ERVIN JACK, JR. v. EVONIK CORPORATION, suсcessor in interest to EVONIK MATERIALS CORPORATION and TOMAH RESERVE INCORPORATED, formerly known as AIR PRODUCTS PERFORMANCE MANUFACTURING, INCORPORATED, formerly known as VERSUM MATERIALS PERFORMANCE MANUFACTURING, INCORPORATED; SHELL OIL COMPANY
No. 22-30526
United States Court of Appeals for the Fifth Circuit
August 22, 2023
FILED August 22, 2023 Lyle W. Cayce Clerk
Before HIGGINBOTHAM, SMITH, and ENGELHARDT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
For decades, a facility has allegedly emitted dangerous levels of a chemical called Ethylene Oxide (“EtO“). The dangerous properties of the chemical were not widely known outside the scientific community, so it was not until a local law firm began advertising potential lawsuits that several of the neighboring residents became concerned that the diagnoses of cancer that they or their deceased relatives had received resulted from the emissions. Fourteen plaintiffs eventually sued. The case was severed, and the instant case is the first to reach this court.
I.
Ervin Jack, Jr., sued Evonik Corporation, Shell Oil Company, and four site managers for damages caused by the emission of EtO from a petrochemical manufacturing facility (“the Facility“) in Reserve, Louisiana.1 Jack alleges the following facts:
Jack‘s house is located 2.7 miles from the Facility. He and his late wife, Leander Jack, moved into the house in the 1970s. In 2000, Leander died of breast cancer, which Jack did not attribute to the Facility at the time. Neither Jack nor his wife had any upper-level education in chemistry and “did not know how to research information related to operation of the [F]acility even if they wanted to do so.”
Jack alleges that he first learned of the Facility‘s emission of EtO and
EtO‘s dangerous properties through an April 2020 mailer from Voorhies Law Firm, advising that he may have legal rights against the Facility. He sued in Louisiana state court within that year. Also that same year, the EPA‘s Office of Inspector General issued a “Management Alert” asking the EPA to inform residents living near facilities that emitted EtO of the EtO emissions and the residents’ increased risks of developing cancer from exposure therefrom. Such notification did not occur until August 2021, when the EPA organized a public outreach meeting with the Louisiana Department of Environmental Quality (“LDEQ“) to warn the residents of their increased risk of cancer from the Facility.
According to Jack‘s complaint, chemical companies first became broadly aware of EtO‘s harmful properties in 1977 when the National Institute of Occupational Safety and Health recommended that EtO be considered mutagenic (i.e., capable of causing gene mutations) and carcinogenic. EtO was declared a human carcinogen by California in 1987, by the World Health Organization in 1994, by the United States Department of Health and Human Services in 2000, by the United States National Toxicology Program in 2002, and by the EPA in 2007. In 2004, the National Institute identified EtO emissions as linked to breast cancer mortality in women. In 2016, the EPA increased the cancer risk for EtO to a level 30 times more carcinogenic than previously thought, stating that any exposure to EtO creates a risk of cancer. In 2014, the National Air Toxics Assessment found that the residents surrounding the facility have some of the highest risks of cancer from EtO exposure in the United States, with a risk up to eight times what the EPA considers acceptable.
The results of the National Air Toxics Assessment were published in 2018. During these approximately 40 years, no efforts were made by either the Facility or any governmental agency to inform the surrounding residents of the Facility‘s EtO emissions or their harmful quality.
By the time that the Voorhies Law Firm sent its mailers, in 2020, advising residents of their potential legal rights against the Facility, much of the alleged damage to Jack, his wife, and the thirteen other plaintiffs who joined the original suit had already been done. Each of thе plaintiffs lived near the Facility and had either been
Plaintiffs joined four employees of Evonik who were Louisiana residents (“the Louisiana defendants“), claiming that they were also personally liable. The plaintiffs claimed that all the defendants “have long known of the dangerous effects of EtO as a carcinogen and had the ability to protect their neighbors by reducing or eliminating their emission of EtO, but instead chose, and continue to choose, to emit dangerous levels of EtO in the community surrounding the facility in order to maximize their profits without ever informing [the residents], or the rest of the surrounding community, of the life-threatening effects of the facility‘s EtO emissions.”2
Defendants removed the case to federal district court. They contended that the Louisiana defendants were improperly joined, rendering the properly joined pаrties completely diverse and giving the federal district
court diversity jurisdiction.3 The district court agreed, denied the plaintiffs’ motion to remand, and dismissed the claims against the four employees.
