Craig Steven Arabie v. Citgo Petroleum Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-334

CRAIG STEVEN ARABIE, ET AL.

VERSUS

CITGO PETROLEUM CORPORATION, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-2738
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
James T. Genovese, Judges.

AMENDED AND, AS AMENDED, AFFIRMED.

William B. Baggett
Wells Talbot Watson
Baggett, McCall, Burgess, Watson & Gaughan
P. O. Drawer 7820
Lake Charles, LA 70605-7820
Telephone: (337) 478-8888
COUNSEL FOR:
Plaintiffs/Appellants - Jason Doucet, Charles Hardy, Bennett Talbot, Craig
Steven Arabie, Scott Levy, Dennie Bankston, Larry Thomas, John Giovanni,
Glen Miller, Dexter Breaux, Jimmy Buckelew, Randall Fontenot, Jerry Richard,
Jr., and Joseph Burnett

Peter J. Butler
2000 Belle Chase Hwy. - 3rd Floor
Gretna, LA 70056
Telephone: (504) 433-9350
COUNSEL FOR:
Plaintiffs/Appellants - Jason Doucet, Charles Hardy, Bennett Talbot, Craig
Steven Arabie, Scott Levy, Dennie Bankston, Larry Thomas, John Giovanni,
Glen Miller, Dexter Breaux, Jimmy Buckelew, Randall Fontenot, Jerry Richard,
Jr., and Joseph Burnett

Robert E. Landry
Scofield, Gerard, Singletary & Pohorelsky, L.L.C.
901 Lakeshore Drive - Suite 900
Lake Charles, LA 70601
Telephone: (337) 433-9436
COUNSEL FOR:
Defendant/Appellee - Citgo Petroleum Corporation

Kirk Albert Patrick, III
Law Offices of Donohue Patrick
450 Laurel Street - Suite 1500
Baton Rouge, LA 70801
Telephone: (225) 214-1908
COUNSEL FOR:
Defendant/Appellee - R & R Construction, Inc.

Yul Dubart Lorio
Doucet, Lorio & Moreno
One Lakeshore Drive - #1600
Lake Charles, LA 70601
Telephone: (337) 433-0100
COUNSEL FOR:
Defendant/Appellee - Citgo Petroleum Corporation

Marshall Joseph Simien, Jr.
Simien Law Firm
Capital One Tower - Suite 1110
One Lakeshore Drive
Lake Charles, LA 70629
Telephone: (337) 497-0022
COUNSEL FOR:
Defendant/Appellee - Citgo Petroleum Corporation

Richard Edward Sarver
Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C.
909 Poydras Street - Suite 2400
News Orleans, LA 70112
Telephone: (504) 589-9700
COUNSEL FOR:
Defendant/Appellee - Citgo Petroleum Corporation

Richard Elliott Wilson
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
Telephone: (337) 436-6611
COUNSEL FOR:
Plaintiffs/Appellants - Jason Doucet, Charles Hardy, Bennett Talbot, Craig
Steven Arabie, Scott Levy, Dennie Bankston, Larry Thomas, John Giovanni,
Glen Miller, Dexter Breaux, Jimmy Buckelew, Randall Fontenot, Jerry Richard,
Jr., and Joseph Burnett

THIBODEAUX, Chief Judge

Fourteen plaintiffs, who were exposed to Citgo Petroleum Corporation’s

slop oil and waste water release, assert that the trial court erred in its assessment of

damages. We find—because a defendant is liable for all the costs associated with a

plaintiff’s surgery if the defendant’s actions accelerated the need for that

surgery—that the trial court misapplied the law by awarding only a portion of

damages incurred by one of the plaintiffs who has undergone a surgery as a result of

his exposure. We also find that the trial court abused its discretion by awarding all

of the plaintiffs, except three, the same amount in pain and suffering damages

associated with the exposure even though the plaintiffs’ symptoms varied

significantly in duration and intensity. Finally, we increase to the lowest point within

the trial court’s discretion, the pain and suffering award to five of the plaintiffs whose

exposure-related symptoms lasted one year or longer.

