In re Tetracycline Cases

Decision Date10 April 1989
Docket NumberNo. 83-0034-CV-W-O-A,83-1200-CV-W-1.,83-0034-CV-W-O-A
Citation729 F. Supp. 662
PartiesIn re TETRACYCLINE CASES. Karen WAYNE, Plaintiff, v. LEDERLE LABORATORIES, et al., Defendants.
CourtU.S. District Court — Western District of Missouri

William T. Bernard, Bernard, Gatrost, Rice & DiCavalcante, Timothy H. Bosler, Kansas City, Mo., and Roger G. Burnett, Sevier, Burnett & Maloney, Liberty, Mo., for plaintiff.

Elizabeth D. Badger, Morrison, Hecker, Curtis, Kuder & Parrish, Thomas F. Fisher, Shughart, Thomson & Kilroy, Patrick Lysaught, Sherman, Wickens, Lysaught, and W. Russell Welsh, Polsinelli, White & Vardeman, Kansas City, Mo., for defendants.

ORDER

WHIPPLE, District Judge.

Before the court is a motion filed October 25, 1988, by defendant E.R. Squibb & Sons, Inc., for summary judgment on the grounds plaintiff's claims are barred by the statute of limitations. Plaintiff filed a response in opposition on November 28, 1988. On January 11, 1989, Squibb filed a reply in support of the motion. For the reasons set forth below, the motion will be granted and summary judgment will be entered in favor of defendant and against plaintiff.

I. Statement of the Case

In this products liability suit, plaintiff alleges she suffered tooth discoloration as a result of ingesting a tetracycline product manufactured by defendant. Squibb argues that the Missouri borrowing statute requires application of a Kansas statute of limitations because plaintiff was a Kansas resident from the age of two years until she reached adulthood. Under the statute, as urged by Squibb, the claims would be barred.

Plaintiff's response is threefold. She asserts that the claim originated in Missouri, where the product was prescribed, where she learned of the alleged cause of the tooth discoloration, and where damages allegedly were ascertained. Assuming the claim originated in Missouri, plaintiff argues first that the Missouri borrowing statute should not apply. She argues alternatively that, if the Missouri borrowing statute applies, the Missouri tolling provision also should apply and extend the accrual time to when she became 21 years old (rather than 18 years, as in Kansas). Finally, she argues that Missouri's five-year limitation should apply rather than the Kansas two-year limitation.

II. Facts

Plaintiff was born June 27, 1962, when her family lived in Missouri. About October 26, 1964, she and her family moved to Kansas, where she remained a resident continuously until she reached college age. Meanwhile, she was treated by a physician in Missouri. The physician prescribed an antibiotic drug called Mysteclin-F, which contains tetracycline. The product was purchased in a Missouri pharmacy, and was ingested by plaintiff when she was in Missouri. The product was ingested on nine occasions from February 4, 1963, to November 1, 1966.

Beginning in April 1963, defendant inserted warnings in tetracycline packages that the products could cause tooth discoloration if ingested during tooth formation years. The warning also appeared in each annual edition of the Physician's Desk Reference beginning in 1964. The side-effect was discussed in numerous articles and notices appearing in various major medical and dental journals between 1963 and 1969.

In 1969, plaintiff's permanent teeth erupted and she discovered her teeth were discolored. Plaintiff was informed that year in her dentist's office, in Missouri, that tetracycline ingestion could cause such discoloration. Plaintiff became 18 years old on June 27, 1980. She commenced this lawsuit on November 2, 1983, in federal court in Missouri. Plaintiff became 21 years old on June 27, 1983.

The question here is whether a statute of limitations bars plaintiff's claims. The critical preliminary issues, however, are which statute of limitations applies and when the limitations period began.

III. Discussion
A. Borrowing Statute

Ordinarily a five-year limitation applies to personal injury actions against product manufacturers. See, Mo.Rev.Stat. §§ 516.100 and 516.120, et seq. However, if a cause of action originates outside Missouri, a "borrowing statute" is used to determine the limitations period. When Mo.Rev.Stat. § 516.190 applies, it requires use of the statute of limitations for the state where the claim originated. The purpose of a borrowing statute is primarily to prevent a plaintiff from forum shopping for a statute of limitations. Patch v. Playboy Enterprises, 652 F.2d 754, 756 (8th Cir.1981). In Patch, at 756, the court said such a statute prevents a plaintiff from gaining more time to bring an action merely by suing in a forum other than where the cause of action accrued. Thus, it will be necessary to determine where plaintiff's claim originated, as well as when it originated, to find whether the claim is barred.

