United States Court of Appeals,
Fifth Circuit.
No. 93-2550
Summary Calendar.
Kristin Jolene SCHAEFER, et al., Plaintiffs,
Kristin Jolene Schaefer and Eric Paul Wagenhauser, Plaintiffs-Appellants
v.
GULF COAST REGIONAL BLOOD CENTER, et al., Defendants-Appellees.
Jan. 4, 1994.
Appeal from the United States District Court for the Southern District of Texas.
Before REYNALDO G. GARZA, SMITH, and WIENER, Circuit Judges.
PER CURIAM:
Kristin Jolene Schaefer and Eric Paul Wagenhauser (plaintiffs) appeal a district court order
granting defendants' summary judgment on the ground that the claim was barred by limitations.
Finding no error in the lower court's decision, we affirm.
I. FACTS
This case involves the alleged transfusion of contaminated blood into Anton James
Wagenhauser ("Wagenhauser") on May 23, 1983 while he was undergoing coronary artery by-pass
surgery at the Veterans Administration Medical Center in Houston, Texas ("V.A."). On February
23, 1987, almost four years later, the V.A. sent Wagenhauser a letter informing him that one of the
blood donors who provided the blood transfused into him in the 1983 surgery was determined to have
tested positive for the human immunodeficiency virus ("HIV"). The letter further recommended that
Wagenhauser see a physician for additional blood testing. Following these directions, Wagenhauser
submitted to blood testing to discover that he was HIV posi tive. Dr. Roger D. Rossen, M.D., a
treating physician of Wagenhauser, advised him on April 7, 1987, that the presumed (probable) cause
of his HIV infection was the blood transfusion administered at the V.A. Medical Center in 1983.
Wagenhauser died from AIDS-related complications on March 30, 1990.
At no time prior to his death did Wagenhauser, or anyone purporting to act on his behalf, file
a lawsuit against any of the defendants. Two years later, on March 27, 1992, the deceased's children
filed wro ngful death and survival actions against Gulf Coast Regional Blood Center and Baylor
College of Medicine. On September 9, 1992, the plaintiffs asserted similar actions against Coffee
Memorial Blood Center, The American National Red Cross, the J.K. and Susie L. Wadley Research
Institute and Blood Bank d/b/a/ the Blood Center at Wadley, and Blood Center for Southeast
Louisiana, under multiple theories of liability seeking redress for damages apparently caused by the
transfusion of HIV-contaminated blood. The case was removed to federal court pursuant to the grant
of federal jurisdiction conferred by the Red Cross's federal charter, 36 U.S.C. § 2. See American
National Red Cross v. S.G., --- U.S. ----, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992). Concluding that
the two-year statute of limitations, which began to run against Wagenhauser in April of 1987, had
elapsed prior to his death, District Judge Melinda Harmon granted the defendants' motions for
summary judgment on limitations grounds against the plaintiffs, and entered final judgment. Plaintiffs
have timely appealed.
II. DISCUSSION
A. Standard of Review
This court reviews the granting of summary judgment de novo. Guthrie v. Tifco Industries,
941 F.2d 374, 376 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1267, 117 L.Ed.2d 495
(1992); Began v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989). Summary judgment is
appropriate where the pleadings, depositions, answers to discovery, and affidavits show that there
is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Duvall v. Ritz Carlton Hotel Co., 946
F.2d 418, 420 (5th Cir.1991).
The movant seeking a federal summary judgment initially must inform the court of the basis
for its motion and point out those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file that demonstrate the absence of a genuine issue of material fact and show that
it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant
to set forth specific facts and competent summary judgment evidence to raise a genuine issue of
material fact on each essential element of any claim on which he bears the burden of proof at trial.
Fed.R.Civ.P. 56(c). The non-moving party may not rest on mere allegation or denials in its pleadings,
but must instead produce affirmative evidence and specific facts. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, at 256-57, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986). It meets this burden only
if it shows that "a reasonable jury could return a verdict for the non-moving party." Id. at 248, 106
S.Ct. at 2510 A mere scint illa of evidence will not preclude granting of a motion for summary
judgment. Id. at 252, 106 S.Ct. at 2512.
