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RAVETZ v. UPJOHN CO.

November 4, 1955

Jane RAVETZ, a minor by her next friends and parents, Elkin Ravetz, M.D. and Betty, his wife, and Elkin Ravetz, M.D. and Betty, his wife, in their own right, Marlene Miller, a minor, by her next friends and parents, Harry Miller and Claire, his wife, and Harry Miller and Claire, his wife in their own right and others
v.
The UPJOHN COMPANY



The opinion of the court was delivered by: GANEY

The action here involved was instituted on December 16, 1952, on behalf of Jane Ravetz, a minor, by her guardians and parents, Dr. Elkin Ravetz and his wife Betty, and by the latter in their own right. They claim damages for injuries sustained by her as the result of the injection of an allegedly defective antibiotic supplied by the defendant. *fn1"

Two groups, one the Miller group, involving over eighty persons, the other, the Friedenberg group, comprising six individuals, have sought to be joined as plaintiffs in the action. This court has allowed the joinder of the Miller group, the petition of the Friedenberg group is still before us. In defense of the 'claims' filed by the Miller group, and in opposition to the joinder of the Friedenberg group, the defendant has pleaded the Pennsylvania two-year statute of limitations. The questions posed by this defense are: (1) Does the Pennsylvania six-year or two-year statute of limitations apply; and (2) If the latter governs, (a) has the Miller group set forth claims for relief within the two-year period, and (b) is the joinder of the Friedenberg group barred by the statute.

 After stating that the petitioners are citizens of Pennsylvania and the defendant is a corporation organized under the laws of Michigan, and that the amount in controversy, exclusive of interest and costs, in respect to each individual claim, exceeds $ 3,000, paragraphs numbered 4, 5, 9 and 10 of the complaint contained, in brief, the following information: Paragraph 4 identified Dr. Ravetz as a duly licensed practicing physician; paragraph 5 averred delivery on December 15, 1951 of 100 vials of the antibiotic by defendant to Dr. Ravetz, to be used for injection into the bodies of human beings; paragraph 9 listed the respects in which the defendant was negligent in connection with the antibiotic; and paragraph 10 stated that the minor plaintiff suffered pain and was prevented from attending school as a result of being treated with the antibiotic.

 In October of 1953, Dr. Ravetz filed his answers to interrogatories propounded by the defendant in the related civil action no. 14,595. His answers gave a list of the patients, which included the Miller group, treated by him with the antibiotic supplied by defendant, the dates of the injections, the unfavorable reactions and the subsequent treatments.

 On November 10, 1953, the Miller group filed its petition, consisting of thirty-seven paragraphs, under Rule 20(a) of the Federal Rules of Civil Procedure, 28 U.S.C., for permission to be joined as plaintiffs in the action before us. Paragraphs 1 to 3 of the petition asserted diversity of citizenship and the jurisdictional amount as the grounds for this court's jurisdiction over the subject matter. Paragraph 4 averred:

 '4. Marlene Miller, a minor, by her guardians, Harry Miller and Claire Miller, his wife, and Harry Miller and Claire Miller in their own right, 3202 W. Columbia Avenue, Philadelphia, Pa., petitioning for permissive joiner as plaintiffs in the above action, reallege paragraphs 4, 5, 9 and 10 of the above original complaint.'

 The remaining petitioners were listed in separate paragraphs, nos. 5 to 35 inclusive, each of which, after identifying them, reaverred the last part of paragraph 4, viz., 'petitioning for permissive joinder as plaintiff in the above action, reallege paragraphs, 4, 5, 9 and 10 of the original complaint.' The remaining two paragraphs made the following requests:

 '36. Petitioning plaintiffs, through their counsel, respectfully ask leave of the Court to submit a complete allegation of damages as soon as such information is available.

 '37. Plaintiffs, through their counsel, respectfully ask leave of the Court to permit the Permissive Joinder of additional plaintiffs who may in the future join and whose names are not now known, but whose right of action arises from the same series of transactions.'

 Defendant opposed the petition on jurisdictional grounds. However, on December 18, 1953, this court allowed the persons listed in the petition to be joined as party plaintiffs.

 On July 26, 1954, the Miller group filed a petition for leave to amend the complaint so as 'to better indicate the true and correct causes of action of the several Plaintiffs.' No copy of the amended complaint or a paper indicating in what way the complaint was to be amended accompanied the petition. In answer to this petition, defendant averred that the alleged claims of the Miller group have never been previously stated of record, and that it is too late for them to attempt to state them now because such claims are barred by the two-year statute of limitations.

 On June 30, 1954, the Friedenberg group filed a petition for leave to be joined as additional plaintiffs in the original action. Relying on the information in this group's answers to interrogatories, revealing that the most recent injection any of them received was on February 28, 1952, defendant, in his answer to the petition for joinder, raised the defense of the Pennsylvania two-year statute of limitations.

 I. Does the Pennsylvania six-year statute (for breach of contract or of warranty), 12 P.S.Pa. 31, or the two-year statute of limitations apply here.

 Section 2 of the Act of 1895, P.L. 236, 12 P.S. § 34, states: 'Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards * * *.' In Jones v. Boggs & Buhl, Inc., 1946, 355 Pa. 242, 49 A.2d 379, although judgment for defendant was reversed in order to allow the recovery for the amount paid on account of the price of a coat, the Supreme Court of Pennsylvania approved the trial judge's directed verdict in favor of the seller of a fur coat from which the plaintiff contracted a skin disease, the suit being in assumpsit for breach of warranty after more than two years had elapsed from the time plaintiff became ill. At page 245 of 355 Pa., at page 381 of 49 A.2d of the opinion, the Court said, in referring to § 2 of the Act of 1895: 'It imposes the period of limitation on the cause of action, ...


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