REVISED, June 23, 1999

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-30734

ESTHER B. HULIN, ET AL.

Plaintiffs

SUSAN H. BERRY; THOMAS HULIN; SALLY H. BLANCHARD;

MARY DESSELLE ROMANO; JOSEPH G. HULIN; JANET M. HULIN

Plaintiffs-Appellants;

VERSUS

FIBREBOARD CORPORATION, ET AL.

Defendants

AMERICAN TOBACCO COMPANY

Defendant-Appellee.

Appeal from the United States District Court

For the Middle District of Louisiana

June 9, 1999

Before DEMOSS, PARKER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The district court granted the defendants a summary judgment

dismissing the plaintiffs’ diversity products liability actions

based on Louisiana law on t he grounds that the decision of the

Supreme Court of Louisiana in Halphen v. Johns-Manville Sales2

Corp., 484 So. 2d 110 (La. 1986), does not apply retroactively to

causes of action which arose before the date it was decided,

February 24, 1986. We reverse and remand the case to the district

court for further proceedings. The Louisiana Supreme Court’s

decisions firmly establish the principles that under the state

constitution and the Civil Code, courts do not make law but

interpret and apply law made by the Legislature or derived from

custom. In accord with those principles, the state’s highest court

has held that when it interprets the law in deciding a controversy

between litigants in one case, that decision becomes the

controlling interpretation of state law and must be given full

retro active effect in all other cases, unless the court declares

otherwise or such application is barred by prescription or res

judicata. Moreover, when the court interprets and applies the

Civil Code in deciding a case, the foregoing general rule of

adjudicative retroactivity is reinforced by civil law doctrine,

under which the court’s decision is considered to be declarative of

what the Civil Code has always meant. The Louisiana Supreme Court

did not limit the retroactive effect of its decision in Halphen

, a

case in which it interpreted and applied the Civil Code provisions

of delictual law. Accordingly, under the E rie doctrine, we

conclude that the Louisiana Supreme Court, applying its longstanding rule, would determine that Halphen applies retroactively,

consistent with principles of res judicata and prescr iption.

Consequently, Halphen must be given retroactive effect by federal

courts in the same manner.3 I. FACTUAL AND PROCEDURAL BACKGROUND

On January 7, 1986, Esther B. Hulin, Susan H. Berry, Thomas

Hulin, Sally H. Blanchard, Mary H. Deselle, Joseph G. Hulin, and

Janet M. Hulin (“plaintiffs”) filed suit against American Tobacco

Company (“American Tobacco”) and various manufacturers of asbestoscontaining products (“defendants”) alleging that the defendants’

products contributed to the lung cancer and June 3, 1985 death of

Lenes J. Hulin, Jr., husband an d father of the plaintiffs. In

their complaint, the plaintiffs sought recovery under the theories

of strict liability, ultrahazardous activities, and negligence.

Six weeks after the complaint was filed, the Louisiana Supreme

Court in Halphen answered the certified question asked by this

federal court of appeals, by interp reting and applying the

Louisiana Civil Code and its jurisprudence thereunder, and

concluding that i f plaintiff proves that the product was

unreasonably dangerous per se, i.e., if a reasonable person would

conclude that the danger-in-fact of the product outweighs its

ut ility, whether because of defective design or another kind of

defect, or unreasonably dangerous in construction or composition,

a manufacturer may be held liable for injuries caused by the

product e ven though the manufacturer did not know and reasonably

could not have known of the danger. Halphen, 484 So. 2d at 116-17.

On November 23, 1987, the plaintiffs amended their complaint

to add a products liability claimalleging that tobacco is

unreasonably dangerous pe r se, i.e., because a reasonable person

would conclude that the danger-in-fact of toba cco outweighs its4

utility.

In April 1994, the district court in this case granted

American Tobacco’s motion for summary judgment and dismissed all of

the plaintiffs’ claims except their allegation that the defendants’

products were unreasonably dangerous per se. On July 29, 1996,

American Tobacco filed a motion in limine to determine the

applicability of Halphen t o this suit. On December 9, 1996, the

district court issued its Ruling on Motion in Limine To Determine

Applicability of Halphen, declaring that Halphen could not be

applied retroactively to this case. In a separate ruling on that

date, the court granted American Tobacco’s motion for summary

judgment and dismissed it from this case after concluding that the

plaint iffs’ sole remaining claim, that the defendants’ products

were unreason ably dangerous per se, was inapplicable in light of

the court’s nonretroactivity ruling. The plaintiffs appealed from

this judgment.

II. STANDARD OF REVIEW

A district c ourt’s decision of a question of state law is

subject to de novo review by this court. Salve Regina College v.

Russell, 499 U.S. 225, 231 (1991). A summary judgment ruling is

also reviewed de novo , applying the same criteria employed by the

district court. Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.

1994).

III. DISCUSSION

A. Federal Courts Must Apply The Law of the State,

Except in Matters Governed By the Federal Constitution

Or By Acts of Congress5

In Erie Railroad Co. v. Tompkins

, 304 U.S. 64 (1938), the

Supreme Court announced the governing principle that was to become

the heart of the Erie doctrine:

Except in matters governed by the Federal

Constit ution or by Acts of Congress, the law

to be applied in any case is the law of the

state. And whether the law of the state shall

be declared by its Legislature in a statute or

by its highest court in a decision is not a

matter of fe deral concern. There is no

f ederal general common law. Congress has no

power to declare substantive rules of common

la w applicable in a state whether they be

local in thei r nature or “general,” be they

commercial law or a part of the law of torts.

And no clause in the Constitution purports to

confer such a power upon the federal courts.

Id. at 78.

The Court has stated that, in determining the content of the

state law to be applied:

the underlying substantive rule involved is

based on state law and the State’s highest

court is the best authority on its own law.

If there be no decision by that court t hen

federal authorities must apply what they find

to be the sta te law after giving “proper

regard” to relevant rulings of other courts of

the State.

Commissioner v. Estate of Bosch

, 387 U.S. 456, 465 (1967); see also

id. at 477 (“[A]bsent a recent judgment of the State’s highest

court, state cases are only data fromwhich the law must be

derived. . . .” (Harlan, J., joined by Fortas, J., dissenting)).

See, e.g., Jackson v. Johns-Manville Sales Corp. , 781 F.2d 394,

397-98 (5th Cir.) (en banc) (In filling a void in state law the

federal c ourt may not do merely what it thinks best, but rather

must do what it thinks the state’s highest court would deem best.),6

cer t. denied, 4 78 U.S. 1022 (1986); Rogers v. Corrosion Prods.,

Inc., 42 F.3d 292, 295 (5th Cir.) (Although “[t]he decisions of

lower state courts should be given some weight,

. . . they are not

controlling where the highest state court has not spoken on the

subject.”), cert. denied, 515 U.S. 1160 (1995); R oginsky v.

Richardson-Merrell, Inc.

, 378 F.2d 832, 851 (2d Cir. 1967) (“[W]hen

a federal court must determine state law, it should not slavishly

follow lower or even upper court decisions but ought to consider

all the data the highest court of the state would use.”); 19 C HARLES

ALAN W RIGHT ET AL

. , F EDERAL P RACTICE AND P ROCEDURE § 4507, at 124 (2d ed.

1996) (“[A] responsible determination of state law involves

something more than checking the digests for state court decisions

on point[.]”); 19 W RIGHT ET AL

., supra at 126-30 (“[T]he federal

court must determine issues of state law as it believes the highest

court of the state would determine them, not necessarily (although

usually this will be the case) as they have been decided by other

state courts in the past.”); 19 W RIGHT ET AL

., supra at 157 (“Thus,

intermediate appellate court decisions may be disregarded if the

federal court is convinced by oth er persuasive data that the

highest court of the forum state would decide the matter in a

different fashion.” (citing, e.g., Industrial Indem. Co. v. Chapman

and Cutler

, 22 F.3d 1346, 1355 n.18 (5th Cir. 1994); E ljer Mfg.,

Inc. v. Liberty Mut. Ins. Co. , 972 F.2d 805, 814 (7th Cir. 1992),

cert. denied, 507 U.S. 1005 (1993))). S ee also E RWIN C HEMERINSKY

,

F EDERAL J URISDICTION § 5.3, at 325 (3d ed . 1999) (“In other words, a

federal court in a diversity case is to apply the law the state’s7

highest court likely would apply. The federal court should

consider lower state court decisions, but is not bound to apply and

f ollow them if the federal court believes that they would not be

affirmed by that state’s highest court. The federal court may

consider all available material in deciding what law woul d be

followed by a state.”).

