Gerald A. Newburger, Jr. v. Orkin, L.L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-383

GERALD A. NEWBURGER, JR.

VERSUS

ORKIN, L.L.C., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 261,969
HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
D. Kent Savoie, Judges.

AFFIRMED.

William Alan Pesnell
Alan Pesnell Lawyer LLC
1330 Jackson Street – Suite D
Alexandria, LA 71301
Telephone: (318) 704-6000
COUNSEL FOR:
Plaintiff/Appellant – Gerald A. Newburger, Jr.

Barbara Bell Melton
Faircloth Melton, LLC
105 Yorktown Drive
Alexandria, LA 71303
Telephone: (318) 619-7755
COUNSEL FOR:
Defendant/Appellee – Orkin, L.L.C.

Matthew Nowlin
Keiser Law Firm, P.L.C.
P. O. Box 12358
Alexandria, LA 71315
Telephone: (318) 443-6168
COUNSEL FOR:
Defendant/Appellee – Cypress Point at Lake District Condominium
Association, Inc.

Christopher J. Roy, Sr.
1920 Jackson St.
Alexandria, LA 71301
Telephone: (318) 767-1114
COUNSEL FOR:
Plaintiff/Appellant – Gerald A. Newburger, Jr.

THIBODEAUX, Chief Judge.

Plaintiff, Gerald A. Newburger, Jr., filed a petition for injunctive relief

seeking to enjoin Cypress Point at Lake District Condominium Association, Inc.

(Cypress Point) and Orkin, L.L.C. (Orkin) from performing pest control operations

at or near Plaintiff’s condominium. The matter proceeded to trial on the permanent

injunction against Cypress Point. After Plaintiff completed the presentation of his

evidence, Cypress Point moved for involuntary dismissal pursuant to La.Code Civ.P.

art. 1672(B). The trial court granted the motion, finding that Plaintiff failed to

establish, by a preponderance of the medical evidence, that he will suffer irreparable

harm as a result of Cypress Point conducting pest control operations at or near his

condominium. As our review of the record reveals no manifest error or abuse of

discretion, we affirm the trial court’s judgment.

I.

ISSUES

Plaintiff raises the following issues for this court’s review:

(1) whether Plaintiff presented evidence of irreparable
harm to his person being caused by Defendant’s
pest control operations on motion for involuntary
dismissal;

(2) whether Plaintiff presented prima facie evidence
that Defendant’s pest control operations caused his
physical problems on motion for involuntary
dismissal;

(3) whether the trial court properly dismissed Plaintiff’s
case on a motion for involuntary dismissal; and,

(4) whether the trial court erred in failing to introduce
the statement of Dr. Robert C. Morrison into the
record, given the defense attempt to show a recent
fabrication.

II.

FACTS AND PROCEDURAL HISTORY

On May 14, 2018, Plaintiff brought the present action to enjoin Cypress

Point from spraying noxious chemicals around his condominium, located at 404 G

Ainsley Blvd., Alexandria, Louisiana. The petition alleged that in connection with

certain pest control operations, Cypress Point had contracted with Orkin to have

noxious chemicals sprayed at or near his condominium, which caused him to suffer

certain adverse reactions, “including severe headache, allergic reactions, nausea,

[and] lightheadedness[.]” Because he “believe[d] that continued operations may

permanently and significantly adversely affect his health and safety, causing

petitioner immediate and irreparable injury[,]” Plaintiff prayed that a temporary

restraining order, a preliminary injunction, and a permanent injunction be issued,

enjoining Cypress Point’s pest control operations at or near his condominium.

In support of his petition, Plaintiff submitted a letter from his uncle, Dr.

Robert C. Morrison, in which Dr. Morrison stated that Plaintiff was known by him

to suffer symptoms of chemical sensitivity to certain
pesticides causing him migraine headaches and distress.
An assessment may be needed to determine if medication
might alleviate these symptoms. It is advisable that until
the pesticides are known, that no further exposure occur.

The trial court issued a temporary restraining order, which expired by

operation of law. Sometime thereafter, Plaintiff voluntarily dismissed his

application for preliminary injunction and his claims against Orkin. The matter then

proceeded to bench trial on the permanent injunction against Cypress Point.

