SUSAN M. CHEHARDY, Judge.
This appeal involves sixteen plaintiffs
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,
On May 10, 2002 In re: Harvey TERM,
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 allegedly 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.
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.
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,
As to the Pollard CDC plaintiffs, Exxon Mobil contends these five plaintiffs had constructive knowledge of their possible
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 nonPollard 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"),
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 nonPollard 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.
In a peremptory exception of prescription, the mover bears the burden of proof. However, if the petition is prescribed on its face, the burden shifts to the
Plaintiff to negate the presumption by establishing prescription has been suspended or interrupted. Taranto v. Louisiana Citizens Property Insurance Corp., 10-105 (La.3/15/11), 62 So.3d 721, 726. A trial court's findings of fact on the issue of prescription are subject to the manifest error standard of review. Id.
At the three-day hearing on the exception of prescription, which concluded on November 18, 2009, plaintiffs presented testimony from four witnesses. The parties then agreed to forego further testimony, and submit the remaining issues to the trial judge via exhibits. On December 10, 2009, after reviewing 37 exhibits offered by
The trial court's decision and extensive reasons for judgment indicated that Pollard CDC, the first petition filed on May 23, 2001, was prescribed on its face because the ITCO pipe yard, where all of the current plaintiffs admittedly suffered exposure to radioactive material, closed in 1992. The court then correctly determined that the burden shifted to plaintiffs to prove that the suits for personal injury damages filed almost a decade later were not prescribed.
The trial court's initial determination was that Exxon Mobil had actively engaged in conduct that effectively prevented the Pollard CDC plaintiffs from availing themselves of their cause of action by misrepresenting to plaintiffs the risk of the harm to them associated with exposure from these classes of radioactive material. In applying the doctrine of contra non valentem, in accordance with Carter v. Haygood 04-0646 (La.1/19/05), 892 So.2d 1261, 1267, the trial judge found that the actions of Exxon Mobil had interrupted prescription, and rendered the plaintiffs' petition in Pollard CDC, filed May 23, 2001, timely. In its reasons for judgment, the trial court described the most telling indicator of Exxon Mobil's continued attempts to conceal the risk of harm from exposure to radioactive NORM as alleged in Pollard CDC:
year simply from living, and the U.S. average is 100 milligrams per year.
The trial court then went on to conclude:
The trial court also determined that the Lester CDC plaintiffs presented adequate evidence at the hearing that they did not learn of the cause of action for personal injuries that resulted from the risk of harm from NORM exposure until the Grefer jury verdict was reported on May 22, 2001.
After reviewing the trial judge's extensive reasons for judgment, we find that the trial court did not commit manifest error in its findings of fact on the issue of prescription, or in applying the doctrine of contra non valentem, in holding that Exxon Mobil's actions had interrupted prescription and rendered plaintiffs petition in Pollard CDC filed May 23, 2001, timely.
Next, the trial court addressed the timeliness of the Lester CDC suit as related to the filing of Pollard CDC. Exxon argued that, under the law, once the original Pollard CDC action was voluntarily dismissed by plaintiffs in December 2004, it was as if prescription had never been interrupted. The trial court, however, relying on Levy v. Stelly,
In Levy, our brethren on the Fourth Circuit held:
Levy, 277 So.2d at 196.
We find no error in the trial court's reliance on Levy in determining that the instant Lester CDC petition was filed timely.
Additionally, Exxon Mobil contends that this Court's previous opinion in Lester I, supra addresses the timeliness of the original Lester CDC petition. However, Exxon Mobil's interpretation of Lester I is mistaken.
Lester I presented this Court with the question of prescription of claims as it related to a "Clarifying and Amending Petition" (hereinafter referred to as "Amending Petition") filed on May 5, 2009, almost seven years after the original Lester CDC petition was filed. The Amending Petition sought to add a new cause of action for wrongful death and survivor benefits, and new classes of plaintiffs, surviving spouses and children (hereinafter the "New Plaintiffs"). In Lester I, the New Plaintiffs argued that the Amending Petition should enjoy the same interruption of prescription afforded the original Lester CDC petition, through the Pollard CDC suit, as in Levy, or in the alternative, that the Amending Petition should be allowed to "relate back" to the original Lester CDC petition in accordance with La. C.C.P. art. 1153.
