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SPEICHER v. DALKON SHIELD CLAIMANTS TRUST

November 6, 1996

CAROLE ANN SPEICHER, Plaintiff,
v.
DALKON SHIELD CLAIMANTS TRUST, Defendant.



The opinion of the court was delivered by: JOYNER

 Joyner, J.

 November 6, 1996

 INTRODUCTION

 In this diversity action, plaintiff Carole Ann Speicher is suing Dalkon Shield Claimants Trust *fn1" ("Dalkon Shield") for reproductive problems she claims were caused when she used an Intrauterine Device ("IUD") in the 1970s. Plaintiff has asserted a claim for negligence, failure to warn, strict liability, breach of warranty and fraudulent concealment. Defendants have filed a summary judgment motion pursuant to Fed. R. Civ. P. 56(c), alleging that plaintiff is barred from asserting a claim because Pennsylvania's statute of limitations has passed. This memorandum resolves defendant's motion.

 BACKGROUND

 In 1970, Ms. Speicher began using a Dalkon Shield IUD device. In 1974, while still using the Dalkon Shield IUD, plaintiff was told by her gynecologist, after experiencing abdominal pain, that she had an infection. Nevertheless, Ms. Speicher apparently continued to use the IUD until November 1975.

 In 1976, while pregnant, plaintiff underwent surgery for an ectopic pregnancy. She was allegedly told that there was damage to her reproductive organs and that it was caused by a previous infection. A medical entry in her file stated that she may have had a pelvic inflammatory disease because of her use of the IUD. Nevertheless, it was not until the birth of a child in 1980, and another ectopic pregnancy in 1985, that Ms. Speicher began to think that her medical problems could have been caused by her prior use of the IUD.

 When questioned about the details of her hospital visits and the circumstances in the early 1970's surrounding her medical problems, Ms. Speicher is unable to recall the facts with complete accuracy. For example, Ms. Speicher is unable to remember if she had any cramping or bleeding before she began using the Dalkon Shield IUD and while she was using another IUD, she does not remember how long she waited before going to a doctor after experiencing pain, nor does she remember whether her doctor prescribed medication after the 1974 incident. Furthermore, there is an absence of medical records to aid in determining the details of the events occurring at those times.

 Defendants claim that Ms. Speicher is barred by the statute of limitations and that the discovery rule does not apply because plaintiff could have known earlier that the Dalkon Shield IUD caused her injury; she could have asked her doctors the cause of her infection, and she could have read popular magazines which had documented the risk of disease from using IUDs, including the Dalkon Shield. Plaintiff claims that she asked her doctor about her infection but was never told that the Dalkon Shield IUD could have caused it.

 DISCUSSION

 This Court is authorized to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, the Court's task is not to resolve disputed issues of fact, but to determine whether there exist any material factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The summary judgment standard requires the moving party to show that the facts are so one-sided that it should prevail as a matter of law. Id. at 252. Nevertheless the non-moving party must raise more than a scintilla of evidence in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

 Pennsylvania's statute of limitations for personal injury is two years. 42 Pa. Cons. Stat Ann. § 5524(2). Nevertheless, Pennsylvania courts have frequently invoked the discovery rule. See e.g. Cochran v. G.A.F., 666 A.2d 245 (Pa. 1995); Stauffer v. Ebersole, 385 Pa. Super. 306, 560 A.2d 816 (Pa. 1989). This rule tolls the statute of limitations until plaintiff could have reasonably discovered her injury and its cause. If the plaintiff is successful in invoking the discovery rule, the cause of action accrues when plaintiff is aware of or should have been aware of her injury and its cause, but the plaintiff has the burden of showing that she is entitled to the benefit of the rule. Van Buskirk v. Carey Canadian Mines, 760 F.2d 481, 487 (3d. Cir. 1985); Owens v. Lac D'Amiante Du Quebec, LTEE., 656 F. Supp. 981, 982 (E.D.Pa. 1987).

 In order to obtain the benefit of the rule, the plaintiff must show that she exercised diligence to ascertain the existence or cause of her injury but could not discover those facts ...


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