Bonney v. Upjohn Co.

• Citation: 342 N.W.2d 551,129 Mich.App. 18
• Decision Date: 15 December 1983
• Docket Number: Docket No. 60821
• Parties: Wallace BONNEY and Doris Bonney, Plaintiffs-Appellants, v. The UPJOHN COMPANY, Defendant-Appellee. 129 Mich.App. 18, 342 N.W.2d 551
• Court: Court of Appeal of Michigan (US)

Page 551

342 N.W.2d 551

Wallace BONNEY and Doris Bonney, Plaintiffs-Appellants, v. The UPJOHN COMPANY, Defendant-Appellee.

Docket No. 60821.

129 Mich.App. 18, 342 N.W.2d 551

Court of Appeals of Michigan.

Submitted Nov. 2, 1982.

Decided Sept. 26, 1983.

Released for Publication Dec. 15, 1983.

[129 MICHAPP 20] Saukas, Bush, Idema & Mitus, P.A. by Michael L. Idema, Grand Rapids, for plaintiffs-appellants.

Cholette, Perkins & Buchanan by Grant J. Gruel and Jeffrey H. Beusse, Grand Rapids, for defendant-appellee.

Before MacKENZIE, P.J., and MAHER and SIMON, ^* JJ.

MAHER, Judge.

Plaintiffs appeal from a circuit court order granting defendant's motion for accelerated judgment, GCR 1963, 116.1(5).

According to the complaint, in July, 1971, plaintiff Wallace Bonney was afflicted with a condition of bone deterioration associated with certain dental treatments. To alleviate the condition, he was advised to take a drug called Lincocin manufactured by defendant. After taking considerable quantities of Lincocin, Mr. Bonney developed a variety of psychological and physical disorders which were eventually "crippling and disabling to his person". Mr. Bonney underwent a series of medical examinations to uncover the cause of his malady. Plaintiffs allege, however, that it was not until June 20, 1974, that they discovered the possibility that Lincoln was the source of Mr. Bonney's physical and psychological troubles. In January, 1975, plaintiffs read an article in a local newspaper stating that the federal Food and Drug Administration was concerned about the side effects of Lincocin. Plaintiffs recognized these side effects as the same disorders Mr. Bonney had experienced.

On February 25, 1975, Mr. Bonney and his wife initiated a lawsuit against defendant in federal district court. Subsequently, the defendant moved for summary judgment, arguing that plaintiffs had not complied with the statute of limitations. The [129 MICHAPP 21] court denied the motion. See Bonney v. The Upjohn Co., 487 F.Supp. 486 (W.D.Mich.1980). Apparently, the court later vacated its order on the ground that it lacked subject matter jurisdiction over the case.

Plaintiffs then brought their case in circuit court on April 15, 1980, alleging that the defendant negligently manufactured Lincocin and failed to warn potential users of its harmful side effects. The defendant then moved for accelerated judgment, arguing again that the plaintiffs had not complied with the statute of limitations. On October 2, 1981, the trial court granted the defendant's motion.

On appeal, plaintiffs argue that the trial court erred in ruling that they failed to commence their products liability action before the running of the period of limitations.

The applicable period of limitations is three years. ¹ The statute of limitations was tolled when [129 MICHAPP 22] the plaintiffs filed their complaint in federal court. See Ralph Shrader, Inc. v. The Ecclestone Chemical Co. Inc., 22 Mich.App. 213, 177 N.W.2d 241 (1970), app. dis. 385 Mich. 789 (1971). We must decide, therefore, where the statutory period began to run.

The limitations period runs from the time the claim accrues. M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827. Plaintiffs argue that their claim accrued when they discovered, or through the exercise of reasonable diligence should have discovered, the possibility that they had a cause of action. In other words, they urge us to apply their version of the "discovery rule" to a products liability action against a drug manufacturer. Defendant argues, however, that the plaintiffs' claim accrued when all the elements of their cause of action were in place whether or not the plaintiffs knew or should have known that they may have had a claim.

The trial court adopted the view of the defendant and ruled that the plaintiffs' claim accrued more than three years before they commenced their lawsuit in federal court. We believe, however, that the plaintiffs' position is correct and reverse.

Under Michigan's general accrual statute, M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827, a "claim accrues at the time the wrong upon which the claim is based was [129 MICHAPP 23] done regardless of the time when damage results". Michigan courts have expanded this provision to include the discovery rule as the method of defining when particular claims accure. We must first ascertain the exact nature of the discovery rule as it has been formulated in Michigan. In some jurisdictions, the rule is that the claim accrues when the plaintiff discovers or should have discovered the injury. Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (CA 8, 1975) (applying the law of Minnesota). Other jurisdictions define accrual as when the plaintiff knew or should have known that he was injured and that the defendant's product caused the injury. Burd v. New Jersey Telephone Co., 76 N.J. 284, 386 A.2d 1310 (1978); Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170 (1977); Roman v. A.H. Robins Co., Inc., 518 F.2d 970 (CA 5, 1975) (applying the law of Texas). Finally, it has been held that the claim accrues when the plaintiff knows or should have known that he has a possible cause of action. See Grigsby v. Sterling Drug, Inc., 428 F.Supp. 242 (D.C.,1975), aff'd 117 U.S.App.D.C. 270, 543 F.2d 417 (1976).