Shell and Evonik moved to dismiss plaintiffs’ remaining claims for failure to state a claim. See
Jack filed his First Amended Complaint in June 2022, suing for “[s]urvival damages for the pain and suffering of Mrs. Jack before her death,” “[w]rongful death damages arising from Mrs. Jack‘s death,” and “[d]amages for the fear and increased likelihood of development of cancer and other fatal and debilitating diseases.” The district court granted Shеll‘s and Evonik‘s motions to dismiss. The court concluded that all claims predicated on Mrs. Jack‘s death were time-barred and that Jack had not properly pleaded damages for the claims based on his own fear of cancer.
Jack appeals. He first contests the dismissal of the Louisiana defendants and requests remand to state court. He next contends that the claims based on Mrs. Jack‘s death were not time-barred and that the district court should have given him leave to amend before dismissing his claims.
This is a case in diversity, so we apply the substantive law of Louisiana
and the procedural rules of the federal courts.4 Statutes of limitations and time bars are considered substantive in this context,5 so we apply Louisiana law.
III.
We begin, as we must, by assuring ourselves of federal court jurisdiction. MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). Jack contends that the district court‘s finding of improper joinder was error, meaning that that court did not have subject matter jurisdiction. We disagree—Jack has “no possibility of recovery” against the Louisiana defendants, so this court properly retains jurisdiction. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc).
Jack joined four employees of Evonik, each of whom is a Louisiana resident who has been a site manager of the Facility. Because each employee is a citizen of Louisiana, their presence destroys complete diversity. Jurisdiction thus depends on whether Jack has plausibly pleaded a claim against the four Louisiana defendants.6 On appeal, Jack contends that his claims against them for negligence and battery should have survived. But we agree with the district court—though “[t]he burden of persuasion placed upon those who cry [improper] joinder is indeed a heavy one,” defendants have met it.7 Because Jack does not have a plausible cause of action against the Louisiana
defendants, their dismissal was proper, and there is jurisdiction.
We review motions to remand for lack of subject matter jurisdiction predicated on impropеr joinder de novo. Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 401 (5th Cir. 2013). Our review generally mimics the familiar ”
If the court determines that the complaint has “misstated or omitted discrete facts that would determine the propriety of joinder,” it has the discretion to “pierce the pleadings and conduct a summary inquiry” to determine whether a cause of action could exist. Id. The power is limited—“[d]iscovery by the parties should not be allowed except on a tight judicial tether,” and the process “should not entail substantial hearings.” Id. at 574. It “is appropriate only to identify the presence of discrete and undisputed facts that would preclude [the] plaintiff‘s recovery against the in-state defendant.” Id. at 573-74. That said, “the decision regarding the prоcedure necessary in a given case must lie within the discretion of the trial court.” Id. at 573.
Jack‘s first claim against the Louisiana defendants is for negligence. He alleges that they knew or should have known of the harms of EtO, that they were in a position either to stop the amount of emissions or, at least, to warn the surrounding community, and that they were negligent in their failure to do so.
The district court pierced the pleadings to examine affidavits from several of the site managers regarding their roles at the facility, held that there was no possibility of recovery under Louisiana law, and dismissed the claim. We agree: Jack has no possibility of recovery against the Louisiana defendants.
Specifically, Jack has not plausibly pleaded a duty that the Louisiana defendants violated. Jack‘s negligence claim stems from
By engaging in the emissions of EtO, the Facility had a duty to the surrounding residents to protect them from an unreasonable risk of harm. See, e.g., Garrett v. AEP River Operations, LLC, Civ. No. 15-5562, 2016 WL 945056, at *2 (E.D. La. Mar. 14, 2016). But to hold the Louisiana defendants personally liable, Jack must plausibly plead that they personally had a legal duty to him. He provides two theories of duty: That the defendants acted negligently in their failure to (1) regulate the amount of EtO emissions coming from the plant to a safe level or (2) warn the residents of the risk of EtO emissions coming from the plant. But if defendants did not have a personal duty to undertake either of these actions, then they cannot be held
personally liable to Jack.
