Lemieux, et al v. CSR Ltd, et al

Filing 18

ORDER AND REASONS: IT IS ORDERED that Defendant's 9 motion to dismiss is GRANTED. Plaintiffs' claims against Defendant American Optical Corporation are DISMISSED WITH PREJUDICE. Signed by Judge Ivan L.R. Lemelle on 3/28/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ESSIE LEMIEUX, ET AL.

CIVIL ACTION

VERSUS

NO. 16-16508

CSR LTD., ET AL.

SECTION "B"(5)
ORDER AND REASONS

Before the Court is Defendant “American Optical Corporation’s
Rule 12(b)(6) Motion to Dismiss.” Rec. Doc. 9. Plaintiff timely
filed a memorandum in response. Rec. Doc. 13. Defendant then
requested, and was granted, leave to file a reply memorandum. Rec.
Doc. 17. For the reasons discussed below,
IT IS ORDERED that the motion to dismiss (Rec. Doc. 9) is
GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of the death of Raymond J. Lemieux, Sr.

(“Decedent”). From February 29, 1956 through February 23, 1970,
Decedent was employed by the Johns-Manville Corporation at its
Marrero, Louisiana facility. Rec. Doc. 1 at ¶ 7. While employed
under various job titles, Decedent wore the R9100 respirator
designed by Defendant American Optical Corporation (“Defendant”)
and was exposed to asbestos supplied by Defendant CSR Ltd. (“CSR”).
Id. at ¶¶ 7-8. As a result of this exposure, Decedent “developed
asbestos-related lung cancer, which caused his death on December
18, 2015.” Id. at ¶ 10.

1

After Decedent was diagnosed with lung cancer on June 15,
2009,

he

entered

into

settlement

discussions

with

Defendant

American Optical. Rec. Doc. 1 at ¶¶ 19-20. Decedent’s wife and
children were unaware of these discussions, but were eventually
asked to sign a release of their future claims as a condition of
Decedent’s settlement with Defendant American Optical. Id. at ¶¶
21-22. Even though they were not represented by their own counsel,
did not understand “the nature or value of their future claims,”
and “receiv[ed] no compensation for release of their claims,”
Decedent’s wife and children signed the release. Id. at ¶¶ 21, 2324. Because they were not represented by their own counsel,
Decedent’s wife and children now seek a declaratory judgment under
Louisiana Code of Civil Procedure 1871 that the release is null
and void and vitiating their consent thereto. Id. at ¶ 26.
On November 22, 2016, Decedent’s widow, Essie Lemieux, and
surviving children, Raymond J. Lemieux, Jr. and Dehon Lemieux
Callier,

(“Plaintiffs”)

filed

suit

against

CSR

and

American

Optical. Rec. Doc. 1. As to Defendant American Optical, Plaintiffs
claimed that the R9100 was advertised “as providing adequate
respiratory protection against the inhalation of pneumoconiosisproducing dust, including asbestos,” when it actually “allowed
asbestos fibers to penetrate into the breathing zone of the wearer,
causing dangerous amounts of asbestos fibers to be inhaled . . .
.” Id. at ¶ 15. Accordingly, Plaintiffs argue that the R9100 was
2

defectively designed and contained an inadequate warning and that
Defendant American Optical fraudulently marketed the R9100 as
approved by the Bureau of Mines, in violation of Louisiana Civil
Code article 1953 and 15 U.S.C. §§ 1125(1) and (2). Id. at ¶¶ 1516, 18. Plaintiffs claim damages for funeral and burial expenses,
loss of consortium, loss of love and affection, loss of support,
loss of services, and for mental pain and anguish, as well as
damages and attorneys’ fees for the fraudulent marketing and
advertising of the R9100. Id. at ¶¶ 25-26.1
On January 30, 2017, Defendant American Optical filed the
instant motion to dismiss for failure to state a claim upon which
relief can be granted. Rec. Doc. 9.
II.

