THOMAS ANDERSON PAMELA DAVENPORT EVELLE THOMAS JUNE HARVEY JOSEPH WONG INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED ALL PERSONS EXPOSED TO CHEMICALS AT 2400 CANAL STREET v. CITY OF NEW ORLEANS (2026)

I agree with the Majority's conclusions that 1) the trial court did not clearly err in finding that Pan-American left the barrels at 2400 Canal Street, and 2) Pan-American's counsel's oral statement was a judicial confession, such that the trial court erred in granting Pan-American's Motion in Limine. However, I respectfully disagree with the Majority's conclusions that 1) the trial court erred in denying Pan-American's Motion for Summary Judgment on prior owner liability, and 2) the trial court manifestly erred in finding Plaintiffs proved causation. In light of the foregoing, I would affirm the trial court's June 20, 2025 judgment. Like the Majority, I would deny Plaintiffs’ Answer to Appeal.

Prior Owner Liability

The Majority concludes that Pan-American, as a former owner of the subject property, did not owe a duty to the plaintiffs based on Learson v. Bussey, 1996-2339 (La. App. 4 Cir. 3/26/97), 691 So.2d 1301. I disagree. In Learson, this Court considered whether the former owner of a residence, Rosenson, was liable to the plaintiff, Learson, who “was severely injured when he fell through a rotted wooden step of the stairs that led from the porch to the sidewalk.” 1996-2339, p. 1, 691 So.2d at 1302. Learson alleged “that Rosenson performed certain cosmetic repair work in order to sell the property,” which “[i]ncluded ․ painting ․ the wooden porch and steps․ to give the impression that they were fresh, new, safe and strong.” Id. at pp. 1-2, 691 So.2d at 1302. Learson alleged Rosenson did so despite knowing “that the wooden step was dangerous, weak, rotted and defective and needed to be replaced rather than merely being painted.” Id. at p. 1, 691 So.2d at 1302. Essentially, Learson argued “that Rosenson had either actual or constructive notice of the presence of this hazardous condition” yet did not disclose it prior to the sale and was thus “negligent in failing to repair it or to post warnings.” Id. at p. 2, 691 So.2d at 1302.

In reversing the trial court's grant of an exception of no cause of action in favor of Rosenson, this Court stated: “If the former owners, prior to their sale of the property, knew of a defective condition and concealed the problem by merely painting over [it], rather than repairing or at least advising of the[ ] condition, then they may be responsible for plaintiff's injuries.” Learson, 1996-2339, p. 2, 691 So.2d at 1303 (emphasis added). In my opinion, subsequent jurisprudence has put too much weight in the concealment part of that statement and detrimentally ignored the phrase “rather than repairing or at least advising of their condition.” By doing so, jurisprudence has ignored this Court's true holdings in Learson. That is, this Court then went on to state, more generally, that “The subsequent sale of [a] property, as a matter of law, does not automatically absolve the former owner of their negligent acts.” Learson, 1996-2339, p. 2, 691 So.2d at 1303. Rather, the former owner has, “[a]t the very least,” the “duty to advise or make the new owner aware of conditions which could pose a danger to others” because of “the possibility that someone may be injured by the dangerous condition.” Id. at pp. 2-3, 691 So.2d at 1303. With that statement, this Court reiterated the phrasing from its earlier sentence: if a former owner chooses not to repair or remedy a dangerous condition, he must—at a minimum—advise or otherwise make the new owner aware of the condition.

Thus, by painting the defective step, Rosenson not only concealed it but, more importantly, neglected the duty to advise or make the new owner aware of the dangerousness of the step. In other words, the new owner was not aware of the dangerousness of the step because of the concealment. Concealing the defective condition is one way of violating the duty to disclose. But, so too is leaving a dangerous item in a corner of a basement for later (eventual) discovery, as occurred in the matter sub judice. The underlying problem in both scenarios is the new owner's lack of awareness and the concern for an innocent plaintiff to become injured as a result. Thus, in my opinion, the important question in a case like Learson and the matter sub judice is not whether an act of concealment occurred but whether the former owner should retain some measure of liability because by his action or inaction he did not make the new owner aware of the defective or dangerous condition. The question is not simply whether the prior owner concealed the defect. In sum, I find the jurisprudence following Learson has interpreted that case too narrowly by focusing on the prior owner's concealment of the defect in that case rather than this Court's holding that a prior owner must, at a minimum, inform the new owner of a known dangerous condition, lest he subject himself to future liability.

