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Austin v. Abney Mills9/4/2002
izing this case to the case of Owens v. Martin, 449 So. 448 (La. 1984), which is distinguishable on a crucial point, that is, Owens predicated the running of prescription and the corresponding application of contra non valentem on the plaintiff being able to prove that he contracted asbestosis, and thus suffered damages, at which time contra non valentem could suspend the running of prescription. In this case, the plaintiff did not suffer any cognizable damages at the time of the "significant exposures." For the same reasons that plaintiff's cause of action does not accrue at that time, it appears that prescription cannot be suspended by the application of contra non valentem. This "discovery" type of contra non valentem has never been applied to suspend prescription between the time a plaintiff is subjected to conduct that could, or could not, later cause him damage and the time that the actual damage occurs. Further, the damage that the plaintiff incurs but has not yet discovered, giving rise to a cause of action, the running of prescription and the possible suspension of prescription, necessarily has to be the same damage which the plaintiff later discovers and for which he seeks recovery. Here, the damage that the majority theorizes that the plaintiff may have suffered at the time of exposure is not the same as the damage plaintiff suffered much later and for which he is now seeking to recover, i.e., mesothelioma. In addition, it appears farfetched to suggest that prescription can be suspended by contra non valentem for the amount of time involved in this long-term latency disease case, which will necessarily have to be longer that 23 years (before the 1975 amendments), and possibly up to 40 years, under the majority's holding. No Louisiana court has allowed prescription to be suspended for that long in a tort case. Even in the field of medical malpractice, where the fourth category of contra non valentem is most applicable, the legislature itself has cut off the "discovery" period at three years. La. R.S. 9:5628.
Another problem is the majority holding that a party's cause of action can accrue before he has a right to assert it. If the plaintiff had tried to bring his cause of action for mesothelioma at the time the majority says it accrued, i.e. upon significant exposure to asbestos which according to the majority could have occurred over 27 years ago (prior to 1975), his case would have been thrown out of court. While it may be true that a cause of action can arise before the party sustains all of the damages occasioned by the defendant's negligence, Harvey v. Dixie Graphics, 593 So. 2d 351 (La. 1992), the party still has to have some cognizable, as opposed to speculative, damages before his cause of action accrues.
This brings up the burden of proof problem created by the majority's holding. Under its holding, "tortious exposures are significant when asbestos dust has so damaged the body that the fibrogenic effects of its inhalation will progress independently of further exposure." Slip Op. at p. 25 (citing Abadie v. Metropolitan Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So. 2d 46, writ denied, 01-1543 (La. 12/14/01), 804 So. 2d 643). The majority reasons that "such an application of the 'significant tortious exposure' theory is a logical variation of, and not materially different from the application of the 'contraction' theory articulated in Faciane," a theory which the majority rejected earlier in the same opinion. Slip Op. at pp. 25-26. In Cole itself, the case in which the majority relies on for its adoption of the "significant exposure" test, this Court criticized the "contraction" theory as being "fraught with difficulties" because "it is extremely difficult to accurately fi
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