Martha May Lee v. American Supply Co

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 18-893

MARTHA MAY LEE, ET AL.

VERSUS

AMERICAN SUPPLY CO., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 95783
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

Conery, J., concurs.

REVERSED AND REMANDED.

James H. Brown, Jr.
Frilot, LLC
1100 Poydras Street, Suite 3700
New Orleans, LA 70163
(504) 599-8000
COUNSEL FOR DEFENDANT/APPELLEE:
CBS Corp., A Delaware Corp. f/k/a Viacom Inc., etc

Kathleen Fontenot Drew
Adams & Reese
One Shell Square
New Orleans, LA 70139
(504) 581-3234
COUNSEL FOR DEFENDANT/APPELLEE:
Chevron Phillips Chemical Co., LP

Alexander E. Cosculluela
Adams & Reese
1221 McKinney, Suite 4400
Houston, TX 77010
(713) 652-5151
COUNSEL FOR DEFENDANT/APPELLEE:
Chevron Phillips Chemical Co., LP

Tyson Brahm Shofstahl
Adams & Reese
4500 One Shell Square
New Orleans, LA 70139
(504) 581-3234
COUNSEL FOR DEFENDANT/APPELLEE:
Kaneb Management Co., LLC

Richard P. Sulzer
Robert E. Williams
Sulzer & Williams, L.L.C.
201 Holiday Blvd., Suite 335
Covington, LA 70433
(985) 898-0608
COUNSEL FOR DEFENDANT/APPELLEE:
Baker Hughes Oilfield Operations, Inc. (Individually and as successor-
in-interest to Milchem Incorporated, and as sucessor-by-merger to Oil
Base, Inc.)

Mickey P. Landry
Frank Joseph Swarr
Philip C. Hoffman
Matthew C. Clark
Landry & Swarr, LLC
1010 Common Street, Suite 2050
New Orleans, LA 70112
(504) 299-1214
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Mantle Lee
Mona Natemeyer
Martha May Lee

McGready L. Richeson
Pugh Accardo
1100 Poydras Street, Suite 3300
New Orleans, LA 70112
(504) 312-4713
COUNSEL FOR DEFENDANTS/APPELLEES:
Montello, Inc.
Union Carbide Corp.

Spencer R. Doody
Martzell, Bickford & Centola, A.P.C.
338 Lafayette Street
New Orleans, LA 70130
(504) 581-9065
COUNSEL FOR INTERVENORS/APPELLANTS:
Phyllis Lee Boudreaux
Maris Whitey Lee
Merlyn Pat Lee

Darren P. McDowell
Simon Greenstone Panatier, PC
1201 Elm Street, Suite 3400
Dallas, TX 75270
(214) 276-7680
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Martha May Lee
Mantle Lee
Mona Natemeyer

S. Ann Saucer
The Carter Long Law Firm
4310 North Central Expressway, Suite 104
Dallas, TX 75206
(972) 890-6498
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Martha May Lee
Mantle Lee
Mona Natemeyer

EZELL, Judge.

David Lee died on April 23, 2012. This appeal presents the issue of whether

his widow and children’s survival action claims for exposure to asbestos are

prescribed.

FACTS

Mr. Lee’s widow, Martha Lee, and two of his children, Mona Natemeyer

and Mantle Lee, filed suit against several defendants for survival and wrongful

death damages on June 6, 2012, pursuant to La.Civ.Code arts. 2315.1 and 2315.2.

David’s other children, Phyllis Boudreaux, Maris Lee, and Merlyn Simon,

intervened in the suit, also asserting claims for survival and wrongful death

damages.

The family alleges that Mr. Lee was exposed to injurious levels of asbestos

while working as a crew boat captain and mechanic throughout Louisiana and

Texas from 1954 to 1967. They also alleged that he was exposed to asbestos fibers

from 1967 to 1973 while working in the drilling mud industry in Intracoastal City,

Louisiana and Berwick, Louisiana.

