Theriault v. A.H. Robins Co., Inc.

• Decision Date: 05 April 1985
• Docket Number: No. 15272,15272
• Citation: 108 Idaho 303,698 P.2d 365
• Parties: , 53 USLW 2530 Annette Yvonne THERIAULT, Plaintiff-Appellant, v. A.H. ROBINS COMPANY, INCORPORATED, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 365

698 P.2d 365

108 Idaho 303, 53 USLW 2530

Annette Yvonne THERIAULT, Plaintiff-Appellant, v. A.H. ROBINS COMPANY, INCORPORATED, Defendant-Respondent.

No. 15272.

Supreme Court of Idaho.

April 5, 1985.

E. Lee Schlender, Ketchum, for plaintiff-appellant.

Richard E. Hall, and Raymond D. Powers, of Moffatt, Thomas, Barrett & Blanton, Boise, for defendant-respondent.

DONALDSON, Chief Justice.

Appellant, Annette Theriault, initiated this action seeking damages for personal injuries she allegedly received due to her use of an intrauterine device, commonly known as the Dalkon Shield, manufactured and distributed by respondent, A.H. Robins Company. Theriault had a Dalkon Shield inserted on March 11, 1974 at the Family Planning Clinic in Boise. Approximately seven months later, she signed a form, given to her by the Clinic stating that she had been advised of the possible hazards associated with the use of the Dalkon Shield and that she elected not to have it removed. ¹ Barbara Ann Plain, a nurse practitioner at the clinic during the period Theriault was a patient there, testified in her deposition as to the reason for the consent form:

"In about the summer of 1974 it came to everyone's attention that we were having some problems--women were dying in relationship when they had Dalkon Shields with infectious process.

"And then it was about September--and I'm not sure of the dates, but it was about September that the Federal Drug Administration recommended that these devices could be left in place if the patient was not having any difficulties, that she should be informed that if she had any signs of infection or if she had really specifically a fever or pain or bleeding or if she became pregnant, that these should be removed.

"And all our patients that had a Dalkon Shield were called in and we gave them all this information. And then they could decide whether or not they wanted to keep the IUD or whether they could have it removed.

"And that's what this document is."

She further testified that patients with Dalkon Shields were informed of the risk of infection and bleeding and of complications that could result should they become pregnant while using the Dalkon Shield. As to infection, she stated that patients were told that serious complications could result if they got an infection while using the Dalkon Shields.

Theriault stated in her deposition that she did remember signing the document. She further stated that she did not recall ever receiving any information about possible risks or complications associated with use of the Dalkon Shield.

On June 6, 1977, Theriault was diagnosed as suffering from Pelvic Inflammatory Disease. She was advised that, due to the infection, the Dalkon Shield should be removed. It was not removed, however, and in July 1978, she again experienced pelvic problems. The Dalkon Shield was removed on July 31, 1978.

On March 24, 1982, Theriault filed an action for damages against A.H. Robins. Robins asserted that the action was barred by the statute of limitations and moved for summary judgment. The trial judge determined that I.C. § 5-219(4) applied and granted Robins' motion for summary judgment holding that Theriault's action was barred by the two-year statute of limitations contained therein. Theriault appeals from that decision. She asserts that summary judgment was inappropriate as there existed a genuine issue of material fact as to whether Robins was guilty of fraudulent concealment. In addition, she asks this Court to adopt the discovery rule for determining the date of accrual in personal injury and professional malpractice actions.

I.C. § 5-219(4) sets forth a general two-year statute of limitations for personal injury actions. With the exception of cases involving a foreign object unintentionally left in the body or fraudulent concealment, the statute begins running at the "time of the occurrence, act or omission complained of...." ² In the present case, the trial court concluded that the date on which the Dalkon Shield was removed, July 31, 1978, was the last possible date it could have caused injury to Theriault, and, thus, that it was also the last possible date on which the two-year statute of limitations could have begun running. Theriault asserts that her complaint comes within the statutory exception for fraudulent concealment and, therefore, that the statute did not begin to run until she knew or was charged with knowledge of her potential cause of action. She contends that she was not aware that her injuries were directly attributable to the Dalkon Shield until she watched a "60-Minutes" program linking Pelvic Inflammatory Disease to the Dalkon Shield in the spring of 1981. She asserts that the statute of limitations did not begin running until that point, and, thus, that her action was commenced within the statutory period.

