Ellis v. Evonik Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LAMAR ELLIS, ET AL. CIVIL ACTION

VERSUS NO. 21-1089

EVONIK CORPORATION, ET AL. SECTION “R” (3)

ORDER AND REASONS

Before the Court are defendants Shell Oil Company’s (“Shell”)1 and

Evonik Corporation’s (“Evonik”)2 motions to dismiss plaintiffs’ complaint

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

Plaintiffs oppose both motions.3

For the following reasons, the Court grants Shell’s motion, and grants

in part, and denies in part, Evonik’s motion. The Court further severs this

case into fourteen distinct civil actions, each with one plaintiff. Plaintiff

Lamar Ellis’s case shall remain assigned to Section R, and the thirteen

severed cases shall be randomly allotted to other sections of this court. The

Court grants all plaintiffs fourteen (14) days from the creation of the new civil

actions to file amended complaints in each, consistent with this order’s

selective grants of leave to amend.

1 R. Doc. 33.

2 R. Doc. 35.

3 R. Docs. 37 & 38.

I. BACKGROUND

This case arises out of alleged exposure to ethylene oxide (“EtO”) near

a petrochemical plant in Reserve, Louisiana (the “facility”), owned and

operated by defendants Evonik and Shell.4 Shell owned and operated the

facility from 1991 until 1999,5 and Evonik has owned and operated the

facility since that time.6 Plaintiffs are fourteen Louisiana residents who live

within seven miles of the facility,7 and who have either contracted cancer, or

had a spouse die from cancer, allegedly because of unknowing exposure to

dangerous levels of EtO emitted by the facility.8

On April 26, 2021, plaintiffs filed suit in the Civil District Court for the

Parish of St. John the Baptist, alleging that inhalation of EtO emitted from

the facility was a substantial factor in causing plaintiffs’ cancer, or their

spouses’ cancer.9 In their complaint, plaintiffs named as defendants Evonik

4 R. Doc. 1-1 ¶ 1.

5 Id. ¶ 31.

6 Id. ¶¶ 26-30.

7 Id. ¶¶ 12-25, 80-93.

8 Id. ¶¶ 1, 7-8.

9 Id. ¶¶ 1-9.

and Shell,10 as well as four non-diverse employee defendants.11 As to Evonik

and Shell, plaintiffs allege claims of negligence, civil battery, and nuisance.12

On June 4, 2021, Evonik removed the case to federal court, contending

that the non-diverse employee defendants were improperly joined, and that,

therefore, this Court has diversity jurisdiction under 28 U.S.C. § 1332.13 On

October 19, 2021, the Court denied plaintiffs’ motion to remand the case, and

dismissed plaintiffs’ claims against the improperly joined employee

defendants.14

On November 5, and 9, 2021, respectively, defendants Shell and

Evonik filed motions to dismiss plaintiffs’ complaint under Rule 12(b)(6) of

the Federal Rules of Civil Procedure.15 Both movants contend that plaintiffs’

claims against them are time-barred, because suit was filed after the

termination of plaintiffs’ one-year prescriptive period. They further assert

10 Id. ¶¶ 26, 31. In their complaint, plaintiffs named other corporate

entities, including Evonik Materials Corporation, Versum Materials

Performance Manufacturing, Inc., Air Products Performance

Manufacturing, Inc., and Tomah Reserve, Inc. Id. ¶¶ 27-30.

Defendants represent, and plaintiffs do not dispute, that Evonik

Corporation is the successor in interest of those entities. R. Doc. 1 ¶¶ 5-

6; R. Doc. 19-1 at 1 n.1. Accordingly, the only corporate defendants in

this matter are Evonik Corporation and Shell Oil Company.

11 R. Doc. 1-1 ¶¶ 32-35.

12 Id. ¶¶ 94-103, 185-193, 104-109, 194-199, 105-106, 195-196.

13 R. Doc. 1 ¶¶ 20-37.

14 R. Doc. 28.

15 R. Docs. 33 & 35.

that the claims must be dismissed on the merits, because plaintiffs have not

stated a claim for negligence, battery, or nuisance, under Louisiana law.

Plaintiffs oppose both motions, contending that their claims are not

time-barred, because (1) the prescriptive period was suspended under the

doctrine of contra non valentem, and because (2) they allege continuing

torts. Plaintiffs also argue that their complaint sufficiently states claims for

negligence, battery, and nuisance.

The Court considers the parties’ arguments below.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 547 (2007)). 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. at 678. The Court

must accept all well-pleaded facts as true and must draw all reasonable

inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d

228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true

legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

On a Rule 12(b)(6) motion, the Court must limit its review to the

contents of the pleadings, including attachments. Brand Coupon Network,

L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court

may also consider documents attached to a motion to dismiss or an

opposition to that motion when the documents are referred to in the

pleadings and are central to a plaintiff’s claims. Id. “In addition to facts

alleged in the pleadings, however, the district court ‘may also consider

matters of which [it] may take judicial notice.’” Hall v. Hodgkins, 305 F.

App’x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc.,

78 F.3d 1015, 1017-18 (5th Cir. 1996)).

III. DISCUSSION

A. Exposures Postdating Shell’s Operation of the Facility

As a preliminary matter, the Court notes that two plaintiffs, Lamar Ellis

and Ginger Villa, allege EtO exposure from the facility starting in 2005.16 It

is undisputed that defendant Shell ceased operations of the facility in 1999,

before the dates of these exposures. These plaintiffs cannot hold Shell liable

16 R. Doc. 1-1 ¶¶ 12, 25.

for exposures and injuries not attributable to it. Accordingly, all claims

against Shell brought by Lamar Ellis, on his own behalf and on behalf of his

deceased wife, as well as Ginger Villa, must be dismissed with prejudice.

Plaintiffs do not oppose these dismissals,17 and Shell’s motion to dismiss is

granted in this respect.

Shell also seeks dismissal of the claims of plaintiff Margie Moore, who

alleges exposure from the facility at her home “where she has lived for

decades.”18 Because this timeframe is nonspecific and may have commenced

only after Shell ceased operations at the facility, the Court dismisses all of

Moore’s claims against Shell. In their opposition memorandum, plaintiffs

state that Moore lived in the area since at least the 1990s.19 In light of this

contention, the Court grants plaintiffs leave to amend the complaint for the

purpose of alleging the date when Moore began to be exposed to EtO

emissions from the facility.

All other alleged exposures span both Shell’s and Evonik’s operations

of the facility. The Court thus proceeds to address those claims as to both

defendants, as well as the claims of Ellis, Villa, and Moore, as to Evonik only.

17 R. Doc. 37 at 1.

18 R. Doc. 1-1 ¶ 21.

19 R. Doc. 37 at 2 n.2.

B. Prescription

Both Shell and Evonik contend that some, or all, of plaintiffs’ claims

are time-barred because this suit was filed after expiration of the one-year

prescriptive period for delictual actions under Louisiana law. Article 3492 of

the Louisiana Civil Code provides that “[d]elictual actions are subject to a

liberative prescription of one year.” La. Civ. Code art. 3492. This period

“commences to run from the day injury or damage is sustained.” Id.; see also

Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th Cir. 1995)

(quoting La. Civ. Code art. 3492). “Damage is considered to have been

sustained, within the meaning of the article, only when it has manifested

itself with sufficient certainty to support accrual of a cause of action.” Cole

v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993) (citing McCray v. N.E. Ins.

Co., 579 So. 2d 1156 (La. App. 2 Cir. 1991)). Similarly, survival and wrongful-

death actions are subject to a prescriptive period of one year from the date of

death. La. Civ. Code art. 2315.1(A) (governing survival actions); La. Civ. Code

art. 2315.2(B) (governing wrongful-death actions).