I.

ISSUES

In this toxic release case, we shall consider:

(1) whether the trial court erred by awarding three of the
plaintiffs, Dennis Bankston, Larry Thomas, and
Charles Hardy, only a portion of their damages
where the plaintiffs had various pre-existing
conditions;

(2) whether the trial court abused its discretion by
awarding the same quantum of pain and suffering
damages to all of the plaintiffs, except three, where
the duration and intensity of the plaintiffs’
symptoms varied significantly; and,

(3) having found an abuse of discretion as to some of
the plaintiffs, what was the lowest award within the
trial court’s discretion where the plaintiffs’
symptoms included nausea, stomach pain, diarrhea,
dizziness, respiratory and sinus problems, sore
throat, rash, acne, headaches, eye irritation, sleeping

difficulties, fatigue, cough, and skin peeling and
where these symptoms lasted anywhere from one to
twelve months and some were ongoing at the time of
the trial.

II.

FACTS

This case arises out of the 2006 oil spill and air release at Citgo’s

refinery in Lake Charles. After a trial, the court concluded that the plaintiffs were

entitled to various damage awards whose amounts are subjects of this appeal.

The trial court awarded each of the plaintiffs $30,000.00 in punitive

damages and $2,500.00 for fear of developing a disease. Three of the

plaintiffs—Dennis Bankston, Charles Hardy, and Larry Thomas—received damages

associated with the aggravation of their pre-existing conditions in addition to the

damages associated with the exposure.1 The rest of the plaintiffs, except the two who

received $4,500.00, received $5,000.00 in pain and suffering damages associated with

their exposure. Other damage awards, such as medical expenses and lost wages,

varied from plaintiff to plaintiff.

The trial court found that the plaintiffs suffered the following injuries as

a result of Citgo’s fault in causing the spill:

(1) Craig Arabie experienced nausea, burning eyes, and dizziness for

about two months; he generally felt ill for six months and suffered from diarrhea for

one year. He received $5,000.00 for his pain and suffering.

(2) Dennis Bankston experienced nausea for about a month. He also

suffered from headaches, sinus problems, and had difficulty breathing while near the

1
Both Bankston and Thomas received $5,000.00 in pain and suffering damages associated
with the exposure in addition to the pain and suffering damages awarded for the aggravation of their
pre-existing conditions. The trial court did not separate Hardy’s pain and suffering damages into
those associated with the exposure and those associated with the aggravation of his pre-existing
conditions.

2

spill. The trial court found that Bankston had a pre-existing sinus problem that was

aggravated by the exposure which “accelerated the need for what would have been

a necessary surgery.” Thus, the trial court divided Bankston’s damages into the ones

associated with the exposure and the ones associated with the surgery. The trial court

found that Bankston’s damages associated with the surgery were: (a) $17,631.80 in

medical expenses; (b) $2,500.00 in lost wages; and, (c) $30,000.00 in general

damages. Yet, the trial court awarded only ten percent of these damages, i.e.,

$5,012.00. In addition, Bankston received $5,000.00 for his pain and suffering

associated with the exposure.

(3) Dexter Breaux suffered from shortness of breath and nausea for three

to four weeks, headaches for six months, sinus irritation for ten months, and fatigue.

He received $5,000.00 for his pain and suffering.

(4) Jimmy Buckelew suffered from a sore throat, headache, and

weakness for ten to eleven months. He had nausea and stomach pain until the

materials were removed. In its written reasons for judgment, the trial court also stated

that “[h]is pre-existing high blood pressure and diabetes were aggravated.” Yet, two

sentences later, the trial court wrote: “[t]he court was not satisfied that an

aggravation of Mr. Buckelew’s pre-existing conditions occurred.” Buckelew was

awarded $5,000.00 in pain and suffering. None of his awards was reduced by a

percentage because of the pre-existing conditions.

(5) Joseph Burnett experienced eye irritation, respiratory and sinus

problems for four to five months, as well as stomach cramps and nausea for three to

four months. The trial court found that he experienced less exposure than his co-

workers and awarded him $4,500.00 for his pain and suffering.

