Louisiana Statute of Limitations for Personal Injury Lawsuits Extended
State lawmakers doubled the statute of limitations in personal injury cases, from one year to two years. It remains to be seen what effect this change has on the contra non valentem (against the weak) doctrine, otherwise known as the discovery rule.
Significantly, Section 3 of the new Act provides that the new statute shall be given prospective application only and shall apply to actions arising after the effective date of the Act. In other words, the new law is not retroactive. For example, if a fire that occurred on June 30, 2024 caused personal injury, the suit must still be filed before June 30, 2025. However, if the fire occurs on July 1, 2024, the suit must be filed before July 1, 2026.
Statute of Limitations, Discovery Rule, and Statute of Repose
At least theoretically, everyone has equal rights in America. However, these rights aren’t unlimited. The combination of the statute of limitations, statute of repose, and discovery rule, which varies in different states, establishes those limits.
Usually, the statute of limitations, which limits the time a person or entity has to file a lawsuit, is two years in personal injury cases and four years in contracts cases. Plaintiffs have the right to go to court and present their cases. Defendants have the right to closure, so they need not look over their shoulders forever.
Two Year Statute Limitations Extended for Certain Patients
Generally, two years is a pretty fair cutoff. Lawyers can’t rush to the courthouse. They must carefully prepare their cases. Plaintiffs also have the burden of proof. After about two years, this evidence becomes unavailable. Documents get lost, witnesses move out of town, and so on. So, the two-year SOL gives plaintiffs time to prepare and also encourages them to strike while the iron is hot.
Two years is not a fair cutoff in occupational disease claims, such as asbestos exposure claims. Symptoms of asbestos exposure illnesses, like the ones discussed below, usually don’t appear for at least fifty years. You cannot sue someone for making you sick if you didn’t know you were sick.
The Discovery Rule and Asbestos Diseases
The discovery rule delays the start of the two-year countdown. In most states, victims must file injury actions when:
They know the full extent of their losses, and
They connect those losses with a defendant’s wrongful conduct.
Asbestos Exposure and Discovery of a Plaintiff’s Injury
Asbestos exposure claims are a good example of both discovery rule elements. Assume Tom was a shipbuilder in 1970. He handled large quantities of asbestos, because the Navy freely used this substance until 1980. Fifty years later (2020), his doctor says he has lung cancer. Upon advice from his shipbuilder buddies, he speaks with an asbestos exposure lawyer, who connects him with another doctor. In 2022, that doctor confirmed Tom had asbestos exposure-related mesothelioma.
Tom has until 2024 to file a legal action. The two-year countdown started running when Tom knew about his illness (2020) and he connected that illness with asbestos exposure (2022). In other words, the discovery rule doesn’t extend the SOL indefinitely. Victims still have a limited amount of time to act.
So, the SOL is basically a soft cutoff. The SOR, in contrast, is a hard cutoff. Once again depending on the state, the SOR gives plaintiffs a set period of time (usually around ten years) to file property and/or manufacturing defect-related claims. The discovery rule doesn’t apply in these situations. The theory is that, after a certain period of time, the property or products are in such bad shape that injury is inevitable. A few exceptions apply in most states.
Before Louisiana, Vermont was the most recent state to struggle with the SOL/DR/SOR combination. That state supreme court ruled that the twenty-year statute of repose is not unconstitutional and therefore applies to asbestos exposure civil cases.
Asbestos Exposure in Louisiana
Most residential and commercial structures built before 1980 contained asbestos, as did most ships. The environment in the Bayou State combines all three primary risks.
The petrochemical industry (petroleum extraction, processing, and distribution) accounts for about 25 percent of Louisiana’s economy. Louisiana’s first refinery, which was a precursor to today’s sprawling Exxon refinery, was built in 1909. Today this facility is the largest oil refinery in North America.
The risk of fire is significant in these plants, to say the least. In 1913, just four years after the Exxon refinery opened, a single spark from a passing locomotive caused a 250,000 gallon tank of distillate oil at the San Diego Standard Oil tank yard to explode. According to witnesses, as the oil burned, it threw sparks skyward. As they rained down on several other tanks nearby, the sparks ignited them, causing the massive fire to spread. The fire burned uncontrolled for two days.
