ANDERSON 2400 v. CITY OF NEW ORLEANS (2026)

Appellant, Pan-American Life Insurance Company (“Pan-American”), seeks review of the trial court's June 20, 2025 judgment awarding $407,000.00 to the twelve first flight plaintiffs and allocating fault as follows: 70% to Pan-American, 30% to the City of New Orleans (the “City”), and 0% to NID Corporation (“NID”). For the reasons that follow, we reverse the trial court's judgment; render judgment in favor of Pan-American dismissing all claims against it with prejudice; and deny the answer to appeal.

FACTUAL AND PROCEDURAL HISTORY

This litigation, now spanning more than two decades, arises from the storage of hazardous chemicals at the building located at 2400 Canal Street in New Orleans, Louisiana. The facts of this case have been previously outlined by this Court, thus, we incorporate a portion of that recitation herein:

Pan-American was the original owner of the building located at 2400 Canal Street in New Orleans, Louisiana. In August of 1982, Pan-American sold the building and surrounding tracts to Poydras Square Associates, Inc. (“Poydras Square”), later known as NID Corporation (“NID”). After the sale, NID leased the property to the City of New Orleans (the “City”). Pursuant to the lease's terms, NID granted the City the full right to “have and hold the demised premises” and “any and all appurtenances belonging or appertaining thereto.” The City acknowledged that it had inspected the premises and accepted the building in its existing condition. The leased building became known as the Annex; and, in January 1985, the City acquired full title and ownership of the property through a land exchange with NID.

The City continued ownership and occupancy of the Annex until December 1999. [On December 9, 1999], barrels[1] containing toxic substances [55-gallon drums of Deox (diluted hydrochloric acid), 30-gallon drum of Aluma Brite (a cleaning product containing 10-15% hydrofluoric acid), and barrels labeled “mineral acid” and Cecotrol (sodium MBT)] leaked, resulting in the Annex's evacuation. The barrels were discovered in the building's basement.

[On May 12, 2000, several individuals], who worked in the Annex [(“Plaintiffs”)], initially filed a petition for damages against the City. [Plaintiffs] sought compensatory damages and punitive damages pursuant to La. C.C. art. 2315.3. Thereafter, [on April 6, 2001, Plaintiffs] filed an amended petition which added Pan-American as a defendant, asserting the same compensatory and punitive damages claims. [Plaintiffs’] allegations against Pan-American contended that Pan-American placed the barrels in the Annex property before the 1982 sale and represented that the barrels contained toxic chemicals for an unknown period of time.

Anderson v. City of New Orleans, 2023-0796, p. 1 (La. App. 4 Cir. 1/30/24), 382 So.3d 434, 436.

This litigation has a lengthy and complex procedural history spanning nearly a decade of trial court proceedings and multiple appellate interventions by this Court. From 2000 to 2015, the parties filed various cross-claims and motions for summary judgment. Pertinent to this appeal, on September 19, 2014, Pan-American filed a motion for summary judgment on prior-owner liability asserting that, as the prior owner of 2400 Canal Street who did not conceal any defects, it owed no legal duty to Plaintiffs, who were City employees. The trial court denied Pan-American's motion, as well as the various cross-claims and motions for summary judgment filed during this period.

In September and October 2015, the trial court conducted a four-day evidentiary hearing on Plaintiffs’ motion for class certification. On June 30, 2016, the trial court granted certification of the proposed class. On appeal, this Court reversed the certification judgment and remanded the matter, instructing the trial court to include a “clear class action definition” in any renewed certification order. Anderson v. City of New Orleans, 2016-1013 (La. App. 4 Cir. 6/14/17), 222 So.3d 800. (“Anderson I”).

Following remand, the trial court again certified a class. On May 2, 2018, this Court again reversed, concluding that Plaintiffs had failed to establish that toxic chemicals leaked from the subject property prior to December 9, 1999, and that they lacked sufficient evidence identifying which chemicals leaked, in what quantities, or when the leaks commenced. This Court further observed that the reported symptoms were non-specific and could be attributed to a variety of irritants. Accordingly, this Court ordered that all class allegations be removed from the pleadings. Anderson v. City of New Orleans, 2017-0999 (La. App. 4 Cir. 5/2/18), 248 So.3d 428. (“Anderson II”).

In September 2019, following the second remand, Plaintiffs filed a fourth amended petition – the operative pleading in this matter – naming, for the first time, over 1,000 individual plaintiffs. Among those named were the twelve “first flight” plaintiffs whose claims proceeded to trial in April and May 2024.

On July 12, 2023, defendant Pan-American filed a motion for partial summary judgment seeking dismissal of Plaintiffs’ punitive damages claim under La. C.C. art. 2315.3.² Pan-American argued that any conduct attributable to it predated the statute's September 4, 1984 effective date and that no evidence demonstrated Pan-American exercised control over the property following its 1982 sale. The trial court denied the motion. Pan-American sought supervisory writs, and on January 30, 2024, this Court reversed, holding that Pan-American could not be held liable for punitive damages because its relevant conduct occurred before the statute's effective date and it exercised no control over the property during the statute's operative period. Anderson v. City of New Orleans, 2023-0796 (La. App. 4 Cir. 1/30/24), 382 So.3d 434. (“Anderson III”).

This matter proceeded as a bench trial, with the first flight of Plaintiffs, commencing on April 16, 2024, and concluding on May 3, 2024. These Plaintiffs included: Thomas Anderson (“Mr. Anderson”), Gladys Binder (“Ms. Binder”), Margaret Davis (“Ms. Davis”), Bertha Hankton (“Ms. Hankton”), Thomas McDermott (“Mr. McDermott”), Doris Nettles (“Ms. Nettles”), Irvin Scales (“Mr. Scales”), William Severin (“Mr. Severin”), Jimmy Stevens (“Mr. Stevens”), Ethel Williams (“Ms. Williams”), Legabe Williams (“Mr. L. Williams”), and Marten Williams (“Mr. M. Williams”). During trial, this Court granted a second supervisory writ application filed by Pan-American, reversing the trial court's mid-trial restriction on the testimony of defense expert Dr. Andrew Maier (“Dr. Maier”). Anderson v. City of New Orleans, 2024-0252 (La. App. 4 Cir. 5/1/24), 390 So.3d 402. (“Anderson IV”). Following the close of evidence, the trial court granted Plaintiffs’ motion for directed verdict, ruling that NID bore no fault. On Pan-American's application for supervisory writs, this Court reversed and remanded for further proceedings. Anderson v. City of New Orleans, 2025-0075 (La. App. 4 Cir. 04/07/25), 414 So.3d 923. (“Anderson V”).

On remand, the trial court took the matter under advisement and gave the parties an opportunity to submit post-trial memoranda. On June 20, 2025, the trial court issued a judgment awarding $407,000.00 to the twelve first flight plaintiffs and allocating fault as follows: 70% to Pan-American, 30% to the City, and 0% to NID. The trial court did not provide any written reasons for judgment.

On July 2, 2025, Pan-American filed a motion for suspensive appeal, and the trial court signed the order granting the suspensive appeal on July 14, 2025. This timely appeal followed.

DISCUSSION

Pan-American raises five assignments of error, which can be summarized as follows: (1) the trial court erred in denying Pan-American's motion for summary judgment on prior owner liability; (2) the trial court clearly erred in finding that Pan-American left the chemical barrels; (3) the trial court manifestly erred in finding that Plaintiffs proved causation; (4) the trial court abused its discretion in denying Pan-American's Daubert motion and admitted unreliable expert testimony; and (5) alternatively, the trial court abused its discretion in allocating 70% fault to Pan-American and only 30% to the City.³

Assignment of Error Number One: The trial court erred in denying Pan-American's motion for summary judgment on prior owner liability.

Initially, as its first assignment of error, Pan-American contends that the trial court erred in denying Pan-American's 2014 motion for summary judgment on prior owner liability. Under Louisiana Code of Civil Procedure Article 966(A)(3), a motion for summary judgment shall be granted “if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” The mover bears the initial burden of identifying the absence of factual support for an element essential to the opposing party's claim. La. C.C.P. art. 966(D)(1). Once that showing is made, the burden shifts to the non-mover to produce factual support sufficient to demonstrate that a genuine issue remains for trial. Id. Where the non-mover fails to meet that burden, summary judgment is not merely appropriate – it is required.

