NEW ORLEANS — A unanimous Fifth Circuit U.S. Court of Appeals panel on June 30 overturned a $1.5 million wrongful death compensatory damages award for the survivors of a woman killed by breast cancer because the trial judge erred in finding that the claim was not barred by the statute of limitations (Kenesha Barnes, et al v. Koppers Inc., et al., No. 06-60708 [consolidated], 5th Cir.; 2008 U.S. App. LEXIS 13771).
Kenesha Barnes sued Koppers Inc. and Beazer East Inc. in the U.S. District Court for the Northern District of Mississippi for the wrongful death of her mother, Sherrie Barnes, who lived adjacent to a wood treatment plant owned and operated by Koppers and Beazer. Kenesha Barnes alleged that exposure to dioxins and polycyclic aromatic hydrocarbons caused Sherrie Barnes to develop breast cancer.
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Conspiracy and negligence causes of action were tried to a jury, which returned a verdict for Barnes on May 4, 2006, in the compensatory damages phase of the litigation. Judge W. Allen Pepper Jr. denied motions for judgment notwithstanding the verdict or for a new trial in July 2006. Koppers and Beazer East appealed.
Mississippi Code Annotated Section 15-1-49 prescribes the three-year statute of limitations for most Mississippi tort claims, Chief Judge Edith H. Jones wrote for the panel.
“Beazer and Koppers contend the statute of limitations commenced when Barnes’s mother was diagnosed with breast cancer, and the claims are barred,” the panel said. “Barnes contends, however that the suit was timely filed within a year of the date that her attorney’s investigation first uncovered the alleged link between the Plant emissions and her mother’s cancer.”
“We conclude that the district court erred in adopting Barnes’s statutory interpretation,” the panel said. “The firmest rebuke to this interpretation is the language of the statute itself, which refers only to discovery of the injury, not to discovery of its cause. The latent discovery statute differs markedly from Mississippi’s limitations provision governing medical malpractice suits, which commences only when the negligent act ‘shall or with reasonable diligence might have been first known or discovered.’”
The Mississippi Supreme Court rejected the discovery theory proposed by Barnes in dicta found in Owens- Illinois Inc. v. Edwards (573 So.2d 704, Miss. 1990), the panel said. None of the authorities cited by Barnes in support of her theory of discovery is inconsistent with the Edwards dicta, the panel said.
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