Coleman et al v. H.C. Price Co. et al

Filing 435

ORDER AND REASONS - IT IS ORDERED that Plaintiffs' motion for leave to file the restated complaint be and hereby is GRANTED. IT IS ORDERED that Defendants' motions to dismiss, to the extent they seek dismissal of Plaintiffs claims for breac h of contract or warranty, absolute liability under Civil Code article 667, and fraud or conspiracy, be and hereby are DENIED AS MOOT. To the extent Defendants' motions seek dismissal of claims by plaintiffs solely because the complaint does not assert specific causes of action against specific Defendants, IT IS ORDERED that Defendants' motions to dismiss be and hereby are DENIED AS MOOT. To the extent Defendants move to dismiss Plaintiffs' tort claims against their employers, IT IS ORDERED that Defendants motions be and hereby are GRANTED. To the extent Defendants move to dismiss Plaintiffs' intentional tort claims against their alleged employers arising after 1976, IT IS ORDERED that Defendants' motions be and her eby are DENIED. To the extent Defendants move to dismiss Plaintiffs' intentional tort claims as being insufficiently pleaded, IT IS ORDERED that Defendants' motions be and hereby are DENIED. IT IS ORDERED that Defendants' motions to di smiss be and hereby are DENIED to the extent Defendants' seek to dismiss Plaintiffs' strict liability claims based on lack of a "defect." To the extent the Defendants' motions to dismiss seek to dismiss claims for punitive da mages arising outside of the 1984-1995 window, IT IS ORDERED that Defendants' motions be and hereby are DENIED AS MOOT. IT IS ORDERED that Defendants' motions be and hereby are GRANTED to the extent any Plaintiff seeks punitive damages in a wrongful death claim. To the extent Defendants' motions seek to dismiss Plaintiffs' survival claims as untimely, IT IS ORDERED that Defendants' motions be and hereby are DENIED WITHOUT PREJUDICE. To the extent Tubo-FGS seeks to dismis s Plaintiffs' complaint based on the application of Texas law, IT IS ORDERED that Tubo-FGS's motion be and hereby is DENIED. OFS's motion is DENIED to the extent OFS asks the Court to dismiss the claims against it by the Kirby Plaintiffs and Joseph A. Walker. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEVI COLEMAN, et al.,
Plaintiffs

CIVIL ACTION

VERSUS

No. 11-2937

H.C. PRICE CO., et al.,
Defendants

SECTION “E”
ORDER AND REASONS

Before the Court are 23 motions to dismiss: (1) two motions of defendant Tubo-FGS,
LLC1 (“Tubo-FGS”) to Dismiss for Failure to State a Claim;2 (2) two motions of defendant
Weatherford International, Inc. ("Weatherford") to Dismiss for Failure to State a Claim;3
(3) a motion of defendant Packard Pipe Terminals, LLC ("Packard Pipe") to Dismiss for
Failure to State a Claim;4 (4) two motions of defendants Anadarko OGC Company,
Anadarko US Offshore Corporation, SWEPI, LP, Shell Offshore, Inc., and Shell Oil
Company (the "Shell Defendants") to Dismiss for Failure to State a Claim;5 two motions of
defendants American Oil Company, Atlantic Richfield Company, and BP Products North
America, Inc. ("BP Defendants") to Dismiss for Failure to State a Claim;6 two motions of

1
Plaintiffs allege Tubo-FGS, LLC is the successor to Varco, LP, Tuboscope Vetco International, Inc.,
Tuboscope, Inc, and AMF Tuboscope, Inc.
2

R. Doc. 297; R. Doc. 340.

3

R. Doc. 300; R. Doc. 339.

4

R. Doc. 301.

5

R. Doc. 302; R. Doc. 335.

6

R. Doc. 304; R. Doc. 330.

1

defendant Total Petrochemicals USA, Inc. ("Total") to Dismiss for Failure to State a Claim;7
two motions of defendant Patterson Truck Lines, Inc. ("Patterson") for Partial Dismissal
for Failure to State a Claim;8 two motions of defendant Hess Corporation ("Hess") to
Dismiss for Failure to State a Claim;9 two motions of defendant XH, LLC ("XH") to Dismiss
for Failure to State a Claim;10 a motion of defendant McDermott, Inc.11 ("McDermott") to
Dismiss for Failure to State a Claim;12 two motions of defendant Intracoastal Tubular
Services, Inc. ("ITCO") to Dismiss for Failure to State a Claim;13 a motion of defendant
Chevron USA, Inc.14 ("Chevron") to Dismiss for Failure to State a Claim;15 a motion of
defendant OFS, Inc. ("OFS") to Dismiss for Failure to State a Claim and/or Summary
Judgment;16 a motion of defendant Union Oil Company of California ("Union") to Dismiss
for Failure to State a Claim.17 Plaintiffs oppose the motions.18 Plaintiffs' Motion for Leave

7

R. Doc. 305; R. Doc. 337.

8

9

R. Doc. 307; R. Doc. 348.

R. Doc. 309; R. Doc. 336

10

R. Doc. 311; R. Doc. 371.

11

Plaintiffs allege McDermott, Inc. is the successor in interest to J. Ray McDermott, Inc.