Jack posits that the duty was delegated to the Louisiana defendants by the employer. The Louisiana Supreme Court allows for such a theory of duty delegation in limited situations. In Canter v. Koehring Co., 283 So. 2d 716 (La. 1973), the court held that an employee can be held personally liable to a third party when
- The principal or employer owes a duty of care to the third person... breach of which has caused the damage for which recovery is sought.
- This duty is delegated by the principal or employer to the defendant.
- The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances—whether such failure be due tо malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as
well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty. - With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff‘s damages.
Id. at 721-22 (collecting cases).
Crucially, the delegated duty must be the duty that the plaintiff alleges was breached. Without evidence of that delegation, there can be no liability.
So Jack must show that the Facility specifically delegated to the Louisiana defendants the duty to prоtect the surrounding residents from unsafe levels of EtO or the duty to regulate the emissions of EtO to a safe level. He cannot.
Each Louisiana defendant served as a site manager of the Facility during the time that allegedly harmful amounts of EtO were emitted. Additionally, Jack alleges that each manager was designated to the LDEQ as a Permit Responsible Official (“PRO“), which required the Louisiana defendants to certify the Facility‘s permitted operations and emissions of gases such as EtO. Jack posits that those two responsibilities, taken together, allow us to assume that (1) the Louisiana defendants were delegated “the duty to ensure that the operations of the [F]acility did not endanger the neighboring community through unsafe operations or dangerous levels of emissions“; (2) had the authority to “implement changes to emissions controls and systems necessary to reduce dangerous emissions of EtO“; (3) had the authority “to take steps to protect the community surrounding the [F]аcility“; and (4) generally had direct responsibility for EtO emissions.
The Louisiana defendants flatly deny these assumptions, and three have provided affidavits.9 Each claims that his responsibility (with respect to EtO) was only to report accurately what was emitted and that he was never delegated any “plant modification, inspection or maintenance activities” or any duty to protect surrounding residents. In response, Jack contends that in this posture, we must construe all assumptions and inferences in his favor. That is correct, but in the face of the defendants’ uncontroverted evidence, Jack‘s proposed inferences are insufficient.
Jack asks us to assume that an individual who was responsible for managing the Facility and certifying the amount of emissions to the state was specifically and personally delegated the responsibility (1) to research the harmful effects of EtO above and beyond what was required by the state, (2) to hold a facility he is emрloyed by to higher standards than those that were set by his employer and the state‘s environmental department, and, most illogically, (3) to change the plant‘s operations to match the employee‘s researched, personal preferences. That argument lacks merit. Jack contends that Davis v. Omega Refining, LLC, No. 15-518, 2015 WL 3650832 (E.D. La. June 11, 2015), supports his claim. Jack is wrong—in fact, Davis highlights his misconception of duty.
Davis alleged liability based on a breach of the duty to report emissions levels accurately—the suit alleged that the emissions levels were fraudulently reported and that the fraudulent reporting was the cause of plaintiffs’ injuries. Lucas was specifically delegated the responsibility to report. Id.
That duty—and breach—match, so the plaintiffs had a plausible cause of action against Lucas.
In Jack‘s case, the plant managers were delegated the responsibility to keep the site running and to accurately report the amount of emissions to the LDEQ. The suit alleges that even though the amount of emissions was accurately repоrted, the EtO level was higher than was safe. That alleged breach does not match the plant managers’ duty. Because Jack has not plausibly pleaded a duty owed to him by the Louisiana defendants, his negligence claim has “no possibility of recovery.” Smallwood, 385 F.3d at 573.
Taking another tack, Jack contends that we cannot consider the affidavits of the site managers and must rely solely on the pleadings. That is inaccurate. Jack‘s argument takes two forms: first, that we cannot consider the affidavits at all because what duty was delegated is not a “discrete” fact, and, second, that even if we can consider the affidavits, we should not be persuaded by them, because they are not “undisputed.” See Smallwood, 385 F.3d at 573. We take the contentions in turn.