In Lester I, the trial court granted Exxon Mobil's exception of prescription, finding that the Amending Petition was, in fact, a supplemental petition. The trial court further held that Pollard CDC did not interrupt prescription for the Amending Petition because it had been dismissed on December 10, 2004, three years before
The trial court reasoned, and this Court agreed in Lester I, that the New Plaintiffs in the Amending Petition could not avail themselves of the suspension of prescription afforded putative class members under La. C.C.P. art. 596(3).
The case before us is distinguishable from Lester I, particularly when considering where on the timeline of this lengthy matter the original petition in Lester CDC falls.
With respect to Exxon Mobil's assignment of error regarding prescription,
New defendants and new plaintiffs may be added by supplemental and amended pleadings if the applicable criteria are met. In some instances, even new causes of action may be asserted in supplemental and amended pleadings. Gaines v. Bruscato, 30,340, (La.App. 2 Cir. 4/8/98); 712 So.2d 552, 557-558, writ denied, 98-1272 (La.6/26/98); 719 So.2d 1059.
In Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040, 1044 (La.1985), the court held that:
The action filed by Mr. Soto arose from the same conduct, transaction, or occurrence by Exxon Mobil as set forth in the original pleading in both Pollard CDC and Lester CDC. Further, the defendants knew of or should have known of the existence of Mr. Soto and other workers like him. Additionally, Mr. Soto's amending petition was filed only 10 months after the original petition in Lester CDC, and prior to the time that Pollard CDC was dismissed, distinguishing this filing from the amended petition in Lester I.
For the reasons stated above, we find no error in the trial court's denial of Exxon Mobil's exception of prescription. The trial court determined that no proof was offered that any plaintiff from Pollard CDC or Lester CDC became aware of the existence of their cause of action for injuries sustained from exposure to NORM or TERM until the Grefer verdict was reported on May 22, 2001. As a result of that finding, the timely filing of the Pollard CDC suit on May 23, 2001 interrupted prescription for all the plaintiffs in Lester CDC filed on December 20, 2002, and the supplemental petition filed by Mr. Soto on October 24, 2003.
In its next assignment of error, Exxon Mobil, relying on Bonnette v. Conoco, Inc.,
Here, sixteen plaintiffs proceeded to trial against Exxon Mobil seeking damages for fear of cancer, increased risk of developing cancer, and medical monitoring because of their exposure to NORM. Seven of those sixteen plaintiffs also had claims
On February 18, 2010, the trial judge granted Exxon Mobil's motion for directed verdict regarding punitive damages for plaintiffs' fear of cancer claims. As a consequence, plaintiffs' "fear of cancer" claims were not presented to the jury. On March 5, 2010, after two weeks of deliberations, the jury awarded damages to all sixteen plaintiffs for their "increased risk of cancer" as a result of their exposure to NORM by Exxon Mobil.
The jury's determination of the amount, if any, of an award of damages is a finding of fact. Ryan v. Zurich Am. Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214, 219. Our law provides that, "[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury." La. C.C. art. 2324.1.
It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, the supreme court set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).
If the trial court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.
Here, each plaintiff testified to a fear of contracting cancer in the future as a result of his exposure to NORM for a period of years. Recently, in Arabie v. Citgo Petroleum Corp.,
Plaintiffs present three assignments of error on appeal. Each of those assignments of error challenge the award of damages: first, the district court erred in failing to award punitive damages; second, the district court erred in failing to award damages for medical monitoring; and third, the district court erred in awarding general damages that are abusively low.
Additionally, although not listed as assignments of error, plaintiffs also challenge, in their brief, numerous evidentiary rulings and the denial of their Batson/Edmonson claim.
