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.