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United States District Court, Eastern District of Pennsylvania

April 12, 2001


The opinion of the court was delivered by: Edmund V. Ludwig, J.


This is a products liability action that was selected for trial in this district as part of In Re: Latex Gloves Products Liability Litigation, MDL 1148. Defendants Allegiance Healthcare Corporation/Baxter Healthcare Corporation, Johnson & Johnson Medical, a division of Ethicon, Inc., and Becton, Dickinson and Company move for summary judgment. Fed.R.Civ.P. 56.*fn1 Jurisdiction is diversity, 28 U.S.C. § 1332, and Pennsylvania law governs substantive issues. The motion will be granted in part and denied in part.

On February 13, 1997, plaintiff Eileen M. Hughes filed this suit against defendant manufacturers for negligence; strict liability; breach of express and implied warranties; and fraudulent concealment for her allergenic injuries alleged to have been caused by exposure to defendants' latex products.*fn2 According to defendants, her tort-based claims cannot overcome Pennsylvania's two-year statute of limitations. As to the breach of warranty claims, these are objected to because of: (1) lack of causation, and (2) assumption of the risk. Defendants contend that the delivery of the gloves to plaintiff's employer predates February 13, 1993, which is the operative date for the four-year breach of warranty limitations period, and that, although plaintiff knew of her allergenicity before that time, she continued using the gloves thereafter.

I. Background

Between 1988 and 1995, first as a student and then a registered nurse at Hahnemann University Hospital in Philadelphia, Pa., plaintiff used and was exposed to latex products.*fn3 Am. cmplt. ¶¶ 10-12; 8/20/97 Hughes dep. at 16-22. On January 14, 1991, her physician, Alan Levin, M.D., treated her for rashes on her hands and diagnosed the condition to be eczema. Levin-3, pltf. exh. F. She continued to wear latex gloves, and her condition worsened.*fn4

On July 28, 1992, plaintiff was treated by Morton Perlman, M.D., at Hahnemann's Occupational Health Services, because her "hands [had] broke[n] out from latex gloves."*fn5 1/13/00 Hughes dep. at 113-114; defs. exh. G. Perlman referred plaintiff to Eric Vonderheid, M.D., a member of Hahnemann's dermatology group, and noted in a consultation request form: "Has underlying chronic disease. Apparent exacerbation in glove area [with] urticaria on face." Consultation request form, defs. exh. H. Perlman prescribed Benadryl, and requested follow-up for the "question [of] latex gloves." Id.

On July 29, 1992, Vonderheid examined plaintiff.*fn6 1/13/00 Hughes dep. at 127. Notes taken from the testing:

[She had] hand eruption(s) since beginning work as nurse at HUH with exposure to latex gloves. Yesterday [she] wore gloves at 1 hr . . . severe eczema on hands and face. . . .

Defs. exh. H. The notes also state Vonderheid's diagnosis of plaintiff was "probable latex allergy;" he advised her to order hypoallergenic latex gloves and to wear vinyl gloves until they arrived and explained to her the "rare possibility of anaphylaxis."*fn7 Id.; Vonderheid dep. at 51-53. In her deposition testimony, plaintiff said she remembered little from Vonderheid's examination; however, she maintained, he did not inform her that she had a systemic allergy.*fn8 1/13/00 Hughes dep. at 125, 135.

On April 9, 1993, plaintiff again visited Levin, and his notes recite: "allergic — surgical latex." Defs. exh. J. However, neither plaintiff nor Levin recalled the consultation, and, in reflecting on his notes from a visit in 1994, Levin explained, somewhat curiously, "if she had a systemic problem, she wouldn't have — we didn't make the connection to the gloves."*fn9 Levin dep. at 33-34. On June 14, 1993, a registration form for dental work at Hahnemann University Dental Health Center, signed by plaintiff, reads: "allergic to latex." Defs. exh. K. Plaintiff testified, however, that she would have told the dentist of her problems with "white gloves," and not a latex allergy. 4/5/00 Hughes dep. at 232. On April 7, 1994, plaintiff gave birth to her daughter at Nazareth Hospital. A delivery record states that she had latex sensitivity. Def. exh. P. Two Nazareth outpatient records dated April 5 and 6, 1994, each signed by plaintiff, note that she was possibly allergic to latex. Def. exh. L, N. Nevertheless, plaintiff denies having informed the healthcare providers of a latex allergy. 4/5/00 Hughes dep. at 232-37.

