Byington v. AH Robins Co., Inc.

• Decision Date: 02 March 1984
• Docket Number: No. 82-8027-CIV-JAG.,82-8027-CIV-JAG.
• Citation: 580 F. Supp. 1513
• Parties: Dana BYINGTON and Bruce Byington, Plaintiffs, v. A.H. ROBINS CO., INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

580 F. Supp. 1513

Dana BYINGTON and Bruce Byington, Plaintiffs, v. A.H. ROBINS CO., INC., et al., Defendants.

No. 82-8027-CIV-JAG.

United States District Court, S.D. Florida, N.D.

March 2, 1984.

Theodore A. Deckert, Mathison & Deckert, West Palm Beach, Fla., for plaintiffs.

Henry Knoblock, Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, Fla., for defendants.

ORDER OF DISMISSAL WITH PREJUDICE

GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon the Defendant, A.H. ROBINS COMPANY, INC.'s Motion for Summary Judgment. The Court has considered the motion, and being otherwise duly advised, it is

ORDERED AND ADJUDGED that the Defendant's Motion for Summary Judgment be and the same is hereby GRANTED, and that this cause is hereby DISMISSED WITH PREJUDICE as to Defendant A.H. ROBINS COMPANY, INC.

I. Background

Plaintiff, Dana Byington,¹ claims that her use of A.H. Robins Company's intrauterine device (IUD) from August 1972 until January 1976 caused her to contract pelvic inflammatory disease. Plaintiff underwent surgery in 1978 and filed this suit in January 1982. The issue presented here is whether there exists no genuine issue of material fact that Plaintiff's cause of action accrued more than four years prior to the filing of the complaint. Defendant A.H. Robins Company has the burden of showing the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). This Court must view the inferences to be drawn from materials submitted in support of Defendant's motion, however, in a "light most favorable to the party opposing the motion." Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983).

II. Analysis

Under Section 95.11(3)(a), (e), Fla. Stat. (1981),² the four-year statute of limitations for suits sounding in negligence, fraud, or products liability begins to run when the plaintiff discovers or, through the use of reasonable care, should have discovered, the injury. Florida law provides that this "discovery" occurs when the plaintiff either has notice of the negligent act giving rise to the cause of action or when the plaintiff has notice of the physical injury which is the consequence of the negligent act. City of Miami v. Brooks, 70 So.2d 306, 307-08 (Fla.1954). As a matter of law, the plaintiff is on notice only after she has suffered damage or injury ("trauma") and realizes, or should have realized, that defendant's product is in some way responsible for her trauma ("realization"). Steiner v. Ciba-Geigy Corp., 364 So.2d 47, 53 (Fla. 3d DCA 1978).

The record here is replete with evidence of Plaintiff's injuries which, on Defendant's motion for summary judgment, are presumed to be due in some part to Defendant's IUD, commercially known as the Dalkon Shield. Far more problematic is the issue of Plaintiff's realization of the accrual of her cause of action. Defendant points out that Plaintiff's physician, after "reading about the association of IUD's with an increased incidence of pelvic inflammatory disease," informed Plaintiff that he suspected that her IUD might be causing her discomfort and recommended its removal. At this point, suggests Defendant, Plaintiff should have realized that the IUD was causing her injury. Plaintiff responds that her cause of action accrued only after she viewed a television program on the IUD and pelvic inflammatory disease in 1981.

Had Mrs. Byington's symptoms stopped following the removal of the Dalkon Shield in January 1976, this Court would likely conclude that, as a matter of law, she should have discovered the injury and the suspected causative agent at that time. Steiner v. Ciba-Geigy Corp., 364 So.2d 47 (Fla. 3d DCA 1978), dictates this result. The plaintiff in Steiner suffered from poor eyesight that improved after he discontinued use of a specific drug. The plaintiff's realization of the correlation between his visual acuity and the drug, a discovery made without help from his physician, was sufficient to put him on notice that a cause of action had accrued.

But in this case, the record clearly indicates that Mrs. Byington suffered persistent pain for two years after her physician had removed the IUD. Based on the Steiner court's logic alone, it seems doubtful that Plaintiff should have realized that her continued discomfort was due to the now-removed IUD.

The question remains, however, whether Plaintiff's persistent pelvic pain, coupled with her doctor's verbalized suspicions and Defendant's public disclosure of the possible dangers of the Dalkon Shield in 1974, should have put her on notice that her cause of action had accrued. In resolving this issue, a balance must be struck between the patient's inability to appreciate the significance of the physician's comments, and the manufacturer's right not to be potentially liable in perpetuity for injuries caused by a specific act or product.

