Green v. A.P.C. (American Pharmaceutical Co.)
| Decision Date | 20 August 1998 |
| Docket Number | No. 65641-0,65641-0 |
| Citation | 960 P.2d 912,136 Wn.2d 87 |
| Court | Washington Supreme Court |
| Parties | , Prod.Liab.Rep. (CCH) P 15,320 Kathleen M. GREEN and Joshua Green IV, wife and husband, Respondents, v. A.P.C. (AMERICAN PHARMACEUTICAL CO.); Kirkman Laboratories, formerly Kirkman Pharmaceutical Co.; Eli Lilly & Company; E.R. Squibb & Sons; and Stanlabs, Petitioners. |
Messina Law Firm, Stephen Bulzomi, John Messina, De Costa Law Firm, Virginia L. De Costa, Tacoma, for Respondents.
Lane, Powell, Spears & Lubersky, Michael King, Linda Clapham, Seattle, Amicus Curiae on behalf of Washington Defense Trial Lawyers.
Harbaugh & Bloom, Gary Bloom, Bryan P. Harnetiaux, Debra Stephens, Spokane, Amicus Curiae on behalf of Washington State Trial Lawyers Association.
Schroeter, Goldmark & Bender, Janet L. Rice, William J. Rutzick, Mark Leemon, Kristin M. Houser, Sandra E. Widlan, Seattle, Amicus Curiae on behalf of Schroeter, Goldmark & Bender.
We are asked in this case to decide if distinct statutory limitations periods apply to putatively separate and distinct injuries arising from exposure to toxic products. We reaffirm the basic rule that for purposes of the statute of limitations a cause of action claiming harm from exposure to a toxic product accrues when the plaintiff knew or should have known the essential elements of the claim. As to the harm element of a claim, the plaintiff's action accrues ordinarily upon awareness of some appreciable injury caused by the exposure to the defendant's toxic product even if the full extent of the harm is unknown. The plaintiff is also charged with exercising due diligence to learn of the claim; if the plaintiff fails to exercise due diligence, he or she is charged with the knowledge due diligence would have revealed.
In this case, we affirm the Court of Appeals, which reversed the trial court's order on summary judgment because of the lack of any evidence in the record regarding what Kathleen Green discovered, or could have discovered, prior to 1992 regarding a possible diagnosis of a T-shaped uterus arising out of her mother's ingestion of DES (diethylstilbestrol). We also affirm the Court of Appeals' reversal of the trial court's summary dismissal of Joshua Green's
loss of consortium claim. We remand the case to the trial court for further proceedings consistent with this opinion.
1. Does the statute of limitations bar the Greens' claim because Kathleen knew or should have known, more than three years before she filed the present action, of her T-shaped uterus?
2. Has Mr. Green stated a claim for loss of consortium?
DES was prescribed between 1947 and 1971 to prevent miscarriages and other types of prenatal accidents. 1 As of 1966, Kathleen Green's mother, Joanne McCutchen, a nurse, had a 10-year history of pregnancy loss due to such prenatal accidents. When she became pregnant with Kathleen, her obstetrician prescribed DES. Kathleen was born on April 28, 1967. Kathleen concedes she understood by age 14 she was "a DES daughter."
In 1981, a doctor diagnosed Kathleen with having what he called a cockscomb or hooded cervix. A cockscomb cervix is a change caused by DES exposure. Kathleen says she had no idea at the time what that meant, but knew that because she was a DES daughter she needed careful monitoring of her condition by frequent pap smears.
In 1986, when she was 19, Kathleen had an abnormal pap smear, revealing a cervical problem. Her doctor performed a colposcopy and biopsies. She subsequently underwent cryosurgery for a precancerous condition and had acid treatments to prevent spreading of the precancerous cells. The treatment was successful. Kathleen understood then that her condition was due to DES exposure. She asserts, however, she "had no idea that DES would Ms. Green claims she first learned of the potential for DES-caused reproductive problems after she visited her current counsel, John Messina, in the fall of 1991. Messina informed her she may have other damage due to DES. Evidently in response to Messina's information about the possibility of other DES consequences, she underwent a hysterosalpingogram (HSG), an X-ray procedure, in January 1992, which revealed her T-shaped uterus. 2
impact my reproductive capabilities." Clerk's Papers at 228. Kathleen married Joshua Green IV in June 1988
Ms. Green became pregnant in the summer of 1994. In November 1994, she went into premature labor and was confined to her bed with medication and home uterine contraction monitoring. She was hospitalized several times during her pregnancy, but delivered a normal 7 lb., 6 oz. boy, Joshua Green V, by cesarean section on March 27, 1995. Ms. Green's postoperative course was normal, and she was discharged from the hospital three days later. As the baby's due date was April 15, 1995, he was 19 days premature.
