Fidler v. E.M. Parker Co., Inc.

Decision Date12 April 1985
Citation394 Mass. 534,476 N.E.2d 595
PartiesDonald J. FIDLER et al. 1 v. E.M. PARKER CO., INCORPORATED et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Cynthia J. Cohen, Boston (Gary D. Buseck, Boston, with her), for plaintiffs.

Susan J. Baronoff, Boston (John C. Wyman, Boston, with her) for defendants.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The plaintiffs brought this action on March 24, 1983, against E.M. Parker Co., Incorporated (Parker), and Lafayette Pharmacal, a division of Alcon Laboratories (Alcon). Deborah Fidler seeks damages for negligence and breach of express and implied warranties for injuries allegedly caused by Pantopaque contrast medium. 3 She claims that, as a result of the use of Pantopaque in the course of three myelograms, 4 she suffered injury, including severe head, face, and eye pain. Her husband, Donald Fidler, seeks damages for loss of consortium. The plaintiffs brought this action in the Superior Court after judgment had entered against Deborah Fidler in an earlier suit against Eastman Kodak Company, manufacturer of the chemical used in producing Pantopaque. See Fidler v. Eastman Kodak Co., 714 F.2d 192 (1st Cir.1983), aff'g, 555 F.Supp. 87 (D.Mass.1982). There, the United States Court of Appeals for the First Circuit held that the applicable three-year statutes of limitations, G.L. c. 260, § 2A, and c. 106, § 2-318, barred her claims against Eastman Kodak. Id. at 198-200.

After the plaintiffs brought this second action, the defendants requested summary judgment, contending inter alia that the claims are barred by the applicable statutes of limitations and are precluded by the doctrine of collateral estoppel. After a hearing, the motion judge granted summary judgment for the defendants on the ground that the statutes of limitations had run. The plaintiffs appealed to the Appeals Court, and we granted their application for direct appellate review. We affirm the judgment of the Superior Court granting summary judgment for the defendants, but do so on the ground that the plaintiffs are precluded by the doctrine of collateral estoppel from litigating the issue whether the statutes of limitations bar their claims.

We summarize the sequence of events leading to the two successive lawsuits. In May, 1973, Deborah Fidler injured her back while lifting a patient at a nursing home where she was working as a nurse's aide. In October, 1973, she was admitted to St. Elizabeth's Hospital complaining of back and leg pain. A myelogram was performed at that time to determine the source of her back pain. Pantopaque was injected into her spine in the course of the myelogram. When she continued to experience pain, apparently in her back, shoulders, arms, and fingers, a second myelogram was performed in March, 1975. After the second myelogram, she experienced a severe headache. She testified at her deposition that, beginning in June, 1976, she experienced facial and head pain which has continued intermittently to plague her. A third myelogram was performed in September, 1977, after which she experienced severe back and head pain. In 1980, she began to experience eye pains.

At her deposition, Deborah Fidler testified that she was first informed of a potential causal relationship between her pain and the Pantopaque contrast medium on September 7, 1978, the date on which she had a cerebral arteriogram. Her physician, Dr. Russell B. Butler, performed the arteriogram in order to determine whether she had a tumor. She testified that, on the evening of September 7, Dr. Butler informed her that they had found no tumor, and that he thought that her problems were caused by the presence of Pantopaque in her spinal column as a result of one of the myelograms. 5 After that time, Dr. Butler never stated definitively that her head pain was caused by the remaining Pantopaque, but he continued to indicate that it could be the cause. In 1979, he referred her to Dr. James G. Wepsic at the Massachusetts General Hospital for evaluation as to whether the presence of Pantopaque was causing her facial pain. Dr. Wepsic told her that there was a possibility that Pantopaque was causing her pain. Her pain abated during most of 1980, while she was pregnant, but subsequently returned. She began to experience severe pains in her eyes in October, 1980. She has since consulted at least two more physicians. In mid-1981, Dr. H. Stephen Kott at the Lahey Clinic reviewed two CAT scans and told her that there was a "pretty good possibility" that Pantopaque was causing her problems, but stated that he was "unable to establish any definite relationship between the Pantopaque and her pain syndrome." Dr. Kott consulted with a neuroradiologist who told him that he "ha[d] seen some cases where pantopaque has produced various pain syndromes, but of course it is very hard to be sure whether there is [a] cause [and] effect relationship here." In March, 1982, she consulted Dr. Dawson at the Peter Bent Brigham Hospital. He mentioned the possibility that Pantopaque was causing her pain. In May, 1982, she contacted Dr. George Margolis who stated that Pantopaque was more likely than not the cause of her injuries. 6

