2008CA2365 - Louisiana Court of Appeal, First Circuit

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO 2008 CA 2365
JEROME MILTON SHORT ET AL
VERSUS
ANDREWS TRANSPORTATION COMPANY ET AL
Judgment Rendered
ItJCLt e
s
iN
Appealed
A
sf
HAf 1 3 2009
r
from the
22nd Judicial District Court
In and for the Parish of Washington Louisiana
Case No 74 729
The Honorable Robert J Burns
Judge Presiding
Ad Hoc
Edward Robinson III
Counsel for Plaintiffs
Mark E Robinson
Jerome Milton Short et al
Baton
Rouge
Robert E
Appellants
Louisiana
Kerrigan
Jr
Counsel for Defendant
Jonathan M Walsh
Andrews
Transport
Appellee
Inc
New Orleans Louisiana
And
Richard M Simses
Paul M Lavelle
Houston Texas
Robert E
Tarcza
Michael A
Counsel for Defendant
TMI
Triay
Enterprise
Appellee
Inc
New Orleans Louisiana
BEFORE KUHN GUIDRY AND GAIDRY JJ
1
Judge
Robert J
Bums
is
serving
as
judge
ad hoc
by special appointment ofthe
Louisiana
Supreme
Court
GAIDRY J
in this
plaintiffs
The
the verdict
judgment notwithstanding
liability
on
trial After
At
the part of the defendants
complete
a
the outset
assignments
res
appeal
matter
of
error
and
as
that
given
we
find
pertinent
to
the
jury verdict finding
their alternative motion for
no
on
record
we
we
pretermit
Inc
Enterprise
TMI
no
a new
affirm
appellants
merit in any of the
appeal
the issues of
TMI
We have
documents and
to
those and
the factual and
procedural
testimony related
appeal Accordingly
history presented in this opinion references those proceedings and evidence only
the extent necessary to
a
a
which contains much of the interwoven class
us
including evidentiary
not
as
and affirm the judgment
denial of their motion for
s
unanimous
a
well
court
thorough review of the
reviewed the entire record before
other issues
trial
from
judicata and prescription raised by
action suit
a
complete understanding of the chemical release
relates to the issues and defendants in this
as
to
it
particular appeal
FACTUAL BACKGROUND
In brief summary the events
leading
which
Gaylord Chemical Company Gaylord
which
produces it and delivers it
manufactured and owned
by Union Tank Car
employee noticed that the Union Tank railcar
it in
an
effort
to suppress
several thousand
thought to be
an
uses
obtains the chemical from
industrial process
Vicksburg
up to the
gallons
empty railcar
water
was
Although Vicksburg noticed
nonetheless filled the railcar which
to
to
In
Gaylord in
leaking
to
and he
follows
in its
railroad
a
sprayed
car
Gaylord
water
on
Gaylord and its employee
at
that time
What
was
Vicksburg
already contained
2
a
1995
September
weight discrepancy
a
as
Vicksburg Chemical Company
entered the railcar
returned
were
nitrogen tetroxide N204
Unbeknownst
the vapors
of
was
explosion
water
In
the
railcar
it
with thousands of
of N204 and delivered it back
gallons
1995
plant
chemical
the
simultaneously loading
While this process
likely
product
taking place safety interlocks shut down Gaylord
was
and discovered it
was
believe the N204
to
to
s
be
Gaylord contacted Vicksburg who tested the
of the shutdown
cause
storage
the material in the onsite storage tank into the
Investigations led Gaylord employees
reactor
On October 12
Gaylord facility
the chemical from the railcar to its onsite
Gaylord began loading
tank while
the
to
contaminated with
water
creating
a
corrosive and
toxic nitric acid
In
an
Company Andrews
which
to
unload the
would have
available
for
use
Gaylord
but
no
plant
began
to
s
storage tank
transport them
pick
new
from TMI and delivered
then
use
of stainless steel
trailerltankers2
in
Andrews had
no
stainless tankers
then contacted TMI which had sufficient stainless steel tankers
to
Four brand
obtain the
contaminated N204 and prevent the corrosive effect it
water
way to
contracted with it
to
seeking
Gaylord
on
Gaylord contacted Andrews Transportation