Here, plaintiffs’ complaint identifies the date of cancer diagnosis

and/or death corresponding to each plaintiff. The latest such date is April 6,

2020.20 Plaintiffs filed this suit in state court on April 26, 2021, over one

20 R. Doc. 1-1 ¶ 20.

year after that date. 21 Accordingly, unless the one-year period was

suspended or another exception applies, all plaintiffs’ claims are prescribed.

Plaintiffs do not dispute this proposition.

1. Contra non valentem

Instead, plaintiffs assert that the prescriptive period was suspended

under the doctrine of contra non valentem. Under Louisiana law, contra

non valentem is a doctrine that tolls the statute of limitations, and is thus

“an exception to the general rules of prescription.” Wimberly v. Gatch, 635

So. 2d 206, 211 (La. 1994). This doctrine suspends the prescriptive period

under certain circumstances, including situations in which the cause of

action is not known or reasonably knowable by the plaintiff, even though his

ignorance is not induced by the defendant. Renfroe v. State ex rel. Dept. of

Transp. & Dev., 809 So. 2d 947, 953 (La. 2002).

But this exception, sometimes known as the “discovery rule,” is

available only in “exceptional circumstances.” Meggs v. Davis Mortuary

Serv., Inc., 301 So. 3d 1208, 1213 (La. App. 5 Cir. 2020) (quoting Renfroe,

809 So. 2d at 953). Courts assessing the applicability of contra non valentem

must focus on the reasonableness of the tort victim’s action or inaction. See

21 Id. at 1.

Griffin v. Kinberger, 507 So. 2d 821, 824 n.2 (La. 1987). As the Louisiana

Supreme Court has explained:

Prescription will not begin to run at the earliest possible

indication that a plaintiff may have suffered some wrong.

Prescription should not be used to force a person who believes he

may have been damaged in some way to rush to file suit against

all parties who might have caused that damage. On the other

hand, a plaintiff will be responsible to seek out those whom he

believes may be responsible for a specific injury.

Jordan v. Emp. Transfer Corp., 509 So. 2d 420, 423 (La. 1987) (emphasis

added).

The law is clear that the prescriptive period begins to run once a party

has “constructive knowledge . . . of the facts that would entitle him to bring a

suit,” even if he does not have actual knowledge of those facts. Campo v.

Correa, 828 So. 2d 502, 510 (La. 2002). “Constructive knowledge is

whatever notice is enough to excite attention and put the injured party on

guard and call for inquiry.” Id. at 510-11. “Such notice is tantamount to

knowledge or notice of everything to which a reasonable inquiry may lead,”

and therefore “is sufficient to start running of prescription.” Id. at 511

(citations omitted); see also Meggs, 301 So. 3d at 1213 (“If the plaintiff could

have discovered the cause of action by exercising reasonable diligence, the

doctrine will not prevent the running of prescription.” (citations omitted));

Miles v. MEMC Pasadena, Inc., No. 08-4436, 2009 WL 1323014, at *3 (E.D.

La. May 8, 2009) (“The plaintiff must show that the cause of action for his

injuries was not reasonably knowable. This is a heavy burden.”). The

discovery rule provides that, for prescription to run, a plaintiff must have

actual or constructive notice of the “tortious act, the damage caused by the

tortious act, and the causal link between the act and the damage.” Ducre v.

Mine Safety Appliances, 963 F.2d 757, 760 (5th Cir. 1992) (citing Knaps v.

B & B Chem. Co., 828 F.2d 1138, 1139 (5th Cir. 1987)).

The question here is thus whether plaintiffs’ respective cancer

diagnoses put them “on guard and call[ed] for inquiry,” such that they had

constructive knowledge of their causes of action against Shell and Evonik.

Id. If they had constructive knowledge as of their dates of diagnoses, then

contra non valentem does not save their otherwise untimely claims.

In their complaint, plaintiffs allege that they “did not reasonably know

that it was the Defendants’ acts and omissions . . . that caused their injuries

and damages until less than a year before this lawsuit was filed.” 22

Specifically, they allege that “none of the Plaintiffs knew or reasonably

should have known that their cancer to date was caused by exposure to the

EtO emitted by the facility” within the prescriptive period.23 Plaintiffs then

22 Id. at 13.

23 Id. ¶ 78.

allege a series of facts as to each plaintiff, purporting to show that they lacked

constructive knowledge of their causes of action. By way of illustration,

plaintiffs allege the following facts as to the first named plaintiff, Lamar Ellis,

who brings suit on his own behalf and for the death of his wife, Gaynell

Perrilloux-Ellis:

Lamar Ellis lives within 6.5 miles of the facility and Gaynell

Perilloux-Ellis lived at the same location and was diagnosed with

breast cancer in 2016 and died in February 2020. No physician

ever advised Mr. or Mrs. Ellis that Mrs. Ellis’[s] cancer may have

been caused by exposure to EtO so as to reasonably put them on

notice of their cause of action against Defendants. Mr. and Mrs.

Ellis did not know they were exposed to dangerous amounts of

EtO since it is colorless and odorless and Defendants have never

advised the general public of the dangers of EtO. The first time

Mr. or Mrs. Ellis had any reason to think that EtO emission from

the facility was a substantial factor in causing Ms. Ellis’[s] cancer

was when Mr. Ellis received an advertisement in the mail from

The Voorhies Law Firm on or after April 28, 2020. The

advertisement advised that people living near the facility may

have legal rights because of the emissions of EtO from the facility.

That was the first indication Mr. or Mrs. Ellis had that EtO

exposure may have been a substantial factor in causing Mrs.

Ellis’[s] cancer. . . . Mr. Ellis filed this action within one year of

learning facts supporting that he had a cause of action against

Defendants. No one from the local, state, or federal government

has directly provided [him] any warning about EtO emitted by

the facility.24

The complaint alleges substantially similar facts as to all other plaintiffs.25

24 Id. ¶ 80.

25 Id. ¶¶ 81-93.

The Court finds that these factual allegations, even accepted as true,

are insufficient to support the application of contra non valentem and

suspend the plaintiffs’ prescriptive periods. All of the plaintiffs’ non-

conclusory facts, fairly read, go to their actual knowledge, which is not the

legal standard. Campo, 828 So. 2d at 510. Instead, prescription runs from

the date of the plaintiffs’ constructive knowledge.

State and federal case law regarding prescription and contra non

valentem strongly suggest that a medical diagnosis puts a plaintiff on

constructive notice of her cause of action, and thereby starts the prescriptive

period. For instance, in Tenorio v. Exxon Mobil Corp., the plaintiff argued

that contra non valentem applied because he did not know what caused his

throat cancer, diagnosed in November of 2009, until he was told in August

of 2013 that he may have been exposed to radiation at the job where he

worked from 1981 to 1988. See 170 So. 3d 269, 275 (La. App. 5 Cir.), writ

denied, 178 So. 3d 149 (La. 2015). The Louisiana Fifth Circuit Court of

Appeal rejected the argument, and found that plaintiff’s 2009 cancer

diagnosis “was constructive notice sufficient to put [him] on guard and to

call him to inquire into the cause of his condition.” Id. The court went on to

say that, “[a]lthough [plaintiff] claims to not have had knowledge of the

radiation exposure at Alpha Tech, the commencement of prescription began

when he should have discovered the facts upon which his cause of action was

based, which was in November 2009.” Id.