In their first assignment of error, plaintiffs contend that the district court erred in failing to award punitive damages. We disagree. Former La. C.C. art. 2315.3, effective September 3, 1984 and repealed April 16, 1996, provided for punitive damages "if it [were] proved that plaintiffs injuries were caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances."
Here, the trial court granted defendant's directed verdict on the issue of punitive damages with respect to seven plaintiffs' increased risk of cancer claim. Here, although plaintiffs do have an increased risk of cancer because of Exxon Mobil's actions, plaintiffs did not prove actual injury as required by former La. C.C. art. 2315.3. There was no error in the trial court's grant of defendant's motion for directed verdict on plaintiffs' claim for punitive damages.
In their second assignment of error, plaintiffs argue that the district court erred in failing to award damages for medical monitoring.
Here, plaintiffs failed to prove that there was no reasonable basis for the jury's award or that its finding was clearly wrong. We will not disturb the jury's finding on appeal.
In their third assignment of error, plaintiffs argue that the district court's general damages award was abusively low. We disagree.
The discretion vested in the trier of fact is great and even vast, such that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).
Although plaintiffs argue that the jury's award of general damages was low considering the wealth of the defendant, from our review of the record, it is obvious that the jury concluded that the plaintiffs deserved compensation for their risk of developing cancer for each year that each plaintiff was exposed to radioactive waste by Exxon Mobil. We will not disturb the jury's award of damages.
Additionally, although not listed as assignments of error, plaintiffs also argue, in brief, that the trial judge erred in numerous evidentiary rulings and the denial of their Batson/Edmonson claim. In an abundance of caution, we address those arguments here.
Plaintiffs contend that the trial court made numerous erroneous rulings excluding evidence of Exxon Mobil's reprehensibility, expert medical and scientific testimony, and deposition testimony from John Hooper, CEO of co-defendant ITCO.
La. C.E. art. 103(A) deems that an error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. Thus, the proper inquiry for determining whether a party was prejudiced by a court's alleged erroneous ruling is whether the alleged error, when compared to the entire record, had a substantial effect on the outcome of the case. Arabie Bros. Trucking Co. v. Gautreaux, 03-0120, p. 13 (La.App. 1 Cir. 8/4/04), 880 So.2d 932, 942. The party alleging prejudice by the evidentiary ruling of the court bears the burden of so proving. Emery v. Owens-Corp., 00-2144, p. 7 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 449.
Here, plaintiffs fail to provide support that the alleged error had a substantial effect on the outcome of this case. Their argument lacks merit.
Plaintiffs allege that the trial judge erred in denying its claim that Exxon Mobil systematically struck minority jurors from the jury that heard this trial in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Plaintiffs specifically contend that Exxon Mobil, with discriminatory intent, struck four African-American potential jurors — Anton Batiste, Elise Jones, Christopher Hayes-Bougere, and Edna Leboyd — from the jury that tried this case.
In the final step of the analysis, the trial court must determine whether the party raising the Batson/Edmonson challenge has carried his burden of proving purposeful discrimination. At this stage, the trial court must consider the persuasiveness of the explanations. It is at this stage that implausible or fantastic justifications may be found to be pretexts for purposeful discrimination. Purkett, 514 U.S. at [768], 115 S.Ct. at 1771.
In this case, voir dire of the jury panels took place over four days. On the second day of voir dire, after the trial judge denied its challenge of prospective juror Elise Jones for cause, Exxon Mobil used a peremptory challenge to strike Ms. Jones. Plaintiffs' counsel objected stating:
After a short aside, the trial judge responded, "[Y]ou have to pass the threshold first and then you have to do more — get beyond doing two challenges on an African-American. I realize there's not that many on the jury venire at this time, but note that's a challenge at this time." Here, the trial judge apparently did not find that plaintiffs made a sufficient prima facie showing that the defense had challenged Ms. Jones on the basis of her race.