First, Jack alleges that whether the defendants worked at the plant would be a discrete fact, but what duties they were delegated is not. He then cites four cases in which courts pierced the pleadings on allegedly more “discrete” issues.10 But, strangely, Jack ignores the plethora of cases cited in his own brief in which the court pierced the pleadings to examine affidavits on
exactly the issue of delegated duty under Canter.11 And in the face of
Jack next contends that we cannot consider the affidavits because he disputes the allegations. Specifically, he claims that we should ignore the defendants’ statements that they were never delegated the duties that Jack claims they were because Jack has said the opposite. We disagree. Once the court decides to pierce the pleadings, it embarks on a summary inquiry, not a
Consider Ford v. Elsbury. There, the plaintiff brought a negligence claim against a fertilizer plant for injuries caused by the urea reactor‘s explosion and joined the plant manager, Ernie Elsbury, as a defendant. 32 F.3d at 933. Elsbury alleged, by affidavit, that he had no duty to ensure the “safety, maintenance and operations” of the urea reactor because that duty had been delegated to “properly trained and qualified supervisors.” Id.
at 936, 938. The district court pierced the pleadings to consider the affidavits but found that Elsbury could be properly joined because plaintiffs submitted direct evidence contradicting Elsbury‘s statement.13
Similarly, in Garrett, the plaintiffs sued the operators of a shipyard because of damages from toxic fumes and “paint and sandblasting residue.” 2016 WL 945056, at *1. They alleged that the workers were not using proper protective coverings. They joined Stephen Barrios, the shipyard supervisor, as a defendant, asserting that he “owed plaintiffs a duty to ensure that the shipyard‘s operations were conducted safely and would not expose plaintiffs to an unreasonable risk of harm.” Id. at *2. Barrios submitted a sworn declaration stating that he had no such duty. But the plaintiffs submitted an email exchange between Barrios and the LDEQ in which Barrios stated that he did have that duty. On that basis, the court found a factual dispute and ruled that Barrios could be properly joined.
In both of those cases, the fact was considered “disputed” because there was evidence pointing both ways. That did not occur here—Jack has done no more than provide the defendants’ general job
tigation, even if Jack states that it is not.
For example, in Anderson, the plaintiffs sued for personal injuries from a plant explosion. They sued several employee-defendants, contending that the company “delegated responsibility for operations, maintenance, and emergency response activities to each of the Employee-Defendants personally, and that this delegation created duties of care that were owed individually by the Employee-Defendants to the Plaintiffs.” 342 F. App‘x at 913-14. Again, the employees “submitted affidavits specifically denying that they intentionally released toxic chemicals, and stating that various maintenance, repair, and safety responsibilities were general administrative responsibilities that were properly delegated to qualified individuals within each department.” Id. at 916. There, as here, the plaintiffs thought that the defendants had a larger duty, but because the plaintiffs “failed to submit any contradictory evidence,” the case against the defendants was dismissed. Id.
In short, Jack has provided no direct evidence to contradict the Louisiana defendants’ sworn testimony that they had no duty to protect the safety of residents surrounding the plant or research relevant safety standards for EtO еmissions. The district court properly pierced the pleadings to consider the affidavits, and, finding the testimony undisputed, properly dismissed the negligence claims against those defendants.
Battery
Jack‘s battery claims against the Louisiana defendants also fail. Louisiana law describes battery as “harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact.” Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987) (collecting authorities). That act must be intentional. Id. In his original complaint, Jack framed his battery claim on the theory that the Louisiana defendants intended for the Facility to emit EtO and that they knew it would harm the residents. In his merits brief,
he describes the tort as a failure to protect the residents. Because the Facility, not the Louisiana defendants, was responsible for the emissions of EtO, Jack‘s claim is best read as alleging a theory of “battery-by-omission,” or failure to stop a harm.
The district court noted that there are no Louisiana cases “accepting plaintiffs’ theory of battery-by-оmission” and that “other states have explicitly held that battery requires an affirmative act; inaction or omissions do not suffice.” It concluded that Louisiana law does not recognize battery-by-omission. Jack challenges this on appeal, citing a handful of cases that he claims support his theory.14 But those cases are inapposite: They support the theory that the company that is directly responsible for emitting toxins can be found liable for battery.
