Bonney v. Upjohn Co.

• Decision Date: 27 March 1980
• Docket Number: No. K75-86 CA4.,K75-86 CA4.
• Citation: 487 F. Supp. 486
• Parties: Wallace BONNEY and Doris Bonney, Plaintiffs, v. The UPJOHN COMPANY, a Delaware Corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

487 F. Supp. 486

Wallace BONNEY and Doris Bonney, Plaintiffs, v. The UPJOHN COMPANY, a Delaware Corporation, Defendant.

No. K75-86 CA4.

United States District Court, W. D. Michigan, S. D.

March 27, 1980.

Harry Lieffers, Jr., Stephen C. Kail, Grand Rapids, Mich., for plaintiffs.

Wallson G. Knack, Grand Rapids, Mich., for defendant.

OPINION

DOUGLAS W. HILLMAN, District Judge.

Plaintiffs have sued The Upjohn Company, Inc., alleging personal injuries from ingesting Lincocin, an antibiotic drug manufactured by the defendant. Presently before the court is defendant's motion for summary judgment alleging plaintiffs' claims were not timely filed.

1. THE FACTS.

Plaintiff, Wallace Bonney, was injured in a work related accident in 1956 while employed with the H. L. Lockrow Co. He remained unemployed for about a year as a result of a spinal compression fracture and collected workmen's compensation. He later returned to Lockrow and stayed with that firm until 1965, when he began to work for Mercury Building Maintenance in Grand Rapids, Michigan. In June 1970, Mr. Bonney quit work due to his poor health. His condition at that time forms the basis of this lawsuit.

In 1970, Mr. Bonney developed a bone degeneration in his jaw. Dental surgery was ineffective. In an effort to retard this condition, plaintiff's dentist prescribed Lincocin, a drug manufactured by the defendant and, according to plaintiffs, marketed as a radical antibiotic designed to curb infection and to retard disease and destruction caused by bacteria.

Mr. Bonney's reaction to Lincocin was severe. He suffered "all manner" of psychological and physical reactions to his body, including damage to his muscles, bones, nervous and vital organs, loss of appetite, diarrhea, weight loss, inability to digest food, disorientation, poor blood circulation and an inability to retain Vitamin D. The plaintiff nevertheless continued to ingest Lincocin for several weeks. In the meantime, he contacted physicians concerning his adverse symptoms. The B-12 shots and other remedies which were prescribed for him proved, however, to be ineffective.

Mr. Bonney thereafter contacted an attorney who advised him that because of his disability he should apply for workmen's compensation. At first he rejected this advice, but in 1974 he did apply for and receive compensation. The defendant does not contend that Mr. Bonney's attorney considered, in 1970, any claim against Upjohn.

In January of 1975, the plaintiff read an article in the Grand Rapids Press reporting the Food and Drug Administration's apparent concern over Lincocin's side effects. On February 25, 1975, approximately five years after first taking the drug, plaintiffs initiated this litigation and demanded a jury trial. Their complaint and amended complaint essentially charge the defendant, Upjohn Company, with negligence in failing to warn consumers of the potential damaging side effects associated with Lincocin; with negligence in failing to appropriately research and test the product; and with breach of warranty of merchantability.

In a deposition taken on June 23, 1977, Mr. Bonney was questioned about his understanding of the relationship between his physical condition and the Upjohn antibiotic he had been taking. The following excerpts are taken from that deposition:

"Q So when you quit working for Mercury in June of 1970, it was because of your system was shot because of all these antibiotics you were taking?

A My poor health, yes.

Q And you made a determination that it was because of the antibiotics?

A Due to the information I had, and nothing else I could figure out, I took the assumption that that was the problem . . .

Q And it was your opinion at that time that your problems where you felt so bad that you couldn't work anymore was caused by one of the biotics—antibiotics, which was Lincocin?

A That was my feeling." At pp. 4-5.

"Q Now, you said that you didn't feel that your problem was related to work, you thought it was involved with something else. Was that the antibiotics?

A That was my opinion.

Q And did you discuss with any physicians in 1970 that it was your opinion that the Lincocin you'd been taking caused these problems of weakness you've described to me?

A Yes.

Q And with what physicians did you discuss that?