THE PARTIES’ CONTENTIONS

Defendant argues that Decedent filed suit against it in
Louisiana state court and that this suit was resolved when Decedent
and Plaintiffs entered into a settlement agreement with Defendant
in February of 2011. Rec. Doc. 9-1 at 1. Pursuant to the agreement,
Defendant agreed to pay Decedent and Plaintiffs “a confidential
sum

in

exchange

for

a

release

that

bars

all

claims

against

[Defendant] relating to [Decedent’s] asbestos exposure, including
‘all wrongful death claims or causes of action . . . that they may
have in the future upon the death of their husband and father,

Note, the paragraphs in the complaint are numbered incorrectly; consequently,
paragraphs 25 and 26 appear on both pages 8 and 9. The paragraphs referring to
damages are found on page 9.
1

3

Raymond

Lemieux,

Sr.’”

Id.

at

1-2

(citing

Rec.

Doc.

9-2).2

Defendant argues that (1) “Plaintiffs are barred from seeking
annulment of [this agreement] under Louisiana Civil Code article
2032 because more than five years have passed since the [a]greement
was reached”; and (2) even if they were not so barred, “the facts
that they allege are not grounds for voiding a settlement agreement
under settled Louisiana law.” Id. at 2 (citing Daigle v. Clemco
Indus., 92-0604 (La. 2/1//93); 613 So. 2d 619, 621).
III. LAW AND ANALYSIS
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
a party can move to dismiss a complaint for failure to state a
claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6);
see also Twombly, 550 U.S. 544. Such motions are viewed with

Rec. Doc. 9-2 contains the “Receipt, Release and Indemnity Agreement” signed
by Decedent and Plaintiffs on February 10, 2011. It specifically provides that
“Essie Lemieux, Dehon Callier and Raymond Lemieux, Jr. who are, respectively,
the wife and only living children of Raymond Lemieux, Sr., specifically appear
to relieve, release and discharge the released parties of and from any and all
wrongful death claims or causes of action and damages, including those arising
under Louisiana Civil Code article 2315.2, that they may have in the future
upon the death of their husband and father, Raymond Lemieux, Sr., against the
released parties, or any of them, arising out of or in any way associated with
the acts or omissions, diseases or conditions, covered by this release and
described herein. These appearers acknowledge that they have received good and
valuable consideration for their release of their possible future wrongful death
claims as stated herein. These appearers further acknowledge that, by their
execution of this agreement, they shall have no right to sue or bring any action
of any kind against the released parties, or any of them, arising out of or
based upon the death of Raymond Lemieux, Sr., or arising out of or in any way
associated with the acts or omissions, diseases or conditions covered by this
release.” Rec. Doc. 9-2 at 2. Defendant American Optical, “its employees,
officers, agents, directors and shareholders, predecessor, parent and
affiliated corporations, successors and assigns, as well as their insurers” are
identified in the release as the “released parties.” Id. at 1. The document was
initialed by Decedent and Plaintiffs on each page (id. at 1-4), signed by each
on the last page (id. at 5), witnessed (id.), and notarized (id. at 6-9).
2

4

disfavor and rarely granted. Lowrey v. Tex. A & M Univ. Sys., 117
F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th
Cir. 1982)). Nonetheless, “[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, 678 (2009) (internal quotation
marks omitted). A claim is facially plausible “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. Further, when reviewing a motion to dismiss, courts must accept
all well-pleaded facts as true and view them in the light most
favorable to the non-moving party. See Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996).
Generally, the Court may only consider the pleadings on a
motion to dismiss for failure to state a claim. See FED. R. CIV. P.
12(d) (“If, on a motion under Rule 12(b)(6) . . . , matters outside
the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.”).
However, “[d]ocuments that a defendant attaches to a motion
to dismiss are considered part of the pleadings if they are
referred to in the plaintiff’s complaint and are central to her
claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499
5

