IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-30263

CARL O. BROWN, JR.,

Plaintiff-Appellant,

versus

R. J. REYNOLDS TOBACCO

COMPANY, ET AL.,

Defendants,

R. J. REYNOLDS TOBACCO

COMPANY, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

(May 5, 1995)

Before HIGGINBOTHAM, SMITH, and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Carl Brown filed this products liability suit against various

cigarette manufacturers, claiming they were responsible for his

throat cancer. The district court granted summary judgment in

favor of the cigarette manufacturers and Brown appeals. This case

turns on whether its merit is to be measured by the Louisiana

Products Liability Act effective Septem ber 1, 1988, or Louisiana

tort law in place before that date. We find that the district

cou rt properly applied Louisiana's Products Liability Act to

Brown's claim and affirm the summary judgment.2 I.

In 19 91, Brown was diagnosed with and treated for throat

cancer. Brown, alleging that the cancer resulted from his fortyfive year smoking habit, filed suit in state court against numerous

cigarette manufacturers. He claimed recovery under four theories:

unreasonably dangerous per se; ultrahazardous activity;

misrepresentation, concealment, and conspiracy; and design defect.

The cigarette companies removed the action to federal court on

diversity grounds. On November 3, 1993, the district court granted

partial summary judgment against Brown on his first three claims.

On April 13, 1994, the court granted summary judgment against Brown

on his design defect claim. Brown filed this appeal.

II.

A.

In 1986, the Louisiana Supreme Court concluded that a

manufacturer could be held strictly liable for injuries caused by

a product found to be "unreasonably dangerous per se." H alphen v.

Johns-Manville Sales Corp. , 484 So. 2d 110, 113 (La. 1986). Soon

after the Halphen decision, the Louis iana legislature passed the

Louisiana Products Liability Act, whi ch became effective on

Septe mber 1, 1988. 1988 La. Acts No. 64 (codified at La. Rev.

Stat. Ann. §§ 9:2800.51-59 (West 1991)). The LPLA "establishes the

exclusive theories of liability for manufacturers for damage caused

by their products." Id. § 9:2800.52. The unreasonably dangerous

per se theory is not among those recognized by the LPLA, see Gilboy1 Brown does not contest on appeal the district court's

decision to grant summary judgment against him on his design defect

claim. To recover under a design defect theory, the LPLA requires

that a claimant introduce evidence of a safer alternative design.

La. Rev. Stat. Ann. § 9:2800.56(1) (West 19 91). Brown did not

satisfy this burden.

2 John Kennedy, "along with former professor H. Alston

Johnson III, drafted the [LPLA]. During the session in which the

legislature enacted the new legislation, [Kennedy] worked for its

passage as Special Counsel to Governor Buddy Roemer." 49 La. L.

Rev. at 565 (editor's note).

3 v. American Tobacco Co.

, 582 So. 2d 1263, 1264 (La. 1991); nor are

any of Brown's oth e r theories, except design defect. 1 One of the

legislature's primary purposes in enacting the LPLA was to overrule

Halphen

. S ee Senate Comm. on Judicia ry A, Minutes of Meeting of

May 17, 1988, at 3-5; see generally John Kennedy, A Primer on the

Louisiana Products Liability Act

, 49 La. L. Rev. 565 (1989)

[hereinafter A Primer ]. 2

The issue in this case is whether the law applicable to

Brown's action is the law in effect when Brown was significantly

exposed to tobacco products or the law in effect when Brown's

disease manifested itself

-- when the cause of action accrued.

Relying on the exposure theory, Brown argues that his case is

contro lled by pre-LPLA law. The district court, however, found

that because Brown's first evidence of injury appeared in 1991, the

lawsuit was controlled by the LPLA.

The Louisiana Supreme Court has ruled that the LPLA does not

apply retroactively because it is "substantive." See Gilboy , 582

So. 2d at 1264. As a general rule, "the determinative point in

time separating prospective from retroactive application of an4

enactment is the date the cause o f action accrues." C ole v.

