Opinion
Civil Action No. 03-330 Section "C" (3).
July 1, 2004
ORDER AND REASONS
Before the Court is Defendants' Motion for Partial Summary Judgment. (Rec. Doc. 83). After a thorough review of the law, the record, the Motion, and memoranda filed in support thereof and in opposition thereto, Defendants' Motion for Partial Summary Judgment is GRANTED.
I. BACKGROUND
Maurine E. Carter ("decedent") died January 2, 2002. (Rec. Doc. 76). On January 2, 2003, Plaintiffs, the surviving spouse and children of Ms. Carter, filed suit against defendants, R.J. Reynolds Tobacco Company and Brown Williamson Tobacco Corporation, in state court. (Rec. Doc. 1, exhibit A). Defendants timely removed the action to this Court. (Rec. Doc. 2). Plaintiffs allege that Ms. Carter smoked cigarettes manufactured by the defendants for fifty-three (53) years. (Rec. Doc. 76, p. 2, 2d Complaint ¶ II). Plaintiffs claim, among other things, that defendants' cigarettes caused Ms. Carter to suffer debilitating health conditions for over ten (10) years prior to her death as well as her death, that their cigarettes were unreasonably dangerous, and that defendants failed to provided adequate warnings. (Rec. Doc. 76, p. 2-3, 2d Complaint ¶¶ V and VII — IX). According to Plaintiffs' second supplemental and amending complaint, the plaintiffs' claims also involve the tortious conduct of intentionally manipulating nicotine, knowing it to be addictive. In plaintiffs' opposition, they acknowledge the allegation that the defendants intentionally manipulated the addictive properties causing: (1) ten years of health problems; and (2) death. (Rec. Doc. 88, p. 2). At the same time, plaintiffs claim that the tortious conduct is smoking for purposes of arguing the continuing tort exception. (Rec. Doc. 88, p. 5). Plaintiffs seek damages through survival and wrongful death actions pursuant to Louisiana Civil Code articles 2315.1 and 2315.2, respectfully. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants R.J. Reynolds and Brown Williamson move for summary judgment on the survival claims brought by plaintiffs.
II. STANDARD OF REVIEW
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial."Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
III. LAW AND ANALYSIS
Defendants' motion for summary judgment solely involves the survival claim brought by plaintiffs in this case. This product liability suit involves claims for, inter alia, manufacturing a product that was unreasonably dangerous and failure to provide adequate warning. Defendants argue that the survival claims have prescribed under Louisiana law, and thus, this Court should grant partial summary judgment on Plaintiffs' survival claim. Plaintiffs contend that their claim falls under either the continuing tort doctrine or contra non valentum and was timely filed.
Louisiana law requires strict construction of its prescriptive statutes in favor of a litigant's day in court. Wimberly v. Gatch, 635 So.2d 206 (La. 1994); The Orthopaedic Clinic of Monroe v. Ruhl, 786 So.2d 323, 328 (La.Ct.App. 2d Cir. 2001). A survival cause of action survives for one year after the death of the deceased. This suit was filed within that one year period. The issue is whether the decedent allowed her tort claim to expire or prescribe before death.
Louisiana Civil Code article 2315.1 provides:
If a person who has been who has been injured by an offense of quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
LA. CIV. CODE ANN. art. 2315.1 (West 2004).
The Louisiana Survival Statute is silent as to the prescription of the underlying tort, but Louisiana courts have consistently held that a decedent needs a viable cause of action on the date of her death for a survival action to exist. Taylor v. Giddens, 618 So.2d 834, 840-41 (La. 1993). See Maraist Galligan, Louisiana Tort Law § 18-8 (1996). Louisiana has a one year prescriptive period for tort claims under Civil Code article 3492. Essentially then, the question is whether the decedent's underlying tort claims prescribed during her lifetime. If so, there is no survival claim to be brought by her family, and partial summary judgment should be granted.
