Basko v. Winthrop Laboratories, Inc.
| Decision Date | 17 April 1967 |
| Docket Number | Civ. No. 11285. |
| Citation | 268 F. Supp. 26 |
| Parties | Lydia BASKO, Plaintiff, v. WINTHROP LABORATORIES, INC. and Sterling Drug Company, Inc., Defendants. |
| Court | U.S. District Court — District of Connecticut |
Morgan P. Ames, of Cummings & Lockwood, Stamford, Conn., and Helen F. Krause, Trumbull, Conn., for plaintiff.
Donald St. John, Bridgeport, Conn. (Paul V. McNamara, Bridgeport, Conn., on the brief), for defendants.
In this diversity action to recover for personal injuries allegedly caused by use of medicinal drugs manufactured by defendants, the essential question presented by plaintiff's motion to strike, pursuant to Rule 12(f), Fed.R.Civ.P., is whether defendants have waived their right to interpose defenses of statutes of limitations by reason of their long delay in seeking to raise such special defenses by amendment to the answer.
The Court holds that defenses of limitation of action have been waived; accordingly, plaintiff's motion to strike the first, third and fourth special defenses of the amended answer, filed March 8, 1967, is granted.
The relevant prior proceedings in the case are as follows:
On February 16, 1966, plaintiff's four count complaint was filed. It alleged, inter alia, that from April of 1953 to October 16, 1961 plaintiff had consumed certain drugs manufactured by defendants in connection with treatment for a disease known as lupus erythematosus; that such drugs were defective products, inherently dangerous to health; and that such drugs had caused severe damage to plaintiff's eyes, culminating in permanent and total blindness as of January, 1966. Breach of warranty, negligence and wanton misconduct were assigned as causes of action against defendants.
On April 1, 1966, defendants filed their original answer, denying the material allegations of counts one, two and three; a supplementary answer was filed on June 1, 1966, denying the material allegations of count four.
Also filed on June 1, 1966 was a copy of a letter from counsel for defendants to plaintiff's counsel, mentioning the possibility of a motion to add an unspecified "special defense", depending upon the results of plaintiff's deposition and answers to interrogatories.
Plaintiff's answers to interrogatories were filed on June 17, 1966; plaintiff's deposition was taken on August 22, 1966 and filed on August 26, 1966.
On December 2, 1966, defendants filed a motion, pursuant to Rule 15(a), Fed.R. Civ.P., for permission to amend their answer by adding four special defenses, three of which alleged that relevant limitations periods had expired prior to commencement of the suit. The three statutes of limitations in question provide in pertinent part:
Defendants' motion to amend was heard and granted on January 3, 1967 without argument on the central issue of waiver, but plaintiff was granted leave to bring any appropriate motion,1 with supporting brief, addressed to the question of waiver with respect to any and all parts of the conditionally granted amendment.
The instant motion to strike, claiming waiver of limitations defenses, was filed on January 26, 1967, and was fully heard on March 6, 1967.
Plaintiff contends that waiver of limitations defenses has occurred by reason of defendants' excessive delay in seeking to raise such defenses, and that such delay would result in great prejudice to plaintiff if the amended answer were allowed to stand, in that plaintiff's medical discovery proceedings have ignored questions of time of accrual of the causes of action, and in that it is now too late for plaintiff to commence suit in other...
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Bergman v. United States
...that Defendants might have to defend a cause of action which, by its express terms, ought to be barred. In Basko v. Winthrop Laboratories, Inc., 268 F.Supp. 26, 28-29 (DC Conn.1967), the court in finding that the defendant therein had waived the defense of the statute of limitations by not ......
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Hayden v. Ford Motor Company
...discussing the nature of the statute of limitations defense and its subsequent waiver, a district court in Basko v. Winthrop Laboratories, Inc., 268 F. Supp. 26, 28 (D.Conn.1967) . . . if counsel believed that any serious question might exist as to possible expiration of the relevant statut......
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California Concrete Co. v. Beverly Hills Savings & Loan Assn.
...the cost of a trial and an appeal. Held, defendant had waived its right to raise the statute as a defense. In Basko v. Winthrop Laboratories, Inc. (D.C.Conn.1967) 268 F.Supp. 26, a delay of nine months before defendant sought to amend its complaint to raise the statute of limitations as a d......
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Strauss v. Douglas Aircraft Co.
...Wagner v. Fawcett Pub., 307 F.2d 409 (7th Cir. 1962), cert. denied 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718; Basko v. Winthrop Laboratories, 268 F.Supp. 26 (D.Conn.1967); Smith v. Ins. Co. of North America, 30 F.R.D. 540, 542 (M.D. Tenn.1962). See also Twentieth Century Fox v. Goldwyn, 328......