The deposition transcript of Plaintiff's physician, Dr. Cocotos, reveals that he voiced his suspicions about the link between pelvic inflammatory disease and the IUD in December 1975 and January 1976.

Q Why did you attempt to remove the IUD at that time? Referring to Plaintiff's December 29, 1975 visit to Dr. Cocotos

A I had been reading about the association of IUD's with an increased incidence of pelvic inflammatory disease; and I thought at the time, since she's had it in for awhile, it probably would be better to remove it and not take any chances on it really being associated, because I didn't know. There was just a lot of controversy at the time whether IUD's were related.

Q Did you tell her that you thought that her pelvic inflammatory disease might be related to her use of the IUD?

A Yes.

Q How did she respond?

A Well, she told me I could take it out, and when I attempted to remove it, she became very uncomfortable and I didn't force the issue.

What we decided to do, she was going to come back, as I remember, and see how she's doing in a few days, and see if she's more comfortable. And I told her I wanted to take it out when she came back, and she said she'd think about it.

Q Okay, and when was the next time that you saw her, Doctor?

A January 2, 1976.

Q And what was her complaint at that time?

A It was also a follow-up for the same problem. She was feeling much better, and that's—at that time I did write a note about her—talk about having the IUD removed because of the possibility of an increase in incidents of pelvic inflammatory disease.

Q And you informed her of that?

A Yes.

Defendant's Motion for Summary Judgment and Supporting Memorandum, at 3-4 (filed Jan. 11, 1984) (quoting deposition transcript of Dr. Cocotos, pages 12, 13, 15, 16).

Plaintiff's knowledge of her physician's suspicions, the fact that in 1974 A.H. Robins Company publicly declared that pelvic inflammatory disease might be caused by the Dalkon Shield, and the Plaintiff's persistent symptomology, lead this Court to find that there exists no genuine issue of material fact that Plaintiff's cause of action accrued more than four years prior to the filing of the complaint.

After the IUD was inserted, and before Plaintiff visited Dr. Cocotos in December 1975, she experienced the symptoms of pelvic inflammatory disease. At this time, without any independent means of ascertaining whether her pelvic pain was due to the IUD, and without possessing any medical knowledge that would independently lead her to suspect the IUD, Plaintiff probably should not be expected to realize the association between the Dalkon Shield and her discomfort.

But once Dr. Cocotos notified her of his suspicions regarding the relationship between the IUD and pelvic inflammatory disease, Plaintiff should have realized that her cause of action had accrued.³See City of Miami v. Brooks, 70 So.2d 306 (Fla.1954) (plaintiff discovered that x-ray treatment had caused her injury when, five years after the regimen, she was so "advised" and also noticed that a recently-developed sore had turned into an ulcer); Salvaggio v. Austin, 336 So.2d 1282 (Fla. 4th DCA 1976) (patient's cause of action accrued when her physician, after examining recently-taken x-rays, informed her that post-surgical pain was due to presence of drainage tube left behind after surgery); cf. Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977) (client not expected to discover that she had received mis-advice from her attorney unless so informed by another attorney and possibly put on notice by newspaper article). It matters not that Mrs. Byington continued to experience pain after the removal of her IUD, for once there is notice of the negligent act, the statute of limitations begins to run even if the full consequences are not known. City of Miami, 70 So.2d at 308 (citing 34 Am. Jur. Limitation of Action § 160, at 126). Although she did not "know for a fact" that the IUD was the cause of her discomfort, Mrs. Byington certainly had available to her "adequate facts ... to point in a single direction in search for the responsible party of parties." Steiner, 364 So.2d at 52.

That Plaintiff is neither a physician nor a lawyer, capable of understanding the medical or legal significance of her physician's comments, is not decisive in this case. All that is necessary is that information be made available to Plaintiff so that she suspects, or after a reasonably diligent investigation should suspect, that the IUD contributed to her pain.⁴ If potential lay claimants were required to possess a professional level of knowledge before a cause of action was discoverable, then theoretically the claimant's action would almost never accrue. Such a result not only is contrary to the conclusion reached by Florida courts which have interpreted Section 95.11(3)(a), (e),⁵ but it also contravenes the underlying purpose of statutes of limitation, which is "to protect defendants against unusually long delays in filing of lawsuits and to prevent unexpected enforcement of...