     Case: 16-31133      Document: 00513996450         Page: 1    Date Filed: 05/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-31133                                FILED
                                  Summary Calendar                          May 17, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
CORY JENKINS,

              Plaintiff - Appellant

v.

BRISTOL-MYERS SQUIBB COMPANY; OTSUKA AMERICA
PHARMACEUTICAL, INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-2499


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff Cory Jenkins filed this lawsuit on October 17, 2014, asserting
two claims under the Louisiana Products Liability Act (LPLA). The district
court held that both of Jenkins’s claims had prescribed, and entered summary
judgment in favor of Defendants Bristol-Myers Squibb Company and Otsuka




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-31133
America Pharmaceutical, Incorporated. Finding the district court’s opinion to
be thorough, well-reasoned, and correct, we AFFIRM.
                                               I.
      We review a district court’s grant of summary judgment de novo, viewing
all facts and drawing all inferences in a light most favorable to the non-moving
party. 1 Summary judgment is proper when there is “no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 2
                                               II.
                                               A.
      Jenkins suffers from bipolar disorder, for which he began to take Abilify
in October 2010. Abilify is an FDA-approved medication. However, like many
FDA-approved medications, it has potential side-effects. One of those potential
side-effects is tardive dyskinesia. Tardive dyskinesia is a severe neurological
disorder that causes involuntary muscle movements, or twitching.
                                               B.
      Jenkins “first noticed twitching in his legs and arms in the late Fall of
2012 and the early part of 2013.” In April 2013, Dr. Dean A. Hickman of
Ochsner Medical Center in New Orleans, Louisiana, told Jenkins to stop
taking Abilify because he suspected that Abilify may have given him tardive
dyskinesia which may be causing him to twitch. Jenkins complied, and his
twitch went away. Jenkins even went so far as to cancel a May 2013 doctor’s
appointment because he “was off Abilify and that’s what was causing” the
twitching.
      With limited exceptions inapplicable here, actions brought under the
LPLA are subject to a one year prescriptive period, which “commences to run



      1   Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016).
      2   Fed. R. Civ. P. 56(a).
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                                       No. 16-31133
from the day injury or damage is sustained.” 3 In Louisiana, damages are said
to be sustained “when [the damage] has manifested itself with sufficient
certainty to support accrual of a cause of action.” 4
       The district court held that Jenkins first sustained injuries in April 2013.
“Tremors, fidgeting, and jaw clenching,” the court wrote, “are cognizable
injuries that can support a cause of action” under Louisiana law. Jenkins
argues that “there is a serious factual dispute over whether [he] had even
developed” tardive dyskinesia in April 2013. Yet even assuming that such a
dispute exists, it is immaterial and therefore cannot create a genuine dispute
of material fact.
       “For purposes of summary judgment, an issue is ‘material’ if it involves
a fact that might affect the outcome of the suit under the governing law.” 5
Under Louisiana law, “[t]he commencement of prescription does not . . . wait
for the pronouncement of a victim's physician or of an expert.” 6 A “cause of
action accrues when damages are first suffered.” 7 “[T]he crucial date for the
prescriptive period is the date of injury and not the date of diagnosis.” 8
       Jenkins does not dispute that he sustained “tremors, fidgeting, and jaw
clenching” in April 2013. At that moment, both of his LPLA claims accrued.
                                             C.
       We turn next to the doctrine of contra non valentem, which ensures that
“Louisiana’s one-year prescriptive period does not begin to run until the



       3 LA. CIV. CODE ANN. art. 3492.
       4 Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993).
       5 In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000) (internal quotations and alterations

omitted).
       6 Luckett v. Delta Airlines, Inc., 171 F.3d 295, 300 (5th Cir. 1999) (citing Hunter v.

Sisters of Charity of Incarnate Word, 236 So. 2d 565, 568 (La. Ct. App. 1970)).
       7 Grenier v. Med. Eng'g Corp., 243 F.3d 200, 204 n.2 (5th Cir. 2001).
       8 Crosby v. Am. Med. Sys., Inc., No. CIV. A. 89-4882, 1991 WL 194724, at *2 (E.D. La.

