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Austin v. Abney Mills9/4/2002
because applying "manifestation" of a long-latency occupational disease in a case where the plaintiff suffers from the disease to fix the date that a cause of action in tort accrues ignores reality in that compensable, tortious injury or damage to the plaintiff has certainly occurred at an earlier date. Thus, it would be a dangerous precedent to adopt manifestation or diagnosis of the disease as the relevant date for fixing the accrual of the tort cause of action, because to do so could destroy the vested rights of individuals in other cases where the damage does not manifest itself until some later time even though the tortious injury has been previously, but unknowingly, sustained.
Moreover, equating the accrual of the tort cause of action with manifestation or diagnosis of the disease will have a negative and serious impact on the role of prescription and the doctrine of contra non valentem in Louisiana law. The court of appeal by applying such a theory essentially adopted a "discovery rule" for the accrual of a cause of action, a concept foreign to Louisiana tort law. Despite the perceived difficulties in proving the onset of a long-latency disease such as mesothelioma, we find no need for such a radical departure from well-settled legal principles.
We now turn to the "contraction" theory and the "significant tortious exposure" theory, which, though they differ to some extent, are logically related. Prior to our decision in Cole, the Fourth Circuit in Faciane v. Southern Shipbuilding Corp., 446 So.2d 770, 773 (La. App. 4th Cir. 1984), enunciated a contraction theory for determining when injury is deemed to occur in long-latency occupational disease cases, deeming injury to occur when "the cumulation of exposure reache the point where the plaintiff contract the disease." More specifically, in Faciane, supra, a silicosis case, the Fourth Circuit explained the contraction theory as follows:
It seems implicit from much of the medical evidence that once silica dust has so damaged and maimed the body that the fibrogenic effects of silica inhalation will progress independent of further exposure, a disease has been contracted. It is at this point and not before that the consequences of exposure to silica becomes inevitable and in our opinion, actionable. The victim's body has been injured just as surely as if it had been hit by a truck. 446 So.2d at 773.
In Faciane, supra, an executive officer suit, this theory was crafted to resolve the issue of when the plaintiff's cause of action accrued for purposes of determining the applicable law, because the suit was filed after the adoption of the 1976 amendment to the compensation laws eliminating executive officer suits, but the plaintiff contended that his cause of action had arisen before that amendment. In this context, other Louisiana courts have likewise suggested that a contraction theory may be the appropriate rule. See Owens v. Martin, 449 So.2d 448 (La.1984); Lebleu v. Southern Silica of La., 554 So.2d 852, 855 (La. App. 3 Cir. 1989, writ denied, 559 rd So.2d 489 (La. 1990); Quick v. Murphy Oil Co., 446 So.2d 775 (La.App. 4th Cir.1982), writ denied, 447 So.2d 1074 (La. 1984). But the Cole court recognized that the contraction theory is "fraught with difficulties" because "'it is extremely difficult to accurately fix the point in time at which the disease is contracted.'" 599 So.2d at 1076, n. 54 (quoting Faciane, 446 So.2d at 773). "Due to these inherent difficulties," the Cole court declined the invitation to invoke this theory to determine the trigger or timing of insurance coverage for a "bodily injury." The Cole court "[left] for another day . . . resolution of the continued viability of the contraction theory in th
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