Peggy Bergeron v. Rapides Parish School Board

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0311

PEGGY BERGERON

VERSUS

RAPIDES PARISH SCHOOL BOARD, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 213,962
HONORABLE ALFRED MANSOUR, JUDGE PRO TEMPORE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

AFFIRMED.
Walton J. Barnes, II
A Professional Law Corporation
351 St. Ferdinand Street
Baton Rouge, LA 70802
(225) 343-9583
ATTORNEY FOR PLAINTIFF/APPELLANT:
Peggy Bergeron
Howard B. Gist, III
Gist Firm, A.P.L.C.
Post office Box 13705
Alexandria, LA 71315
(318) 448-1632
ATTORNEY FOR DEFENDANT/APPELLEE:
Rapides Parish School Board

PETERS, J.

Peggy Bergeron, an employee of the Rapides Parish School Board (School

Board), appeals a trial court judgment dismissing her tort suit against the School

Board for damages allegedly caused by exposure to toxic mold during the 2002-2003

school year.1 We affirm.

An employee of the School Board since 1976, Ms. Bergeron was a school

secretary. During the school years 2001-2003, the School Board assigned her to its

Vance Avenue School facility. That facility consists of two buildings, one two-story

and the other one-story, connected by a walkway. During the first year of her two-

year assignment to the facility she worked in the two-story building. In August 2002,

she was transferred to an office in the one-story building. It was in this office that she

encountered stained ceiling tiles and falling dust which she claims contained toxic

mold.

In her July 29, 2003 suit against the School Board, Ms. Bergeron alleged that,

although the stained ceiling tiles were replaced after she complained, her exposure

to toxic mold persisted and her further request for corrective action went unheeded.

In her petition, she alleged that her exposure during the 2002-2003 school year

caused her to sustain injuries which included aggravated gastritis, epigastic and

1
The jurisprudence reveals that some employees have made claims under the Workers’
Compensation Act for workplace injuries based on mold exposure. See Harper v. Grand Casino
Coushatta, 06-322 (La.App. 3 Cir. 9/27/06), 940 So.2d 911; Gallo v. St. Tammany Parish Hosp.,
04-611 (La.App. 1 Cir. 3/24/05), 906 So.2d 1276. Other claimants have brought civil tort actions
for personal injuries premised upon the fault of the employer. Ms. Bergeron chose the latter path.
The issue of whether mold exposure and its consequences can be covered by the Workers’
Compensation Act was specifically addressed in Ruffin v. Poland Enters., L.L.C., 6-0244 (La.App.
4 Cir. 12/13/06), 946 So.2d 695, writ denied, 07-314 (La. 4/20/07), 954 So.2d 163, and the court of
appeal there held that injuries and illnesses resulting from mold exposure in a clerical job did not fall
under the definition of La.R.S. 23:1031.1 of the Workers’ Compensation Act and were therefore not
compensable as an occupational disease. The court held that the plaintiff, a state employee working
for the Department of Social Services in leased office space, could proceed in her delictual action
against both the building owner and her employer.

abdominal pain, persistent cough, headaches, skin infection, lung infection, breathing

difficulties, itching, and fatigue.

At the May-June 2006 trial, the trial court considered the testimony of

seventeen witnesses on behalf of Ms. Bergeron and four on behalf of the School

Board. After completion of the evidentiary phase of the trial, the trial court took the

matter under advisement. On October 4, 2006, the trial court issued written reasons

for judgment in which it concluded that Ms. Bergeron had failed to prove her claim

by a preponderance of the evidence. On that same day, the trial court executed a

written judgment dismissing Ms. Bergeron’s suit against the School Board. Ms.

Bergeron appeals this judgment.

In its reasons for judgment the trial court identified Ms. Bergeron’s various

theories of recovery and correctly defined her burden of proof, as follows:

Plaintiff asserts several theories of recovery: first, defendants are
liable under negligence (as owners of the immovable property, the
defendants knew of the unreasonable risk of harm posed by the property
and, as such, they had a duty to act but failed to do so); second, the
defendants are vicariously liable unto plaintiff because their employees
had knowledge of the unreasonable risk of harm posed by their property,
and that this knowledge is imputed to the defendants for the acts and
omissions of their employees; third, the defendants are strictly liable due
to their ownership and custody of the property which contained a defect
and which gave rise to a duty to act; fourth, under the doctrine of
premise liability, defendants had a duty to keep their premises in a safe
condition, which this duty was breached, resulting in the alleged injuries
to plaintiff due to a dangerous condition, which would reasonably be
expected to cause injury to a prudent person using ordinary care under
the circumstances; and lastly, the doctrine of res ipsa loquitur.

