Leroy Thomas and Banay Thomas VS Comfort Center of Monroe, LA, Inc., d/b/a One Hour Air Conditioning & Heating and America First Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0494 LEROY THOMAS ET UX VERSUS COMFORT CENTER OF MONROE LA INC DBA ONE HOUR AIR CONDITIONING HEATING ET AL Judgment Rendered October 29 2010 On Appeal from the 19th Judicial District Court In and For the Parish of East Baton Rouge State of Louisiana No 561 737 The Honorable William A Morvant Judge Presiding Donald G Cave Counsel for PlaintiffsAppellants Baton Rouge Louisiana Leroy Thomas and Banay Thomas Keith S Giardina Counsel for DefendantsAppellees Aaron J Lawler Comfort Center of Monroe LA Baton Rouge Louisiana Inc and America First Insurance Company BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY J The plaintiff homeowners appeal a summary judgment in favor of the defendants an air conditioning cleaning business and its insurer dismissing an action for personal injury and related damages allegedly caused by the defendant business negligent performance of work at the plaintiffs s residence We affirm FACTUAL AND PROCEDURAL BACKGROUND Leroy Thomas and Benay Thomas plaintiffs husband and wife are the owners of a residence in Baton Rouge Louisiana which they first occupied in July 2000 In the spring of 2007 because their central air conditioning HVAC system had not been used for some time and Mrs Thomas noticed a slight odor in their home upon activating the system plaintiffs decided to have the system professionally cleaned Mrs Thomas contacted a local representative of Comfort Center of Monroe LA Inc doing business as One Hour Air Conditioning and Heating One Hour and its sales representative went to plaintiffs home and discussed the work to be performed and the price Plaintiffs agreed to hire One Hour to perform the cleaning work The cleaning procedure was performed on March 26 2007 by a crew led by David McMillin a technician employed by One Hour The cleaning procedure took most of the day Plaintiffs had been advised that they should stay out of the house during the day the procedure was performed and the following day so they checked into a hotel for two days Upon returning to their home on March 28 2007 plaintiffs noticed an unusual odor and brought their concerns to the attention of One Hour s employees Plaintiffs complained that they experienced dizziness headaches and burning in their nasal passages throats and eyes According 2 to plaintiffs the foul smell persisted despite their attempts to eliminate it by following One Hour suggestions and after consulting other contractors s and One Hour failed to remedy the situation Plaintiffs claimed that they were forced to reside at a hotel for months until their entire HVAC system was ultimately replaced On December 4 2007 plaintiffs filed a petition for damages naming One Hour and its liability insurer America First Insurance Company America First as defendants Plaintiffs alleged that One Hour negligently used inappropriate chemicals or a combination of inappropriate chemicals to clean the duct work and evaporator coils of their air conditioning system failed to warn them of the inherent dangers of the chemicals and cleaning procedures negligently failed to use proper cleaning procedures and was negligent in other unspecified respects They also alleged that upon returning to their home after One Hour completed the work they experienced symptoms of dizziness headaches burning of the nasal passages and throat Plaintiffs further alleged that because of the persistence of their symptoms while in their home they were forced to stay at a local hotel at their expense and also sustained damages for pain suffering anguish loss of sleep loss of use of their residence diminution in value and other damages America First answered the petition generally denying its allegations and affirmatively alleging in defense plaintiffs failure to mitigate their damages and that plaintiffs symptoms were caused or aggravated by moisture and mold problems unrelated to the work performed by One Hour On March 9 2009 defendants filed a motion for summary judgment seeking the dismissal of plaintiffs claims on the grounds that plaintiffs 1 No answer by One Hour appears in the record 3 would not be able to prove that the cleaning process and chemicals used by One Hour caused the symptoms of which they complained Plaintiffs opposed the motion with various affidavits and deposition excerpts Defendants motion for summary judgment was fixed for hearing on May 18 2009 At the conclusion of the hearing the trial court ruled in favor of defendants granting the motion and providing oral reasons It directed defendants counsel to circulate and submit a proposed judgment The summary judgment was eventually signed on July 13 2009 On July 15 2009 plaintiffs filed a motion for new trial seeking a new trial on the grounds of newly discovered evidence verified by Mr Thomas s attached affidavit Defendants opposed the motion filing opposition affidavits Plaintiffs motion for new trial was heard on August 24 2009 After considering the supporting and opposing affidavits and other evidence the trial court denied the motion Its judgment to that effect was signed on November 19 2009 Plaintiffs have now brought this devolutive appeal ASSIGNMENTS OF ERROR We summarize plaintiffs assignments of error as follows 1 The trial court erred in rendering summary judgment in favor of defendants in failing to find that genuine issues of material fact existed and in failing to apply the correct statutory and jurisprudential standards in its determination of defendants motion and 2 Defendants have filed a motion to strike