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Archive for March, 2014

“Better Living Through Chemistry.”

—Advertising campaign slogan employed by DuPont from 1935 until 1982.

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A 22-year employee of the E.I. DuPont de Nemours (DuPont) plant in Burnside in Ascension Parish has filed a confidential lawsuit in Middle District Federal Court in Baton Rouge 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 as required by a 151-year-old federal law.

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.

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 tax credits and exemptions by the state.

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, five-year property tax credit of $541,000, three new jobs;
  • Miscellaneous capital addition, 2010, St. John the Baptist, $1.3 million, 10-year property tax exemption of $232,000, 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 of $6.9 million, no new jobs.

The case has been referred to Federal District Judge Shelly Dick and Magistrate Judge Stephen Riedlinger, according to court documents.

Simoneaux terminated his employment with DuPont on Aug. 13, 2012, he said.

The most recent filing is a Feb. 21, 2014 Response to State of Uncontested Facts submitted by Simoneaux who is represented by Baton Rouge attorneys Jane Barney and J. Arthur Smith, III.

In that filing, Simoneaux claims that DuPont failed to inform the Environmental Protection Agency of the numerous SO3 leaks by the plant despite its proximity and potential threat to an elementary school, Sorrento Primary School, a residential subdivision and the Mississippi River.

He filed his suit under the 151-year-old False Claims Act (FCA), passed by Congress in 1863 because of concerns that suppliers of goods to the Union Army during the Civil War were defrauding the Army.

Under FCA, DuPont should be subjected to mandatory fines of $25,000 per violation per day plus “recovery of three times the amount of damages sustained by the U.S., and an award of attorney’s fees.”

Simoneaux claims that plant manager Tom Miller became irate when Simoneaux attempted to slow the plant production rate so as to reduce the leakage on Feb. 1, 2012. Miller, he said, overrode his decision and said he wished to speak to Simoneaux alone.

Simoneaux said he would prefer to have another operator present during his conversation with Miller, but the plant manager would not allow it.

Miller subsequently berated Simoneaux for sending an email to his supervisor, Elizabeth Cromwell, and directed him “not to send any more written communications about leaks or stack capacity.” Simoneaux said that Miller “clearly advised” him that should he send future emails to Miller about any offsite release, he would “get in trouble.”

He said he advised Miller that the leak was going offsite as they were speaking but that Miller three separate times refused to ride with Simoneaux to the rear of the plant so that Miller could see for himself the gas, visible as a light blue mist, “flowing over the fence line.”

He said he asked Miller where he thought the gas was going and Miller “looked out the door and said, ‘Who is the plant manager, me or you? I’m telling you I don’t see any gas going off the site.’”

Simoneaux said to properly repair the leaks, the plant should be completely shut down so repairs could be made. Instead, temporary stop-gap measures were attempted utilizing a rubber suction hose that deteriorated quickly because of the acid contained in the lines.

On April 11, 2012, Simoneaux again observed a cloud of leaking SO3 and entered the information in a log book, again provoking Miller’s anger. “The plant manager said he did not want someone ‘coming in her to do an environmental audit and coming across this stuff written in this log book, reading it and getting the wrong idea.”

Simoneaux also said that Miller, during an employee meeting, verbally discouraged employees from calling authorities about the gas leak. He also said an investigation was conducted by management and their report “states that there was no on-site impact and no off-site impact, giving a score of zero to both issues” despite the fact that one employee was treated for eye and throat irritation after being exposed to one leak.

A contract worker also was burned when acid dropped onto him from the rubber hose, the petition says.

A Material Safety Data Sheet was submitted as an exhibit by Simoneaux’s attorneys and provides information under both potential acute and chronic health effects of exposure to SO3.

