Lareau v. Page
| Decision Date | 08 August 1994 |
| Docket Number | No. 94-1299,94-1299 |
| Citation | 39 F.3d 384 |
| Parties | Prod.Liab.Rep. (CCH) P 14,085 Gail A. LAREAU and Michael Lareau, Individually and as Parents and Next of Friends of Ashley Lareau and Christopher Lareau, Plaintiffs, Appellants, v. Larry K. PAGE, M.D., Sequa Corporation, and Chromalloy Pharmaceutical, Inc., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Joan A. Lukey with whom Charles P. Kindregan and Hale and Dorr, Boston, MA, were on brief, for appellants.
John D. Cassidy with whom John M. Dellea and Ficksman & Conley, Boston, MA, were on brief, for appellee Larry K. Page, M.D.
Lawrence G. Cetrulo with whom Kevin E. Young, David B. Frederick, and Peabody & Arnold, Boston, MA, were on brief, for appellees Sequa Corp. and Chromalloy Pharmaceutical, Inc.
Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.
Plaintiffs-appellants Gail Lareau, her husband Michael Lareau, and their children, Christopher and Ashley Lareau, filed suit against defendants-appellees Dr. Larry K. Page and parent-subsidiary corporations Sequa Corporation and Chromalloy Pharmaceutical, Inc. (collectively, "CPI") for injuries arising from the injection of the contrast medium Thorotrast into Mrs. Lareau in 1970. All of the Lareaus appeal various pre-trial rulings of the district court, and Christopher appeals an adverse jury verdict in his loss-of-consortium action against Dr. Page, the only part of this case decided by a jury. We hold that the statutes of limitations bar all of the Lareaus' claims except their consumer-protection claims against Dr. Page and that the Lareaus are not entitled to recover on their consumer-protection claims against Dr. Page. Accordingly, we affirm the district court's entry of judgment for defendants.
In March 1970, Mrs. Lareau (then Gail Melanson, aged 17), suffering from severe headaches and flu-like symptoms, was admitted to Children's Hospital in Boston, where she came under the care of Dr. Page, a neurosurgeon. Fearing that Mrs. Lareau had a malignant brain tumor, Dr. Page performed a craniotomy and determined instead that she had a brain abscess, which is a life-threatening accumulation of pus that forms within a capsule of tissue in the brain. Dr. Page aspirated the abscess, which was approximately the size of a tennis ball. He then injected a small amount of Thorotrast, a radioactive contrast medium, into the abscess cavity to facilitate its post-operative radiologic observation. Dr. Page did not inform or warn Mrs. Lareau or her parents of the dangers of Thorotrast or obtain their consent for using it prior to injecting the substance into her abscess cavity. Four days later, using Thorotrast-enhanced x-rays, Dr. Page detected the recurrence of Mrs. Lareau's abscess. He aspirated the abscess again and, shortly thereafter, discharged Mrs. Lareau.
Post-surgery, Mrs. Lareau remained healthy for fourteen years; she grew into adulthood, married Mr. Lareau and, in 1983, gave birth to their first child, Christopher. On June 13, 1984, however, Mrs. Lareau was admitted to the Burbank Hospital in Fitchburg, Massachusetts, suffering from severe headaches and a grand mal seizure. Her attending physician, Dr. Richard Cornell, noted that the CT 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 ... probably due to retained contrast [medium] placed at the time of the 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 Children's Hospital in Boston. Two weeks after she consulted with Dr. Fischer, Mrs. Lareau received a letter from him, dated July 6, 1984, in which he warned her that there was a "theoretical possibility" that "the Thorotrast that was left following treatment of your brain abscess" could "induce a tumor in surrounding brain tissue over a total period of about 20 years." Dr. Fischer's letter continued:
Since it [the Thorotrast] is located in an area of brain that it would be safe to remove it from, I am recommending that it be removed to avoid the risk of a future tumor. Unfortunately I cannot tell you what the chances are of developing a tumor, but with the Thorotrast out I don't think you would have to worry about it further.
On September 12, 1984, Mrs. Lareau went to Dr. R. Michael Scott, a neurosurgeon at New England Medical Center, for a second opinion. While confirming the existence of the Thorotrast, Dr. Scott did not recommend surgery. After consulting further with Dr. Cornell, Mrs. Lareau decided not to go ahead with surgery on, as she said in her deposition testimony, "just a theoretical possibility."
