Roth v. G.D. Searle & Co.

• Decision Date: 11 August 1994
• Docket Number: No. 93-1282,93-1282
• Parties: Prod.Liab.Rep. (CCH) P 13,965 Kimberly ROTH; Garland Roth; Brad Roth, Plaintiffs-Appellants, v. G.D. SEARLE & COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1303

27 F.3d 1303

Prod.Liab.Rep. (CCH) P 13,965

Kimberly ROTH; Garland Roth; Brad Roth, Plaintiffs-Appellants, v. G.D. SEARLE & COMPANY, Defendant-Appellee.

No. 93-1282.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 12, 1993.

Decided June 17, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug.

11, 1994. ^*

Roxanne Barton Conlin, Des Moines, IA, argued, for appellant.

K. Michele Anderson, Denver, CO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON, ^** Senior Circuit Judge, and BEAM, Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Kimberly, Garland, and Brad Roth brought suit against G.D. Searle & Company seeking recovery for injuries suffered as a result of Kimberly Roth's use of a Cu-7 intrauterine device (IUD). The district court ¹ granted summary judgment in favor of Searle, concluding that the statute of limitations barred the Roths' claims, which they filed in March 1989. The court stated Ms. Roth knew of her injuries and either knew or should have known of her potential claims before March 1987--thereby triggering the two-year limitations period. The Roths argue that there were genuine issues of material fact with respect to the statute of limitation issues, that her injuries were latent, and that fraudulent concealment and equitable estoppel prevent application of the time bar. We affirm.

The parties agree about most of the underlying facts. In early 1982, Kimberly Roth consulted with Dr. J.J. Kuncaitis about various methods of birth control. She decided to have an IUD inserted into her uterus, a procedure which Dr. Kuncaitis performed. Searle designed, manufactured, and marketed the device inserted, a Cu-7. The only potential side effects which Ms. Roth recalls discussing with Dr. Kuncaitis involved the possibility of an abortion or an allergic reaction to the copper in the IUD. She does, however, remember receiving a patient brochure which she "briefly read." Searle offered uncontradicted testimony that the brochures distributed at that time contained language warning against pelvic infection and other possible adverse reactions. ²

Approximately four months after the insertion, Ms. Roth began suffering severe pain in her lower abdomen. When she reported this pain to Dr. Kuncaitis, he referred her to Dr. Victor T. Wilson. Dr. Wilson told Ms. Roth that she suffered from an infection, and removed her IUD. Ms. Roth stated that neither doctor told her the cause of the infection.

Approximately two months after removal of her first IUD, Ms. Roth requested and received a second Cu-7. Although Dr. Kuncaitis wrote that Ms. Roth "has complete understanding of all the potential risks of the IUD," Ms. Roth recalls no discussion of the risks associated with Cu-7 insertions. She does not dispute Dr. Kuncaitis' testimony that she received a second patient brochure about the device.

In June 1983, fourteen months after receiving her second IUD, Ms. Roth suffered extreme pelvic pain that forced her to go to a hospital emergency room. Dr. R.M. Carney removed the IUD, and Ms. Roth stated he told her she never should have had the second IUD inserted. According to Ms. Roth, she did not ask and was not told why the IUD was removed. Her physical problems continued after the removal. Approximately ten days after the procedure, Dr. Kuncaitis assessed her condition as "resolved salpingitis." Ms. Roth underwent more extensive diagnostic procedures three months later. These tests disclosed chronic pelvic inflammatory disease. Dr. Wilson's records reflect that Ms. Roth "states she has had to be on a considerable amount of antibiotics since July and cannot understand why she keeps having reoccurrences of infections despite the removal of the IUD." Dr. Kuncaitis testified he knew by July 1984 that Ms. Roth's IUD was at least a contributing cause of her acute endometritis and acute salpingitis, and that it is a reasonable assumption that he so told her, as is his practice.

