CPLR 214-c(2) is the date the plaintiff discovered the primary condition
on which the claim is based, i.e., when the plaintiff knew about the
medical condition forming the basis of her claim. Id. at 509, 511,
655 N.Y.S.2d 862, 678 N.E.2d 474. They cite references in the record
wherein Mrs. Prohaska remarked upon her increased pain since the December
17, 1991 operation. Item 20, Exh. D, Questionnaire Responses; Schedule
H(c), (k), (s); Exh. B, 206-000013; Exh. C, pp. 230-31. In January 1992,
Mrs. Prohaska wondered whether the cause of her pain was the
instrumentation, since "something didn't seem right almost immediately.
. . ." Item 20, Exh. D, Questionnaire Response # 26; Exh. C, p. 233-34.
She felt the burning pain by March 1992, "within the first several
months" since surgery, and described that burning pain as "different" in
nature from the other pain she had experienced. Item 20, Exh. C, p. 231.
Based on these facts, defendants assert that Mrs. Prohaska discovered her
injury by January 1992 at the latest, and that her claims were
time-barred by 1995 at the latest.
In addition, defendants argue that CPLR § 214-c(4), which allows an
additional one-year extension of the statute of limitations upon
discovery of the cause of the injury if discovery of the cause occurred
less than five years after discovery of the injury itself, is
inapplicable. Asserting that the filing of the December 9, 1994 action in
state court was the latest date on which Mrs. Prohaska could claim she
discovered the screws were causing her injury, and that date occurred
within five years of her injury, she had one additional year, until
December 9, 1995, to commence this suit. Since she sat on her rights
until April 13, 1997, the date of the filing of the federal court suit,
her claims are time barred.
Plaintiffs contend that New York applies a three-year statute of
limitations for personal injury actions, which begins to run when
plaintiff realizes she suffered at the hands of another and that her
injury was due to a human cause. Concerning the date of discovery,
plaintiffs deny that Mrs. Prohaska "very quickly realized that the surgery
did not work" and testified that in the winter or spring of 1992, she
began to "suspect" her surgery did not work. Item 31, ¶ 56. When she
asked Dr. Simmons about it, he dismissed the hardware as the cause of the
problem. Item 20, Exh. C, p. 233. Plaintiffs also point out that Mrs.
Prohaska testified that two or three months following her surgery, she
had "no idea" as to what was the cause of her pain. Id., pp. 232-33.
In addition, plaintiffs claim that the statute of limitations in this
suit was tolled from Dec. 30, 1993 to Feb. 22, 1995 pursuant to the
class-action tolling rule. They cite American Pipe & Construction
Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Crown
Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d
628 (1983), in support of this claim. Further, plaintiffs argue that the
"two-injury rule"*fn8 is applicable to extend the statute of
limitations. In response, defendants assert that American Pipe does not
apply to save plaintiffs' claims and that the two-injury rule is
A genuine issue of material fact exists as to when Mrs. Prohaska
"discovered" her injury. Because there is a difference in discovery dates
pointed to by both plaintiff and defendant, such a finding would otherwise
bar summary judgment for defendants on this issue. However, if it can be
shown that discovery of Mrs. Prohaska's injury occurred within a time
the plaintiffs' complaint would still be time-barred, this issue could be
determined as a matter of law.
Plaintiffs' contentions about time of discovery relate to the time when
Mrs. Prohaska suspected the instrumentation caused her injury, that "her
medical problem was `caused' by something extrinsic to her biology."
Braune v. Abbott Laboratories, 895 F. Supp. 530, 545 (E.D.N.Y. 1995).
Plaintiffs do not consider Mrs. Prohaska's awareness of a new type of
pain as indicating `discovery.'