(5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993)) (other citations omitted)
(approving of the district court’s consideration of documents
attached to a motion to dismiss in part because the plaintiffs did
not object to, or appeal, the district court’s consideration of
the documents). “In so attaching, the defendant merely assists the
plaintiff in establishing the basis of the suit, and the court in
making the elementary determination of whether a claim has been
stated.” Id.; see also Carter v. Target Corp., 541 F. App’x 413,
417 (5th Cir. 2013) (where the Fifth Circuit determined that the
district

court

Opportunity

properly

Commission

considered
(“EEOC”)

two

charges

Equal

Employment

attached

to

the

defendant’s motion to dismiss, because the charges were essential
to determining whether they were filed within the applicable
statute of limitations and whether the allegations contained in
them alleged a colorable violation of Title VII; according to the
Fifth Circuit, “[t]hese issues are central to [the plaintiff’s]
pleadings, and her failure to include them does not allow her
complaint

to

bypass

[the

defendant’s]

motion

to

dismiss

unexamined”); Borders v. Chase Home Fin. L.L.C., No. 09-3020, 2009
WL 1870916, at *5 (E.D. La. June 29, 2009) (“because the Settlement
agreement
referenced

documents
in

attached

Plaintiff’s

to

[the

complaint,

defendant’s]
central

motion

to—and

in

are
fact

entirely dispositive of—plaintiff’s claims, and because Plaintiff
6

has not questioned the substantive validity of the documents, the
Court finds that the documents are properly submitted in the
context of the present motion”).
Here, Plaintiffs do not explicitly object to the Court’s
consideration of the release on Defendant’s motion to dismiss. The
release was referred to by Plaintiffs in their complaint (see Rec.
Doc.

1

at

¶¶

19-26),

likely

in

anticipation

of

Defendant’s

arguments, and, in their memorandum in opposition to Defendant’s
motion, Plaintiffs simply argue that the release is null—not that
they should not be considered on a motion to dismiss. The only
mention of this issue is when Plaintiffs stated that Defendant
“attached the Release executed by Plaintiffs to their Motion to
Dismiss in an apparent attempt to invite the Court to treat their
Motion as a Rule 56 Motion for Summary Judgment” (Rec. Doc. 13 at
3) and that “if this occurs, all parties must be given a reasonable
opportunity to present all material pertinent to the motion” (id.
at 9).
The Court finds that the release is properly considered as
part of the pleadings and therefore as part of Defendant’s motion
to dismiss. The release is explicitly mentioned in Plaintiffs’
complaint, Plaintiffs do not object to the Court’s consideration
of the release, the release is essential to determining whether or
not Plaintiffs’ claim that the release is null is prescribed, and

7

the

release

is

central

to

(and

potentially

dispositive

of)

Plaintiffs’ claims.3
A. ARE PLAINTIFFS BARRED FROM ARGUING THAT THE SETTLEMENT
AGREEMENT IS NULL?
Under

Louisiana

law,

an

“[a]ction

for

annulment

of

an

absolutely null contract does not prescribe.” LA. CIV. CODE ANN. art.
2032. However, an action to annul “a relatively null contract must
be brought within five years from the time the ground for nullity
either ceased, as in the case of incapacity or duress, or was
discovered, as in the case of error or fraud.” Id. According to
Louisiana case law, “the reasonableness of the plaintiff’s action
or inaction is a fundamental precept that the court must focus on
in determining when prescription commences.” Sepulvado v. Procell,
12-271 (La. App. 3 Cir. 10/3/12); 99 So. 3d 1129, 1135 (citing
Tiger Bend, L.L.C. v. Temple-Inland, Inc., 56 F. Supp. 2d 686 (M.D.
La. 1999)). Accordingly, the doctrine of contra non valentem, which
provides that prescription commences on the date the inured party

