Sandra D. BULLARD, Plaintiff-Appellant, and Arthur L. Bullard, Plaintiff, v. DALKON SHIELD CLAIMANTS TRUST, Defendant-Appellee, and Frederick A. Clark, Jr., M.D.; Hugh J. Davis, Jr., M.D.; A.H. Robins Company, Defendants.
No. 94-1364.
United States Court of Appeals, Fourth Circuit.
Decided Feb. 2, 1996.
531
North Carolina Academy of Trial Lawyers, Amicus Curiae. Argued Nov. 2, 1994.
No. 94-1364.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1994.
Decided Feb. 2, 1996.
Vacated and remanded by published opinion. Judge WIDENER wrote the opinion, in which Judge DONALD RUSSELL and Senior Judge CHAPMAN joined.
ARGUED: Ralph James Lore, Lore & McClearen, Raleigh, North Carolina, for Appellant. Richard Matthew Barnes, Goodell, Devries, Leech & Gray, Baltimore, Maryland, for Appellee. ON BRIEF: Charles P. Goodell, Jr., Richard L. Ames-Ledbetter, Goodell, Devries, Leech & Gray, Baltimore, Maryland, for Appellee.
OPINION
WIDENER, Circuit Judge:
The plaintiff, Mrs. Bullard, appeals the order of the district court granting summary judgment for the defendant, the Dalkon Shield Claimants Trust, on the finding that her personal injury claim is untimely under the North Carolina statute of repose,
I
On January 11, 1972 Mrs. Bullard underwent insertion of a Dalkon Shield intrauterine device (IUD) by her local physician in North Carolina. On June 28, 1973, the device was found to be imbedded in her uterus, but was not removed at that time. In April 1974 Mrs. Bullard was treated for pelvic inflammatory disease and uncontrolled bleeding, and she was admitted to the hospital for surgical removal of the IUD. Over three years later, on August 29, 1977, Mrs. Bullard underwent an exploratory laparotomy for persistent lower abdominal pain and abnormal spotting between menstrual periods. She was diagnosed at that time to have adhesions of the fallopian tube and ovary caused by old chronic pelvic inflammatory disease and an ectopic pregnancy which required a
Mrs. Bullard asserts, and the Trust concedes (A.78), that she did not discover the possible connection between her use of the IUD and her injuries until December 1984 when she read an advertisement in the newspaper for legal services related to injuries from the Dalkon Shield. On May 2, 1985, she filed suit in a Maryland state court against the manufacturer, A.H. Robins Company, Hugh J. Davis, M.D., the inventor, and others for damages for infertility secondary to pelvic inflammatory disease. Mrs. Bullard‘s theories of recovery were negligence, strict liability, fraudulent misrepresentation, and conspiracy to commit fraud. Thereafter, in the course of bankruptcy proceedings by A.H. Robins Company, the Dalkon Shield Claimants Trust (Trust) was created and substituted for all named defendants. Subsequently, the action was removed on motion by the Trust to the United States District Court for the District of Maryland. Sitting in diversity, the district court determined that Maryland applies the rule of lex loci delicti for tort actions. It found that neither party disputed that the IUD at issue was inserted in North Carolina and that all injuries claimed by the plaintiff occurred in North Carolina. The district court then determined that
II
Mrs. Bullard contends that the district court erred in determining that
A
In deciding the question of application of
The legislature . . . was reacting to the law of Jewell, Motor Lines, Shearin, and Lewis which permitted latent, undiscovered, first injury to cause the statute of limitations to begin running. In a disease claim, as we have demonstrated, the diagnosed disease is the first injury. A manifested, diagnosed disease is not latent. There was, therefore, no need for a statute changing the accrual date for disease claims, and the statute by its terms does not purport to do so. The only need was for a statute changing the accrual date for latent injury claims such as those in Jewell, Motor Lines, Shearin and Lewis, and the statute by its terms is directed to these type claims.
336 S.E.2d at 73. Emphasizing its earlier discussion in Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976), concerning the kinds of cases subject to the outer limitation, the Wilder court determined that “[n]one of the cases toward which the statute was directed involved disease. They all involved situations in which it was possible to identify a single point in time when plaintiff was first injured.”5 336 S.E.2d at 70. The Wilder court recognized that “[b]oth the Court and the legislature have long been cognizant of the difference between diseases on the one hand and other kinds of injury on the other from the standpoint of identifying legally relevant time periods.” 336 S.E.2d at 71.
We are of opinion that the district court erred in holding that the Wilder exception is limited to a narrow range of occupational diseases or only to those diseases affirmatively stated as exceptions in a case such as Wilder. While Wilder does involve a disease contracted from occupational exposure to asbestos, we find nothing in the language of Wilder that would limit the disease exception. Rather, in its discussion throughout and at the conclusion, the Wilder court states repeatedly and without qualification or equivocation that the statute does not apply to claims arising from disease.
