Miller v. A.H. Robins Co., Inc., 83-3048

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 766 F.2d 1102
• Docket Number: No. 83-3048,83-3048
• Parties: , Prod.Liab.Rep.(CCH)P 10,596 Linda MILLER and Barry Miller, Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., Defendant-Appellee.
• Decision Date: 03 July 1985

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766 F.2d 1102 2 Fed.R.Serv.3d 1484, Prod.Liab.Rep.(CCH)P 10,596 Linda MILLER and Barry Miller, Plaintiffs-Appellants,
v.
A.H. ROBINS COMPANY, INC., Defendant-Appellee. No. 83-3048. United States Court of Appeals,
Seventh Circuit. Argued Nov. 8, 1984.
Decided July 3, 1985.

Mary Beth Ramey, Ramey & Hailey, Indianapolis, Ind., for plaintiffs-appellants.

Ralph A. Cohen & Mary Nold Larimore, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for defendant-appellee.

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Before WOOD and POSNER, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

This appeal raises the issue whether a physician's statement to a plaintiff that plaintiff's Dalkon Shield was a possible cause of her pelvic inflammatory disease began the limitations period under Indiana's newly-adopted discovery rule. We hold that this statement put plaintiff on notice of her potential cause of action and we therefore affirm the district court's order granting summary judgment for the defendant, A.H. Robins Company.

I.

On July 24, 1972, Dr. Paul Felion inserted a standard size (multiparous) Dalkon Shield into the uterus of plaintiff Linda Miller. Two years later, on July 25, 1974, Dr. Felion examined Ms. Miller's Dalkon Shield and told her that "it looked fine." On October 13, 1974, Linda Miller was taken to the emergency room of LaCrosse Lutheran Hospital, where she was treated for a pelvic infection. Miller remained hospitalized until November 1, 1974, and during this stay the Dalkon Shield was removed.

After Miller married plaintiff Barry Miller in 1980, she experienced difficulty becoming pregnant. She consequently consulted Dr. Robert Cleary in 1981, and, after performing a laparotomy on September 1, 1981, Dr. Cleary determined that the scarring in Ms. Miller's ovaries and fallopian tubes was so extensive that Ms. Miller was infertile. Dr. Cleary also advised the Millers that in his opinion there was a causal relationship between her infertility and the severe pelvic infection that she had in 1974. Finally, Dr. Cleary told them that in his opinion the Dalkon Shield intrauterine device caused the pelvic infection.

On November 13, 1981, the Millers brought this action based on theories of negligence, strict liability, implied warranty, express warranty, fraud, and fraudulent concealment. The district court granted summary judgment for defendant on the ground that the plaintiffs failed to file their action within two years from when the statute of limitations began to run. ¹

II.

The Indiana Supreme Court recently adopted a discovery rule for determining when the statute of limitations begins to run when a plaintiff's injury is caused by a disease that may have been contracted as a result of protracted exposure to a foreign substance. Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind.1985). Barnes held that the statute of limitations begins to run from the date the plaintiff knew or should have discovered (1) that she suffered an injury or an impingement, and (2) that it was caused by the product or act of another. Id.

In the present case, Ms. Miller knew she had suffered an injury when she was hospitalized in 1974. The plaintiffs contend, however, that Ms. Miller neither knew nor should have discovered the cause of her 1974 illness until Dr. Cleary performed a laparotomy in September, 1981. In support of her contention, she submitted an affidavit by Dr. Felion which stated that he does not recall advising Ms. Miller of any connection between her use of the Dalkon

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Shield and the pelvic inflammatory disease that she suffered in 1974. The plaintiff also submitted her own affidavit stating that in 1974 her treating physicians did not advise her of any connection between her illness and her use of the Dalkon Shield. The defendant argues that these affidavits do not create a genuine issue of material fact because Ms. Miller testified at her deposition that her treating physicians told her in 1974 that the Dalkon Shield was a possible cause of her illness.

A district court should grant a summary judgment only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits "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). On an appeal from a summary judgment, the appellate court must view the record and the inferences drawn therefrom in the light most favorable to the non-moving party. See Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985). The appellate court may affirm a summary judgment if the judgment is correct but the reasons given by the trial court are erroneous. See Pfeil v. Rogers, 757 F.2d 850, 866 (7th Cir.1985). Since Ms. Miller's affidavit, if believed, would create an issue of fact as to when she knew or should have discovered the cause of her 1974 illness, we must first decide whether a party can create a genuine issue of material fact by submitting an affidavit that contradicts that party's prior deposition testimony.

Parties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions. See Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir.1969). An inconsistent affidavit may preclude summary judgment, however, if the affiant was confused at the deposition and the affidavit explains those aspects of the deposition testimony or if the affiant lacked access to material facts and the affidavit sets forth the newly-discovered evidence. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-95 (5th Cir.1980).

At her deposition, Ms. Miller stated three times that her doctors told her the Dalkon Shield was a possible source of her infection. ² Nothing in the deposition suggests

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that Ms. Miller was confused by the questions. Furthermore, although Ms. Miller read the deposition, made several changes to correct inaccuracies and a possible misinterpretation, and signed the deposition, she made no corrections to her statements about what the doctors told her in 1974. On the other hand, the only relevant assertions in Ms. Miller's affidavit were as follows:

3. That although I was hospitalized in 1974 for symptoms consistent with an infection, I was not advised by my treating physicians that there was any connection between the illness and injury I suffered and my use of the Dalkon Shield.

4. That I was not aware of any connection between any harm to myself and the use of the Dalkon Shield until I was...