16 F.4th 427
5th Cir.2021Background
- Plaintiff Juanea Butler, a longtime resident of St. John the Baptist Parish, sued Denka (current owner/operator of the Pontchartrain Works Facility), DuPont (former operator and current owner of the land/buildings), and Louisiana agencies DEQ and DOH, alleging chloroprene emissions from neoprene production caused health problems and elevated cancer risk.
- DuPont operated the plant 1969–2015; Denka acquired neoprene operations in 2015. Butler alleges symptoms beginning April 2012 and filed suit June 5, 2018.
- EPA/NATA identified chloroprene as a likely human carcinogen and suggested a screening-level “acceptable risk” of 0.2 µg/m3; Denka’s sampling showed long-running concentrations well above that level.
- EPA inspections and reports disclosed alleged regulatory noncompliance at the facility; DEQ officials publicly downplayed the 0.2 µg/m3 benchmark.
- Procedurally: defendants removed under CAFA; district court denied remand, dismissed many state tort claims as prescribed or for failure to state a claim, denied leave to amend in part; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Removal / sovereign immunity (CAFA) | Removal was improper because DEQ/DOH had not waived Eleventh Amendment immunity at removal | CAFA allows removal without state consent; state agencies later waived immunity by opposing remand; Lapides controls | Removal was proper under CAFA; state agencies’ opposition waived immunity and did not defeat jurisdiction |
| Prescription / tolling (claims vs. DuPont and DOH) | Prescription should be tolled under contra non valentem because Butler lacked actual or constructive notice that chloroprene caused her symptoms until later | Defendants say Butler had constructive notice well before 2017 (public EPA findings, meetings, reports) so one‑year prescriptive period expired before suit | Reversed district court: on pleadings, Butler plausibly alleged tolling; factual development required to determine when constructive notice occurred |
| Duty / breach for Denka (negligence and custodial strict liability) | Denka breached a duty to exercise reasonable care and to prevent unreasonably dangerous chloroprene emissions (not limited to EPA .2 µg/m3 threshold) | No specific, legally enforceable duty was alleged; invoking EPA NATA threshold does not create a judicially enforceable standard; generalized “reasonable care” allegations insufficient | Affirmed dismissal: Butler failed to plead a cognizable legal duty or plausible breach under Louisiana duty‑risk framework; negligence and custodial claims dismissed |
| Declaratory relief / DEQ administrative exhaustion | DEQ violated constitutional rights and failed statutory duties; Plaintiff seeks declaratory relief | DEQ argues plaintiff failed to follow administrative/detared procedures and did not plead a specific statutory duty violated | Affirmed dismissal: plaintiff failed to allege a specific duty or comply with administrative prerequisites; claims inadequately briefed and largely abandoned |
Key Cases Cited
- Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002) (state’s voluntary invocation of federal jurisdiction by removal or counsel can waive Eleventh Amendment immunity)
- In re Katrina Canal Litig. Breaches, 524 F.3d 700 (5th Cir.) (CAFA’s minimal diversity suffices even where a state is a defendant; state’s presence does not defeat CAFA jurisdiction)
- Frazier v. Pioneer Ams. LLC, 455 F.3d 542 (5th Cir.) (CAFA may result in a state being involuntarily removed and immunity remains unless state consents; removal does not itself waive immunity)
- In re Taxotere (Docetaxel) Prods. Liab. Litig., 995 F.3d 384 (5th Cir. 2021) (applying Louisiana contra non valentem and constructive‑notice standards for prescription/tolling)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must contain sufficient factual matter to state a plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for federal pleadings)
- Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009) (identifying duty‑analysis in contexts involving toxic exposures; possible employer‑specific duties)
- Lemann v. Essen Lane Daiquiris, 923 So.2d 627 (La. 2006) (duty‑risk framework; courts must identify a specific source of legal duty before finding liability)
- Campo v. Correa, 828 So.2d 502 (La. 2002) (constructive knowledge defined as notice sufficient to put a reasonable person on inquiry)