Most litigants in Louisiana know that the usual tort claim has a prescriptive period (i.e., statute of limitation) of one year. This one-year clock begins ticking from the day injury or damage is sustained.[1]
But when exactly someone sustains an injury can be a tricky question to answer. If I am unknowingly exposed to a harmful chemical, did I sustain damage then, even if I didn’t know it at the time? If so, what if I don’t find out until over a year later? Although the clock on my tort claim has reached zero, it seems harsh to foreclose my cause of action before I even knew it existed.
Enter the doctrine of contra non valentem. From the Latin phrase for “prescription does not run against one who is unable to act,” contra non valentem pauses that one-year clock under certain circumstances.
One such circumstance is when the cause of action is not known or reasonably knowable to the plaintiff, even though the plaintiff’s ignorance is not induced by the defendant. For example, in my hypothetical case of chemical exposure, because I had no idea of my cause of action at the time of exposure, contra non valentem would pause the clock on my prescriptive period for some time.
The pause created by contra non valentem lasts until the plaintiff gains actual or constructive knowledge of facts that would lead a reasonable person to realize they have been the victim of a tort. There is some difficulty in defining constructive knowledge, but essentially it is the knowledge that a reasonable victim of a tort would possess.
For example, if I unreasonably choose to ignore the obvious signs of my latent injury, my actual knowledge may be very little, but I will be charged with the knowledge of someone acting reasonably in my shoes. The knowledge imputed to me would be my constructive knowledge.
Now imagine that before realizing I was exposed to a chemical but after feeling the effects, I am diagnosed by a doctor with an illness. Does that diagnosis signal the end of the effect of contra non valentem? That is the difficult question answered recently by the U.S. Fifth Circuit.[2]
The case involved plaintiff Ervin Jack, Jr., who for years lived with his wife near a petrochemical manufacturing facility in Reserve, Louisiana that allegedly emitted dangerous levels of a chemical called ethylene oxide, a colorless and odorless gas. Jack’s wife was diagnosed with breast cancer and passed away in 2000. Jack claimed that he was unaware of the ethylene emissions until 2020, when a law firm sent out mailers with information about the allegedly carcinogenic emissions and the nearby facility.
In 2021, Jack and other plaintiffs in similar positions sued the facility on behalf of their deceased family members. Lawyers on behalf of the facility moved to dismiss Jack’s claims as time barred. The facility argued that contra non valentem ceased when Jack’s wife was diagnosed with breast cancer, which was over 20 years before filing suit.
The trial court judge agreed, finding that “[s]tate and federal case law regarding prescription and contra non valentem strongly suggest that a medical diagnosis puts a plaintiff on constructive notice of her cause of action, and thereby starts the prescriptive period.”[3] However, other judges in the Eastern District of Louisiana reached the opposite conclusion: diagnosis is not necessarily constructive notice.[4]
The Fifth Circuit sided with the second group of judges, holding that the diagnosis alone did not put Jack on notice of the alleged tort. The court determined that the proper question was whether a reasonable person with Jack’s lack of education, medical training, and computer literacy would have suspected that he was the victim of a tort. The answer was no, at least at the time of diagnosis.
Significant to the court’s conclusion was the fact that breast cancer is a very common diagnosis, one that has any number of causes and does not necessarily indicate a tortious source, unlike asbestosis or multiple myeloma.
The court also noted that “a man who does not work for an allegedly tortious employer cannot be held, with nothing more, to be suspicious of invisible and unknown emissions of surrounding companies or to embark on an investigation of the inner workings of an otherwise ordinary plant.”
Notably, the court did not address the related question of whether a reasonable plaintiff always inquires into the cause of his diagnosis. Instead, the court simply held that in this case, at the time of diagnosis, the alleged underlying tort was not reasonably knowable. But it’s not hard to imagine a case where the tort was reasonably discoverable at diagnosis, but the plaintiff contends there were good reasons he failed to inquire further.
Nevertheless, this recent case is instructive. It saw the Fifth Circuit reject a one-size-fits-all approach to contra non valentem where diagnosis alone puts plaintiffs on notice of their potential tort.
This means the unique facts of each latent-injury case are key. Parties should focus on the plaintiff’s background, the opportunities for discovering the alleged cause of the injury, the nature of the illness at issue, and the landscape of the scientific literature and other sources linking the harmful agent to the symptoms experienced by the plaintiff. As in any prescription analysis, the timing of these various factors is key.
Finally, parties should keep in mind that contra non valentem is a creature of state law, meaning the Louisiana Supreme Court has the final say in how the doctrine ought to be applied.
[1] La. Civ. Code art. 3492.
[2] Jack v. Evonik Corporation, No. 22-30526, 2023 WL 5359086 (5th Cir. Aug. 22, 2023).
[3] Jack v. Evonik Corp., No. 22-1520, 2022 WL 3347811, at *4 (E.D. La. Aug. 12, 2022) (Barbier, J.); see also Joseph v. Evonik Corp., Civ. No. 22-1530, 2022 WL 16712888, at *4–7 (E.D. La. Nov. 4, 2022) (Vance, J.); Villa v. Evonik Corp., Civ. No. 22-1529, 2022 WL 3285111, at *2 (E.D. La. Aug. 11, 2022) (Ashe, J.).
[4] Fortado v. Evonik Corp., Civ. No. 22-1518, 2022 WL 4448230, at *4–8 (E.D. La. Sept. 23, 2022) (Milazzo, J.); Jones v. Evonik Corp., 620 F. Supp. 3d 508, 516–19 (E.D. La. 2022) (Africk, J.).