LOUISIANA –The plaintiff filed suit against several defendants including Huntington Ingalls (Avondale) and Kaiser Gypsum (Kaiser) alleging her mother, Dolores Punch, developed and passed from mesothelioma as a result of exposure to asbestos for which the defendants were liable. Specifically, the plaintiff alleged that her decedent was exposed to asbestos fibers from washing the laundry of her husband who had worked as a pipe fitter at Avondale from 1948-1960. The plaintiff later amended her complaint to include exposure from the work clothes of her son who also worked as a helper and pipe fitter at Avondale from 1976-1979. Ms. Punch passed away on August 15, 2011. Her complaint was not filed until June 8, 2017.
Avondale removed the case to the United States District Court and the plaintiff moved to remand. The remand was denied. The defendants then moved for summary judgment arguing that the plaintiff’s claims were barred by prescription. The plaintiff countered that the doctrine of Contra Non Valentem applied because “prescription does not run against a person who could not bring his suit.” The plaintiff argued that Contra Non Valentem applied in this matter for two reasons: 1) the discovery rule and 2) the concealment rule. The court began its analysis and stated that summary judgment is appropriate where the movant shows that there is no dispute as to material fact. The plaintiff’s claims were based in Louisiana’s wrongful death and survival claims statute. That statute mandated a prescriptive period for asserting claims within one year from the death of a decedent. Here, The plaintiff waited years beyond the prescriptive period to file her complaint. The plaintiff claimed she didn’t know that asbestos caused mesothelioma until 2017. The court was not persuaded by the plaintiff’s argument. The discovery rule provided that, in extreme cases, prescription commences when the plaintiff should have known facts that would give rise to her cause of action. The court noted that the plaintiff’s own complaint alleged that the causal connection between exposure to asbestos and mesothelioma was known in the 1960’s. Additionally, The plaintiff testified that her father and brother were employed at Avondale and that ”everyone was exposed to asbestos when working at Avondale.” The court could only conclude that the plaintiff’s own neglect resulted in the timing of the filing. The court was equally unpersuaded by that the plaintiff’s claims were not prescribed under the concealment rule. Here, the plaintiff simply provided nothing to illustrate that Avondale canceled anything from her to prevent the timely filing. Accordingly, the court dismissed the case and entered summary judgment.