Needham v. White Laboratories, Inc.

Decision Date27 January 1981
Docket NumberNo. 80-1579,80-1579
Citation639 F.2d 394
Parties7 Fed. R. Evid. Serv. 1435 Anne NEEDHAM, Plaintiff-Appellee, v. WHITE LABORATORIES, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Richard J. Phelan, Chicago, Ill., for plaintiff-appellee.

William J. Harte, Chicago, Ill., for defendant-appellant.

Before FAIRCHILD, Chief Circuit Judge, BAUER, Circuit Judge, and DUMBAULD, Senior District Judge. *

BAUER, Circuit Judge.

In 1946 the Food and Drug Administration ("FDA") authorized defendant-appellant White Laboratories, Inc. ("White"), to market dienestrol, a synthetic estrogen, for the treatment of menopausal symptoms and suppression of lactation. 1 In 1950 the FDA authorized White to market dienestrol for treatment of threatened and habitual miscarriages.

Mary Needham, plaintiff-appellee Anne Needham's mother, took dienestrol in 1952 during her pregnancy with plaintiff. In early 1974 Dr. Jerome Warren informed Anne Needham that she had clear cell adenocarcinoma, a rare form of vaginal cancer. Needham claims that the dienestrol her mother took in 1952 is the proximate cause of her cancer.

The trial of this cause was trifurcated. A jury was impaneled to determine whether the Illinois statute of limitations 2 barred this suit. The jury found that the Illinois two-year statute of limitations did not bar plaintiff's cause of action. A new jury was impaneled to decide the liability and damages issues. That jury returned a verdict for plaintiff and, after the subsequent damages trial, awarded the plaintiff $800,000. White appeals. We reverse and remand.


Before we reach the merits of this appeal, we must address Needham's claim that we lack jurisdiction to decide this case because White's notice of appeal was untimely.

The court of appeals lacks jurisdiction to decide an appeal if notice of appeal is not timely filed, United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), and the appellate court cannot extend the time limitation. Fed.R.App.P. 26(b). Notice of appeal must be filed with the Clerk of the District Court within thirty days from the date of judgment unless a timely post-trial motion tolls the running of the appeal time. Fed.R.App.P. 4(a). Rule 4(a) delineates four post-trial motions, which, if timely filed, will toll the running of the thirty-day appeal time. 3 If any of these four types of post-trial motions is filed within ten days of entry of judgment, the thirty-day limitation is tolled and begins to run anew upon entry of the order denying or granting the post-trial motion. Fed.R.App.P. 4(a).

Defendant White filed a post-trial motion for judgment notwithstanding the verdict within ten days of the entry of judgment. This motion tolled the thirty-day limitation until entry of the district court order denying or granting the motion. The district court denied the motion on January 14, 1980, and the thirty-day time began to run anew, terminating on February 13, 1980. On February 4, 1980, White filed a motion for reconsideration of the January 14, 1980, denial of the motion for judgment notwithstanding the verdict.

A motion to reconsider an order denying a timely post-trial motion does not toll the thirty-day limitation period that began to run when the first post-trial motion was denied. 4 Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1206 (5th Cir. 1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1979). See also 9 Moore's Federal Practice P 204.12(1) at 4-67 (2d ed. 1980). Thus, defendant's notice of appeal filed on April 21, 1980, ninety-nine days after entry of the district court order denying White's timely Rule 50(b) post-trial motion, was untimely, but since this case falls within the narrow exception recognized in Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam), we have jurisdiction to decide this appeal.

Notwithstanding the requirements of Rule 4(a), the appellate court will have jurisdiction to decide an appeal which is untimely filed if the defendant relied to his detriment on the assurance of the district court that an untimely post-trial motion tolled the thirty-day notice of appeal time. Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam). The defendant in Thompson filed a post-trial motion twelve days after entry of judgment. The motion thus was untimely and could not toll the running of the notice of appeal time. The Government, however, did not object as to the timeliness of the motion, "and the trial court specifically declared that the 'motion for a new trial' was made 'in ample time.' " 375 U.S. at 385, 84 S.Ct. at 397. The notice of appeal was filed within sixty days of entry of the denial of the post-trial motion, but not within sixty days of the entry of judgment. 5 The Supreme Court held that where the defendant relies on the plaintiff's failure to object as to timeliness and on the district court's explicit assurance that the motion is timely, the defendant is entitled to have his appeal decided on the merits if notice of appeal is filed within the assumedly new limitation period that commenced when the district court ruled on the post-trial motion. Id. at 386-87, 84 S.Ct. at 398.