Similarly, in Lennie v. Exxon Mobil Corp., the court rejected the

plaintiffs’ invocation of contra non valentem, and found that the decedent’s

diagnosis of lung cancer constituted constructive knowledge of his cause of

action. 251 So. 3d 637, 648 (La. App. 5 Cir. 2018). The court explained that

the doctrine was inappropriate in that case for many reasons:

[Plaintiffs] have offered no evidence as to what they understood

caused [decedent]’s lung cancer and subsequent death. There is

no evidence that they reasonably relied on a doctor’s explanation

as to the cause of [decedent]’s lung cancer; to the contrary, they

testified that they did not speak with [decedent]’s doctors about

what caused his cancer. Evidence was introduced that

[decedent] was a heavy smoker, but none of the [plaintiffs] stated

that they believed that smoking caused the decedent’s lung

cancer. Additionally, none of the [plaintiffs] stated that they had

a conversation with [decedent] himself as to what he believed

caused his lung cancer. Each of them testified that they made no

inquiry whatsoever into the cause of [decedent]’s lung cancer.

While under the facts of this case it may not have been reasonable

for the [plaintiffs] to contact [decedent]’s former co-workers

following his death from lung cancer when they had no

knowledge of [naturally occurring radioactive material], its

hazardous effects, or of [decedent]’s potential exposure to it at

the workplace, their failure to make even a rudimentary inquiry

into the causes of [decedent]s’ illness and death appears

unreasonable.

Id. at 647-48 (footnotes omitted). The court therefore held that decedent’s

“diagnosis of lung cancer in January 2010 was constructive notice sufficient

to put [plaintiffs] on guard and to call for them to inquire further into the

cause of his condition.” Id. at 648.

Most recently, the Louisiana First Circuit found that prescription ran

from the date of a cancer diagnosis, and rejected the plaintiff’s invocation of

contra non valentem. See Guerin v. Travelers Indem. Co., 296 So. 3d 625

(La. App. 1 Cir. 2020). In Guerin, plaintiff was diagnosed with multiple

myeloma in 2015, and argued that his claims, filed in 2018, were not

prescribed because “it was reasonable for him to simply accept his

physician’s explanation in 2015 that, ‘well, you know, you have it, and I don’t

know where it came from,’ and make no further inquiries into the cause of

his condition until coming across a lawyer’s advertisement in a magazine in

June 2018.” Id. at 631. Consistent with Tenorio and Lennie, the court found

that plaintiff’s “inaction was not reasonable in light of the knowledge that he

possessed, and that his diagnosis in 2015 was constructive notice sufficient

to put him on guard and to call him to inquire into the cause of his condition.”

Id. Plaintiff was thus unable to avail himself of contra non valentem.

The Court finds these three Louisiana appellate cases persuasive.

Indeed, the Fifth Circuit recently considered this trio of cases, and

emphasized the significance of a medical diagnosis in starting a plaintiff’s

prescriptive period. See Butler v. Denka Performance Elastomer, LLC, 16

F.4th 427, 439-40 (5th Cir. 2021). In Butler, the plaintiff alleged various

health conditions resulting from chloroprene emissions from a nearby

neoprene plant. Id. at 432. In holding that plaintiff had adequately alleged

contra non valentem at the pleadings stage, the court distinguished Tenorio,

Lennie, and Guerin, as cases in which “a plaintiff’s diagnosis, more than one

year prior to filing suit, constitute[d] constructive notice.” Id. at 440

(emphasis in original). The court stated that this “diagnosis” distinction is

“critical,” and that, because the Butler plaintiff “was not diagnosed or

otherwise told that her symptoms were a result of excessive chloroprene

emissions more than one year prior to filing suit,” she was able to rely on

contra non valentem at the pleadings stage. Id.

And other case law bolsters the proposition that, in most cases, a

medical diagnosis will generally terminate the tolling effect of contra non

valentem and start the running of the prescriptive period. See Brown, 52

F.3d at 527 (“[C]ontra non valentem will suspend the running of the

prescriptive period until the claimant knows or should reasonably know that

he has suffered damages. With a latent disease, this is usually upon

diagnosis.” (cleaned up) (citations omitted)); Owens v. Martin, 449 So. 2d

448, 451 n.4 (La. 1984) (“[Plaintiff] did not become aware of his cause of

action against defendants until the disease was diagnosed in 1980. In such

a case, contra non valentem would apply to suspend the running of

prescription during the period between the initial damages and the

diagnosis.”); Layton v. Watts Corp., 498 So. 2d 23, 26 (La. App. 5 Cir. 1986)

(“[W]e hold that . . . the date on which plaintiff was finally diagnosed by [his

doctor] and informed of this diagnosis, was the date on which prescription

began to run.” (emphasis in original)); Cole v. Celotex, 620 So. 2d 1154, 1157

(La. 1993) (applying contra non valentem to the period when plaintiff “was

told by [his doctor] that the findings on his chest x-ray could be the result of

several causes besides asbestosis,” and finding that prescription started

when plaintiff was eventually diagnosed with asbestosis years later

(emphasis added)); cf. Jenkins v. Bristol-Myers Squibb, No. 14-2499, 2016

WL 10100281, at *8 (E.D. La. July 8, 2016), aff’d, 689 F. App’x 793 (5th Cir.

2017) (finding that the prescriptive period started before the plaintiff’s

diagnosis because he was “constructively notified of his cause of action when

[his doctor] advised him in April 2013 that his movement issues may be

linked to Abilify.”); Watson v. Glenwood Reg’l Med. Ctr., 163 So. 3d 817, 824

(La. App. 2 Cir.), writ denied, 176 So. 3d 404 (La. 2015) (finding that contra

non valentem did not apply in a missed-diagnosis medical-malpractice case,

because plaintiff had constructive notice of the missed cancer diagnosis as of

the date when a doctor first told her that she had breast cancer).

Here, all fourteen plaintiffs received, or bring suit for someone who

received, a cancer diagnosis. Those diagnoses span from 1999 to April 6,

2020.26 But, despite that the diagnoses gave the plaintiffs “constructive

notice sufficient to put [them] on guard and to call [them] to inquire into the

cause of [their] condition[s],” Guerin, 296 So. 3d at 631, their pleadings

contain no allegations about what specific actions they took to investigate or

otherwise inquire about the causes of their cancers. For instance, plaintiffs

do not allege that they asked their doctors, generally, what may have caused

their cancers, or, specifically, if EtO exposure may have caused their cancers.

Cf. Miles, 2009 WL 1323014, at *4 (applying contra non valentem when

plaintiff asked his doctor if his kidney condition was the result of a chemical-

exposure accident at work). Plaintiffs similarly do not allege that their

doctors denied that EtO exposure could have caused their conditions. Cf. id.

(“[Plaintiff] was repeatedly assured by his physicians that there was no

connection between his symptoms and the SiF4 gas leak.”). Nor do they

allege that their doctors suggested that they had a type of cancer that was

likely unrelated to EtO or other chemical exposures. Cf. Hughes v. Olin

26 Plaintiffs do not state in their complaint when decedents Mary Ann

Fortado or Leander Cook Jack were diagnosed with breast cancer. But

because these decedents died in 2018 and 2000, respectively, id. ¶¶ 81-

82, their diagnoses must have predated the April 26, 2020 cutoff

required to render their suits timely.

Corp., 856 So. 2d 222, 229 (La. App. 2 Cir. 2003), writ denied, 866 So. 2d

828 (La. 2004) (applying contra non valentem until the date when plaintiff

“learn[ed] that he had a lung cancer related to asbestos exposure, as opposed

to a [lung] cancer . . . not related to asbestos exposure”). Indeed, plaintiffs

include no allegations whatsoever about their communications with their

doctors. Their failure to allege any facts supporting the inference that they

conducted reasonable inquiries into the causes of their conditions makes

application of contra non valentem inappropriate.

