Wade v. Danek Medical

• Decision Date: 07 April 1999
• Docket Number: SOFAMOR-DANEK,GICD-USA,CA-95-876-3,No. 98-2036,INCORPORATED,DEPUY-MOTEC,98-2036
• Citation: 182 F.3d 281
• Parties: (4th Cir. 1999) JEANNETTE WADE; EDWIN WADE, Plaintiffs-Appellants, v. DANEK MEDICAL, INCORPORATED; SOFAMOR, INCORPORATED;GROUP, INCORPORATED; SOFAMOR, S.N.C.; WARSAW ORTHOPEDIC, INCORPORATED, Defendants-Appellees, and AMERICAN ACADEMY OF ORTHOPEDIC SURGEONS; NORTH AMERICAN SPINE SOCIETY; SCOLIOSIS RESEARCH SOCIETY; ZIMMER, INCORPORATED; DANEK CAPITAL CORPORATION; DANEK SALES CORPORATION; BUCKMAN COMPANY, INCORPORATED; NOREX USA, INCORPORATED; NATIONAL MEDICAL SPECIALTY, INCORPORATED; STUART, INCORPORATED; EDUARDO LUQUE; PAUL MCAFEE; ROGER P. JACKSON; DAVID BRADFORD; YVES COTREL; JEAN DUBOUSSET; HARRY SHUFFLEBARGER; R. GEOFFREY WILBER; CHARLES E. JOHNSTON, II; RICHARD ASHMAN, PH.D.; GARY LOWERY; GEORGE RAPP; ENSOR TRANSFELDT; HANSEN YUAN; JOHN A. HERRING; JOHN P. BARRETT; THOMAS WHITECLOUD, III; THOMAS A. ZDEBLICK; TEXAS SCOTTISH RITE HOSPITAL FOR CRIPPLED CHILDREN;; GROUPE INTERNATIONAL COTRELDUBOUSSET; ACROMED CORPORATION, CHARTER NUMBER 614043; ACROMED CORPORATION, CHARTER NUMBER 816942; ACROMED RESEARCH AND DEVELOPMENT CORPORATION; ACROMED SPINE RESEARCH FOUNDATION, INCORPORATED; ACROMED INCORPORATED, CHARTER NUMBER 811415; ACROMED INCORPORATED, CHARTER NUMBER 816943; ACROMED HOLDING CORPORATION, CHARTER NUMBER 811416; ACE MEDICAL COMPANY; ADVANCED SPINE FIXATION SYSTEMS, INCORPORATED; CROSS MEDICAL PRODUCTS;; HOWMEDICA, INCORPORATED AND ITS PARENT PFIZER, INCORPORATED; SCIENTIFIC SPINAL; SMITH & NEPHEW RICHARDS, INCORPORATED; SYNTHES, U.S.A.; SYNTHES, Incorporated; SYNTHES NORTH AMERICA, INCORPORATED; SYNTHES, A.G. CHUR; ADVANCED BIOSEARCH ASSOCIATES; SPINAL SCIENCE ADVANCEMENT FOUNDATION; HEALTH INDUSTRY MANUFACTURER'S ASSOCIATION; ORTHOPEDIC SURGICAL MANUFACTURERS ASSOCIATION; SPINAL IMPLANT MANUFACTURERS GROUP; YOUNGWOOD MEDICAL SPECIALTIES, INCORPORATED; HANSEN YUAN, M.D.; RICHARD W. TREHARNE, Ph.D; ERMON R. PICKARD; STUART MEDICAL INCORPORATED, formerly known as Stuart Drug and Surgical Supply, Incorporated, Defendants. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 281

