Del Vescovo v. Air & Liquid Sys. Corp.

377 So.3d 759

2023-0116 (La.App. 4 Cir. 11/15/23)

Maria Assunta DEL VESCOVO, Giulia Nasini, Giuliano Nasini and Maria Nasini, Individually and on Behalf of Their Deceased Husband and Father, Respectively, Sergio Nasini

v.AIR & LIQUID SYSTEMS CORPORATION (Sued Individually and as Successor-By-Merger to Buffalo Pumps, Inc.), et al.

NO. 2023-CA-0116

Court of Appeal of Louisiana, Fourth Circuit.

November 15, 2023

APPEAL FROM, CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2021-07287, DIVISION "G-11", Honorable Robin M. Giarrusso, Judge

Michael L. Armitage, Susannah B. Chester-Schindler, A. Edward Cangelosi, WATERS KRAUS & PAUL, 3141 Hood Street, Suite 200, Dallas, TX 75219, COUNSEL FOR PLAINTIFFS/APPELLANTS, Maria Assunta del Vescovo, Giulia Nasini, Giuliano Nasini, and Maria Nasini

Stacey L. Strain, HUBBARD, MITCHELL, WILLIAMS & STRAIN, PLLC, 1062 Highland Colony Parkway, Suite 222, Ridgeland, MS 39157, COUNSEL FOR DEFENDANT/APPELLEE, Air & Liquid Systems Corp., (sued individually and as successor-by-merger to Buffalo Pumps, Inc.), COUNSEL FOR DEFENDANT/APPELLEE, Flowserve US Inc. (sued individually and as successor-in-interest to Aldrich Pump Company and as successor-in-interest to Edward Valves, Inc.)

Tim Gray, Michael H. Abraham, Melissa D. Fuller, Elizabeth R. Penn, McCann E. Lefeve, Chelsea Gaudin Favret, FORMAN WATKINS & KRUTZ LLP, 201 St. Charles Avenue, Suite 2100, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE, Chevron Shipping Company, LLC

Susan B. Kohn, Douglas R. Kinler, Douglas W. Redfearn, SIMON, PERAGINE, SMITH & REDFEARN LLP, 1100 Poydras Street, 30th Floor New Orleans, LA 70163 COUNSEL FOR DEFENDANT/APPELLEE, Eagle, Inc.

Byron D. Kitchens, Margaret W. McLaughlin, FORMAN WATKINS & KRUTZ LLP, 201 St. Charles Avenue, Suite 2100, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE, Marathon Oil Company

John J. Hainkel, III, Angela M. Bowlin, Benjamin M. Castoriano, Roth M. Hainkel, Gillis W.P. Klotz, FRILOT L.L.C., 1100 Poydras Street, Suite 3700, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE, Occidental Petroleum Corporation

C. Kelly Lightfoot, Edward J. Lassus, Jr., 3445 North Causeway Boulevard, Suite 800, Metairie, LA 70002, P.O. Box 8288, Metairie, LA 70011, COUNSEL FOR DEFENDANT/APPELLEE, Taylor-Seidenbach, Inc.

Scott C. Barney, Nicole C. Katz, Jesse G. Frank, CHAFFE McCALL, L.L.P., 8550 United Plaza Boulevard, Suite 103, Baton Rouge, LA 70809, COUNSEL FOR DEFENDANT/APPELLEE, United States Steel Corporation

(Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha Ervin-Knott)

Judge Dale N. Atkins

₁This is a Jones Act and general maritime case. Appellants, Maria Assunta del¹ Vescovo, Giulia Nasini, Giuliano Nasini, and Maria Nasini (collectively "Appellants"),² seek review of the trial court’s October 10, 2022 judgment, which granted an exception of prescription in favor of Air & Liquid Systems Corporation ("Air & Liquid Systems"), Chevron Shipping Company LLC ("Chevron"), Eagle Inc. ("Eagle"), Flowserve US Inc. ("Flowserve"), Marathon Oil Company ("Marathon"), Occidental Petroleum Corporation ("Occidental"), Taylor-Seidenbach Inc. ("Taylor-Seidenbach"), and United States Steel Corporation ("United States Steel") (collectively "Appellees").³ The judgment also dismissed Appellants’ claims with prejudice. For the following reasons, we affirm.

₂RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Original Petition for Damages

On August 27, 2021, Appellants, individually and on behalf of their deceased husband and father, respectively, Sergio Nasini,⁴ filed an Original Petition for Damages ("Original Petition") in Orleans Civil District Court. The Original Petition explained that Appellants are residents of and domiciled in Italy. Regarding Sergio Nasini, the Original Petition alleged that he was diagnosed with malignant mesothelioma ("mesothelioma") in May 2012. Further, the Petition contended:

Petitioner Sergio Nasini’s death on June 8, 2013[,] was due to or a consequence of his exposure to dust and fibers from asbestos and/or asbestos-containing materials; as a direct and proximate result or consequence of his exposure aboard vessels in navigation, including on the navigable waters of the United States, to dust and fibers from asbestos and/or asbestos-containing materials that occurred aboard the oceangoing vessels owned, managed and/or operated by various Defendants identified in this Petition; and as a further direct and proximate result of his exposure to asbestos products and equipment manufactured by other Defendants named herein that were unreasonably dangerous per se; defective in composition or construction; defective in design; lacking suitable warnings or instructions concerning the hazards presented; as a result of negligent, willful, and/or reckless misconduct; and as a result of intentional misconduct of certain of the Defendants ….

