Swiss v. Eli Lilly & Co.

• Decision Date: 03 August 1982
• Docket Number: Civ. A. No. 80-0132.
• Parties: Betsy SWISS v. ELI LILLY & CO., et al.
• Court: U.S. District Court — District of Rhode Island

559 F. Supp. 621

Betsy SWISS v. ELI LILLY & CO., et al.

Civ. A. No. 80-0132.

United States District Court, D. Rhode Island.

August 3, 1982.

Max Wistow, Providence, R.I., for plaintiff.

Richard Borod, Providence, R.I., for Lilly.

William Curran, Providence, R.I., for Squibb.

James J. McKenna, Providence, R.I., for Schering.

Thomas D. Gidley, Providence, R.I., for Merck.

Bruce G. Tucker, Providence, R.I., for Upjohn.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

This is an action for compensatory and punitive damages against several drug manufacturers based on theories of negligence, breach of warranty, and strict product liability. Subject matter jurisdiction rests on diversity of citizenship. See 28 U.S.C. § 1332. Plaintiff alleges that her mother, while pregnant with plaintiff, ingested a drug known as diethylstibestrol "DES", which one of the defendants allegedly manufactured. In 1977 plaintiff discovered that she has a form of cancer. Memorandum in Support of Plaintiff's Objection to Motion for Summary Judgment at 3 (June 4, 1982). Plaintiff claims that her cancer was caused by her mother's use of DES.

Plaintiff filed a complaint in this Court against all but one of the present defendants in March 1978. Discovery later revealed that the drug used by plaintiff's mother may have been manufactured by McNeil Laboratories "McNeil", which was not named as a defendant in the original complaint. In March of 1981, this Court granted plaintiff's motion to amend her complaint to add McNeil as a defendant.

McNeil now moves for summary judgment. McNeil contends that the amendment to plaintiff's complaint adding McNeil as a party does not relate back under Fed. R.Civ.P. 15(c)¹ to the date on which the original complaint was filed for purposes of the applicable statute of limitations. Thus, McNeil argues that plaintiff's claims against it are time-barred under R.I.Gen. Laws § 9-1-14² because it was not named as a defendant until more than three years after plaintiff discovered her cancerous condition. For the reasons that follow, this Court finds that McNeil is entitled to summary judgment.

I. Accrual of Cause of Action

R.I.Gen.Laws § 91-1-14 requires that personal injury suits be brought within three years after the cause of action "accrues." Plaintiff does not dispute that § 9-1-14 applies to her claims against McNeil. Rather, plaintiff suggests that § 9-1-14 had not run as to these claims when she added McNeil as a party in 1981. She contends that, for purposes of § 9-1-14, her causes of action against McNeil did not "accrue" until she discovered from her mother's prescription records that McNeil might be the manufacturer of the DES that allegedly caused plaintiff's cancer. Alleging that she made this discovery in November of 1980, less than three years prior to adding McNeil as a defendant, plaintiff argues that her claims are timely—whether or not her amended complaint "relates back" under Fed.R.Civ.P. 15(c).

This Court cannot accept plaintiff's argument as to when a cause of action accrues under § 9-1-14. Plaintiff has cited no authority, either from the Rhode Island courts or from other courts, to support the proposition that a cause of action for personal injury does not accrue until a plaintiff identifies the party responsible for the injury. Furthermore, this Court's own research into Rhode Island case law has disclosed no such authority.³

The general rule in Rhode Island is that a cause of action accrues, and the statute of limitations begins running, at the time injury occurs. See Von Villas v. Williams, 117 R.I. 309, 366 A.2d 545, 548 (R.I. 1976) (personal injury in auto accident); Romano v. Westinghouse Electric Co., 114 R.I. 451, 336 A.2d 555, 560-61 (R.I.1975) (product liability action for property damage). Cf. Fuscellaro v. Industrial Nat'l Corp., 117 R.I. 558, 368 A.2d 1227, 1231 (R.I.1977) (cause of action in conversion accrues at time wrongful dominion exercised, "regardless of the plaintiff's ignorance" of such dominion). In general, "neither the ignorance of a person of his right to bring an action nor the mere silence of a person liable to the action prevents the running of the statute of limitations." Kenyon v. United Electric Railways Co., 51 R.I. 90, 94, 151 A. 5 (R.I.1930) (dicta). Of course, limited exceptions to these general principles exist. Where a defendant conceals from a plaintiff by actual misrepresentation the existence of a cause of action, "said cause of action is ... deemed to accrue ... at the time the plaintiff ... first discovers its existence." R.I.Gen.Laws § 9-1-20. In addition, an action for medical malpractice does not accrue until the patient discovers the existence of his injury. Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745, 752 (R.I.1968). Such discovery of injury rules rest on the policy that "a person should have some opportunity to have his day in court to vindicate those rights which have been violated but have remained undiscovered or undiscoverable." Von Villas v. Williams, 366 A.2d at 549. However, no Rhode Island case holds that a cause of action does not accrue until the plaintiff both discovers his injury and identifies the party responsible for the injury.