Deborah Fidler consulted with several attorneys between 1979 and September 23, 1981, when she instituted the earlier lawsuit against Eastman Kodak. In January, 1979, she consulted an attorney who advised her that she had no case against the doctors or the hospitals where the myelograms had been performed. During 1979 she consulted three other attorneys, each of whom indicated that she had no case unless she could find a doctor who would say that her pain was caused by the presence of Pantopaque. In December, 1980, she retained her present attorney, who has represented her in the two successive lawsuits.

Deborah and Donald Fidler commenced this products liability action on March 24, 1983, against Parker and Alcon. Deborah Fidler alleges in her amended complaint that it was not until May 17, 1982, that she was able to learn that Pantopaque contrast medium was the cause of her pain. She had, however, previously filed a lawsuit against Eastman Kodak on September 23, 1981, in the Superior Court. In that suit she alleged negligence and breach of warranty, and sought damages for injuries allegedly caused by Pantopaque contrast medium. Eastman Kodak removed that case to Federal District Court on the ground of diversity of citizenship. Fidler v. Eastman Kodak Co., 555 F.Supp. 87, 88 (D.Mass.1982). On March 9, 1982, Eastman Kodak moved for summary judgment on three grounds, one of which was that the applicable statutes of limitations barred her action. On April 28, 1982, she filed a corrected motion to amend her complaint by adding her husband, Donald Fidler, as a party plaintiff, and by adding Lafayette Pharmacal, Division of Alcon Laboratories, as a party defendant.

After a hearing, the Federal District Court in the earlier suit concluded that there was no genuine issue of material fact as to the running of the statutes of limitations, and granted summary judgment. Id. at 88. The District Court judge concluded that, under Massachusetts law, the "discovery rule" applied to determine the time of accrual of both claims under the applicable statutes of limitations, G.L. c. 260, § 2A (negligence claim), and G.L. c. 106, § 2-318 (breach of warranty claim). Id. at 89-90. Applying the Massachusetts "discovery rule," the court found that Deborah Fidler's claims had accrued more than three years before she instituted the action because she "had reason to know or reasonably should have known of the causal connection which existed between her injuries and the injection of a drug allegedly improperly used because of the negligence of the defendant [Eastman Kodak]." Id. at 92. The court concluded that the statutes began to run on September 7, 1978, when Dr. Butler told her that he thought that the Pantopaque contrast medium remaining in her spinal column was the cause of her problems. Id. at 91-93. The court did not act on her corrected motion to amend her complaint by adding her husband as plaintiff and Alcon as a defendant. Deborah Fidler appealed to the United States Court of Appeals for the First Circuit, which affirmed, concluding that summary judgment was appropriate because the statutes of limitations had run on her claims. Fidler v. Eastman Kodak Co., 714 F.2d 192, 198-200 (1st Cir.1983).

In the present action, Parker and Alcon have raised the two statutes of limitations and the doctrine of collateral estoppel as alternative defenses to the plaintiffs' claims. The judge below granted summary judgment under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), on the ground that the applicable statutes of limitations, G.L. c. 260, § 2A, and c. 106, § 2-318, barred the plaintiffs' claims. We conclude that the motion judge properly granted summary judgment for the defendants, but hold that the proper basis for this judgment is that the plaintiffs are precluded by the earlier judgment in the Federal court from litigating the issue whether those statutes of limitations bar their claims.

1. General standards for applying collateral estoppel. "A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a 'right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies....' " Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979), quoting Southern Pac. R.R. v. United States, 168 U.S. 1 48-49, 18 S.Ct. 18, 27-28, 42 L.Ed. 355 (1897). See Home Owners Fed. Sav. & Loan Ass'n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 452-456, 238 N.E.2d 55 (1968); Restatement (Second) of Judgments § 27 (1982). "Under collateral...

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