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rejecting alternative liability because plaintiffs had "produced no case in which a Louisiana state court, or federal court sitting in diversity, has applied this theory of recovery"
Summary of this case from In re Methyl Tertiary Butyl Ether Products Liability LitigOpinion
No. 94-0382, Section "C", Magistrate "3".
March 14, 2000.
ORDER AND REASONS
Defendant Baxter Healthcare Corporation ("Baxter") moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for an order granting summary judgement in its favor on all claims in plaintiffs' Complaint and First Supplemental and Amended Complaint. For the following reasons the motion is GRANTED.
This motion involves several substantive issues that are "close calls." Therefore, the Court is ruling on all, in the complete record for purposes of possible appeal.
FACTUAL BACKGROUND
Brad Cross ("Cross") was born in 1975 with hemophilia, a hereditary bleeding disorder, characterized in Cross' case by a deficiency of a blood clotting protein known as Factor VIII. Cross treated his hemophilia with a plasma derivative prescription medication known as factor concentrate. Four main manufacturers produced these concentrates — Baxter, Armour Pharmaceutical Company ("Armour"), the Cutter Biological Division of Miles, Inc., now Bayer International ("Cutter"), and Alpha Therapeutics ("Alpha").In October 1979, Cross' parents began to keep an infusion log in which they recorded, among other things, the manufacturers' brand names of the factor concentrates Cross used to treat his hemophilia and the dates in which he infused them. This log was maintained until January 1988. According to these logs, Cross last used Baxter's non heat-treated factor concentrate on April 20, 1981. However, starting on February 24, 1984, Cross starting infusing Baxter's heat-treated factor concentrate.
The factor concentrate that Cross infused is, where relevant, distinguished in this opinion between heat treated or non heat treated. Where there is no reason for distinguishing between the two types, the product infused by Cross will be referenced as just factor concentrate. As it will be evidenced further in this opinion, Baxter claims that the heat treated type could not transmit HIV, while plaintiffs argue that there is some evidence that the early variation of the heat treated factor concentrate could transmit HIV.
A sample of Cross' blood sera drawn on December 29, 1981 tested negative for HIV antibodies. Thereafter, samples of Cross' sera drawn on December 14, 1982 and June 14, 1984 tested positive for HIV antibodies.
In June 1985, Cross' parents, Gary and Karen Cross, learned of his HIV positive status. Cross developed AIDS in 1989 and died of it on April 16, 1993.
On May 21, 1991, Gary and Karen Cross filed their first suit on Cross' behalf: Cross v. Cutter Biological, Civil District Court for the Parish of Orleans, No. 91-9617. In this suit Cross named only Armour and Cutter as defendants. After Cross' death, the plaintiffs amended their suit to state a claim for wrongful death. Armour was granted a directed verdict on all claims. Cutter prevailed by a jury verdict on November 10, 1993. Both verdicts were affirmed by the Louisiana Court of Appeals for the Fourth Circuit, and certiorari was denied by the Louisiana Supreme Court. Cross, 676 So.2d 131, writ denied 686 So.2d 142 (La. 1997).
On February 2, 1994, plaintiffs filed the complaint in this diversity suit naming Alpha for the first time and as the sole defendant. On March 22, 1996, plaintiffs petitioned for leave of court to file a First Supplemental and Amended Complaint adding Baxter. Plaintiffs alleged that as a direct and proximate result of dangerous defects in defendants' factor concentrate (contaminated with the HIV causing virus as well as other viruses) and their failure to warn of the risks of factor concentrate use, Cross was exposed to and infected with HIV as well as other viruses. Plaintiffs further alleged that after the initial exposure to HIV and other viruses, Cross' medical condition was aggravated and/or worsened by subsequent exposure to HIV and other viral agents and pathogens from additionally infused factor concentrate. During the course of the summary judgment proceedings, plaintiffs alerted that their claim also alleged that defendants' factor concentrate also suppressed Cross' immune system making him more susceptible to HIV infection. In addition, the First Supplemental and Amended Complaint contained conspiracy claims and therefore asked that the defendants be jointly, severally and insolido liable. The liability claims were premised on negligence and strict liability.
ANALYSIS Summary Judgment Standard
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). When a motion for summary is made, the nonmoving party must set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). Issues of material fact are genuine only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id. All evidence must be viewed in the light most favorable to the party opposing the motion. See Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
Prescription
Baxter makes a strong argument that the plaintiffs' claims have prescribed as they were filed after the one year prescriptive period allowed under Louisiana law. In a diversity action, the prescription period of the forum state, Louisiana, applies. See Orleans Parish School Board v. Asbestos Corp. Ltd., 114 F.3d 66, 68 (5th Cir.), cert. denied, 522 U.S. 995 (1997). Under Louisiana law a decedent's statutorily designated beneficiaries have two possible causes of actions against a tortfeasor who causes the death of the decedent. "A beneficiary may bring a survival action, i.e. an action for damages the injured person would have had, had he lived. A beneficiary may also bring a wrongful death action, i.e. an action for the damages the beneficiaries sustained as a result of the death. Ayo v. Jonhs-Manville Sales Corp., 771 F.2d 902, 906 (5th Cir. 1985). The two causes of action, wrongful death and survival action, are separate and distinct causes of action. See id. (citing Guidry v. Theriot, 377 So.2d 319, 322 (La. 1979)).
