Fidler v. Eastman Kodak Co.

• Decision Date: 17 December 1982
• Docket Number: Civ. A. No. 81-2784-N.
• Citation: 555 F. Supp. 87
• Parties: Deborah FIDLER, Plaintiff, v. EASTMAN KODAK COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

555 F. Supp. 87

Deborah FIDLER, Plaintiff, v. EASTMAN KODAK COMPANY, Defendant.

Civ. A. No. 81-2784-N.

United States District Court, D. Massachusetts.

December 17, 1982.

Gary D. Buseck, Charles M. Crowley, Jr., Parker, Coulter, Daley & White, Boston, Mass., for plaintiff.

John C. Wyman, Johanna Smith, Roche, Carens & DeGiacomo, Boston, Mass., for defendant.

DAVID S. NELSON, District Judge.

This cause of action was originally commenced in Middlesex Superior Court and subsequently removed to this Court on November 2, 1981. The plaintiff, Deborah Fidler, is a citizen of Massachusetts. The defendant, Eastman Kodak, is a corporation duly organized under the laws of New York having its principal place of business in New York. Jurisdiction is predicated upon diversity of citizenship. 28 U.S.C. § 1332. Mrs. Fidler seeks $500,000.00 plus costs, interest and attorney's fees for injuries alleged to have been sustained by her as a proximate result of the defendant's negligence and breach of warranty.

The defendant categorically denies all of the plaintiff's averments, and has moved for summary judgment on the grounds that the claims are barred by the statute of limitations. The defendant has submitted memoranda of law along with other supportive documents. The plaintiff has responded in kind by filing memoranda and legal documents in opposition to the motion for summary judgment. A hearing on the motion was held on September 16, 1982 and the matter was taken under advisement.

After careful scrutiny of all legal arguments and relevant documents, I am obliged to allow the defendant's motion. There is no genuine issue of material fact as to the running of the statute of limitations, and the defendant is entitled to a judgment as a matter of law. See Fed.R. Civ.Proc. 56(c). See also 6 Pt. 2 Moore's Federal Practice ¶ 56.1758, at 56-1058 to 1059 (2d ed. 1982) (statute of limitation defense appropriate for summary judgment); Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690, 692-92 (8th Cir.1981) (summary judgment on statute of limitations grounds affirmed on basis of plaintiff's deposition testimony and other material); Dalkon Shield IUD Products Liability Litigation, 503 F.Supp. 194, 198 (N.D.Cal.1980) (summary judgment on statute of limitations grounds entered against plaintiff who testified at deposition that her IUD had perforated her uterus and caused the injuries for which she sought compensation); Morris v. Stifel Nicolaus & Co., 600 F.2d 139 (8th Cir.1979); Turner v. Lundquist, 377 F.2d 44 (9th Cir.1967).

The historical events which culminated in the filing of this dispute merit review. In May of 1973, Mrs. Deborah Fidler, injured her back while lifting a patient at a nursing home. On October 15, 1973, she was admitted to St. Elizabeth's Hospital suffering from back and leg pain. The plaintiff acknowledged that her leg and hip pain began in 1971-1972 Fidler Dep. Tr. 28-29. A myelogram was performed on October 16, 1973, to determine the source of Mrs. Fidler's back problem. A contrast medium described as Pantopaque was injected into her spine to perform the myelogram. A month later, Mrs. Fidler experienced pains shooting up her back and shoulders and pain in her arms and fingers. Fidler Dep. Tr. 29, 73. A second myelogram (March 18, 1975) produced a "bad headache." Fidler Dep. Tr. 65-67. During June of 1976, Mrs. Fidler testified that she experienced facial and head pain. Fidler Dep. Tr. 32, 67-68. Her present head pain began with the facial pain in June of 1976. Fidler Dep. Tr. 76-79. On September 19, 1977, a final myelogram was performed on the plaintiff. The plaintiff thereafter experienced severe back and head pain. Fidler Dep. Tr. 69-70. A year and a half ago, Mrs. Fidler began experiencing eye pains. Fidler Dep. Tr. 32.

The deposition of the plaintiff indisputably reveals when she was first informed of the potential causal relationship between her pain and Pantopaque contrast medium. Mrs. Fidler clearly stated that Dr. Butler informed her of his discovering a residual of Pantopaque contrast medium left in her spine, which was causing inflammation. Dr. Butler then expressed his belief that the Pantopaque was the cause of all the plaintiff's problems. Mrs. Fidler was positive that the conversation between Dr. Butler and her occurred on the same day she had an arteriogram (September 7, 1978). See Fidler Dep. Tr. 49-53.

