Ellis v. Evonik Corp.

604 F.Supp.3d 356

Lamar ELLIS, et al.

v.EVONIK CORPORATION, et al.

CIVIL ACTION NO. 21-1089

United States District Court, E.D. Louisiana.

Signed May 27, 2022

Richard P. Voorhies, III, William Barousse, Voorhies Law Firm, New Orleans, LA, Brandon Anthony Naquin, Jennifer L. Thornton, William M. Ross, Stanley, Reuter, Ross, Thornton & Alford, LLC, New Orleans, LA, for Lamar Ellis.

Roland M. Vandenweghe, Jr., Charles A. Cerise, Jr., Don S. McKinney, Erica Sensenbrenner, Adams & Reese, LLP, New Orleans, LA, for Evonik Corporation.

SECTION "R" (3)

ORDER AND REASONS

SARAH S. VANCE, UNITED STATES DISTRICT JUDGE

Before the Court are defendants Shell Oil Company's ("Shell")¹ and Evonik Corporation's ("Evonik")² motions to dismiss plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiffs oppose both motions.³

For the following reasons, the Court grants Shell's motion, and grants in part, and denies in part, Evonik's motion. The Court further severs this case into fourteen distinct civil actions, each with one plaintiff. Plaintiff Lamar Ellis's case shall remain assigned to Section R, and the thirteen severed cases shall be randomly allotted to other sections of this court. The Court grants all plaintiffs fourteen (14) days from the creation of the new civil actions to file amended complaints in each, consistent with this order's selective grants of leave to amend.

I. BACKGROUND

This case arises out of alleged exposure to ethylene oxide ("EtO") near a petrochemical plant in Reserve, Louisiana (the "facility"), owned and operated by defendants Evonik and Shell.⁴ Shell owned and operated the facility from 1991 until 1999,⁵ and Evonik has owned and operated the facility since that time.⁶ Plaintiffs are fourteen Louisiana residents who live within seven miles of the facility,⁷ and who have either contracted cancer, or had a spouse die from cancer, allegedly because of unknowing exposure to dangerous levels of EtO emitted by the facility.⁸

On April 26, 2021, plaintiffs filed suit in the Civil District Court for the Parish of St. John the Baptist, alleging that inhalation of EtO emitted from the facility was a substantial factor in causing plaintiffs’ cancer, or their spouses’ cancer.⁹ In their complaint, plaintiffs named as defendants Evonik and Shell,¹⁰ as well as four non-diverse employee defendants.¹¹ As to Evonik and Shell, plaintiffs allege claims of negligence, civil battery, and nuisance.¹²

On June 4, 2021, Evonik removed the case to federal court, contending that the non-diverse employee defendants were improperly joined, and that, therefore, this Court has diversity jurisdiction under 28 U.S.C. § 1332.¹³ On October 19, 2021, the Court denied plaintiffs’ motion to remand the case, and dismissed plaintiffs’ claims against the improperly joined employee defendants.¹⁴

On November 5, and 9, 2021, respectively, defendants Shell and Evonik filed motions to dismiss plaintiffs’ complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.¹⁵ Both movants contend that plaintiffs’ claims against them are time-barred, because suit was filed after the termination of plaintiffs’ one-year prescriptive period. They further assert that the claims must be dismissed on the merits, because plaintiffs have not stated a claim for negligence, battery, or nuisance, under Louisiana law.

Plaintiffs oppose both motions, contending that their claims are not time-barred, because (1) the prescriptive period was suspended under the doctrine of contra non valentem , and because (2) they allege continuing torts. Plaintiffs also argue that their complaint sufficiently states claims for negligence, battery, and nuisance.

The Court considers the parties’ arguments below.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. The Court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc. , 565 F.3d 228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

On a Rule 12(b)(6) motion, the Court must limit its review to the contents of the pleadings, including attachments. Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp. , 748 F.3d 631, 635 (5th Cir. 2014). The Court may also consider documents attached to a motion to dismiss or an opposition to that motion when the documents are referred to in the pleadings and are central to a plaintiff's claims. Id. "In addition to facts alleged in the pleadings, however, the district court ‘may also consider matters of which [it] may take judicial notice.’ " Hall v. Hodgkins , 305 F. App'x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc. , 78 F.3d 1015, 1017-18 (5th Cir. 1996) ).