In the summer of 1994, following her return from maternity leave, plaintiff stopped wearing latex surgical gloves. 1/13/00 Hughes dep. at 159, 161-62. On December 6, 1994, she was treated by David Pudles, D.O., for injuries she sustained in an automobile accident. Pudles dep. at 33. The notes of Pudles' associate, Joan Grzybowski, D.O., disclose that plaintiff was allergic to latex gloves.*fn10 Def. supp. exh. E. On May 4, 1995, plaintiff had an anaphylactic reaction and went to Hahnemann's emergency room. She informed the attending physician of her problems with latex, including itchy hands she had experienced for the past two years. 1/13/00 Hughes dep. at 180-82; 4/5/00 Hughes dep. at 275-76; defs. exh. S. On May 11, 1995, she was treated by Jonathan Jaffe, M.D., an allergist, who subsequently diagnosed a type-I allergy. Pltf. ex. A.

On February 13, 1997, the complaint was filed. It alleges that as a result of being exposed to defendants' latex-containing products, with or without dust and powder, plaintiff sustained "severe and immediate reactions[,] . . . including but not limited to the following: rhinitis, respiratory problems, tightness in the chest, swelling, dizziness, anaphylaxis, skin rashes, hives, contact dermatitis, extreme discomfort, depression and emotional distress[.]" Am. cmplt. ¶¶ 14, 15.

II. Discussion

A. Pennsylvania's statute of limitations for tort claims

Plaintiff's tort-based*fn11 claims are subject to Pennsylvania's two-year statute of limitations, 42 Pa. C.S.A. § 5524. Ordinarily, the limitations period "begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations." Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). However, an exception known as the discovery rule "arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause." Id. at 85, 468 A.2d at 471. "[W]here the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible." Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992) (citation omitted). "Conversely, if the existence of the injury and cause thereof are reasonably ascertainable within the two-year statutory period, the discovery rule does not apply and no tolling occurs." Baumgart v. Keene Building Products Corp., 542 Pa. 194, 199, 666 A.2d 238, 240 (1995). In a "creeping disease" case, such as this one, the discovery rule tolls the running of the limitations period until a plaintiff knows or reasonably should know: (1) that he or she has been injured; and (2) that the injury was caused by another's conduct. Crouse v. Cyclops Indus., 560 Pa. 394, 404, 745 A.2d 606, 611 (2000) (citation omitted); see Whitson v. Safeskin Corp., Civ. A. No. 97-8084, 2001 WL 238537, at *2 (E.D.Pa. Mar. 8, 2001).

Here, according to plaintiff, she sustained two distinct, unrelated injuries from exposure to defendants' products — a dermatological problem (caused by additive chemicals) and a systemic condition (caused by natural rubber latex). She concedes having known of her dermatological injury before the two-year tort limitations cutoff of February 13, 1995, but denies having been aware of her type-I allergic injury until May, 1995. She also asserts that the symptomology presented by her type-IV allergy masked and concealed the more serious, albeit similar, complaints resulting from a type-I allergy. Defendants counter that the limitations period began running on July 28, 1992, when plaintiff had a systemic allergic reaction; and, therefore, all of her tort claims are time-barred. Def. mem. at 7.

As an initial matter, a ruling on plaintiff's contention — that separate limitations dates should be applied to type-I and -IV allergenicity — is unnecessary to this decision.*fn12 It is undisputed that the injuries alleged in the complaint are consistent with type-I reactions,*fn13 i.e., systemic allergenicity. The issue, therefore, is whether by February 13, 1995, the two-year tort limitations deadline, plaintiff knew, or, through the exercise of diligence, should have known, of her systemic condition.

