Summary Calendar MARY MEDLIN v. Afton Newman

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30460
Summary Calendar
MARY MEDLIN
Plaintiff-Appellant
v.
AFTON NEWMAN; EMPIRE FIRE & MARINE INSURANCE CO.; UNIVAR
USA INC., formerly known as Vopak USA Inc.
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:03-CV-113
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In this diversity action applying Louisiana law, Mary Medlin contests the
summary judgment awarded Afton Newman and Empire Fire and Marine
Insurance Company against Medlin’s claims of injurious exposure to the toxic
fumes of hydrochloric acid.
United States Court of Appeals
Fifth Circuit
F I L E D
November 27, 2007
Charles R. Fulbruge III
Clerk

-- 1 of 3 --

No. 07-30460
2
Newman was driving a tractor-trailer truck, loaded with 12 300-gallon
plastic totes of hydrochloric acid, on Interstate 10 in Louisiana on 16 November
2001. Newman pulled onto the shoulder of the interstate after being alerted by
the driver of another truck that fluid was leaking from his truck. He contacted
proper authorities and later learned three totes of hydrochloric acid had
ruptured. Medlin alleges she was exposed to toxic fumes while stopped directly
behind Newman’s truck.
On 19 April 2007, summary judgment was granted for failure to meet a
threshold burden of showing exposure to injurious hydrochloric acid fumes. (Of
the several plaintiffs who filed this action, only Medlin appeals.) The district
court held: Medlin failed to submit any evidence, other than self-serving
testimony, that she was exposed to harmful levels of hydrochloric acid; and, an
unsupported self-serving declaration is inadequate to overcome a motion for
summary judgment.
A summary judgment is reviewed de novo, applying the same standard as
the district court. Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 991-92
(5th Cir. 2005). Such judgment is proper if, viewing the evidence in the light
most favorable to the nonmovant, there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law. Id. at 992; FED.
R. CIV. P. 56(c).
Medlin maintains, inter alia: the district court disregarded material
summary-judgment evidence; and the summary-judgment evidence supports all
of the essential elements of her claim. These contentions fail. Essentially for the
reasons stated in the district court’s opinion, summary judgment was proper.
Neither testimony from her treating physician nor testimony from other
medical reports support Medlin’s claim of exposure to harmful levels of
hydrochloric acid. The record lacks admissible technical expert testimony
corroborating exposure and contains only self-serving testimony that might

-- 2 of 3 --

No. 07-30460
3
support Medlin’s claims. Unsupported assertions are insufficient to defeat a
motion for summary judgment. Clark v. America’s Favorite Chicken Co., 110
F.3d 295, 297 (5th Cir. 1997).
Medlin asserts she is entitled to a presumption of causation in support of
her claim. Under Louisiana law, such a presumption arises if the following
elements are met: (1) the claimant was in good health prior to the accident; (2)
commencing with the accident, the symptoms of the disabling condition
appeared and continuously manifested themselves afterwards; and (3) medical
evidence shows there is a reasonable possibility of a causal connection between
the accident and the disabling condition. Housley v. Cerise, 579 So. 2d 973, 980
(La. 1991).
The presumption is inapplicable here because, as the district court
determined, Medlin could not even show as a threshold matter that there was
an “accident”, i.e. that she was exposed to a harmful substance. Furthermore,
the presumption does not apply because Medlin failed to offer medical evidence
showing the possibility she developed disabling conditions due to the
hydrochloric acid leak.
For the first time on appeal, Medlin asserts she is entitled to damages
under a nuisance theory based on noxious smells to which she was allegedly
exposed. In reviewing a summary judgment, this court will consider only those
claims presented to the district court. See Keelan v. Majesco Software, Inc., 407
F.3d 332, 339 (5th Cir. 2005).
AFFIRMED.

-- 3 of 3 --