Smith v. Cutter Biological

Louisiana Court of Appeal, Fourth Circuit · Torts

TortsPrescriptionWrongful DeathSurvival ActionContra non valentemRelation backClass action tollingprescription

Facts

Kenneth Dixon, a hemophiliac, used factor concentrate manufactured by the defendant fractionators and was told in November 1985 that he was HIV positive and that the source was the factor concentrate he had been taking. The trial judge found that by at least 1989, and likely earlier, Ken knew or should have known that HIV led to AIDS and death and that his infection was connected to his hemophilia treatment. Ken filed suit on May 10, 1993, alleging negligent manufacture and fraud; he died on June 3, 1995, and his parents substituted in and asserted wrongful death claims on March 13, 1997. Plaintiffs also argued continuing tort, reinfection, and interruption by out-of-state class actions, but the trial court rejected those theories.

Issue

Whether Ken Dixon's personal injury and survival-related claims, and his parents' wrongful death claims, were barred by prescription. Also, whether prescription was suspended or interrupted by alleged continuing tort theories, out-of-state class actions, or relation back of the parents' wrongful death claims to Ken's original petition.

Rule

Under Louisiana law, prescription begins when damage has manifested itself with sufficient certainty to support accrual of a cause of action; once the plaintiff suffers actual or appreciable damage, prescription runs even if the plaintiff later gains a more precise understanding of the full extent of injury. Constructive knowledge is enough: notice sufficient to excite attention, put the person on guard, and call for inquiry starts prescription. A wrongful death claim prescribes one year from death. An untimely original petition cannot support relation back of a new cause of action asserted by new parties, and a cause of action arising after the original filing is a supplemental, not amended, claim and does not relate back under Code of Civil Procedure article 1153.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In New Orleans, Daniel Price received a medical infusion from Riverbend Therapeutics in 2016. In 2018, his doctor told him he had contracted a serious blood-borne virus from the infusion and that the condition could eventually become fatal, but Daniel waited until 2022 to sue because he did not yet know whether he would develop the worst stage of the illness.

Under the governing rule, when did prescription most likely begin to run on Daniel's personal injury claim?

Explanation. Prescription begins when damage manifests with sufficient certainty to support accrual of a cause of action. Once the plaintiff has actual or appreciable damage, prescription runs even if he later gains a more precise understanding of the injury's extent or later suffers additional harm. The plaintiff need not know the exact prognosis or quantum of damages. (Derived from Smith v. Cutter Biological (n.d.).)