Potential Acute Health Effects:

  • Very hazardous in case of skin contact, eye contact, ingestion or inhalation. Liquid or spray mist may produce tissue damage, particularly on mucous membranes, of eyes, mouth and respiratory tract. Skin contact may produce burns. Inhalation of the spray mist may produce severe irritation of respiratory tract, characterized by coughing, choking or shortness of breath. Severe over-exposure can result in death. Inflammation of the eye(s) is characterized by redness, watering and itching. Skin inflammation is characterized by itching, scaling, reddening, or occasionally, blistering.

Potential Chronic Health Effects:

  • Carcinogenic Effects: Classified 1 (proven for human). The substance may be tozic to mucous membranes, skin, eyes. Repeated or prolonged exposure to the substance can produce target organs damage. Repeated or prolonged contact with spray mist may produce chronic eye irritation and severe skin irritation. Repeated or prolonged exposure to spray mist may produce respiratory tract irritation leading to frequent attacks of bronchial infection. Repeated exposure to a highly toxic material may produce general deterioration of health by an accumulation in one or many human organs.

DuPont, as might be expected, denied Simoneaux’s claims but in its response to Simoneaux’s first set of requests for production of documents, standard procedure in any civil litigation under the rules of discovery, the company made several glaring admissions that tend to substantiate Simoneaux’s claims and deposition testimony of several of Simoneaux’s former co-workers at DuPont’s Burnside plant:

  • Asked to produce all TSCA notifications, the company admitted it “has no responsive documents.
  • Asked to produce “every unedited ‘First Report’ pertaining to gas leaks prepared since December of 2011,” DuPont “objects to the term “unedited” as vague (and) calls for speculation and assumes facts not in evidence.”
  • Asked to produce all documents subsequent to Nov. 1, 2011 exchanged with or concerning any governmental agency, or authority, including school, police, fire, any insurance company or environmental authorities or agencies pertaining to an actual or potential gas leak, DuPont indicated it believed there were no such documents.
  • Asked to produce all documents reflecting impacts to employees or others from a gas leak at the Burnside plant, DuPont objected on the grounds that it seeks privileged medical information.
  • Asked to produce all documents reflecting complaints of gas leaks from the Burnside plant since Dec. 1, 2011, DuPont objected, claiming that the word “complaint” was not defined and is vague.
  • Asked to produce documents pertaining to communications from Dec. 2, 2011 to the present involving DuPont personnel regarding whether or not to report a gas leak to governing authorities, the need for a plant shutdown and/or precautions or responsive measures to be taken in light of gas leaks, DuPont cited attorney-client privilege.
  • Asked to produce all emails exchanged between Miller and ‘DuPont corporate’ and/or any of Miller’s DuPont superiors concerning leaks, environmental conditions and/or safety conditions at the Burnside facility from Dec. 1, 2011 to present, DuPont claimed the request was “overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.”
  • Asked to produce all documents pertaining to health effects, risks, studies, tests or hazards associated with SO3 and/or SO2 gas, DuPont claimed the request was “overly broad and unduly burdensome.”
  • Asked to produce the log book maintained by operators from Dec. 1, 2011 to present and to produce the “Safety Zone-Burnside Transfer Facility Security Plan” reported prepared by Simoneaux on Mar. 18, 2012, the company claimed the request were “overly broad and unduly burdensome.”
  • Asked to produce all documents provided to or received from OSHA concerning gas leaks and/or employee exposure or potential exposure from Dec. 1, 2011, to present, DuPont said it “has no such documents responsive to this request.”
  • Asked to produce all documents, including emails, concerning the facts set forth in (Simoneaux’s) complaint, DuPont again invoked the “overly broad and unduly burdensome” claim.

Lonnie Blanchard, a contract worker at the DuPont Burnside facility, testified in his deposition that there were up to two dozen SO3 leaks. He described the leaks as “a real problem” and said on several occasions he could see the cloud of gas escaping from the plant from the Sunshine Bridge that connects the east and west banks of Ascension which is split by the Mississippi River.

Another employee, Percy Bell, testified in his deposition that plant management had issued a policy saying employees were prohibited from taking photographs of the mist clouds.