Celotex Corp.

, 599 So. 2d 1058, 1063 (La. 1992) ( Cole I ). The LPLA

contains no language suggesting that the exposure rule or any other

rule, other than the general rule, applies. As such, we conclude

that the LPLA applies only to those causes of action that accrued

on or after September 1, 1988. Kennedy, A Primer

, supra , at 624;

see also William E. Crawford & David J. Shelby II, Review of Recent

Developments: 1991-1992 Torts , 53 La. L. Rev. 1011, 1014-15

(1993).

Brown could recover under pre-LPLA law if there were evidence

that his cause of action accrued before September 1, 1988. A cause

of ac tion accrues when a plaintiff may bring a lawsuit. C ole I

,

599 So. 2d at 1063 n.15. In a negligence action, for instance, the

claimant must be able to allege fault, causation, and damages. I d.

"'Louisiana is generous in its conception of damages, the slightest

being sufficient to support an action.'" I d. (quoting 12 Ferdinand

F. Stone, Louisiana Civil Law Treatise: Tort Doctrine § 12

(1977)).

Determining w hen a cause of action accrues has been the

subject of nu merous decisions, especially in the area of

prescription. Under Louisiana Civil Code article 3492, delictual

actions are subject to a one year liberative prescription, which

runs "from the day injury or damage is sust ained." "Damage is

considered to have been sustained, within the meaning of the

article, only when it ha s manifested itself with sufficient

certainty to support accrual of a cause of action." C ole v.5

Celotex Corp.

, 620 So. 2d 1154, 1156 (La. 1993) ( Cole II ); see also

Jones v. Texas & P. Ry. Co.

, 51 So. 582, 583 (La. 1910). Louisiana

courts have recognized that a claimant may not become aware of

damages suffered as a result of latent diseases until many years

after the damage has been sustained. See, e.g.

, Owens v. Martin

,

449 So. 2d 448, 451 n.4 (La. 1984). In these cases, prescription

will begin to run when the damage is sustained. However, contra

non valentem will suspend the running of the prescrip tive period

until the claimant knows or should reasonably know that he has

suffered damages. S ee id. ; see also Harvey v. Dixie Graphics,

Inc.

, 593 So. 2d 351, 354 (La. 1992); C orsey v. State Dep't of

Corrections

, 375 So. 2d 1 319, 1322 (La. 1979). With a latent

disease, this is usually upon diagnosis. S ee Owens

, 449 So. 2d at

451 n.4.

Brown's symptoms appeared in early 1991. Summary judgment was

proper because Brown produced no evidence that he suffered damages

or bodily injury, latent or otherwise, before September 1 , 1988.

Cf. Cole I

, 599 So. 2d at 1084 (Dennis, J., concurring) ("The

medical evidence in the present case established that the

plaintiffs began to sustain tissue damage shortly after the initial

inhalation of asbestos fibers; and that plaintiffs su stained

disti nct bodily injury in each year of their employment. . . .

Because the plaintiff workers sustained actual harm to their lungs

prior to October 1, 1976, their causes of action . . . accrued

prior to the effective date of [the statute]."). The only evidence

that Brown produced pertaining to his injury was an affidavit from6

Dr. Joel Nitzkin, an expert in the epidemiology of cancer. Dr.

Nitzkin state d that there "can be" a ten-year latency period

"between a person's exposure to cigarette smoke and the subsequent

development of laryngeal cancer." Dr. Nitzkin did not interview

Brown, examine Brown, or review Brown's medical records. He did

not discuss Brown's case or how far Brown's particular cancer had

advanced when it was diagnosed and treated. In short, the

affidavit is not sufficient to show that Brown suffered damages

before the effective date of the LPLA.

B.

Relying on the Louisiana Supreme Court's reasoning in Cole I

,

Brown argues that accrual analysis is inapplicable. In C ole I

, an

asbest os case, one of the main issues was how to allocate fault

among solidarily liable defendants. The answer turned on whether

the applicable law was the Louisiana Comparative Fault Law, Act 431

of 1979, which became effective on August 1, 1980, or pre-Act 431

law.

