Olson v. A.H. Robins Co., Inc.

• Decision Date: 19 March 1985
• Docket Number: No. 84-76,84-76
• Citation: 696 P.2d 1294
• Parties: Sandra OLSON, Appellant (Plaintiff), v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1294

696 P.2d 1294

Sandra OLSON, Appellant (Plaintiff), v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Appellee (Defendant).

No. 84-76.

Supreme Court of Wyoming.

March 19, 1985.

Rex O. Arney of Redle, Yonkee & Arney, Sheridan, for appellant.

Michael J. Sullivan and J. Kenneth Barbe of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellee; oral argument by J. Kenneth Barbe.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

CARDINE, Justice.

This is a product liability case seeking recovery for injuries suffered because of breach of implied and express warranties, strict liability, fraudulent misrepresentation, and negligence in the manufacture, sale and distribution of the Dalkon Shield by appellee A.H. Robins Company, Inc. The district court granted summary judgment relying on the applicable statute of limitations. We affirm.

Appellant raises two issues:

"Does the discovery rule or doctrine of equitable estoppel apply in this case to toll the running of the statute of limitations?"

"Are there issues of material fact relating to the exceptions which tolled the statute of limitations in this case so as to render the entry of summary judgment in favor of the Defendant improper?"

On June 20, 1973, a Dalkon Shield, an intrauterine contraceptive device (I.U.D.), was inserted into appellant by her physician. In the summer of 1973, appellant became pregnant. She was advised that removal might cause a miscarriage. The Dalkon Shield was, therefore, left in place. During a Christmas trip to Arizona in 1973, appellant started bleeding and having other pregnancy complications. At the emergency room of the University of Arizona Medical Center she was informed of the chance of infection which might prevent further pregnancies. She was told that she would have a better chance of later pregnancies if the present pregnancy were terminated. Appellant acquiesced in that decision, and the pregnancy was terminated during December 1973.

In the summer of 1982, appellant's mother relayed information to her concerning lawsuits being brought against the manufacturer of the Dalkon Shield. During September 1982, she underwent a complete hysterectomy because of ovarian cysts and acute inflammation throughout the uterus. It is not claimed that the medical problems necessitating the hysterectomy were caused by the Dalkon Shield that had been removed nine years earlier. In October 1982, appellant received a newspaper article from her mother concerning litigation against the Dalkon Shield manufacturer. She contacted her attorney and commenced this lawsuit on March 31, 1983.

THE DISCOVERY RULE

Appellant admits that a four-year statute of limitations applies to this case; however, she contends that there are two exceptions applicable which toll the running of the statute of limitations, i.e., the discovery rule and equitable estoppel. "Statutes of limitation have long been a part of the jurisprudence of the United States, all its states and the State of Wyoming. They are pragmatic devices to save courts from stale claim litigation and spare citizens from having to defend when memories have faded, witnesses are unavailable by death or disappearance and evidence is lost. Statutes of limitation are arbitrary by their very nature and do not discriminate between the just and unjust claim. They are not judicially made but represent legislative and public policy controlling the right to litigate. The statutes operate against even the most meritorious of claims and courts have no right to deny their application. When considering the statute of limitations, the nature of injury, its extent, the amount of money damages involved, and social considerations, the emotional appeal the facts may have must pass to the background. The circumstances are only significant in the bearing they may have on where the cause of action arose, when it arose and when the time expired for pursuing the applicable judicial remedy." (Emphasis added and citations omitted.) Duke v. Housen, Wyo., 589 P.2d 334, 340 (1979).

Wyoming is a "discovery" state; therefore, the statute of limitations is triggered when the plaintiff knows or has reason to know the existence of the cause of action. Duke v. Housen, supra; Banner v. Town of Dayton, Wyo., 474 P.2d 300 (1970). The party asserting a right to an exception to the limitations has the burden of proof. Hawkeye-Security Ins. Co. v. Apodaca, Wyo., 524 P.2d 874 (1974). Ordinarily a negligent act and the resulting injury occur simultaneously. Occasionally the injury will not be sustained or is not known until a later date. The discovery rule provides that:

"A claim does not accrue until the injury is discovered or in the exercise of reasonable diligence should be discovered." Hansen v. A.H. Robins, Inc., 113 Wisc.2d 550, 335 N.W.2d 578, 581 (1983).

