Opinion
No. 94-382
August 11, 2000
ORDER AND REASONS
Ryan Wallis, a second year student at Tulane Law School, assisted in the research and preparation of this decision.
This matter comes before the Court on motion for partial summary judgment filed by Alpha Therapeutic Corporation ("Alpha") Having considered the record, the memoranda of counsel and the law, the Court has determined that the motion should be partially granted and partially denied for the following reasons.
The plaintiffs, Gary and Karen Cross, individually and as successors in interest to the rights of their deceased son, Darren Bradley Cross ("Cross"), have sued Alpha for fraud, negligent misrepresentation, products liability and conspiracy arising out of Brad Cross' use of factor concentrate manufactured by Alpha which allegedly caused him to acquire HIV and ultimately die of AIDS.
Factual Background
The factual background is similar to that which appeared in this Court's Order and Reasons granting summary judgment in favor of Baxter Healthcare Corporation ("Baxter") (Rec. Doc. 44), and is essentially undisputed.
Brad 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 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"). Unlike a single blood donation from one individual, these concentrates are produced from blood and blood products donated by numerous individual donors.
In October 1979, Cross' parents began to keep an infusion log in which they recorded, among other things, the manufacturers 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. Samples of Cross sera drawn on December 14, 1982 and June 14, 1984 tested positive for HIV antibodies. According to the infusion logs maintained by the plaintiffs, Cross used Alpha's factor concentrate during the period relevant to the HIV infection as well as concentrate from other factor manufacturers. 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 ultimately granted a directed verdict in its favor 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 this complaint naming Alpha for the first time and as the sole defendant. On March 22, 1996, plaintiffs filed a First Supplemental and Amended Complaint adding Baxter, which was dismissed on summary judgment by this Court. (Rec. Doc. 44).
In this motion, Alpha challenges the timeliness of the Cross' survival action under La. C. C. 2315.2. Alpha claims the underlying tort has prescribed. In addition, it argues that all claims based on immune suppression and reinfection under the survival and wrongful death statutes shouldbe dismissed, and that the plaintiffs have insufficient proof to support their claims of conspiracy under either statute.
Analysis Summary Judgement Standard
Summary judgment is appropriate if 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). In order to avoid summary judgment, 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. An otherwise properly supported motion for summary judgment will not be defeated by the mere existence of some alleged factual dispute; instead, it can be denied only if the nonmover shows the existence of dispute over facts that might affect the outcome of the lawsuit under governing law. See id. at 247-48, 106 S.Ct. at 2510. Summary judgment should not be granted if the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party. 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)
Survival Action
Article 2315.1 provides a one-year period of limitation from the victim's death during which the survivors may pursue this claim. It is uncontested that the plaintiffs did file their survival action against Alpha within one year of their son's death. At issue here is whether the tort claims underlying the survival claims prescribed prior to his death. A survival action "comes into existence simultaneously with existence of a tort and is transmitted to beneficiaries upon the victim's death." See Taylor v. Giddens, 618 So.2d 834, 840 (La. 1993) (citingGuidry v. Theriot, 377 So.2d 319 (La. 1979)). Therefore, the survival action fails if the original wrongdoing has prescribed. See Taylor v. Giddens, 618 So.2d 834; Holmes v. Pottharst, 438 So.2d 622 (La.App. 4 Cir. 1983), writ denied 447 So.2d 1076 (La. 1984).
The Code article which governs the underlying delictual actions, La. Civ. Code 3492, provides a one-year prescriptive period. This one-year period begins from "the day injury or damage is sustained." The issue presented concerns when prescription should begin: when the plaintiffs learned that Brad was HIV positive, when they learned he had contracted AIDS, or, under contra non valentem, when alleged impediments to the plaintiffs' learning about Alpha's involvement in Brad's illness were removed.
Contra Non Valentem
Plaintiffs allege that Brad Cross' claims were not prescribed at the time of his death because prescription should be suspended under the doctrine of contra non valentem non currit praescriptio. This is a jurisprudential exception which provides that prescription does not run against a person who could not bring his suit. Contra non valentem applies in four situations: "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, 385-386, 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)
Although the plaintiffs invoke "all" four applications of the doctrine in their opposition, they discuss only the third and fourth applications. With respect to the fourth application, the plaintiffs claim that any delay on their part in filing suit was "reasonable" so as to suspend the running of prescription. The plaintiffs contend that "prescription is suspended until the plaintiff is aware of all of the elements of his or her cause of action — injury, fault and cause." (Rec. Doc. 60, p. 2). They argue that they lacked sufficient awareness of the cause and fault involved in the cause of action against Alpha until a time within the year prior to their son's death.
