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April 1, 1981

Phyllis ROCKWELL and Donald Rockwell, Plaintiffs,

The opinion of the court was delivered by: MCCURN


This is a products liability suit brought against the manufacturer of an intrauterine device called Lippes Loop which was intended for use as a means of contraception. Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332. There is now before this Court defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Fed.R.Civ.P., on the ground that the causes of action are barred by the applicable New York statutes of limitations.

 The plaintiffs served a summons in New York Supreme Court, Delaware County, on the defendant Ortho Pharmaceutical Co., on March 3, 1980. Defendant then removed this action to the Northern District of New York pursuant to 28 U.S.C. § 1441 on March 31, 1980. On April 13, 1980, the plaintiff served the defendant with a verified complaint.


 This is an action to recover money damages for personal injuries allegedly sustained by the plaintiff, Phyllis Rockwell, as a result of the insertion of a Lippes Loop manufactured by the defendant Ortho Pharmaceutical Co. Mrs. Rockwell consented to the insertion of this device in 1972, on the advice of her gynecologist, who she believes relied on the representations of the defendant that the device was a safe method of contraception. In September of 1975, Mrs. Rockwell alleges she suffered abdominal pain and bleeding which caused her to seek medical attention. Plaintiff claims that the device could not be found, but after x-rays the Loop was located and removed. A PAP test taken at the time indicated possible cancer, and a subsequent biopsy confirmed this diagnosis. The Rockwell's claim that this cancer was caused by the Lippes Loop. In October of 1975 Mrs. Rockwell underwent a hysterectomy.

 There are ten separate causes of action alleged in this complaint; five are on behalf of Phyllis Rockwell and five are derivative causes of action on behalf of Donald Rockwell. *fn1" Mrs. Rockwell's first cause of action alleges negligence and/or intentional tort. As elements of this cause of action, plaintiffs claim that Ortho knew or should have known that the product was unsafe in that adequate testing was not done on the product before it was marketed. In addition, plaintiffs contend that once the product was introduced, the defendant planned and schemed to publish and distribute false information thus preventing Mrs. Rockwell from learning of the danger.

 Mrs. Rockwell's second cause of action in fraud alleges that the defendant made willful misrepresentations and failed to inform the public that the Loop was dangerous. The plaintiff alleges that Ortho made these statements in brochures, news releases to the media, and in statements to investigating administrative agencies concerned with the safety of the Lippes Loop. The plaintiff claims that she relied on these statements to her detriment, alleging that if she had been aware of the fraudulent statements she would not have consented to the insertion of the Loop or allowed the Loop to remain in place for so long. Also, Mrs. Rockwell contends that had she been aware of the fact that the device was dangerous she would have asserted her claims against Ortho immediately.

 The third cause of action is in warranty. Plaintiffs allege that the defendant breached express and implied warranties of merchantability and fitness; that plaintiff was prevented from discovering these breaches on account of Ortho's fraudulent representations as to the safety of the product; and that Ortho failed to apprise the plaintiff and the public of the specific dangers of the Lippes Loop.

 Mrs. Rockwell's fourth cause of action sounds in civil conspiracy. She alleges that the defendant engaged in a scheme or plot to falsify test results, and to knowingly manufacture and market an unsafe device to defraud the public and medical professionals. Also, Mrs. Rockwell contends that defendant combined with other unknown persons to withhold and conceal information from the public and thereby frustrate, prejudice and impede the remedies of the public and the plaintiffs.

 The fifth cause of action is in strict products liability. The plaintiffs allege that the Loop was defective in manufacture and design. Further, Mrs. Rockwell contends that the manufacturer failed to warn her of the dangers. Five identical causes of action are interposed on behalf of Donald Rockwell, Mrs. Rockwell's husband, for medical and other expenses incurred, loss of consortium and deprivation of his right to father children.


 New York courts look to the essence or gravamen of the complaint in determining the appropriate statute of limitations applicable to a cause of action. State v. Cortelle Corporation, 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223 (1975); Brick v. Cohn Hall-Marx Co., 276 N.Y. 259, 11 N.E.2d 902 (1937); Kartiganer Associates, P. C. v. Town of Newberg, 57 A.D.2d 857, 394 N.Y.S.2d 262 (2d Dep't 1977).

 The essence of the plaintiffs' case is that the defendant manufacturer placed a defective product on the market which caused the plaintiff personal injury. In Victorson v. Bock Laundry, 37 N.Y.2d 395, 400, 373 N.Y.S.2d 39, 41, 335 N.E.2d 275, 277 (1975), the New York Court of Appeals noted that, depending on the particular factual circumstances on which the claim arises, there are four theories under which a manufacturer of a defective product may be held liable. They are negligence, breach of express warranty, breach of implied warranty and strict products liability. The proper statutes of limitations for the causes of action, including those labeled fraud and conspiracy, are those for negligence, strict products liability and warranty. All of these causes of action are pleaded by the Rockwells.

 The New York Statute of limitation for negligence and strict products liability is governed by the three-year statute contained in N.Y. CPLR P 214(5) (McKinney Supp.1980). This statute begins to run from the time the wrong is committed even though the injured party is unaware of the injury for a period of time. Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, amended, 12 N.Y.2d 1073, 239 N.Y.S.2d 896, 190 N.E.2d 253, cert. denied, 374 U.S. 808, 83 S. Ct. 1697, 10 L. Ed. 2d 1032 (1963). There are certain exceptions to this rule, such as the "foreign object" rule for malpractice actions which holds that accrual of the statute begins one year ...

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