Opinion
CIVIL ACTION NO. 00-1316 SECTION M
October 15, 2001
ORDER
Before the Court is Plaintiffs' Motion to Remand which came for hearing on the briefs. The Court previously allowed discovery limited to the jurisdictional issues alone and reset this matter for hearing after sixty days. The parties submitted supplemental briefs and evidence which the Court considered at the rehearing of this matter. After due consideration of the record, including the memoranda and exhibits filed in connection with this motion, and the applicable law, the Court orders that the motion to remand is DENIED.
The inquiry on a fraudulent joinder claim is limited to whether or not the plaintiff has stated a cause of action against the non-diverse defendants, nothing more. B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981). This issue should be resolved by a summary judgment-like procedure whenever possible. Sid Richardson v. Interenergy Resources, Ltd, 99 F.3d 746, 751 (5th Cir. 1996). The district court may examine affidavits and other evidentiary material, but must resolve all disputed facts in favor of the plaintiff, and the removing party has the burden of demonstrating the basis for federal jurisdiction B., Inc., 663 F.2d at 549.
Defendants contend that the claims against the Louisiana defendants are prescribed and thus, joinder is improper. The Fifth Circuit has already determined, in Badon v. R.J Reynolds, 236 F.3d 282, 286 (5th Cir. 2000), that there is possibility that Louisiana would allow a redhibition or article 2475 recovery against cigarette wholesalers. Id. at 286-87. However, the Badon Court also stated that there must be more than a "theoretical" possibility of recovery, there must "be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder. Id. at 286, n. 4.
Under that standard, which requires more than a theoretical possibility of recovery, if plaintiffs' claims have prescribed, it necessarily follows that joinder is inappropriate, because there would be no possibility of recovery. On the other hand, if there is any possibility that plaintiffs might survive a prescription claim, the case must be remanded to state court. Sid Richarson, 99 F.3d 746, 753 (5th Cir. 1996).
Analysis of the prescriptive period applicable to this claim shows that the most lement prescriptive period for redhibition claims for purchases made before January 1, 1995 is one year from the date of discovery of the defect. For purchases made after January 1, 1995, the most lement prescriptive period, irrespective of good or bad faith on the part of the seller, is also one year from the date of discovery of the defect. La. Code Civ. Ann. art. 2534 (West 1996). This lawsuit was filed on April 6, 2000. Ms. Potts must have discovered the redhibitory defect in the cigarettes no sooner than April 6, 1999. Although the Court is reluctant to assume that a cigarette smoker is wholly unaware of the addictive nature of the cigarettes they smoke, for purposes of resolving all disputed facts in favor of plaintiff, the Court will assume that Ms. Potts did not have the common knowledge of the dangers of smoking.
Cigarette packaging has had printed warnings since 1966, and for many years, the addictive nature of cigarettes has been common knowledge.See Badon, 224 F.3d 382, n. 21.
Plaintiffs contend that Ms. Potts became aware of the addictive nature of cigarettes and the damage smoking causes when she was diagnosed with lung cancer in July, 1999. Defendants submitted medical records dated June 1, 1991 wherein Ms. Potts was diagnosed with emphysema. Medical records also indicate that on April 14, 1998, Ms. Potts received treatment for smoking cessation in the form of patches or gum (Exhibit D. attached to Defendants' Supplemental Memorandum). In addition, Mr. Potts testified that he lived with Ms. Potts for about thirty years and that on many occasions, Ms. Potts said she wanted to quit smoking, but never could. (Exhibit A, supra) This evidence establishes that Ms. Potts was aware of her addiction and her emphysema prior to April 6, 1999.
Plaintiffs cite Encalade v. Coast Quality Construction Corp, 772 So.2d 244 (La.App. 5th Cir. 2000), for the proposition that knowledge of the defect is not enough to trigger prescription, but that actual damage or injury is required before prescription period begins to run. "Prescription does not commence to run until the plaintiff has actual or constructive knowledge of the tortious act, the damage caused, and the causal relationship between the tortious act and the damage" Encalade, 772 So.2d at 247, citing Beth Israel v. Bartley, Inc., 579 So.2d 1066, 1072, (La.App. 4th Cir. 1991). Plaintiffs contend that Ms. Potts' awareness of the addictive quality of the cigarettes prior to her diagnosis is not enough to commence the prescription period; she must also become aware of the damages caused by the addiction. Plaintiffs contend that Ms. Potts became aware of the damages when she was diagnosed with lung cancer in July, 1999.
The Court finds that even under the Encalade theory, plaintiff had actual knowledge of the addictive quality of the cigarettes, the damages that had occurred or would likely occur, and the fact that those damages were causally related to the cigarettes, by virtue of the medical records wherein she was diagnosed with emphysema and treated for smoking cessation at the latest on April 14, 1998. At that time, she was aware of her addiction, the damage that had already occurred, and which would likely continue or worsen if she did not stop smoking.
The evidence considered by the Court establishes that Ms. Potts had the requisite knowledge of the dangers of smoking and the consequences thereof more than one year prior to filing of her lawsuit. To hold otherwise would require the Court to rely upon legal fictions and theoretical evidence that are beyond the realm of reasonableness. Plaintiffs have no chance of recovery on a claim that has prescribed. All other contentions raised by plaintiffs are without merit. (See Scott v R.J. Reynolds Tobacco Co., C A. No. 99-3091 E.D. La. (July 12, 2001 ) (Clement, J.) Thus, the Court finds that joinder of the Louisiana distributors and retailer is improper and Remand is DENIED.