Plaintiff testified that he had suffered from migraine headaches all of

his adult life, often triggered by paint fumes, volatile organic chemicals, pesticides,

insecticides, and gasoline. The effects, he explained, are physically debilitating,

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causing dizziness, vertigo, and a complete inability to function at anything other than

lying in a dark room minimizing exposure to triggers and loud noises. According to

him, these effects last for periods of up to two days and prevent Plaintiff from

working, driving, attending social functions, or even going outside to common areas.

Plaintiff further explained that over the years he sought treatment in an unofficial

manner from his uncle, Dr. Morrison, who died after the filing of this litigation.

As to the facts giving rise to this matter, Plaintiff recalled that, on

January 30, 2018, Cypress Point had Orkin spray around the foundation of his

building, at which time he approached and took pictures of the Orkin employee

spraying the pesticide. When he finished taking pictures, Plaintiff went upstairs to

his second floor unit. He testified, “The chemical was all around the stairs, and as I

went upstairs I began to feel sick. That progressed for about an hour, and after about

two hours I was violently sick.” He recalled that he was violently ill for two days

and stated that he simply could not live in his present home if he has to suffer that

on a regular basis.

According to his testimony, there were no more sprayings around his

unit since the filing of this suit, and he has had no further health events. Plaintiff

also testified that the chemical had a smell and that although he inquired, both

Cypress Point and Orkin refused to tell him what chemicals they were using.

When questioned regarding the Articles of Incorporation, the

Condominium Declaration, and the Rules and Regulations for the condominium

association, Plaintiff agreed that he bought his condominium subject thereto and

that, under their provisions, Cypress Point had the power to employ personnel to

perform services required for the proper operation of the condominiums. It was his

understanding that the documents established that the Cypress Point board was

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responsible for maintaining the buildings and that it could hire people to maintain

the complex.

At the conclusion of his testimony, Plaintiff’s counsel sought to

introduce Dr. Morrison’s letter that was attached to the petition to rebut the

implication of “a recent fabrication by [Plaintiff] with regard to Dr. Morrison’s

contacts[.]” Finding the document was hearsay, the trial court refused to admit the

letter.

Plaintiff then called his treating neurologist, Dr. Charles Ugokwe, with

whom Plaintiff consulted after Dr. Morrison died. Dr. Ugokwe testified that there

is no known cause for migraines, but that it is medically accepted that when a person

with migraines is exposed to a precursor, his migraine will get worse. According to

his testimony, strong smells, fumes, MSG, banging one’s head on a wall, and alcohol

are all medically-known precursors that precipitate migraines, and neurologists

speculate that migraines may be hereditary. Dr. Ugokwe also opined that it was

more likely than not that the exposure to the pesticide described by Plaintiff

precipitated or exacerbated the migraine about which Plaintiff complained.

On cross-examination, Dr. Ugokwe admitted that he did not know what

chemical was used by Orkin. If the chemical had no odor, however, then it would

not be a trigger. Moreover, he stated that he just could not “tie . . . back” the exposure

to Plaintiff’s claims.

Discussing Plaintiff’s medical records, Dr. Ugokwe testified that there

was no familial history documented in either his records or Dr. Morrison’s records.

In fact, Dr. Morrison’s records contained no mention of migraines at all, while Dr.

Ugokwe, in his records, noted that Plaintiff conveyed to him “a 20 year history of

migraine and that he was having one to three a month with the last headache one

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month ago, which would have been in December of 2018.” As Orkin had not

sprayed since April 2018, Dr. Ugokwe conceded that “there are other things besides

this alleged pesticide use that triggered his migraines[.]”

Upon further examination by defense counsel, Dr. Ugokwe agreed that

“giving [Plaintiff] notice of the time of application so that he could avoid . . . being

exposed to it [would] be a reasonable accommodation[.]” He further admitted that

there was “no way to know to say anything Orkin was applying was a trigger unless

we determine whether or not it has an odor or fumes.”

