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

• Decision Date: 29 January 1985
• Docket Number: No. 83-3767,83-3767
• Citation: 752 F.2d 1365
• Parties: Jack Ray ALLEN and Sandy Lynn Allen, husband and wife, Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

752 F.2d 1365

Jack Ray ALLEN and Sandy Lynn Allen, husband and wife Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Defendant-Appellee.

No. 83-3767.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1984.

Decided Jan. 29, 1985.

Terry Lee Johnson, Twin Falls, Idaho, for plaintiffs-appellants.

Richard E. Hall, Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for defendant-appellee.

Appeal from the United States District Court for the District of Idaho (Boise).

Before SCHROEDER, FARRIS, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

The district court granted summary judgment for defendant, A.H. Robins Company, Inc., the manufacturer of the Dalkon Shield intrauterine device, in a products liability action involving allegations of negligence, fraud, breach of contract, and breach of warranty. Because we disagree with the district court's conclusion that the Idaho statute of limitations bars this diversity action, we reverse and remand to the district court.

FACTS

On October 17, 1972, Sandy Allen had a Dalkon Shield, an intrauterine device After eighteen months of using the Dalkon Shield, Allen began to experience increased cramping, discharge, spotting, tenderness of the uterus, and pressure on the bladder. She visited Dr. Green because of these complaints in March 1974. When the severity of her symptoms increased, Allen saw Dr. Green again, in July 1975. At that time, Dr. Green prescribed antibiotics for the urinary tract and external vaginal infections that he diagnosed. Allen raised the possibility of changing IUDs because she had read in the manufacturer's pamphlet that the device should be changed within a three-year period. However, the doctor told her a change was not necessary. In December 1975, Dr. Green prescribed an ointment for a yeast infection Allen had and again reassured her about her IUD. She continued to take the prescribed antibiotics for what she had been told was a urinary tract infection.

("IUD") manufactured by the appellee A.H. Robins Company, inserted by Dr. Steven C. Green. At the time of insertion, the doctor gave her a pamphlet prepared by Robins. This pamphlet contained instructions on how to check the IUD and listed such possible side effects of the device as cramping.

Allen's health problems continued and she saw Dr. Randall J. Slickers on May 25, 1977; she complained of headaches, nausea, bleeding, and pain in the pelvic area. Dr. Slickers found pelvic tenderness and accompanying infection. As part of the treatment of the infection, Dr. Slickers removed the Dalkon Shield. In her deposition, Allen testified that Dr. Slickers did not tell her that the Dalkon Shield itself was the cause of her infection but said only that it should be removed because of the infection. Dr. Slickers said in his deposition that he could not recall whether he had told Allen that her problems might be caused by the IUD but added that it was "more than likely." According to Allen, Dr. Slickers mentioned to her that the Dalkon Shield had been removed from the market by the A.H. Robins Company, but when she inquired as to why this had been done, Dr. Slickers changed the subject.

During this time, according to Allen, she did not realize that the Dalkon Shield might have caused her symptoms. Because she did not attribute her problems to the IUD, in February of 1978 she had another intrauterine device, a CU-7, which was manufactured by G.D. Searle and Company, inserted. She experienced the same symptoms that she had experienced with the Dalkon Shield. The CU-7 was removed by Dr. Slickers more than two years later, on November 20, 1980. After its removal her health problems persisted and in July 1981 she underwent a hysterectomy.

Appellants allege that A.H. Robins Company falsely represented facts about the Dalkon Shield both to the medical profession and the public and knowingly concealed various material facts about the safety of the product. The appellants further allege that Robins intended that the appellants rely on its conduct and that they did so. Finally, the appellants claim that they were in no position to discover the truth about the Dalkon Shield.