In his deposition, he was asked, “In the last two years, has there ever been a time when you were working (at the plant) and there hasn’t been a leak?”

“No, I haven’t,” he answered.

Simoneaux said DuPont identified gas leaks to which it will respond “only by visible assessment and (it) has no monitors at equipment sites.”

He added that the stop-gap measure used “is appropriate only for temporary use until permanent repairs can be made” because it is not made of material designed for that purpose and is “known to fail without warning.”

Employees and contractors work in proximity to the leaks on a daily basis with no warning given before there is a visible gas leak. Employees, he said, must watch a windsock at the plant in attempts to stay upwind of any gas leaks in efforts to avoid exposure.

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On Dec. 7, 2010, Discovery Education, a division of Discovery Communications, announced that Louisiana and Indiana had joined Oregon in adopting the Discovery Education Science Techbook as a digital core instructional resource for elementary and middle school science instruction. https://www.discoveryeducation.com/aboutus/newsArticle.cfm?news_id=663

Thanks to a sharp-eyed researcher, Sissy West, who writes a blog opposing the Common Core curriculum, we have learned that on Nov. 30, seven days before the deal between the state and Discovery Education was made public, State Sen. Conrad Appel (R-Metairie) purchased Discovery Communications stock, according to financial disclosure records filed with the State Ethics Board. http://nomorecommoncorelouisiana.blogspot.com/2014/03/crisis-of-confidence.html

Appel is a major proponent of education reform in Louisiana, including the controversial Common Core curriculum.

He also is Chairman of the Senate Education Committee and was in a unique position to know not only of the pending deal between Discovery Education and the Louisiana Board of Elementary and Secondary Education (BESE) as well as the company’s agreement with Indiana and Oregon, as well as Texas and Florida.

The Discovery Education Techbook is touted as a “Core Interactive Text” (CIT) that “separates static text from a fully digital resource.” http://www.discoveryeducation.com/administrators/curricular-resources/techbook/K-8-Science-digital-textbook/index.cfm

Appel’s financial disclosure form indicates his Discovery Communications stock purchase was between $5,000 and $24,999. APPEL REPORT PDF

Discovery Communications is traded on NASDAQ and on the date of Appel’s purchase, the company’s shares opened at $40.96 and closed at $40.78.

And while there was no significant movement in the stock’s prices on the date of and the days following Discovery’s announcement of the agreement with BESE, the stock hit a high of $90.21 per share on Jan. 2 of this year, meaning Appel’s profit over a little more than three years, on paper, was in excess of 100 percent. Put another way, he doubled his investment in three years. The stock closed on Thursday (March 27) at $75.72, still an overall gain of 85 percent Appel.

The most significant thing about Appel’s Nov. 30, 2010, purchase of the Discovery Communications stock is the volume of shares traded on that date. More than 7.5 million shares of Discovery Communications stock were traded that day, more than double the next highest single day volume of 3.1 million shares on Aug. 1, 2011. Daily trading volume generally ran between 1.1 million and 1.9 million shares in a monthly review from December 2010 through March of this year. http://finance.yahoo.com/q/hp?s=DISCA&a=10&b=30&c=2010&d=02&e=28&f=2014&g=m

While there is no way to know with any certainty, it is possible that the Discovery Education’s Techbook deals contributed to the surge of trading activity on Nov. 30.

Appel’s 2012 financial report reveals that he also purchased between $5,000 and $24,999 of Microsoft stock on June 4, 2012, the same date that the Louisiana Legislature adjourned its 85-day session. MICROSOFT

Ten days earlier, on May 25, the Louisiana Legislature approved the implementation of Common Core in Louisiana after the Bill and Melinda Gates Foundation poured more than $200 million to develop, review, evaluate, promote and implement Common Core.

www.gatesfoundation.org/How-We-Work/Quick-Links/Grants-Database

And while no one is suggesting that Appel is involved in any type of illicit behavior or insider trading, the timing of his stock purchases might raise a few eyebrows. It could appear to some as more than coincidental—and ill-advised—that such transactions and official state actions would occur in so close a timeframe not once, but twice, and would involve a single individual who promoted Common Core legislation and who served as chairman of a key legislative committee that dealt with education issues.

