Brown v. R.J. Reynolds Tobacco Co.

• Decision Date: 05 May 1995
• Docket Number: No. 94-30263,94-30263
• Citation: 52 F.3d 524
• Parties: Prod.Liab.Rep. (CCH) P 14,222 Carl O. BROWN, Jr., Plaintiff-Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants, R.J. Reynolds Tobacco Company, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 524

52 F.3d 524

Prod.Liab.Rep. (CCH) P 14,222

Carl O. BROWN, Jr., Plaintiff-Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants R.J. Reynolds Tobacco Company, et al., Defendants-Appellees.

No. 94-30263.

United States Court of Appeals Fifth Circuit.

May 5, 1995.

Rehearing Denied June 9, 1995.

James L. Piker, George R. Covert, Baton Rouge, LA, for Brown.

Jennifer Hahn, Andrews Publications, Westtown, PA, for interested party.

Charles L. Chassaignac, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, Robert C. Weber, Theodore M. Grossman, Jones, Day, Reavis & Pogue, Cleveland, OH, for R.J. Reynolds Tobacco Co.

Steven W. Copley, John M. McCollam, Gordon, Arata, McCollam & Duplantis, Charles F. Gay, Jr., Adams & Reese, New Orleans, LA, Gary R. Long, James A. Wilson, Shook, Hardy & Bacon, Kansas City, MO, for Lorrilard, Inc. & Phillip Tobacco Co.

John Jerome Weigel, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, James V. Kearney, Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, for Liggett Group, Inc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, SMITH and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Carl Brown filed this products liability suit against various cigarette manufacturers, claiming they were responsible for his throat cancer. The district court granted summary judgment in favor of the cigarette manufacturers and Brown appeals. This case turns on whether its merit is to be measured by the Louisiana Products Liability Act effective September 1, 1988, or Louisiana tort law in place before that date. We find that the district court properly applied Louisiana's Products Liability Act to Brown's claim and affirm the summary judgment.

I.

In 1991, Brown was diagnosed with and treated for throat cancer. Brown, alleging that the cancer resulted from his forty-five year smoking habit, filed suit in state court against numerous cigarette manufacturers. He claimed recovery under four theories: unreasonably dangerous per se; ultrahazardous activity; misrepresentation, concealment, and conspiracy; and design defect. The cigarette companies removed the action to federal court on diversity grounds. On November 3, 1993, the district court granted partial summary judgment against Brown on his first three claims. On April 13, 1994, the court granted summary judgment against Brown on his design defect claim. Brown filed this appeal.

II.

A.

In 1986, the Louisiana Supreme Court concluded that a manufacturer could be held strictly liable for injuries caused by a product found to be "unreasonably dangerous per se." Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 113 (La.1986). Soon after the Halphen decision, the Louisiana legislature passed the Louisiana Products Liability Act, which became effective on September 1, 1988. 1988 La.Acts No. 64 (codified at La.Rev.Stat.Ann. Secs. 9:2800.51-59 (West 1991)). The LPLA "establishes the exclusive theories of liability for manufacturers for damage caused by their products." Id. Sec. 9:2800.52. The unreasonably dangerous per se theory is not among those recognized by the LPLA, see Gilboy v. American Tobacco Co., 582 So.2d 1263, 1264 (La.1991); nor are any of Brown's other theories, except design defect. ¹ One of the legislature's primary purposes in enacting the LPLA was to overrule Halphen. See Senate Comm. on Judiciary A, Minutes of Meeting of May 17, 1988, at 3-5; see generally John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La.L.Rev. 565 (1989) [hereinafter A Primer ]. ²

The issue in this case is whether the law applicable to Brown's action is the law in effect when Brown was significantly exposed to tobacco products or the law in effect when Brown's disease manifested itself--when the cause of action accrued. Relying on the exposure theory, Brown argues that his case is controlled by pre-LPLA law. The district court, however, found that because Brown's first evidence of injury appeared in 1991, the lawsuit was controlled by the LPLA.

The Louisiana Supreme Court has ruled that the LPLA does not apply retroactively because it is "substantive." See Gilboy, 582 So.2d at 1264. As a general rule, "the determinative point in time separating prospective from retroactive application of an enactment is the date the cause of action accrues." Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992) (Cole I ). The LPLA contains no language suggesting that the exposure rule or any other rule, other than the general rule, applies. As such, we conclude that the LPLA applies only to those causes of action that accrued on or after September 1, 1988. Kennedy, A Primer, supra, at 624; see also William E. Crawford & David J. Shelby II, Review of Recent Developments: 1991-1992 Torts, 53 La.L.Rev. 1011, 1014-15 (1993).

