251 So. 3d 637
La. Ct. App.2018Background
- Julius Lennie worked at Tuboscope (pipe-yard operations) 1961–1994; process allegedly produced NORM (naturally occurring radioactive material). He was diagnosed with lung cancer on Jan. 28, 2010 and died Feb. 20, 2010.
- Plaintiffs (wife Patricia and children Brett and Marcella) filed survival and wrongful death claims on Jan. 2, 2014 against multiple oil companies and contractors, alleging NORM exposure caused the cancer and that defendants concealed NORM risks and promoted inadequate screening.
- Defendants filed peremptory exceptions of prescription because claims were filed nearly four years after death; survival claims implicate La. C.C. art. 2315.1 (one-year period post-death) and Watkins held that §2315.1’s one-year period is prescriptive.
- Plaintiffs invoked contra non valentem (third and fourth categories: concealment and discovery rule) to suspend prescription, alleging industry-wide concealment/lobbying and lack of notice until discovery of a news article in 2013.
- Trial court sustained exceptions, finding plaintiffs failed to prove concealment or lack of constructive knowledge; appellate court conducted de novo review on law and affirmed dismissal with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contra non valentem (concealment) suspended wrongful death prescriptive period | Defs concealed NORM risks and lobbied to adopt ineffective screening, which lulled plaintiffs into inaction | No evidence of concealment/misrepresentation directed at plaintiffs; industry/regulatory participation is not concealment | No: plaintiffs failed to show concealment sufficient to suspend prescription |
| Whether constructive knowledge/discovery rule prevented prescription from running | Plaintiffs lacked actual/constructive knowledge until 2013 (news article); internet availability doesn’t impute notice | Diagnosis and other available information in 2010 put plaintiffs on inquiry; they unreasonably failed to investigate | No: diagnosis (and circumstances) gave constructive notice in 2010; contra non valentem not applicable |
| Whether the one-year survival-action period in La. C.C. art. 2315.1 is suspensible | Plaintiffs sought suspension of the one-year survival period under contra non valentem | Defs argued survival claims prescribed because plaintiffs had sufficient knowledge | Court applied Watkins (one-year is prescriptive) and held plaintiffs did not show entitlement to suspension; survival claims prescribed |
| Standard for constructive knowledge (role of internet/possible knowledge) | Trial court erred by relying on availability of information (what plaintiffs could have known) rather than what they actually knew | Availability plus the diagnosis makes the cause of action reasonably knowable; law looks to what plaintiff knew or should have known, not mere possibility | Court clarified internet availability alone is insufficient; but on the facts plaintiffs still had constructive knowledge in 2010 and claims prescribed |
Key Cases Cited
- Watkins v. Exxon Mobil Corp., 145 So.3d 237 (La. 2014) (one-year survival period in La. C.C. art. 2315.1 is prescriptive)
- Tenorio v. Exxon Mobil Corp., 170 So.3d 269 (La. App. 5 Cir. 2015) (diagnosis can provide constructive notice triggering prescription)
- Marin v. Exxon Mobil Corp., 48 So.3d 234 (La. 2010) (constructive knowledge is acquisition of information that, if pursued, reveals the true condition of things)
- Campo v. Correa, 828 So.2d 502 (La. 2002) (constructive knowledge is notice sufficient to excite attention and call for inquiry)
- Wells v. Zadeck, 89 So.3d 1145 (La. 2012) (prescription references what plaintiff knew or should have known, not what she could have known)
- Griffin v. Kinberger, 507 So.2d 821 (La. 1987) (newspaper discovery may justify contra non valentem when plaintiff reasonably relied on others and lacked basis to inquire)
- Walls v. American Optical Corp., 740 So.2d 1262 (La. 1999) (survival and wrongful death are distinct actions arising at different times)
- Lester v. Exxon Mobil Corp., 102 So.3d 148 (La. App. 5 Cir. 2012) (examples where employer statements to workers supported application of contra non valentem for NORM claims)