In Hero Lands Co., L.L.C. v. Chevron U.S.A., Inc., this Court previously explained:

Typically, “[a]ppellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate.” Chatelain v. Fluor Daniel Constr. Co., [20]14-1312, p. 3 (La. App. 4 Cir. 11/10/15), 179 So.3d 791, 793 (quoting Mandina, Inc. v. O'Brien, [20]13-0085, p. 8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 104). “[O]nce a case is fully tried,” however, “the affidavits and other limited evidence presented with a motion for summary judgment—later denied by the district court—are of little or no value.” Hopkins v. Am. Cyanamid Co., [19]95-1088, p. 13 (La. 1/16/96), 666 So.2d 615, 624. Accordingly, “[a]ppellate courts should not rule on appeal after a full merits trial on the strength alone of affidavits in support of a motion for summary judgment that was not sustained in the district court.” Id. Rather, “appellate courts should review the entire record.” Id.

2022-0224, p. 21-22 (La. App. 4 Cir. 03/07/23), 359 So.3d 130, 144-45.

Pan-American specifically asserts that the trial court clearly and manifestly erred by imposing liability on it as a prior owner years after a complete transfer of ownership, violating La. C.C. arts. 2317 ⁴ and 2317.1 ⁵ , and jurisprudential precedent establishing that prior owners cannot be liable for post-sale conditions absent fraud or concealment. “Whether a claim arises in negligence under La. [C.C.] art. 2315 or in premises liability under La. [C.C.] art. 2317.1, the traditional duty/risk analysis is the same.” Farrell v. Circle K Stores, Inc., 2022-00849, p. 5 (La. 3/17/23), 359 So.3d 467, 473. Under the duty/risk analysis, a plaintiff is required to prove all of the following elements:

1. The defendant had a duty to conform his conduct to a specific standard (the duty element);

2. The defendant's conduct failed to conform to the appropriate standard (the breach element);

3. The defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element);

4. The defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of duty element); and

5. Proof of actual damages (the damages element).

Id. (citation omitted).

“The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law.” Ramirez v. Lighthouse Prop. Ins. Corp., 2021-0184, p. 3 (La. App. 4 Cir. 12/15/21), 333 So.3d 1286, 1289 (citation omitted). Further, “[t]he inquiry into a defendant's particular duty ‘is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty.’ ” Butler v. Denka, 16 F.4th 427, 445 (5th Cir. 2021) (citation omitted). “Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case, and the relationship of the parties.” Id. (citation omitted). “The duty of an owner or custodian of property to keep his property in a reasonably safe condition is the same whether based on custodial liability under La. C.C. arts. 2317, 2317.1 and 2322, or negligence under La. C.C. art. 2315(A)․.” Ramirez, 2021-0184, p. 3, 333 So.3d at 1289-90 (citation omitted)(footnotes omitted).

In Learson v. Bussey, this Court addressed the duty of a former property owner. 1996-2339 (La. App. 4 Cir. 3/26/97), 691 So.2d 1301. The plaintiff in Learson alleged that following the former owner's sale of a New Orleans residence, he sustained injury when, while visiting the tenant, he fell through a rotted wooden step extending from the porch to the sidewalk. Id. at p. 1, 691 So.2d at 1302. Plaintiff further alleged that before the sale, the former owner performed cosmetic work, including painting the porch and steps, despite knowing or having reason to know that the step needed replacement rather than mere painting, and that the hazardous condition was not disclosed before the sale. Id. at pp. 1-2, 691 So.2d at 1302. The Court held that a “former owner has a duty to advise or make the new owner aware of conditions which could pose a danger to others.” Id. at pp. 2-3, 691 So.2d at 1303. “[W]here a defective thing is involved, not only can its owner be responsible for damages, but also the party who actually created the risk whether or not he is the owner.” Id. at p. 3, 691 So.2d at 1303 (citation omitted).

However, years later, referencing the Learson case, this Court clarified that “[a] former owner of property can only be held liable for defective conditions in the property if the former owner knew of the defective conditions prior to the transfer of the property and concealed those problems.” Bayer v. Omni Hotels Mgmt. Corp., 2007-0866, p. 4 (La. App. 4 Cir. 8/27/08), 995 So.2d 639, 642 (citation omitted). In Bayer, current and former employees of the Omni Royal Crescent Hotel asserted claims for damages against Decatur Hotels, LLC (“Decatur”) alleging that toxic mold conditions within the hotel caused their illnesses and that Decatur, as the property's former owner and developer, remained answerable for defects associated with the hotel's renovation despite its 1997 transfer of ownership to 535 Gravier, L.L.C. and retention of only a limited liability membership interest. Id. at pp. 1-2, 995 So.2d at 641. This Court affirmed summary judgment in Decatur's favor, holding that a former owner may be liable for defective conditions only upon proof that it knew of and concealed the defect before the transfer, and that the plaintiffs failed to produce evidence establishing such pre-transfer knowledge or concealment. Id. at p. 7, 995 So.2d at 643.

In order to recover damages under La. C.C. arts. 2317 and 2317.1, a plaintiff must prove:

(1) [T]he thing was in the [owner or] custodian's custody or control; (2) it had a vice or defect that presented an unreasonable risk of harm; (3) the defendant knew or should have known of the unreasonable risk of harm; and (4) the damage was caused by the defect.

Adams v. Entergy New Orleans, Inc., 2025-0444, p. 6 (La. App. 4 Cir. 3/10/26), ––– So.3d ––––, 2026 WL 672882 at *3 (citation omitted). “Failure of the plaintiff to prove any one of the above factors is fatal to the case.” Id. (citation omitted).

Pan-American's motion for summary judgment presented two independent legal grounds for dismissal: first, that it lacked garde over the chemical drums as a matter of law after the 1982 transfer; and second, that Plaintiffs failed to present any proof that Pan-American concealed the existence of the barrels of chemicals from anyone. As we explain below, both grounds were legally sound and factually uncontroverted on the summary judgment and trial record.

Louisiana Civil Code Article 2317 imposes liability for damage caused by things in a person's custody. Louisiana Civil Code Article 2317.1 converted the former strict liability standard to a knowledge-based inquiry, requiring proof that the owner or custodian knew or should have known of a ruin, vice, or defect and failed to exercise reasonable care. The threshold predicate for liability under either article is garde – “those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them.” Giorgio v. Alliance Operating Corp., 2005-0002, p. 24 (La. 01/19/06), 921 So.2d 58, 76. Without garde, there is no liability. The inquiry ends there.

These principles, applied to the undisputed facts presented to the trial court, compelled summary judgment in Pan-American's favor. At trial, Huey Weber (“Mr. Weber”), a Pan-American employee from 1958 until 1997, testified that Pan-American occupied 2400 Canal Street and utilized the building to conduct its life insurance business. He further testified that in November 1980, Pan-American moved out of 2400 Canal Street. During his employment with Pan-American, Mr. Weber explained that he supervised the maintenance and print shop. He recounted that when Pan-American moved out of 2400 Canal Street, the print shop moved to its Galvez Street location, and not the new headquarters building on Poydras Street. According to the act of sale, Pan-American sold 2400 Canal Street to Poydras Square, later known as NID, on August 10, 1982. In a simultaneous transaction, Poydras Square leased 2400 Canal Street to the City. Ultimately, the City acquired ownership of 2400 Canal Street in 1985 through a property exchange deal with NID. The sale, lease, and property exchange documents were all admitted into evidence during trial.

Pan-American's trial evidence was not disputed. Plaintiffs produced no competent evidence to controvert the following facts:

• In August 1982, Pan-American sold 2400 Canal Street to NID's predecessor, Poydras Square. After the sale, NID leased the property to the City.

• The 1982 lease expressly vested the City with “exclusive control and possession” of the premises and placed on the City the obligation to maintain the building “in good, safe, and substantial condition.”

• After August 1982, Pan-American had no access to 2400 Canal Street. It had no employees on site, no contractual relationship with the building or its occupants, no authority to enter the premises, and no practical capacity to take any action – remedial or otherwise – with respect to any condition within the building.

• Pan-American's print-shop operations – the operational context within which any garde over chemicals might previously have arisen – ceased before the 1982 transfer.