Brown could recover under pre-LPLA law if there were evidence that his cause of action accrued before September 1, 1988. A cause of action accrues when a plaintiff may bring a lawsuit. Cole I, 599 So.2d at 1063 n. 15. In a negligence action, for instance, the claimant must be able to allege fault, causation, and damages. Id. " 'Louisiana is generous in its conception of damages, the slightest being sufficient to support an action.' " Id. (quoting 12 Ferdinand F. Stone, Louisiana Civil Law Treatise: Tort Doctrine Sec. 12 (1977)).

Determining when a cause of action accrues has been the subject of numerous decisions, especially in the area of prescription. Under Louisiana Civil Code article 3492, delictual actions are subject to a one year liberative prescription, which runs "from the day injury or damage is sustained." "Damage is considered to have been sustained, within the meaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action." Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La.1993) (Cole II ); see also Jones v. Texas & P. Ry. Co., 51 So. 582, 583 (La.1910). Louisiana courts have recognized that a claimant may not become aware of damages suffered as a result of latent diseases until many years after the damage has been sustained. See, e.g., Owens v. Martin, 449 So.2d 448, 451 n. 4 (La.1984). In these cases, prescription will begin to run when the damage is sustained. However, contra non valentem will suspend the running of the prescriptive period until the claimant knows or should reasonably know that he has suffered damages. See id.; see also Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992); Corsey v. State Dep't of Corrections, 375 So.2d 1319, 1322 (La.1979). With a latent disease, this is usually upon diagnosis. See Owens, 449 So.2d at 451 n. 4.

Brown's symptoms appeared in early 1991. Summary judgment was proper because Brown produced no evidence that he suffered damages or bodily injury, latent or otherwise, before September 1, 1988. Cf. Cole I, 599 So.2d at 1084 (Dennis, J., concurring) ("The medical evidence in the present case established that the plaintiffs began to sustain tissue damage shortly after the initial inhalation of asbestos fibers; and that plaintiffs sustained distinct bodily injury in each year of their employment.... Because the plaintiff workers sustained actual harm to their lungs prior to October 1, 1976, their causes of action ... accrued prior to the effective date of [the statute]."). The only evidence that Brown produced pertaining to his injury was an affidavit from Dr. Joel Nitzkin, an expert in the epidemiology of cancer. Dr. Nitzkin stated that there "can be" a ten-year latency period "between a person's exposure to cigarette smoke and the subsequent development of laryngeal cancer." Dr. Nitzkin did not interview Brown, examine Brown, or review Brown's medical records. He did not discuss Brown's case or how far Brown's particular cancer had advanced when it was diagnosed and treated. In short, the affidavit is not sufficient to show that Brown suffered damages before the effective date of the LPLA.

B.

Relying on the Louisiana Supreme Court's reasoning in Cole I, Brown argues that accrual analysis is inapplicable. In Cole I, an asbestos case, one of the main issues was how to allocate fault among solidarily liable defendants. The answer turned on whether the applicable law was the Louisiana Comparative Fault Law, Act 431 of 1979, which became effective on August 1, 1980, or pre-Act 431 law.

The court began by stating that "[i]n the absence of contrary legislative expression, substantive laws apply prospectively only." Id. at 1063 (quoting La.Civ.Code Ann. art. 6 (West 1993)). Article 6 required the court to conduct a two-part inquiry: "First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, our inquiry is at an end. If the legislature did not, we must classify the enactment as substantive, procedural or interpretive." Cole I, 599 So.2d at 1063. The court of appeal had concluded that the Comparative Fault Law was substantive and, therefore, the determinative point was when the cause of action accrued. It applied the old law, concluding that the claim accrued before the Comparative Fault Law became effective.

The Louisiana Supreme Court came to the same conclusion, but by a different route. It found determinative the statute's "expressed legislative intent." Id. at 1064. Section 4 of Act 431 stated: "The provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective." Id. (emphasis added and footnote omitted). The court rejected the suggestion that it read the term "events" as "encompassing the requisites for asserting a cause of action, which are synonymous with the requisites for a cause of action accruing." Id. at 1065. Instead, the court interpreted the term "events" as "the repeated tortious exposures resulting in...