The trial court granted Cypress Point’s motion for involuntary

dismissal after Plaintiff rested. It dismissed with prejudice all of Plaintiff’s claims

and demands against all the defendants. In his written judgment, the trial court

stated:

The Court, being of the opinion that, even giving all
allowable inference to Plaintiff, no evidence was
presented, statutory or jurisprudential, to establish by a
preponderance of the evidence that he will suffer
irreparable harm as a result of Defendants conducting pest
control operations at or near Plaintiff’s condominium unit
....

More specifically, this Court finds that Plaintiff
failed to establish medical evidence under a “more
probable than not” preponderance standard to support his
claims that his alleged severe headaches, allergic
reactions, nausea, and lightheadedness were caused by
Defendants’ pest control operations.

III.

STANDARD OF REVIEW

Appellate courts review a trial court’s grant of an involuntary dismissal

under the manifest error standard. Mayes v. State of La., 96-789 (La.App. 3 Cir.

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12/11/96), 685 So.2d 497, writ denied, 97-113 (La. 3/7/97), 689 So.2d 1376. In

accordance with this standard,

[a] reviewing court must keep in mind that if a trial court’s
findings are reasonable based upon the entire record and
evidence, an appellate court may not reverse said findings
even if it is convinced that had it been sitting as trier of
fact it would have weighed that evidence differently.
Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for
this principle of review is grounded not only upon the
better capacity of the trial court to evaluate live witnesses,
but also upon the proper allocation of trial and appellate
functions between the respective courts. See Rosell [v.
ESCO], 549 So.2d 840 [(La.1989)].

Jennings Guest House v. Gibson, 07-912, pp. 2-3 (La.App. 3 Cir. 12/5/07), 971

So.2d 506, 509. A trial court’s decisions to admit or exclude evidence are reviewed

for abuse of discretion. Hebert v. Angelle, 600 So.2d 832 (La.App. 3 Cir.), writ

denied, 604 So.2d 997 (La.1992).

IV.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 1672(B) sets forth the

mechanism for the involuntary dismissal of claims:

In an action tried by the court without a jury, after
the plaintiff has completed the presentation of his
evidence, any party, without waiving his right to offer
evidence in the event the motion is not granted, may move
for a dismissal of the action as to him on the ground that
upon the facts and law, the plaintiff has shown no right to
relief. The court may then determine the facts and render
judgment against the plaintiff and in favor of the moving
party or may decline to render any judgment until the close
of all the evidence.

When ruling on a motion for involuntary dismissal, “the trial court is

not required to review the evidence in the light most favorable to the plaintiff.”

Mayes, 685 So.2d at 500. Rather, the trial court needs only “to weigh and evaluate

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all of the evidence presented up to that point[.]” Id. Dismissal is warranted “if the

evidence is found insufficient to establish the plaintiff’s case by a preponderance of

the evidence.” Vintage Wings & Things, LLC v. Toce & Daiy, LLC, 04-706, p. 8

(La.App. 3 Cir. 11/10/04), 886 So.2d 652, 657. In this determination, the trial court

is accorded much discretion. Continental Ins. Co. v. Three Seasons Pest Control

Co., 94-1094 (La.App. 3 Cir. 2/1/95), 649 So.2d 1220.

Under the authority of La.Code Civ.P. art. 3601(A), “[a]n injunction

shall be issued in cases where irreparable injury, loss, or damage may otherwise

result to the applicant[.]” In Broadmoor, L.L.C. v. Ernest N. Morial New Orleans

Exhibition Hall Authority, 04-211, 04-212, p. 5 (La. 3/18/04), 867 So.2d 651, 655,

the supreme court explained that injunctive relief is designed “to prevent the

occurrence of future acts that may result in irreparable injury, loss or damage to the

applicant.” “Irreparable harm or injury generally refers to a loss that cannot be

adequately compensated in money damages or measured by a pecuniary standard.”

Jennings Guest House, 971 So.2d at 509. A “trial court may issue a permanent

injunction only after a full trial on the merits, at which the party seeking the

permanent injunction must demonstrate entitlement to the injunction by a

preponderance of the evidence.” Desselle v. Acadian Ambulance Serv., Inc., 11-

1017, p. 4 (La.App. 3 Cir. 2/1/12), 83 So.3d 1253, 1257, writ denied, 12-518 (La.