I find my position buoyed not only by the plain language of Learson but also by the practical implications of holding otherwise. As noted above, the concern in cases like this is that an innocent plaintiff may be injured by a defective or dangerous condition; so requiring former owners to disclose known defects minimizes that risk. Yet, harm to innocent people is exactly what happened here. Pan-American did not properly dispose of the barrels or warn the City about the dangerous nature of their contents and, to make matters worse, the City did not investigate the contents of the barrels despite complaints from employees. One hopes and assumes that if Pan-American had specifically warned the City that the barrels contained hazardous acids, then the City would have taken the necessary steps to remove them before the Plaintiffs were harmed by them. Because Pan-American failed to issue such a warning though, the City did not know the seriousness and danger surrounding the barrels. I do not condone the City's failure to investigate and dispose of the barrels in light of the complaints from employees. Rather, I merely posit the outcome could have been different if Pan-American had specifically informed the City of the hazardous nature of the barrels, thereby directly putting the City on notice of the dangerous condition of the barrels. The concerns expressed by employees about the barrels were not equivalent to the direct information Pan-American could have provided to the City—that the barrels did in fact contain dangerous chemicals.

Further, the Majority's holding allows a former owner to be totally liable for a known dangerous condition one day—a condition that could even be of the former owner's own making or fault—and then readily escape/shift all liability the next day and leave someone else holding the bag, so to speak, as long as he did not actively conceal it. That is not something the judicial system should encourage. Moreover, would application of the Majority's holding pass muster in a case involving a shorter time span? For example, if the subject barrels leaked within one week of the City taking over the building and caused health issues for those present at the time of the leak but before the City even knew the barrels were present, knew the barrels were dangerous, and/or had time to figure out and initiate proper removal of the barrels, what then? Under the Majority's holding, the City would nonetheless be totally responsible because the Majority has found that Pan-American did not conceal the barrels and concealment was the only way it could be liable. Admittedly, as referenced above, the fact that the City had sole occupation and ownership of the building for such a long time and received questions and concerns from employees regarding the barrels begs the question why the City did not investigate or take care of the barrels before the situation reached a breaking point. Nonetheless, I do not believe this Court should issue a holding that may have the effect of encouraging property owners to leave a dangerous condition knowing they can escape liability as long as they did not conceal the condition. Just because a longer amount of time passed in this case does not mean that Pan-American should luck out and escape liability because the subsequent property owner also acted irresponsibly in its approach (or lack thereof) to the barrels. Again, I am concerned about the potential impact of the Majority's holding to innocent individuals who are caught in the crosshairs when both a former and current property owner neglect a dangerous condition.

The Majority's holding also begs the question what constitutes “concealment” for purposes of this jurisprudential rule. Painting over the step in Learson to make it look new clearly was concealment. Arguably, leaving barrels with noxious chemicals in the corner of a basement is also a form of concealment when the subsequent owner is apparently unaware of the potential impacts to human health from the contents of aforesaid barrels.

Further, it is an oversimplification of this case to analogize the rotted step in Learson to barrels of hazardous chemicals. While handing over a property with a rotted wood step is certainly a danger, it is not equivalent to abandoning multiple barrels of hazardous substances in a highly populated workplace. In this regard, I briefly turn to federal law for illustrative purposes. As the United States District Court for the Eastern District of Louisiana has explained, “[t]he CERCLA [Comprehensive Environmental Response, Compensation, and Liability Act] definition of ‘release’ explicitly includes” one's “abandonment of barrels leaking a hazardous substance” as a “paradigmatic example.” Dune Energy, Inc. v. Chevron U.S.A., Inc., 126 F.Supp.3d 688, 694 (E.D. La. 2015) (citing 42 U.S.C.A. § 9601(22)). That part of CERCLA specifically states, in pertinent part, that “[t]he term ‘release’ means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).” 42 U.S.C.A. § 9601(22) (emphasis added). Under CERCLA, a party may escape liability only if able to “establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by (1) an act of God; (2) an act of war; (3) an act or omission of a third party;” or “(4) any combination of the foregoing.” 42 U.S.C.A. § 9607(b). Why should we permit Pan-American to escape liability under the circumstances that subject one to liability under today's version of CERCLA? Even though the focus is on the fact that Pan-American was the prior owner, I believe it should be on the fact that Pan-American is the entity that abandoned the barrels.¹

