Opinion
CIVIL ACTION NO. 97-1112 SECTION: "R" (1)
March 17, 2004
ORDER AND REASONS
Defendant Becton, Dickinson and Company move the Court for summary judgment against plaintiff Angela Delpit pursuant to Federal Rule of Civil Procedure 56. Defendants Johnson Johnson and Johnson Johnson Medical also move the Court for summary judgment against Delpit pursuant to Rule 56. Plaintiff Delpit does not oppose the motions. For the following reasons, the Court grants defendants' motions for summary judgment.
I. BACKGROUND
This suit arises out of alleged injuries sustained through the use of latex gloves manufactured by defendants Johnson Johnson, Johnson Johnson Medical, and Becton, Dickinson and Company. Plaintiff Angela Delpit contends that she has used natural rubber latex gloves manufactured by defendants during her work as a student nurse and as a licensed practical nurse since 1978.
In the mid-1980s and again in 1993, plaintiff alleges that she developed rashes on her hands and forearms that she attributed to her use of latex gloves. ( See Ex. D, Def.'s Mot. Summ. J., at 195-96, 203). Plaintiff alleges that at some point between January of 1984 and October of 1987, she consulted her physician, Dr. Cabibi, who informed her that the latex gloves that she wore at work could be the cause of the allergic reaction. ( See id. at 203).
In 1993, plaintiff experienced a similar reaction on her hands and forearms that she attributed to the latex gloves. ( See id. at 195-96). Plaintiff went to the emergency room at Joellen Smith Hospital where she informed hospital personnel that she thought the gloves caused the allergic reaction. ( See id. at 197-98). The treating physician at the emergency room advised her that the latex could have caused the reaction and recommended that in the future she use a different type of glove at work. ( See id. at 198-99).
In 1997, plaintiffs Angela Delpit and Jonathan Temple sued defendants in this Court. Plaintiffs ground jurisdiction under 28 U.S.C. § 1332. Plaintiffs allege five theories of liability under Louisiana law: (1) negligence; (2) strict liability in tort; (3) strict liability in tort — failure to warn; (4) breach of express and implied warranties; and (5) fraudulent concealment.
Defendants do not move for summary judgment against Temple.
Defendants Johnson Johnson and Johnson Johnson Medical now move for summary judgment on the grounds that plaintiff Delpit's claims have prescribed under Louisiana law. Defendant Becton adopts Johnson's arguments and also moves for summary judgment on this ground. In the alternative, Becton moves for summary judgment on the grounds that plaintiff cannot establish use or exposure to Becton's latex gloves. For the following reasons, the Court grants defendants' motions for summary judgment and holds that plaintiffs' claims have prescribed under Louisiana law.
II. DISCUSSION
A. LEGAL STANDARD
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Prescription
1. Applicable Prescriptive Period
A federal district court sitting in diversity applies the prescriptive period of the forum state. See Orleans Parish School Board v. Asbestos Corp. Ltd., 114 F.3d 66, 68 (5th Cir. 1997). In Louisiana, delictual actions, such as negligence and strict liability, are subject to a liberative prescription of one year. LA. CIVIL CODE art. 3492. In addition, a claim for strict liability in tort for failure to warn is subject to a liberative prescription of one year. See Our Lady of the Lake Hosp. v. Carboline Co., 632 So.2d 339, 343 (La.Ct.App. 1994). The Court therefore finds that a prescriptive period of one year applies to plaintiff's first three claims.
With regard to plaintiff's fourth theory of liability, a cause of action for breach of the express and implied warranties of fitness and merchantability is grounded in tort and therefore subject to a one-year prescriptive period from the day that the buyer discovered the defect in the product. See LA. CIVIL CODE art. 2534(A)(1); Norris v. Bell Helicopter-Textron, Inc., 712 F.2d 171, 173 (5th Cir. 1983). In addition, "[t]he prescriptive period for a fraud claim under Louisiana law is one year from the date plaintiff knew or reasonably should have known of [a] defendant[']s fraudulent act." In re Ford Motor Company Vehicle Paint Litigation, No. MDL 1063, 1996 WL 426548, at *4 (E.D. La. July 30, 1996) (citing LA. CIVIL CODE art. 3492; Giller v. Griffith, 1989 WL 159332, at *4 (E.D. La. 1989)).
Therefore, the Court finds that all of plaintiff's claims are subject to a liberative prescriptive period of one year.
Although defendant anticipated that plaintiff would argue the doctrine of contra non valentem, under which prescription does not run against one who is ignorant of the existence of a fact that would entitle him to bring suit in certain types of circumstances, plaintiff does not oppose the motions for summary judgment and has not raised this defense. The Court therefore declines to reach the doctrine, because "[t]he burden is on the plaintiff to show what prevented him from filing suit on a timely basis if he wishes to successfully argue contra non valentem." Maurice v. Prudential Ins. Co., 831 So.2d 381, 386 (La.Ct.App. 2002).