4/13/12), 85 So.3d 1253.

Finding that Plaintiff had failed to prove, by a preponderance of the

medical evidence, that his medical claims were causally connected to Cypress

Point’s pest control operations, the trial court involuntarily dismissed Plaintiff’s

claims. After reviewing the record, we find no manifest or clear error in the trial

court’s factual determination.

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Although Plaintiff testified that his medical issues were directly

connected to Cypress Point’s application of pesticides, Plaintiff did not present any

medical evidence establishing this causal connection. Rather, his treating physician

merely testified to the medical community’s speculations and observations as to the

general correlation between strong fumes and odors and the precipitation or

exacerbation of migraine symptoms. In fact, Dr. Ugokwe specifically stated that (1)

there are no known causes of migraines, (2) he did not know if the chemicals used

by Orkin had an odor, and (3) he could not “tie [the exposure] back” to Plaintiff’s

claims and the only thing that tied Plaintiff’s claims to the alleged use of the

pesticides was the history Plaintiff provided.

Plaintiff bore the burden of proving by a preponderance of the evidence

that Cypress Point’s future pest control operations, which are authorized by the

association’s governing documents, would cause him “irreparable injury, loss or

damage.” The record is devoid of evidence directly connecting any chemical

utilized by Cypress Point to the harm Plaintiff complained of. The actual chemical

was not identified. And although Dr. Ugokwe did testify to a general link between

strong odors and the exacerbation of migraine symptoms, only Plaintiff testified that

the chemical had a strong smell, which he thought caused his migraines, and the trial

court was well within its great discretion in not crediting his testimony.

Accordingly after reviewing the record in its entirety, we find that there

was evidence, or rather the lack thereof, before the trial court which, based upon his

reasonable evaluation of credibility, furnished a reasonable factual basis for his

finding that Plaintiff failed to present evidence, specifically medical evidence,

sufficient to prove, by a preponderance standard, his claims that his alleged adverse

medical complaints were caused by Cypress Point’s pest control operations.

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Therefore, under the applicable standard of review, we cannot find that his factual

findings were manifestly erroneous.

Similarly, we cannot say that the trial court abused its discretion in

excluding Dr. Morrison’s letter as hearsay. Despite Plaintiff’s assertions that the

document should have been admissible under La.Code Evid. arts. 801(D)(1)(b),

803(4), and 804(B)(6), the uncertified letter does not meet any of the statutory

exceptions. First, under La.Code Evid. art. 801(D)(1)(b), a prior statement of a

witness subject to cross-examination is statutorily non-hearsay, but because Dr.

Morrison was neither a witness nor subject to cross-examination, his letter is not an

admissible prior statement. Second, La.Code Evid. art. 803(4)’s exception for

statements made for and reasonably pertinent to medical treatment also does not

apply to the letter, which was written by Dr. Morrison, not the patient, and is not part

of Plaintiff’s medical records.

Finally, the extraordinary, catchall exception set forth in La.Code Evid.

art. 804(B)(6) allows, in the trial court’s vast discretion, the admission of trustworthy

out-of-court statements when the proponent has made reasonable efforts to adduce

all other admissible evidence of the fact and the adverse party as well as the court is

provided with sufficient advance notice in writing of its intended use. This exception

is likewise not applicable herein as (1) the letter does not comport with Dr.

Morrison’s certified medical records, which contain no mention of migraines; (2)

the record does not demonstrate that either Cypress Point or the trial court knew of

Plaintiff’s intent to use the letter prior to trial or that the notice was impracticable or

excusable; and (3) the record does not demonstrate that Plaintiff adduced all other

admissible evidence to establish the fact to which the statement relates. We note

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that the letter does not establish any relevant facts beyond that Plaintiff has a history

of migraines, which no one disputes, and that further assessment may be needed.

Accordingly, we can find no abuse of the trial court’s discretion in

excluding the letter. Having found no manifest error or abuse of discretion, we

affirm the trial court’s judgment, dismissing with prejudice Plaintiff’s claims against

Cypress Point.

V.

CONCLUSION

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

Costs of this appeal are assessed to the Plaintiff/Appellant, Gerald A.

Newburger, Jr.

AFFIRMED.

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