           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 27, 2009

                                       No. 08-30630                    Charles R. Fulbruge III
                                                                               Clerk

JOYCELYN BALLARD

                                                   Plaintiff-Apellant
v.

BUNGE NORTH AMERICA INC

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                for the Eastern District of Louisiana, New Orleans


Before GARWOOD, OWEN and HAYNES, Circuit Judges.
PER CURIAM:*
       The record as it now stands reflects a fact issue as to whether, on at least
one of the claimed occasions in 2006, plaintiff-appellant Ballard, while
inspecting the grain of defendant-appellee Bunge, suffered some compensable
and more than wholly trivial adverse physical reaction, of at least some more
than wholly momentary duration, as a result of her then exposure to the
presence of phosphine gas or other toxic fumes in the grain being inspected.
Accordingly, the district court erred in granting summary judgment dismissing



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-30630

Ballard’s suit with prejudice. We thus reverse the district court’s judgment and
remand for further proceedings not inconsistent herewith.
                        REVERSED and REMANDED




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                                  No. 08-30630

OWEN, Circuit Judge, concurring.
      I concur in the judgment. I write separately to clarify my understanding
of the current record.
      Based on the record before us, there is evidence that Joycelyn Ballard was
exposed to phosphine gas at a level of 2.5 ppm, and there is a fact question as to
whether the symptoms that Joycelyn Ballard experienced immediately
thereafter that day were caused by this exposure. Ballard’s expert witness
presented competent evidence that exposure to intermittent concentrations of
0.4 to 35 ppm have been linked to diarrhea, nausea, abdominal pain, vomiting,
tightness of the chest, breathlessness, soreness or pain in the chest, palpitations,
headache, dizziness, staggering, skin irritation or burns. There is no indication
of anything other than exposure to phosphine as the cause of Ballard’s symptoms
immediately following her exposure.
      However, there is no competent evidence in the present record that any of
Ballard’s symptoms or illnesses of longer duration or that subsequently
manifested were caused by the exposure to phosphine. Accordingly, although
there is no evidence at present to support Ballard’s claims of longer-term
impairment or the exacerbation of a previously existing condition, she has
presented some evidence that she experienced relatively minor and temporary
injury as a result of exposure to phosphine. Summary judgment disposing of
Ballard’s claims in their entirety could not be rendered in favor of Bunge North
America based on this record.
      Judge Haynes joins in this concurring opinion.




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