Because I disagree with the Majority's conclusion that the trial court erred in denying Pan-American's Motion for Summary Judgment on prior owner liability, I find the trial court correctly retained the issue of Pan-American's liability for trial. Further, I find the trial court did not err in apportioning some fault to Pan-American after Pan-American's counsel judicially admitted to the company's ownership of the barrels; after evidence introduced at trial supported same; and after Pan-American failed to establish that it warned the City about the danger of the contents of the barrels. Given the duration of time in which the City knew about the barrels and employees’ concerns about the barrels yet took no action, I might have apportioned fault differently, i.e., given more to the City; but I cannot say that the trial court was manifestly erroneous or clearly wrong in its apportionment. See Duran v. Silva, 2019-0748, p. 8 (La. App. 4 Cir. 3/25/20), 293 So.3d 1135, 1141 (holding that “[a]llocations of fault are factual determinations, which are not to be disturbed by appellate courts in absence of manifest error or unless a particular finding of fact was clearly wrong” (internal quotation marks omitted) (citation omitted)). Moreover, I disagree with the Majority that Pan-American should be completely free of fault under the facts of this case. Thus, I would affirm the trial court's decision to assess 70% fault to Pan-American, 30% to the City, and 0% to NID.

Causation

Standard of Review and Applicable Principles

Next, I disagree with the Majority's conclusion that the trial court manifestly erred in finding Plaintiffs proved causation. I begin with a recitation of the standard of review and relevant principles regarding causation as delineated by this Court in Marshall v. Air Liquide-Big Three, Inc.:

“Causation is the first element of proof of a negligence claim.” Watters v. Dep't of Soc. Sers., [20]08-0977, p. 16 (La. App. 4 Cir. 6/17/09), 15 So.3d 1128, 1142. “Causation is a factual finding that should not be disturbed unless the record does not furnish a basis for that finding, and it is clearly wrong or manifestly erroneous.” Thomas v. A.P. Green Indus., Inc., [20]05-1064, p. 23 (La. App. 4 Cir. 5/31/06), 933 So.2d 843, 860. “When causation and credibility are major issues, a factfinder's findings are entitled to ‘great deference,’ and may not be overturned unless they are manifestly erroneous.” Richardson v. Am. Cyanamid Co., [19]99-675[-]682, p. 18 (La. App. 5 Cir. 2/29/00), 757 So.2d 135, 144 [(]quoting Guillory v. Ins. Co. of N. Am., [19]96-1084, p. 5 (La. 4/8/97), 692 So.2d 1029, 1032[)]. “The issue of causation is a fact specific inquiry and we are called to decide whether the factfinder's conclusion is reasonable.” [Id. at] p. 18, 757 So.2d at 144.

2011-0990, p. 29 (La. App. 4 Cir. 9/7/12), 107 So.3d 13, 33-34.

Under the manifest error/clearly wrong standard of review, if “there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous.” Arabie v. CITGO Petroleum Corp., 2010-2605, p. 4 (La. 3/13/12), 89 So.3d 307, 312 (first citing Stobart v. State, Through Dep't of Transp. & Dev., 617 So.2d 880, 883 (La. 1993); and then citing Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990)). In other words, as the Louisiana Supreme Court has held, “a reviewing court may not merely decide if it would have found the facts of the case differently.” Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115 (citing Hall v. Folger Coffee Co., 2003-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98). Instead, for a reviewing court to “revers[e] a trial court's factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong.” Id. at p. 8, 193 So.3d at 1115-16 (emphasis added) (citing Stobart, 617 So.2d at 882).