The plaintiff in a personal injury case bears the burden of proving
by a preponderance of the evidence the cause-in-fact of damages. Ms.
Bergeron has the burden of proving every essential element of her case,
namely: (1) the facility was in the care, custody, and control of the
public body; (2) the truancy office had a vice or defect which created an
unreasonable risk of harm; (3) the injury was caused by the defect; and
(4) the public agency had actual or constructive notice of the dangerous
condition.

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With regard to the actual physical condition of the one-story building at the

Vance Avenue facility, the trial court made the following factual findings:

The testimony clearly establishes that the Vance Avenue facility
had problems. Wilson Dodson, the school’s long time custodian,
testified that he addressed the complaints made by Ms. Bergeron as well
as other employees. Ceiling tiles were changed out in the hallway and
some rooms. There is no doubt in the Court’s mind that the one story
building at the Vance Avenue complex had problems; however, the fact
that a ceiling tile is stained or discolored does not necessarily constitute
a defect that would impose liability upon defendant.

Both Ms. Bergeron and the School Board provided the trial court with expert

testimony. Included within those experts were Dr. Patricia Williams (an expert in the

field of anatomy, toxicology, and in determining the etiology and causation of

environmental occupational diseases), who testified for Ms. Bergeron, and Dr.

Thomas Dydek (an expert in the field of environmental toxicology and human health

risk assessments for exposure to chemicals and microbial agents, epidemiology and

biostatistics), who testified for the School Board. The trial court evaluated this expert

testimony in the following summary:

Dr. Dydek testified that after reviewing the evidence, he was of the
opinion that there was not enough mold to cause health problems, such
as those presented by Ms. Bergeron, noting that there was really no
significant risk, or even an unreasonable risk which he associates with
any objective finding. Further, he testified that he did not consider the
evidence presented to justify the conclusion that this is a mold
infestation. Based upon observations during trial and the underlying
facts, as well as his extensive qualifications and experience, the Court
accepts the testimony of Dr. Thomas Dydek.

Because of his superior qualifications and practical experience,
the Court accepts the opinion of Dr. Dydek over that of Dr. Williams.
Dr. Williams opined that the mold in the truancy office was the cause of
plaintiff’s illness. However, Dr. Williams has little, if any, practical
experience in her field, as opposed to Dr. Dydek who has hands on
practical experience. Further, Dr. Dydek’s testimony also demonstrated
the mycotoxins Dr. Williams alludes to for her theory of liver damages
are not even produced by the several mold varieties found in the truancy
office.

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The trial court also discussed at length the testimony of other experts who had

performed tests and prepared studies of the Vance Avenue facility with regard to the

abnormal presence of the mold. These studies specifically addressed the condition

of Ms. Bergeron. In these words, the court evaluated that testimony:

Further, the Court has taken into account the testimony of
defendant’s witness, John Lechman, a Certified Industrial Hygienist
recognized by the American Board of Industrial Hygiene. The Court
places greater weight on the testimony of Mr. Lechman than the
plaintiff’s counterpart, Mr. Glenn Ray, whose qualifications are not as
impressive as those of Mr. Lechman. Mr. Lechman was asked by the
School Board to participate and observe the plaintiff’s court ordered
inspection on July 31 and subsequently on August 20. Mr. Lechman
conducted a parallel test. Like Dr. Dydek, he testified that the room was
not mold infested and that the mold present in Ms. Bergeron’s office
was to a much larger degree also found outside. The testimony of Dr.
Dydek and Mr. Lechman was buttressed by that of Dr. Roy Dowling, a
board certified industrial hygienist and environmental engineer, who
testified that there is no airborne mold at the Vance Avenue facility to
cause concern. Dr. Dowling did note that he did see a few species inside
that were not outside, but not to any great magnitude. Accordingly, the
Court accepts the testimony of Dr. Dydek, Mr. Lechman, and Dr.
Dowling over that of plaintiff’s experts.

