714 F.2d 192 (1st Cir. 1983), 83-1052, Fidler v. Eastman Kodak Co.

Docket Nº83-1052.
Citation714 F.2d 192
Party NameDeborah FIDLER, Plaintiff, Appellant, v. EASTMAN KODAK COMPANY, Defendant, Appellee.
Case DateAugust 03, 1983
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 192

714 F.2d 192 (1st Cir. 1983)

Deborah FIDLER, Plaintiff, Appellant,

v.

EASTMAN KODAK COMPANY, Defendant, Appellee.

No. 83-1052.

United States Court of Appeals, First Circuit

August 3, 1983

Argued June 7, 1983.

Page 193

Gary Buseck, Boston, Mass., with whom Cynthia J. Cohen, Charles M. Crowley, Jr., and Parker, Coulter, Daley & White, Boston, Mass., were on brief, for plaintiff, appellant.

Susan J. Baronoff, Boston, Mass., with whom Roche, Carens & DeGiacomo, Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN and BREYER, Circuit Judges, and MURRAY, [*] Senior District Judge.

COFFIN, Circuit Judge.

Plaintiff/appellant Deborah Fidler brought this products liability suit against defendant/appellee Eastman Kodak Company on September 23, 1981 in Massachusetts Superior Court. Appellee subsequently removed the action to federal district court and, in March of 1982, moved for summary judgment on three grounds. After a hearing in September of 1982 limited to the issue of whether the suit was barred by the statute of limitations, the district court on December 17, 1982, 555 F.Supp. 87, granted summary judgment for appellee. We affirm.

Because application of Massachusetts' discovery rule requires a careful analysis of the factual record, and because summary judgment is inappropriate if any genuine issue of material fact remains, Fed.R.Civ.P. 56(c), we review the relevant history of this case in some detail. In October of 1973 appellant, complaining of back and leg pain, was treated at a Boston hospital. When bed rest did not help, the treating physician, suspecting a ruptured disc, ordered a myelogram

Page 194

1 to evaluate appellant's back problem. The myelogram was done with a contrast medium known as Pantopaque. The results of the myelogram were within normal limits.

Appellant's pain persisted and after further examination at the first hospital and at a clinic, 2 she was admitted to another hospital for a second, more complete myelogram. 3 The results of the second myelogram were also normal. After the second myelogram, appellant developed a severe headache which lasted several days. She was told by doctors that it was a normal reaction to the myelogram.

In June of 1976 appellant, suffering "crushing" facial and head pains, went to a hospital emergency room where she was seen by a Dr. Butler. Dr. Butler's examination revealed no abnormalities, and his diagnosis was "atypical facial pain", meaning that no cause for the pain had been established.

Appellant continued under Dr. Butler's care and, in September of 1977, Dr. Butler decided to do a cervical myelogram, or clivogram, primarily to look for a tumor or aneurism, but also to look for evidence of multiple sclerosis or of a reaction to the Pantopaque contrast medium from a previous myelogram. As a result of the clivogram, Dr. Butler concluded that the cause of appellant's pain was not "mechanically definable" and that, among possible causes, the presence of Pantopaque in appellant's brain stem had "dropped down" as a possibility. Despite Dr. Butler's consideration of Pantopaque as a possible cause of appellant's condition, he did not discuss that possibility with appellant at that time.

A CAT scan performed while appellant was still hospitalized after the clivogram showed no abnormalities, but the radiologist made an "[i]ncidental note ... of multiple Pantopague droplets in the subarachnoid space from previous myelogram." This was not called to appellant's attention. As after the second myelogram, appellant suffered severe headache pains following this third myelogram.

An EEG performed in July of 1978, after appellant had had a seizure at work, showed abnormalities consistent with seizure activity. Concerned that appellant might have a brain tumor, Dr. Butler hospitalized her for further testing. A CAT scan performed on September 6, 1978 showed no abnormalities, but again note was made of "a few drops of high density in the basal cisterns due to previous injected Pantopaque". The results of a cerebral arteriogram performed on September 7, 1978 were also normal.

On the evening of September 7, Dr. Butler visited appellant's hospital room. He told her that they had found no tumor, but suggested that her problems were caused by Pantopaque remaining in her spinal column from myelograms. In a deposition preparatory to trial of this case, appellant gave the following testimony describing her conversation with Dr. Butler that evening:

"Dr. Butler told me, the night after--the night of my arteriogram, he came to my bedside and he told me that they were looking for a brain tumor. And he said, 'We didn't find any tumor, but what we found,' he said, 'is we found some Pantopaque that was left in your spine from a previous Myelogram.' And he said it was wedged in Meckel's cavity, and it was more or less surrounded by scar tissue, and causing inflammation ....

"He said that they were looking for a tumor in a certain portion, and he, you know, had told me before where it was,

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down in here. And he said, 'We didn't find--there were no tumors,' he said, 'but what we think was causing all your problems was,' he said, 'we found like a glob of Pantopaque,' he said, 'that would be left over from one of your myelograms. And it has wedged itself into someplace called Meckel's cavity, and it is close to some nerve endings, and it is causing some scar tissue.' "

A few weeks later, when appellant visited Dr. Butler at his office, he "again explained about the Pantopaque being embedded in Mecal's Cave, and ... said that it was probably surrounded by scar tissue which if disturbed would cause more scar tissue" and told appellant that she "would just have to learn to live with it".

