Upjohn Co. v. Freeman

• Decision Date: 26 August 1994
• Docket Number: No. 05-93-00468-CV,05-93-00468-CV
• Citation: 885 S.W.2d 538
• Parties: The UPJOHN COMPANY, Appellant, v. William R. FREEMAN, Martha Freeman, Individually and as Next Friend and Guardian of Sean Perry Freeman, a Minor Child, Suzanne E. Freeman, as Next Friend and Guardian of Leah Suzanne Freeman and William Lance Freeman, Minor Children, and Lori Yvonne Freeman, Appellees.
• Court: Texas Court of Appeals

Page 538

885 S.W.2d 538

The UPJOHN COMPANY, Appellant, v. William R. FREEMAN, Martha Freeman, Individually and as Next Friend and Guardian of Sean Perry Freeman, a Minor Child Suzanne E. Freeman, as Next Friend and Guardian of Leah Suzanne Freeman and William Lance Freeman, Minor Children and Lori Yvonne Freeman, Appellees.

No. 05-93-00468-CV.

Court of Appeals of Texas Dallas.

Aug. 26, 1994.

Rehearing Denied Oct. 4, 1994.

Stephen E. Scheve and Robert H. McCully, Kansas City, MO, Richard L. Josephson, Houston, Earl B. Austin and Lynn S. Switzer, Dallas, for appellant.

Coyd Randal Johnson and Jeff Kaplan, Martin Lowy, Paul C. Watler, Dallas, for appellees.

Before BAKER, THOMAS and BURNETT, JJ.

OPINION

BURNETT, Justice.

William R. Freeman and his family sued The Upjohn Company for negligence and products liability for injuries resulting from Freeman's use of Halcion, a prescription sleeping pill. ¹ Freeman alleged that taking Halcion caused him to be psychotic, paranoid, and delusional; resulted in memory loss and attempted suicides; and caused him to kill Donnie Hazelwood. Freeman sought damages for these injuries, and the Family sued for loss of consortium and loss of support.

At the close of evidence, the trial court instructed a take-nothing verdict in favor of Upjohn on Freeman's claims for lost wages and diminished earning capacity. The jury found Upjohn grossly negligent in dispensing Halcion with a marketing defect. The jury awarded zero damages to Freeman and awarded actual and exemplary damages to the Family. The jury awarded damages for loss of consortium to Martha, Sean, Leah, and Lori Freeman. The jury awarded loss-of-support damages to Martha, Sean, Leah, and Lance. With respect to the jury's award for loss of support, the trial court entered a take-nothing judgment notwithstanding the verdict in favor of Upjohn.

Upjohn appeals the jury verdict, asserting six general points of error. Upjohn contends that (i) the statute of limitations bars the Family's claims; (ii) the actual and exemplary damage awards are not sustainable as a matter of law; and (iii) the evidence supporting the causation findings is legally and factually insufficient. Upjohn further contends that the trial court erred in (i) submitting the charge to the jury, (ii) admitting certain testimony and exhibits into evidence, and (iii) calculating the damage award.

The Family appeals the trial court's judgment, asserting two cross-points of error. The Family contends that the trial court erred in (i) entering a judgment n.o.v. regarding the jury's award for loss of support and (ii) applying settlement credits because of settling defendants.

We conclude that the Family pleaded sufficient facts to put the continuing-tort rule in issue; therefore, Upjohn did not conclusively establish that Freeman's cause of action accrued outside the statutory period. The jury found that Freeman did not suffer an injury because of Upjohn's negligence or product. Consequently, the jury's finding precludes the Family's cause of action for loss of consortium as a matter of law. Finally, we hold that there is no recovery for loss-of-support damages in a personal-injury claim as a matter of law. We reverse the trial court's judgment and render a take-nothing judgment for Upjohn.

STATUTE OF LIMITATIONS

In point of error one, Upjohn contends that the statute of limitations bars the Family's causes of action. Upjohn asserts that the Family did not file suit within the statutory period and did not secure jury findings sufficient to invoke the discovery rule. The Family maintains that Upjohn did not establish that Freeman's cause of action accrued more than two years before suit was filed. The Family contends that the continuing-tort rule applies to injuries resulting from the use of prescription medication. The Family further asserts that the children's legal disability of minority precludes applying limitations to their claims.

Texas law recognizes a cause of action for the loss of spousal and parental consortium. Reagan v. Vaughn, 804 S.W.2d 463, 466 (Tex.1990), clarified on reh'g, 804 S.W.2d at 467 (1991); Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex.1978). However, such a cause of action is extinguished by the expiration of the statute of limitations on the injured family member's personal-injury claim. See Reagan, 804 S.W.2d at 466; Work v. Duval, 809 S.W.2d 351, 354 (Tex.App.--Houston [14th Dist.] 1991, no writ). The parties agree that the applicable statute of limitations for the family member in a personal-injury case based on negligence and strict products liability is two years. See TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986). Therefore, the Family must have brought suit for loss of consortium not later than two years after the date that Freeman's cause of action accrued.

