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Article: Arguments to Combine Land Loss Suits Rejected

S. Beaux Jones -  Posted on by Baldwin, Haspel, Burke & Mayer

Published in Louisiana Bar Journal Vol. 66, No. 3.

In Re: La. Coastal Zone Land Loss Litigation, 317 F.Supp.3d 1346 (Mem) (Multi. D. Lit. 2018.) After being removed to federal court again (the third time for some of the cases), five judges of the United States Judicial Panel on Multi-District Litigation rejected defendants’ arguments to combine the dozens of coastal-land-loss suits into a multi-district litigation format (MDL) pursuant to 28 U.S.C. § 1407. The panel, which sat for hearings in Santa Fe, NM, concluded that centralization is “not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of this litigation.”

The panel acknowledged that the 41 cases (29 pending in the Eastern District of Louisiana and 12 in the Western District of Louisiana) broadly implicated the same factual questions — namely, that the five coastal parishes were experiencing significant coastal-land loss and whether or to what extent oil and gas extraction or transmission contributed to that loss — but the panel focused on the fact that each case was specifically tailored to an “operational area” that would likely have distinct causes of action, discovery needs and different defendants.

Although the parties disagreed over the prudence of consolidation as an MDL under section 1407, the parties were mutually agreeable to some form of consolidation at the federal court level. As such, the MDL panel recognized that future consolidation by the Eastern and Western District Courts may be a possibility under 28 U.S.C. § 1404.

The 41 separate cases, which were removed on the basis that the plaintiffs’ preliminary expert reports implicated federal directives issued during World War II and thus before the passage of the Coastal Zone Management Act (upon which the cases are based), now remain in federal district court and await decisions on pending motions to remand.

NORM Litigation

Lennie v. Exxon Mobil Corp., 17-0204 (La. App. 5 Cir. 6/27/18), ____ So.3d ____, 2018 WL 3131444.

In an appeal from the 24th Judicial District Court, the Louisiana 5th Circuit recently clarified its application of prescription and contra non valentem in NORM (naturally occurring radioactive material) litigation.

This case was a survival and wrongful death suit brought by the surviving spouse and children of a man who had worked in a pipe yard where they allege he was exposed to NORM, leading to his death from lung cancer some 16 years after his retirement.

The plaintiffs’ claims were based in tort, thus carrying a one-year prescriptive period under La. Civ.C. art. 2315.1. Lennie died in 2010 — some four years prior to his family filing suit on his behalf. As such, the defendants filed prescription exceptions at the trial court, which were granted. The trial court found that the plaintiffs failed to meet their burden of proof to apply the doctrine of contra non valentem, which suspends the running of prescription against a claimant who is “ignorant of the existence of facts that would enable him to bring a cause of action, provided that his ignorance is not willful, negligent, or unreasonable.” Guillot v. Daimlerchrysler Corp., 08-1485 (La. App. 4 Cir. 9/24/10), 50 So.3d 174, 181 (citing Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d 206, 212). Relevant to the Lennie case, contra non valentem may apply when: 1) there has been concealment by the alleged tortfeasor; or 2) where the plaintiffs do not have actual or constructive knowledge of the cause of action even if not induced by the defendant.

More specifically, the plaintiffs alleged that “the defendants actively sought to conceal the causal link between work-related NORM exposure and lung cancer, and downplay the danger of exposure to the radioactive material in the workplace.” Lennie at *4. In support of this claim, the plaintiffs alleged that NORM was previously discovered by the oil industry and that a trade group was established to develop a screening method to detect NORM, which was approved by the state and adopted by Lennie’s employer. A similar argument was successfully made in Lester v. Exxon Mobil Corp., 10-743 (La. App. 5 Cir. 5/31/12), 102 So.3d 148. However, the 5th Circuit distinguished the Lester case due to the plaintiffs’ failure to present “any evidence of actions taken by defendants that would rise to the level of concealment, misrepresentation, or fraud directed towards them.” Lennie at *4. In Lester, there was evidence suggesting that the employer showed videos to workers suggesting that NORM exposure was very unlikely.

The Lennie plaintiffs also sought to avail themselves of the suspensive influence of contra non valentem by alleging that they had no actual or constructive knowledge of the cause of action, also known as the “discovery rule.”

The Lennie plaintiffs testified that they did not have actual knowledge that another party wrongfully caused Lennie’s death until they read a newspaper article in 2013. However, the court concluded in its de novo review that “Mr. Lennie’s diagnosis of lung cancer in January 2010 was constructive notice sufficient to put the Lennies on guard and to call for them to inquire further into the cause of his condition.” Lennie at *8. The court found that the Lennies’ lack of knowledge was due only to their lack of investigation. In so ruling, the court distinguished an earlier ruling allowing for the application of contra non valentem in a situation where the plaintiff has investigated the cause of an injury, but received an alternative diagnosis from a physician.



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