Dismissal on Prescription Grounds Upheld by Louisiana’s Fifth Circuit in Toxic Tort case
By: Michele DeShazo & Mark Best
On June 27, 2018, the Louisiana Fifth Circuit Court of Appeal affirmed the dismissal of survival and wrongful death claims on the grounds of prescription (akin to common law’s statute of limitations) in favor of oil company defendants in a toxic tort case in which Kuchler Polk Weiner, LLC (“KPW”) partners, Michele DeShazo and Mark Best, co-tried the Exception for Shell Oil Company, Shell Offshore Inc., SWEPI LP, and ConocoPhillips Company, along with counsel for Chevron. Our team took the lead on the subsequent appellate briefing, with key assistance provided by KPW associate attorney, Joshua Doguet. Ms. DeShazo handled oral argument before the Fifth Circuit for Defendants on October 11, 2017.
In Patricia Lennie, et al., v. Exxon Mobil Corporation, et al., No. 17-CA-204, Fifth Circuit Court of Appeal, State of Louisiana, Julius Lennie worked cleaning oilfield pipe from 1961 to 1994 in Harvey, Louisiana. He retired in 1994 and was diagnosed with lung cancer on January 28, 2010, passing away less than one month later. His heirs failed to file suit for wrongful death and survival damages until 2014, when they sued multiple oil companies and service providers in Jefferson Parish claiming that decedent’s cancer and death were caused by exposure to naturally occurring radioactive materials (“NORM”).
In asserting the Peremptory Exception of Prescription, Defendants argued that decedent’s diagnosis and death constituted constructive notice of Plaintiffs’ claims sufficient to trigger the start of the one-year prescriptive period, which elapsed in 2011 after Mr. Lennie’s death, rendering the 2014 suit untimely. In an effort to avoid dismissal, Plaintiffs claimed that the doctrine of contra non valentem prevented the running of the prescriptive period, specifically arguing that (1) the oil companies purposefully concealed information the Plaintiffs would have needed to learn of the existence of their causes of action and (2) Plaintiffs could not reasonably have known of their causes of action until 2013, when one heir came across a news article on the internet about NORM.
After a two-day trial on the prescription exception on May 11-12, 2016 before District Judge Michael Mentz of the Twenty-Fourth Judicial District Court, which saw the introduction of live testimony from eight witnesses, written testimony submitted by designation for an additional fifteen witnesses, and voluminous exhibits, Judge Mentz granted the exception and dismissed Plaintiffs’ case with prejudice. Following an appeal by Plaintiffs, Fifth Circuit Judge Robert Chaisson authored the unanimous opinion which affirmed the district court’s dismissal of the case.
As to alleged concealment by the oil companies, the Court found:
[T]he actions of defendants in forming the industry trade group, developing screening methods for NORM, and participating in adoption of regulations by the State of Louisiana, directly contradict any suggestion that defendants were downplaying the significance of NORM in the workplace or were otherwise engaging in concealment of Mr. Lennie’s or his family’s causes of action from them.
The opinion then cites to another NORM case defended by Michele DeShazo and Mark Best, which was also won on grounds of prescription, Tenorio v. Exxon Mobil Corp., 14-814 (La. App. 5 Cir. 4/15/15), 170 So.3d 269. There, the Fifth Circuit affirmed dismissal by holding that a disease diagnosis is sufficient to trigger the running of prescription because it constitutes constructive notice of a claim, i.e., the diagnosis should excite a plaintiff’s attention to inquire into the cause of his disease. In Lennie, the same court now holds that a diagnosis and death are similarly sufficient to constitute constructive notice to decedent’s heirs of their wrongful death and survival causes of action. Plaintiffs’ failure to reasonably investigate following decedent’s diagnosis and death was unreasonable such that they could not employ contra non valentem to suspend prescription.
The Lennie Court rejected “any contention that the mere availability of information on the internet, in and of itself, can serve as sufficient constructive knowledge of a plaintiff’s cause of action.” However, the Fifth Circuit conducted a de novo review of the facts and still arrived at the same conclusion as the trial court—that Plaintiffs’ “failure to make even a rudimentary inquiry into the causes of Mr. Lennie’s illness and death appears unreasonable.”
 Lennie at 8.