1 Senior Judge of the Western District of Louisiana, sitting by designation.

2 The district court noted:

There is no evidence to support the assertion that the Lyodura used on Nesom had

any condition which would cause any injury. The only "condition' of Tri Hawk's

product that could have caused Nesom's emotional distress was the possibility that

the Lyodura Dr. Culicchia used in his operation had the same contaminating agents

as the Lyodura used in Connecticut. Nesom would have this Court accept as a

condition of all of Tri Hawk's product, the condition of one specific package

without any proof that the condition would be common to the whole product line.

United States District Court of Appeals,

Fifth Circuit.

No. 92-3461.

Richard M. NESOM, Plaintiff-Appellant, Cross-Appellee,

v.

TRI HAWK INTERNATIONAL, Defendant-Appellee-Cross-Appellant,

Kansa General Insurance Company, et al. Defendant-Appellee.

March 8, 1993.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before DUHÉ and BARKSDALE, Circuit Judges and HUNTER 1 , District Judge.

EDWIN F. HUNTER, Jr., Senior District Judge.

This Louisiana diversity case was brought by Richard Nesom. He seeks recovery for mental

anguish or emotional distress premised upon the possibility that he might develop Creutzfeldt-Jakob

Disease ("CJD"), a fatal neurological disease. The district court entered summary judgment in favor

of Tri Hawk on the basis that plaintiff was not entitled to maintain a cause of action for his alleged

"fear of contracting a disease in the future, absent an accompanying physical injury and absent any

proof that he was actually exposed to the disease which is the source of his fear." 2 The parties agree

that Louisiana law governs. This Court will interpret questions of state law "de novo". S alve Regina

College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

BACKGROUND

On April 8, 1987, plaint iff, Richard Nesom, underwent a craniotomy at Meadowcrest Hospital3 On March 3, 1987, the F.D.A. advised Tri Hawk of this case.

4 Counsel noted in oral argument that 75 boxes of Lyodura from lot 2105 were sent to Tri

Hawk, and the rest sent to 6 other countries.

5 Dr. Culicchia stated that this probability was given to him by physicians in the FDA who made

their calculations based upon the number of cadavers and boxes comprising lot 2105. in Gretna, Louisiana. The operation was performed by Dr. Carl Culicchia, a neurosurgeon. Human

dura was grafted to torn tissue in plaint iff's brain. B. Braun Melsungen A.G. ("BBM"), a German

company, harvests dura from cadavers, prepares and packages it in sealed containers, and sells it

int ernationally through a number of distributors under the trade name "Lyodura". BBM sold t he

Lyodura used on Nesom to Tri Hawk, a Canadian corporati on. Tri Hawk sold the Lyodura to

Meadowcrest in October of 1984.

Shortly after Nesom's operation, Meadowcrest Hospital received an FDA Safety Alert dated

April 28, 1987, which stated that there was a risk of transmitting Creutzfeldt-Jakob Disease ("CJD")

to surgical patients through possibly contaminated batches of human dur a. A case of CJD i n

Connecticut linked to the use of Lyodura prompted the Alert. 3 The Alert stated that the material in

question was prepared by BBM and distributed by Tri Hawk. The Lyodura used in the Connecticut

operati on was from lot 2105, and the Alert recommended that any Lyodura from packages bearing

lot numbers beginning with the digit "2" be disposed of. The Lyodura used in Nesom's operation was

also from BBM lot 2105. Lyodura from the same lot does not necessarily come from the same

cadaver. 4 The lot number represents one day's production of dura mater.

Upon receiving this Safety Alert, Dr. Culicchia informed Nesom that the dura used in his

operati on may have been contaminated with CJD-causing agents. At the outset, he told Nesom that

they had currently calculated that the likelihood of a recipient of dura from lot 2105 developing CJD

was one-in-one thousand. 5 To date, Nesom has not suffered any symptoms o f CJD, no r has any

doctor diagnosed the presence of CJD during the almost six (6) years since the neurosurgery. Dr.