•After the 1982 transfer, Pan-American was virtually a stranger to 2400 Canal Street.

• In January 1985, the City acquired ownership of 2400 Canal Street through a land exchange with NID.

Plaintiffs did not contend that Pan-American retained a key to the building, maintained any personnel on site, or exercised any dominion over the premises after 1982. The factual predicate for garde, present custody and control, was undisputedly absent. The question before the trial court on garde was not who held title to the drums, but whether Pan-American exercised custody and control over them after August 1982. Based on the undisputed trial testimony and sale/lease documents submitted into evidence at trial, this question had one answer: it did not. Pan-American had no access to the building, no authority over anything within it, and no capacity to act with respect to the drums.

In its motion for summary judgment, Pan-American attempted to assert a La. C.C. art. 2461 argument, that the drums passed as accessories ⁶ of the immovable at the 1982 transfer. Louisiana Civil Code Article 2461 provides that “[t]he sale of a thing includes all accessories intended for its use in accordance with the law of property.” Whether the drums constituted accessories of the immovable or independent movables subject to separate disposition, the legal consequence on garde is the same. If the drums were accessories that transferred with the building in 1982, then garde passed to the City by operation of law and Pan-American's exposure under Articles 2317 and 2317.1 was extinguished at the moment of transfer. If the drums were not accessories – because their functional relationship to the building's use terminated with the closure of the print shop before the 1982 sale – then they were movables, left in a building over which Pan-American thereafter exercised no dominion or control. Under either legal characterization, Pan-American had no garde after 1982.⁷

Moreover, Pan-American established that the City's seventeen-year exclusive occupancy of 2400 Canal Street provided sufficient time to break any causal connection between Pan-American's pre-1982 conduct and Plaintiffs’ 1999 injuries. The Third Circuit case, Francisco v. Joan of Arc Co., 1996-1385 (La. App. 3 Cir. 1997), 692 So.2d 598, directly supports this position. In Francisco, the plaintiff sought damages arising from injuries sustained on October 15, 1993, by a cannery employee when a stack of cans fell onto him as he gathered cans that had previously fallen from the stacks. Id. at p. 1, 692 So.2d at 599. The plaintiff alleged that the cannery's former owners were liable because they had developed the stacking method that caused the accident. Id. at p. 2, 692 So.2d at 599. The record showed, however, that after the cannery was sold on July 2, 1990, the former owners had no further involvement in its operations. Id. at p. 5, 692 So.2d at 601. The Third Circuit held that a subsequent owner's three-year period of exclusive occupancy was sufficient to afford that owner adequate time to evaluate and revise inherited conditions, thereby relieving the prior owner of liability. Id. at p. 6, 692 So.2d at 602.

As noted above, the City began occupying 2400 Canal Street under a lease in 1982 and had exclusive control and possession of the building prior to the December 9, 1999 incident. The lease expressly obligated the City to maintain the building in good, safe, and substantial condition. Additionally, the City bore a statutory obligation to provide its employees a safe workplace under La. R.S. 23:13.⁸ As will be discussed in more detail below, the City's employees observed drums in the basement storage area on multiple occasions over seventeen years. Despite these observations, and despite clear legal obligations that required periodic inspection and maintenance of the premises, no City official investigated the contents of the drums, arranged for their removal, or alerted health and safety personnel to their presence across the full span of the City's occupancy. In this matter, the City's occupancy of 2400 Canal Street spanned seventeen years, nearly six times the interval the Francisco court deemed sufficient. If three years of exclusive possession broke the causal chain in Francisco, no principled basis exists for concluding that seventeen years does not.

Independent of Pan-American's garde argument, Plaintiffs failed to submit any evidence that Pan-American concealed the drums in the basement. This Court has previously established a clear and consistent rule that a former owner is liable only “if the former owner knew of the defective conditions prior to the transfer of the property and concealed those problems.” Bayer, 2007-0866, p. 4, 995 So.2d at 642 (citation omitted).

The trial record clearly shows no evidence of any concealment by Pan-American as the City's own employees observed the drums. At trial, John Smith (“Mr. Smith”), a City electrician who prepared the building for occupancy, testified that the drums were present in the basement at the beginning of the City's occupancy of 2400 Canal Street in the early 1980s. During Mr. Smith's examination by Plaintiffs’ counsel, the following exchange took place:

Q Okay. Now, did you ever see barrels at 2400 Canal Street?

A Yes.

Q All right. And when did you first see barrels?

A When we come in — come in the — went in the building to do the inspection the very first day. We parked in the rear of the building. We always parked in the rear, never the front, and went in through the back loading dock area and we would — to go into the — another section of the building, you had to go to the right, go through this room, and they had a room with a bunch of barrels in it. And, you know, you could see old barrels looking like — oily looking barrels. And then you go through that door and you go into the front if you wanted to go into the front near where the engine room was. Or in — you know, in the front where the elevators were, the stairways.

․

Q The barrels that you told us about earlier that were to your right as you came in the back door of the building, did — did those barrels ever go away?

A No. They were there from the very beginning. If I remember right, the very first time we went there the barrels were there. And we — you know, they were kind of in bad shape. And so the whole time that the City had the building and we went there to do work, the barrels were still there. They were never — I never — I don't remember seeing any of them move.

Louis Broussard (“Mr. Broussard”), another City electrician, whose April 7, 2024 deposition page designations were admitted into evidence at trial, testified that he noticed the drums in the basement in the mid-1980s. He described the drums as being “in real bad shape” and that the room containing the drums “had a bad odor.” Mr. Broussard testified that he reported the drums to his supervisor. The pertinent portions of Mr. Broussard's deposition testimony are as follows:

Q. Okay. Do you have any memory of when that was, that day when you first went to – [2400 Canal Street]

A. I can't tell you the exact date and time, but it was in ‘80 - about mid- ‘80s, mid-‘80s.

․

Q. Did you-all go all throughout the building [2400 Canal Street]?

A. The whole building.

Q. The whole building. Okay. I think we're particularly interested in the basement. Do you have any particular memory of the basement?

A. Yes.

Q. Okay. What do you remember?

A. It was in bad shape. It stunk. It had a real bad, foul odor, and the paint was just blistering on the walls.

Q. So did you go all throughout the basement?

A. Everywhere there was electrical.

․

Q. Okay. So what else did you-all find in the basement?

A. We found — in some of the rooms we went in we found office equipment that was stored that was kind of rusty on some parts of it. And we went in one room; that's where we saw the barrels. We saw these barrels, and they were in real bad shape. And that room really had a bad odor. And that was one of the rooms that the — excuse me. That was one of the rooms where the electrical was so bad in it that sometime[s] the light worked, sometime[s] it didn't. The outlets, they were really in bad shape. I think there was - John could probably tell you more about it than me.

Q. John Smith?

A. Yeah.

․

Q. All right. I appreciate that. Let me stop you there. Did you observe this room where the barrels were on the first day?

A. No.

Q. Okay. Do you recall when, more or less, you would have first seen the barrels?

A. John told me. John and Don brought me down there. I can remember now. “Man, you saw that room?” “No.” “Come see.” Because I was on another floor, and when I came down, that's when I saw it.

Q. Okay. And so would that have been during that first month that you described when —

A. Lord. It could have been that week, that first, second week we was in there.

Q. Okay. And so then when they brought you down there to show you that room, you told us you saw barrels. Do you recall whether there was anything else in the room?

A. Yeah. I just told you. They had parts from the traffic division for their boots.

Q. Okay.

A. They could have had a desk or two in there.

Q. Okay. And those parts were there—what you recollect is those parts were there the first time you went in that room with the drums?

A. The first time I went in that room.

․

Q. Did you discuss with any of your supervisors the drums?

A. John and I, we spoke about them, me, him, and Don and Frank and the rest of the crew. But what it-I mean, Chief knew it. He saw them too.

Q. Chief.

A. That's Hoodie. We called him “Chief.” He was the chief electrician. That's his nickname. Hoodie is his nickname. We called him “Chief.” His birth name is Merlin Saxe.

Q. Okay. So you think Saxe knew about the drums. He saw them.

A. Yeah.

Q. Did you ever hear him say anything about what those drums were or whether he was going to —

A. No.

Q. — report them?

A. No. He did — I know this: He did report them to the superintendent, because the superintendent was in the building too every day with us.