Back in the day, providers ignored the health risks of asbestos, because this fireproofing substance wa sso cheap and effective. The fibers leaked through hairline cracks in aging walls and ceilings. Over the years, asbestos poisoning has killed many more people than plant explosions.
Louisiana also has many historic homes. Asbestos insulation trapped heat in attics, a very desirable quality in the pre-air conditioning age in Louisiana. Builders also used asbestos to wrap pipes and electrical wire, and to reinforce drywall, roof tiles, and other building materials.
Workers who installed asbestos risked poisoning, as did the people who lived in, and visited, these houses over the years.
In response, the government has mandated asbestos abatement, an order which puts another generation of workers at risk.
Louisiana is also home to the Avondale Shipyard, one of the largest such facilities in the country. A tugboat order from the United States Maritime Commission led to further contracts for destroyers and destroyer escorts. After World War II, Avondale took advantage of the expansion of the oil industry in Louisiana to build drilling barges and offshore oil rigs. The company also built other commercial vessels, such as fishing boats. Furthermore, it again obtained government contracts to build military vessels during the Korean and Vietnam Wars.
For many ship owners, including the Navy, onboard fires were their worst fears. So, they instructed Avondale Shipyard and other shipbuilders to line these vessels with asbestos, especially the ammunition storage areas, boiler rooms, and other high-risk fire areas. Shipbuilders also used asbestos to reinforce other building materials, as mentioned above, because asbestos is waterproof.
Asbestos Exposure Illnesses
People who lived or worked at or near asbestos hotspots, like the ones discussed above, have a high risk of developing serious illnesses, such as:
Mesothelioma: This rare and aggressive form of heart-lung cancer has a very low survival rate. Because the latency period is so long, as mentioned above, the early treatment window closes. So, doctors are forced to use much more aggressive treatment methods to combat mesothelioma. Many of these victims are so old and frail that these aggressive treatments are worse than the painful disease, which is saying quite a lot.
Pleural Thickening: This related lung disease inflames the pleural lining of the lungs. In some cases, pleural thickening is not life-threatening or even serious. In other cases, the inflamed pleural layer almost literally crushes the victim’s lung. As a result, these victims have trouble breathing even while asleep or otherwise at rest.
Asbestosis: This inflammation-related lung disease affects tiny airways inside the lungs. Toxic particles, like asbestos particles, burn these airways, creating scar tissue. Over time, that scar tissue accumulates and blocks these airways. At that point, the only effective treatment is a radical lung transplant. Once again, for many old and frail victims, the cure is worse than the disease.
How does the statute of limitations extension in Louisiana affect asbestos exposure illness claims in civil court? We’re glad you asked.
They do things differently in Louisiana. The state uses a civil law system based on French law, as opposed to a common law system based on English law, which predominates in the other forty-nine states. For years, state courts have used a variation of the discovery rule, contra non valentem, to extend the SOL in asbestos exposure and other long-term disease claims.
CNV is a little different. It only applies if the defendant concealed information or otherwise intentionally delayed discovery of the illness. That factor is present in asbestos exposure claims, but it may not be present in other defective product claims.
The new law applies the discovery rule (the traditional one) to immovable property-related damages, but not to personal injury damages. Most likely, state courts will extend the discovery rule, but we’ll have to wait and see.
If courts narrowly interpret the new Articles 3493.11 and 12, asbestos exposure victims in Louisiana can still partner with an asbestos exposure lawyer and obtain compensation for their injuries, usually through a bankruptcy victim compensation fund claim.
When faced with lawsuits, many asbestos providers declare bankruptcy, so they won’t have to face the music. Usually, federal judges force these companies to contribute to asbestos exposure victim compensation funds.
A bare-boned case is enough to obtain maximum compensation in these claims. No adverse lawyer challenges the victim’s evidence.
This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are available as well, in extreme cases.