Hughes v. Olin Corp., 856 So.2d 222 (La.App. 2nd Cir. 2003)

Facts of the Case

Hughes was diagnosed with asbestosis in 1990. In April 2000, he visited his physician after experiencing shortness of breath. The physician believed that Hughes had mesothelioma, and Hughes underwent a thorascopy later that month. The post-operative diagnosis from this procedure was probable malignancy, mesothelioma or adenocarcinoma. A further examination of the biopsy revealed the presence of adenocarcinoma. A subsequent examination by a different pathologist revealed a different diagnosis, malignant epithelial mesothelioma. The date he learned of this diagnosis was June 9, 2000.

The Procedural Posture of the Case

Hughes filed suit against numerous companies, including Olin Corporation (Olin) on May 2, 2001. Olin filed an exception of prescription, contending that prescription had begun no later than the date of the thorascopy. The court granted this exception, and Mrs. Hughes appealed.

Issues

Was Hughes required to file suit within one year of the date of the thorascopy?

Holding

No.

Reasoning

When an exception of prescription is raised, the party raising it bears the burden of proof. However, when it is clear that prescription has run from the face of the petition, the plaintiff bears the burden of showing that the claim has not prescribed. A delictual action, such as the one involved in this case, is subject to liberative prescription of one year, “which commences to run from the date the injury or damage is sustained.” Damage is considered sustained “only when it has manifested itself with sufficient certainty to support accrual of a cause of action.”

However, there are exceptions that the courts have crafted in order to “soften the occasional harshness of prescriptive statutes.” One of these doctrines is commonly known as contra non valentem, which means that prescription does not run against a person who could not bring his suit. There are four categories present under this doctrine, and the fourth category (and only relevant one for the purposes of this case) is known as the discovery rule. The discovery rule provides “that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. The plaintiff’s ignorance of the facts upon which his cause of action is based cannot be willful, negligent or unreasonable.” Further, an injured party has constructive notice when he possesses “information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry.” The Louisiana Supreme Court stated in Boyd v. BBC Brown Boveri: “When prescription begins to run depends upon the reasonableness of a plaintiff’s action or inaction . . .”

In the court’s words:

Olin argues on appeal that Mr. Hughes acted unreasonably in delaying the filing of his lawsuit for more than one year after he was told that he probably had lung cancer and that it was suspicious for mesothelioma. It is contended that Mr. Hughes had sufficient knowledge of his cause of action when Dr. Sarama first suspected that Mr. Hughes had mesothelioma. However, such a contention misses the pint that at the time Mr. Hughes was first told that he probably had lung cancer that was suspected to be mesothelioma, he still did not definitely know whether he had lung cancer, and, if so, whether it was lung cancer associated with asbestos exposure (mesothelioma) or lung cancer of a different etiology such as smoking. He did now have constructive, much less actual, knowledge of his cause of action at that time.

. . . Under such circumstances, it was not unreasonable for Mr. Hughes to delay bringing suit until May 4, 2001, which was within one year from June 9, 2000, the date on which he learned that he had mesothelioma. Accordingly, the trial court was clearly wrong in granting Olin’s exception of prescription.

Thus, the court reversed the judgment granting Olin’s exception of prescription and remanded to the trial court for further proceedings.

Thibodeaux v. Asbestos Corporation Limited, 976 So.2d 859 (La.App. 4th Cir. 2008)

Facts of the Case

The Thibodeauxs (plaintiffs) filed suit against multiple defendants, alleging that they had suffered damages as a result of their exposure to asbestos. Namely, a member of the family, Marie Thibodeaux (decedent), had previously passed away due to mesothelioma; the defendants named in the lawsuit were premises owners, employers, manufacturers, and suppliers of asbestos-containing products.

The plaintiffs’ petition alleged that decedent contracted mesothelioma due to exposure to asbestos that was on both her father and husband’s articles of clothing when they returned home from work. Furthermore, they alleged that decedent was exposed to asbestos while she lived in the Windmill Mobile Home Park and while she was employed as a nurse at two hospitals in New Orleans, one of which was Charity Hospital. The plaintiffs alleged that Eagle Asbestos & Packing Company (Eagle) was responsible for selling, installing, and removing asbestos products at these two hospitals.