Defendants counter that the Braune reasoning was rejected by the New
York Court of Appeals in Wetherill two years later. In Wetherill, an
injury was deemed discovered, and the statute of limitations would begin
to run on the date the physical condition forming the basis of the
personal injury action became known to the plaintiff, regardless of
whether the cause of injury was known at that point. Id. at 509, 514,
655 N.Y.S.2d 862, 678 N.E.2d 474.
On page 26 of their memorandum of law (Item 30), plaintiffs state that
Mrs. Prohaska "was unaware of her injury until sometime after the spring
of 1992." This is the only direct statement by plaintiffs concerning the
discovery of the injury. Even so, it is phrased in the negative, which
creates ambiguity. Given Mrs. Prohaska's testimony, and resolving all
ambiguities and drawing all reasonable inferences in her favor as the
nonmoving party on summary judgment, it is reasonable that she discovered
her injury by summer or fall of 1992. On a June 19, 1992 doctors visit,
she attributed her back pain to the pedicle screws and said she thought
she had an "infected spine." Item 20, Exh. B, DDP-202-000004. See also
Item 20, Exh. D; Schedule B, # 26; Schedule H, (f), (g), (h), (i), (k),
(l), (n), (o), (p), (q), (r), (s), (t), (x). Given these facts, her
claims relative to the three-year statute of limitations are time-barred
under CPLR section 214-c(2).
CPLR § 214-c(4) also does not help Mrs. Prohaska. As defendants
point out, it is undisputed that Mrs. Prohaska was aware of the cause of
her injury by December 9, 1994, when she filed the State Court action.
Because the alleged cause of her injury was discovered within five years
of that injury, she had one additional year, until December 9, 1995, to
commence suit. In re Pfohl Brothers Landfill Litigation, 68 F. Supp.2d 236,
247, 248 (W.D.N.Y. 1999). Because the federal suit was filed in 1997, the
provisions of CPLR § 214-c(4) also do not assist Mrs. Prohaska.
Since Mrs. Prohaska's claims would be time-barred pursuant to CPLR
§ 214-c(2) and (4), it is necessary to analyze whether the second
injury rule and federal class-action tolling rule might save her causes
b. Second-Injury Rule
The second-injury rule provides that
Where the statute of limitations has run on one
exposure-related medical problem, a later
exposure-related medical problem that is `separate and
distinct' is still actionable under New York's second
injury rule. Under the rule, diseases that share a
common cause may nonetheless be held separate and
distinct where their biological manifestations are
different and where the presence of one is not
necessarily a predicate for the others development. . . .
The progression of a single disease or condition
into a more serious or debilitating form does not,
however, give rise to an actionable second injury.
Bartlett v. Moore Business Forms, Inc., 2000 WL 362022 at *6 (N.D.N.Y.
Mar. 30, 2000) (citations omitted). Plaintiffs assert
that Mrs. Prohaska's arachnoiditis, which did not manifest until December
1995, is a separate and distinct injury from fibromyalgia. Item 30, p.
26. This would expand the statute of limitations, and the arachnoiditis
would remain actionable under the second-injury rule.
The flaw in plaintiffs' argument is that they have not offered any
expert evidence to show that either fibromyalgia or arachnoiditis is
separate and distinct from the various conditions that Mrs. Prohaska
suffered from prior to her December 1991 implantation, or from each
other. Further, they have not discounted that these injuries may be
progressions of her condition into a more debilitating form. Plaintiffs
expert, Dr. Austin, does not characterize Mrs. Prohaska's arachnoiditis
as a separate and distinct injury, but as part of a "chronic pain
syndrome" package. In his report, he opined:
It is my opinion that the patient's fibromyalgia and
her arachnoiditis cause her to have a chronic pain
syndrome which . . . causes her to have a permanent
and total disability. . . . In conclusion, it is my
opinion that her chronic pain syndrome is caused by
the failure of the instrumentation to withstand the
forces of bending, twisting, reaching, etc., and she
is now left with arachnoiditis and fibromyalgia.
Item 20, Exh. P, p. 2.
