Lareau v. Page

• Decision Date: 27 December 1993
• Docket Number: Civ. A. No. 90-11629-Y.
• Citation: 840 F. Supp. 920
• Parties: Gail A. LAREAU and Michael Lareau, Individually, and as Parents and Next Friends of Ashley Lareau and Christopher Lareau, Plaintiffs, v. Larry K. PAGE, M.D.; American Cyanamid Company; Sequa Corporation; Chromalloy Pharmaceutical, Inc.; Forest Pharmaceutical Laboratories, Inc.; Tenneco Inc.; and Tennessee Gas Pipeline Company, Defendants.
• Court: U.S. District Court — District of Massachusetts

840 F. Supp. 920

Gail A. LAREAU and Michael Lareau, Individually, and as Parents and Next Friends of Ashley Lareau and Christopher Lareau, Plaintiffs, v. Larry K. PAGE, M.D.; American Cyanamid Company; Sequa Corporation; Chromalloy Pharmaceutical, Inc.; Forest Pharmaceutical Laboratories, Inc.;¹ Tenneco Inc.; and Tennessee Gas Pipeline Company, Defendants.

Civ. A. No. 90-11629-Y.

United States District Court, D. Massachusetts.

December 27, 1993.

COPYRIGHT MATERIAL OMITTED

Joan A. Lukey, Mark G. Matuschak, Hale & Dorr, Boston, MA, for Gail A. Lareau and Michael Lareau.

Lionel H. Perlo, Ficksman & Conley, John D. Cassidy, Ficksman & Conley, Boston, MA, for Larry K. Page.

Rebecca J. Benson, Thomas J. Sartory, Ronald B. Shwartz, Goulston & Storrs, Boston, MA, for American Cyanamid Co. and Tennessee Gas Pipeline Co.

Lawrence G. Cetrulo, Kevin E. Young, Peabody & Arnold, Michael J. Grace, Burns & Levinson, Boston, MA, for Sequa Corp. and Chromalloy Pharmaceuticals, Inc.

Mark E. Cohen, McCormack & Epstein, Boston, MA, for Forest Pharmaceutical Laboratories, Inc.

MEMORANDUM AND ORDER

YOUNG, District Judge.

In this action the plaintiff, Gail Lareau, her husband Michael Lareau, and their children, Christopher and Ashley, allege a variety of personal injury and product liability claims against Dr. Larry K. Page and six corporate defendants. Gail Lareau brings claims for negligent rendition of medical care, negligent infliction of emotional distress, and violations of the Massachusetts Consumer Protection Act, Mass.Gen.L. ch. 93A, against Dr. Page. Gail Lareau also alleges causes of action in negligence, breach of warranty, failure to warn, negligent infliction of emotional distress, and violations of Mass.Gen.L. ch. 93A against the corporate defendants. Her husband and children bring claims against all the defendants for loss of consortium, including loss of companionship and affection, negligent infliction of emotional distress, and violations of Mass.Gen.L. ch. 93A.

Dr. Page and the corporate defendants Sequa Corporation ("Sequa") and Chromalloy Pharmaceutical, Inc. ("Chromalloy") moved for summary judgment, arguing that Gail Lareau's claims are barred by the relevant statutes of limitation, and that the other plaintiffs' claims, being derivative, fail in turn. The plaintiffs opposed the motions, contending first that, at the time of the accrual dates suggested by the defendants, Gail Lareau was not on notice of her injury, and second, that there are separate accrual dates for the claims advanced by the minor children and Michael Lareau. This Court, disagreeing entirely with the plaintiffs' first contention, agreeing only in part with the second, and recognizing that the evidentiary record submitted by the parties presented no material factual dispute, granted the defendants' motions on all claims advanced by Gail, Michael, and Ashley Lareau, and granted in part and denied in part the motions concerning the claims advanced by Christopher Lareau.

While the Court was considering the statute of limitations issue, the pharmaceutical companies moved for summary judgment on the ground of the learned intermediary rule. After further pre-trial proceedings, this Court allowed this motion on the eve of trial.

Christopher Lareau's claim for loss of consortium against Dr. Page survived all these rulings. After an ably-presented five day trial, the ten person² jury answered "No" to the question "Do you find that any negligence on the part of Dr. Page caused injury to Mrs. Lareau?" Consonant with the judgment of the jury and the rulings of the Court, the clerk thereupon entered judgment for all the defendants on all of the plaintiffs' claims. Christopher Lareau promptly moved for a new trial. After hearing, the Court denied that motion on December 20, 1993.

This memorandum explains these rulings.

I. UNDISPUTED FACTS — THE SUMMARY JUDGMENT RECORD

In March, 1970, Gail Lareau (then Melanson) was admitted to Children's Hospital in Boston and referred to Dr. Larry K. Page, a neurosurgeon. Dr. Page performed a craniotomy and drained a left frontal cerebral abscess, injecting a small amount of Thorotrast, a radioactive contrast dye, to facilitate post-operative observation of the abscess cavity.