In late 2000, Mr. Lee was admitted to the hospital suffering with abdominal

pain as the result of gallstones. His gallbladder was removed. The pathology

report indicated that Mr. Lee had an occupational history of exposure to asbestos,

and mesothelial cells were identified. Dr. Richard Reed diagnosed atypical

mesothelial hyperplasia rather than mesothelioma, observing that it did not show

significant invasiveness. Dr. Reed noted that Mr. Lee should be carefully followed.

On January 9, 2008, Mr. Lee went to Our Lady of Lourdes Hospital in

Lafayette complaining of severe abdominal pain and inability to stand up. An

upper GI and esophagogastroduodenoscopy and a colonoscopy were performed. A

CT scan of the pelvis and abdomen noted “abnormal wall thickening in the gastric

antrum and pylorus which could be inflammatory or malignant.” He was treated

for diverticulitis.

On February 18, 2008, he was admitted to Lafayette General Medical Center

where he underwent an exploratory laparotomy. A small bowel carcinoid tumor

was removed. Seeding, or multiple small nodules, was also noted in the lining of

the stomach, and biopsies were taken. Dr. Michael Cain, a medical oncologist and

hematologist, was asked to consult on the case.

The carcinoid tumor was completely removed. Dr. Cain told Mr. Lee that he

did not know the nature of the small nodules yet. Mr. Lee first saw Dr. Cain on

March 3, 2008, after he was discharged from the hospital. Dr. Cain stated that the

once the pathology report was finalized, it showed a well-differentiated papillary

mesothelioma. Abdominal fluid also removed at the time of the surgery indicated

cells consistent with the same pathology. Dr. Cain could not remember the exact

conversation with Mr. Lee. He stated he would typically tell a patient that the

nodules have malignant potential, but the pathology indicated low-grade features,

making the behavior unpredictable. Dr. Cain explained that well-differentiated

papillary mesothelioma is considered a lower-grade malignancy because it has a

slower growth rate and is less likely to cause symptoms in the future. However, it

needs to be followed long term, because it can have an unpredictable course. It is

considered metastatic at diagnosis because it is already diffusely involving the

abdominal contents. Dr. Cain explained that mesotheliomas are known to be

associated with asbestos exposure. However, malignant papillary mesotheliomas

do not have as strong of a cause and effect relationship.

2

Since Mr. Lee was then asymptomatic, a period of observation was

recommended. Dr. Cain told Mr. Lee that no further treatment was indicated for

the carcinoid tumor that was removed. Dr. Cain recommended that Mr. Lee return

in three months for a follow-up visit. Barring any new symptoms, Mr. Lee should

repeat imaging in six months. Dr. Cain stated that he would have told Mr. Lee he

had cancer.

Dr. Cain continued to see and observe Mr. Lee over several years. The

August 19, 2010 CT scan did show some minor progression of the disease. Dr.

Cain did not see any indications to consider therapy.

The March 12, 2012 CT scan showed considerable increase in the disease in

the stomach. When Mr. Lee saw Dr. Cain at that time, he was in a wheelchair due

to some back issues. He complained of increased abdominal bloating, discomfort,

and a twenty-pound weight gain since the previous visit with Dr. Cain. Dr. Cain

found Mr. Lee’s abdomen distended and a mass in the upper right quadrant. Dr.

Cain also noted an accumulation of fluid in the peritoneal cavity. Dr. Cain referred

Mr. Lee to the hospital for removal of the fluid from the abdominal cavity. Dr.

Cain stated that he told Mr. Lee he was experiencing progression of the disease.

Dr. Cain referred Mr. Lee to Dr. Henry Kaufman for consultation about

removing as much of the disease from the abdomen as possible. On April 9, 2012,

Mr. Lee went to the emergency room complaining of weakness, lethargy, poor

appetite, abdominal discomfort, and distention. He was also exhibiting symptoms

of confusion. Seven-and-a-half liters of fluid was previously removed from Mr.