Jack argues that these decisions do not “involve[] the type of ‘affirmative act’ the district court originally indicated is necessary to state a claim. Rather, [they] involve[]
In conclusion, Jack cannot establish a plausible cause of action against the non-diverse defendants, and the district court was correct that they were improperly joined.
IV.
Satisfied with our jurisdiction, we turn to the merits of Jack‘s claims against Shell and Evonik. After the case was severed and Jack filed his individual complaint with the district court, Shell and Evonik again moved to dismiss the remainder of Jack‘s claims. The district court granted the motion and dismissed the case with prejudice. On appeal, Jack contests two of the district court‘s holdings: First, that the claims predicated on his wife‘s death were time-barred, and second, that Jack should be denied leave to amend the claims based on his own emotional harm. We take each in turn.
A.
Jack‘s wife, Leander, died of breast cancer in 2000. The district court dismissed the claims predicated on her death as time-barred.
We review a district court‘s grant of a motion to dismiss de novo.15 To survive a motion to dismiss, the plaintiff‘s complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘”16 At this stage, “[w]e accept all well-pled facts as true, construing all reasonable inferences in the complaint in the light most favorable to the plaintiff.”17 But “conclusory allegations, unwarranted factual
inferences, or legal conclusions” are not accepted as true.18
The prescriptive period for Jack‘s survival action and wrongful death claims is one year. See
Jack counters that contra non valentem, a fixture of Louisiana law that can prevent the running of prescriptive periods, renders his suit timely. Specifically, he claims that he had no way of knowing that (1) thе Facility was emitting EtO, (2) EtO is carcinogenic, and (3) those emissions were a potential cause of his wife‘s death until he was made aware by the
Contra non valentem ends (and prescription commences) when the reasonable person has actual or constructive knowledge of the facts making him a victim of a tort. “Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry.
Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead.”22 What is reasonable is informed by the plaintiff‘s own attributes and circumstances: We ask whether the plaintiff‘s action or inaction was reasonablе “in light of his education, intelligence, and the nature of the defendant‘s conduct.”23 Further, “[a] party‘s pleadings are to be so construed as to do substantial justice.”24
The parties posit that there are two questions relevant to this inquiry: First, was it reasonable for Jack to fail to ask what caused his wife‘s breast cancer, and, second, if Jack had asked, would a reasonable inquiry have led to the facts that made him the victim of a tort?
The district court does not seem to have directly considered whether Jack could have discovered the tortious activity if he had inquired—instead, the court held that a reasonable person would have asked what caused the breast cancer, and thus, regardless of where the inquiry would have led, Jack was unreasonable and contra non valentem did not apply. But whether that theory—that prescription begins when one unreasonably fails to investigate, despite whether the tortious activity is actually knowable—is correct under Louisiana law is a matter of first impression.
In fact, the many district court judges considering the claims of plaintiffs who were severed in the instant case have fractured on that precise issue.25 Most of the
way—for example, Jenkins v. Bristol-Myers Squibb Co. seems to suggest that the entirety of contra non valentem is based on the plaintiff‘s actions, but later clarifies that “[t]olling pursuant to contra non valentem ends, and the prescriptive period begins, on ‘the date the injured party discovers or should have discovered the facts upon which his cause of action is based.‘” 689 F. App‘x 793, 796 (5th Cir. 2017) (per curiam) (quoting Eastin v. Entergy Corp., 2003-1030, p. 7 (La. 02/06/04), 865 So. 2d 49, 55). Similarly, Cole states that “[w]hen prescription begins to run depends on the reasonableness of the plaintiff‘s action or inaction,” 620 So. 2d at 1157 (quoting Jordan v. Employee Transfer Corp., 509 So. 2d 420, 423 (La. 1987)), but also that “contra non valentem [applies] where the cause of action is not known or reasonably knowable by the plaintiff,” id. at 1156. As the district court held in Fortado (another one of the severed cases), the decisions that most strongly support the theory that prescription commences when a plaintiff fails to inquire follоwing a diagnosis are all instances in which “the court found that an inquiry following a diagnosis would not have been futile. Accordingly, those diagnoses served as constructive notice, but the courts said nothing of them necessarily serving as notice simply by virtue of being diagnoses.”26
We need not answer what would have happened if Jack had acted
unreasonably, however, because we hold that Jack did not act unreasonably when he failed to inquire further into the cause of his wife‘s breast cancer.27 The question is whether a reasonable man with Jack‘s education and experience should have suspected—without any indication to the contrary—that the cause was something out of the ordinary. Under the specific facts of this case, the answer is no.
