Fernen Louis Andrepont v. Chevron USA, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 21-357

FERNEN LOUIS ANDREPONT, ET AL.

VERSUS

CHEVRON USA, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2008-10045 "A"
HONORABLE SCOTT J. PRIVAT, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Candyce G. Perret, and Charles G. Fitzgerald,
Judges.

AFFIRMED.

Stephen Barnett Murray
Arthur M. Murray
Jessica W. Hayes
Murray Law Firm
701 Poydras St., Ste. 4250
New Orleans, LA 70139
(504) 525-8100
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Fernen Louis Andrepont, et al.

Warren A. Perrin
Perrin, Landry, DeLaunay, Dartez, & Ouellet
P. O. Box 53597
Lafayette, LA 70505
(337) 233-5832
COUNSEL FOR PLAINTIFF/APPELLANT:
Fernen Louis Andrepont, et al.

Michael Gregory Stag
Ashley M. Liuzza
Matthew D. Rogenes
Edmond L. Guidry, IV
Smith Stag, LLC
365 Canal St., #2850
New Orleans, LA 70130
(504) 593-9600
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Fernen Louis Andrepont, et al.

Korey A. Nelson
Burns Charest, LLP
365 Canal Street, Ste 1170
New Orleans, LA 70130
(504) 799-2845
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Fernen Louis Andrepont, et al.

Tommy Woods Thornhill
Thornhill Law Firm
1308 Ninth Street
Slidell, LA 70458
(985) 641-5010
COUNSEL FOR THIRD PARTY DEFENDANT:
Jennings-Heywood Oil Syndicate

Michael R. Phillips
Claire E. Juneau
Jeffrey J. Gelpi
Claire M. Zeringue
Kean Miller LLP
First Bank and Trust Tower
909 Poydras St., Suite 3600
New Orleans, LA 70112
(504) 585-3050
COUNSEL FOR DEFENDANT/APPELLEE:
Chevron USA, Inc.

L.Victor Gregoire, Jr.
Charles S. “Trey” McCowan III
John C. Funderburk
Kean Miller LLP
400 Convention Street, Suite 700
Baton Rouge, LA 70802
(225) 387-0999
COUNSEL FOR DEFENDANT/APPELLEE:
Chevron USA, Inc., et al.

Thomas E. Balhoff
Judith R.E. Atkinson
Carlton Jones, III
Roedel, Parsons, Koch, Frost
8440 Jefferson Hwy. #301
Baton Rouge, LA 70809-7652
(225) 929-7033
COUNSEL FOR INTERVENOR/APPELLEE:
Louisiana Department of Natural Resources

SAVOIE, Judge.

Plaintiffs-Landowners in this oilfield contamination case appeal the

summary judgment dismissal of their claims against the only remaining Defendant,

Chevron U.S.A., Inc. (“Chevron”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This court previously stated as follows with respect to this litigation:

The plaintiffs are individual owners of immovable property
located in Acadia Parish, Louisiana, located near the historic Jennings
Field, the site of the first oil production in Louisiana. This litigation
began on January 16, 200[8], when the plaintiffs, Fernen Louis
Andrepont, Stacy H. Britt, Barbara Miller Chapman, Glenn D. Daigle,
Sr., Anita D. Decker, the Fruge Children Trust, Raven Gotte, Jr.,
Carroll Hebert, David Wayne Hebert, Norman Hebert, Aulden R.
Miller, Kenneth L. Miller, Jr., Steven J. Simar, and Patricia A. Vidrine,
filed suit against twelve named defendants1 seeking damages for the
contamination of their properties caused by oil and gas exploration in
the nearby Jennings Field. . . .

In their petition, the plaintiffs asserted their ownership of
individual tracts of immovable property located in Sections 42 and 43,
Township 9 South, Range 2 West, in Acadia Parish. They alleged
that . . . [D]efendants, in conducting oil and gas drilling and
production activities on or near their properties, had in the past
utilized unlined earthen pits for the storage of oilfield wastes, and this
utilization resulted in the contamination of their properties. . . .
According to the plaintiffs’ allegations, other contamination to their
properties was caused by the “leaks, spills, and other discharges from
oil wells, pipelines, tank batteries, plants and other equipment owned
or operated by” defendants. The plaintiffs alleged that although the
defendants knew or should have known that their day-to-day
operations would lead to contamination, they refused to remove the
pollution and toxic wastes caused by their endeavors and chose,
instead, to hide it. This, the plaintiffs alleged, allowed the pollution
and toxic waste to migrate and spread to the soils, surface waters, and
groundwater of their properties. Based on the above stated facts, the

1
The named defendants are Chevron U.S.A. Inc., successor in interest to Gulf Oil
Company and Texaco, Inc.; Exxon Mobil Corporation, successor in interest to Exxon
Corporation, Humble Oil & Refining Company, and Superior Oil Company; Radke Oil
Company, Inc.; Great Southern Oil & Gas Company, Inc.; EOG Resources, Inc.; BP Corporation
North America Inc., successor in interest to Yount Lee Oil and Amoco Production Company;
Shell Oil Company; Kerr–McGee Oil and Gas Corporation, successor in interest to Sun
Exploration–Production; Apache Corporation; Source Petroleum, Inc.; L & L Oil and Gas
Services, Inc.; and Denovo Oil & Gas, Inc.

plaintiffs sought monetary damages based on theories of negligence,
trespass, strict liability, strict liability for ultra-hazardous activity, and
breach of contract and obligations as lessee.

