Tolen v. AH Robins Co., Inc.

Decision Date13 September 1983
Docket NumberNo. L 81-72.,L 81-72.
Citation570 F. Supp. 1146
PartiesCarolyn Fausett TOLEN, Plaintiff, v. A.H. ROBINS CO., INC., Defendant.
CourtU.S. District Court — Northern District of Indiana


Mary Beth Ramey, Indianapolis, Ind., Brent E. Clary, Lafayette, Ind., for plaintiff.

James V. Donadio, Mary M. Nold Larimore, Ralph A. Cohen, Indianapolis, Ind., Brent E. Dickson, Lafayette, Ind., for defendant.


SHARP, Chief Judge.

This matter comes before this court on the motion for summary judgment of the defendant, A.H. Robins Company, Inc., (Robins). Plaintiff, Carol Ann Fausett Tolen1, brought this action alleging that she was injured by the use of the Dalkon Shield, an intrauterine contraceptive device manufactured and distributed by Robins. The sole issue to be addressed by the court is whether the present action is barred by the applicable statute of limitations. In light of the record presented on this motion, the court concludes that there is no genuine issue of fact regarding the accrual of the plaintiff's cause of action. Accordingly, the defendant's motion for summary judgment is hereby GRANTED.


After the birth of her third child in January 1972, plaintiff's personal physician recommended that she have a Dalkon Shield inserted for contraceptive purposes. Thereafter, on February 15, 1972, a Dalkon Shield was inserted into the plaintiff's uterus as a temporary method of birth control. In July of that year, the plaintiff was diagnosed as being three months pregnant. Her physician advised the plaintiff that the Dalkon Shield would not be removed during the pregnancy. Plaintiff delivered a healthy, though premature, infant son on November 23, 1972. Immediately following the delivery, a bilatual tubal ligation was performed; however, the Dalkon Shield could not be located during the procedure. At that time, plaintiff was informed by her physician that she would need a second operation in two to three years to remove the Dalkon Shield.

In the ensuing three year period, plaintiff experienced several health problems, i.e., pelvic, back and leg pain and cervical erosion. After the onset of pelvic infection and a pap smear strongly suggestive of malignancy, plaintiff underwent a second operation for a hysterectomy, appendectomy and bladder repair on May 30, 1975, at which time the Dalkon Shield was found in her lower left stomach cavity and not in her uterus.

On December 20, 1979, plaintiff read a newspaper article discussing the problems concerning the Dalkon Shield. Thereafter, on November 13, 1981, plaintiff filed a complaint seeking recovery on the theories of negligence, strict liability, implied warranty, express warranty and fraud. Plaintiff alleges that as a result of the use of the Dalkon Shield, she is sterile and still experiences pain and weakness in her legs, thus limiting her mobility and her prospects for employment. She is claiming damages for her unexpected pregnancy and the pain, mental distress and financial hardship emanating from it.

Robins moved for summary judgment on February 3, 1983, contending that the present action is barred by Ind.Code Ann. § 34-1-2-2 (Burns Supp.1982), the Indiana personal injury statute of limitations. Plaintiff filed a response on March 13, 1983, opposing the motion for summary judgment on the following bases: (1) Ind.Code § 34-1-2-2 is no bar because plaintiff's damages were incapable of ascertainment until December 20, 1979; (2) the limitation period was tolled because the defendant fraudulently concealed the cause of action from the plaintiff; (3) the limitation period was tolled because the defendant is a non-resident and has not maintained an agent for service of process; (4) the action is not time barred because the plaintiff has alleged breaches of implied and express warranties, the limitation period being four years; and (5) the plaintiff has stated a prima facie case of fraud and is entitled to a six year statute of limitations applicable to fraud cases. After a hearing and oral argument held in Lafayette, Indiana on July 27, 1983, this matter was taken under advisement. Jurisdiction of this court is predicated upon diversity of citizenship pursuant to 28 U.S.C. § 1332.


In determining the law applicable to the statute of limitations issue, the court must apply the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Goldberg v. Medtronic, 686 F.2d 1219 (7th Cir.1982). Robins argues that this cause of action is governed by Ind.Code Ann. § 34-1-2-2 (Burns Supp.1982) which reads as follows:

The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards: (1) For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two 2 years.