Louisiana law provides for two methods for barring an action as untimely: (1) prescription and (2) peremption. Louisiana courts determine whether a particular time period is prescriptive or peremptive. The major factor is whether the statute creating the cause of action also provides a time period in which the action must be asserted. See Id. (citing Pounds v. Schori, 377 So.2d 1196 (La. 1979)). When the statute creating the cause of action provides the time period in which the action must be asserted, the courts are likely to find that the period is peremptive; when the statute does not provide a time period, the courts are likely to find that the period is prescriptive.
See id.
Survival Action
The code article governing survival actions, La. Civ. Code art. 2315.1., expressly states that the period of limitation is one year. Thus, courts have held that the one year period of limitations for a survival action is peremptive. See Ayo, 771 F.2d at 907 (citing McClendon v. State Department of Corrections, 357 So.2d 1218 (La.Ct.App. 1978)); See also Jones v. Philco-Ford Corp., 452 So.2d 370, 372 (La.Ct.App. 1 Cir.), writ denied, 457 So.2d 1193, (La.), writ denied, 457 So.2d 1198 (La. 1984) (citing Succession of Guidry, 182 So.2d 109 (La.Ct.App. 4 Cir. 1966), writ refused, 248 La. 1106, 184 So.2d 27 (1966)). A peremptive period is not subject to interruption or suspension. See Ayo, 771 F.2d at 906; see also La. Civ. Code art. 3461 ("Peremption may not be renounced, interrupted, or suspended."). "Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable." Reeder v. North, 701 So.2d 1291, 1298 (La. 1997) (citing Hebert v. Doctors Memorial Hosp., 486 So.2d 717, 723 (La. 1986).In this case, Cross died on April 16, 1993. Plaintiffs filed suit against Baxter on March 22, 1996. This claim clearly falls outside of the one year period and therefore is perempted. The survival claim can be properly dismissed on defendant's motion for summary judgment. See Ayo, 771 F.2d at 907.
Plaintiffs' claim that the doctrine of contra non valentem interrupts peremption is without merit. Furthermore, the filing of the Wadleigh class action suit (see below) also does not interrupt a claim subject to peremption. Under La. Civ. Code art. 3461: "Peremption may not be renounced, interrupted, or suspended." Therefore, plaintiffs' survival claim has prescribed.
Wrongful Death
The code article which governs wrongful death actions, La. Civ. Code art. 2315.2, also calls for a one year period in which to bring the suit. However, this period has been held by Louisiana courts to be prescriptive rather than peremptive. See Ayo, 771 F.2d at 907 (citing Guidry v. Theriot, 377 So.2d 319, 326 (La. 1979). A prescriptive period is subject to interruption and suspension. Furthermore, prescriptive statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished. See Wimberly v. Gatch, 635 So.2d 206 (La. 1994); Bustamento v. J.D. Tucker, 607 So.2d 532 (La. 1992).
In this case, the death occurred on April 16, 1993 and the claim against Baxter was filed on March 22, 1996. Thus, the prescription period appears to have run. In this situation, the plaintiffs have the burden of showing why the claim has not prescribed. See Wimberly, 635 So.2d at 211.
Class Action
Plaintiffs set out several theories why prescription should be interrupted or suspended. Plaintiffs first contend that prescription has not run because a class action, Wadleigh v. Rhone-Poulenc Rorer, Inc., filed on September 30, 1993, interrupted the prescription period. That lawsuit, which included Baxter as a defendant, was filed on behalf of persons with hemophilia who became infected with HIV through factor concentrates produced by the defendants. This action was certified as a class by the United States District Court for the Northern District of Illinois, but the certification decision was subsequently ordered to be rescinded. See the Wadleigh v. Rhone-Poulenc Rorer, Inc., 157 F.R.D. 410 (N.D. Ill. 1994), mandamus granted, 51 F.3d 1293, (7th Cir.), cert. denied, 516 U.S. 867 (1995).
The other defendant manufacturers sued were Armour, Alpha, and Cutter.
"Under Louisiana law, prescription is interrupted by the timely commencement of an action, and that interruption continues for as long as the suit is pending." Orleans Parish School Board v. Asbestos Corp. Ltd., 892 F. Supp. 794, 802 (E.D. La. 1995), affirmed 114 F.3d 66 (5th Cir.), cert. denied, 522 U.S. 995 (1997). A state class action likewise interrupts prescription as to the claims of all members of the class. See Williams v. State of Louisiana, 350 So.2d 131, 137 (La. 1977).
