U.S. District Court for the Eastern District of Louisiana, December 20, 2021
The plaintiff filed suit alleging that he was diagnosed with mesothelioma as a result of exposure to asbestos spanning from the 1950s to 1980s, including take-home exposure from his father’s and brother’s work at Avondale Shipyards, personal exposure from his own work at Avondale from 1969 to 1972, and person exposure from his work for the defendant, Pelnor, from 1974 to 1983.
Pelnor filed a motion for partial summary judgment arguing that the plaintiff was barred from bringing tort claims for alleged exposure that occurred after September 1, 1975, because exposure after that date was covered by the Louisiana Workers’ Compensation Act (LWCA). Pelnor argued that its liability, if any, was limited to pre-September 1, 1975.
In opposition, the plaintiff argued that the LWCA did not preclude his claims because his claims accrued prior to September 1, 1975, that he had significant exposure at Pelnor prior to the September 1, 1975, date, and that long-latency diseases such as mesothelioma could not be divisible when exposure straddled the effective date.
The court noted that on September 1, 1975, mesothelioma became a covered occupational disease under the LWCA, which provides an exclusive remedy that bars tort claims against an employer for workplace injuries except claims for intentional acts. As such, “[m]esothelioma claims that are accrued after the 1975 amendment to the LWCA are barred by the exclusive remedy provision.
Under Louisiana law, the “significant tortious exposure theory” determines when a workplace-asbestos-exposure cause of action accrues, and a plaintiff establishes accrual through “evidence that the exposures were significant.” While the court noted that there was “no bright line test to establish significant exposure in cases involving latent diseases … expert medical testimony establishing that the exposure was sufficient enough to begin the disease process” was acceptable to fix the time period for accrual.
In this case, the court found that the plaintiff’s expert provided testimony and an affidavit that supported his contention that his workplace-asbestos-exposure cause of action accrued before September 1, 1975.
As such, the court denied Pelnor’s request to dismiss any claims for post-September 1, 1975, exposure. The court noted that the plaintiff’s cause of action arose from a single legal wrong and was not divisible into multiple claims for each discrete exposure to asbestos over the years that he worked at Pelnor.