Cory Jenkins v. Bristol-Myers Squibb Company, et a
689 F. App'x 793
| 5th Cir. | 2017Background
- Jenkins began taking Abilify (an FDA-approved antipsychotic) in Oct 2010 for bipolar disorder.
- He first noticed twitching in his arms and legs in late 2012–early 2013; Dr. Dean Hickman told him in April 2013 to stop Abilify because it might be causing movement issues; Jenkins stopped and the twitching resolved.
- Jenkins filed suit under the Louisiana Products Liability Act (LPLA) on Oct 17, 2014 against Abilify manufacturers/distributors alleging the drug caused tardive dyskinesia.
- The district court granted summary judgment for defendants, holding Jenkins’s claims prescribed (LPLA one-year prescription) because injuries manifested in April 2013.
- Jenkins argued contra non valentem tolled prescription until Oct 18, 2013 (when a neurologist referred him for further evaluation) and sought further discovery under Rule 56(d); the courts rejected both contentions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual date/prescription start | Jenkins: claims did not accrue until Oct 18, 2013 (neurologist referral); earlier symptoms were not sufficient | Defs: injuries manifested April 2013; one-year prescription began then | Accrual in April 2013; claims prescribed by Oct 2014; summary judgment affirmed |
| Manifestation standard vs. diagnosis | Jenkins: needed definitive diagnosis of tardive dyskinesia before accrual | Defs: accrual when injury manifested with sufficient certainty, not waiting for diagnosis | Court: manifestation (tremors, fidgeting, jaw clenching) in April 2013 was sufficient for accrual |
| Contra non valentem tolling | Jenkins: reasonable ignorance continued until Oct 2013; tolling should apply | Defs: Jenkins had actual/constructive knowledge in April 2013 (physician suggested medication cause) | Tolling ended when Jenkins knew or should have known—April 2013; contra non valentem did not save claim |
| Rule 56(d) discovery request | Jenkins: remand for further discovery to oppose summary judgment | Defs: Jenkins failed to seek 56(d) below; discovery request untimely | Denied; appellate Rule 56(d) relief foreclosed because he didn’t request it in district court |
Key Cases Cited
- Burell v. Prudential Ins. Co. of Am., 820 F.3d 132 (5th Cir. 2016) (summary judgment review standard)
- Luckett v. Delta Air Lines, Inc., 171 F.3d 295 (5th Cir. 1999) (prescription commencement does not await physician or expert pronouncement)
- Cole v. Celotex Corp., 620 So.2d 1154 (La. 1993) (damages sustainment when manifested with sufficient certainty for accrual)
- Chevron USA, Inc. v. Aker Marine, Inc., 604 F.3d 888 (5th Cir. 2010) (contra non valentem tolling tied to reasonableness of plaintiff’s discovery efforts)
- Potter v. Delta Air Lines, Inc., 98 F.3d 881 (5th Cir. 1996) (accrual principles applied to prescriptive periods)
- Eastin v. Entergy Corp., 865 So.2d 49 (La. 2004) (tolling ends when injured party discovers or should have discovered actionable facts)