12

R. Doc. 314.

13

R. Doc. 316; R. Doc. 341.

14

Plaintiffs allege Chevron, USA, Inc. is the successor to Gulf Oil Corporation, Gulf Oil Exploration &
Production Company, and Texaco, Inc.
15

R. Doc. 318.

16

R. Doc. 324.

17

R. Doc. 391.

18

R. Doc. 338; R. Doc. 350; R. Doc. 375.

2

to File Restated and Superseding Complaint is also before the Court.19
BACKGROUND
Plaintiffs in this suit are pipeyard workers and the surviving spouses and children
of now deceased former pipeyard workers.20 Plaintiffs' personal injury, wrongful death, and
survival claims arise out of the workers' occupational exposure to radioactive oil field waste
materials while working in various pipeyards and other facilities. Plaintiffs allege that while
cleaning, handling, and inspecting oil field pipe, they were exposed to Technologically
Enhanced Naturally Occurring Radioactive Materials ("TENORM"). Plaintiffs are suing

19

R. Doc. 394.

20

Plaintiffs are: Barbara Coleman, Beverly N. Marshall, Deborah Coleman Divinity, Greta A.
Richardson, Jermain Coleman, Levi Coleman Jr., Romunda Coleman, Stanley Newton, Shirley Coleman
Moreland, and Troy Selmon (surviving spouse and children of Levi Coleman - the "Coleman Plaintiffs");
Loretta Lee Alexie (surviving spouse of Melvin Alexie, Sr.); Tara Lopez, Ashley Austin, and Robert Austin
(surviving spouse and children of Ricky A. Austin - the "Austin Plaintiffs"); Patrick Bourque; Alfreida Bradley,
April A. Bradley, Dorothy W. Bradley, Earlie M. Bradley, Earl C. Bradley, Jr., Glynn R. Bradley, Mallere
Bradley Edwards, Melvin Bradley, Tammy Bradley, Wyatt Bradley, and Dorothy Bradley (surviving spouse
and children of Earl Bradley, Sr. - the "Bradley Plaintiffs"); Jeanette Buras, Chad Buras, Daisy Buras, Dominic
Buras, Jr., Matthew Buras, Nicole Buras Bort, Paul Buras, and Randy Buras (surviving spouse and children
of Dominic Buras - the "Buras Plaintiffs");Terry Burge; Benny Davis, Edward Davis, Geraldine Joseph, Patricia
McCray, and Rubin Davis, Jr. (surviving children of Rubin Davis, Sr. - the "Davis Plaintiffs"); Jimmye
Edwards; Jerry Fontineau, Jr.; Anthony Franklin; Theardis Gardner; Vianna Percle (surviving child of Norbert
Gregory - the "Gregory Plaintiff"); Howard Ray Griffin (surviving child of Daniel Griffin - the "Griffin
Plaintiff"); Eugene Jackson; Andrew Jackson, Joe Jackson, Kasi Jackson, Sandra Jackson, and Wanda Jackson
(surviving spouse and children of Andrew Jackson, Sr. - the "Jackson Plaintiffs"); Burnell Jefferson; Carol
Kirby Heiser, Gary Kirby, and Glen Kirby (surviving children of James Kirby - the "Kirby Plaintiffs"); Glen R.
Kirby; Timothy Kufel; Stephanie Labove, Desiree Labove, Destinee Labove, Drew Labove, Tara Labove and
Tessa Labove (surviving spouse and children of Alcide Labove - the "Labove Plaintiffs"); Melvin J. Landry;
William Leaumont, Sr. (surviving parent of William Leaumont, Jr. - the "Leaumont Plaintiff"); P.L (surviving
child of Charles Lookhoff - the "Lookhoff Plaintiff"); Mary U. Miller, Amanda Miller, and Pierre Miller
(surviving spouse and children of Pierre Miller, Sr. - the "Miller Plaintiffs"); Imogene Muckleroy, Scott
Muckleroy, Steven Muckleroy and Sylvia Gray (surviving spouse and children of Charlie Muckleroy - the
"Muckleroy Plaintiffs"); Celeste Pontiff and Mickey Pontiff (surviving spouse and child of Howard Wayne
Pontiff - the "Pontiff Plaintiffs"); Dolores Quebedeaux, Brent Quebedeaux, Donovan Quebedeaux and Gregory
Quebedeaux (surviving spousen and children of Bowsley Quebedeaux - the "Quebedeaux Plaintiffs"); Leslie
Rushing; Charlene Smith, Annie Smith, Ashanti Smith and Dexter Smith (surviving spouse and children of
Herman Smith - the "Smith Plaintiffs"); Terrell Smith, Gary Smith, Gregory Smith, John Smith Jr., and
Rhonda McHenry (surviving spouse and children of John Smith Sr. - the "John Smith Plaintiffs"); Barbara
Soape, April Soape, Chursha Soap and Kenneth Soape Jr. (surviving spouse and children of Kenneth Soape,
Sr. - the "Soape Plaintiffs"); Odella Gordon, Louis Thomas, Jr., and Teshilonne Thomas (surviving spouse and
children of Louis Thomas, Sr. - the "Thomas Plaintiffs"); Milton Vincent; Joseph A. Walker; Thomas Randall
Walters; and Charles Walton.