The court began by stating that "[i]n the absence of contrary

legislative expression, substantive laws apply prospectively only."

Id. at 1063 ( quoting La. Civ. Code Ann. art. 6 (West 1993)).

Article 6 required the court to conduct a two-part inquiry:

"First, we must ascertain whether in the enactment the legislature

expressed its intent regarding retrospective or prospective

application. If the legislature did so, our inquiry is at an end.

If the legislature did not, we must classify the enactment as

substantive, procedural or interpretive." C ole I

, 599 So. 2d at7

1063. The court of appeal had concluded that the Comparative Fault

Law was substantive and, therefore, the determinative point was

when the cause of action accrued. It applied the old law

concluding that the claim accrued before the Comparative Fault Law

became effective.

The Louisiana Supreme Court came to the same conclusion, but

by a different route. It found determinative the statute's

"expressed legislative intent." I d. at 1064. Section 4 of Act 431

stated: "The provisions of this act shall not apply to claims

arising from events that occurred prior to the time this act

becomes effective." I d. (emphasis added and footnote omit ted).

The court rejected the suggestion that it read the term "events" as

"encompassing the requisites for asserting a cause of action, which

are synonymous with the requisites for a cause of action accruing."

Id. at 1065. Instead, the court interpreted the term "events" as

"the repeated tortious exposures resulting in continuous, on-going

damages, although the disease may not be considered contracted or

manifested until later.

. . . [W]hen the tortious exposures

occurring before Act 431's effective date are significant and such

exposures later result in the manifestation of damages, pre-Act law

applies." Id. at 1066.

In reje cting the view that "events" is synonymous with the

requisites for a cause of action accruing, the court noted that the

lengthy latency period between the tortious conduct (i.e.,

exposure) and the appearance of injury made it difficult, if not

impossible, to pinpoint the date on which the plaintiff contracted8

the disease. I d. at 1065-66; see also R.J. Reynolds Tobacco Co. v.

Hudson

, 314 F.2d 776, 780 (5th Cir. 1963) (in a cas e involving

cancer of the larynx and vocal cords resulting from years of

smoking, the court found that "[t]he interplay o f objective

manifestation of the disease and subjective knowledge by the

plaintiff makes it impossible in this case to fix the date of the

commencement of prescription as a matter of law"). "[T]his

inability to pinpoint when injuries were sustained in asbestosis

cases renders determining the date on which a plaintiff's cause of

action accrued a herculean task." Cole I , 599 So. 2d at 1066.

The Cole I court also relied on Koker v. Armstrong Cork, Inc.

,

804 P.2d 659 (Wash. Ct. App.), review denied , 815 P.2d 265 (Wash.

1991). In 1 985, Koker, a worker exposed to asbestos, filed suit

against asbestos manufacturers. The Washington legislature had

passed its Tort Reform Act four years earlier. Koker argued that

his claim was not controlled by the Act, which declare d that it

applied "'to all claims arising on or after July 26, 1981.'" Id.

at 662 (emphasis added). The court found that when the Act was

o riginally drafted, the legislature had used the word "accruing"

rather than "arising." I d. Noting that the terms are not

synonymous, the court held that "a claim arises when the injury

producing event takes place, not when the claim is filed." I d. at

663. Thus, "[b]ecause the harm here results from exposure

(continuous in nature), it appears that substantially all of the

events which can be termed 'injury producing' occurred prior to the

adoption of the Act." Id. at 663-64.9

Brown suggests that we, too, should tailor our decision to the

special circumstances presented by torts causing long-term latency

diseases. Brown cites lower court cases interpreting Cole I

broadly. We also have found cases in which courts appear willing

to read "arising" and "events" language into otherwise silent

statutes.

In Coates v. AC & S, Inc. , 844 F. Supp. 1126, 1131 (E.D. La.

