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SIMON v. A. H. ROBINS CO.

December 4, 1981

Helen Porter SIMON, Plaintiff,
v.
A. H. ROBINS CO., INC. and Paul Packer, Defendants



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

In this diversity products liability and medical malpractice case, defendants A. H. Robins Co., Inc. and Paul Packer, M.D., each moved separately for summary judgment dismissing the complaint as time barred. The motions were heard and fully submitted on May 13, 1981.

The facts bearing on the issue of the statute of limitations are not in dispute. For the reasons set forth below, the Court concludes that the motions should be granted.

 Defendant Robins is the manufacturer of a contraceptive device marketed nationally and known as the Dalkon Shield. This litigation is one of a number in the state and federal courts seeking damages for infection resulting from a defect in the design or manufacture of the device itself, or in the principle upon which it operates, which contemplates the permanent insertion of a foreign body within the uterus. Defendant Packer is the physician who allegedly prescribed and inserted the device.

 Some 500 similar actions against Robins have been administered under the direction of Hon. Frank G. Theis, United States District Judge, District of Kansas, for purposes of consolidated or coordinated pre-trial discovery, pursuant to orders of the Judicial Panel on Multidistrict Litigation, under that Panel's Docket No. 211, as In re A. H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation. This action was so assigned and transferred to the District of Kansas by the Panel effective May 14, 1979. Following completion of that portion of the pre-trial discovery applicable to all cases, this action was re-transferred to this district effective May 12, 1980. The case was substantially ready for trial when the motions were made.

 The Dalkon Shield intrauterine device was inserted in plaintiff's body on June 29, 1973. This action was commenced against the defendant A. H. Robins Co., Inc. on March 27, 1979, and against defendant Dr. Packer on or about March 30, 1979.

 Plaintiff contends and the Court assumes for purposes of this motion, that the device remained continuously in plaintiff's body, without apparent difficulty, from June 29, 1973 until "late 1976" (P 5, Affidavit of Helen Porter Simon, filed June 24, 1981). Plaintiff also asserts without contradiction that she experienced symptoms in late 1976, and therefore consulted a Florida physician in April 1977. It was then for the first time that she was advised that she had a "pelvic infection," and the defendant Robins' device was removed. Plaintiff suffered pain and endured permanent impairment and severe damages as a result of the "infection" first observed in "late 1976," for which she underwent major surgery in Florida on November 1, 1977.

 On March 3, 1981 the parties conceded in open Court, as they must, that New York law controls the issues in this case. The Court deferred resolution of these motions because the Court then perceived some difficulty or uncertainty in the law of New York, and believed that a lapse of time would permit resolution of these motions as a result of cases involving similar facts being litigated in the New York courts. Because of an intervening determination by the New York Court of Appeals in Steinhardt v. Johns-Manville Corporation, 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981), this Court now regards the law of New York as clarified on the point.

 Section 214, New York C.P.L.R. provides for a statute of limitations to recover damages for personal injuries of three years. As to causes of action for medical malpractice based upon acts of malpractice occurring on or after July 1, 1975, ยง 214-a of the New York C.P.L.R. provides for a two and one-half year statute of limitations. The cause of action accrues at the time of the alleged wrongful act, unless the case comes within one of the exceptions thereto carved out by New York caselaw.

 Even prior to Steinhardt there was a preponderance of authority to the effect that a medical malpractice or product liability claim arising out of the intentional placement within the body of a hazardous or defective product or article, accrued on the date of the insertion. The leading New York case in point is Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142 (1963). In that case a hazardous radioactive dye was intentionally injected into a body cavity of the plaintiff for purposes of diagnosis by X-ray. Residues of that dye later caused cancer. The carcinogenic effect of the radioactive dye was apparently not perceived at the time the product was marketed, although it was foreseeable. Although the cancer did not become apparent until long afterwards, the New York Court of Appeals, reviewing its own prior caselaw on the subject, held that the statute of limitations began to run on the date of injection of the defective product.

 Later, in Thornton v. Roosevelt Hospital, 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002 (1979), the New York Court of Appeals considered a similar claim, arising out of facts indistinguishable from those in Schwartz, supra. The Court held (Fuchsberg, J. dissenting):

 
"(T)he cause of action accrued at the time of invasion of decedent's body, and not at the time the decedent's cancerous condition became apparent.
 
In Victorson v. Bock Laundry Mach. Co. (37 NY2d 395 (373 N.Y.S.2d 39, 335 N.E.2d 275) ), we held that the cause of action termed strict products liability accrues as of the date of injury, and inasmuch as such theory of liability is grounded in tort rather than contract, a three-year Statute of Limitations is applicable. Nowhere did the court state, or even suggest, that the social policies upon which the holding in Victorson was predicated might prompt a change in the traditional principle that a cause of action grounded in tort commences as of the date of injury.
 
It is well established in this State that when chemical compounds are injected into a person's body, the injury occurs upon the drugs (sic) introduction, not when the alleged deleterious effects of its component chemicals become apparent. (Schwartz v. Heyden Newport Chem. Corp., 12 NY2d 212, (237 N.Y.S.2d 714, 188 N.E.2d 142) cert den 374 US 808 (83 S. Ct. 1697, 10 L. Ed. 2d 1032) ). Here, plaintiff's claim being interposed some 20 years after the decedent's injection-the date of ...

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