages in the absence of
accompanying injury to person or property. Nesom, 985 F.2d at 211;
Southwest, 557 So.2d at 970; PPG Industries, 447 So.2d at 1061-
1062. “Because the list of possible victims and the extent of
economic damages might be expanded indefinitely, the court
necessarily makes a policy decision on the limitation of recovery
of damages.” PPG Industries, 447 So.2d at 1061-1062. The
plaintiffs’ claims for reimbursement fail.
For these reasons, the judgment of the district court is
AFFIRMED.
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