* Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-30329

Summary Calendar

___________________

SONYA JONES; KIM BROWN, THOMAS BENNETT,

TROY LOCKLEAR, ETHEL HUDSON, ET AL.,

Plaintiffs-Appellants,

versus

DOW CHEMICAL COMPANY, THE PEOPLE’S

WATER SERVICE COMPANY OF LOUISIANA, INC.

Defendants-Appellees.

----------------------------------

MURRAY CHASE; RUDY BALL; KEVIN BOYD; LEON BURB;,

 Plaintiff-Appellants,

versus

DOW CHEMICAL COMPANY,

 Defendants-Appellees.

 

Appeals from the United States District Court

for the Middle District of Louisiana

(95-CV-453)

 

February 3, 1997

Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.*

GARWOOD, Circuit Judge:
1 The BLFWD pumping station at Donaldsonville pumps water from

the Mississippi River into Bayou Lafourche, which has no other

connection to the river.

2

Toxic tort plaintiffs appeal the district court’s grant of

summary judgment. We affirm.

Facts and Proceedings Below

On the morning of December 19, 1993, a quantity of

perchloroethylene, assertedly a potentially dangerous chemical, was

accidentally spilled at the Plaquemine plant of defendant-appellee

Dow Chemical Company (Dow). Dow was able to contain most of the

spill, but despite its efforts approximately 74.1 gallons (1001

pounds) of the chemical escaped into the Mississippi River. Upon

learning of the spill Dow began containment efforts and contacted

the appropriate governmental authorities. In addition, pursuant to

prearranged procedures downriver water intake systems, including

the Bayou Lafourche Fresh Water District (BLFWD), were notified of

the spill.1 The BLFWD shut down its pumps at around 6:30 p.m. on

the 19th, shortly after receiving its notification.

Defendant-appellee Peoples’ Water Service Company of

Louisiana, Inc. (Peoples’), which provides the water supply for the

people of Donaldsonville, is the first water intake on Bayou

Lafourche downstream from the BLFWD pumping station at the

headwaters of the bayou. Peoples’ does not draw its water directly

from the Mississippi River, and the only way water from the river

makes its way into the bayou is when it is pumped there by the
2 Jones plaintiffs and Chase plaintiffs are represented by the

same attorney.

3 This litigation has not been certified as a class action under

Fed. R. Civ. Pro. 23.

4 This standard is the level considered safe by the EPA for

lifetime exposure in drinking water.

3

BLFWD pumping station. The pumping station is about thirty-five

miles down river from the site of the spill.

On January 25, 1994, Sonya Jones and other plaintiffs (Jones

plaintiffs) filed suit against Dow and Peoples’ in state court.

Jones plaintiffs sought recovery for personal injuries, emotional

distress, and inconvenience due to a cutoff of drinking water

occasioned by the spill; in addition, Jones plaintiffs sought

punitive damages under LSA-C.C. art. 2315.3. A similar lawsuit was

filed by Murray Chase and other plaintiffs (Chase plaintiffs) on

December 19, 1995.2 Both of these cases were removed to federal

district court and ultimately consolidated in the Middle District

of Louisiana.

Discovery ensued, and Dow filed motions for summary judgment

against both Jones plaintiffs and Chase plaintiffs.3 In support of

these motions Dow produced affidavits asserting that water samples

taken after the spill revealed that the maximum concentration of

perchloroethylene in the river at any location downstream of the

spill was less than 0.5 part-per-billion, far less than the safe

drinking water standard for perchloroethylene of five parts-perbillion established by the Environmental Protection Agency.4
4

Similar testing in Bayou Lafourche did not indicate the presence of

any amount of the chemical. In addition to this information and

related summary judgment evidence that the local population faced

no risk of harm from this spill, Dow produced newspaper reports and

transcripts of television broadcasts from local news agencies

concerning the spill, none of which indicated any threat of danger

to the population downriver from the Dow facility. Dow and

Peoples’ also submitted summary judgment evidence that neither

Peoples’ nor the Assumption Parish Waterworks District No. 1 (which

served Napoleonville, some fourteen miles downstream of

Donaldsonville on Bayou Lafourche) had cut off water service.