As the Majority correctly notes, in Adams v. Entergy New Orleans, Inc., this Court recently explained that “[i]n toxic tort cases, proof of causation has two components: general and specific.” 2025-0444, 0611, p. 8 (La. App. 4 Cir. 3/10/26), ___ So.3d ___, ___, 2026 WL 672882, at *4 (quoting Lataxes v. La. Home Specialists, LLC, 2024-129, p. 10 (La. App. 5 Cir. 12/30/24), 409 So. 3d 1010, 1017. This Court defined general causation as “whether a substance is capable of causing a particular injury or condition in the general population” and specific causation as “whether a substance caused a particular individual's injury.” Id.

General Causation

As stated above, in a toxic tort suit, the plaintiffs must prove the substance at issue can cause the complained of injury or health condition in the general population, i.e., general causation. I find the Louisiana Third Circuit Court of Appeal (“Third Circuit”) case of Broussard v. Multi-Chem Grp., LLC, 2017-985-992, (La. App. 3 Cir. 10/22/18), 255 So.3d 661, instructive and analogous to the general causation issue in the matter sub judice. In Broussard, the plaintiffs sought damages after their alleged exposure to chemicals following an industrial explosion at the defendant's chemical facility. 2017-985-992, p. 1, 255 So.3d at 666. On appeal, the defendant noted that the plaintiffs’ toxicology expert “acknowledged that air sampling did not reveal hazardous chemical levels exceeding regulatory guidelines,” such that “there [was] no evidence that such chemicals survived the intensity of the fire or attached themselves to particulate matter.” Id. at p. 28, 255 So.3d at 684. Further, the defendant argued that “there [was] no evidence indicating that any exposure by the particulate matter, alone, posed a risk of injury as reported by the plaintiffs.” Id.

The Third Circuit agreed the expert “testified to the absence of air sampling data indicating that the particulate matter included a chemical component” but, “on the issue of risk posed, as relevant to the inquiry of general causation, [she] repeatedly opined as to the potential of injury.” Id. In this regard, the expert testified: “But, of the data I do have, the levels that [we are] seeing are high enough to fit into that category of producing an acute respiratory or dermal reaction.” Id. at p. 29, 255 So.3d at 684. Further, and critically, the expert explained “that the type of acute symptoms complained of by the plaintiffs were consistent with exposure to particulate matter more than likely contained within the plume ․” Id. at p. 4, 255 So.3d at 668. Thus, the Third Circuit disagreed with the defendant, stating it gave credence to the plaintiffs’ toxicology expert's “statement regarding the potential risk posed by the involved chemicals and the particulate matter” and found “the record support[ed] the trial court's determination that the plaintiffs proved general causation.” Id. at pp. 30-31, 255 So.3d at 685.

Similarly, Dr. Paul H. Templet (“Dr. Templet”) testified about the uncertainty surrounding the leakage rates of the barrels and exposure rates in the matter sub judice but explained not only were the acids and evidence of corrosion found throughout the building, but also the Plaintiffs’ symptoms helped to establish same:

[A] [T]he very acidic pHs found in the floor -- the rooms’ surfaces and in the HVAC system [via the pH wipes] are proof of the presence of acid gases in the rooms and HVAC system. The extent of corrosion and prolonged history of complaints indicates that the acid gases were present over an extended period of time.

Let me say a little about history of complaints. If [you are] uncertain about the leakage rates and how much acid is on the floor, then you look to other sources of information. And one of the big sources of information were complaints that were coming in from the people working in the building -- and they had been coming in for years -- about nose problems and eye problems

․

Q Okay. Would burning, itching, watery eyes, and burning nose, would those be among the symptoms that airborne acids could cause?

․

A Yes. [They are] exactly the types of things you expect. And [that is] what the people in the building were saying too.

․

Q Since we [do not] know the day, minute, second that the barrels started leaking, would reports of those symptoms -- contemporaneous reports of those symptoms indicate that the barrels were leaking when the symptoms occurred?

