Barnes v. A.H. Robins Co., Inc., 784S265

Decision Date01 April 1985
Docket NumberNo. 784S265,784S265
Citation476 N.E.2d 84
PartiesLahna BARNES, Plaintiff-Appellant, v. A.H. ROBINS COMPANY, INC., Defendant-Appellee. Sharron NEUHAUSER, Plaintiff-Appellant, v. A.H. ROBINS COMPANY, INC., Defendant-Appellee.
CourtIndiana Supreme Court

Ronald D. Harris, Robert E. Harris, Jeffersonville, Mary Beth Ramey, Ramey and Hailey, Indianapolis, for plaintiff-appellant.

Ralph A. Cohen, Mary Nold Larimore, Ice Miller Donadio & Ryan, Indianapolis, for defendant-appellee.

PIVARNIK, Justice.

This cause comes to us on a certification of a question of state law from the United States Seventh Circuit Court of Appeals. This Court has jurisdiction to answer said certified question pursuant to Ind.R.App.P. 15(O ). Two causes now before the Seventh Circuit, on appeal from the District Court for the Southern District of Indiana, are consolidated for purposes of this Certification because they present similar circumstances against the same defendant, A.H. Robins Co., Inc.

Lahna Barnes sued the defendant A.H. Robins Co., Inc., in the Federal District Court on August 21, 1981, for personal injuries allegedly resulting from her use of Robins' product, the Dalkon shield intrauterine device. An intrauterine device is a medical device inserted into the uterus of a woman for the sole purpose of contraception. Barnes alleged Robins was liable on the grounds of negligence and strict liability.

Barnes had a Dalkon shield inserted on July 18, 1972. On July 31, 1972, pelvic inflammatory disease was diagnosed. The Dalkon shield was removed on September 18, 1972, and thereafter Barnes experienced chronic infections, abnormal discharges, and abnormal menstruation. Abnormal "Pap" smear results necessitated the performance of dilation and curettage operations in May, 1977 and May, 1979. On April 19, 1981, Barnes viewed the television program 60 Minutes which allegedly reported the dangers and defective nature of the Dalkon shield, the injuries the product had caused, and the active concealment of said fact by Robins. Barnes filed her complaint on August 21, 1981.

Sharon Neuhauser had a Dalkon Shield inserted on May 19, 1972. She became pregnant in January, 1974, and suffered a miscarriage in June, 1974, during which she expelled the Dalkon shield. During the pregnancy her physician advised her that it would be possible for her to deliver a child with a Dalkon shield in her uterus, but it was highly likely a miscarriage would result. Her physician also advised her that attempts to remove the Dalkon shield would likely cause a miscarriage. Subsequently, in August, 1975, cervical cancer was diagnosed. From 1975 to June 15, 1978, Neuhauser underwent a series of operations which included a hysterectomy and, ultimately, the removal of her Fallopian tubes and ovaries. Neuhauser was informed by her parents of the contents of the April 19, 1981, 60 Minutes program. She filed her complaint on August 6, 1981.

In both causes the Federal District Courts granted summary judgment in favor of Defendant Robins on the ground that plaintiffs' actions are barred by the Indiana two-year statute of limitations applicable to personal injury suits, Ind.Code Sec. 34-1-2-2 (Burns Supp.1984). The trial courts rejected plaintiffs' contentions that their causes of action did not accrue until they discovered the causal connection between their injuries and the Dalkon shield.

The Seventh Circuit Court of Appeals found that the question of whether these actions are time barred by the statute is controlled by the law of the State of Indiana, and further found that there were no clear controlling precedents in the decisions of the Supreme Court of Indiana to answer the precise question presented. Accordingly, the Seventh Circuit found this to be an appropriate question to be certified to this Court pursuant to Ind.R.App.P. 15(O ).

The Seventh Circuit Court of Appeals accordingly certified the following question to this Court:

"When does a cause of action accrue within the meaning of the Indiana Statute of Limitations for personal injury accidents, Ind.Code Sec. 34-1-2-2, and the Indiana Statute of Limitations for Products Liability actions Ind.Code Sec. 33-1-1.5-5, when the injury to the plaintiff is caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance?"

Ind.Code Sec. 34-1-2-2 (Burns Supp.1984) provides that an action shall be commenced within two years after the cause of action has accrued for injuries to the person or character, for injuries to personal property, and for forfeiture of penalty given by statute. Ind.Code Sec. 33-1-1.5-5 [Sec. 34-4-20A-5 (Burns Supp.1984) ] provides:

"... any product liability action in which the theory of liability is negligence or strict liability in tort must be commenced within two years after the cause of action accrues or within ten years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight years but not more than ten years after that initial delivery, the action may be commenced at any time within two years after the cause of action accrues."

This Court held in Dague v. Piper Aircraft Corporation, (1981) 275 Ind. 520, 418 N.E.2d 207, reh. denied, that this section prohibits the bringing of any products liability action sounding in tort after ten years from the date of delivery of the product to the initial user or consumer except if the action accrued between eight and ten years. It is clear this Court has the authority and responsibility to interpret the intentions of the legislature by deciding when a cause of action accrues. Although the problem has been somewhat troublesome to the courts, it is becoming increasingly difficult to apply because of the technological developments in our society. Large numbers of new chemicals and products are being introduced into our economy and workplace that have resulted in a growing number of diseases and injuries that oftentimes do not manifest themselves until long after exposure ends. In some cases damage does not follow the negligent act of introducing the product or drug into the body for a period of years. In other cases the damage, in the form of progressive disease or injury, is not apparent to the extent that it can be ascertained until long after the two year statute has run. Many jurisdictions have responded to the problems presented by this type of case by adopting a "discovery rule." The discovery rule provides that the statute of limitations in this type of cause runs from the date the negligence was or should have been discovered. The rule is based on the reasoning that it is inconsistent with our system of jurisprudence to require a claimant to bring his cause of action in a limited period in which, even with due diligence, he could not be aware a cause of action exists. In the typical tort claim, injury occurs at the time the negligent act is done and the claimant is either aware of the injury, or at least the cause of the injury, and is put on notice to determine the extent of that injury. The claimant, therefore, has the whole statutory time provided for in the limitations statutes to make his determinations and bring his cause of action. The problem comes about when the act, seemingly innocent, causes changes so subtle and latent that they are not discoverable to the plaintiff until they manifest themselves many years later.

Although the rule in Indiana has been generally understood to be that a cause of action accrues when the resultant damage of a negligent act is ascertainable or by due diligence could be ascertained, the question still remained as to how ascertainable a particular injury was and what standard would be applied as to what is reasonably ascertainable. The most notable case is that of the Board of Commissioners of Wabash County v. Pearson, (1889) 120 Ind. 426, 22 N.E. 134. In that case a bridge was constructed in 1871 and was used without mishap until 1884. In 1884, Pearson was crossing the bridge when it collapsed, causing him injury. This Court held the statute of limitations did not commence to run until the right of action accrued, which was when Pearson was injured by the collapse of the bridge notwithstanding the fact that the negligence had occurred some thirteen years earlier. There would be no point in recounting all of the cases considered by this Court and the Court of Appeals involving this question except to note that the key to the solution in all of them was the ascertainability of the damage within the statutory time. Shideler v. Dwyer, (1981) 275 Ind. 270, 417 N.E.2d 281; Wojcik v. Almase, (1983) Ind.App., 451 N.E.2d 336, trans. denied; Babson Bros. Co....

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