More specifically, in the context of limitations, Texas substantive law controls the issues
present in the instant litigation. See, e.g., Woodruff v. A.H. Robins Co., Inc., 742 F.2d 228, 229 (5th
Cir.1984) (per curiam). As a rule, where the issues raised on appeal center primarily around
substantive state law, a federal district court judge's determination on the law in her state is entitled
to great weight. Cole v. Elliott Equipment Co., 653 F.2d 1031, 1034 (5th Cir.1981); Avery v.
Maremont Corp., 628 F.2d 441, 446 (5th Cir.1980). The sole issue of law with regard to this appeal
is whether plaintiffs' claims are barred by the applicable statute of limitations.
B. Survival & Wrongful Death Claims are Derivative
Plaintiffs have asserted actions against the defendants pursuant to the Texas Wrongful Death
Statute as set forth in TEX.CIV.PRAC. & REM.CODE ANN. §§ 71.002-71.004 (Vernon 1986), and
the Texas Survival Statute as set forth in TEX.CIV.PRAC. & REM.CODE ANN. § 71.021 (Vernon
1986). Typically, a wrongful death cause of action accrues upon the death of the injured person.
TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(b) (Vernon 1986). The survivors have two years
from the decedent's death to bring the wrongful death claim. Id. However, the Texas Supreme Court
recently ruled that in cases involving wrongful death claims where the underlying cause of action by
the decedent is barred by limitations, no wrongful death cause of action exists. Russell v. Ingersoll-
Rand Co., 841 S.W.2d 343, 348-49 (Tex.1992).1 Claims arising under both the Wrongful Death Act
1
The Wrongful Death Statute allows an action by a decedent's beneficiaries "only if the
individual injured would have been entitled to bring an action for the injury if he had lived."
TEX.CIV.PRAC. & REM.CODE ANN. § 71.003(a) (Vernon 1986). "If a wrongful death action
and the Survival Statute are derivative actions, and condition the plaintiff's ability to recover upon the
decedent's theoretical ability to have brought an action had the decedent lived. Id.
All defenses applicable to a deceased's cause of action, including limitations, may also be
raised against the derivative claim asserted by his statutory beneficiaries. Russell, 841 S.W.2d at 347;
Bounds v. Caudle, 560 S.W.2d 925, 926 (Tex.1978). If a decedent's action would have been barred
by limitations if asserted at the time of his death, the representatives and beneficiaries asserting the
wrongful death of the decedent stand in the shoes of the decedent and are barred. Russell v.
Ingersoll-Rand Co., 841 S.W.2d 343, 344 (Tex.1992). See also Slaughter v. Southern Talc Co., 949
F.2d 167, 173 (5th Cir.1991).
Following this line of reasoning, it is incumbent upon this court to determine if there exists
a genuine issue of fact as to whether Wagenhauser had a viable claim at the time of his death.
C. The Texas Discovery Rule
In Texas, causes of action for personal injuries are governed by a two-year statute of
limitations, which specifically provides in pertinent part that "a person must bring suit for ... personal
injury ... not later than two years after the day the cause of action accrues." TEX.CIV.PRAC. &
REM.CODE ANN. §§ 16.003(a) & (b). Therefore, claims which are not brought within a two-year
period from the date the cause of action accrues are barred as a matter of law. Under Texas law,
Wagenhauser's cause of action accrued at the time he received the injuring transfusion on May 23,
1983. J.K. and Susie L. Wadley Research Institute & Blood Bank v. Beeson, 835 S.W.2d 689, 694
(Tex.App.—Dallas 1992, writ denied). However, the Texas discovery rule applies in this situation
to toll the statute of limitations until the plaintiff discovers, or through the exercise of reasonable care
and diligence should have discovered, the nature of his injury and its cause in fact. E.g., Glasscock
v. Armstrong Cork Co., 946 F.2d 1085, 1092 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1778,
exists, it accrues, not when the decedent was injured, but at his death, and the limitations period
on that action begins to run at death. But if a wrongful death action does not exist because the
decedent could not maintain an action in his own right immediately prior to his death, for
whatever reason, then no wrongful death action ever accrues.... Section 16.003(b) does not
create a cause of action, or resurrect one that has expired with the decedent; it only defines the
period within which statutory beneficiaries must sue if they have a claim." Russell, 841 S.W.2d at
348.