A Yes. I mean, [that is] -- some of your best evidence is when people start complaining that [there is] a problem.

Dr. Templet explained the air in the building was “likely a mixture of the two” acids—hydrochloric and hydrofluoric acid. When asked whether he had “any indication that people in this case were exposed to ․ excess of any permissible exposure limit” for hydrofluoric acid, Dr. Templet responded that other than Plaintiffs’ own complaints, he did not have such information “because there were no tests done.” Regarding whether he had an estimate of what the concentration of hydrochloric acid in the air may have been, Dr. Templet explained he knew it was present in the building “above the limit at which you can detect it -- the detectable limit,” which is the “odor threshold.” Dr. Templet testified that to “do any calculations to determine what the concentration of exposure to the[ ] [P]laintiffs was” would be purely “speculative.” Thus, Dr. Templet was just like the expert in Broussard—faced with a dearth of information and having to use other clues about exposure. In this respect, Dr. Templet further explained that “[t]he extent of corrosion [as evidenced by photographs inside the building] and prolonged history of complaints indicates that the acid gases were present over an extended period of time.” In responding to what it meant that over a thousand people in the building complaining about health issues symptomatic of acid exposure meant to him regarding the leakage from the barrels, Dr. Templet stated that demonstrated the leakage “was going on for a fairly long period of time and that it was reaching those people.”

In that latter regard, while the Majority contends not all Plaintiffs demonstrated the “exposure pathway from the basement to upper floors,” I disagree. In this regard, Dr. Templet testified that one has “to think about how ․ these chemicals move in the environment. And if [it is] a gas then it moves ․ through the air, essentially.” Dr. Templet explained the hydrochloric and hydrofluoric acids from the barrels would have been “sucked into the ventilation,” thereby entering “the areas in the [building] affected by the ventilation system” and with “inhalation exposure to the acid gases ․ very likely and probable.” As Dr. Templet further explained, “the wipes that were done in the HVAC system came up pretty low on the pH scale” meaning the HVAC system was “very acidic.” Like the expert in Broussard, Dr. Templet thus testified that the symptoms complained of by Plaintiffs were consistent with exposure to the acids originating in the barrels and subsequently found within the building and in its HVAC system, i.e., the acids were capable of causing the reported conditions.

Likewise, Dr. Patricia M. Williams, Ph.D., DABT (“Dr. Williams”), testified as to general causation, with the following colloquy occurring during her testimony:

[Q] So have you developed an opinion on general causation in this case?

․

A Well, that the ․ two acids, hydrochloric acid and hydrofluoric acid caused many ․ and diverse clinical symptoms[, namely] burns, cataracts, glaucoma․ And so [it is], basically, causation; can these two compounds cause diseases and clinical symptoms? Yes.

Q What about burning of the eyes?

A Burning of the eyes, definitely.

Q What about sinus problems?

A Definitely.

Q What about headaches?

A Definitely.

As Dr. Templet did, Dr. Williams tied Plaintiffs’ complained of symptoms to exposure to the particular acids at issue in this case. Regarding the route of exposure, like Dr. Templet, Dr. Williams testified there was “evidence [the pH wipes showing high hydrogen ion concentrations] that the [acid] gases from the [barrels] were pulled into the A/C -- air conditioner,” whereupon they were diffuse in the environment landing on Plaintiffs’ skin and/or being inhaled by Plaintiffs and having a “corrosive effect” on their bodies. The Majority questions the ability of the pH wipes to establish causation. However, when asked whether she relied on anything other than the pH wipes to establish the measure of exposure, Dr. Williams unequivocally responded, “I do not need anything beyond those.” Further, when asked whether she had any information on the dose (an issue raised by the Majority), Dr. Williams testified that the measure of exposure was important in establishing causation, not dose. Similarly, in Broussard, when questioned about a specific dosage duration analysis of individuals, the expert responded such an analysis was not possible and was unnecessary based on other information she had. 2017-985-992, p. 34, 255 So.3d at 688.