Finally, the trial court’s reasons for judgment examined Ms. Bergeron’s

medical history. With regard to this evidence, the trial court stated the following:

Ms. Bergeron has an extensive medical history and suffers from
a number of medical conditions that predate assignment to the Vance
Avenue facility. Evidence introduced at trial shows that Ms. Bergeron
suffered from preexisting conditions, including lupus, epigastric and
abdominal pain, coughs, headaches, skin rashes, infection, breathing
difficulties, and stress which have manifested over the years from
various causes, both before and after her employment at the Vance
Avenue facility. Ms. Bergeron has a significant history of extended sick
leaves for personal medical reasons, well before ever being assigned to
the Vance Avenue facility. In sum, Ms. Bergeron has had other
incidents of stress or other medical complaints, both before and after her
employment at the Vance Avenue facility.

The records of Dr. David Remedios, Ms. Bergeron’s physician
since 1997, do not note that Ms. Bergeron presented any complaints that
she attributed to mold. Dr. Remedios referred Ms. Bergeron to Dr.
Jonathan Forester, a family practice doctor. Ms. Bergeron presented to

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Dr. Forester complaints of periodic fatigue and severe stomach
problems. She also reported to him that she had been exposed to toxic
mold. Dr. Forester proceeded to do a blood serum Stachybotrys panel,
which turned out to be all negative. Dr. Forester also testified that close
to one hundred percent of the people in our community have sensitivities
to molds and it did not surprise him that Ms. Bergeron has some
sensitivity to mold.

In November 2003, Ms. Bergeron went to Dr. Maan Younes, a
pulmonologist, and presented a history of mold exposure, but neglected
to mention that she had a history of lupus since 1988. Based on this
incomplete history, Dr. Younes initially concluded that her complaints
may have been mold related. It is only after Dr. Younes performed
certain standard tests and advised Ms. Bergeron that her ANA test was
elevated and it is usually so when someone has lupus, that she disclosed
to Dr. Younes that she has been treated for lupus in the past. Dr.
Younes testified that in this case, he cannot tell if this inflamation is
because of hypersensitivity pneumonitis or if it is because of a history
of lupus.

Factual findings of the trial court may not be set aside in the absence of

manifest error or unless they are clearly wrong, and where there is conflict in the

testimony, inferences of fact should not be disturbed upon review, even though the

reviewing court may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, through DOTD, 617

So.2d 880 (La.1993). Cause in fact is a factual question to be determined by the

factfinder. Benjamin ex rel. Benjamin v. Hous. Auth. of New Orleans, 04-1058 (La.

12/1/04), 893 So.2d 1. In order for an appellate court to reverse a factfinder’s factual

determinations, the appellate court must find that a reasonable factual basis does not

exist in the record for the finding and that the record establishes that the finding is

clearly wrong or manifestly erroneous. Stobart, 617 So.2d 880. “Ultimately, the

weight to be given expert testimony is dependent upon the facts on which it is based

as well as the professional qualifications and experience of the expert.” Meany v.

Meany, 94-251, p. 10 (La. 7/5/94), 639 So.2d 229, 236. “Credibility determinations,

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including the evaluation of and resolution of conflicts in expert testimony, are factual

issues to be resolved by the trier of fact, which should not be disturbed on appeal in

the absence of manifest error.” Hanks v. Entergy Corp., 06-477, p. 24 (La. 12/18/06),

944 So.2d 564, 581.

In the reasons for judgment, the trial court chose to credit the expert opinions

of Dr. Dydek, Mr. Lechman, and Dr. Dowling over the opinions of Dr. Williams and

Mr. Glenn Ray. We find no manifest error in that determination. Thus, after

reviewing the record, we find no manifest error in the trial court’s determination that

Ms. Bergeron did not prove by a preponderance of evidence that there existed a mold

infestation in her workplace during the 2002-2003 school year sufficient to amount

to an unreasonably dangerous “defect.” Similarly, we find no manifest error in the

trial court’s assessment of Ms. Bergeron’s medical history and the testimony of the

physicians testifying in the case regarding the causation of her medical problems.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects.

We assess all costs of this appeal to Peggy Bergeron.

AFFIRMED.

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