182 F.3d 281 (4th Cir. 1999)

JEANNETTE WADE; EDWIN WADE, Plaintiffs-Appellants, v. DANEK MEDICAL, INCORPORATED; SOFAMOR, INCORPORATED; SOFAMOR-DANEK GROUP, INCORPORATED; SOFAMOR, S.N.C.; WARSAW ORTHOPEDIC, INCORPORATED, Defendants-Appellees and AMERICAN ACADEMY OF ORTHOPEDIC SURGEONS; NORTH AMERICAN SPINE SOCIETY; SCOLIOSIS RESEARCH SOCIETY; ZIMMER, INCORPORATED; DANEK CAPITAL CORPORATION; DANEK SALES CORPORATION; BUCKMAN COMPANY, INCORPORATED; NOREX USA, INCORPORATED; NATIONAL MEDICAL SPECIALTY, INCORPORATED; STUART, INCORPORATED; EDUARDO LUQUE; PAUL MCAFEE; ROGER P. JACKSON; DAVID BRADFORD; YVES COTREL; JEAN DUBOUSSET; HARRY SHUFFLEBARGER; R. GEOFFREY WILBER; CHARLES E. JOHNSTON, II; RICHARD ASHMAN, PH.D.; GARY LOWERY; GEORGE RAPP; ENSOR TRANSFELDT; HANSEN YUAN; JOHN A. HERRING; JOHN P. BARRETT; THOMAS WHITECLOUD, III; THOMAS A. ZDEBLICK; TEXAS SCOTTISH RITE HOSPITAL FOR CRIPPLED CHILDREN; GICD-USA; GROUPE INTERNATIONAL COTRELDUBOUSSET; ACROMED CORPORATION, CHARTER NUMBER 614043; ACROMED CORPORATION, CHARTER NUMBER 816942; ACROMED RESEARCH AND DEVELOPMENT CORPORATION; ACROMED SPINE RESEARCH FOUNDATION, INCORPORATED; ACROMED INCORPORATED, CHARTER NUMBER 811415; ACROMED INCORPORATED, CHARTER NUMBER 816943; ACROMED HOLDING CORPORATION, CHARTER NUMBER 811416; ACE MEDICAL COMPANY; ADVANCED SPINE FIXATION SYSTEMS, INCORPORATED; CROSS MEDICAL PRODUCTS; DEPUY-MOTECH, INCORPORATED; HOWMEDICA, INCORPORATED AND ITS PARENT PFIZER, INCORPORATED; SCIENTIFIC SPINAL; SMITH & NEPHEW RICHARDS, INCORPORATED; SYNTHES, U.S.A.; SYNTHES, Incorporated; SYNTHES NORTH AMERICA, INCORPORATED; SYNTHES, A.G. CHUR; ADVANCED BIOSEARCH ASSOCIATES; SPINAL SCIENCE ADVANCEMENT FOUNDATION; HEALTH INDUSTRY MANUFACTURER'S ASSOCIATION; ORTHOPEDIC SURGICAL MANUFACTURERS ASSOCIATION; SPINAL IMPLANT MANUFACTURERS GROUP; YOUNGWOOD MEDICAL SPECIALTIES, INCORPORATED; HANSEN YUAN, M.D.; RICHARD W. TREHARNE, Ph.D; ERMON R. PICKARD; STUART MEDICAL INCORPORATED, formerly known as Stuart Drug and Surgical Supply, Incorporated, Defendants.

No. 98-2036 (CA-95-876-3)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 7, 1999

Decided: July 2, 1999

Amended: July 14, 1999

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. [Copyrighted Material Omitted] COUNSEL ARGUED: Thomas J. Byrne, CUMMINGS, CUMMINGS & DUDENHEFER, New Orleans, Louisiana, for Appellants. Gary Joseph Spahn, MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees. ON BRIEF: John J. Cummings, III, Frank C. Dudenhefer, Jr., CUMMINGS, CUMMINGS & DUDENHEFER, New Orleans, Louisiana; William C. Lane, MASSELLI & LANE, P.C., Arlington, Virginia, for Appellants. Dabney J. Carr, IV, MAYS & VALENTINE, L.L.P., Richmond, Virginia; George Lehner, PEPPER HAMILTON, L.L.P., Washington, D.C., for Appellees.

Before ERVIN, LUTTIG, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge Luttig wrote the opinion, in which Judge Ervin and Judge Traxler joined.

OPINION

LUTTIG, Circuit Judge:

Jeannette and Edwin Wade appeal the district court's decision to grant summary judgment against them in this diversity action on the ground that the statute of limitations on their action was not equitably tolled during the pendency of federal class actions against some of the same defendants. Because we conclude that Virginia lacks an equitable tolling rule, and that Virginia law on equitable tolling would govern in this case, we affirm.

I.

In 1985, appellant Jeannette Wade began to experience back pain. In the following years, she underwent back surgery twice, but continued to suffer pain. Consequently, on October 26, 1992, Wade again underwent surgery, this time to fuse two vertebrae in her spine. During the course of that surgery, doctors implanted a pedicle screw spinal fixation device, manufactured by appellees Sofamor-Danek Group, Incorporated, and its subsidiaries (collectively "Danek"). The purpose of this device was essentially to act as an internal splint, thereby facilitating the fusion of the vertebrae. Although the use of the device for this purpose appears to have been common at the time of Wade's surgery, this use was not listed on the label for the device approved by the Food and Drug Administration.