3

ITCO, Packard Pipe, Patterson, Tubo-FGS, Weatherford (the "Pipeyard Defendants"), OFS,
McDermott (the "Contractor Defendants"), the Shell Defendants, the BP Defendants,
Chevron, ConocoPhillips, Co., Devon Energy Production, Co., Exxon Mobil, Co., Hess,
Marathon, Total, Union Oil Company of California, and XH (the "Oil Company
Defendants").
After this case was removed, certain Defendants filed motions to dismiss. In an
October 2, 2012 Order and Reasons, the Court granted motions filed by the Oil Company
Defendants to dismiss the survival claims of certain plaintiffs as untimely.21 The Court
denied in part Packard's motion to dismiss to the extent that it sought to dismiss the
Coleman Plaintiffs' intentional tort claims.22 Citing Magistrate Judge Knowles' order on
Packard's motion for definite statement, the Court found the Coleman Plaintiffs' allegations
of intentional tort were adequately pleaded under Federal Rule of Civil Procedure
12(b)(6).23
Magistrate Judge Knowles thereafter granted Plaintiffs leave to file an amended
complaint.24 Various Defendants filed motions to dismiss for failure to state a claim. After
oral argument on defendant ACME Truck Line, Inc.'s motion to dismiss,25 the Court ordered
Plaintiffs to file a motion for leave to file a "Restated and Superseding Complaint" and

21

R. Doc. 116.

22

R. Doc. 116. The Court granted Packard's motion to the extent the Coleman Plaintiffs' other claims
were barred by the Louisiana Workers' Compensation Act's exclusivity provision. See La. Rev. Stat. Ann. §
23:1032(B).
23

R. Doc. 116, p. 8. Citing R. Doc. 68 (Order granting motion for more definite statement filed by
Packard and the Oil Company Defendants).
24

R. Doc. 153.

25

The Court granted in part and denied ACME's motion to dismiss at oral argument. R. Doc. 262.

4

denied all pending motions as moot. In the proposed Restated and Superseding Complaint,
the Court ordered Plaintiffs to provide more details with respect to each individual
plaintiff.26
Defendants opposed Plaintiffs' motion for leave to file a Restated and Superseding
Complaint, arguing the Plaintiffs' proposed complaint failed to comply with the Court's
orders requiring specificity. The Court, upon report and recommendation from Judge
Knowles, granted Plaintiffs' motion to file a Restated and Superseding Complaint, but
ordered Plaintiffs to provide even more detail with respect to each Plaintiff's claims.27
Plaintiffs then filed a "Supplemental and Amending Restated and Superseding Complaint"
in response to the Court's order.28
Defendants filed the above-referenced motions to dismiss Plaintiffs' Supplemental
and Amending Restated and Superseding Complaint. The Court heard oral argument on
McDermott's Motion to Dismiss for Failure to State a Claim and ITCO's Motions to Dismiss
for Failure to State a Claim.29 Because Plaintiffs' Supplemental and Amending Restated and
Superseding Complaint heavily referenced earlier complaints, at oral argument the Court

26

See R. Doc. 262. The Court ordered Plaintiffs to include in the complaint: the facility at which each
worker was allegedly exposed to TENORM, the specific time period during which each work alleges that he
or she was exposed to TENORM, the specific nature of each worker's complained-of injury, the date each
worker discovered his or her injury, each worker's date and alleged cause of death, if applicable, the identify
of any specific contracts between each defendant and each worker, the survivor plaintiffs and their
authority/qualifications to sue on behalf of any of the deceased workers, and each survivor's entitlement to
punitive damages.
27

R. Doc. 287. The Court ordered Plaintiffs to: provide the date and cause of death for each and every
deceased, provide the qualification to sue for each nominal plaintiff, clarify for each plaintiff which
defendant(s) he or she has claims against, clarify each individual's entitlement to punitive damages, and to
plead fraud with particularity. See R. Doc. 284.
28

29

R. Doc. 291.

R. Doc. 379.

5

directed Plaintiffs to file a single, Restated Complaint by January 6, 2014 to comply with
the Court's previous orders regarding the specificity of facts alleged. The Court ordered that
the restated complaint shall not refer to any previously filed complaint and shall include a
prayer by each plaintiff detailing the relief requested from each defendant.30 The Court
ordered the parties to file supplemental briefs stating whether they agreed or disagreed with
the listing of claims in the table accompanying ITCO's motion to dismiss.31 Plaintiffs' filed
a motion for leave to file the restated complaint, and the Court ordered the defendants to
file supplemental briefs addressing the extent to which Plaintiffs' proposed restated
complaint affected their motions to dismiss.32
As an initial matter, the Court finds Plaintiffs' proposed Restated Complaint
substantially complies with its earlier orders. Accordingly, IT IS ORDERED that
Plaintiffs' motion for leave to file the restated complaint33 be and hereby is GRANTED. The
Court will now address the Defendants' motions to dismiss.

30

R. Doc. 379.

31

R. Doc. 380 (Tubo); R. Doc. 381 (Packard Pipe); R. Doc. 382 (Total); R. Doc. 383 (ConocoPhillips);
R. Doc. 384 (Marathon Oil); R. Doc. 385 (Devon Energy Production Company, LP); R. Doc. 386 (Patterson);
R. Doc. 387 (Weatherford); R. Doc. 388 (Chevron); R. Doc. 389 (BP Defendants); R. Doc. 390 (XH); R. Doc.
392 (Union); R. Doc. 393 (Shell Defendants); R. Doc. 396 (McDermott); R. Doc. 402 (Exxon); R. Doc. 407
(Plaintiffs).
32
R. Doc. 410 (ConocoPhillips); R. Doc. 411 (Packard Pipe); R. Doc. 412 (ITCO); R. Doc. 413 (Chevron);
R. Doc. 414 (Union); R. Doc. 514 (Shell Defendants); R. Doc. 416 (Hess); R. Doc. 417 (OFS); R. Doc. 418 (BP
Defendants); R. Doc. 419 (Patterson); R. Doc. 420 (Tubo-FGS); R. Doc. 421 (XH); R. Doc. 422 (Weatherford);
R. Doc. 423 (Total); R. Doc. 423 (McDermott); R. Doc. 426 (Marathon); R. Doc. 427 (Devon Energy). The
Court also granted OFS leave to file a third supplemental memorandum in support of its motion to dismiss
and/or summary judgment. R. Doc. 430.
33