Based on Dr. Templet's and Dr. Williams’ testimony, I find the trial court did not err in concluding that general causation, i.e., exposure to the hydrochloric and hydrofluoric acids found in the subject barrels at the exposure level evidenced by the pH wipes and evidence of corrosion in the building could cause Plaintiffs’ complained of symptoms. Dr. Templet and Dr. Williams supplied a reasonable factual basis for the trial court's ruling, and the ruling was not clearly wrong or manifestly erroneous based on the record as a whole. Their testimony was equivalent to what the Third Circuit upheld in Broussard. Simply put, the trial court had to choose between competing experts’ testimony and make credibility determinations, and the trial court found Plaintiffs’ experts’ testimony more credible. When that occurs, the trial court's conclusion cannot be manifestly erroneous. The Majority has impermissibly decided that it would have found differently based on the facts presented regarding causation. See Hayes, 2014-2592, p. 8, 193 So.3d at 1115.

Specific Causation

I next turn to specific causation. In a toxic tort suit, the plaintiffs must prove “that the offending substances caused his or her injury.” Broussard, 2017-985-992, p. 31, 255 So.3d at 686 (citing Bradford v. CITGO Petroleum Corp., 2017-296-321, p. 6 (La. App. 3 Cir. 1/10/18), 237 So.3d 648, 659). Toxic tort plaintiffs must demonstrate “through medical testimony that it was more probable than not that subsequent injuries were caused by the” offending substances. Marshall, 2011-0990, p. 30, 107 So.3d at 34 (citing Watters, 2008-0977, p. 31, 15 So.3d at 1152). As this Court explained in Marshall, “It is clear that Louisiana law does not require medical expert examination of each class member's symptoms before the court can find that specific causation has been met.” Id. at pp. 30-31, 15 So.3d at 11512 (citing Watters v. Dep't of Soc. Servs., 2011-1174, p. 8 (La. App. 4 Cir. 3/14/12), 102 So.3d 118, 124). Moreover, a doctor who submits a medical causation opinion in a toxic tort case need not perform a differential diagnosis to rule out other causes, particularly if the trial court is aware that the doctor did not do so. Broussard, 2017-985, pp. 19-21, 255 So.3d at 678-80 (maintaining the trial court's acceptance of the medical doctor's testimony because “the larger context” of the entire transcript, including the doctor's responses on cross-examination that he did not perform additional testing or examination to rule out additional or alternative causes, meant “the trial court was informed ․ of arguable limitations of [the doctor]’s evaluations”).

Importantly, while “expert testimony on causation is required” in a toxic tort suit, the jurisprudence does not require “expert opinion as to specific causation.” Bradford, 2017-296-321, p. 7, 237 So.3d at 660 (quoting Bell v. Foster Wheeler Energy Corp., No. 2015-6394, 2017 WL 889083, at *3 (E.D. La. 3/6/17)). That is, a plaintiff need not provide an analysis of the dose and duration of their exposure and scientific evidence of same, such as air monitoring data, to prove specific causation. Broussard, 2017-985-992, pp. 31-35, 255 So.3d at 685-88; Arabie, 2010-2605, pp. 18-21, 89 So.3d at 321-22. See generally Edwards v. Sawyer Indus. Plastics, Inc., 1999-2676 (La. 6/30/00), 765 So.2d 328. Rather, toxic tort “plaintiffs [can] meet their burden of proving causation through either a quantitative or a qualitative assessment of ․ exposure.” Freeman v. Fon's Pest Mgmt., Inc., 2017-1846, p. 4 (La. 2/9/18), 235 So.3d 1087, 1090 (citing Arabie, 2010-2605, pp. 18-21, 89 So.3d at 321-322). Qualitative information exists if there is evidence, such as the presence of an odor, that the chemical was present for an extended period of time so as to result in plaintiffs’ substantial exposure to same and if the plaintiffs’ treating physicians “were of the opinion that their symptoms were consistent with exposure to the toxic chemicals” at issue. Arabie, 2010-2605, p. 20, 89 So.3d at 321-22. See also Edwards, 1999-2676, pp. 8-9, 765 So.2d at 332-33 (finding in favor of the plaintiff—even though the plaintiff's exact level of exposure to styrene fumes at work was unknown—because the plaintiff's treating physician attributed his brain dysfunction to his employment conditions and the plaintiff offered lay testimony from fellow workers about their symptoms while in the workplace).

