Thomas v. Ferndale Laboratories, Inc., Docket No. 78-4183

• Decision Date: 02 June 1980
• Docket Number: Docket No. 78-4183
• Citation: 97 Mich.App. 718,296 N.W.2d 160
• Parties: Deborah M. THOMAS, Plaintiff-Appellee, v. FERNDALE LABORATORIES, INC., Successor Corporation to J. F. Hartz Company, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 160

296 N.W.2d 160

97 Mich.App. 718

Deborah M. THOMAS, Plaintiff-Appellee, v. FERNDALE LABORATORIES, INC., Successor Corporation to J. F Hartz Company, Defendant-Appellant.

Docket No. 78-4183.

Court of Appeals of Michigan.

June 2, 1980.

Released for Publication Sept. 24, 1980.

Harry J. Sherbrook, Detroit, for defendant-appellant.

Richard J. Dimanin, Southfield (Hayim I. Gross, Troy, of counsel), for plaintiff-appellee.

Before CAVANAGH, P. J., and MAHER and WALSH, JJ.

WALSH, Judge.

Defendant appeals an order denying a motion for accelerated judgment based on the expiration of the statute of limitations. GCR 1963, 116.1(5).

The facts of this case remain essentially undisputed. In the mid-1950s, plaintiff's mother consumed the drug diethylstilbestrol (hereafter DES) during pregnancy. Plaintiff, Deborah Thomas, was born on May 5, 1956.

In 1972, plaintiff's mother became aware of the potential harm to the offspring of women who had taken DES. During that same year plaintiff began medical treatment for the identification of possible DES-related injuries. In 1973, plaintiff contacted Dr. Joan Stryker for further medical treatment. The results of the Schillers test showed the presence of certain growths. After a colposcopy examination was performed, Dr. Stryker informed plaintiff of an adenosis condition which was caused by DES. At this time plaintiff became aware of her cause of action. ¹

On May 7, 1974, plaintiff filed a suit naming Eli Lilly and Company and Dr. Stryker as the defendants. On September 9, 1974, Dr. Stryker advised plaintiff that Ferndale Laboratories had manufactured and distributed the DES taken by plaintiff's mother. Plaintiff's suit against Eli Lilly and Company and Dr. Stryker was dismissed for no progress on February 10, 1975.

Plaintiff filed a complaint against Ferndale Laboratories based on negligence and breach of warranty on May 23, 1977. In its answer, defendant raised the affirmative defense of the expiration of the statute of limitations.

In a deposition taken on January 3, 1978, plaintiff admitted that she was aware of her injuries and their DES causation in 1973. Ferndale Laboratories moved for accelerated judgment on the ground that the statutory limitation period had elapsed. The circuit judge denied the motion and ruled that the limitation period did not begin to run until September, 1974, when plaintiff became aware of the identity of the drug manufacturer. Defendant's motion for rehearing was denied.

The sole issue on appeal is: Can the running of the statute of limitations be delayed until the plaintiff becomes aware of the identity of the alleged tortfeasor, when that knowledge is ascertained after the date that all of the elements of the cause of action have occurred? We answer in the negative and conclude that the trial court erred in denying the motion for accelerated judgment.

In Walerych v. Isaac, 63 Mich.App. 478, 234 N.W.2d 573, lv. den. 395 Mich. 776 (1975), plaintiff filed a medical malpractice action against a hospital and two "John Doe" physicians. After the statutory period had run, plaintiff filed a complaint against Dr. Isaac. On appeal, plaintiff relied on the date of discovery rule for malpractice actions enunciated in Dyke v. Richard, 390 Mich. 739, 213 N.W.2d 185 (1973), and argued that the statute did not run until 2 years after she discovered or in the exercise of reasonable diligence should have discovered the identity of the physician liable for her injuries. This Court rejected that contention and stated as follows:

"Plaintiff in this case knew by at least December, 1971, that there might be a cause of action against certain physicians. Plaintiff's action against defendant was instituted more than two years from that date. We are unwilling to hold that Dyke v. Richard, supra, applies here. The issues of professional knowledge and reasonableness are not present. Discovery of the identity of an alleged tortfeasor is no more difficult when the wrong alleged is malpractice." Walerych v. Isaac, supra, 481, 234 N.W.2d 575.

In Kroll v. Vanden Berg, 336 Mich. 306, 57 N.W.2d 897 (1953), the Supreme Court disagreed with plaintiff's argument that the running of the statute should have been delayed until more detailed information about the injury could be obtained. The Court noted:

"In Weast v. Duffie, 272 Mich. 534, at page 539 (262 N.W. 401, 402), we quote with approval from 37 C.J. p. 976, as follows:

" 'It is not necessary that a party should know...