Many, if not most, states have different statutes (or different common law doctrines) that toll the applicable statute of limitations (SOL) in different circumstances. These circumstances include the discovery rule in medical malpractice cases and the tolling of the SOL if the plaintiff was a minor when the cause of action accrued, was deemed mentally incompetent when the cause of action accrued or while the SOL was running, was imprisoned while the SOL was running, or when the defendant is not physically within the jurisdiction and cannot be served with process. In Louisiana, by contrast, one common law doctrine – contra non valentem – covers a wide variety of circumstances. The term comes from the Latin expression contra non valentem agere nulla currit praescriptio, which means “a prescription does not run against one who is unable to act.”
In Jack v. Evonik Corporation, https://www.ca5.uscourts.gov/opinions/pub/22/22-30526-CV0.pdf (5th Cir., 8/22/2023), a diversity case governed by Louisiana substantive law, the Fifth Circuit applied the doctrine of contra non valentem when the plaintiff could not have known, for almost 20 years, that a cause of action against a chemical plant near his home had accrued when his wife died of breast cancer. In this context, contra non valentem is the functional equivalent of the medical malpractice rule: the SOL does not begin to run until the plaintiff knows, or reasonably should know, that he or she may have a viable cause of action.
The carcinogen that allegedly caused Mrs. Jack’s breast cancer is ethylene oxide (EtO), a colorless, odorless gas. As the EPA explains at https://www.epa.gov/hazardous-air-pollutants-ethylene-oxide/our-current-understanding-ethylene-oxide-eto:
EtO is produced in large volumes at some chemical manufacturing facilities [and] is primarily used to make other chemicals that are used to make a range of products, including antifreeze, textiles, plastics, detergents, and adhesives. It is also used to sterilize [medical] devices that can’t be sterilized using steam or radiation . . . . When EtO is produced or used, some of it may be released to the air . . . . People who live near facilities that release EtO to the outdoor air may be exposed to EtO, depending on how much EtO is released and how close they live to the facility, among other factors. . . . EtO is a human carcinogen. . . . Scientific evidence in humans indicates that regular exposure to EtO over many years increases the risk of cancers of the white blood cells . . . . Studies also show that long-term exposure to EtO increases the risk of breast cancer in women.
The Fifth Circuit’s opinion summarizes the key allegations of the complaint as follows:
Jack’s house is located 2.7 miles from the Facility. He and his late wife, Leander Jack, moved into the house in the 1970s. In 2000, Leander died of breast cancer, which Jack did not attribute to the Facility at the time. . . . Jack alleges that he first learned of the Facility’s emission of EtO and EtO’s dangerous properties through an April 2020 mailer from Voorhies Law Firm, advising that he may have legal rights against the Facility. He sued in Louisiana state court within that year. Also that same year, the EPA’s Office of Inspector General issued a “Management Alert” asking the EPA to inform residents living near facilities that emitted EtO of the EtO emissions and the residents’ increased risks of developing cancer from exposure therefrom. Such notification did not occur until August 2021, when the EPA organized a public outreach meeting [with the state environmental agency] to warn the residents of their increased risk of cancer from the Facility.
According to Jack’s complaint, chemical companies first became broadly aware of EtO’s harmful properties in 1977 when the National Institute of Occupational Safety and Health recommended that EtO be considered . . . carcinogenic. EtO was declared a human carcinogen by California in 1987, by the World Health Organization in 1994, by the United States Department of Health and Human Services in 2000, by the United States National Toxicology Program in 2002, and by the EPA in 2007. In 2004, the National Institute identified EtO emissions as linked to breast cancer mortality in women. In 2016, the EPA increased the cancer risk for EtO to a level 30 times more carcinogenic than previously thought, stating that any exposure to EtO creates a risk of cancer. In 2014, the National Air Toxics Assessment found that the residents surrounding the Facility have some of the highest risks of cancer from EtO exposure in the United States, with a risk up to eight times what the EPA considers acceptable.
