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
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. . . .
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.
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.
A. Pennsylvania's statute of limitations ...