When a limitation period starts to run depends upon a balancing of policy considerations

" * * * reflecting the manufacturer's interest in defending a claim before his ability to do so has deteriorated through passage of time, on the one hand, and, on the other, the injured person's interest in not being deprived of his claim before he has had a reasonable chance to assert it * * *." Martin v. Edwards Laboratories, Division of American Hospital Supply Corp., 60 N.Y.2d 417, 469 N.Y.S.2d 923, 457 N.E.2d 1150 (1983). (New York is a date-of-injury jurisdiction rather than discovery.)

There have been several cases addressing the problem of the statute of limitations in Dalkon Shield injury cases. Ballew v. A.H. Robins Co., 688 F.2d 1325 (11th Cir.1982), applied Georgia law in determining whether plaintiff knew or, in the exercise of reasonable diligence, should have discovered the causal connection between the injury and the alleged negligence of the company. The court, reversing a summary judgment, held that although the evidence might support a finding that appellant should have discovered the relationship between the I.U.D. and her injury, the evidence was also susceptible of showing that appellant did not know that the shield was connected to her injuries. Appellant had specifically asked her physicians if the shield had caused her pelvic infection. Her physician could not say whether or not the infection was causally related to the I.U.D. Three other doctors responded in a similar manner. Therefore, the court held that there was a genuine issue of fact as to whether appellant knew or should have discovered the relationship at the time of her first infection or at a later date when she read a newspaper article about injuries caused by the Dalkon Shield.

Other courts have reversed summary judgments where the evidence did not conclusively show that the plaintiff had the necessary knowledge. MacMillen v. A.H. Robins Co., Inc., 217 Neb. 338, 348 N.W.2d 869 (1984); Newberry v. Tarvin, Tex.Civ.App., 594 S.W.2d 204 (1980). In Nelson v The primary question in the present case is whether appellant knew or should have known the cause of her injury in 1973 after becoming pregnant, having complications and a therapeutic abortion, or whether she did not discover her cause of action until 1982 from information contained in a newspaper. Appellant testified by deposition:

A.H. Robins Co., 515 F.Supp. 623 (N.D.Cal.1981), summary judgment was held improper because it was unclear whether the plaintiff possessed enough facts for her to draw a conclusive relationship between her infection and the I.U.D. In that case the only evidence by which she should have known of an injury was a doctor's statement telling her that the I.U.D. was removed because it was infected and causing her problems. The court held that this statement, by itself, was ambiguous and not sufficient to show that she had the necessary knowledge as a matter of law. However, in Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir.1983) the court affirmed a summary judgment where the doctor informed the plaintiff that the I.U.D. had perforated her uterus and that plaintiff testified that she knew the perforation was an abnormal event in the course of using an intrauterine device.

"Q. When did you first learn or receive information which led you to believe that the Dalkon Shield was responsible for the termination of your first pregnancy?

"A. I believed it to be responsible at the time I was in the hospital in Tucson.

"Q. And you attributed the problems you were having at that time to the Dalkon Shield?

"A. Yes.

"Q. And was that because of what you thought yourself or because of what Dr. Mays had told you before or something else that you heard?

"A. I believe it was a combination of everything.

"Q. Of those factors?

"A. Yes, and also the idea that one of the doctors, when I was in the examining room, asked me what kind it was and I said it was a Dalkon Shield, and he said, 'the bug, we had a lot of problems with that.'

"Q. So, you knew from that time on that the Dalkon Shield was probably responsible for the termination or what caused you to go into the hospital and ultimately the termination of the pregnancy?

"A. I would say I believed it to be.

"Q. And you had reason to believe it to be because of what the doctor had told you, because the doctor in Arizona and because of what Dr. Mays had told...