Goodman v. Mead Johnson & Co.

Decision Date09 December 1975
Docket NumberNo. 75-1333,75-1333
Citation534 F.2d 566
PartiesFlorence L. GOODMAN, and Robert J. Goodman, individually and as Executor of the Estate of Florence L. Goodman, Deceased v. MEAD JOHNSON & COMPANY et al. Appeal of Robert J. GOODMAN, individually and as Executor of the Estate ofFlorence L. Goodman. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

William R. Morris, Newark, N. J., for appellant.

Bernard Chazen, Englewood, N. J., for appellee.

Before ADAMS, GIBBONS and ROSENN, Circuit Judges.


GIBBONS, Circuit Judge.

This is an appeal from an order in a diversity case granting defendant's motion for summary judgment. 1 The original plaintiffs were Florence L. Goodman and her husband, Robert J. Goodman. While the action was pending Florence Goodman died, and Robert Goodman, as executor of her estate, was substituted as the real party in interest pursuant to Rule 17(a), Fed.R.Civ.P. The defendant is Mead Johnson & Company, the manufacturer of the estrogen compound Oracon, which Florence Goodman used from April 4 through June 19, 1967 and which plaintiff alleges caused the injuries at issue in this case. The complaint was filed on February 25, 1971, more than three years and eight months after the last use of Oracon. The district court held that the New Jersey two year statute of limitations applicable to personal injuries, N.J.S.A. 2A:14-2, barred the various claims asserted in this case, even taking into account that state's "Discovery Rule" exception. 2 Because there are genuine issues of material fact as to the date of discovery of the several claims against Mead Johnson which could not be resolved on a motion for summary judgment, we reverse.

I. Plaintiff's Claims

Originally the plaintiffs asserted claims for negligence and breach of implied warranty of fitness for intended use, claiming:

(1) on behalf of Florence Goodman that use of Oracon caused thrombophlebitis;

(2) on behalf of Florence Goodman that use of Oracon caused carcinoma of the right breast resulting in a mastectomy;

(3) on behalf of Robert Goodman, an action per quod consortium amisit.

After his wife's death on May 22, 1973, Robert Goodman, with the court's permission, filed an amended complaint in which he substituted himself, as executor of his wife's estate, as a plaintiff. However, in the amended complaint he also included a wrongful death claim under N.J.S.A. 2A:31-1 et seq.

Thus, besides the decedent's thrombophlebitis and cancer personal injury claims and Robert Goodman's per quod claim there was before the court a statutory wrongful death claim. The court's rulings on these claims are challenged on appeal.

II. The Wrongful Death Claim

The district court disposed of the wrongful death claim in a footnote as follows:

This action was undertaken without leave of court or written consent of the adverse party as required by Rule 15 of the Federal Rules of Civil Procedure. Florence Goodman died May 22, 1973. (Plaintiff's Answer to Defendant's Supplementary Interrogatory No. 1(a)). Plaintiff had over one year after the death of Florence Goodman to allege these new causes of action. Now, on the eve of trial of this three-year old case, after the completion of discovery, he attempts to inject new causes of action into this law suit through an improper use of the Federal Rules of Civil Procedure.

To permit plaintiff to amend its complaint will undoubtedly cause the defendant to suffer prejudice in its defense of this 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. 3

This reasoning for relegating the plaintiff to a separate lawsuit to assert his wrongful death claim is completely unsatisfactory. Since the liability issues in this survivor's wrongful death action would be identical to those involved in the personal injury claims, the only possible "prejudice" to Mead Johnson if the amendment were permitted would be the necessity for further discovery regarding the separate items of damage recoverable under N.J.S.A. 2A:31-5 4 and the persons entitled to such damages under N.J.S.A. 2A:31-4. 5 The court undoubtedly has a substantial interest in disposing of old cases. But that interest is not so great as to require a litigant to initiate a separate lawsuit on a wrongful death claim growing out of the same transactions giving rise to the pending causes of action. Thus, Goodman urges that the refusal of the district court to permit the amendment in the circumstances of this case where there would be no substantial prejudice to the adverse party and there is no evidence that the recent assertion of the wrongful death claim is a dilatory trial maneuver was an abuse of discretion. 6

A conclusion that the court should not have refused to permit the amendment, however, would not end the inquiry because a question would remain whether or not the wrongful death action is time-barred. The New Jersey wrongful death action has a separate statute of limitations, N.J.S.A. 2A:31-3, which provides that:

Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.