III. DISCUSSION

A. Exposures Postdating Shell's Operation of the Facility

As a preliminary matter, the Court notes that two plaintiffs, Lamar Ellis and Ginger Villa, allege EtO exposure from the facility starting in 2005.¹⁶ It is undisputed that defendant Shell ceased operations of the facility in 1999, before the dates of these exposures. These plaintiffs cannot hold Shell liable for exposures and injuries not attributable to it. Accordingly, all claims against Shell brought by Lamar Ellis, on his own behalf and on behalf of his deceased wife, as well as Ginger Villa, must be dismissed with prejudice. Plaintiffs do not oppose these dismissals,¹⁷ and Shell's motion to dismiss is granted in this respect.

Shell also seeks dismissal of the claims of plaintiff Margie Moore, who alleges exposure from the facility at her home "where she has lived for decades."¹⁸ Because this timeframe is nonspecific and may have commenced only after Shell ceased operations at the facility, the Court dismisses all of Moore's claims against Shell. In their opposition memorandum, plaintiffs state that Moore lived in the area since at least the 1990s.¹⁹ In light of this contention, the Court grants plaintiffs leave to amend the complaint for the purpose of alleging the date when Moore began to be exposed to EtO emissions from the facility.

All other alleged exposures span both Shell's and Evonik's operations of the facility. The Court thus proceeds to address those claims as to both defendants, as well as the claims of Ellis, Villa, and Moore, as to Evonik only.

B. Prescription

Both Shell and Evonik contend that some, or all, of plaintiffs’ claims are time-barred because this suit was filed after expiration of the one-year prescriptive period for delictual actions under Louisiana law. Article 3492 of the Louisiana Civil Code provides that "[d]elictual actions are subject to a liberative prescription of one year." La. Civ. Code art. 3492. This period "commences to run from the day injury or damage is sustained." Id. ; see also Brown v. R.J. Reynolds Tobacco Co. , 52 F.3d 524, 527 (5th Cir. 1995) (quoting La. Civ. Code art. 3492 ). "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." Cole v. Celotex Corp. , 620 So. 2d 1154, 1156 (La. 1993) (citing McCray v. N.E. Ins. Co. , 579 So. 2d 1156 (La. App. 2 Cir. 1991) ). Similarly, survival and wrongful-death actions are subject to a prescriptive period of one year from the date of death. La. Civ. Code art. 2315.1(A) (governing survival actions); La. Civ. Code art. 2315.2(B) (governing wrongful-death actions).

Here, plaintiffs’ complaint identifies the date of cancer diagnosis and/or death corresponding to each plaintiff. The latest such date is April 6, 2020.²⁰ Plaintiffs filed this suit in state court on April 26, 2021, over one year after that date.²¹ Accordingly, unless the one-year period was suspended or another exception applies, all plaintiffs’ claims are prescribed. Plaintiffs do not dispute this proposition.

1. Contra non valentem

Instead, plaintiffs assert that the prescriptive period was suspended under the doctrine of contra non valentem. Under Louisiana law, contra non valentem is a doctrine that tolls the statute of limitations, and is thus "an exception to the general rules of prescription." Wimberly v. Gatch , 635 So. 2d 206, 211 (La. 1994). This doctrine suspends the prescriptive period under certain circumstances, including situations in which the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Renfroe v. State ex rel. Dept. of Transp. & Dev. , 809 So. 2d 947, 953 (La. 2002).

But this exception, sometimes known as the "discovery rule," is available only in "exceptional circumstances." Meggs v. Davis Mortuary Serv., Inc. , 301 So. 3d 1208, 1213 (La. App. 5 Cir. 2020) (quoting Renfroe , 809 So. 2d at 953 ). Courts assessing the applicability of contra non valentem must focus on the reasonableness of the tort victim's action or inaction. See Griffin v. Kinberger , 507 So. 2d 821, 824 n.2 (La. 1987). As the Louisiana Supreme Court has explained:

Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific

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