The formulation advanced by Michigan appellate courts falls into this last category. In Johnson v. Caldwell, 371 Mich. 368 123 N.W.2d 785 (1963), the Supreme Court adopted the discovery rule for malpractice claims. As formulated by the Court the period of limitations does not begin to run until the plaintiff discovers or should have discovered "the wrongful act". 371 Mich. 379, 123 N.W.2d 785. In Dyke v. Richard, 390 Mich. 739, 747, 213 N.W.2d 185 (1973), the Court said that a malpractice suit may be brought within two years after "the asserted malpractice" is discovered or should have been discovered. [129 MICHAPP 24] The Court next extended the discovery rule to a cause of action for negligent misrepresentation by a title abstracter. Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974). This cause of action accrues, the Court said, when the plaintiff knows or should know of "the negligent misrepresentation". 391 Mich. 25, 215 N.W.2d 149. Finally, the Court has extended the rule to a products liability case involving property damage. Southgate Community School Dist. v. West Side Construction Co., 399 Mich. 72, 247 N.W.2d 884 (1976). The Court held that the claim accrues when the plaintiff discovers or should have discovered "the manufacturer's breach of warranty". 399 Mich. 82, 247 N.W.2d 884. (footnote omitted.)

These cases indicate that Michigan's discovery rule focuses on the plaintiff's awareness of the cause of action. By the time he discovers the "wrongful act", "malpractice", "negligent misrepresentation" or "breach of warranty", the plaintiff will have uncovered evidence as to each element of his cause of action. See Williams v. Polgar, supra, 391 Mich. p. 25, 215 N.W.2d 149; Bluemlein v. Szepanski, 101 Mich.App. 184, 190, 300 N.W.2d 493 (1980), lv. den. 411 Mich. 995 (1981) (finding that Southgate Community School Dist. v. West Side Construction Co., supra, held that "[a] cause of action accrues in a case involving property damage at the time the plaintiff either discovers or reasonably should have discovered his cause of action"). We conclude that the discovery rule, as traditionally formulated by Michigan courts, is as follows: A plaintiff's cause of action accrues when he discovers or, through the exercise of reasonable diligence, should have discovered that he has a possible cause of action.

We have been unable to find any Michigan case deciding whether or not this discovery rule should [129 MICHAPP 25] be applied to a products liability case against a drug manufacturer. Defendant argues, however, that this Court has refused to apply the discovery rule to other products liability cases involving personal injury. We do not agree with defendant's interpretation of these cases. In Sedlak v. Ford Motor Co., 64 Mich.App. 61, 235 N.W.2d 63 (1975), the plaintiff, working under a truck, was injured when the tire jack supporting the vehicle collapsed. This Court held that the plaintiff's products liability claim against the jack's manufacturer accrued on the date of the injury, not when the plaintiff's attorney discovered the relation between the jack and the injury. The Court grounded its holding on the principle that the accrual date of a cause of action should not be postponed until the plaintiff discovers his claim with professional assistance. The Court found it sufficient that the "[p]laintiff knew on the date of his injury that the tire jack was involved". 64 Mich.App. 63, 235 N.W.2d 63. Thus, the Sedlak Court, far from rejecting the discovery rule as such, appeared to apply it.

In Reiterman v. Westinghouse, Inc., 106 Mich.App. 698, 308 N.W.2d 612 (1981), the plaintiff's decedent suffered fatal injuries when he attempted to plug in a Westinghouse electric clothes dryer containing a component manufactured by General Electric. The Court held that the plaintiff's claim against G.E. for breach of warranty accrued at death rather than when plaintiff learned that G.E. manufactured the allegedly defective component. As in Sedlak, the Reiterman panel did not reject the discovery rule; rather, it found that at the time of death the rule was satisfied. The Court concluded that "[p]laintiff knew at the date of decedent's death that the faulty machine caused his injury", 106 Mich.App. 704, 308 N.W.2d 612, and further ruled [129 MICHAPP 26] that "as a matter of law * * * where a product is the instrumentality of death the fact that the product may have been defective has been manifested". 106 Mich.App. 704-705, 308 N.W.2d 612.

In Stoneman v. Collier, 94 Mich.App. 187, 288 N.W.2d 405 (1979), plaintiffs' decedent died of...