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, 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 had, 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 at 423. The question before this Court is whether the plaintiffs were reasonable in their delay in filing suit against Alpha.See Guidry v. Theriot, 377 So.2d 319 (prescription begins when a "reasonable person" should be aware of both the tort and the damages)
The plaintiffs and their attorney aver in affidavits that they filed suit against only Armour and Cutter in 1991 because they had knowledge of recalls of plasma product issued by those manufacturers. They further aver that they did not learn of Alpha's potential involvement in causing Brad's illness until the discovery proceedings for their case against Armour and Cutter, when Ms. Helen Patin, the administrator of the Louisiana Hemophilia Program, stated in her deposition that Alpha issued a recall of factor concentrate in 1984. However, taking the plaintiffs' averment as true, the plaintiffs' delay in filing suit against Alpha was unreasonable, and therefore do not support a suspension of the running of prescription.
Rec. Doc. 60, Exh. 1.
Id.
The undisputed facts show that the plaintiffs had access to information (which they had compiled) of Alpha's potential involvement in the injury to Brad Cross several years before they filed the original cause of action under his name. Brad's parents learned of Brad's HIV infection in June, 1985. They learned that he had developed AIDS in 1989. Brad's parents knew from the infusion log that Brad had infused factor concentrate manufactured by Alpha within the window of seroconversion. In addition, it is undisputed that the plaintiffs received information from Patin which revealed the potential for problems with and the recall of Alpha's product affecting the integrity of the factor concentrate used by their son. Nevertheless, the plaintiffs decided to file suit against only two of the four factor concentrate manufacturers in 1991. It was only after the 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 defendants whose product was used during the relevant times.
The plaintiffs also invoke the third type of contra non valentem, contending that the defendant fraudulently concealed their use of plasma collected from plasmapheresis centers in prisons and in "high risk" areas for HIV contamination. In support of this accusation, the plaintiffs point to various statements made by Alpha that Alpha did not engage in such practices: newsletter publications distributed to the hemophiliac community, and statements made to the Food and Drug Administration ("FDA") and the National Hemophilia Foundation ("NHF"). Such statements were allegedly made in 1982 and 1983, when news of HIV being transmitted to hemophiliacs had risen some alarm among the hemophiliac community. The plaintiffs also present documentary evidence that Alpha ordered plasma collected at plasmapheresis centers in "high risk" areas (those areas known for high incidence of AIDS) for production of factor concentrate throughout 1982 and 1983. Furthermore, there is some evidence that Brad Cross infused factor concentrate derived from plasma collected at Irwin Memorial Hospital in San Francisco, a location which reported that some of its donors had died from AIDS after donating.
Rec. Doc. 60, Exhs. 5, 6.
Rec. Doc. 60, Exh. 21.
Rec. Doc. 60, Exh. 3.
Rec. Doc. 60, Exhs. 20A, 20B, 15, 10.
Rec. Doc. 60, Exh. 16.
Even if these allegations are taken as true, disturbing as that may be, prescription should not be suspended. Even if the plaintiffs could prove that Cross relied on Alpha's reassurances regarding the sources of its plasma, those statements do not vitiate the critical Information derived from the infusion logs — that Brad infused Alpha factor concentrate in the window of seroconversion. Plaintiffs cite LeGros v. ARC, 721 So.2d 1016 (La.App. 3 Cir. 1998), Doskey v. Hebert, 645 So.2d 674 (La.App. 4 Cir. 1994), and Nathan v. Carter, 372 So.2d 560 (La. 1979), to support the proposition that prescription is suspended under contra non Valentem where a defendant reassures a plaintiff with initial suspicions that no actionable wrong has occurred. However, in each of these cases, the defendants either affirmatively told plaintiffs in effect that "nothing was wrong," or as in the case of Nathan v. Carter, specifically lied to the plaintiff in order to prevent her from filing suit. See LeGros 721 So.2d at 1017; Doskey 645 So.2d at 680; Nathan 372 So.2d at 561-62. Alpha's various representations neither definitely nor directly stated to the Crosses that they had no cause of action, nor that the Alpha factor concentrate did not contribute to Brad's illness.