118 L.Ed.2d 435 (1991); Mann v. A.H. Robins Co., Inc., 741 F.2d 79, 81 (5th Cir.1984); Gatling
v. Perna, 788 S.W.2d 44, 47 (Tex.App.—Dallas 1990, writ denied); Moreno v. Sterling Drug, Inc.,
787 S.W.2d 348, 351 (Tex.1990); Allen v. Roddis Lumber & Veneer Co., 796 S.W.2d 758, 761
(Tex.App.—Corpus Christi 1990, writ denied) ...
The district court, in granting the defendants' motions for summary judgment, found that:
[d]espite Plaintiffs' rambling objections and diversionary allegations, this court finds that the
summary judgment evidence submitted by Defendants clearly shows that Mr. Wagenhauser
knew in March 1987 that he had received a blood transfusion in 1983 from a donor known
later to have been infected with the AIDS virus. He knew that same month and informed the
Veterans Administration medical personnel in April 1987 that he was HIV positive. That
same month a physician informed him that the probable cause of his infection was the 1983
transfusion. The statute began to run no later than early April, 1987. Accordingly this suit
is barred by limitations.
The appellants' contention on appeal is that the granting of summary judgment was erroneous
because there exist genuine issues of fact as to whether Wagenhauser had discovered the "cause in
fact" of his contamination that would start the timetable for limitations. Appellants argue that Russell
does not control since there remains a fact issue as to whether Wagenhauser discovered or should
have discovered his injury and its cause in fact before his death thereby permitting him to timely assert
those actions against the defendants before his death. They further argue that Eric Wagenhauser's
status as a minor placed him under a legal disability and the period of that disability is excluded from
limitations under section 16.001 of the Texas Civil Practice and Remedies Code.
It is undisputed that Wagenhauser never filed suit. It is also undisputed that he died on March
30, 1990, almost seven years after his transfusion, and well over two years after being informed of
his HIV infection and discussing the matter with Dr. Rossen. Had Wagenhauser attempted to sue
the underlying defendants immediately prior to his death, these alleged causes of action would have
been barred by limitations. See also Davenport v. Phillip Morris, Inc., 761 S.W.2d 70, 71
(Tex.App.—Houston [14th Dist.] 1988, no writ) (finding wrongful death claims were barred by
statute of limitations because decedent's claim for his o wn injuries was barred at time of his own
death).
In Beeson, the court noted that the Texas Supreme Court has applied the discovery rule to
a limited number of cases in which the plaintiff did not, and could not, know of the injury at the time
it occurred. 835 S.W.2d at 694. The court decided to apply a discovery rule in Beeson because it
found that a long latency period makes AIDS an inherently undiscoverable disease. It was undisputed
in that case that neither the decedent nor his family members knew or could have known of his injury
at the time it occurred (at the time of an earlier blood transfusion), because the test to detect HIV
antibodies did not exist until two years after the blood transfusion, and because the blood at issue
could not have been tested prior to the transfusion for HIV and was never tested subsequently. Id.
at 694. The Dallas court held that the discovery rule tolls the statute of limitations only "until the
time that the plaintiff discovered, or through the exercise of reasonable care and diligence should
discover, the nature of his injury." Id. at 695. (emphasis added). Under the discovery rule, the
statute of limitations was tolled until Tom Beeson first had notice that he might be infected with
HIV—that is when he exhibited symptoms in 1987, approximately a month before tests demonstrated
that he was HIV-positive. Id.
The court's analysis in Beeson indicates that the statute of limitations began to run in the
instant case, at the very latest, in the spring of 1987, when Wagenhauser received the letter from the
V.A. informing him of his possible exposure to the AIDS virus, and when he was tested shortly
thereafter and informed that he was HIV-positive. Furthermore, Wagenhauser discussed his
infection, and its probable cause, with Dr. Rossen on April 7, 1987, nearly three years before
Wagenhauser's death.
III. CONCLUSION
After an examination of the summary judgment evidence and careful consideration of the
appellants' arguments, we find that Wagenhauser should have determined the cause in fact of his
injury when he was apprised of the contaminated blood in 1987. As a result, any claim that existed
for Wagenhauser was clearly time-barred at the time of his death. Because Wagenhauser could not
maintain an action in his own right prior to his death, the appellants' survival action is also barred by
limitations. Technically speaking, their wrongful death claim simply does not exist, and as a result,
the cause of action did not accrue. Therefore, we agree that the evidence does not establish a genuine
issue of fact, and accordingly, the district court's decision is
AFFIRMED.