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WEISSMAN v. DOW CORNING CORP.

July 7, 1995

LINDA WEISSMAN, Plaintiff, against DOW CORNING CORPORATION, DOW CHEMICAL CO., CORNING INC. and DR. BENITO RISH, Defendants.

William C. Conner, Sr. United States District Judge


The opinion of the court was delivered by: WILLIAM C. CONNER

CONNER, SENIOR D.J.

 BACKGROUND

 While working as a waitress in 1971, Ms. Weissman became acquainted with a fellow employee who allegedly had her breasts enlarged by Dr. Rish through silicone injection. Being impressed with the results of her co-worker's augmentation and feeling that the procedure could also improve her figure, plaintiff made an appointment to undergo the injections.

 Although initially pleased with the results, by the early 1980's plaintiff began noticing signs that the procedure led to previously undisclosed and undesirable side effects. At first plaintiff started developing lumps in her breasts. Wishing to rule out cancer, she visited Dr. Bernard Polatsch, an obstetrician, who sent her to a cancer specialist. Dr. Polatsch recommended that plaintiff get a mammogram. Suspecting that the silicone augmentation was behind the lumping and frightened at the prospect of having to undergo surgery, plaintiff did not then have a mammogram or, after the cancer specialist performed a biopsy, return to receive the report and diagnosis or any kind of treatment.

 By 1985, more lumps began to develop and both of her breasts were becoming hard. Plaintiff then starting seeing Dr. Maurice Cohen who informed her that the silicone made it impossible to use mammograms to screen her for possibly cancerous tumors. Warning her that the silicone was "toxic poison," he strongly recommended that she have it removed. Failing to heed Dr. Cohen's advice, plaintiff moved to Las Vegas, Nevada in 1988, but continued to visit various doctors who all recommended removal of the silicone. Finally, after her breasts became extremely hard, and she developed even more lumps, a rash on her inner arm, and aching joints, she began exploring ways to have the silicone removed. In 1993, plaintiff went to UCLA Medical Center to receive a tram-flap procedure whereby most of her remaining breast tissue along with the silicone that had not already migrated to other parts of her body were removed.

 Plaintiff filed the instant suit in 1992 against Dr. Rish, Dow Corning Corp., Dow Chemical Co., and Corning Inc. The complaint alleges that Dr. Rish at no time informed her of the risks of the procedure--that the silicone might cause lumping in or hardening of her breasts, or migrate to other parts of her body, causing systemic disturbances or immunological impairment--or that during the course of her treatment silicone was outlawed for use by injection. Plaintiff argues that, based on these non-disclosures and his manufacture, conversion, promotion and/or distribution of silicone, Dr. Rish is liable for failure to warn, fraud, strict products liability, negligence, and breach of warranty.

 In a related action pending before Judge Cedarbaum of this Court, Stolarski v. Rish, No. 92 Civ. 3596 (S.D.N.Y. filed March 15, 1992), Dr. Rish allegedly stated at his April 29, 1993 deposition that he only used Dow Corning Medical Grade Silicone in performing injections and that he never altered the silicone before its use. Based on this testimony, plaintiff signed a stipulation of discontinuance of her failure to warn, strict products liability, negligence, and breach of warranty causes of action with prejudice on February 15, 1995, so ordered by this court on March 17, 1995.

 DISCUSSION

 The parties have proceeded on the assumption that New York law controls the issues in this case. Because both parties were residents of New York at the time of the challenged medical procedure, which was performed in New York, we do likewise. New York courts have repeatedly held that, in the absence of legislation to the contrary, a statute of limitations begins to run when a wrong occurs despite the victim's lack of awareness of the injury. Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 1010, 430 N.E.2d 1297, 1298-99, 446 N.Y.S.2d 244, 245-46, modified, 55 N.Y.2d 802, 432 N.E.2d 139, 447 N.Y.S.2d 437 (1981). Therefore, at least historically under New York law, actions for personal injury were limited to three years from the date of the injury, whether or not a plaintiff had yet discovered it. N.Y. Civ. Prac. L. & R. 214(5) (McKinney 1990). Similarly, the statutory period of limitations for medical malpractice prior to 1975 was three years, which began to run at the time of the negligent act or omission. Mirabile v. Profy, 172 A.D.2d 729, 730, 569 N.Y.S.2d 115, 116 (N.Y. App. Div. 1991). In certain contexts, however, the legislature has departed from this "date-of-injury" rule and instead opted for a limited "date-of-discovery" provision. For instance, the statutory period of limitations for fraud is six years from the date of the fraudulent act, or two years from the date that the plaintiff discovered, or could, with reasonable diligence, have discovered the fraudulent act, whichever is longer. Rodgers v. Roulette Records Inc., 677 F. Supp. 731, 737 (S.D.N.Y. 1988); N.Y. Civ. Prac. L. & R. 213(8), 203(g) (McKinney 1990 & Supp. 1995).

 In 1986, in light of the inequities of imposing the usual date-of-injury rule on toxic tort plaintiffs who fail to discover their latent injuries within the limitations period, the New York legislature enacted a date-of-discovery rule with respect to this category of claims. N.Y. Civ. Prac. L. & R. 214-c (McKinney 1990 & Supp. 1995). That statute extends the limitations period for actions to recover damages for personal injury caused by the latent effects of exposure to any substance to three years from the date that the injury is, or by reasonable diligence could have been, discovered. *fn2" Id.

 As sweeping as this change was, because many patients injured by silicone products were unaware of the causes of their injuries until after § 214-c's three-year discovery window had closed, § 214-c still prevented these plaintiff from maintaining personal injury claims based on their exposure to silicone. Therefore, in 1993 the legislature passed a revival statute giving parties previously barred from bringing personal injury actions ...


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