1994), the court held that Cole I "adopted the 'significant

exposure' test to determine the law applicable to negligence causes

of action in long-term latency disease cases." I n Coates the court

interpreted the Comparative Fault Law and not the LPLA, and Coates,

unlike Brown, sued under a negligence theory rather than a strict

products liability theory. The court in P owell v. B.P. Chems.,

Inc.

, 847 F. Supp. 444 (M.D. La. 1993), stated the Cole I rule more

broadly. It held that in Louisiana, "a cause of action for latent

injuries sustained due to tortious exposures to a substance arises

at the time when there are significant and continuous exposures to

the substance." I d. at 447. However, in P owell

, the plaintiffs

alleged that executive officers negligently breached their duty to

maintain a reasonably safe workplace; the court did not invoke

principles of products liability.

In St. Paul Fire & Marine Ins. Co. v. Smith , 609 So. 2d 809

(La. 1992), the court seemed to read "arising out of events"

language into a workers' compensation statute, Act 454 of 1989

amending La. Rev. Stat. Ann. § 23:1103. Section 23:1103 provides

t hat an employer can be reimbursed for its workers' compensat ion10

outlays out of any damages recovered by the employee. Before Act

454, employers could recoup workers' compensation costs only out of

damage awards for medical costs and lost wages. Act 454 took

effect on January 1, 1990.

In St. Paul

, the employer's insurer sought to recover its

workers' compensation outlays from the employee's non-economic

damage awards. Because the employee had sustained his injuries on

May 19, 1988, the issue was whether the new act applied

retroactively. The court first looked to C ole I and found that,

unlike the comparative fault statute, Act 454 contained "no clear

and unmistakable expression of legislative intent regarding

retrospective or prospective application." I d. at 81 7. The

analysis then shifted to the second step: whether the statute was

substantive, procedural, or interpretive. The court concluded that

the Act was substantive and, therefore, applied prospectively only.

Id. at 817-22. In the opinion's concluding paragraph, the court

noted that "this change in the law

. . . is substantive a nd thus

cannot be applied retroactively to rights and duties arising out of

events which occurred prior to this change in the law." I d. at 822

(emphasis added). The language is curious because the "arising out

of events" language did not appear in the statute.

St. Paul gives little guidance because within two years, the

Louisiana Supreme Court decided S telly v. Overhead Door Co.

, 646

So. 2d 905, 912 (La. 1994). In Stelly

, the court faced the issue

of whether Act 454's amendment of section 23:1032 was retroactive.

In deciding that the amendment worked a substantive change and11

could not be applied retroactively, the court used "accruing"

language rather than St. Paul 's "arising out of events" language.

Id. at 912.

Additional reasons exist not to rely on St. Paul . The issue

in St. Paul was whether the statute had only a prospective reach.

That the LPLA has only a prospective reach is not disputed here.

Rather, the issue is whether Brown's exposure was sufficient to fix

his claim before the LPLA became effective. Moreover, Louisiana

courts take into account the history and policy behind a statute

when interpreting its provisions, and the court in S t. Paul had no

occasion to interpret the LPLA. S ee Stelly

, 646 So. 2d at 909.

Overruling Halphen was one of the legislature's main objectives in

enacting the LPLA. Adding C ole I to the LPLA would give Halphen a

vitality that the Louisiana legislature most likely did not

anticipate or int end. Lastly, the S t. Paul court was not faced

with the difficulties attending latent illnesses; it was clear that

the plaintiff 's cause of action accrued before the statute's

effective date.

It is true that some decisions state the rule that the LPLA is

not retroactive with language such as the "LPLA does not apply to

cases arising before September 1, 1988." B erry v. Commercial Union

Ins. Co.

, 565 So. 2d 487, 490 (La. Ct. App.) (emphasis added), writ

denied , 569 So. 2d 959 (La. 1990); accord Cates v. Sears, Roebuck

& Co.

, 928 F.2d 679, 683 n.8 (5th Cir. 1991); Laing v. American

Honda Motor Co.