Baxter claims that the Wadleigh class action did not interrupt prescription with regard to the plaintiffs' individual claim against Baxter. Baxter alleges that the plaintiffs' earlier separate law suit against Armour and Cutter constituted "opting out" of the Wadleigh class action so that prescription continued to run as to Baxter.
The plaintiffs' law suit against Armour and Cutter was filed in May, 1991. The plaintiffs did not sue Baxter. Brad Cross died in April, 1993. Ordinarily, as noted, prescription for a wrongful death action in this case would have prescribed in one year from that date, namely April, 1994. In September, 1993, within that one year window, the class action suit in Wadleigh was filed, with Baxter named as one of the defendants. If the plaintiffs can be counted as putative claimants in that litigation, then the filing of that suit arguably interrupted prescription as to Baxter. Class certification in Wadleigh was granted by the trial court in August, 1994, but in March, 1995, the Seventh Circuit granted a writ of mandamus from the defendants and ordered the district judge to decertify the class. A writ to the United States Supreme Court challenging that ruling was denied in October, 1995. In January, 1996, the district judge decertified the class. The plaintiffs added Baxter to their law suit in July, 1996, within a year of the denial of writs by the United States Supreme Court, as well as within a year of the formal decertification by the trial court.
In American Pipe and Construction Company v. Utah, 94 S.Ct. 756 (1974) and Crown, Cork Seal Company, Inc. v. Parker, 103 S.Ct. 2392 (1983), both dealing with causes of action based on federal law and federal statutes of limitation, the United States Supreme Court held that the filing of a class action tolls the applicable statute of limitations as to all members of the putative class. The rationale for the holding was in part to avoid unnecessary repetitive filings by individuals who wanted to join the class. Another rationale was to protect the rights of putative class members who were unaware that litigation had even been filed ostensibly on their behalf. If class certification was subsequently denied, then prescription commenced to run again. If class certification was granted, tolling continued unless and until the absent class members were notified of the litigation and thereby were given the opportunity to either remain in the litigation, and be bound by the ultimate decision, or to "opt out" of the class and pursue their own lawsuit. If a class member chooses to opt out, then prescription commences to run from that point forward.
In this case, the plaintiffs had already filed their individual law suit and were just a few months shy of trial when the class action was filed. The difficult question is whether the plaintiffs' separate litigation should be considered the equivalent of "opting out" of the class action. If yes, then they do not get the benefit of the tolling of the statute of limitations against Baxter.
The plaintiffs contend they did not "opt out" of the Wadleigh class action and this Court agrees. As a first point, while class certification was granted by the trial judge in Wadleigh, that decision was ultimately ordered rescinded by the appellate court, so no notices were ever sent to putative class members, such as the plaintiffs. Consequently, no one, included the plaintiffs, ever had the opportunity in the strict American Pipe Crown, Cork sense to "opt out" of that litigation. Since they did not ever "opt out," they remained "in" the class action litigation until the class was finally decertified by the trial court, after which they added Baxter to their separate litigation within a year.
Secondly, the plaintiffs' original law suit was filed in 1991, and the class action was not filed until 1993. By filing their own law suit, the plaintiffs cannot be said to have intentionally "opted out" of a class action law suit that didn't even exist when they filed their own litigation.
Thirdly, the class action was filed just a few months shy of the plaintiffs' trial date in state court. Under the American Pipe rationale, the plaintiffs were included in the class action automatically, unless and until the class certification was rejected by the courts or the class was certified and they had been given a choice at that point about whether to proceed. It would be unreasonable and unfair to require the plaintiffs to abandon their own separate suit so close to trial, in order to preserve their right to be a part of the nascent class action, which at that point in time had not even been certified at the trial court level.
Finally, the plaintiffs have the benefit of the Louisiana rule that "prescriptive statutes which can be given more than one reasonable interpretation should be construed against the party claiming prescription." Maltby v. Gauthier, 506 So.2d 1190, 1193 (La. 1987). While American Pipe Crown, Cork are cases rather that statutes, the underlying principle is the same. A reasonable interpretation of the American Pipe doctrine supports the plaintiffs' contention that they did not "opt out" of the class action.
Baxter argues that the plaintiffs never relied upon the class action litigation to protect their rights against Baxter. This apparently is correct, since in their affidavit, Gary and Karen Cross justify their failure to sue Baxter earlier not because they believed their right to do so was protected by the class action but rather because they didn't perceive they had a valid cause of action against Baxter. Nevertheless, American Pipe established that tolling occurs "even as to asserted class members who were unaware of the proceedings brought in their interest or who demonstrably did not rely on the institution of those proceedings . . ." 94 S.Ct. at 765.