Q. Okay.

A. He came there every day and worked and did his little thing, walk around and assess what we was doing.

Another City employee, Ivory Robichaux (“Mr. Robichaux”), whose July 27, 2015 deposition page designations were admitted into evidence at trial, testified that when he and his painting crew arrived to 2400 Canal Street in 1982, the basement had a horrible odor, and his supervisor instructed the crew to skip that area of the building. The following excerpts from Mr. Robichaux's deposition are relevant to our review:

Q. Mr. Robichaux, on your affidavit, it indicates in Paragraph 1 that while working as a painter inside the building, you personally observed numerous large barrels appearing to contain chemicals located in the base-ment of the building.

A. Yes

․

Q. How many barrels do you recall seeing?

A. Don't know how many. I can tell you that right now, I don't know how many.

Q. Were the barrels in a room? You called it a storage area.

A. It was a storage area. It was a room.

․

Q. So to see the barrels, if you opened the door to that storage area, you could see the barrels?

A. Yes

․

Q. When you first saw the barrels, did you or anyone that you can recall make any comments or ask any questions about the barrels, the drums?

MR. BUCKLEY:

Object to the form but you can answer.

THE WITNESS:

Yes .

․

Q. Can you tell me what you remember?

A. What I remember was, it was going to be a big job for us, our small crew to move it out of the way and I just looked and said I don't think so.

Q. It would have been a big job for your crew to move the drums?

A. Yes.

Q. They would have had to be moved in order for you to do your painting?

A. In order for us to do the painting, they would have to be moved completely out of the room.

․

Q. At the time you first saw the barrels or the drums, did it appear that any of them were leaking?

A. As I stated before, it looked like some kind of degradation was happening at the opening and at the small opening on the opposite side.

Q. Could you smell anything?

A. A little.

Q. What did it smell like, can you describe it?

A. It was a horrible burning smell. In fact, it would make your sinuses burn.

․

Q. Did your crew move the barrels?

A. No.

Q. Were the barrels moved?

A. No.

Q. Did you do any painting in the storage area?

A. No.

․

So your crew just skipped that area?

MR. BUCKLEY:

Objection as to form.

THE WITNESS:

Yes.

BY MR. FOSTER:

Q. At the direction of Mr. Melancone?

A. Yes.

Q. Do you know if anyone ever went back and did any painting in that storage area?

A. Not in the storage area, no.

The testimony of Messrs. Smith, Broussard, and Robichaux clearly reflects that the drums were not concealed. To the contrary, City employees had observed them as early as the 1980s, and the drums remained plainly visible and were accompanied by a strong odor. Trial evidence further established that some of the drums bore the label “Deox.” United States Environmental Services (“USES”), the entity contacted by the New Orleans Fire Department to respond to the chemical leak at 2400 Canal Street on December 9, 1999, photographed the drums removed from the premises. Chad Kalland (“Mr. Kalland”), who was employed by USES at the time of the incident and supervised the cleanup operations at that location, testified at trial regarding the labels appearing on the drums. The pertinent portions of that testimony are as follows:

Q Okay. Do you recall seeing any specific labels on the containers at all?

A The labels — some of the drums did have labels or stamped paint — you know, paint stenciling.

Q But you don't recall the names, or you do recall the names?

A Through the testimony I remember seeing the Deox that we saw.

Moreover, any contention that the drums were concealed is refuted by the trial evidence, which demonstrates that, to the extent the drums were obscured at all, such obstruction resulted from the City's own storage of parking meters and other items in the basement storage room. Mr. Kalland provided the following testimony:

Q Okay. On arriving at the scene, what did you observe?

A When we went in the building, there was a little office building and then the room that — the room of concern was to the right. We went in there. If I remember, the three drums were visible close to the door, and then just a pile of old parking meters, really, beyond that.

Q Okay. And as y'all entered the room, did you discover that behind the parking meters and other things there were additional barrels?

A We had to — the first thing we did is we secured the three drums, placed them in — and then we had to remove all the — all the debris, which took a while. Once we got all the debris — in the process of pulling all the debris out, parking meters and pallets and other stuff that was stacked in there, we found the other drums.

Q Okay. And when you talk about removing the parking meters, pallets, and other stuff — junk —

A Right.

Q — how much — what was the volume of that?

A We pulled several roll-off boxes. So a roll-off box is basically an open-top construction container; right? So we pulled several boxes full of material out.

Q Okay. When you're describing a roll-off box, those are like the dumpster-type boxes you see on construction sites?

A Correct.

Q All right. And if I told you that your report indicated there were five of those ultimately loaded by U.S. Environmental, would that sound right?

A That's sounds right.

Q And when you were able to remove that, did you find additional drums over and above the three that were initially reported?

A We did.

․

Q All right. When you unveiled the other drums behind the clutter, how many drums were there?

A Yeah, after —

Q And you can refer to the report if you like.

A Yeah, after reading the report, it looks like there were 16.

Mr. Kalland's uncontroverted testimony reveals that a majority of the drums that were removed from 2400 Canal Street on December 9, 1999 were hidden by the City's debris, parking meters, and other items. The substantial volume of debris surrounding the drums strongly suggests that it accumulated over the course of the City's seventeen-year occupancy in an area regularly accessed by City personnel. A routine inspection of the building, the inspection La. R.S. 23:13 independently required, would have disclosed the drums and their need for investigation. The argument that the City could not have reasonably discovered what its own workers observed in a building it exclusively possessed and was legally obligated to maintain, is implausible. Any concealment theory promulgated by Plaintiffs is not persuasive.

After careful review of the entire record and the specific facts of this case, we find the trial court erred in denying Pan-American's motion for summary judgment because there is no genuine issue of material fact and Pan-American is entitled to judgment as a matter of law. Pan-American's garde over 2400 Canal Street and any materials within it terminated in August 1982 when it sold the building to NID. After that date, Pan-American had no access to the building, no authority over its contents, and no practical capacity to take remedial action with respect to the drums. This is not a case involving a lapse of one day, one week, one month, one year, or even ten years between the transfer of the property and the alleged injury; rather, more than seventeen years elapsed between Pan-American's sale of 2400 Canal Street and the December 1999 incident. During that period, the City exclusively occupied the building, its employees observed the drums, and its legal obligations required discovery and remediation of hazardous conditions within the workplace. These circumstances broke any causal chain between Pan-American's pre-1982 conduct and Plaintiffs’ 1999 injuries. Moreover, despite Plaintiffs’ contention of concealment, the record establishes that the drums were not concealed; City employees observed them from the beginning of the City's occupancy of 2400 Canal Street, and at least some of the barrels were labeled as to their contents. Accordingly, Plaintiffs failed to establish custody or garde, concealment, or legal causation sufficient to impose liability on Pan-American, and this assignment of error has merit.

For the sake of completeness, we address the remaining assignments of error.

Assignment of Error Number Two: The trial court clearly erred in finding that Pan-American left the chemical barrels.

Next, as its second assignment of error, Pan-American maintains the trial court clearly erred in finding that Pan-American left the chemical barrels in 2400 Canal Street. “A trial court's factual determinations made after a bench trial are reviewed with the manifest error/clearly wrong standard of review.” Adams, 2025-0444, p. 4, ––– So.3d at *2 (citations omitted). “This standard ‘precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.’ ” Id.

In particular, Pan-American claims the trial court clearly and manifestly erred in finding that it left industrial chemical barrels in the building for three reasons: (1) witnesses who worked throughout the building during Pan-American's ownership all testified they never saw such barrels; (2) Pan-American's insurance operations did not use such chemicals; and (3) the City's own chief engineer admitted the City regularly purchased and used the same chemicals found in the barrels. Before exploring these reasons, however, we must first address Pan-American's alleged judicial confession that it owned the barrels found in the basement of 2400 Canal Street on December 9, 1999.⁹

On April 16, 2024, Pan-American filed a motion in limine seeking to preclude Plaintiffs from presenting legal argument as evidence, in response to Plaintiffs’ attempt to rely on testimony from a prior hearing to establish a material disputed fact at trial. Plaintiffs allege that during Pan-American's motion for summary judgment hearing on November 7, 2014, Pan-American's counsel at the time directly confessed on the record that it owned the barrels that were involved in the December 9, 1999 incident. On April 29, 2024, the trial court issued a signed judgment granting Pan-American's motion in limine, after which Plaintiffs proffered the transcript of the November 7, 2014 hearing.

