THOMAS v. COMFORT. CTR., 2010-0494 (La.App. 1 Cir. 10/29/10)

med that it was the standard product used by One Hour. He further testified that he returned to plaintiffs' home two days after the cleaning procedure was performed in response to plaintiffs' complaints of "an electrical smell or a burning smell."

After describing his educational and professional qualifications as an expert in the fields of pharmacology and toxicology, Dr. George attested in his affidavit that he had reviewed the deposition testimony of plaintiffs, Mr. Wilson, and Mr. McMillin; the pleadings; and the Material Safety Data Sheets (MSDS) for the three chemical products used by One Hour. Copies of the referenced MSDS were attached to his affidavit. He concluded that the three products were widely used in the HVAC industry and that, to his knowledge, they had never been subject to a product recall or to peer review articles suggesting a link between exposure to them as claimed by plaintiffs and plaintiffs' reported complaints. Finally, he expressed his opinion that health effects claimed by plaintiffs would not have been caused by the claimed exposure to the three chemical products.

The MSDS for Nu-Calgon Evap Pow'r RTU, attached to Dr. George's affidavit, describes the following acute "effects of overexposure" under "health hazard data": "EYES SKIN: May cause irritation. INHALATION: Mists may be slightly irritating to upper respiratory tract. INGESTION: Not expected to be harmful if swallowed." No "chronic" or "subchronic" effects of overexposure were known. Under the section relating to "protection information/control measures," respiratory protection was described as "[n]ot required," and "[g]ood general room ventilation" was recommended.

The MSDS for Pro-Treat 350 described it as a "[w]hite tablet," and indicated under the section for "health hazards" that it is "moderately toxic if ingested" and that "[e]ye contact causes extreme irritation." It also "[m]ay cause skin irritation in sensitive individuals." Although Pro-Treat 350 may cause chemical pneumonitis "[i]f sprayed or misted," it "is not toxic by inhalation." Ingestion of this product "may damage throat and digestive tissue." The MSDS also stated, with regard to "[m]edical [c]onditions [a]ggravated by [e]xposure," that "[c]ontact with skin or eyes, or breathing dust can cause eye[,] skin[,] or tissue damage or affect individuals with respiratory disorders." It was recommended that the product be used "in a well-ventilated area."

The MSDS for BBJ Mold and Mildew Remediation Concentrate listed no known health hazards from inhalation, but stated that the product "[m]ay be fatal by ingestion," was "[i]rritating to eyes," and "[m]ay irritate skin on prolonged contact." No respiratory protection was required, and there were no special requirements for ventilation.

Considering the proof presented by defendants, the primary question to be determined is whether plaintiffs "set forth specific facts showing that there is a genuine issue for trial" on the essential element of medical causation. See La.C.C.P. art. 967(B). In opposition to defendants' motion and supporting proof, plaintiffs filed their own affidavits, excerpts from their depositions, and the affidavits of Eddie Montz, the owner of another air conditioning and heating service business, and Chris White, a consulting professional engineer.

In his deposition, Mr. Thomas expressed his belief, based upon purported conflicting statements of Mr. Wilson and Mr. McMillin, that Mr. McMillin used "the wrong chemical" to clean the evaporator coil. However, he could not identify that chemical, and conceded that he was "not a heating and air expert." He discussed statements supposedly made by an unnamed HVAC technician regarding the necessity of replacing the entire system. Mr. Thomas further testified in his deposition that he had no prior diagnosis or history of any problems, including pulmonary problems, with susceptibility to chemical exposure.

For the most part, plaintiffs' affidavits, dated May 1, 2009, simply reiterate the factual allegations of their petition, with some additional history of their dealings with One Hour after the cleaning procedure and the statements in Mr. Montz's separate affidavit, and therefore add little relevant facts on the issue of causation. In his affidavit, Mr. Thomas recounted the events leading up to and after the cleaning of the HVAC system, as alleged in his petition, including actions undertaken to eliminate carbon monoxide fumes as the source of their symptoms. He also claimed that Mr. McMillin reported feeling "dizzy" and having a "headache" on April 3, 2007, after returning to plaintiffs' home in an effort to address their complaints. According to Mr. Thomas, Mr. McMillin admitted that he actually used Nu-Calgon Evap Pow'r-C to clean the evaporator coil, rather than Evap Pow'r-RTU, and wrote the name of the former product on the back of a business card provided to Mr. Thomas. Mr. Thomas described work performed by Mr. Montz and certain statements made by Mr. Montz to him regarding his findings. Finally, Mr. Thomas's affidavit contains his conclusory statements that One Hour's cleaning of the HVAC system was "negligent" and that he "incurred damages as a result of [its] negligence." Mrs. Thomas's affidavit contains the same or similar information as that of her husband and generally corroborates that information, including One Hour's purported use of Evap Pow'rC and the conclusory statements regarding One Hour's alleged negligence.