2. Application of the One-Year Time Period
Under Louisiana law, " [p]rescription does not begin to accrue until injury or damage is sustained." Luckett v. Delta Airlines, Inc., 171 F.3d 295, 299 (5th Cir. 1999) (citing LA. CIVIL CODE art. 3492). A prescriptive period may not commence until damages result, and the damages must "be actual and appreciable and not merely speculative." Id. A prescriptive period commences "when a potential plaintiff discovers or should have discovered the delict, the damage, and the relationship between the two." Id. (citing New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 879 (5th Cir. 1998)).
Actual knowledge is not required; constructive knowledge will suffice. Constructive knowledge requires "`more than apprehension that something might be wrong but less than actual knowledge.'" Id. (citing The Kendall Co. v. Southern Med. Supplies, 913 F. Supp. 483, 488 (E.D. La. 1996)). Louisiana courts have held that "[w]hen a party has sufficient information to incite curiosity, to excite attention, or to put a reasonably minded person on guard and call for inquiry, he or she has the constructive knowledge necessary to start the prescriptive period." Netherland v. Ethicon, Inc., 813 So.2d 1254, 1260 (La.Ct.App. 2002). In other words, the one-year prescriptive period here began to run when Delpit knew or reasonably should have known that the latex gloves caused her alleged injuries.
The defendant bears the burden of proof that a claim has prescribed. See Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000). However, "[i]f the defendant proves that one year has passed between the tortious acts and the filing of the lawsuit, then the burden shifts to the plaintiff to prove an exception to prescription." See id. Because plaintiff does not oppose the motions here, the Court need only determine whether defendants have shown that one year passed between the tortious acts and the filing of the lawsuit. See id.
Here, the record is replete with plaintiff's own testimony that she knew, or at least constructively knew, that the latex gloves were the cause of her injuries more than one year before she filed suit. At her deposition, plaintiff testified that she learned of the existence of allergic reactions caused by latex gloves in the mid-1980s from co-workers who had experienced rashes that they attributed to the latex. ( See Ex. D, Def.'s Mot. Summ. J., at 189). Moreover, Delpit testified:
Q. So the actual time frame that you learned about [latex allergies] was in the Eighties?
A. Yes.
Q. Okay, okay. And I think you noted elsewhere that you yourself started to have skin rashes during the 1980s, is that right?
A. Yes, like the Eighties.
Q. Late Eighties?
A. Yes.
Q. And is that something that you attributed to your use of latex gloves?
A. Yes.
( See id., at 191). Later in her deposition, Delpit specified that the first incident of skin rashes that she attributed to her use of latex gloves occurred sometime between January 1984 and October 1987. ( See id., at 203). After this first alleged reaction, plaintiff visited her doctor, who informed her that her use of latex gloves may be the cause of the irritation. ( See id., at 205; Ex. B., Plaintiff's Response to Def.'s Interrogatories, at Response No. 33).
Moreover, plaintiff allegedly suffered further allergic reactions in 1993, at which time she visited an emergency room. ( See id., at 195). During this visit, plaintiff informed the ER personnel that she attributed the allergic reactions to her use of latex gloves:
Q. Did you — did you discuss at all your glove usage with the ER personnel?
A. Yes.
Q. What did you tell them?
A. I told them that I was a nurse and I used gloves regularly, and I felt this was the reason why I had the reaction.
( See id., at 198).
Moreover, Delpit testified that she herself attributed the alleged allergic reactions to her use of latex gloves. ( See id., at 195).
The Court finds that the record clearly demonstrates that plaintiff had constructive knowledge, if not actual knowledge, that her use of latex gloves caused her alleged allergic reactions. Plaintiff had sufficient information to put a reasonably minded person on guard that the latex caused her allergic reaction. In her testimony, plaintiff admitted several times that she herself attributed the alleged allergic reactions to her use of latex gloves. In addition, two doctors warned plaintiff that the latex could be the cause of her alleged allergic reaction. This should have caused plaintiff to conduct a further inquiry into her injuries. Plaintiff'3 testimony establishes that she should have known at the time of the rashes of defendants' alleged fraudulent act and of any possible defect in the latex gloves.
Plaintiff had this knowledge as early as the time period between 1984 and 1987, and as late as 1993. Plaintiff did not file suit until April 1997. This is well beyond the one year statute of limitations, even were the Court to determine that plaintiff did not possess such knowledge until 1993. For these reasons, the Court finds that plaintiffs' claims against Johnson Johnson, Johnson Johnson Medical, and Becton, Dickinson and Company are time-barred under Louisiana law.
Because the Court finds that plaintiff's claims against defendant Becton have prescribed under Louisiana law, the Court declines to reach the issue of whether failed to establish use or exposure to Becton latex gloves.
III. CONCLUSION
For the foregoing reasons, the Court grants defendants' motions for summary judgment.