Nonetheless, even if the motion is properly considered as a motion for summary
judgment, the Court’s ultimate decision on the motion remains unchanged. The
standard on a motion for summary judgment is different from the standard on a
motion to dismiss; namely, if the available evidence shows that there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law, summary judgment is appropriate. FED. R. CIV. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Here, Plaintiffs
were given an opportunity to respond to Defendant’s motion, aware that the Court
might treat the motion as a motion for summary judgment; yet, after Defendant
submitted the release, which it believed demonstrated the absence of a genuine
issue of material fact, Plaintiffs failed to present any evidence to establish
a genuine issue. Thus, whether considered a motion to dismiss or a motion for
summary judgment, the Court ultimately finds in favor of Defendant.
3

8

discovers or should have discovered facts upon which his cause of
action is based, “will not except the plaintiff’s claim from the
running of prescription if his ignorance is attributable to his
own willfulness or neglect; that is, a plaintiff will be deemed to
know what he could by reasonable diligence have learned.” Id.
(quoting Corsey v. State, Through Dep’t of Corr., 375 So. 2d 1319,
1322 (La. 1979)).
The release entered into by Plaintiffs was signed and dated
on February 10, 2011. Rec. Doc. 9-2. According to Defendant,
“Plaintiffs filed this lawsuit more than five years after they
entered into the Settlement Agreement, when they were fully aware
of the facts that allegedly give rise to the nullity, including
the fact that they were not represented by independent counsel and
were not receiving any direct compensation.” Rec. Doc. 9-1 at 78.
Plaintiffs appear to argue that that the prescriptive period
in this case did not begin to run until their alleged error or
Defendant’s alleged fraud was discovered. Rec. Doc. 13 at 2.
Specifically, they claim that “they did not understand that they
had

future

individual

claims

that

might

arise

upon

[their]

husband’s/father’s death and, therefore, did not knowingly release
those claims. Additionally, Plaintiffs asserted that [Defendant]
misrepresented to Plaintiffs that they had legal counsel with
regard to the Release document. They did not.” Id. Plaintiffs
9

further argue that the release does not “support a claim that the
five year prescriptive period should begin in 2011,” because (1)
“the language regarding ‘wrongful death claims’ is much too vague
and indiscernible to suggest that lay people . . . should have
known that they were releasing future individual claims”; (2) the
release

misrepresents

the

role

of

Decedent’s

counsel

and

Defendant’s allegedly misled “Plaintiffs into believing that they
could rely on [Decedent’s counsel]”; (3) the release did not
disclose Decedent’s counsel’s conflict of interest; and (4) it was
only after Decedent’s death in 2015 that Plaintiffs discovered
these errors and misrepresentations, so it was only then that the
prescriptive period began to run. Id. at 9.4
In its reply memorandum, Defendant argues that Plaintiffs’
failure to discover their alleged error was unreasonable:

the

language of the release was clear and Plaintiffs could have asked
Decedent’s

counsel

for

an

explanation

or

hired

independent

counsel. Rec. Doc. 17 at 6-7.
Plaintiffs’ arguments as to why their claim is not prescribed
are without merit.

Plaintiffs further argue that the face of the complaint does not contain any
information that would suggest that the five-year prescriptive period began
running in 2011. Rec. Doc. 13 at 8. Instead, the only date referenced in the
complaint is the 2015 date of Decedent’s death. Id. However, the Court has
already determined that the release is properly considered part of Plaintiffs’
complaint and the release provides that it was signed on February 10, 2011.
Rec. Doc. 9-2.
4