3

(6) Jason Doucet experienced nausea, diarrhea, sore throat, sinus

inflammation, cough, and a rash from his ankle to his knee. Finding that all of his

symptoms were resolved after five or six months, the trial court awarded Doucet

$5,000.00 for the pain and suffering.

(7) Randall Fontenot experienced a rash, headaches, sleeping difficulties,

and problems eating at work for three months. He was awarded $5,000.00 for his

pain and suffering.

(8) John Giovanni experienced diarrhea and burning eyes for two to

three weeks and sinus problems and headaches for a year. The trial court found that

he had a continuing problem with his sense of smell. The court awarded Giovanni

$5,000.00 for the pain and suffering.

(9) Charles Hardy experienced headaches, blurred vision, depression,

cough, fatigue, and sleeplessness. Some of these symptoms, as well as a rash and a

sore throat, have reoccurred and were ongoing at the time of the trial. Hardy was out

of work for four to five months because of his depression and eye problems. Because

of Hardy’s pre-existing conditions, the trial court reduced his damages associated

with the exposure and the aggravation of his pre-existing conditions by seventy-five

percent. Even with the reduction, Hardy’s damages exceeded $50,000.00. Plaintiffs

designated their causes of action as “non-jury” under La.Code Civ.P. art. 1732,

thereby limiting their claims for damages to $50,000.00 per plaintiff. Thus, the trial

court reduced Hardy’s damages to $50,000.00.

(10) Scott Levy experienced a rash on his chest and head, nausea, and

respiratory problems for one to two months. He had elevated liver enzymes for six

months. The trial court found that Levy had less exposure than other plaintiffs

4

because of his work schedule and, therefore, awarded him $4,500.00 for the pain and

suffering.

(11) Glen Miller suffered from headaches, diarrhea, dizziness, when near

the spill, for two to four months. He also experienced blistering and peeling on the

hand that came into contact with the slop oil. Miller’s sinus problems and peeling of

the hand were ongoing at the time of the trial. The trial court awarded Miller

$5,000.00 for the pain and suffering.

(12) Jerry Richard, Jr. suffered from a rash and acne for two to three

months. He experienced diarrhea, a sore throat, and nausea for one month. Richard

had sleep difficulties and fatigue for four months, as well as sinus problems and

cough for six months. Richard experienced severe headaches for seven months and

shortness of breath for one year. The trial court awarded Richard $5,000.00 for the

pain and suffering associated with the exposure.

(13) Bennett Talbot suffered from nausea and burning eyes for about two

weeks. He experienced headaches and sore throat for about two months, and diarrhea

and constipation for a few months. Talbot had sinus problems at the time of the trial.

The trial court awarded Talbot $5,000.00 for the pain and suffering.

(14) Larry Thomas experienced problems swallowing, suffered from a

sore throat, a rash, and sleeplessness for four to five months. He had headaches and

eye irritation for six months. The trial court found that he had ongoing sinus

problems and that it took about six months after the clean up for Thomas’s diabetes

to become properly regulated again. The trial court concluded that some long-term

sleep and rash issues were the only symptoms that were aggravated by Citgo’s

delictual conduct. Accordingly, the trial court awarded twenty percent of the

$2,172.00 in medical expenses and of the $8,000.00 in pain and suffering damages

5

that the trial court associated with the aggravation of Thomas’s pre-existing

conditions. In addition, the trial court awarded Thomas $5,000.00 for the pain and

suffering associated with the exposure.

In its written reasons for judgment, the trial court stated:

[t]here is significant disagreement as to causation
among the various experts in this matter. However, taking
the evidence as a whole, the plaintiffs have established that
more probably than not, the admitted negligence of the
spill was a cause-in-fact (albeit to different degrees) of
their various injuries. It was also established that the
effects were short term, approximately one to three months,
and no long term or permanent injuries were suffered.

