120 So. 3d 767
La. Ct. App.2013Background
- Eight former ITCO pipe-yard workers sued Exxon alleging exposure to naturally occurring radioactive material (NORM) while cleaning tubulars, claiming fear of cancer, increased risk of cancer, medical monitoring, and punitive damages.
- Plaintiffs worked at ITCO mainly in the 1970s–1980s; ITCO closed in 1992; many plaintiffs learned of NORM exposure publicly around 2001 and were examined by physicians in 2011.
- Dose-reconstruction expert testimony (Dr. Plato) estimated lifetime exposures above a 10-rem threshold the parties’ experts agreed increased cancer risk, though estimations involved assumptions and uncertainty.
- Trial court awarded compensatory damages for fear of cancer to eight plaintiffs; medical monitoring and increased-risk damages to five plaintiffs; punitive damages (reduced on new-trial motion to 1.5x compensatory) to most plaintiffs; claims against ITCO were dismissed.
- Exxon appealed challenging fear-of-cancer, medical-monitoring, increased-risk, and punitive awards; plaintiffs cross-appealed limited issues. The court affirmed the trial court’s awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fear of cancer damages | Exposure and testimony establish genuine, serious mental distress warranting awards | Fear must be more than speculative; plaintiffs failed Bonnette special-circumstance proof | Affirmed: trial court did not abuse discretion; plaintiffs showed particularized fear and nexus to exposure |
| Medical-monitoring damages | Five plaintiffs had manifest abnormalities (positive hemoccult, elevated CK, lung opacity) causally related to NORM and need enhanced surveillance | No manifest injury shown; monitoring not directly related to a manifest injury as required by amended art. 2315 | Affirmed for five plaintiffs: trial court credited medical testimony linking abnormalities to exposure and prescribed monitoring; denied for three others for lack of causal proof |
| Increased-risk of cancer damages | Increased future-risk is a cognizable compensable injury distinct from future cancer | Awards impermissibly speculative and risk damages duplicate future recovery | Affirmed: court recognizes separate cause of action for increased risk and found sufficient proof for five plaintiffs; denied for three lacking causal evidence |
| Punitive (exemplary) damages under former art. 2315.3 | Exxon acted wantonly/recklessly by delaying notice about NORM; punitive awards proper and multiplier reasonable | No actual injury for punitive recovery; conduct not wanton/reckless; awards excessive and time-limited by statute | Affirmed: court found nine‑month delay reckless, limited punitive exposure to statute period, and upheld 1.5x multiplier as within discretion |
Key Cases Cited
- Bonnette v. Conoco, Inc., 837 So.2d 1219 (La. 2003) (standard for negligent infliction of emotional distress without physical injury and requiring special circumstances)
- Bourgeois v. A.P. Green Indus., Inc., 716 So.2d 355 (La. 1998) (factors permitting medical-monitoring damages)
- Billiot v. B.P. Oil Co., 645 So.2d 604 (La. 1994) (requirements for exemplary damages under former art. 2315.3)
- Grefer v. Alpha Technical, 901 So.2d 1117 (La. App. 4 Cir. 2005) (prior opinion finding Exxon’s delay in warning about NORM reckless)
- State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (U.S. 2003) (guidance on punitive-damage multipliers and due-process limits)