Opinion
Civil Action No. 04-715, Section "L" (5).
May 26, 2004
ORDER REASONS
Before the Court are the Plaintiffs' Motion to Remand and the Defendant Beazer East's ("Beazer") Motion to Dismiss. These matters were heard by the Court with oral argument on April 28, 2004. Also before the Court is the Motion of Defendant Bridgestone Firestone's Motion for More Definite Statement. The Court deferred ruling on the latter motion until resolution of the remand issue. For the following reasons, the Court hereby grants the Plaintiffs' Motion to remand thereby rendering the other two motions moot.
I. Factual and Procedural Background
Plaintiffs in this matter are George Young and his wife and children. On March 14, 2003, Mr. Young was diagnosed with chronic lymphocytic leukemia and non-Hodgkin's lymphoma, conditions the Plaintiffs allege are a result of Mr. Young's exposure to chemicals over his forty-year career as a roofer. On February 9, 2004, Plaintiffs filed their petition in Civil District Court for the Parish of Orleans, naming nine Defendants which fall into two categories: past employers and manufacturers of the roofing materials. The employer Defendants are Taylor-Seidenbach, from whom Mr. Young worked from 1949-1954; Standard Roofing for whom Mr. Young worked continuously from 1954-1989; and Carriere-Stumm, for whom Mr. Young worked occasionally between 1954-1989. The other five Defendants are manufacturer Defendants.
At the time of the filing of the petition, the Plaintiffs claimed that six of the Plaintiffs were domiciled in Louisiana and that two of the employer Defendants, Taylor-Seidenbach and Carriere-Stumm, were also domiciled in Louisiana. Thus, according to the petition, the parties were not completely diverse from each other. The Plaintiffs further claimed that their cause of action against Taylor-Seidenbach was not barred by the Louisiana Worker's Compensation Act (the "Act"), La.Rev.Stat. § 23:1032, et seq., because their claim arose before the Louisiana Legislature amended the Act in 1952 to include occupational diseases.
In their briefs, the parties only address the propriety of the claim against Taylor-Seidenbach and do not focus on Carriere-Stumm.
On March 11, 2004, Beazer removed the matter to this Court. In its notice of removal, Beazer claimed that the non-diverse employer Defendants were fraudulently joined and that their citizenship should be disregarded for purposes of evaluating diversity jurisdiction. In particular, Beazer claimed that Plaintiffs cannot sustain their burden of proving that their cause of action against Taylor-Seidenbach accrued prior to the 1952 amendments to the Act.
II. Motion to Remand
In their motion to remand, the Plaintiffs claim that they have stated a valid cause of action against Taylor-Seidenbach, thus necessitating remand of the matter back to state court. Specifically, Plaintiffs allege that Mr. Young worked for Taylor-Seidenbach for approximately thirteen months before the 1952 amendments to the Act went into effect. Plaintiffs claim that throughout this time, Mr. Young was exposed to substances that were substantially related to his diseases. In support of their contention, Plaintiffs attach the affidavit of Mr. Young, Dr. Paul H. Template (an environmental chemist), and Dr. Frank H. Gardner (a board certified internist).
In his affidavit, Mr. Young testified to the types of work he performed for Taylor-Seidenbach and the types of equipment used. Specifically, he claimed that the use of wood burning, thermometer-less kettles caused the asphalt to overheat and expel a thick yellow smoke that he was forced to breath. Dr. Template opined that this type of overheating would result in high concentrations of Polynuclear Aromatic Hydrocarbons ("PAH's") and benzene to be volatilized into the air. According to Dr Template, these substances are known carcinogens. Further, Dr. Gardner testified in his affidavit that pre-1952 exposure to these substances could have caused Mr. Young's diseases.
Defendants Beazer and E.I. Dupont de Nemours ("Dupont") filed oppositions to the motion to remand Defendants Dow Chemical and Bridgestone Firestone joined Beazer's opposition. Beazer and Dupont's main argument in opposition to remand is that the exclusive remedies provisions of the Act bar the Plaintiffs from recovering against Taylor-Seidenbach in tort. According to these Defendants, the Plaintiffs must furnish proof that Mr. Young would have contracted the diseases even without further exposure to chemicals after 1952. Beazer and Dupont challenge the credibility of Dr. Gardner and claim that the Plaintiffs cannot make the required showing.
III. Analysis
Once a case has been removed from state court, the removing party bears the burden of proving that jurisdiction is proper in federal court. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). If the removing party alleges jurisdiction on the basis that non-diverse parties have been fraudulently joined, the removing party must prove it. Id. In this case, Beazer was the removing party. Thus, to prove its allegation of fraudulent joinder, Beazer "must show either [1] that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or [2] that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts." Id. (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)). The burden, then, to establish fraudulent joinder is high. In determining whether the joinder of parties was fraudulent, the district court must evaluate all of the factual allegations in the light most favorable to the plaintiff. Jernigan, 989 F.2d at 815-16.
Beazer suggests that the Plaintiffs must submit proof at this stage in the proceedings that Mr. Young's pre-1952 exposures were sufficient to cause his diseases, independent of any further exposures. The Court finds that the Plaintiffs bear no such burden.
