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February 2, 1994



The opinion of the court was delivered by: GLEN E. MENCER

This action, seeking compensation for injuries allegedly caused by the use of the Dalkon Shield intrauterine device ("IUD") in the 1970s, is before the court on a Motion for Summary Judgment filed by the Defendant, the Dalkon Shield Claimants Trust ("the Trust"). The question is whether Barbara and David Dreischalick ("Plaintiffs"), who initiated this suit in 1984, are barred by the Pennsylvania statute of limitations from pursuing their claims.

 The parties dispute the accrual date of Plaintiffs' cause of action and, consequently, the date upon which the statutory period began to run. The Trust argues for an accrual date in 1975, when the IUD was removed. Plaintiffs argue that equitable considerations, as embodied in the discovery rule, should toll the running of the statute until January 27, 1982.

 As discussed below, the court holds that Plaintiffs' cause of action accrued no later than October 14, 1981. As a matter of law, Plaintiffs knew or should have known by that time of the possible causal relationship between their injuries and the IUD. Since this knowledge is chargeable to Plaintiffs at a date more than two years prior to the initiation of this lawsuit, the Trust's Motion for Summary Judgment will be granted.

 Factual and Procedural Background

 In the summer of 1971, shortly after giving birth to a daughter, the Plaintiff wife, at the suggestion of her first husband, obtained an IUD for contraception. On August 12, 1971, she received an IUD in a procedure at an Army clinic. She allowed medical personnel to select the brand of IUD and remained unaware that it was a Dalkon Shield until at least July 15, 1975, when it was removed at the urging of a physician.

 Mrs. Dreischalick states that during the entire time she retained the IUD, she had excessively long menstrual periods, bleeding for approximately two weeks out of every month. This, she says, was an impediment to marital relations and caused tension between her and her first husband. During this time, Mrs. Dreischalick also experienced cramping and back pain. Mrs. Dreischalick separated from her first husband in January of 1974. After the separation, Mrs. Dreischalick retained possession of Army medical records identifying the Dalkon Shield as the IUD that was inserted in 1971.

 The IUD was removed in 1975 by an Erie gynecologist, Dr. Bu. In her deposition, Mrs. Dreischalick stated that she doubted the safety of the IUD and wanted it removed because she "was concerned about all the bleeding." Mrs. Dreischalick recalls Dr. Bu informing her that she was a "smart young lady," saying that it was a good thing she was having the IUD removed because the product had been taken off the market. Mrs. Dreischalick believes that Dr. Bu told her the IUD was a Dalkon Shield and she recalls him telling her that the IUD was probably to blame for her excessive bleeding. Two weeks after the IUD was removed, she obtained a prescription for oral contraceptives.

 Mrs. Dreischalick's medical records are unavailable for the five years following the IUD removal. However, she states that she went for pap smears on an annual basis and that she consulted a physician prior to her marriage to Mr. Dreischalick in July of 1977 to make sure that she was able to have children.

 In December of 1980, Mrs. Dreischalick saw another Erie gynecologist, Dr. DeMarco, on an emergency basis complaining of pelvic pain. She was admitted to St. Vincent Health Center on December 19, 1980, and underwent pelvic surgery three days later. During the operation Dr. DeMarco removed her left fallopian tube and ovary because, according to his concurrent report, "the left fallopian tube was enlarged, chronically scarred and obstructed and entrapping the left ovary forming a left tubo-ovarian adhesive constrictive mass which was the source of pain to the patient." Mrs. Dreischalick states that she was depressed about the surgery and, consequently, did not inquire of the physician as to what may have caused the problem.

 Ten months after the first surgery, Mrs. Dreischalick was again admitted to St. Vincent Health Center with vaginal bleeding and pelvic pain. Surgery performed on October 14, 1981, revealed an ectopic pregnancy in the right fallopian tube and Dr. DeMarco excised the fallopian tube, leaving the right ovary. Mrs. Dreischalick states that, again, she did not ask Dr. DeMarco what could have caused the problem.

 Due to both surgeries, Dr. DeMarco informed Mrs. Dreischalick that her child-bearing ability was severely limited. She was told that even utilizing in vitro fertilization, her chance in the future of carrying a baby to term was just seven percent.

 More than two years after her 1981 surgery, on December 24, 1983, Mrs. Dreischalick happened to see a newspaper article about a Philadelphia jury awarding $ 5.15 million to a woman injured by use of the Dalkon Shield in the early 1970s. Mrs. Dreischalick states that the article prompted her to check the Army medical records she had retained from her first marriage. She stated in her deposition:

I read this article in the paper and it kind of worked me up. I saw that, and I thought maybe I had a Dalkon Shield, because I -- the name sounded so familiar, so I went in and looked in my records, and at first I couldn't find it, and then it was on the back of one of the sheets, you know, that it gave the name, and I kind of like was in shock about it. I was very -- I thought, that's me. This is what I had. That's me.

 Plaintiffs initiated this action on January 27, 1984, by filing a Praecipe for Writ of Summons against A.H. Robins Co., Inc. ("Robins"), in the Court of Common Pleas of Erie County, Pennsylvania. Plaintiffs' Complaint, filed on April 23, 1984, alleged that Mrs. Dreischalick was injured as a result of her use between 1971 and 1975 of the Dalkon Shield, which had been manufactured by Robins.

 On August 21, 1985, Robins filed a Petition under Chapter 11 of the Bankruptcy Act in the United States District Court for the Eastern District of Virginia. As a result of the bankruptcy, the action filed in the Court of Common Pleas of Erie County was automatically stayed pursuant to 11 U.S.C. § 362(a). On February 25, 1993, Plaintiffs were authorized to proceed with their cause of action against the Trust, which is Robins' successor-in-interest. The Trust was created by a Plan of ...

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