620 F.Supp.3d 463
E.D. La.2022Background
- Plaintiff Joan LeBouef (resident within ~3 miles of an Evonik/Shell petrochemical facility) alleges breast cancer (diagnosed June 2, 2010) from long‑term exposure to ethylene oxide (EtO) emissions.
- Original multi‑plaintiff suit (filed April 26, 2021) was removed to federal court, severed into individual actions, and this case was allotted to the undersigned after prior Rule 12(b)(6) briefing and an order by Judge Vance.
- Judge Vance previously dismissed claims without prejudice for prescription and for failure to plead a specific negligence duty; plaintiffs were granted leave to amend. LeBouef amended her complaint per that order.
- Defendants moved to dismiss the amended complaint, arguing: (1) claims are prescribed; (2) negligence allegations fail to identify a specific legal duty or breach; and (3) nuisance claim is insufficient.
- The court denied both motions: it held contra non valentem could toll prescription based on LeBouef’s allegations, found she pleaded a specific duty by citing LAC 33:III.905 and 2121 (emission controls and LDAR), found breach sufficiently pleaded at the pleadings stage, and upheld the nuisance claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prescription / contra non valentem | LeBouef alleges she asked physicians, had genetic testing that ruled out genetics, lacked other explanations, lacked access/knowledge of EtO risks, and only learned of EtO as a possible cause after a law‑firm mailer in/after April 2020 — so limitations tolled | Evonik argues diagnosis (2010) put plaintiff on constructive notice and the one‑year prescriptive period began then, so suit filed 2021 is time‑barred | Court: Allegations plausibly show diagnosis alone did not give constructive notice; contra non valentem could apply given physician non‑answers, information not publicly accessible, and plaintiff’s limited ability to discover cause — claims not prescribed |
| Negligence — duty | LeBouef alleges a specific duty arising from Louisiana Administrative Code (LAC 33:III.905; 2121) requiring installation/maintenance of emission controls and an LDAR program to protect public health | Defendants say citations are vague/boilerplate, contradictory (permitted emissions), and fail to identify a legal source of a specific duty | Court: LAC provisions cited supply a specific standard of care distinguishable from generalized “reasonable care” allegations — duty adequately pleaded |
| Negligence — breach | Allegations that facility lacked sufficient emission and leak controls, EPA statements that emissions were not protective of human health, emission reductions primarily from improved LDAR/scrubber work, and ongoing efforts to enhance controls support an inference of breach | Defendants contend plaintiff pleads no facts showing specific violations, faulty equipment, or noncompliance with the regulations | Court: Factual allegations (EPA statements, asserted LDAR/scrubber issues, and alleged ongoing failures) are sufficient at pleading stage to plausibly allege breach |
| Nuisance (vicinage) | LeBouef asserts proprietor‑neighbor nuisance: negligent conduct of facility operations caused harm to nearby residents | Evonik contends nuisance allegations are vague and improperly rely on general negligence standards | Court: Nuisance claim adequately pleaded under vicinage articles; dismissal denied (consistent with prior ruling) |
Key Cases Cited
- Butler v. Denka Performance Elastomer, LLC, 16 F.4th 427 (5th Cir. 2021) (distinguishes cases where a diagnosis more than one year before filing supplied constructive notice; permits contra non valentem at pleading stage where diagnosis did not reveal cause)
- Tenorio v. Exxon Mobil Corp., 170 So. 3d 269 (La. App. 5 Cir. 2015) (medical diagnosis produced constructive notice and started prescription)
- Lennie v. Exxon Mobil Corp., 251 So. 3d 637 (La. App. 5 Cir. 2018) (diagnosis sufficed to put plaintiffs on guard and require inquiry)
- Guerin v. Travelers Indem. Co., 296 So. 3d 625 (La. App. 1 Cir. 2020) (diagnosis gave constructive notice; failure to investigate was unreasonable)
- Jordan v. Emp. Transfer Corp., 509 So. 2d 420 (La. 1987) (prescription begins once plaintiff has sufficient indication of a wrong; plaintiff must seek out responsible parties once on notice)
- Campo v. Correa, 828 So. 2d 502 (La. 2002) (constructive knowledge defined as notice that should excite attention and call for inquiry)
- Lemann v. Essen Lane Daiquiris, Inc., 923 So. 2d 627 (La. 2006) (duty‑risk analysis requires identification of a specific legal duty for negligence claims)
- Ducre v. Mine Safety Appliances, 963 F.2d 757 (5th Cir. 1992) (for prescription to run, plaintiff must have actual or constructive notice of tortious act, damage, and causal link)