The results of the National Air Toxics Assessment were published in 2018. During these approximately 40 years, no efforts were made by either the Facility or any governmental agency to inform the surrounding residents of the Facility’s EtO emissions or their harmful quality.
Emphasis added because I believe these facts demonstrate egregious corporate irresponsibility and an equally egregious failure by the EPA to warn identifiable groups of people – namely, those who live near EtO-producing chemical plants – about the well-known (to the scientific community) increased risk of cancer.
The plaintiff sued for wrongful death damages, survival damages for his wife’s pain and suffering, and damages for his emotional distress due to his increased likelihood of developing cancer. The district court granted the defendant’s motion to dismiss, holding that all claims predicated on Mrs. Jack’s death were time-barred. The Fifth Circuit reversed.
Contra non valentem ends (and prescription commences) when the reasonable person has actual or constructive knowledge of the facts making him a victim of a tort. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. . . . What is reasonable is informed by the plaintiff’s own attributes and circumstances: We ask whether the plaintiff’s action or inaction was reasonable in light of his education, intelligence, and the nature of the defendant’s conduct.
The district court does not seem to have directly considered whether Jack could have discovered the tortious activity if he had inquired – instead, the court held that a reasonable person would have asked what caused the breast cancer, and thus, regardless of where the inquiry would have led, Jack was unreasonable and contra non valentem did not apply. But whether that theory – that prescription begins when one unreasonably fails to investigate, despite whether the tortious activity is actually knowable – is correct under Louisiana law is a matter of first impression. (Footnotes and internal quotation marks omitted.)
It’s always interesting when a federal court is called upon to answer a state-law question of first impression! The Fifth Circuit could have sent a certified question to the Louisiana Supreme Court. However, I think its analysis of the issue is so compelling, and its conclusion so obviously correct, that no certified question was called for.
We need not answer what would have happened if Jack had acted unreasonably, however, because we hold that Jack did not act unreasonably when he failed to inquire further into the cause of his wife’s breast cancer. [Footnote: That said, the most natural reading of contra non valentem is that prescription cannot commence until the landscape is such that a reasonable inquiry could have put the plaintiff on actual or constructive notice of the tortious activity. Under this conception, what the plaintiff actually did is but a red herring: If the facts are not capable of discovery, then the claim cannot be time-barred. . . . Even if plaintiff’s diagnosis triggered a duty to inquire further, the court can only deem plaintiff to know what a reasonable inquiry would have revealed.] The question is whether a reasonable man with Jack’s education and experience should have suspected —without any indication to the contrary—that the cause was something out of the ordinary. Under the specific facts of this case, the answer is no.
The doctrine of contra non valentem does not allow us to put ourselves, with the benefit of all our information and hindsight, into Jack’s shoes. Nor does it permit us to opine as to whether a fictional and infallible “reasonable person” would have asked follow-up questions. Jack, who had no connections to the plant, had lived in the same small town all his life, was computer illiterate, and had no medical training, cannot be expected to hunt down answers to a problem when there was absolutely no suggestion, at the time of the diagnosis, that any out-of-the-ordinary problem existed.
Furthermore, breast cancer is an exceedingly common diagnosis. Unlike asbestosis or multiple myeloma, it generally has a mundane cause and is not the kind of diagnosis that puts one on notice of problems in and of itself. And 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 independently on an investigation of the inner workings of an otherwise ordinary plant. We reverse and remand this claim to the district court for further factual development as to when Jack reasonably could have discovered the allegedly tortious cause of his wife’s diagnosis and death. (Footnotes and internal quotation marks.)
The court was careful to add, in a footnote, that “[t]his conclusion is merely that the diagnosis alone did not put Jack on notice of the tort. We take no position on the ultimate outcome.” I think, however, that since no one in the community knew in the year 2000 knew that the plant was producing EtO, that EtO was carcinogenic, and that the plant was emitting dangerous levels of it, the “ultimate outcome” is quite predictable.