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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 ...

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