Furthermore, plaintiffs do not allege any other facts that might suggest

that their inaction in light of their cancer diagnoses was reasonable, such that

contra non valentem could apply to suspend their prescriptive periods. See

Lennie, 251 So. 3d at 645 (noting that the “ultimate issue is the

reasonableness of the plaintiff’s action or inaction in light of his education,

intelligence, and the nature of defendant’s conduct” (citations omitted)). For

instance, plaintiffs do not allege that they lacked education. Cf. Ducre, 963

F.2d at 761 (applying contra non valentem for a plaintiff who left school after

finishing the tenth grade, and noting that the “equivocal character of facts

known by [plaintiff] is enhanced by [his] limited education”); Layton, 498

So. 2d at 25 (noting that plaintiff’s “educational status and medical

sophistication” were relevant as to contra non valentem for a plaintiff who

attended school until the fifth grade and worked as a laborer for his entire

adult life). Plaintiffs likewise do not assert that they were unable to access

the internet, computers, or public news sources. Cf. In re Taxotere

(Docetaxel) Prods. Liab. Litig., 995 F.3d 384, 393-94 (5th Cir. 2021)

(rejecting the applicability of contra non valentem in part because a

reasonable inquiry would have revealed ample online information regarding

plaintiffs’ causes of action).

Nor do plaintiffs allege any other facts suggesting that information

about EtO-related cancer risks in their area was somehow unknown or

unavailable. Cf. Frank v. Shell Oil Co., 828 F. Supp. 2d 835, 844-45 (E.D.

La. 2011) (applying contra non valentem and emphasizing that plaintiff had

alleged that the harms of benzene exposure were only “medically

recognized,” and “documented in “internal medical studies unknown to

plaintiffs,” such that “[p]laintiff would not have known about this

information as a lay person outside of the medical and scientific fields”

(emphasis in original)); Leslie v. Shell Chem. LP, No. 13-4791, 2013 WL

4517979, at *8 (E.D. La. Aug. 23, 2013) (applying contra non valentem

because decedent’s daughter had never heard or seen anything connecting

benzene exposure to her father’s disease, and because “reports about the

effects [of benzene exposure] were circulated in certain groups of which she

was not a part, and not among the general public”); Hill v. Exxon Mobil

Corp., No. 11-2786, 2012 WL 6606960, at *4 (E.D. La. Dec. 18, 2012)

(applying contra non valentem in a case in which plaintiff alleged that

radiation exposure at work caused his heart attack, because there were no

facts suggesting that radiation exposure “was known generally by lay people

to be a potential cause” of heart attacks at the time of plaintiff’s attack).

Indeed, as to the unavailability of information about EtO and cancer,

plaintiffs’ allegations in fact suggest the opposite. The entire thrust of

plaintiffs’ complaint is that the carcinogenic effects of EtO have been known

and publicized for decades.27 And more specifically, plaintiffs have alleged

that, at least as recently as 2018, it was knowable to the public that these

plaintiffs, living in this area, face high cancer risks from EtO. One of

plaintiffs’ central allegations is that, “[i]n August of 2018, . . . the EPA

released the results of the 2014 National Air Toxics Assessment (‘NATA’) of

EtO (and other toxins),” which indicated that “there are dangerous levels of

27 See e.g., id. ¶ 46 (“In 1994, the World Health Organization listed EtO

as a Group 1 human carcinogen, the agency’s highest risk

classification.”); id. ¶ 47 (“In 2000, the U.S. Department of Health and

Human Services . . . classified EtO as ‘known to be a human

carcinogen.’”); id. ¶ 53 (“The EPA classified EtO as a human carcinogen

and increased the cancer risk value for EtO in December 2016,

estimating the chemical to be 30 times more carcinogenic to adults

tha[n] previously thought.”).

airborne EtO in certain census tracts around the facility.”28 Plaintiffs further

allege that, “[e]ven worse, the report calculated that individuals living in

those census tracts around the facility, which include the Plaintiffs, have

some of the highest risks of cancer from EtO exposure in the country . . . .”29

The Court finds that these allegations—emphasizing the publicly available

information regarding the carcinogenic risks of EtO in the places where these

plaintiffs live—tend to belie the idea that information about the cancer risks

of EtO in their area was not publicly available.

In sum, all of plaintiffs’ claims are prescribed on the face of the

complaint, and the allegations do not support the application of contra non

valentem. Plaintiffs’ only other means of avoiding prescription is the

continuing-tort doctrine, which the Court addresses below. However,

because defendant Shell ceased operations of the facility in 1999, the

continuing-tort doctrine has no application to plaintiffs’ claims against it.

Appropriately, plaintiffs do not argue a continuing-tort exception for their

claims against Shell.30 Accordingly, Shell’s motion to dismiss is granted in

its entirety on the grounds of prescription and the non-applicability of contra

28 Id. ¶ 60.

29 Id.

30 See R. Doc. 37 at 6 n.18 (“As to Evonik, Plaintiffs rely on the continuing

tort doctrine.” (emphasis added)).

non valentem. The Court dismisses these claims against Shell without

prejudice. The Court grants plaintiffs leave to amend their complaint to

plead facts, specific to each plaintiff, to support the application of contra non

valentem after their dates of diagnoses.

2. Continuing Torts

Defendant Evonik still owns and operates the facility, and plaintiffs

allege continuing torts against Evonik. A continuing tort is a tort in which

“the operating cause of injury is a continuous one and gives rise to successive

damages.” Miller v. Conagra, Inc., 991 So. 2d 445, 456 (La. 2008). A

plaintiff asserting a suspension or interruption of prescription has the

burden of demonstrating that the defendant’s conduct is a continuing tort.

In re Med. Review Panel for Claim of Moses, 788 So. 2d 1173, 1177 (La.

2001).

Here, the complaint alleges that all fourteen plaintiffs “continu[e] to

experience adverse health effects because of the continued emission of EtO

from the facility and [are] at risk for developing new health conditions as a

result of the continued dangerous emission of EtO from the facility.”31

Plaintiffs also allege that “[t]he continued emission of EtO from the facility

31 R. Doc. 1-1 ¶¶ 12-25.

continues to cause damage by weakening [plaintiffs’] current medical

condition[s].”32 The Court finds, and Evonik does not dispute, that this is

sufficient to allege a continuing-tort exception to prescription. See, e.g.,

Risin v. D.N.C. Invs., L.L.C., 921 So. 2d 133, 138 (La. App. 4 Cir. 2005), writ

denied, 926 So. 2d 519 (La. 2006) (applying the continuing-tort exception to

prescription because defendants continued to expose plaintiffs to lead even

after plaintiff’s lead-poisoning diagnosis). Plaintiffs here allege that Evonik’s

harmful EtO emissions are ongoing and have not abated, and that plaintiffs

are suffering ongoing damages as a result, in the form of weakened medical

conditions and other adverse health effects. Accepting these facts as true,

the Court finds that plaintiffs’ claims against Evonik involve continuing torts,

and are therefore not prescribed.

Evonik contends that not all of plaintiffs’ claims are continuing torts.

Specifically, Evonik points to plaintiffs’ allegations that Evonik caused

“multiple unauthorized releases of EtO in 2012 and 2013.” 33 Evonik

contends that, by plaintiffs’ own admission, this conduct terminated in 2013

and is not continuing. The Court finds this argument unpersuasive. It is

clear from plaintiffs’ complaint that they cite the 2012 and 2013 releases not

32 Id. ¶ 9.

33 Id. ¶ 59.

as discrete torts warranting individualized assessment, but instead as part of

a continuum of ongoing conduct by Evonik—namely, the continued emission

of EtO into the community. Indeed, the allegations regarding the 2012 and

2013 releases, placed into the context of the complaint, support this reading.