The doctrine of contra non valentem does not allow us to put ourselves, with the benefit of all our information and hindsight, into Jack‘s shoes. Nor does it permit us to opine as to whether a fictional and infallible “reasonable persоn” would have asked follow-up questions. Jack, who had no connections to the plant, had lived in the same small town all his life, was computer illiterate, and had no medical training, cannot be expected to hunt down answers to a problem when there was absolutely no suggestion, at the time of the diagnosis, that any out-of-the-ordinary problem existed.
Furthermore, breast cancer is an exceedingly common diagnosis.28 Unlike asbestosis or multiple myeloma, it generally
is not the kind of diagnosis that puts one on notice of problems in and of itself.30 And a man who does not work for an allegedly tortious employer cannot be held, with nothing more, to be suspicious of invisible and unknown emissions of surrounding companies or to embark independently on an investigation of the inner workings of an otherwise ordinary plant.31 We reverse and remand this claim to the district court for further factual development as to when Jack reasonably could have discovered the allegedly tortious cause of his wife‘s diagnosis and death.32
B.
Next, we reach Jack‘s assertion of “fear and increased likelihood of development of cancer and other fatal and debilitating diseases” caused by defendants’ allegedly negligent emissions of EtO. The district court dismissed those claims (both for negligence and nuisance) per defendants’ motions to dismiss and denied Jack leave to amend. But Jack alleges that the district court did not give him proper notice or opportunity to amend. On appeal, Jack challenges only the denial of leave to amend, not the actual dismissal.33
Negligence
Under Louisiana law, there are five elements to a negligence claim: duty, breach, causation in fact, causation in law, and damages. Lemann, 923 So. 2d at 632-33. Evonik moved to dismiss Jack‘s negligence claim, alleging that he had failed to plead a duty or breach of a duty. The district court disagreed, citing a sister case to Jack‘s. LeBouef, 620 F. Supp. 3d at 470-74. But the district court did dismiss the claim, holding instead that Jack had failed properly to plead damages. The court then denied leave to amend.
We review denials of leave to amend a complaint for abuse of discretion. Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997). That discretion, however, is bounded by
The district court gave no reason for dismissing Jack‘s claim with pre-
judice. But we can still affirm if there is a “justifying reason appearing” in the record. Foman, 371 U.S. at 182. The defendants contend that Jack has been given three chances to show damages and each time has failed to do so. Thus, they claim, the district court was perfectly in its right to dismiss for Foman‘s reason number 3: “repeated failure to cure deficiencies by previous amendments.” Smith, 393 F.3d at 595. But that contention is thwarted by the district court‘s peculiar dismissal: Jack was not put on notice that the damages element of his pleading was deficient until the very moment it was dismissed.
Jack first filed his complaint in the mass action. The district court dismissed the claim and allowed Jack leave to amend to address “specific facts supporting the application of contra non valentem” and “the duty allegedly breached by these defendants, thereby supporting claims for general negligence.” The court did not identify any issues with the damages element.
Next, Jack filed his amended complaint. The defendants moved to dismiss again—but nowhere in their motion did they claim that Jack had inadequately pleaded damages. Defendants now claim that Jack‘s failure, in his response brief, to explain how he could have more specifically pleaded damages indicates that he could not have done so. That reasoning amounts to faulting Jack for not being clairvoyant—why would a party add more detail to an allegation when, despite several motions to dismiss, no one has found it deficient?
Normally, a plaintiff should be afforded at least one chance to remedy all identified flaws in his pleadings. That did not occur, so the dismissal with prejudice was error. Plaintiffs should usually be able to amend at least once, because “fairness requires” it.35 This is not a situation in which leave to
amend would have been futile. Before dismissing Jack‘s claim, the district court held that all elements of his claim—save damages—were plausibly pleaded. Thus, if Jack can plausibly plead damages, his claim should survive a motion to dismiss.