In addition, plaintiffs offer a conclusory statement that arachnoiditis
is a separate and distinct injury and occurred at a later date than the
fibromyalgia. Item 30, p. 26. In Humphreys v. Humphreys, 949 F. Supp. 1014,
1020 (E.D.N.Y. 1997), the District Court granted summary judgment on
statute of limitations grounds because plaintiffs allegations were
unsupported by evidence that the two sets of injuries were unrelated. For
these reasons, the court finds the second injury rule does not apply to
extend the statute of limitations.
c. Class-Action Tolling
On December 30, 1993, a class action suit against Sofamor, S.N.C.,
entitled Zampirri v. Sofamor, S.N.C., 93-CV 7074 (E.D.Pa.), was filed in
federal district court. Item 20, Exh. 29. Plaintiffs claim Mrs. Prohaska
"was a putative member of the class." Item 30, p. 24. Class certification
was denied on February 22, 1995. Item 20, Exh. 30. Orthopedic Bone Screw
Products Liability Litigation, MDL1014, 1995 WL 273597 (E.D.Pa. Feb. 22,
1995). Plaintiffs contend that the class action rule tolls the statute of
limitations from the time of filing until the resolution of a motion for
class certification, and cite American Pipe & Construction Co. v.
Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); and Crown, Cork
& Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d
628 (1983), in support of their position.
American Pipe stands for the proposition that "the commencement of the
original class suit tolls the running of the statute [of limitations] for
all purported members of the class who make timely motions to intervene
after the court has found the suit inappropriate for class action
status." American Pipe, 414 U.S. at 553, 94 S.Ct. 756. Crown Cork
expanded the rule in holding that "the filing of a class action tolls the
statute of limitations as to all asserted members of a class whether they
choose to intervene or file `individual actions' following the denial of
class certification." Korwek v. Hunt, 827 F.2d 874, 877 (2d Cir. 1987).
Defendants proffer two arguments against class-action tolling: (1) in
diversity cases, under Erie v. Tompkins, state statutes of limitations,
not federal class-action tolling rules, apply, and (2) even if
class-action tolling did apply, it would not save plaintiffs' claims.
Defendants cite Ragan v. Merchants Transfer & Warehouse Co.,
337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) for the
proposition that, in this common law personal injury action based upon
diversity of citizenship, New York substantive law, including statute of
limitations rules, applies. This view is confirmed in 17 Moore's Federal
Practice 3d, § 124.03, "Determining Scope (Pertinence) of Federal
Rule Under Rules Enabling Act Test," pp. 19-20, which notes:
State statutes of limitations are substantive rules of
law for Erie purposes. When jurisdiction is based on
diversity of citizenship, a federal court is obliged
to apply a state statute of limitations. In addition
. . . state rules that are an integral part of the
statute of limitations, such as tolling rules, apply
to state claims brought in federal court.
See also Ellenbogen v. Rider Maintenance Corp., 794 F.2d 768, 772-73 (2d
Cir. 1986) ("In a diversity case, the rule of Erie . . . intends that the
outcome should be the same in federal court as if the litigation were
tried in state court."). If federal class-action tolling is not
applicable, plaintiffs' claims are time-barred.
Secondly, defendants point out that in New York, "class action tolling
is inapplicable where, during the pendency of the class action petition,
the plaintiff files his/her own individual lawsuit," citing Wahad v. City
of New York, 1999 WL 608772 (S.D.N.Y. Aug. 12, 1999). Item 36, p. 5.
Wahad explores the reasoning behind American Pipe's tolling provision: If
plaintiffs were not protected by the tolling, they would be compelled to
file their own motions to intervene in order to preserve their rights to
participate in the litigation. This would "frustrate the efficiency and
economy goals of [Rule 23] class action litigation." Wahad, 1999 WL
608772 at *5 Wahad also noted that American Pipe/Crown Cork relied on the
existence of the class prior to a decision on certification to protect
their rights, and the only efficient way to protect a plaintiff who has
justifiably relied is to grant a toll. Id. at *6. Otherwise, if the class
was not certified and the statutes of limitations had expired, the
plaintiff who had relied upon the class action would be unprotected.
These notions of efficiency and reliance are integral to class-action
tolling. But in this case, similar to Wahad, plaintiffs did not rely upon
the class action.
Rather than wait for the decision granting
certification . . . plaintiff filed his own action. . . .
By filing his own lawsuit, plaintiff affirmatively
demonstrated his choice not to rely on the class
action mechanism. . . . [B]y filing this action and
not relying on the . . . class, plaintiff created the
very inefficiency that American Pipe sought to prevent
— he generated more litigation and expense
concerning the same issues that were litigated by a
class of which he was a member. Accordingly, plaintiff
is not entitled to the benefit of a toll under
Id. at *6.