Branch v. Willis-Knighton Medical Center

• Decision Date: 28 April 1994
• Citation: 636 So.2d 211
• Parties: 92-3086 La
• Court: Louisiana Supreme Court

Page 211

636 So.2d 211

92-3086 La. 4/28/94

Jerry Wayne BRANCH, et ux. v. WILLIS-KNIGHTON MEDICAL CENTER.

No. 92-CC-3086.

Supreme Court of Louisiana.

April 28, 1994.

John L. Hammons, Nelson, Hammons & White, Shreveport, for applicant.

Milton Caldwell Roberts, Jr., Mayer, Smith & Roberts, Shreveport, for respondent.

[92-3086 La. 1] DENNIS, Justice. ^*

This is a suit by Jerry Wayne Branch and his wife seeking strict tort products liability recovery from Willis-Knighton Medical Center ("WKMC") for damage sustained by the couple because Branch contracted hepatitis from contaminated blood sold to him in 1976 by WKMC. The only question at this stage of the case is whether the suit was timely brought because it was filed less than one year after the Branches' discovery of the cause of action in 1989. The answer depends on whether the strict tort products liability claim asserted by the Branches' petition is subject to (1) the special statute of limitations that bars actions for medical malpractice against physicians, hospitals and other health care providers not filed "within a period of three years from the date of the alleged act, omission, or neglect." La.R.S. 9:5628; or (2) the liberative prescription of one year generally applicable to all delictual actions, which does not commence to run until the victim knows or should know of the damage, the delict and the relationship between them. La.Civ.Code. arts. 3536 and 3537 (1870). See La.Civ.Code art. 3492 (1984), Revision Comments--1983; Lott v. Haley, 370 So.2d 521 (La.1979); R.J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir.1963).

[92-3086 La. 2] We conclude that the plaintiffs' suit was filed timely because their strict tort products liability action is subject to the general one year prescription applicable to all delictual actions, not the special prescription rule applicable to medical malpractice actions. Accordingly, we reverse the court of appeal judgment applying the special rule and reinstate the judgment of the trial court overruling the defendant's exception of prescription.

The facts alleged by the plaintiffs' petition are as follows. Jerry Wayne Branch underwent a surgical fusion of his lumbar spine at Willis-Knighton Medical Center ("WKMC") while he was hospitalized there from July 19, 1976 through August 4, 1976. Branch was transfused with one unit of blood sold by WKMC during his hospitalization. Branch has received no other blood transfusions. Over thirteen years later, on September 6, 1989, Branch submitted to a liver biopsy, and subsequently he went through other diagnostic studies. From the results of these tests, Branch discovered that he was infected with hepatitis C that he had contracted from the blood sold to him by WKMC in 1976.

Branch and his wife filed this suit against WKMC on September 5, 1990 alleging that WKMC is liable for the damage caused them by the contaminated blood that WKMC sold to Branch in 1976. WKMC filed an exception of prescription. The trial court overruled the exception, concluding that, under the general rule of liberative prescription applicable to plaintiffs' products or strict tort liability action, the running of prescription was suspended under the doctrine of contra non valentem until the plaintiffs discovered the existence of their claim on September 6, 1989. Therefore, the trial court decided, the plaintiffs' suit was timely because one year did not elapse from the time of the plaintiffs' discovery of their claim and the filing of their petition on [92-3086 La. 3] September 5, 1990.

The court of appeal granted WKMC's application for a writ and reversed. Branch v. Willis-Knighton Medical Center, 607 So.2d 883 (La.App. 2d Cir.1992). The court reasoned that the plaintiffs' strict tort products liability action was barred by the three year over-all limitation period of the special statute of limitations applicable to actions for medical malpractice. We granted certiorari to consider whether the plaintiffs' strict tort products liability action is subject to the general liberative prescription rule for delictual actions or the special statute of limitation applicable to actions for medical malpractice.

1.