One of the most perplexing issues that arises in tobacco cases involves the determination of when a cause of action for tort liability arises, since tobacco and smoking-related diseases are typically characterized by a lengthy latency period, and consequently, a lengthy temporal separation between the alleged tortious conduct and the appearance of injury. Complicating matters even more, tobacco, unlike the products in other insidious disease cases, usually gives rise to continued use of the harmful product that is the basis of the tort claim. In the instant case, the decedent smoked tobacco cigarettes until her death. Defendants argue that prescription began to run when the facts that would give rise to a tort action were apparent to the decedent. Under Louisiana law, the general rule is that prescription does not begin to run until the plaintiff has a reasonable basis to pursue a claim against a specific defendant.Ducre v. Mine Safety Appliances, 963 F.2d 757, 761 (5th Cir. 1992). As such, the record indicates that the decedent had sufficient knowledge that she suffered from tobacco-related illnesses and could have pursued a claim against the defendants years before her death. The defendants attach exhibits of statements acknowledging decedent's illness made during the past ten years of her life, including a patient information card, deposition testimony, and a pre-operational evaluation form, which all demonstrate an awareness of the relationship between her illnesses and smoking tobacco. Plaintiffs do not debate this evidence. Supporting defendants' motion, plaintiffs' own pleadings allege that the decedent suffered for more than ten (10) years prior to her death from tobacco-related illnesses. Instead, plaintiffs argue that an exception to general prescription rules applies — the continuing tort doctrine.
Plaintiffs also argue that this case falls under the doctrine of contra non valentum. Contra non valentum is another exception to prescription, and there are four different categories of the doctrine. Plaintiffs do not specify which category of the doctrine may apply to this case. Plaintiffs did not brief the issue, other than to declare that the doctrine applies. Regardless, contra non valentem does not suspend prescription when a litigant is perfectly able to bring her claim, but fails to do so. See Hendrick v. ABC Ins. Co., 787 So.2d 283, 293 (La. 2001).
The continuing tort doctrine is an exception to the commencement of prescription, where the tortious conduct is a continuing act. Wilson v. Hartzman, 373 So.2d 204, 206 (La.Ct.App. 4th Cir. 1979). For the continuing tort doctrine to apply, a plaintiff must allege both continuous action and continuous damage. Chiasson v. Doe, 618 So.2d 38, 41 (La.Ct.App. 3d Cir. 1993). In the limited circumstances where the doctrine has been applied, prescription does not begin to run until the continuing cause of damages is abated. Id. The doctrine originated in property law tort liability cases involving claims of trespass and nuisance. See In re Moses, 788 So.2d 1173, 1183 (La. 2001). The Louisiana Supreme Court has recognized that the doctrine requires "that there be continuous conduct by the defendant." Id. Plaintiffs claim that smoking is the continuing tortious conduct. They argue that the tortious conduct did not abate until the decedent smoked her last cigarette.
Especially foreboding, the seminal case plaintiffs cite,Hartzman, in support of the continuing tort doctrine, the court, in dicta, states that the doctrine does not apply to manufacturers. 373 So.2d at 207.
The Louisiana cases that have recognized the applicability of the continuing tort doctrine and modified the prescriptive period involve active behavior on the part of the defendant. See Bustamento v. Tucker, 607 So.2d 532 (La. 1992) (an intentional infliction of emotional distress claim involving continuous, unabated sexual harassment by employer); South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531 (La. 1982) (continuing damage to phone lines caused by the defendant's leaking tanks); Craic v. Montelepre Realty Co., 211 So.2d 627 (La. 1968) (defendant's pile driving); Devoke v. Yazoo M.V.R.R., 30 So.2d 816 (La. 1947) (continued polluting by defendant railroad); DiCarlo v. Laundry Dry Cleaning Service, 152 So. 327 (La. 1934) (vibrations from defendant's laundry plant). Plaintiffs' claim requires that a plaintiff be capable of causing injury to oneself, which is nevertheless attributable to the defendant. Under plaintiffs' logic, prescription would never begin to run during the life of a smoker.
