ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON.
For Applicant: Glen Marion Pilie, Martin A. Stern, Raymond Peter Ward, Valeria Munsterman Sercovich, ADAMS AND REESE, LLP.
For Respondent: Timothy John Falcon, Jeremiah Alexander Mark Sprague, Juan Cruz Obregon, FALCON LAW FIRM; Frank Marion Buck, Jr., FRANK M. BUCK JR., PLC.
[2014-0256 La. 1] Guidry, Justice.
We granted the writ application to determine whether the plaintiff's claim for punitive and exemplary damages is barred by res judicata and, if so, whether " exceptional circumstances" exist to justify not applying res judicata to bar the claim, as set forth in La. Rev. Stat. 13:4232(A). Although the court of appeal cited " exceptional circumstances" to justify relief fro the res judicata effect of the jury's verdict on the issue of punitive damages, we find no such " exceptional circumstances" exist under the facts of this case. For the reasons set forth below, we conclude the court of appeal erred in affirming the ruling of the trial court denying the motion for partial summary judgment.
FACTS AND PROCEDURAL HISTORY
For purposes of the issue presented in this opinion, the facts are largely undisputed. In 2002, Warren Lester and hundreds of other plaintiffs filed a lawsuit against Exxon Mobil Corp. (" Exxon" ) and others in Civil District Court for the Parish of Orleans, seeking personal injury damages allegedly caused by exposure to naturally occurring radioactive material (" NORM" ) and other hazardous materials at various Louisiana pipeyards operated by Intracoastal Tubular Services, Inc. [2014-0256 La. 2] (" ITCO" ). A flight of several plaintiffs, including John Oleszkowicz - the plaintiff in the instant suit - was severed and transferred to the 24th Judicial District Court, at which point the only remaining defendants were ITCO and Exxon. Lester v. Exxon Mobil Corp., No. 630-402, 24th J.D.C., Div. " G" (hereinafter referred to as " Lester " ).
The Lester jury considered each of the plaintiffs' compensatory claims for increased risk of cancer, as well as a claim for exemplary damages pursuant to former La. Civ. Code art. 2315.3. During the course of trial, the district court instructed the jurors that plaintiffs could bring a " new lawsuit" in the event they actually contracted cancer.
Following the trial, the jury returned a verdict in favor of the plaintiffs and awarded damages for the increased risk of cancer. Mr. Oleszkowicz was personally awarded $115,000 in compensatory damages. Significantly, the jury did not award exemplary damages to the plaintiffs for increased risk of cancer, based on a finding that Exxon did not engage in wanton or reckless conduct in the storage, handling, or transportation of hazardous or toxic substances. The court of appeal affirmed the judgment on appeal, and this court denied writs. Lester v. Exxon Mobil Corp., 10-0743 (La.App. 5 Cir. 5/31/12), 102 So.3d 148, writ denied, 12-2202 (La. 4/19/13), 111 So.3d 1028.
Several months after the Lester verdict, Mr. Oleszkowicz was diagnosed with prostate cancer. As a result, he filed the instant suit against Exxon and others, alleging his cancer stemmed from the same NORM exposure at ITCO's pipeyard. [2014-0256 La. 3] Mr. Oleszkowicz sought compensatory and exemplary damages based on Exxon's failure to warn of a known danger and strict liability for engaging in ultra-hazardous activity.
During pre-trial proceedings, Exxon filed a motion for partial summary judgment, seeking to dismiss Mr. Oleszkowicz's claim for exemplary damages on the basis of res judicata. Exxon argued the Lester jury specifically found that Exxon did not engage in wanton or reckless misconduct under former La. Civ. Code art. 2315.3. The district court denied Exxon's motion for partial summary judgment based on res judicata, stating Mr. Oleszkowicz's current suit " is a separate claim, it's not the same claim as was litigated in the first trial, even though you have the same parties . . . ."
At the conclusion of a trial on the merits, the jury apportioned Exxon with 80% liability and found Mr. Oleszkowicz was 20% liable upon concluding his smoking had contributed to his condition. The jury awarded Mr. ...