Turning to the matter sub judice, Plaintiffs’ reported symptoms included nausea, vomiting, dizziness, migraine headaches, skin irritation (e.g., rash), and eye and respiratory issues from which they suffered and for which they received treatment. Plaintiffs’ eye issues included cataracts; glaucoma; a stinging and/or burning sensation; pain; itchiness; a red appearance; and watery/runny eyes. Regarding Plaintiffs’ respiratory issues, these included congestion, nosebleeds, sneezing, coughing, runny nose, shortness of breath, and a burning throat pain. Plaintiffs testified they experienced these symptoms while working in the subject building but had not experienced such symptoms before working in the building. Further, Plaintiffs testified some of these symptoms required eventual treatment and some even remained problematic at the time of trial.

Thomas J. Falterman, M.D. (“Dr. Falterman”), testified he examined four Plaintiffs. According to Dr. Falterman, one Plaintiff, Marten Williams (“Mr. Williams”), was not aware that chemicals were in the building while he worked there but nonetheless reported symptoms of chemical exposure, such as nausea, dizziness, runny/burning nose, gagging, and eye irritation. Dr. Falterman testified that Mr. Williams described an odor in the building, particularly “a fume-like smell, which he believed led workers in the nearby food stamps office to experience episodes of vomiting” and which ultimately led to the closure of that office. Dr. Falterman stated that Mr. Williams denied he experienced any prior medical problems before working at the subject building; and when asked whether Mr. Williams was a “reliable historian giving [his] medical history,” Dr. Falterman responded affirmatively. Ultimately, Dr. Falterman testified he examined Mr. Williams and determined “[t]hat his ․ exposures to a variety of chemicals, including hydrofluoric acid and hydrochloric acid were contributory to his symptoms.” Dr. Falterman testified similarly regarding the other Plaintiffs he examined—that their symptoms more probably than not resulted from their exposure to the chemicals at the subject building. Additionally, Kathleen H. Willis, M.D. (“Dr. Willis”), testified she took the history of and examined eight Plaintiffs. Discussing the first of these Plaintiffs, Dr. Willis likewise concluded “to a reasonable degree of medical certainty [there was] a causal relationship between [her] medical history and the reported history of exposure to the toxins or the chemicals in the building.” Dr. Willis testified similarly regarding the other Plaintiffs she examined, explaining their reported “symptoms ․ are consistent with the known health effects associated with inhalation of [the subject] chemicals and there is a temporal relationship between the exposure and the onset of these symptoms.”

I note the Majority discusses the absence of a differential diagnosis in its Opinion. Dr. Falterman described “differential diagnosis” as “a list of medical conditions that could be causing a patient's signs and symptoms.” Dr. Falterman testified he “conducted a history and physical” on the Plaintiffs he examined, which he described as “part of the process of ruling in and ruling out things.” However, when pressed by defense counsel as to whether he asked Mr. Williams if he owned a dog or a cat or observed mold on the walls of the subject building, i.e., examples of other things that could have caused Mr. Williams’ respiratory issues, Dr. Falterman stated he could not recall doing so. Therefore, like the doctor in Broussard, Dr. Falterman did not unequivocally testify that he performed extra testing or examination to completely rule out all additional or alternative causes of Plaintiffs symptoms, i.e., performed a differential diagnosis—nor was he required to do so. See Broussard, 2017-985, pp. 19-21, 255 So.3d at 678-80. Similarly, Dr. Willis never testified that she ruled out all other possible causes of the Plaintiffs’ symptoms. Looking at the transcript as a whole, the trial court was thus informed of the arguable limitations of Dr. Falterman's and Dr. Willis’ evaluations of Plaintiffs yet chose to credit their testimony anyway. I thus find the Majority's focus on this misplaced.

