PER CURIAM.
Plaintiff Cory Jenkins filed this lawsuit on October 17, 2014, asserting two claims under the Louisiana Products Liability Act (LPLA). The district court held that both of Jenkins's claims had prescribed, and entered summary judgment in favor of Defendants Bristol-Myers Squibb Company and Otsuka America Pharmaceutical, Incorporated. Finding the district court's opinion to be thorough, well-reasoned, and correct, we AFFIRM.
We review a district court's grant of summary judgment de novo, viewing all facts and drawing all inferences in a light most favorable to the non-moving party.
Jenkins suffers from bipolar disorder, for which he began to take Abilify in October 2010. Abilify is an FDA-approved medication. However, like many FDA-approved medications, it has potential side-effects. One of those potential side-effects is tardive dyskinesia. Tardive dyskinesia is a severe neurological disorder that causes involuntary muscle movements, or twitching.
Jenkins "first noticed twitching in his legs and arms in the late Fall of 2012 and the early part of 2013." In April 2013, Dr. Dean A. Hickman of Ochsner Medical Center in New Orleans, Louisiana, told Jenkins to stop taking Abilify because he suspected that Abilify may have given him tardive dyskinesia which may be causing him to twitch. Jenkins complied, and his twitch went away. Jenkins even went so far as to cancel a May 2013 doctor's appointment because he "was off Abilify and that's what was causing" the twitching.
With limited exceptions inapplicable here, actions brought under the LPLA are subject to a one year prescriptive period, which "commences to run from the day injury or damage is sustained."
The district court held that Jenkins first sustained injuries in April 2013. "Tremors, fidgeting, and jaw clenching," the court wrote, "are cognizable injuries that can support a cause of action" under Louisiana law. Jenkins argues that "there is a serious factual dispute over whether [he] had even developed" tardive dyskinesia in April 2013. Yet even assuming that such a dispute exists, it is immaterial and therefore cannot create a genuine dispute of material fact.
"For purposes of summary judgment, an issue is `material' if it involves a fact that might affect the outcome of the suit under the governing law."
Jenkins does not dispute that he sustained "tremors, fidgeting, and jaw clenching" in April 2013. At that moment, both of his LPLA claims accrued.
We turn next to the doctrine of contra non valentem, which ensures that "Louisiana's one-year prescriptive period does not begin to run until the plaintiff has actual or constructive knowledge of the tortious act, the damage, and the causal relationship between the tortious act and the damage."
Jenkins argues "that a reasonable person would [not] have acquired the knowledge necessary to commence prescription" until October 18, 2013, when Dr. David Houghton, a neurologist, referred Jenkins to another doctor in order to address what Houghton believed to be an undiagnosed, movement-based disorder. Jenkins admits that Dr. Houghton did not tell him that his twitching was related to Abilify. Nonetheless, Jenkins asserts — without explanation — that he first "acquired the knowledge necessary to commence prescription" on October 18, 2013.
We disagree. Tolling pursuant to contra non valentem ends, and the prescriptive period begins, on "the date the injured party discovers or should have discovered the facts upon which his cause of action is based."
Based upon this sworn testimony, we agree with the district court that Jenkins's LPLA claims are time-barred. Filed on October 17, 2014, they accrued in April 2013 and prescribed twelve months later.
Lastly, Jenkins argues that even if we hold that his LPLA claims have prescribed, we should remand for further discovery pursuant to Federal Rule of Civil Procedure 56(d). We have repeatedly "foreclosed a party's contention on appeal that it had inadequate time to marshal evidence to defend against summary judgment when the party did not seek Rule 56[(d)] relief before the [district court issued its] summary judgment ruling."
The ruling of the district court is AFFIRMED.