₃Appellants contended in the Original Petition that they first learned that asbestos exposure was a substantial contributing factor in the development of Sergio Nasini’s mesothelioma in late 2020/early 2021.

In pertinent part, identified as defendants were Air & Liquid Systems; Chevron; Eagle; Flowserve; Marathon; Occidental; Taylor-Seidenbach; and United States Steel Corporation.

First Exception of Prescription

On April 1, 2022, Marathon filed an Exception of Prescription ("First Exception"). Therein, Marathon contended that Appellants’ claims had prescribed under both federal maritime and Louisiana laws.⁵ At the outset, Marathon asserted that under both maritime and state law cases, the burden of pleading and proving facts to support an interimption of prescription was on Appellants. Marathon noted that Appellants pled the "discovery rule" in their Original Petition (i.e., Appellants alleged that prescription did not begin to run until Appellants "first learned" that Sergio Nasini’s mesothelioma was related to asbestos in "late 2020/early 2021," which was eight to nine years after his mesothelioma diagnosis and resulting death). However, Marathon countered that the "discovery rule" exception to federal statutes of limitations and the contra non valentem exception to Louisiana’s ₄prescriptive statutes were inapplicable because Appellants had failed to investigate their claims with the necessary "reasonable diligence."

Specifically, Marathon argued that prescription began to ran when Appellants had a reasonable opportunity to discover the cause of Sergio Nasini’s illness. To this end, Marathon stated that mesothelioma is a "signature disease" that "is so causally related to asbestos exposure that any type of investigation would have alerted [Sergio] Nasini and/or [Appellants] to that causal association immediately upon his mesothelioma diagnosis in May 2012." Further, Marathon argued that "[t]he hazards of asbestos, including specifically mesothelioma, have been well-known in Italy," including in the region where Sergio Nasini and Appellants lived. Marathon argued that if the trial court permitted Appellants’ case to proceed, it would present significant prejudice to Appellees and undermine the legislative goal of prescription statutes. Another Appellee, Chevron, filed a "Motion to Join and Adopt Marathon[’s] … Peremptory Exception of Prescription" on April 20, 2022, which the trial court granted that same day.

The next day, April 21, 2022, Appellants filed an "Opposition … to Exception of Prescription" ("Opposition to the First Exception"). Therein, they contended that Appellees had not established that Appellants’ claims were prescribed because "the [Original] [P]etition states plainly that ‘[i]n late 2020/early 2021, plaintiffs first learned, and now allege, that asbestos exposure was a substantial contributing factor in the development of [Sergio] Nasini’s mesothelioma.’ That statement shows that [the statute of] limitations [or prescription] did not begin to run until late 2020 at the earliest, and must be taken as true."

₅Appellants attached to their Opposition to the First Exception an April 20, 2022 affidavit from Maria Nasini. Therein, Maria Nasini identified herself as the oldest child of Sergio Nasini and Maria Assunta del Vescovo. In the affidavit, she also stated, in pertinent part:

5. I generally recall that my father underwent a biopsy in the spring of 2012. Most likely this was in May 2012, to the best of my recollection. This led to a diagnosis of malignant mesothelioma being made. I do not remember the name of the doctor who made the diagnosis. I had never heard of the disease before.

6. Upon information and belief, my father Sergio Nasini learned of his diagnosis around May 2012.

7. No one ever explained the cause of my father's illness to us. No medical professional ever even asked questions about a potential cause in my presence, and I accompanied my father to a lot of his medical appointments. … Again, no doctor in my presence ever asked about asbestos, smoking or any other cause of the cancer. My father also never mentioned to me that a doctor had discussed the cause of his cancer with him outside my presence.

8. Among the five of us, no one wondered out loud what caused my father’s illness diagnosed in 2012. No one asked or raised the issue of a cause in my presence. They discussed only that he had a tumor in his lung.

Additionally, Appellants attached to their Opposition to the First Exception an April 20, 2022 affidavit from Pierpaolo Petruzzelli ("Mr. Petruzzelli"), who identified himself as a "lawyer admitted to practice before the highest court in the Republic of Italy" and stated that he "helped [his] American co-counsel obtain [Maria Nasini’s affidavit] from her." Mr. Petruzzelli also stated that, at the time of his affidavit, he had been representing "Italian victims of asbestos disease for more than 20 years." In his affidavit, Mr. Petruzzelli attested that "the degree of general awareness of the Italian population in relation to the link between asbestos and the onset of certain asbestos...