Having concluded that the plaintiffs' enjoy the protection of the American Pipe doctrine, this Court nonetheless recognizes it to be a very close question. Some federal district courts, for example, have concluded that the American Pipe doctrine is limited to causes of action involving federal statutes of limitations, and is therefore inapplicable in a case such as this one which deals with state statute of limitations. See Wade, et al v. Danek Medical Inc., 5 F. Supp. 2d 379 (E.D. Va. 1998); Barela v. Denko K.K., 1996 WL 316544, 3 (D.N.M. 1996) ("The issue here is whether the New Mexico Supreme Court would toll the New Mexico statutory period during the pendency of a class action brought outside its judicial system — in another state or in the federal courts . . . This Court has been presented no reason to believe that New Mexico would or should toll the statutory period under these circumstances."); see also Bell v. Showa Denko K.K., 899 S.W.2d 749, 747 (Tex.Ct.App. 1955, error denied) ("We do not agree that American Pipe operates to toll our state statute of limitations. That case involved an interpretation of Rule 23 of the Federal Rules of Civil Procedure and concerned the question of whether a federal statute of limitations was tolled for the purpose of filing a federal claim."). Federal courts have also found American Pipe inapplicable to a mass tort personal-injury litigation where the court is sitting in diversity jurisdiction, as it is here. See Wade, et al v. Danek Medical Inc., 5 F. Supp.2d 379 (E.D. Va. 1998); Barela v. Denko K.K., 1996 WL 316544 (D.N.M. 1996); see also Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex.Ct.App. 1995, error denied); but see Adams Public School District v. Asbestos Corporation, LTD., 7 F.3d 717 (8th Cir. 1993).
Likewise, it is a close question as to whether the plaintiffs' separate suit should be construed as "opting out" of the class action. One purpose of the American Pipe doctrine is to relieve putative class members of the requirement that they file their own law suit or formally intervene in order to preserve their claims. That purpose is arguably inapplicable here as the plaintiffs were aware of their claim and had filed a separate lawsuit against two of the four manufacturer defendants. Another purpose of the doctrine is to protect those putative class members who may not even be aware such litigation is pending on their behalf. Obviously the plaintiffs were aware of their claim since they were already litigating it. The Court likewise reasonably assumes they and/or their counsel were aware of the class litigation as well. Another rationale of American Pipe is to allow a putative class member the choice of "opting out" of the class action, which, of course, the defendant Baxter claims the plaintiffs did here by pursing the separate litigation. In Vaught v. Showa Denko K.K., 107 F.3d 1137 (5th Cir. 1997), the district court had concluded in similar circumstances that the plaintiff had "opted out" of a class action by pursuing her own law suit and therefore did not get the benefit of the interruption of prescription. On appeal, that particular issue was not raised but the Fifth Circuit nonetheless acknowledged that "a possible issue might be whether Janet Vaught's independent actions (possibly including contacting the law firm and consulting with doctors) and otherwise not awaiting a class certification ruling preclude her from receiving shelter under the putative class action tolling rule advanced here." 107 F.3d at 1143, FN1. The Fifth Circuit did not decide the issue in that case but obviously had concerns about it.
Assuming that the American Pipe doctrine is applicable and that the plaintiffs did not "opt out" of the Wadleigh class action, another issue is when the statute of limitations commenced to run anew. Baxter argues that the statute of limitations should have commenced with the March 16, 1995 judgment of the Seventh Circuit, ordering the Wadleigh district court to decertify the class, which would mean that suit against Baxter, filed on March 22, 1996, would have prescribed by seven days. This Court disagrees. The matter reached the Seventh Circuit not by appeal, but by a writ of mandamus. The appellate court's remedy in disagreeing with the trial judge wasn't to reverse the order itself but rather to decree to the district court to do so. Calderon, et al v. Presidio Valley Farmers Association, 863 F.2d 384 (5th Cir. 1989), cited by Baxter, is inapposite. In that case, the district court denied class certification, which denial was upheld by the appellate court. While the appellate court "invited the district court to reconsider." 863 F.2d at 390, it nonetheless affirmed the denial of certification so the statute of limitations continued to run.
Furthermore, in the Wadleigh case, as the Seventh Circuit itself noted, a writ of mandamus is an extraordinary remedy, rarely granted. It requires a showing that the challenged order "so far exceed(ed) the proper bounds of judicial discretion as to be legitimately usurpative in character, or in violation of a clear and indisputable legal right, or, at the very least, patently erroneous." 51 F.3d at 1295. The appellate decision was by a 2-1 vote, with a strong dissent. It was not clear until the United Supreme Court denied writs that the Seventh Circuit decision would stand. Even if the writ denial is taken as the date when prescription commenced, rather than the district court's formal order of decertification, the Cross' added Baxter within a year of that denial.