10

First,

Plaintiffs

essentially

argue

that

the

claim

for

nullity is not prescribed because the release is null. This is a
circular argument. Plaintiffs do not claim that the release is
absolutely null (as will be discussed below). Instead, they claim
that the release is relatively null because of error or fraud.
Such claims must be raised within five years and cannot be used as
a basis for tolling or otherwise adjusting the prescriptive period.
Second, Plaintiffs claim that they did not discover the error
or fraud until after Decedent’s death in 2015. However, this Court
agrees with Defendant—the alleged basis for Plaintiffs’ error and
Defendant’s alleged fraud were apparent at the time the release
was signed. Plaintiffs should have discovered the bases for these
claims at that time; their ignorance can only be attributable to
their willfulness or neglect. In other words, Plaintiffs are deemed
to have known of these facts at the time the release was signed.
Consequently, Plaintiffs’ claim that the release is null is barred
by Louisiana Civil Code article 2032.
Nonetheless, even if Plaintiffs’ claim were not so barred,
the claim is without merit.
B. IS THE RELEASE NULL?
In Louisiana, “[a] contract is null when the requirements for
its formation have not been met.” LA. CIV. CODE ANN. art. 2029.
Further, a contract may either be absolutely null or relatively
null.

Significantly,

“[a]n

absolutely
11

null

contract,

or

a

relatively null contract that has been declared null by the court,
is deemed never to have existed.” LA. CIV. CODE ANN. art. 2033.
1. IS THE RELEASE ABSOLUTELY NULL?
“A contract is absolutely null when it violates a rule of
public order, as when the object of a contract is illicit or
immoral.” LA. CIV. CODE ANN. art. 2030.
Defendant argues that Louisiana law specifically recognizes
the type of release at issue here. Rec. Doc. 9-1 at 10-11 (citing
Daigle, 613 So. 2d 619).
In Daigle, a man was exposed to industrial abrasives during
his employment, ultimately resulting in his death. 613 So. 2d at
621. During his lifetime, however, he filed suit against the
executive officers of his employers and the manufacturers of the
safety equipment he used while employed. Id. He eventually settled
his claims with the defendants and dismissed the suit after his
children signed “a release in favor of the defendants ‘in order to
induce certain defendants . . . to make a compromise settlement
with their father . . . .” Id. His wife also signed a release,
granting to the defendants a release of all of her rights, past
and future, and those of her minor children. Id. They signed the
releases “with the full benefit of counsel,” but the injured man,
alone, received monetary consideration. Id. After the man died,
his

wife

and

children

sued

the

defendants,

who

raised

the

peremptory exception of res judicata. Id. at 621-22. The trial
12

court judge denied the exception; the appellate court affirmed in
part, invalidating the releases made on behalf of the man’s minor
children, but otherwise finding the waivers valid and deserving of
res judicata effect. Id. at 620. The Louisiana Supreme Court
affirmed,

specifically

noting

that

“the

compromise

does

not

produce a result against public policy or public order.” Id.
(citing LA. CIV. CODE ANN. arts. 1968, 2030).
Based on this case law, and the fact that Plaintiffs merely
argue

that

the

release

was

based

on

error

and

Defendant’s

misrepresentations (both of which would result in a relatively
null contract), the Court finds that the release is not absolutely
null.
2. IS THE RELEASE RELATIVELY NULL?
“A contract is relatively null when it violates a rule
intended for the protection of private parties, as when a party
lacked capacity or did not give free consent at the time the
contract was made.” LA. CIV. CODE ANN. art. 2031; see also Petrohawk
Props., L.P. v. Chesapeake La., L.P., 689 F.3d 380, 391 (5th Cir.
2012).

“There

is

no

express

constitutional

or

legislative

prohibition against the settlement of a potential wrongful death
claim after injury has occurred but before the tort victim’s
demise.” Daigle, 613 So. 2d at 620. Consequently, “the compromise
of a prospective wrongful death claim has res judicata effect if
there is no error, fraud, duress or undue influence which vitiates
13

