The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
This is a products liability suit brought against the manufacturer of an inflatable mammary prosthesis (sometimes called a Jenny prosthesis) which was intended for use in the reconstruction of the female breast area following a subcutaneous mastectomy. Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332. There are now before the Court defendant's motion for summary judgment and plaintiffs' motion for leave to amend their complaint.
In their original complaint, filed on March 24, 1976, plaintiffs claim that plaintiff Joanne S. Allen Holdridge suffered serious injuries after an allegedly defective prosthetic device was implanted in her right breast. Plaintiffs contend that the prosthetic device in question was manufactured by the defendant prior to July 7, 1971, and was removed from plaintiff Joanne Holdridge's body during surgery on May 3, 1972, at which time a new prosthesis was implanted. Plaintiffs claim that, after the surgery in May of 1972, the device, which had originally been inserted in Mrs. Holdridge's body, was found to be defective. Joanne Holdridge seeks damages for severe shock to her nervous system, internal injuries, severe pain and mental anguish, and loss of occupation, while her husband, Philip Holdridge, seeks damages for mental anguish and loss of his wife's companionship and society.
On the basis of the allegations in the original complaint, defendant moved for summary judgment pursuant to Fed.R.Civ.P., Rule 56, on the ground that the cause of action was barred by the statute of limitations.
Plaintiffs subsequently moved for leave to amend their complaint. In their proposed amended complaint, filed on October 29, 1976, plaintiffs contend that the injuries suffered by plaintiff Joanne Holdridge were caused by a series of allegedly defective prosthetic devices which were manufactured by the defendant and were implanted in Joanne Holdridge's body at various times between July 6, 1971 and June 11, 1973. Plaintiffs claim that two Jenny prosthetic devices were implanted in Mrs. Holdridge's body on or about July 6, 1971. They allege that, because of various complications, the prosthesis in Mrs. Holdridge's right breast was removed on or about May 2, 1972, and was replaced by a new Jenny prosthesis on that date. It is contended that this new prosthesis in the right breast was removed on or about June 9, 1972, and was replaced by another Jenny prosthesis on or about October 12, 1972. It is further alleged that, because of various complications, the prosthesis in Joanne Holdridge's left breast was removed on or about June 11, 1973, and was either repaired and re-inserted or replaced with a new Jenny prosthesis.
Plaintiffs base their claim in their proposed amended complaint upon five separate causes of action: negligence, strict products liability, implied warranty, express warranty, and fraudulent misrepresentation.
Before considering defendant's motion for summary judgment, the Court feels that it is necessary to consider plaintiffs' motion for leave to amend their complaint.
Fed.R.Civ.P., Rule 15(a), provides that after a responsive pleading has been served, a party may amend its pleading only by leave of court or by written consent of the adverse party. The rule also provides that leave shall be freely given when justice so requires. It has frequently been held that the grant or denial of a motion for leave to amend is within the sound discretion of the district court. See, e.g., Freeman v. Marine Midland Bank-New York, 494 F.2d 1334 (2d Cir. 1974); Scranton Volunteer Fire Co. v. U.S. Fidelity & Guaranty Co., 450 F.2d 775 (2d Cir. 1971); Crown Coat Front Co. v. United States, 395 F.2d 160 (2d Cir. 1968), cert. denied, 393 U.S. 853, 89 S. Ct. 123, 21 L. Ed. 2d 122 (1968). The major factor a court should consider in deciding whether to grant leave to amend is whether the opposing party will suffer prejudice if leave is granted. Zenith Radio Corporation v. Hazeltine Research, Inc., 401 U.S. 321, 91 S. Ct. 795, 28 L. Ed. 2d 77, rehearing denied, 401 U.S. 1015, 91 S. Ct. 1247, 28 L. Ed. 2d 552 (1971); United States v. Hougham, 364 U.S. 310, 81 S. Ct. 13, 5 L. Ed. 2d 8 (1960); Middle Atlantic Utilities Co. v. S.M.W. Development Corporation, 392 F.2d 380 (2d Cir. 1968).