In full, plaintiffs allege:

Not only does the facility emit state-authorized amounts of EtO

into the atmosphere, which are still excessive and dangerous to

persons working and living near the facility, but the facility

releases unauthorized amounts of EtO into the air and water,

which releases are caused by leaks, faulty equipment, and other

negligence that has increased the volume of EtO in the

atmosphere around the facility and the community, including

just by way of example, multiple unauthorized releases of EtO in

2012 and 2013 that may have led to as much as 1950 lbs. of EtO

being released into the atmosphere according to the facility.34

Because the allegedly continuing conduct is Evonik’s EtO emissions—both

authorized and unauthorized—the Court reject’s Evonik’s contention that the

2012 and 2013 releases should be carved out from, or somehow construed as

undermining, application of the continuing-tort exception to plaintiffs’

claims. The Court finds that plaintiffs have sufficiently alleged continuing

torts by Evonik, and that their claims against Evonik are therefore not

prescribed.

34 Id. (emphasis added).

That said, the continuing-tort doctrine does not toll the survival and

wrongful-death claims of plaintiffs Ellis, Fortado, and Jack, because Evonik’s

allegedly harmful conduct as to decedents is not causing successive damages

to decedents or their survivors. See id. at 1180 (“[F]or there to be a

continuing tort there must be a continuing duty owed to the plaintiff and a

continuing breach of that duty by the defendant.” (citations omitted)). The

Court therefore dismisses without prejudice, on the basis of prescription, the

survival and wrongful-death claims of Ellis, Fortado, and Jack, on behalf of

their respective spouses. These claims may proceed past the pleadings stage

only if plaintiffs adequately allege contra non valentem upon amendment,

which the Court has granted them leave to do.

C. The Living Plaintiffs’ Continuing-Tort Claims Against

Evonik

The Court thus proceeds to the merits of the living plaintiffs’ claims

against Evonik, which rest on allegations of continuing torts by virtue of

ongoing EtO emissions. Evonik contends that plaintiffs have not stated a

claim on the merits of their three allegations. Specifically, the Court must

determine whether plaintiffs have stated claims for negligence, battery, and

nuisance.

1. Negligence

Plaintiffs allege that Evonik is liable for negligence.35 Under article

2315 of the Louisiana Civil Code, “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair it.” La.

Civ. Code art. 2315(A). Louisiana courts conduct a duty-risk analysis to

determine whether to impose liability under article 2315. Lemann v. Essen

Lane Daiquiris, Inc., 923 So. 2d 627, 632-33 (La. 2006). Liability requires

satisfaction of five elements: (1) the defendant had a duty to conform his

conduct to a specific standard; (2) the defendant’s conduct failed to conform

to the appropriate standard; (3) the defendant’s substandard conduct was a

cause in fact of the plaintiff’s injuries; (4) the defendant’s substandard

conduct was a legal cause of the plaintiff’s injuries; and (5) actual damages.

Id. at 633.

The parties’ key dispute is whether plaintiffs have adequately alleged a

duty owed by Evonik. In their complaint, plaintiffs assert that Evonik “has a

duty to operate the facility in such a way as to avoid an unreasonable risk of

harm to persons located in the surrounding areas, including the Plaintiffs.”36

They also allege that Evonik “owes a duty of ordinary care to persons

35 Id. ¶¶ 94-103.

36 Id. ¶ 94.

foreseeably within the reach of those airborne chemicals’ known dangers to

reduce [EtO] emissions to a level that do not pose an unreasonable risk of

harm.”37 Plaintiffs contend that they have adequately alleged that defendant

owes a duty to act reasonably not to harm its neighbors. Evonik contests this

assertion, arguing that plaintiffs have failed to identify a specific standard of

care.

A recent Fifth Circuit decision persuades this Court that plaintiffs’

allegations are inadequate to state a duty under article 2315. In Butler v.

Denka Performance Elastomer, LLC, the Fifth Circuit considered plaintiff’s

appeal of the district court’s dismissal of her claims arising from allegedly

unsafe emissions of chloroprene in the community. 16 F.4th at 432. As to

whether plaintiff had adequately alleged a duty under Louisiana law, the

court explained:

Butler asserts that Denka violated Louisiana’s general duty “to

use reasonable care to avoid injury to another.” Rando v. Anco

Insulations, Inc., 16 So. 3d 1065, 1086 (La. 2009). She says

Denka’s chloroprene emissions—untethered from any particular

emissions threshold—are nonetheless unreasonably excessive.

. . . Butler’s retreat to generalized grievances is unavailing. While

Louisiana law does impose a “universal duty” on defendants in a

negligence action to use “reasonable care,” Rando, 16 So. 3d at

1086, plaintiffs are still required to assert a “specific standard” of

care. See Lemann, 923 So. 2d at 633. The inquiry into a

defendant’s particular duty “is whether the plaintiff has any law

37 Id. ¶ 97.

(statutory, jurisprudential, or arising from general principles of

fault) to support the claim that the defendant owed him a duty.”

Id.; accord Boykin v. La. Transit Co., 707 So. 2d 1225, 1230 (La.

1998) (emphasizing that in a “proper duty-risk analysis” the

court should first identify “the duty imposed upon the defendant

by statute or rule of law”). “Whether a legal duty exists, and the

extent of that duty, depends on the facts and circumstances of the

case, and the relationship of the parties.” Joseph v. Dickerson,

754 So. 2d 912, 916 (La. 2000).

Here, Butler relies not on the EPA, OSHA, or other agencies’

recommended emissions thresholds but on generalized

pronouncements that Denka has violated its duty to take

“reasonable care.” Yet, Butler points to no “statutory,”

“jurisprudential,” or any other source of law—and we have

likewise found none—in which such generalized references to

“excessive emissions,” “acceptable risk threshold,” and

“unreasonably dangerous emissions,” constitutes a sufficient

legal duty to support a negligence . . . claim.

16 F.4th at 443-46 (cleaned up).

Here, too, plaintiffs have cited no cognizable source or articulation of

the duty alleged. They instead rest on the notion that Evonik has a duty to

exercise “ordinary care,”38 to “avoid an unreasonable risk of harm to persons

located in the surrounding areas.,”39 and to “reduce emissions to a level that

do[es] not pose an unreasonable risk of harm.”40 But plaintiffs go no further.

They fail to specify a “specific standard” of care with which Evonik should

have complied. See Lemann, 923 So. 2d at 633.

38 Id. ¶ 97.

39 Id. ¶ 94.

40 Id. ¶ 97.

Plaintiffs attempt to sidestep Butler and demonstrate divided circuit

authority in this issue, by citing the Fifth Circuit’s decision in Cedar Lodge

Plantation, LLC v. CSHV Fairway View I, LLC, 753 F. App’x 191 (5th Cir.

2018). Specifically, plaintiffs point to the court’s discussion in Cedar Lodge

of the distinction between regulatory and tort standards. The court

explained:

[R]egulatory standards do not establish the requirements for

recovery by one private party against another for property

damage. Rather, the Louisiana Civil Code provides much

broader relief, through claims for negligence and nuisance, to a

landowner whose neighbor damages his property. Defendant

has cited no authority for the proposition that plaintiff cannot

state a claim for allowing contaminants to come onto his

property unless those contaminants exceed state regulatory

standards, and we have found none.

Id. at 197-98. But this proposition, which plaintiffs emphasize is “well

established,” and does not “break . . . new ground,” does not conflict with

Butler’s instruction that a tort plaintiff must identify a specific standard of

care that the defendant breached. Indeed, in Cedar Lodge, the court

explained that, while regulatory compliance is not a defense to tort liability,

“Louisiana law is clear that negligently allowing sewage to drain onto another

person’s property entitles the landowner to relief.” Id. at 197. In so stating,

the court cited a Louisiana case involving negligent operation of a sewage

treatment system. See Smith v. Cutts, 759 So. 2d 851, 855 (La. App. 3 Cir.),

writ denied, 763 So. 2d 598 (La. 2000). In other words, the court recognized

a specific, jurisprudential source of the tort duty breached in the case before

it. And the Fifth Circuit was clear in Butler that a plaintiff must identify such

a standard in order to state a negligence claim. Here, plaintiffs do not

identify a specific standard to which Evonik should have conformed its

conduct. That deficiency in their complaint warrants dismissal under Butler

and Rule 12(b)(6).