the consent of the potential wrongful death beneficiary.” Id. at
620-21 (emphasis added).
In their complaint, Plaintiffs argue that (a) they were not
represented by their own counsel during Decedent’s settlement
negotiations with Defendant and that Decedent’s counsel “had an
irreconcilable conflict of interest”; (b) they did not understand
“the nature or value of their future claims”; (c) they were “under
emotional pressure to assist [Decedent]”; and (d) they received no
compensation for the release of their claims. Rec. Doc. 1 at ¶¶
21, 23-24.
a. INDEPENDENT COUNSEL AND DECEDENT’S COUNSEL’S ALLEGED
CONFLICT OF INTEREST
Louisiana law recognizes that “[a]ll persons have capacity to
contract, except unemancipated minors, interdicts, and persons
deprived of reason at the time of contracting.” LA. CIV. CODE ANN.
art. 1918. Consequently, “[t]he presumption is that all persons
have capacity to contract; lack of capacity must be shown by clear
and convincing evidence.” Skannal v. Bamburg, 44,820 (La. App. 2
Cir. 1/27/10); 33 So. 3d 227, 236, writ denied sub nom., 10-0707
(La. 5/28/10); 36 So. 3d 254 (citations omitted). Further, “[i]f
any contract could be nullified . . . because no independent
counsel was present to advise the party and read the document to
him before signing, then virtually all real estate, auto and
securities transactions would be vulnerable.” Id. at 236.
14

According to the acknowledgments signed by Plaintiffs, each
declared to a notary that they executed the release of their own
free will, “after having read said instrument in full, or having
said instrument read to her [or him] in full, and having discussed
the terms thereof with her [or his] attorney.” Rec. Doc. 9-2 at 79.
Plaintiffs argue that the release demonstrates that Defendant
misrepresented the role of Decedent’s counsel. Rec. Doc. 13 at 3.
Specifically, they note that the release states that “We hereby
instruct our attorneys, Rodney P. Vincent and [his] firm . . . to
dismiss

the

lawsuit

with

prejudice

as

against

the

released

parties,” “[a]ppearers and appearers’ counsel have reviewed the
underlying facts,” “[i]n agreeing to enter into this Settlement,
released parties, their attorneys and insurer(s) . . . .” Rec.
Doc.

9-2

at

2-3

(emphasis

added).5

According

to

Plaintiffs,

Defendant knew or should have known, based on its negotiations
with Decedent’s counsel, that Decedent’s counsel only represented
Decedent and that Decedent’s counsel “would have a conflict of
interest between consummating the settlement for his client (and
earning his fee) and, on the other hand, persuading [Plaintiffs]

Notably, the third sentence cited by Plaintiffs refers to Defendant, its
successors and assignees, and their attorneys, because the release provides
that Defendant and its associated entities are the “released parties.” Rec.
Doc. 9-2 at 1 (“American Optical Corporation . . . , its employees, officers,
agents, directors and shareholders, predecessor, parent and affiliated
corporations, successors and assigns, as well as their insurers (hereinafter
collectively referred to as ‘released parties’) . . . ”) (emphasis added).
5

15

to execute the Release for no additional consideration.” Rec. Doc.
13 at 4.6 Plaintiffs direct this Court to Louisiana Rule of
Professional Conduct 1.7(a)(2), which provides that a concurrent
conflict of interest exists if “there is a significant risk that
the representation of one or more clients will be materially
limited by the lawyer’s responsibilities to another client . . .
.” Thus, Plaintiffs maintain that Decedent’s counsel could not
ethically represent them without obtaining their written consent
to the conflict. Id. at 4.
Defendant

responds

that

“Plaintiffs

fail

to

show

how

[Defendant] is subject to these rules [of professional conduct],
much less how it could have violated them, or even that a violation
of

these

rules

is

sufficient

to

warrant

nullification

of

a

contract.” Rec. Doc. 17 at 2.
The Court agrees with Defendant. Plaintiffs’ allegations
suggest that Decedent’s counsel acted in an unethical way. However,