The early procedural aspects of this litigation involved
consideration of numerous exceptions filed in response to the
plaintiffs’ petition and resulted in the plaintiffs’ pleadings being
amended extensively.2[3]

Andrepont v. Chevron USA, Inc., 12-1100, pp. 1-2 (La.App. 3 Cir. 4/3/13), 113

So.3d 421, 423.

Chevron is the sole remaining Defendant. According to Plaintiffs, Chevron

is the successor in interest to Gulf Refining Company of Louisiana, Gulf Oil

Company, the Producers Oil Company, the Texaco Company, and Texaco.

Plaintiffs claim that the alleged contamination on their properties is

associated with two earthen tanks or pits located in Section 42, Township 9 South,

Range 2 West, in Acadia Parish (“Section 42”), which are referred to as The

Wilkins Company Tanks No. 1 and No. 2 (“the Wilkins Tanks”), and that these

tanks were connected by a flowline to oil and gas operations some distance away

in the Jennings Field that transported produced oil and/or saltwater to the tanks.

Plaintiffs assert that Chevron’s corporate predecessors (collectively, “Gulf”)

utilized the flowline and the Wilkins Tanks for storage of oil and/or saltwater.

On October 15, 2020, Chevron filed a Motion for Summary Judgment

seeking dismissal of Plaintiffs’ claims against it. Chevron argued that the report

and opinion testimony of Plaintiffs’ expert, William C. Kimbrell, P.E., P.G., C.P.G.

(“Mr. Kimbrell”) was factually unsupported and speculative, and that Plaintiffs had

no evidence to show that Chevron and/or its corporate predecessors operated on

2
These amendments included the addition of other parties to the litigation.
3
Plaintiffs also amended their petition to limit their claims to negligence, trespass, strict
liability, and unjust enrichment.

2

their property or that their oil and gas operations elsewhere in the Jennings Field

had any connection to or impact on their property.

Chevron also submitted the affidavit of Calvin Barnhill, P.E. (“Mr.

Barnhill”), in support of its motion for summary judgment, but later, upon consent

of the parties, substituted it with a similar affidavit by Richard Kennedy, P.E. (“Mr.

Kennedy”), who is Mr. Barnhill’s colleague, as Mr. Barnhill was not available for

deposition due to illness. Mr. Kennedy’s affidavit pointed out a lack of factual

support for the opinions formed by Mr. Kimbrell.

The trial court granted Chevron’s motion and dismissed Plaintiffs’ claims

against it. It concluded that Mr. Kimbrell’s expert report and testimony was

insufficient summary judgment evidence, as his opinions improperly depended on

assumptions, suppositions, and extrapolations without sufficient supporting facts.

Plaintiffs appeal and assert the following assignments of error:

1. The District Court’s admission of the transcript of the deposition of
Richard Kennedy, P.E. filed in connection with Chevron U.S.A.
Inc.’s Supplemental Reply Memorandum in Support of Motion for
Summary Judgment was in contravention of the plain language of
La.[Code Civ.P.][a]rt. 966(B)(3) prohibiting the filing of additional
documents with the reply memorandum.

2. The granting of summary judgment is contrary to the law because
Chevron did not meet its burden of demonstrating that no genuine
issue of material fact existed.

3. Plaintiffs identified genuine issues of material fact related to
whether Chevron, through the acts and omissions of its
predecessors in interest, caused the damages to their properties
which precluded the District Court’s grant of summary judgment.

4. The District Court erred in failing to find that there were genuine
issues of material fact based on the reasonable inferences drawn
from William C. Kimbrell, P.E., P.G., C.P.G.’s expert testimony
and affidavit; in assessing the persuasiveness of his expert opinions
on summary judgment; and in granting summary judgment when
his expert opinion evidence was admissible and sufficient to allow

3

the trier of fact to conclude that a material fact was more likely
than not true.

ANALYSIS

Summary Judgment Standard of Review:

As stated by the supreme court in Schultz v. Guoth, 10-343, pp. 5-7 (La.

1/19/11), 57 So.3d 1002, 1005-06 (alteration in original):

A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the
relief prayed for by a litigant. Samaha v. Rau, 07-1726, pp. 3-4 (La.
2/26/08), 977 So.2d 880, 882-83; Duncan v. U.S.A.A. Ins. Co., 06–363,
p. 3 (La. 11/29/06), 950 So.2d 544, 546, see La.Code Civ. Proc. art.
966. “A summary judgment is reviewed on appeal de novo, with the
appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate; i.e.
whether there is any genuine issue of material fact, and whether the
movant is entitled to judgment as a matter of law.” Samaha v. Rau,
07-1726, pp. 3-4, 977 So.2d at 882-83.

