RJ Reynolds Tobacco Company v. Hudson

• Citation: 314 F.2d 776
• Decision Date: 14 March 1963
• Docket Number: No. 18315.,18315.
• Parties: R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. Elbert Berry HUDSON, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

314 F.2d 776 (1963)

R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. Elbert Berry HUDSON, Appellee.

No. 18315.

United States Court of Appeals Fifth Circuit.

March 14, 1963.

Harry McCall, Jr., Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, La., for appellant.

H. Alva Brumfield, Baton Rouge, La., Melvin Belli, San Francisco, Cal., for appellee.

Before HUTCHESON, JONES, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The plaintiff, Elbert Hudson, sued R. J. Reynolds Tobacco Company for $250,000 damages, alleging that he had contracted cancer of the larynx and vocal cords "caused, precipitated, aggravated or contributed to" by the use of the defendant's tobacco products. Reynolds manufactures Prince Albert smoking tobacco and Camel cigarettes. The defendant filed a motion for summary judgment of dismissal on the ground that the undisputed facts showed that the action was barred by prescription of one year under Articles 3536 and 3537 of the Louisiana Civil Code. The district court denied the motion for summary judgment, but issued the certificate necessary for an appeal under the Interlocutory Appeals Act, 28 U.S.C.A. § 1292(b). The defendant appeals from the order denying the motion.

The appeal presents serious questions of Louisiana law. If the contentions of the tobacco company are correct, the case should be dismissed and judgment granted to the defendant as a matter of law. "It is obvious that such a denial may settle a great deal." Federal Glass Co. v. Loshin, 2 Cir., 1954, 217 F.2d 936. In the circumstances, we consider that an appeal was properly taken. United States v. Woodbury, 9 Cir., 1959, 263 F.2d 784; In re Heddendorf, 1 Cir., 1959, 263 F.2d 887; Oskoian v. Canuel, 1 Cir., 1959, 264 F.2d 591; Wright, Interlocutory Appeals Act, 23 F.R.D. 199 (1959).

Without in any way passing on the merits, we hold that the district court correctly dismissed the defendant's motion for a summary judgment.

I.

For purposes of this appeal, the following facts are admitted or established.

Almost every day from 1924 to 1957 Elbert Hudson smoked a tin of Prince Albert and two packages of Camel cigarettes. For at least two years before he brought suit, he had trouble breathing. August 23, 1957, Hudson had such acute respiratory distress that he was taken to a hospital in Bogalusa, Louisiana. He was unconscious and just able to breathe. The admission record shows that the provisional diagnosis was "neoplasm cancer of bronchus." He was transferred almost immediately to the New Orleans Charity Hospital. The Charity Hospital admission record contains the notations: "Think this is probably cancer of the larynx. High respiratory obstruction lesion. Indirect laryngoscopy reveals acute epiglossitis, acute laryngitis and fungating lesion of right vocal cord." Because of his difficulty in breathing, a surgeon at Charity Hospital performed an emergency tracheotomy. A laryngectomy biopsy revealed a large, fungating tumor of the larynx and epiglottis. September 5, 1957, a total laryngectomy was performed on Hudson. The tumor was a cancer of the larynx and vocal cords.

August 21, 1958, two days short of one year from the time Hudson first entered the hospital, he filed this action against Reynolds Tobacco Company.

In a deposition, Hudson stated that for years he had throat trouble, hoarseness, and difficulty in breathing, and that for two or three months before going to the hospital he had felt "something was wrong." But he said also that the first idea he had that smoking might be in any way connected with his trouble was when he was at Charity Hospital. He continued to smoke until the time of his operation. Dr. Charles E. Dunlap, in an affidavit the defendant submitted, affirmed:

"That it is his considered opinion, based upon a review of the records detailed hereinabove and his personal microscopic examination of the tissue removed from Hudson in the operation of 6 September 1957, that the cancer which was then removed was in existence and of such size and location for a very substantial period of time, and at least thirty days prior to the biopsy, i. e. microscopic examination, thereof at Charity Hospital in New Orleans on 23 August 1957, as to be readily observable and accessible to biopsy by a physician performing the examinations that would be clearly indicated in any patient with symptoms such as are detailed in Hudson\'s hospital histories and in his deposition."

