Roman v. A. H. Robins Co., Inc.
| Decision Date | 08 September 1975 |
| Docket Number | No. 75-1784,75-1784 |
| Citation | 518 F.2d 970 |
| Parties | Gregorio ROMAN and wife, Maria L. Roman, Plaintiffs-Appellants, v. A. H. ROBINS COMPANY, INC., Defendant-Appellee. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fred J. Morton, El Paso, Tex., for plaintiffs-appellants.
Sam Sparks, Donald F. Hagans, II, El Paso, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.
This products liability case is an appeal from a directed verdict in favor of the defendant drug company. Because we agree with the apparent finding of the District Court that the disabled plaintiff's claim is barred by the appropriate Texas statute of limitations, we affirm.
The plaintiff, Mrs. Roman, suffered from a recurring kidney infection and in June 1968, was given a prescription by her employer, Dr. Alberto Melgar, for Sulla, a drug produced by the defendant, A. H. Robins Co. She also received samples of the drug from a Robins Company representative at Dr. Melgar's request. On July 16, 1968 Mrs. Roman began having difficulties with her eyes. Ultimately, a diagnosis was made that she was suffering from a rare medical condition known as Stevens-Johnson Syndrome which was probably caused by an allergic reaction to the drug. Without detailing the almost nightmarish particulars of the next five years of Mrs. Roman's life, it is enough to say that after a number of operations and many periods of hospitalization, by the summer of 1973 she was totally blind.
On September 21, 1973, Mrs. Roman, joined by her husband, filed suit against Robins alleging that (i) the drug was unreasonably dangerous, (ii) defendant had failed to give proper warnings to physicians about the potential dangers resulting from the drug, and (iii) the drug had been negligently placed on the market since it had been inadequately tested. At the close of plaintiff's evidence presented to a jury, the Trial Judge gave an instructed verdict for the defendant. The judgment of the District Court does not indicate the grounds on which the verdict was directed for defendant whether it was on the merits or because the claim is barred by limitations. But because we are satisfied that the suit was barred, we do not find it necessary to consider the merits.
It is an established point of Texas law that a personal injury cause of action for medical malpractice accrues when the injurious condition is discovered or, in the exercise of ordinary care, should have been discovered. 1 Nichols v. Smith, Tex., 1974, 507 S.W.2d 518; Hays v. Hall, Tex., 1972, 488 S.W.2d 412; Gaddis v. Smith, Tex., 1967, 417 S.W.2d 577.
Products liability cases are governed by the two-year statute of limitations in Texas. 2 Vernon's Tex.Rev.Civ.Stat.Ann art. 5526; Burleson v. Mead Johnson & Co., N.D.Tex., 1971, 331 F.Supp. 710.
Mrs. Roman was first advised that her physical problems probably resulted from an adverse reaction to Sulla in July of 1968. The suit was not filed until September 1973 over five years later and beyond the limitation cut-off on the discovery rule.
Mrs. Roman, however, asserts that the cumulative effect of the very real misfortunes that befell her was to cause her to become a person of "unsound mind" and so under Tex.Rev.Civ.Stat.Ann. art. 5535 3 the running of the limitations was tolled. Unfortunately, this is not the law in Texas. Once the limitations period begins to run, it continues to do so even should one of the disabilities that would toll it arise in the meantime. 4 Joy v. Joy, Tex.Civ.App. Eastland, 1941, 156 S.W.2d 547, writ dism'd.; Stubbs v. Lowrey's Heirs, Tex.Civ.App. Eastland, 1952, 253 S.W.2d 312, writ ref'd. n. r. e.; Annot., 41 A.L.R. 2nd 726.
The Romans' suit was barred by the statute of limitations.
Affirmed.
* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v....
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