The fusion surgery was a success; however, immediately after the surgery, Wade began experiencing worsened pain in her back and leg. She reported this pain to her doctors by no later than April 1993. In addition, Wade subsequently developed arachnoiditis, which is an inflammation of the membrane covering the spinal cord, and incontinence. After consulting with a number of doctors, Wade had the spinal fixation device removed on April 26, 1995.

Meanwhile, on December 30, 1993, a federal class action was filed in the United States District Court for the Eastern District of Pennsylvania against various pedicle screw spinal fixation device manufacturers, including Danek. See Zampirri v. AcroMed, No. CA-93-7074 (E.D. Pa. filed Dec. 30, 1993). On April 14, 1994, a similar class action was filed in the United States District Court for the Eastern District of Louisiana. See Brown v. AcroMed, No. 94-1236 (E.D. La. filed April 14, 1994). Wade and her husband, appellant Edwin Wade, were putative, but not named, class members in each of the actions. Pursuant to the multidistrict litigation statute, the Brown class action was transferred to the Eastern District of Pennsylvania, where it was consolidated with the Zampirri class action. On February 22, 1995, the district court denied class certification in Zampirri; on July 13, 1995, it did likewise in Brown.

On October 23, 1995, appellants filed this action in the United States District Court for the Eastern District of Virginia against Danek and a number of other manufacturers, individuals, and medical associations, alleging negligence, strict liability, conspiracy, and a host of other state law claims. The case was briefly transferred to the Eastern District of Pennsylvania, where the class actions had been consolidated, before being remanded to the Eastern District of Virginia. After the remand, defendants moved for summary judgment on the ground that Virginia's two-year statute of limitations had run. See Va. Code § 8.01-243(A) (1998). On May 13, 1998, the district court granted defendants' motions, rejecting plaintiffs' argument that the statute of limitations should be equitably tolled for the period during which the federal class actions were pending. See Wade v. Danek Med., Inc., 5 F. Supp. 2d 379, 384 (E.D. Va. 1998). Plaintiffs now bring this appeal against Danek only, challenging the district court's decision to grant summary judgment and also its decision to deny their motion for reconsideration.

II.

Appellants first contend that, even if the district court correctly concluded that the statute of limitations on their action should not be equitably tolled during the pendency of the federal class actions, the limitations period had nevertheless not lapsed by the time they filed their action.¹ Appellants' primary argument is that, although Wade's initial injury -namely, her worsening pain -occurred immediately after the surgery, and therefore more than two years before their action was filed, Wade suffered a number of subsequent injuries -such as her incontinence -that did not arise until less than two years before their action was filed. This argument, however, is squarely foreclosed by Virginia law. In Virginia, "an injury is deemed to occur, and the statute of limitations period begins to run, whenever any injury, however slight, is caused by the negligent act, even though additional or more severe injury or damage may be subsequently sustained as a result of the negligent act." St. George v. Pariser, 253 Va. 329, 332 (1997); see also, e.g., Joyce v. A.C. and S., Inc., 785 F.2d 1200, 1205 (4th Cir. 1986) ("[U]nder Virginia law[,] the statute of limitations does not accrue separately for each set of damages which results from a wrongful act."); Caudill v. Wise Rambler, Inc., 210 Va. 11, 14-15 (1969) ("[T]he running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.").

Appellants briefly make two other points in support of their argument that the limitations period had not run on their right of action, neither of them availing. First, appellants contend that, because Wade had suffered similar back pain even before the implantation of the spinal fixation device, their right of action should accrue not at the time at which the device was implanted, but rather at the time at which the worsening of Wade's pain was specifically linked to the implantation of the device. It is well settled in Virginia, however, that the limitations period begins running at the time of the initial injury, not at the time of diagnosis or discovery. See Va. Code§ 8.01-230 (1998) (stating that limitations period runs "from the date the injury is sustained . . . and not when the resulting damage is discovered"); Locke v. Johns-Mansville Corp., 221 Va. 951, 959 (1981) (rejecting both date of diagnosis and date of symptoms as accrual date in favor of date of injury, even if symptoms do not manifest themselves for "weeks, months or even years"). Because, as Wade herself admitted, Wade had both experienced her symptoms and communicated them to her doctors well over two years before the action was filed, it would have been logically impossible for her injury to have occurred less than two years before the action was filed.²

Second, appellants contend, albeit baldly, that appellees failed to bear their burden of proving when Wade's injury occurred. In view of Wade's own admissions regarding the time at which her symptoms arose and the time at which she communicated them to her doctors, however, we agree with the district court that appellants amply met their burden of demonstrating when Wade's...