The record evidence and Plaintiffs’ testimony regarding the health issues they experienced coupled with the testimony of Dr. Falterman and Dr. Willis linking those health problems to their exposure to the acids from the barrels supports the trial court's finding of specific causation. Additionally, the juxtaposed testimony of the experts regarding exposure and the alleged correlation to Plaintiffs’ symptoms tasked the trial court with credibility determinations as well as factual findings. I do not find that the trial court's finding regarding specific causation was manifestly erroneous or clearly wrong. Rather, there was a reasonable factual basis for the finding in the form of Plaintiffs’ testimony and the doctors’ testimony. Again, I find the Majority has impermissibly substituted its opinion for that of the trial court. Accordingly, I disagree with the Majority that the trial court manifestly erred in finding Plaintiffs demonstrated specific causation.

For the foregoing reasons, I respectfully dissent. I would affirm the trial court's June 20, 2025 judgment. I would nonetheless deny Plaintiffs’ Answer to Appeal.

FOOTNOTES

1.   I recognize that the section of CERCLA quoted in my Dissent came from a 1986 amendment to CERCLA, i.e., after Pan-American's sale of the building. The Majority's statement that “CERCLA provides, at most, a very limited context and does not alter the Louisiana law inquiry before us – custody or garde, causation, and damages” misconstrues the position I took in my Dissent regarding CERCLA. At the outset in my CERCLA paragraph, I stated that I was “turn[ing] to federal law for illustrative purposes,” not to say that CERCLA specifically applied and imposed liability on Pan-American under the facts of this case. (Emphasis added.) (However, the fact that the federal government expanded the definition of release to include abandonment of barrels containing hazardous substances underscores that leaving a dangerous condition for someone else to deal with is unacceptable, legally-speaking.)Rather, I sought to explain why it feels too simplistic to compare a rotted wood step (Learson) to multiple barrels of hazardous waste (the matter sub judice) without further emphasizing that these defects are not in the same category when it comes to their ability to cause harm and the remedy required to eliminate the danger. The point I made is that the federal government enacted a law designed to specifically address hazardous waste cleanup (CERCLA) because of the dangerousness of certain chemicals and substances, i.e., like those at issue in this case. Simply put, a rotted wood step leading to a house is not comparable to multiple barrels of hazardous waste tucked in the basement of a highly populated office building. If it were, the federal government would have enacted a rotted wood step law—perhaps it would be titled the “Comprehensive Rotted Wood Step Response, Compensation, and Liability Act.”Moreover, in my opinion, the Majority's newly-added footnote reinforces my stance. As the Majority states, CERCLA “underscores the seriousness of abandoned hazardous materials,” and the federal government enacted CERCLA with one of the goals being the “prompt cleanup of hazardous waste sites.” That is precisely my point: hazardous materials are in a class of their own when it comes to dangerousness, and our focus should be on issuing a holding that protects and compensates innocent people harmed by such materials and by an entity's careless disregard for same. The Majority's holding does the opposite.Whether Pan-American had custody or garde after its sale of the building is of no consequence. It is Pan-American's abandonment of the barrels coupled with its failure to advise the City of the dangerousness of the barrels that require imposing liability on Pan-American under Learson. The defining moment for liability and responsibility to these Plaintiffs was when Pan-American abandoned the barrels and not only failed to inform the City about the barrels but, more troubling, did not convey to the City the dangerous nature of the barrels. The subsequent failure of the City to address the barrels when it had custody and control over them is what created liability for that entity. As I originally explained though, this Court held in Learson that a prior owner must—at a minimum—advise or otherwise make the new owner aware of a dangerous condition. Pan-American failed to do that, and the Majority has thus failed to follow the basic tenet of Learson. That Pan-American is allowed to escape all liability for abandoning barrels of hazardous substances simply because the Majority believes Pan-American did not “conceal” the barrels—whatever that means—defies logic in my opinion. Though the Majority notes that “at least some of the barrels were labeled as to their contents,” not all were, and they did not contain a delineation of the human health concerns for a lay person to readily recognize their danger.

ATKINS, J., DISSENTS WITH REASONS.