The next day, after the trial judge denied its challenge of prospective juror Christopher Hayes-Bougere for cause, Exxon Mobil used a peremptory challenge to strike Mr. Hayes-Bougere. Plaintiffs' counsel did not object at that time so any challenge was waived. See, Nunnery v. City of Kenner, 08-1298 (La.App. 5 Cir. 5/12/09), 17 So.3d 411, 415; La. C.C.P. art. 1635.
On the final day of voir dire, Exxon Mobil used its final peremptory challenge to strike prospective juror Ms. Edna Leboyd. Plaintiffs again objected on the basis that Exxon Mobil exhibited discriminatory intent by its pattern of striking minorities, specifically four African-Americans, from the jury.
In response, defense counsel stated that Exxon Mobil peremptorily challenged Mr. Batiste only after its challenge for cause
Next, with respect to Ms. Jones, defense counsel stated that he was not aware that Ms. Jones was African-American when he back-struck her. Defense counsel stated Exxon Mobil challenged Ms. Jones for cause because she was biased against the chemical company because she stated that there exists "no safe level of exposure." However, defense counsel stated that once the trial court denied Exxon Mobil's cause challenge of Ms. Jones, they used a peremptory challenge to remove her from the jury, not because of her race but because of her bias.
Plaintiffs' counsel stated that Exxon Mobil "said [Ms. Leboyd] did admit to bias." After listening to both parties regarding Batson/Edmonson challenge, the trial judge found that counsel for Exxon Mobil "gave legitimate reasons why you did each one race neutral" and denied plaintiffs' Batson/Edmonson challenge.
A reviewing court owes the district judge's evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Purkett, supra (citing Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991)). Our review of the voir dire transcript reveals that Exxon Mobil presented plausible, if not persuasive, reasons for using its peremptory challenges against the challenged prospective jurors. We find no merit in plaintiffs' argument.
For the foregoing reasons, we find no error in the trial court's denial of Exxon Mobil's exception of prescription with respect to the claims of these sixteen plaintiffs. Moreover, we find that the damages awarded by the jury did not constitute an abuse of discretion, and, therefore, decline to disturb the jury's award.
In all respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed solely against Exxon Mobil.
JOHNSON, J., dissents with reasons.
JOHNSON, J., dissents with reasons.
I respectfully disagree with the majority opinion and find that plaintiffs' case is prescribed.
As properly stated by the majority, the mover bears the burden of proof on an exception of prescription. If the petition is prescribed on its face, the burden shifts to the plaintiff to negate the presumption by establishing prescription has been suspended or interrupted. Taranto v. Louisiana Citizens Property Insurance Corp., 10-105, p. 5 (La.3/15/11), 62 So.3d 721, 726.
Contrary to the majority's conclusion that the trial court found plaintiffs' petition was prescribed on its face and, thus, the trial court properly shifted the burden to plaintiffs to prove their suit was not prescribed, the record shows that prior to the hearing on the exception of prescription, the trial court actually determined that plaintiffs' lawsuit was not prescribed on its face. The law is clear that if the petition is not prescribed on its face, the mover, or Exxon Mobil, bears the burden of proving prescription. Thus, the trial court once it concluded plaintiffs' petition was not prescribed on its face, the trial court improperly shifted the burden to plaintiffs to prove the interruption or suspension of prescription or the application of contra non valentem. Because this is legal error, this
Court's review of the prescription
Delictual actions are subject to a liberative prescription of one year from the date of injury or damage. La. C.C. art. 3492. Prescription runs against all persons unless excepted by legislation. La. C.C. art. 3467. The jurisprudential doctrine of contra non valentem is an exception to this statutory rule. Marin v. Exxon Mobil Corp., 09-2368, p. 11 (La. 10/19/10), 48 So.3d 234, 245.
Contra non valentem applies in four factual situations to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Id. at 12, 48 So.3d at 245.
