Scott v. Metropolitan Life Ins. Co. (1998)

Our plain-English summary of Scott v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, February 11, 1998).

Norbert Reilly, a sign painter at Kaiser Aluminum & Chemical Corporation's Chalmette facility from 1952 to 1983, was diagnosed with malignant mesothelioma in December 1995. He sued Kaiser, its executive officers and insurers, and several asbestos manufacturers and distributors on January 8, 1997, and died two weeks later. His wife and four children were substituted in the survival action and also brought wrongful death claims. The defendants argued the claims were prescribed because suit was not filed within one year of the diagnosis. The trial court agreed. On appeal, the court held that the trial court wrongly shifted the burden of proof to the plaintiffs, because the petition did not show prescription on its face. Even so, the defendants met their burden. Reilly was repeatedly asked about asbestos exposure, was told mesothelioma was caused by asbestos, and amended his medical history to note asbestos at work. The court found the delay unreasonable, distinguished Cole v. Celotex, and affirmed.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Louisiana Court of Appeals, 4th Circuit
• Decided: February 11, 1998
• Citation: 709 So.2d 223
• Docket: No. 97-CA-1445
• Stage: Appeal from motion to dismiss
• State: Louisiana

Outcome. The court of appeal affirmed the trial court's judgment sustaining the defendants' exceptions of prescription, so the claims of Reilly's wife and children against Kaiser Aluminum and the other defendants were time-barred.

What the court held. Asbestos claims in Louisiana are subject to a one-year prescriptive period that runs once the disease manifests with enough certainty to support a cause of action. Prescription was not suspended where the plaintiff was diagnosed with mesothelioma and was told it is caused by asbestos more than a year before suit.

Issues decided: Wrongful Death and Survival, Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• Norbert Reilly: mesothelioma; died

Who	Work	Where	When	Products
Norbert Reilly	sign painter (glass, aluminum and cement plants)	Kaiser Aluminum & Chemical Corporation Chalmette facility, Chalmette, Louisiana	1952-1983

The defendants

• Kaiser Aluminum & Chemical Corporation (employer)
• Metropolitan Life Insurance Company (insurer)

Later decisions citing this one

One later decision in our library cites this one:

• Davidson v. Georgia Pacific LLC (U.S. District Court, Western District of Louisiana, 2014). The court granted partial summary judgment for defendants Union Carbide, CertainTeed, Beazer East and Georgia-Pacific, dismissing the plaintiffs' survival claim as prescribed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

709 So.2d 223 (1998)

Daniel SCOTT, Sr.

v.

METROPOLITAN LIFE INSURANCE COMPANY, etal.

No. 97-CA-1445.

February 11, 1998.

Rehearing Denied March 16, 1998.

Court of Appeal of Louisiana, Fourth Circuit.

Frank J. Swarr, Cameron Waddell, Le-Blanc, Maples & Waddell, L.L.L., New Orleans, and J. Van Robichaux, Jr., Chalmette, [*224] for Plaintiffs-Appellants Daniel Scott, Sr., etal.

Before SCHOTT, C.J., and KLEES and CIACCIO, JJ.

KLEES, Judge.

On January 8, 1997, the plaintiff Norbert Reilly ("Reilly") filed this suit against Kaiser Aluminum & Chemical Corporation ("KACC"), its executive officers and insurers, and several manufacturers and distributors of asbestos (hereinafter, the "appellees") alleging asbestos related injuries while working at KACC's facility. In March and April of 1997, Reilly's wife and four children (hereinafter, the "appellants") were substituted in Reilly's survival action and they also asserted wrongful death claims on their own behalf. The appellee's filed exceptions of prescription alleging that the appellants' survival action was prescribed because the original suit was not filed within one year of the initial diagnosis of malignant mesothelioma. The trial court maintained the exceptions of prescription on May 23, 1997. The appellants filed a devolutive appeal from this final judgment. We affirm.

STATEMENT OF THE CASE

From 1952 until 1983, Reilly was employed as a sign painter at KACC's Chalmette facility. In November of 1995, Reilly visited Dr. Hans Schuller, a pulmonologist, for shortness of breath and left sided chest pain. On this initial examination, Dr. Schuller inquired as to whether Reilly had been exposed to asbestos. Although Reilly denied that he had worked with asbestos, he later brought a handwritten note to Dr. Schuller stating that his work did require him to work around asbestos dust.[1]

On December 11, 1995, Dr. Crumpler diagnosed Reilly with malignant mesothelioma, a fatal cancer of the lining of the lungs. Thereafter, Reilly sought a second opinion from M.D. Anderson Hospital where he consulted with Dr. Nicholas Papadopoulis. Dr. Papadopoulis asked Reilly questions concerning his asbestos exposure during this visit on December 12, 1995. After Dr. Papadopoulis confirmed the diagnosis of mesothelioma, he referred Reilly to Dr. Frank Fossella, an oncologist at M.D. Anderson, for follow up care.

On December 20, 1995, Dr. Fossella again questioned Reilly about his exposure to asbestos. Reilly informed Dr. Fossella that he had been exposed to asbestos for thirty-one years while working at the KACC facility.