Jack‘s negligence claim was premised on his “fear and increased likelihood of development of cancеr and other fatal and debilitating diseases.” Those are purely emotional damages. In Louisiana, plaintiffs can recover for mental anguish alone (without a physical injury) if there are “special situations” that make it especially likely that an ordinary person would experience mental anguish. The plaintiff must show an “especial likelihood of genuine and serious mental distress, arising
Identifying those special circumstances can be difficult. In one state appellate case, the plaintiffs could recover when “the record establishe[d] that all eight of the plaintiffs sustained a lifetime exposure to the various radioactive isotopes in excess of 10 rems and that there [was] no doubt according to the medical experts that a dose in excess of 10 rems results in a risk of developing cancer,” and plaintiffs testifiеd to specific mental and physical distress such as rashes and high blood pressure. Lester v. Exxon Mobil Corp., 2012-1709, pp. 11-13 (La. App. 4 Cir. 6/26/13), 120 So. 3d 767, 776-77. The district court, relying on a now-overturned Louisiana appellate decision, summarized some of those circumstances as “[p]roximity to the event,
witnessing injury to others, and contemporaneous reports from reliable sources that danger is real.” See Spencer v. Valero Ref. Meraux, LLC., No. 2021-0383, 2022 WL 305319, at *7 (La. App. 4 Cir. 2/2/22).
Since the district court ruled in Jack‘s case, Spencer has been overturned by the Louisiana Supreme Court, which clarified what is needed to make out damages in a negligence claim predicated on pure mental anguish:
The plaintiff‘s mental disturbance must be “serious.” Evidence of generalized fear or evidence of mere inconvenience is insufficient. Evidence of medical treatment is not required, nor is expert medical testimony; however, a plaintiff bears the burden of presenting sufficient evidence of the nature and extent of the mеntal anguish suffered that was caused by the defendant‘s conduct. Whether the mental distress is “serious” is a matter of proof. Finally, we reiterate that these guidelines must be applied with the policy considerations discussed herein.
Spencer v. Valero Refin. Meraux, L.L.C., 2022-00469, p. 16 (La. 1/27/23), 356 So. 3d 936, 950 (citations omitted). There was no need to show “severe, debilitating emotional distress” or that the defendant‘s conduct was “outrageous,” but “public policy considerations require reasonable limits on recovery for negligent infliction of emotional distress.” Id. at 946. The plaintiffs were not allowed recovery where they had witnessed an explosion, but the explosion had caused no release of “significant levels of chemicals” and no one whom plaintiffs knew was injured. Id. at 941, 951.
But Jack experienced both of those things: He knows that he has suffered significant levels of toxic emissions for decades, and his wife died of cancer allegedly caused by those toxins. He has cited numerous studies showing his significantly increased risk of cancer from living within three miles of the Facility for several decades and alleges that his risk is more than eight times what the EPA deems acceptable. A reasonable factfinder could decide that those are special circumstances that establish damages for mental
anguish without physical injury.
Pure mental-anguish cases like these are unique—“no one fact, or lack thereof, necessarily entitles a plaintiff to a recovery, nor does it preclude recovery.” Spencer, 356 So. 3d at 949. Yet the district court dismissed Jack‘s claim—without notice or leave to amend—because he “fail[ed] to plead any facts, let alone sufficient facts, about how his fear of cancer and other diseases has manifested itself. . . . Plaintiff has not alleged that he suffers panic
On this record, there is no way to know that Jack could not provide such proof, nor is it clear that the lack of such proof would be legally dispositive. Therefore, it cannot have been a reason to deny Jack leave to amend. None of the other Foman factors—undue delay, bad faith or dilatory motive, or undue prejudice to the opposing party—is at issue here. See 371 U.S. at 182. The dismissal without leave to amend was thus an abuse of discretion and is vacated.
Nuisance
Jack pleaded a nuisance claim under Louisiana‘s vicinage articles.
* * * * *
The finding of improper joinder is AFFIRMED. The dismissal of Jack‘s claims predicated on his wife‘s death is REVERSED and REMANDED. The denial of leave to amend the claims predicated on Jack‘s emotional injuries, as pleaded against Evonik, is VACATED.
This matter is REMANDED for proceedings as required. We place no limitation on the matters that the conscientious district court may address and decide on remand, and we give no indication of what rulings it should make.