The fourth category, also known as the discovery rule, "prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff." Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La.1993). Under this category of contra non valentem, prescription begins to run when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he is the victim of a tort. Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510. Constructive knowledge is "whatever notice is enough to excite attention and put the injured party on guard and call for inquiry." Id., 01-2707 at 12, 828 So.2d at 51011. "Prescription will not begin to run at the earliest indication that a plaintiff may have suffered some wrong." Cole, 620 So.2d at 1157. Mere apprehension by a plaintiff that something is wrong is insufficient to commence the running of prescription "unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts [of the defendant.]" Campo, 01-2707 at 12, 828 So.2d at 511.
The Louisiana Supreme Court has observed the difficulty in identifying the precise point in time at which a claimant becomes aware of sufficient facts to begin the running of prescription, and has explained that when prescription begins to run depends on the reasonableness of a plaintiffs action or inaction. Cole, 620 So.2d at 1157. The reasonableness of a plaintiffs action or inaction is considered in light of his education, intelligence, severity of the injury, and the nature of the defendant's conduct. Campo, 01-2707 at 12, 828 So.2d at 511. Contra non valentem will not apply to exempt a plaintiffs claim from the running of prescription "if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff
Regarding the Pollard plaintiffs, Exxon Mobil contends these five plaintiffs had constructive knowledge of their possible exposure, which sufficiently triggered the running of prescription, several years before they filed suit in May 2001. As for the ten non-Pollard plaintiffs, Exxon Mobil contends the doctrine of contra non valentem did not apply to prevent the running of prescription because it did nothing to prevent plaintiffs from filing suit. Exxon Mobil further asserts that prescription began to run once plaintiffs knew or should have known of their exposure to NORM, which the trial court determined was when the verdict in the Grefer lawsuit was reported in the media on May 23, 2001. Although Exxon Mobil disagrees with this factual determination of the trial court, it maintains that even under these facts, the claims of the non-Pollard plaintiffs prescribed on May 23, 2002, seven months before they filed suit on December 20, 2002. Exxon Mobil further contends that this Court's decision in Lester v. Exxon Mobil Corp., 09-1105 (La.App. 5 Cir. 6/29/10), 42 So.3d 1071, writ denied, 10-2244 (La.12/17/10), 51 So.3d 14, makes it clear that the Pollard suit filed on May 23, 2001 did not suspended prescription for the present plaintiffs because they expressly opted out of the class action suit when they filed a separate lawsuit in December 20, 2002. Exxon Mobil further asserts the amending petition, filed on October 24, 2003, adding Ernesto Soto as a plaintiff did not relate back to the filing of the original petition and, thus, for the same reasons applicable to the non-Pollard plaintiffs, Mr. Soto's claims are prescribed.
Plaintiffs respond that they did not have sufficient opportunity for reasonable inquiry to initiate the running of prescription more than one year before suit was filed in December 2002. They maintain prescription did not begin to run at the earliest possible indication that they suffered a wrong. Plaintiffs further contend that this Court's decision in Lester, supra, is contrary to Pitts v. Louisiana Citizens Property Ins. Corp., 08-1024 (La.App. 4 Cir. 1/7/09), 4 So.3d 107, writ denied, 09-286 (La.4/3/09), 6 So.3d 772, and Taranto v. Louisiana Citizens Property Ins. Corp., 09-413 (La.App. 4 Cir. 12/16/09), 28 So.3d 543, wherein the Fourth Circuit held that pendency of a cause of action suspends prescription for any class member who later files his own lawsuit.
I first observe that plaintiffs' petition is prescribed on its face. While careful not to list any dates, plaintiffs nonetheless alleged in paragraph XXXI of their petition that Exxon Mobil's conduct occurred during the period of the effective dates of former La. C.C. art. 2315.3, which provided for punitive damages for injuries caused by the wanton or reckless disregard of public safety in the storage, handling, or transportation of hazardous or toxic substances. Article 2315.3 was repealed by Acts 1996, 1st Ex. Sess., No. 2, § 1, effective on April 16, 1996. Thus, by plaintiffs' own allegation, their claims arose sometime before 1996, more than six years prior to suit being filed. As such, plaintiffs' petition was prescribed on its face.
