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PLACE v. ORTHO PHARM. CORP.

October 17, 1984

CAROLYN PLACE and EDWARD PLACE, Plaintiffs,
v.
ORTHO PHARMACEUTICAL CORPORATION, Defendant



The opinion of the court was delivered by: WEBER

 October 17, 1984

 This is a diversity product liability case arising out of plaintiff's exposure to an intra-uterine device (IUD) known as Lippes Loop, manufactured and sold by defendant Ortho Pharmaceutical Corporation. Suit was commenced on June 15, 1982 by a writ of summons in the state court. A complaint was filed on July 21, 1983, and thereafter the case was removed to this court.

 Defendant has moved for summary judgment based on the bar of the Pennsylvania two year statute of limitations in personal injury actions. In an action such as this, where the cause of an injury or disease may not be readily apparent, the Pennsylvania courts apply the "discovery rule", under which the two years begin to run from the time that the plaintiff knows or reasonably should know the cause of an injury or disease. Bayless v. Philadelphia National League Club, 579 F.2d 37 (3d Cir. 1978); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).

 Of course, this "discovery rule" has accumulated a considerable gloss of judicial interpretation. The case law has developed the requirements that before the two year bar can be applied, the party asserting the defense must show;

 
(1) that claimant knew of the injury or disease; and
 
(2) that claimant knew of the operative cause of the injury or disease; and
 
(3) that claimant knew of the causal connection between the injury and the medical device involved more than two years before commencing the lawsuit.

 See, O'Brien v. Eli Lilly Co., 668 F.2d 704, 706 (3d Cir. 1981), and its analysis of the cases cited therein, particularly Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phila. Co. CP 1980).

 With these standards set, and mindful that the statute of limitations is an affirmative defense on which the proponent has the burden of proof, and further mindful that on a motion for summary judgment all inferences are to be construed in favor of the non-moving party, Landtect Corp. v. State Mutual Life Assurance Co., 605 F.2d 75 (3d Cir. 1979), we will consider the evidence as submitted by the parties to determine whether there exists a genuine issue of material fact with respect to these requirements which precludes summary judgment.

 The moving party relies entirely on the deposition testimony of wife-plaintiff. The plaintiff relies on her extensive affidavit and supporting medical and hospital reports.

 There is little dispute as to the chronology of events here. In 1972 a Lippes Loop intra-uterine device (IUD) was inserted into wife-plaintiff by Dr. Hipps, her family physician. She only knew it by the description "Loop IUD". It remained in place for several years without trouble.

 In December 1977 she experienced nausea and flu-like symptoms and consulted Dr. Hipps who gave her a diagnosis of gall bladder problems or flu. Her symptoms worsened and she returned to Dr. Hipps' office where she was given an internal examination by a paramedic. He told plaintiff that the IUD had moved out of position and had punctured the wall of the vagina. She was given antibiotics and told to return the next day for an examination by Dr. Semple, a gynecologist. On December 28, 1977, Dr. Semple examined her, removed the IUD and directed her to report to his office for further care. She was admitted to a hospital under Dr. Semple's care on January 12, 1978 for further diagnostic work. An abdominal hysterectomy was planned but postponed because plaintiff had pneumonia and she was discharged from the hospital with orders to return on January 31, 1978. Dr. Semple performed exploratory surgery, opened and drained a tubo-ovarian abscess, but did not perform a hysterectomy. She was discharged from the hospital on February 11, 1978 and continued under out patient care by Dr. Semple until July 4, 1978. She was referred by Dr. Semple to Dr. Leach, a urologist, for consultation during this time.

 According to plaintiff's affidavit the above series of events ended in a recovery from the symptoms in 1978. However, it is with reference to this period that defendant relies in establishing plaintiff's ...


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