This case is before us following a dismissal pursuant to Robins' motion for summary judgment under the applicable statute of limitations. In Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972), this Court set forth the test for measuring the sufficiency of materials to overcome a motion for summary judgment based on the statute of limitations.

"Summary judgment is proper if the evidence before the court on the motion would warrant a directed verdict if the case were to go to trial. When the moving party presents materials which would entitle him to a directed verdict if presented at trial, the responding party may not hold back his evidence; he must present sufficient materials to establish a triable issue. Those materials must set forth the facts with particularity; for if general averments were sufficient the summary judgment procedure would lose its utility. The requirement of specificity is underscored in cases where the moving defendant has established, prima facie, a defense grounded on the statute of limitations." Id. at 598, 495 P.2d at 4 (emphasis added). See also, Cook v. Soltman, 96 Idaho 187, 189, 525 P.2d 969, 971 (1974).

Theriault alleges, in her amended complaint, that "Robins, at all times until date of this Amended Complaint, for purposes of escaping responsibility for negligence, gross negligence and damages has fraudulently and knowingly concealed information regarding the Dalkon Shield Device from the plaintiff and the general public." She contends that the allegations of fraudulent concealment in her complaint, unsupported by any affidavits or other evidentiary materials, are sufficient to raise a triable issue as to whether Robins was guilty of fraudulent concealment. However, as we have previously stated a party defending a motion for summary judgment may not rest on its pleadings, but must offer affidavits or other evidentiary materials which demonstrate that an issue of fact remains. First Piedmont Bank and Trust Company v. Doyle, 97 Idaho 700, 551 P.2d 1336 (1976). I.R.C.P. 56(e) states "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

As we noted above, this requirement of specificity is underscored where, as here, the other party has established a prima facie defense on the statute of limitations. In addition, I.R.C.P. 9(b) requires that when a party is alleging fraud, the circumstances constituting the fraud must be stated with particularity.

Theriault has failed to produce any evidence of conduct by Robins designed to conceal facts in an effort to hinder her in prosecuting her claim; nor is there anything in the record to show that Robins concealed material facts or made false representations which lulled Theriault into inaction during the period in which she could have brought this lawsuit. We conclude that the evidence of fraudulent concealment, even when viewed in the light most favorable to appellant, was insufficient to establish a triable issue.

Theriault also asserts that Robins should be equitably estopped from even raising the statute of limitations as a defense. The doctrine of equitable estoppel prevents a party from pleading and utilizing the statute of limitations as a bar, even though it has run. This Court has recognized that a party may be estopped from raising the statute of limitations as a defense. Twin Falls Clinic and Hospital Bldg. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982). The elements of equitable estoppel as set out in Hamill, supra, are:

"(1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth, (2) the party asserting estoppel did not know or could not discover the truth, (3) the false representation or concealment was made with the intent that it be relied upon and (4) the person to whom the representation was made or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice." Id. at 22, 644 P.2d at 344.

A defendant will be estopped from raising the statute of limitations as a bar to plaintiff's action where defendant's representations or conduct dissuaded the plaintiff from prosecuting his or her cause of action during the statutory period. Holmes v. Iwasa, 104 Idaho 179, 183, 657 P.2d 476, 480 (1983). See also, Twin Falls Hospital Bldg. v. Hamill, supra.

As we stated above, there is no evidence in the record to show that Robins concealed any material facts or made any false representations which lulled Theriault into inaction during the statutory period. Furthermore, there is no evidence before us to indicate that Theriault relied on any representations by Robins in waiting to file her action. As the record fails to disclose any evidence which would raise a material issue as to whether Robins should...