Dr. Dunlap is Chairman of the Department of Pathology of the School of Medicine of Tulane University. The study of cancer has been one of his principal interests for many years. Dr. Alton Ochsner, in an affidavit the plaintiff submitted, affirmed:

"It is of significance that on the x-ray request 23 August, Dr. Spence\'s diagnosis was asthma, there being no indication that he suspected a neoplasm in this request for an x-ray of the chest although it is probable that Hudson was suffering from a cancer of the larynx for many months and possibly for several years prior to admission to the Charity Hospital at which time an emergency tracheotomy and the diagnosis of cancer of the larynx was made. It would have been possible to have made the diagnosis previously. Such was not done and because of this it was impossible for Hudson to know what his diagnosis was until a definitive diagnosis was made at Charity Hospital, at which time the proper examinations were made.

"Because of the definite cancer producing effect of cigarette smoking, it is my firm conviction that Hudson\'s cancer of the larynx was caused by his excessive smoking and that because he continued smoking up to the time of his operation, at which time a total laryngectomy was done on 5 September 1957, the condition was aggravated and continued to be aggravated as long as he continued to smoke."

Dr. Ochsner is Professor of Surgery at Tulane and Director of Surgery at the Ochsner Clinic and Ochsner Foundation Hospital. The study of cancer, particularly its relation to smoking, has been one of his principal interests for many years.

II.

The applicable prescription is the one year period for offenses (torts) provided in Articles 3536 and 3537 of the Louisiana Civil Code. In pertinent part, Article 3536 of the Louisiana Civil Code reads:

"3536. The following actions are also prescribed by one year: That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi-offenses. * * *"

Article 3537 reads:

"The prescription mentioned in the preceding article runs:

"With respect to the merchandise injured or not delivered, from the day of the arrival of the vessel, or that on which she ought to have arrived.

"And in the other cases from that on which the injurious words, disturbance or damage was sustained.

"And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof."

The tobacco company argues:

A. The affidavits of Drs. Dunlap and Ochsner establish that the cancer came into existence more than a year before the suit was filed, and therefore no more evidence is needed to show that the cause, if any, prescribed.

B. If the plaintiff\'s knowledge is relevant, his deposition shows that he had actual knowledge of his condition for more than a year before filing suit, but in any event, on the undisputed facts and under the law of Louisiana, he must be held to have had constructive knowledge of his damages for at least that time.

This argument overlooks the nature of the plaintiff's claim. Cancer comes like a thief in the night. Assuming, as we must for purposes of this appeal, a nexus between cancer and smoking, no one can say when Hudson's cancer first came into existence. Only by a trial on the facts can it be determined when Hudson knew or should have known that he might have an actionable injury he could attribute to smoking.

Article 3537 does not speak in terms of the "existence" of an injury or "occurrence" of the act causing the injury. Prescription runs from the day "damage was sustained." This language shows an intention to eliminate, as the commencement date for prescription, the date of the act causing the injury when that date does not coincide with the day the damage was sustained. Here, of course, the damage results not from a single, identifiable act causing traumatic injury but from a slow development of a hidden disease over the years. Can it be said that the damages were sustained when the first cell division assumed an abnormal pattern, beginning what might be considered a continuing offense? Or is the crucial date a later point in a chain of continuous damage, beginning with some physical manifestation? For example, was it when Hudson suffered his first hoarseness? Or when he had his larynx removed? The interplay of objective manifestation of the disease and subjective knowledge by the plaintiff makes it impossible in this case to fix the date of the commencement of prescription as a matter of law.

The Code's focus on the day damages were sustained rather than on the day of the act causing the damage is in itself an amelioration of the harshness of a one year prescriptive period. The plaintiff's burden is further lightened by judicial construction that prescription runs from the time a plaintiff knows or should know he has sustained damages. We believe, and so hold, in the factual situation this case presents, that a logical and necessary extension of that principle requires the plaintiff to have had knowledge of the relationship between the offense and damages sustained in order for knowledge to start the running of prescription under Article 3537.

There is no case in Louisiana directly in point and the general jurisprudence in Louisiana on commencement of prescription furnishes uncertain guidelines.

The plaintiff characterizes the alleged offense as a continuing tort, relying on loose language in some of the cases to the...