The plaintiffs appealed, arguing that the trial court misapplied the law

related to the aggravation of the pre-existing conditions by awarding Bankston,

Hardy, and Thomas only a percentage of their damages. The plaintiffs further assert

that the trial court erred by finding that the effects of the spill were short-term,

approximately one to three months in duration, and, at the same time, finding that

several of the plaintiffs had ongoing symptoms at the time of the trial. Finally, the

plaintiffs assert that the trial court abused its discretion by awarding essentially the

same amount for the pain and suffering to all of the plaintiffs.

On the other hand, arguing that plaintiffs Bankston, Hardy, and Thomas2

should receive damages only for the aggravation of their pre-existing conditions,

Citgo maintains that the trial court did not err by awarding only a percentage of

damages to these plaintiffs.3 Furthermore, Citgo submits that the trial court was not

inconsistent in its written reasons for judgment because the trial court recited the

2
This court notes the typographical error in Citgo’s brief to this court where it claimed that
the three plaintiffs who were awarded percentages of their damages were Bankston, Hardy, and
Doucet. We presume that Citgo meant to name Thomas instead of Doucet because Thomas is the
only plaintiff, other than Bankston and Hardy, who was awarded a percentage of his damages.
3
In its brief, Citgo argues that the trial court erred by concluding that the plaintiffs proved the
causation element of their claims. Because Citgo did not answer this appeal, we do not consider the
question of causation pursuant to La.Code Civ.P. art. 2133.

6

symptoms each plaintiff alleged to have suffered. Thus, Citgo argues, the trial court

found that plaintiffs proved only one to three months suffering from the symptoms.

Finally, because the trial court found that the plaintiffs’ symptoms were transient in

nature, Citgo maintains that the trial court did not award an abusively low amount in

damages.

III.

STANDARD OF REVIEW

Appellate courts review the trial court’s award of damages for abuse of

discretion. Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70. The trial

court’s assessment of the appropriate amount of damages is a finding of fact to which

appellate courts give great deference on review. Id. Thus,

[b]efore a Court of Appeal can disturb an award made by
a [factfinder,] the record must clearly reveal that the trier of
fact abused its discretion in making its award. Only after
making the finding that the record supports that the lower
court abused its much discretion can the appellate court
disturb the award, and then only to the extent of lowering
it (or raising it) to the highest (or lowest) point which is
reasonably within the discretion afforded that court.

Guillory v. Lee, 09-75, p. 15 (La. 6/26/09), 16 So.3d 1104, 1117 (citations omitted).

Nevertheless, “[a]lthough appellate courts must accord great weight to

the factual findings of the trial judge, these same courts have a duty to determine if

the fact finder was justified in his conclusions.” Mart v. Hill, 505 So.2d 1120, 1127

(La.1987) (citation omitted). Thus, the appellate courts are not required to affirm a

factual finding “reached by overlooking applicable legal principles” simply because

of the standard of review. Id. If the trial court erroneously applied the law which

interdicted the fact-finding process, “the appellate court is to review the evidence de

novo and apply the correct legal principles.” Hebert v. Southwest La. Elec.

7

Membership Corp., 95-405, p. 10 (La.App. 3 Cir. 12/27/95), 667 So.2d 1148, 1156,

writs denied, McSpadden v. Southwest La. Elec. Membership Corp., 96-277, 96-798

(La. 5/17/96), 673 So.2d 607, 608 (citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252

(La. 2/20/95), 650 So.2d 742).

IV.

LAW AND DISCUSSION

This case involves two sets of plaintiffs. For the first set of plaintiffs,

which includes Bankston, Hardy, and Thomas, the trial court determined a quantum

of damages associated with the aggravation of their pre-existing conditions in

addition to the damages associated exclusively with the exposure. The trial court then

reduced the damage awards for the aggravation by a percentage that the trial court

determined to be due to the pre-existing conditions.

The second set of plaintiffs, which includes all other plaintiffs, received

either $4,500.00 or $5,000.00 for the pain and suffering associated with the exposure.

In addition, each plaintiff in both sets received $2,500.00 for fear of developing a

disease and $30,000.00 in punitive damages, as well as medical expenses and lost

wages.