Jones plaintiffs and Chase plaintiffs filed six affidavits

into the record, each made by a named plaintiff. These affidavits

related a fairly identical story, i.e., that the residents of

Donaldsonville, after learning about the spill through the media,

had stopped using tap water and begun purchasing bottled water due

to a fear of drinking contaminated water. All of the affidavits

save that of Jones herself suggested that water service in

Donaldsonville had continued uninterrupted after the spill; Jones,

however, averred that “[h]er water was . . . shut off as a result

of the spill.” Affidavits, pressure charts, and other

documentation filed by Dow and Peoples’ contradicted Jones’ vague

assertion that the water supply was interrupted at any time due to

the spill.
5

In response to Dow’s proffered summary judgment evidence

regarding the actual risk of harm posed by the spill, Jones

plaintiffs stipulated to a dismissal of most of their claims. This

stipulation was incorporated into an order of the district court

granting Dow partial summary judgment on all of Jones plaintiffs’

claims except those “for inconvenience associated with interrupted

water service and . . . punitive or exemplary damages.” Chase

plaintiffs opted not to file such a stipulation. None of the

plaintiffs questions the stipulation on this appeal. In response

to Dow’s motion for summary judgment, Chase plaintiffs conceded

that Dow was entitled to summary judgment on the issues of physical

harm (and they do not contend otherwise on appeal). Chase

plaintiffs, however, continued to assert the viability of their

claims for inconvenience, fear of harm from contamination, and

punitive damages.

The district court heard arguments on the two motions for

summary judgment on February 14, 1996. After hearing oral

argument, the district court indicated on the record that, due to

the paucity of the plaintiffs’ evidentiary proffer, he was going to

grant the defendants’ motions in toto and dismiss all remaining

claims. On February 23, 1996, the district court entered a

judgment dismissing the plaintiffs’ remaining claims. Plaintiffs

timely appeal the district court’s judgment.

Discussion
6

“[T]he party moving for summary judgment must demonstrate the

absence of a genuine issue of material fact, but need not negate

the elements of the nonmovant’s case.” Little v. Liquid Air Corp.,

37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis in original)

(citations omitted) (internal quotation marks omitted). Once the

movant has met this burden, the burden shifts to the nonmovant to

go beyond the pleadings and designate, by competent summary

judgment evidence, specific facts which demonstrate genuine triable

issues. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553-2554

(1986). The nonmovant’s burden “is not satisfied with some

metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a scintilla

of evidence.” Little, 37 F.3d at 1075 (citations omitted)

(internal quotation marks omitted). In reviewing a district

court’s grant of summary judgment we consider the record de novo.

Wittorf v. Shell Oil Co., 37 F.3d 1151, 1154 (5th Cir. 1994). The

district court’s application of Louisiana law, which governs this

case, is also subject to de novo review. Salve Regina College v.

Russell, 111 S.Ct. 1217 (1991).

Plaintiffs challenge the district court’s ruling that they

have not presented any evidence which would support an award of

punitive damages. Civil Code article 2315.3 provides for the award

of exemplary damages “if it is proved that plaintiff’s injuries

were caused by the defendant’s wanton or reckless disregard for
7

public safety.” Plaintiffs have completely failed to point to any

fact or circumstance indicating that Dow acted with “wanton or

reckless disregard for public safety.” On the contrary, the record

indicates that quite the opposite is true. Compare Landry v.

Uniroyal Chemical Co., Inc., 94-1274 (La.App. 1 Cir. 3/3/95), 653

So.2d 1199, writ denied, 95-1381 (La. 9/15/95), 660 So.2d 461;

Lasha v. Olin Corp., 91-459 (La.App.3 Cir. 3/2/94), 634 So.2d 1354;

Fuselier v. Amoco Production Co., 607 So.2d 1044 (La.App.3 Cir.