Plaintiffs' continuing tort doctrine claim is novel and has no precedential support in Louisiana. The doctrine has been applied in some ongoing-medical care cases, asbestos cases, and property trespass cases, but the doctrine is rarely used. See In re Moses, 788 So.2d at 1188. The Louisiana Supreme Court has not applied the continuing tort doctrine in a tobacco-related product liability or smoking case nor has any lower Louisiana court done so. Likewise, no other jurisdiction has found the doctrine applicable. Plaintiffs correctly assert that their claim is one which must be decided under Louisiana Law. However, the jurisprudence of other jurisdictions is persuasive.
The extent of the continuing tort doctrine vis-a-vis the Louisiana Medical Malpractice Act is an open question. See William P. Wynne, Casenote, In Re Medical Review Panel for the Claim of Maria Moses: The Supreme Court Parts a Red Sea of Questions — The Doctrine of Continued Tort as Applied to Medical Malpractice Claims, 47 LOY. L. REV. 1605 (2001).
The Alabama Supreme Court, in a per curium opinion responding to a question certified by the United States Court of Appeals for the Eleventh Circuit, answered in a case similar to the one at hand that under Alabama's products liability law that the statute of limitations began to run when the plaintiff recognized her addiction. Spain v. Brown Williamson Tobacco Corp., 872 So.2d 102 (Ala. 2003). See Spain v. Brown Williamson Tobacco Corp., 363 F.3d 1183 (11th Cir. 2004). Relying on both common sense and general public knowledge — including Surgeon General warnings on the packaging of cigarettes, the court identified that "addiction to nicotine is a critical consideration in an analysis of the difficult issue of applying the statute of limitations to claims by smokers in smoking products-liability cases." Spain v. Brown Williamson Tobacco Corp., 872 So.2d at 111-13. Alabama's highest court recognized, following the Ninth Circuit, that nicotine addiction is the event which starts the running of the limitations period ("prescription" in Louisiana). Id. at 113. See also Soliman v. Philip Morris Inc., 311 F.3d 966 (9th Cir. 2002). The Alabama Supreme Court followed the Ninth Circuit's logic and chose the date of nicotine addiction as the time the statute of limitations started running. Spain, 872 So.2d at 113-15.
Similarly, the United State Court of Appeals for the First Circuit rejected a continuing tort argument in Nicolo v. Phillip Morris, Inc., 201 F.3d 29 (1st Cir. 2000). The plaintiff inNicolo advanced a continuing tort argument for her cause of action (nicotine manipulation); the court recognized the absence of precedent in Phode Island and found that "given plaintiff's knowledge that she had been `hooked' since at least the early 1980s, any subsequent dissimulation or misrepresentation by defendants as to their intent and knowledge bore no causal relation to plaintiff's condition." Id. at 39. Additionally, plaintiffs intentional tort characterization of their claims does not affect prescription either. See id. The decedent knew her addiction was attributable to defendants and had the knowledge necessary to file her own claim.
The defendants rely on Richardson v. Avondale Shipyards, Inc., a progressive occupational disease case, in which the Louisiana Court of Appeal, Fifth Circuit, examined the relationship between a survival action and the one year liberative prescription period of one year for torts. 600 So.2d 801 (La.Ct.App. 5th Cir. 1992). The court found that both manifestation of the disease and awareness of it are necessary for prescription to commence. Id. at 804-05. The court found plaintiff's claim prescribed because the evidence showed that plaintiff knew he had a work-related illness more than one year before he filed his claim. Similarly, the evidence in the instant case shows that the plaintiff knew she had tobacco-related illnesses long before her death.
Plaintiffs argue that Castano v. American Tobacco Co., 961 F. Supp. 953, 959 (E.D. La. 1997), is contradictory to defendants' motion. However, this Court held in Castano that prescription remained a trial issue and not a summary judgment issue, rejecting the defendants' argument that the plaintiffs' claims had prescribed based on general knowledge of addiction allegedly acquired more than one year before filing the claim. Id. at 959. The prescription issue in Castano is distinguishable from the case at hand The causes of action in Castano involved intentional acts, fraud, and concealment, and this Court was hesitant to hold as a matter of law that the plaintiffs' had reasonable knowledge of the information which would support a claim against the tobacco companies at that time. Id.