In January of 1979 appellant consulted with an attorney, who advised her that she had no case against the doctors or the hospitals who had performed the myelograms. Shortly thereafter, she visited Dr. Butler and asked him if she had a claim against anyone. He replied no, that "there is always some [Pantopaque] left after a myelogram and there are thousands of people walking around with it in their bodies with no complaints". He also indicated that he was "not sure" that appellant's head pain was caused by Pantopaque.

During 1979 appellant consulted with three other attorneys, at least one of whom met with Dr. Butler. Each of them indicated that she had no case unless she could find a doctor who would say that her head pain was due to the Pantopaque. In November of 1979 Dr. Butler referred appellant to a Dr. Wepsic at Massachusetts General Hospital "for evaluation to see if he [felt] that the Pantopaque ... [was] responsible for the facial pains that she [was] having and as to whether a nerve block or surgical procedure would be of any advantage". Dr. Wepsic told appellant that there was a possibility that the Pantopaque was causing her head pain and problems but that surgery was not recommended. Dr. Wepsic reported to Dr. Butler that he was "at a loss to explain the cause of [appellant's] pain and would be reluctant to ascribe all of her complaints to Pantopaque in the intercranial cavity".

Appellant's pain abated during most of 1980, while she was pregnant, but returned thereafter, and in October of 1980 she began to have severe pains in her eyes. In December of 1980 she retained her present attorney. That attorney contacted Dr. Butler, who responded with a...

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99 practice notes
  • 204 F.Supp.2d 216 (D.Mass. 2002), Civ. A. 99-40065, Cutting v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • 11 June 2002
    ...by the First Circuit as a case involving "a breakthrough in scientific or medical understanding." Fidler v. Eastman Kodak Co., 714 F.2d 192, 200 (1st Cir. 1983). No such breakthrough was required here for plaintiffs to discover that Gilbert was being investigated for the murder of......
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • 3 January 1986
    ...the injury and its cause--that plaintiff "has been harmed as a result of the defendant's conduct". Fidler v. Eastman Kodak Co., 714 F.2d 192, 198 (1st Cir.1983) (quoting Olsen, 445 N.E.2d at 611); see Franklin, 411 N.E.2d at 463; see also Raymond v. Eli Lilly & Co., 117 N.H. 1......
  • 952 F.Supp. 266 (D.Md. 1997), Civ. 93-3784, Helinski v. Appleton Papers
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court (Maryland)
    • 31 January 1997
    ...period is triggered when a plaintiff is on notice that a substance has likely caused her injury. In Fidler v. Eastman Kodak Co., 714 F.2d 192, 198 (1st Cir.1983), for example, the court noted that "[d]efining how much notice of cause is enough notice is inherently problematic where, as......
  • 29 Mass.App.Ct. 215 (1990), 89-P-565, International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 14 September 1990
    ...& n. 8, 467 N.E.2d 475 (1984); Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 382-383, 487 N.E.2d 533 (1986); Fidler v. Eastman Kodak Co., 714 F.2d 192, 198-199 (1st Cir.1983). [2] The record does not supply a more complete name for the tertiary insurer. [3] More restricted coverage than wa......
  • Request a trial to view additional results
99 cases
  • 204 F.Supp.2d 216 (D.Mass. 2002), Civ. A. 99-40065, Cutting v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • 11 June 2002
    ...by the First Circuit as a case involving "a breakthrough in scientific or medical understanding." Fidler v. Eastman Kodak Co., 714 F.2d 192, 200 (1st Cir. 1983). No such breakthrough was required here for plaintiffs to discover that Gilbert was being investigated for the murder of......
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • 3 January 1986
    ...the injury and its cause--that plaintiff "has been harmed as a result of the defendant's conduct". Fidler v. Eastman Kodak Co., 714 F.2d 192, 198 (1st Cir.1983) (quoting Olsen, 445 N.E.2d at 611); see Franklin, 411 N.E.2d at 463; see also Raymond v. Eli Lilly & Co., 117 N.H. 1......
  • 952 F.Supp. 266 (D.Md. 1997), Civ. 93-3784, Helinski v. Appleton Papers
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court (Maryland)
    • 31 January 1997
    ...period is triggered when a plaintiff is on notice that a substance has likely caused her injury. In Fidler v. Eastman Kodak Co., 714 F.2d 192, 198 (1st Cir.1983), for example, the court noted that "[d]efining how much notice of cause is enough notice is inherently problematic where, as......
  • 29 Mass.App.Ct. 215 (1990), 89-P-565, International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 14 September 1990
    ...& n. 8, 467 N.E.2d 475 (1984); Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 382-383, 487 N.E.2d 533 (1986); Fidler v. Eastman Kodak Co., 714 F.2d 192, 198-199 (1st Cir.1983). [2] The record does not supply a more complete name for the tertiary insurer. [3] More restricted coverage than wa......
  • Request a trial to view additional results