A motion for summary judgment will be granted “if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to material fact, and that mover is entitled to judgment as a
matter of law.” La.Code Civ. Proc. art. 966(B). This article provides
that “the summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action. . . . The
procedure is favored and shall be construed to accomplish these ends.”
La.Code Civ. Proc. art. 966(A)(2). La.Code Civ. Proc. art. 966(C)(2)
sets forth the burden of proof in summary judgment proceedings,
providing:

The burden of proof remains with the movant.
However, if the movant will not bear the burden of proof
at trial on the matter that is before the court on the
motion for summary judgment, the movant’s burden on
the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense,
but rather to point out to the court that there is an absence
of factual support for one or more elements essential to
the adverse party’s claim, action, or defense. Thereafter,
if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine
issue of material fact.

4

This provision initially places the burden of producing evidence
at the hearing on the motion for summary judgment on the mover,
who can ordinarily meet that burden by submitting affidavits or by
pointing out the lack of factual support for an essential element in the
opponent’s case. Samaha v. Rau, 07-1726, p. 4, 977 So.2d at 883. “At
that point, the party who bears the burden of persuasion at trial
(usually the plaintiff) must come forth with evidence (affidavits or
discovery responses) which demonstrates he or she will be able to
meet the burden at trial.... Once the motion for summary judgment has
been properly supported by the moving party, the failure of the non-
moving party to produce evidence of a material factual dispute
mandates the granting of the motion.” Id. (quoting Wright v.
Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058,
1069-70).

Mr. Kennedy’s Deposition:

Chevron initially submitted the affidavit of its expert, Mr. Barnhill, in

support of its Motion for Summary Judgment. However, the parties subsequently

agreed to allow Chevron to substitute Mr. Barnhill’s affidavit with that of Mr.

Kennedy, due to Mr. Barnhill’s illness and unavailability for deposition. Plaintiffs’

counsel subsequently deposed Mr. Kennedy.

Therefore, Chevron submitted an Amended Motion for Summary Judgment

with Mr. Kennedy’s affidavit attached. In response, Plaintiffs submitted an

opposition to the amended motion and, in support thereof, attached excerpts from

Mr. Kennedy’s deposition. Chevron then submitted a reply memorandum wherein

it sought the admission of Mr. Kennedy’s entire deposition. At the summary

judgment hearing, the trial court admitted Mr. Kennedy’s deposition into evidence

over Plaintiffs’ objection.

Plaintiffs argue on appeal that Chevron should not have been permitted to

submit Mr. Kennedy’s deposition with its reply brief in accordance with La.Code

Civ.P. art. 966(B)(3), which states:

5

B. Unless extended by the court and agreed to by all of the
parties, a motion for summary judgment shall be filed, opposed, or
replied to in accordance with the following provisions:

....

(3) Any reply memorandum shall be filed and served in
accordance with Article 1313 not less than five days prior to the
hearing on the motion. No additional documents may be filed with the
reply memorandum.

In response, Chevron argues that it did not submit Mr. Kennedy’s full

deposition transcript as an additional document filed with its reply memorandum,

and it did not rely on Mr. Kennedy’s deposition in connection with its motion for

summary judgment. Rather, Chevron argues that, in accordance with La.Code

Civ.P. art. 1450, it moved the trial court to require the submission of Mr.

Kennedy’s entire deposition because the excerpts relied upon by Plaintiffs did not

accurately reflect Mr. Kennedy’s opinions.

Louisiana Code of Civil Procedure article 1450 governs the use of

depositions. It states in pertinent part, “[i]f only part of a deposition is offered in

evidence by a party, an adverse party may require him to introduce any other part

which, in fairness, should be considered with the part introduced, and any party

may introduce any other parts.” La.Code Civ.P. art. 1450(A)(4). This applies to

depositions submitted in connection with motions for summary judgment.

Hypolite v. Scott Partners MLT, Inc., 19-704 (La.App. 3 Cir. 4/1/20), 297 So.3d

868.

Because Chevron sought the admission of Mr. Kennedy’s entire deposition

following Plaintiffs’ initial submission of only excerpts from that deposition, we

find no error in the trial court’s acceptance of the entire deposition into evidence.

6

On the merits:

Plaintiffs’ remaining assignments of error involve whether the evidence

presented created material issues of fact on the issue of causation.

Plaintiffs argue that there is evidence in the record establishing that the

Wilkins Tanks were transferred to Gulf in 1908, that those tanks were connected to

a flowline that transported oil and saltwater from wells in the Jennings Field to the

tanks, and that the flowline and tanks were more likely than not utilized by Gulf.

Therefore, according to Plaintiffs, issues of material fact preclude summary

judgment dismissal of their claims. In support of their arguments, Plaintiffs

primarily rely on the conveyance records in evidence, as well as the report and

deposition testimony of their expert, Mr. Kimbrell.

The conveyance records in evidence indicate that the Wilkins Tanks were

constructed in Section 42 sometime between November 26, 1904, and September

30, 1905. The Wilkins Tanks had a total storage capacity between 240,000 and

250,000 barrels.

