Goodman v. Mead Johnson & Company
Decision Date | 30 December 1974 |
Docket Number | Civ. A. No. 271-71. |
Citation | 388 F. Supp. 1070 |
Parties | Robert J. GOODMAN, Individually and as Executor of the Estate of Florence L. Goodman, Plaintiff, v. MEAD JOHNSON & COMPANY, Defendant. |
Court | U.S. District Court — District of New Jersey |
This is a diversity action. New Jersey resident Robert Goodman, as Executor of his wife's estate and individually, sues Mead Johnson & Co., a Delaware corporation, for injuries to Florence Goodman allegedly caused by defects in a product manufactured by the defendant.
The factual matrix of the complaint reveals that Florence Goodman used an ethical drug, Oracon,1 which was manufactured by the defendant. During her use of Oracon, she experienced a swelling of the leg, later diagnosed as thrombophlebitis, and a lump in the right breast, later diagnosed as cancer. Florence Goodman thereafter brought suit alleging: (1) that the defendant was negligent in publicly distributing its product without proper or adequate warning on the face of the product sold of the harmful side effects and contraindications; and (2) that the defendant breached its warranty of merchantability when it sold a defective product. After the institution of suit, Florence Goodman died and her husband, as Executor of her estate, was substituted in her place.2 Robert Goodman, in his individual capacity, sues the defendant for damages per quod.
The instant motion by defendant is for summary judgment premised upon the New Jersey State statutes of limitations,3 which, in this diversity case, control.4
The applicable statute of limitations on the negligence claims is embodied in N.J.S.A. 2A:14-2, which states:
Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.
The two-year limitation of N.J. S.A. 2A:14-2 is also applicable to plaintiff's claim of breach of the implied warranty of merchantability. Although breach of warranty claims sound in contract, the New Jersey courts have not applied the limitation of actions provision, N.J.S.A. 12A:2-725, which relates to breach of any contract for sale whenever damages are sought for personal injury. Instead, the New Jersey courts have construed the time limitations of N.J.S.A. 2A:14-2 to apply to all personal injury claims irrespective of whether they fall within the traditional classifications of tort or contract.5 Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973).
The original complaint was filed on February 25, 1971. Plaintiff's decedent used defendant's drug from April 4, 1967 to June 19, 1967. (Florence Goodman Dep., pp. 17, 21) Thus, this action was commenced more than three and one-half years after the last use of defendant's product.
The law of New Jersey is clear:
. . . in an action for personal injuries, the two-year statute, computed from the date of occurrence of the injuries (or in some situations the date of their discovery), would govern, whether the causes of action were pleaded in tort (negligence) or for breach of warranty in connection with a sale of goods or for violation of contract. . . .
Hence, if defendant's product caused injury to plaintiff's decedent, the injury occurred on or before June 19, 1967. Under the normal statute of limitations analysis, plaintiff, having commenced suit over three years after the accrual of the cause of action, would be barred from pursuing a remedy in court. However, the New Jersey courts have adopted the "Discovery Rule" as an exception to the mechanical application of the personal injury statute of limitations. This doctrine provides:
Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973).
In resisting the summary motion, plaintiff has invoked the discovery exception to the statute of limitations.6 The facts as to when the decedent first discovered her alleged injuries are not in dispute. The date of discovery of the thrombophlebitis injury has been established as June 19, 1967 by the decedent's deposition. (Florence Goodman Dep., p. 21).
It is undisputed that on June 19, 1967, Mrs. Goodman was aware that her thrombophlebitis injury existed, and the date of this discovery was also more than three years before she commenced suit. The second pivot of the Lopez discovery exception is: At what time did the claimant know, or in the exercise of due diligence should she have discovered, that she had an actionable claim.
Dep. p. 21 (Emphasis added).
Dep. pp. 25-26 (Emphasis added)
Plaintiff also has not denied admission #7 which was served on April 27, 1972:
7. The plaintiff knew in June 1967 that there might be a relationship between her thrombophlebitis and her taking of Oracon.
Pursuant to Rule 36 of the Federal Rules of Civil Procedure, admissions which are not denied are deemed admitted, and may form a proper basis for summary judgment. Jackson v. Riley Stoker Corp., 57 F.R.D. 120, 122 (E. D.Pa.1972).
Plaintiff has not demonstrated that he is entitled to the protection of the discovery rule. Indeed, the defendant has firmly established, via the deposition of the decedent, that after she discovered her injury and its correlation with the defendant's allegedly defective drug, she brought no suit for three and one-half years, twenty months after the statute had run.
Plaintiff also seeks damages for Mrs. Goodman's injuries from cancer allegedly caused by defendant's drug. The Court reiterates that it was on or about June 19, 1967 that the decedent last utilized the defendant's drug. Mrs. Goodman's deposition reveals that the first signs of cancer were discovered by her in December, 1968 (Dep. p. 48). Plaintiff contends, however, that discovery of the cancer should be dated as of the day that decedent's biopsy was reported malignant, February 27, 1969, rather than the date of the discovery of symptoms which led to the surgery.
This issue is academic because the New Jersey discovery rule commands that the date which governs the thrombophlebitis claim also governs the cancer claim, for...
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Goodman v. Mead Johnson & Co.
...suit. Discovery, now completed, will have to be re-instituted and the trial date of this aged case will be delayed again. . . . 388 F.Supp. at 1071-72 n.2. This reasoning for relegating the plaintiff to a separate lawsuit to assert his wrongful death claim is completely unsatisfactory. Sinc......
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Raymond v. Eli Lilly & Co.
...Action Against Manufacturer or Seller of Product Causing Injury or Death, 4 A.L.R.3d 821 at § 13 (Supp.1976). In Goodman v. Mead Johnson & Company, 388 F.Supp. 1070 (D.N.J.1974), affirming discovery rule while reversing summary judgment for defendant, 534 F.2d 566 (3d Cir. 1976), the plaint......
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Raymond v. Eli Lilly & Co.
...considered the question of whether a state's malpractice discovery rule applies to a products liability case. In Goodman v. Mead Johnson & Co., 388 F.Supp. 1070 (D.N.J. 1974), the plaintiff had ceased to use the defendant's product three and one-half years before she filed suit in a jurisdi......
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King v. Seitzingers, Inc.
...Inc., 133 Ill.App.2d 776, 274 N.E.2d 118 (1971); Breaux v. Aetna Cas. etc. Co., 272 F.Supp. 668 (E.D.La.1967); Goodman v. Mead Johnson & Co., 388 F.Supp. 1070 (D.N.J.1974); Thrift v. Tenneco Chemicals, Inc., 381 F.Supp. 543 (S.D.Tex.1974); Gilbert v. Jones, 523 S.W.2d 211 (Tenn.App.1974); G......