The Procedural Posture of the Case

Eagle and its insurer, OneBeacon, filed a motion for summary judgment in the district court, arguing that the plaintiffs could not prove that Eagle supplied or used any asbestos-containing products at either site and that decedent’s exposure to Eagle’s products was not a substantial factor in causing her mesothelioma. The plaintiffs filed an opposition to this motion and submitted evidence which allegedly showed the existence of a genuine issue of material fact.

At the hearing for this motion for summary judgment, the court ordered the plaintiffs to “supplement their opposition with evidence that Mrs. Thibodeaux was exposed to asbestos-containing materials manufactured, supplied, or installed by Eagle . . .” The plaintiffs submitted correspondence to the court that they would not present any additional evidence other than that which was already submitted to the court with their original opposition. The court granted this motion for summary judgment, and the plaintiffs appealed to the Fourth Circuit.

Issues

Did plaintiffs meet their burden of proof in order to defeat the motion for summary judgment?

Holding

No.

Reasoning

Article 966 of the Louisiana Code of Civil Procedure governs summary judgments. Article 966(B) states that “a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file . . . show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Article 966(C)(2) states that the “burden of proof remains on the movant to show that no genuine issue of material fact exists . . . if the movant will not bear the burden of proof at trial . . . [he must] point out that there is an absence of factual support for the claim.” Furthermore, the court states that summary judgments are favored, but “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponents favor.” When considering a motion for summary judgment, the trial court cannot make credibility determinations or inquire into the merits of the issues raised.

The plaintiffs argued that the defendants failed to discredit the causal relationship between asbestos exposure and mesothelioma and the evidence presented demonstrated genuine issues of material fact. In support of their arguments, they cited two cases: Torrejon v. Mobil Oil Co. and Grant v. American Sugar Refining Inc.

The court was able to differentiate both of these cases from the plaintiff’s case. For Torrejon, the court pointed out that “the standard in an asbestos case was [not] that ‘any’ exposure was sufficient to prove causation.” Torrejon involved an admiralty tort claim brought under the Jones Act, which calls for different legal standards than other tort actions.

The plaintiffs in Grant were able to present detailed evidence about how Mr. Grant was exposed to asbestos and which defendants’ products were present at the time of exposure. This satisfied their burden of proof; in an asbestos case, the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.

The plaintiffs in Grant were able to accomplish this by submitting Mr. Grant’s employment records which placed him at the job site where the alleged exposure took place, and he also submitted a receiving report which named Eagle, also a defendant in the Grant case, as the contractor who was hired to repair insulation and insulate condensate lines. Eagle argued that the plaintiffs needed to prove a specific exposure to asbestos. The court held that this evidence was enough to create a genuine issue of material fact and defeat the motion for summary judgment. The Grant plaintiffs also submitted more evidence, although it was not required to create a genuine issue of material fact.

The Thibodeauxs were unable to satisfy their burden of proof, as the only evidence they provided regarding the alleged exposure to products is that at some point in time between 1959 and 1984 (and decedent only worked at the hospital from 1963-66), Eagle was one of several suppliers of asbestos-containing products at Charity Hospital. The Thibodeauxs could not supply any evidence that the asbestos was used at the Hospital while she was there, nor did the plaintiffs submit any evidence that she was actually exposed to asbestos-containing products from Eagle while she was at Charity Hospital.

The Thibodeauxs could only provide one witness and even he could not remember the dates when Charity Hospital ordered Eagle products. Further, he could only recall one time when Eagle actually performed a contract at the hospital. Unfortunately for the plaintiffs, this contract was allegedly performed between 1975-80, well after decedent’s tenure at Charity Hospital.

Because of this lack of factual support for one or more elements of the claim, the grant of summary judgment was affirmed.