Louisiana Code of Civil Procedure article 967(A) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (Emphasis added.) As our review is de novo, we must disregard the hearsay statements attributed to Mr. Montz and the other unidentified HVAC technician in Mr. Thomas's deposition and affidavit as not within Mr. Thomas's personal knowledge. Further, plaintiffs' conclusory statements and opinions on the issue of negligence in their affidavits may not properly be considered for purposes of, summary judgment.

In his affidavit, Mr. Montz testified that he went to plaintiffs' home on April 6, 2007, and that upon entering the home he "noticed a chemical odor and began to feel dizzy, as if he was getting drunk." He stated that because the chemical used by One Hour had dried on the evaporator coil, he had to remove it, rinse it off with water, and clean it with a detergent. Mr. Montz further claimed that he also discovered that One Hour used "industrial strength chlorine tablets, rather than residential strength, in cleaning the unit," and that such was "not the normal procedure." He also claimed that he found 10 to 12 pieces of such tablets that had not dissolved and that One Hour used "an excessive amount of tablets."

While Mr. Montz's affidavit might have raised genuine issue as to the factual issues bearing upon the propriety of One Hour's cleaning procedure and its alleged negligence, it was insufficient in establishing genuine factual issue as to the causal relationship between One Hour's cleaning procedure and plaintiffs' reported symptoms. Specifically, Mr. Montz's affidavit failed to identify or otherwise link the "chemical odor" he experienced with any chemical product used by One Hour or the chlorine tablets he discovered. He did not describe the odor as corresponding to any distinctive odor associated with the coil cleaning chemical, any other chemical, or the "chlorine" (presumably Pro-Treat 350) tablets. As such, his affidavit failed to provide factual support on the issue of causation sufficient to refute the affirmative showing made by defendants and to defeat summary judgment.

Mr. Month's affidavit refers to pieces of the tablets as "not totally dissolved," suggesting that they were placed in water. The excerpts from Mr. Thomas's deposition confirm that the tablets were recovered by Mr. Montz from the drain pan of the HVAC system. If the tablets were immersed in water, they could not produce the "dust" that might "affect individuals with respiratory disorders," as stated in the MSDS for Pro-Treat 350.

In his affidavit, Mr. White, a consulting professional engineer, affirmed that he was retained by plaintiffs to analyze the air and surfaces in their home. He stated that in June 2007 he obtained an air sample and surface wipe samples from plaintiffs' home, and in July 2007 obtained wipe samples from the hotel room in which plaintiffs were then residing. After the samples were analyzed, Mr. White advised plaintiffs to "provide the analytical results to their doctors to determine whether the foreign substances found were the cause of their health problems." Mr. White also stated that he recommended that plaintiffs thoroughly clean their home and its contents, have "soft goods" professionally cleaned, and replace carpet and furniture upholstery. He also recommended that plaintiffs have his engineering group prepare specifications for the performance criteria of the cleaning contractor. Finally, Mr. White stated that he examined the MSDS for the chemical products used by One Hour.

Copies of two letters from Mr. White to Mr. Thomas were attached to his affidavit, together with analytical test reports from another company. The latter documents were not prepared, verified, or explained by Mr. White in his affidavit, so their evidentiary value is suspect. A party may not utilize unsworn and unverified documents as summary judgment evidence. Sanders v. J. Ray McDermott, Inc., 03-0064, p. 6 (La.App. 1st Cir. 11/7/03), 867 So.2d 771, 775. A document which is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether there are remaining genuine issues of material fact. Id.,; ASP Enterprises, Inc. v. Guillory, 08-2235, p. 10 (La.App. 1st Cir. 9/11/09), 22 So.3d 964, 971, writ denied, 09-2464 (La.1/29/10), 25 So.3d 834. But even if the contents of the third-party laboratory analytical reports may properly be considered, they simply do not identify which chemical compounds from the air and wipe samples, if any, derived from the chemicals used by One Hour, or any pertinent information as to their toxicity and levels of exposure. In summary, Mr. White's affidavit and its attached documents do not provide relevant information relating to any alleged harmful properties of the chemicals at issue and fail to support a causal link between One Hour's cleaning procedure and plaintiffs' reported symptoms and related damages.

