Mack v. AH Robins Co., Inc.

• Decision Date: 30 June 1983
• Docket Number: No. Civ. 82-098-TUC-ACM.,Civ. 82-098-TUC-ACM.
• Citation: 573 F. Supp. 149
• Parties: Kathleen MACK, Plaintiff, v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Defendant.
• Court: U.S. District Court — District of Arizona

573 F. Supp. 149

Kathleen MACK, Plaintiff, v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Defendant.

No. Civ. 82-098-TUC-ACM.

United States District Court, D. Arizona, Tucson Division.

June 30, 1983.

Michael J. Vingelli, Richard Parrish, Tucson, Ariz., for plaintiff.

Thomas A. McGuire, O'Conner, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., for defendant.

MEMORANDUM OF DECISION AND ORDER

MARQUEZ, District Judge.

The defendant, A.H. Robins Company, Inc., has moved for summary judgment pursuant to Federal Rules of Civil Procedure, 56 and Local Rules of Practice 11(i). Hearing was had on June 6, 1983 after which the court took the matter under advisement.

Plaintiff asserts that her cause of action did not accrue until December of 1981 when she learned of the defective nature of the defendant's product through a newspaper article. And therefore her complaint, filed February of 1982, is within Arizona's two-year period.

Defendant asserts that the cause of action accrued when plaintiff was informed that her injury was caused by their product in August of 1979.

FACTUAL BACKGROUND

In 1971, plaintiff had her physician insert a contraceptive device known as a Dalkon Shield and manufactured by defendant company A.H. Robins. In August of 1979, plaintiff began suffering severe discomfort in the lower abdomen and her urinary tract and on August 17, 1979, was operated on for pelvic inflammatory disease. As a result of the pelvic inflammatory disease, plaintiff has had to undergo a complete hysterectomy precluding her from bearing children.

While in the hospital in August of 1979, the plaintiff was advised by her doctors that the Dalkon Shield had caused her infection. At the deposition of plaintiff taken January 21, 1983, she testified as follows:

Q Now how about the Dalkon Shield? What do you think it had to do with your infection in 1979?

A Well, I think it was the cause of it.

Q Did you ever discuss that with any of the doctors?

A Well, the doctors seem to be — they informed me, told me that.

Q Who was that?

A Whoever the staff doctors were that saw me.

Q In 1979, in your hospitalization you mean?

A Yes.

Q Were they pretty definite about that?

A They just certainly gave me that impression from the things they said, the kinds of things they asked me, the comments about never having another one and so forth, the fact that they removed it immediately ....

Since plaintiff's release from the hospital she has been under the treatment of Dr. John Long of Tucson for routine follow-up gynecologist care. In giving Dr. Long her medical history she had told him that she had gotten sick as a result of the Dalkon Shield. Her deposition testimony was:

Q And you talked about the Dalkon Shield? (With Dr. Long)

A I told him that I had had one.

Q Did you give any specifics like I had a Dalkon Shield, why would anybody let me have that, or I wish I wouldn't have had it now, and he agreed with you; things of that type?

A Well, sure, I wish I hadn't had it.

Q Did you express that to him and have him agree with you?

A I can't remember. I told him I had had one and I had gotten very sick from it.

In plaintiff's opposition to the defendant's motion for summary judgment she has attached an affidavit wherein she states that when her pelvic inflammatory disease occurred in 1979 and she underwent an operation at the University Hospital, no one told her that it was because the Dalkon Shield was defective or otherwise improperly manufactured or that the pelvic inflammatory disease was caused by some defect in the shield. She also states that because the physicians suggested she had been remiss in not having physical checkups for at least three years and that the presence of the IUD always requires periodic checkups, she believed at the time that the IUD was in some manner a contributing factor in her inflammatory disease. Plaintiff states also that she did not become aware of the defects in the Dalkon Shield itself until she read a story in the Arizona Daily Star dealing with the filing of a class action by another plaintiff. Finally, plaintiff states that before reading the newspaper account of the class action, she had never been told by any physician or surgeon or lay person that the Dalkon Shield itself, because of possible defects in its manufacture, might have been the cause of her sickness. Plaintiff filed her complaint in the district court on February 23, 1982.