Finding no specific standard of care with which Evonik ought to have

complied, the Court finds, consistent with the Fifth Circuit’s decision in

Butler, that plaintiffs have not stated a claim for negligence under Louisiana

law. Evonik’s motion to dismiss is granted as to plaintiffs’ negligence claims.

These claims are dismissed without prejudice. The Court grants plaintiffs

leave to amend their article-2315 negligence allegations to articulate a

specific duty or standard of care that defendant is alleged to have breached.

2. Civil Battery

Plaintiffs also allege that Evonik is liable for civil battery.41 Under

Louisiana law, a battery is a “harmful or offensive contact with a person,

resulting from an act intended to cause the plaintiff to suffer such a contact.”

41 Id. ¶¶ 104-109.

Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987). For the act to be intentional,

the actor must either “(1) consciously desire the physical result of his act,

whatever the likelihood of that result happening from his conduct; or (2)

know that the result is substantially certain to follow from his conduct,

whatever his desire may be as to that result.” Batiste v. Bayou Steel Corp.,

45 So. 3d 167, 168 (La. 2010). Substantial certainty “requires more than a

reasonable probability that an injury will occur,” and plaintiffs must allege

that defendants’ actions made their contracting cancer “inevitable or

incapable of failing.” Reeves v. Structural Pres. Sys., 731 So. 2d 208, 213

(La. 1999) (internal citations omitted).

Here, the Court finds that plaintiffs have not pleaded any facts

supporting their conclusory recitation of the elements of battery. While

plaintiffs broadly assert that the Evonik “knew that the intended

emissions . . . would make contact with and be inhaled by . . . Plaintiffs,” and

“knew to a substantial certainty that inhalation of EtO would cause serious

health risks and increased risks of cancer to those individuals,”42 these

allegations amount to “naked assertions devoid of further factual

enhancement.” Iqbal, 556 U.S. at 678 (cleaned up) (citations omitted).

Moreover, even plaintiffs’ specific factual allegations do not give rise to a

42 Id. ¶¶ 105-106.

battery claim. Plaintiffs assert elsewhere in their complaint that Evonik

“knew, or should have known, that the EtO it was releasing was dangerous,

toxic, carcinogenic, mutagenic, and harmful to local residents.”43 But even

accepting that allegation as true, mere knowledge of a possible danger does

not give rise to a battery claim. See Reeves, 731 So. 2d at 213 (“Mere

knowledge and appreciation of risk does not constitute intent . . . .” (citations

omitted)); cf. Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.

2d 1140, 1142 (La. App. 4 Cir. 1993), writ denied, 629 So. 2d 347 (La. 1993)

(“[M]ere knowledge . . . that a machine is dangerous and that its use,

therefore, creates a high probability that someone will eventually be injured

is not sufficient to meet the ‘substantial certainty’ requirement.” (citations

omitted)).

For these reasons, the Court finds that plaintiffs’ claims for civil battery

must be dismissed. Evonik’s motion to dismiss is granted as to the battery

claims. Because plaintiffs’ battery theory is implausible, and any

amendment would be futile, the Court dismisses the battery claims with

prejudice, and does not grant plaintiffs leave to amend their battery

allegations. See Forman v. Davis, 371 U.S. 178, 182 (1962) (noting that leave

to amend should be denied when an amendment would be futile).

43 Id. ¶ 56.

3. Nuisance

Finally, plaintiffs allege that Evonik is liable for nuisance, in violation

of Louisiana’s vicinage articles.44 Under article 667 of the Louisiana Civil

Code:

Although a proprietor may do with his estate whatever he

pleases, still he cannot make any work on it, which may deprive

his neighbor of the liberty of enjoying his own, or which may be

the cause of any damage to him. However, if the work he makes

on his estate deprives his neighbor of enjoyment or causes

damage to him, he is answerable for damages only upon a

showing that he knew or, in the exercise of reasonable care,

should have known that his works would cause damage, that the

damage could have been prevented by the exercise of reasonable

care, and that he failed to exercise such reasonable care.

La. Civ. Code art. 667. Mere inconvenience, though, may be permissible.

Under article 668, “every one has the liberty of doing on his own ground

whatsoever he pleases, although it should occasion some inconvenience to

his neighbor.” La. Civ. Code art. 668. But article 669 provides that not all

inconveniences need be tolerated:

If the works or materials for any manufactory or other operation,

cause an inconvenience to those in the same or in the

neighboring houses, by diffusing smoke or nauseous smell, and

there be no servitude established by which they are regulated,

their sufferance must be determined by the rules of the police, or

the customs of the place.

La. Civ. Code art. 669.

44 Id. ¶¶ 110-112.

These Code articles collectively “embody a balancing of rights and

obligations associated with the ownership of immovables.” Badke v. USA

Speedway, LLC, 139 So. 3d 1117, 1126 (La. App. 2 Cir.), writ denied, 151 So.

3d 606 (La. 2014). “As a general rule, the landowner is free to exercise his

rights of ownership in any manner he sees fit.” Id. Indeed, a proprietor “may

even use his property in ways which occasion some inconvenience to his

neighbors.” Id. But under article 667, “his extensive rights do not allow him

to do ‘real damage’ to his neighbor.” Id. (citing Rodrigue v. Copeland, 475

So. 2d 1071 (La. 1985)). “[A] finding of liability under Article 667 requires

either proof of personal injury or physical damage to property or proof of the

presence of some type of excessive or abusive conduct.” Harmonia, LLC v.

Felicity Prop. Co., LLC, 311 So. 3d 521, 528 (La. App. 4 Cir. 2020) (quoting

Lodestro Co. v. City of Shreveport, 768 So. 2d 724, 727 (La. App. 2 Cir.

2000)).

With the exception of the “ultrahazardous” activities of pile driving and

blasting with explosives—neither of which is at issue here—a claim under any

or all of these three Code articles requires a showing of negligence. See

Brown v. Olin Chem. Corp., 231 F.3d 197, 200 (5th Cir. 2000) (“[T]he 1996

amendment to Article 667 applies to Articles 668 and 669 as well, so that

stating a claim under one or more of these articles now requires a showing of

negligence.”). Accordingly, to assert a nuisance claim under any or all of

these articles, plaintiffs must show that “a defendant is (1) a proprietor who

(2) negligently (3) conducts ‘work’ on his property (4) that causes damage to

his neighbor.” See Ictech-Bendeck v. Progressive Waste Sols. of LA, Inc.,

No. 18-7889, 2019 WL 4111681, at *2 (E.D. La. Aug. 29, 2019) (citing Bd. of

Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., LLC, 88

F. Supp. 3d 615, 643 (E.D. La. 2015)).

Here, plaintiffs have adequately alleged that Evonik is a proprietor

whose activities on its property caused “real damage” to its neighbors.

Badke, 139 So. 3d at 1126. Plaintiffs also adequately allege the negligence

requirement, the terms of which are prescribed by the text of the Code—

namely, that defendants “knew or, in the exercise of reasonable care, should

have known that [their] works would cause damage, that the damage could

have been prevented by the exercise of reasonable care, and that [they] failed

to exercise such reasonable care.” La. Civ. Code art. 667. Specifically,

plaintiffs point to longstanding industry knowledge of the carcinogenic

effects of EtO,45 and allege that defendants failed to prevent the damage

caused by their EtO emissions.46 The Court finds that these allegations are

45 See id. ¶¶ 36-53.

46 See id. ¶¶ 54-59; see also id. ¶ 112.

sufficient at the pleadings stage to support a nuisance claim under the

vicinage articles of the Louisiana Civil Code. See Taylor v. Denka

Performance Elastomer LLC, No. 17-7668, 2018 WL 5786051, at *4-5 (E.D.