Lee’s abdomen, so Dr. Cain admitted Mr. Lee to the hospital for dehydration

secondary to the abdominal issues. At this time, Mr. Lee was deemed not to be an

acceptable surgical candidate for removal of the disease in his abdomen. There

3

were no recommendations for chemotherapy or other treatment options due to his

declining clinical status. He was advised his disease was terminal and discharged

from the hospital. Mr. Lee died shortly thereafter on April 23, 2012.

Following the suit filed by the family of Mr. Lee, many motions and

exceptions were filed by the Defendants. Baker Hughes Oilfield Operations, Inc.

filed an exception of prescription to the survival action claims, which is the subject

of the present appeal. A hearing was held on July 5, 2018. After listening to

arguments and reviewing the evidence introduced, the trial court granted Baker

Hughes’ exception of prescription. A judgment was signed on July 5, 2018,

dismissing the survival action claims of Mrs. Lee and the five children. The family

then filed the present appeal.

PRESCRIPTION OF SURVIVAL ACTION

In oral reasons for judgment, the trial court found that Mr. Lee became

aware he had cancer on March 3, 2008, when the pathology report was discussed

with him. The trial court then determined that, on August 28, 2008, there was a

manifestation of the disease as mesothelioma.

Baker Hughes agrees with the trial court’s conclusion that Mr. Lee became

aware he had mesothelioma on March 3, 2008, when his oncologist explained the

pathology report to him. Baker Hughes argues that suit was not filed until more

than four years after Mr. Lee’s diagnosis, so the survival action claims are

prescribed.

The Plaintiffs argue the trial court erred in sustaining the exception of

prescription because Mr. Lee did not sustain any appreciable damage that was

determinable to a reasonable person in his circumstances more than a year before

the case was filed. Specifically, they claim that the trial court erred in finding that

4

Mr. Lee was told he had mesothelioma in 2008 when it was not until 2012 that he

was first diagnosed with malignant mesothelioma. The Plaintiffs claim that this

was the first time he was told he had mesothelioma and that the condition could

possibly be related to his asbestos exposure.

The standard of review of a trial court’s ruling on a peremptory
exception of prescription turns on whether evidence is introduced.
Wells Fargo Financial Louisiana, Inc. v. Galloway, 17-413 (La. App.
4 Cir. 11/15/17), 231 So.3d 793, 800. When no evidence is introduced,
appellate courts review judgments sustaining an exception of
prescription de novo, accepting the facts alleged in the petition as true.
Id. Lennie v. Exxon Mobil Corporation, 17-204 (La. App. 5 Cir.
6/27/18), 251 So.3d 637, 642, writ denied, 18-1435 (La. 11/20/18),
256 So.3d 994. However, when evidence is introduced at a hearing on
an exception of prescription, the trial court’s findings of fact are
reviewed under the manifest error standard. Id.; Tenorio v. Exxon
Mobil Corp., 14-814 (La. App. 5 Cir. 4/15/15), 170 So.3d 269, 273,
writ denied, 15-1145 (La. 9/18/15), 178 So.3d 149. When evidence is
introduced but the case involves only the determination of a legal
issue, not a dispute regarding material facts, an appellate court must
review the issue de novo, giving no deference to the trial court’s legal
determination. Wells Fargo, 231 So.3d at 800; Cawley v. National
Fire & Marine Ins. Co., 10-2095 (La. App. 1 Cir 5/6/11), 65 So.3d
235, 237.

Ordinarily, the party urging prescription bears the burden of
proving that the cause of action has prescribed. Vicari v. Window
World, Inc., 14-870 (La. App. 5 Cir. 5/28/15), 171 So.3d 425, 435,
writ denied, 15-1269 (La. 9/25/15), 178 So.3d 570. However, when
prescription is evident on the face of the pleadings, the burden shifts
to the plaintiff to show the action has not prescribed. Id. Prescriptive
statutes are strictly construed against prescription and in favor of the
obligation sought to be enforced. Allday v. Newpark Square 1 Office
Condo. Assn., Inc., 12-577 (La. App. 5 Cir. 3/13/13), 113 So.3d 346,
348.

