The plaintiffs in this case, the decedent’s surviving wife and children, commenced this action based on the decedent’s alleged exposure to asbestos during his work in the Avondale shipyard. One of the plaintiffs’ claims was that they are entitled to bystander damages pursuant to Louisiana Civil Code article 2315.6, for having mental anguish from watching the progression of the decedent’s mesothelioma. The defendant, Huntington Ingalls Inc. (HII), moved for partial summary judgment to dismiss this claim, arguing that the plaintiffs failed to meet all four requirements — Lejeune requirements — necessary for such a claim: “(1) the claimant must either view the accident or injury-causing event or come upon the scene soon after it has occurred and before substantial change in the victim’s condition; (2) the direct victim of the traumatic injury must have suffered such harm that it can reasonably be expected that someone in the claimant’s position would suffer serious mental anguish from the experience; (3) the claimant’s emotional distress must be both reasonably foreseeable and serious; and (4) the claimant must have a sufficiently close relationship to the direct victim.”

HII argued that the plaintiffs failed to satisfy the first requirement, because they did not witness the injury-causing event as it occurred. The court agreed and held: “The injury-causing event occurred when Mr. Landry was allegedly exposed to asbestos, not when the mesothelioma manifested itself. Plaintiffs have not alleged or presented evidence that they were present when Mr. Landry was exposed to asbestos or that they came upon the scene of his exposure soon thereafter. Louisiana Civil Code Article 2315.6 contemplates an ‘immediate shock’ and harm that is immediately ‘severe and apparent.’ It is not intended to compensate claimants who observe the progression of a disease many years later. Plaintiffs did not observe Mr. Landry inhale asbestos and the suffering they observed occurred more than sixty years after Mr. Landry’s employment at Avondale. Moreover, even if Plaintiffs had observed Mr. Landry’s exposure to asbestos, they would not be entitled to Lejeune damages because exposure to asbestos is not a traumatic event likely to cause severe contemporaneous mental anguish to an observer, even though the ultimate consequence, mesothelioma, is tragic. Although Plaintiffs suffered anguish and distress as Mr. Landry’s mesothelioma progressed, their mental anguish is temporally disconnected from the injury-causing event and beyond the intent of Louisiana Civil Code Article 2315.6. The Court finds that Plaintiffs have not satisfied the first Lejeune requirement and, accordingly, they are not entitled to bystander damages under Louisiana law.”

Read the full decision here.

If you have questions about how this case may impact your business, please contact:

• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Toxic Torts Practice Groups