Fifth Circuit Affirms Summary Judgment Favoring Former Employers in Toxic Chemical Case

In an unpublished decision, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court's decision granting summary judgment in favor of two former employers who, according to allegations of the plaintiff, had caused the plaintiff-employee to become exposed to hazardous chemicals, including benzene and vinyl chloride during his employment [Million v. Exxon Mobil Corp., et al., 2020 U.S. App. LEXIS 37469 (5th Cir., Dec. 1, 2020)]. The Court also found the district court did not err in denying the plaintiffs' motion to amend the complaint to add an intentional tort allegation against the former employers, finding the plaintiffs had not been diligent in seeking to amend since, inter alia, they had not sought to amend until long after the court’s earlier established deadline, and only after the employers had filed motions for summary judgment on exclusivity grounds pursuant to the Louisiana Workers' Compensation Act.

Background

Million worked in the chemical industry for 40 years, including terms of employment with two of the defendants, Brock Services, LLC and Protherm Services Group, LLC. Both companies were subcontractors for defendant Exxon Mobil. Million was diagnosed with cancer and pulmonary embolisms in February of 2016. He and his wife filed suit on February 1, 2017, pleading claims of negligence and strict liability. The complaint alleged in pertinent part that Million was exposed to hazardous chemicals, including benzene and vinyl chloride, during his employment. The district court issued a Scheduling Order setting, among other things, the deadline to amend pleadings and join other parties as December 5, 2017; the deadline to complete expert discovery as June 7, 2019; and the deadline to file dispositive motions as August 6, 2019.

As relevant here, Brock and Protherm filed motions for summary judgment in late January 2019, based on the exclusivity provision of the Louisiana Workers' Compensation Act [see La. Rev. Stat. § 23:1032]. Plaintiffs opposed the motions and sought to amend their complaint, arguing–for the first time–that Brock and Protherm had intentionally caused Million's exposure to the toxic chemicals. The district court subsequently granted the summary judgment motions filed by Brock and Protherm.

Appeal to the Fifth Circuit

The 5th Circuit found no abuse of discretion in the district court's denial of plaintiffs' motion for leave to amend their complaint, indicating the district court had reasonably determined that the plaintiffs failed to show good cause. As the district court noted, plaintiffs failed to exercise diligence, and gave explanations for their failure to amend timely that were implausible and uncorroborated.

Intentional Tort Issue

The Fifth Circuit reviewed the intentional tort exception to exclusivity in Louisiana, noting that under Bazley v. Tortorich, 397 So.2d 475 (La. 1981), a plaintiff could prevail if he or she could show "intent" on the part of the employer. Under Bazley, in order to prove "intent," the employee must show that the employer either (1) "conscientiously desire[d] the physical result of his act, whatever the likelihood of that result happening form his conduct", or (2) "kn[ew] that the result [was] substantially certain to follow from his conduct, whatever his desire …" [Bazley, 397 So.2d at 481]. As observed in a number of Louisiana decisions, this is a high bar to meet.

The Fifth Circuit stressed that the complaint alleged that Brock and Protherm failed to provide adequate safety gear to employees, failed to ensure proper ventilation of work areas, failed to properly train employees, failed to follow applicable safety regulations, and other similar allegations. The Court agreed with the district court that such allegations, even if accepted as true, amounted to negligence, not intentional torts. The Fifth Circuit concluded, therefore, that the district court did not err in granting summary judgment on the grounds of exclusivity.