R. Doc. 394.

6

MOTION TO DISMISS STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a
complaint for failure to state a claim upon which relief may be granted if the plaintiff has
not set forth factual allegations in support of his claim that would entitle him to relief. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401
(5th Cir. 2007). As the Fifth Circuit explained in Gonzales v. Kay:
"Factual allegations must be enough to raise a right to relief above the
speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L. Ed. 2d 929 (2007). The Supreme Court recently
expounded upon the Twombly standard, explaining that "[t]o survive
a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on
its face." Ashcroft v. Iqbal, 556 U.S. 662, 128 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct.
1955, 167 L.Ed.2d 929). "A Claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged." Id. It follows that "where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not 'show[n]' - that the pleader is
entitled to relief." Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
The Court cannot look beyond the factual allegations in the pleadings to determine
whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.
1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing Plaintiffs' complaint,
the Court must accept all well-pleaded facts as true and liberally construe all factual
allegations in the light most favorable to the Plaintiffs. Spivey, 197 F.3d at 774; Lowrey v.
Tex A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). "Dismissal is appropriate when the
complaint 'on its face show[s] a bar to relief." Cutrer v. McMillan, 308 F. App'x 819, 820
(5th Cir. 2009) (per curiam) (unpublished) (quoting Clark v. Amoco Prod. Co., 794 F.2d
7

967, 970 (5th Cir. 1986)).
APPLICATION
Defendants' motions to dismiss raise substantially the same issues, therefore the
Court finds it appropriate to address these issues globally. The Court will first discuss those
arguments raised by Defendants rendered moot by Plaintiffs' Restated Complaint. The
Court will then address Defendants' remaining arguments and determine whether any
claims should be dismissed. Lastly, the Court will address specific issues raised by certain
Defendants' motions.
I. Mooted Arguments
The Defendants' motions seek to dismiss Plaintiffs' claims for: breach of contract or
warranty; absolute liability under Louisiana Civil Code article 667, and fraud or conspiracy.
Because Plaintiffs' Restated Complaint no longer alleges causes of action under these
theories, IT IS ORDERED that Defendants' motions to dismiss, to the extent they seek
dismissal of Plaintiffs claims for breach of contract or warranty, absolute liability under
Civil Code article 667, and fraud or conspiracy, be and hereby are DENIED AS MOOT.34
The Defendants' motions also seek dismissal of claims by Plaintiffs who do not
specifically bring claims against certain Defendants. In earlier versions of Plaintiffs'
complaint, Plaintiffs included a general prayer for relief asserted by all Plaintiffs against all
Defendants. Each Defendant's motion seeks to dismiss claims by those individual plaintiffs
who do not make any specific allegations against a particular Defendant. In Plaintiffs'

34

The Court notes that in the "General Facts" section of Plaintiffs' restated complaint, Plaintiffs make
generalized statements about fraud and conspiracy, absolute liability, and breach of contract. See R. Doc. 3941, p. 25. The Court does not consider these statements sufficient to assert causes of action or theories of
liability, but rather only general iterations of Plaintiffs' version of the facts of the case drawn from earlier
versions of the complaint.

8

Restated Complaint, however, each Plaintiff specifies and prays for relief against specific
Defendants, as ordered by the Court. Accordingly, to the extent Defendants' motions seek
dismissal of claims by plaintiffs solely because the complaint does not assert specific causes
of action against specific Defendants, IT IS ORDERED that Defendants' motions to
dismiss be and hereby are DENIED AS MOOT. The Plaintiffs have no claims pending
against any Defendants unless those claims are specifically pleaded in the Restated
Complaint.
II. Global Issues
Plaintiffs' restated complaint asserts four theories of recovery against Defendants:
negligence, strict liability, intentional tort, and a claim for punitive damages. Defendants'
motions also seek dismissal of these claims. Therefore the Court will discuss the issues
raised by Defendants' motions with respect to these causes of action.
A. Workers' Compensation
Defendants' motions seek dismissal of Plaintiffs' claims to the extent they are barred
by the Louisiana Workers' Compensation Act ("LWCA"). As a general matter, the LWCA
provides the exclusive remedy to an employee for injury, sickness, or disease arising during
the course and scope of employment. See La. Rev. Stat. § 23:1032(A). However, the LWCA
has undergone several changes during the time period of Plaintiffs' alleged exposure to
TENORM.35
35

The LWCA applies as the exclusive remedy for both wrongful death and survival actions filed by the
survivors of an injured worker. See Deshotel v. Guichard Operating Co., Inc., 961 So.2d 697, 701 (La. App.
3d Cir. 2003). With respect to wrongful death claims, the Louisiana Supreme Court has held that version of
the LWCA in effect at the time of death is applicable. See Walls v. Am Optical Corp. 740 So.2d 1262, 1265-75
(La. 1999). With respect to Plaintiffs' survival action claims, the applicable law is that in place at the time of
exposure as determined under the "significant tortious exposure theory." Austin v. Abney Mills, Inc., 824
So.2d 1137, 1143 (La. 2002). The same is true for those claims for exposure made by Plaintiffs who are still
alive.