The plaintiffs also argue that reliance upon defendant's fraudulent statements is not required to invoke contra non valentem, supporting this argument with a section from Hyman v. Hibernia Bank Trust Co., 71 So. 598 (La. 1916) (quoting Boyd v. Boyd, 27 Ind. 429, 430 (Ind. 1867),
[T]he defendant must not do anything to prevent the plaintiff from ascertaining . . . the facts upon which that right depends, either by affirmatively hiding the truth, enhancing the natural difficulties of discovering it, or by any device avoiding inquiry which would result in discovery; and if he does thereby escape suit for a time, the statute of limitations will not run during that time
However, while Hyman may stand for the principle that for contra non valentem to be invoked the defendant need not make affirmative misrepresentations to the plaintiff, it is not held in Hyman that the plaintiff need not show reliance on the fraud or concealment. Indeed, inHyman, an action by a lessor for rent owed, the plaintiff did not bring his claim until after the prescription period because a defendant conspired with another defendant to remove goods from the rental property before stopping the payment of rent so that the goods could not be sold to pay for the debt to the lessor. See Hyman, 71 So. 598. Reliance was apparent, because the lessor did not know of the wrongdoing until after the payment of rent ceased. See Id.
Furthermore, the defendants have produced compelling evidence that, as a matter of law, the plaintiffs actually did have sufficient notice of the danger of using Alpha's product long before the deposition of Ms. Patin. As Patin revealed in the same deposition that the plaintiffs claim first alerted them to Alpha's possible role in Brad's death, the plaintiffs were sent a letter and telephoned concerning the recall of Alpha factor concentrate in January, 1984. Defendants produced lists of people to be contacted by Patin about the recall which bear Brad Cross' name on them. Further, there is evidence that Karen Cross receive an "AIDS update" from the National Hemophilia Foundation in September, 1984, in which the Alpha withdrawal is publicized. Finally, as shown in the infusion log, Brad used Alpha factor until 1988, and from 1984 on, a warning was placed in packages of Alpha factor that warned of the possibility of contracting AIDS from the product.
Rec. Doc. 71, Exh. A.
Id.
Rec. Doc. 71, Exhs. B, C.
Rec. Doc. 71, Exh. 0.
Plaintiffs sued Armour and Cutter in 1991. By that time the plaintiffs reasonably believed that the HIV infection, contraction of AIDS, and subsequent death were caused by factor concentrate. Therefore, it was unreasonable for the Cross' not to sue Alpha more than one year before Brad's death on April 16, 1993. To require them to do so is not forcing them to "rush out and sue every possible wrongdoer," as the plaintiffs suggest. It is requiring the plaintiffs to seek out those whom it would be reasonable to believe may be responsible for the harm to their son. While the infusion record alone was probably enough to require the Cross' to sue Alpha when they learned that Brad had contracted HIV, Alpha's notices, recalls and package warnings were certainly adequate. Contra non Valentem does not allow a plaintiff to ignore indications of fault.
Immune System Suppression and Reinfection
Plaintiffs advance three theories of causation for Brad's contracting AIDS and resulting death: actual infection with HIV, immune system suppression (i.e. that Brad's immune system was beleaguered by repeated contact with. various infectious agents in all of the concentrates, which made his illness more likely), and reinfection (i.e. that repeated contact with infectious agents worsened his condition after his infection with HIV). Defendants have moved for summary judgment on the claims based on the theories of immune system suppression and reinfection.
The Court dismissed these claims against Baxter in granting its motion for summary judgment. (Rec. Doc. 44). For substantially the same reasons, the claims against Alpha are subject to dismissal. Plaintiffs have produced no evidence that Cross system was actually suppressed, or that the immunosuppression actually influenced Cross' HIV infection, so the immune system suppression claim must fail. Likewise, plaintiffs produced no evidence that Brad's progression with the disease was any different from someone singly infected, so the reinfection claim must fail. The appellate state court made a similar observation in Cross v. Cutter Biological, 676 So.2d 131, 148, (La.App. .4 Cir. 1996)
Although a jury reasonably could conclude that infusion of contaminated Factor VIII by a patient previously exposed to HIV might accelerate that patient's progression to AIDS, the record does not contain evidence of such quality and weight that a jury reasonably could conclude that Brad's infusion of Armour Factor VIII in 1985 and 1986 affected his illness.