response
emergency
up the
Gaylord then
empty tankers from TMI and deliver them
and clean tankers
to
contacted Andrews and
re
Gaylord
s
ultimately
plant
transfer the contaminated
on
were
picked
October 12 and 13
contents from
the railcar
up
by
1995
to TMI s
to
the
Andrews
Gaylord
stainless
steel tankers
However
mechanics
2
Gaylord
successfully
as
planned the Gaylord
to
load the
Meanwhile the pressure inside the TMI tankers became elevated
were
gaskets required
to
as
began experiencing leaks from the Gaylord totalizers used
TMI tankers
and vapors
the transfer did not go
escaping
for
Apparently instead of being equipped with
loading N204
had rubber
gaskets
which melted
The record refers to these stainless steel cars
and for the sake of consistency
they
the TMI tanks delivered
interchangeably
by Andrews from
TMI
allowing the release of contaminated
as
will be referred to hereinafter
3
Teflon
trailers and tankers
simply
as
tankers
For purposes of this
opinion
In
N204 into the air
water
on
them
which
created makeshift 55
effort
an
entered the tankers themselves
ultimately
gallon
Gaylord employees sprayed
these vapors
to vent
drum scrubbers
to vent
Gaylord also
the trailers which
were
also
being vented through the main Gaylord scrubber
On the afternoon of October 23
completion
point
the
as
loading
process
pressure continued to rise in the railcar believed to be
A
in time
the railcar which
amounts
1995
yellowish
brown vapor
was
empty by this
leaking from the dome of
observed
ultimately exploded approximately
nearing
was
one
releasing large
hour later
of toxic fumes and contaminated N204 into the air
PROCEDURAL HISTORY
This suit
Porter
on
originally
Gaylord Chemical
to
petition alleged
a
Plant in
at
the
the
of N204 had
railcar
the
preventing a
a
two
with
all others
were
on
the TMI tankers
actually
water
similarly
Louisiana
chemical release
exploded
class action relief and
petition seeking
a
Bogalusa
plaintiffs
12
were
to
1995
at the
site
as a
at the
exposed
situated
i
e
damages
employees
result of having been
Gaylord plant
at
the
exposed
the
Specifically
contaminated N204 that had been
October 23
through
1995 the date
Gaylord plant During post explosion
weighed revealing
that
only
a
small
amount
been loaded into the tankers because the contents of the
contaminated N204
had eroded the
dip tubes inside the
car
full download into the tankers
Short and Porter
the
as
Jerome Milton Short and Gurvis
by plaintiffs
plant site from October
Union Tank railcar
investigations
filed
them and
toxic fumes from
leaking
1996
October 11
allegedly suffered by
was
s
original petition named
as
defendants Andrews
defendants herein its insurer Nobel Insurance
numerous
other defendants
Vicksburg Chemical Company
Company
Nobel
one
together
including Cedar Chemical Company
Illinois Central Railroad Union Tank Car
4
of
b
d
a
the
City Southern Railroad and Scott Aviation
tanker manufacturer Kansas
others
to
be named
which
was
added
at
a
These other defendants
later time
by amended petition will be referred
to
as
well
as
including Gaylord
hereinafter
collectively
as
the class action defendants
Numerous other suits
multiple suits including
were
those
also filed
originally
not limited to
actions numbered 73 341
subsequently
certified
The
Bogalusa
plaintiffs
However
action
as
by
filed
that Andrews and Nobel
parties agreed
action and
plaintiffs agreed
reserved the
right
to
100
to
fault
5
appeal
the
on
the
was
parties
on
class defendants
Kansas
entered
City
3
4
App
1
jury
verdict
taken of that
on
st
on
October 2
Cir 10 2 08
motion Nobel
was
opted in
common
In
subsequently
A
was
added
their
own
Vicksburg
it
was
was
was
a
45
10
behalf
Illinois Central
Judgment
dismissed
at
dismissed from the suit
a
allocating
verdict
designated
completion of
plaintiff in
5
but