B. Louisiana Judicial Retroactivity Doctrine

Declared By The State’s Highest Court And Derived

From Civil, Common, and Constitutional Law Sources

Louisiana jurisprudential principles, doctrines, and

traditions are derived from Anglo-American constitutional and

common law models, as well as Europea n civil law sources.

Louisiana courts adhere to and apply the same constit utional

prin ciples of separation of powers, justiciability, case or

controversy, and equal protection of laws as the federal and other

state courts. Under Louisiana’s Constitution, the power to make

substantive laws is vested exclusively in the legislature. Under

the State’s constitution and Civil Code, Louisiana courts cannot

make law but are bound to decide cases according to their best

understanding of the law established by legislation and custom.

The overwhelmingly prevalent norm in Louisiana, as in the common

law, the f ederal courts, and civil law jurisdictions, is that

judicial decisions must be applied retroactively.

I n accordance with that authoritative standard, the Supreme

Court of Louisiana has declared tha t the general rule is that,

unless a judicial decision specifies otherwise, it is to be given

both retrospective and prospective effect. S uccession of Clivens

,8

426 So. 2d 585, 587, 594 (La. 198 3) (on original hearing and

rehearing); Harlaux v. Harlaux

, 426 So. 2d 602, 604 (La.), cert.

denied, 464 U.S. 816 (1983). Fifty years earlier the same court in

Norton v. Crescent City Ice Manufacturing Co.

, 150 So. 855 (La.

1933), applied substantially the same rule:

The law as construed in a n overruled case is

considered as though it had never existed, and

the law as co nstrued in the last case is

considered as though it has always been the

law. As a general rule, the law as construed

in the last decision operates both

prospectively and retrospectively, except that

it will not be perm itted to disturb vested

rights.

Id. at 858. S ee also Construction Materials, Inc. v. American

Fidelity Fire Ins. Co. , 388 So. 2d 365, 367 (La. 1980) (“‘[T]he

decisions of a court of last resort are not the law, but only the

evidence of what the court thinks is the law.’” (quoting Norton

,

150 So. at 858)); Jackson v. Doe

, 2 96 So. 2d 323, 323 (La. 1974)

(“Prospective [only] application of judicial dec i sions is the

exception rather than the general rule of law.” (rejecting argument

that Garlington v. Kingsley , 289 So. 2d 88 (La. 1974), overruling

doctrine of charitable immunity, should operate prospectively

only.)) ; Jackson, 2 96 So. 2d at 323 (“Prospective [only]

application of judicial decisions is legislating.” (Summers, J.,

concurring)); Charles v. United States , 15 F.3d 400, 402 n.4 (5th

Cir . 1994) (“‘Generally, [under Louisiana law] unless a decision

specifies otherwise, it is given both retrospective and prospective

effect.’” (quoting Succession of Clivens

, 426 So. 2d at 587));

Hutson v. Madison Parish Police Jury

, 496 So. 2d 360, 369 (La. App.9

2d Cir.), writ denied, 498 So. 2d 758 (La. 1986) (same); McLaughlin

v. Herman & Herman

, 729 F.2d 331, 334 (5th Cir. 1984) (a diversity

case finding that the rule of two Louisiana state court decisions

“is within the general rule, rather than the exception, and

therefore should be applied prospectively and retroactively”).

The legislative power of the State of Louisiana is vested in

the Legislature. L A

. C ONST

. art. III , § 1. Except as expressly

provided by the constitution, no other branch of gove rnment, nor

any person holding office in one of them, may exercise the

legislative power. I d. art. II, §§ 1, 2. S ee Board of Comm’rs of

the Orleans Levee Dist. v. Department of Natural Resources

, 496 So.

2d 281, 286 (La. 1986).

Under the Louisiana Civil Code, legislation and custom are the

only author itative sources of law. L A

. C IV

. C ODE art. 1; A.N.

Y IANNOPOULOS

, C IVI L L AW S YSTEM 117 (2d ed. 1999). Jurisprudence,

doctrine, conventional usages, and equity are merely p ersuasive

sources of law. Y I ANNOPOULOS

, supra at 117. Hence, the Louisiana

Supreme Court consistently has h eld that judicial decisions

interpreting and applying the provisions of the Civil Code operate

both retroactively and prospectively because they “are not the law,

but only the evidence of what the cou rt thinks is the law.”

Norton, 150 So. at 858; Construction Materials

, 388 So. 2d at 367

(quoting Norton ); see Y IANNOPOULOS

, supra at 199.

In Louisiana and other civil law jurisdictions, the judicial

method of applying Civil Code pri nciples by analogy to facts

unforeseen by the Code always has been used and considered as10

judicial interpretation of law and not law making. See Ardoin v.

Hartford Accident and Indem. Co.

, 360 So. 2d 1331, 1334 (La. 1978);

Langlois v. Allied Chem. Corp., 249 So. 2d 133 (La. 1971);

Ferdinand Fairfax Stone, Tort Doctrine in Louisiana: The Materials

For the Decision of a Case, 17 T UL

. L. R EV

. 159, 213 (1942); Joe W.

Sanders, The “Civil Law” in the Supreme Court of Louisiana, 15 L A

.

B.J. 15 (1967); Clarence J. Morrow, Louisiana Blueprint: Civili a n

Codification and Legal Method For State and Nation

, 17 T UL

. L. R EV

.

537, 552 (194 3). See also P HILIPP H ECK

, J URISPRUDENCE OF I NTERESTS : A N

O UTLINE

, IN THE J URISPRUDENCE OF I NTERESTS 41 (M. Magdalena Schoch trans.,

1948); F RANCOIS G ÉNY

, M ÉTHODE D ’I NTERPRÉTATION ET S OURCES EN D ROIT P RIVÉ P OSITIF

§§ 10 7, 165, 166 (La. State Law Inst. trans., 2d ed. 1954). For

example, the Louisiana Supreme Court in Frazier v. Harper

, 600 So.

2d 59, 62-63 (La. 1992), held that its prior decisions in Sims v.

Sims

, 358 So. 2d 919 (La. 1978), and T .L. James & Co. v.

Montgomery, 332 So. 2d 83 4 (La. 1976), could not be limited to

prospective application because the court in thos e cases

in terpreted Civil Code Article 2402 (1870), and other community

property principles, to require that an employee’s pension right is

a community asset to the extent that it derives from the employee’s

employment during the marriage. “Consequently, the judicial

decisions

. . . did not create law to be applied prospectively but

i nterpreted principles of legislated law that antedated and

governed the matrimonial regimes” established prior to the Sims and

T.L. James decisions. Id. at 63.

In most cases, however, when the Louisiana Supreme Court1 Cf. Paul J. Mishk in, Foreword: The High Court, The Great

Writ, And T he Due Process of Time and Law , 79 H ARV

. L. R EV

. 56, 57

(1965) (“Most likely the [United States Supreme Court’s] failure to

res pond in terms, [to pre- L inkletter suggestions that particular

new holdings be given only prospective or limited retroactive

effect],

. . . rested on the belief that no answer was really

necessary , that is so ‘obvious’ as to be taken for granted that

whatever the Court now holds to be the law of the Constitution

becomes ‘what has always been the law’ –- even if the new holding

overrules an earlier decision of the Court.”)

11 interprets and applies Civil Code principles by analogy t o cases

unforeseen by the Code, the issue of the temporal effect of the

decision is not raised, because it is so well understood that

whatever the court now holds to b e the law of the Civil Code

becomes what has always been the law, even if the new holding

overrules or modifies an earlier de cision of the court. 1 One

striking example is the Louisiana Supreme Court’s use of the Code

articles relating to servitudes by analogy to develop a complete

body of mineral law to regulate and accommodate property interests

created or affected by the unforeseen phenomenon of oil and gas

production. S ee, e.g., Frost-Johnson Lumber Co. v. Salling’s

Heirs , 91 So. 207 (La. 1920); Sanders, supra at 22; La. State Law

Inst., Introduction, L A

. M INERAL C ODE

, L A

. R EV

. S TAT

. A NN

. §§ 31 et seq

.

(West 1989); L A

. R EV

. S TAT

. A NN

. § 31:2 cmt. (West 1989). Other

outstanding instances may be seen in the state supreme court’s

decisions interpreting and applyi ng Civil Code principles by

analogy to recognize a community property right in pension funds;

Sims v. Sims

, 358 So. 2d 919 (La. 1978), and T .L. James & Co. v.