1. When Claim Originated

In Patch, at 755 footnotes 3 and 6, the court cited numerous cases for the proposition that Missouri courts have borrowed other states' statutes of limitations when the last act necessary for the cause of action or the injury occurred outside Missouri. In that case, at 757, the court specifically rejected the theory that Missouri's own limitations statute should be used if the most significant contacts were with Missouri. In Dorris v. McClanahan, 725 S.W.2d 870, 872 (Mo. en banc 1987), the court held that the "significant contacts" test in the Restatement Second on Conflict of Laws, Section 145, was preempted by the Missouri legislature upon passage of Mo.Rev.Stat. § 516.100. In pertinent part, Mo.Rev.Stat. § 516.100 provides:

"that for the purposes of Sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment...." In recent years, courts have had several peculiar occasions to determine when a cause of action accrues.

In King v. Nashua Corp., 763 F.2d 332, 333 (8th Cir.1985), King was a meat wrapper for 26 years and she brought a products liability action to recover for a respiratory disease associated with inhaling fumes from thermal labels. King was hospitalized with the respiratory illness in July 1977. Incorrectly thinking the plastic wrap caused her injury, King filed suit in April 1978 against the wrap manufacturers. She did not learn until 1982 that fumes from thermal labels, not plastic wrap, caused her injuries, and she did not file suit in Missouri until February 1984. The court said, at 333, "Although King may not have discovered her injuries were likely caused by the thermal labels until 1982, the medical community was aware of the causation link as early as 1975." Thus, the damage was ascertainable when King was hospitalized in July 1977, and the statute of limitations began to run on that date and expired in July 1982. Id., at 334. The court noted, at 333, Missouri courts have made it clear that the statute focuses on the damage and not the discovery of its cause. See, Jepson v. Stubbs, 555 S.W.2d 307, 312-313 (Mo. 1977) (en banc); Lato v. Concord Homes, Inc., 659 S.W.2d 593, 594-595 (Mo.App. 1983).

In Renfroe v. Eli Lilly & Co., 686 F.2d 642 (8th Cir.1982), two plaintiffs sued on injuries from in utero exposure to diethylstilbestrol (DES). Although the physiological and genetic injuries occurred while they were in utero, their causes of action did not accrue until many years later. The court said, "When the cancer developed and became capable of ascertainment, the final element of the cause of action occurred, and their respective causes of action accrued...." Id. at 647. A problem remained, however, because one plaintiff developed cancer in 1971, but the medical community did not generally accept the causal link between DES and cancer until 1972. See, Renfroe v. Eli Lilly & Co., 541 F.Supp. 805, 809-810 (E.D.Mo.1982), where the district court had corrected that inequity by finding that the cause of action accrued when she (1) suffered reasonably discoverable injuries, and (2) knew or, in the exercise of reasonable diligence should have known, whichever occurred first, that her injuries were caused by DES. Renfroe, supra, 686 F.2d at 646 n. 6.

The rule to be drawn from these cases is one which balances fairness and the policy considerations behind limitations periods. The statute requires injured parties to proceed expeditiously to press their claims, thereby protecting potential defendants from the unfair burden of defending acts done a long time prior. Of course, it would be improper to bar plaintiffs at the end of the period merely because their damages were not manifest yet, or because the nature or cause of damages could not be ascertained (unless the legislature shows it intends such a result). Thus, the accrual date does not arise until the damages and cause are reasonably ascertainable.

However, this rule does not protect the injured party who is dilatory in determining damages and cause. Just as statutes of limitations require a party to proceed with dispatch to press a claim, a party is and should be required to proceed diligently to find whether a claim exists. If a party has suffered injury, and the extent and cause can be determined, the party has and should have the burden of making that determination in a reasonable time.

As discussed above, Renfroe does not require that the plaintiff have actual knowledge of the nature, extent and cause of damages. Requiring actual knowledge would permit a party to put putative defendants at a disadvantage by failing to ascertain damages, all contrary to the policy underlying statutes of limitations. Rather, the injured party has the burden to exercise reasonable diligence in ascertaining whether there is a cause of action. Such a requirement is consistent with the policy behind statutes of limitations.

With that principle in mind, the next question is when plaintiff's injury was capable of ascertainment. In this instance, the...

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    ...of a cause of action does not arise until the damages and the cause of the damages are reasonably ascertainable. In re Tetracycline Cases, 729 F.Supp. 662, 665 (W.D.Mo.1989). Damages are capable of ascertainment to initiate the running of the limitation period when a plaintiff with a recogn......
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    ...causation link as early as 1975", although the plaintiff did not discover the cause of her injuries until 1982. In In re Tetracycline Cases, 729 F.Supp. 662, 665 (W.D.Mo.1989), in finding the plaintiff's claim time barred, the court noted that the causal connection between the plaintiff's i......
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