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Louisiana Supreme Court Rules that Punitive Damages are not Available in Toxic Tort Conspiracies

Date: Nov 14, 2002


The Supreme Court of Louisiana recently ruled that punitive damages are not generally available against conspirators in toxic tort conspiracy cases filed in Louisiana.  This decision should limit some of the industry-wide conspiracy cases that are currently being filed by certain plaintiffs' counsel.

On October 15, 2002, the Louisiana Supreme Court decided Ross v. Conoco, et al., 2002 La. LEXIS 2883 (2002 La.).  In this consolidated action, the plaintiffs were the survivors of two men who died of diseases allegedly caused by their workplace exposure to vinyl chloride and other toxic chemicals.  Plaintiffs sued the decedents' employers and thirty-four "non-employer" defendants, generally alleging that these parties conspired among themselves, and with and through their trade associations, to conceal the hazards posed by vinyl chloride. 

In addition to compensatory damages, the plaintiffs sought punitive damages under former La. Civ. Code Ann. art. 2315.3 (repealed 1996) which allows for an award of punitive damages upon proof of injury "caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances" during the time that the statute was in effect.. 

Certain non-employer defendants, including Keller and Heckman's client The Society of the Plastics Industry, Inc., moved the trial court for partial summary on the punitive damages issue.  The trial court granted summary judgment because the moving parties had never physically stored, handled, or transported a hazardous or toxic substance to which plaintiffs' decedents were exposed.  However, the Third Circuit Court of Appeal, reversed.  Ross v. Conoco, 805 So. 2d 352, 357 (La. App. 3d Cir. 2001).

The Louisiana Supreme Court reversed the Court of Appeal ruling and reinstated summary judgment.  Strictly construing the statute, the Supreme Court found that the plaintiffs failed to show how a conspiracy to misrepresent and fraudulently conceal the harmful effects of vinyl chloride amounted to a conspiracy to store, handle, or transport in a wanton or reckless manner the vinyl chloride that injured the decedents.  Therefore, the Court held that even assuming that plaintiffs can successfully prove the existence of a conspiracy among the employer and non-employer defendants to harm the decedents by misrepresentation and failure to warn of the hazards of vinyl chloride, the non-employer defendants, who never had physical contact with the vinyl chloride at issue, could not be assessed punitive damages under former Article 2315.3 based on their alleged co-conspirators' acts of storage, handling, or transportation.  As a result of this decision, the plaintiffs may only collect compensatory damages from the conspiracy defendants.

For more information on this topic, please contact Douglas J. Behr, a partner with the firm's Litigation Department at (202) 434-4213 or behr@khlaw.com.