Montgomery, 332 So. 2d 834 (La. 1976); and to afford individuals

access to courts for reparation due to injuries caused by marketing12

of unsafe products and by abuses of property rights that expose

society to dangerous things, substances, instrumentalities, or

technology. S ee, e.g.

, Weber v. Fidelity & Casualty Ins. Co.

, 250

So. 2d 754 (La. 1971); Langlois v. Allied Chem. Corp. , 249 So. 2d

133 (La. 1971 ); Loescher v. Parr , 324 So. 2d 441 (La. 1975);

Holland v. Buckley

, 305 So. 2d 113 (La. 1974); Craig v. Montelepre

Realty Co., 211 So. 2d 627 (La. 1968); Butler v. Baber, 529 So. 2d

374 (La. 1988); Kent v. Gulf States Utils. Co., 418 So. 2d 493 (La.

1982). The Louisiana judiciary and legal profession consistently

have considered these decisions to be fully retroactive and

prospective generally because they are judicial decisions, rather

than legislation, and in particular because they are considered to

be judicial interpretations of the Civil Code.

What Francois Terré has said with respect to jurisprudence in

French civil law is generally true in the Louisiana and other civil

law systems:

“[A] new jurisprudential rule is always

applied in all new actions, without any

consideration of the date on which th e facts

of the action occurred and even when these

facts occurred prior to the change in the

jurisprudence.” That is so for a very simple

reason. When it confers a certain sense on a

[legislative] rule, the jurisprudence becomes

part and parcel of [ fa i t corps avec ] that

rule. As a result, this rule is thought to

have always had this signification. More than

retroactive the jurisprudence is, in the image

of interpretative laws, declarative

.

F RANCOIS T ERRÉ

, I NTRODUCTION G ÉNÉRALE A U D ROIT 247 n.228 (4th ed. 1998)

(quoting P AUL R OUBIER

, L E D ROIT T RANSITOIRE C ONFLITS D ES L OIS D ANS L E T EMPS

24 n.7 (2d ed . 1960)) (Translation by J.R. Trahan, Associate13

Professor of Law, L.S.U. Paul M. Hebert Law Center).

The technique of applying judicial decisions prospectively but

not retroactiv ely is inconsonant with the basic civil law tenet

that courts interpret but do not make law. “It would certainly be

in violation of Article 5 of the French Civil Code . . . and

incompatible with the ideas of the redactors of the Louisiana Civil

Code.” Y I ANNOPOULOS

, supra at 151. “No attempt has been made in

France or Germany to develop a technique permitting such a

disposition of a case. In view of the position taken by accepted

French and German theory that a decision does nothing more than

dispose of the case before the court, its development would be very

difficult.” A R THUR T AYLOR VON M EHREN & J AMES R USSELL G ORDLEY

, T HE C IVIL L AW

S YSTEM 1160 (2d ed. 1977) (footnotes omitted).

In the relatively small number of cases in which the Louisiana

Supreme Court has limited the retroactive effect of its own

decisions, it has expressly done so in the same opinion that

announced the decision. See, e.g., In re Adoption of B.G.S. , 556

So. 2d 545, 558 (La. 1990) (limiting retroactive effect of its

decision declaring unconstitutional an adoption statute purporting

to give mother of illegitimate child power to terminate the

father’s parental rights without notice or opportunit y to be

heard); Bergeron v. Bergeron

, 492 So. 2d 1193, 1200 (La. 1986)

(applying restatement of jurisprudential burden-of-proof rule to

child custody modification cases tried after finality of this

judgment); Lovell v. Lovell

, 378 So. 2d 418, 421-22 (La. 1979)

(final alimony judgments would remain intact a lthough they were14

rendered under a law declared unconstitutional because it provided

alimony for women only); Barnett v. Develle

, 289 So. 2d 129, 147-49

(La. 1974) (limited retroactivity of declaration of

unconstitutionality of firemen’s minimum wage statutes); Sumrall v.

J.C. Penny Co.

, 120 So. 2d 67, 70 (La. 1960) (limiting

retroactivity of interpretation of statute imposing penalties for

non-payment of wo rkers’ compensation). S ee also Cole v. Celotex

Corp.

, 599 So. 2d 1058, 1072 (La. 1992) (dictum to the effect that

when retroactive effect of a decision is to be declined the court

clearly has articulated that the principle being announced was one

overturning a firmly entrenched rule).

In Succession of Clivens

, 426 So. 2d 585 (La. 1982), some

member s of the Louisiana Supreme Court may have entertained the

idea of making the court’s prior decision in Succession of Brown

,

388 So. 2d 1151 (La. 1980), apply prospectively only under the

Chevron Oil test, but a majority of the court rejected that notion.

Succession of Clivens, 426 So. 2d at 594 (on rehearing). Instead,

a majority agreed upon the result, but not upon a unified

rationale, in deciding that S uccession of Brown applies

retroactively to January 1, 1975, the effective date of the 1974

Louisiana Constitution. The S uccession of Brown decision, which

was silent as to its temporal effect, declared Civil Code Article

919, which discriminated against illegitimate children in intestate

successions, unconstitutional as conflicting with Article 1, § 3 of

the 1974 Louisiana Constitution. Because there was no majority

opinion in Succession of Clivens

, it is impossible to divine a15

cle arly preponderate rationale for the result of that decision.

The Succession of Clivens res ult, however, is consistent with an

a pplication of the general rule that, unless the court rendering

the decision states otherwise, its decision applies retroactively.

Because the court in Succession of Brown did not provide otherwise,

its decision should apply retroactively, but its retroactivity must

be limited by an independent overriding rule contained in the 1974

Louisiana Constitution.

It is well established that the effect of even a fully

retroactive jurisprudential decision is limited by certain

independent overriding legal principles. In both civil and common

law systems, the fully retroactive effect of every judicial

decision is barred by independent legal principles of law designed

to place limits on litigation in the interest of legal stability.

In the continental civil law systems, jurists rec ognize that the

principle of causae finitae

–- extinguished actions

-– prevents

retroactive legislation or judicial decisions from affecting

litigation that has been terminated by a final judgment, closed by

compromise, or extinguished by prescription. S ee R OUBIER

, supra at

32; P ATRICE L EVEL

, E SSAI SUR L ES C ONFLITS DE L OIS DANS LE T EMPS 33 n.19, 161-

62 n.90 (1959) (Translation by Prof. J.R. Trahan); J ACQUES G HESTIN &

G ILLES G OUBEAUX

, T RAITÉ DE D ROIT C I VIL : I NTRODUCTION G ÉNÉRALE 415 n.462 (3d

ed. 1990) (Translation by Prof. J.R. Trahan). That res judicata,

statutes of limitation, and other independent legal principles have

this effect in federal and common law is illustrated by the Supreme

Court’s decisions in James B. Beam Distilling Co. v. Georgia , 50116

U.S. 529 (1991), and Reynoldsville Casket Co. v. Hyde

, 514 U.S. 749

(1995), discussed in some detail later in this opinion. In

Louisiana, the principles of res judicata and extinguishment of

rights or obligati o ns by prescription limit the retrospective

effect of retroactive legislation. S ee Chance v. American Honda

Motor Co. Inc. , 635 So. 2d 177 (La. 1994) (prescription); Hall v.

Hall

, 516 So. 2d 119 (La. 1987) (same); B elanger v. Great Am.

Indem. Co.

, 188 F.2d 196, 198 (5th Cir. 1951) (Louisiana diversity

case -– res judicata); Petroleum Helicopters, Inc. v. Avco Corp.,

834 F.2d 510, 511 (5th Cir. 1987) (same); H arris v. Jackson

, 439

So. 2d 1120, 1121 n.4 (La. App. 1 st Cir. 1983), w rit denied, 444

So. 2d 1240 (La. 1984) (same). By analogy, although there is a

dearth of jurisprudential discussion on t he subject, there would

appear to be a similar bar to the retroactive application of a new

jurisprudential interpretation to actions that ha ve been finally

terminated by judgments or compromises, or extinguished by

prescription. C f. Succession of Lamb ert , 28 So. 2d 1, 9 (La.

1946).