1992). For this reason, plaintiffs’ argument fails.

Plaintiffs next argue that once the district court dismissed

the punitive damages claim it should have then remanded the

remaining state law claims to state court. Plaintiffs, correctly,

do not contend that original removal jurisdiction was lacking;

rather, they argue that once the punitive damages claim was removed

from the damages calculation their combined claims totaled less

than the jurisdictional amount, rendering the district court’s

continued exercise of diversity jurisdiction nugatory. This

contention is specious. Once the punitive damages claim was

dismissed, the district court enjoyed supplemental jurisdiction

over the remaining state law claims. 28 U.S.C. § 1367. The

district court’s decision to retain and adjudicate these claims was

fully within his discretion. Eastus v. Blue Bell Creameries, 97

F.3d 100 (5th Cir. 1996); Hubbard v. Blue Cross & Blue Shield

Ass’n, 42 F.3d 942 (5th Cir. 1995); John G. and Marie Stella
8

Kennedy Memorial Foundation v. Mauro, 21 F.3d 667 (5th Cir. 1994).

Plaintiffs claim that a genuine issue of material fact exists

regarding whether Peoples’ cut off the area water supply after the

spill. Of the six affidavits submitted by plaintiffs, only that of

Jones suggests that this occurred. Even Jones’ affidavit, however,

does not expressly relate who shut off her water (or where it was

shut off), nor does she aver specific facts demonstrating the

alleged causal nexus between the spill and any cessation of water

service. A plenary review of the affidavits submitted by both

plaintiffs and defendants and Peoples’ documentary evidence showing

its continuing operation after the spill leads us to the conclusion

that the plaintiffs have presented at most only a “scintilla” of

evidence that Donaldsonville’s (or Napoleonville’s) water service

was ever interrupted, much less that it was interrupted due to the

spill. Counsel for Jones plaintiffs admitted to the court at the

summary judgment hearing “I have to concede that we cannot prove

that the water was shut off at Peoples’.” Jones’ conclusory

affidavit averment——which is essentially contradicted by her prior

deposition testimony, without any explanation for the

contradiction——is insufficient to overcome Dow’s motion on this

issue.

Plaintiffs further argue that even if, as the evidence

indicates, the plaintiffs opted to cut off their own water service,

they are nonetheless entitled to general damages for the resulting
9

inconvenience. We conclude that this claim is barred because under

the facts of this case Louisiana law affords these plaintiffs no

remedy for their alleged injuries.

Under Louisiana law, a plaintiff can recover on a claim of

inconvenience only if the inconvenience rises to the level of being

excessive. Irby v. Panama Ice Co., 184 La. 1082, 168 So. 306, 309

(1936) (inconvenience must be “excessive and unreasonable”). See

also Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La. 1975). To

determine whether an inconvenience is excessive, a court is to

employ an objective standard which measures whether the

inconvenience would produce actual discomfort and annoyance to an

average person of ordinary sensibilities. See McGee v. Yazoo &

Miss. R.R., 106 La. 121, 19 So.2d 21, 25 (1944); Woods v.

Tuberville, 168 So.2d 915 (La. App. 2d Cir. 1964). If the

inconvenience is not excessive under the circumstances, there is no

relief; it is a mere inconvenience. See Constance v. State of

Louisiana, 626 So.2d 1151 (La. 1993), cert. denied, 114 S.Ct. 2706

(1994); State Through DOTD v. Chambers Inv. Co., 595 So.2d 598 (La.

1992).

Applying the above objective standard to the facts and

circumstances of the present case, we conclude that the only

inconvenience to the plaintiffs shown by the summary judgment

evidence does not rise to the level of excessiveness. There was no

perchloroethylene detectable in Bayou Lafourche (the source of the
10

plaintiffs’ water) and the level of perchloroethylene in the

Mississippi River was far less than the safe drinking water

standard for perchloroethylene. Local media reported that there

was no risk of harm from the spill to the downriver population, and

water service was never cut off.