held between
a
as
final
was
An
by joint motion of
global settlement
Bogalusa
action
as a
them
against
on
jury returned
Re Chemical Release
unpublished
between
class action defendants
issues of fault
and Union Tank Car
upon the
1998
the class
Nobel
35
however
to
at
longer defendants in the class
December 9 2003 and
2008
13
May
seek class action relief
Gaylord
judgment
As noted later herein James EdwardTate
By joint
the
500
Railroad
agreement among the parties
La
were no
2003 and December 10 2003
2
dated
all
Nobel4 and the
against Andrews and
class action trial
September
Tate3
maintain this action number 74 729
outside of the class action
A
not to
consolidated and
were
entitled In Re Chemical Release
judgment
Short Porter and Andrews and its insurer
the
and 74 729
herein Short Porter and
way of consent
The
by the plaintiffs herein including but
74 731
class action
a
result of the chemical release
as a
subsequent amending petition
2005 0882
accordance with the aforementioned
In
petition
filed in Short and Porter
was
James Edward Tate
acts
and strict
work
in
failing
and handle the materials
at
numerous
negligent
it
was
liable in
to
tort
for
conduct their
gaskets which could contain
cars
that caused
plaintiffs injuries
in the
were
custody and control of Andrews
Plaintiffs
alleged
were
plaintiff
as
N204 and further alleged strict liability under
issue
La C C art 2317 because the tank
care
adding
equipment for the plaintiffs
but not limited to the failure to have
including
alleging
plaintiffs alleged
safe
provide
to
and
amended
an
both Andrews and TMI
Andrews
to
as
judgment
filed suit
originally
s
defendant TMI
as
liability against
Specifically
negligence
adding
consent
to
as
in the
approximately
five
unanimous verdict
liability
on
March 5
judgment
On
on
commenced
six weeks
on
February
Notwithstanding
on
14
same
acts
jury trial
a
26
2008
negligence
on
22
January
2008
jury rendering
jury verdict
claims with
that
and lasted
in favor of Andrews and TMI
in accordance with the
cars
finding
was
prejudice
a
signed
Notice of
March 7 2008
the Verdict
both motions
of
TMI
The trial concluded with the
Judgment
2008
These post trial motions
denying
the
strictly liable because the tank
dismissing all of plaintiffs
issued
March
as
to
their part
2008
was
was
tort for
custody and control of Andrews were owned by
matter
no
liable in
was
Andrews and also that it
care
This
that TMI
alleged
were
was
plaintiffs
the
JNOV
heard
signed
on
and
by
the
April
followed
6
filed
alternatively
court
on
18 2008
Motion
a
a
April
This
for
motion for
3
2008
and
Judgment
new
trial
judgment
appeal by the plaintiffs
ASSIGNMENTS OF ERROR
Plaintiffs
erred in
and it
was
clear that the
Related
erred in
jury regarding
the
a
issues
to
on
appeal
evidence
first whether the trial
clearly outweighed
jury had acted improperly
so
that
granting the JNOV based
newspaper article that
was
on
the trial
published
following
reasons
court
in
a
had not
to
the trial
poll
local newspaper
find
we
assert
refusal
s
court
the verdict
impartial justice
alleged jury misconduct plaintiffs also
the
of the trial For the
pendency
these
not
two
JNOV when the
denying the
been done
court
essentially raise
the
during
merit in any of
no
assignments of error
JNOVINEW TRIAL
Louisiana Code of Civil Procedure article 1811
guidelines and authority for
granted
JNOV
on
is
the issue of
warranted
in favor
could not arrive
at a
not
different
evidence for the
such
liability
and
quality
the issue of
or on
and
in favor of the
conclusions
mover
not
La
11 28 00
court
procedural
JNOV may be
both issues A
strongly
and
granted only when the
moving party that reasonable
opposed
to
men
could
preponderance of
a
the motion which is of
men
in the exercise of
different conclusions the motion should be denied
moving party
774 So 2d 84 89