Sept. 20, 1991).
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                                     No. 16-31133
plaintiff has actual or constructive knowledge of the tortious act, the damage,
and the causal relationship between the tortious act and the damage.” 9 At its
heart, contra non valentem is an equitable doctrine that tolls prescription for
as long as “a plaintiff acts reasonably to discover the cause of a problem.” 10 Its
application depends upon the “reasonableness of a plaintiff's action or
inaction.” 11 “[P]rescription does not run as long as it was reasonable for the
victim not to recognize that the [injury] may be related to the [tort].” 12
      Jenkins argues “that a reasonable person would [not] have acquired the
knowledge necessary to commence prescription” until October 18, 2013, when
Dr. David Houghton, a neurologist, referred Jenkins to another doctor in order
to address what Houghton believed to be an undiagnosed, movement-based
disorder. Jenkins admits that Dr. Houghton did not tell him that his twitching
was related to Abilify. Nonetheless, Jenkins asserts – without explanation –
that he first “acquired the knowledge necessary to commence prescription” on
October 18, 2013.
      We disagree. Tolling pursuant to contra non valentem ends, and the
prescriptive period begins, on “the date the injured party discovers or should
have discovered the facts upon which his cause of action is based.” 13 Tolling
does not continue until “conclusive, dispositive proof of a causal connection
between the suspected injury and the putative tortfeasor is established.” 14
Jenkins knew that his twitching may have been related to Abilify in April 2013.
He said as much in his deposition under oath.



      9  Knaps v. B & B Chem. Co., 828 F.2d 1138, 1139 (5th Cir. 1987); see also Cole, 620
So. 2d at 1156.
       10 Chevron USA, Inc. v. Aker Mar., Inc., 604 F.3d 888, 894 (5th Cir. 2010).
       11 Jordan v. Employee Transfer Corp., 509 So. 2d 420, 423 (La. 1987).
       12 Ibid. (quoting Griffin v. Kinberger, 507 So. 2d 821, 823—24 (La. 1987)).
       13 Eastin v. Entergy Corp., 2003-C-1030, p. 7 (La. 02/06/04); 865 So.2d 49, 55.
       14 Carter v. Matrixx Initiatives, Inc., 391 F. App’x 343, 345–46 (5th Cir. 2010)

(unpublished).
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       Q.     And so do you remember that Dr. Hickman [in April 2013]
              told you that he was taking you off of [Abilify] because he
              was concerned about the movement issues you were having?
       A.     He did specifically say to me that the movement issues I was
              having could possibly be caused by a medication. I mean, he
              couldn't – He couldn't explain it any other way other than
              that.
       ...
       Q.     But you do understand that [Dr. Hickman] took [you off
              Abilify] because of these movement issues including the
              facial component, jaw clenching?
       A.     And also –– I’m sorry.
       Q.     Can you answer the question and then whatever you want
              to say?
       A.     Yes, he did –– I was under the impression he was taking me
              off of Ability to stop what was occurring as far as that was
              concerned. But I took it as this was going to be an easy fix.
              Basically I stop taking this medication and this whatever
              was occurring in my facial expressions was gonna stop and
              we just move on with life. I didn’t think it was something
              serious. Let’s say that.
Based upon this sworn testimony, we agree with the district court that
Jenkins’s LPLA claims are time-barred. Filed on October 17, 2014, they
accrued in April 2013 and prescribed twelve months later. 15


       15Jenkins further argues that because he was simultaneously taking multiple
medications, his LPLA claims should not accrue until April 2014, when he was first able to
determine “that his movement issues were caused solely by Abilify.” Appellant’s Br. at 21—
22 (emphasis in original). This argument too lacks merit. The question, with respect to contra
non valentem, is causation – not sole causation. When, in April 2013, Jenkins learned that
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                                              D.
       Lastly, Jenkins argues that even if we hold that his LPLA claims have
prescribed, we should remand for further discovery pursuant to Federal Rule
of Civil Procedure 56(d). We have repeatedly “foreclosed a party's contention
on appeal that it had inadequate time to marshal evidence to defend against
summary judgment when the party did not seek Rule 56[(d)] relief before the
[district court issued its] summary judgment ruling.” 16 Because Jenkins did
not seek Rule 56(d) relief before the district court issued its summary judgment
ruling, his request for Rule 56(d) relief is now foreclosed.
                                             III.
       The ruling of the district court is AFFIRMED.




his injuries “may be related to” Abilify, see Carter, 391 F. App’x at 345–46, his LPLA claims
against those who manufactured, marketed, and distributed Abilify accrued.
        16 Ferrant v. Lowe's Home Centers, Inc., 494 F. App’x 458, 463 (5th Cir. 2012)

(unpublished) (alteration in original) (internal quotations omitted) (citing Potter v. Delta Air
Lines, Inc., 98 F.3d 881, 887 (5th Cir. 1996)).
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