Cheney v. Syntex Laboratories, Inc.

• Decision Date: 24 July 1967
• Docket Number: Civ. A. No. 10899.
• Parties: Mrs. Ouida CHENEY v. SYNTEX LABORATORIES, INC.
• Court: U.S. District Court — Northern District of Georgia

277 F. Supp. 386

Mrs. Ouida CHENEY v. SYNTEX LABORATORIES, INC.

Civ. A. No. 10899.

United States District Court N. D. Georgia, Atlanta Division.

July 24, 1967.

John E. Sacker, Jr., Atlanta, Ga., for plaintiff.

Ben L. Weinberg, Jr. (Long, Weinberg & Ansley), Atlanta, Ga., for respondent.

ORDER

EDENFIELD, District Judge.

In this diversity case the plaintiff sues the defendant for damages from a pulmonary embolism allegedly suffered by taking a medicinal compound called "Norinyl", which she alleges was negligently manufactured and distributed by the defendant and which was prescribed for plaintiff by her physician on or about the last week of December, 1964. She alleges that the pulmonary embolism developed on the 26th day of April, 1965, and this suit was filed on the 25th day of April, 1967. The defendant has filed a motion to dismiss the complaint on the ground that it appears from the face of the petition that the plaintiff's action is barred by the two-year statute of limitations prescribed in Georgia Code Section 3-1004.

Complainant alleges that she took the medicine, according to directions, for a period of three months and twelve days, after it was prescribed during the last week of December, 1964. It follows, therefore, that even if the first dose was taken on the last day of December, 1964, and that subsequent doses were taken for three months and twelve days, the last dose would have to have been taken some time around the 12th day of April, 1965. In paragraph 10 of her complaint the plaintiff alleges that after taking the medicine for the period of three months and twelve days, "plaintiff developed severe side effects; i. e., constant break-through bleeding, headaches, swelling, and a general weakened condition, and her physician told her to quit taking said tablets." In paragraph 11 she alleges that as early as the 20th of April, 1965, she "went to her family physician, Dr. John Trotter, to be examined for the conditions set forth above," and that he put her in the hospital. It was thereafter, on the 26th day of April, 1965, that she was stricken with the pulmonary embolism complained of.

It thus appears that plaintiff had ingested the medicine and had actually suffered some damages from defendant's alleged negligence as early as April 20, 1965. Clearly, therefore, her cause of action was then complete and the statute of limitations started running from that date. The action was therefore barred when the suit was ultimately filed on April 25, 1967. See Gould v. Palmer & Read, 96 Ga. 798, 22 S.E. 583. Saffold v. Scarborough, 91 Ga.App. 628, 86 S.E. 2d 649; Brewer v. Southern Gas Corp., 90 Ga.App. 81, 82 S.E.2d 171; Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga.App. 754, 181 S.E.2d 597.

In seeking to avoid this result, plaintiff cites Chitty v. Horne-Wilson, Inc., 92 Ga.App. 716, 89 S.E.2d 816, to the effect that the cause of action could not have arisen, and consequently the statute of limitations could not have begun to run, until the injury was sustained; and, by arguing that the only injury complained of (pulmonary embolism) was not suffered until April 26th, plaintiff urges that the statute could not commence to run until that date.

The Chitty case involved injuries from a furnace explosion and, so far as the court can determine, was properly decided on its facts. In that case the statute could not start to run until the day of the explosion (although the furnace may have been negligently installed at an earlier date) because, until it exploded, plaintiff had suffered no injuries whatsoever, and consequently had no damages to sue for, nominal or otherwise. Here, however, despite the fact that plaintiff sues only for the embolism which occurred on April 26th, she affirmatively alleges injuries resulting from the same negligence and for which damages might have been recovered as early as April 20th. We do not...