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Bailey v. Khoury1/20/2005
nation of exceptions of prescription. For example, the above principles must be applied in light of the precept that the burden of proof on the prescription issue rests with the party pleading prescription. See Bouterie, 616 So. 2d at 660. Further, prescription statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished. it. Id. Determination of when prescription commences under the discovery rule is a fact-intensive inquiry. Stansbury v. Accardo, 2003-2691, p. 3 (La. App. 1 Cir. 10/29/04), ___ So. 2d ___, citing Campo.
Concerning the first factor set forth above (the date plaintiff gained knowledge she was the victim of a tort), Ms. Bailey clearly testified in her deposition that she had actual knowledge that her unborn child had developed birth defects at least by October 28, 1997, because Dr. Grundmeyer had told her that the ultrasound revealed those defects. Further, when asked how she felt when she was told about the birth defects, Ms. Bailey stated that she was "messed up" and upset. The question is whether this testimony presented by the defendants is sufficient to carry their burden of proving that Ms. Bailey's individual claim filed more than a year after she gained that knowledge is barred by prescription. The "ultimate question" that we must answer is whether, possessing this knowledge, Ms. Bailey's delay in filing suit seeking recovery of her individual damages, including pain and suffering, was reasonable, "in light of education, intelligence, the severity of the symptoms, and the nature of defendant's conduct." Campo, 01-2707 at 12, 828 So. 2d at 511.
This issue is not as straightforward as it might seem. Primarily, we are troubled by the fact that Ms. Bailey's testimony is imprecise concerning the extent of information she was given on October 28, 1997. Ms. Bailey's deposition reveals that she was told that her unborn child had developed "birth defects," but that undisputable fact does not necessarily mean that she immediately obtained "actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort," as required for application of the discovery rule. Id. at 11, 828 So. 2d at 510. The phrase "birth defect" can be widely applied to any number of perceived imperfections in a newborn child, and nothing in Ms. Bailey's testimony indicates that she was told that her unborn child had suffered a "neural tube defect," that the child had spinal bifida, or that the child would be paralyzed from the waist down and suffer loss of motor control and other symptoms. Ms. Bailey's deposition is silent concerning the details of the knowledge she received. We find that Ms. Bailey's deposition testimony is insufficient to carry the defendants' burden of proving that, on November 28, 1997, Ms. Bailey gained actual or constructive knowledge of facts indicating to a reasonable person that he or she had been the victim of a tort. The problem is that nothing in Ms. Bailey's deposition indicates that, as a reasonable person, Ms. Bailey should have known on November 28, 1997, that she personally was the victim of any tortious action on the part of the defendants.
In order to carry their burden of proving that Ms. Bailey had "actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort," defendants cannot focus exclusively on the first factor set forth above. Because the word "tort" includes fault, damages, and causation, defendants had the burden of showing the second factor--that their alleged tortious acts actually produced damage on October 28, 1997, when Ms. Bailey gained knowledge that her unborn child had developed birth defects. Th
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