The Greens filed the present lawsuit on September 27, 1994, after Ms. Green had been pregnant for approximately three months. They named five defendants, all pharmaceutical companies: American Pharmaceutical Company, Kirkman Laboratories, Eli Lilly & Company, E.R. Squibb & Sons, and Stanlabs (collectively, Eli Lilly). The Greens alleged strict liability, negligence, and failure to warn, and sought damages for the cockscomb cervix, the constant monitoring of her condition by pap smears, the colposcopy and biopsies, the cryosurgery and acid treatments, and problems with the birth of their child. Mr. Green alleged loss of consortium.
After conducting discovery, Eli Lilly, joined by the other defendants, moved for summary judgment in November 1995. Eli Lilly based its motion for dismissal on the statute of limitations, arguing the Greens knew or should have On appeal, Division One of the Court of Appeals reversed in a published opinion, finding that separate statutory limitations periods were applicable for the "separate and distinct" injuries to Kathleen Green from her mother's DES ingestion. The court found questions of fact present as to when the statute of limitations accrued for each of the distinct injuries to Ms. Green and Mr. Green's loss of consortium claim. Green v. A.P.C., 86 Wash.App. 63, 935 P.2d 652 (1997). We granted review.
known of the injuries they complained of more than three years prior to the time the Greens filed suit. Eli Lilly also argued Mr. Green's loss of consortium claim failed because no loss of consortium claim exists for premarital torts. In the [960 P.2d 915] course of resisting the defendants' motion, the Greens conceded that all of Ms. Green's claims except those pertaining to her T-shaped uterus were time-barred. The trial court granted the motions for summary judgment dismissing the Greens' action against the defendants. The trial court also dismissed Mr. Green's loss of consortium claim.
On appeal from summary judgment, we engage in the same inquiry as the trial court. Tanner Elec. Co-op. v. Puget Sound Power & Light Co., 128 Wash.2d 656, 668, 911 P.2d 1301 (1996). We review the motion for summary judgment de novo, and treat all facts and inferences therefrom in a light most favorable to the nonmoving party. Fell v. Spokane Transit Auth., 128 Wash.2d 618, 625, 911 P.2d 1319, (1996). If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, we uphold summary judgment. CR 56(c).
The parties here ask us to apply "the statute of limitations" to the Greens' claims, and, yet, they do not tell us if the applicable statute is RCW 4.16.080(2), the general statute RCW 4.16.080(2) limits to three years a person's ability to file a claim for injuries. However, under Washington's discovery rule, a cause of action does not accrue until a party knew or should have known the essential elements of the cause of action--duty, breach, causation, and damages. Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 598 P.2d 1358 (1979), superseded by statute as stated in Wood v. Gibbons, 38 Wash.App. 343, 685 P.2d 619 (1984); Sahlie v. Johns-Manville Sales Corp., 99 Wash.2d 550, 663 P.2d 473 (1983); In re Estate of Hibbard, 118 Wash.2d 737, 826 P.2d 690 (1992); Allen v. State, 118 Wash.2d 753, 758, 826 P.2d 200 (1992). The discovery rule does not require a plaintiff to understand all the legal consequences of the claim. As we said in Reichelt v. Johns-Manville Corp., 107 Wash.2d 761, 772, 733 P.2d 530 (1987):
for negligence claims, or RCW 7.72.060(3), the statute for claims under Washington's product liability and tort reform act of 1981. Both statutes employ different language regarding the accrual of claims, but the parties apparently agree that there is no difference in the outcome of this case if either statute applies.
Mr. Reichelt would have us adopt a rule that would in effect toll the statute of limitations until a party walks into a lawyer's office and is specifically advised that he or she has a legal cause of action; that is not the law.
In enacting RCW 7.72.060(3), the Legislature provided that a cause of action under RCW 7.72 accrued when the injured party "discovered or in the exercise of due diligence should have discovered the harm and its cause." See North Coast Air Servs., Ltd. v. Grumman Corp., 111 Wash.2d 315, 759 P.2d 405 (1988).
Regardless of whether RCW 4.16.080(2) or RCW 7.72.060(3) is applied here, 3 a cause of action may accrue for purposes of the statute of limitations if a party should have discovered salient facts regarding a claim. See, e.g The general rule in Washington is that when a plaintiff is placed on notice by some appreciable harm occasioned by...
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