Category: Victory

Dismissal on Prescription Grounds Upheld by Louisiana’s Fifth Circuit in Toxic Tort case

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.[1]

 

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.”

 

[1] Lennie at 8.

Favorable 4th Circuit Ruling

Sue Laporte recently obtained a favorable ruling from the Fourth Circuit Court of Appeal on behalf of the New Orleans City Council. The trial court had enjoined the Council from overruling the Vieux Carré Commission (VCC) and granting a building permit for 411 Bourbon Street. In an appeal filed before joining our firm, Ms. Laporte urged the Fourth Circuit to uphold the Council’s authority to hear an appeal from and overrule the VCC, and issue a building permit when the VCC repeatedly deferred action on the permit application. Reversing the trial court and dissolving the preliminary injunction, the Fourth Circuit agreed that the New Orleans City Council has the power to hear and decide appeals from the VCC’s failure to act on a building permit application.

Jury Verdict in Favor of the Defense

Skylar Rudin assisted in obtaining a verdict in favor of a telecommunications company whose employee had an automobile accident with the plaintiff. Plaintiff alleged that her two-level lumbar surgery was necessitated by the accident. Our client stipulated to liability for the accident but not causation or damages.

The team obtained pre-trial orders limiting the testimony of each of plaintiffs’ three medical causation experts.

After a two-day trial in federal court, the jury deliberated for twenty-five minutes before returning a verdict finding that the accident did not cause plaintiff any injury and that it did not aggravate her preexisting medical spinal condition.

Major Win in N.O.R.M. Matter

Deb Kuchler was part of a multi-firm trial team representing a major petrochemical company in a thyroid cancer case involving alleged exposure to naturally occurring radioactive material (NORM). A Jefferson Parish jury returned a verdict in favor of the defense.

Follow this post to read the associated article.

Summary Judgment Win

On March 8, 2013, after more than two years of discovery and pre-trial practice, Lee Ziffer secured summary judgment on behalf of two clients, an automobile manufacturer and a dealership, in a products liability wrongful death action. After extensive briefing and argument and in the face of aggressive opposition, the State District Court found that the claimants could not prove that a defect in the manufacturer’s and dealership’s products caused the Decedent’s personal injuries and death.

Opinion Obtained by the LA 4th Cir. Court of Appeals Reversing Orleans Verdict

On May 18, 2012, Janika Polk and Lee Ziffer obtained an opinion from the Louisiana Fourth Circuit Court of Appeal reversing an Orleans Parish trial judge’s ruling quashing our client’s subpoena to the Johns Manville Asbestos Settlement Trust. In what is the first Louisiana appellate opinion on the matter, the Fourth Circuit found that contrary to the plaintiff’s arguments and the trial court’s determination, defendants are entitled to discover a plaintiff’s submissions to an asbestos bankruptcy trust and that those submissions are not protected by any recognized privilege under Louisiana law.

Another Motion for Summary Judgment Victory

Michele Hale DeShazo and team obtained a Motion for Summary Judgment for a heavy equipment manufacturer. The Court determined that the bucket truck at issue was not a defective product as a matter of law. Plaintiffs alleged that the manufacturer was the successor for purposes of liability relative to a prior company. After extensive discovery and briefing on the issue, the Louisiana State District Court granted the Defendant Manufacturer’s Motion for Summary Judgment as to Plaintiffs’ claims for personal injuries in the product liability matter.

Monique M. Weiner – Summary Judgment Win in the United States Fifth Circuit Court of Appeals

Monique Weiner’s appellate briefing, and preparation of the defense at the trial court level, resulted in the United States Fifth Circuit Court of Appeals affirming the trial court’s grant of summary judgment in Keri Richard v. DuPont Company. After her termination, the plaintiff claimed that she was disabled under the Americans with Disability Act (ADA), and that DuPont had failed to accommodate her disability, resulting in a discrimination and wrongful termination claim. She also alleged that she was discriminated against because of her gender and her pregnancy. The trial court granted summary judgment as to all claims, and the Fifth Circuit affirmed the dismissal, finding that no genuine issues of fact existed as to whether the plaintiff was disabled under the ADA, or whether she had proved pretext for the gender discrimination claim. The unpublished opinion can be located at 2010 WL 3852347 (C.A.5 (La.) 2010).

Deb Kuchler – Full Dismissal w/ Prejudice All Claims in Mesothelioma Case

After the striking of Plaintiffs’ expert testimony on medical causation and associated dispositive motion practice, Deb Kuchler obtained a full dismissal with prejudice of all claims asserted against our Client in an asbestos mesothelioma matter set for trial in East Baton Rouge Parish.

Janika Polk and Lee Ziffer – Motion for Summary Judgment Win

In Civil District Court for the Parish of Orleans, Janika Polk and Lee Ziffer successfully obtained dismissal of our client though a Motion for Summary Judgment arguing that our client was not the successor in interest to a manufacturer alleged to have caused the Plaintiff’s mesothelioma.