Thomas Anderson v. City of New Orleans

THOMAS ANDERSON, ET AL. * NO. 2024-C-0252

VERSUS *
COURT OF APPEAL
CITY OF NEW ORLEANS, ET *
AL. FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2000-07489, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Sandra Cabrina Jenkins
******
(Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge
Sandra Cabrina Jenkins)

Gary J. Gambel
MURPHY, ROGERS, SLOSS GAMBEL&
TOMPKINS
701 Poydras Street
Suite 400
New Orleans, LA 70139

A.M. “Tony” Clayton
D’Ann Penner
CLAYTON FRUGE WARD
3741 Louisiana Highway 1 South
Port Allen, LA 70767

Jennifer N. Willis
WILLIS & BUCKLEY, APC
3723 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFFS/ RESPONDENTS

Andrew R. Lee
Edward F. Lebreton, III
Meghan Smith
Tarak Anada
Marisa Del Turco

JONES WALKER LLP
201 St. Charles Avenue
Suite 5100
New Orleans, LA 70170

Jason Rogers Williams
Hannah Beth Salter
JASON WILLIAMS & ASSOCIATES, LLC
607 St. Charles Avenue
Suite 300
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/RELATOR

WRIT GRANTED.
JUDGMENT REVERSED.
MATTER REMANDED.
STAY LIFTED.

MAY 1, 2024

SCJ
JCL
RML
Relator/defendant, Pan American Life Insurance Company, seeks expedited

review of the trial court’s judgment of April 29, 2024, granting the plaintiffs’

motion in limine to limit the testimony of its expert witness, Dr. Andrew Maier.

The plaintiffs initiated this litigation seeking damages for injuries allegedly

sustained as a result of their exposure to toxic substances which had leaked from

barrels stored in the basement of the building located at 2400 Canal Street, where

they worked. The facts of this case were succinctly expressed in this Court’s prior

decision in Anderson v. City of New Orleans, 2023-0796, p. 1 (La. App. 4 Cir.

1/30/24) ___ So.3d ___, ___, 2024 WL 339250, at *1:

Pan-American was the original owner of the building located at 2400
Canal Street in New Orleans, Louisiana. In August of 1982, Pan-American
sold the building and surrounding tracts to Poydras Square Associates, Inc.
(“Poydras Square”), later known as NID Corporation (“NID”). After the
sale, NID leased the property to the City of New Orleans (the “City”).
Pursuant to the lease's terms, NID granted the City the full right to “have and
hold the demised premises” and “any and all appurtenances belonging or
appertaining thereto.” The City acknowledged that it had inspected the
premises and accepted the building in its existing condition. The leased
building became known as the Annex; and, in January 1985, the City
acquired full title and ownership of the property through a land exchange
with NID.

1

The City continued ownership and occupancy of the Annex until
December 1999. At that time, barrels containing toxic substances leaked,
resulting in the Annex's evacuation. The barrels were discovered in the
building's basement.
Respondents, who worked in the Annex, initially filed a petition for
damages against the City. Respondents sought compensatory damages and
punitive damages pursuant to La. C.C. art. 2315.3. Thereafter, Respondents
filed an amended petition which added Pan-American as a defendant,
asserting the same compensatory and punitive damages claims.
Respondents’ allegations against Pan-American contended that Pan-
American placed the barrels in the Annex property before the 1982 sale and
represented that the barrels contained toxic chemicals for an unknown period
of time.

In the present writ application, Pan American complains that the trial court

abused its discretion in limiting the testimony of its expert witness, Dr. Andrew

Maier. Pan American offered Dr. Maier as an expert in toxicology and industrial

hygiene. As part of his testimony, Pan American intended to have Dr. Maier

discuss chemical exposure limits and chemical exposure assessments. After voir

dire of Dr. Maier’s credentials, the plaintiffs sought to limit Dr. Maier’s testimony

to exclude any discussion of chemical exposure limits and chemical exposure

assessments. The plaintiffs argued that such testimony was beyond Dr. Maier’s

expertise because he acknowledged that he was not a chemist and as such, did not

have the expertise and knowledge to assess chemical exposure limits. Pan

American opposed the motion, asserting that the plaintiffs had filed a Daubert
1motion pre-trial, which the trial court had denied. Pan American noted that it had

timely provided the plaintiffs with Dr. Maier’s report, which included his opinions

about chemical exposure limits and assessments. The plaintiffs subsequently

deposed Dr. Maier and questioned him on his qualifications and case specific

opinions, prior to filing their Daubert motion. Pan American contended that the

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469

(1993), adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La.
1993).

2

plaintiffs did not raise the argument concerning Dr. Maier’s expertise on chemical

exposure in their Daubert motion.

The trial court granted the plaintiff’s motion, found Dr. Maier to be an

expert in toxicology and industrial exposure, allowed his testimony concerning

toxicology and industrial hygiene, and disallowed any testimony concerning

chemical exposure limits and chemical exposure assessments. A review of the trial

transcript, the prior Daubert motion filed by the plaintiffs and Dr. Maier’s report

and curriculum vitae reveals that the trial court abused its great discretion in

granting the plaintiffs’ motion and limiting Dr. Maier’s testimony.

