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Cichirillo v. Avondale Industries11/29/2005
8 So.2d 369, 375 (La.1979); see also Sutton's Steel & Supply, Inc. v. Bellsouth Mobility, Inc., 00-0511, p. 4 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, 592, writ denied, 01-0152 (La. 3/16/01), 787 So.2d 316.
Review of the transcript of the hearing on the exception indicates counsel for plaintiff and counsel for six defendants entered appearances for the record. The remainder of the transcript consists of a seven-and-a-half page colloquy between the trial judge and plaintiff's counsel regarding the sequence of events leading to the filing of suit in Louisiana. At one point the court questioned counsel as follows:
THE COURT: As I understand it, in this case Mr. Cichirillo is alleging that as a result of his exposure to asbestos-causing substances that he . . . now has mesothelioma.
MS. ARDOIN: Yes, your Honor.
THE COURT: Then in 1992 he filed a lawsuit in Mississippi. In that lawsuit he alleged asbestosis. Then that lawsuit was pending at the time.
Now you want to suggest to me that because he filed a lawsuit in Mississippi in 1992 it interrupted prescription here? Because it is my understanding that he was diagnosed on June 29, 1999, with mesothelioma, right?
MS. ARDOIN: Yes, your Honor.
THE COURT: Then in December of 2000 is when he filed this suit, which is some 19 months later. Explain it to me how we get there.
THE COURT: ... And he was diagnosed June 29, 1999 . . . .
MS. ARDOIN: Right.
Transcript of rule hearing on September 5, 2003. (Emphasis supplied.)
In arguing interruption of prescription, counsel for plaintiff did not object that the date of discovery, June 29, 1999, was not in evidence and, in fact, answered affirmatively every time the judge mentioned that date.
The colloquy concluded with the court finding Cichirillo knew of the diagnosis of mesothelioma in 1999, a finding plaintiff did not challenge on appeal. Thus, the trial court found the claim filed in 2002 prescribed by law and granted the exception of prescription.
We find the response by plaintiff's counsel to the questions posed by the court regarding the date of diagnosis of mesothelioma to be a judicial confession of that fact relieving defendants of the necessity of introducing evidence. The burden then shifted to plaintiff to establish that prescription was interrupted.
Reaching the merits of this writ grant, we must determine whether Cichirillo's becoming a plaintiff in an action, Williams, et al. v. GAF Corporation, et al., filed in Mississippi in 1992 against Ingalls Shipbuilding Corporation and other "asbestos" defendants (hereafter "Ingalls defendants") interrupted prescription of his suit against the Avondale defendants in the Louisiana suit for mesothelioma filed in 2002. Plaintiff argues the listing of asbestos-related diseases in the Mississippi petition, which included mesothelioma, was sufficient to interrupt prescription because there is only one cause of action for personal injury due to asbestos exposure at Avondale and Ingalls, with all named defendants being solidary obligors. However, it is undisputed that Cichirillo was not diagnosed with mesothelioma until 1999. Thus, he was not among the class action plaintiffs who were suing for mesothelioma in 1992, and the only cause of action he could assert at that time in the Mississippi suit was for some other asbestos-related condition or disease.
Liberative prescription is a mode of barring actions as a result of inaction for a period of time. LSA-C.C. art. 3447. The fundamental purpose of prescription statutes is to afford a defendant economic and psychological securi
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