DeFelice v. Federated Nat. Ins. Co., 18-374, pp. 2-3 (La.App. 5 Cir. 7/9/19), ___

So.3d ___, ___; Brooks v. Meaux, 18-980 (La.App. 3 Cir. 6/12/19), 275 So.3d 41,

writ denied, 19-1135 (La. 10/8/19), ___ So.3d ___.

A. If a person who has been injured by an offense or quasi
offense dies, the right to recover all damages for injury to that person,
his property or otherwise, caused by the offense or quasi offense, shall

5

survive for a period of one year from the death of the deceased in
favor of:

(1) The surviving spouse and child or children of the deceased,
or either the spouse or the child or children.

....

C. The right of action granted under this Article is heritable, but
the inheritance of it neither interrupts nor prolongs the prescriptive
period defined in this Article.

La.Civ.Code art. 2315.1.

The survivor’s right to assert the decedent’s claim for damages, which came

into existence simultaneously with the existence of the tort, does not come into

existence until the moment of death. Watkins v. Exxon Mobil Corp., 13-1545 (La.

5/7/14), 145 So.3d 237. This assumes the decedent did not assert a claim for

damages prior to his death or that the claim for damages had not prescribed prior to

his death. Id. The time period for asserting a claim for survival damages is a one-

year period of liberative prescription. Id.

Prescription starts to run from the day injury or damage is sustained, and

damage is sustained when it has manifested itself with enough certainty to support

a cause of action. Cole v. Celotex Corp., 620 So.2d 1154 (La.1993); Trahan v. BP

Am. Prod. Co., 16-267 (La.App. 3 Cir. 12/7/16), 209 So.3d 166, writ denied, 17-22

(La. 3/24/17), 216 So.3d 815; Labbe Serv. Garage Inc. v. LBM Distribs., Inc., 94-

1043 (La.App. 3 Cir. 2/1/95), 650 So.2d 824. “[T]he question is whether, in light

of plaintiff’s own information and the diagnoses he received, the plaintiff was

reasonable to delay in filing suit.” Cole, 620 So.2d at 1157.

It is the totality of such circumstances that are considered in determining the

date of diagnosis and the reasonableness of the plaintiff’s action or inaction. Cole,

620 So.2d 1154; Bailey v. Khoury, 04-0620 (La. 1/20/05), 891 So.2d 1268.

6

In Cole, 620 So.2d at 1154, the supreme court considered circumstances

more suggestive of notice of injury than in the present case before rejecting the

trial court’s determination that the plaintiff in that case would be imputed with that

notice. For instance, the supreme court explained that the medical record

supported the plaintiff’s deposition testimony that he was informed that he was

told “‘something showed up on his chest x-ray’[.]” Id. at 1155. He was then

placed in an Asbestos Survey Program that included annual exams and x-ray

monitoring. He was eventually “told to stay away from asbestos even with a

respirator” and, in a letter issued by a pulmonologist, was told that he “had

evidence of asbestos related lung disease.” Id. However, his treating physician

later told him the findings on that x-ray could be due to several causes other than

asbestosis. Id.

Despite the indicia of an asbestos related condition, the supreme court found

manifest error in the lower courts’ determination that the plaintiff had constructive

knowledge that he had asbestosis. Id. The supreme court explained that the

plaintiff relied upon what he was told by his physician “as well as his own

subjective state of health which was that he never had any ill effects or symptoms

related to asbestosis.” Id. at 1157. Accordingly, the plaintiff in Cole could not be

“chargeable” with that knowledge. Id. at 1158.