Plaintiffs repeatedly blame Defendants for this alleged conflict of interest.
See, e.g. Rec. Doc. 13 at 4 (“And, clearly, American Optical, who was being
represented by both national and Louisiana counsel, knew or should have known
that requiring [Decedent’s counsel] to act as attorney for both [Decedent] and
for his family created a conflict of interest that would work to the detriment
of [Plaintiffs’] interest[s]”); 5 (“American Optical should have known that
advice provided by [Decedent’s counsel] to [Plaintiffs] regarding their signing
of the Release would also conflict with Louisiana Rule of Professional Conduct
(2017) Rule 4.3, which . . . mandates that a ‘lawyer shall not give legal advice
to an unrepresented person, other than the advice to secure counsel, if the
lawyer knows or reasonably should know that the interests of such a person are
or have a reasonable possibility of being in conflict with the interests of the
[lawyer’s] client.’ Here, [Decedent’s counsel’s] advice to Plaintiffs to assist
their husband/father by signing the Release in order to secure his client’s
settlement with American Optical, at the behest of American Optical, clearly
violated this Rule.”).
6

16

Plaintiffs fail to explain why it was Defendant’s responsibility
to ensure that Decedent’s counsel behaved in a professional manner
or why it was Defendant’s responsibility to inform Plaintiffs of
the desirability of seeking independent counsel. Plaintiffs fail
to

allege

signed

that

by

Defendant

Plaintiffs

acted

tends

unprofessionally.

to

indicate

that

The

release

Plaintiffs

were

represented by counsel. This may be false—and, at this stage, must
be accepted as false based on Plaintiffs’ allegations. However,
Plaintiffs signed the release. It was their responsibility, not
Defendant’s, to correct any mistakes contained therein before
signing.

Plaintiffs

simply

fail

to

persuade

the

Court

that

Defendant acted in a fraudulent way by providing a release that
suggested that Plaintiffs were represented by counsel. Therefore,
fraud did not vitiate Plaintiffs’ consent to the release.
b. PLAINTIFFS’ UNDERSTANDING OF THE CLAIMS
Plaintiffs argue that the complaint alleges that “they did
not know that, by signing the Release, they would be releasing
their

own

individual

husband’s/father’s

claims

death.”

that

Rec.

Doc.

might
13

at

arise
2.

upon

Instead,

their
they

believed that they were “signing the Release as a courtesy to their
father, regarding his claims . . . .” Id. at 3 (emphasis in
original). Plaintiffs further argue that, because they did not
have independent counsel, “no one explained the vague reference in
the Release to ‘wrongful death claims’ to them . . . .” Id. at 4.
17

Defendant

correctly

notes,

however,

that

the

release

explicitly provides that Plaintiffs
specifically appear[ed] to . . . release . . . the
released parties of and from any and all wrongful death
claims or causes of action and damages, including those
arising under Louisiana Civil Code article 2315.2, that
they may have in the future upon the death of their
husband and father . . . against the released parties .
. . arising out of or in any way associated with the
acts or omissions, diseases or conditions, covered by
this release and described herein.
Rec. Doc. 9-2 at 2 (emphasis added). According to Defendant, “[i]t
is difficult to imagine how this language could be more clear . .
. .” Rec. Doc. 17 at 3. “Plaintiffs have not and cannot point to
any ambiguous portion of the language which would leave any room
for error as to which potential claims they effectively waived or
which would suggest to them that they waived only the claims which
could have been asserted by [Decedent] . . . .” Id. at 3-4.
Again,

the

Court

agrees

with

Defendant.

The

release

specifically referred to their claims. The language of the release
leaves no room for error. If Plaintiffs did not understand the
meaning of “wrongful death claims,” it was their responsibility to
research the meaning before signing. Plus, even if Plaintiffs did
not understand the reference to “wrongful death claims,” they
certainly must have understood the reference to their claims that
might arise in the future upon the death of their husband/father.
Any error made by Plaintiffs was inexcusable and “reasonable
persons could not disagree the alleged error . . . was easily
18