According to La. C.C. art. 1853, “[a] judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.” “This admission ‘has the effect of waiving evidence as to the subject of the admission-of withdrawing the subject matter of the confession from issue.’ ” Harris v. Boh Bros. Constr. Co., LLC, 2024-0800, pp. 3-4 (La. App. 4 Cir. 9/16/25), 431 So.3d 118, 125 (citations omitted). “To have that effect, the statement must be an express, unequivocal admission of an adverse fact, made with intent to bind the party as to the subject of the admission.” Gignilliat v. American Econ. Ins. Co., 2025-0593, pp. 8-9 (La. App. 4 Cir. 3/20/26), ––– So.3d ––––, 2026 WL 787613 at *4 (citations omitted).

During the November 7, 2014 hearing, the following dialogue occurred between the trial court and Pan-American's counsel:

THE COURT: So when Pan American sold the building, they left it [the barrels] there?

MR. FOSTER: That's the allegation. When Pan American sold the building to Poydras Square Associates, now NID, the allegation was that the barrels were left in the place.

THE COURT: So it was Pan American's barrels?

MR. FOSTER: At the time – before the building was sold, yes.

․

THE COURT: The barrels were owned – Pan American was using this for, I guess it was chemicals for the printing press, correct?

MR. FOSTER: That is correct.

THE COURT: So they purchased them, and they belonged to Pan American correct?

MR. FOSTER: As did everything else in the building.

THE COURT: Okay. And then, when you sold the building, you left them there, hazardous materials?

MR. FOSTER: Well, that's the allegation.

THE COURT: But you left them there?

MR. FOSTER: Yes.

THE COURT: Okay. And you are saying that, because you sold it kind of as-is, with everything in there –

MR. FOSTER: Correct.

THE COURT: With the – I guess I am going back to the days of property in law school, but with everything in it, with the fixtures and everything, and you are saying, when we sold it, they knew that we sold it to them like this, and so we should have no liability?

MR. FOSTER: Correct. Because A, we sold the entire building and everything in it to Poydras Square, which, in turn, sold the entire building, I like say lock, stock, and barrel, to the City –

THE COURT: Literally.

MR. FOSTER: Literally.

THE COURT: Barrels.

MR. FOSTER: To the City of New Orleans. It's clear that, once we sold the building to Poydras Square, Pan American no longer had any care, custody or control of the building or anything that may have been left in the building. No one ever called upon Pan American, neither Poydras Square Associates or the City, in the 17 years between 1982 and 1999, to come remove the barrels or anything else that may have been left in the building.

․

An examination of the statement at issue reflects that counsel acknowledged Pan-American left barrels at 2400 Canal Street when it sold the building. Counsel's admission was clear, deliberate, and unequivocal: Pan-American sold 2400 Canal Street, along with all of its contents, including the barrels, and thus necessarily represented that it owned those barrels. Under these circumstances, we treat counsel's oral statement as a judicial confession and find that the trial court erred in granting Pan-American's motion in limine.

Nevertheless, the evidence adduced at trial independently supports the trial court's finding that Pan-American left the barrels at 2400 Canal Street. Pan-American introduced substantial testimonial and documentary evidence in support of its position that it did not leave industrial chemical barrels at 2400 Canal Street upon vacating the premises. Multiple former Pan-American employees who worked in the building during Pan-American's occupancy testified from personal knowledge that they did not observe such barrels in the building. Mr. Weber, who had unrestricted access to the basement, testified that he never observed barrels like those later discovered in 1999. He further testified that he supervised Pan-American's move-out, oversaw the sale of furniture and equipment, and personally inspected the building after it had been cleaned for prospective purchasers, at which time he observed no barrels.

Other former Pan-American employees offered similar testimony. Michael Chatellier, who worked as a watch engineer in the engine room from 1975 to 1980, testified that Pan-American never stored acid barrels in the engine room and that he never saw barrels like those later found in 1999. Rydell Dixon, who worked in the print shop, further testified that Pan-American did not use acid in its printing operations because acid would damage the rubber cylinders in its offset presses.

In addition to the testimonies of former Pan-American employees, the August 20, 2025 deposition designations of John DeMajo (“Mr. DeMajo”), the City's chief engineer when the City first took possession of 2400 Canal Street, were admitted into evidence at trial. Mr. DeMajo testified that he first inspected 2400 Canal Street either shortly before or at the time the City purchased the building, and that “the basic condition of the building was beautiful.” When asked whether he observed any 35 or 55-gallon barrels present on the ground floor or elsewhere in the building, Mr. DeMajo responded in the negative. He explained that that the City ordered chemicals that were stored in large barrels. In reviewing photographs of the barrels removed from 2400 Canal Street in December 1999, Mr. DeMajo identified the pictured barrels as the type used to store acid for cleaning chillers and recognized the “Deox” label as identifying a chemical the City used at 2400 Canal Street to clean evaporator and condenser coils in the HVAC system. He also confirmed that the City used hydrochloric acid to clean metal parts, tubes, and chillers.

Pan-American also presented corroborating evidence through Albert Pappalardo, an independent appraiser, who testified that before the 1982 sale, he and retained professionals inspected the building and observed no barrels, rust, corrosion, or acid fumes, and whose engineer's report likewise made no reference to any barrels. This evidence provided substantial support for Pan-American's position, although Plaintiffs presented contrary evidence in support of their contention that Pan-American left the barrels in the building.

Conversely, the record also contains testimony placing drums at 2400 Canal Street during and immediately after Pan-American's occupancy. Fred Bolds (“Mr. Bolds”), whose deposition was introduced at trial, testified that while employed by Pan-American in the basement kitchen adjacent to the printing department, he regularly observed drums on the loading dock and in or near a room of the printing department, and that those drums had been there for as long as he could remember. Although Mr. Bolds could not identify the barrels depicted in a 1999 photograph as the same drums he had seen during his employment, his testimony nevertheless established the presence of drums on the premises during Pan-American's occupancy. Antoinette Desdunes, who also worked for Pan-American in the basement area, likewise testified that she observed barrels in the building during her employment and saw workers rolling them into the building and placing them in a closet and copy room.

In addition, Mr. Smith testified that he inspected 2400 Canal Street shortly after the City began leasing the property and observed drums on his first visit, before City employees had moved into the building. According to Mr. Smith, he encountered a room containing numerous old, oily-looking barrels when entering through the rear loading dock during that initial inspection. Taken together, this testimony provided evidence that drums were present at 2400 Canal Street during Pan-American's occupancy and remained there at the outset of the City's tenancy.

Applying the manifest error standard of review, we cannot say the trial court clearly erred in finding that Pan-American left the barrels at 2400 Canal Street. Although Pan-American presented substantial evidence to the contrary, the record also contains competent testimony placing drums in the building during Pan-American's occupancy and at the very outset of the City's tenancy, before City employees moved into the premises. Where, as here, the trial court was presented with two permissible views of the evidence, its choice between them cannot be disturbed on appeal absent manifest error. Accordingly, this assignment of error lacks merit.

Assignment of Error Number Three: The trial court manifestly erred in finding that Plaintiffs proved causation.

As its third assignment of error, Pan-American asserts the trial court manifestly erred in finding that Plaintiffs proved causation. In particular, Pan-American maintains that this Court's decision in Anderson II required Plaintiffs to prove both (1) that chemical fumes actually reached workspaces beyond the basement, and (2) individualized evaluations establishing each Plaintiff's exposure level caused their specific conditions. It is Pan-American's position that Plaintiffs failed on both requirements, and the trial court's causation finding lacks any evidentiary foundation.

“Causation is a question of fact and therefore subject to review under the manifest error standard.” Paratore v. Stanich, 2020-0420, p. 2 (La. App. 4 Cir. 1/13/21), 312 So.3d 1118, 1120 (citation omitted). However, manifest error review is not a rubber stamp. A factual finding may not stand unless the record furnishes a reasonable factual basis for it. Stobart v. State through Dep't of Transp. & Dev., 617 So.2d 880, 882 (La. 1993). Moreover, where objective evidence so contradicts a witness's account, or the testimony is internally inconsistent or scientifically unsupported, a reviewing court may find manifest error. Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989).

