Waste Management of Louisiana, LLC v. Tadlock Pipe & Equipment, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-1151

WASTE MANAGEMENT OF LOUISIANA, LLC

VERSUS

TADLOCK PIPE & EQUIPMENT, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 99-6723
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

AFFIRMED.

Amy Groves Lowe
Taylor, Porter, Brooks & Phillips, L.L.P.
P. O. Box 2471
Baton Rouge, LA 70821
(225) 387-3221
Counsel for Plaintiff/Appellant
Waste Management of Louisiana, LLC

Milo A. Nickel, Jr.
Nickel & Caballero
500 Kirby St., Suite 201
Lake Charles, LA 70601
(337) 433-8278
Counsel for Defendant/Appellee
Tadlock Pipe & Equipment, Inc.

GREMILLION, Judge.

The plaintiff, Waste Management of Louisiana, L.L.C., appeals the

judgment of the trial court dismissing its claim against the defendant, Tadlock Pipe

& Equipment, Inc. For the following reasons, we affirm.

FACTS

Waste Management is in the business of collecting waste from both

commercial and residential customers. However, it limits the waste it collects to only

nonhazardous waste. On December 9, 1998, one of its trailers containing both

residential and commercial waste was rejected by the Jefferson Davis landfill after it

triggered a positive reading for radioactive material. Upon its rejection, Waste

Management returned the trailer to its Lake Charles pickup station and commenced

an investigation into the nature of the radioactive material and its point of origin.

American Radiation Services (ARS) determined that the radioactive material

consisted of pipe caps; white, plastic five gallon buckets; visquine; a portion of a two

by four board; and black grit. An analysis determined that the radioactive material

contained on these items was NORM (naturally occurring radioactive material),

consisting of Radium 226 and Radium 228, and the daughter products of these two

isotopes. In addition to ARS, Waste Management also hired Phillip

Services/Louisiana, Inc. to evaluate the load and to arrange to decontaminate and

segregate the contaminated material. Finally, it hired Waste Control Specialists,

L.L.C. to dispose of the contaminated material. In all, Waste Management spent

$56,174.16 as a result of the December 9, 1998 incident.

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Once the radioactive items were identified, Waste Management set out

to determine which of its customers was responsible for placing the items in its waste

container. Upon a recommendation from ARS, it limited its investigation to those

customers in the oil and gas industry who were serviced by the waste collection

trucks determined to have emptied their loads into the subject trailer. After visiting

numerous customers, it determined that only Tadlock Pipe was found to have white

plastic buckets, visquine, pipe caps, boards, and black grit at its location. Thus,

Waste Management determined that the radioactive items originated from Tadlock

Pipe.

Waste Management filed suit against Tadlock Pipe alleging the breach

of its Service Agreement which provided that the waste materials collected by it

would contain no radioactive materials. The Service Agreement further provided that

upon the breach of this warranty, Tadlock Pipe would indemnify, defend, and hold

harmless Waste Management from all damages arising from its breach. Tadlock Pipe

denied these allegations. The matter proceeded to a bench trial, after which the trial

court rendered judgment in favor of Tadlock Pipe finding that Waste Management

failed to prove that it was responsible for the radioactive materials. This appeal by

Waste Management followed.

ISSUES

Waste Management raises eight assignments of error on appeal. In

summary, it argues that the trial court erred in refusing to allow Dean Arabie to testify

as a witness at the trial, that the trial court’s refusal was prejudicial to its case and

resulted in a reversible error necessitating a de novo review of the record. It further

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argues that the trial court was clearly wrong in finding that it failed to prove that

Tadlock Pipe was the source of the contaminated items and in failing to award it

damages.

ARABIE’S TESTIMONY

In its first assignment of error, Waste Management argues that the trial

court erred in refusing to allow Arabie to testify. Although admitting that it failed to

include Arabie’s name on its two witness lists, it argues that a substantial injustice

would occur if it were not allowed to present his testimony. It claims that Tadlock

Pipe would not be surprised by his testimony since his name was included in its

February 10, 2000 response to interrogatories propounded by Tadlock Pipe, which

listed persons possibly having knowledge of the matter.

At trial, Tadlock Pipe objected to Waste Management calling Arabie as

a witness because it failed to include his name on either of its witness lists submitted

prior to trial. The trial court’s December 13, 2002 pre-trial order set a January 10,

2003 deadline for the exchange of witnesses and the identification of exhibits to be

used in evidence. Waste Management’s January 8, 2003 witness list did not include

Arabie as a potential witness. Although this case was originally scheduled for trial

on February 10, 2003, it was apparently continued at the request of Tadlock Pipe.

The matter was then rescheduled for a bench trial on March 30, 2003. On March 22,

2003, Waste Management resubmitted its original witness list to the trial court.

Waste Management called Arabie as a witness after calling David

Tadlock on cross-examination during its case in chief. At that point, counsel for

Tadlock Pipe objected to him being called as he had not been included in either of

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Waste Management’s pre-trial witness lists. Counsel for Waste Management argued

that Arabie’s name had been included in its February 10, 2000 answers to

interrogatories as a person who might have knowledge of this incident. She further

argued that she was calling Arabie as an impeachment witness in order to refute

David Tadlock’s testimony. After listening to argument by both sides, the trial court

sustained Tadlock Pipe’s objection stating that David Tadlock had been called by

Waste Management in its case in chief and that the trial court did not think this was

the proper time for Waste Management to attack his testimony.