La. Nov. 5, 2018) (denying defendant’s motion to dismiss plaintiffs’ nuisance

claims arising out of community exposure to chloroprene from defendant’s

facility).

Defendants’ arguments to the contrary are unconvincing. First, Evonik

and Shell both argue that plaintiffs’ complaint lacks factual allegations

regarding how they have been inconvenienced or precluded from enjoying

their property. But this framing of plaintiffs’ burden, which focuses on the

enjoyment of property, ignores the Code’s instruction that a proprietor has a

duty not just to avoid “depriv[ing] his neighbor of enjoyment” of his

property, but also to avoid “caus[ing] damage to him.” La. Civ. Code art. 667

(emphasis added). Seemingly aware of this problem, Evonik goes on to

contend that plaintiffs allege “inconvenience[] and damage[]” merely on the

basis that they live near the facility, and that EtO is in the air.47 Evonik

asserts that plaintiffs have not alleged “any physical manifestation of

symptoms when they use or enjoy their property.” 48 But this is a

47 R. Doc. 35-1 at 18.

48 Id.

mischaracterization of plaintiffs’ complaint, which alleges not only that

plaintiffs live near the facility and have been exposed to dangerous levels of

EtO, but that they developed cancer as a result. The Court finds that

plaintiffs’ cancer diagnoses plainly qualify as “real damage.”

Second, Shell49 argues that plaintiffs have not stated claims under

articles 668 and 669, because those articles pertain only to property damage,

and excessive inconveniences such as smoke or nauseous smells. But as

discussed, plaintiffs have adequately alleged real damage, in the form of

cancer, which is a higher showing than inconvenience. Louisiana courts have

explained that the question of when a proprietor’s acts “cease to be

inconveniences and become damaging is a question of fact.” Badke, 139 So.

3d at 1126. This question turns on “the reasonableness of the conduct in light

of the circumstances,” and requires “consideration of factors such as the

character of the neighborhood, the degree of intrusion and the effect of the

activity on the health and safety of the neighbors.” Id. Because these

plaintiffs have adequately alleged real damage under article 667, the Court

finds that, for the same reasons, they have adequately alleged excessive

49 While the Court has granted Shell’s motion to dismiss solely on the

grounds of prescription, the Court addresses, for the sake of

thoroughness, its arguments on the merits of plaintiffs’ nuisance

claims.

inconvenience under articles 668 and 669. Whether plaintiffs’ health

conditions are ultimately shown to be “real damage” or “excessive

inconvenience” is a question for the factfinder. At this stage, plaintiffs’

allegations are sufficient to survive past the pleadings.

Finally, Shell emphasizes that plaintiffs must demonstrate negligence

to prevail on their nuisance claims, and that, because they have not stated

claims for negligence, neither have they stated claims for nuisance. But this

argument conflates the general negligence standard under article 2315 with

the distinct negligence requirement for a nuisance claim under Louisiana’s

vicinage articles, which deal specifically with a proprietor’s relationship to

his neighbors. In the context of general negligence, liability requires that the

defendant had a duty to conform his conduct to some specific standard.

Lemann, 923 So. 2d at 633. As discussed above, it is this element that

plaintiffs have failed to allege as part of their negligence claims. In the

vicinage context, the Code itself establishes the standard of conduct between

a proprietor and his neighbors. Specifically, the Code provides that the

proprietor’s liability for damages arises if he “knew or, in the exercise of

reasonable care, should have known that his works would cause damage, that

the damage could have been prevented by the exercise of reasonable care,

and that he failed to exercise such reasonable care.” La. Civ. Code art. 667.

Accordingly, unlike their article 2315 general-negligence claims, plaintiffs’

nuisance claims do not require an allegation of a separate source of duty. The

proprietor’s duty to his neighbors is established by the Code itself, and it

stems from the nature of the parties’ relationships as neighbors. See A.N.

Yiannopoulous, 4 La. Civ. L. Treatise, Predial Servitudes § 3:16 (4th ed. 2021)

(“[E]very landowner is bound by certain obligations of vicinage prohibiting

him from causing damage or inconvenience to neighbors . . . .”); see also

Yokum v. 615 Bourbon St., L.L.C., 977 So. 2d 859, 867 (La. 2008) (noting

“the servitude and vicinage duties of articles 667, 668, and 669”); Badke, 139

So. 3d at 1126 (noting “the obligations of neighborhood established by

[articles] 667-669”).

For these reasons, the Court denies Evonik’s motion to dismiss as to

plaintiffs’ nuisance claims under articles 667-669 of the Louisiana Civil

Code.

D. Severance

Having ruled on Shell’s and Evonik’s motions to dismiss, the Court

finds that it is appropriate to sever this case into fourteen distinct civil

actions. On March 28, 2022, the Court ordered the parties to show cause

why this case should not be severed under Rule 21 of the Federal Rules of

Civil Procedure.50 Plaintiffs responded that they oppose severance;51 Shell

did not take a position on severance;52 and Evonik responded that severance

was appropriate.53 But all three parties requested that any decision on

severance be deferred until after the Court’s ruling on Shell’s and Evonik’s

pending motions to dismiss.

Under Rule 21, a district court has “broad discretion” to sever

improperly joined parties and claims. Brunet v. United Gas Pipeline Co., 15

F.3d 500, 505 (5th Cir. 1994); see also Anderson v. Red River Waterway

Comm’n, 231 F.3d 211, 214 (5th Cir. 2000). Rule 20(a)(1) provides that

plaintiffs may be joined together in one action if (1) the asserted right to relief

arises “out of the same transaction, occurrence, or series of transactions or

occurrences,” and (2) the action will present a question of law or fact

common to all of the plaintiffs. Fed. R. Civ. P. 20(a)(1). Both requirements

must be met for the parties to be properly joined. See Porter v. Milliken &

Michaels, Inc., No. 09-199, 2000 WL 1059849, at * 1 (E.D. La. Aug. 1, 2000);

see also Wright & Miller, Federal Practice and Procedure § 1653 (3d ed.

2021).

50 R. Doc. 48.

51 R. Doc. 51.

52 R. Doc. 53.

53 R. Doc. 54.

Furthermore, even if parties are properly joined under Rule 20(a), the

court may, in its discretion, choose to sever parties under Rule 21, which

provides that, “[o]n motion or on its own, the court may at any time, on just

terms, add or drop a party.” Fed. R. Civ. P. 21; see also United States v.

O’Neil, 709 F.2d 361, 369 (5th Cir. 1983). To decide whether Rule 21

severance is appropriate, the court considers the two 20(a) criteria alongside

other considerations, including whether settlement or judicial economy

would be promoted, whether prejudice would be averted by severance, and

whether different witnesses and documentary proof are required for separate

claims. Rohr v. Metro. Ins. & Cas. Co., No. 06-10511, 2007 WL 163037, at

*2 (E.D. La. Jan. 17, 2007); E. Cornell Malone Corp. v. Sisters of the Holy

Fam., St. Mary’s Acad. of the Holy Fam., 922 F. Supp. 2d 550, 561 (E.D. La.

2013). Severance of plaintiffs’ claims results in the creation of separate civil

actions. O’Neil, 709 F.2d at 368.

Here, irrespective of whether joinder was permissible under Rule

20(a)—which the Court does not decide—there is no question that severance

is appropriate under Rule 21, in light of the significant differences in the

factual and legal issues involved in each plaintiff’s claims.