First, we consider whether the trial court misapplied the law by reducing

the damage awards associated with the aggravation of the pre-existing conditions of

the first set of plaintiffs. Here, we do not review the quantum of damages per se.

Rather, we review whether the trial court misapplied the law and, thereby, erred by

reducing the quantum of damages the trial court determined to be due to these

plaintiffs. Here, we apply a de novo standard of review.

8

Next, applying an abuse-of-discretion standard of review, this court

examines whether the trial court’s assessment of the plaintiffs’ damages for the pain

and suffering was abusively low.

A) The Trial Court’s Percentage of the Damages Award
to Three of the Plaintiffs

“Every act whatever of man that causes damage to another obliges him

by whose fault it happened to repair it.” La.Civ.Code art. 2315. “[A] defendant takes

his victim as he finds him and is responsible for all natural and probable

consequences of his tortious conduct.” Am. Motorist Ins. Co. v. Am. Rent-All, Inc.,

579 So.2d 429, 433 (La.1991). “[W]hen the defendant’s tortious conduct aggravates

a pre-existing injury or condition, he must compensate the victim for the full extent

of this aggravation.” Lasha v. Olin Corp., 625 So.2d 1002, 1003 (La.1993).

When it comes to damages, in some cases a tension may arise between

the principle of defendant’s liability only for the aggravation of the plaintiff’s pre-

existing conditions and the principle of the defendant’s taking his victim as he finds

him. A thorough review of our jurisprudence and the synthesis of these two

principles reveal that when a plaintiff’s pre-existing condition is aggravated, the

plaintiff is entitled to damages attributable to the aggravation. On the other hand,

when the plaintiff’s pre-existing condition makes that plaintiff vulnerable to a new

condition, from which the plaintiff did not suffer before the injury, the defendant is

liable for all the damages associated with this new injury even though the plaintiff

would not have had the new injury had the plaintiff not suffered from the pre-existing

condition.

The following illustration may be helpful. If a plaintiff suffered from

migraine headaches before the injury, but those headaches intensified or increased in

9

frequency after the injury, the plaintiff is entitled to damages attributable only to the

aggravation of the pre-existing headache. On the other hand, if a plaintiff suffered

from osteoporosis and the defendant’s negligence caused the plaintiff to break her

limb, then the plaintiff is entitled to the entirety of the damages associated with the

broken limb even though the plaintiff would not have broken her limb had she not

suffered from osteoporosis.

Thus, where a heavy smoker had experienced ordinary upper respiratory

problems, such as bronchitis and sinusitis, prior to his exposure to chlorine gas but

was diagnosed with chronic bronchitis, clinical asthma, and depression after the

exposure, the supreme court held the defendant liable for all of the damages the

plaintiff experienced “even though under the same circumstances a normal person

would not have suffered that illness or injury.” Lasha, 625 So.2d at 1006. The

supreme court reasoned that

[t]he defendant’s liability for damages is not mitigated by
the fact that the plaintiff’s pre-existing physical infirmity
was responsible in part for the consequences of the
plaintiff’s injury by the defendant. It is clear that a
defendant takes his victim as he finds him and is
responsible for all natural and probable consequences of
his tortious conduct.

Id. at 1005 (citations omitted).

Similarly, this court held the defendant liable for all of the plaintiff’s

medical expenses, lost wages, and general damages associated with a back surgery

even though the plaintiff would eventually have undergone the surgery because he

had congenital problems with his spine that were aggravated by chronic inflammatory

problems. Abshire v. Wilkenson, 01-75 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158.

This court reasoned that “although he may have required surgery at some point in the

10

future,” because the defendant takes the victim as he finds him, the plaintiff was

entitled to all of the damages. Id. at 1168.

On the other hand, the supreme court has placed its imprimatur upon an

award of a fraction of plaintiff’s medical expenses where the plaintiff, prior to the car

accident at issue in the case, had a history of chronic pain and numbness in his neck,

lower back, legs, and arms, had undergone a back and a carpal tunnel release

surgeries, experienced depression, bruxism, and other various problems and pains.

