     Case: 10-30634     Document: 00511515726          Page: 1    Date Filed: 06/21/2011




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

                                                  FILED
                                                                            June 21, 2011

                                       No. 10-30634                         Lyle W. Cayce
                                                                                 Clerk

SOUTHERN PAIN & ANESTHESIA CONSULTANTS, LIMITED LIABILITY
CORPORATION; PAUL JOSEPH HUBBELL, III,




                                                   Plaintiffs - Appellants

v.

RF MEDICAL DEVICES, INCORPORATED; MERCURY MEDICAL
PRODUCTS, INCORPORATED, doing business as Precision Medical
Engineering, Incorporated; NEUROTHERM, INCORPORATED; GENERAL
STAR INDEMNITY COMPANY; TYCO HEALTHCARE GROUP LIMITED
PARTNERSHIP; RADIONICS, INCORPORATED; VALLEYLAB,
INCORPORATED; NOETIC SPECIALTY INSURANCE COMPANY,

                                                   Defendants - Appellees




                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:08-CV-827


Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30634

      Southern Pain & Anesthesia Consultants, LLC and Dr. Paul Hubbell
(“Plaintiffs”) appeal the district court’s grant of summary judgment for the
defendants in this case, a group of medical device manufacturers and their
insurers. The suit arises from a failed annuloplasty procedure that Dr. Hubbell
performed on Toni Peavy in February 2004. The procedure used the defendants’
medical product “discTRODE” and resulted in significant injury to Peavy. Peavy
subsequently brought a state court action against Dr. Hubbell and all of the
defendants in this case, alleging medical malpractice and product defect claims,
respectively. In December 2008, while Peavy’s suit was pending, the Plaintiffs
filed the underlying suit seeking indemnification and tort damages. The district
court granted judgment for the defendants after concluding that the Plaintiffs’
tort claims had prescribed under Louisiana law.
      We review the district court’s grant of summary judgment de novo. Holt
v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). On appeal, the
Plaintiffs’ sole argument is that the district court erred in concluding that their
tort claims had prescribed. The Plaintiffs argue that because they alleged the
same tort claims as Peavy did in her suit and both suits arise from the 2004
procedure, Peavy and the Plaintiffs share an “identity of interest.” As a result,
Plaintiffs assert, Peavy’s suit interrupted prescription and their tort claims did
not begin to run until Peavy’s suit was dismissed in March 2009.
      “When it is clear on the face of a plaintiff's petition that prescription has
run, the plaintiff bears the burden of showing why the claim has not prescribed.”
Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.
1993). Louisiana has a one-year prescription period for tort (delictual) claims,
which “commences to run from the day injury or damage is sustained.” L A. C IV.
C ODE art. 3492. The district court determined that the Plaintiffs became aware
of the facts giving rise to their tort claims by December 6, 2007, a finding the
Plaintiffs do not challenge. The Plaintiffs filed their suit over a year later, on

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                                   No. 10-30634

December 19, 2008, and thus their tort claims were prescribed on their face.
Below, the Plaintiffs attempted to carry their burden of proof by arguing that
Peavy’s suit had interrupted prescription, an argument they renew here.
      The Louisiana Supreme Court has stated that where a “subsequent
claimant is a different person than the original plaintiff”—as here—“then to
interrupt prescription [1] the first suit must . . . be based upon the same factual
occurrence as is the subsequent claim by amended petition or intervention;” and
“[2] the subsequent claimant must also be closely connected in relationship and
identity of interest with the original plaintiff.” Allstate Ins. Co. v. Theriot, 376
So. 2d 950, 954 (La. 1979), abrogated on other grounds by Stenson v. City of
Oberlin, — So. 3d —, 2011 WL 893394 (La. Mar. 15, 2011). The Plaintiffs argue
that their tort claims meet the Theriot “test” for interruption by a previous suit.
      We do not agree. To begin with, the Plaintiffs did not bring their tort
claims “by amended petition or intervention” in Peavy’s suit; they inexplicably
brought them in a wholly separate action four years after Peavy’s original
pleading. Second, the Plaintiffs have not shown that they share a sufficiently
close “relationship and identity of interest” with Peavy. Such a relationship
exists between a subroger and subrogee; a deceased defendant and his survivors;
and an employer’s insurer and employee. See Theriot, 376 So. 2d at 954 (listing
cases). Louisiana courts have also found that where a tortfeasor-defendant files
a third-party demand and the original plaintiff subsequently amends his petition
to sue the same third party, the third-party demand may interrupt prescription
on the plaintiff’s new claim. See id. at 954 n.4 (citing Carona v. Radwin, 195 So.
2d 465 (La. Ct. App. 1967)). As the district court found, the relationship between
Peavy and the Plaintiffs does not comport with any that the Louisiana courts
have recognized as permitting interruption.
      Similarly, the Plaintiffs do not “share a single cause of action” with Peavy
that would warrant interruption. “[W]hen several parties share a single cause

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                                   No. 10-30634

of action (as through partial subrogation), suit by one interrupts prescription as
to all.” Louviere v. Shell Oil Co., 440 So.2d 93, 96 (La. 1983). “However, when
a suit by a second party states a different cause of action than the suit by the
first party, although each cause of action is based in part on common facts, the
first suit does not interrupt prescription as to the subsequent cause of action.”
Id. For purposes of this principle, a “cause of action consists of the material facts
which form the basis of the right claimed by the party bringing the action.” Id.
at 95. In their complaint, the Plaintiffs alleged a right to recover for economic
damages incurred as a result of Peavy’s medical malpractice claims against
them. This alleged cause of action is not identical to Peavy’s right to recover for
physical injuries resulting from the 2004 procedure.
      For the above reasons, the judgment of the district court is AFFIRMED.




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