The final issue with regard to the effect of the Wadleigh class action is whether the plaintiffs' current claim against Baxter is sufficiently similar to the claim lodged against Baxter in the class action to constitute adequate notice of that claim. A primary purpose of prescription is to protect defendants from delayed claims that prejudice their defense because "evidence has been lost, memories have faded, and witnesses have disappeared." American Pipe, 94 S.Ct. at 770 (citation omitted). "The tolling rule of American Pipe is a generous one, inviting abuse . . . The rule should not be read, however, as leaving a plaintiff free to raise different or peripheral claims following denial of class status." Crown, Cork Seal Co. Inc. v. Parker, 103 S.Ct. at 2398. Baxter argues that the plaintiffs' theory that Baxter's factor concentrate suppressed Cross' immune system before he was HIV infected should be dismissed as prescribed, having not been raised in the earlier litigation. Under the analogous Fed. Rule Civ. Pro. art. 15(c), the filing of an amended complaint relates back to the filing of an original complaint if the amended pleading arose out of the "conduct, transaction, or occurrence set forth . . . in the original pleading . . ." To the extent the plaintiffs are raising a new theory, it is nonetheless encompassed in the alleged conduct or occurrence set forth in the Wadleigh litigation. A similar conclusion follows if Louisiana law were applied. See Gunter v. Plauche, 439 So.2d 437 (La. 1983).
For the above reasons, the Court concludes that the plaintiffs' suit against Baxter was timely.
Contra Non Valentem
Assuming for purposes of argument that the Wadleigh suit did not interrupt prescription, plaintiffs also allege that prescription should be suspended because of the operation of the doctrine of contra non valentem non currit praescriptio. This is a jurisprudential exception to prescription which means that prescription does not run against a person who could not bring its suit. Contra non valentem applies in four situations, namely where: 1) "there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; 2) there was some condition coupled with the contract or connected to the proceedings which prevented the creditor from suing or acting; 3) the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and 4) the cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not induced by the defendant." Caillet v. Dykstra, 666 So.2d 383, 385-86, n. 5 (La.Ct.App. 1 Cir. 1995), writ denied, 671 So.2d 339 (La. 1996) (citing Corsey v. Louisiana Department of Corrections, 375 So.2d 1319, 1321-22 (La. 1979)).
Plaintiffs claim that the fourth example, also known as the "discovery rule," applies in this case. Louisiana law states that "the prescriptive period on a cause of action begins to run when the person in whose favor a cause of action exists knows or should have known of the existence of his cause of action." Trizec Properties, Inc v. U.S. Mineral Products, 974 F.2d 602 (5th Cir. 1992). In addition, it has been held that prescription "does not begin to run against a plaintiff ignorant of the facts upon which the claim is based as long as the ignorance is not unreasonable." Ducre v. Mine Safety Appliances, 963 F.2d 757, 760 (5th Cir. 1992) (citing Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La. 1987)). The Louisiana Supreme Court has stated that "[p]rescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury." Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La. 1987).
Plaintiffs claim that they acted reasonably, under the circumstances, for not filing suit against Baxter sooner. Plaintiffs aver in an affidavit that they first learned of Baxter's potential wrongdoing during the Wadleigh discovery proceedings. However, while at this time this court must take plaintiffs' averment that they did not have actual knowledge of a cause of action against Baxter as true, the plaintiffs' actions were not reasonable and therefore do not support a suspension of the running of prescription until the supplemental pleading which added Baxter.
Cross first tested positive for HIV on December 14, 1982. His parents learned of his HIV infection in June 1985. The plaintiffs learned that Cross had developed AIDS in 1989. As early as May 21, 1991, when they filed the state court action against Armour and Cutter, plaintiffs knew or believed that Cross had sustained injuries caused by factor concentrate. Even though the plaintiffs kept an infusion log which contained the dates and name of the manufacturer for each vial of factor concentrate infused by Cross, plaintiffs decided to sue only two of the four factor concentrate manufacturers. It was after plaintiffs lost their case in state court, but before it was affirmed by the appeals court, that plaintiffs decided to sue Alpha, the third out of the four possible defendants. It was almost a year after plaintiffs sued Alpha that it decided to sue Baxter. During this time, plaintiffs' attorneys, who also represented them in the state court, had represented other claimants in similar suits where all four factor concentrate manufacturers, including Baxter, were named. Thus, the knowledge that Baxter was being sued in other cases brought by hemophiliacs, and thus potentially negligent, is imputed to plaintiffs. Clofer v. Celotex Corp., 528 So.2d 1074 (La.Ct.App. 5 Cir. 1988) ("both Louisiana and federal jurisprudence clearly impute the knowledge of an attorney to his client."). In addition, plaintiffs claim to have relied on the Wadleigh class action; if this was true, plaintiffs would have noticed that all four manufacturers, including Baxter, were named defendants in that case.
On the facts of this case, it was not reasonable for plaintiffs to wait until March 22, 1996, eleven years after all of the plaintiffs knew of Cross' HIV infection, seven years after they knew Cross had tested positive for AIDS, almost five years after their first suit against two other factor concentrate manufacturers, and almost three years after Cross' death, to file this claim. Plaintiffs reasonably believed that the HIV infection, contraction of AIDS, and subsequent death were caused by factor concentrate. They further knew that Cross had used four different manufacturers, including Baxter.
