MacMillen v. A.H. Robins Co., Inc.
| Decision Date | 11 May 1984 |
| Docket Number | No. 83-383,83-383 |
| Citation | 348 N.W.2d 869,217 Neb. 338 |
| Parties | Maureen MacMILLEN, Appellant, v. A.H. ROBINS COMPANY, INC., Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Demurrer. A demurrer admits all well-pleaded facts.
2. Limitations of Actions. One who wrongfully conceals a material fact necessary to the accrual of a cause of action against him, and such concealment causes the opposite party to delay the filing of suit, cannot avail himself of the statute of limitations as a defense.
3. Estoppel. Estoppel may be applied to prevent a fraudulent or inequitable resort to a statute of limitations.
Thomas J. Jenkins, Omaha, and A. James McArthur of McArthur, Lamb, Lyford, Gilmore & Janssen, Lincoln, for appellant.
Ronald F. Krause of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.
This is an appeal in a products liability action brought by Maureen MacMillen against A.H. Robins Company, Inc., (Robins), the manufacturer of an intrauterine contraceptive device known as a "Dalkon Shield." The trial court sustained the defendant's demurrer and dismissed the amended petition. The plaintiff appeals.
The amended petition alleged that the Dalkon Shield, which was designed for permanent implantation into the uterus by a physician to prevent conception, was unsafe for its intended use. The plaintiff alleged that in March of 1971 she was implanted with a Dalkon Shield and that in November of 1978 her physician found that she had an abscess and infection in her uterus and she underwent an abdominal hysterectomy with bilateral oophorectomy. The plaintiff further alleged that her injury was caused by the defects in the Dalkon Shield and that the defendant had concealed information regarding the dangers of use of the Dalkon Shield.
The defendant filed a demurrer alleging that the plaintiff did not have capacity to sue and that any cause of action was barred by the statute of limitations.
The applicable statute of limitations, Neb.Rev.Stat. § 25-224 (Cum.Supp.1982), provides:
(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.
(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.
(3) The limitations contained in subsection (1), (2), or (5) of this section shall not be applicable to indemnity or contribution actions brought by a manufacturer or seller of a product against a person who is or may be liable to such manufacturer or seller for all or any portion of any judgment rendered against a manufacturer or seller.
(4) Notwithstanding the provisions of subsections (1) and (2) of this section, any cause of action or claim which any person may have on July 22, 1978, may be brought not later than two years following such date.
(5) Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to August 30, 1981.
The first petition in the present case was filed on October 29, 1982, within 4 years after the injury occurred, but more than 10 years after the date of the sale of the product. The trial court sustained a demurrer to the first petition because the petition had been filed more than 10 years after the date of sale.
The amended petition was then filed alleging that the defendant had intentionally withheld information from the public regarding the dangers inherent in the use of the Dalkon Shield. A demurrer to the amended petition was sustained and the amended petition dismissed.
The plaintiff has assigned as error the sustaining of the demurrer to the amended petition, and has made several arguments in support of this assignment. We discuss only the issue raised by the allegations that the defendant deliberately concealed information regarding danger from use of the Dalkon Shield.
A demurrer admits all well-pleaded facts. Almarez v. Hartmann, 211 Neb. 243, 318 N.W.2d 98 (1982).
The issue to be determined is whether the defendant is estopped from raising the statute of limitations as a defense because defendant fraudulently concealed its knowledge of the dangerousness of the Dalkon Shield. In Rucker v. Ward, 131 Neb. 25, 33, 267 N.W. 191, 195 (1936), we said, " 'One who wrongfully conceals a material fact necessary to the accrual of a cause of action against him, and such concealment causes the opposite party to delay the filing of suit cannot avail himself of the statutes of limitation as a defense;' ...." In Luther v. Sohl, 186 Neb. 119, 121, 181 N.W.2d 268, 269 (1970), we stated that "estoppel may be applied to prevent a fraudulent or inequitable resort to a statute of limitations." We also stated that "if a plaintiff has ample time to institute his action, after the inducement for delay has ceased to operate, he cannot excuse his failure to act within the statutory time on the ground of estoppel." Id. at 122, 181 N.W.2d at 270.
Knaysi v. A.H. Robins Co., 679 F.2d 1366 (11th Cir.1982), is similar to the present case. In that case Knaysi alleged that her spontaneous septic abortion was caused by the Dalkon Shield and that Robins had concealed its knowledge that septic abortions occurred in connection with the use of the Dalkon Shield. The eleventh circuit reversed the trial court's grant of summary judgment, which was made on the basis that the action was time barred. The eleventh circuit held that Knaysi had adequately pleaded facts which, if proven, could constitute an equitable estoppel to raising the statute of limitations as a defense. The court stated at 1370:
Having determined that the facts alleged could, if proved, estop Robins from pleading the bar of the statute of limitations, we further conclude that the issue of equitable estoppel was one inappropriate for summary judgment as there exist genuine issues of material fact to be resolved at trial. First, there are obvious questions of fact regarding the alleged misrepresentations made by Robins. I...
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...as to the future conduct of the Tennessee Supreme Court, the prediction is not applicable to Nebraska. While in MacMillen v. A.H. Robins Co., 217 Neb. 338, 348 N.W.2d 869 (1984), we held one fraudulently concealing a product's dangers was estopped from asserting the product liability statut......
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...to mitigate the harsh effects of such statutes." See Berry v. Beech Aircraft, n. 9. The Nebraska Court, in MacMillen v. A.H. Robins Co., Inc., 217 Neb. 338, 348 N.W.2d 869 (1984), held the Nebraska products liability statute of repose inapplicable where the manufacturer fraudulently refused......
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...Co., 216 Neb. 176, 343 N.W.2d 58, 61 (1984), the court held that infancy "tolled" the statute. Finally, in MacMillen v. A.H. Robins Co., 217 Neb. 338, 348 N.W.2d 869, 872 (1984), the court created an exception to the products liability statute of repose where the manufacturer fraudulently r......
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...action. Estoppel may be applied to prevent a fraudulent or inequitable resort to a statute of limitations. MacMillen v. A.H. Robins Co., Inc., 217 Neb. 338, 348 N.W.2d 869, 871 (1984) citing Luther v. Sohl, 186 Neb. 119, 181 N.W.2d 268, 269 A closely analogous factual situation is set forth......
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CHAPTER § 9.02 Common Defenses
...But see Fla. Stat. § 95.051(1)(i) and Conn. Gen. Stat. § 52-577a, which do not toll.[35] See, e.g., MacMillen v. A.H. Robbins Co., 348 N.W.2d 869 (Neb. 1984) (manufacturer estopped from raising limitations defense when complaint alleged that manufacturer fraudulently concealed facts necessa......