S.J.D. v. Mentor Corp., 90-0739

• Decision Date: 21 November 1990
• Docket Number: No. 90-0739,90-0739
• Citation: 159 Wis.2d 261,463 N.W.2d 873
• Parties: , Prod.Liab.Rep. (CCH) P 12,806 S.J.D., Plaintiff-Appellant, v. MENTOR CORPORATION, The St. Paul Companies, Inc., ABC Insurance Company and Central Life Assurance Co., Defendants-Respondents, d Waukesha Memorial Hospital, Defendant.
• Court: Wisconsin Court of Appeals

Page 873

463 N.W.2d 873

159 Wis.2d 261, Prod.Liab.Rep. (CCH) P 12,806

S.J.D., Plaintiff-Appellant, v. MENTOR CORPORATION, The St. Paul Companies, Inc., ABC Insurance Company and Central Life Assurance Co. Defendants-Respondents, ^d Waukesha Memorial Hospital, Defendant.

No. 90-0739.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 8, 1990.

Opinion Released Nov. 21, 1990.

Opinion Filed Nov. 21, 1990.

James R. Eilman, Eilman and Sakar, Milwaukee, for plaintiff-appellant.

Trevor J. Will and Michael P. Van Alstine, Foley and Lardner, Milwaukee, for defendants-respondents.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

NETTESHEIM, Presiding Judge.

S.J.D. appeals from a summary judgment dismissing his claim for negligent manufacture of a prosthetic device on the grounds that the claim was barred by the three-year statute of limitations set forth in sec. 893.54, Stats. The sole issue on appeal is whether S.J.D.'s cause of action accrued when a doctor advised him to have the device surgically removed or, some sixty days later, when the same doctor inspected the device during surgery. Based on our review of the record in this case, we determine that there are no material facts in dispute and that the trial court erred in determining that the statute of limitations began to run as of the earlier date. Because we conclude that the claim was timely commenced, we reverse and direct that the cause be reinstated.

S.J.D. had an inflatable penile prosthesis implanted by Dr. James Rasmussen in March of 1985 to counteract impotence brought on by diabetes. The prosthesis was manufactured by Mentor Corporation (Mentor). In April of 1986, S.J.D. began experiencing pain in his lower abdomen, near the site of the implant surgery. About the same time, S.J.D. noted that the implant had failed completely. On April 6, 1986, S.J.D. was examined by Dr. Stuart Fine, as Dr. Rasmussen was on vacation at the time. Dr. Fine confirmed that the prosthesis was not functioning properly. He also determined that S.J.D. had a hernia, which may or may not have been related to the prosthetic failure.

Dr. Fine advised S.J.D. to undergo surgery to correct the hernia, to check the Mentor prosthesis, and, if necessary, to remove and replace the device. Dr. Fine indicated that if replacement was necessary, he would implant a device made by a different manufacturer, due to what he termed the "problems that he had known about with [the Mentor device]." Dr. Fine told S.J.D. that the only way he could determine what might be wrong with the device was to operate and examine the device.

Two days later, S.J.D. gave Dr. Fine permission to operate. However, Dr. Fine was not able to immediately operate because S.J.D. had difficulty obtaining approval from his insurer. The surgery was performed on June 11, 1986; Dr. Fine found that the Mentor prosthesis had broken apart into pieces which were, in turn, causing damage to surrounding tissues.

S.J.D. filed his complaint on June 9, 1989. Mentor moved for summary judgment, arguing that S.J.D.'s cause of action expired on April 6, 1989--three years from the date Dr. Fine told S.J.D. that his prosthesis had indeed failed and that corrective surgery was indicated. S.J.D. disagreed, asserting that the cause of action accrued some sixty days later, in June of 1986, when, during the course of the operation, Dr. Fine discovered that the prosthesis had broken apart.

The trial court directed summary judgment in favor of Mentor, reasoning that the statute of limitations began to run from the time Dr. Fine told S.J.D. that the prosthesis had failed and would perhaps need to be replaced. The trial court concluded that Dr. Fine's observation of a possible connection between S.J.D.'s pain and Mentor's product triggered the running of the statute of limitations. We conclude that the law required more. Therefore, we reverse.

A summary judgment motion presents a question of law which we review de novo and we are not required to give deference to the trial court's ruling. See Jenson v. Employers Mut. Cas. Co., 154 Wis.2d 313, 316, 453 N.W.2d 165, 166 (Ct.App.1990). Appellate courts follow the same methodology as trial courts when reviewing the trial court's summary judgment determination. Milbrandt v. Huber, 149 Wis.2d 275, 287, 440 N.W.2d 807, 811 (Ct.App.1989). We will not repeat this oft-stated methodology here, see Preloznik v. City of Madison, 113 Wis.2d 112, 116, 334 N.W.2d 580, 582-83 (Ct.App.1983), except to say that this methodology includes an inquiry as to whether there are any material issues of fact and whether the moving party is entitled to judgment as a matter of law. Milbrandt, 149 Wis.2d at 287, 440 N.W.2d at 811.

We have examined the summary judgment record in this case from this perspective. The issue before us hinges upon the effect we give to Dr. Fine's advice to S.J.D. on April 6, 1986. Although the parties hotly dispute whether this event triggered the running of the statute of limitations, the evidence and the reasonable inferences to be drawn therefrom about this critical event are not in dispute. Thus, we are satisfied that the question is one appropriate for summary judgment.

We begin by reviewing some fundamental principles of statute of limitations law. Wisconsin adheres to the so-called "discovery rule" for the accrual of a cause of action in tort. Hansen v. A.H. Robins Co., Inc., 113 Wis.2d 550, 560, 335 N.W.2d 578, 583 (1983). The discovery rule represents a response to the equities inherent in circumstances where negligence and a resulting injury do not occur simultaneously. Under the discovery rule, the statute of limitations begins to run when the potential plaintiff discovers the injury, or in the exercise of due diligence should have discovered the injury. Id.

The supreme court added a further refinement to the discovery rule in Borello v. U.S. Oil Co., 130 Wis.2d 397, 388 N.W.2d 140 (1986). There, the court held that discovery embraces two distinct concepts: a cause of action cannot be said to accrue until the claimant discovers both the nature of his or her injury and its cause--or at least a relationship between the event and injury. Id. at 406-07, 388 N.W.2d at 144. Moreover, the relationship between the injury and its cause must be more than a layperson's hunch or belief. Id. at 412, 388 N.W.2d at 146.

In Borello, the plaintiff journeyed to several doctors over a period of years, trying to discover the likely cause of her headaches, dizziness and respiratory distress. Borello had long suspected her furnace as the likely culprit, for her troubles began shortly after its installation, and worsened with each successive episode in which it would emit a strange reddish dust and foul-smelling fumes. Still, the many doctors Borello consulted diagnosed her as having conditions ranging from allergies to heart disease to psychoneurosis. Finally, a specialist in occupational medicine correctly determined that Borello had a condition known as metal fume fever, caused by her malfunctioning furnace. Unlike the other doctors, the specialist was able to offer Borello objective proof that her hunch was correct: he ordered laboratory analysis of particles spewed by her furnace.

U.S. Oil Company, who installed the furnace, claimed the statute of limitations began to run with Borello's own subjective belief that the furnace was causing her medical condition and not with the correct diagnosis some years later. The supreme court held that Borello's cause of action accrued at the time...