An overriding independent legal principle established by

Article 14, § 26 of the 1974 Louisiana Constitution provides that,

subject to exceptions not here pertinent, the constitution is not

retroactive and does not create any right which did not exist under

the previous constitution based upon actions or matters occurring

prior to the effective date of the 1974 constitution. The

acknowledged illegitimate child’s cause of action in Succession of

Brown arose before the 1974 constitution upon the death of her17

father in 1971. When the 1974 Louisiana Constitution became

effective on January 1, 1975, its new guarantee of equality for

illegitimate children contained in Artic le 1, § 3 repealed or

rendered unconstitutional Civil Code Article 919, which had denied

such equality, prospectively from that effective date. Because, as

provided by Article 14, § 26, the 1 974 Louisiana Constitution

generally did not create new rights retroactively, the court’s

decision i n Succession of Brown, recognizing new rights granted

illegitimate children by Article 1, § 3, necessarily was limited in

its retroactive effect to intestate successions opened after the

effective date of the constitution on January 1, 1975.

In the present case, of course, we are not seeking to

determine the “true” reason for the court’s decision in Succession

of Clivens or even to prove that it reached the correct result.

See Katherine Shaw Spaht, Developments in the Law (Successions)

, 47

L A

. L. R EV

. 471, 471-79 (1986) (suggesting that Succession of Clivens

cannot be reconciled with Trimble v. Gordon

, 430 U.S. 762 (1977)).

The discussion is intended merely to demonstrate that it cannot be

said that Suc cession of Clivens w as a departure from or

inconsistent with the Louisiana doctrine of adjudicative

retroactivity.

Additionally, it sh ould be noted that the Louisiana Supreme

Court has established by jurisprudence constante another

independent legal principle in its consistent holdings that, where

an injury has occurred for which the injured party has a cause of

action, that cause of action is a right which is protected by the18

guarantee of due process. See Soloco, Inc. v. Dupree , 707 So. 2d

12, 16 (La. 1998); F aucheaux v. Alton Ochsner Med. Found. Hosp. &

Clinic , 470 So. 2d 878, 878-79 (La. 1985); Lott v. Haley , 370 So.

2d 521, 524 (La. 1979); Burmaster v. Gravity Drainage Dist. No. 2

,

366 So. 2d 1381, 1387 (La. 1978). The court has concluded that

statutes enacted after the acquisition of such a cause of action,

therefore, cannot be retroactively applied so as to divest the

plaintiff of his cause of action because such a retroactive

application would contravene the due process guarantees.

Faucheaux, 470 So. 2d at 878; Lott, 370 So. 2d at 524; Terrebonne

v. South Lafourche Tidal Control Levee Dist.

, 445 So. 2d 1221,

1224-25 (La. 1984). The same principle, by analogy, appears also

to be applicable to changes to juri sprudential interpretations

brought about through subsequent judicial decrees. Succession of

Lambert , 28 So. 2d at 9.

The Louisiana Supreme Court first recognized a strict products

delictual liability theory of recovery under Louisiana civil law in

We ber v. Fidelity & Casualty Insurance Co. , 250 So. 2d 754 (La.

1971). At that time, the Louisiana delictual articles, Civil Code

articles 2315-2322, were virtually identical to those of the French

Civil Code, and contained no literal basis for str ict liability

based on defective products. The principal provision, Article

2315, however, stated that, “Every act whatever of man, that causes

damage to another, obliges him by whose fault it happened, to

repair it.” Thus, the principle of fault under the Code is a

dynamic one, the meaning of which the legislature has left to the19

interpretation of the jurists. See Ardoin v. Hartford Accident &

Indem. Co. , 360 So. 2d 1331 (La. 1978); Entrevia v. Hood , 427 So.

2d 1146 (La. 1983); Langlois v. Allied Chemical Corp. , 249 So. 2d

133 (1971); G ÉNY

, supra § 99; M ARCEL P LANIOL

, 1 T RAITÉ ÉLÉMENTAIRE DE D ROIT

C IVIL § 5 (Quasi-Offenses), at 441-47 (La. State Law Inst., trans.,

12th ed. 1939); S TONE

, L OUISIANA C IVIL L AW T REATISE : T ORT D OCTRINE §§ 59,

60 (1977). Negligence and imprudence are not the only constituents

of fault, for the courts, in order to obtain standard s of fault,

may advert to other artic les of the Code, statutes, regulations,

constitutional provisions, and even to the ju risprudence. S ee

Ardoin, 360 So. 2d at 1334; Stone, Tort Doctrine in Louisiana,

supra at 213. Accordingly, the Louisiana courts were authorized to

recognize and interpret the strict tort products liability doctrine

by analogy as a kind of fault under Civil Code articles 2315–2322.

See, e.g., DeBattista v. Argonaut-Southwest Ins. Co. , 403 So. 2d

26, 30-31 (La. 1981); Bell v. Jet Wheel Blast

, 462 So. 2d 166 (La.

1985); E ntrevia v. Hood

, 427 So. 2d 1146 (La. 1983); Lang lois v.

Allied Chemical Corp. , 249 So. 2d 133 (La. 1971).

By the mid-1980s, the Louisiana Supreme Court had indentified

and applied a body of products liability principles by analogy

within the framework of the Civil Code which included theories of

recovery for manufacturing defects, risk/utility design defects,

and failures to g ive adequate warnings. S ee, e.g., Hunt v. City

Stores, Inc.

, 387 So. 2d 585 (La. 1980) (applying risk/utility test

for desig n defect products liability and strict liability under

Civil Code Article 2317); Winterrowd v. Travelers Indem. Co. , 46220

So. 2d 639 (La. 1985) (adequate warning); Hebert v. Brazzel

, 403

So. 2d 1242 (La. 1981) (risk/ consumer expectation design defect;

adequate warning); DeBattista v. Argonaut-Southwest Ins. Co. , 403

So. 2d 26 (La. 1981) (risk/consumer expectation design defect case

comparing strict liability under Civil Code Article 2317); Chappuis

v

. Sears, Roebuck & Co.

, 358 So. 2d 926 (La. 1978) (a dequate

warning); Weber v. Fidelity & Casual ty Ins. Co. , 250 So. 2d 754

(La. 1971) (manufacturing defect case recognizing tha t a product

may be defective in desig n, composition, or manufacture). Along

with the liability theories, the jurisprudence had recognized the

defense of comparative fault. J et Wheel Blast

, 462 So. 2d at 171.

In 1985, this federal court of appeals certified to the

Louisiana Supreme Court the question: May a manufacturer be held

liable for injuries caused by an unreasonably dangerous product if

the manufacturer establishes that it did not know and reasonably

could not have known of the inherent danger posed by its product?

Halphen v. Johns-Manville Sales Corp.

, 755 F.2d 393, 394 (5th Cir.

1985) (en banc). Because the general nature of the question called

for an answer based upon a comprehensive review of Louisiana law

and jurisprudence related to products liability, the Louisiana

Supreme Court surveyed the delictual provisions of the Civil Code,

the s trict products liability jurisprudence cited above, other

related jurisprudence, see, e.g., Turner v. New Orleans Pub. Serv.,

Inc., 476 So. 2d 800, 806 (La. 1985) (majority and concurring

opinions); Entrevia v. Ho od , 427 So. 2d 1146 (La. 1983); K ent v.

Gulf States Utils. Co. , 418 So. 2d 493 (La. 1982); Olsen v. Shell21

Oil Corp.

, 365 So. 2d 1285 (La. 1978); Loescher v. Parr

, 324 So. 2d

441 (La. 1975 ); Turner v. Bucher , 308 So. 2d 270 (La. 1975);

Holland v. Buckley , 305 So. 2d 113 (La. 1974); Langlois v. Allied

Chemical Corp.

, 249 So. 2d 133 (La. 1971); Welch v. Outboard Marine

Corp.