If the Wadleigh litigation did not interrupt prescription, the wrongful death claim would have prescribed on April 1994, a year after Cross' death. Plaintiffs aver that they learned of Alpha's possible wrongdoing shortly before the Cross trial. While the pleadings do not disclose the date they allegedly learned of this wrongdoing, it was at a time during which Cross was still alive. Thus, the evidence shows that at the time of Cross' death plaintiffs believed that three out of the four possible tortfeasors had caused Cross' death. The plaintiffs were unreasonable in not pursuing a possible cause of action against Baxter, the last possible defendant, at that time; they believed that factor concentrate caused Cross' injuries and knew that Cross had infused Baxter's factor concentrate, but decided to sue only three out of the four manufacturers. Contra non valentem is inapplicable.
Complicating this case is the fact that two of the four factor concentrate manufacturers, Armour and Cutter, were previously sued unsuccessfully in state court. Normally the filing of the suit in state court against these possible joint tortfeasors would have interrupted the running of the prescription period against the remaining possible joint tortfeasors, Baxter and Alpha. See La Civ. Code arts. 1799 and 2324C. However, when the timely filed defendants are found not liable to the plaintiff, thus no possible solidary liability exists between defendants, there is no interruption of prescription. See Younger v. Marshall Ind., Inc., 618 So.2d 866, 869 (La. 1993). This is the only argument regarding solidary obligors presented to the Court.
Burden of Proof on the Merits: Causation
In the event the plaintiffs' suit against Baxter survives the defense of prescription, this Court nonetheless finds summary judgment appropriate. Without deciding whether plaintiffs' cause of action accrued prior to or after the enactment of the Louisiana Products Liability Act (LPLA), La. Rev. Stat. 9:2800.51 et seq., plaintiffs must prove that Baxter caused their injuries. See Angelle v. Southwest Louisiana Elec., 471 So.2d 1060, 1061 (La.Ct.App. 3 Cir. 1985) ("Whether defendant's liability is based on strict liability or on negligence, the plaintiffs must prove by a preponderance of the evidence that their damages were proximately caused by defendant's activities."). Thus, regardless of when their cause of action accrued, plaintiffs bear the burden of proving causation. Throughout their pleadings, plaintiffs attack Baxter's summary judgment claims as being erroneous because they allege that Baxter predicates its analysis on a "but for" theory of causation. Plaintiffs allege and this Court agrees that the correct analysis is the "substantial factor" test. Nevertheless, plaintiffs still bear the burden of proving that Baxter's actions were a cause-in-fact of their injuries. See Graves v. Page, 703 So.2d 566, 570 (La. 1997).
The LPLA provides the possible causes of action that a claimant may have against a product manufacturer for causes of action that accrued on or after September 1, 1988. According to La. Rev. Stat. 9:2800.52, "This chapter establishes the exclusive theories of liability for manufacturers for damage caused by their products. A claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in this Chapter." Under La. Rev. Stat. 9:2800.54, "The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product . . ." (emphasis added).
Plaintiffs also allege that because of the "unique circumstances presented in this case" the burden of proof on causation should be placed on the defendants and be one of exoneration. The theory is stated as: "Where the conduct of two or more actors is tortuous, and it is proved that the harm has been caused to the plaintiff by only one of them, but uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm." Restatement (Second) of Torts § 433(B)(3). However, while sympathetic to the dilemma faced by plaintiffs in eases such as this, this Court is unable to shift the burden on causation. Plaintiffs have produced no case in which a Louisiana state court, or federal court sitting in diversity, has applied this theory of recovery.
See, for example, "Beyond DES: Rejecting the Application of Market Share Liability in Blood Products Litigation," 68 Tulane Law Review 883 (1994); "Products Liability: A public Policy Approach to Contaminated Factor VIII Blood Products," 48 Florida Law Review 263 (1996).
Furthermore, the LPLA, the current expression of the Louisiana Legislature's will on claims against product manufacturers, precludes such a theory. See Jefferson v. Lead Indus. Ass'n, Inc., 106 F.3d 1245, 1250-51 (5th Cir. 1997) ("A plaintiff may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability not set forth in the LPLA."); See also La. Rev. Stat. 9:2800.52.
Plaintiffs' complaint alleges that Cross through the use of Baxter's contaminated factor concentrate was exposed to and infected by hepatitis and HIV viruses, in addition to other viral agents and pathogens (pre-seroconversion). Furthermore, plaintiffs allege that after this initial exposure, Cross' medical condition was aggravated and/or worsened by subsequent exposure to these viruses, agents, and pathogens from the infusion of additional contaminated factor concentrate manufactured by Baxter (post-seroconversion). Within this framework, plaintiffs claims are threefold. First, that Cross was infected with HIV through the consumption of Baxter's factor concentrate. Second, that the use of Baxter's factor concentrate suppressed Cross' immune system making him more susceptible to infections from other sources, and lastly, that after the infection, his condition was aggravated by subsequent exposures to the virus as well as other agents and pathogens. In evaluating the motion for summary judgment on the merits, the Court is aware that case-specific discovery of Baxter has been limited and even in part now suspended pending this ruling. Information regarding Cross' condition, however, has been thoroughly explored in conjunction with the 1991 law suit.