Mrs. Lareau continued to consult Dr. Fischer, returning in September 1985 and March 1987 for cranial CT scans. Both scans indicated the presence of Thorotrast but no tumor formation. In 1986, between these two consultations, Ashley Lareau was born.
In a letter dated November 11, 1988, Dr. Fischer again wrote to Mrs. Lareau:
As you know, we have been concerned about the Thorotrast used to treat your brain abscess. The theoretical possibility has always been that the remaining material could cause the formation of a tumor. This past year a report of such a case has appeared in the neurosurgical literature, the tumor occurring 21 years after treatment of the abscess.
I think this is sufficient cause for us to reconsider things and obtain a new scan....
Mrs. Lareau went to see Dr. Fischer in March 1989. Dr. Fischer again recommended surgery to remove the Thorotrast this time referring to the report of brain cancer in the literature.
On June 16, 1989, Mrs. Lareau watched a report on the dangers of Thorotrast on the ABC News program 20/20. Mrs. Lareau maintains that she did not discover the harm done to her by defendants' actions until she saw the 20/20 report. After the program, as she said in her deposition testimony, Mrs. Lareau was "an emotional wreck" and began to suffer worsening headaches and painful "pulling" sensations in her head.
Almost a year later, in the spring of 1990, on the advice of her attorney, Mrs. Lareau went to Massachusetts General Hospital to see a neurologist, Dr. Amy Pruitt, who referred her to a neurosurgeon, Dr. Robert Ojemann. On August 13, 1990, shortly after Mrs. Lareau had begun legal action against Dr. Page and CPI, Dr. Ojemann operated on Mrs. Lareau to remove the Thorotrast. Mrs. Lareau's post-surgical report revealed a calcified mass, or granuloma, caused by the Thorotrast. Following surgery, Mrs. Lareau suffered painful cranial swelling and exhaustion, was unable to leave her house, and was readmitted for observation. Her emotional distress, the accompanying worsening headaches, and the surgery allegedly affected her relationship with her husband and caused both Ashley and Christopher to suffer emotional problems, for which Christopher received psychological counseling.
On June 27, 1990, the Lareaus commenced their diversity action against Dr. Page and CPI. They brought suit against CPI for negligence, breach of warranty, failure to warn, loss of consortium, negligent infliction of emotional distress, and violations of the Massachusetts Consumer Protection Act, Mass.Gen.L. ch. 93A. Their action against Dr. Page sought recovery for medical malpractice, loss of consortium, negligent infliction of emotional distress, and violations of chapter 93A. The district court granted defendants' motions for summary judgment based on the applicable statutes of limitations with regard to all claims brought by Mrs. Lareau, Mr. Lareau, and Ashley. The district court granted CPI's motion for summary judgment on Christopher's negligent-infliction-of-emotional-distress claim; later, at the close of all of the evidence in Christopher's trial against Dr. Page, the district court granted Dr. Page judgment as a matter of law on Christopher's negligent-infliction-of-emotional-distress claim. 1 On the eve of trial, the district court also granted CPI's motion for summary judgment based on the learned-intermediary rule, which disposed of all of the Lareaus' claims against CPI. At the subsequent district court trial on Christopher's loss-of-consortium claim against Dr. Page, the jury returned a verdict for Dr. Page. This appeal followed.
As always, we review a district court's grant of summary judgment de novo and, like the district court, review the facts in a light most favorable to the non-moving party. See, e.g., Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir.1994). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, the nonmovant bears the burden of placing at least one material fact into dispute once the moving party offers evidence of the absence of a genuine issue. Crawford, 34 F.3d at 31; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
In cases such as this one, where jurisdiction is based on diversity of citizenship state statutes of limitations apply. See Fidler v. Eastman Kodak Co., 714 F.2d 192, 196 (1st Cir.1983). Under Massachusetts law, the Lareaus' medical-malpractice, negligence, and breach-of-warranty claims are all subject to three-year statutes of limitations. See Mass.Gen.L. ch. 260, Sec. 4 (medical malpractice); Mass.Gen.L. ch. 260, Sec. 2A (personal injury); Mass.Gen.L. ch. 106, Sec. 2-318 (breach of warranty). The...
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