9

For purposes of the present motions, there are several significant changes in the
LWCA worth noting. Prior to 1975, the LWCA used a "schedule approach" for occupational
diseases and the act listed specific conditions covered under workers' compensation. See
O'Regan v. Preferred Enterpr., Inc., 758 So.2d 124, 129 (La. 2000).36 For those
occupational diseases not listed in the pre-1975 version of La. Rev. Stat. § 23:10131.1, an
employee could bring suit against his or her employer in tort. It was not until 1975, when
the Louisiana Legislature abandoned the "schedule approach" in favor of comprehensive
coverage for occupational diseases, that all tort suits for occupational diseases were
prohibited. Id. (citing 1975 La. Acts No. 583). Certain Plaintiffs assert tort claims against
their alleged employer in the Restated Complaint. Plaintiffs argue they may do so because
their claims arose prior to 1975 and their complained-of diseases are not listed in the pre-

36

The pre-1975 version of the Act covers provides in part: "A. An occupational disease shall include
only those diseases hereinafter listed when contracted by an employee in the course of his employment as a
result of the nature of the work performed....
(1) Poisoning by or disease resulting from contact with:
(a) the halogens, halogen compounds, and halogenated hydrocarbons;
(b) alkaline materials;
(c) arsenic, phosphorus, silenium, sulfur, tellurium, and their compounds;
(d) oxygen, nitrogen, carbon, and their compounds;
(e) cyanides and cyanogen compounds;
(f) lead and lead compounds;
(g) metals other than lead and their compound;
(h) aliphatic hydrocarbons and their nitro, amino, and other compounds;
(j) alcohols;
(k) organic and inorganic acids and their derivatives and compounds;
(l) esters of aliphatic, aromatic, and inorganic acids;
(m) aldehydes;
(n) ketones;
(o) ethers, glycol ethers, and their compounds;
(p) phenol and phenolic compounds.
(2) Diseased condition caused by exposure to X-rays or radioactive substances;
(3) asbestosis;
(4) silicosis;
(5) dermatosis;
(6) pneumoconiosis;
(7) tuberculosis when contracted during the course fo employment by an employee of a hospital or
unit thereof specializing in the case and treatment of tuberculiosis patients."
Callaway v. Anco Insulation, Inc., 714 So.2d 730, 731 (La. App. 4 Cir. 1998).

10

1975 version of the act. However, even for those claims arising prior to 1975, the pre-1975
version covered "exposure to X-rays or radioactive substances." Callaway, 714 So.2d at 731.
Plaintiffs' restated complaint explicitly alleges exposure to radioactive substances. Thus,
regardless of whether a Plaintiffs' claim arose before or after 1975, Plaintiffs' injuries arising
from exposure to TENORM are covered under both the pre-1975 and the post-1975 versions
of the LWCA, and Plaintiffs may not assert a tort claim outside of the LWCA against their
employers.
Accordingly, to the extent Defendants move to dismiss Plaintiffs' tort claims against
their employers, IT IS ORDERED that Defendants motions be and hereby are
GRANTED. The following claims are dismissed:
C

Strict liability and negligence claims asserted by Alexie Plaintiff (Lorette Lee Alexie)
against McDermott;

C

Claims for punitive damages asserted by Bradley Plaintiffs (Dorothy W. Bradley,
Melvin J. Bradley, Wyatt B. Bradley, Earl C. Bradley, Jr., Glenn R. Bradley, Alfreada
Bradley, Earlie M. Bradley, Tammy B. Bradley, April A. Bradley, and Mallere
Bradley) against Patterson.37

C

Strict liability and negligence claims asserted by Davis Plaintiffs (Benny Davis,
Rubin Davis, Jr., Edward Davis, Geraldine Joseph, and Patricia McCray) against
ITCO.

C

Strict liability and negligence claims asserted by Gregory Plaintiff (Vianna Gregory
Percle) against Patterson.
37

The exclusivity provision of LWCA, prior to its amendment in 1995, precludes an employee from
seeking punitive damages from his employer under former Civil Code article 2315.3 as a result of employment
related injury or compensable disease. Adams v. J.E. Merit Const., Inc. 712 So.2d 88 (La. 1998).

11

C

Strict liability and negligence claims asserted by the Gregory Plaintiff (Vianna
Gregory Percle) against McDermott.

C

Strict liability and negligence claims asserted by the Griffin Plaintiff (Howard Ray
Griffin) against McDermott.

C

Strict liability and negligence claims asserted by Glen Kirby against Tubo-FGS.38

C

Strict liability and negligence claims asserted by James Kirby Plaintiffs (Glen R.
Kirby, Carol Kirby Heiser and Gary Kirby) against Tubo-FGS.39

C

Claim for punitive damages asserted by Timothy Kufel against Patterson.40

C

Strict liability and negligence claims asserted by Melvin Landry against McDermott.

C

Strict liability and negligence claims asserted by Melvin Landry against Tubo-FGS.41

C

Strict liability and negligence claims, as well as claim for punitive damages asserted
by Leaumont Plaintiff (William Leaumont, Sr.) against Marathon.

C

Strict liability and negligence claims asserted by Quebedeaux Plaintiffs (Dolores
Quebedeaux, Donovan Quebedeaux, Brent Quebeeaux, and Gregory Quebedeaux)
against McDermott.

C

Negligence claim asserted by Leslie Rushing against Anadarko OGC.

C

Claim for punitive damages asserted by Smith Plaintiffs (Charlene Smith, Annie

38

Glenn Kirby alleges he was employed by Tuboscope, and that Tubo-FGS is the successor to
Tuboscope.
39
The James Kirby Plaintiffs allege James Kirby was employed by Tuboscope, and that Tubo-FGS is
the successor to Tuboscope.
40

The exclusivity provision of LWCA, prior to its amendment in 1995, precludes an employee from
seeking punitive damages from his employer under former Civil Code article 2315.3 as a result of employment
related injury or compensable disease. Adams v. J.E. Merit Const., Inc. 712 So.2d 88 (La. 1998).
41

Melvin Landry alleges was employed by Tuboscope, and that Tubo-FGS is the successor to
Tuboscope.

