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BROWNSTEIN v. DOW CORNING WRIGHT

February 1, 1988

Beverly Brownstein and Bernard Brownstein, h/w
v.
Dow Corning Wright



The opinion of the court was delivered by: HANNUM

 HANNUM, S.J.

 This is a personal injury action in which Mrs. Brownstein alleges that she was injured by a prosthetic mammary device manufactured by the defendant. She bases her claim upon theories of negligence, product liability and breach of warranty. *fn1" Presently before the Court is the defendant's motion for summary judgment in which the defendant contends that this action is barred by the Pennsylvania statute of limitations. *fn2"

 I. Background

 In October of 1972, plaintiff Beverly Brownstein underwent bilateral breast augmentation surgery. The plaintiff alleges that the prosthetic mammary devices were manufactured by the defendant. The plaintiff contends that she "had dissatisfaction around 1983 or 1982."

 Sometime in 1984, the plaintiff saw Dr. Cha, a plastic surgeon, and in July of 1984, the plaintiff saw Dr. Noone, also a plastic surgeon. Dr. Noone told the plaintiff that he could not be sure of the cause of her complaints without surgery.

 On June 4, 1985, the plaintiff underwent revision surgery to replace the breast prothesis. The defendant alleges and the plaintiff admits that Dr. Fitzpatrick, the treating physician, concluded that the prosthesis which she replaced had ruptured and that tissue had grown around a fixation patch at the left prosthesis in a manner involving rib tissue.

 The plaintiff filed her complaint on February 24, 1987.

 The defendant contends "that the condition of which the plaintiff complains could have been discovered more than two years before the plaintiff commenced this action"; "that the plaintiff was concerned that her complaints about her breasts were related to the mammary prosthesis more than two years before she commenced this action"; and that the plaintiff understood that the only procedure available to diagnose completely the cause of her complaints was surgery, but delayed undergoing the procedure again because of her fear and anxiety regarding the breast surgery, which involved pain and discomfort. The defendant admits that the surgery produced the evidence upon which the plaintiff bases her claim.

 II. Negligence and Product Liability

 In Count I of the Complaint, the plaintiff pertinently alleges that the defendant was negligent in selling and distributing the surgical implants in a defective condition, in failing to make a reasonable inspection to discover the defects in the surgical implants, and in failing to warn of the defective implants. In Count II, the plaintiff asserts a claim based on strict liability in tort.

 In Pennsylvania, a cause of action to recover damages for injuries to the person caused by the wrongful act or neglect or unlawful violence or negligence of another must be commenced within two years. 42 Pa. C.S. § 5524(2). In Pennsylvania, courts have ameliorated the harsh effect of the statute of limitations by adopting the "discovery rule." When the rule is applied, the statute of limitations does not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury. Burnside v. Abbott Laboratories, 351 Pa. Superior Ct. 264, 291, 505 A.2d 973, 987 (1985). Injury occurs "when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). In order to determine what is reasonable diligence in a particular case, one must evaluate the plaintiff's actions to discover whether he exhibited "those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." Petri v. Smith, 307 Pa. Superior Ct. 261, 271, 453 A.2d 342, 347 (1982) (quoting Restatement (Second) of Torts § 283, comment b). As the court observed in Burnside, 351 Pa. Superior Ct. at 292, 505 A.2d at 988 (citations omitted):

 
Where the issue involves a factual determination regarding what is a reasonable period of time for a plaintiff to discover his injury and its cause, the determination is for the jury. Only where the facts are undisputed and lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable may the question be decided as a matter of law on summary judgment.

 The defendant contends that the plaintiff's cause of action accrued not later than July of 1984 when the plaintiff was examined by two plastic surgeons, Dr. Cha and Dr. Noone. The defendant asserts that Dr. Noone told the plaintiff that it was possible that the prosthesis in her left breast had torn or ruptured but that he could not be sure of the cause of the plaintiff's complaints without surgery. The defendant further contends that in July of 1984, "the plaintiff ...


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