We find nothing in Wilder that suggests that the North Carolina Supreme Court would determine whether pelvic inflammatory disease were included in the disease exception to the statute of repose based on its status or lack of status as an occupational disease. And we note that the North Carolina Supreme Court has stated unequivocally that the statute has “no application to claims arising from disease.” 336 S.E.2d at 67, 73.6
Turning to the question of whether pelvic inflammatory disease is a disease within the meaning of the disease exception to the statute, we find no North Carolina decision. But we think the analysis of the North Carolina Supreme Court in Wilder is instructive:
A disease presents an intrinsically different kind of claim. Diseases such as asbestosis, silicosis, and chronic obstructive lung disease normally develop over long periods of time after multiple exposures to offending substances which are thought to be causative agents. It is impossible to identify any particular exposure as the “first injury.” Indeed, one or even multiple exposures to an offending substance in these kinds of diseases may not constitute an injury. The first identifiable injury occurs when the disease is diagnosed as such, and at that time it is no longer latent.
It is clear in Wilder that in determining a disease exception to the statute, the court looks primarily to two characteristics: the difficulty or impossibility of establishing the exact time the injury first occurs or the disease process begins, and some period of time between first exposure to the product and the discovery of the disease, so that the harm caused by the product would not be readily apparent until the disease is diagnosed as such. We do not agree with the district court‘s reasoning that the disease exception recognized in Wilder “appl[ies] solely to occupational disease.” Indeed Wilder specifically states the statute in question was enacted as a part of a statute to change the accrual date for latent injury claims such as those in Jewell, Motor Lines, Shearin and Lewis, 336 S.E.2d at 70, 73, none of which cases concerned an occupational disease. While it is true that certain occupational diseases fall within the Wilder exception, it is not true that the disease exception to the statute of repose recognized in Wilder is confined solely to occupational diseases.
As might be supposed, there is precious little authority on this narrow question. That which has come to our attention, however, arises from two States in the Seventh Circuit and from that court. The cases are Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983); Hansen v. A.H. Robins Co., Inc., 715 F.2d 1265 (7th Cir.1983); Barnes v. A.H. Robins Co., Inc., 476 N.E.2d 84 (Ind.1985); Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind.1989); and Avery v. Mapco Gas Products, Inc., 18 F.3d 448 (7th Cir.1994).
The Hansen cases involve application of the Wisconsin statute of limitations to an action resulting in pelvic inflammatory disease from the insertion of a Dalkon Shield, facts not different in any significant way from those of the case at hand. The district court in Wisconsin had held the Wisconsin statute of limitations had run. On appeal, that question, however, was referred by the Seventh Circuit to the Supreme Court of Wisconsin for a decision “that directly addressed when the statute of limitations begins to run in a disease situation.” 715 F.2d at 1266. The question itself was quoted by the Wisconsin Court and contained a description of the injury of the plaintiff as “caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance.” 335 N.W.2d at 579. So the Seventh Circuit described pelvic inflammatory disease as a disease, and the Wisconsin Court answered the question by reference to a disease. The Wisconsin Court answered that the discovery rule applied when the negligence charged might cause an injury which is initially latent. 335 N.W.2d at 580. Specifically, the Court held that the claim should “accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first.” 335 N.W.2d at 583. The significance of those cases, of course, is that pelvic inflammatory disease caused by the insertion of a Dalkon Shield was held to be a disease. In neither Hansen case was a statute of repose, as distinguished from a statute of limitation, involved.
The Barnes case arose in the state court in Indiana in the same manner as had the Hansen case in Wisconsin, on a certified question
This [answer] is consistent with our holding in Barnes and is limited to cases, such as this one, where an injury to a plaintiff is caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance. 543 N.E.2d at 384.
* * * *
As was the situation in Barnes this case involves a latent disease which may have been contracted as a result of the introduction of a foreign substance into a person‘s body. In Barnes that foreign substance was the Dalkon shield intrauterine device manufactured by A.H. Robins, Co., Inc. In the present case, the foreign substance is asbestos, a naturally occurring substance that the defendants allegedly mined and supplied to the plaintiff‘s employer in raw, chrysotile, fibrous form. In both cases, the foreign substance was introduced into the plaintiff‘s body long before any injury or resultant disease became manifest. Although it is true that the plaintiff‘s cause of action did not accrue for purposes of the two (2) year statute of limitations . . . until such time that the plaintiff knew or should have discovered that he suffered an injury or impingement, the fact remains that the injury was inflicted, during the time of protracted exposure to an inherently dangerous foreign substance. 543 N.E.2d at 384.
The significance of the Covalt case, of course, is that the Indiana Court, in holding that asbestosis was subject to a discovery rule, and that a statute of limitation applied rather than a statute of repose, equated asbestosis to pelvic inflammatory disease from the use of a Dalkon Shield in arriving at its conclusion. The Covalt case is not different in any significant particular from the case at hand, and no case coming to a contrary conclusion has come to our attention. Finally, in Avery v. Mapco Gas Products, Inc., 18 F.3d 448, 454 (7th Cir.1994), the Seventh Circuit construed Covalt and Barnes as we have to this effect: ” . . . The Indiana Supreme Court has concluded that injuries attributed to intrauterine devices and asbestos are not subject to the statute of repose.” Consistent with the literal language of the Wilder case, we find those cases from the Seventh Circuit, Indiana and Wisconsin to be persuasive.
VACATED AND REMANDED
Notes
No action for the recovery of damages for personal injury, death or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.