a
so
the
believes that reasonable jurors
weight that reasonable and fair minded
rule that when there is
a
or on
point
merely when there is
should
court
witnesses and all reasonable inferences
non
damages
inferences
If there is evidence
making this determination the
favor of the
provides that
contrary verdict The motion should be
impartial judgment might reach
In
This article
of one party that the
points so strongly
reach
JNOV
when the facts
overwhelmingly
evidence
a
provides
Davis
or
not
factual
evaluate the
questions should be resolved
Wal Mart Stores Inc
v
The strict criteria for JNOV is
jury the jury is
7
credibility of the
the trier of fact
Smith
2000 0445
p
in
4
predicated on the
v
State
Dept of
12 13
2004 1317 2004 1594 pp
Dev
Transp
La
11
3
05
899 So 2d 516
525
When
the record
a
to
JNOV is denied
App
La
1st Cir
p 6 La
18
5
Autin
94
16
2
638 So 2d 224
4 29 94
1601
error
see
s
legal
appellate
error or
Joint Venture
Cajun
637 So 2d 538
also Peterson
93 0320 p
Kroger Co
writ denied
544
reviews
simply
whether the trier of fact
v
Gibraltar
v
court
La
94 0674
1998
Savings and Loan
1203
733 So 2d 1198
99
the
case
determine whether there is
committed manifest
10
in this
as
NEWSPAPER ARTICLE
On
Sunday February
10
and Franklinton Louisiana contained
spill
settlement
trial
plaintiffs
out
proceedings
to
front page article related
counsel
of due
brought the
concern
The trial
court
matter
for the
that the newspaper article
of the newspaper article
plaintiffs
outside the presence of the
implied
that the
current
jurors who had either personal
or
relative
suit
article
to
complete
sends
a
those settlement
message to the
delaying them from getting back
asserted that he
was
not
negotiations
jury
to
urging
that the
mistrial
8
s
court
claims
are
counsel
s
hindering the
awaiting
concern
settlement
their
personal
argued that
holding them
However counsel
but
rather he
fully
Counsel
He voiced
Counsel further
plaintiffs
their families
a
the
jury
was
prejudiced by
disbursements in the class action may have been
desire
to
sanctity of the jury deliberations and the
completion of settlement negotiations in the class action suit
that certain
pending
the
opening of the ongoing
read the article and allowed
concerns
to
Trial could mark end for
at the
following Monday morning
The
articulate and argue his
argued
a
judgment settlement negotiations entitled
class action
attention
Sunday News publication in Bogalusa
The
2008
the
up and
specifically
sought only
an
admonishment
from
making
to
court
trial
court
indeed
or
that his
the
to
any kind of
seems
to
whole system that
The trial
years
are
not to
ongoing trial Counsel then appealed
to the
agreed
to
admonish the jury that
jury needed
whether
to state
so
The trial
court
court
hold it
sic
why
as
noted
to any
The
conducting
trials
its
your clients
against
they
just did
not
they
Accordingly
error
not
a can
only
were
we
granted
find based
the
on
based
on
jury reading
would hold it
that
against
prejudiced by
years of
it
it
the
than 12
more
any way that any
see
many
if
very
juror
against
experience
polling the jury instead of just giving
the
in
an
of worms
agree with the trial court but
Ultimately the plaintiffs
very valid
article and
that
concern
we
see
in the article about
in the world do class actions take
concluded that it
admonishment would open
Upon review
to
rejected this suggestion
member of the
a
also articulated
court
polled
they had been thereby
implications
who may have read the article could have been
plaintiffs
be
to
they
reading of the article actually revealed information
not
court
proceedings
s
cease
plaintiffs Additionally
would
the trial
to
in any way
delay the trial
me
barring the defense attorneys
request ordered defense counsel
s
to the
court
during
whether it felt the
to
as
prejudiced