12

Smith, Ashanti Smith, and Dexter Smith) against Texaco.
C

Strict liability and negligence claims asserted by Milton Vincent against McDermott.
In 1976, the Louisiana Legislature codified an exception to the exclusivity provisions

of the LWCA when the employee's injury or disease is caused by an intentional tort. See La.
Rev. Stat. § 1032(A); Zimko v. Am. Cyanamid, 905 So.2d 465, 475 (La. App. 4 Cir. 2005).
Thus, Plaintiffs' intentional tort claims arising after 1976 are not precluded by the LWCA
and may proceed against their employer.
Accordingly, to the extent Defendants move to dismiss Plaintiffs' intentional tort
claims against their alleged employers arising after 1976, IT IS ORDERED that
Defendants' motions be and hereby are DENIED.
B. Sufficiency of Facts Pleaded for Intentional Tort Claims
Many of Defendants' motions argue the facts alleged in Plaintiffs' intentional tort
claims are insufficiently pleaded. However, this Court already determined that certain
Plaintiffs' intentional tort claims are adequately pleaded.42 Because the intentional tort
claims in Plaintiffs' Restated Complaint are no different from those set forth in earlier
complaints, the Court finds no reason to alter its previous findings.
Accordingly, to the extent Defendants move to dismiss Plaintiffs' intentional tort
claims as being insufficiently pleaded, IT IS ORDERED that Defendants' motions be and
hereby are DENIED.
C. Strict Liability
Defendants seek to dismiss Plaintiffs' strict liability claims. Prior to April 16, 1996,
a plaintiff could impose strict liability on a custodian of a thing under former Louisiana
42

R. Doc. 116, p. 8.

13

Civil Code article 2317 by establishing that (1) the person was injured by a thing that was
in the defendant's care, custody, or control (garde); (2) the thing had a vice, ruin, or defect
that presented an unreasonable risk of harm; and (3) the vice, ruin, or defect was the causein-fact of plaintiff's damages. Lasyone v. Kan. City S. R.R., 786 So.2d 682, 689 (La. 2001).
In 1996, Louisiana Civil Code article 2317.1 was added to require knowledge or
constructive knowledge of an unreasonable risk of harm in order to impose liability on a
custodian of a thing. Thus, after April 16, 1996, a plaintiff alleging strict liability must prove:
"(1) that the defendant knew or should have known of the vice or defect; (2) that the
damage could have been prevented by the exercise of reasonable care; and (3) that the
defendant failed to exercise such reasonable care." Gailey v. Barnett 106 So.3d 625, 628
(La. App. 4 Cir. 2012).
Under either the pre-1996 or post-1996 causes of action for strict liability, a
defendant is only liable for things in its custody that have a "ruin, vice, or defect." La. Civ.
Code art. 2317.1. Defendants argue that courts have imposed strict liability on a defendant
only when a thing has "a flaw or condition of relative permanence inherent in the thing as
one of its qualities." Murray v. Aran Energy Corp., 863 F. Supp. 315, 319 (E.D. La. 1994).
Defendants contend they cannot be held strictly liable because the radioactive
contamination of the used oilfield pipes is merely a temporary condition and thus not
recognized as a "defect."
The Court disagrees. The cases relied on by Defendants to argue that the condition
of the pipes did not contain an inherent "defect" are distinguishable. See Bridgfield Cas.
Ins. Co. v. J.E.S., Inc., 29 So.3d 570, 573 (La. App. 1 Cir. 2009)(finding strict liability
inapplicable where plaintiff tripped on a clump of sheetrock mud); Dickerson v. Winn14

Dixie, Inc., 816 So.2d 315, 317 (La. App. 1 Cir. 2002)(finding strict liability inapplicable
where plaintiff slipped on potting soil); Holden v. Louisiana State Univ. Medical CenterShreveport, 690 So.2d 958, 961 (La. App. 2d Cir. 1997)(finding strict liability inapplicable
where plaintiff slipped on juice on the floor). The radiation at issue in this case is absorbed
into the pipe, which Plaintiffs' assert renders the pipe permanently defective.43 Thus, the
radioactive quality of the pipes containing TENORM is not a mere temporary hazard that
would preclude the applicability of strict liability.
Accordingly, IT IS ORDERED that Defendants' motions to dismiss be and hereby
are DENIED to the extent Defendants' seek to dismiss Plaintiffs' strict liability claims
based on lack of a "defect."
D. Punitive Damages
(i) Operative Time Period
Defendants move to dismiss the punitive damage claims of certain Plaintiffs.
Plaintiffs bring their punitive damage claims under former article 2315.3 of the Louisiana
Civil Code, which provided that, "[i]n addition to general and special damages, exemplary
damages may be awarded, if it is proved that plaintiff's injuries were caused by the
defendant's wanton or reckless disregard for public safety in the storage, handling, or
transportation of hazardous or toxic substances." See Corbello v. La. Prod., 850 So.2d 686,
707 (La. 2003). The provision was in effect between 1984 and 1996, and applies to causes
of action arising during that time period. See id. at 707 n.9; Brownell Land. Co. v. Apache
Corp., 2005 WL 3543772, at *6 (E.D. La. Oct. 13, 2005). Thus, "in order to state a cause of
action for exemplary damages, the plaintiff must plead facts which establish the[] cause of
43