This Court is of the opinion that the defendant will not be prejudiced if plaintiffs' motion for leave to amend their complaint is granted. There has not been undue delay by the plaintiffs in seeking leave to amend, as they made their motion approximately seven (7) months after the action was commenced. Moreover, there is no indication that the defendant has, in the meantime, changed its position in a way that would affect its ability to defend this lawsuit. Therefore, the Court will grant plaintiffs' motion for leave to amend their complaint.
The Court feels that defendant's motion for summary judgment should now be considered as being directed to plaintiffs' amended complaint, even though the motion was originally directed to the initial complaint. Defendant received notice of the facts and theories that the plaintiffs are now relying upon, from the plaintiffs' answers to interrogatories and from the plaintiffs' memorandum of law in opposition to the motion for summary judgment. It, therefore, had an opportunity to rebut these facts and theories, and in its reply memorandum of law, it did, in fact, attempt to do so.
The basic disagreement between the parties on defendant's motion for summary judgment is over the question of when plaintiffs' causes of action accrued under the various theories being alleged. However, before considering the accrual dates for the various causes of action, the Court feels that it should consider the date on which the statute of limitations stopped running.
As a general rule, the statute of limitations stops running on the date that a claim is interposed. In federal court, a claim is interposed when the complaint containing the claim is filed. Rule 3, Fed.R.Civ.P.; Sylvestri v. Warner & Swasey Co., 398 F.2d 598 (2d Cir. 1968). However, Fed.R.Civ.P., Rule 15(c), provides that, in certain circumstances, the allegations contained in an amended complaint will relate back to the date of the original complaint. New York, whose law applies to the substantive issues in this case, also has a relation-back rule. New York CPLR § 203(e). While state law must be applied in a diversity case to determine whether an action is barred by the statute of limitations, Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945), most courts considering the issue have held that the federal rule as to relation back applies even in a diversity case, since the question of relation back of amendments to pleadings is properly a matter of practice and procedure and is specifically dealt with in the Federal Rules of Civil Procedure. Welch v. Louisiana Power & Light Co., 466 F.2d 1344 (5th Cir. 1972); Loudenslager v. Teeple, 466 F.2d 249 (3d Cir. 1972); Applied Data Processing, Inc. v. Burroughs Corporation, 58 F.R.D. 149 (D.Conn.1973). See also Bethlehem Fabricators, Inc. v. British Overseas Airways Corporation, 434 F.2d 840 (2d Cir. 1970).
Therefore, this Court will apply the federal rule as to relation back.
Under Rule 15(c), an amendment relates back to the date of the original pleading whenever "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." The major consideration in deciding whether an amendment relates back is whether adequate notice is given to the opposing party by the general fact situation alleged in the original pleading. Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir. 1973), cert. denied, 414 U.S. 872, 94 S. Ct. 102, 38 L. Ed. 2d 90 (1973); Williams v. United States, 405 F.2d 234, 236-37 (5th Cir. 1968); 3 Moore's Federal Practice para. 15.15 (1974). The doctrine of relation back applies when an amendment adds a new theory of recovery based on the same transaction or occurrence as originally pleaded. Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479 (6th Cir. 1973); Martin v. Virgin Islands National Bank, 455 F.2d 985 (3d Cir. 1972); Bethlehem Fabricators, Inc. v. British Overseas Airways Corporation, supra. Similarly, the doctrine applies to correct specific factual details or to make more specific what has already been alleged. Moses v. Michael, 292 F.2d 614 (5th Cir. 1961); Kelcey v. Tankers Co., 217 F.2d 541 (2d Cir. 1954); Michelsen v. Penney, 135 F.2d 409 (2d Cir. 1943). However, an amendment will not relate back if it sets forth a new set of operational facts. Rosenberg v. Martin, supra; Griggs v. Farmer, 430 F.2d 638 (4th Cir. 1970); Young v. Pick Hotels-Washington Corporation, 136 U.S.App.D.C. 405, 420 F.2d 247 (1969).
In the present case, it appears that the theory of recovery relied upon by the plaintiffs in their original complaint was either implied warranty or strict products liability. It is clear that the additional theories of recovery alleged in the amended complaint would relate back with respect to injuries resulting from the prosthesis implanted in Joanne Holdridge's right breast in July of 1971, since the insertion of this device was specifically mentioned in the first complaint.