DISCUSSION

WHAT STATUTE APPLIES

Defendant's motion for summary judgment is based on Arizona's two-year statute of limitations. Plaintiff, while conceding that the two-year period applies, is disputing how such statute is to be applied to the facts of this case. The plaintiff's version of the rule is that a cause of action does not accrue until the plaintiff actually discovers, or should have discovered with reasonable diligence, the defective nature of the product or the improper conduct of the manufacturer.

As pointed out before, Arizona's statute of limitations to be applied to the facts of this case is not in dispute. A.R.S. § 12-542 covers injuries done to the person of another. While plaintiff's complaint seeks damages for, among other things, negligence, breach of warranty, products liability, and fraudulent misrepresentation, all of these claims arise out of the same operative facts and sound in personal injury tort law.

In Wetzel v. Commercial Chair Company, 118 Ariz.App. 54, 500 P.2d 314, (1972), the plaintiff had been injured by a defective chair manufactured by the defendant, and had raised claims of breach of warranties among his tort claims. The court held that regardless of the pleading "tag" that was applied to the various causes of actions, the claim was essentially simply one of strict liability in tort, and that because the basic issues raised are primarily the same — the sale of a defective product, their injury resulting therefrom, and the damages, the court would therefore apply A.R.S. § 12-542 to the facts of the case and the two-year personal injury statute of limitations. Id. 500 P.2d at 317.

A.R.S. § 12-542 states in pertinent part:

Except as provided in §§ 12-551 and 12-564, there shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions:

1. For injuries done to the person of another.

A.R.S. § 12-551 applies to Product Liability actions and incorporates the two-year period of § 12-542. A.R.S. § 12-564 defines the statutes of limitations period for health care injuries (medical malpractice) and is of no relevance here.

THE "DISCOVERY RULE"

The legal issue the court must decide on this Motion for Summary Judgment is: when does the cause of action accrue for the purposes of starting the two-year limitation period?

The court has examined several Arizona cases to determine how the courts of this state have applied A.R.S. § 12-542. In Wetzel, supra, the court was faced with an issue of whether to apply a two-year statute for personal injury actions, or the four-year statute relating to "catch all" limitations period. The plaintiff had purchased an office chair from the defendant corporation, and was injured on November 1, 1967 when the chair broke. Over three years later, on November 2, 1970, the plaintiff filed his suit. The plaintiff had raised a claim of strict liability and a contract breach of warranty claim. While the court's discussion of the law centered around the issue of which limitations period to apply, once it concluded that it would apply the two-year limitation period, without discussion, it apparently determined that the cause of action accrued, within the meaning of A.R.S. § 12-542, at the time that the chair broke, causing the personal injuries to the plaintiff.

In Long v. Buckley, 129 Ariz. 141, 629 P.2d 557 (1981), the Arizona court held that, at least with respect to professional malpractice claims, the cause of action accrues when the plaintiff knew or should have known of defendant's conduct. Id. 629 P.2d at 559. Long dealt with a legal malpractice action against an attorney who had failed to file a lawsuit within the limitations period. The Long court relied on other malpractice cases such as Sato v. Van Denburgh, 123 Ariz. 225, 599 P.2d 181 (1979), and Yazzie v. Olney, Levy, Kaplan & Tenner, 593 F.2d 100 (9th Cir., 1979) to arrive at this rule.

In Long the court, at footnote 4, quoted the California Supreme Court where it discussed the reason for applying such a rule in legal malpractice actions. The California court rejected the rule previously in use, that a cause of action accrues at the time of the negligent act, explaining:

Upon reconsideration, we find that the rule as to legal malpractice contrasts with the rule as to accrual of causes of action against practitioners in all other professions; it ignores the right of the client to rely upon the superior skill and knowledge of the attorney; it denigrates the duty of the attorney to make full and fair disclosure to the client; it negates the fiduciary character of the attorney-client relationship.

We conclude that the statute of limitations for legal malpractice, as for all professional malpractice, should be tolled until the client discovers, or should discover, his cause of action. 629 P.2d at 560.

In Sato, a claim against the plaintiff's accounting firms, the court held that the rule in Arizona for when an action accrues is when the plaintiff knows, or in the exercise of reasonable diligence should have known, of the defendant's negligent conduct or when the plaintiff is first able to sue.

However, Sato, Yazzie, and Long all dealt with negligence actions against professionals. The policy considerations discussed by the courts in Long do not have the same import in products liability personal injury cases. A plaintiff does not realize, and cannot be reasonably expected to discover, that he has a cause of action against a professional who has provided...