In support of their claims that Robins was aware of the dangers associated with use of the Dalkon Shield, the Allens submitted several documents, including both internal memoranda of the A.H. Robins Company and letters and publications intended for physicians and wholesale distributors of the product. Among the evidence submitted was a letter dated June 23, 1972, written by Dr. Thad J. Earl who was then Robins' leading consultant on the Dalkon Shield. Dr. Earl expressed his concern, based on studies he had reviewed, that leaving a Dalkon Shield in place after pregnancy could result in septic abortion. This information was not released to either the medical profession or to users of the Dalkon Shield until 1974. The Allens also submitted to the district court a memorandum dated June 11, 1970, written by Dr. Fred A. Clark, who was at that time Robins' medical director. This memorandum includes information indicating that the A.H. Robins Company initially misrepresented the pregnancy rate of the Dalkon Shield as 1.1% The A.H. Robins Company finally removed the Dalkon Shield from the market in June 1974. However, in its June 28 press release Robins stressed that there was "no reason to believe at this time that physicians should remove the Dalkon Shields from patients now wearing [them]." One year later, on August 8, 1975, in another press release, Robins again reassured those using its device that it was safe to continue doing so. The release said, "A.H. Robins remains firm in its belief that the Dalkon Shield, when properly used, is a safe and effective IUD." (Emphasis added). Not until more than five years later on September 25, 1980, did Robins advise doctors to remove the Dalkon Shields from their patients. Its "Dear Doctor" letters, sent on that date to over 200,000 doctors, appear to constitute the first public acknowledgment by Robins of the causal relationship between the Dalkon Shield and the physical injuries incurred by its users.

when it was aware that it was actually closer to 2.3%. Most important, the Allens submitted evidence that Robins had significant information in its possession regarding the "wick effect" created by the Dalkon Shield--an effect that permits bacteria to enter sterile places, and that may lead to pelvic inflammatory disease and sterility.

Sandy Allen testified that she was unaware of any causal relationship between the Dalkon Shield and her infections until she watched the April 12, 1981 episode of 60 Minutes, which discussed the Dalkon Shield and noted that it had been removed from the market because it caused pelvic inflammatory disease. The program described symptoms experienced by users of the Dalkon Shield; they were remarkably similar to those that she had suffered.

On September 4, 1981, five months after she viewed the television program and less than one year after Robins' "Dear Doctor" letters, Allen and her husband filed suit in state court against A.H. Robins Company as manufacturer of the Dalkon Shield and G.D. Searle and Company as manufacturer of the CU-7. ¹ The case was removed on diversity grounds from state to federal court by Searle. Robins then moved for summary judgment based upon the Idaho statute of limitations. The district court granted the motion and the plaintiffs appealed the district court's order of summary judgment.

STANDARD OF REVIEW

In reviewing a district court's order granting summary judgment we must view the evidence and inferences therefrom in the light most favorable to the party against whom the district court ruled. Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328-29 (9th Cir.1983); see Fed.R.Civ.P. 56(c). We review the district court's decision de novo and determine whether, on the basis of the pleadings, affidavits, depositions, and other evidence available at the time the motion was made, there is any genuine issue of material fact in dispute and whether the moving party is entitled to judgment as a matter of law. M/V American Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1487 (9th Cir.1983); Turner v. Prod, 707 F.2d 1109, 1114 (9th Cir.1983), cert. granted sub nom. Heckler v. Turner, --- U.S. ----, 104 S.Ct. 1412, 79 L.Ed.2d 739 (1984). Moreover, in In re McLinn, 744 F.2d 677, 680 (9th Cir.1984) (en banc), we recently held that a district court's construction of state law in a diversity case, or any other case involving state law, will be reviewed de novo. Here the district court applied Idaho law.

THE DISCOVERY EXCEPTION

Section 6-1303 of the Idaho Code requires that an action against a product seller be brought within two years "from the time the cause of action accrued as defined in [Idaho Code] section 5-219." Idaho Code Sec. 6-1303(3) (Supp.1984). Section 5-219 provides that in the general case "the cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of." Idaho Code Sec. 5-219(4) (1979). In the present case, the Dalkon Shield was inserted in Sandy Allen in October 1972 and then, after a long series of infections and side effects, it was removed in May 1977, more than four years prior to the filing of this action. The district court agreed with Robins that the Allens' claims filed in September 1981 were barred by the Idaho statute of limitations.

According to the district court, the statute of limitations, Idaho Code Secs. 5-219, 6-1303 (1979 & Supp.1984), ran at the latest on May 25, 1979, two years from the time when Sandy Allen had her Dalkon Shield removed. The Allens claim, however, that their cause of action falls within the "discovery exception" set forth in Idaho Code Sec. 5-219(4). That section extends the statute of limitations in certain cases to one year from the time when...