Infection
Baxter's first contention is that there is no evidence that Cross became infected with HIV from its factor concentrate. Baxter alleges that the logs kept by the plaintiffs show that Cross' last use of its non heat-treated factor concentrate occurred on April 20, 1981. Furthermore, Baxter alleges that on December 29, 1981 — over eight months later — tests showed that Cross was still HIV negative. It was Cross' December 14, 1982 blood sera sample that first tested positive for HIV. Baxter therefore alleges that since Cross did not use any Baxter factor concentrate between April 20, 1981, over eight months before testing negative for HIV, and his first positive test, none of Baxter's acts or omissions can be the factual cause of Cross' injuries. In other words, Cross did not use any Baxter factor concentrate during the window period when he became infected with HIV. Baxter alleged that the period between the time a patient becomes infected with HIV and the time the patient develops antibodies to the virus (seroconversion), thus allowing a positive test result for HIV, is on average only four to six weeks, far shorter than eight months. For this, Baxter brought forth the testimony of plaintiffs' own expert who testified that the median is four to six weeks, that the range is as short as two weeks, but it may take up to six months, with rare occasions taking longer. Baxter also asserted testimonies from both plaintiffs' and defendants' expert witnesses that suggested that the earliest seroconversion occurred was in June 1982. Plaintiffs brought forth evidence from an expert used by Baxter in a previous case where the expert testified that the average delay from infection to seroconversion, and thus testing positive for HIV, was six months, but that it could also take as long as one year.
Resolving this factual dispute at this time in favor of the plaintiff, the Court will accept the fact that the average time from infection to seroconversion is six months and could have been longer. Plaintiffs have presented no evidence, however, that Cross' own seroconversion took longer than the average, and therefore that the infection occurred more than eight months earlier. Plaintiffs are not entitled to any inference that the infection happened more than eight months earlier, and even if it could have, that is hardly proof that it did. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). ("We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof assume that the nonmoving party could or would prove the necessary facts."). The Court recognizes that is impossible now to determine what concentrate caused Cross' infection, but that is the plaintiffs' burden to prove. Thus, with the evidence presented, plaintiffs could not and did not prove that Cross was infected with HIV more than eight months prior to December 29, 1981. Indeed, it appears highly unlikely. According to the infusion log, Cross used a Baxter dose just three times between 1979 and January, 1983. He used concentrates from other manufacturers over 150 times in the same period. From the eight months prior to Cross' negative HIV test in late December, 1981 and through the additional 12 months to his positive test for HIV in December, 1982, he had not used Baxter concentrate at all. He had, however, used concentrates produced by other manufacturers during the same period nearly 100 times.
Immune Suppression
Plaintiffs also allege that Baxter, through Cross' infusion of its factor concentrate, had suppressed Cross' immune system prior to his seroconversion thus paving the way for the subsequent seroconversion. Plaintiffs point to various articles that assert that the infusion of factor concentrate alone, not even contaminated with HIV, can be immunosuppressive and thus make the patient more susceptible to HIV infection. Under this theory, plaintiffs allege that it is possible that the April 20, 1981 and the other preceding infusions reduced Cross' immune system making him vulnerable to the subsequent HIV infection.
This claim must also be dismissed. Plaintiffs have produced no evidence that Cross' system was actually suppressed, or that any immunosuppression actually influenced Cross' HIV infection. The plaintiffs' theory is at best a theory without factual support in this case.
Reinfection
Plaintiffs allege that Baxter aggravated and/or worsened Cross' injuries after he was diagnosed as HIV positive by further exposing Cross to HIV and other viruses. Under this theory, repeated exposure to different strains of HIV will accelerate a person's progression to AIDS. Baxter, on the other hand, alleges that this theory is inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Baxter further alleges that, in any event the reinfection theory is admitted, it still would not be liable to plaintiffs because the Baxter factor concentrate infused by Cross after he was already diagnosed with HIV was of the heat-treated type and this type of factor concentrate does not transmit HIV. However, plaintiffs produced an article that points to the possibility that the first generation of heat-treated factor concentrate could still be capable of transmitting HIV. In addition, plaintiffs' expert has testified that it appeared that the first generation of heat-treated factor concentrate was not completely effective in preventing HIV transmission. Both of these points were strongly denied by Baxter. However, because of the evidence presented by plaintiffs and the nature of a motion for summary judgment, the contention of whether heat-treated factor concentrate could still transmit HIV must be resolved in plaintiffs' favor.
Federal Rule of Evidence 402 provides: "All relevant evidence is admissible. Evidence which is not relevant is not admissible." Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact of issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In Daubert, the Supreme Court interpreted the Federal Rules of Evidence, and primarily Rule 702, as requiring the trial judge to ensure that an expert's testimony is both reliable and relevant to the case at hand. See Daubert, 509 U.S. at 589. Baxter alleges that the reinfection theory fails both the reliability and relevance prongs.
