asbestos

Failure To Investigate Does Not Suspend Time Requirement For Filing Wrongful Death Lawsuit

Published on: September 29, 2023 | By Berniard Law Firm

uranium_radioactive_nuclear_rays-scaled We have all heard the saying “time is of the essence.” This is especially true when you are filing a lawsuit. If you do not comply with the statutory requirements for how long you have to file a lawsuit, a court will be unable to hear your claim. Although certain exceptions apply that extend your timeline for filing a lawsuit, there are strict evidentiary requirements for these exceptions to apply.

Julius Lennie worked for a Company that cleaned pipes in oilfields. The cleaning process allegedly involved the emission of naturally occurring radioactive material. About fifteen years after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Four years later, his surviving spouse and children filed a lawsuit against various companies for whom Lennie had cleaned their oilfield pipes. They claimed Lennie had been exposed to harmful levels of radiation, causing his lung cancer and death. They claimed the companies had been aware of the dangers of the radioactive materials but did not warn Lennie about the dangerous or take adequate precautions. The Lennies claimed they were not aware about the radiation exposure until less than a year before they filed their lawsuit, when one of Lennie’s children read about it in the newspaper and they met with an attorney. The Lennies claimed the companies had actively concealed the existence of the naturally occurring radioactive materials.

Because the Lennies filed their lawsuit over a year after Lennie’s death, the defendants filed peremptory exceptions of prescription, claiming they were required to have filed their lawsuit within one year of his death, pursuant to La. C.C. art. 2315.1. The Lennies claimed they did not have any actual or constructive knowledge of their claims until less than a year before they filed the lawsuit, because the companies had concealed it. The trial court granted the defendants’ peremptory exceptions of prescription, finding there was not sufficient evidence the defendants had concealed the existence of the naturally occurring radioactive material such that the Lennies did not have knowledge of their possible claims. The Lennies appealed.

Res Judicata Does Not Apply To Dismissal Without Prejudice

Published on: August 11, 2023 | By Berniard Law Firm

court_civil_ceremony_legal-scaled In law, there is a saying that you do not get two bites from the same apple. This means if a court issues a final judgment on the merits of your claim, you cannot file another lawsuit against the same parties involving the same claim. Does a dismissal without prejudice bar you from filing another lawsuit?

Robert Palermo and his wife filed a personal injury lawsuit against CanadianOxy and its insurers, including Certain Underwriters, for the injuries Palermo allegedly suffered from his on-the-job exposure to asbestos-containing materials. In response, Certain Underwriters filed an answer, raising various affirmative defenses and seeking contributions from several entities. Some of the third parties from whom Certain Underwriters sought contribution filed exceptions based on procedural issues, including improper service and lack of jurisdiction. The trial court granted these exceptions.

Certain Underwriters did not re-serve the third parties to remedy the improper service within the time specified in the trial court order, so the court dismissed the Certain Underwriters’ claims against the third parties without prejudice under La. C.C.P. art. 932(B). Certain Underwriters were granted leave to file a supplemental demand. Certain third parties then filed various exceptions, including an exception of res judicata.

Cancer Patient Prevails on Workers’ Compensation Claim Against Exxon

Published on: May 4, 2023 | By Berniard Law Firm

exxon_valdez_cleanup-scaled We have all read headlines about lawsuits filed against gas and energy companies by workers who have developed health problems at their facilities. But what happens when a plaintiff files a lawsuit which could be barred by a workers’ compensation act? Will the claim be able to withstand a peremptory exception? How does the plaintiff fight against such a motion?

Susan Mulkey appealed a trial court judgment sustaining a peremptory exception dismissing her claims against Exxon Mobil Corporation for damages. Her case arose from the death of her husband, Michael Mulkey Sr., who was exposed to toxic chemicals during his time at Exxon. Mulkey Sr. worked at Exxon for thirty-five years, during which he was exposed to benzene. He was subsequently diagnosed with acute myelogenous leukemia.

Mulkey Sr. claimed forty-one employees of Exxon were liable for his damages because of their negligence in properly safeguarding the work environment. When Mulkey Sr. died from leukemia, his wife and children filed a lawsuit for damages. Exxon filed a peremptory exception, claiming Mulkey failed to state a cause of action, which the trial court sustained. Exxon was eventually dismissed from the lawsuit, which Mulkey appealed.

What is the “Substantial Factor Test” in Louisiana Asbestos and Mesothelioma Litigation?

Published on: March 10, 2023 | By Berniard Law Firm

bauer_elementary_asbestos_2-scaled Risks are involved with many jobs. While employees may take risks at work, knowingly or unknowingly, one does not usually expect to put their family at risk while on the job. Jimmy Williams Sr found himself in this situation when his exposure to asbestos at work impacted his wife’s health through her handling his work clothes.

Myra Williams died at fifty-nine after being diagnosed with incurable mesothelioma, an aggressive and deadly form of cancer. She endured a difficult and painful battle with the disease until her death. Myra’s husband, Jimmy Williams, worked for the Placid Oil Facility in Natchitoches, Louisiana, and was constantly exposed to asbestos fibers. Unfortunately, he unknowingly brought the dangerous fibers home on his clothing that was handled and washed by Myra.

Jimmy Williams Sr filed a lawsuit for the death of his wife. This lawsuit was against several defendants, including Placid Oil Company and Ingersoll-Rand Company. The lawsuit alleged that products being used at Placid Oil Company were produced by Ingersoll-Rand and were the cause of the asbestos exposure that impacted Jimmy’s clothing. The courts in this lawsuit used the “substantial factor test” to determine whether Myra’s claims could be related to the exposure caused by the handling of her husband’s clothes. So what is this “substantial factor test” and how does it work? The following helps answer that question.