Specifically, on November 26, 1904, Elihu Coffin granted a surface lease to

A.C. Wilkins and his partners for ten acres of land in the northwest quarter of

Section 42. The written lease states that the lessees were “to have the right to use

of the ground, for a period of two (2) years from this date,” and were also “to have

the privilege of laying pipe lines, from the north line of said quarter section, to the

ten acres hereinabove described.” The lease further granted the lessees “the right to

construct on said ten acres, earthen tankage, for the purpose of storing petroleum

oil therein[,] . . . [and] the right to connect pipes with their tankage and to lay all

suitable pipes over and under said ground for the purpose of flowing oil to the said

tankage[.]” The 1904 lease also states:

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[i]f at the end of the said two years, the parties of the second part [the
lessees] desire to continue to use the land for the purposes herein
named, they to [sic] pay the first party [the lessor], a rental of $25.00
per acre per year for such additional time as they, parties of the second
part, may use said land.

On September 30, 1905, one of the Wilkins partners, A. R. Knott, sold his

interest in the 1904 lease to another partner, W. H. Stenger, including his interest

in the Wilkins Tanks; however, Mr. Knott reserved a one-sixth interest in the oil

that was stored in the tanks.

On November 16, 1905, a year after the original lease was granted, the

Wilkins partners sold their interest in the 1904 lease to the Wilkins Company. This

transfer specifically included the two Wilkins Tanks, as well as 240,000 barrels of

fuel oil contained in the tanks.

In February 1906, the Wilkins Company sold its rights in the “North half

(N/2) of ten (10) acres of land in the Northwest quarter (NW/4) of Section Forty-

two (42)” to the Jennings Heywood Oil Syndicate (“the Syndicate”), “together

with the earthen oil tank located on said premises known as ‘The Wilkins

Company Tank No.1[;]’” however, the Wilkins Company reserved “all oil, pipe,

pumps and other apparatus on said premises, except the runway from gauger,

together with the right to remove same.” (emphasis added). The Syndicate further

agreed to “fulfil and carry out all the terms and conditions . . . expressed in that

certain lease dated November 28, 1904, . . . in so far as they pertain to or may

effect [sic] the portion of said ten acres herein leased.”

On August 20, 1906, the Wilkins Company sold to G. B. Zigler & Company

(“Zigler”), its rights, inter alia, in the south half of the ten acres of land in the

Northwest quarter of Section 42, “including the earthen storage oil tank . . . known

as The Wilkins’ Company Tank No. 2, the interest of the Wilkins’ Company in

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said tract being acquired by lease from Elihu J. Coffin to A.C. Wilkins, A.R. Knott,

and R.H. Stenger dated November 29th 1904[.]” Zigler further noted therein that it

agreed to accept the terms and conditions of the respective leases and agreements

at issue in the sale.

On October 31, 1907, Zigler sold various assets to the Syndicate, including

“all the right, title, interest and claim . . . in and to the south half (S. ½) of ten (10)

acres of land in the North west quarter (N.W. ¼) of section Forty two . . . more

particularly described in the deed or contract dated Aug. 20th, A.D. 1906” between

the Wilkins Company and Zigler.

On June 18, 1908, the Syndicate sold various assets in the Jennings Field to

Gulf Refining Company, as set forth in a detailed, forty-six-page Indenture of lease

and sale (the “Indenture”). The Indenture included an enumerated list of

specifically described earthen tanks with an aggregate capacity of 3,350,000

barrels.

While the 1908 Indenture does not specifically mention the Wilkins Tanks,

the 1904 surface lease, or the land covered by the 1904 surface lease, Plaintiffs

argue that interests in the Wilkins Tanks were nonetheless transferred to Gulf

pursuant to a phrase in the Indenture that transfers “each and every right, title, and

interest of said Syndicate by it now owned . . . in and to, all and singular the lands

and premises above described[.]”

In addition to the conveyance records, Plaintiffs rely on an October 30, 2019

report from their expert, Mr. Kimbrell. Mr. Kimbrell provided the following

opinions in his report:

1) Numerous pits were constructed in Jennings Field, Louisiana, in
the early 1900’s, to contain the massive amounts of fluid
production that exceeded available tanked storage.

9

2) Two of these pits were constructed on the Andrepont [Plaintiffs’]
property.

3) More likely than not, the source of the contamination in the two
pits on Andrepont’s [Plaintiffs’] property identified by ICON was
Gulf Refining Company and its successors.[ 4]

Mr. Kimbrell’s report explains that in reaching these opinions, he first

identified a flowline on an “old” aerial map of the Jennings Field dated

approximately 1904 (“the 1904 map”). Mr. Kimbrell obtained this 1904 map from

a prior affidavit prepared in 2012 by another one of Plaintiffs’ experts, Greg Miller

(“Mr. Miller”), and his company ICON Environmental Services, Inc. (“ICON”).

Mr. Kimbrell stated in his report that this 1904 map

depicts what appears to be a flowline running from just north of the
southeast corner of Section 46 southwest past a large steel tank in
Section 46 and passing through the northeast corner of Section 42.
From there, the flowline turns due west and empties into pits labeled
J.H.O.S (Jennings Heywood Oil Syndicate) before continuing west to
empty into the two pits located on the Andrepont [Plaintiffs’] property.

