     Case: 14-30731      Document: 00512955437         Page: 1    Date Filed: 03/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30731                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            March 3, 2015
CINDA MCLAUGHLIN,                                                          Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

GLAXOSMITHKLINE, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:12-CV-2946



Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Cinda McLaughlin appeals the district court’s grant
of summary judgment on her products liability claims against Defendant-
Appellee GlaxoSmithKline (“GSK”). We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                   I. Factual and Procedural Background
      Plaintiff Cinda McLaughlin alleges that in 2003, she began taking Paxil
to treat depression. Paxil was manufactured and marketed by GSK. Paxil is
generally classified as a selective serotonin reuptake inhibitor, or SSRI.
McLaughlin took Paxil until March 2007 and then switched to the generic
equivalent, paroxetine, which was manufactured by other companies not
present in this appeal. 1 On June 10, 2010, Dr. Robert Keith White surgically
replaced two valves in McLaughlin’s heart. Dr. White removed two specimens
of the valves for pathological review, which McLaughlin alleges showed
damage that was caused by cardiac exposure to increased levels of serotonin.
McLaughlin had previously undergone coronary artery bypass surgery in
January 2004, and alleges that no damage to her heart valves was present at
that time. She alleges she continuously took Paxil and its generic equivalent
from shortly before her January 2004 bypass surgery until her June 2010 valve
replacement surgery, and that during that time she was not exposed to any
other drug that could have caused the type of heart valve damage she suffered.
      On October 4, 2010, McLaughlin visited the emergency department at
the E.A. Conway Medical Center in Shreveport, complaining of severe anxiety.
According to the emergency physician’s notes from that consultation,
McLaughlin said that she had been suffering from anxiety since Paxil was
discontinued earlier that year, and that she had “heart valve damage due to it
[Paxil]” and that she had heart valve surgery in June “due to Paxil.” She was
referred for a psychiatric consultation for her anxiety, which occurred two
hours later with Dr. Nga Huynh. Dr. Huynh’s notes of that consultation state
that McLaughlin requested new medication for anxiety and explained that