The supreme court likewise found that denial of an exception of prescription

was appropriate in Bailey v. Khoury, 891 So.2d at 1279, a case posing the question

of whether the prescriptive period for a claim “arising from birth defects or other

prenatal injuries should commence on a date prior to the child’s birth when the

parent acquired knowledge of the birth defects as a result of a medical procedure.”

7

Despite the fact that the plaintiff in Bailey admitted in her deposition that she

knew of the defects prior to the child’s birth, the supreme court reasoned that her

knowledge of the condition was not so exact or extensive as to “mean that she

immediately obtained ‘actual or constructive knowledge of facts indicating to a

reasonable person that he or she is the victim of a tort,’ as required for application

of the discovery rule.” Id. at 1285 (quoting Campo v. Correa, 01-2707, p. 11 (La.

6/21/02), 828 So.2d 502, 510).

Since evidence was introduced at the hearing on the exception of

prescription, we review the trial court’s determination under a manifest error

standard. In addition to the evidence already discussed in this opinion, the

following evidence was introduced at the hearing.

Dr. Cain testified that when he first met with Mr. Lee, he told him that he

had cancer in the lining of his stomach which was benign but needed to be

followed and monitored. Dr. Cain agreed that he never discussed with Mr. Lee the

possibility that asbestos might be related. Dr. Cain admitted that Mr. Lee did not

have a diagnosis of malignancy until March 16, 2012.

Mrs. Lee testified that she and her husband were aware that peritoneal

mesothelioma was suspected after the surgery in 2008. In the weeks before the

pathology report came back, the couple discussed what time period Mr. Lee could

have worked around asbestos, acknowledging that asbestos caused mesothelioma.

However, she explained that it was later confirmed by the doctor to them that the

pathology report was negative for mesothelioma.

Dr. Edward Holstein, an expert hired by the Lee family, stated in his

deposition that a well-differentiated papillary mesothelioma could indicate a

benign or malignant condition. Dr. Holstein reviewed Mr. Lee’s medical records

8

and opined that Mr. Lee’s doctors considered Mr. Lee to have a condition that was

“typically benign” and they considered it to be nonmalignant, with an uncertain

future. Dr. Holstein further opined that the Lees thought that Mr. Lee did not have

a fully-characterized growth in his stomach related to asbestos, though he needed

to be subjected to monitoring and scans from time to time. Dr. Holstein noted that

no change was implemented in the recommendations and treatment plan by Dr.

Cain until March 16, 2012.

We find that the trial court was clearly wrong in its determination that Mr.

Lee’s survival action had prescribed when suit was filed by his heirs. Dr. Cain

testified that he could not remember what he told the Lees. His testimony referred

to what he probably told the Lees. In reviewing both Dr. Cain’s and Mrs. Lee’s

testimony, it is clear that the Lees believed that Mr. Lee did not have cancer related

to mesothelioma when the pathology report came back. They were told that he just

needed to be followed and no treatment was necessary as the condition was benign.

During the following years, Mr. Lee went for his follow-up visits and no treatment

was ever recommended. It was not until his visit with Dr. Cain in 2012 that a

malignancy was diagnosed. A reasonable person would not think that they had

mesothelioma caused by asbestos until the diagnosis in March 2012, when the

treatment plan was changed. Mr. Lee had a much lesser degree of knowledge

regarding his condition and its causes than the plaintiffs in Cole and Bailey. In

keeping with that supreme court jurisprudence, he cannot be attributed with actual

or constructive knowledge of any injury from asbestos before March 12, 2012. He

was never treated for mesothelioma.

For the above reasons, we find that trial court erred in granting Baker

Hughes’ exception of prescription. We reverse the judgment sustaining the

9

exception and dismissing Mr. Lee’s heirs’ survival action claims and remand the

matter back to the trial court for further proceedings. Costs of this appeal are

assessed to Baker Hughes.

REVERSED AND REMANDED.

10