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Louisiana's Toxic Tort Barrier May Be Weakening

In this Law360 article, partners Nick Brown and Ben Barnes and associate Matthew McClure discuss the weakening of Louisiana's toxic tort barrier and a recent decision from the U.S. Court of Appeals for the Fifth Circuit in Jack v. Evonik Corp to support the claims.

In Louisiana, family members ordinarily have only one year, aka the "prescriptive period," to bring a survival action.[1]

This relatively short period has long served as an important barrier against plaintiffs filing toxic tort claims based on exposure or death that took place years earlier.

But is that barrier weakening?

A recent decision from the U.S. Court of Appeals for the Fifth Circuit in Jack v. Evonik Corp. suggests that it is. In Jack, the Fifth Circuit reversed a district court[2] that concluded that the prescriptive period barred a husband's claim that his wife died in 2000 due to exposure to toxic chemicals.

To avoid dismissal based on the statute of limitations, the plaintiff claimed he did not know he had a potential claim until receiving a mailer from a plaintiffs firm in April 2020, at which point he sued the owner and predecessors of the manufacturing facility that allegedly caused his wife's death.

In reversing the district court, the Fifth Circuit held that limitations did not begin to run when the wife died. Instead, it applied an arguably subjective standard to hold that the plaintiff may not have been on constructive notice of his potential claim until he received the mailer.

The long-term implications of this ruling remain uncertain, but there is little doubt that the plaintiffs bar will test its outer boundaries.

From State Court to Federal Appellate Court

Ervin Jack Jr.'s legal journey began in Louisiana state court.

In April 2021, Jack was one of 14 plaintiffs to sue Evonik Corp., Shell Oil Co. and four site managers — individual natural persons — related to the emission of ethylene oxide, a colorless and odorless chemical that is allegedly carcinogenic, from a petrochemical manufacturing facility in Louisiana.

The defendants removed the case to federal district court, where the district court found complete diversity after ruling that the four site managers had been improperly joined. After granting motions to dismiss, the district court severed the claims into 14 distinct civil actions and gave the various plaintiffs leave to file amended complaints.

Jack filed an amended complaint claiming "[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 [his] fear and increased likelihood of development of cancer and other fatal and debilitating diseases."

Jack's wife died in 2000. The district court dismissed Jack's amended complaint with prejudice, reasoning that the newly pled claims on behalf of his wife were time-barred and that his own claim could not survive dismissal. Jack appealed.

The Fifth Circuit affirmed the lower court ruling that the site managers were improperly joined, overturned the ruling that the wife related claims were time-barred, and vacated the denial of leave to amend the claims related to Jack's harm.

While the Jack decision covers several important topics — including the duty of a facility manager to the surrounding community — its central holding, and what the Fifth Circuit characterized as raising "a matter of first impression,"[3] focuses on the timing of the duty to investigate toxic tort claims.

When Does a Toxic Tort Prescription Toll?

Jack's wife died of breast cancer in 2000, but Jack did not act on his claim until April 2020, after a local law firm sent a mailer stating he may have legal rights against the local facility that emitted ethylene oxide, and could have caused his wife's illness. The viability of Jack's claim hinged on whether the prescription period was tolled.

In Louisiana, the principle of contra non valentem can prevent the running of a prescriptive period "where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant."[4] Once a plaintiff has "actual or constructive knowledge of the facts" of the tort, which is to say he is on sufficient notice to make an inquiry, contra non valentem ends and the prescription period commences.[5]

The district court found that Jack had not met his burden of showing that contra non valentem applied because he had not acted reasonably. After his wife's diagnosis, Jack did not inquire as to what might have caused the cancer. The district court held that it was unreasonable not to ask questions given the circumstances, meaning contra non valentem did not apply.

The Fifth Circuit took a different view, rejecting the lower court's holding that Jack acted unreasonably by not inquiring further into the cause of his wife's breast cancer.

Noting that the test is not what a reasonable person would have done but rather what someone with Jack's education and experience would have done, the Fifth Circuit found Jack's lack of inquiry reasonable in light of (1) his ignorance about what the facility was emitting, (2) the fact he had lived in the same town his entire life, (3) his computer illiteracy, (4) his lack of medical knowledge, and (5) the fact that breast cancer is a relatively common diagnosis that would not put someone on notice of something out of the ordinary.

Without more, the Fifth Circuit held that Jack could not be expected to perform additional inquiries when his wife died in 2000.

While the Fifth Circuit found it was not necessary to rule on the importance of the second contra non valentem question related to the feasibility of the inquiry, it did make one comment in a footnote. There, the court explained that "the most natural reading of contra non valentem is that prescription cannot commence until the landscape is such that a reasonable inquiry could have put the plaintiff on actual or constructive notice of the tortious activity ... If the facts are not capable of discovery, then the claim cannot be time-barred."[6]

Significance and Takeaways

It remains unclear whether Jack will ultimately be limited to its facts.

But the plaintiffs bar will likely rely on the decision heavily going forward to argue that anyone who arguably suffered injury based on exposure to some toxic substance may have a claim, even if they only discovered the viability of such claim well outside the statute of limitations.

For better or worse, the more individualized nature of the inquiry also gives opportunities for parties to raise arguments that the parties in Jack could not.

Would a different type of cancer have warranted a different result? Would someone with medical training or a computer-savvy individual be charged with greater knowledge? If the local news had run a story on the chemical in question, could that have given rise to knowledge? These questions could have as many answers as the fact patterns that develop.

Jack also puts litigants in Louisiana on notice that contra non valentem may be viewed as having two inquiries, not one. It could no longer good enough to just find that the plaintiff did not act reasonably; there may also need to be a finding that, had a reasonable inquiry occurred, it would have actually put the plaintiff on notice.

This will undoubtedly be another area ripe for litigation.

[1] La. Civ. Code Ann. art. 2315.1(A) (survival actions); 2315.2(B) (wrongful death).

[2] See Jack v. Evonik Corp., et al. , No. cv-22-1520 (E.D. La. Aug. 12, 2022).

[3] Jack, 79 F.4th at 562.

[4] Id.

[5] Id.

[6] Id. at 563 n.27.

Reprinted with permission from the October 20, 2023 edition of Law360. All rights reserved. Further duplication without permission is prohibited.