, 481 F.2d 252 (5th Cir. 1973), as well as comparable

decisions by federal and other state courts, and the writings of

recognized leading commentators on products liability law. In an

opinion discussing these authorities, the Halphen cou rt answered

the certified opinion: In a strict products liability case, a

m anufacturer may be held liable for injuries caused by an

unreasonably dangerous product, although the manufacturer did not

know and reasonably could not have known of the danger, if the

plaintiff proves that the product was unreasonably dangerous

because: (1) the danger-in-fact of the product, whether foreseeable

or not, outweighed the utility of the product due to its design or

due to the nature of the product per se; or (2) the pr oduct was

unreasonably dangerous in construction or composition. Halphen

,

484 So. 2d at 115-16.

In reaching i ts conclusions, the state supreme court in

Halphen applied its previously developed products liability

jurisprudence and, by analogy, as it had done in Hunt and

DeBattista

, the principle of legal fault or strict liability under

Civil Code ar ticles 2317-2322. I d. at 116. In its landmark

decision in Loescher v. Parr

, 324 So. 2d 441 (La. 1975), the court

had marked the contours of this form of fault and liability

essentially as follows: When harm results from the conduct of a22

person or defect of a thing which creates an unreasonable risk of

h arm to others, a person legally responsible under these Code

articles for the supervision, care, or guardianship of the person

or thing may be held liable for the damage thus caused, despite the

fact that no personal negligent act or inattention on the former’s

part is proved. The injured person must prove the vice (i.e.,

unreasonable risk of injury to another) in the person or thing

whose act causes the damage, and that the damage resulted from this

vice. Once this is proved, the owner or guardian responsible for

the person or thing can escape liability only if he shows the harm

was caused by the fau lt of the victim, by the fault of a third

perso n, or by an irresistible force. H alphen, 484 So. 2d at 116

(ci ting L oescher ). Thus, the strict liability or legal fault

arising from the Code provisions was more than a presumption of

negligence. The owner or guardian could not be absolved of

liability even if he proved that he did not know and could not have

k nown of the unreasonable risk of harm to others. I d. (citing

Loescher (strict liability for damage done by tree with a nonapparent internal disease under Civil Code Article 2317)); Holland

v. Buckley

, 3 05 So. 2d 113 (La. 1974) (strict liability for pet

dog’s first bite under Civil Code Article 2321); Turner v. Bucher

,

308 So. 2d 270 (La. 1975) (strict liability o f parent for damage

caused by his child under Civil Code Article 2318); Olsen v. Shell

O il Corp.

, 365 So. 2d 1285 (La. 1978) (strict liabili ty of a

building owner for premises defect under Article 2322)).

The Lo uisiana Supreme Court in H alphen noted that the2 Subsequent to Halphen

, the Louisiana Supreme Court, in Ross

v. La Coste de Monterville

, 502 So. 2d 1026 (La. 1987), observed

that, under French law, a manufacturer may be held strictly liable

for the damage done by its defective product, a bottle of lemonade,

after its sale to a consumer, on the theory that the manufacturer

retained the garde of the structure of the product. I d. at 1030

(citing and quoting from Société Commerciale Européenne des

B rasseries “Brasseries de la Meuse” v. Etablissements Bouss oisSouchon-Neuvesel, et al. , Cass. 2e civ. ch., June 5, 1971 (quoted

in VON M EHREN ET AL

., supra at 676-77)).

23 principle of strict products liability is analogous t o the

principle underlying Civil Code articles 2317-2322. Consequently,

a fter fully describing the similarities, e.g., the custodian and

the manufacturer both are in the best position to control

unreasonable risk to others by the thing or the product, the court

concluded that when a plaintiff proves that a product is badly

defective because it is unreasonably dangerous in construction or

composition, or because its utility is outweighed by its danger-infact due to its design or intrinsic nature, the producer should be

held strictly liable to the innocent consumer regardless of

scientific inability to know or avoid the danger. Otherwise, the

liability of a manufacturer who distributes large numbers of such

unreasonably dangerous products causing multiple injuries and

deaths to innocent consumers would be less strict than that of an

ordinary homeowner for the act or defect of his child, animal, or

tree. 2 Halphen , 484 So. 2d at 116-18.

Subsequently, the Louisiana Supreme Court and the Louisiana

courts of appeal have applied the jurisprudential Civ il Code

interpretations expressed in Halphen retroactively to a large3 See, e.g.

, Toups v. Sears, Roebuck & C o., 5 07 So. 2d 809

(La. 1987); Bloxom v. Bloxom, 512 So. 2d 839 (La. 1987); Brown v.

Sears, Roebuck & Co., 514 So. 2d 439 (La. 1987); Reilly v. Dynamic

Exploration, Inc., 571 So. 2d 140 (La. 1990); Guidry v. Frank

Guidry Oil Co., 5 79 So. 2d 947 (La. 1991), overruled on other

grounds, Gauthier v. O’Brien, 618 So. 2d 825 (La. 1993); Cosse v.

Allen-Bradley Co., 601 So. 2d 1349 (La. 1992); Hines v. Remington

Arms Co., 648 So. 2d 331 (La. 1994); Longo v. E.I. Du pont de

Nemours & Co., 632 So. 2d 1193 (La. App. 4th Cir.), w rit denied,

637 So. 2d 464 (La. 1994); Laing v. American Honda Motor Corp., 628

So. 2d 196 (La. App. 2d Cir. 1993), writ denied, 6 35 So. 2d 239

(La. 1994); Sharkey v. Sterl ing Drug, Inc., 6 00 So. 2d 701 (La.

App. 1st Cir.), writ denied, 605 So. 2d 109 9 (La.), w rit denied,

605 So. 2d 1100 (La. 1992); Putnam v. Gulf States Utils. Co., 588

So. 2d 1223 (La. App. 1st Cir. 1991); Berry v. Comme rcial Union

Ins. Co., 565 So. 2d 487 (La. App. 2d Cir.), writ denied, 569 So.

2d 959 (La. 1990); Traut v. Uniroyal, Inc

., 555 So. 2d 655 (La.

App. 4th Cir. 1989); Poirrier v. Trailmobile, Inc., 550 So. 2d 1349

(La. App. 4th Cir. 1989 ), writ denied, 5 56 So. 2d 58 (La. 1990);

McCoy v. Otis Elevator Co., 546 So. 2d 229 (La. App. 2d Cir.), writ

denied, 551 So. 2d 636 (La. 1989); Addison v. Williams, 546 So. 2d

220 (La. App. 2d Cir.), writ denied, 550 So. 2d 634 (La. 1989);

Antley v. Yamaha Motor Corp., 539 So. 2d 696 (La. App. 3d Cir.

1989); Zumo v. R.T. Vanderbilt Co., 527 So. 2d 1074 (La. App. 1st

Cir. 1988); Prather v. Caterpillar Tractor Co., 526 So. 2d 1325

(La. App. 3d Cir.), writ denied, 531 So. 2d 272 (La. 1988); Price

v. Corpus Eng’g Assocs., 515 So. 2d 589 (La. App. 1st Cir.), writ

denied

, 516 So. 2d 133 (La. 1987); LeBleu v. Homelite Div. of

Textron, Inc., 509 So. 2d 563 (La. App. 3d Cir. 1987); Jurovich v.

Catalanotto , 506 So. 2d 662 (La. App. 5th Cir.), writ denied , 508

So. 2d 87 (La. 1987).

24 number of cases. 3

Considering the decisions of the Supreme Court of Louisiana

and all pertinent material available, we conclude that the highest

court of the State of Louisiana would continue to consider that its

decision in Halphen v. Johns-Manville Sales Corp. , 484 So. 2d 110

(La. 1986), applies retroactively, consistently with the state law

of res judicata and liberative prescription. The Supreme Court of

Louisiana consistently has held that, generally, unless a judicial

decision specifies otherwise, it is to be given both retrospective

and prospective effect. In H alphen

, the state supreme court did25

not specify that its decision was to be limited in its temporal

application. The Louisiana Supreme Court also has held that a

judicia l decision interpreting the Civil Code operates both

retroactively and prospectively, even if it overrules a prior

jurisprudential interpretation, because it is not the law but only

evidence of what the court thinks is the law. These holdings are

consistent with the well-established principles of other civil-law

jurisdictions. Likewise, in Louisiana and other civil-law

jurisdic tions, the judicial method of applying Civil Code

principles by analogy to facts not specifically foreseen by the

Code always has been used and consider ed to be judicial

interpretation of the law and not lawmaking, because the only

authoritative sources of law under the Civil Code are legislation

and custom. In H alphen

, the Louisiana Supreme Court applied Civil

Code principles and prior jurisprudential interpretations of those

principles by analogy to a products liability issue that had not

been foreseen by the Code. Moreover, the Louisiana Supreme Court

has established a rule of jurisprudence constante , in a series of

uniform and homogenous rulings, that, where an injury has occurred

for which the injured party has a cause of action, legislation or

judicial decisions cannot be applied retroactively to divest the

plaintiff of his cause o f action because it is protected by the

guarantee of due process. Although j urisprudence constante does

not represent legislative force in the proper sense, such as is

attached to legislated law or custom, its long and continuous use

and influence indicate that it is in harmony with the Code and that26

deviation therefrom would impair the social values protected by the

Code and the precedent series. Because the state and federal

courts in Louisiana already have applied Halphen retroactively to

a lar ge number of cases, a retrospective limitation of its

jurisprudential interpretations to prospective-only application

would violate the principle that si m ilarly situated litigants

should be treated equally. Finally, as noted in the next section

of this opinion, the United States Supreme Court evidently has

returne d to the rule of adjudicative retroactivity, ending its

thirty-year experiment with making new jurisprudential rules apply

prospectively on a selective basis and, except perhaps for a very

rare and extraordinary case, purely prospectively. Accordingly,

the pe rsuasive influence that the United States Supreme Court’s

decisions hav e on state courts with respect to retroactivity

doctrine now will weigh on the side of the rule of adjudicative

retroactivity.

