Ballew v. A. H. Robins Co.

• Citation: 688 F.2d 1325
• Decision Date: 30 August 1982
• Docket Number: No. 81-7415,81-7415
• Parties: Carolyn BALLEW and Thomas J. Ballew, Plaintiffs-Appellants, v. A. H. ROBINS COMPANY, a Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1325

688 F.2d 1325

Carolyn BALLEW and Thomas J. Ballew, Plaintiffs-Appellants, v. A. H. ROBINS COMPANY, a Corporation, Defendant-Appellee.

No. 81-7415.

United States Court of Appeals Eleventh Circuit.

Aug. 30, 1982.

Daryl G. Lecroy, Atlanta, Ga., for plaintiffs-appellants.

Jones, Bird & Howell, Dow N. Kirkpatrick, II, Atlanta, Ga., for A. H. Robins Co.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and KRAVITCH, Circuit Judges, and YOUNG ^*, District Judge.

KRAVITCH, Circuit Judge:

In this diversity action, appellant Carolyn Ballew appeals from the district court's grant of summary judgment for appellees A. H. Robins Co. on the ground that the court erred in holding that her action for personal injuries was barred by the applicable Georgia statute of limitations. Ga. Code Ann. § 3- 1004. We agree with appellant and reverse and remand for further proceedings.

I.

Appellee A. H. Robins Co. manufactured and domestically distributed an intrauterine device (IUD) known as a Dalkon Shield from 1970 until 1974. In May of 1971, appellant's physician, a specialist in gynecology and obstetrics, fitted her with a Dalkon Shield for contraceptive purposes. At the time the Shield was inserted, appellant discussed with her physician the use of the IUD and according to her deposition was informed that the Dalkon Shield posed less of a risk of an infection than other types of IUD's. ¹ Subsequent to the insertion of the Shield, appellant read an article discussing the complications that might arise if pregnancy occurred while the Shield was in place. Appellant discussed the article with her physician, and he advised her to continue using the Shield as she had not experienced any problems.

Following the death of appellant's physician sometime prior to 1977, appellant became a patient of his associate, Dr. Massey. On April 4, 1977, appellant made an emergency visit to Dr. Massey as a result of severe pain in her right side. During the examination, Dr. Massey removed the Dalkon Shield and requested a culture of the Shield. Dr. Massey diagnosed appellant as having a pelvic infection and tubo-ovarian abscess and had her admitted to the Crawford Long Hospital for treatment.

Appellant was hospitalized from April 4 through April 19, 1977. During her hospitalization, Dr. Massey and his associates explained to her their diagnosis, which was confirmed by the culture of the Dalkon Shield. Appellant specifically asked her attending physicians whether the Shield caused the infection. Her treating physician stated by affidavit that he informed her at that time that he could not say whether or not the IUD was causally related to the infection. Appellant stated in her deposition that three other physicians she queried responded similarly. During her stay at the hospital, appellant was informed that if her condition did not improve she might have to undergo a hysterectomy.

On May 5, 1977, appellant began hemorrhaging and was again hospitalized. The hemorrhaging was caused by the interaction between the medicine she was taking for the pelvic infection and that which had been prescribed for pulmonary emboli. Subsequent to her discharge from the hospital, appellant continued to see Dr. Massey for her condition, and there was further discussion regarding a hysterectomy. Appellant sought a second opinion from another physician, who after examining her concurred with Dr. Massey's diagnosis and his prescribed treatment. A total hysterectomy was performed on appellant on September 19, 1977.

In January of 1978, appellant read a newspaper article in the Atlanta Journal and Constitution about a suit filed against A. H. Robins by an Alabama couple for injuries allegedly sustained as a result of the Dalkon Shield. The article did not identify the specific injuries but did state that the woman alleged she could never have children. Nor did the article mention the plaintiffs' address, the federal court in which the case was filed, or the name of the plaintiffs' attorney. Nevertheless, appellant contacted the couple to inquire about their lawsuit and was referred to their attorney. He advised appellant that she might have a cause of action against Robins and that Robins had committed fraud in the marketing of the Dalkon Shield.

Appellant filed this suit on June 12, 1979, seeking recovery from A. H. Robins Co. and Dr. Hugh J. Davis, ² one of the inventors of the Dalkon Shield, for negligence, strict liability in tort, breach of express and implied warranties, fraudulent misrepresentations and nondisclosures, malicious misrepresentations and nondisclosures, and civil conspiracy to defraud. Appellee moved for summary judgment on the grounds that appellant's personal injuries claims were barred by a two year statute of limitations, Ga. Code Ann. § 3-1004, and that her contract claims were barred by a four year limitations period. Ga. Code Ann. § 109A-2-725. The district court granted appellee's motion for summary judgment on both the personal injuries and contract claims. On appeal, appellant argues only that the district court erred in granting summary judgment on her personal injuries claims.

II.

The sole issue on appeal is whether the district court properly dismissed appellant's personal injuries claims on summary judgment on the ground that the claims were barred by Georgia's statute of limitations governing actions for personal injuries. The statute provides that "(a)ctions for injuries to the person shall be brought within two years after the right of action accrues...." Ga. Code Ann. § 3-1004. The district court found as a matter of law that appellant's cause of action accrued in April of 1977-when appellant was hospitalized for her pelvic infection and tubo-ovarian abscess-more than two years prior to the institution of this suit on June 12, 1979. It concluded that appellant's inquiry during her hospitalization into whether her injuries were caused by the IUD evidenced a suspicion of a causal link between her infection and the Dalkon Shield and that the equivocal responses of her physicians...