Filed: Oct. 09, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-30250 Summary Calendar _ LOUIS MARKS, Plaintiff-Appellant, v. R J REYNOLDS TOBACCO COMPANY, ET AL, Defendants, R J REYNOLDS TOBACCO COMPANY; PHILLIP MORRIS INCORPORATED, Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Louisiana (93-CV-1496) _ October 8, 1996 Before KING, GARWOOD, and DENNIS, Circuit Judges. PER CURIAM:* Louis Marks (“Marks”) brought suit against R.J. Reynolds Tob
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-30250 Summary Calendar _ LOUIS MARKS, Plaintiff-Appellant, v. R J REYNOLDS TOBACCO COMPANY, ET AL, Defendants, R J REYNOLDS TOBACCO COMPANY; PHILLIP MORRIS INCORPORATED, Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Louisiana (93-CV-1496) _ October 8, 1996 Before KING, GARWOOD, and DENNIS, Circuit Judges. PER CURIAM:* Louis Marks (“Marks”) brought suit against R.J. Reynolds Toba..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30250
Summary Calendar
_____________________
LOUIS MARKS,
Plaintiff-Appellant,
v.
R J REYNOLDS TOBACCO COMPANY, ET AL,
Defendants,
R J REYNOLDS TOBACCO COMPANY; PHILLIP MORRIS
INCORPORATED,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(93-CV-1496)
_________________________________________________________________
October 8, 1996
Before KING, GARWOOD, and DENNIS, Circuit Judges.
PER CURIAM:*
Louis Marks (“Marks”) brought suit against R.J. Reynolds
Tobacco Company (“R.J. Reynolds”) and Phillip Morris Incorporated
(“Phillip Morris”), claiming appellees’ cigarettes caused his
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
wife Verna Marks (“Mrs. Marks”) to die of lung cancer. The trial
court granted R.J. Reynolds and Phillip Morris’s motion for
2
partial summary judgment. Finding no error, we affirm.
I. BACKGROUND
Marks’s suit alleges that his wife, Mrs. Marks, was
diagnosed with cancer on July 10, 1991 and died on November 3,
1991. Mrs. Marks apparently smoked cigarettes from approximately
1952 to 1980. Marks asserts that Mrs. Marks’s cancer resulted
from smoking appellees’ cigarettes.
Marks’s complaint alleged six claims. R.J. Reynolds and
Phillip Morris moved for summary judgment on four of the six
claims, arguing they were eliminated by the Louisiana Products
Liability Act (“LPLA”). The district court agreed, granted the
motion, and entered judgment on those claims under FED. R. CIV. P.
54(b). Marks appeals, arguing that, contrary to this court’s
decision in Brown v. R.J. Reynolds Tobacco Co.,
52 F.3d 524 (5th
Cir. 1995), in the case of a long-term exposure to an alleged
carcinogen, the time of the exposure, not the date at which the
cancer manifests itself, should be considered to establish the
accrual of the claimant’s cause of action. Marks also argues
that there is an unresolved issue of material fact because Mrs.
Marks “necessarily” was damaged by the cigarettes prior to the
1988 effect date of the LPLA and thus, meets the criteria set
forth in Brown for maintaining his cause of action.
II. DISCUSSION
A. STANDARD OF REVIEW
3
The entry of summary judgment is mandated if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with any affidavits, show that there is no genuine issue
of material fact and that the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56. Thus, the moving party must
demonstrate the absence of a genuine issue of material fact.
Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant meets this burden, the nonmovant must go beyond the
pleadings and designate specific facts showing a genuine fact
issue for trial.
Id. Factual controversies are resolved in
favor of the nonmoving party, but only when there is an actual
controversy.
Id.
B. NO EXPOSURE THEORY
Marks argues that the time of exposure should be the
determining factor in establishing the accrual of a claimant’s
cause of action under the LPLA because it is impossible to
determine the exact point at which both damage and wrongful
conduct coincide. This is the so-called “exposure theory.” We
explicitly rejected the exposure theory in Brown, finding that
although an accrual test might at times be difficult to apply,
“[t]he LPLA contains no language suggesting that the exposure
rule or any other rule, other than the general rule [that focuses
on the date the cause of action accrues], applies.” Brown v.
R.J. Reynolds Tobacco Co.,
52 F.3d 524, 527, 530 (5th Cir. 1995).
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A panel of this court may not overrule the decision of a
prior panel in the absence of an en banc reconsideration or a
superseding decision of the Supreme Court or, in a diversity
case, subsequent state court decisions that are clearly contrary
to our prior decision. Floors Unlimited, Inc. v. Fieldcrest
Cannon, Inc.,
55 F.3d 181, 185 (5th Cir. 1995); Pruitt v. Levi
Strauss & Co.,
932 F.2d 458 (5th Cir. 1991). As there has been
no intervening law contradicting Brown, this panel may not
overrule it, and Marks’s assertion of the exposure theory must be
rejected. Thus, summary judgment on this basis was proper.
C. NO FACT ISSUES
Marks asserts, in the alternative, that even if we do not
overrule Brown, summary judgment was improper because there is a
genuine issue of material fact under the standards set forth in
Brown. Brown concludes that although the LPLA eliminated certain
causes of action, a plaintiff could proceed under those theories
if the plaintiff showed that the cause of action accrued before
the effective date of the LPLA, September 1, 1988.
Brown, 52
F.3d at 527, 530. However, summary judgment is proper if the
plaintiff “produced no evidence that he suffered damages or
bodily injury, latent or otherwise, before September 1, 1988.”
Id. at 527. Thus, the key factor in our resolution of this case
is evidence of damages or bodily injury.
5
Marks claims that because “[i]t is not contested for the
purposes of this motion that cigarettes caused Mrs. Mark’s [sic]
cancer . . . . [and] that Mrs. Marks had stopped smoking eight
years before the LPLA[,] [i]t necessarily follows that the
cigarettes caused either damage or injury to the lungs before the
1988 LPLA effective date.” Marks cites no medical or scientific
summary judgment evidence for this proposition, but rests this
conclusion on “logic.”1 Conclusory allegations and
unsubstantiated assertions are not competent summary judgment
evidence.
Light, 37 F.3d at 1075. Furthermore, Marks’s own
expert witnesses, presented as R.J. Reynolds and Phillip Morris’s
summary judgment evidence, disagree with this logic. According
to the summary judgment evidence record, Marks’s experts stated
in deposition testimony that rates of cancer progression vary
from individual to individual and that it is impossible to
determine when any specific person’s cancer arose. The evidence
further showed that Mrs. Marks had never even been diagnosed with
lung cancer. Mrs. Marks is just like the plaintiff in Brown:
both were long-time smokers whose cancer was diagnosed after the
1
In his response to R.J. Reynolds and Phillip Morris’s
motion for summary judgment, Marks attached two letters from his
experts. Each letter indicates the author’s opinion that smoking
exposure caused Mrs. Marks’s cancer “within a reasonable degree
of medical certainty.” These letters were not sworn and thus are
not competent summary judgment evidence. See FED. R. CIV. P.
56(e); Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547,
549 (5th Cir. 1987).
6
LPLA’s effective date.
Brown, 52 F.3d at 523. In Brown, we
rejected any inference based solely on the timing of smoking by
affirming the grant of summary judgment on the basis that Brown
had not presented any evidence of injury or bodily damage prior
to the diagnosis of his cancer, which was after the LPLA’s
effective date. See
id. at 527. The relevant facts in this case
are identical to those in Brown. Thus, the trial court’s grant
of partial summary judgment was proper.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
granting of partial summary judgment.
7