Ruth Carter, et al v. Matrixx Initiatives, Inc., et al

Filing

Case: 09-31134

Document: 00511196661

Page: 1

Date Filed: 08/06/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 6, 2010 N o . 09-31134 Lyle W. Cayce Clerk

R U T H CARTER; JAMES CARTER, P la in t if f s - A p p e lla n t s v. M A T R I X X INITIATIVES, INC.; ZICAM, L.L.C., D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court for the Middle District of Louisiana U S D C No. 3:08-cv-00216

B e fo r e SMITH, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* P la in t iffs -A p p e lle n t s Ruth and James Carter (collectively, the "Carters" o r "Carter") appeal the district court's grant of summary judgment dismissing t h e ir products liability and loss of consortium claims. We affirm. I . FACTS AND PROCEEDINGS T h e facts of this case are undisputed. On February 23, 2007, Ruth Carter u s e d Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately e x p e r ie n c e d "immediate," "blind[ing]," and "excruciating" pain. The next day,
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-31134

Document: 00511196661

Page: 2

Date Filed: 08/06/2010

No. 09-31134 C a r t e r realized that she had lost her senses of smell and taste and, because of t h e continuing pain, did not report to work. She told her husband and her e m p lo y e e s that she either had "a heck of an allergy"or "the Zicam" had burned h e r nasal passages. Her loss of sensory ability and pain continued until she saw h e r primary care physician on March 2, 2007. During the appointment she r e p o r t e d her suspicion that the Zicam was the cause of her discomfort; her p h y s ic ia n did not confirm or deny this, except to note he was unaware that Z ic a m caused such problems, but he did suggest that Carter's injury may have b e e n caused by her allergies. Carter's symptoms did not improve, so she was r e fe r r e d to a radiography center to image her nasal passages. During the im a g in g on May 7, 2007, Carter told a radiography technician about her s u s p ic io n s regarding Zicam, to which the technician responded that she had r e c e iv e d an e-mail communication warning "to be on the lookout for this problem w it h Zicam." T h e Carters filed the instant suit on February 29, 2008 in the 21st Judicial D is t r ic t Court, Parish of Livingston, Louisiana, against Defendants-Appellees M a t r ix x Initiatives, Inc. and Zicam, L.L.C. (collectively, "Matrixx") alleging d a m a g e s for various claims, including personal injury and loss of consortium r e s u lt in g from Ruth Carter's use of the Zicam homeopathic nasal remedy. After t h e Carter's action was removed to federal district court on diversity grounds a n d all claims other than those allowed under the Louisiana Products Liability A c t were dismissed, Matrixx filed a motion for summary judgment seeking d is m is s a l of the Carters' remaining claims. Matrixx argued that because the a c t io n was filed six days after the expiration of Louisiana's one-year prescriptive p e r io d for products liability suits, it should be dismissed. The district court g r a n t e d summary judgment on this ground, and the Carters timely appealed.

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Case: 09-31134

Document: 00511196661

Page: 3

Date Filed: 08/06/2010

No. 09-31134 I I . ANALYSIS W e apply a de novo standard of review when determining whether a d is t r ic t court erred in granting summary judgment.1 Under Federal Rule of

C iv il Procedure 56(c)(2), summary judgment "should be rendered if the p le a d in g s , the discovery and disclosure materials on file, and any affidavits show t h a t there is no genuine issue as to any material fact and that the movant is e n tit le d to judgment as a matter of law." T h e Louisiana Products Liability Act2 "establishes the exclusive theories o f liability for manufacturers for damage caused by their products."3 LA. CIV. C ODE art. 3492 establishes a one-year prescriptive period for products liability c la im s : D e lic t u a l actions are subject to a liberative prescription of one year. This p r e s c r ip t io n commences to run from the day injury or damage is s u s t a in e d . It does not run against minors or interdicts in actions involving p e r m a n e n t disability and brought pursuant to the Louisiana Products L ia b ilit y Act or state law governing product liability actions in effect at the t im e of the injury or damage. B y filing the complaint on February 29, 2008 ­ six days after the one-year a n n iv e r s a r y of Ruth Carter's sustaining her initial injury ­ the Carters' suit falls o u ts id e of the prescriptive period. The Carters nevertheless insist that the d o c t r in e of contra non valentem agere nulla currit praescriptio applies. Under t h a t doctrine, "prescription does not commence running until the facts necessary t o state a cause of action are known or reasonably knowable to the plaintiff." 4 " I n such cases of [medical causation], even if a plaintiff is aware that an

