Raymond v. Eli Lilly & Co.

Decision Date05 May 1976
Docket NumberCiv. A. No. 75-80 and 75-81.
Citation412 F. Supp. 1392
PartiesArthur RAYMOND v. ELI LILLY AND COMPANY. Patricia RAYMOND v. ELI LILLY AND COMPANY.
CourtU.S. District Court — District of New Hampshire

COPYRIGHT MATERIAL OMITTED

W. Wright Danenbarger, Wiggin & Nourie, Manchester, N. H., for plaintiffs.

John A. Graf, McLane, Graf, Greene, Raulerson & Middleton, Manchester, N. H., R. H. Beatie, Ballantine, Bushby, Palmer & Wood, New York City, for defendant.

MEMORANDUM OPINION

BOWNES, District Judge.

In this diversity action, plaintiff, Patricia I. Raymond, alleges that an oral contraceptive medication, C-Quens, manufactured and distributed by defendant, Eli Lilly and Company, caused hemorrhages of the optic nerves in each of her eyes leaving her legally blind.1 Plaintiff is a resident of Nashua, New Hampshire. Defendant is a corporation which is incorporated in and has its principal place of business in the State of Indiana. The amount in controversy exceeds $10,000. Jurisdiction is conferred by 28 U.S.C. § 1332.

Defendant has moved for summary judgment on the grounds that the New Hampshire statutes of limitations bar plaintiff's action.

Plaintiff's complaint was filed in the Superior Court for Hillsborough County, New Hampshire, on February 28, 1975, and, upon defendant's petition, was removed to this court. Plaintiff's complaint raises three separate claims against defendant: one in negligence, one in breach of warranty, and one in strict liability. Defendant claims that plaintiff's cause of action accrued prior to February 28, 1969, and that her tort claims are barred by NH RSA 508:4 (Supp. 1975), and her contract claim by NH RSA 382-A:2-725.

Both parties have agreed that there are two central issues to be resolved at this juncture: first, whether or not New Hampshire's malpractice discovery rule in reference to the statute of limitations applies to a drug products liability case; and, second, if it does, should the plaintiff, in the exercise of reasonable diligence, have learned of the alleged causal connection between the oral contraceptives and her blindness prior to February 28, 1969. The New Hampshire discovery rule provides:

. . . 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).

The first issue is a question of law properly to be resolved by this court on a motion for summary judgment. By agreement, the parties have submitted the second issue, one of fact, to this court for resolution on this motion. A hearing was held on March 24, 1976, and evidence in the form of plaintiff's testimony was taken. The parties have both submitted other evidence in the forms of depositions and medical records.

I rule that the New Hampshire discovery rule does apply in a drug products liability case and find that plaintiff is not barred by the New Hampshire statute of limitations.

THE FACTS2

Patricia Raymond, thirty-five, is married and the mother of four children. She graduated from high school in Philadelphia and, after she became blind, went to college through the New Hampshire Department of Vocational Rehabilitation and graduated in June of 1973. Prior to June, 1968, she had been employed as a receptionist, a secretary trainee, and a desk clerk receptionist. Her health had been good except for a variety of "female problems" for which she had several operations culminating in a total hysterectomy in December, 1968.

In early 1968, plaintiff experienced "female problems and stomach distress" and consulted her gynecologist, Robert R. Moheban, M.D. (Dep. at 52-53.) Dr. Moheban ran a series of tests on her and, unable to determine the exact nature of her problem, recommended a D & C (dilation and curettage). In order to schedule her for this procedure, he needed to regulate her menstrual periods and prescribed C-Quens, an oral contraceptive manufactured by defendant. Plaintiff filled the prescription on April 9, 1968, and renewed it on May 20, 1968. (Deft's. Ex. A.) At the end of May, in the middle of the second cycle of birth control pills, plaintiff experienced a "blurriness" in her left eye. (Dep. at 54.) She had problems focusing and was unable to perform her work as a desk clerk at the Nashua Country Club. She suffered no pain at any time. Within approximately one week, she consulted her regular ophthalmologist, Maurice Chagnon, M.D., who advised her "that it looked as if she had had a hemorrhage." (Dep. at 74.) Dr. Chagnon asked her if she was taking any medication. Plaintiff told him of the C-Quens, and he advised her to cease taking them "just as a precaution." (Dep. at 75.) In plaintiff's presence, Dr. Chagnon called Dr. Moheban's office, advised them of the situation and of his recommendation that Mrs. Raymond cease taking "the pill." Dr. Chagnon told plaintiff that he did not know what the cause of the hemorrhage was or whether she would regain the sight in her eye. "There was no way of knowing he said. We would just have to wait and see." (Dep. at 78.)

