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4/3/01

SUPREME COURT OF LOUISIANA
No. 00-CA-1528

ROBERT BOURGEOIS, ET AL. v. A. P. GREEN INDUSTRIES, INC., ET AL.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, FOR THE PARISH OF JEFFERSON HONORABLE ROBERT J. BURNS, JUDGE AD HOC

KIMBALL, Justice In this case we are faced with the issue of whether the legislature's amendment of La. C.C. art. 2315 by Act 989 of 1999, essentially purporting to "overrule" this court's decision in Bourgeois v. A.P. Green Indus., Inc., 97-3188 (La. 7/8/98), 716 So.2d 355, which recognized that the reasonable cost of medical monitoring is a compensable item of damage under Article 2315 provided that certain criteria are satisfied, can be constitutionally applied to the original Bourgeois plaintiffs. For the reasons that follow, we conclude that application of Act 989 to plaintiffs' suit would impermissibly divest them of a vested right in their causes of action. The trial court's judgment, insofar as it declared Act 989 unconstitutional as applied to plaintiffs' causes of action, is therefore affirmed. FACTS AND PROCEDURAL HISTORY On January 23, 1996, plaintiffs, current and former employees of Avondale Industries, Inc., filed a suit seeking medical monitoring damages on behalf of

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themselves and a class of those persons similarly situated who allegedly were exposed to asbestos-containing products, but have not filed suit for an asbestos-related injury or disease. Named as defendants in the suit are various executive officers of Avondale, several manufacturers, sellers and suppliers of asbestos and asbestoscontaining products used at Avondale, and various insurers.1 In response to plaintiffs' petition, defendants filed exceptions of no cause of action for medical monitoring expenses. The trial court sustained defendants' exceptions, and the court of appeal affirmed the trial court's judgment. This court granted certiorari and reversed the judgment of the court of appeal in Bourgeois v. A.P. Green Indus., Inc., 97-3188 (La. 7/8/98), 716 So.2d 355 (Bourgeois I). The narrow issue presented for our review in that case was "whether asymptomatic plaintiffs, who have had significant occupational exposure to asbestos and must now bear the expense of periodic medical examinations to monitor the effects of that exposure have suffered `damage' under Louisiana Civil Code article 2315." Id. at p. 3, 716 So.2d at 357. After considering the issue, we held that the reasonable cost of medical monitoring is a compensable item of damage under Civil Code article 2315, provided that certain specific criteria are satisfied.2 This court

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On December 21, 2000, counsel for Armstrong World Industries filed a Notice of Bankruptcy Filing and Imposition of Automatic Stay indicating that on December 6, 2000, Nitram Liquidators, Inc., Desseaux Corporation of North America, and Armstrong World Industries, Inc. each filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy court for the District of Delaware. Because Armstrong World Industries, Inc. is a defendant in this appeal, the effect of this opinion is stayed as to that debtor pursuant to section 362(a) of the Bankruptcy Code pending further orders of the federal court. 2 This court held that a plaintiff who satisfies the following criteria has proven his or her need for medical monitoring: (1) (2) Significant exposure to a proven hazardous substance. As a proximate result of this exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease. Plaintiff's risk of contracting a serious latent disease is greater than (a) the risk of contracting the same disease had he or she not been exposed and (b) the chances of members of the public at large of developing the disease. A monitoring procedure exists that makes the early detection of 2

(3)

(4)

specifically noted that "[r]ecognition of a plaintiff's need for medical monitoring does not create a new tort." Id. at p. 11 n.15, 716 So.2d at 361 n.15. The case was remanded to the district court to permit plaintiffs the opportunity to amend their petition to allege facts sufficient to state a cause of action. Plaintiffs filed an amended petition on September 11, 1998. Subsequently, the legislature amended La. C.C. art. 2315 to eliminate medical monitoring as a compensable item of damage in the absence of a manifest physical or mental injury or disease. Effective July 9, 1999, Acts 1999, No. 989 amended Article 2315 to include the following highlighted language: Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. (Emphasis added). Additionally, Section 2 of the Act provides: The provisions of this Act are interpretative of Civil Code Article 2315 and are intended to explain its original intent, notwithstanding the contrary interpretation given in Bourgeois v. A.P. Green Indus., Inc., 97-3188 (La. 7/8/98); 716 So.2d 355, and all cases consistent therewith.

(5)

(6) (7)

the disease possible. The monitoring procedure has been prescribed by a qualified physician and is reasonably necessary according to contemporary scientific principles. The prescribed monitoring regime is different from that normally recommended in the absence of exposure. There is some demonstrated clinical value in the early detection and diagnosis of the disease.

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Furthermore, Section 3 of the Act states: The provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date. Subsequent to the effective date of the amendment, defendants filed exceptions of no cause of action, asserting that plaintiffs do not have a cause of action for medical monitoring because they do not exhibit "a manifest physical or mental injury or disease" as required by the newly-amended version of La. C.C. art. 2315. In response, plaintiffs filed a "Motion to Declare Act 989 Unconstitutional Insofar As It Is Purported to Apply to Plaintiffs' Causes of Action," contending that application of Act 989 to their claims would divest them of vested rights in their causes of action acquired prior to the statute's effective date. Defendants opposed the motion, arguing that Act 989 is interpretive legislation and could therefore be applied retroactively.3 After a hearing on defendants' exceptions of no cause of action and plaintiffs' motion to declare Act 989 unconstitutional, the trial court overruled defendants' exceptions of no cause of action and declared Act 989 unconstitutional as it applies to plaintiffs' causes of action.4 In oral reasons for judgment, the trial court stated that substantive rights are affected by the amendment to La. C.C. art. 2315 and, therefore, the statute could not be applied retroactively to the Bourgeois plaintiffs. Defendants appealed directly to this court pursuant to La. Const. art. V,

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