In this diversity action, this Court must apply the law that it thinks the Rhode Island Supreme Court would adopt. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This Court does not believe that the Rhode Island Supreme Court would adopt plaintiff's definition of accrual. Under this definition, a claimant could have an unlimited amount of time in which to sue: a claim would remain alive until a plaintiff became convinced that a particular party was responsible for his injuries. Such a result would be inconsistent with "the policy of eliminating the unexpected enforcement of stale claims" that lies at the core of statutes of limitations. Von Villas v. Williams, 366 A.2d at 549.

Furthermore, the Rhode Island Supreme Court's opinion in Fuscellaro v. Industrial Nat'l Corp., 117 R.I. 558, 368 A.2d 1227 (R.I.1977), indicates that the Supreme Court would not adopt plaintiff's argument as to accrual. Because of the need for finality in commercial paper transactions, the Supreme Court in Fuscellaro refused to define the date of accrual of a cause of action for conversion of a check as the date on which the plaintiff discovers the conversion. Rather, the court adhered to "the general rule that in the absence of fraud by those invoking the statute of limitations, a cause of action for conversion accrues at the time the defendant wrongfully exercises dominion, regardless of the plaintiff's ignorance." Id. 368 A.2d at 1231. Because the Rhode Island Supreme Court has thus refused to adopt discovery of injury uniformly as the time of accrual of a cause of action, it seems highly unlikely that it would embrace plaintiff's discovery of the responsible party rule as a general definition of accrual.

Finally, it appears that Rhode Island has already provided a specific statutory procedure to help claimants avoid the bar of the statute of limitations when they do not know the identity of those who have injured them. R.I.Gen.Laws § 9-5-20 provides:

Whenever the name of any defendant or respondent is not known to the plaintiff, the summons and other process may issue against him by a fictitious name, or by such description as the plaintiff or complainant may select; and if duly served, it shall not be abated for that cause, but may be amended with or without terms as the court may order.

In Sousa v. Casey, 111 R.I. 623, 306 A.2d 186 (R.I.1973), the Rhode Island Supreme Court held that the filing of a complaint under § 9-5-20 against unknown "Joe Doe" defendants tolls the running of the applicable statute of limitations. Id. 306 A.2d at 192. "Service upon the actual defendants must be made within a reasonable time after a complaint under § 9-5-20 has been filed, absent a showing by the plaintiff that such delay was excusable." Id. Plaintiff, however, did not invoke § 9-5-20 in this case. Her original complaint names no "John Doe" defendants.

The existence of the tolling provision in § 9-5-20 further indicates that the Rhode Island Supreme Court would not embrace plaintiff's broad accrual rule. To adopt that rule would essentially render § 9-5-20 superfluous. The Rhode Island legislature has provided a specific procedure in this statute to sue unknown defendants. Plaintiff may not now circumvent this procedure by proposing a novel formula for determining the date of accrual of her causes of action.⁴

Thus, this Court holds that plaintiff's claims against McNeil accrued no later than 1977, when she discovered her cancerous condition. These claims are therefore time-barred unless her amended complaint adding McNeil as a defendant relates back to the filing of her original complaint.

II. Relation—Back

According to the First Circuit, Federal Rule of Civil Procedure 15(c) permits an amendment adding a party to relate back to the date of the original pleading if three conditions are met: (1) the claims against the new party arise out of the same occurrence as the claims in the original pleading, (2) the new party received "notice of the institution of the action" before the limitations period expired, and (3) the new party "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."

Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102 (1st Cir.1979).

In this case, the second requirement of Fed. R.Civ.P. 15(c)⁵ as to notice of commencement of the action has not been met.

This Court recently held in Butler v. Allen-Bradley Co., C.A. Nos. 78-0037, 78-0038, 79-0023, unpublished opinion at 5 (D.R.I. Feb. 16, 1982), that "it is well settled that Rule 15(c) ... requires that the party added by amendment must have received actual notice of the institution of plaintiff's lawsuit prior to the...