For example, Mr. White's letter relating to the air sample states that a number of chemical compounds were detected, including ethanol and xylene, but only one, "xylene (para meta)," is actually listed on the laboratory analysis summary as "detected at reported concentration in ppbv and ug/m3." The MSDS for Nu-Calgon Evap Pow'r-RTU lists "# 2-butoxyethanol" and "sodium xylene sulfonate" among its potentially hazardous ingredients, but neither Mr. White's affidavit, the attached letter, nor the laboratory analysis summary identifies any compounds detected with those ingredients.

Plaintiffs further contend that the evidence they presented in opposition to defendants' motion was sufficient to give them the benefit of the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973, 980 (La. 1991). In the context of personal injury actions, the Housley presumption may be summarized as follows. A plaintiff may be aided in meeting his burden of proof that a claimed injury or medical condition is caused by an accident by a presumption that the injury or condition was caused the accident if he establishes three things: (1) he must prove that he was in good health prior to the accident; (2) he must show that after the accident, the symptoms of the claimed injury appeared and continuously manifested themselves; and (3) the medical evidence shows there to be a reasonable possibility of causation between the accident and the claimed injury. See Detraz v. Lee, 05-1263, pp. 4-5 (La.1/17/07), 950 So.2d 557, 560, and Poland v. State Farm Mut. Auto. Ins. Co., 03-1417, pp. 8-9 (La. App. 1st Cir. 6/25/03), 885 So.2d 1144, 1148-49.

The presumption as originally articulated in the Housley opinion was worded in terms of "disability," rather than simply injury, because the presumption developed in workers' compensation cases, and a compensation claimant is only entitled to benefits in the event of disability for work. The presumption was only later extended to delictual actions for personal injury, including non-disabling injury. See Detraz v. Lee, 05-1263, p. 5 n. 2 (La.1/17/07), 950 So.2d 557, 560 n. 2.

Arguably, plaintiffs put forth sufficient evidence to establish prima facie proof of the first two elements of the Housley presumption. However, our de novo review of the record fails to reveal a reasonable possibility of causal connexity between One Hour's use of the chemicals at issue and plaintiffs' symptoms based upon medical or scientific evidence. Although the MSDS documents list some potential health effects that broadly resemble some of plaintiffs' reported symptoms, there was no showing that the factual circumstances of plaintiffs' alleged exposure corresponded to the types or vehicles of exposure mentioned in the MSDS documents. The Housley presumption cannot apply under these facts. See, e.g., Kelly v. AME Janitorial Services Co., 09-1167, pp. 3-4 (La. App. 4th Cir. 3/3/10), 33 So.3d 358, 360-61.

Plaintiffs additionally invoke the related doctrine of res ipsa loquitur, urging that the circumstantial evidence in the record warrants an inference of causation of their symptoms by One Hour's negligent conduct and the chemical products used. The plaintiff in a negligence case may meet his burden of proof by presenting both direct and circumstantial evidence. Cangelosi v. Our Lady of the Lake Rege.Med. Ctr., 564 So.2d 654, 664 (La. 1990) (on rehearing). Res ipsa loquitur is not a substantive legal tenet, but rather an evidentiary doctrine under which a tort claim may be proved by circumstantial evidence. Broussard v. Voorhies, 06-2306, p. 6 (La.App. 1st Cir. 9/19/07), 970 So.2d 1038, 1043, writ denied, 07-2052 (La.12/14/07), 970 So.2d 535. The doctrine permits the inference of negligence from the surrounding circumstances, and merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. Cangelosi, 564 So.2d at 665.

Evidence is either direct or circumstantial. Direct evidence is evidence that, if believed, proves a fact. Circumstantial or indirect evidence is evidence that, if believed, proves a fact from which one may logically and reasonably conclude that another fact exists. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 18 n. 6 (La.2/29/00), 755 So.2d 226, 236 n. 6.