plaintiffs reply brief with an alternate motion for leave to file a supplemental brief on their own behalf on the grounds that plaintiffs reply brief raised for the first time the applicability of res ipsa loquitur to defeat Because that doctrine is an evidentiary doctrine relating to summary judgment circumstantial evidence rather than a doctrine of substantive law we conclude that defendants will suffer no substantial prejudice by our consideration of plaintiffs argument in the context of this matter Accordingly we deny defendants motions 2 2 The trial court erred in failing to grant a new trial on the basis of newly discovered material evidence DISCUSSION Preliminary Considerations Scope of the Appeal On our review of the record we note that in their petition for a devolutive appeal plaintiffs designated the judgment appealed as that denying their motion for new trial rather than the summary judgment of July 13 2009 A judgment denying a motion for new trial is an interlocutory judgment and normally unappealable However plaintiffs have clearly challenged the original summary judgment on the merits in their first assignment of error and their petition for appeal expressly states that they seek review of the judgment on the motion for new trial insofar as it provided for the dismissal of their claims with prejudice It is also the established practice of the appellate courts as directed by the supreme court to treat the appeal of the denial of a motion for a new trial as an appeal of the judgment on the merits when it is clear from the appellant brief that he s intended to appeal the merits of the case Smith v Hartford Accident Indem Co 254 La 341 34749 223 So 826 82829 La 1969 2d Carpenter v Hannan 01 0467 p 4 La App 1st Cir 3 818 So 02 28 2d 226 228 29 writ denied 02 1707 La 10 827 So 1153 Thus 02 25 2d the merits of the summary judgment of July 13 2009 are properly before us Summary Judgment Standards ofDetermination and Review Summary judgment is subject to de novo review on appeal using the same standards applicable to the trial court determination of the issues s Fitness LLC v Hibernia Corp 07 Peak Performance Physical Therapy 2206 p 5 La App 1st Cir 6 992 So 527 530 writ denied 08 08 2d 1478 La 10 992 So 1018 The summary judgment procedure is 08 3 2d 5 expressly favored in the law and is designed to secure the just speedy and inexpensive determination of non domestic civil actions La C art P 2 A 966 Summary judgment is appropriate if the pleadings depositions answers to interrogatories admissions and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La C art 966 P B The mover has the burden of proof that he is entitled to summary judgment See La C art 966 If the mover will not bear the P 2 C burden of proof at trial on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his opponent claim action or defense s La C art P 2 C 966 If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party claim s action or defense then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial La C art 966 P 2 C If the mover has put forth supporting proof through affidavits or otherwise the adverse party may not rest on the mere allegations or denials of his pleading but his response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial La C art 967 P B Causation and the Burden ofProof Most negligence cases are resolved by employing the dutyrisk analysis which entails five separate elements 1 whether the defendant had a duty to conform his conduct to a specific standard the duty element 2 whether the defendant conduct failed to conform to the appropriate s standard the breach element 3 whether the defendant substandard s conduct was a causeinfact of the plaintiff injuries the causeinfact s element 4 whether the defendant substandard conduct was a legal cause s rl of the plaintiff injuries the scope of liability or scope of protection s element and 5 whether the plaintiff was damaged the damages element Hanks v Entergy Corp 06 477 pp 20 21 La 12 944 So 564 06 18 2d 579 In a personal injury suit the plaintiff has the burden of proving by a preponderance of the evidence a causal connection between the injury sustained and the accident which caused the injury The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injury was caused by the accident Maranto v Goodyear Tire Rubber Co 942603 942615 p 3 La 95 20 2 650 So 757 759 Thus the medical relationship between the 2d accident and the claimed injury or the issue of medical causation forms part of the causeinfact element of the dutyrisk analysis in a personal injury suit Defendants motion for summary judgment focused upon the absence of factual support for the essential element of medical causation forming part of plaintiffs claims Because all of the general and special damages claimed by plaintiffs are ultimately attributable to the alleged symptoms of chemical exposure the element of medical causation of such symptoms is essential to their recovery In support of their motion defendants filed the affidavits of James F Wilson One Hour owner and general manager and William J s George Ph emeritus professor of pharmacology and toxicology at D Tulane University School of Medicine along with excerpts from the deposition of One Hour technician Mr McMillin who performed the s cleaning procedure 7 In his affidavit Mr Wilson described the cleaning procedure used by One Hour as a point source cleaning method commonly used in the United States The method employs a Rotobrush duct cleaning machine to agitate and remove buildup from the interior of round ductwork and a vacuum machine attachment to the Rotobrush machine for handcleaning of ductwork that is not round Mr