Post-surgery, Mrs. Lareau remained healthy for some years, married Michael Lareau and gave birth to their first child, Christopher. On June 13, 1984, she arrived at the Burbank Hospital in Fitchburg complaining of severe headaches. On admission she was found to be having a grand mal seizure. Her attending physician, Dr. Richard Cornell, noted that the CAT scan taken on admission revealed a "large calcified mass in the left brain due to the old lesion." In the discharge summary, Dr. Cornell also noted "a density overlying the lateral aspect of the left frontal sinus ... due to retained contrast placed at the time of removal of her brain abscess, rather than calcification." Mrs. Lareau herself never saw these reports.

Upon her discharge from Burbank Hospital, Mrs. Lareau was referred to Dr. Edwin G. Fischer, a neurosurgeon at Boston's Children's Hospital. Two weeks after her consultation with Dr. Fischer, Mrs. Lareau received a letter dated July 6, 1984, in which he warned her that there was "a theoretical possibility" that "the Thorotrast that was left following the treatment of your brain abscess" could "induce a tumor in surrounding brain tissue over a total period of about 20 years." Dr. Fischer recommended surgical removal. In her deposition testimony, Mrs. Lareau said Dr. Fischer's recommendation had come as a "big shock," both because her understanding at the end of their meeting had been that "everything was fine," and because she had never before heard the word Thorotrast.

On September 12, 1984, she went for a second opinion from Dr. R. Michael Scott, a neurosurgeon at New England Medical Center who, while confirming the existence of the Thorotrast residue, declined to recommend surgery unless his own research on Thorotrast turned up "good evidence that a problem really does exist." Mrs. Lareau, after consulting with Dr. Cornell, decided not to go ahead with surgery on "just a theoretical possibility."

Mrs. Lareau continued to see Dr. Fischer, returning in September, 1985 and again in March, 1987 for cranial CAT scans and consultations. Both scans indicated the presence of the Thorotrast, and no indication of tumor formation. In 1986, Ashley Lareau was born. In a letter dated November 11, 1988, Dr. Fischer informed Mrs. Lareau of a recently reported case in which a tumor had been found twenty-one years after Thorotrast had been used during brain surgery. Cautioning Mrs. Lareau that "... this is sufficient cause for us to reconsider things and obtain a new scan ...," he urged her to come in as soon as possible. Mrs. Lareau went to see Dr. Fischer in March, 1989. She described that visit as having been prompted by her worsening "headaches," and said Dr. Fischer reported that "everything looked fine according to my scan" and once again recommended surgery to remove the Thorotrast, this time referring to the report of brain cancer in the literature.

Mrs. Lareau maintains it was not until June 16, 1989, when she watched a report on the dangers of Thorotrast on the ABC News program 20/20 that she discovered the harm done to her by the defendants' actions. Mrs. Lareau stated that after the program "she was an emotional wreck" and began to suffer worsening headaches and painful "pulling" sensations allegedly attributed to her emotional distress. In the spring of 1990, she went to the Massachusetts General Hospital ("MGH") to see a new neurologist, Dr. Amy Pruitt, who referred her to a neurosurgeon, Dr. Robert Ojemann.³ Mrs. Lareau had surgery to remove the Thorotrast on August 13, 1990, shortly after having begun legal action against Dr. Page and the corporate defendants. The surgical report revealed a calcified mass caused by the Thorotrast, a Thorotrast "granuloma." Post-surgery, Mrs. Lareau suffered painful cranial swelling and exhaustion, and was unable to leave her house. Her emotional distress, the accompanying worsening headaches, and the surgery have affected her relationship with her husband, Michael. Both Ashley and Christopher Lareau have suffered emotional problems relating to their mother's condition, and Christopher has received necessary psychological counselling concerning such emotional problems.

Neither Sequa nor Chromalloy ever distributed or manufactured Thorotrast. Chromalloy is and always has been an independent and wholly-owned subsidiary of Chromalloy American Corporation which, in turn, is an independent and wholly-owned subsidiary of Sequa. The plaintiffs allege that Chromalloy, as a result of a merger, succeeded to the Thorotrast-related liabilities of Fellows Medical Manufacturing Company, Inc. which, for a limited period of time, manufactured and distributed Thorotrast and, apparently, was the only company so engaged. Because the Court must examine the record "in the light most favorable to ... the party opposing the motion," Poller v. Columbia Broadcasting Sys. Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), Sequa and Chromalloy recognize that, on this motion, the Court must accept as true the plaintiffs' allegations that Sequa and Chromalloy are liable, as successor corporations, for Thorotrast-related liabilities of Fellows Medical Manufacturing Company, Inc.

Assuming, arguendo, that the Thorotrast prescribed by Dr. Page was manufactured by a company for whose actions the defendants might be liable, the Thorotrast would have been distributed sometime between November 18, 1966 and the end of November, 1968 by Fellows-Testagar Co., a Division of Fellows Medical Manufacturing Company, Inc. ("Fellows-Testagar"). This is so because: (1) Mrs. Lareau received the Thorotrast on March 31, 1970; (2) Thorotrast was not distributed for human use in the United States from about June...