Because application of res ipsa loquitur is an exception to the general rule that negligence is not to be presumed, it should be sparingly applied. Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La. 1992). Generally, it may be applied when three requirements are met: (1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; (2) the defendant had exclusive control over the thing causing the injury; and (3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on the defendant's part. Id.

Plaintiffs cannot avail themselves of the benefit of the doctrine of res ipsa loquitur to defeat summary judgment, as they have failed to set forth specific disputed material facts as to at least two of the three required elements of the doctrine. With regard to the first element, as defendants point out, there was pertinent direct evidence relating to the nature and effects of the chemicals sufficient to negate any circumstantial inference of negligence on defendants' part. As to the second element, relating to control over the injury-causing instrumentality, plaintiffs failed to establish specific facts tending to establish that the chemicals used by One Hour in fact caused their alleged injuries. At best, plaintiffs' evidence consisted only of circumstantial or anecdotal evidence suggestive (but not probative) of a causal link between the work performed by One Hour and their claimed symptoms. Significantly, no diagnostic medical evidence of chemical exposure was put forth by plaintiffs. Defendants, on the other hand, presented direct evidence, in the form of their toxicological expert's affidavit, that the chemicals in One Hour's custody would not have caused the symptoms of which plaintiffs complained. In the absence of specific facts and circumstances from which One Hour's negligence and a causal link between such negligence and their claimed injuries could reasonably be inferred, plaintiffs cannot defeat summary judgment by relying solely upon applicability of the doctrine of res ipsa loquitur. See Continental Cas. Co. v. McClure, 313 So.2d 260, 262 n. 2 (La.App. 4th Cir. 1975).

The vague reported symptoms that plaintiffs attributed to Mr. McMillin and Mr. Montz were also not linked to any chemical exposure, let alone the chemicals at issue, by any medical or scientific evidence. Thus, the evidence relating to the claimed symptoms of Mr. McMillin and Mr. Montz was insufficient to satisfy plaintiffs' burden of proof and to defeat summary judgment. See Landreneau v. Copeland's Cheese Cake Bistro, L.L.C., 08-647, pp. 5-7 (La.App. 5th Cir. 1/13/09), 7 So.3d 703, 706-07.

In summary, plaintiffs have failed to put forth specific facts that would tend to prove that the chemicals used by One Hour caused the symptoms of which they complained and their consequential damages. For these reasons, we conclude that plaintiffs' first assignment of error has no merit, and that the trial court did not err in rendering summary judgment on the showing made. See, e.g., Bradham v. Union Carbide, 07-919, pp. 7-10 (La.App. 5th Cir. 5/27/08), 985 So.2d 846, 850-51, writ not considered, 08-1956 (La.10/31/08), 994 So.2d 527; and Alex v. Dr. X, 96-1196, pp. 12-14 (La.App. 3rd Cir. 3/5/97), 692 So.2d 499, 506-07.

New Trial

In their second assignment of error, plaintiffs contend that the trial court erred in denying their motion for new trial. The stated basis of that motion was plaintiffs' post-hearing discovery of a One Hour business card upon which Mr. McMillin identified the Nu-Calgon product used as Nu-Calgon Evap Pow'r-C, rather than Evap Pow'r-RTU, and an updated MSDS for Evap Pow'r-RTU, purportedly showing more toxic potential. Because defendants' expert, Dr. George, based the conclusions of his affidavit on the use of Evap Pow'rRTU and the older version of its MSDS, plaintiffs argue that the newly discovered evidence warranted the granting of a new trial on the motion for summary judgment.

One of the peremptory grounds for a new trial is "[w]hen the [moving] party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial." La.C.C.P. art. 1972(2). The standard of review of a judgment on a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. Magee v. Pittman, 98-1164, p. 19 (La.App. 1st Cir. 5/12/00), 761 So.2d 731, 746, writ denied, 00-1694 (La.9/22/00), 768 So.2d 31. The breadth of the trial court's discretion to order a new trial varies with the facts and circumstances of each case. Norton v. Mayeaux, 05-1704, p. 11 (La.5/30/06), 931 So.2d 338, 344.