Wilson explained that the Rotobrush machine uses a HEPA filtration system so that there is no regurgitation of any contaminants back into the home The cleaning procedure also includes treatment and cleaning of the air conditioning system evaporator coil s using a standard nontoxic treatment with three chemical products The first NuCalgon is an evaporator coil cleaner used to remove buildup on the coil The second ProTreat 350 helps to prevent clogging of the drain system and the third BBJ is a disinfectant Mr Wilson attested that he had been in the HVAC business for twenty years and had never had any prior complaints relating to the point source cleaning method or the three chemical products He further stated that he had never been notified by any manufacturer of health hazards caused by the products used and that he continued to use them to clean HVAC systems In the excerpt from his deposition Mr McMillin testified that he could not recall whether the NuCalgon product used to clean the evaporator coil was Evap Pow rC a concentrated product or another Nu Calgon product but confirmed that it was the standard product used by One Hour He further testified that he returned to plaintiffs home two days after the 3 Other evidence and testimony in the record uniformly confirm that the actual product name for the coil cleaner was either Evap Pow rRTU a diluted product or Evap Pow r C a concentrated product and that the manufacturer or distributor of those two related products was Nu Calgon Wholesaler Inc The full name of the BBJ product was BBJ Mold and Mildew Remediation Concentrate manufactured by BBJ Environmental Solutions Inc 9 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 NuCalgon Evap Pow rRTU attached to Dr s George 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 measures respiratory protection control was described as n required and g general room ventilation ot ood was recommended The MSDS for ProTreat 350 described it as a w tablet and hite indicated under the section for health hazards that it is moderately toxic if ingested and that e contact causes extreme irritation It also m ye ay cause skin irritation in sensitive individuals Although ProTreat 350 may 9 cause chemical pneumonitis i sprayed or misted it is not toxic by f inhalation tissue Ingestion of this product may damage throat and digestive The MSDS also stated with regard to meedical c onditions ggravated a by e that c with skin or eyes or breathing xposure ontact 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 to eyes and m irritate skin on rritating ay 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 art 967 In opposition to defendants motion P B 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 10 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 separate affidavit and therefore add little relevant s 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 to clean the evaporator coil rather than Evap Pow rC 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 Moritz and certain statements made by Mr Moritz to him regarding his findings Finally Mr Thomas affidavit contains his conclusory statements s that One Hour cleaning of the HVAC system was negligent and that he s incurred damages as a result of its negligence Mrs Thomas affidavit s contains the same or similar information as that of her husband and generally corroborates that information including One Hour purported use s of Evap Pow rC and the conclusory statements regarding One Hour s alleged negligence Louisiana Code of Civil Procedure article 967 provides that A upporting s and opposing affidavits shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and shall show I1 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 Moritz and the other unidentified HVAC technician in Mr Thomas deposition and affidavit as not within s Mr Thomas personal knowledge s 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 Moritz 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 if he was getting drunk He stated that because as 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 affidavit might have raised genuine issue as to the s factual issues bearing upon the propriety of One Hour cleaning procedure s and its alleged negligence it was insufficient in establishing genuine factual issue as to the causal relationship between One Hour cleaning procedure s and plaintiffs reported symptoms Specifically Mr Montz affidavit failed s 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 IVA chlorine presumably ProTreat 350 tablets a 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 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 Ist Cir 11 03 7 4 Mr Montz affidavit refers to pieces of the tablets as not totally dissolved s suggesting that they were placed in water The excerpts from Mr Thomas deposition s 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 13 867 So 771 775 A document which is not an affidavit or sworn to in 2d 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 22 So 964 09 11 3d 971 writ denied 092464 La 1 25 So 834 But even if the 10 29 3d contents of the thirdparty 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 affidavit and its attached documents do not provide s 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 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 973 2d 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 5 For example Mr White letter relating to the air sample states that a number of s chemical compounds were detected including ethanol and xylene but only one xylene meta is actually listed on the laboratory analysis summary as detected at para reported concentration in ppbv and ug The MSDS