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LaBarge Pipe & Steel Co. v. First Bank, 550 F.3d 442, 449 (5th Cir. 2008). LA. REV.STAT. § 9:2800.51 et seq. Id. at § 9:2800.52. Sharkey v. Sterling Drug, Inc., 600 So. 2d 701, 713 (La. App. Ct. 1st Cir. 1992).

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Case: 09-31134

Document: 00511196661

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Date Filed: 08/06/2010

No. 09-31134 u n d e s ir a b le condition developed at some point in time after medical treatment, p r e s c r ip t io n does not run until the plaintiff has actual or constructive notice of t h e causal connection between the medical treatment and the subsequent c o n d itio n ."5 "Damage is considered to have been sustained, within the meaning o f the article, only when it has manifested itself with sufficient certainty to s u p p o r t accrual of a cause of action."6 Furthermore: p r e s c r ip t io n will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used t o force a person who believes he may have been damaged in some way to r u s h to file suit against all parties who might have caused that damage. O n the other hand, a plaintiff will be responsible to seek out those whom h e believes may be responsible for a specific injury. When prescription b e g in s to run depends on the reasonableness of a plaintiff's action or in a c t io n .7 W h e n a plaintiff alleges the affirmative defense of contra non valentem, the d e fe n d a n t must show "that the plaintiff had actual or constructive notice of the t o r t io u s act, the resulting injury, and the causal connection between the two or t h a t the plaintiff's lack of such knowledge was willful, negligent or u n r e a s o n a b le ." 8 I t is apparent that Carter first sustained the injury that allegedly resulted fr o m her use of Zicam on February 23, 2007 and that she had actual knowledge o f pain and sensory loss on that same day. From the very outset, Carter

s u s p e c t e d and attributed her injury to Zicam, and she never wavered in that b e lie f. That she did not possess an affirmative and conclusive medical opinion s u p p o r t in g this belief on that day, or even a week later when she consulted her

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Id. Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993). Jordan v. Employee Transfer Corp., 509 So. 2d 420, 423 (La. 1987) (emphasis added). Sharkey, 600 So. 2d at 713-14.

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Case: 09-31134

Document: 00511196661

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Date Filed: 08/06/2010

No. 09-31134 p h y s ic ia n , is of no moment. On February 24 at the latest, Carter indisputably h a d both the belief that Zicam was the cause of her injuries and a reasonable b a s is for seeking to hold the manufacturer responsible. It is true that her doctor in it ia lly expressed ambivalence about whether it was the Zicam or Carter's a lle r g ie s that were causing her injury and that she did not receive any kind of c a u s e -a n d -e ffe c t corroboration from a third party until she heard about the t e c h n ic ia n 's email on May 7. It is not the rule in Louisiana, however, that the p r e s c r ip t iv e period does not begin until conclusive, dispositive proof of a causal c o n n e c t io n between the suspected injury and the putative tortfeasor is e s t a b lis h e d . 9 Rather, actual or constructive knowledge 1 0 of the "tortious act, the r e s u lt in g injury, and the causal connection between the two"1 1 is the benchmark fo r beginning the prescriptive period. Carter experienced "excruciating" pain im m e d ia te ly after using Zicam on February 23, 2007, and evinced a firm, u n w a v e r in g , and objectively reasonable belief no later than the next day, F e b r u a r y 24, that Zicam was the cause of her suffering. Therefore, the

p r e s c r ip t iv e period began running on February 23 (February 24 at the latest). Thus, the Carters' filing was at least five days late. T h e judgment of the district court is, in all respects, AFFIRMED.

See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 299-300 (5th Cir. 1999) ("The commencement of prescription does not necessarily wait for the pronouncement of a victim's physician or of an expert.") (citing Hunter v. Sisters of Charity of the Incarnate Word, 236 So. 2d 565, 568 (La. App. 1st Cir. 1970)).
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See id. Sharkey, 600 So. 2d at 714.

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