The supreme court reasoned that “the jury could have reasonably concluded plaintiff

was a chronic pain patient, and underwent a previous surgery as a result of neck pain

. . . which did not fully resolve his painful condition.” Guillory, 16 So.3d at 1124.

The supreme court also concluded that, given the plaintiff’s pre-existing conditions,

$10,000.00 for the pain and suffering was not abusively low in this case even though

the plaintiff underwent a discography with cervical discectomy subsequent to the

accident at issue.4 Id.

Here, the trial court found that Citgo’s conduct “accelerated the need for

what would have been a necessary surgery” for Dennis Bankston. The court then

reduced Bankston’s damages associated with the surgery by ninety percent. This

court concludes that the trial court has misapplied the law with respect to this

plaintiff. Like the plaintiff in Abshire, Bankston had a congenital problem and some

sinus problems prior to the exposure. Both here and in Abshire, plaintiffs would

eventually have undergone surgery. Nevertheless, because Citgo’s negligent conduct

exacerbated Bankston’s symptoms and triggered the need for the surgery, it is liable,

like the defendant in Abshire, for all of the damages associated with the surgery, not

just a portion thereof.

4
This case also was complicated by a minor car accident subsequent to the accident at issue.

11

The trial court found that medical expenses, lost wages, and general

damages associated with the surgery amounted to over $50,000.00. Because

$50,000.00 is the maximum amount of damages this court can award to this plaintiff,

we increase the trial court’s award to Bankston by $6,708.00.

The case of Larry Thomas is a little different. The trial court found that

Thomas had difficulties controlling his diabetes after the exposure and that “some

long term sleep and rash issues were all that were aggravated by this spill.” Thus, the

trial court divided Thomas’s damages into those associated with the exposure and

those associated with his pre-existing/co-occurring conditions, awarding the entirety

of damages associated with the exposure and twenty percent of damages associated

with the aggravation of the pre-existing conditions.

Thomas testified that he did not have any pre-existing sleep and rash

issues. Dr. Barry Levy, the plaintiffs’ expert, testified that the exposure to the slop

oil caused Thomas’ sleep and rash problems. Thus, this court presumes that the

aggravation damages the trial court awarded were for the aggravation of Thomas’s

diabetes. Thomas testified that he had his diabetes under control before the exposure.

After the exposure, Thomas testified he had difficulties controlling his diabetes and

had to change his medicine accordingly. After six months, Thomas went back to the

medication he used before the exposure. The trial court also had Dr. Brian

Barrilleaux’s general statement that an exposure to noxious fumes can influence

diabetes control. Nevertheless, Dr. Levy, the plaintiffs’ expert, testified that he could

not make a determination as to whether Thomas’ increased difficulty in controlling

his diabetes after the exposure was related to the exposure.

Thus, the record evinces some causation issues. The trial court appears

to have resolved those in favor of Thomas. Plausibly, based on Dr. Levy’s testimony,

12

that decision was manifestly erroneous. Yet, Citgo chose not to answer this appeal

and, instead, asked this court to affirm the trial court’s judgment on the quantum of

damages, maintaining that the award was within the trial court’s discretion.5

Based on these considerations, while this court does not increase

Thomas’s damages associated with the aggravation of his pre-existing condition

because of serious causation issues, we do not reduce that award either because of

Citgo’s failure to answer this appeal.

The trial court awarded Charles Hardy over $50,000.00 in damages. The

trial court then reduced the award to $50,000.00, the maximum allowed in this case.

Because this court cannot increase Hardy’s award and because Citgo did not answer

the plaintiff’s appeal requesting a reduction in damages, we do not consider whether

the trial court erred with respect to this plaintiff.

B) The Trial Court’s Award of the Pain and Suffering Damages

“In the assessment of damages in cases of offenses, quasi offenses, and

quasi contracts, much discretion must be left to the judge or jury.” La.Civ.Code art.

2324.1. The trial courts’ discretion in assessment of damages is substantial and is

entitled to great deference on review. Guillory, 16 So.3d 1104.

