Defending NORM/TENORM Litigation: Prescription Periods and Contra Non Valentem
Written by Kristin Lausten
Complexity and high risk are the defining aspects of cases based on claims related to naturally occurring radioactive materials (“NORM”) or technologically enhanced NORM (“TENORM”). Here in New Orleans and elsewhere in Louisiana, NORM and TENORM litigation most often involves the oil and gas industry. Naturally occurring radioactive materials are commonly brought to the surface along with hydrocarbons and tend to crystallize as scales on the inside of oil and gas piping. Cleaning and/or recycling old oil/gas pipelines then exposes workers to the NORM/TENORM and also often results in the materials being deposited — either intentionally or by accident — on the lands and property where the used piping is stored, cleaned, and recycled. Indeed, one of the more famous Louisiana cases involving the subsequent purchase doctrine — Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 79 So.3d 246 (La. Supreme Court 2011) — was a NORM contamination case.
In addition to contamination cases, NORM/TENORM exposure generates personal injury, survival and wrongful death claims usually filed pursuant to La. Civ. Code Art. 2315.2 and Art. 2315.1. In general, the claims are based on worker exposure to the radioactive materials and inhalation of the dust created by the cleaning process. The negligence alleged can include failure to correctly identify, handle, contain, clean up, or dispose of NORM in the pipe yards and failure to warn, protect against, and prevent worker exposure to the materials.
In defending these types of cases the prescription periods are powerful shields because, often, there is a significant time lag between exposure and the resulting medical conditions that allegedly result from the exposure. A recent case from the Louisiana Fifth Circuit offers a good discussion of the issues and the plaintiffs’ arguments with respect to contra non valentem — tolling of the prescription period. See Lennie v. Exxon Mobil Corporation, Case No. 17-CA-204 (La. App. 5th Cir. June 27, 2018). (We discussed this case in a companion article with respect to whether internet-based information could be deemed “constructive knowledge.)
In Lennie, the plaintiffs were the surviving wife and children of Mr. Julius Lennie who worked in a pipe yard in Louisiana where he was exposed to radioactive materials. For more than 30 years, he worked as a pipeline cleaner, grinding the scale/deposits out of the used oilfield pipe and tubing. The process releases particles and dust containing NORM. The dust and particles are breathed in by the workers and the workers end up being covered by the materials.
16 years after he retired, Mr. Lennie was diagnosed with lung cancer and subsequently died. The cause of death was his lung cancer. Notably, Mr. Lennie was also a heavy smoker and his family may have assumed to be the cause of his cancer. Mr. Lennie’s family did not conduct any inquiry as to the cause of his cancer. However, about three years later — in 2013 — his widow saw a newspaper article about NORM in pipe yards and the linkage to lung cancer. Following that article, she retained a lawyer and within a year of reading that article, she and other members of her family, filed wrongful death and survival actions against Exxon and other defendants alleging that exposure to NORM caused Mr. Lennie’s cancer. As for the one-year prescription period, they contended that the prescription period was tolled by the doctrine of contra non valentem.
In general, the doctrine of contra non valentem applies in four circumstances:
- When a legal cause prevents the court or its officers from taking cognizance of and acting on the plaintiff’s actions
- When there is some condition coupled with the contract or the proceedings which prevented the plaintiff from suing or acting
- When the defendant has done some act effectually to prevent the plaintiff from availing himself of his cause of action or
- When the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.
The Lennies argued that categories #3 and #4 applied in their case. Importantly, when a plaintiff is claiming that the contra non valentem doctrine applies, the burden rests with the plaintiff to provide evidence to prove one or more categories.
At the trial level, the trial court rejected the plaintiffs’ contra non valentem arguments and dismissed the case. The result was affirmed by the Court of Appeals.
With respect to category #3, the plaintiffs argued that Exxon and the other defendants had all participated in the formation of an industry trade group that developed screening, detection, and exposure standards. The industry group sponsored academic studies and papers and also engaged in lobbying with State of Louisiana regulatory agencies to have these standards adopted. The plaintiffs alleged that these activities were intended to conceal, obfuscate, and cast doubt on the linkage between exposure to NORM and cancer. However, the trial court and the Court of Appeals rejected the argument that these efforts were concealment or otherwise warranted the application of contra non valentem. Moreover, the Court of Appeals went further and stated that such efforts contradicted “… any suggestion that defendants were downplaying the significance of NORM in the workplace or were otherwise engaging in concealment.”
Notably, in coming to its conclusion, the court distinguished an earlier case — Lester v. Exxon Mobil Corporation, 102 So.3d 148 (La. App. 5th Cir. 2012) — where the court applied the tolling doctrine because the plaintiff had presented evidence that videos had been played for workers which stated that it was “unlikely” that any oilfield worker would ingest or inhale a sufficient amount of radioactive materials to cause harm. In that case, the videos and the statements were considered efforts at concealment. No such evidence was adduced by the Lennie plaintiffs.
With respect to contra non valentem category #3, the court conducted a de novo examination and found that the Lennie plaintiffs had failed to “make even a rudimentary inquiry” as to the cause of Mr. Lennie’s cancer. Such inaction and failure to inquire was fatal to any claim that the prescription period was tolled by contra non valentem.
Contact an Experienced Louisiana Toxic Tort Defense Lawyer
Need assistance? Have questions? Contact Kristin M. Lausten. We defend toxic tort cases in both state and federal courts throughout Louisiana. We use state-of-the-art technology and maintain relationships with a broad range of scientific and legal experts who are needed for defending toxic tort cases.
In addition, we provide legal consultation and planning so that you can decrease your risks of being sued for torts related to toxic substances.
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Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.
 The acronym TENORM stands for “Technologically Enhanced Naturally Occurring Radioactive Materials.” The petition alleges TENORM is also known as “Naturally Occurring Radioactive Materials” (NORM) and that “Technologically Enhanced Radioactive Materials” (TERM) was also discovered on the property. TENORM was defined in the petition using the definition of the National Research Council of the National Academy of Sciences:Technologically enhanced naturally occurring radioactive materials are any naturally occurring radioactive materials not subject to regulation under the Atomic Energy Act whose radionuclide concentrations or potential for human exposure have been increased above levels encountered in the natural state by human activities. Petition, ¶ VIII(3). Despite the various types of radioactive material discussed in the petition, the plaintiff asserted, in other sections of the petition, that the radioactive materials complained of here are comprised solely of TENORM. Petition, ¶ VI(6), Vol. 1, p. 6.