     Case: 09-31134     Document: 00511196661          Page: 1    Date Filed: 08/06/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 6, 2010

                                       No. 09-31134                         Lyle W. Cayce
                                                                                 Clerk

RUTH CARTER; JAMES CARTER,

                                                   Plaintiffs-Appellants
v.

MATRIXX INITIATIVES, INC.; ZICAM, L.L.C.,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-cv-00216


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiffs-Appellents Ruth and James Carter (collectively, the “Carters”
or “Carter”) appeal the district court’s grant of summary judgment dismissing
their products liability and loss of consortium claims. We affirm.
                           I. FACTS AND PROCEEDINGS
        The facts of this case are undisputed. On February 23, 2007, Ruth Carter
used Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately
experienced “immediate,” “blind[ing],” and “excruciating” pain. The next day,

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-31134

Carter realized that she had lost her senses of smell and taste and, because of
the continuing pain, did not report to work. She told her husband and her
employees that she either had “a heck of an allergy”or “the Zicam” had burned
her nasal passages. Her loss of sensory ability and pain continued until she saw
her primary care physician on March 2, 2007. During the appointment she
reported her suspicion that the Zicam was the cause of her discomfort; her
physician did not confirm or deny this, except to note he was unaware that
Zicam caused such problems, but he did suggest that Carter’s injury may have
been caused by her allergies. Carter’s symptoms did not improve, so she was
referred to a radiography center to image her nasal passages. During the
imaging on May 7, 2007, Carter told a radiography technician about her
suspicions regarding Zicam, to which the technician responded that she had
received an e-mail communication warning “to be on the lookout for this problem
with Zicam.”
      The Carters filed the instant suit on February 29, 2008 in the 21st Judicial
District Court, Parish of Livingston, Louisiana, against Defendants-Appellees
Matrixx Initiatives, Inc. and Zicam, L.L.C. (collectively, “Matrixx”) alleging
damages for various claims, including personal injury and loss of consortium
resulting from Ruth Carter’s use of the Zicam homeopathic nasal remedy. After
the Carter’s action was removed to federal district court on diversity grounds
and all claims other than those allowed under the Louisiana Products Liability
Act were dismissed, Matrixx filed a motion for summary judgment seeking
dismissal of the Carters’ remaining claims. Matrixx argued that because the
action was filed six days after the expiration of Louisiana’s one-year prescriptive
period for products liability suits, it should be dismissed. The district court
granted summary judgment on this ground, and the Carters timely appealed.




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                                           No. 09-31134

                                          II. ANALYSIS
      We apply a de novo standard of review when determining whether a
district court erred in granting summary judgment.1                 Under Federal Rule of
Civil Procedure 56(c)(2), summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.”
      The Louisiana Products Liability Act2 “establishes the exclusive theories
of liability for manufacturers for damage caused by their products.”3 L A. C IV.
C ODE art. 3492 establishes a one-year prescriptive period for products liability
claims:
      Delictual actions are subject to a liberative prescription of one year. This
      prescription commences to run from the day injury or damage is
      sustained. It does not run against minors or interdicts in actions involving
      permanent disability and brought pursuant to the Louisiana Products
      Liability Act or state law governing product liability actions in effect at the
      time of the injury or damage.

By filing the complaint on February 29, 2008 – six days after the one-year
anniversary of Ruth Carter’s sustaining her initial injury – the Carters’ suit falls
outside of the prescriptive period. The Carters nevertheless insist that the
doctrine of contra non valentem agere nulla currit praescriptio applies. Under
that doctrine, “prescription does not commence running until the facts necessary
to state a cause of action are known or reasonably knowable to the plaintiff.” 4
“In such cases of [medical causation], even if a plaintiff is aware that an



      1
          LaBarge Pipe & Steel Co. v. First Bank, 550 F.3d 442, 449 (5th Cir. 2008).
      2
          LA . REV .STAT . § 9:2800.51 et seq.
      3
          Id. at § 9:2800.52.
      4
          Sharkey v. Sterling Drug, Inc., 600 So. 2d 701, 713 (La. App. Ct. 1st Cir. 1992).

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                                        No. 09-31134

undesirable condition developed at some point in time after medical treatment,
prescription does not run until the plaintiff has actual or constructive notice of
the causal connection between the medical treatment and the subsequent
condition.”5 “Damage is considered to have been sustained, within the meaning
of the article, only when it has manifested itself with sufficient certainty to
support accrual of a cause of action.”6 Furthermore:
      prescription will not begin to run at the earliest possible indication that
      a plaintiff may have suffered some wrong. Prescription 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 that damage.
      On the other hand, a plaintiff will be responsible to seek out those whom
      he believes may be responsible for a specific injury. When prescription
      begins to run depends on the reasonableness of a plaintiff's action or
      inaction.7

When a plaintiff alleges the affirmative defense of contra non valentem, the
defendant must show “that the plaintiff had actual or constructive notice of the
tortious act, the resulting injury, and the causal connection between the two or
that the plaintiff’s lack of such knowledge was willful, negligent or
unreasonable.” 8
      It is apparent that Carter first sustained the injury that allegedly resulted
from her use of Zicam on February 23, 2007 and that she had actual knowledge
of pain and sensory loss on that same day.                From the very outset, Carter
suspected and attributed her injury to Zicam, and she never wavered in that
belief. That she did not possess an affirmative and conclusive medical opinion
supporting this belief on that day, or even a week later when she consulted her


      5
          Id.
      6
          Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993).
      7
          Jordan v. Employee Transfer Corp., 509 So. 2d 420, 423 (La. 1987) (emphasis added).
      8
          Sharkey, 600 So. 2d at 713-14.

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                                          No. 09-31134

physician, is of no moment. On February 24 at the latest, Carter indisputably
had both the belief that Zicam was the cause of her injuries and a reasonable
basis for seeking to hold the manufacturer responsible. It is true that her doctor
initially expressed ambivalence about whether it was the Zicam or Carter’s
allergies that were causing her injury and that she did not receive any kind of
cause-and-effect corroboration from a third party until she heard about the
technician’s email on May 7. It is not the rule in Louisiana, however, that the
prescriptive period does not begin until conclusive, dispositive proof of a causal
connection between the suspected injury and the putative tortfeasor is
established. 9 Rather, actual or constructive knowledge 10 of the “tortious act, the
resulting injury, and the causal connection between the two”11 is the benchmark
for beginning the prescriptive period. Carter experienced “excruciating” pain
immediately after using Zicam on February 23, 2007, and evinced a firm,
unwavering, and objectively reasonable belief no later than the next day,
February 24, that Zicam was the cause of her suffering.                      Therefore, the
prescriptive period began running on February 23 (February 24 at the latest).
Thus, the Carters’ filing was at least five days late.
       The judgment of the district court is, in all respects, AFFIRMED.




       9
         See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 299-300 (5th Cir. 1999) (“The
commencement of prescription does not necessarily wait for the pronouncement of a victim’s
physician or of an expert.”) (citing Hunter v. Sisters of Charity of the Incarnate Word, 236 So.
2d 565, 568 (La. App. 1st Cir. 1970)).
       10
            See id.
       11
            Sharkey, 600 So. 2d at 714.

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