Prior to April 9, 1968, plaintiff had not taken any oral contraceptive nor did she take any after she was advised not to by Dr. Chagnon. Plaintiff was not informed by Dr. Moheban, the prescribing doctor, of any possible side effects from taking C-Quens other than some possible weight gain or swelling, spotting or bleeding. There was no discussion at all concerning plaintiff's eyes or any possible side effects that might concern her eyes. Plaintiff claimed that she did not receive at any time from Dr. Moheban or anyone else any writing or printed matter about C-Quens or any other oral contraceptive. Neither did she read anything about them in any outside source or discuss the subject with anyone.

Plaintiff continued to see Dr. Chagnon, her ophthalmologist, in June, 1968. He tested her, but prescribed no medication. She experienced some improvement in her peripheral vision in the left eye a couple of weeks after the initial hemorrhage. She stopped seeing Dr. Chagnon sometime in the summer of 1968.

In October, plaintiff went to the Lahey Clinic in Boston. Dr. Arthur F. Calnan, the head of the ophthalmology department at the Clinic, treated her. He gave her a cortisone injection, some oral cortisone, and referred her to the other departments of the Clinic for a complete examination. No systemic disease was found, but during her "work-up" the doctor in the Gynecology Department, Dr. Takacs, recommended that she have a hysterectomy. After that operation in December, 1968, she ceased to visit the Lahey Clinic until her right eye hemorrhaged in June, 1969.

The diagnosis of the Lahey Clinic is somewhat unclear. Plaintiff testified, both at her deposition and in court, that she was never given any indication by any doctor that there was a causal connection between the birth control pills and the hemorrhage in her left eye. She claimed that Dr. Calnan never told her of any specific diagnosis or prognosis either before or after the tests. She claims to have specifically "asked him if he thought it the C-Quens might have something to do with that, and he told me he didn't know, he didn't think so." (Record at 11.) Dr. Calnan's notes for October 11, 1968, in the medical record confirm that this was his initial response.

Original opinion was that it was a sequellae to use of C-Quens birth control pill — later said no — idiopathic. The pills were used from April 26May 15 — V.A. began to decrease during the last 5 days of use. Pills discontinued on June 6 on advice of ophthalmologist.

The record reveals that on November 13 a decision was made to delay the hysterectomy until plaintiff's ophthalmology status was clarified. On December 13, Dr. Calnan noted:

I favor hysterectomy if any possible relationship to BC pills which certainly exists here.

However, in the Report on Eye Examination given November 7, 1969, and dated December 30, 1969, Dr. Calnan found that the "Etiological factor responsible for primary eye condition" was "Unknown." He further noted that "Chances at improved vision now very small."

After her hysterectomy in December, 1968, Mrs. Raymond did not return to the Lahey Clinic until June 5, 1969. On June 4 she had a second hemorrhage of an optic nerve, this time in her right eye. She immediately consulted Dr. Chagnon, who called the Lahey Clinic directly and made an appointment for her. At the Clinic, Dr. Calnan recommended cortisone injections. She continued treatments at the Clinic through April, 1970. The medical record from this treatment period does not mention in any way plaintiff's consumption of the birth control pills.

Plaintiff stopped going to the Lahey Clinic in April, 1970. She continued to see Dr. Chagnon until 1973, when she went to Eduardo A. Lopez, M.D. Dr. Lopez continued the cortisone treatments started at the Lahey Clinic. Upon Dr. Lopez's recommendation, she went to Retina Associates in Boston in February, 1974, and was examined there by Robert J. Brockhurst, M.D. Neither Drs. Lopez nor Brockhurst assigned any cause to the hemorrhaging of plaintiff's eyes. Plaintiff claims that Dr. Brockhurst stated that he didn't think that there was any causal connection between the C-Quens and her blindness. After her visit to Retina Associates, Dr. Lopez thought that there was nothing else he could do for Mrs. Raymond and stopped treatment. Plaintiff never recovered full vision in either eye and is presently considered legally blind.

Sometime in 1970 or 1971, plaintiff learned of a newspaper article concerning a woman who had recovered a verdict for blindness allegedly caused by oral contraceptives. At the hearing, Mrs. Raymond testified that ". . . then we Mr. and Mrs. Raymond started to wonder about it, and we talked about it at length. But neither of us knew what we should do about it at this...

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