When an appellate court reviews damage awards, its role is not to decide

what is an appropriate award, but rather to review the trial court’s exercise of its

discretion. Id. During this review, an appellate court must not re-weigh evidence or

5
Citgo maintains a separate appeal in which it asserts that the trial court erred by finding that
plaintiffs sustained their burden of proving causation. Nevertheless, that appeal deals with causation
issues as to all of the plaintiffs. In other words, Citgo argues that none of the symptoms experienced
by the plaintiffs was due to its negligence, not that Citgo’s negligence did not cause a particular
symptom of a particular plaintiff.

The issue in this case is whether this court should increase the quantum of damages the trial
court awarded. If Citgo wanted to have the judgment of the trial court “modified, revised, or
reversed in part,” it should have filed an answer to this appeal. La.Code. Civ.P. art. 2133.

13

substitute its own factual findings. Id. Thus, it is only when the award is past that

which a reasonable trier of fact could award “for the effects of the particular injury

to the particular plaintiff under the particular circumstances that the appellate court

should increase or reduce the award.” Id. at 1117 (quoting Youn v. Mar. Overseas

Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059

(1994)).

The trial court’s assessment of the damages may be disturbed only after

an appellate court determines that the record clearly reveals the trial court abused its

discretion. Id. Once this court finds an abuse of discretion, it may lower or raise the

award “to the highest (or lowest) point which is reasonably within the discretion.”

Guillory, 16 So.3d at 1117 (citations omitted).

1) Whether the Trial Court Abused its Discretion

This court finds that the trial court abused its discretion with respect to

the following plaintiffs: Arabie, Buckelew, Giovanni, Miller, and Richard. The trial

court found that the exposure-caused symptoms of these plaintiffs lasted one year or

longer. Yet, the trial court awarded these plaintiffs essentially the same amount in

pain and suffering damages as it did to the other plaintiffs whose symptoms were

significantly shorter in duration.6

In addition to the symptoms experienced by other plaintiffs such as

burning eyes, dizziness, and nausea, the trial court found that Arabie suffered from

6
In their brief, the plaintiffs argue that the trial court was inconsistent in its findings of fact
by stating that the “effects were short term, approximately one to three months,” and, at the same
time, finding that several of the plaintiffs suffered from the effects of the spill for much longer
periods and awarding medical expense damages accordingly. We do not find this inconsistent
because when the trial court refers to the effects which were “short term, approximately one to three
months,” it most likely refers to the effects of the spill, the noisome odor, for example, and not to
the plaintiffs’ injuries. Thus, we need not address the plaintiffs’ assertions that the trial court
awarded special damages without awarding the corresponding general damages.

14

diarrhea for one year and generally felt ill for six months. Arabie received only

$5,000.00 for his pain and suffering. We conclude that this award was abusively low.

The trial court found that Buckelew, in addition to other symptoms,

experienced a sore throat, headache, and weakness for ten to eleven months. The trial

court also concluded that Buckelew’s “pre-existing high blood pressure and diabetes

were aggravated” and that he “returned to his baseline state of health as of May

2007,” i.e., almost a year after the spill. Nevertheless, in the very next sentence the

trial court wrote “[t]he Court was not satisfied that an aggravation of Mr. Buckelew’s

pre-existing conditions occurred.” We are befuddled by these conflicting assertions.

Nevertheless, irrespective of whether Buckelew’s diabetes and high blood pressure

were aggravated, this court finds that $5,000.00 for the pain and suffering associated

with eleven months of sore throat, headache, and weakness is abusively low.

The trial court found that Giovanni, in addition to the other symptoms,

experienced headaches and sinus problems for a year. The court also found that he

had difficulties with his sense of smell at the time of the trial. This court finds

abusively low the award of $5,000.00 for the pain and suffering associated with the

inability to smell for over two years and headaches and sinus problems for one year.

In addition to the other, more transitory symptoms, Miller, at the time of

the trial, continued to suffer from sinus problems and blistering and peeling of the

hand that came into contact with the slop oil. This court finds the award of $5,000.00

for the pain and suffering associated with these injuries abusively low.