On January 8, 1997, Reilly filed this suit against the appellee's alleging that his contraction of malignant mesothelioma was linked to his prior exposure to asbestos while at work. Reilly died on January 22, 1997. Thereafter, Reilly's survivors were substituted in the survival action and they also assert wrongful death claims. The trial court maintained the exceptions of prescription on March 23, 1997 ruling that the appellants' claim was prescribed on its face. Thus, the burden of proof was shifted to appellants to prove that their claim had not prescribed. Thereafter, the trial court found that the appellants failed to overcome the burden that the case had not prescribed.

SPECIFICATION OF ERROR

1. Whether the trial court erred in shifting the burden of proof regarding the peremptory exception of prescription from the appellees to the appellants.

2. Whether the trial court erred by finding that Reilly and/or the appellants knew or could reasonably have known that Reilly's disease was related to asbestos prior to one year before filing the suit.

3. Whether the trial court erred in applying the "reasonableness standard" regarding prescription in long-latency occupational disease cases.

ARGUMENT

An asbestos related action is subject to a liberative prescription of one year. La. Civ.Code art. 3492. This prescription commences to run from the day injury or damage [*225] is sustained. Id. As stated in Cole v. Celotex Corporation, "damage is considered to have been sustained, within the meaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action." 620 So.2d 1154, 1156 (La.1993). However, where the cause of action is not known or reasonable knowable by the plaintiff, courts have used the doctrine of contra non valentem to prevent the running of prescription. Id. Thus, for the appellants to prevail, they have to prove that Reilly did not know or should not have known that his malignant mesothelioma was caused by his occupational exposure to asbestos a year prior to his filing the action on January 8, 1997.

I. Whether the trial court erred in shifting the burden of proof regarding the

peremptory exception of prescription from the appellee's to the appellants'.

The burden of proof is on the party alleging prescription. Parish of St. Charles v. Grimaldi Corporation, 96-663, 696 So.2d 161, 162 (La.App. 5 Cir.1997). However, if the petition shows on its face it has prescribed, then the burden of proof shifts to the plaintiff to counter the affirmative defense of prescription. Caro v. Bradford White Corp., 678 So.2d 615 (La.App. 5 Cir.1996).

The trial court erred in finding that appellants' petition had prescribed on its face. Thus, the court erred in shifting the burden of proof from the appellees to the appellants. In this case, the petition does not even allege that Reilly was diagnosed with mesothelioma on any particular date. Additionally, Reilly's petition alleges that he did not discover the tort more than one year prior to filing the suit. Consequently, because Reilly's petition does not show that the claim is prescribed on its face, the burden of proof rested with the appellees to prove that appellants' claim had prescribed.

2. Whether the trial court erred by finding that Reilly and/or his survivors

knew or could reasonably have known that Reilly's disease was related to

asbestos prior to one year before filing the suit.

Despite the fact that the trial court erred by shifting the burden of proof to the appellants, the trial court's conclusion was correct because the appellees met the requisite burden of proof that Reilly and/or his survivors knew, or should reasonably have known, that Reilly's disease was related to asbestos over a year prior to January 8, 1997.

Reilly testified that he was diagnosed with mesothelioma by mid-November, early December 1995. The doctors testified that Reilly was questioned, repeatedly, as to whether or not he was exposed to asbestos while employed at KACC's. Additionally, Reilly testified in his own deposition that he was told that mesothelioma was caused by exposure to asbestos. Further, Reilly amended his medical history report, after being diagnosed with mesothelioma at Slidell Memorial Hospital, to reflect that his work did require him to work around asbestos. From these facts, the appellants should have known that Reilly had an asbestos-related disease over a year prior to January 8, 1997. Thus, the appellees have met the requisite burden that the appellants' claim has prescribed and the exception of prescription must be sustained.

3. Whether the trial court erred in applying the reasonableness standard

regarding prescription in long-latency occupational disease cases.

The appellant alleges that the trial court either ignored or grossly misapplied the reasonableness standard of Cole v. Celotex Corp. Appellants' argument is without merit.

The Court in Cole v. Celotex relied upon the doctrine of contra non valentem to state that "when prescription begins to run depends on the reasonableness of a plaintiff's action or inaction." 620 So.2d 1154, 1157 (La.1993). However, the facts in Cole are quite different than the facts in this case. In Cole, the plaintiff was diagnosed with pleurisy or early pneumonia in 1955. Again, in 1979, he was told by the company physician that "something showed up on his chest x-ray" and that it was "pleurisy or pneumonia or something like that." Id. at 1155. Consequently, the doctors requested that the [*226] plaintiff continue to be monitored on an annual basis, although he did not have any ill effects or symptoms associated with asbestosis. Id.

The plaintiff was not diagnosed with asbestosis until late 1985 or early 1986. Id. The court found that plaintiff's delay in filing suit until October 1986 against manufacturers of asbestos-containing products was reasonable, and the action had not prescribed because, prior to 1985, he had been told that the x-ray findings of plaque on his lungs could be result of several causes besides asbestosis.

Unlike the facts in Cole, Reilly was diagnosed with malignant mesothelioma in 1995. His own testimony reveals the fact that the doctors told him that asbestos was a cause of mesothelioma. Thus, under the facts in this case, the trial court did not misapply the mandates of Louisiana law in finding that the appellants did not act reasonably in delaying the suit. CONCLUSION

For the reasons expressed above, the trial court's decision in maintaining the exception of prescription is affirmed. AFFIRMED.

[1] This handwritten note was delivered to Dr. Schuller's office after Reilly was diagnosed with mesothelioma.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites