Sidney-Vinstein v. A.H. Robins Co.
| Decision Date | 28 January 1983 |
| Docket Number | SIDNEY-VINSTEI,No. 81-4118,P,81-4118 |
| Parties | Gaillaintiff-Appellant-Cross Appellee v. A.H. ROBINS COMPANY, Hugh J. Davis, Irwin S. Lerner, Defendants-Appellees and Pee Wee Molding Corporation, Defendant-Appellee-Cross Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Steven J. Brewer, Conklin, Davids & Friedman, San Francisco, Cal., for plaintiff-appellant-cross appellee.
Thomas W. Kemp, Barbara L. Gately, Washburn & Kemp, San Francisco, Cal., argued, Kevin Dunne, Sedgwick, Detert, Moran & Arnold, San Francisco, Cal., on brief, for defendants-appellees.
On Appeal from the United States District Court for the Northern District of California.
Before WISDOM * and MERRILL, Senior Circuit Judges, and CHOY, Circuit Judge.
This is a diversity case. It involves negligence and products liability, and other claims arising out of injuries the plaintiff, Gail Sidney-Vinstein, suffered in 1973 through the use of the Dalkon Shield, an intrauterine contraceptive device (I.U.D.). She filed her complaint in November 1979, and the district court granted summary judgment for the defendants on December 10, 1980, relying on California's one-year statute of limitations for tort actions, Cal.Civ.Proc.Code Sec. 340(3).
This appeal is from the striking of a motion for reconsideration of the order granting the defendants' motion for summary judgment and the order granting the motion for summary judgment in favor of the defendants, Hugh D. Davis, Irwin Lerner, A.H. Robins Co. and Pee Wee Molding Corp., inventors and manufacturers of the Dalkon Shield. We hold that the plaintiff's motion for reconsideration was proper and that the district court did not commit reversible error by striking that motion or in granting the defendant's motion for summary judgment. Accordingly, we affirm.
In July 1972, the plaintiff, Gail Sidney-Vinstein, used the Dalkon Shield for contraceptive purposes. In February 1973, the plaintiff learned that she had become pregnant while the I.U.D. was in place. On the advice of her physician that a pregnancy would be very dangerous, the plaintiff underwent a therapeutic abortion in March 1973. Shortly after the abortion, the plaintiff began suffering cramps, fever, and other complications. Examination revealed that the plaintiff's uterus was severely infected, and on the advice of physicians, she underwent a complete abdominal hysterectomy. The surgeon discovered the Dalkon Shield imbedded in her uterus.
Immediately after the hysterectomy, the plaintiff's physician informed her that the Dalkon Shield had perforated her uterus. The plaintiff testified at her deposition that she understood immediately after the hysterectomy that the Dalkon Shield had caused the infection, that it had not done what it was designed to do, and that intrauterine devices are not supposed to cause perforations:
Q. ... [Y]our understanding was that the I.U.D. had perforated the uterus?
A. (Nodding affirmatively).
Q. And that that is what had caused the infection, is that right?
A. Yes.
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Q. But you knew immediately after the therapeutic abortion that the I.U.D. had still been inside you because [your physician] had told you so?
A. At that point I knew it was there.
Q. That's the point I'm talking about, immediately after your hysterectomy.
A. Okay.
Q. You knew that the I.U.D. hadn't done what it was designed to do and that is preventing pregnancy, right?
A. Right.
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Q. You knew from what [your physician] told you that the I.U.D. had perforated your uterus, right?
A. Yes.
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Q. And you knew that perforating uteruses was not something that I.U.D.'s were supposed to do, right?
A. Yeah.
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Q. Since your conversation with [your physician] while you were hospitalized for your hysterectomy, have you learned anything further about what caused your infection?
A. No.
The plaintiff has not suffered any related illnesses since the time of her hysterectomy.
In May 1974, the defendants warned physicians of a possible tie between use of the Dalkon Shield and septic spontaneous abortions. In June 1974, under pressure from the Food and Drug Administration, the defendants suspended marketing of the Dalkon Shield in the United States.
