Lester v. Exxon Mobil Corp.

102 So. 3d 148, 10 La.App. 5 Cir. 743, 2012 WL 1957590, 2012 La. App. LEXIS 784
CourtLouisiana Court of Appeal
DecidedMay 31, 2012
DocketNo. 10-CA-743
StatusPublished
Cited by6 cases

This text of 102 So. 3d 148 (Lester v. Exxon Mobil Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lester v. Exxon Mobil Corp., 102 So. 3d 148, 10 La.App. 5 Cir. 743, 2012 WL 1957590, 2012 La. App. LEXIS 784 (La. Ct. App. 2012).

Opinions

SUSAN M. CHEHARDY, Judge.

| ¡.This appeal involves sixteen plaintiffs1 who sued various defendants seeking recovery of damages for personal injuries allegedly suffered as a result of exposure [151]*151to naturally occurring radioactive material (“NORM”)2 while cleaning pipe and tubing belonging to Exxon Mobil Corp. (Exxon Mobil) at the Intracoastal Tubular Services, Inc. (ITCO) pipe yard in Harvey, Louisiana. Plaintiffs and one defendant, Exxon Mobil, appeal the jury verdict, as well as other trial court rulings. For the reasons that follow, we affirm the trial court’s judgment in favor of plaintiffs and against defendant, Exxon Mobil.

|sFACTS AND PROCEDURAL HISTORY

The inception of the current litigation has a protracted history beginning on May 22, 2001 when the multi-million dollar verdict in Grefer v. Alpha Technical,3 involving NORM contamination at the former ITCO pipe yard, was reported in the local press. The next day, May 23, 2001, the first lawsuit for personal injury damages caused by exposure to NORM at or near various pipe yards was filed by Leo Pollard, Jr. and others against several defendants, including Exxon Mobil and ITCO, in Civil District Court for the Parish of Orleans, bearing docket number 01-8707, Division D (“Pollard CDC”). Several similar lawsuits followed.

On May 10, 2002 In re: Harvey TERM,4 a separate class action suit, bearing docket number 01-8708, Division D, in Civil District Court for the Parish of Orleans was filed. In response to the filing of the class [152]*152action suit, on December 20, 2002, five of the original Pollard CDC plaintiffs and Warren Lester, individually and on behalf of hundreds of other similarly situated plaintiffs, filed another lawsuit against Exxon Mobil, ITCO and others in Civil District Court for the Parish of Orleans bearing docket number 02-19657, (“Lester CDC”), for personal injury damages caused by exposure to NORM, and other hazardous, toxic and carcinogenic radioactive materials, including technologically enhanced radioactive material (“TERM”).5

As the litigation progressed without a determination of class status the Judge of Division D in Civil District Court for the Parish of Orleans determined that the individual plaintiffs would be tried in “flights” according to pipe yard location. On March 23, 2006, the Orleans Parish Judge maintained defendants’ exception of venue with respect to the flight of 24 plaintiffs whose sole source of exposure |4allegedly occurred at the ITCO pipe yard in Harvey, and transferred the instant case to the 24th Judicial District Court for Jefferson Parish. On January 11, 2010, sixteen of those plaintiffs, appellants herein, proceeded to trial against the only remaining defendants, Exxon Mobil and ITCO.

After 34 days of trial, the jury returned a verdict in favor of all sixteen plaintiffs solely against Exxon Mobil, and awarded damages to each plaintiff for increased risk of contracting cancer in amounts ranging from $10,000.00 to $175,000.00, with the award totaling $1,195,000.00. The jury did not find that plaintiffs were entitled to any additional damages for medical monitoring. The jury further determined that Exxon Mobil did not engage in wanton or reckless conduct in the storage, handling or transportation of hazardous or toxic substance and, thus, did not award punitive damages. The jury also found no fault on behalf of ITCO. This appeal follows.

LAW AND ANALYSIS

EXXON MOBIL’S APPEAL

Exxon Mobil assigns two issues for review by this Court: first, the trial court erred in denying its exception of prescription as to all sixteen plaintiffs and, second, the jury erred in awarding damages for increased risk of contracting cancer when plaintiffs have no present injury, no need for medical monitoring, and their right to sue for cancer, if they develop it in the future, was reserved.

Prescription

With respect to its first assignment of error, Exxon Mobil divides plaintiffs into three groups and contends that all 16 plaintiffs’ claims are prescribed. The three groups are: (1) the Pollard CDC plaintiffs,6 who were named in the Pollard CDC litigation filed on May 23, 2001; (2) the non-Pollard CDC plaintiffs,7 who first filed suit on December 20, 2002 in the Lester CDC petition; and (3) Ernesto Soto, who joined the litigation via an amended and supplemental petition filed on October 24, 2003.

As to the Pollard CDC plaintiffs, Exxon Mobil contends these five plaintiffs had constructive knowledge of their possible [153]*153exposure to NORM as early as 1987, which triggered the running of prescription years before they filed suit in May |s2001. Exxon Mobil contends that the doctrine of contra non valentem should not be invoked to extend the prescriptive period more than a decade to make these claims timely.

As to the ten non -Pollard CDC plaintiffs, Exxon Mobil asserts that prescription began to run once plaintiffs knew or should have known of their exposure to NORM, which the trial court determined was May 22, 2001, the date that the verdict in the Grefer lawsuit was reported in the media. Although Exxon Mobil disagrees with this factual determination by the trial court, it maintains that even under these facts, the claims of the non-Pollard CDC plaintiffs prescribed on May 23, 2002, seven months before they filed suit on December 20, 2002. Exxon Mobil further contends that the doctrine of contra non valentem would not apply to prevent the running of prescription as to the non -Pollard CDC plaintiffs because Exxon Mobil did nothing to prevent these plaintiffs from timely filing suit.

Exxon Mobil further contends that this Court’s decision in Lester v. Exxon Mobil Corp. (“Lester I ”),8 makes it clear that the Pollard CDC suit filed on May 23, 2001 did not interrupt prescription for the Lester CDC plaintiffs because the Lester CDC plaintiffs, by express language in that petition opted out of the class action suit, In re: Harvey TERM.9

As to Mr. Soto, Exxon Mobil asserts the amending petition, filed on October 24, 2003, adding Mr. Soto as a plaintiff to Lester CDC, did not relate back to the filing of the original petition and, thus, for the same reasons applicable to the non-Pollard CDC plaintiffs, Mr. Soto’s claims are prescribed.

Prior to trial, Exxon Mobil filed an exception of prescription asserting that plaintiffs’ petition in Lester CDC was prescribed on its face. Exxon Mobil argued that plaintiffs alleged exposure to NORM while working at the ITCO pipe yard had occurred no later than 1992, almost a decade before plaintiffs filed suit in December of 2002. Exxon Mobil maintained that the doctrine of contra non valentem did not apply to prevent prescription from running, because all plaintiffs had constructive knowledge by the early 1990s, and five of the plaintiffs had actual knowledge in 1987 of their potential exposure to NORM. Exxon Mobil further maintained that it did nothing to prevent plaintiffs from timely filing suit.

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Cite This Page — Counsel Stack

Bluebook (online)
102 So. 3d 148, 10 La.App. 5 Cir. 743, 2012 WL 1957590, 2012 La. App. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lester-v-exxon-mobil-corp-lactapp-2012.