The gravamen of the plaintiff's complaint is that Eastman Kodak Company has been negligent and is in breach of warranty. It produces a radiopaque contrast medium; yet, it failed to give adequate, effective and continuing warnings of the dangers involved in the use of the chemical. Eastman Kodak allegedly failed to provide proper instructions on the use of the contrast medium. As a direct and proximate result of the defendant's negligence and breach of warranty, the plaintiff alleges that she has suffered injury. Though the plaintiff concedes that Eastman Kodak does not manufacture or sell Pantopaque, it does manufacture and sell ethyl iodophenylundecanoate (iophendylate). The plaintiff contends that this product has only one use. The purchaser of the chemical simply sterilizes and packages the product. The chemical composition of the substance is unchanged. Consequently, Mrs. Fidler argues that Eastman Kodak is responsible for her injuries.

The specific injuries claimed by Mrs. Deborah Fidler are set out in her deposition testimony. Mrs. Fidler there reveals that she has suffered pain in various forms: head pain, pain in her fingers, shoulders, legs, eyes, upper back and face. She has also experienced seizure activity. Fidler Dep. Tr. 28. It is clear that by July of 1978, the plaintiff had experienced every symptom which she has attributed to the injections of Pantopaque contrast medium. I have attempted to carefully set forth the operative facts of this case, and these facts dictate the ineluctable conclusion that the plaintiff's claim is time-barred.

There is no disagreement that two Massachusetts statutes of limitations are applicable in the dispute at bar. Mass.G.L. c. 260, § 2A governs the negligence claim and provides:

Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action occurs.

The breach of warranty action is controlled by Mass.G.L. c. 106, § 2-318 and provides:

Lack of privity between the plaintiff and defendant shall be no defense in any action brought against the manufacturer, seller, lessor or supplier of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant .... All actions under this section shall be commenced within three years next after the date the injury and damage occurs.

In Cannon v. Sears, 374 Mass. 739, 742, 374 N.E.2d 582 (1978), the determinative rule of law in products liability cases was articulated by the Court. The Court in Cannon was faced with the question of when the statute of limitations began to run in a products liability action under Mass.G.L. c. 260 § 2A. There were four possible dates: The time of manufacture, the time of sale, the date of injury, and the date of discovery of the injury. Mass.G.L. c. 260 § 2A was construed as commencing to run on the date of injury.

Application of the time of injury measure of accrual in products-liability-negligence cases has the distinct advantage of paralleling the accrual of action rule in breach of warranty cases. Id. at 743, 374 N.E.2d 582.

However, in Cameo Curtains, Inc. v. Philip Carey Corp., 1981, ___ Mass.App. ___, ___, 416 N.E.2d 995, Mass.App.Ct.Adv.Sh. 411, 413, the Appeals Court construed the addition of the words "and damage" to § 2-318 (in 1974) "as extending the beginning of the limitations period from the time when the injury is first perceived to the time when the damages flowing from the injury can be fairly estimated." See also Hoffman v. Howmedia, Inc., 373 Mass. 32, 364 N.E.2d 1215 (1977).

The Supreme Judicial Court in Cannon refused to address the argument that a discovery rule should be extended to products liability cases. The plaintiff in Cannon was injured when a ladder collapsed. Both injury and discovery of the injury were simultaneous events. Nevertheless, the Supreme Judicial Court has announced the discovery rule as applicable in medical malpractice suits, legal malpractice suits, and suits alleging the tort of deceit. See Franklin v. Albert, 1980, 381 Mass. 611, 411 N.E.2d 458, Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974); Friedman v. Jablonski, 371 Mass. 482, 358 N.E.2d 994 (1976).

The applicability of the discovery rule has not been decided by the Massachusetts Supreme Judicial Court in the context of a products liability negligence action. However, in a DES case, Judge Skinner concluded that the Supreme Judicial Court would apply the discovery rule. Citing Franklin v. Albert, supra, Judge J. Walter Skinner wrote:

I conclude that the Court would apply what would be in practical effect a discovery rule, even if it were cast in terms of defining "injury and damage." The Supreme Judicial Court has in these cases evidenced a clear disinclination to punish "blameless ignorance citation omitted by barring an action before the plaintiff knew or had reason to know he or she had a claim."

Payton v. Abbott Labs, XX-XXXX-X, Memorandum on Certification to the Supreme Judicial Court, slip op. at 5 (D.Mass. January 15, 1981). In Franklin, the court held that a cause of action for medical malpractice under Mass.G.L. c. 260 § 4 accrues when the patient learns, or reasonably should have learned that he has been harmed by the defendant's conduct.

On July 15, 1982, Judge Skinner's opinion was used as supportive authority by Judge A. David Mazzone in the case of (Judge) Margaret Burnham, et al v. A.H. Robbins Co.,...