primarily noting
favorable
counsel
related
accounts
the press
had read the article and if
they
influenced
order of the
the press and
wisdom
s
an
statements to
granted
making comments to
read newspaper
and
jury
more
any
The trial
the
were
requested
the
unable
and
thorough
in its decision to admonish but not
to
we
show any
find its
prejudice by
adequate admonishment
reasons
given by
concerns
to
the
the jury
the trial court
no
poll the jury
DENIAL OF JNOV NEW TRIAL
At the
inception of the hearing
stated his belief that the jury
s
on
verdict
the post trial motions
was erroneous
9
plaintiffs
counsel
because either inexcusable
ignorance
or
instructions
I think it
inexcusable
was
given by this learned
established that both Andrews
custody
care
Teflon
not
them to
and control of
are
the
rebellion
the learned
to
and TMI
by virtue of ownership had
the tankers with rubber
thing allegedly
jury ignored the jury instructions that bound
impose strict liability
This argument
that
defective
therefore
gaskets
or
Counsel maintained that the evidence
court
physically
a
revolt
jury
contrary
the tankers
at
a
as
of law
matter
as
leakage occurred
the time that the
it is based
that Andrews and TMI had
the evidence i e
to
is flawed
on
assumptions
legal custody
and that the tankers
defective
outright because they had rubber rather than Teflon gaskets
while
agree with the
we
plaintiffs
that there
that fact has been
TMI tankers leaked
was
alone gave rise to the
leakage
Andrews and TMI
also
fundamentally
this
matter
relate
matter of law
as a
flawed
to
Moreover
by virtue of their custody and ownership is
or
TMI had
a
to
imposition
responsibility
custody
and control of the tankers whether Andrews
or
committed any
acts
whether the tankers
were
As detailed below
overwhelmingly
mind could
jury
s
not
in
Gaylord plant whether Andrews
that either
support of the jury
have reached
a
or
or
or
of liability in
to
prevent the
TMI had
TMI breached
legal
a
duty
indirectly caused the leakage
s
verdict such that reasonable
different verdict
are
10
so
jurors of like
The evidence also supports the
clearly contrary
by the plaintiffs
and
La C C arts 2315 and 2317
of this entire record reveals evidence
review
apparent fact findings that
asserted
directly
indeed defective
our
that
imposition of strict liability against
leaking
care
the
plaintiffs argument
tankers from
at
Further
overwhelming evidence that the
The critical issue germane
whether Andrews
were
wholly undisputed throughout the entire
history of this and the class action litigation
the fact of
of
to
the
assumed facts
In brief summary the evidence
Andrews
transported clean
the actual transport and
Andrews
TMI
nor
loading unloading
new
and empty trailertankers
delivery of
had
employees
processes
the direction and instruction
disputed there
defendant had any
defendant
to
misrepresented
rubber
as
3
there
was
about the intended
replacement
many
Moreover and most
replacing
did
a
use
legitimate
establish that 1
neither
2
neither
of the trailers
N204 in fact it
to store
storing
a
responsibility
use
not
to
indicate that
reasons
was
much lesser toxic
to
ensure
that the
of the tankers and 4 the
they
were
mere
defective
they could have needed
significantly the evidence strongly established that
Gaylord had the sole responsibility under the circumstances
were
site at
evidence
neither defendant had
testimony of
the
4
plant
the
overwhelming
inquire
needed
gaskets
with
complete supervision by Gaylord
sufficient for the intended
gaskets were
neither
and
within the
2
and under the
Andrews that the tankers would be
DMSO
fact that the
to
3
whatsoever
yards
100
approximately
Gaylord plant
Gaylord plant
told that the tankers would be used
was
chemical
duty
is
do
to
the
at
the
without incident
were
anything
taking place
Andrews driver moved the trailers