, 628 So. 2d. 196, 201 n.1 (La. Ct. App. 1993), writ

denied

, 635 So. 2d 239 (La. 1994); see also Clement v. Griffin

, 6343 This conclusion finds further support in the LPLA's

legislative history. After the Senate's Judiciary Committee

recommended the bill favorably to the full Senate, a floor

amendment was offered that would have excluded tobacco and asbestos

manufacturers from the LPLA. S ee Senate Legislative Calendar (May

25, 1988). The Senate rejected the amendment. Id.

The only other piece of legislative history that speaks to the

issue before us is an amendment that was proposed by the bill's

sponsor but, in a compromise, deleted. That amendment would have

changed section two of the Act to read: "This Act shall become

12 So. 2d 412, 423 n.1 (La. Ct. App.), writ denied

, 637 So. 2d 478,

4 79 (La. 1994); J ohn N. Kennedy, The Dimension of Time in the

Louisiana Products Liability Act

, 42 La. B.J. 15, 15 (1994). Under

the Koker court's analysis, relied on in Cole I

, this "arising"

language lends support to Brown's ably argued contention that the

relevant point of inquiry is when the injury-producing events took

place. See Koker , 804 P.2d at 663.

We cannot be faithful to our Erie duty, however, and follow

what is most likely stray language used by courts and commentators

not faced with the circumstances before us. S ee American Ban k &

Trust v. FDIC

, No. 94-40377, slip op. at 3239 (5th Cir. Mar. 29,

1995). As one of the LPLA's drafters put it:

Section 2 of

. . . the LPLA[] provides simply that '[t]his Act

shall become effective September 1, 1988.' There can be no

doubt, therefore, that the LPLA will apply in those cases

where the claimant's cause of action has accrued (because all

of the ele ments of his cause of action, including the

sustaining of damage, have occurred) on or after September 1,

1988.

Kennedy, A Primer

, supra

, 49 La. L. Rev. at 624 (footnote omitted).

Nowhere in the language of th e LPLA do we find an exemption from

the accrual rule for tobacco or asbestos cases, and we cannot read

such language into the statute. 3effective September 1, 1988 and shall apply to causes of action for

damages sustained on or after th at date." Senate Legislative

Calendar (May 17, 1988); S. 684 (original version). This amendment

would suggest that its sponsor wanted the Senate to adopt an

accrual basis for determining what law applies to causes of action.

Its deletion, the argument would run, means t hat the legislature

intended for a rule other than accrual to apply.

While this argument has some appeal, its conclusion is not

borne out by the facts. The legislature agreed "to remove this

provision, substitute the [current] language and allow the issue of

retroactivity to be determined by whether the LPLA is deemed to be

a substantive or procedural law." Kennedy, A Primer

, s upra

, 49 La.

L. Rev. at 625. Thus, rather than conveying a particular message,

the amendment's deletion was intended to convey no message.

13 C.

Although we recognize the difficulties of applying an accrual

test to determine what law applies in cases involving latent

injuries, see Hudson

, 314 F.2d at 780 , we are constrained by the

language of the statute. The LPLA states only that it "shall

become effective on September 1, 1988." There is no "arising" or

"events" language to support a departure from the general rule that

the applicable law is determined according to the date a cause of

action accrues. Because there is no evidence that Brown sustained

injury, latent or otherwise, before the LPLA's effective date, we

find that the LPLA applies and that the district court properly

granted summary judgment in favor of the cigarette manufacturers.

III.

Brown also argues that applying the LPLA deprives him of due

process. This contention begs Brown's central question, however,

because the only due process claim that Brown could raise is that

by applying the LPLA to this case, we deprive him of his vested14

right to recover under pre-LPLA law. This argument fails because

a claimant only gains a vested right in a cause of action when that

cause accrues. See Cole I , 599 So. 2d at 1063 ("Once a party's

cause of action accrues, it becomes a vested property right that

may not constitutionally be divested."). For the reasons we have

stated, there is no evidence indicating that Brown's action accrued

before the LPLA's effective date. Applying the LPLA does not

deprive Brown of any right secured to him by the Due Process

Clause.

AFFIRMED.