Recently, this Court examined causation in a toxic tort context and instructed the following:

“In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury.” Maranto v. Goodyear Tire & Rubber Co., 1994-2603, p. 3 (La. 2/20/95), 650 So. 2d 757, 759 (citation omitted). “In toxic tort cases, proof of causation has two components: general and specific.” Lataxes v. Louisiana Home Specialists, LLC, 2024-129, p. 10 (La. App. 5 Cir. 12/30/24), 409 So. 3d 1010, 1017 (citation omitted). “ ‘General causation’ refers to whether a substance is capable of causing a particular injury or condition in the general population, while ‘specific causation’ refers to whether a substance caused a particular individual's injury.” Id. (citation omitted). “A plaintiff cannot sustain his or his burden of proof with general causation proof alone; the plaintiff must also establish specific causation.” Id. (citation omitted).

As it relates to expert testimony, “[w]hen a conclusion regarding medical causation is not one within common knowledge, expert medical testimony is required in a tort action.” Johnson v. E.I. DuPont deNemours & Co., 2008-628 (La. App. 5 Cir. 1/13/09), 7 So. 3d 734, 740 (citation omitted). Significantly, “[s]cientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs’ burden in a toxic tort case.” Allen v. Penn. Eng'g Corp., 102 F.3d 194, 199 (5th Cir. 1996) (citation omitted); see also Smith v. BP Expl. & Prod., Inc., No. 2023-30619, 2024 WL 3842571, at *2 (5th Cir. Aug. 16, 2024) (unpublished) (citation omitted) (“In toxic tort cases, expert evidence on ‘knowledge of the harmful level of exposure to a chemical,’ or general causation, is a ‘minimal fact necessary to sustain the plaintiffs’ burden’ ”).

Adams, 2025-0444, p. 4, ––– So.3d at ––––, 2026 WL 672882, at *8-9.

In the matter herein, this burden matters because Anderson II already identified the evidentiary deficiencies Plaintiffs were required to cure. This Court observed that Plaintiffs needed to produce evidence “to suggest when the leaking may have begun (if before December 9, 1999), which barrels of toxic chemicals may have been leaking, or how much product may have leaked.” Anderson II, 2017-0999, p. 22, 248 So.3d at 444. These were not collateral details. Rather, they were the predicate facts necessary to determine exposure, dose, and causation. At trial, Plaintiffs failed to prove them.

General causation requires proof that the chemicals at issue are capable of causing the claimed injuries at the levels allegedly present in the building. The question is not whether concentrated acid can injure humans; the question is whether the alleged concentrations at 2400 Canal Street were sufficient to cause the symptoms and conditions Plaintiffs claimed. Pan-American's expert witness, Dr. Nicolas Cunningham (“Dr. Cunningham”), a chemical engineer specializing in acid manufacturing processes, opined that Plaintiffs’ assertion that the chemical-filled drums had been leaking for seventeen years was chemically impossible. Dr. Cunningham calculated the maximum duration during which each chemical could emit fumes before complete evaporation. Specifically, he opined that hydrochloric acid contained in the Deox drums could emit fumes for approximately 5.5 days under normal building ventilation conditions, up to 33 days assuming air exchange, and as long as 138 days assuming operation only during office hours. He further opined that the hydrofluoric acid contained in the Aluma Brite drum could emit fumes for a maximum duration of 195 days. With respect to the mineral acid drums, Dr. Cunningham concluded that the vapor pressure was insufficient under the building conditions to generate airborne fumes.

Based upon these calculations, Dr. Cunningham testified that it would have been scientifically impossible for the drums to have leaked continuously since 1982 and still contain acid when they were observed in December 1999, approximately seventeen years later. Specifically, he opined that hydrochloric acid, hydrofluoric acid, and mineral acids could not have remained in the drums for that duration under the conditions alleged. Plaintiffs presented no expert testimony to rebut or contradict these calculations, and they did not establish when leaking began, which drums leaked, how much leaked, or what airborne concentrations resulted. These omissions are dispositive because they leave Plaintiffs without the “minimal facts” necessary to prove toxic-tort causation. See Allen, 102 F.3d at 199.

Dr. Maier, whose toxicology and industrial hygiene expertise was stipulated by Plaintiffs, performed Environmental Protection Agency (“EPA”) Building Assessment Survey and Evaluation Study (“BASE”) modeling using worst-case assumptions – a single leaking barrel releasing its entire contents into the building – and estimated airborne hydrochloric acid concentrations of approximately 17 parts per billion (ppb). His conclusions were unequivocal: estimated hydrochloric acid concentrations were six-fold below established health-based limits, and estimated hydrofluoric acid concentrations were twenty-fold below health-based limits. Dr. Maier's conclusion left no room for ambiguity: there is no scientific basis to indicate that the potential release of hydrochloric, hydrofluoric, or sodium MBT was a cause of Plaintiffs’ symptoms.

Although they attacked his methodology, Plaintiffs offered no competent quantitative evidence to rebut Dr. Maier's modeling. Instead, they relied heavily on pH wipe testing and visual corrosion. However, pH wipe testing measured surface residue at a single point in time; it did not measure airborne concentration, inhalation dose, frequency, duration, or exposure level at any plaintiff's workstation. Dr. Maier explained that pH readings are substantially affected by humidity, temperature, and the amount of time elapsed since the alleged chemical release. Surface contamination is not inhalation dose. Moreover, corrosion, while potentially evidence that an environmental condition existed somewhere in the building, does not establish that any plaintiff inhaled a harmful concentration of any identified chemical.

A showing that high concentrations of hydrochloric acid or hydrofluoric acid can cause injury does not establish that trace-level or diluted concentrations allegedly present at 2400 Canal Street were sufficient to cause headache, rhinitis, dry eyes, coughing, nosebleeds, cataracts, glaucoma, respiratory complaints, or any other claimed condition. Dr. Thomas Falterman, Plaintiffs’ medical-causation expert, illustrates the gap rather than fills it. He relied on medical records and general literature concerning hydrochloric and hydrofluoric acid exposure, then offered patient-specific opinions tying Plaintiffs’ symptoms to their workplace. Yet, he never identified the exposure threshold, dose, concentration, or duration necessary to make the alleged acid vapors capable of producing the injuries claimed here. By contrast, Dr. Maier's testimony supplied the very dose analysis Plaintiffs lacked, addressing airborne concentrations, exposure limits, and the distinction between high-concentration industrial exposure and the low-level conditions alleged at 2400 Canal Street. General causation requires a reliable bridge between the chemical, the exposure level, and the dose capable of producing the injury. Plaintiffs supplied no bridge. Without proof of general causation, specific-causation evidence cannot carry Plaintiffs’ burden because it assumes, rather than proves, that the alleged exposure was capable of producing the claimed injuries.

Even assuming that Plaintiffs established general causation, their causation case fails at the specific causation step for each plaintiff. Plaintiffs failed to establish an exposure pathway from the basement to upper floors. The 55-gallon drums of hydrochloric acid, hydrofluoric acid, and mineral acids were located in the basement. Plaintiffs worked on different floors of 2400 Canal Street at various times between 1982-1999: Mr. Anderson, Ms. Binder, Ms. Hankton, Mr. McDermott, and Ms. Nettles worked in the basement; Ms. Davis worked on the first floor; Mr. Scales, Mr. Stevens, and Mr. L. Williams worked on the second floor; Mr. Severin, Ms. Williams, and Mr. M. Williams worked on the third floor; Mr. L. Williams and Mr. M. Williams worked on the fourth floor; and Mr. L. Williams worked on the fifth floor. Plaintiffs bore the burden of establishing that acid fumes from those drums actually reached each plaintiff's work location in sufficient concentrations to cause injury. They failed to meet their burden.

Plaintiffs’ environmental expert, Dr. Paul Templet, testified it is probable that acid gases would be pulled into the HVAC system and go to areas in the building affected by the ventilation system, and that visible corrosion on all floors in the 2002 inspection would indicate that acid gas was probably reaching those floors. However, this testimony does not establish actual concentrations at any plaintiff's workstation. Corrosion photographs demonstrate the building had an environmental problem; they do not supply the quantitative dose evidence necessary to connect each plaintiff's specific location and work schedule to a harmful exposure level. Plaintiffs failed to identify what chemical reached which floor, in what concentration, during what time period, for how long, or how often. Additionally, they fail to connect any individual plaintiff's work schedule to a harmful dose. At most, Plaintiffs’ evidence suggests a possible pathway for some migration of acidic material. Possibility is not proof of toxic-tort causation.

