In one state appellate case, the plaintiffs could recover when "the record establishe[d] that all eight of the plaintiffs sustained a lifetime exposure to the various radioactive isotopes in excess of 10 rems and that there [was] no doubt according to the medical experts that a dose in excess of 10 rems results in a risk of developing cancer," and plaintiffs testified to specific mental and physical distress such as rashes and high blood pressure. Lester v. Exxon Mobil Corp., 2012-1709, pp. 11-13 (La. App. 4 Cir. 6/26/13), 120 So. 3d 767, 776-77. The district court, relying on a now-overturned Louisiana appellate decision, summarized some of those circumstances as "[p]roximity to the event, witnessing injury to others, and contemporaneous reports from reliable sources that danger is real."

We also note that Louisiana appellate courts have affirmed jury verdicts much larger than $75,000 to pipeyard workers who claimed damages from exposure to the same type of radioactive materials. See generally Oleskowicz v. Exxon Mobil Corp., 129 So.3d 1272 (La.Ct.App.2013) (affirming award of $680,000 in comparative-fault-adjusted compensatory damages to a single plaintiff who contracted prostate cancer), rev'd in part on other grounds, 156 So.3d 645 (La.2014); Lester v. Exxon Mobile Corp., 120 So.3d 767 (La.Ct.App.2013) (affirming damages awards ranging from $100,000 to $1.1 million to plaintiffs who alleged fear and increased risk of, but not actual diagnoses of, cancer). We may “look to similar cases to assist in determining the amount in controversy.”

Additionally, in Lester v. Exxon Mobil Corporation, the court found that instances of a manifest injury was not required to recover for fear of cancer when “the record establishes that all eight of the plaintiffs sustained a lifetime exposure to the various radioactive isotopes in excess of 10 rems and that there is no doubt according to the medical experts that a dose in excess of 10 rems results in a risk of developing cancer.” 120 So.3d 767, 776 (La.App. 4 Cir. 2013). In that case, the plaintiffs testified that they had daily concerns and worries about the future of their health and the fact that they were at a higher risk of having cancer.

Under Louisiana law, a party is not entitled to recover prejudgment interest on penalty awards. See, e.g., Lester v. Exxon Mobil Corp., 120 So.3d 767, 784-85 (La.App. 4 Cir. 2013) (a plaintiff is only entitled to legal interest on punitive damages from the date of judgment). Instead, interest on penalty awards - like the treble damages awarded here - is “calculated only from the date

. . . [t]he amount in controversy for the class damages would be in excess of $7.5 million[.]”).Id. ¶¶ 21-24 (citing Bonnette v. Conoco, Inc. 837 So.2d 1219 (La. 01/28/2003); Lester v. Exxon Mobil Corp., 120 So.3d 767 (La.App. 4 Cir. 06/26/2013); Lemaire v. CIBA-GEIGY Corp., 1999 1809 (La.App. 1 Cir. 6/22/01), 793 So.2d 336).Id. ¶ 23 (citing Lasha v. Olin Corp., 91-459 (La.App. 3 Cir. 3/2/94), 634 So.2d 1354; Sandbom v. BASF Wyandotte Corp., 95-0335 (La.App. 1 Cir. 4/30/96), 674 So.2d 349; Haydel v. Hercules Transport, Inc., 94-1246 (La.App. 1 Cir. 4/7/95), 654 So.2d 418).

Doc. 1, att. 1, p. 8-9. Plaintiff has citied Bourgeois v. A.P. Green Indus., Inc., 716 So. 2d 355 (La. 1998) and Lester v. Exxon Mobil Corp., 120 So. 3d 767 (La. Ct. App. 2013) in an attempt to suggest that Louisiana law explicitly provides that medical monitoring claims are recoverable as an item of compensable damages. However, neither court in those cases was confronted with the issue we face here, i.e. how to classify the types of remedies sought.

Doc. 1, att. 1, p. 8-10. Plaintiffs have citied Bourgeois v. A.P. Green Indus., Inc., 716 So. 2d 355 (La. 1998) and Lester v. Exxon Mobil Corp., 120 So. 3d 767 (La. Ct. App. 2013) in an attempt to suggest that Louisiana law explicitly provides that medical monitoring claims are recoverable as an item of compensable damages. However, neither court in those cases was confronted with the issue we face here, i.e. how to classify the types of remedies sought.

See Rec. Doc. 132. Specifically, Exxon now argues that, by virtue of the punitive damages awarded in Grefer v. Alpha Technical, 965 So. 2d 511 (La. App. 4 Cir. 8/08/07)(Grefer II) and Lester v. Exxon Mobil Corp., 120 So.3d 767, 770 (La. App. 4 Cir. 6/26/13), these claims should be dismissed, on federal constitutional due process principles, because it has already been punished at least nine times for the same conduct of which Plaintiffs complain. Albeit on different grounds, the Louisiana Supreme Court has granted a writ application relative to a tenth award, in Oleszkowicz v. Exxon Mobil Corp., 129 So.3d 1272 (La. App. 5 Cir. 12/19/13), writ granted, 138 So.3d 1234, 2014-0256 (La. 5/2/14).

"A claim for negligent infliction of genuine and serious emotional distress is a viable claim in Louisiana." Brown v. City of Monroe, 135 So.3d 792, 796 (La.App. 2 Cir. 2014)(citing Moresi v. State Dept. of Wildlife and Fisheries, 567 So.2d 1081 (La. 1990)); see also Dennis v. Wiley, 22 So.3d 189,194 (La.App. 1 Cir. 2009); Lester v. Exxon Mobil Corp., 120 So.3d 767, 774 (La.App. 4 Cir. 2013); Page v. Benson, 101 So.3d 545, 554-55 (La.App. 3 Cir. 2012). "Recovery for mental anguish or emotional distress is based on La. C.C. art. 2315, which provides in part that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."

Rec. Doc. 11 at 4-5. These cases are not particularly helpful to plaintiffs' cause. For instance, plaintiffs cite a $50,000 damage award based on fear of developing cancer in Lester v. Exxon Mobil Corp., 2010-CA-1709 (La. App. 4 Cir. 6/26/13); 120 So.3d 767. This amount does not include certain plaintiffs' medical expenses, which when added to the $50,000 tally more than $80,000 in damages for those plaintiffs. Id. at 772-73.