And although
the trailers
to
TMI leased and
1
indisputably established
properly equipped for their intended
use
and that this
to
ensure
the tankers
duty had clearly been
breached
Specifically
individuals that
the
plant
Gaylord
testified
was
read
manager at
manufacturing
at
the record contains class action
at
at
the jury in this
Gaylord
Gaylord
in 1995
to
in
in 1995 and Mr
Also
Mr
Bruce
Mr William Dean Householder
case
Mr
1995
Buddy
Hall
the vice
president of
Toby Frierson assistant plant
Hartzog
the trial Each of these witnesses
was
customary policy and procedures and Gaylord
11
testimony of the following
s
a
Gaylord
mechanic in 1995
questioned largely
failure
to
manager
weigh
the
in relation to
cars
without
which failure
the incident would
provided consistent testimony replete
and fault
the part of
on
Significantly
to
implicit
procedures
to
TMI
tank
s
Householder also
sent to
cars
left the
plant
railcar
was
from
a
a
was
blatant
not
empty
water
instead he first became
inadvertently left
1995
informing Gaylord employees
brown cloud that
was
the valves could have been
on
that for
and
to note
empty when it
of the fact that the
He testified that
they
Gaylord
in the railcar had
come
to
the
and unnoticed for
car
was aware
of
a memo
dated October 15
that diluted concentrations of N204
October 20 1995 and that
12
Mr
Vicksburg
car was
running continuously
corroding from
it
been followed
had failed
Nevertheless he claimed that the first
observed
ensure
previously by Gaylord employees
on
he
not
at
aware
pounds of water
water into the
acknowledged
to
written
in it when it arrived at
with their belief that the
hose that had been attached
corrosion
or
lading inspected by Toby Frierson
explain why Gaylord
October 12
days evidently dumping
catastrophic
a
on
procedure had
pounds of material
then concluded that the 9 500
Mr Householder
1995
to
s
He also testified however
that the bill of
discrepancy
He testified that
valve and had been
seven
unable
Gaylord
to
routinely weighed only
were
acknowledged
Vicksburg yet he
such
according
weighed at the Gaylord plant
Vicksburg
reflected that the railcar had 9 500
employees
that
acknowledged
being
either direct
liability
throughout their testimony
verbal agreements the written
to
Gaylord
question
establishing negligence
the railcar should have been
pursuant
instead
with factual evidence
Gaylord Vicksburg Union Tank Car and the railroads
Householder
empty prior
years
or
All of these witnesses
of these witnesses attributed
one
Andrews
Mr
was
not
have occurred
not
cause
sign of vapor
was
was
when he knew
the water contaminated chemical
Mr
Householder
involvement
by Andrews
tank trailers
that
was
unaware
railcar
to
ensure
therefore
after
October 12
as
incompatible
information
with
read in 1994
policy it
it
to
his
1995
was
Monel
Vicksburg
He also
discrepancy
that he
acknowledged
cause
corrosion
severe
despite
Analysis that he signed
to
Again
have
not
early
weighed
neither Andrews
that this
as
the railcar before
nor
TMI
was
having
the written
candidly admitted that pursuant to
Gaylord
as
in the Union Tank railcar
flow valve
Process Hazard
Mr Hall
empty
as
a
was
to have
his failure
questioned regarding
was
excess
contained in
Hartzog the Gaylord mechanic who
consistent with the
provided testimony
to
duty by Gaylord
discrepancy
railcar
1995
liquid
weigh
not
known
they encountered
to
either
an
Andrews
or
he admitted that he
throughout
employees
be
water
TMI
never
not
called
sending
mentioned in
were
were
by Vicksburg
contaminated
personally
to
at
trial
at
this
a
as
directed
parking
point
on
October 12
deloading
by Gaylord employees by
site within the
or
plant
TMI
However
employee
He also admitted that Andrews
in any way involved in the entire process
13
transfer the
to
After
puffs
observed any Andrews