Mr. Kimbrell’s report further explains that he then identified a “USGS

Bulletin” from 1910 that discussed the history of the Jennings Oil Field, showed

pits and well locations from 1904, 1907, and 1908, and listed the well names and

operators at the time. Mr. Kimbrell’s report states that:

[t]hough these maps do not extend far enough west to show the two
[Wilkins] pits in question, when cross-referenced with the old [1904]
field map . . . from ICON’s report, the pit locations displayed in the
bulletin maps match up exactly with the pits seen in ICON’s . . . field
map.

4
During his deposition, Mr. Kimbrell stated that this was a typographical error, and he
had amended his initial opinion to include both predecessors and successors of Gulf Refining
Company of Louisiana. It appears that by “predecessors,” he was referring not just to Gulf’s
corporate predecessors, but also to companies who had operated in the field prior to Gulf and
whose assets were later transferred or sold to Gulf, such as Jennings-Heywood Oil Syndicate and
the Wilkins Company. However, Plaintiffs do not otherwise suggest that Chevron and/or Gulf is
liable in tort as a successor to Jennings-Heywood Oil Syndicate or the Wilkins Company,
therefore, we do not address that issue herein.

10

According to Mr. Kimbrell’s report, he then “began identifying the operators

of wells in the area of the northeast extent of the previously described flowline

from ICON’s [1904 map]” and, “[o]f these wells in the northeast area, the majority

were operated by Gulf Refining Company.” Mr. Kimbrell then opined, “it is more

likely than not that they [the Wilkins Tanks] were utilized by Gulf Refining

Company since they [Gulf] would have had the most wells in the area at that time

and the most fluid production and, therefore, in need of excess storage.”

Plaintiffs also note on appeal Mr. Kimbrell’s deposition testimony wherein

he suggested that the flowline connected to the Wilkins Tanks shown on the 1904

map appeared to originate “about in the same area” as well numbers 258 and 259,

which are located in Section 46 in the area northeast of the Wilkins Tanks, and

which are referenced as “Gulf Refining (Wilkins)” wells. Plaintiffs further point to

the following deposition testimony of Chevron’s expert, Mr. Kennedy, which they

argue supports a reasonable assumption that the Gulf/Wilkins wells were

connected by the flowline to the Wilkins Tanks on Plaintiffs’ property, and,

therefore, the tanks were later utilized by Gulf in 1908 or later:

Q. Okay, so we can all agree that at least as of 1905[ 5] there was a
flowline that led to the pits on the plaintiffs’ property; is that right?

A. Correct.

Q. Do you know what wells were connected to that flowline at any
given time?

A. . . . I have actually no information, no evidence to show exactly
which wells were connected to that flowline.

Q. Okay. . . when we talked about who operated the pits earlier, do
you remember you had to help me out with a little chronology at some
point?

5
According to Mr. Kennedy, the “old map” attached to Mr. Miller’s report was created in
1905, rather than 1904.

11

A. Yes.

Q. Okay. So you mentioned the Wilkins and/or the Wilkins Group,
right?

A. Correct.

Q. Okay. Did . . . any of their wells, the Wilkins individuals or the
Wilkins Group, connect to the pits on the plaintiffs’ property?

A. I think that’s a reasonable assumption to make.

Plaintiffs also note that there are no documents or other evidence in the

record expressly indicating that the Wilkins Tanks were closed or that the flowline

was removed prior to the 1908 Indenture to Gulf, and, therefore, they argue that

there is sufficient evidence from which a factfinder could infer that Gulf utilized

the flowline shown on the 1904 map to transport oil and/or saltwater to the Wilkins

Tanks on Plaintiffs’ property.

In addition, Plaintiffs take issue with the opinions stated in Mr. Kennedy’s

affidavit, which was submitted in support of Chevron’s Motion for Summary

judgment. Mr. Kennedy’s affidavit states the following opinions:

• There is not factual data sufficient to show that Gulf Refining
Company ever utilized the flowline depicted in the historical map
relied on by Plaintiffs’ consultants; and

• There is not factual data sufficient to show that Gulf Refining
Company ever stored fluids in the tanks (pits) on Plaintiffs’
Property.

Mr. Kennedy stated in his affidavit that in forming his opinions, he reviewed

Mr. Kimbrell’s report and deposition, Mr. Miller’s previous affidavits, the

pleadings filed in this case, documentation provided in discovery, resources

pertaining to the historical operations in the Jennings Field available in the

archives of several Louisiana universities, reports and publications by the United

States Geological Survey and other academic publications and trade journals

12

related to Jennings Field, the Louisiana Geological Survey, and materials on file

with Louisiana Department of Natural Resources pertaining to the Jennings Field.

Mr. Kennedy further stated in his affidavit that while Mr. Kimbrell’s opinion

“relies on an overlay of the ‘old field map’ onto a recent aerial photograph to show

that the old field map ‘matches up’ with the aerial photograph of the tanks (pits) on

the Plaintiffs’ property[,]” “this overlaying of the map with the aerial photograph

does not provide any evidence to show that Gulf Refining Company or any

Chevron predecessor ever used the flowline depicted as connecting to the Wilkins

Tanks on the historical map.” Rather, the 1904 historical map at issue predates

Gulf’s operations in the Jennings Field, which began following the 1908 Indenture.

