Sayre v. General Nutrition Corp.

Decision Date16 November 1994
Docket NumberCiv. A. No. 2:92-0444.
Citation867 F. Supp. 431
CourtU.S. District Court — Southern District of West Virginia
PartiesPaula L. SAYRE, Plaintiff, v. GENERAL NUTRITION CORPORATION, et al., Defendants.

James B. Lees, Jr., Hunt, Lees, Farrell & Kessler, Charleston, WV, for plaintiff.

Fazal A. Shere, P. Michael Pleska, Bowles, Rice, McDavid, Graff & Love, Arden J. Curry, II, Pauley, Curry, Sturgeon & Vanderford, Charleston, WV, Richard W. Hulbert, Cleary, Gottlieb, Steen & Hamilton, New York City, Richard deC. Hinds, Sara D. Schotland, Matthew D. Slater, Cleary, Gottlieb, Steen & Hamilton, Washington, DC for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending before the Court is the Defendants' motion for summary judgement contending the Plaintiff's claim is time-barred by the two-year statute of limitations embodied in W.Va.Code § 55-2-12(b). For reasons that follow, the Defendants' motion is GRANTED. Oral argument is unnecessary and the motion for such is DENIED.

I

A principal purpose of summary judgment is to isolate and dispose of meritless litigation. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The standard used to determine whether a motion for summary judgment should be granted or denied was stated recently by our Court of Appeals:

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Pro. 56(c). See Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979).
A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2514. The plaintiff is entitled to have the credibility of all his evidence presumed. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). The party seeking summary judgment has the initial burden to show absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The opposing party must demonstrate that a triable issue of fact exists; he may not rest upon mere allegations or denials. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A mere scintilla of evidence supporting the case is insufficient. Id.

Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994). Accord Riffe v. Magushi, 859 F.Supp. 220, 222, n. 1 (S.D.W.Va.1994); Cornell v. General Electric Plastics, 853 F.Supp. 221, 225-26 (S.D.W.Va. 1994); Thomas v. Shoney's, Inc., 845 F.Supp. 388, 389-90 (S.D.W.Va.1994) (Haden, C.J.).

II

The facts are undisputed. In 1983, on the recommendation of a friend, the Plaintiff began taking L-tryptophan to help her sleep. She bought her last bottle of L-tryptophan in November 1989. After she moved to Ohio in 1985, the Plaintiff bought L-tryptophan products from a General Nutrition Center store in Vienna, West Virginia, retail stores in West Virginia and Ohio owned by Rite-Aid and Revco, Swisher & Loshe Pharmacy in Pomeroy, Ohio, and The Farmacy in Athens, Ohio.

Prior to November 1989, the Plaintiff had been experiencing significant health problems including choking, a burning sensation in her spine, and extreme pain in her hips. On November 13, 1989, the Plaintiff saw a NBC Nightly News television report covering a federal investigation of an outbreak of a new illness, later called eosinophilia myalgia syndrome (EMS), which had been linked to L-tryptophan by the Centers for Disease Control and the Food and Drug Administration.1 The NBC report also stated that federal health officials had warned that the "risks of taking L-Tryptophane far outweigh any benefits. They are urging that stores stop selling it, and that if people have any at home they stop using it."2

After viewing the report, the Plaintiff wrote on November 14, 1989 to Dr. Huntwork, a rheumatologist who had treated her previously. She wrote "I have been taking L-Tryptophane 500 mg to help me sleep, but I heard on television last night it causes some disease effecting (sic) the muscles. Do you know anything about this?" The Plaintiff gave the letter to Dr. Huntwork but never questioned him on her self-prescribed use of L-tryptophan. The Plaintiff concluded L-tryptophan was not the cause of her medical problems and continued to take L-tryptophan until her supply was exhausted.

In May, 1990, the Plaintiff read a magazine article on the problems L-tryptophan was causing. Then she wrote three other treating physicians, again questioning the possibility of a link between her symptoms and L-tryptophan. The first medical diagnosis given Plaintiff that L-tryptophan was the source of her problems was made on April 20, 1993 by Dr. Virginia Stein to Mrs. Sayre.

The Plaintiff consulted an attorney in February 1992 and filed this action on May 15, 1992. Her case and claim was transferred for discovery and related pretrial matters to the District of South Carolina by the Panel on Multidistrict Litigation (MDL Panel) on July 23, 1992. On September 18, 1992, the case was removed from the active docket of this Court pending action in the District of South Carolina. The case was returned to this Court by the MDL Panel on March 16, 1994 and reopened here on May 3, 1994.

III

Here, Defendants moved for summary judgment, arguing Plaintiff's claim is time-barred by the statute of limitations. Under the discovery rule, Defendants contend the Plaintiff should have discovered the connection between her symptoms and her self-prescribed use of L-tryptophan when she first viewed the NBC news report. On the other hand, Plaintiff contends she did not discover the connection until May 1990, when she read the magazine article on L-tryptophan or until April 1990, when her symptoms were diagnosed as EMS. Despite its strong concerns against discouraging people from seeking proper medical diagnosis and treatment, the Court holds Plaintiff reasonably should have discovered the connection between her symptoms and L-tryptophan in November 1989 when she was so informed by the NBC telecast.

The Court exercises its diversity jurisdiction in this case. 28 U.S.C. § 1332. The parties agree the two-year statute of limitations provided by W.Va.Code § 55-2-12(b) applies, as well as the discovery rule developed for product liability cases by the Supreme Court of Appeals of West Virginia in Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987). See Cecil v. Airco, Inc., 187 W.Va. 190, 416 S.E.2d 728 (1992) (per curiam). However, the specific product liability discovery rule of Hickman has been subsumed within the general discovery rule developed by the Court in Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).

In Cart, the West Virginia Court ended its practice of extending the discovery rule on a case-by-case to new factual scenarios. Instead, the Court developed a discovery rule generally applicable to all torts3 stating "a cause of action accrues (i.e., the statute of limitations begins to run) when a tort occurs; under the `discovery rule,' the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim." Syl. pt. 1, Cart, 188 W.Va. 241, 423 S.E.2d 644 (1992). However, the Court cautioned

the `discovery rule,' then, is to be applied with great circumspection on a case-by-case basis only where there is a strong showing by the plaintiff that he was prevented from knowing of the claim at the time of the injury. The general rule is that mere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of the statute of limitations. In order to benefit from the rule, a plaintiff must make a strong showing of fraudulent concealment, inability to comprehend the injury, or other extreme hardship.

188 W.Va. at 245, 423 S.E.2d at 648 (emphasis in original) (footnotes omitted).4

After developing the generally applicable discovery rule in Cart, West Virginia's highest court acknowledged the second prong of the general rule would include the specific rule the Court had previously created for product liability cases. The Court opined "in the products liability area, lack of comprehension of injury includes (1) that the plaintiff has been injured, (2) the identity of the maker of the product, and (3) that the product has a causal relation to the injury." Cart, 188 W.Va. at 245, 423 S.E.2d at 648, n. 14 (quoting Syl. pt. 1, Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987)). Thus, the Hickman product liability discovery rule was incorporated into the second prong of the Cart test.

The first and third prongs of the general discovery rule are inapplicable to this case. There is no allegation of fraudulent concealment by the Defendants nor is this a situation showing an extreme hardship sufficient to activate the discovery rule. Only the second element of the general rule is applicable in this case: whether the Plaintiff was unable to comprehend her injury.

As noted, applying the second prong of the general discovery rule in a product liability case requires the analysis of the factors set forth in Hickman v. Grover: "The statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury." 178 W.Va. at...

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