project
ignore the
to
Gaylord employees attempted
driven
employee
witness
as a
foregoing regarding the obvious breaches
seepage and leaks of visible brown
the duration of the
were
was
the railcar and
He confirmed that when
he testified that the trailers
site
a
weigh the
testimony
Bruce
of
full offload from the railcar
a
N204 and would
mistake for
any
advice from Union Tank Car the builder of the
Hall
Mr
Moreover
was a
not
having knowledge of a potential contamination therein
that the
knowledge
Gaylord could have but did
noted until much later
Gaylord sought
whether
even
they contained
not
nor
TMI
or
Mr Hall testified that
Similarly
the transport of the trailers
questioned regarding
not
was
save
or
on
TMI
to drive
the
trailers that short distance
October 14
more
valve
1995
at
once
and the tanker ceased
the Teflon
leaking
from another of the trailers
relief valve
was
Finally
and chemical
and
replaced
even
the
on
on
that trailer
he
as
was unaware
one
He
all of the failures
explosion
inexcusable
because there
ignorance
were so
in the
operation
negligent
on
to
these witnesses alone
the
of
were
One
of strict
could go
facility
predictable
all
was
on
the
However
explosion
committed
that neither defendant had the
imposition
chemical
a
have
on
Gaylord
s
reckless
based
reasonably
on
the
breaches of
a
duty
the record contains further
s
additional conclusion that
by either defendant that caused
legal custody of
found that
correctly and previously
numerous
presented by plaintiffs that supports the jury
acts
vent
read into the record
He characterized
jury could
the class action defendants based
negligent
was
the incident at issue had been
proven to have caused the
evidence
documented leak
committed
entirety of the fault for
assessed
ones
Gaylord that caused the releases
many
numerous
Based
a
He testified that he
the part of
and testified that the ultimate incident
acts
which
D
TMI in any way
on
of
the corroded
expert witness scientist
of plaintiffs
engineer Vasilis Fthenakis Ph
or
or
well
conduct
no
from
he testified that the vapor
1995
deposition testimony
regarding
as
gaskets arrived he replaced
October 22
Andrews
and ultimate
the
leaking
on
discovered that the manway and relief
was
Although
implicate
to
on
acts
of brown smoke
plumes
which time it
He testified that
by Gaylord employees
gaskets had corroded and needed replacement with Teflon gaskets
further testified that
failed
directed
witnessed
they
of the trailers
as
defective
the release and
thing required
for the
liability
of the few witnesses whose
Andrews and TMI in any way
was
testimony elicited
at trial
implicated
that of Jodee Robinson the customer service
14
who
representative
for
arranged shipment orders
in
Gaylord
1995
and who
personally arranged the negotiations of lease and transport with Andrews and
However
this
witnesses
Robinson testified that she
would be
testimony
needed
require
Teflon
always informed the transporters
She also testified that it
However
inconsistent with
specific
need for
earlier
needed
compatible
testimony
s
was
truck driver Harris Reams Jr
Andrews bill
to
the transport
of trailers
understanding
that it
to
was
tankers delivered contained
also contradicted
trailers
was
were
specification
not
his
leased
duty
not
and that it
with certain chemicals
the
to
to store
for any
was
the
use
of the tankers
of
be
to
Gaylord
testimony
ensure
use
that the
Robinson
s
was
was
gaskets
He further testified that the
to
use
ensure
within trailer
compatibility
further contradicted
personally negotiated with
being leased only that they
15
to
that the trailer had rubber
chemical but for
Mr Vielee testified that he
that
Mr Reams also testified to
duty of the shipper lessee
s
an
Boutte rentals manager for TMI
compatibility
specific
Ms Robinson
noted
was
with the intended
out to anyone