In addition, Mr. Kennedy stated in his affidavit that he had not seen any

factual support indicating what wells were actually connected to the flowline

depicted in the 1904 map or otherwise suggesting that Gulf ever transported fluids

through the flowline. He stated that “[i]t is not enough that a well is ‘in the area’

of a flowline to support a conclusion that any particular well was connected to the

flowline. Therefore, the proximity of wells to the flowline cannot show what

operators used the flowline at any point.”

Mr. Kennedy also stated that he had not seen any factual data indicating that

Gulf ever stored any quantity of fluid in the Wilkins Tanks. Mr. Kennedy further

noted that there were no facts to support Mr. Kimbrell’s assumption that Gulf used

the flowline, his reasoning that Gulf needed excess storage because it had the most

fluid production in the area, or his conclusion that Gulf stored fluid in the Wilkins

Tanks.

Rather, Mr. Kennedy pointed out that the conveyance records indicated that

other parties had claimed an interest in the oil stored in the Wilkins Tanks,

13

including one instance in 1905 where up to 240,000 barrels of oil were stored in

the tanks, but that there were no such title documents relating to Gulf or any

Chevron predecessor.

Mr. Kennedy additionally pointed out that there was no factual support for a

conclusion that Gulf was ever in need of excess storage in the field. Rather, in

accordance with the 1908 Indenture, Gulf was granted an interest in nine other

specifically described earthen tanks with a total storage volume of over three

million barrels, and that “this was more storage than the amount of oil produced in

the entire field on an annual basis from 1909 forward[,]” as indicated in the

documentation Mr. Kennedy relied on in creating his affidavit.

Finally, Mr. Kennedy stated in his affidavit that he had not seen evidence

establishing that Gulf ever acquired a right to use the Wilkins Tanks. He noted

that, after reviewing the applicable conveyance records, he had not seen any

mention of the 1904 lease and/or the Wilkins Tanks after the assignment from

Zigler to the Syndicate, nor had he seen any document transferring or assigning the

1904 lease or the Wilkins Tanks to Gulf, or any Chevron predecessor.

Rather, Mr. Kennedy indicated that he had seen evidence that Gulf executed

and recorded surface leases with landowners when it did use earthen tankage,

including six tanks (the “Leckelt Tanks”), which were specifically identified in the

1908 Indenture from the Syndicate to Gulf, and “[t]hese surface leases show that

Gulf Refining Company had a practice of entering into and recording leases for

earthen tankage during the same time period.” The Leckelt Tank leases are in

evidence.

Mr. Kennedy also pointed out in his affidavit that a January 19, 1912 lease

for the Leckelt Tanks included a diagram of the flowlines leading to those tanks,

14

and that “[n]otably, this diagram has a different flowline configuration than the

historical map relied upon by Mr. Kimbrell and Mr. Miller.”

Plaintiffs argue on appeal that Mr. Kennedy’s opinions are impermissibly

“speculative because he is merely stating that he has not seen certain specific

documents[,] not that they do not exist.” Plaintiffs further argue that Mr.

Kennedy’s opinions “ignore the factual inferences that can be reasonably drawn

from the enormous amount of evidence regarding historical activities in the

Jennings Field.”

In response, Chevron argues on appeal that, as the moving party, it

sufficiently pointed to a lack of factual support necessary to establish that Chevron

or its predecessors ever had a well that was connected to a flowline that led to the

Wilkins Tanks on the Plaintiffs’ property and/or that Chevron or its predecessors

ever utilized the Wilkins Tanks on Plaintiffs’ property; therefore, Plaintiffs cannot

establish the requisite causation necessary for its claims against Chevron.

In support of its motion, Chevron submitted primarily the same evidence on

which Plaintiffs rely—namely, Mr. Kimbrell’s report and deposition, and the

applicable conveyance records—as well as Mr. Kennedy’s affidavit that points out

a lack of factual support for Mr. Kimbrell’s opinions. Chevron correctly notes that

while Mr. Kennedy stated that he had not seen any evidence in the record or

otherwise supporting Mr. Kimbrell’s opinions, rather than stating that no such

evidence exists, it is not Chevron’s burden to disprove causation. See Rogers v.

Hilltop Ret. & Rehab. Ctr., 13-867 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053.

Rather, as the party not bearing the burden of proof of trial, Chevron is only

required to point out an absence of factual support for an element of Plaintiffs’

claim. See Id.

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Chevron also points out that even though Mr. Kennedy testified that it was

reasonable to assume that Wilkins Company’s wells were attached to the Wilkins

Tanks, this testimony was limited to when the Wilkins Company was in the field

and based upon there being 240,000 barrels of oil stored in the tanks in 1905. In

addition, Mr. Kennedy testified that it would not be reasonable to assume that

wells once utilized by the Wilkins Company were still connected to the Wilkins

Tanks when Gulf entered the field in 1908 because

we don’t see any ownership of the lease of those pits; and the only
thing that . . . is there is the fact that it’s on the . . . 1904 map. We
don’t know what happened after 1904 or 1905. There’s just no
information to show that – that Gulf used . . . those pits at all.

....

