Raymond v. Eli Lilly & Co.

• Decision Date: 28 February 1977
• Docket Number: No. 7577,7577
• Citation: 117 N.H. 164,371 A.2d 170
• Parties: Arthur RAYMOND and Patricia Raymond v. ELI LILLY AND COMPANY.
• Court: New Hampshire Supreme Court

Page 170

371 A.2d 170

117 N.H. 164

Arthur RAYMOND and Patricia Raymond v. ELI LILLY AND COMPANY.

No. 7577.

Supreme Court of New Hampshire.

Feb. 28, 1977.

Wiggin & Nourie and W. Wright Danenbarger, Manchester (W. Wright Danenbarger, Manchester, orally), for plaintiffs.

McLane, Graf, Greene, Raulerson & Middleton, Manchester and Dewey, Ballantine, Bushby, Palmer & Wood and Russell H. Beatie, Jr., New York City (John A. Graf, Manchester and Russell H. Beatie, Jr., New York City, orally), for defendant.

KENISON, Chief Justice.

The facts of this case are detailed in Raymond v. Eli Lilly & Co., 412 F.Supp. 1392 (D.N.H.1976), and need not be repeated in full here. For the present purposes the relevant facts are as follows: On February 26, 1975, Patricia Raymond brought suit in Hillsborough County Superior Court alleging that C-Quens, an oral contraceptive manufactured and distributed by the defendant, caused hemorrhages in her optic nerves causing her to become legally blind. Arthur Raymond, the plaintiff's husband, sued the defendant for consequential damages resulting from his wife's blindness. The defendant removed the action to the United States District Court for the District of New Hampshire based upon diversity of citizenship of the parties and moved for summary judgment in both actions on the ground that the New Hampshire six year statute of limitations for personal actions, RSA 508:4 (Supp.1975), barred the claims.

The federal district court denied the motions for summary judgment applying principles underlying the so-called 'Shillady rule' that 'actions for malpractice based on the leaving of a foreign object in a patient's body do not accrue until the patient learns or in the exercise of reasonable care and diligence should have learned of its presence.' Shillady v. Elliot Community Hosp., 114 N.H. 321, 324, 320 A.2d 637, 639 (1974). Based upon Mrs. Raymond's testimony, depositions and medical records, the district court found that, although the plaintiff was injured in 1968, she did not know, nor had any reason to know of her potential claim against the defendant until '(s)ometime in 1970 or 1971,' Raymond v. Eli Lilly & Co., 412 F.Supp. at 1396, 1402, and held that her cause of action did not accrue until then.

Rather than proceeding with the trial on the merits, there was an interlocutory appeal to the United States Court of Appeals for the First Circuit. 28 U.S.C. § 1292(b); Fed.R.App.P. 5. The court of appeals certified the following question to this court: 'Does the Shillady rule toll the running of New Hampshire's six-year statute of limitations until the time of the discovery of the cause of action in a case in which the plaintiff's injury was allegedly caused by a drug and the plaintiff, exercising reasonable diligence, did not learn of the possible causal connection between the drug and her injury until two or three years after the injury occurred? We are authorized to answer questions certified to us by the First Circuit Court of Appeals, RSA 490: App.R. 20 (Supp.1975), and have done so in the past. E.g., Bellotte v. Zayre Corp., 116 N.H. 52, 352 A.2d 723 (1976); Ford v. Black Mountain Tramways, 110 N.H. 20, 259 A.2d 129 (1969). For a comprehensive discussion of certification of questions of law to state courts see Lillich & Mundy, Federal Court Certification of Doubtful State Law Questions, 18 U.C.L.A.L.Rev. 888 (1971).

Our threshold task is to delineate the scope of our inquiry in answering the certified question. A significant portion of the defendant's brief and oral argument contests the district court's determination of the date upon which Mrs. Raymond discovered her cause of action against the defendant. We will not consider why the court concluded that the plaintiffs did not know and in the exercise of reasonable diligence could not have known of the cause of action against the defendant prior to 1970 or 1971. The certified question itself forecloses this inquiry because it presupposes a plaintiff who exercises reasonable diligence but, nevertheless, does not learn of the potential causal relationship between the drug and her injury until two or three years after the injury occurred. Therefore, our only inquiry in this case is whether, in a products liability case in which the plaintiff is allegedly injured by a drug, the principles underlying the Shillady rule will prevent the statute of limitations from beginning to run until the plaintiff discovers or has a reasonable opportunity to discover that he has suffered a legal injury for which the defendant may be liable.

