Royal v. Exxon Mobil Corporation et al

Filing 15

ORDER AND REASONS granting 5 Motion to Dismiss, as stated herein. Signed by Judge Martin L.C. Feldman on 2/6/2012. (tsf, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUNIUS ROYAL, JR.

CIVIL ACTION

Versus

NO.: 12-00081

EXXON MOBIL CORP., ET AL.

SECTION: “F”

ORDER AND REASONS
Before the Court is the defendants’ motion to dismiss.

For

the reasons that follow, the motion is GRANTED.

I. Background
Junius Royal sued several oil companies for damages in
Louisiana state court on December 9, 2011, in connection with oil
pipe cleaning services that the plaintiff performed.

Plaintiff

asserts that the oil pipes he cleaned contained "hazardous toxins
and carcinogenic radioactive materials commonly referred to as
'naturally occurring radioactive material, or NORMS.'"

Although

plaintiff does not state exactly when he cleaned the defendants'
pipes, he cites 1974 through 1982 as the years he worked at
Bredero Price, the contract employer on the job.

Plaintiff

claims that the defendants knew about the radioactive material in
the pipes, but failed to notify his employer, or plaintiff
himself.

He contends that because he did not know of the

presence of radioactive material in the pipes he was cleaning, he
became exposed to dangerously high levels of radiation during his

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work, and he now has a higher than average chance of developing
cancer.

Plaintiff brought claims of negligence and intentional

concealment under Louisiana law against the defendants, and
defendants removed the case to this Court.

Plaintiff seeks

general damages for increased risk of cancer, general damages for
fear of cancer, and special damages for medical monitoring for
the early detection of cancer.
has cancer.

He does not claim he presently

Plaintiff also seeks a host of other general and

special damages related to the treatment of cancer, or other
diseases, if and when they present themselves.
On January 18, 2012, the defendants jointly moved to dismiss
plaintiff's medical monitoring claim for failure to state a claim
on which relief could be granted.
II. Analysis
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead “enough facts to state a claim to relief that is
plausible on its face.”

In re Katrina Canal Breaches Litig., 495

F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 569 (2007)).

“Factual allegations must be

enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true
(even if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation

marks, citations, and footnote omitted).

In deciding whether

dismissal is warranted, the Court will not accept conclusory
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allegations in the complaint as true.

Kaiser Aluminum & Chem.

Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th
Cir. 1982).
Under Louisiana law, the plaintiff must either meet the
requirements of Louisiana Civil Code Article 2315(B), or satisfy
the seven factor test under Bourgeois v. A.P. Green Indus., 716
So. 2d 355 (La. 1998) (Bourgeois I).1

Which hurdle he must clear

depends on when his cause of action accrued, an issue that
neither side develops.

But whether one looks to Article 2315(B)

or Bourgeois I, plaintiff's petition for damages contains
insufficient facts to show that his claim for medical monitoring
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Article 2315(B) provides:
[d]amages do not include costs for future
medical treatment, services, surveillance, or
procedures of any kind unless such treatment,
services or procedures are directly related
to a manifest physical injury or mental
injury or disease.

To satisfy the Bourgeois I test, a plaintiff must show: (1)
Significant exposure to a proven hazardous substance, (2) As a
proximate result of this exposure, plaintiff suffers a
significantly increased risk of contracting a serious latent
disease, (3) Plaintiff's risk of contracting a serious latent
disease is greater than (a) the risk of contracting the same
disease had he or she not been exposed and (b) the chances of
members of the public at large of developing the disease, (4) A
monitoring procedure exists that makes the early detection of the
disease possible, (5) The monitoring procedure has been
prescribed by a qualified physician and is reasonably necessary
according to contemporary scientific principles, (6) The
prescribed monitoring regime is different from that normally
recommended in the absence of exposure, (7) There is some
demonstrated clinical value in the early detection and diagnosis
of the disease. Bourgeois v. A.P. Green Indus., 716 So. 2d 355,
360-61 (La. 1998).
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is plausible under either Article 2315(B) or Bourgeois I.
Plaintiff fails to allege or urge that he has a "manifest
physical injury or mental injury or disease."

The fact that he

may have been exposed to radiation is not, in and of itself,
sufficient.

Further, the plaintiff fails to plead facts which

bear directly on the Bourgeois I factors.

True, plaintiff’s

general allegations might reflect the Bourgeois I factors, but
plaintiff makes no mention of what type of monitoring he is
looking for, who prescribed him the monitoring, or what the
efficacy of the monitoring might be.
Accordingly, IT IS ORDERED: the defendants' motion to
dismiss is GRANTED, and plaintiff's medical monitoring claim is
dismissed without prejudice.

Plaintiff shall have 14 days from

this date within which to amend consistent with this Order and
Reasons or face dismissal with prejudice.

New Orleans, Louisiana, February 6, 2012.

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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