Perception, as they say, is everything.

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“The record is replete with instances in which Mr. Begue acted as prosecutor throughout the proceedings, and at times, simultaneously acted as prosecutor, panel member and independent counsel—even ruling on his own objection.”

—Louisiana Fourth Circuit Court of Appeal unanimous decision on Sept. 26, 2012, to reverse the the Louisiana State Board of Dentistry’s 2010 revocation of the license of Shreveport dentist Dr. C. Ryan Haygood.

“Based upon our review of the record, we find that Mr. Begue’s functions of general counsel, independent counsel, prosecutor and fact-finder were so interwoven that they became indistinguishable, which created the appearance of impropriety and deprived the proceedings of the imperative and fundamental appearance of fairness. Therefore, the board’s decision to revoke Dr. Haygood’s license must be reversed.”

—Fourth Circuit Court of Appeal, in that same decision.

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When we wrote on March 7 that the Louisiana State Board of Dentistry (LSBD) functions simultaneously as adjudicator, prosecutor, judge and jury in disciplinary hearings against dental professionals, we were not embellishing or fudging the facts. Quite the contrary; we were being quite literal.

Take the behavior of LSBD legal counsel Brian Begue, for example, in the 2010 hearing on charges brought against former Shreveport dentist C. Ryan Haygood, a Magna Cum Laude graduate of Louisiana Tech University with a degree in molecular biology and the LSU School of Dentistry.

Since 1995, Begue, rather than serve as a staff attorney at a set salary, has received eight separate contracts from the board totaling an eye-popping $2.825 million, including $450,000 for each of the last five three-year contracts.

(And State Sen. Robert Adley, Gov. Bobby Jindal and others are carping about the attorney general hiring a private law firm to pursue that lawsuit against 97 oil and gas companies by the Southeast Louisiana Flood Protection Authority-East? But that’s another story.)

Begue’s role in his capacity as board legal counsel, according to a Sept. 26, 2012, ruling by the Louisiana Fourth Circuit Court of Appeal in New Orleans, is restricted to that of an advisor “who is independent of complaint counsel and who has not participated in the investigation or prosecution of the case.” (Emphasis added.)

The appeal court, in its ruling, noted that Begue “participated in the hearing before the board’s panel both as prosecutor and adjudicator” during Haygood’s hearing before the board. An adjudicator is one who presides, judges and arbitrates during a formal dispute and as such, may rule on evidentiary objections and other procedural questions if so delegated to do so by the board chairman.

Moreover, the court said, the LSBD “condoned Mr. Begue’s behavior and failed to acknowledge Dr. Haygood’s objection that Mr. Begue was overstepping his role in the proceedings.”

The appeal court went even further to say that the board’s hearing record was “replete with instances in which Mr. Begue acted as prosecutor throughout the proceedings, and at times simultaneously acted as prosecutor, panel member and independent counsel,” and noted that in a separate 1997 case, the Louisiana Supreme Court said that the “commingling of prosecutorial and adjudicative functions violates both the letter of the Louisiana Administrative Procedure Act and the due process goals it is designed to further.” The idea of the same person serving as judge and prosecutor “is anathema under our notions of due process. Such a scenario is devoid of the appearance of fairness,” The appeal court said.

To fully appreciate the extent of Begue’s—and by its complicity, the board’s—willingness to disregard any semblance of fairness or due process, consider this gem: the court observed that Begue’s brazen behavior went so far as “even ruling on his own objection.” (emphasis added.)