The amended complaint in this case was filed on June 25, 1974, within two years of Mrs. Goodman's death. But this fact alone does not mean that the wrongful death claim is timely. While the New Jersey courts have recognized that the survivor's claim under the Wrongful Death Act is an independent cause of action with its own limitations period and not a derivative of the decedent's personal injury claim, they have placed a gloss on the literal language of N.J.S.A. 2A:31-1 and N.J.S.A. 2A:31-3 inextricably linking the two. According to this gloss a cause of action under the Wrongful Death Act does not vest in the survivor if the decedent died after the expiration of the two year statutory period for commencing a personal injury action without having done so. 7 Thus, the viability of the wrongful death action in this case turns on whether or not Mrs. Goodman's personal injury action was time-barred when it was filed. If it was, then the wrongful death action was also barred even though brought within the time permitted by N.J.S.A 2A:31-3. If it was not, the wrongful death claim was timely and should be heard. Redick v. Rohm & Haas Co., supra. We turn, then, to the New Jersey law on limitations of personal injury actions.

III. The New Jersey Personal Injury Statute of Limitations

and the "Discovery Rule"

N.J.S.A. 2A:14-2 provides that:

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.

Whether the plaintiff asserts a legal theory of negligence or of breach of warranty, this statute covers all personal injury claims. 8 The same statute applies to a husband's per quod claim, which is only maintainable because of injury to his wife. 9 But the statute is silent as to when "the cause of any such action shall have accrued." In Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961), the Supreme Court of New Jersey first announced that the two year statute of limitations on a medical malpractice action did not begin to run when the negligence occurred, but commenced instead when the plaintiff knew or had reason to know of the presence in his body of a post-operative foreign object. But the "discovery" rule soon evolved, extending both outside the malpractice field and to the point where the statute did not begin to run until the injured party knew, or reasonably should have known, not only of the injury but also of the basis for an actionable claim. This development is traced in Justice Mountain's opinion in Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). 10

In this case it is undisputed that Mrs. Goodman was aware she had thrombophlebitis in June of 1967 and was aware she had cancer after a biopsy on February 27, 1969. Thus, at least as to the thrombophlebitis claim, the critical inquiry in determining when "the cause of any . . . action shall have accrued" against Mead Johnson for Mrs. Goodman's personal injuries is when she knew, or reasonably should have known, that she had a basis for such a claim. Even then the application of the "discovery" rule is not automatic. As Justice Mountain emphasized in Lopez v. Swyer:

The issue will be whether or not a party, either plaintiff or counterclaimant, is equitably entitled to the benefit of the discovery rule. All relevant facts and circumstances should be considered. The determinative factors may include but need not be limited to: the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, whether the delay may be said to have peculiarly or unusually prejudiced the defendant. The burden of proof will rest upon the party claiming the indulgence of the rule.

62 N.J. at 275-76; 300 A.2d at 567-68 (footnote omitted).

The district court did not reach any of these equitable considerations. Instead, it granted summary judgment on both personal injury claims and on Mr. Goodman's per quod claim, because it found that Mrs. Goodman knew or should have known that she had a claim against Mead Johnson for the thrombophlebitis on or about June 19, 1967.

It is significant for our consideration of the propriety of that ruling that under New Jersey law the issue of when the discovery of an actionable claim occurred is a question of fact for the court and not for the jury. Again borrowing Justice Mountain's expression in Lopez v. Swyer:

It is true that the time of discovery is a question of fact, and so could be left to the jury. But, as we have indicated, the matter does not rest there. It...

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