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From Products Liability Law Daily, February 22, 2018

Time runs out on cancer patient’s nine-year old claims against oil refinery

By Pamela C. Maloney, J.D.

Oklahoma’s two-year statute of limitations barred a cancer patient’s claims brought against the owner of an oil refinery, which allegedly emitted toxic chemicals including benzene, approximately nine years after his leukemia diagnosis, which was linked to benzene exposure, the U.S. Court of Appeals for the Tenth Circuit ruled in an unpublished decision. In applying the discovery rule to the facts in the record, it was indisputable that the patient should have known of the facts underlying his diagnosis more than two years before he filed his lawsuit. Additionally, the Tenth Circuit declined to recognize the patient’s quasi-estoppel defense, noting that the Oklahoma courts had never applied quasi-estoppel to a statute-of-imitations case (Bryer v. ConocoPhillips, Co., February 21, 2018, Bacharach, R.).

The patient had lived and worked near a ConocoPhillips, Co. oil refinery that emitted a chemical known as benzene, among other toxic substances. During the time he lived in the area, the patient had experienced symptoms such as trouble breathing and a burning sensation in his eyes from emissions generated by the refinery. These symptoms prompted the patient, as well as other residents, to move away from the refinery. Fifteen years after he moved, the patient participated in, and received a settlement payment as part of, a class action lawsuit alleging that the refinery had emitted toxic levels of benzene that caused or increased the risk of cancer in residents living near the refinery. Sixteen years later, in 2006, a physician diagnosed the patient with Acute Myeloid Leukemia, telling him that benzene exposure from his residences and workplaces likely had contributed to his cancer. It was not until 2015 that the patient filed claims for negligence, negligence per se, and strict liability against ConocoPhillips after he had been told by another claimant who had sued the oil refinery owner that a connection existed between the refinery’s emissions and Acute Myeloid Leukemia. ConocoPhillips moved for summary judgment on the ground that the patient’s claim had accrued at the time of diagnosis and, thus, was time-barred. The district court agreed, granting the refinery owner’s motion for summary judgment. The patient appealed.

Discovery rule. The Tenth Circuit was unpersuaded by the patient’s argument that although he knew of his injury when he was diagnosed with leukemia and that it was most likely caused by his exposure to benzene, he did not know the actual source of the benzene, i.e., the oil refinery, until 2015 when he spoke with the other claimant. After ruling that the patient had forfeited this argument by failing to raise it on appeal, the Tenth Circuit went on to explain that based on the record, the patient’s argument failed even if the forfeiture was overlooked. According to the facts presented, the patient knew more than two years before he filed his claims that the refinery had emitted a significant volume of chemicals, including benzene. The Tenth Circuit’s conclusion was based on the patient’s awareness of the concerns expressed by other residents about the refinery’s emissions and their impact on the health and environment and on his participation in the class action alleging harmful levels of benzene from the refinery. In addition, the settlement agreement reached in the class action acknowledged that all class members had been advised by their attorneys and a medical advisor that the oil refinery had caused, or could cause, cancer or an increased cancer risk. Recognizing that the patient might not have read the settlement agreement, the Tenth Circuit still concluded that the patient knew when he received his settlement check that the owner was settling because the refinery had polluted the air and ground water.

Admitting that the patient’s knowledge of allegations regarding the refinery’s high levels of benzene emissions did not provide him with certain knowledge that the refinery’s benzene emissions were sufficiently concentrated to be harmful, the Tenth Circuit admonished that the patient did not need conclusive evidence on this issue before filing his lawsuit. He only needed enough information to put him on notice that he had a cause of action against the refinery’s owner. Based on the information available to him at the time of his diagnosis, the appellate court concluded that the patient knew or should have known at that time that the refinery’s emissions included benzene. He also should have known at the time of his diagnosis that the benzene emissions from the refinery constituted the source of his exposure. His recollections of his symptoms from the refinery’s emissions, his knowledge that the refinery had emitted benzene, his awareness of the public controversy surrounding the refinery’s emissions, and his participation in the class-action lawsuit all combined to support the refinery owner’s argument that the patient reasonably could have known more than two years before he filled his lawsuit that his leukemia likely had been caused by benzene emission coming from the refinery.

For similar reasons, the Tenth Circuit rejected the patient’s argument that until his conversation with the other claimant, he lacked sufficient information specifically tying the refinery to his leukemia. It was clear from the record that long before the patient filed his lawsuit, he possessed ample evidence identifying the refinery as the source of the benzene that caused his cancer. Furthermore, the patient failed to provide evidence of a plausible alternative to the refinery as a source of the benzene. Reiterating that all the information relating to the patient’s claim was available to him more than two years before he initiated his lawsuit, the appellate court held that the claim against the refinery’s owner was barred by the two-year statute of limitations.

Quasi-estoppel. The patient also argued that the oil refinery’s denial of culpability prevented it from asserting the statute of limitations as a defense to the lawsuit. The facts of the case did not fit within any of the exceptions recognized by the Oklahoma Supreme Court in which estoppel could be used to avoid a statute-of-limitations defense. The patient’s proposed equitable estoppel alternative could not overcome these limited exceptions because the Oklahoma courts had not extended quasi-estoppel to a statute of limitations case and the Tenth Circuit declined to recognize a new exception to Oklahoma’s statute of limitations.

The case is No. 17-6114.

Attorneys: Jason Bjorn Aamodt (Indian and Environmental Law Group, PLLC) for Charles Bryer. Katherine D. Mackillop (Norton Rose Fulbright US LLP) for ConocoPhillips, Co.

Companies: ConocoPhillips, Co.

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