Legal Blog

Fifth Circuit: “Information on the Internet” is not “In and of Itself” “Constructive Knowledge,” Which Would Defeat an Argument of Contra Non Valentem

The courts are — finally — beginning to acknowledge the proposition that a vast wealth of information is available to plaintiffs on the internet via simple and quick web-based search inquiries. Frankly, it should be more difficult for a plaintiff to allege ignorance with respect to the cause of some injury or wrongful death given the ease with which information can be obtained.

An interesting case was recently decided by the Fifth Circuit concerning application of the doctrine of contra non valentem — the tolling of prescription periods. See Lennie v. Exxon Mobil Corporation, Case No. 17-CA-204 (La. App. 5th Cir. June 27, 2018).

The case is notable for the court’s discussion of whether internet and web-based information can be deemed, in and of itself, to provide constructive knowledge to plaintiffs who seek to toll the prescription period based on lack of knowledge. The Court of Appeals rejected that hardline approach but left the door wide open for the idea that information on the internet coupled with a failure to otherwise inquire might amount to constructive knowledge. The case is also notable for the fact that the trial court did hold that information on the internet can be constructive knowledge.

The Lennie case involved exposure by Mr. Julius Lennie to naturally occurring radiation in oilfield piping. From 1961 to 1994, Mr. Lennie worked for Tuboscope, a company that cleaned, refurbished and recycled oilfield production pipe and tubing. The cleaning process involved grinding the scale/deposits out of a used pipe, a process that caused the emission of radioactive materials via the resulting dust and the bits/pieces of the scale. The dust and pieces were allegedly breathed in by Mr. Lennie and other workers, covering their hair, skin, and clothing.

Mr. Lennie retired from Tuboscope in 1994 and, in 2010 — 16 years after his retirement — he was diagnosed with lung cancer. He passed away from cancer later that year.

The prescription period here in Louisiana for wrongful death and survival actions is one year. But, Mr. Lennie’s widow and family did not file their claims until 2014. In their lawsuit against Exxon and other defendants, they alleged that exposure to radioactive dust and particles caused Mr. Lennie’s cancer. They also claimed that they filed in a timely manner because they filed their case within one year of reading a newspaper article about NORM, which was when they allegedly discovered the connection between NORM and Mr. Lennie’s cancer.

However, the trial court rejected this contra non valentem claim. One application of the doctrine involves circumstances in which a plaintiff’s cause of action is not known or reasonably knowable to the plaintiff. At trial, the Lennie plaintiff’s argument was rejected. The trial court stated:

In the not too distant past, the ability to obtain the information needed to make causal connections between environmental exposures in the workplace and health risks was tedious, difficult, cumbersome and often slow. With the invention of the computer and related technology, the process for gathering and weighing information has changed significantly. Today, as well as in 2010, the ability to make a connection, if one exists, between two items is at one’s fingertips and can be ascertained in a matter of minutes, if not seconds. Never in the history of mankind has information been more accessible. All of the information which could have and would have incited an inquiry of Brett Lennie to pursue further remedy, was available to him, his sister, and his mother in 2010. Consequently, this Court finds the cause of action was reasonably knowable in 2010.

As noted, the Court of Appeals rejected this apparent hardline approach imputing to a plaintiff constructive knowledge of all information on the internet. Indeed, the court was explicit and stated: “… we reject any contention that the mere availability of information on the internet, in and of itself, can serve as sufficient constructive knowledge of a plaintiff’s cause of action.”

Note the importance of the words “in and of itself.” This clearly leaves the door wide open for arguments about what information was available via a simple internet search with respect to what a plaintiff knew or should have known.

The Court of Appeals went on to evaluate the evidence de novo and affirmed the trial court. In affirming, the Court of Appeals noted that the Lennie plaintiffs had made no inquiry at all as to the cause of Mr. Lennie’s lung cancer. For example, Lennie’s widow did not inquire with Mr. Lennie’s doctors about what caused his cancer. This lack of inquiry was, according to the court, a “failure to make even a rudimentary inquiry” even though the plaintiffs had at least two important facts: Mr. Lennie had worked in a pipe yard for over 30 years and he died of lung cancer. The court stated that such inaction and failure to inquire was fatal to any claim that the prescription period was tolled by contra non valentem.

Going forward, any failure to inquire coupled with relevant information on the internet may provide a potent weapon to defeat arguments based on the contra non valentem doctrine. The defense bar should also continue to push the hardline argument. Given the ease and simplicity of internet searches, plaintiffs should be deemed to have constructive knowledge of information contained on the internet or should be required to conduct a search, at least.

Contact an Experienced Insurance Defense Lawyer

As can be seen, new technology and access to generally available information can create new legal issues. An experienced Louisiana insurance defense lawyer can help if you have any questions or want more information. Contact Kristin M. Lausten at 504.377.6585 or via email at kristin@kristinlausten.com.

The author may be contacted at:

Kristin M. Lausten

New Orleans, Louisiana
Telephone: 504.377.6585
E-mail: kristin@kristinlausten.com
Web: www.kristinlausten.com

This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.