Allen v. Ortho Pharmaceutical Corp.

• Decision Date: 26 June 1974
• Docket Number: Civ. A. No. 72-H-844.
• Citation: 387 F. Supp. 364
• Parties: Dorothy Mae ALLEN, Plaintiff, v. ORTHO PHARMACEUTICAL CORP., Defendant.
• Court: U.S. District Court — Southern District of Texas

387 F. Supp. 364

Dorothy Mae ALLEN, Plaintiff, v. ORTHO PHARMACEUTICAL CORP., Defendant.

Civ. A. No. 72-H-844.

United States District Court, S. D. Texas, Houston Division.

June 26, 1974.

Larry Watts, Houston, Tex., for plaintiff.

Jerry V. Walker, Fulbright & Jaworski, Houston, Tex., for defendant.

MEMORANDUM AND OPINION

CARL O. BUE, Jr., District Judge.

In this action, plaintiff is seeking to recover damages for personal injuries resulting from a blood clot that allegedly developed as a result of the plaintiff's use of the defendant's oral contraceptive. Pursuant to the orders of her physician, plaintiff began taking the contraceptive on March 16, 1970. On March 24, 1970, she was hospitalized after becoming violently ill. This suit was filed on June 28, 1972. Plaintiff invokes the diversity jurisdiction of this Court under the provisions of 28 U.S.C. § 1332. The action is presently before the Court for consideration of the defendant's motion for summary judgment pursuant to Rules 12(c) and 56, Fed.R.Civ.P.

Defendant asserts that the plaintiff is barred from bringing suit by the two year statute of limitations set forth in article 5526, Vernon's Ann.Tex.Rev.Civ. Stat. In support of her position that the action is timely filed, plaintiff asserts that the limitation period began to run not from the date that the plaintiff became ill, but from an undisclosed date in July, 1970, when plaintiff was informed by her physician that the cause of her illness was in all likelihood the defendant's contraceptive. Alternatively, plaintiff contends that this action is not only brought under a theory of tort law, but is also an action for breach of warranty under contract law. Thus, plaintiff contends that the applicable limitation period is four years pursuant to § 2.725, Tex.Bus. & Comm.Code, V.T. C.A.

Commencement of a Cause of Action Under Article 5526

A cause of action is deemed to accrue under article 5526 in an action for personal injuries from the date of the act causing the injury, if such act was an unlawful one, or from the date of the injury, if the injury-causing act was legal. E. g., Axcell v. Phillips, 473 S.W.2d 554, 559 (Tex.Civ.App. — Houston 1st 1971, writ ref. n. r. e.). Generally, liability arises when the act or injury occurs, and the plaintiff's knowledge of the full extent of his injuries is irrelevant. See Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 98 (Tex.Civ.App. — Amarillo 1971, writ ref. n. r. e.); Robertson v. Texas & N. O. R. Co., 122 S.W.2d 1098, 1100 (Tex.Civ. App. — San Antonio 1938, writ ref.); Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888).

In limited instances, Texas courts have applied a "discovery" rule. In cases involving recovery of damages for products liability, Texas courts have held that the cause of action accrues, not from the date of purchase of the defective product, but from the date that the buyer discovers or should have discovered the injury. Puretex Lemon Juice v. S. Riekes & Sons of Dallas, Inc., 351 S.W.2d 119 (Tex.Civ.App. — San Antonio 1961, writ ref. n. r. e.).

When fraudulent concealment is found, a cause of action is considered to arise at the time that the plaintiff discovered or could have discovered the basis of his cause of action upon exercising ordinary diligence. Nichols v. Smith, 489 S.W.2d 719, 723 (Tex.Civ. App. — Fort Worth 1973). It must be shown, however, that the defendant who concealed the true facts had actual knowledge of them. Nichols v. Smith, supra. The effect of the rule is to estop that party from relying upon limitations as a defense until the time that concealment was or could have been discovered by the plaintiff. Nichols v. Smith, supra; Thompson v. Barnard, Tex.Civ.App., 142 S.W.2d 238, aff'd, 138 Tex. 277, 158 S.W. 2d 486 (1942).

Additionally, in some cases involving medical malpractice in which there has been no fraudulent concealment, Texas courts have recognized limited exceptions and applied a "discovery rule", holding that the cause of action accrues not from the date of the negligent act, but from the date that the plaintiff knew or should have known of his cause of action. See Hays v. Hall, 488 S.W.2d 412 (Tex.1972); Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). However, application of the "discovery rule" in medical malpractice cases has been specifically limited to actions involving foreign objects left in the patient's body pursuant to surgery and to actions involving operations to perform a vasectomy. See Hays v. Hall, supra 488 S.W.2d at 414; Coffman v. Hedrick, 437 S.W.2d 60, 62 (Tex.Civ.App. — Houston 1st Dist. 1968, writ ref. n. r. e.); Gaddis v. Smith, supra 417 S.W.2d at 581.