Culicchia stated that it is currently highly unlikely that plaint iff will contract CJD in the future. The

longest recorded incubation period for the disease was thirty-one months, and more typically the6 These estimates were provided by Dr. Culicchia.

incubation period is six to eighteen months. 6

On March 16, 1988, Nesom filed this suit against Tri Haw k under the Court's di versi ty

jurisdiction. By amended complaint, Nesom added BBM as a defendant, but the Court subsequently

dismissed BBM for lack of personal jurisdiction. The complaint alleges that Tri Hawk is strictly liable

for having distributed contaminated Lyodura in this country, and also that it is liable in negligence for

failing to test the Lyodura and failing to verify that the processor of the Lyod ura had followed

stringent procedures.

DISCUSSION

At the core of this appeal is the question of whether Nesom can maintain a claim for emotional

distress absent evidence that the Lyodura was actually contaminated and absent evidence of physical

injury resulting from the Lyodura. This Court agrees that Nesom cannot maintain this claim under

the facts of this case.

Plaint iff argues that Tri Hawk owed a duty to warn Nesom of the potential hazard posed by

Lyod ura Lot 2105, irrespective of whether the Lyodura utilized in the operation was actually

contaminated. Louisiana law does not permit a party to maintain an action for mental anguish based

on an alleged "fear" of contracting a disease in the future absent a showing that the party was actually

exposed to a contaminated agent. B roussard v. Olin Corp., 546 So.2d 1301 (La.App. 3d Cir.1989).

In B roussard, a plaint iff was exposed to phosgene gas. He was not al l owed to present evidence

regarding his fear of cancer, or to recover for his fear of cancer because he could not establish that

cancer could result from phosgene gas poisoning. B roussard, supra, at 1303. Similarly, Appellant

cannot provide the basis for an award for me nt al anguish resulting from his "fear" of CJD absent

proof that the Lyodura used in his surgery was contaminated or tainted with CJD. As stated by the

district court in its written opinion, there is "... no evidence that Nesom's Lyo dura contained

CJD-causing agents." The fact that some of the human dura mater in the batch of Lyodura used in

plaint iff's surgery could possibly have been contaminated with CJD does not suffice. Plaint iff must

show more than a mere possibility.7 In Clomon, the court was sharply divided, and was by no means unified in its decision.

The starting point for weighing the appropriate Louisiana law in this case is Article 2315 of

the Louisiana Civil Code:

Art. 2315. Liability for acts causing damage.

Every act whatever of man that causes damage to another obliges him by whose fault

it happened to repair it. * * *

This article was intended to encompass

innumerable acts which constituted faults under whatever form they appeared. The framers

conceived of fault as a breach of preexisting obligation, for which the law orders reparation,

when it causes damage to another, and they left it to the court to determine in each case the

existence of an anterior obligation w hich w ould make an act constitute fault.

Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1156 (La.1988), emphasis in original. With

respect to inflict

ion of emotional distress absent physical injury or contact, Louisiana law has been

capsulized as follows:

[T]he evolving view is toward the recognition of a duty imposed on the defendant to refrain

from the negligent inflict

ion of serious emotional distress in special circumstances where the

mental anguish is the clearly foreseeable result or when a special relationship exists between

the plaintiff and the defendant.

Clomon v. Monroe City School Board, 572 So.2d 571, 583-84 (La.1990).

In Clomon, the Louisiana Supreme Court permitted a motorist who struck and killed a child

to collect damages for emotional distress from the school bus driver who negligently discharged the

child from his bus. The motorist was permitted to recover despite the fact that she suffered no

physical injury or apparent impact to her body, did not know the child, and was found contributorily

negligent to boot. 572 So.2d at 573. 7

Clomon reiterated the Louisiana Supreme Court's landmark holding i n Lejeune v. Rayne

Branch Hospital, 556 So.2d 559, 567 (La.1990), which marked Louisiana's aban donment of the

"impact" and "zone of danger" rules developed in common law jurisdictions.