The principal thrust of the district court’s opinion and the

defendant-appel l ee’s position on appeal is that the Louisiana

Supreme Court’s decision in H alphen made substantive laws, and

that, therefore, those laws must be applied prospectively only as

if they were legislation enacted by the legislature. The argument

is in diametric contradiction with the Louisiana Supreme Court

decisions, the Lo uisiana Constitution, the Louisiana Civil Code,

and civil law adjudicative retroactivity doctrine.

Under the distribution of powers by the Louisiana Constitution

of 1974, the powers of government of the State are divided into27

thr ee separate branches. L A

. C ONST

. art. II, § 1. Except for

provisions not applicable in the present case, the constitution

provides that no one of these branches, nor any person holding

office in one of them, shall exercise power belonging to either of

the others. L A

. C ONST

. art. II, § 2. The legislative power of the

State is vested i n a legislature, consisting of a Senate and a

House of Representatives. L A

. C ONST . art. III, § 1. The judicial

power is vested in a supreme court, courts of appeal, district

courts, and other courts authorized by the constitution. L A

. C ONST

.

art. V, § 1. The supreme court may establish procedural and

administrative rules for the judiciary not in conflict with law.

L A

. C ONST

. art. V, § 5(A). Consequently, the Louisiana Supreme

Court does not have the legislative power to make substantive laws

of general application in the nature of legislation. See Orleans

Levee Dist. , 496 So. 2d at 286; cf. State ex rel. Lisso v. Police

Jury of Red River Parish, 41 So. 85, 86 (La. 1906) (“[I]t is not,

and cannot, reasonably, be asserted, that the judiciary department

is vested with the slightest shadow of authority in the matter of

making laws; its sole function being to interpret the laws, as

made[.]”).

Consistently with the constitution, and based on its own civil

law tradition, Article 1 of the Louisiana Civil Code provides that

the sources of law are legislation and custom. In other words,

Louisiana judicial decisions are not sources but interpretations of

law.

The district court and the defendant-appellee disregarded the4 In Young v. Logue , 660 So. 2d 32 (La. App. 4th Cir.), writ

denied, 664 So. 2d 443 (La.), w rit denied, 664 So. 2d 444 (La.

1995), the court, without adverting to any of the Louisiana Supreme

Court decisions and other authorities discussing adjudicative

retroactivity, stated:

Clemco correctly points out that in Gilboy v.

Ameri can Tobacco Co. , 582 So. 2d 1263 (La.

1991), the supreme court opined that Halphen’s

theories of recovery are substantive rights

that cannot be retroactively revoked by the

Act . Thus, according to Clemco, just as

Halphen’s theories of recovery cannot be

denied to a plaintiff whose cau se of action

aros e prior to the Act, neither can those

theories be applied to cases where the cause

of action arose prior to Halphen in 1986.

We conclude that this is correct.

Id. at 53. The reasoning in Y oung is faulty at several points.

The Louisia na Supreme Court in G ilboy could not, and, correctly

read, did not purport to transform its prior decision in Halphen

into substantive law. Gilboy merely held that the LPLA was a substantive law enacted by the legislature that, under Civil Code

Article 6, applied prospectively only because it contained no

contrary legislative expression. H alphen was a judicial

interpretation of the Civil Code, a substantive law enacted by the

legislature, and Halphen applies retroactively because the court in

Halphen did not say otherwise. Thus, it simply does not follow

28 sub stantial body of Louisiana Supreme Court decisions expressly

holding that under the state constitution and Civil Code, judicial

decisions are not law but the judges’ interpretations of the law,

and that a judicial decision is to be applied retroactively unless

the court rendering it specifies otherwise. They pay no heed to

any of the other authorities contrary to their position, such as

the decisions of the United States Supreme Court and the learned

works of c ivil- and common-law scholars. Instead, the district

court and the defendant-appellee rely exclusively on a state court

of appeal opinion that uncritically accepts a manufacturerdefendant’s argument which is based on nothing more than a flawed

syllogism of word-logic. 4 The statement in the court of appealthat, because the LPLA is substantive legislation applying

prospectively only, Halph en cannot be a retroactively applicable

judicial interpretation of previously enacted substantive

legislation. Louisiana law and jurisprudence are to the contrary.

29 opinion, which was not determinative of the outcome in that case,

should be disregarded because of the other persuasive data that the

Louisiana Supreme Court would decide the matter in a different

fashion. A federal court has a duty to determine state law as it

believes the State’s highest court would. The decision of an

intermediate appellate court may guide, but it is not necessarily

controlling upon, a federal court when determining wh at the

applicable state law is. FDIC v. Abraham , 137 F.3d 264, 268 (5th

Cir. 1998); Industrial Indem., 22 F.3d at 1355 n.18. Moreover,

“When a federal court of appeals is of the opinion, as we are in

this case, that the district court’s view of the applicable state

law is against the more c ogent reasoning of the best and most

widesp read authority, it must reverse the judgment of the lower

court.” S t ool v. J.C. Penney Co., 4 04 F.2d 562, 563 (5th Cir.

1968).

C. Background and Recent Developments

Of the United States Supreme Court’s

Retroactivity Doctrine

Although Louisiana judges are called upon to think and act as

civil-law jurists when deciding cases u nder the Louisiana Civil

Code, at the same time they are judges in the Anglo-American

tradition who are more often engaged in the interpretation and

application of law derived from American state, federal, and other

Louisiana law sources outside the ambit of the Ci vil Code.5 Justice Scalia, concurring in Harper v. Virginia Department

of Taxation

, 509 U.S. 86, 107 (1993) (Scalia, J., concurring),

explained the traditional judicial role as follows:

The conception of the judicial role that

[Chief Justice John Marshall] possessed, and

that was shared by succeeding generations of

American judges until very recent times, took

it to be “the pro vince and duty of the

judicial depart ment to say what the law is,”

Marbury v. Madison

, 5 U.S. (1 Cranch) 137, 177

(1803) (emphasi s added) -- not what the law

shall be. That original and enduring American

perception of the judicial role sprang not

from the philosophy of Nietzsche but from the

jurisprudence of Blackstone, which viewed

30 Consequently, the nature of the entire Louisiana judicial process

is also heavily influenced by common-law traditions, United States

S upreme Court decisions, and the laws and jurisprudence of other

states. The Supreme Court of Louisiana, like courts of other

states, gives careful attention to the United States Supreme

Court’s opinions explaining common-law traditions and

constitutional principles that influence the role of the judiciary

and the temporal effects of judicial decisions. Accordingly, we

must take those opinions into account in our effort to ascertain

the probable course of future developments in the Louisiana

doctrine of retroactivity.

The general principle that statutes operate prospectively and

judici al decisions apply retroactively had been followed by the

common law and the Supreme Court’s decisions “for near a thousand

y ears.” K uhn v. Fairmont Coal Co.

, 215 U.S. 349, 372 (1910)

(Holmes, J., dissenting); see Robinson v. Neil , 409 U.S. 505, 507

(1973); Rivers v. Roadway Express, In c. , 511 U.S. 298, 311-12

(1944). 5 The Supreme Court, in L inkletter v. Walker

, 381 U.S. 618retroactivity as an inherent characteristic of

the judicial power, a power “not delegated to

pronounce a new law, bu t to maintain and

expou nd the old one.” 1 W. B LACKSTONE

, C OMMENTARIES 69 (1765). Even when a “former

determination is most evidently contrary to

reason

. . . [or] contrary to the divine law,”

a judge overruling that decision would “not

pret end to make a new law, but to vindicate

t he old one from misrepresentation.” I d. at

69-70. “For if it be found that the former

decision is manifestly absurd or unjust, it is

decla red, not that such a sentence was bad

law, but that it was not law.” I d. at 70

(emphasis in original). Fully retroactive

decisionmaking was considered a principal

distinction between the judicial and the

legislative power: “[I]t is said that that

which distinguishes a judicial from a legislative act is, t hat the one is a

determination of what t he existing law is in

relation to some existing thing already done

or happened, while the other is a predetermination of what the law shall be for

the regulation of all future cases.” T.