The absurdity of such actions brings to mind the episode of the old Danny Thomas CBS series Make Room for Daddy in which he launched The Andy Griffith Show. In that episode, Thomas, in the role of Danny Williams, is pulled over for speeding by Griffith in the role of Mayberry Sheriff Andy Taylor. At the courthouse, it turns out that Andy is also the judge and when he imposes a fine, Danny demands to speak to the mayor. “All right,” drawls Andy as he picks up the phone and tells the operator to give him the mayor’s office. A second phone on the desk of the sheriff/judge rings and Taylor picks it up and answers, “Mayor’s office, Mayor speaking.”

Any first-year law student would know an attorney cannot rule on his own objection. That is very definition of a kangaroo court. And if he is not acquainted with that basic rule that every high school debater knows, the practice of law is the last occupation he should be pursuing. Perhaps he would be better suited to cleaning Porta-Johns.

And for that, he holds a $450,000 contract with the board.

But it gets better.

Ten years earlier, in hearings on charges against Dr. Randall Schaffer, Begue had openly violated a Louisiana Supreme Court order to cease participating in board proceedings by serving as both prosecutor and board general counsel. Yet, he continued that same practice in Dr. Haygood’s hearings before the board—and in all likelihood, will again in the next case against some unsuspecting dentist.

Haygood ultimately was convicted on eight separate charges, three of which had been dropped before his hearing took place, a quantum stretch its own right on the part of the board. He was fined $5,000 on each of the eight counts ($40,000) and ordered to pay not only his own attorney fees but those of the board and the fees of board investigator Camp Morrison (combined total of $133,000), for a total financial penalty of $173,000. Additionally, the board ordered permanent revocation of Haygood’s dentistry license.

The activities of board-contracted private investigator Morrison are almost as bad—except he has received eight contracts since 1997 totaling “only” $1.735 million, more than a million dollars less than Begue, but still nothing to sneeze at.

What’s more, the board pushed a bill through the Louisiana Legislature two years ago that allows the board to provide legal representation for Morrison—at the board’s (read: taxpayer) cost, a benefit bestowed upon no other state contractor.

Also, Morrison is provided a rent-free office in the LSBD suite on the 26th floor of One Canal Place in New Orleans, a suite for which the board pays a whopping $4,700 per month in rent.

Occasionally, contract workers for state agencies are provided work space in state offices but that is only for those jobs which cannot be performed offsite. But it is unheard of for a state contractor to be provided legal representation. In fact, the reverse is true. Contractors are required to maintain their own errors and omission insurance and to provide their own legal counsel in case of litigation—and those contracts contain hold harmless clauses, or indemnification, for the state.

So, the question obviously is what did Dr. Haygood do to bring the wrath of the LSDB down upon him?

A better question might be what did Morrison and Begue do?

We will attempt to address the two questions in order.

Apparently, Haygood’s biggest sin was opening offices in Shreveport and Bossier City and initiating an aggressive advertising campaign that resulted in attracting former patients of prominent Shreveport dentist Ross Dies who was one of several defendants named in a federal lawsuit filed by Haygood.

Other defendants include Morrison; unlicensed investigators Karen Moorhead and Dana Glorioso hired by Morrison and who Haygood says posed as patients, giving him false symptoms in order to help Morrison build his case against Haywood; former LSDB executive director Barry Ogden; members of LSBD, and several dentists who Haygood says assisted LSDB in its investigation of him.

The fact that board member Dr. H.O. Blackwood also was a Haygood competitor in the Shreveport area didn’t help, Haygood says in his lawsuit.

Haygood says in his lawsuit that Ogden and Begue were “well aware” at the time Ogden appointed Begue as independent counsel that Begue had already “participated in the investigation or prosecution of the case” against Haygood. “In fact, Begue began discussing the investigation with Morrison as early as April 2007, at the outset of the investigation, and he conducted conversations with Ogden, Morrison and other board members regarding the status of the investigation long before he (Begue) was appointed independent counsel.” Haygood said that as long-time counsel for the board, Begue “was aware that his activities prior to the appointment by Ogden disqualified him for service as independent counsel.”