detectable and could have been rectified by a minimal amount of
care, i.e., by simply reading the document and/or by requesting
simple changes to the written offer before acceptance.” Peironnet
v. Matador Res. Co., 12-2292 (La. 6/28/13); 144 So. 3d 791, 814
(citing Scott v. Bank of Coushatta, 512 So. 2d 356, 362-63 (La.
1987) (noting that “other Louisiana cases have rejected the defense
of unilateral error where the complaining party, through education
or experience, had the knowledge or expertise to easily rectify or
discover the error complained of”) (citations omitted); Tweedel v.
Brasseaux, 433 So. 2d 133, 137 (La. 1983) (noting that “[i]f a
party can read, it behooves him to examine an instrument before
signing it; and if he cannot read, it behooves him to have the
instrument read to him and listen attentively whilst this is being
done” and that “[t]he presumption is that parties are aware of the
contents of writings to which they have affixed their signatures
. . . the burden of proof is upon them to establish with reasonable
certainty that they have been deceived”) (citations omitted)).
Plaintiffs’ consent to the release was not vitiated by error.
c. EMOTIONAL PRESSURE
In Louisiana, “[e]conomic stress and emotional stress do not
constitute legal duress . . . .” Sid-Mar’s Rest. & Lounge, Inc. v.
Gardner, 02-1109, p. 8 (La. App. 5 Cir. 3/25/03); 844 So. 2d 178,
183 (citing LA. CIV. CODE ANN. art. 1959; Aubert v. Entergy Corp.,

19

00-30 (La. App. 5 Cir. 5/30/00); 762 So. 2d 288, 291; Adams v.
Adams, 503 So. 2d 1052, 1057 (La. App. 2 Cir. 1987)).
Even though Plaintiffs claimed in their complaint that they
only

signed

the

release

because

they

were

under

“emotional

pressure” to assist Decedent, they do not argue in their opposition
memorandum that this is a basis for nullifying the release. Because
Louisiana courts find that emotional stress does not amount to
legal duress and Plaintiffs do not argue that their consent was
vitiated on this basis, the Court finds that it is not a sufficient
basis for declaring the release null.
d. COMPENSATION
The

release

“acknowledge

that

specifically
they

have

provides
received

that
good

and

Plaintiffs
valuable

consideration for their release of their possible future wrongful
death claims . . . .” Rec. Doc. 9-2 at 2.
Defendant argues that compensation was to be paid by it to
Decedent and Plaintiffs jointly and that Defendant “had no role in
deciding how the recipients would divide that payment amongst
themselves.” Rec. Doc. 9-1 at 9. Further, in Daigle, where the
plaintiffs executed a release in favor of the defendants “in order
to induce certain defendants . . . to make a compromise settlement
with their father,” the Louisiana Supreme Court affirmed that “the
waiver

of

a

prospective

wrongful

death

claim

by

enumerated

statutory beneficiaries is valid and should be given res judicata
20

effect,” assuming that there was no vice of consent. 613 So. 2d at
620-21.
Plaintiffs argue that, because they were not represented by
independent counsel, “no one negotiated for or protected their
separate and individual claims that might arise upon the death of
[Decedent].”

Rec.

Doc.

13

at

5.

In

other

words,

the

amount

purportedly recited in the release was negotiated by Decedent’s
counsel for Decedent’s claim only “and no further negotiations
took place for the benefit of Plaintiffs.” Id. at 8. They argue
that they “received no portion of the ‘consideration’ for releasing
their claims.” Id.
First, Plaintiffs signed a document explicitly stating that
they received compensation in exchange for releasing their claims
against Defendant. Second, “a compromise cannot be rescinded on
grounds of . . . lesion.” LA. CIV. CODE ANN. art. 3082.
IV.

CONCLUSION

Plaintiffs’ claim that the release is relatively null is
barred by Louisiana Civil Code article 2032. Even if it were not
barred, Plaintiffs’ consent to the release was not vitiated by
error, fraud, or duress. The release is not null; it effectively
released Defendant American Optical from liability for wrongful
death claims arising from the death of Plaintiffs’ husband/father.
Accordingly,

21

IT IS ORDERED that Defendant’s motion to dismiss (Rec. Doc.
9)

is

GRANTED.

Plaintiffs’

claims

against

Defendant

American

Optical Corporation are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 28th day of March, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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