The plaintiff's theories under both the survival and wrongful death statutes, though plausible, cannot survive summary judgment due to the lack of sufficient factual support.
Conspiracy
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 cause by such an act." To recover under a theory of civil conspiracy, plaintiffs must establish that there was an agreement as to the 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). The actionable element of civil conspiracy is the underlying tort that the conspirators agreed upon committing. See Jefferson v. Lead Indus. Ass'n, Inc., 106 F.3d 1245, 1253-54 (5th Cir. 1997)
Alpha challenges the plaintiffs' conspiracy claims under the survival and wrongful death statutes based on the alleged lack of evidence on a number of elements. While Alpha correctly states that the Court granted Baxter's motion regarding this claim, it does not mention that there were no underlying tort claims against Baxter to which the conspiracy could attach. Here, the survival claim against Alpha has been dismissed as prescribed, so the survival claim based on conspiracy is likewise subject to dismissal. At this time, however, the wrongful death claim based on Alpha's alleged misrepresentation and fraud, negligent misrepresentation and products liability are not the subject of this motion by Alpha and remain pending.
Alpha's challenge to the conspiracy claim appears to be focused on the absence of the required intent. Plaintiffs allege that Alpha conspired with other fractionators to mislead the FDA, the NHF, and other groups who represented the public's interest in the distribution of safe blood products about the safety of using their products. In support of this contention, plaintiffs present the testimony of Mr. Thomas Drees, president of Alpha until November, 1983, and Dr. James Mosely, a former consultant of Alpha.
Defendant contends that plaintiffs' conspiracy claims should be dismissed because it is "preposterous" that Alpha would have intended to infect Brad Cross and others, and others, since such a policy would "result in the elimination of their business." This logical conclusion, defendant argues, gives the court reason to find that there was no intent to conspire to infect Brad with HIV, and therefore, there can be no conspiracy claim against Alpha. Defendant points to Alfred R. Johnson v. Hospital Corp. of America, 95 F.3d 383, 393 (5th Cir. 1996) (quoting Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)), for the proposition that, where conspiracy claims make no economic sense, either the plaintiff must present sensible reasons for the conspiracy, or the court must accept a more plausible explanation for the defendant's actions.
Rec. Doc. 51, p. 17.
However, the tort underlying the conspiracy in this case was not the intentional infection or death of Brad Cross, but the intent to mislead the FDA, NHF, and the public about the safety of taking Alpha's factor concentrate. Although Brad Cross' death may have resulted from the alleged fraud, whether Alpha possessed the intent to induce Brad's death by infection with HIV is not integral to the question of whether Alpha intended to mislead Brad about the safety of its product.
Furthermore, the instant case is easily distinguishable from Johnson and Matsushita, because here the defendant had economic reasons to quell fears about its product. Drees' testimony, minutes of a meeting of Alpha's Executive Committee, and an interoffice memo presented by plaintiffs show that Alpha's management was aware that a sizable portion of the plasma it used in processing its factor concentrate was collected from donors likely to be infected with HIV. Alpha, presumably, would have been forced to find another, possibly more expensive, supply of plasma if it stopped collecting plasma from those sources. Further, notifying all of its patrons about the dangers of using its product could have foreseeably resulted in not only a large loss of demand for their product, but in filing of lawsuits like this one. Mr. Drees testified that, though they should have immediately recalled the possibly infected factor concentrate, the only actions Alpha took initially to deal with the matter were to increase its insurance coverage and institute a donor self-exclusion program.
Rec. Doc. 60, Exhs. 21, 15, 22.
Rec. Doc. 60, Exh. 21 at pp. 1038, 1006-07.
Although Alpha may be able to show that Alpha did not, in fact, conspire to mislead the FDA, NHF, and the public about its standards in selecting plasma, that issue can not be resolved on the record as it now appears or the argument presented in this motion. Plaintiffs have presented sufficient evidence to present a question of material fact as to whether Alpha and other fractionators committed this conspiracy.
Accordingly,
IT IS ORDERED that the motion for partial summary judgment filed by Alpha Therapeutic Corporation is PARTIALLY GRANTED; the plaintiffs' survival action and the wrongful death action as it pertains to immune system suppression and reinfection are DISMISSED. The motion is PARTIALLY DENIED insofar as it pertains to the plaintiffs' cause of action for conspiracy under their wrongful death statute.