In May or June of 1979, the plaintiff learned that the Dalkon Shield had been removed from the market and that it was the subject of numerous suits against its manufacturer alleging that the device had been faulty and ineffective. In November 1979, the plaintiff filed a complaint against the manufacturer of the Dalkon Shield, A.H. Robins Company, its inventors and promoters, Hugh Davis and Irwin Lerner, and the manufacturer of one of its components, Pee Wee Molding Corp. Her complaint advanced theories of negligence, strict products liability, breach of express warranty, civil conspiracy, and fraud.
In November 1980, the defendants filed a motion for summary judgment averring that California's one-year statute of limitations barred the plaintiff's claim. The district court granted the motion for summary judgment finding no material dispute concerning the applicability of the one-year statute of limitations to any of the claims other than that for negligence. The district court addressed two arguments raised by the plaintiffs to circumvent the one-year limitations period as applied in negligence cases. The first argument was that California's "discovery rule" 1 tolled the statute of limitations until the plaintiff learned that she had a cause of action. According to the plaintiff, she did not discover that she had a cause of action until she was informed in 1979 that the Dalkon Shield was defective. The plaintiff also argued that the defendants had fraudulently withheld information that would have induced her to sue, and that this fraud tolled the statute.
The district court rejected both arguments. Regarding the California discovery rule, the district court reasoned that the statutory period begins to run as soon as the plaintiff has obtained sufficient information to put a reasonable person on notice of the possible origin of the alleged injury. Relying on the plaintiff's deposition testimony, the district court found that she should be charged with having knowledge in 1973 of the causal connection between her injuries and the Dalkon Shield. Citing the absence of any evidence that the defendants had attempted to conceal facts in an effort to hinder plaintiff from prosecuting her claim, the district court also dismissed the plaintiff's second argument for extending the limitations period.
Following summary judgment, the plaintiff timely filed a motion to reconsider the court's order granting summary judgment. Stating that "there is nothing new and different in this matter that was not considered by the court and passed upon previously", the district court denied the plaintiff's motion. Trial Transcript at vol. 4, p. 3. The district court granted the defendant's motion to strike the plaintiff's motion to reconsider apparently on the ground that the motion to reconsider was an improper attempt to augment the record on appeal. 2
The plaintiff bases her appeal on two issues. First, she asserts that the California statute of limitations does not operate as a bar to her claims for relief. Second, the plaintiff argues that the trial court erred in striking her motion to reconsider the court's order granting summary judgment.
Under F.R.Civ.P. 56(e), summary judgment is proper only where there is no genuine issue of any material fact or where, viewing the evidence in a light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law. Dalke v. Upjohn Co., 555 F.2d 245, 248 (9th Cir.1977). Our role in reviewing a grant of summary judgment is to determine whether there is any genuine issue of material fact underlying the adjudication and, if not, whether the substantive law was correctly applied. Yazzie v. Olney, Levy, Kaplan & Tenner, 593 F.2d 100, 102 (9th Cir.1979).
The plaintiff does not dispute the applicability of a one-year statute of limitations to her claims. She contends, however, that under the "discovery rule", the statute begins to run not upon discovery of the physical cause of the injury but upon the discovery that tortious conduct may have been involved. In addition, the plaintiff argues that the defendants' fraudulent concealment of facts from her relating to the effectiveness and safety of the Dalkon Shield prevented her from bringing suit within the one-year period. We find no merit in these contentions.
In Davis v. United States, 642 F.2d 328 (9th Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1273, 71 L.Ed.2d 459 (1982), this Court considered a factual setting analogous to that in the instant case. 3 In Davis, the plaintiff suffered severe side effects following the injection of an allegedly defective vaccine. Although the Davis plaintiff was aware in 1963 that the vaccine was the likely cause of his injury, he brought the suit at issue in 1973 when he learned of some test results that indicated the vaccine was unsafe. The Davis plaintiff argued that the limitations period had not run because he did not learn of the vaccine's possible defects until 1973. He also contended that the defendant had fraudulently concealed the adverse test results. In affirming the trial court's grant of the defendant's motion for summary judgment, this Court stated:
In the absence of fraudulent concealment it is plaintiff's burden, within the statutory period, to determine whether and whom to sue. Once a plaintiff knows that harm has been done to him he must, ... determine within the period of limitations whether to sue or not, which is precisely the decision that other tort plaintiffs must make.... [F]ailure of the [defendant] to ascertain and publish the fact of its...
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