By applying these rules to the case before the Court, it is obvious that this cause of action accrued no later than March 24, 1970, the date of the injury that is the basis for this particular action. Although plaintiff may not have had actual knowledge of the cause of her illness at that time, her symptoms were sufficient to permit her to discover the source if she had acted with reasonable diligence. There is no allegation contained in the pleadings nor any evidence that the plaintiff's doctor or the defendant manufacturer is guilty of fraudulent concealment. Plaintiff has not alleged, nor is it apparent, that her physician knew of the cause of the blood clot and withheld that knowledge. Furthermore, the physician is not a defendant in this action. Because the defendant manufacturer is not charged with any fraudulent acts, it should not be penalized by any such extension of the statute of limitations.

Although it is apparent that Texas courts have begun to relax the strict rule as to the time of accrual of actions in certain types of malpractice cases, this Court does not believe that this particular suit fits such a category and warrants such treatment. Plaintiff's cause of action is premised on products liability, not malpractice. Furthermore, plaintiff was aware immediately that she had been injured, even though she was unaware of the exact nature or extent of that injury. The facts of her illness were sufficient to put her on notice that she had a cause of action. The injury involved was not a type that required the passage of time for an affected party to become aware that an injury had occurred. Thus, even if the "discovery rule", which has been so specifically limited by the State Courts, were applicable to an action involving an injury of the type suffered by Mrs. Allen, the facts of the plaintiff's hospitalization were such that she should have known of the cause of action, thereby activating the running of the statute of limitations on March 24, 1970.

Because this cause was filed on June 28, 1972, more than two years after plaintiff should have discovered her cause of action on March 24, 1970, it is the conclusion of this Court that the action is barred by article 5526, Tex.Rev. Civ.Stat.Ann.

The Application of Section 2.725, Texas Business and Commerce Code, to Actions for Personal Injury

Plaintiff asserts that her suit is based upon an alternate theory of recovery for breach of contract as well as upon a theory of negligence or strict liability in tort. In this regard, she urges a cause of action under § 2.715, Tex.Bus. & Comm.Code, which provides that

Consequential damages resulting from the seller's breach include . . .

(2) injury to person or property proximately resulting from any breach of warranty

The applicable statute of limitations, she claims, would be four years under § 2.725, Tex.Bus. & Comm.Code.

A decision as to whether this action is cognizable under section 2.715 of the Texas Business and Commerce Code is unnecessary at this juncture. Assuming the answer to that question in favor of the plaintiff, it is readily apparent that the defendant is entitled to summary judgment. From a consideration of the stipulated facts filed in this matter, it is clear that no sale existed to make Article 2 of the Texas Business and Commerce Code applicable in this instance. Furthermore, even if the plaintiff did acquire the allegedly defective product by virtue of a transaction that can be construed to be a sale, there is no privity between the plaintiff and the defendant as required in any contract action in the State of Texas.

The Necessity of a Sale in an Action Pursuant to Article 2

It is axiomatic that, in order for Article 2 of the Texas Business and Commerce Code to apply, it is necessary that a sale form the basis for the cause of action. Section 2.106 provides that:

A "sale" consists in the passing of title from the seller to the buyer for a price.

In this regard, the Code's definition of a sale is not unlike that of prior Texas law. See First Nat'l Bank v. Joseph T. Ryerson & Son, Inc., 487 S.W.2d 377, 381 (Tex.Civ.App.—Texarkana, 1972, writ ref. n. r. e.).

Of prime concern in the instant case is the question of whether or not there was a price paid for the allegedly defective product. The Code provides, in section 2.304, that "the price can be made payable in money or otherwise". According to the official comment on this section, "this does not mean . . . that this whole Article applies automatically and in its entirety simply because an agreed transfer of title to goods is not a gift. The basic purposes and reasons of the Article must always be considered."

Undisputed facts indicate that the defendant gave the allegedly defective product to the plaintiff's physician and that there was no payment by the physician to the defendant. Plaintiff alleges that she paid a total fee for the initial consultation with her physician and that the fee was not differentiated with regard to the particular item it compensated. Defendant alleges, however, that because the product was a free sample, no part of the physician's fee could have been applicable as payment. Regardless of the unsettled question of whether the doctor received payment for the product, it is apparent that ...