      1  In addition to GSK, McLaughlin initially sued three manufacturers of generic
paroxetine, Cadila Healthcare, Zydus Pharmaceuticals, and Apotex Inc., but she voluntarily
dismissed those three defendants in October 2012.
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“she was on Paxil for 10 years and had to stop taking it in August b/c a heart
valve repair.” McLaughlin also told Dr. Huynh that “her heart valve was
damaged by Paxil” and that she “is currently in a lawsuit with them,”
presumably referring to the manufacturers of Paxil.
      On October 22, 2010, McLaughlin’s attorney, Susan Hamm, met with Dr.
White, who had performed McLaughlin’s valve replacement.             Dr. White’s
report regarding the meeting states that Hamm was there “to visit because of
product liability issues.”   Dr. White noted that after McLaughlin’s valve
replacement, examination and study of the valves showed what could have
been “evidence of a drug induced aortic and mitral valve stenoses,” or
narrowing of the valve.       Dr. White’s report stated that he discussed
McLaughlin’s medication history with her at the time of her valve replacement,
and “Paxil was the only medication that was apparently taken in the interim
between her coronary artery bypass and her valve replacements.” Dr. White’s
report stated that he told Hamm “he had no evidence or knowledge that [Paxil]
caused abnormalities of the valves,” but that Hamm “enlightened me that
there was some evidence that this potentially could be the case.” Dr. White’s
report concluded by stating that “I am here for my patient and I would like to
do well for her and will help Ms. Hamm if need be and if appropriate to help
document any evidence that could have been drug induced to cause valve
failure.”
      On June 8, 2012, McLaughlin filed suit in the Eastern District of
Pennsylvania alleging that ingestion of Paxil caused damage to her heart
valves, which required valve replacement surgery.         Her complaint alleged
design, manufacturing and marketing defects, as well as breach of warranty,
negligence and fraud claims. The suit was transferred to the Western District
of Louisiana, where McLaughlin resides, where her doctors reside, and where
the surgery occurred. GSK then moved to dismiss the complaint. The district
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court concluded that Louisiana law, including the Louisiana Products Liability
Act (“LPLA”), governed McLaughlin’s claims. The district court dismissed six
of McLaughlin’s ten claims because they fell outside the exclusive theories of
recovery allowed by the LPLA. The district court also dismissed McLaughlin’s
design defect claim because she had failed to allege sufficient facts to state a
claim.    Following discovery, GSK moved for summary judgment on
McLaughlin’s remaining claims on the ground that the applicable one-year
prescriptive barred those claims.       The district court granted summary
judgment to GSK based on prescription. On appeal, McLaughlin challenges
only the district court’s ruling that her three LPLA claims were prescribed.
                                II. Discussion
      Summary judgment is appropriate if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if, based on the
evidence in the record, a reasonable jury could enter a verdict for the non-
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We
review a district court’s grant of summary judgment de novo, viewing all
evidence in the light most favorable to the nonmoving party.             Onoh v.
Northwest Airlines, Inc., 613 F.3d 596, 599 (5th Cir. 2010).
      The parties do not dispute that Louisiana law governs this case. Under
the Louisiana Civil Code, the parties also agree that McLaughlin’s products
liability claims are subject to a one-year prescriptive period. La. Civ. Code art.
3492 (“Delictual actions are subject to a liberative prescription of one year.”).
“Prescription commences when a plaintiff obtains actual or constructive
knowledge of facts indicating to a reasonable person that he or she is the victim
of a tort.” Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So. 2d 502, 510;
Keenan v. Donaldson, Lufkin & Jenrette, Inc., 575 F.3d 483, 489 (5th Cir. 2009).
“Constructive knowledge is whatever notice is enough to excite attention and
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put the injured party on guard and call for inquiry.” Campo, 828 So. 2d at 510-
11.    It is clear that “evidentiary proof necessary to successfully establish
plaintiff’s right to damages” is distinguishable from facts giving rise to the
plaintiff’s knowledge of her claim; “proof of a cause of action cannot be equated
with knowledge, actual or constructive.” Boyd v. B.B.C. Brown Boveri, Inc.,
(La. App. 2 Cir. 5/10/95), 656 So. 2d 683, 689. “In other words, the prescriptive
period commences when there is enough notice to call for an inquiry about a
claim, not when an inquiry reveals the facts or evidence that specifically
outline the claim.” Luckett v. Delta Airlines, Inc., 171 F.3d 295, 300 (5th Cir.
1999) (citing Terrel v. Perkins, 96-2629 (La. App. 1 Cir. 11/7/97), 704 So. 2d 35,
39).
        McLaughlin primarily argues that the prescriptive period did not begin
to run until she had sufficient scientific evidence of a causal link between Paxil
and her heart valve damage, which did not occur until a particular study was
published in a medical journal in July 2011.        But as we have previously
recognized, “[t]he commencement of prescription does not necessarily wait for
the pronouncement of a victim’s physician or of an expert.” Luckett, 171 F.3d
at 300 (citing Hunter v. Sisters of Charity of the Incarnate Word, 236 So. 2d
565, 568 (La. Ct. App. 1970) (prescription commenced on plaintiff’s medical
malpractice claim when she fell out of her hospital bed, not when a chiropractor
told her that the fall caused her pain)). “As a general rule, prescription begins
to run from the time there is notice enough to call for inquiry about a claim,
not from the time when the inquiry reveals facts or evidence sufficient to prove
the claim.” Terrel, 704 So. 2d at 39; Keenan, 575 F.3d at 489.
        The evidence in the record, which is uncontradicted by McLaughlin,
shows that she had at least constructive notice of her injuries and potential
claims by October 2010. On October 4, 2010, McLaughlin told two doctors that
Paxil had caused her heart valve damage, which had necessitated her June
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2010 valve replacement. The two doctors’ notes from their consultations with
McLaughlin show that she specifically reported that her heart valve surgery
was “due to Paxil,” that “her heart valve was damaged by Paxil,” and that she
was pursuing legal action against the manufacturer of Paxil.
      Further, McLaughlin retained counsel in connection with her products
liability claims regarding Paxil as early as October 2010. On October 22, 2010,
McLaughlin’s attorney, Susan Hamm, met with Dr. White, the doctor who had
performed McLaughlin’s valve replacement, to discuss “product liability
issues.” Dr. White’s report of the meeting states that Hamm told him she had
some information supporting a link between Paxil and McLaughlin’s heart
valve damage. Louisiana courts have recognized that the act of retaining an
attorney in connection with a claim can demonstrate that a plaintiff had
adequate notice of an injury, sufficient for the prescriptive period to commence.
See Med. Review Panel Proceeding of Williams v. Lewis, 2008-2223 (La. App. 1
Cir. 5/13/09), 17 So. 3d 26, 29-30; Clofer v. Celotex Corp., 528 So. 2d 1074, 1076
(La. Ct. App. 1988).
      Thus, by October 2010 McLaughlin had told two physicians that her
heart valve damage was due to Paxil and she had retained an attorney in
connection with potential claims related to Paxil. This undisputed evidence
demonstrates that McLaughlin had sufficient knowledge of her claims to
commence the one year-prescriptive period by October 2010. McLaughlin’s
suit was not filed until June 2012, and the district court correctly held that her
claims had prescribed.
        McLaughlin also argues that the doctrine of contra non valentem
suspended the running of the prescriptive period. “Under the doctrine of contra
non valentem, the prescription period does not run when ‘the cause of action is
not known or reasonably knowable by plaintiff, even though his ignorance was
not induced by defendant.’” Eldredge v. Martin Marietta Corp., 207 F.3d 737,
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743 (5th Cir. 2000) (quoting Landreneau v. Fruge, 598 So. 2d 658, 662 (La. Ct.
App. 1992)). McLaughlin contends that the prescriptive period was tolled
because she could not reasonably have known that Paxil caused her heart valve
damage until July 2011, when a particular study was published in a medical
journal. McLaughlin appears to compare her claim to tort cases concerning
latent injuries, which do not manifest for years or are not discovered to be
connected to exposure to a toxic material until years after the disease or injury
occurs. See Cole v. Celotex Corp., 620 So. 2d 1154, 1157-58 (La. 1993)) (in case
of asbestos exposure, holding that prescription commenced when the plaintiff
was definitively diagnosed with asbestosis, where previous doctors had told
him his x-ray abnormalities could be the result of multiple causes and he
previously had no symptoms).       However, McLaughlin’s situation is quite
different. As we have said, here the undisputed evidence shows that she had
actual or constructive knowledge of her claims by October 2010, when she told
two doctors that her heart valve damage was caused by Paxil and retained an
attorney to pursue the claim. Thus, the doctrine of contra non valentem did
not toll the prescriptive period. See Boyd, 656 So. 2d at 688-89.
                               III. Conclusion
      For the foregoing reasons, the district court’s grant of summary
judgment to the defendant is AFFIRMED.




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