Haygood said that aggressive, unrestrained investigation tactics employed by Morrison and Begue “create an obligation of the board to pay costs that it is typically unable to pay,” costs that are passed on to the dentist under investigation if he is convicted—and few brought before the board escape without some type of monetary penalty.

“Morrison utilizes coercive and threatening tactics when interviewing witnesses,” Haygood said. While conducting his investigation of Haygood, for example, Morrison appeared at the home of Haygood’s hygienist, Julie Snyder, at 8:30 p.m. during her maternity leave, the lawsuit says. “Finding her home alone with her newborn baby, Morrison told Snyder that he knew that she and Haygood were guilty and pressed her to admit wrongdoing, Haygood says, adding that other dentists “have had to have police officers assist in removing Morrison from their offices after he refused to leave.”

It should be noted that when a dentist is brought before the board for a hearing on charges brought against him, the board is represented by Begue and another lawyer designated as the prosecuting attorney. The dentist, on the other hand, is not allowed to have legal representation before the board.

The Fourth Circuit Court of Appeal, in its September 2012 ruling, noted that board member Dr. Conrad McVea, Jr. directed Morrison “to send people in” to Haygood’s offices. This was the son of former board member Conrad McVea, Sr. who told Dr. Randall Schaffer, who is Jewish, that he could never maintain the professional standard of care in his practice because he had never accepted Jesus as his personal savior. The obvious question here is: are board memberships passed down from father to son like some type of inheritance or family heirloom?

Moorhead was recommended as one of the two unlicensed investigators to pose as patients by Dr. White Graves, a former board member and Moorhead’s employer, the Fourth Circuit decision says.

“Dr. Haygood argues that he was not afforded due process at the hearing before the board,” the appeal court said. “He also contends that during four days of testimony, Mr. Begue ‘repeatedly interfered and zealously advocated on behalf of the board by cross-examining witnesses, supplying objections to complaint counsel, and questioning the credibility of Dr. Haygood.’

“We have comprehensively reviewed the transcripts of the four-day hearing and we agree with Dr. Haygood’s representation of Mr. Begue’s actions.”

The Fourth Circuit’s decision further said that Begue’s “twofold role as prosecutor and adjudicator violated Dr. Haygood’s right to a hearing that is fair and impartial. The type of commingling found in this case is strictly prohibited by the Louisiana Administrative Procedure Act.

“Based upon our review of the record, we find that Mr. Begue’s functions of general counsel, independent counsel, prosecutor and fact-finder were so interwoven that they became indistinguishable, which created the appearance of impropriety and deprived the proceedings of the imperative and fundamental appearance of fairness.

“Therefore, the board’s decision to revoke Dr. Haygood’s license must be reversed,” the ruling said, adding that the board “improperly combined the prosecutorial and judicial functions by allowing its general counsel, Mr. Begue, to serve as the prosecutor, general counsel, panel member and adjudicator for the proceedings. We hold this conduct is violative of the Louisiana Administrative Procedure Act and Dr. Haygood’s due process right to a neutral adjudicator and a fair hearing.”

“We find the Louisiana State Board of Dentistry’s decision to revoke Dr. C. Ryan Haygood’s dental license is arbitrary and capricious; therefore, we reverse the trial court’s judgment (the state district court had earlier upheld most of the board’s actions) which affirmed the revocation of Dr. Haygood’s license and remand this matter to the board for a new hearing.”

Wait. What? Remanded to the board for a new hearing?

Yep. The Haygood matter went right back to the board to be heard by the same panel.

You don’t need three tries to guess the odds of a different outcome for the rehearing. One might have a better chance in Warren Buffett’s $1 billion prize for picking the winner of every game in the NCAA March Madness bracket.

Haygood, realizing he would never receive a fair hearing, much less a different outcome in repeated appearances before the board, finally packed up his chair and drill and moved to North Carolina where he currently practices his trade. But because he refuses to give the board the satisfaction of backing down, his hearing is still pending.

And that is how kangaroo courts work.

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