for NuCalgon Evap Pow m3 rRTU lists 2butoxyethanol and sodium xylene sulfonate among its potentially hazardous ingredients but neither Mr White affidavit the attached letter nor the laboratory s analysis summary identifies any compounds detected with those ingredients 14 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 051263 pp 45 La 1 950 So 557 07 17 2d 560 and Poland v State Farm Mut Auto Ins Co 03 1417 pp 89 La App 1st Cir 6 885 So 1144 1148 49 03 25 2d 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 use of the chemicals at issue and s 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 Kelly v AME g Janitorial Services Co 091167 pp 3 4 La App 4th Cir 3 33 10 3d So 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 negligent conduct and the s chemical products used The plaintiff in a negligence case may meet his 6 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 051263 p 5 n La 2 07 17 1 950 So 557 560 n 2d 2 15 burden of proof by presenting both direct and circumstantial evidence Cangelosi v Our Lady ofthe Lake Reg Med Or 564 So 654 664 La 2d on 1990 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 062306 p 6 La App 1 st Cir 9 970 So 1038 1043 writ denied 07 2052 La 12 07 19 2d 07 14 970 So 535 The doctrine permits the inference of negligence from the 2d surrounding circumstances and merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available Cangelosi 564 So at 665 2d 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 1355 1362 La 1992 2d 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 s defendant 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 7 With regard to the first element as defendants 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 992181 99 2257 p 18 n La 2 6 00 29 755 So 226 236 n 2d 6 16 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 custody would not have caused s the symptoms of which plaintiffs complained In the absence of specific facts and circumstances from which One Hour negligence and a causal link s 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 260 262 n La App 4th Cir 1975 2d 2 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 Bradham v Union Carbide 07 919 pp 7 10 g 8 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 Moritz was insufficient to satisfy plaintiffs burden of proof and to defeat summary judgment See Landreneau v Copeland Cheese Cake Bistro L s C 08 647 pp 5 7 La App 5th Cir 1 7 So 703 70607 09 13 3d 17 La App 5th Cir 5 985 So 846 85051 writ not considered 08 08 27 2d 1956 La 10 994 So 527 and Alex v Dr X 961196 pp 1214 08 31 2d La App 3rd Cir 3 692 So 499 50607 97 5 2d 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 posthearing discovery of a One Hour business card upon which Mr McMillin identified the NuCalgon product used as Nu Calgon Evap Pow rC rather than Evap Pow rRTU and an updated MSDS for Evap Pow rRTU 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 the hen 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 art 1972 The standard of review of a P 2 judgment on a motion for new trial whether on peremptory or discretionary grounds is that of abuse of discretion Magee v Pittman 981164 p 19 La App 1st Cir 5 761 So 731 746 writ denied 001694 La 00 12 2d 00 22 9 768 So 31 The breadth of the trial court discretion to order a 2d s new trial varies with the facts and circumstances of each case Horton v Mayeaux 051704 p 11 La 5 931 So 338 344 06 30 2d 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 18 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 1 st Cir 4 672 So 277 28283 96 2d The information related to the use of NuCalgon Evap Pow and rC Mr McMillin writing of that product name on his business card was not s s 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 rC was used rather than Evap Pow Pow rRTU Thus such information was not newly discovered evidence and plaintiffs made no showing that the MSDS for Evap Pow rC 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 rRTU As emphasized by plaintiffs the revised MSDS does set forth some differences and more detail regarding potential health hazards and exposure controlspersonal protection than does the older 2006 MSDS For example 9 The MSDS for Evap Pow and the revised MSDS for Evap Pow rC rRTU were neither certified nor attached to Mr Thomas affidavit submitted with his motion for new trial s 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 consideration the documents may be considered the subject of a s stipulation or joint admission See e Boland v West Feliciana Parish Police Jury 03 g 1297 p 6 La App 1 st Cir 6 878 So 808 814 writ denied 04 2286 La 04 25 2d 04 24 11 888 So 231 2d 19 the revised MSDS cautions that ingestion m cause stomach distress ay nausea or vomiting a significant change from the 2006 MSDS The revised MSDS also warns that elxcessive intentional inhalation may cause respiratory tract irritation and central nervous system effects headache dizziness and that s of overexposure may be headache ymptoms dizziness tiredness nausea and vomiting Emphasis added 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 on a scale of 0 minimal of Evap Pow rRTU as I slight severe to 4 More importantly defendants submitted an excerpt from Mr s McMillin deposition in which he confirmed that the NuCalgon 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 rC had the same health hazard rating of I slight as Evap Pow rRTU posing a possible risk of only minor and transient effects He concluded that even if Evap Pow rC 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 OR 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 21
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