Apgar v. Lederle Laboratories, a Div. of American Cyanamid Co.

• Decision Date: 28 March 1991
• Citation: 123 N.J. 450,588 A.2d 380
• Parties: , 59 USLW 2664, Prod.Liab.Rep. (CCH) P 12,821 Kelly Ann APGAR, Plaintiff-Respondent, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID COMPANY, a Maine corporation doing business in the State of New Jersey, Pfizer, Inc., a Delaware corporation doing business in the State of New Jersey, and The Upjohn Company, a Delaware corporation doing business in the State of New Jersey, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 450

123 N.J. 450

588 A.2d 380, 59 USLW 2664, Prod.Liab.Rep.

(CCH) P 12,821

Kelly Ann APGAR, Plaintiff-Respondent, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID COMPANY, a Maine corporation doing business in the State of New Jersey, Pfizer, Inc., a Delaware corporation doing business in the State of New Jersey, and The Upjohn Company a Delaware corporation doing business in the State of New Jersey, Defendants-Appellants.

Supreme Court of New Jersey.

Argued Jan. 14, 1991.

Decided March 28, 1991.

Susan M. Sharko, for defendant-appellant The Upjohn Co., a Delaware corp. doing business in the State of N.J., (Shanley & Fisher, attorneys; Susan M. Sharko and Benjamin H. Haftel, on the brief), Morristown.

Douglas S. Brierley, for defendant-appellant Pfizer, Inc., a Delaware corp. doing business in the State of N.J., (Schenck, Price, Smith & King, attorneys), Morristown.

James L. Melhuish, for defendant-appellant Lederle Laboratories, a div. of American Cyanamid Co., a Maine corp. doing business in the State of N.J., (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys), Livingston.

James I. Peck, IV, West Orange, for plaintiff-respondent.

PER CURIAM

Plaintiff claims that in 1963 and 1964 she ingested certain drugs manufactured and distributed by defendants, and that because those drugs were defective, they produced discoloration in her adult teeth. She started this products-liability action in 1988. After discovery, defendants moved for summary judgment based on the statute of limitations, N.J.S.A. 2A:14-2 and -21. Plaintiff relied on our "discovery rule," arguing that she did not know, and could not reasonably have known, that she had a cause of action against these defendants until some time within two years before she filed her complaint.

The trial court denied summary judgment for defendants, and the Appellate Division denied leave to appeal. We granted defendants' motion for leave to appeal, 121 N.J. 658, 583 A.2d 344 (1990), and now reverse.

I

Plaintiff, Kelly Ann Apgar, was born on August 19, 1961. The amended complaint filed in this cause in October 1988 alleges that between January 1963 and April 1964 she ingested certain tetracycline-based antibiotic drugs manufactured and distributed by defendants; that those drugs were defective as not being reasonably safe for their intended use by pediatric consumers, particularly in their "known potential for tooth discoloration consequent to infant ingestion"; and that defendants are liable for the ill effects, specifically the discoloration of plaintiff's adult teeth, caused by defendants' products. Her complaint is grounded on theories of strict products liability, failure to warn (first count); negligent failure to warn (second count); breach of warranty (third count); misbranding, deceptive packaging, and false labeling, all in violation of state statutory standards, federal regulations, and Food and Drug Administration requirements (fourth count); and unconscionable commercial practice, fraud, and misrepresentation, all in contravention of the New Jersey Consumer Fraud Act, for which she seeks treble damages (fifth count).

Defendants' answering pleadings raised the defense of the statute of limitations. Discovery included the deposition testimony of plaintiff, which forms a pertinent part of the record for disposition of this appeal. Because plaintiff acknowledges the accuracy of the facts set forth in the brief of defendant The Upjohn Company (Upjohn), we take the liberty of drawing liberally on Upjohn's factual presentation.

While she was still in grammar school, plaintiff noticed that her permanent teeth were discolored. In junior high school she learned from her dentist that medicine she had taken as an infant had caused the discoloration. The dentist told her that the staining could not be removed easily.

At the suggestion of a family friend, a physician, plaintiff then visited the Johnson & Johnson Dental Clinic for an evaluation. There she learned that the tooth discoloration had been caused by medication and that the damage was permanent. Plaintiff testified on depositions that "the people at Johnson & Johnson had said that it was related to medication." When Ms. Apgar asked her mother what medications she had taken that could have caused the discoloration, her mother identified Mysteclin, a tetracycline product.

Plaintiff admitted that by the time she was graduated from high school in 1979, she thought that medication she had taken had caused the discoloration. Moreover, she testified that after her visit to the Johnson & Johnson clinic in the 1970s, she believed that the medication had not been thoroughly tested. Her assumption at that point was "something is not right."

Ms. Apgar further testified that before 1979 she believed "either the drug was tested and they knew it was a side effect and they did not tell anybody, or that it was not tested enough so that they did not know there was a side effect." She reached that conclusion based on personal experience in high school with laboratory experiments on animals that caused her to believe that "something was not done completely properly" and "that certain things weren't right." That opinion never changed or wavered over the years.

After having been graduated from Stevens Institute of Technology with a degree in mechanical engineering, plaintiff read an article in the November 7, 1985, edition of The Star-Ledger, about a successful litigant in a tooth-discoloration case. She first consulted the attorney for that litigant in regard to bringing an action sometime around November or December 1985, almost three years prior to the filing of this suit against Upjohn. In April 1986 plaintiff obtained from Dr. Bayard Coggleshall her treatment records, which indicated that in 1961 she had been prescribed Declomycin, a tetracycline antibiotic manufactured by defendant Lederle Laboratories (Lederle). On November 14, 1986, Dr. Edward L. Minier sent plaintiff's attorney a synopsis of his treatment of Ms. Apgar. According to Dr. Minier's records, in 1963 and in 1964 he had prescribed for plaintiff three types of tetracycline antibiotics: Panalba, manufactured by defendant Upjohn; Achromycin V, manufactured by defendant Lederle; and Signemycin, manufactured by defendant Pfizer, Inc.

On March 22, 1988, plaintiff brought suit against defendant Lederle. On October 25, 1988, she amended the complaint to join defendants Upjohn and Pfizer as defendants. All defendants moved for summary judgment based on the statute of limitations. The trial court denied summary judgment, ruling that the statute of limitations could not start to run in a case like this "until everything is brought home to the plaintiff that she had a cause of action." Responding to the trial court's urging, defendants sought leave to appeal, which the Appellate Division denied. We granted leave to appeal.

II

The statute of limitations for personal-injury actions is two years. N.J.S.A. 2A:14-2. If the injured plaintiff is under the age of twenty-one years when the cause of action accrues, the time within which suit may be commenced is extended to two years after the age of twenty-one years has been reached. N.J.S.A. 2A:14-21. (We are aware of some confusion in the case law over the issue of whether the Legislature intended that the twenty-one-year age set forth in N.J.S.A. 2A:14-21 should be deemed modified to age eighteen by virtue of N.J.S.A. 9:17B-1 to -3. Compare Siebert v. Cathey, 216 N.J.Super. 197, 523 A.2d 267 (App.Div.1987) and Tyson v. Groze, 172 N.J.Super. 314, 411 A.2d 1170 (App.Div.1980) (both holding that the statutory lowering of the age of majority to eighteen modified the twenty-one-years-of-age standard of N.J.S.A. 2A:14-21 for tolling the statute of limitations) with McLaughlin v. Metzner, 201 N.J.Super. 51, 492 A.2d 696 (App.Div.1985) (holding that N.J.S.A. 9:17B-1 to -3 did not effect such a change). We need not resolve that conflict here, because the result is the same irrespective of...