. . . . [W]hen you look at one of the documents from Wilkins to
[the Syndicate], they [Wilkins] reserved flowline . . . I think it says
line . . . but with some of the other equipment there. It’s basically the
flowline to that pit. They reserved . . . that line and did not transfer
that over to [the Syndicate].

So I guess [a] reasonable assumption would be that – that
Wilkins at the time bought the – the pipeline itself as – as an asset,
you know some kind of commodity that they could probably just use
in a different part of the field or sell to somebody or do something
with.

And, you know, keep in mind during this time getting steel
tubulars in 1905, 1906, 1907 was – was a difficult thing to do, that I
don’t know of any steel mills in the south at that time that made those
tubulars. They would probably come from Pittsburg, Pennsylvania, so
those would have been highly prized commodities that they likely just
sold or used elsewhere.

....

. . . [W]e don’t see it [the flowline] on any later maps. The only
map we see it on is the 1904 map and nothing on any other maps.

....

Well, given the fact that there was a – you know, this is almost
like a gold rush. Given the fact there were a lot of wells being drilled

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during that time span, and – and a lot of changes in the field during
that time, I don’t think you can – can assume that the pipeline is still
in place in 1908.

Chevron also argues that there is no evidence in the record indicating that

the two-year surface lease granted in 1904 pertaining to the Wilkins Tanks was

extended or otherwise in effect at the time of the 1908 Indenture to Gulf. In

addition, Chevron notes that it would be unreasonable to assume that the Wilkins

Tanks would have been silently, rather than expressly, transferred to Gulf, given

the evidence indicating that Gulf had a practice of entering into and recording

agreements for earthen tanks that it did use.

Chevron further argues that Mr. Kimbrell’s expert report and opinions relied

upon by Plaintiffs are impermissibly speculative to create genuine issues of fact

necessary to defeat summary judgment.

Louisiana Code of Civil Procedure article 967(A) states as follows with

respect to expert affidavits submitted in connection with motions for summary

judgment: “The supporting and opposing affidavits of experts may set forth such

experts’ opinions on the facts as would be admissible in evidence under Louisiana

Code of Evidence Article 702, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.”

Louisiana Code of Evidence article 702 states:

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

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(4) The expert has reliably applied the principles and methods
to the facts of the case.

The Louisiana Supreme Court, in Independent Fire Insurance Co. v.

Sunbeam Corp., 99-2181, 99-2257, pp. 16-17 (La. 2/29/00), 755 So.2d 226, 235-36

(internal citations omitted), stated as follows with respect to the consideration of

expert opinion testimony submitted in connection with motions for summary

judgment:

Thus, having determined that . . . the Daubert–Foret standards
should be considered by the trial judge in deciding whether to admit
expert opinion evidence, several important underlying principles must
be reinforced. The first is that the trial judge cannot make credibility
determinations on a motion for summary judgment. Second, the court
must not attempt to evaluate the persuasiveness of competing
scientific studies. In performing its gatekeeping analysis at the
summary judgment stage, the court must “focus solely on the
principles and methodology, not on the conclusions they generate.”
Third, the court “must draw those inferences from the undisputed
facts which are most favorable to the party opposing the motion.”
Fourth, and most importantly, summary judgments deprive the
litigants of the opportunity to present their evidence to a jury and
should be granted only when the evidence presented at the motion for
summary judgment establishes that there is no genuine issue of
material fact in dispute. If a party submits expert opinion evidence in
opposition to a motion for summary judgment that would be
admissible under Daubert–Foret and the other applicable evidentiary
rules, and is sufficient to allow a reasonable juror to conclude that the
expert’s opinion on a material fact more likely than not is true, the
trial judge should deny the motion and let the issue be decided at trial.

In Andrepont, 113 So.3d 421, this court affirmed a summary judgment

rendered against the same Plaintiffs herein and dismissed their claims against

Defendant, Radke Oil Company, Inc. (“Radke”). In opposition to Radke’s motion

for summary judgment, Plaintiffs relied on the affidavit of Mr. Miller, with ICON

Environmental Services, who opined that the contamination on Plaintiffs’

properties had been caused by Radke’s storage of oil and production wastes in

tanks on Plaintiffs’ property.

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Mr. Kennedy discussed Mr. Miller’s affidavit during his deposition, and Mr.

Miller’s affidavit is in evidence in connection with Chevron’s instant motion for

summary judgment. Mr. Miller stated in his affidavit that he had identified

flowlines on historical maps that connected the two pits on Plaintiffs’ properties to

oil operations to the east. This included the 1904 map later utilized by Mr.

Kimbrell. Mr. Miller’s affidavit further reflects that he then “plotted the location

of several of the Radke wells at issue . . . . [and] then determined that the flowlines

appear to originate from wells operated by Radke, among others.” Mr. Miller then

opined that “these flowlines transported oil production with some quantity of

produced salt water from the Radke wells to these pits for storage.”

In affirming the summary judgment dismissal of Plaintiffs’ claims against

Radke, this court stated as follows with respect to Mr. Miller’s affidavit:

[Louisiana Code of Civil Procedure article] 966(C)(2) . . . simply
requires the nonmovant to present evidence that if believed by the
trier of fact, would allow he or she to prevail at a trial on the
merits. . . . At best, Mr. Miller’s affidavit establishes that the flow
lines “appear” to originate from wells operated by Radke. This
assertion, standing alone and if believed by the trier of fact, does not
satisfy the plaintiffs’ preponderance burden of proof. This is
particularly true given the fact that it does not establish whether
Radke was an operator of any of the wells at the time the oil and/or
waste material was being transported through the flow lines or
whether it assumed any responsibility for the actions of previous
operators.