Based on the generally persuasive authority of two circuit courts and the highest court of a sister state in Soliman, Spain, and Nicolo, defendants' motion for summary judgment solely on the survival claim should be granted because there is no genuine issue as to any material fact that the decedent's claim had prescribed before her death. Whether this product liability suit involve claims for manufacturing an unreasonably dangerous product, failure to provide adequate warnings, fraud, or any other product liability-related tort claim, the decedent had knowledge — actual or constructive — that she was being injured by defendants' products. Actual knowledge by the decedent could be satisfied by the 1989 medical diagnosis of tobacco-related illness or the decedent's admitted addiction to cigarettes. The decedent had the knowledge necessary to file a lawsuit against the defendants more than one year before she died.
While Louisiana law requires strict construction of its prescriptive statutes in favor of a litigant's day in court, one year from any number of events that could have started the running of the prescriptive period had passed before the death of Ms. Carter. See Wimberly v. Gatch, 635 So.2d 206 (La. 1994);The Orthopaedic Clinic of Monroe v. Ruhl, 786 So.2d 323, 328 (La.Ct.App. 2d Cir. 2001). Under Louisiana law, the general rule is that prescription does not begin to run until the plaintiff has a reasonable basis to pursue a claim against a specific defendant. Ducre v. Mine Safety Appliances, 963 F.2d 757, 761 (5th Cir. 1992). The record indicates that the decedent had sufficient knowledge that she suffered from tobacco-related illnesses and could have pursued a claim against the defendants at hand The injury date argued by defendants as the prescription-triggering event is even later than the date of nicotine addiction adopted by other courts. The evidence presented by defendants, largely corroborated in plaintiffs' pleadings, shows that the plaintiff knew she had tobacco-related illnesses long before her death and that she knew she was addicted to defendants' products even earlier.
A plaintiff cannot eschew the prescriptive period by continuing to use a product that is harmful, knowing it to cause her injury. The decedent could have filed her own product liability claim much more than one year before her death — whether the period began to run earlier (at the time of addiction) or later (at the time she was diagnosed with tobacco-related medical illnesses). This Court need not decide which triggering date is applicable under Louisiana law to decide that the one year prescriptive period for torts had run and that there is no survival claim for decedent's relatives to inherit. Preferring to leave the articulation of Louisiana law to its Supreme Court, either of the two possible event-dates occurred much earlier than one year before the decedent's death. Thus, either way, the claim had prescribed. Sitting as if this Court were the Louisiana Supreme Court, this Court believes that the continuing tort doctrine does not apply to product liability cases like the one at hand, based on the limited application of the doctrine in Louisiana cases and the absence of active behavior by the defendants in this case.
In order to determine state law, federal courts look to final decisions of the highest court of the state. When there is no ruling by the state's highest court, it is the duty of the federal court to determine as best it can, what the highest court of the state would decide. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Transcontinental Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992) ("It is the duty of the federal court to determine as best it can, what the highest court of the state would decide.").
IV. CONCLUSION
First, Plaintiffs have failed to create a genuine issue as to any material fact in support of their claims. Defendants have presented sufficient evidence that any claim the decedent may have had prescribed during her lifetime. Plaintiffs have not rebutted this evidence.
Second, Plaintiffs have failed to establish that the continuing tort doctrine would apply in a product liability claim against a manufacturer. Even assuming that Plaintiffs' claims do fall within the scope of the doctrine, their claims still fail because the decedent's use of Defendants' product, her smoking, does not amount to conduct by the Defendants. Where there is no continuing action by the defendant, there is no possibility of a continuing tort.
As such, Defendant's Motion for Partial Summary Judgment is GRANTED.