First, there are significant differences in the timing and length of each

plaintiff’s alleged exposure to EtO. Specifically, some plaintiffs allege that

they have lived near the facility for more than seventy years,54 while others

have lived there for somewhere between thirty to fifty years.55 Still others

have lived in the area for fewer than twenty years.56 These distinct periods

of exposure mean that each plaintiff’s case will require and yield differing

facts regarding, for instance, the actual emissions of EtO over various years,

and the respective responsibilities, knowledge, and acts of Shell and Evonik

during these various periods of time. The distinct periods of exposure will

also bear on each plaintiff’s showing of fault and causation, thereby affecting

the legal viability of each plaintiff’s case. These timing distinctions strongly

favor severance of the plaintiffs’ claims.

Second, plaintiffs’ exposures occurred at different locations. Some

plaintiffs live within one mile of the facility,57 while others live over six miles

away from the facility.58 Relatedly, there is no indication that plaintiffs

worked or otherwise handled their day-to-day responsibilities in similar

locations. These differences bear heavily on the causation element of each

plaintiff’s claims. A plaintiff who worked all day in their home near the

facility surely has a different case, and faces different defenses, than one who

54 R. Doc. 1-1 ¶¶ 16, 24.

55 Id. ¶¶ 13-14, 17, 19-20, 22-23.

56 Id. ¶¶ 12, 25.

57 Id. ¶¶ 83, 85.

58 Id. ¶¶ 80-81.

worked far out of town, away from the facility and possibly exposed to other

toxins or risk factors. Put simply, in a case whose core allegation is years-

long exposure to an airborne toxin, differences in location matter. This

consideration further militates against joinder of all fourteen plaintiffs.

Third, it is plain from the face of the complaint, and from the Court’s

above analysis on defendants’ motions to dismiss, that each plaintiff’s claims

will present distinct legal issues and involve nonoverlapping legal analyses.

Most obviously, the issue of prescription must be analyzed individually. As

discussed above, in order for plaintiffs’ claims not to be dismissed as

prescribed, they must plead facts entitling them to application of the contra

non valentem doctrine. These allegations will necessarily be unique to each

plaintiff, and the applicability of contra non valentem will vary from plaintiff

to plaintiff. Furthermore, three of these plaintiffs bring survival and

wrongful-death actions on behalf of a deceased spouse; the eleven others do

not. This is a clear and important legal difference. Relatedly, the three

plaintiffs who bring survival and wrongful-death actions allege ongoing

harm from EtO emissions, but do not allege that they have cancer or any

other medical condition. The other eleven plaintiffs have been diagnosed

with various types of cancer. Again, therefore, plaintiffs’ cases present

distinct legal questions. Moreover, pursuant to this order, the Court has

dismissed with prejudice plaintiffs Ellis’s and Villa’s claims against

defendant Shell, because Ellis and Villa do not allege that they lived near the

facility when Shell owned and operated it. Those two plaintiffs therefore

have claims only against Evonik. These and other differences in the legal

questions presented by each plaintiff’s claims weigh heavily in favor of

severance.

Fourth, litigation of these claims will involve extensive medical

evidence that is sure to vary across plaintiffs. While all fourteen plaintiffs

and/or decedents have been diagnosed with cancer, they have different types

of cancer. Some have breast cancer, while others have lymphoma of varying

types. Moreover, there is no indication that the plaintiffs share common risk

factors for the development of cancer, including age, genetics, family history,

exposure to other carcinogens, and alcohol and drug use. And the import of

these differences is further compounded the differences discussed above,

regarding the timing, location, and therefore the degree, of plaintiffs’ or

decedents’ respective exposures to EtO. Accordingly, the nature and extent

of defendants’ liability will be unique to each plaintiff. The same is true for

damages. Plaintiffs and decedents were diagnosed with cancer at different

times, and certainly have incurred different medical expenses and other past

damages. Similarly, differences in prognoses and plans for treatment will

affect each plaintiff’s entitlement to future damages.

For these same reasons, the necessary witnesses and documentary

proof will vary widely across plaintiffs, as each plaintiff will need to submit

their own medical records, as well as testimony from their treating

physicians, family members, and other witnesses unique to them or their

deceased spouse. The highly individualized nature of these medical inquiries

further persuades this Court that severance is proper. Cf. Guilbeau v. Wyeth,

Inc., No. 09-1652, 2010 WL 2216710, at *2 (W.D. La. May 28, 2010)

(granting a motion to sever in a products-liability case where “each plaintiff’s

claim involves different medical histories, different courses of treatment

and/or underlying conditions, different prescribing physicians, different

alleged periods of ingestion, different alleged injuries and different

treatment options and risks,” meaning that, therefore, “each case will require

separate factual analysis as to medical causation and damages”).

Fifth, these cases are clearly destined for separate trials. Trying all

fourteen cases to the same jury would be unduly prejudicial to defendants,

and would pose an unacceptable risk of confusing the jury. For instance, as

one court has explained, “by trying . . . two [plaintiffs’] claims together, one

plaintiff, despite a weaker case of causation, could benefit merely through

association with the stronger plaintiff’s case.” Rubio v. Monsanto Co., 181 F.

Supp. 3d 746, 758 (C.D. Cal. 2016). And because separate trials are

inevitable, the Court finds its appropriate to sever the cases at this stage,

before the start of discovery. Indeed, the judge who will preside over each

plaintiff’s trial is best situated to issue rulings on dispositive motions, and

Daubert and other evidentiary motions.

For these reasons, the Court finds that joinder of the fourteen plaintiffs’

claims is not appropriate. On the contrary, the significant factual and legal

differences among plaintiffs’ claims warrant severance. The Court therefore

severs plaintiffs’ claims under Rule 21 of the Federal Rules of Civil Procedure.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Shell’s motion to

dismiss.59 The Court GRANTS IN PART, and DENIES IN PART, Evonik’s

motion to dismiss.60 The motion is granted as to the survival and wrongful-

death claims of Lamar Ellis, Leroy Fortado, Sr., and Ervin Jack, Jr., which do

not amount to continuing torts. The motion is also granted as to all plaintiffs’

59 R. Doc. 33.

60 R. Doc. 35.

claims for negligence and civil battery. The motion is denied as to plaintiffs’

continuing-tort claims under Louisiana’s vicinage articles.

Plaintiffs are granted leave to amend their allegations with respect to

(1) the date when plaintiff Margie Moore began experiencing EtO exposure,

(2) specific facts supporting the application of contra non valentem, and

(3) the duty allegedly breached by these defendants, thereby supporting

claims for general negligence under article 2315 of the Louisiana Civil Code.

Plaintiffs are NOT granted leave to amend the dates when plaintiffs

and decedents Lamar Ellis, Gaynell Perrilloux-Ellis, and Ginger Villa began

experiencing EtO exposure. Ellis’s and Villa’s claims against Shell are

DISMISSED WITH PREJUDICE. Plaintiffs are also NOT granted leave to

amend their civil-battery allegations. All battery claims are DISMISSED

WITH PREJUDICE.

It is FURTHER ORDERED that this case shall be SEVERED into

fourteen distinct civil actions. This case, Case No. 21-1089, with named

plaintiff Lamar Ellis, shall remain assigned to Section R. The Clerk of Court

is ORDERED to sever the other thirteen plaintiffs, and reallot the thirteen

severed cases among the judges of the U.S. District Court for the Eastern

District of Louisiana. For the purposes of Local Rules 3.1 and 3.1.1, this Court

has determined that the claims of the fourteen plaintiffs are not related.

It is FURTHER ORDERED that plaintiffs are granted fourteen (14)

days from the date of severance to file amended complaints in the severed

actions, confining the allegations therein to the respective plaintiff.

It is FURTHER ORDERED that, in each of the newly created cases, the

respective plaintiff shall pay to the Clerk of Court a filing fee of $402.00, at

the time when the amended complaint is filed.

New Orleans, Louisiana, this 27th day of May, 2022.

ernk Varner

SARAH 8S. VANCE

UNITED STATES DISTRICT JUDGE

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