Andrepont, 113 So.3d at 428.

Mr. Kimbrell’s report and deposition testimony indicate that he used the

same maps and factual data, including the 1904 map depicting the flowline at issue,

relied upon by Mr. Miller in forming his opinions, except that Mr. Kimbrell

concluded that Gulf and/or its successors or predecessors, rather than Radke, more

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likely than not used the flowline depicted in the 1904 map to transport oil or salt

water to the earthen tanks or pits on Plaintiffs’ property.

Mr. Kimbrell’s report states that the same 1904 map that was attached to Mr.

Miller’s affidavit depicts “what appears to be a flowline” running from Section 46

to the Wilkins Tanks in Section 42, and that a majority of the wells “in the area of

the northeast extent of the previously described flowline” on the 1904 map were

operated by Gulf Refining Company. Mr. Kimbrell then concluded that Gulf more

likely than not utilized the flowline since it had the most wells and fluid production

“at that time” and was in need of excess storage.

During his deposition, Mr. Kimbrell elaborated on his opinion that Gulf and

its successors more likely than not were the source of contamination in the two pits

on Plaintiffs’ property, stating: “I’m saying that Gulf was the majority user, but

I’m not saying that they were . . . the only user.” He further explained that his

basis for finding that Gulf contributed to the majority of the fluid to the pipeline is

that Gulf and its predecessors had “more wells around the vicinity of that

flowline[.]”

Mr. Kimbrell also testified in his deposition that in preparing his report and

opinions, he did not perform a public records search to determine who had used the

Wilkins Tanks. He stated that, in creating his report, he did not know, or otherwise

take into consideration that the 1904 lease states that the purpose of the tanks was

for oil storage, that A. R. Knott had reserved an interest in the oil stored in the

tanks in September 1905, or that there were 240,000 barrels of oil stored in the

tanks as of November 16, 1905, which was near storage capacity. He further

indicated that while he was aware that there was an assignment from the Syndicate

to Gulf in 1908, he did not study the document, and he did not know whether the

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Wilkins Tanks were specifically listed. Rather, he noted that the 1908 Indenture

includes assignments of wells that are “in the proximity” of the flowline leading to

the Wilkins Tanks on Plaintiffs’ property.

Additionally, Mr. Kimbrell testified that he based his opinion that Gulf had

the most fluid production in the area on the number of wells it had, but that he did

not know how much each well produced over time. He also explained that his

opinion that Gulf was in need of excess storage was based on the fact that it had

storage tanks in the field. He indicated that, while he had no specific evidence, he

knew from experience that Gulf would have produced a lot more saltwater as the

field matured, and therefore it would have needed to have a place to store it. Thus,

he reached the conclusion that Gulf utilized the Wilkins Tanks on Plaintiffs’

property.

Like Miller’s affidavit in Andrepont, 113 So.3d 421, we similarly conclude

that Mr. Kimbrell’s report and testimony, at best, establishes that a flowline

depicted on a 1904 map appears to be in the vicinity of wells that Gulf did not

operate until at least 1908, and that Gulf thereafter operated a majority of the wells

in the vicinity of that depicted flowline. However, this is insufficient to establish

that Gulf and/or its successors actually used the flowline to transport oil or

saltwater to the Wilkins Tanks for storage, or otherwise satisfy Plaintiffs’

preponderance of the evidence burden of proof.

While Mr. Kimbrell ultimately formed the opinion that Gulf more likely

than not utilized the flowline depicted in the 1904 map to store fluids in the

Wilkins Tanks, we agree with the trial court that Mr. Kimbrell “tried to morph”

“tangential facts” into evidence that Gulf put oil or saltwater into the Wilkins

Tanks and that his opinions “depend on a lot of assumptions, suppositions, [and]

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extrapolations.” Therefore, Mr. Kimbrell’s opinions to this extent are insufficient

summary judgment evidence, as they are not based upon sufficient facts or data, as

required by La.Code Civ.P. art. 967(A), La.Code Evid. art. 702, and Independent

Fire Ins. Co., 755 So.2d 266.

Rather, as Mr. Kennedy pointed out in his affidavit, there is a lack of factual

evidence in the record to support Plaintiffs’ position that Gulf utilized the flowline

depicted on the 1904 map and/or the Wilkins Tanks, and, despite Plaintiffs’

argument to the contrary, we fail to see any factual evidence in the record upon

which a factfinder could reasonably infer that Gulf utilized the Wilkins Tanks.

Therefore, we affirm the trial court’s summary judgment dismissal of Plaintiffs’

claims against Chevron.

DECREE

For the reasons stated above, the trial court’s summary judgment dismissal

of Plaintiffs’ claims against Defendant Chevron USA, Inc. is hereby affirmed.

Costs of this appeal are assessed to Plaintiffs.

AFFIRMED.

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