Finally, we turn to plaintiffs’ claims for reimbursement of

the price of bottled water allegedly purchased due to fear arising

from the spill. This claim seeks compensation for an economic

loss, yet it is wholly unrelated to any physical injury to person

or property and is wholly caused by plaintiffs’ mental state of

fear. The policy considerations underlying our decision in Neesom

v. Tri Hawk Int’l, 985 F.2d 208 (5th Cir. 1993), dictate rejection

of this claim, as well as of the inconvenience claim. As we stated

in Nesom, “[t]o sanction the theory of recovery argued here, would

open the door to thousands of plaintiffs who claim that they have

suffered damages caused by fear of possible exposure to some

dangerous substance or another without even proof of actual

exposure to that danger.” Nesom, 985 F.2d at 211. See PPG

Industries, Inc. v. Bean Dredging, 447 So.2d 1058, 1061 (La. 1984)

(citation omitted) (internal quotation marks omitted) (tortfeasor

should not be responsible for economic damages when “imposition of

responsibility on the tortfeasor for such damages could create

liability in an indeterminate amount for an indeterminate time to

an indeterminate class”). Dismissal would also be in accordance
11

with Louisiana’s policy “against compensation for purely economic

loss not the result of either bodily harm to the claimant or

physical injury to property in which claimant has a proprietary

interest.” Great Southwest Fire Ins. Co. v. CNA Ins. Companies,

557 So.2d 996, 970 (La. 1990). See also Community Coffee Company,

Inc. v. Tri-Parish Construction & Materials, Inc., 490 So.2d 1109

(La.App.1 Cir. 1986).

With the foregoing policy considerations in mind, we turn to

the question of Dow’s duty to the plaintiffs. In Louisiana,

“[d]uty-risk analysis is still the usual method by which a court

should determine which risks are compensable and which are not.”

Roberts v. Benoit, 605 So.2d 1032, 1057 (La. 1991) (on rehearing).

This analysis to some extent conflates the traditional tort law

elements of duty and proximate cause by asking if the scope of the

defendant’s duty includes the particular risk of injury and nature

of the loss suffered by plaintiff. Mart v. Hill, 505 So.2d 1120,

1122 (La. 1987). See also Pitre v. Opelousas General Hosp., 530

So.2d 1151, 1155 (La. 1988). The duty-risk approach arises out of

a realization that “[r]ules of conduct are designed to protect some

persons under some circumstances against some risks” and that

“[p]olicy considerations determine the reach of the rule.” PPG

Industries, 447 So.2d at 1061. This duty-risk inquiry, while cast

as a question of law, is nevertheless a case-by-case inquiry

dependent upon the particular circumstances presented. Roberts,
12

605 So.2d at 1055.

In this case, we conclude that the risk that the plaintiffs

would voluntarily shut off their own water supply and buy bottled

water in response to news reports of this chemical spill does not

fall within the scope of Dow’s duty when the plaintiffs in fact

faced no risk of physical harm and encountered no circumstances

which would cause a reasonable person to fear such a risk. We

reach this conclusion in reliance upon policy considerations

articulated by the Louisiana Supreme Court and reflected in our

opinion in Nesom (applying Louisiana law) regarding the allowable

scope of recovery for economic damages in the absence of

accompanying injury to person or property. Nesom, 985 F.2d at 211;

Southwest, 557 So.2d at 970; PPG Industries, 447 So.2d at 1061-

1062. “Because the list of possible victims and the extent of

economic damages might be expanded indefinitely, the court

necessarily makes a policy decision on the limitation of recovery

of damages.” PPG Industries, 447 So.2d at 1061-1062. The

plaintiffs’ claims for reimbursement fail.

For these reasons, the judgment of the district court is

AFFIRMED.