In long-lateney toxic exposure cases such as the case at bar, the Louisiana Supreme Court has established that a plaintiff's claim is governed by the law in effect at the time his or her cause of action arises. Austin v. Abney Mills, Inc., 824 So.2d 1137, 1145-46 (La. 2002). In Austin, the Louisiana Supreme Court adopted the "significant tortious exposure" theory for determining when a cause of action arises in long-latency occupational disease cases in which the plaintiff suffers from an illness or disease. Under the significant tortious exposure theory, a cause of action accrues in long-latency occupational disease cases when the exposures are significant and such exposures later result in the manifestation of damages. Id. at 1154 (citing Cole v. Celotex, 599 So.2d 1058, 1066 (La. 1992)).
The Louisiana Supreme Court announced the "significant tortious exposure" theory in Cole v. Celotex, 599 So.2d 1058 (La. 1992).
The plaintiff in Austin suffered from malignant pleural mesothelioma, a long-latency asbestos-related disease, which he alleged was caused by excessive exposure to asbestos during his employment with a paper company from 1955 to 1998. His disease did not manifest itself until 1998. The Austin defendants moved for summary judgment, arguing that the claim was barred by the Act. After analyzing the relevant policy considerations, the court found that the significant tortious exposure theory more logically governed the accrual of a direct tort action in long-latency occupational disease cases because the injury often does not manifest itself for many years following the conduct from which it arose. Id. at 1154. Furthermore, plaintiffs in long-latency exposure cases may have experienced numerous exposures over long periods of time.
Underlying the Louisiana Supreme Court's rational was a recognition that a cause of action is a property right of which a person cannot be divested without due process of law. Austin, 824 So.2d at 1149. In long-latency occupational disease cases, the compensable, tortious injury or damage may occur prior to manifestation of the injury or damage. Thus, the court rejected as dangerous adopting theories based on manifestation or diagnosis of disease. Id.
To address these difficulties, the Austin Court held that "in order to establish when a tort cause of action accrued in a long-latency occupational disease case, wherein the plaintiff suffers from the disease, the plaintiff must present evidence that the exposures were 'significant and such exposures later result[ed] in the manifestations of damages'." Id. (quoting Cole, 599 So.2d at 1066). Relying on Abadie v. Metropolitan Life Insurance Company, 784 So.2d 46, 65 (La.App. 5th Cir. 2001), the Austin Court explained that tortious exposures are significant when "asbestos dust has so damaged the body that the fibrogenic effects of its inhalation will progress independently of further exposure." Austin, 824 So.2d at 1154. The Abadie Court further explained:
Plaintiffs will have to present evidence that the exposures were significant, and that the asbestos exposure started the disease process in their lungs. While the plaintiffs cannot document each and every exposure and the resulting consequence, expert testimony based on medical and scientific studies can establish whether the . . . [pre-amendment] exposures were significant enough to produce injury.Abadie, 784 So.2d at 65 (emphasis added). Thus, Louisiana courts recognize the difficulty inherent in pin-pointing the precise effects of each and every chemical exposure on the body. Accordingly, Louisiana law does not require the Plaintiffs in the present case to show that Mr. Young would have contracted the disease without further chemical exposures. Rather, Plaintiffs must show that the exposures were significant enough to produce injury.
Whether or not Mr. Young's pre-1952 exposures constitute "significant tortious exposure" is a disputed material fact. Resolving the dispute in the light most favorable to the Plaintiffs, the Court finds that the Plaintiffs have established a prima facie case against Taylor-Seidenbach. Plaintiffs need only show a possibility that they may prevail in state court against a defendant, not that they will prevail. Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995). In making its determination, the Court may go beyond the pleadings and look to the facts as established by summary judgment type evidence. Carriere v. Sears, Roebuck, and Co., 893 F.2d 98, 100 (5th Cir. 1990). Thus, the Court may consider affidavits and depositions in ruling on the motion. Plaintiffs have alleged that Mr. Young worked for Taylor-Seidenbach prior to the effective date of the 1952 amendments; they have alleged that Mr. Young was exposed to a thick yellow smock from asphalt kettles that contained PAH's and benzene; they have alleged that Taylor-Seidenbach did not warn Mr. Young of the dangerous of such exposures; they have established that exposures to these substances are capable of damaging DNA; they have alleged that once DNA is damaged, the consequences of the damage will progress independent of further exposure; and they have alleged that the latency period for the diseases from which Mr. Young suffers can be as long as sixty (60) years. Furthermore, Plaintiffs have supported their allegations with medical and scientific evidence appropriate at this stage in the proceedings.
Accordingly, the Court finds that the Plaintiffs have stated a valid cause of action against Taylor-Defendant. This Defendant, a citizen of Louisiana, was not fraudulently joined. Thus, there is not complete diversity between the parties.
IV. Conclusion
For the reasons given above, the Court GRANTS the Plaintiffs' Motion to Remand Accordingly, the matter should be and hereby is REMANDED to Civil District Court for the Parish of Orleans, State of Louisiana.
The Motion of Defendant Beazer to Dismiss and Defendant Bridgestone Firestone for More Definite Statement are hereby DENIED as MOOT.