Because the statute of limitations is an affirmative defense, Upjohn bore the initial burden of pleading and proving its plea of limitations. TEX.R.CIV.P. 94; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988); Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 99 (Tex.Civ.App.--Amarillo 1971, writ ref'd n.r.e.). Upjohn pleaded limitations. At the close of evidence, Upjohn moved for a directed verdict, asserting a limitations defense. The trial court denied Upjohn's motion. To prevail on appeal, Upjohn must demonstrate that the record evidence conclusively proves, as a matter of law, that the Family's causes of action accrued more than two years before suit was filed. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). Accordingly, Upjohn must establish the date on which Freeman's cause of action accrued and the date on which suit was filed. Intermedics Inc. v. Grady, 683 S.W.2d 842, 845 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

Generally, a cause of action accrues when the wrongful act effects an injury, regardless of when the plaintiff learns of the injury. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977). If the act itself constitutes an invasion of the plaintiff's legally protected right or interest, then the cause of action accrues when the act occurred. But if the act was not a legal transgression, then the claim arises when an actual injury results. Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967); see 50 TEX.JUR.3d Limitation of Actions § 58 (1986).

Here, Upjohn's sale of Halcion was a lawful act because it did not constitute a legal injury, that is, an injury giving rise to a cause of action due to an invasion of some right of Freeman. See Atkins, 417 S.W.2d at 153. Therefore, Freeman's personal-injury claim resulting from his use of Halcion arose only when he sustained damages. See Atkins, 417 S.W.2d at 153; see also Cherry v. Chustz, 715 S.W.2d 742, 745 (Tex.App.--Dallas 1986, no writ) (claims based on strict products liability arise on date of injury).

Typically, the limitations period begins to run when the claim accrues or, as in this case, when damages are sustained. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829 (Tex.1990); see Parker v. Yen, 823 S.W.2d 359, 365 (Tex.App.--Dallas 1991, no writ). However, an exception to this rule is found with continuing torts. See Adler v. Beverly Hills Hosp., 594 S.W.2d 153, 154 (Tex.Civ.App.--Dallas 1980, no writ). A cause of action for a continuing tort does not accrue until the defendant's tortious act ceases. Tectonic Realty Inv. Co. v. CNA Lloyd's of Tex. Ins. Co., 812 S.W.2d 647, 654 (Tex.App.--Dallas 1991, writ denied).

The Freemans allege that their claims are based on the ongoing injury to Freeman due to his continued use of Halcion. The Freemans urge that the limitations period did not begin to run until Freeman stopped taking the drug because he remained a "prisoner" of the side-effects of Halcion.

The concept of continuous injury originated in trespass-to-land and nuisance cases and has been expanded to include false-imprisonment cases. See Creswell Ranch & Cattle Co. v. Scoggins, 15 Tex.Civ.App. 373, 39 S.W. 612, 614 (1897); Adler, 594 S.W.2d at 155. In Adler, this Court viewed the entire period of detention as one continuing tort for which a single cause of action accrues when the imprisonment ceases. Adler, 594 S.W.2d at 154. We reasoned that each day of imprisonment may be understood to create a separate cause of action. Therefore, to avoid multiplicity of suits, the cause of action for false imprisonment is not complete and does not accrue until the detention ends. Adler, 594 S.W.2d at 155. Accordingly, the plaintiff may wait and bring a single suit for the whole period of imprisonment. Adler, 594 S.W.2d at 156; see 54 C.J.S. Limitations of Actions § 177 (1987).

In the present case, the wrongful conduct is the negligent sale of Halcion in a defective condition. Upjohn's wrongful conduct became actionable when Freeman used Halcion in a manner that caused him injury. As long as Freeman (unaware of the consequences) continued using Halcion, Upjohn's conduct continued with respect to Freeman. However, a continuous tort involves not only continuing wrongful conduct, but continuing injury as well. See Adler, 594 S.W.2d at 155-57; Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex.App.--Austin 1990), rev'd on other grounds, 855 S.W.2d 619 (Tex.1993). In a continuing-tort case, the wrongful conduct continues to effect additional injury to the plaintiff until that conduct stops. Arquette v. Hancock, 656 S.W.2d 627, 629 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.); Adler, 594 S.W.2d at 155.

If Upjohn's conduct caused a continuing injury that did not end until Freeman stopped taking the drug, then the continuing-tort rule may apply. Continued use of an injury-producing medication may be a continuing tort. See Gatling v. Perna, 788 S.W.2d 44, 46 (Tex.App.--Dallas 1990, writ denied). As long as Upjohn's conduct continued effecting injury to Freeman, each injury may be understood to create a separate cause of action; therefore,...