The HVAC evidence does not cure Plaintiffs’ evidentiary defect. USES personnel found that air-duct samples returned low pH readings, suggesting that acidic material had entered portions of the HVAC system. Nevertheless, this evidence says nothing about the concentration of fumes that emerged from vents on upper floors after dilution, air exchange, and dispersion. Further, it fails to establish that any particular plaintiff inhaled a harmful concentration. The “stale odor” and “Monday morning worse than Friday” testimony likewise does not establish dose. Odor detection is not injury causation. Dr. Maier's modeling placed building concentrations far below any relevant health-based thresholds.

In Anderson II, this Court did not ask Plaintiffs merely to prove that drums existed, that some leaked, or that the building showed signs of corrosion. We required proof of what leaked, how much leaked, when it leaked, and how exposure could be connected to the individuals asserting injury. Plaintiffs’ pathway evidence remained generalized and did not satisfy Anderson II.

Specific causation required Plaintiffs to prove that the alleged exposure caused each plaintiff's specific medical condition. What Plaintiffs delivered was collective symptom cataloging. The individual plaintiff narratives – Mr. Scales’ nasal problems and coughing over eight years; Ms. Nettles’ burning eyes, nosebleeds and respiratory complaints; and similar accounts from other plaintiffs – document symptoms. They do not document causation. The symptoms alleged (headache, rhinitis, dry eyes, coughing) are common conditions with numerous non-chemical causes.

The Court finds that Plaintiffs’ reported symptoms are not, by themselves, reliable markers of chemical exposure. Headache, nasal or rhinitis-type irritation, and dry-eye complaints are nonspecific symptoms that may occur for reasons unrelated to chemical exposure. The ophthalmology testimony confirms that dry eye, in particular, is common in the general population and may be caused by ordinary non-chemical factors, including diabetes, vitamin A deficiency, dust, wind, hot conditions, and dry conditions. Accordingly, without reliable evidence tying these symptoms to the alleged exposure and excluding common alternative explanations, the symptom complaints do not establish causation.

None of Plaintiffs’ experts performed a differential diagnosis that ruled out these alternative causes in a scientifically reliable fashion. None of Plaintiffs’ experts correlated each individual plaintiff's specific work location, duration, and schedule to a quantified dose sufficient to cause the specific injury that plaintiff claimed. For example, Dr. Kathleen Willis, Plaintiffs’ internal medicine expert, admitted she never investigated Mr. Scales’ potential asbestos exposure as a pipefitter or Agent Orange exposure during his Vietnam military service. Similarly, she failed to investigate Mr. McDermott's military exposures. A causation opinion that ignores well-documented alternative exposure histories is not reliable differential diagnosis.

The problem is not merely that Pan-American's experts disagreed with Plaintiffs’ experts. The problem is that Plaintiffs’ experts lacked the foundational facts necessary to render a reliable causation opinion. They did not know the dose, concentration, frequency, or duration of exposure, deficiencies this Court previously identified in Anderson II. They did not know what concentration reached any plaintiff's workspace. They did not know whether the modeled exposures exceeded any health-based threshold. And, they did not reliably rule out other likely causes of the very symptoms they attributed to acid exposure. This lack of foundational facts caused Plaintiffs’ expert opinions to be insufficient as a matter of Louisiana toxic-tort causation law.

Plaintiffs attempt to invoke the Housley presumption in order to circumvent the absence of dose evidence. “A plaintiff may be assisted in meeting his burden of proof that an injury is causally related to an accident by a legal presumption that was articulated by the Louisiana Supreme Court in Housley v. Cerise, 579 So.2d 973 (La. 1991).” Adams, 2025-0444, p. 9, ––– So.3d at ––––, 2026 WL 672882, at *5 (citation omitted). Citing to Housely, this Court explained:

A claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Id. at pp. 9-10, ––– So.3d at ––––, 2026 WL 672882, at *5 (citation omitted). A plaintiff must establish the following three elements by a preponderance of the evidence in order to benefit from the Housley presumption:

First, the plaintiff must prove that he was in good health prior to the accident allegedly causing the plaintiff's injury. Second, the plaintiff must show that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves after the accident. Third, the plaintiff must demonstrate through medical evidence, circumstantial evidence, or common knowledge that there was a reasonable possibility of causation between the accident and the alleged injury.

Id. at p. 10, ––– So.3d at ––––, 2026 WL 672882, at *5 (citation omitted). “Louisiana jurisprudence recognizes that common knowledge is inapplicable in the toxic tort context.” Id. at p. 11, ––– So.3d at ––––, 2026 WL 672882, at *5 (citation omitted).

All three prongs are unavailable to Plaintiffs here. First, the temporal connection Plaintiffs relied upon – symptoms arising “during employment” at 2400 Canal Street – spans years, not days. This Court has refused to apply the Housley presumption where the onset of symptoms is too remote from a discrete event. See Whitman v. Worley, 1996-0305, pp.8-9 (La. App. 4 Cir. 02/19/97), 688 So.2d 207, 211 (ten-day gap between accident and symptoms was too long for presumption). In this case, there is no single discrete exposure event – only the alleged ambient conditions of a building over many years. Second, the third prong requires medical evidence of a “reasonable possibility” of causal connection, which is impossible when Plaintiffs’ own expert admitted having no information regarding the dose, concentration, frequency, or duration of exposure. Third, even if the presumption were triggered, it is defeated by a showing that “some other particular incident could have caused the injury in question.” Maranto, 1994-2603, p. 6, 650 So.2d at 761 (citation omitted). Pan-American presented compelling unrebutted evidence of exactly such alternative causes – prior military exposures, pre-existing conditions, and the documented high background prevalence of all symptoms at issue.

The trial court's causation finding rests on expert testimony that lacked any dose-response foundation, a Housley presumption that is factually inapplicable and legally rebutted, and generic group-level symptom evidence that Anderson II specifically prohibited. The uncontradicted defense evidence established that estimated acid concentrations were six to twenty times below health-based limits and that the reported symptoms have high background prevalence with multiple alternative causes. No reasonable factual basis existed for the trial court's finding that any plaintiff proved, to a preponderance of the evidence, that chemicals from the drums at 2400 Canal Street caused their individual injuries. The causation finding is reversed and judgment rendered in Pan-American's favor.

Given our above-referenced analysis regarding Pan-American's assignments of error one and three and finding that Pan-American is not liable to Plaintiffs for their alleged injuries, we pretermit our discussion of the remaining assignments of error as these issues are moot.

ANSWER TO APPEAL/CROSS-APPEAL

In their answer/cross-appeal, Plaintiffs request that this Court modify the trial court's June 20, 2025 judgment to recognize the following:

• Ms. Williams is entitled to more than the $15,000.00 awarded by the trial court for her injuries proven at trial;

• Ms. Nettles is entitled to more than the $4,000.00 awarded by the trial court for her injuries proven at trial;

• Mr. M. Williams is entitled to more than the $44,000.00 awarded by the trial court for his injuries proven at trial;

• Ms. Davis is entitled to more than the $21,000.00 awarded by the trial court for her injuries proven at trial;

• Ms. Binder is entitled to more than the $20,000.00 awarded by the trial court for her injuries proven at trial;

• Mr. L. Williams is entitled to more than the $28,000.00 awarded by the trial court for his injuries proven at trial;

• Mr. McDermott is entitled to more than the $42,000.00 awarded by the trial court for his injuries proven at trial; and

• Mr. Scales is entitled to more than the $32,000.00 awarded by the trial court for his injuries proven at trial.

Additionally, Plaintiffs request appellate review of this Court's determination in Anderson III. Considering our determination that the trial court erred in denying Pan-American's 2014 motion for summary judgment on prior owner liability and erred in its causation finding, the answer to the appeal is denied.

DECREE

For the foregoing reasons, we reverse the trial court's June 20, 2025 judgment; render judgment in favor of Pan-American dismissing all claims against it with prejudice; and deny the answer to appeal.

