Attorneys for the E.I Du Pont have filed a motion in limine which seeks to block plaintiffs in the pending litigation against the Ascension Parish plant from citing reports of prior leaks and regulatory proceedings against DuPont “not related to the gas leaks” at the Burnside facility.
DuPont’s motion is particularly timely in that it was filed only four days after the deaths of four DuPont workers following a toxic gas release at a Du Pont plant in La Porte, Texas.
Limine (lim-in-nay) is Latin for “threshold,” and is a motion made at the outset of a trial that requests that the presiding judge rule that certain evidence may not be introduced in trial.
A 22-year employee of DuPont’s Burnside plant filed a confidential lawsuit in the Middle District Federal Court in Baton Rouge two years ago which became known only last March that claims the plant has consistently been experiencing toxic gas leaks on almost a daily basis for more than two years without reporting the leaks to the Environmental Protection Agency (EPA) as required by the Toxic Substances and Control Act (TSCA) of 1976. http://louisianavoice.com/2014/03/31/whistleblower-claims-duponts-burnside-plant-has-been-leaking-carcinogenic-sulfer-trioxide-more-than-two-years/
Plaintiff Jeffrey M. Simoneaux, an Ascension Parish native who served for 14 years as chairman of the plant’s Safety, Health and Environmental Committee, also claims he was harassed, intimidated and denied promotions after he said he complied with DuPont’s own internal procedures for reporting a leak of sulfur trioxide (SO3) gas, a known carcinogen which is regulated under the Toxic Substance Control Act (TSCA) of 1976 and was reprimanded for doing so.
The case, should it go to trial, would be heard by Federal District Judge Shelly Dick and Magistrate Judge Stephen Riedlinger.
Simoneaux, who filed his suit under the 151-year-old False Claims Act (FCA), has listed as trial exhibits documents pertaining to leaks and releases at other DuPont plants, some of which have resulted in settlements with the government. He also has listed documents as yet to be obtained from various EPA offices through Freedom of Information Act requests that seek information about enforcement actions against DuPont.
“Because the exhibits regarding other leaks and enforcement actions do not relate to the leaks at the Burnside facility, (Simoneaux), his counsel and witnesses should be prohibited from mentioning, in any manner in the presence of the jury, such leaks, releases or regulatory proceedings,” said DuPont attorneys Monique Weiner and Lori Waters of the New Orleans firm of Kuchler, Polk, Schell, Weiner & Richeson in their memorandum that accompanied the actual motion.
“Evidence of leaks at other DuPont facilities and/or regulatory action against DuPont arising from situations not involving the gas leaks at the Burnside facility is irrelevant to the issues for determination by the jury in this case,” the motion says.
“DuPont will object to the introduction of such exhibits at trial as they are sought to be used or introduced,” it says. “But in advance of trial, DuPont seeks an order that counsel and the witnesses may not refer to these matters in questioning, testimony, during opening statement or in closing argument.”
The motion cited United States v. Beechum, a 1978 case which the defense attorneys say “requires a showing that the prior acts sought to be introduced are ‘relevant to an issue other than the defendant’s character. At the heart of this relevance inquiry is a question of similarity: ‘The relevance…must be determined with respect to the particular issue…”
The motion said that even if the court determines there is relevance, “the evidence would be confusing, prejudicial and a waste of time.”
A seven-member team of investigators from the Chemical Safety Board, the Occupational Safety and Health Administration (OSHA), and the Chemical Safety Board have already begun looking into the La Porte deaths of the four men, including two brothers. Among the first discoveries:
- The men had been trapped for an hour by the poisonous methyl isocyanate for an hour before anyone at the plant called 911 at 4:13 a.m.;
- It is unclear if the workers killed had any advance knowledge or warning of the degree of toxicity inside the unit;
- Methyl isocyanate (MIC) is the same chemical that escaped a Bhopal, India, plant in 1984, killing more than 2,200 people;
- Workers lacked quick access to breathing equipment that would have given them a chance at survival;
- No DuPont official contacted a special emergency industrial response network called the Channel Industries Mutual Aide (CIMA), a nonprofit set up to deal with just such disasters;
- It took 12 hours before DuPont confirm the four deaths;
- DuPont never disclosed the size of its toxic inventory in reports filed annually with the La Porte emergency management officials;
- Volunteer firefighters from nearby Deer Park who responded to the company’s 911 call were forced to rely on word-of-mouth to confirm quantities of the chemical leaked from the plant.
One other fact that could be crucial to Simoneaux’s case should Judge Dick deny the motion in limine and allow testimony about safety concerns at other plants:
The unit where the La Porte workers died had been shut down for five days before the Nov. 15 accident and workers had for months reported persistent maintenance problems, including inadequate ventilation in the unit.
Around 3:15 a.m., Gilbert Tisnado, 48, called his wife on his cell phone to tell her something had gone wrong in the unit. When he learned that his younger brother, Robert, 39, was among four men trapped in the unit, he grabbed an “escape pack” and entered the unit. Both brothers were among the four who subsequently died.
Firefighters found three bodies but only two tanks and masks inside the plant. Each was equipped with only five minutes of air—time for an emergency escape but not for a rescue mission.
Though the 911 call from DuPont was made at 4:13 a.m., more than two hours went by before “fenceline” air monitoring was conducted to learn if hazardous levels of chemicals had escaped the plant, leaving the community dependent upon DuPont to know if it was safe to go outside.
It also was unknown if DuPont even had any comprehensive toxics fenceline monitoring, said Adrian Shelley, director of the Air Alliance Houston advocacy group.
The refining industry, especially, has balked at calls for continuous fenceline monitoring, which provides streams of data about what gases are leaving a plant but can cost tens or hundreds of thousands of dollars, Shelley said. A U.S. Environmental Protection Agency rule that would require such systems at refineries is under review. Even if adopted, it wouldn’t apply to the DuPont plant because it doesn’t refine fossil fuels.
Simoneaux filed his lawsuit more than two years ago, on April 16, 2012, but because it was filed under seal, meaning it was not released to the media, its existence, along with DuPont’s October 2013 answers to discovery, has only recently been made public.
Simoneaux said DuPont identified gas leaks to which it will respond “only by visible assessment and (it) has no monitors at equipment sites.”
DuPont, headquartered in Wilmington, Del., was ranked 72nd on the Fortune 500 in 2013 and reported 2012 profits of nearly $2.8 billion, down more than 19 percent from 2011, according to a report by CNN Money.
Despite profits from its worldwide operations which employ 60,000 people, DuPont has for years avoided paying any federal income taxes.
The company has contributed more than $21,000 to various state politicians since 2003, including $4,500 to Gov. Bobby Jindal. Its plants in Burnside and in St. John the Baptist Parish have been granted more than $21 million in various state tax credits.
Those included, in order, the project, the year, parish, total investment, tax exemption and number of new jobs created:
- Plant expansion, 2010, St. John the Baptist, $93 million $1.4 million five-year tax credit, 11 new jobs;
- Plant expansion, 2008, St. John the Baptist, $58.8 million, 10-year property tax exemption of $10.9 million, five new jobs;
- Retrofit project, 2010, Ascension, $72.2 million, 10-year property tax exemption, $541,000, three new jobs;
- Miscellaneous capital addition, 2010, St. John the Baptist, $1.3 million, 10-year property tax exemption, no new jobs;
- Plant addition, 2009, St. John the Baptist, $6.7 million, 10-year property tax exemption of $1.2 million, no new jobs;
- Plant addition, 2009, Ascension, $45 million, 10-year property tax exemption, no new jobs.