Ms. Roth states that she knew in October 1984 that she suffered from an infection of On March 13, 1987, Ms. Roth underwent a total abdominal hysterectomy (i.e., removal of the uterus) and bilateral salpingo-oophorectomy (i.e., removal of the ovaries and tubes). According to Ms. Roth, she first learned of the possible connection between her condition and her IUDs in 1988 when CNN broadcast a report about a woman with similar symptoms. She denies any awareness of the many earlier widely-circulated articles discussing the possible connection between IUDs and pelvic inflammatory disease. The Roths filed this action on March 3, 1989.

her uterus and fallopian tubes that could affect her fertility. Faced with Ms. Roth's deteriorating condition, Dr. Kuncaitis subsequently referred her to two gynecologists. She consulted Dr. Stanley W. Greenwald in November 1984. He considered her available options to be simply accepting the pain or undergoing surgery. Ms. Roth does not recall asking Dr. Greenwald about the cause of her physical problems. Two years later, Ms. Roth consulted a second gynecologist, Dr. Barbara Beatty, about the desirability of a hysterectomy. Ms. Roth does not recall discussing the cause of her pelvic inflammatory disease or the possibility of a link between pelvic inflammatory disease and IUD use. If asked, however, Dr. Beatty stated she could have told Ms. Roth that the two episodes of pelvic inflammatory disease were "IUD associated salpingitis." ³

The district court concluded that the factual record supported summary judgment in favor of Searle because Iowa's two-year statute of limitations barred the Roths' claims. Roth v. G.D. Searle & Co., No. 4-89-7073, slip op. at 7, 1992 WL 672905 (Dec. 28, 1992). In reviewing the district court's entry of summary judgment, we apply the same standard as the district court. Trnka v. Elanco Products Co., 709 F.2d 1223, 1225 (8th Cir.1983). We view all facts in the light most favorable to the non-moving party, and give that party the benefit of all reasonable inferences that can be drawn from the facts. United States v. Columbia, 914 F.2d 151, 153 (8th Cir.1990); Woodsmith Pub. Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990). The court should grant summary judgment if the record, so considered, reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Kuhnert v. John Morrell & Co. Meat Packing, Inc., 5 F.3d 303, 304 (8th Cir.1993). The requirement that a fact dispute be genuine means that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). We review de novo, without deference, the district court's interpretation of state law. Salve Regina College v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

Under Iowa law, the "statute of limitations begins to run when the injured person discovers or in the exercise of reasonable care should have discovered the allegedly wrongful act." Franzen v. Deere & Co., 377 N.W.2d 660, 662 (Iowa 1985). Actual knowledge of one's injury or claim is not required. Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 351 (Iowa 1987). "The statute begins to run when the person gains knowledge sufficient to put him on inquiry." Id. Once the plaintiff gains such knowledge, the "plaintiff is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation." Id. Moreover, "the duty to investigate does not depend on exact knowledge of the nature of the problem that caused the injury." Franzen, 377 N.W.2d at 662. Rather, "[i]t is sufficient that the person be aware that a problem existed." Id.

The Roths argue that there is a genuine issue of fact as to whether Ms. Roth should have discovered her claims before March 1987, and therefore, the district court erred in entering summary judgment against them. The district court held that the undisputed facts show "that [Ms.] Roth knew facts sufficient to put her on inquiry notice, and reasonable inquiry would have led her to discover For the first time on appeal the Roth's challenge some of the court's "undisputed" facts. They question whether the brochure Ms. Roth received was the same brochure that Searle presented at her deposition. The Roths also argue that Dr. Kuncaitis' warnings were ineffective insofar as he warned Ms. Roth only about sexually transmitted risks, and not about the non-sexually transmitted infection which she allegedly developed. If a party fails to raise an issue for resolution by the district court, however, that issue may not be raised before this court. Diercks v. Durham, 959 F.2d 710, 713-14 (8th Cir.1992); Clarke v. Bowen, 843 F.2d 271, 273 (8th Cir.1988). The Roths did not raise these concerns in their opposition to Searle's motion for summary judgment. We reject the Roths' attempts to raise these issues for the first time before this court. "The district courts cannot be expected to consider matters that the parties have not expressly called to their attention, even when such matters arguably are within the scope of the issues that the parties have raised." Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.1986). A contrary result "could encourage a party to 'sandbag' at the district court level, only then to play his 'ace in the hole' before the appellate court." Id.

                her potential claims against defendant before March 3, 1987."   The court recounted several facts in support of its position.  First, the court stated that Dr. Kuncaitis gave Ms. Roth a "detailed patient brochure warning of PID," which she "briefly read through."  Slip op. at 7.   The court also found undisputed evidence that Dr. Kuncaitis warned Ms. Roth of at least some IUD-associated risks and that Dr. Carney informed her that she never

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