C OOLEY

, C ONSTITUTIONAL L IMITATIONS 91. The critics

of the traditional rule of full retroactivity

were well aware that it was grounded in what

one of them contemptuously called “another

fiction known as the Separation of powers.”

Kocourek, Retrospective Decisions and Stare

D ecisis and a Prop o sal, 17 A.B.A.J. 180, 181

(1931).

31 (19 65), however, developed a doctrine under which it could deny

retro active effect to a newly announced rule of criminal

constitutional law. According to Linkletter , a decision to limit

the new rule to prospective application could be based upon a

balancing of the purpose of the new rule, the reliance placed upon

the previous view of the law, and the effect on the administration

of justice of a retrospective application. I d. at 636 (limiting

Mapp v. Ohio , 367 U.S. 643 (1961)).

In the f ederal noncriminal law context, the Supreme Court6 In Teague v. Lane

, 489 U.S. 288 (1989), a plurality of the

Court concluded that new constitutional rules of criminal procedure

would not be applied retroactively in habeas c orpus proceedings

unless the rule fell within one of two narrow exceptions.

32 similarly rec ognized that a judicial decision could be applied

nonretroactively if it established a new principle of law, if such

a limitation would avoid substantial inequitable results, and if

retrospective application would not retard the purpose and effect

of the new rule. C hevron Oil Co. v. Huson , 404 U.S. 97, 106-07

(1971).

In Griffith v. Kentucky

, 479 U.S. 314 (1987), the Supreme

Court overruled Linkletter and held that all newly declared rules

of law must be applied retroactively to all criminal cases pending

on direct review. I d. at 322. The Court based its decision on two

basic norms of constitutional adjudication, viz. , first, that the

natur e of judicial review strips a court of the quintessentially

legi slative prerogative to make rules of law retroactive or

prospective within its discretion; and, second, that selective

application of new rules of law violates the principle of treating

similarly situated parties the same. I d. at 323. 6 Dictum in

Griffith

, stating that “civil retroactivity

. . . continue[d] to be

governed by the standard announced in Chevron Oil [,]” id. at 322

n.8, caused the Court to divide over its meaning in subsequent

cases. In A merican Trucking Associations, Inc. v. Smith

, 496 U.S.

167 (1990) , Justice O’Connor, writing for a plurality of four

justices, explicitly refused to extend Griffith to civil cases, and

used the Chevron Oil test to limit retroactivity of the Court’s7 Justice Souter explained the methodology of retroactive,

selectively prospective, and purely prospective applications of

judicial decisions as follows:

As a matter purely of judicial mechanics,

there are three ways in which the

choice-of-law problem may be resolved. First,

a decision may be made fully retroactive,

applying both to the parties before the court

and to all others by and against whom claims

may be pressed, consistent with res judicata

and procedural barriers such as statutes of

33 decision in an earlier case invalidating highway use taxe s under

the Commerce Clause. I d. at 179. Four other justices rejected the

plurality’s approach to retroactivity as “anomalous” and refused to

hol d that “the law applicable to a particular case is that law

which the parties believe in good faith to be applicable to the

case.” Id. at 219 (Stevens, J., joined by Brennan, J., Marshall,

J., and Blackmun, J., dissenting). Justice Scalia, concurring in

the judgment because he believed that the new rule of law was

incorrect, explicitly disagreed with Justice O’Connor’s

retroactivity analysis, stating that “prospective decisionmaking is

incompatible with the judicial role, which is to say what the law

is, n ot to prescribe what it shall be.” I d. at 201 (Scalia, J.,

concurring).

In James B. Beam Distilling Co. v. Georgia

, 501 U.S. 529

(1991), the Court failed to produce a unified opinion for the

Court, but a majority agreed that a rule of federal law, once

announced and applied to the parties to the controversy, must be

given full retroactive effect to all others not barred by res

j udicata or statutes of limitation; and that the theory of

selective prospectivity must be abandoned in civil cases. 7limitations. This practice is overwhelmingly

the norm, and is in keeping with the

traditional function of the courts to decide

cases before them based upon their best

current underst anding of the law. It also

reflects the declaratory theory of law,

according to which the courts are understood

only to find the law, not to make it. But in

some circumstances retroactive application may

prompt difficulties of a practical sort.

However much it comports with our received

notions of the judicial role, the practice has

been attacked for its failure to take account

of reliance on cases subsequently abandoned, a

fact of life if n ot always one of

jurisprudential recognition.

Second, there is the purely prospective

method of overruling, under which a new rule

is applied ne ither to the parties in the

law-making decision nor to those others

against or by whom it might be applied to

conduct or events occurring before that

decision. The case is decided under the old

law but becomes a vehicle f or announcing the

new, effective with respect to all conduct

occurring after the date of that decision.

This Court has, albeit infrequently, resorted

to pure prospectivity, although in so doing it

has never been required to distinguish the

remedial from the choice-of-law aspect of its

decision. This approach claims justification

in its appreciation that "[t]he past cannot

always be erased by a new judicial

d eclaration," and that to apply the new rul e to parties who relied on the old would offend

basic notions of justice and fa irness. But

this equitable method has its own drawback:

it tends to relax the f orce of precedent, by

minimizing the costs of overruling, and

thereby allows the courts to act with a

freedom comparable to that of legislatures.

Finally, a court may apply a new rule in

the case in w hich it is pronounced, then

return to the old one with respect to all

others arising on facts predating the

pronouncement. This method, which we may call

modified, or selective, prospectivity, enjoyed

its temporary ascendancy in the criminal law

during a period in which the Court formulated

new rules, prophylactic or otherwise, to

34insure protection of the rights of the

accuse d. On the one hand, full retroactive

application of holdings such as those

announced in Miranda v. Arizona, Escobedo v.

Illinois, and Katz v. United States

, would

have "seriously disrupt[ed] the administration

of our criminal laws[,] . . . requir[ing] the

retrial or release of numerous prisoners found

guilty by trustworthy evidence in conformity

with previously announced constitutional

standards." On the other hand, retroactive

application could hardly have been denied the

litigant in the law-changing decision itself.

A criminal defendant usually seeks one thing

only on appeal, the reversal of his

conviction; future application would provide

little in the way of solace. In this context,

without retroactivity at least to the first

successful litigant, the incentive to seek

review would be diluted if not lost

altogether.

But selective prospectivity also breaches

the principle that litigants in similar

situations should be treated the same, a

fundamental component of stare decisis and the

ru le of law generally. For this reason, we

abandon ed the possibility of selective

prospectivity in the criminal context in

Griffith v. Kentucky , even where the new rule

constituted a "clear break" with previous law,

in favor of completely retroactive application

o f all decisions to cases pending on direct

review. Though G riffith was held not to

dispose of the matter of civil retroactivity,

selective prospectivity appears never to have

been endorsed in the civil context. This case

presents the issue.

Id. at 535-38 (internal citations omitted).

35 Justice Souter, whose lead opinion garnered the most support,

r easoned that the equality principle of G riffith (that similarly

situated litigants should be treated the same) carries comparable

or greater strength in the civil context, requiring that: (1) the

possibility of selective prospectivity be rejected in civil cases;36

and (2) when a court has applied a new rule of law to the litigants

in the case before it, that application necessarily is a

retroactive application of the rule to a cause of action based on

events predating its adjudication, an d therefore must be applied

with equality to all simi larly situated litigants, except as to

rights acquired by them through the operation of res judicata or

statutes of limitation, due to the need for finality and an end to

litigation. Three justices dissented, defending the practices of

both pure and selective p rospective application of decisions and

the continued viability of the Ch evron Oil test. I d. at 549

(O’Connor , J., joined by Rehnquist, C.J., and Kennedy, J.,

dissenting).

In Harper v. Virginia Department of Taxation

, 509 U.S. 86

(1993), Jus tice Thomas authored a five-member majority opinion

expressly adopting a rule that “fairly reflects the position of a

majority of Justices in Beam ”:

When this Court applies a rule of federal law to

the parties before it, that rule is the controlling

i nterpretation of federal law and must be given

full retroactive effect in all cases still open on

direct review and as to all events, re gardless of

whether such events predate or postdate our

announcement of t he rule. This rule extends

Griffith’s ban against “selective application of

new rules .” Mindful of the “basic norms of

constitutional adjudication” that animated our view

of retroa ctivity in the criminal context, we now

prohibit the erection of selective temporal

barriers to the application of federal law in

noncrimin a l cases. In both civil and criminal

cases, we can scarcely permit “the substantive law

[to] shift and spring” according to the “particular

equities of [individual parties’] claims” of actual

reliance on an old rule and of harm from a

retroactive a pplication of the new rule. Our

approach to retroactivity heeds the admonition that37 “[t]he Court has no more constitutional authority

in civil cases than in criminal cases to disregard

current law or to treat similarly situated

litigants differently.”