Plaintiffs argue that the Grefer verdict was insufficient to start the running of prescription, but rather it only indicated something might be wrong. I disagree. I find the Grefer verdict reported in the media in May 2001 provided sufficient facts to alert a reasonable person that he was a victim of a tort. The record shows plaintiffs learned from the verdict and related news reports that the grounds at the ITCO pipe yard were contaminated with radiation. Upon learning of the verdict, many plaintiffs began talking to coworkers with whom they worked at ITCO. Within weeks of the verdict, many plaintiffs had contacted a lawyer. Many plaintiffs stated they were concerned about their possible exposure after learning of the Grefer verdict in late May or early June 2001. I find by plaintiffs' own statements that they were alerted to potential problems by the Grefer verdict, which was sufficient to excite inquiry and begin the running of prescription.
Having found prescription began running in May 2001, plaintiffs had until May 2002 to file suit but did not file until December 2002. Plaintiffs contend prescription was suspended by the Pollard lawsuit filed in May 2001, of which they were members of the purported class. Under La. C.C.P. art. 596, prescription is suspended on the filing of a class action petition as to all members of the purported class. Prescription begins to run again as to any person electing to be excluded from the class, thirty days from the submission of that person's election form, or 30 days from the mailing of notice that the court has denied class certification.
Contrary to the majority, I do not find Lester I distinguishable from the present case ("Lester II"). I believe our ruling in Lester I is controlling in the present case: "the plaintiffs, [b]y filing the Warren Lester case prior to a ruling on class certification, in the In Re Harvey Term Litigation opted out of the class action suit, and therefore the pendency of that suit did not serve to suspend prescription." Lester I, 42 So.3d at 1076. As we explained in Lester I, a plaintiff, who chooses to file an independent lawsuit without waiting for the determination of class certification and while the issue of class certification is still open, cannot benefit from the tolling of prescription created by the class action. Id. at 1075-76. This is the basic tenet of law espoused in Lester I.
Other jurisprudence likewise holds that when a plaintiff files an individual lawsuit prior to a ruling on class certification, he may not rely on the class action to suspend prescription. See Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11-837 (La.App. 4 Cir. 11/23/11), 78 So.3d 835, 837;
Although not expressly noted in Lester I, I point out that not only did the Lester I and II plaintiffs file their individual lawsuit prior to a ruling on class certification, but they also explicitly opted out of the class action in their separate lawsuit. Specifically, in paragraph XXIV of their petition, plaintiffs state:
Additionally, in paragraph XXV, plaintiffs state:
Plaintiffs made it abundantly clear that they would not and never intended to participate in the other class action lawsuits. Therefore, they should not benefit from the tolling of prescription provided by the class action, in which they had no desire or intent to participate. Plaintiffs cannot pick and choose those portions of the class action they wish to apply to their separate lawsuit. Plaintiffs would like all the benefits of a class action without any of the disadvantages. The law does not so provide.
Accordingly, based on the holding in Lester I, I find plaintiffs, who by specific language in their petition expressly opted out of Pollard and any other class action, could not rely on In re Haroey TERM, or Pollard which was consolidated into In re Harvey TERM, to suspend prescription. I do not find the Lester II plaintiffs present any distinguishing facts that would preclude the application of the basic tenet of law we espoused in Lester I.
Plaintiffs' claims in Lester CDC were filed more than one year after prescription began running and nothing interrupted or suspended prescription; therefore, I believe their claims are prescribed and all other issues raised by the parties in their appeals are moot.
I find Levy distinguishable because it did not involve a class action, which is governed by the more specific articles of La. C.C.P. arts. 591, et seq. Additionally, although plaintiffs' petition in the instant case referenced pending class action lawsuits, the petition never stated the date the class action suits were filed so as to purportedly overcome prescription on the face of their petition under the Levy rationale as relied upon by the trial court.