To meet his burden of proof on a motion for new trial based upon newly discovered evidence, the mover must show that such evidence (1) is not merely cumulative; (2) would tend to change the result of the case; (3) was discovered after trial; and (4) could not, with due diligence, have been obtained before or during trial. Couvillion v. Shelter Mut. Ins. Co., 95-1186, p. 7 (La.App. 1st Cir. 4/4/96), 672 So.2d 277, 282-83.

The information related to the use of Nu-Calgon Evap Pow'r-C and Mr. McMillin's writing of that product's name on his business card was not new information, as plaintiffs had previously attested to that same information in their affidavits in opposition to the motion for summary judgment. The post-hearing location of the business card itself therefore added nothing new to the facts originally placed before the trial court for the hearing on the motion for summary judgment, and thus the business card constituted merely cumulative evidence. Plaintiffs were not entitled to a new trial solely on the basis of their discovery of the card itself, which was already known to exist. Additionally, in both of their affidavits opposing summary judgment, plaintiffs emphasized their factual contention that Evap Pow'r-C was used, rather than Evap Pow'r-RTU. Thus, such information was not newly discovered evidence, and plaintiffs made no showing that the MSDS for Evap Pow'r-C (attached to their motion for new trial) was unavailable to them before or during the trial.

Plaintiffs' strongest argument in favor of a new trial was the evidence relating to the 2008 revised MSDS for NuCalgon Evap Pow'r-RTU. As emphasized by plaintiffs, the revised MSDS does set forth some differences and more detail regarding potential health hazards and "exposure controls/personal protection" than does the older 2006 MSDS. For example, the revised MSDS cautions that ingestion "[m]ay cause stomach distress, nausea, or vomiting," a significant change from the 2006 MSDS. The revised MSDS also warns that " [e]xcessive intentional inhalation may cause respiratory tract irritation and central nervous system effects (headache, dizziness)" and that "[s]ymptoms of overexposure may be headache, dizziness, tiredness, nausea and vomiting." (Emphasis added.)

The MSDS for Evap Pow'r-C and the revised MSDS for Evap Pow'r-RTU were neither certified nor attached to Mr. Thomas's affidavit submitted with his motion for new trial, and thus could not ordinarily be considered, but for the fact that both were attached to and identified in the opposition affidavit of defendants' expert. Dr. George. Under these circumstances, where both parties agree as to the contents of the documents and submit them for the court's consideration, the documents may be considered the subject of a stipulation or joint admission. See, e.g., Boland v. West Feliciana Parish Police-Jury, 03-1297, p. 6 (La.App. 1st Cir. 6/25/04), 878 So.2d 808, 814, writ denied, 04-2286 (La. 11/24/04), 888 So.2d 231.

Defendants emphasize that there is no evidence of either ingestion or excessive intentional inhalation of the product by plaintiffs, and that both the 2006 MSDS and the revised 2008 MSDS categorize the health hazard rating of Evap Pow'r-RTU as "1" ("slight"), on a scale of "0" ("minimal") to "4" ("severe"). More importantly, defendants submitted an excerpt from Mr. McMillin's deposition, in which he confirmed that the Nu-Calgon product is diluted with water prior to being sprayed on the evaporator coil, and that in this particular job the application of the product was then followed by a water rinse. Defendants submitted another affidavit of their expert, Dr. George, in which he emphasized the diluted nature of the product. Dr. George also pointed out that Evap Pow'r-C had the same health hazard rating of "1" ("slight") as Evap Pow'r-RTU, posing a possible risk of only minor and transient effects. He concluded that even if Evap Pow'r-C (the concentrated product) was the product used, his prior opinion that plaintiffs' symptoms would not have been caused by the product did not change.

Even if plaintiffs' evidence was newly discovered, it would not have served to change the result. Under the circumstances, we cannot conclude that the trial court abused its discretion in denying plaintiffs' motion for new trial. Plaintiffs' second assignment of error has no merit.

DECREE

The summary judgment of the trial court in favor of the defendants, Comfort Center of Monroe, LA, Inc., and America First Insurance Company, and against the plaintiffs, Leroy Thomas and Benay Thomas, dismissing the plaintiffs' causes of action and claims with prejudice, is affirmed. The judgment denying plaintiffs' motion for new trial is also affirmed. All costs of this appeal are assessed to the plaintiffs.

MOTION TO STRIKE REPLY BRIEF DENIED; AFFIRMED.