The statute of limitations applicable in this case provides that 'personal actions may be brought within six years after the cause of action accrued, and not afterwards.' RSA 508:4 (Supp.1975). The statute does not define the word 'accrued.' In the absence of a statutory definition, the time of accrual is left to judicial determination. New Bedford v. Lloyd Investment Ass'n., 363 Mass. 112, 292 N.E.2d 688 (1973); 9 Suff.U.L.Rev. 1448, 1452 (1975). There are at least four points at which a tort cause of action may accrue: (1) When the defendant breaches his duty; (2) when the plaintiff suffers harm; (3) when the plaintiff becomes aware of his injury; and (4) when the plaintiff discovers the causal relationship between his harm and the defendant's misconduct. See 3 R. Hursh & Bailey, American Law of Products Liability 2d § 17:9-10 (1975), Developments in the Law-Statute of Limitations, 63 Harv.L.Rev. 1177, 1200-01 (1950); Annot., 80 A.L.R.2d 368, 373 (1961). In many tort cases the above events occur simultaneously and the moment of accrual is clear. However, in some cases there may be a delay between the breach of duty and the injury, e.g., White v. Schnoebelen, 91 N.H. 273, 18 A.2d 185 (1941), or between the injury and the plaintiff's discovery of the cause of his injury e.g., Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973); Gilbert v. Jones, 523 S.W.2d 211 (Tenn.Ct.App.1974), or there may be a delay between each of the four events. E.g., Raymond v. Eli Lilly & Co., 412 F.Supp. 1392 (D.N.H.1976); Society of Mt. Carmel v. Fox, 31 Ill.App.3d 1060, 335 N.E.2d 588 (1975). Where any such delay exists, the choice of accrual becomes complex. Developments, supra at 1200.

White v. Schnoebelen, 91 N.H. 273, 18 A.2d 185 (1941) involved a delay between the defendant's negligence and the plaintiff's injury. The defendant negligently installed a lightning rod in 1930. As a result, a lightning fire destroyed the plaintiff's house in 1937. The plaintiff filed suit in 1938. The defendant claimed that the limitations period began to run in 1930 when he allegedly breached his duty of care. The plaintiff argued that the cause of action did not accrue until 1937 when he suffered the damage to his property. We held that the suit was not barred by the six-year statute of limitations because injury is an element of a cause of action for negligence and the action could not accrue until all the elements, including injury, were present. Id. at 275, 18 A.2d at 186; W. Prosser, The Law of Torts 144 (4th ed. 1971); Developments supra at 1200-01.

White did not involve, as this case does, the problem of accrual when there is a delay between the date of injury and the date upon which the plaintiff discovers the causal relationship between the injury and the wrongdoing. In fact, if anything, the White rule assumes that the plaintiff knows of the cause of his injury at the moment he suffers harm. With obvious reference to White v. Schnoebelen, we have stated that '(i)n the usual tort case some physical impact would serve to notify the plaintiff of the violation of her rights and there is no reason why the time within which her action for the resulting damages must be brought should not start to run from that date.' Shillady v. Elliot Community Hosp., 114 N.H. at 323, 320 A.2d at 638; Developments, supra at 1204; see Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131, 135 (1974). Because White did not address the question in this case, it is erroneous to assume that under the White rule Mrs. Raymond's cause of action would be barred.

On two occasions we have dealt with the problem of accrual where, as in this case, a person was harmed but did not discover that he had a claim against the tortfeasor until a later date. In a case in which the defendant fraudulently concealed facts necessary to put the injured person on notice of his claim, we held that the cause of action accrued not when the injury occurred, but rather when the plaintiff discovered or in the exercise of reasonable diligence should have discovered the concealed facts. Lakeman v. LaFrance, 102 N.H. 300, 303, 156 A.2d 123, 126 (1959). Similarly, in a case in which a surgeon left a foreign object in a patient's body, and the patient was ignorant of that fact, although the object did cause him pain, we held that his cause of action did not accrue until he learned or in the exercise of reasonable care and diligence should have learned of the presence of the object in her body. Shillady v. Elliot Community Hosp., 114 N.H. at 324, 320 A.2d at 639. A substantial number of other states have reached the same conclusions in fraudulent concealment cases, Annot., 173 A.L.R. 576 (1948) and foreign objects medical malpractice situations, Note, Recent Developments in Wisconsin Medical Malpractice Law, 1974 Wis.L.Rev. 893, 895-96 n. 14.

The concept that a cause of action does not accrue until the plaintiff knows or should reasonably know of the causal connection between his injury and the defendant's wrongdoing has been called the discovery rule. Lopez v. Swyer, 62 N.J. at 272, 300 A.2d at 565 (1973). Those jurisdictions that have adopted the rule do not regard its application as violating the policies behind the limitations statute. Wyler v. Tripi, 25 Ohio St.2d 164, 170, 267 N.E.2d 419, 422-23 (1971). 'A primary consideration underlying the statute of limitations is fairness to the...