La. C.C.P. article 1425, which statutorily provides for a Daubert hearing,

provides in pertinent part:

F. (1) Any party may file a motion for a pretrial hearing to determine
whether a witness qualifies as an expert or whether the methodologies
employed by such witness are reliable under Articles 702 through 705 of the
Louisiana Code of Evidence. The motion shall be filed not later than sixty
days prior to trial and shall set forth sufficient allegations showing the
necessity for these determinations by the court.
(2) The court shall hold a contradictory hearing and shall rule on the
motion not later than thirty days prior to the trial. At the hearing, the court
shall consider the qualifications and methodologies of the proposed witness
based upon the provisions of Articles 104(A) and 702 through 705 of the
Louisiana Code of Evidence. For good cause shown, the court may allow
live testimony at the contradictory hearing.
(3) If the ruling of the court is made at the conclusion of the hearing,
the court shall recite orally its findings of fact, conclusions of law, and
reasons for judgment. If the matter is taken under advisement, the court shall
render its ruling and provide written findings of fact, conclusions of law, and
reasons for judgment not later than five days after the hearing.
* * *

(6) Notwithstanding the time limitations in Subparagraphs (1), (2),
and (3) of this Paragraph, by unanimous consent of the parties, and with
approval by the court, a motion under this Paragraph may be filed, heard,
and ruled upon by the court at any time prior to trial. The ruling by the court
on such motion shall include findings of fact, conclusions of law, and
reasons for judgment complying with the provisions of Subparagraph (4) of
this Paragraph.

3

This Court recognized in Allen v. Eagle Inc., 2022-0386, p. 9 (La. App. 4

Cir. 8/10/22), 346 So.3d 808, 814–815, that under the standards set forth in

Daubert and Foret, a trial court is required to perform a “gatekeeping” function to

“ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable.” (quoting Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5

(La. App. 4 Cir. 7/29/09), 17 So. 3d 459, 463 (citing Daubert, 509 U.S. at 589, 113

S.Ct. at 2795)). Under La. C.E. article 702(A),

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or
otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of
the case.

A trial court is afforded wide discretion in determining whether expert

testimony should be admitted and who should not be qualified as an expert. A trial

court's decision to qualify or disqualify an expert will not be overturned absent an

abuse of discretion. Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr.

New Orleans, 2017-0024, p. 6 (La. App. 4 Cir. 8/24/17), 226 So.3d 1200, 1205.2

2 In Schwarzenberger, 2017-0024, p. 4, 226 So.3d at 1206, this Court discussed review under the

abuse of discretion standard:
Generally, a decision is considered an abuse if the trier of fact reaches a
conclusion in a capricious or in an arbitrary manner. See Tugwell v. Plaquemines Parish
Gov't, 14-0657, p. 5 (La. App. 4 Cir. 11/19/14), 154 So.3d 695, 699. This Court also held
that, “[a]rbitrary or capricious” means the absence of a rational basis for the action taken.
See A.S. v. D.S., 14-1098, p. 17 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 257.
Additionally, a court necessarily abuses its discretion if its ruling is based on an
erroneous view of the law. See Show & Tell of New Orleans, L.L.C. v. Fellowship
Missionary Baptist Church, 14-0843, p. 8 (La. App. 4 Cir. 12/17/14), 156 So.3d 1234,
1240. Boudreaux v. Bollinger Shipyard, 2015-1345 (La. App. 4 Cir. 6/22/16), 197 So.3d
761; § 11.3. Opinion testimony—Experts—Generally, 19 La. Civ. L. Treatise, Evidence
And Proof § 11.3 (2d ed.).

4

However, when the trial court commits a legal error, an appellate court’s standard

of review is de novo. Allen v. Eagle Inc., 2022-0386 (La. App. 4 Cir. 8/10/22), 346

So.3d 808. In Allen v. Eagle, Inc., this Court found that the trial court’s failure to

comply with the requirements of La. C.C.P. article 1425(F) constituted legal

review and required de novo review.

In the present matter, the plaintiffs filed a Daubert motion in March 2024,

which was heard and denied by the trial court. The plaintiffs did not question Dr.

Maier’s expertise to testify to chemical exposure limits and chemical exposure

assessments in their Daubert motion. The Daubert motion filed in March 2024,

was in compliance with La. C.C.P. article 1425. However, the plaintiffs’ oral

motion filed during trial and considered by the trial court did not comply with La.

C.C.P. 1425. As such, the trial court’s ruling may be reviewed de novo by this

Court.

A review of Dr. Maier’s report and curriculum vitae indicates that he

provided his expert opinion on those issues and was qualified to express such

opinions. Dr. Maier received a bachelor of science degree in natural resources, a

master of science degree in industrial health and a Ph.D. in toxicology. He

testified that the field of industrial health is the science of evaluating exposures and

health risks. Dr. Maier stated that toxicology involves the review of the way

chemicals interact with the body and causes adverse effects. Dr. Maier’s

curriculum vitae includes his fellowships with the American Industrial Hygiene

Association and the National Institute for Occupational Safety and Health.

5

Dr. Maier’s curriculum vitae listed his present position as a principal

scientist with Integral Consulting, a science and technology consulting firm that

helps address public health and environmental science concerns. In this position,

he leads teams of scientists to solve different kinds of chemical health risk

assessment problems. Much of his work is in setting occupational and

environmental exposure limits. Dr. Maier’s report and curriculum vitae supports

Pan American’s argument that the trial court erred in limiting Dr. Maier’s

testimony.

The trial court erred in considering an oral Daubert motion during the

middle of trial, in which plaintiffs presented new arguments that could have been

included in their Daubert motion filed and considered prior to trial. For the

foregoing reasons, the trial court’s judgment is reversed, and the matter is

remanded to the trial court.

WRIT GRANTED.
JUDGMENT REVERSED.
MATTER REMANDED.
STAY LIFTED.

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