The manufacturer's liability development in the United States has heavily influenced products liability law in Louisiana. American products liability is civil liability for damage caused by a dangerous or defective product. There are several theories upon which products liability may be based, including negligence, breach of warranty, misrepresentation or strict tort liability. The courts in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (Cal.1963) and following cases recognized and applied strict products liability in tort because of serious obstacles to a victim's recovery in product injury cases under the other theories. Jurists and scholars advanced a variety of policy justifications for strict tort products liability, including (1) shifting the loss from consumers to manufacturers, who through pricing and insurance are better able to bear the loss incurred by injury from defective products; (2) providing manufacturers with an incentive to market safer products; and (3) relieving the plaintiff of the burden of proving specific acts or omissions of negligence. These policies led to the codification and [92-3086 La. 4] acceptance of Section 402 A of the Restatement (Second) of Torts by the American Law Institute in 1964. That provision, in principal part, provides: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property...." The Law Institute rejected negligence and the contract-warranty theory of recovery in favor of strict tort liability. Currently, some form of this type of strict products liability in tort has been adopted in nearly every state. Prosser & Keeton, Torts Fifth Ed. § 98 (Supp.1988); See, generally, 5 Harper, James & Gray, The Law of Torts, § 28.7 (2d ed. 1986); Robertson, Powers & Anderson, Cases and Materials on Torts, 624-632 (1989); Comment, Basic Principles of Manufacturer's Liability under the Civil Code of Quebec, Conferences sur le Nouveau Code Civil Du Quebec, 403-406 (1991).

This court embraced the strict products liability in tort theory reflected in Restatement (Second), § 402 A in Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971). Although Justice Tate, the author of the opinion, did not cite the Restatement (Second) or directly acknowledge that the court was adopting that theory, the rule he announced was very similar:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden [92-3086 La. 5] of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff's injuries were caused by reason of the defect. Id., 250 So.2d at 755.

In fact, the rule may be traced almost verbatim to an earlier opinion by Justice Tate, written while a judge on an intermediate appellate court, in which he cited § 402 A as his principal source. Meche v. Farmers Drier & Storage Co., 193 So.2d 807 (La.App. 3d Cir.1967). See generally, Comment, Basic Principles of Manufacturer's Liability under the Civil Code of Quebec, Conferences sur le Nouveau Code Civil Du Quebec, 406-408 (1991).

Subsequently, in DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981), this court held that under the strict tort product liability theory a hospital blood bank may be held strictly liable in tort when the blood it sells creates an unreasonable risk of harm to others, e.g., when that blood is contaminated with hepatitis virus, and, in fact, results in injury or disease to a human being. In doing so, the court expressly rejected the blood bank's defense based on the Civil Code Article 1764(A)(2) provision that the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood. The court recognized that defenses specially designed for warranty cases may not be invoked to defeat a strict products liability in tort action. One of the main objects in the development of the strict tort liability theory and § 402 A was to overcome the barriers to recovery inherent in negligence, contract-warranty and other theories.

In 1981, after the DeBattista decision, the legislature added Civil Code article 2322.1 and R.S. 9:2797 granting [92-3086 La. 6] physicians, hospitals and blood banks immunity from strict tort products liability for screening, processing, transfusion or medical use of blood and blood components resulting in transmission of viral disease undetectable by appropriate medical and scientific laboratory tests. The claims of plaintiffs who sustained such injuries, infections or diseases prior to the effective dates of those statutes, however, are not barred by the new immunities or defenses provided by that legislation. Those plaintiffs have acquired causes of action in strict tort products liability as vested property rights protected by the guarantee of due process; the statutes enacted after the acquisition of such vested property rights cannot be retroactively applied so as to divest the plaintiffs of their vested rights in their causes of action. Faucheaux v. Alton Ochsner Medical Foundation Hosp., 470 So.2d 878 (La.1985) and authorities cited therein.

In the present case, plaintiffs alleged (a) that the blood which Branch received by transfusion was defective, i.e., unreasonably dangerous to normal use, (b) that it was a product which had been sold...