To help determine if a theory or technique of scientific knowledge is reliable and thus helpful the trier of fact, the Supreme Court provided four factors: 1) whether the theory has been tested; 2) whether the theory has been subjected to peer review and publication; 3) what is the potential rate of error; and 4) whether it has been generally accepted in the scientific community. See Daubert, 509 U.S. at 593-94. Prior to these motion pleadings, there was no evidence that reinfection occurred in humans. However, plaintiffs have now presented a report which documents the first case of an HIV positive patient actually being reinfected with a second string of HIV. This reinfection was coupled with a deterioration of the patient's condition. Baxter had argued strongly that because the theory had never been tested it could not survive a Daubert analysis. At this time, the potential rate of error is still not known. The actual test performed has still not been subjected to peer review, and there is no evidence that it has been generally accepted in the scientific community. However, plaintiffs presented other evidence, in the form of papers by their own expert witness and others, that seem to illustrate the existence of this reinfection theory. The Court will assume, for purposes of this motion, that the reinfection theory survives a Daubert reliability challenge.
Even if the theory could be deemed reliable for purposes of Daubert, it has not been shown to be relevant to facts presented here and thus does not satisfy the second Daubert prong. Plaintiffs base their reinfection claim on their expert witness' testimony, from another case, when he stated:
In the hypothetical situation that you give where somebody has been infected for a number of years and their immune system is already significantly injured, then I believe that it is very likely that continued exposure multiple times to HIV is likely to lead to acceleration of the disease, and exposure to nonvirologically, that is, non completely inactivated factor, is also likely to accelerate their progression and worsen their condition.(Plaintiffs' Opposition, Exhibit K at 44).
However, plaintiffs have not presented evidence that Cross was actually reinfected or that the course of his illness proceeded differently from singly infected individuals because of any reinfection that might have occurred. Thus, because plaintiffs have not presented evidence that could show that Cross' injuries were worsened through reinfection, this claim must be dismissed.
Plaintiffs also claim that because of Baxter's failure to warn of the risks of factor concentrate use, Cross was exposed to and infected with HIV. In order to succeed in a failure to warn case, plaintiffs must show that the failure to warn was both a cause in fact and proximate cause of the plaintiffs' injuries. See Willett v. Baxter Int'l, Inc., 929 F.2d 1094, 1098 (5th Cir. 1991). In this case, plaintiffs have not proven that Baxter caused the plaintiffs' injuries, therefore this claim must also fail.
Conspiracy
Plaintiffs allege that the defendants conspired to mislead and manipulate the FDA, and that this created a regulatory environment that conductive to defendants' "goal of sabotaging safety for profit." In support of this contention, plaintiffs introduced the testimony of an anti-trust expert and also of a past president of one of the factor concentrate manufacturers not part of this litigation.Under La. Civ. Code art 2324A: "He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such an act." This article was amended in 1987; the previous revision's section dealing with civil conspiracy read: "He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such person." Louisiana jurisprudence has interpreted this article for the proposition that "Louisiana law does not recognize an independent cause of action for civil conspiracy;" rather, the actionable element of La. Civ. Code art. 2324 is the unlawful act that the conspirators agreed to commit and committed in whole or in part causing plaintiff's injury. See Jefferson v. Lead Indus. Ass'n, Inc., 106 F.3d 1245, 1253-54 (5th Cir. 1997). To recover under a theory of civil conspiracy, plaintiffs must establish that there was an agreement as to intended outcome or result. See Butz v. Lynch, 710 So.2d 1171 (La.Ct.App. 1 Cir. 1998), writ denied, 721 So.2d 473 (La. 1998).
If the underlying unlawful act they allege here is based on fraud, plaintiffs have not alleged the elements of fraud and the claim must fail. Furthermore, plaintiffs have offered no evidence that defendants intended to harm or injure plaintiffs. What their evidence could possibly show is the factor concentrate manufacturers acted in concert in the early 1980's to mitigate the significance of the AIDS crisis in their dealings with government authorities. This in and of itself is not enough to show a conspiracy to commit an unlawful act. Lastly, plaintiffs cite Economy Carpets Mfrs. Distrib., Inc. v. Better Business Bureau of Baton Rouge, Inc., 333 So.2d 765 (La.Ct.App. 1 Cir. 1976) for their proposition that the concerted action of defendants in disseminating "false and misleading information" that results in injury to the plaintiff could result in conspiratorial conduct. However, in that case, there were the underlying torts of defamation and restraint of trade alleged that substantiated the plaintiffs' claim. In this case, plaintiffs have failed to allege or prove an unlawful act or tort for which the defendants would be liable.
To the extent the plaintiffs rely on the conspiracy allegation to support their contra non valentem argument for suspension of prescription, the Court rejects that argument for the reasons already stated.
Accordingly,
IT IS ORDERED that defendant Baxter's motion for summary judgment is GRANTED.
New Orleans, Louisiana, this 14th day of March, 1999.