Id. at 97 (internal citations omitted).

Justice O’Connor, joined by the Chief Justice, dissented from

the Court’s rejection of the use of prospective retroactivity under

the Chevron Oil test, an d expressed concern that the forgoing

language and another statement in Justice Thomas’s majority opinion

“intimates that pure prospectivity may be prohibited as well.” I d.

at 115 (O’Connor, J., joined by Rehnquist, C.J., dissenting).

Justices Kennedy and White, concurred in part, disagreeing with

that aspect of the majority opinion and expressing their continuing

view that pure prospectivity will be appropriate sometimes in the

civil context. Id. at 110 (Kennedy, J., joined by White, J.,

concurring in part and concurring in the judgment).

The Supreme Court in R eynoldsville Casket Co. v. Hyde , 514

U.S. 749 (1995), held that under Harper its decision in Bendix

Autolite Corp. v. Midwesco Enterprises, Inc.

, 486 U.S. 888 (1988),

must be applied retroactively to plaintiff Hyde’s lawsuit filed in

1987 arising out of a 1984 vehicular accident, and that the

Supremacy Clause of the Federal Constitution b ars Ohio from

applying its tolling statute to pre- Bendix torts and thus requires

reversal of the Ohio Su preme Court’s refusal to apply B endix

retroactively. In B endix, the Court had held unconstitutional (as

impermissibly burdening interstate commerce) an Ohio “tolling”

provision that, in effect, gave Ohio tort plaintiffs unlimited time

to sue out-of-state (but not in-state) defendant s. The38

Reynoldsville Casket Co. Court accepted Hyde’s acknowledgment that

Harper :

held that, when (1) the Court dec ides a case

and applies the (new) legal rule of that case

to the parties before it, then (2) it and

other courts must treat that same (new) legal

rule as “retroactive,” applying it, for

example, to all pending cases, whether or not

those cases involve predecision events.

Hyde

, 514 U.S. at 752. Also, the court accepted Hyde’s concessions

that, as “ ‘a result of H arper

, there is no question that Bendix

retroactively invalidated’ the tolling provisio n that makes her

suit timely[,]” id.

, and that Harper overruled Chevron Oil insofar

as the case (selectively) permitted the prospective-only

application of a new rule of law. Id. Nevertheless, Hyde argued

that the Ohio Supreme Court holding that Bendix may not be

retroactively applied to bar claims in sta te courts which had

accrued prior to the Bendix decision should be viewed simply as an

effort to fashion a remedy that t akes into consideration her

reliance on pre- B endix law, under the authority o f a

recharacterization of Chevron Oil as a case in which the Court

simply took re liance interests into account in tailoring an

appropriate remedy for a violation of federal law. The Court

rejected Hyde’s argument because she “offers no more than simple

reliance (of the sort at issue in Chevron Oil ) as a basis for

creating an exception to Harper’s rule of retroactivity

-- in other

words, she claims that, for no special reason, Harper does not

apply.” I d. at 759. In so doing, the Court distinguished several

examples upon which Hy de relied, as instances in which courts39

applying “retroactively” a new rule of law to pending cases, for

well-established reasons, found that the new rule did not determine

the outcome of the case.

Thus, a court may find (1) an alternative way

of curing the constitutional violation, or (2)

a previously existing, independent legal basis

(having nothing to do with retroactivity) for

denying relief, or (3) as in the law of

qualified immunity, a well-established general

legal rule that trumps the n ew rule of law,

which general rule reflects both reliance

i nterests and other significant polic y justifications, or (4) a principle of law,

such as tha t of “finality” present in the

Teague context, that limits the principle of

retroactivity itself. But, this case [where a

concern about reliance alone has led the Ohio

c ourt to create what amounts to an d ad hoc

exemption from retroactivity [ id. at 758]]

involves no such instance[.]

Id.

Evidently, the Supreme Court has concluded that the Linkletter

and Chevron Oil departures from traditional retroactivity doctrine

proved unsatisfactory. The Court’s most recent decisions

substantially reject those d epartures and return to the general

rule of adjudicative retroactivity, lea ving only an indistinct

possibility of the application of pure prospectivity in an

extremely unusual and unforeseea ble case. S ee Jill E. Fisch,

Retroactivity and Legal Change: An Equilibrium Approach

, 110 H ARV

.

L. R EV

. 1056, 1059 (1997).

D. Halphen Is Circuit Diversity Precedent

“Ordinarily, a state court’s answer to a certified question is

final and binding upon the parties between whom the issue arose.”

Sifers v. General Marine Catering Co., 892 F.2 d 386, 391 & n.228 See e.g., Robertson v. Superior PMI, Inc., 791 F.2d 402 (5th

Cir. 1986); Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir.

1987); Houston Oil & Minerals Corp. v. American Int’l Tool Co., 827

F.2d 1049 (5th Cir. 1987), cert. denied, 484 U.S. 1067 (1988);

Richard v. Firestone Tire & Rubbe r Co., 8 53 F.2d 1258 (5th Cir.

40 (5t h Cir. 1990) (citing H opkins v. Lockheed Aircraft Corp.

, 394

F.2d 656, 657 (5th Cir. 1968); National Educ. Ass’n. v. Lee County

Bd. of Pub. In struction , 467 F.2d 447, 450 n.6 (5th Cir. 1972);

Redgrave v. Boston Symphony Orchestra

, 855 F.2d 888, 903 (1st Cir.

1988); 17A C HARLES A LAN W RIGHT ET AL

., F EDERAL P RACTICE AND P ROCEDURE § 4248,

at 179 (2d ed. 1988)). Such an answer, therefore, generally

becomes “the law of the case,” Sifers, 892 F.2d at 391 & n.23

(citing Boyd v. Bowman

, 455 F.2 d 927, 928 (5th Cir. 1972) (per

curiam); Tarr v. Manchester Ins. Corp.

, 544 F.2d 14, 14-15 (1st

Cir. 1976) (per curia m)); and, further, because we consider the

state court’s answer to be binding in the proceedings between the

parties to the certified case, that answer becomes the law of this

circuit and binding upon parties who were not parties to the

certified case. Sifers, 892 F.2d at 391-92.

In Halphen v. Johns-Manvill e Sales Corp. , 788 F.2d 274 (5th

Cir. 1986), this court received the Louisiana Supreme Court’s

answer to a certified question with the state court’s opinion,

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

and applied that interpretation of Louisiana law by th e state

supreme court to the parties and the case before this court.

Subsequently, this court has applied Halphen retro actively (and

prospectively) to cases arising both before and after the state

supreme court’s decision. 8 Thus, H alphen is the controlling law of198 8), c ert. denied, 488 U.S. 1042 (1989); Valenti v. SurgiteckFlash Med. Eng’g Corp., 875 F.2d 466 (5th Cir. 1989); Pennington v.

Vistron Corp., 876 F.2d 414 (5th Cir. 1989); Davis v. Commercial

Union Ins. Co., 892 F.2d 378 (5th Cir. 1990); Klem v. E.I. DuPont

De Nemours & Co., 1 9 F.3d 997 (5th Cir. 1994); Reeves v. AcroMed

Corp., 44 F.3d 300 (5th Cir.), cert. denied, 515 U.S. 1104 (1995);

Reeves v. AcroMed Corp., 103 F.3d 442 (5th Cir. 1997).

41 this circuit in Louisiana diversity cases, and must be applied to

the present case because it arose and was pending when Halphen was

decided.

IV. CONCLUSION

For the reasons assigned, we conclude that the Louisiana

Supreme Court will continue to apply its general rule under which

a judicial decision must be given re troactive effect unless the

rendering court specifies otherwise or such application is barred

by prescription or res judicata. Under that rule, which is the

generally accepted norm in all common and civil law jurisdictions,

the Halphen decision, which was silen t as to its temporal

application, must be applied retroactively, consistently with

prescription and res judicata provisions. Further, because H alphen

was applied to the parties in that and subsequent cases, it is

circuit precedent and must be applied to the present case.

The judgment and ruling of the district court appealed from by

the plaintiffs-appellants are REVERSED and the case is REMANDED to

th e district court for further proceedings consistent with this

opinion.

REVERSED and REMANDED42