At the hearing on White's motion to reconsider conducted on February 5, 1980, plaintiff's counsel informed the district court that the motion was timely. 6 White's counsel specifically asked the district court whether the motion to reconsider tolled the time for appeal, and the district court assured defendant that the motion tolled the appeal time until it disposed of the motion. The district court denied the motion for reconsideration on March 20, 1980. White filed notice of appeal on April 21, 1980, within the assumedly new limitation period. 7 Defendant White should not be penalized for relying on the district court assurance that notice of appeal filed within thirty days of its disposition of the motion to reconsider would be timely.


White claims that the Illinois statute of limitations bars this suit. The statute provides that "(a)ctions for damages for an injury to the person ... shall be commenced within two years next after the cause of action accrued." Ill.Rev.Stat. ch. 83, § 15. White contends that Needham's cause of action accrued when she learned of her injury. Because Needham learned of her injury on March 1, 1974, when her doctor informed her that she had vaginal cancer, White argues that this suit filed on March 22, 1976, was commenced after the two-year limit.

White raises this novel interpretation of the Illinois statute of limitations for the first time in this Court. White agreed below that Needham's cause of action accrued when she learned of her injury and knew or should have known that the dienestrol caused her cancer. SOL at 433, 456. 8 The trial court so instructed the jury without objection from defendant. SOL at 537. Having failed to object at trial, White has waived any argument on appeal. Fed.R.Civ.P. 51; see United States v. White, 607 F.2d 203, 205 (7th Cir. 1979); Faulisi v. Daggett, 527 F.2d 305, 310 (7th Cir. 1975). See also Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 138-39 (3d Cir. 1973).

Moreover, the trial court's instruction accurately states Illinois law. The Illinois Supreme Court, in interpreting the applicable statute of limitation provision, held that a cause of action accrues when the plaintiff knows or should know of the injury and the defendant's error. Rozny v. Marnul, 43 Ill.2d 54, 69, 250 N.E.2d 656, 666 (1969). See also Anderson v. Wagner, 79 Ill.2d 295, 312, 37 Ill.Dec. 558, 562-565, 402 N.E.2d 560, 564-67 (1979). In a case like Needham's where the plaintiff's injury is a disease,

the limitations period does not commence when the plaintiff learns of his injury, but only after the plaintiff "knows or has reason to know that he or she has a physical problem and also that someone is or may be responsible for it."

Witherell v. Weimer, 77 Ill.App.3d 582, 587, 33 Ill.Dec. 43, 52, 396 N.E.2d 268, 272 (1979) (emphasis in original) (citations omitted). See also Nolan v. Johns-Manville Asbestos & Magnesia, 74 Ill.App.3d 778, 30 Ill.Dec. 307, 392 N.E.2d 1352 (1979), and cases cited therein. Thus, the instruction given in this case was proper.


White claims that the jury finding that Needham did not know of the connection between her injury and the dienestrol her mother took before March 22, 1974, is not supported by the record. We disagree.

Needham testified that she first learned of the possible connection between her injury and the dienestrol in May 1974. SOL at 297. Her mother testified that neither she nor plaintiff knew of the relationship between the cancer and the dienestrol before May 1974. SOL at 261. The only evidence tending to prove that Needham knew or should have known of the connection between her injury and dienestrol before March 22, 1974, was the testimony of her father and her gynecologist, Dr. Jerome Warren. Needham's father testified that he knew of the connection between Needham's injury and the dienestrol on March 1, 1974, but that he did not discuss the possible connection with his daughter before March 22, 1974. SOL at 132, 143 & 188. Dr. Warren testified that he discussed the connection between the cancer and dienestrol with plaintiff and her mother at a meeting on March 2, 1974. SOL at 84. Plaintiff and her mother, however, testified that no meeting occurred on March 2, 1974, and Dennis Rauen testified that he was with Needham all day March 2, 1974. SOL at 230, 284, 395-99.

The jury's function is to resolve the conflicts in the testimony and weigh the credibility of the witnesses. Legally sufficient evidence in the record supports the jury's resolution of the conflicts in favor of the plaintiff, and we affirm its finding that this suit is not time-barred.


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