The trial court found that Richard, in addition to a rash, diarrhea, sore

throat, nausea, fatigue, acne, sinus problems, and a cough that lasted anywhere from

two to six months, experienced severe headaches for seven months and shortness of

15

breath for one year. We find that the award of $5,000.00 for these long-lasting

symptoms was abusively low.

We find the awards to the rest of the plaintiffs to be somewhat low.

Nevertheless, given the trial court’s vast discretion, they are not abusively so. This

is because other plaintiffs’ symptoms, unlike the symptoms of Arabie, Buckelew,

Giovanni, Miller, and Richard that lasted close to a year or longer, were significantly

shorter in duration and milder in intensity.

2) The Lowest Point of Award Which Was Reasonably Within
the Trial Court’s Discretion

While commenting that the award of general damages was “at the low

end of the spectrum,” an appellate court affirmed a jury award of $100.00 to

$3,000.00 to five bellwether plaintiffs exposed to natural gas, who “were only

inconvenienced for a very short period of time,” and who suffered minimal physical

and mental injury such as nausea and headaches. Rivera v. United Gas Pipeline Co.,

96-502, 96-503, 97-161, p. 13 (La.App. 5 Cir. 6/30/97), 697 So.2d 327, 337, writs

denied, 97-2030, 97-2031, 97-2032, 97-2034 (La. 12/12/97), 704 So.2d 1196, 1197.

Similarly, an appellate court affirmed the trial court’s award of $500.00

to $2,000.00 to the plaintiffs who “suffered some level of inconvenience,” but who

did not suffer “any serious injury” because of their exposure to water contaminated

by oil, grease, and other contaminants. Doerr v. Mobil Oil Corp., 04-1789, p. 9

(La.App. 4 Cir. 6/14/06), 935 So.2d 231, 237, writ denied, 06-1760 (La. 11/3/06), 940

So.2d 664.

On the other hand, an appellate court affirmed an award of $20,000.00

for pain and suffering where the plaintiff suffered nausea, eye and throat irritation

for three days but, at the time of the trial, continued to experience dizziness as a result

16

of his exposure to the burning railroad tank car with a leaking butadiene tank. In re

New Orleans Train Car Leakage Fire Litig., 00-1919 (La.App. 4 Cir. 4/20/05), 903

So.2d 9, writ denied, 05-1297 (La. 2/3/06), 922 So.2d 1171. In the same case, the

court affirmed an award of $15,000.00 for the pain and suffering to the plaintiff who

suffered eye irritation, choking, and nausea for some days, but continued to suffer

from skin irritation at the time of the trial. Id.

Relying on the above jurisprudence, this court finds that the lowest

award which was reasonably within the trial court’s discretion for Arabie’s injuries,

given his experience of diarrhea for one year and general feeling of being ill for six

months, is $12,500.00. Thus, we increase Arabie’s total award to $45,912.00.

The lowest award which was reasonably within the trial court’s

discretion for Buckelew’s injuries, given his suffering from sore throat, headache, and

weakness for ten to eleven months, and a possible aggravation of his diabetes, is

$10,000.00. Thus, we increase Buckelew’s total award to $45,350.00.

The lowest award which was reasonably within the trial court’s

discretion for Giovanni’s injuries, given his ongoing inability to smell and one year

of headaches and sinus problems, is $10,000.00. Thus, we increase Giovanni’s total

award to $43,310.65.

The lowest award which was reasonably within the trial court’s

discretion for Miller’s injuries, given his ongoing sinus problems and blistering and

peeling of his hand, is $10,000.00. Thus, we increase Miller’s total award to

$43,030.00.

The lowest award which was reasonably within the trial court’s

discretion for Richard’s injuries, given his severe headaches for seven months and

17

shortness of breath for one year, is $7,500.00. Thus, we increase Richard’s total

award to $40,370.00.

V.

CONCLUSION

The plaintiffs’ damage awards are amended and, as amended, affirmed.

Costs of this appeal are assessed to Citgo.

AMENDED AND, AS AMENDED, AFFIRMED.

18