In a case sure to be used as a sword by many defendants in the prevalent NORM (naturally occurring radioactive material) litigation in Louisiana and elsewhere, Patricia Lennie, et al. v. Exxon Mobil Corporation, et al., the Louisiana Fifth Circuit Court of Appeal concluded that plaintiffs’ survival and wrongful death actions were prescribed when plaintiffs brought suit almost four years after the diagnosis of cancer and subsequent death of their husband/father and failed to inquire as to the cause of illness and death. In doing so, the Fifth Circuit affirmed the judgment of the district court dismissing the survival and wrongful death claims of plaintiffs on an exception of prescription.
As in many NORM cases brought in Louisiana and elsewhere, plaintiffs, the surviving wife and children of Julius Lennie, claimed that Mr. Lennie’s work at a pipe yard in Louisiana caused Mr. Lennie’s lung cancer and eventual death. Mr. Lennie had worked for the pipe yard for a number of years, and 16 years after his retirement, in 2010, Mr. Lennie was diagnosed with lung cancer and died that same year. However, his surviving wife and children did not file suit against various pipe yard and oil company defendants until almost four years later – in January 2014. The Lennies claimed that suit was timely as it was filed within one year of their discovery of a newspaper article regarding lawsuits involving radiation exposure in pipe yards and a subsequent meeting with their attorneys.
Because of the years lag between Mr. Lennie’s death and the filing of suit, a number of defendants filed exceptions of prescription, claiming that the survival and wrongful death claims were time-barred. The trial court sustained the exceptions, finding that the plaintiffs failed to meet their burden of proof for the application of contra non valentem – a judicial doctrine which suspends the running of prescription in four circumstances, including where defendants’ had done some act that prevented plaintiffs from availing themselves of their cause of action and where the cause of action is not known or reasonably knowable by the plaintiffs.
The plaintiffs appealed the judgment of the trial court sustaining the exceptions to the Louisiana Fifth Circuit Court of Appeal, and the appellate court analyzed prescription as to each of the claims – wrongful death and survival. While the Fifth Circuit addressed the wrongful death claims brought under La. Civ. Code art. 2315.2, and the survival claims brought under La. Civ. Code art. 2351.1, separately, the court applied similar reasoning to each claim. The Fifth Circuit found that the claims had prescribed on their face, thus the burden shifted to the plaintiffs to show the suspension of prescription through contra non valentem. The court dismissed plaintiffs’ argument that contra non applied because defendants actively sought to conceal the causal link between work-related NORM exposure and lung cancer as well as the danger of exposure to the radioactive material in the workplace via actions such as: the formation of an industry trade group which developed a NORM screening method and the publishing of academic papers. In doing so, the Fifth Circuit distinguished a prior case, Lester v. Exxon Mobil Corp., 10-743 (La. App. 5 Cir. 5/31/12), 102 So.3d 148, in which the court had found contra non applied to suspend prescription as the defendant showed videos to workers which stated it was unlikely that an oilfield worker would ingest or inhale a harmful amount of NORM, with the present case – in which the plaintiffs neither alleged nor provided any evidence of actions taken by defendants that would rise to the level of concealment, misrepresentation, or fraud directed towards them. The court concluded that the fact that the screening methods developed by the industry trade group may arguably have been ineffective at detecting NORM did not equate to a finding that defendants intentionally adopted inadequate screening methods. Moreover, as the appellate court stated, the mere formation of the industry trade group, development of screening methods, and participation in adoption of regulations by the State of Louisiana “directly contradict[ed]” plaintiffs’ suggestion that defendants downplayed the significance of NORM in the workplace or engaged in concealment, misrepresentation and/or fraud. The court therefore found no manifest error in the trial court’s factual finding that the Lennies did not meet their burden of proving fraud, actual conspiracy, and/or misrepresentation by defendants to prevent the running of prescription.
Perhaps most importantly, on de novo review, the Fifth Circuit dismissed plaintiffs’ alternative argument that the fourth category of contra non valentem (plaintiffs did not have actual or constructive knowledge of the cause of action), applied to suspend prescription. The court found that at the time of Mr. Lennie’s death (when prescription on the wrongful death claims would have begun to run): plaintiffs knew that their husband/father worked at the pipe yard but did not know about NORM and its potential to cause cancer until the discovery of the newspaper article on NORM lawsuits in April 2013, but the plaintiffs did not inquire as to the cause of Mr. Lennie’s cancer and death. In finding that this prong of contra non did not apply to suspend prescription, the court distinguished a prior case in which plaintiffs had been assured by the doctors of a natural cause of death, noting that plaintiffs in Lennie had made no inquiry whatsoever into the cause of Mr. Lennie’s lung cancer. According to the appellate court, this “failure to make even a rudimentary inquiry” into the cause of cancer and death of their husband and father following Mr. Lennie’s diagnosis of lung cancer in 2010 was fatal to the plaintiffs’ claim that contra non applied to prevent the running of prescription. However, the court made clear that it was rejecting the notion 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.” The Fifth Circuit therefore affirmed the dismissal of the wrongful death and survival claims on the exception of prescription.
This decision by the Fifth Circuit makes clear that plaintiffs in NORM suits will not be able to rely on blanket industry-wide allegations of conspiracy, fraud and misrepresentation to prevent the running of prescription and that they will have to present some evidence of inquiry into cause of illness and death or risk or risk having their claims dismissed on prescription.
 The Fifth Circuit conducted a de novo review of this finding because statements made by the trial court in its reasons for judgment suggested it may have applied an incorrect legal standard.
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