A claimant need not be physically injured, nor suffer physical impact in the same accident in

order to be awarded mental pain and anguish damages arising out of injury to another. Nor

need he be in the zone of danger to which the directly injured party is exposed.

One must conclude pursuant to Clomon, 572 So.2d 571 (La.1990); and L ejeune, 556 So.2d8 A second case of CJD following a graft of Lyodura appeared in 1988 in New Zealand. See

Updated: Creutzfeldt-Jakob Disease in a second patient w ho received a cadaveric dura mater

graft, Morbidity and Mortality Weekly Report, Jan. 27, 1989, at 37 (Def.Supp.Ex.G). However,

lot 2105 was not distributed in New Zealand. The Connecticut case is the only instance presented

to the Court of CJD occurring after a graft of Lyodura from lot 2105. 559 (1990), that under special circumstances, physical harm or physical impact is not a prerequisite

to recovery for emotional distress.

Despite the language in Clomon and Lejeune, the Louisiana Supreme Court in Moresi,

recognized the general rule that, "if the defendant's conduct i s merely negligent and causes only

mental disturbance, without accompanying physical injury, illness or other physical consequences, the

defendant is not liable for such emotional disturbance." M oresi v. Dept. of Wildlife & Fisheries, 567

So.2d 1081 (La.1990). However, the court quickly added that in Louisiana there have been

deviations from the general rule. I d. The court emphasized that in all the cases which permitted

recovery for emotional distress absent ph ysical injury, the common factor running through the

decisions is that there were "special circumstances which serve as a guarantee that the claim is not

spurious." M

oresi, s upra. The court concluded in M oresi that the plaint iffs could not recover

damages for mental distress which they suffered when they erroneously received a threatening note

from DWF agents. Moresi, 567 So.2d at 1096.

Similarly, Nesom can not demonstrate that he has been exposed to the CJD agent. To allow

someone to recover merely because he fears that he may have been exposed to a dangerous substance

goes too far. Such circumstances do not provide a sufficient indicia of reliabilit y. 8 To sanction the

theory of recovery argued here, would open the door to thousands of plaintiffs who claim that they

have suffered damages caused by fear of possible exposure to some dangerous substance or another

without even proof of actual exposure to that danger. The special circumstances which guarantee

bona fide and genuine claims ( Moresi ) are not present when the claimant cannot prove that he has

been exposed to an injurious substance. Nesom cannot maintain an action for fear of contracting a

disease in the futur e, absent evidence that he was actually exposed to the CJD agent which is the9 During oral argument, counsel for Nesom argued that the recent decision of Cotita v.

Pharma-Plast, U.S.A., Inc., 974 F.2d 598 (5th Cir.1992), strongly supported his position. We

find nothing in that case, to the extent it is relevant, to undermine the fact that an essential element

of Nesom's case required proof of exposure to the disease which is the source of his fear. Cotita,

a registered nurse, as a result of Pharma-Plast's admitted defective packing, was exposed to the

blood of an AID's patient. He sued Pharma-Plast seeking damages for mental anguish stemming

from fear of contracting AIDS. It is unclear from the record whether Cotita was actually exposed

to the HIV virus. In any event, the issue was not raised or discussed on appeal and the case is of

limited relevance to the issues raised in the instant case.

10 The jurisdictional questions involved with B. Braun Melsungen A.G. and Kansa General

Insurance Co., Ltd. are now moot and need not be addressed. source of his fear. There is no such proof here. 9

The plain language of Rule 56(c) mandates the en t ry o f summary judgment after adequate

discovery and upon motion against a plaint iff who does not make a showing sufficient to establish the

existence of an element essential to his case, and on which he bears the burden of proof at trial. Here,

by way of repetition, the district court correctly noted that there was no evidence that the Lyodura

used in the surgery was contaminated with a CJD agent. This conclusion is correct. "No genuine

issue of material fact" remains because a complete failure of proof concerning an essential element

of the non-moving party's case necessarily renders all other facts immaterial. C elotex Corp. v.

Catrett, 477, U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). 10 We find no legal

error and the judgment below is

AFFIRMED.