R. Doc. 338, p. 9.

15

action during the effective period of article 2315.3." In re Harvey Term Litig., 872 So.2d
584, 586 (La. Ct. App. 1994). To the extent any Plaintiff requests punitive damages for
claims arising outside of the 1984 to 1996 window, that relief is unavailable.
Plaintiffs' Restated Complaint does not assert any claims for punitive damages
arising exclusively outside of the operative period of former Civil Code article 2315.3.
Accordingly, to the extent the Defendants' motions to dismiss seek to dismiss claims for
punitive damages arising outside of the 1984-1995 window, IT IS ORDERED that
Defendants' motions be and hereby are DENIED AS MOOT.
(ii) Punitive Damages in Wrongful Death Claims
Louisiana state courts have declined to allow a plaintiff to recover punitive damages
in wrongful death actions. See Bulot v. Intracoastal Tubular Serv., Inc., 888 So.2d 107,
1022-23 (La. App. 4 Cir. 2004); Bailey ex rel. Brown v. Exxon Mobil Corp. 76 So.3d 53 (La.
App. 4 Cir. 2011); Pierce v. Exxon Mobil Corp., 2013 WL 1856079, at *10 (E.D. La. Apr.
2013). Accordingly, IT IS ORDERED that Defendants' motions be and hereby are
GRANTED to the extent any Plaintiff seeks punitive damages in a wrongful death claim.
The following claims are dismissed:
C

Wrongful death claim for punitive damages against Chevron and Marathon by the
Alexie Plaintiff (Loretta Lee Alexie);

C

Wrongful death claims for punitive damages against Chevron and Exxon by the
Austin Plaintiffs (Tara Austin Lopez, Robert Austin, and Ashley Austin);

C

Wrongful death claims for punitive damages against Patterson, OFS, Weatherford,
Chevron, Texaco, Union, Amoco, Exxon, and Marathon by the Bradley Plaintiffs
(Dorothy W. Bradley, Melvin J. Bradley, Wyatt B. Bradley, Earl C. Bradley, Jr.,
16

Glenn R. Bradley, Alfreada Bradley, Earlie M. Bradley, Tammy B. Bradley, April A.
Bradley, and Mallere Bradley);
C

Wrongful death claims for punitive damages against Amoco, Chevron, Conoco,
Exxon, Gulf Oil, Marathon, Devon, Shell, Texaco, and Hess by the Buras Plaintiffs
(Jeanette Buras; Dominic Buras, Jr., Chad Buras, Daisy Buras, Matthew Buras,
Nicole Buras Bort, Paul Buras, and Randy Buras);

C

Wrongful death claims for punitive damages against Exxon, MEPNA, Amoco,
Chevron, and Texaco by the Jackson Plaintiffs (Sandra Jackson, Wanda Jackson, Joe
Jackson, Andrew Jackson, Jr. and Kasi Jackson);

C

Wrongful death claim for punitive damages against Tuboscope, Chevron, Marathon,
and Exxon by the Leaumont Plaintiff (William Leaumont, Sr.);

C

Wrongful death claims for punitive damages against Chevron and Exxon by the
Miller Plaintiffs (Mary U. Miller, Pierre Miller, Jr., and Amanda L. Miller);

C

Wrongful death claims for punitive damages against Total, Devon and Union by the
Muckleroy Plaintiffs (Imogene Muckleroy, Steven Muckleroy, Scott Muckleroy, and
Silvia Gray);

C

Wrongful death claims for punitive damages against ConocoPhillips, Exxon, Texaco,
Shell Oil, and Chevron by the Pontiff Plaintiffs (Celeste Pontiff and Mickey Howard);

C

Wrongful death claims for punitive damages against Arco, Hess, Amoco, Texaco,
Chevron, Exxon, and Anadarko US by the Quebedeaux Plaintiffs (Dolores
Quebedeaux, Donovan Quebedeaux, Brent Quebedeaux, and Gregory Quebedeaux);

C

Wrongful death claims for punitive damages against Texaco, Chevron, and Exxon
by the Smith Plaintiffs (Charlene Smith, Annie Smith, Ashanti Smith, and Dexter
17

Smith);
C

Wrongful death claims for punitive damages against Chevron and ConocoPhillips
by the John Smith Plaintiffs (Terrell Smith, John Smith, Jr., Gary Smith, Gregory
Smith, and Rhoda McHenry);

C

Wrongful death claims for punitive damages against Shell Oil and Exxon by the
Soape Plaintiffs (Barbara Soape, Kenneth Russell Soap, Jr., April Starr Soape, and
Chursha Moon Soape);

C

Wrongful death claims for punitive damages against Shell Oil, Shell Offshore,
Chevron, and Exxon by the Thomas Plaintiffs (Odelia Thomas, Louis Thomas, Jr.,
and TeShilonne Thomas);

C

Wrongful death claims for punitive damages against OFS, Arco, BP, Chevron, Exxon,
Mobil, Shell Offshore, Shell Oil, SWEPI, and Union by the Coleman Plaintiffs
(Barbara Coleman, Beverly N. Marshall, Deborah Coleman Divinity, Greta A.
Richardson, Jermaine Coleman, Levi Coleman, Jr., Romunda Coleman, Stanley
Newton, Shirley Coleman Moreland and Troy Selman).
E. Timeliness of Survival Claims
As this Court has previously held, "[i]n survival actions involving latent, long-term

toxic torts, federal courts are to apply the law in effect at the time of the decedent's
significant causative exposure." Frank v. Shell Oil co., 2012 WL 1230736, at *4 (E.D. La.
Apr. 12, 2012)(citing to a number of Louisiana state court cases). It is clear that under
Louisiana law, survival actions based on significant causative exposure that occurred
entirely before 1986 are subject to a one year peremptive period that cannot be interrupted
or suspended. Ayo v. Johns-Manville Sales Corp., 771 F.2d 902, 907 (5th Cir. 1985);
18

