     Case: 10-41085 Document: 00511454613 Page: 1 Date Filed: 04/22/2011




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

                                                 FILED
                                                                            April 22, 2011

                                     No. 10-41085                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ROY FRANKLIN SMITH,

                                                   Plaintiff-Appellant
v.

UNITED STATES OF AMERICA,

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 3:09-CV-304


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Roy Franklin Smith appeals following the district court’s dismissal of his
Federal Tort Claims Act (FTCA) suit against the United States. Smith had an
operation on his gallbladder at the VA hospital in Houston in August 1983. In
December 2009 he filed suit against the United States, alleging that he
contracted Hepatitis C because of a blood transfusion during that operation. The
United States filed a motion to dismiss and submitted Smith’s hospital records


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-41085 Document: 00511454613 Page: 2 Date Filed: 04/22/2011



                                  No. 10-41085

purporting to show that Smith was not given a blood transfusion during the
1983 operation. The district court granted the motion based on the medical
records. Smith argues that there is a fact issue as to whether or not he received
a blood transfusion. We need not decide whether there is a fact issue, however,
because we conclude that Smith’s claims are barred by Texas’ ten-year statute
of repose. See Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp.,
509 F.3d 216, 221 (5th Cir. 2007) (“It is an elementary proposition, and the
supporting cases too numerous to cite, that this court may ‘affirm the district
court’s judgment on any grounds supported by the record[.]’”) (citation omitted).
      In an FTCA case, the federal court will apply the substantive law of the
state in which the alleged conduct occurred. See 28 U.S.C. § 1346(b)(1); Johnson

v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (en banc). For liability to attach
under the FTCA, the complained of conduct must be actionable under the local
law of the state where it occurred. Johnson, 47 F.3d at 727. Here, the law of
Texas controls because that is where Smith’s operation was performed.
      Under Texas law, “[a] claimant must bring a health care liability claim not
later than 10 years after the date of the act or omission that gives rise to the
claim.” T EX. C IV. P RAC. & R EM. C ODE § 74.251(b). This is a statute of repose,

which unlike a statute of limitation creates a substantive right to be free of
liability after the specified time. See Methodist Healthcare Sys. of San Antonio,
Ltd. v. Rankin, 307 S.W.3d 283, 287 (Tex. 2010). The statute is not subject to
tolling based on the accrual or discovery of a cause of action, see id. at 286–88,
and it provides the applicable substantive law in this case. See Wayne v. Tenn.
Valley Auth., 730 F.2d 392, 401–02 (5th Cir. 1984) (holding that similar
Tennessee statute of repose was a substantive provision); Vega v. United States,
512 F. Supp. 2d 853, 860 (W.D. Tex. 2007) (applying a Texas statute of repose to
bar an FTCA claim).



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    Case: 10-41085 Document: 00511454613 Page: 3 Date Filed: 04/22/2011



                                  No. 10-41085

      The operation and alleged blood transfusion about which Smith complains
occurred in 1983. Because Smith did not file suit until 2009, well beyond the
ten-year period of repose, his claims are not actionable. The district court did
not err by dismissing the suit.
      AFFIRMED.




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