The facts are clear that plaintiff should have known. On July 28, 1992, she complained to Occupational Health Services of swelling and rashes on her hands and face, which she associated with the use of latex gloves. She met with a dermatologist, Dr. Vonderheid, the following day. Although her recollection of the visit is vague, she explicitly does not challenge the accuracy of Vonderheid's notes — i.e., that her problems occurred after wearing gloves for approximately one hour; she was diagnosed with probable latex allergy; and the possibility of anaphylaxis was explained to her. For a registered nurse to have received that information from a physician*fn14 could well be enough to have activated the limitations period, without more.*fn15 See Ackler v. Raymark Indus., Inc., 380 Pa. Super. 183, 194, 551 A.2d 291, 296 (1988) (citation omitted) ("Once a plaintiff knows, or should of known that he [or she] has suffered an injury, the statute of limitations then gives him [or her] the opportunity to select and consult with a lawyer, conduct the necessary investigation and commence suit. Two years is ample time in which to commence suit in a creeping disease case after the plaintiff acquires the requisite knowledge."). But in any event, the dermatologist's examination and preliminary diagnosis triggered her duty of inquiry; waiting for almost three years to consult an allergist was an unreasonable lack of follow-up as a matter of law. See Ingenito v. AC & S, Inc., 430 Pa. Super. 129, 134, 633 A.2d 1172, 1175 (1993) ("diligent investigation may require one to seek further medical examinations as well as competent legal representation").

In another type of creeping disease case, Trieschock v. Owens Corning Fiberglas Co., 354 Pa. Super. 263, 511 A.2d 863 (1986), plaintiff was told in March, 1982 by a company doctor that he might have asbestosis. Plaintiff had been asymptomatic prior to this preliminary diagnosis. On April 8, 1982, the diagnosis was confirmed by an independent pulmonary specialist. Plaintiff filed suit on April 6, 1984. In applying the discovery rule, the decision stated:

While the tentative diagnosis of suspected asbestosis was not sufficient to start the running of the statute of limitations, we believe it should be considered to have activated a duty on [plaintiff's] part to determine, with due diligence, whether he did, in fact, have that disease. The absence of such a duty would mean that a potential plaintiff with a tentative diagnosis could wait indefinitely before acting to confirm it. That would not be consonant with the purposes served by the statute of limitations.

Id. at 268, 511 A.2d at 866. Here, given her acute complaints and past history, the diagnosis of probable latex allergy, and the warning about anaphylaxis, plaintiff was required by limitations law to obtain further medical advice. Had she done so, she would have either found out about the type-I injury alleged in her complaint or been able to show that even with due diligence, discovery would not have occurred. According to the evidence, the latter alternative is improbable.*fn16

"A person claiming the discovery rule exception has the burden of establishing that he pursued the cause of his injury with 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." Cochran v. GAF Corp., 542 Pa. 210, 219, 666 A.2d 245, 250 (1995) (quotations omitted). Here, plaintiff waited three years after Vonderheid's preliminary diagnosis to obtain additional information about her allergenicity and almost two years more to file suit. See, e.g., Pitts v. Northern Telecom, Inc., 24 F. Supp.2d 437, 442 (E.D.Pa. 1998) (computer keyboard user knew or should have known of her keyboard use injury before diagnosis of carpal tunnel syndrome and more than two years prior to filing suit). "[W]here the undisputed facts lead unerringly to the conclusion that the time it took [plaintiff] to discover an injury or its cause was unreasonable as a matter of law, summary judgment" may be appropriate. Borough of Mifflinburg v. Heim, 705 A.2d 456, 467 (Pa.Super. 1997) (citation omitted). Because no genuine triable issue exists on this point, plaintiff's tort-based claims must be dismissed.

B. Breach of Warranty

The warranty claims based on gloves delivered before February 13, 1993 are subject to the four-year statute of limitations, 13 Pa. C.S.A. § 2725.*fn17

For the dismissal of warranty claims that arose after February 13, 1993, defendants rely on Nat'l Controls Corp. v. Nat'l Semiconductor Corp., 833 F.2d 491, 496 (3d Cir. 1987) ("damages sought must be a proximate consequence of the breach, not merely remote or possible. . . . The element of causation defines the range of socially and economically desirable recovery and requires not only `but-for' causation in fact but also that the conduct be a substantial factor in bringing about the harm.").*fn18 While plaintiff concedes her prior allergenicity,*fn19 it cannot be said as a matter of law that gloves delivered on or after February 13, 1993 could not have caused her subsequent complaints.*fn20 Accordingly, the breach of warranty claims for gloves within the four-year limitations period will be permitted to survive summary judgment.

An appropriate order follows.

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