It is the well-established rule in Indiana that a cause of action accrues at the time injury is produced by wrongful acts for which the law allows damages susceptible of ascertainment. Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928); Babson Brothers Co. v. Tipstar Corp., Ind. App., 446 N.E.2d 11 (1983). In essence, a cause of action accrues when the alleged negligence culminates in injury to the plaintiff and damages resulting from that injury are ascertainable. Merritt v. Economy Department Store, 125 Ind.App. 560, 128 N.E.2d 279 (1955). Therefore, the statute of limitations begins to run at the time a complete cause of action accrues or when a person becomes liable for an action. Babson, supra. This general rule has been interpreted to mean that the statute commences to run when the injurious action occurs though the plaintiff may not learn of the act until later. Guy v. Schuldt et al., 236 Ind. 101, 138 N.E.2d 891 (1956). See also, Whitehouse v. Quinn, Ind.App., 443 N.E.2d 332 (1982); French v. Hickman Moving & Storage, Ind.App., 400 N.E.2d 1384 (1980); Kaletha v. Bortz Elevator Company, Inc., 178 Ind.App. 654, 383 N.E.2d 1071 (1978).

The Supreme Court of Indiana has recently reaffirmed this rule of law in Shideler v. Dwyer, Ind., 417 N.E.2d 281 (1981), a case in which the court addressed the issue of when a legal malpractice action accrues. The factual situation presented in Shideler involved a provision of a will which was interpreted by the probate court as invalid. The plaintiff contended that the statute of limitations did not commence to run until entry of the judicial decree voiding the will provision. The court held that the damage occurred at the moment of the testator's death when the will became operative. The court noted:

For a wrongful act to give rise to a cause of action and thus to commence the running of the statute of limitations, it is not necessary that the extent of the damages be known or ascertainable but only that damage has occurred. 417 N.E.2d at 289.

Applying this rule to this case, it is apparent that plaintiff's cause of action is clearly barred by the Indiana statute of limitations. The plaintiff suffered, and was cognizant of, both injury and damages in November 1972 and, at the latest, by May 1975. Plaintiff is claiming damages for her pregnancy which occurred during her use of the Dalkon Shield and is further claiming damages associated with expenses incurred with raising her child. Therefore, legal injury alleged by the plaintiff occurred on the date of insertion of the Dalkon Shield in February 1972. The first evidence of damage appeared in July 1972 when plaintiff became pregnant and knew that the Dalkon Shield had failed in its intended purpose. Therefore, by July 1972 plaintiff had not only suffered legal injury but also knew that she had suffered legal damage.

Further, plaintiff was put on notice as to other elements of damage in November 1972 and May 1975. In November 1972 plaintiff was advised that the Dalkon Shield could not be located in her body and would have to be removed at a later time during the course of a second operation. The record indicates that plaintiff had intended the use of the Dalkon Shield as a temporary form of birth control and had not expected that an operation would be necessary in order to remove it. Thus, by November 1972 plaintiff was aware of the fact that the birth control device could not be removed as anticipated. Finally, in May 1975 plaintiff was informed that the Dalkon Shield was found in her lower left stomach cavity and not in her uterus where it was supposed to be. Plaintiff admits in her deposition testimony that the aforementioned events left her with many questions about the Dalkon Shield. Consequently, under Indiana's two year statute of limitations, the time within which to file suit expired in July 1974, or at the latest, May 1977.

Plaintiff contends that her cause of action did not occur until she discovered the causal connection between her injury and the Dalkon Shield. This allegedly occurred in December 1979 when she read an article in the Lafayette Journal and Courier about problems concerning the Dalkon Shield. In effect, plaintiff is advocating the application of the discovery rule to the present action.

Indiana courts have not ruled directly on the applicability of the discovery rule to medical products liability cases.2 Plaintiff places great emphasis on the court's opinion in Withers v. Sterling Drug, Inc., 319 F.Supp. 878 (S.D.Ind.1970) to support her contention that the discovery rule should be applied to this action. A careful reading of that opinion leads this court to conclude that such reliance is misplaced. In Withers, the plaintiff brought a personal injury action to recover damages for an eye injury allegedly caused by the defendant's drug. The plaintiff began to experience eye problems in 1962. In 1963, the plaintiff consulted a...

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