Linda Ballard VS Schering Corporation, ABC Insurance Company and Walter Kirk Mullins, M. D.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2242 LINDA BALLARD VERSUS SCHERING CORPORATION ABC INSURANCE COMPANY AND WALTER KIRK MULLINS M D n n I Judgment Rendered JUN 0 4 2010 fl PEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER CS 0016 SECTION 22 THE HONORABLE DOUG MOREAU JUDGE PRO TEMPORE AND THE HONORABLE TIMOTHY E KELLEY Michael C Palmintier Attorney for Plaintiff Appellant Baton Linda Ballard Rouge Louisiana Janie Languirano Coles Baton Rouge Louisiana Attorney for Defendant Appellee Timothy J McNamara Greg R Mier Lafayette Louisiana Attorneys for DefendantlAppellee Schering Corporation Walter Kirk Mullins M D BEFORE PARRO KUHN AND McDONALD JJ At the time of her deposition Ms Ballard had remarried and was Linda Kelley However for consistency in this opinion we will use her name as found in the record and the briefs which is Linda Ballard z The FIonoraUle Doug Moreau Judge Pro Tempore sustained the exceptions raising the objection of prescription in favor of Dr Mullins and Schering Corparation Thereafter Judge Timothy E Kelley returned to the bench and denied the motion for new trial filed by Ms Ballard sU McDONALD J Linda Ballard was diagnosed with Hepatitis C a viral infection of the liver by her family physician She also complained of blood in her stool and of feeling tired Her family physician referred her to Dr Walter Kirk Mullins a gastroenterologist for further testing Dr Mullins ran tests including a liver biopsy in October of2001 and the diagnosis ofHepatitis C was confirmed Ms Ballard had a pre history existing of depression including a hospitalization in 2000 after her mother died and was taking Zoloft an anti depressant when she saw Dr Mullins Before he began treatment Dr Mullins sent Ms Ballard to a psychiatrist for an evaluation To treat the Hepatitis C Dr Mullins prescribed a combination of Peg Intron Peg Interferon Alfa and Rebetol Ribavirin collectively known as Rebetron 2b both of which are manufactured by Schering Corporation On November 23 2001 Dr Mullins gave Ms Ballard consent forms to sign before beginning her treatment The consent forms warned that Severe depression psychotic episodes and more rarely suicide have been reported by patients taking the medication Ms Ballard signed the forms She completed the treatment around February 8 2002 On February antifreeze 16 2002 Ms Ballard attempted suicide by ingesting She was rushed to a hospital and survived but suffered debilitating kidney disease requiring extensive medical care including dialysis The Rebetron treatment successfully cured Ms Ballard of Hepatitis C More than one year after her suicide attempt on July 23 2003 Ms Ballard sued Dr Mullins and Schering Corporation asserting that her attempted suicide and resulting injuries were caused by the drugs prescribed by Dr Mullins and manufactured by Schering Corporation Ms Ballard asserted she should never have been given these medications due to her history of depression 2 Dr Mullins and Schering Corporation filed peremptory exceptions raising the objection of prescription The district court sustained the exceptions raising the objection of prescription dismissing Ms Ballard case Ms Ballard filed a s motion for new trial which was denied Ms Ballard appeals those judgments The district court found that Dr Mullins and Schering Corporation carried their burden of proof demonstrating that Ms Ballard either knew or reasonably should have known no later than February 16 2002 of all relevant circumstances necessary to excite her curiosity regarding any legal claims she may have had against Dr Mullins and Schering Corparation that suit was not filed until July 23 2003 rather than within the prescriptive period of one year under La R 9 S 5628 as to Dr Mullins and La C art 3492 as to Schering Corporation and that the evidence showed that the prescriptive period was not suspended interrupted or extended Thus the case was prescribed After examining the record we cannot say the district court was clearly wrong in sustaining the exceptions raising the objection of prescription or abused its discretion in denying the motion for new trial Thus the district court judgments granting the exceptions raising the objection of prescription and denying the motion for new trial are affirmed in accordance with Uniform Rules of Louisiana Courts of Appeal Rule 2 24 6 7 and 8 Costs are 2A 16 assessed against Ms Ballard AFFIRMED 3 Schering Corporation also filed a peremptory exception raising the objection of no cause of action which was found moot due to the district court ruling on the exception of prescription s and a motion for summary judgment which was deferred by the district court as not properly presented 3
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