After the close of Waste Management’s case, Tadlock Pipe presented its

evidence, but did not call David Tadlock on direct examination. After Tadlock Pipe

rested its case, Waste Management attempted to call Arabie as a rebuttal witness in

order to contradict David Tadlock’s earlier testimony. The trial court refused to

change its earlier ruling. Thus, Waste Management made a proffer of his testimony.

A trial judge has great discretion in conducting a trial. The judge
is required to do so in an orderly, expeditious manner and to control
proceedings so that justice is done. LSA-C.C.P. art. 1631; Pino v.
Gauthier, 633 So.2d 638, 648 (La.App. 1st Cir.1993), writs denied, 94-
0243 and 94-0260 (La.3/18/94), 634 So.2d 858 and 859; Hurts v.
Woodis, 95-2166 (La.App. 1st Cir.6/28/96), 676 So.2d 1166, 1174. The
judge’s discretion includes the admissibility of a witness’s testimony.
Combs v. Hartford Ins. Co., 544 So.2d 583, 586 (La.App. 1st Cir.), writ
denied, 550 So.2d 630 (La.1989). It is only upon a showing of a gross
abuse of discretion that appellate courts have intervened. Pino, 633
So.2d at 648.

Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 01-2812, pp.

7-8 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 03-0306 (La. 4/4/03),

840 So.2d 1219. Further, in Robinson v. Apria Healthcare, Inc., 38,438, p. 13

(La.App. 2 Cir. 5/27/04), 874 So.2d 418, 426, the appellate court stated with regard

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to pre-trial orders:

La. C.C.P. art. 1551 gives a court wide discretion to provide for
implementation of a pretrial order and to insure that the items of the
pretrial order are enforced. The theory inherent in pretrial procedure is
the avoidance of surprise and the allowance of the orderly disposition of
the case. The pretrial order controls the subsequent course of action,
though it can be modified at trial to prevent substantial injustice.
Vernon v. Wade Correctional Center, 26,053 (La.App.2d Cir.8/19/94).
The trier of fact is given broad discretion to determine whether to
modify a pretrial order. This discretion is controlled by the principle
that it must be exercised to prevent substantial injustice to the parties
who have relied on the pretrial rulings or agreements and structured the
preparation and presentation of their cases accordingly. Absent an
abuse of discretion, the trier of fact’s decision will be upheld. Vernon
v. Wade Correctional Center, supra.

In its argument to the trial court, Waste Management called Arabie both

as an impeachment and a rebuttal witness. In its appellate brief, it argues that Arabie

is an impeachment witness, whose testimony was offered to refute that given by

David Tadlock. No matter the type of witness, we find that the trial court did not

abuse its discretion in refusing his testimony. The proffered testimony clearly goes

to the main issue of whether Tadlock Pipe was disposing of contaminated waste,

whether it knew that it was disposing of such waste, and the actions it took to avoid

being discovered as the source of the waste at issue. Thus, we conclude that Waste

Management clearly intended Arabie’s testimony as direct evidence of the issue being

litigated, rather than the impeachment evidence it claims. See Robinson, 874 So.2d

418. Accordingly, we find that his name should have been included on the pre-trial

witness list and that the trial court did not err in refusing to allow him to testify at

trial.

We further find that the trial court correctly refused to allow Arabie to

testify as a rebuttal witness since Tadlock Pipe did not call David Tadlock during its

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case in chief. Rebuttal evidence by a plaintiff is limited to countering that evidence

raised by a defendant during their case in chief. Roberts v. Owens-Corning

Fiberglass Corp., 03-248 (La.App. 1 Cir. 4/2/04), 878 So.2d 631; La.Code Evid. art.

611(E). Since David Tadlock was never called on direct examination by Tadlock

Pipe, he adduced no evidence on direct examination which could be countered. It

moves us little to hear Waste Management bemoan the fact Tadlock Pipe failed to call

any witness professing to have knowledge as to possible radioactive materials being

placed in its waste container. Only David Tadlock’s testimony, albeit under cross-

examination, touched on this salient issue. The essence of Tadlock Pipe’s case is that

it did not place radioactive materials in the container. It did not have to prove that it

did not commit those acts. Waste Management had to prove that it did. Arabie

possessed information that tended to prove that Tadlock Pipe did or did not do things

that may have shown it placed the radioactive materials in the container. This is

evidence that should have been presented in Waste Managment’s case in chief as it

is neither impeachment testimony nor rebuttal testimony. Accordingly, this whole

matter could have been avoided had Waste Management included Arabie, arguably

its most important witness, on its pre-trial witness list.

Based on our finding, we are precluded from conducting a de novo

review of the record as requested by Waste Management. Thus, we are relegated to

a manifest error review of the matter. After conducting a thorough review of the

record, we cannot say the trial court was manifestly erroneous or clearly wrong in

finding that Waste Management failed to prove that Tadlock Pipe was responsible for

the radioactive materials in its container. As such, its remaining assignments of error

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are dismissed as being without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

The costs of this appeal are assessed to the plaintiff-appellant, Waste Management

of Louisiana, L.L.C.

AFFIRMED.

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