U.S. 5th Circuit Court of Appeals Clarifies Theriot Exception to Prescriptive Period Defense

One of the first things that must be determined in any potential tort claim is whether the statute of limitations bars the claim. An otherwise legitimate lawsuit may be invalid simply because the injured party waited too long to file the claim. In the State of Louisiana, the statutory period in which a claim must be filed is referred to as the “prescriptive period.” If a case is “prescribed”, it is beyond the statutory period. Louisiana has a one-year prescription period for tort claims, which “commences to run from the day injury or damage is sustained.” La. Civ. Code art. 3492.

However, there are some exceptions to this strict prescriptive period. One such exception is referred to as the “Theriot test,” which originated in the 1979 Louisiana Supreme Court case Allstate Ins. Co. v. Theriot. In Theriot, the Louisiana Supreme Court stated that where a “subsequent claimant is a different person than the original plaintiff then to interrupt prescription (1) the first suit must … be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention;” and “(2) the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff.”

In the recent Fifth Circuit United States Court of Appeals case Southern Pain & Anesthesia, et al v. RF Medical, the court further clarified what is necessary to stop prescription under the Theriot test. In RF Medical the trial court granted summary judgment in favor of the defendants on the grounds that the prescriptive period had run, and the Court of Appeals recently affirmed by refusing to allow the Theriot exception. The facts of the case are rather simple; Dr. Paul Hubbell unsuccessfully performed an annuloplasty procedure on Toni Peavy in February 2004. The procedure used the defendants’ medical product “discTRODE” and resulted in significant injury to Mr. Peavy. Mr. Peavy subsequently filed a lawsuit against Dr. Hubbell and the product manufacturer defendants. While Mr. Peavy’s suit was pending, Dr. Hubbell filed a separate lawsuit against the product manufacturers.

In affirming the trial courts summary judgment ruling the Court of Appeals determined that Mr. Hubbell’s claim was not consistent with the requirements of the Theriot test, and therefore not eligible for an interruption of prescription. First, it found that his claim was not filed by amended petition or intervention as required by the test; instead, he filed an entirely separate lawsuit. Secondly, the court found that Mr. Hubbell did not share a sufficiently close “relationship and identity of interest with” Peavy. The court explained that such an interest is sufficiently close only when the two parties’ interests are aligned, such as a decreased defendant and his survivors, or an employer’s insurer and employee. Similarly, the court found that the “plaintiffs do not ‘share a single cause of action’ with Peavy that would warrant interruption.” In other words, although each suit is based in part on common facts, the factual basis for each suit is not identical, since each party is attempting to recover for different types of harm, one economic and the other personal injuries. For these reasons, the court of appeals affirmed the trial court’s ruling granting summary judgment for the defendants, in effect squashing Mr. Hubbell’s claim.

This case demonstrates how important it is to file a claim within the prescribed time period. In Louisiana this period is relatively short, only one year. Therefore, if you are contemplating contacting an attorney regarding any alleged tortious conduct, it is important to contact an attorney sooner rather than later because otherwise legitimate lawsuits are lost for no other reason but procrastination.

The attorneys at the Berniard Law Firm are experienced in dealing with medical malpractice, product liability, and many other types of tort claims. Call the Berniard law firm at 1-866-574-8005 to determine the potential strength of your claim.

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