Dawn Tezino, Skyler Rudin, and Marcus Hunter attended the 2019 National Association of Minority & Women Owned Law Firms (NAMWOLF) Driving Diversity and Leadership Conference in New Orleans. The four-day conference was filled with fantastic networking events and programs aimed at helping its members with career development. NAMWOLF supports KPW’s vision by promoting diversity in the legal profession while helping to achieve equity in legal opportunities for women-owned firms.
Darleene Peters, Kennard Davis, and Marcus Hunter served as Attorney Volunteers in the Louis A. Martinet Society’s 4th Annual Pathways & Pipelines to Success Program. The Pathways and Pipelines program is designed to promote and prepare future attorneys of color by offering them opportunities to meet, network with, and obtain one-on-one resume writing and interviewing techniques from Judges and Attorneys from the Greater New Orleans area. This year the program had over 140 law students registered, and over 70 practitioners volunteered. This annual event took place on Saturday, February 2nd at Loyola University New Orleans College of Law.
Amber Barlow was recently selected as a 2019 Rising Star for the 2019 edition of Louisiana Super Lawyers. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. Congratulations Amber!
On January 31, 2019, Amber Barlow was a speaker at the LADC Winter Seminar. This event, a joint CLE with the Texas Association of Defense Counsel, took place in Steamboat Springs, Colorado. LSU Law Professor Bill Corbett joined Amber on the session Recent Developments in Tort Law. Read their paper, Recent Developments in Louisiana Tort Law 2017-18 here.
On January 29, 2019, Skylar Rudin and Marcus Hunter spoke for the Legal Professionals of New Orleans (LPNO). Their presentation, Tips for a Superstar Assistant, focused on what makes great associates and legal secretaries. Skylar and Marcus were invited to speak by the organization, whose purpose is to promote education of the law.
In September 2018, Deb Kuchler served as trial counsel for Philip Morris, in a collaboration with Shook Hardy & Bacon, in the Chadwell case in Miami, Florida, involving a 31-year-old smoker’s cancer death. After considering a 40+ year loss of companionship by his widow, the jury made a compensatory damage award of $2.4 million and despite finding punitive liability, awarded no money for punitive damages. Read more about Deb’s achievement on CVN.com.
In December 2018, Deb Kuchler served as trial counsel for Philip Morris, in a collaboration with Shook Hardy & Bacon, in the Boulter case in Fort Myers, Florida, involving a long-time smoker with COPD. The jury found Plaintiff 70% at fault reducing the compensatory damage award to a total $225,000 for both defendants, found no fraudulent concealment and no entitlement to punitive damages. Read more about Deb’s achievement on Law.com.
Louisiana Appleseed is a nonprofit organization that unites problem solvers and policymakers to increase access to education, justice, and opportunity. At its 2019 Good Apple Gala, the organization awarded Kuchler Polk Weiner Senior Counsel Dreda Smith with an award for her pro bono service to the organization. Dreda received this award in connection with her work on the Louisiana School Breakfast Report. The Report advocates for increased participation in the national School Breakfast Program as a means of reducing hunger and improving health and educational potential of students throughout Louisiana. The firm congratulates Dreda for this achievement and applauds her efforts to serve the community.
KPW congratulates Skylar Rudin, Kristyn Lambert, and Amber Barlow on their selection to the 2019 Board of Directors for the Women’s Energy Network’s (WEN) South Louisiana Chapter. Skylar will serve as Vice President, Kristyn will serve as the New Orleans Program Co-Director and Dinner Auction Co-Chair, and Amber holds the position of Scholarships Chair.
Partner Michele Hale DeShazo will serve as a panelist at the National Bar Association’s Seventh Annual Energy Forum this week. She will speak as a part of the “Gulf Coast Litigation Impacting the Energy Industry” panel on Wednesday, August 1st at the Hilton New Orleans Riverside Hotel. See the flyer below for more details about this event.
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.