However, this Court is of the opinion that the allegations contained in the amended complaint regarding additional prosthetic devices implanted in Joanne Holdridge's body will not relate back to the date of the original complaint. The original complaint gave the defendant notice that it was being sued for injuries arising from an allegedly defective prosthesis implanted in Mrs. Holdridge's right breast in July of 1971, but this complaint did not give the defendant notice of the additional prosthetic devices which are now alleged to have contributed to the plaintiffs' injuries. The first complaint did make reference to a new prosthesis that was inserted in Joanne Holdridge's right breast on May 3, 1972, after the removal of the one that had been inserted in July of 1971, but the first complaint did not allege that this new prosthesis was defective, nor did it indicate that Mrs. Holdridge suffered injuries from the new prosthesis. The remaining prosthetic devices were not mentioned in any way in the original complaint. The Court feels that the allegations involving additional prosthetic devices contained in the amended complaint involve a new set of operational facts and, therefore, it holds that the relation back doctrine does not apply to them.
The Court notes that the defendant did receive notice of the additional allegations which the plaintiffs are now relying upon, from the plaintiffs' answers to interrogatories and from the plaintiffs' memorandum of law in opposition to the motion for summary judgment, but the Court believes that, in applying the relation back doctrine, it must look to determine if adequate notice was supplied by the original complaint, rather than by papers which were subsequently filed in the action.
The Court's interpretation is supported by the cases construing Rule 15(c). In Tessier v. United States, 269 F.2d 305 (1st Cir. 1959), the court refused to apply the doctrine of relation back to an amendment alleging continuing acts of negligence from 1947 to 1954, where the original complaint only alleged negligence in 1947. In Jackson v. Ideal Publishing Co., 274 F. Supp. 318 (E.D.Pa.1967), the court held that where a complaint for libel alleged publication in the February issue of a magazine, an amendment alleging publication in the March and April issues of the same magazine did not relate back. Likewise, in Illinois Tool Works, Inc. v. Foster Grant Co., Inc., 395 F. Supp. 234 (N.D.Ill.1974), the court said that the alleged infringement of one patent was not the same conduct, transaction or occurrence as the alleged infringement of another patent and so refused to apply the relation back doctrine to an amended complaint alleging the infringement of an additional patent by the defendant.
Accordingly, the Court holds that, with respect to injuries resulting from the prosthesis implanted in Joanne Holdridge's right breast in July of 1971, the causes of action were interposed, so as to stop the running of the statute of limitations, when the original complaint was filed on March 24, 1976. The Court further holds that, with respect to injuries resulting from the remaining prosthetic devices inserted in Mrs. Holdridge's body, the causes of action were interposed, for statute of limitations purposes, when the amended complaint was filed on October 29, 1976.
In their amended complaint, plaintiffs allege five causes of action -- negligence, strict products liability, implied warranty, express warranty, and fraudulent misrepresentation. For purposes of determining when the causes of action accrued, the Court will consider the two tort causes of action (negligence and strict products liability) and then will consider the two warranty causes of action.
The Court does not believe that the cause of action for fraudulent misrepresentation should be treated as a separate cause of action for statute of limitations purposes. In determining what period of limitations applies, the essence or gravamen of the action controls, rather than the form in which it is pleaded. State v. Cortelle Corporation, 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223 (1975); Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 200 N.E. 824 (1936). The essence or gravamen of the plaintiffs' complaint in the present case is that the defendant manufacturer placed a defective product on the market which caused injury to the plaintiffs. The New York Court of Appeals, in Victorson v. Bock Laundry Machine Co., 37 N.Y.2d 395, 400, 373 N.Y.S.2d 39, 41, 335 N.E.2d 275, 277 (1975), noted that, depending on the factual context in which the claim arises, there are four possible theories which a plaintiff may use to state a cause of action against a manufacturer of a defective product -- negligence, strict products liability, and contract liability, express and implied.
Therefore, this Court believes that the period of limitations for the cause of action based on ...