Kennedy v. Trinidad Corp., 349 F.2d 832 (5th Cir. 1965).
For survival claims based on causative exposure after 1986, the law is less clear.
However, the Court held in its October 2, 2012 Order and Reasons that Civil Code article
2315.1 contains a one-year peremptive period even after the 1986 amendment.44 See, e.g.
Barber v. Employers Ins. Co. of Wausau, 97 So.3d 454 (La. App. 1 Cir. 2012). After
dismissing certain Plaintiffs' survival claims as untimely based on a one year peremptive
period, the Court designated the October 2, 2012 Order and Reasons as a partial final
judgment under Federal Rule of Civil Procedure 54(b).45 Plaintiffs appealed the October 2,
2012 Order and Reasons on February 4, 2013.46 The Fifth Circuit Court of Appeals
thereafter issued a certified question to the Louisiana Supreme Court to determine whether,
after the 1986 amendment to the statute, the one-year limitations period for a survival
action under Civil Code article 2315.1 is prescriptive or peremptive.47
The issue of whether the limitations period for survival claims based on causative
exposure after 1986 is still on appeal. The Court denies ruling on the motions to dismiss
survival claims based on untimeliness without prejudice to the Defendants' ability to reurge
the motions after the appeal is decided. Accordingly, to the extent Defendants' motions seek
to dismiss Plaintiffs' survival claims as untimely, IT IS ORDERED that Defendants'
motions be and hereby are DENIED WITHOUT PREJUDICE.
III. Specific Defendants' Arguments

44

See R. Doc. 116, pp. 4-6

45

R. Doc. 116.

46

R. Doc. 166.

47

See USCA 13-30150, R. Doc. 8.

19

A. Choice of Law
Tubo-FGS's motion seeks to dismiss all of the Austin Plaintiffs' wrongful death
claims based on the application of Texas' two year statute of limitations. See Tex. Civ. Prac.
& Rem. Code. Ann. § 16.003. Plaintiffs' Restated Complaint alleges Ricky Austin worked in
both Louisiana and Texas.48 Liberally construing Plaintiffs' complaint and reading all
allegations as true, the Court declines to dismiss the Austin Plaintiffs' wrongful death claims
based on the applicability of Texas law. Tubo-FGS has not shown Texas law unequivocally
applies such that Plaintiffs' complaint shows "a bar to relief" on its face. Clark, 794 F.2d at
970. Accordingly, to the extent Tubo-FGS seeks to dismiss Plaintiffs' complaint based on
the application of Texas law, IT IS ORDERED that Tubo-FGS's motion be and hereby is
DENIED.
B. OFS's Motion to Dismiss/Motion for Summary Judgment
OFS attached an affidavit to its supplemental memorandum49 in support of its
Motion to Dismiss/Motion for Summary Judgment. Because OFS attached to its motion
matters outside the pleadings, the Court will treat it as a summary judgment motion. See
Clark v. Tarrant Cnty., Tex., 798 F.2d 736, 745 (5th Cir. 1986). Summary judgment is
appropriate when "the pleadings, the discovery and disclosure material on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come forward with evidence which
48

49

R. Doc. 349-1, p. 58.

R. Doc. 430.

20

would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l
Shortstop, Inc. v. Rally's Inc. 939 F.2d 1257, 1263-64 (5th Cir. 1991). The nonmoving party
can then defeat the motion by either countering with sufficient evidence on its own, or
"showing that the moving party's evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
OFS argues it cannot be held liable for the claims against it asserted by the Bradley
Plaintiffs, who allege exposure to TENORM from 1988 to 1992. OFS submitted competent
summary judgment evidence, an affidavit, attesting to the fact that OFS did not clean any
used pipe after 1987. Because OFS carried its burden, the burden shifts to the Plaintiffs to
come forward with evidence to create a genuine fact issue. The Bradley Plaintiffs failed to
come forward with any evidence, and as a result, the Bradley Plaintiffs' claims against OFS
are dismissed.
OFS also presents the affidavit attached to its supplemental memorandum to argue
it cannot be held liable for the Coleman Plaintiffs' claims. The Coleman Plaintiffs' claims
arise from Levy Coleman Sr.'s alleged exposure to TENORM at OFS's facility and at Bredero
Price Company's facility where he was employed. OFS attests that it did not clean any pipe
at the Bredero Price Company's facility, and the Bredero Price Company or its employees
never performed any work at OFS's facilities. Because OFS carried its burden of showing
it is not liable for the Coleman Plaintiffs' claims and Plaintiffs have also failed to rebut this
fact, the Coleman Plaintiffs' claims against OFS are dismissed.
OFS, as the movant, has the burden to show Plaintiffs' claims should be dismissed.
OFS has failed to put forth any summary judgment evidence showing the remaining claims
against it, asserted by Joseph A. Walker and the Kirby Plaintiffs, should be dismissed.
21

Accordingly, OFS's motion is DENIED to the extent OFS asks the Court to dismiss the
claims against it by the Kirby Plaintiffs and Joseph A. Walker. OFS is free to re-urge its
arguments with respect to those plaintiffs at a later date by presenting competent summary
judgment evidence.

2nd
New Orleans, Louisiana, this ____ day of September, 2014.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

22