of the owner of TMI Mr Louie Vielee who
lease of the trailers
testimony
DMSO
responsibility
ensure
offload N204 from the
Gaylord employee reflecting
a
by that of Morial
point
never
who confirmed that he delivered
gaskets compatible
who admitted that he did not
because it
be used
to
to
directly contradicted by the testimony
Gaylord signed by himself and
was
was
specifically
this
practice for Gaylord
with N204
of Andrews
testimony
they
in which she stated that she told Andrews
deposition
trailer
a
Moreover Robinson
his
what
told and therefore
was never
examination
cross
on
an
were
standard
was
She stated that she
gaskets
told Andrews that the trailers
the
by the testimony of other
transporting the type of tankers they needed including the types of
gaskets
railcar
contradicted
flatly
was
TMI
not
were
told the
going
to
by that
her for the
specific
be used
intended
to store
products
on
site
the
at
Gaylord sole responsibility
the
intended
use
he
to
same
practice that trailers
Finally
way
compatible for
he testified that
complaints from Gaylord regarding the tankers that
received any
delivered and
the
go out
standard
s
specifically
no
related
complaints
to
s
for what the trailer is
specifications
and that it falls with the
in clean and empty and
never
that the trailer is proper and
ensure
Mr Vielee also testified that it is TMI
designed
come
He further stated that it is the lessee
Gaylord plant
were
improper gaskets
Perhaps the only testimony in the entire record implicating Andrews and
TMI
of
as
having
Barry
some
Brunstein
L
to the
fault related
accepted
as
an
injuries claimed by the plaintiffs
trailers
100
approximately
contained therein
yards
on
this
However
regulations
when it moved
plant site without knowing what
the
statement
was
called into
that
On direct
expert in transportation safety
examination he testified that Andrews violated Hazmat
was
question
on
was
cross
examination when he admitted that for purposes of the Federal Hazmat Materials
Transportation
which had
case was
Law
transport
ends
already occurred in this
not
responsibility
the
the
once
matter
cosignee takes physical delivery
therefore
movement
of the transporter Andrews
that he believed TMI should have ascertained what
trailers
before
information before
on
their part
opined
to
transporting them
constitute
that TMI
was
subsequently needed
admit that
even
occurred it
was
that
and that Andrews
leasing
reckless
failing
to
However
again
on
incident
and
to
opined
be put in the
asked for the
grossly deficient actions
same
He also
inquire why replacement gaskets
cross
examination he
was
were
forced
to
the part of Andrews and TMI had indeed
the actions and failures of
actually caused the
going
should have
and
wanton
on
Brunstein also
He testified that he considered such failure
careless in
if these failures
was
after storage in this
not
16
Gaylord Vicksburg
the transport of clean
and the railroads
new
and empty
He also admitted that the
trailers
trailers
admitted that
according
nondelegable duty
simply
was
empty
were
to
to
ensure
journey
not
federal
that the
from TMI
governed by
to
Gaylord given that the
Hazmat
He also
regulations
regulations the shipper
has the
Gaylord
lading is compatible with the gaskets
CONCLUSION
Based
are
on
totality of the relevant and pertinent evidence in the record
the
convinced that it falls far short of
Not
JNOV
only do
post trial motions
we
find
law
we
affirm the trial court
costs
on
no error
this record
of this
meeting the stringent requirements for
in the trial
court
agree with the trial court that
our
trial All
based
we
s
to
grant either
one
judgment denying the
appeal
are
we
assessed
to the
AFFIRMED
17
s
denial of both of
there
Finding
are no
no
merit
plaintiffs
grounds
to
this
under
appeal
JNOV and the motion for
plainti ffs
a
new