REVERSED AND RENDERED

I agree with and adopt the dissent and reasons written by Judge Atkins. I write separately to address the issue of timeliness. The majority addresses the great amount of time that passed after the City of New Orleans (the “ City”) acquired ownership of the building containing barrels of toxic substances.

I agree with the majority that the City should bear significant liability for its failure to remedy the danger to its employees and others (“Appellees”) who entered the building at 2400 Canal Street in New Orleans (the “Building”). However, I disagree with the majority's view that the passage of time should relieve Pan-American Life Insurance Company (“PanAm”) of all responsibility for whatever damage befell the plaintiffs. The question presented to this court is whether the trial court's finding of fault attributable to PanAm is manifestly erroneous.

Under current Louisiana law, hydrofluoric acid, hydrochloric acid, and mineral acids are regulated as hazardous wastes, and their disposal is governed by a comprehensive framework of federal and state environmental statutes and administrative regulations. Hydrofluoric acid and hydrochloric acid are both listed as a toxins under Louisiana's hazardous waste regulations. They were designated as such by federal and state regulations that became effective in August 1979 (federal) and January 1, 1980 (state).¹ Louisiana law imposes significant restrictions on the disposal of hazardous wastes.²

Disposal of hazardous acids must occur at a facility holding a valid Louisiana Department of Environmental Quality permit to treat, store, and/or dispose of hazardous waste. This process is widely known to be expensive and inconvenient. In its statement of purpose and intent, the legislature spoke directly to the issue of financial responsibility for hazardous waste. In La. R. S. 30:2271(3) and (4), the legislature wrote:

Those persons generating these substances knew or were in a position to know of the hazardous and dangerous nature of the substances which they were producing and knew or should have known that improper disposal could have long-term health risks and could cause irreversible environmental damage․ The state cannot and should not bear the costs associated with a private profit making venture.

While this statute does not provide a private right of action by these plaintiffs, the legislature has made clear the proposition that those who profit by the use of harmful chemicals must bear the cost of their accompanying hazards. From the evidence adduced at trial, a logical inference may be drawn that PanAm purposely left the offending barrels at the Building as an illegal and cheap disposal method. PanAm did so without taking precautions and without warning the new owner.³ In effect, PanAm camouflaged its toxic dump in plain sight, leaving the consequences to be borne by the public. Prevention of this burden-shifting is precisely the objective of the legislative scheme regarding toxic waste.

The trial court found that Appellees had sufficiently proven causation and damages and fully met their burdens of proof. The majority rejects these factual findings and substitutes its own version of facts for those found by the trial court. In this case, as in all others, findings of fact by the trial court are reviewed under the manifest error or the clearly wrong standard. Stobart v. State through Department of Transportation and Development, 617 So. 2d 880, 882 (La. 1993). The manifest error rule, as described in Stobart, requires that in order to reverse a factual finding of a trial court, “1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).” Id. Here, there is ample evidence to support the trial judge's opinion.

This court should not substitute its factual interpretation for that of the fact finder. The vast discretion to determine weight and credibility of the evidence is the province of the trial court. Only in limited circumstances may the trial court's finding of fact be upended on appellate review. We cannot know, from the record before us, what testimony and documentary evidence persuaded or influenced the trial judge. Without singling a witness out as a liar, a trial court, as factfinder, has the discretion to reject or discount testimony. This court's duty is solely to determine if there is evidence in the record that supports the actions of the trial judge. Our court must be governed by the rule that “The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently.” Detraz v. Lee, 2005-1263, p. 8 (La. 1/17/07), 950 So. 2d 557, 561.

I believe that the majority misapplies the dictates of La. C. C. art. 2317 and 2317.1 in this case. Both of these articles address special cases of tort liability for defective or dangerous “things” in the custody of the person responsible for harm. The general rule of La. C. C. art. 2315 imposes liability for actions: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” In this case, the “act” that is the subject of the lawsuit is the storage or disposal of a hazardous material in an improper place. As a matter of law (as shown above), the owner of the toxic chemicals had a duty to remove them from the Building once their usefulness ended. The failure to perform that duty is the basis for Appellee's claims. The notion that proof of concealment is a necessary element of proof is a jurisprudential gloss on articles 2317 and 2317.1. That rule does not apply to the actions that form the basis of Appellee's complaint in this case.

PanAm's failure to take even the most minimal step to protect others is a continuing tort whose prescription does not begin to run until the defective condition is cured.⁴ The condition was not cured until December 1999 when emergency crews removed the barrels from the Building. This suit was filed on May 12, 2000, less than one year after the toxins were removed. Therefore, the action brought by these plaintiffs is not prescribed.

For these reasons, I would hold that the trial court was not manifestly erroneous in finding that PanAm is liable to plaintiffs for the damages proven at trial. I would hold further that the expert testimony at trial showed an adequate link between Appellee's symptoms and the hazardous chemicals that PanAm discarded in the Building. Consequently, I join in Judge Atkins’ dissent and add these reasons in support of it.

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.   Throughout this opinion, the terms “barrels” and “drums” are used interchangeably, and any reference to one should be understood to include the other.

2.   Louisiana Civil Code Article 2315.3 states, “In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton and reckless disregard for the rights and safety of the person through an act of child sexual abuse materials, as defined by R.S. 14:81.1, regardless of whether the defendant was prosecuted for his acts.”

3.   By orders dated September 12, 2025, and November 18, 2025, this Court granted Pan-American leave to use the appellate records from Case Nos. 2025-CA-0179 and 2016-CA-1013 in connection with the present appeal. Accordingly, those records are properly before this Court and have been considered as part of our review of this matter.

4.   Louisiana Civil Code Article 2317 provides, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

5.   Louisiana Civil Code Article 2317.1 provides, “The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

6.   According to La. C.C. art. 508, “an accessory is a corporeal movable that serves the use, ornament, or complement of the principal thing.”

7.   The presence of hazardous materials may bear on whether a condition is dangerous, but it does not answer the separate question of who had custody or garde of that condition at the time of the alleged injury. In response to the dissent, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., “was designed to allow the government and private individuals or entities to act as quasi-regulators over environmental pollution by allowing them to carry out the cleanup of hazardous waste sites and then recover the expenses of the cleanup from the responsible parties. See 61C Am.Jur.2d Pollution Control § 1270 (1999).” Doerr v. Mobil Oil Corp., 2000-0947, p. 10 (La. 12/19/00), 774 So.2d 119, 126. Thus, two of the main purposes of CERCLA were ‘prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party.’ ” Id. Enacted on December 11, 1980, the original CERCLA defined “release” as, “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons․.” Pub. L. No. 96-510, § 101(22), Stat. 2767, 2772. On October 17, 1986, several provisions of CERCLA were amended, including the term “release.” Specifically, “release” was “amended by inserting after ‘environment’ the following: ‘(including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).’ ” Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, § 101(c), 100 Stat. 1613, 1615. While this federal law concept underscores the seriousness of abandoned hazardous materials, the 1986 amendment adding language regarding “the abandonment or discarding of barrels” post-dated Pan-American's 1982 sale of 2400 Canal Street. Thus, CERCLA provides, at most, a very limited context and does not alter the Louisiana law inquiry before us – custody or garde, causation, and damages.

8.   Louisiana Revised Statutes 23:13 states, “Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.

9.   In their appellee brief, Plaintiffs raise three assignments of error, one of which challenges the trial court's exclusion of an alleged admission by Pan-American that it had placed and/or stored the acid barrels at 2400 Canal Street. Plaintiffs also contend that the trial court should have drawn an adverse presumption from Pan-American's failure to call the declarant as a witness, where the declarant's statement was purportedly based on information received from Pan-American management.

1.   Currently regulated by 33 La. Admin. Code Pt. V, § 4901 and 33 La. Admin. Code Pt III, § 5112respectively.

2.   La. R.S. 30:2193.

3.   See Judge Atkins dissent regarding PanAm's obligation to warn.

4.   Bustamento v. Tucker, 607 So.2d 532, 543 n. 8 (La.1992); South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982).

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.

Judge Nakisha Ervin-Knott

BELSOME, C.J., DISSENTS AND ASSIGNS REASONS ATKINS, J., DISSENTS AND ASSIGNS REASONS