A Well, for instance, Dr. Schaubel. I was to him. And I was complaining about the way I felt, the situations, and — in the low part of my back, and he said, `Well, my opinion is, —' he says, `—you're getting both barrels.' He said, `You've got low back trouble, plus the antibiotics.' He said, `The only think I can tell you to do is take it easy and take lots of Vitamin B and drink lots of liquid.'

Q So in your opinion, Dr. Schaubel confirmed your own opinion that the Lincocin was causing you to have these aches and pains?

A Yes, I believe so.

Q And when did you see Dr. Schaubel when he told you this?

A It would be in probably in July of '70.

Q Okay. Besides confirming with Dr. Schaubel that the Lincocin was causing your problems, did you use any other physicians to discuss this problem in 1970?

A Dr. Coretti. Said he couldn't find anything wrong with my back. He said could be the antibiotics is giving you trouble, but he didn't elaborate, he didn't go into any details." At pp. 11-12

"Q . . . you have just testified this afternoon that you first decided in your own mind Lincocin caused your problem back in 1970, is that correct?

A I suspected it.

Q Also that was confirmed, as you best recall, by Drs. Schaubel, Coretti and Lado in 1970?

A As I said, Dr. Schaubel said I was probably getting both barrels from the back trouble and from the antibiotics.

Q And the antibiotics you were taking were Lincocin at that time?

A Yes." At p. 25.

The defendant alleges that in light of this testimony, plaintiffs' lawsuit was initiated after the time permitted by the statute of limitations, which it claims began to run in 1970 when the plaintiff allegedly first deduced the causal connection between Mr. Bonney's illness and the drug he was taking.

2. DISCUSSION.

Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), overruling Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), held that federal courts sitting in diversity cases, when deciding cases of "substantive" law, are bound by state court decisions as well as state statutes. See, Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Moreover, the Supreme Court noted, in Moore v. Illinois Cent. R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), that even before Erie, federal courts in diversity cases have applied state statutes of limitation in cases such as the present one. It is clear, therefore, that Michigan law applies to the case at hand.

The Michigan statute of limitations applicable to the present action, M.C.L.A. § 600.5805; M.S.A. § 27A.5805, reads as follows:

"§ 27A.5805 Limits on actions to recover damages for injuries to persons or property. SEC. 5805. (1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section . . .

(8) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.

(9) The period of limitations is 3 years for a products liability action. However, in the case of a product which has been in use for not less than 10 years, the plaintiff, in proving a prima facie case, shall be required to do so without benefit of any presumption."

Under this section, plaintiffs have three years after "accrual" of their claims within which to bring suit, regardless of whether their claims are based on theories of personal injury or product liability.

As already noted, the plaintiffs' complaint rests essentially upon two grounds: breach of warranty and negligence. In Michigan, the time of "accrual" for a breach of warranty claim is set out in MCLA § 600.5833; MSA § 27A.5833, which reads as follows:

"SEC. 5833. In actions for damages based on breach of a warranty of quality or fitness the claim accrues at the time the breach of the warranty is discovered or reasonably should be discovered."

This section postpones "accrual" until the breach of warranty is "discovered" or reasonably should have been "discovered".

On the other hand, negligence actions in Michigan "accrue" when "the wrong upon which the claim is based (is) done regardless of the time when the damage results." See, MCLA § 600.5827; MSA § 27A.5827, which provides:

"SEC. 5827. Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results."

State courts have, however, expansively interpreted § 5827 where personal injury suits are involved. In Michigan, negligence actions resulting in personal injury in fact "accrue" when the plaintiff "discovers" or should have "discovered" his or her injury. See, Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974); Cartmell v. Slavik Co., 68 Mich.App. 202, 242 N.W.2d 66 (1976).

For example, in Connelly v. Paul Ruddy's Co., 388 Mich. 146, 200 N.W.2d 70 (1972), the plaintiff's complaint alleged negligent machine design and repair, which over three years later resulted in personal injury to the plaintiff. The applicable state statute of limitations, however, barred actions commenced more than three years after the defendant's wrong was "done". The appellate court concluded that plaintiff's claim was untimely because the defendant's negligent repair and design, the wrong "done", took place over three...