Kemp v. G D Searle & Co ( 1997 )

REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60643
_____________________
CAROL STEWART KEMP,
Plaintiff-Appellant,
v.
G D SEARLE & CO,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
January 6, 1997
Before KING, JONES, and DUHÉ, Circuit Judges.
KING, Circuit Judge:
Carol Stewart Kemp brought this products liability action
based on an allegedly defective intrauterine device. Both sides
filed motions for summary judgment based on the statute of
limitations. The trial court granted the motion of the
defendant, G.D. Searle & Co., and denied Kemp’s motion. Kemp
timely appealed. We affirm.
I. BACKGROUND
In the light most favorable to Kemp, as we must review a
summary judgment, the facts are as follows. In 1977, Kemp was
prescribed a Copper 7 (“Cu-7") intrauterine device (“IUD”),
manufactured by G.D. Searle & Co. (“Searle”), for birth control.
In a routine procedure, this first IUD was removed and a second
one inserted by Dr. Susan Hakel in July of 1980. In August of
1984, after Kemp went to an emergency room complaining of
abdominal cramps, she was diagnosed with pelvic inflammatory
disease (“PID”). Later that month, Dr. Hakel removed the IUD and
prescribed oral contraceptives for Kemp. It is unclear whether
Hakel indicated to Kemp at that time that the PID had been caused
by the IUD.
In December of 1985, Kemp went to Hakel for an annual
checkup. Kemp asked Hakel about the possibility of tubal
scarring from her PID incident; in her records regarding this
visit, Dr. Hakel made this notation: “had PID with Copper 7,
wonders re tubal scarring.” The details of the conversation that
followed are unclear, but Kemp was told at least of the
connection between the IUD and her PID and that PID can lead to
tubal scarring which, if severe enough, can result in
infertility. There are two procedures to diagnose infertility
from tubal scarring: an hysterosalpingogram and a laparoscopy.
Dr. Hakel described these procedures as “invasive, painful, [and]
expensive” and recommended that Kemp not undergo these procedures
until she had attempted conception for at least twelve to
eighteen months. According to Kemp, Dr. Hakel told her that “no
doctor would perform such [an] invasive operative procedure[]
until I first attempted unsuccessfully to conceive for eighteen
months.”
2
Within a few months of her conversation with Dr. Hakel, Kemp
married Sam Abazari, but for personal reasons they never
attempted conception. Kemp and Abazari divorced in October of
1989. In January of 1993, Kemp decided to begin attempting
conception with Charles Kemp, whom she later married. In April
of 1993, Kemp received treatments for pelvic pain that was
unrelated to her previous PID. During the course of treatment,
Kemp underwent a laparoscopy, which revealed that her fallopian
tubes were severely scarred. Kemp was told that the scarring was
so severe that she would be unable to conceive naturally. This
was the first time that Kemp knew of her infertility. Despite
the diagnosis that natural conception was impossible, Kemp and
her husband attempted, unsuccessfully, to conceive.
On November 24, 1993, Kemp filed suit in Mississippi state
court. Searle removed the suit to federal district court based
on diversity of citizenship. Kemp moved for partial summary
judgment on Searle’s affirmative defense of statute of
limitations. Searle made a counter-motion for summary judgment,
asserting that Kemp’s action was barred by Mississippi’s statute
of limitations.1 The district court granted Searle’s motion,
concluding the statute of limitations on Kemp’s cause of action
began running at the latest in December of 1985 because of Kemp’s
1
The parties agree that the limitations period governing
this suit is six years. However, the statute has subsequently
been amended to allow only three years. See MISS. CODE ANN. § 15-
1-49 (1995); Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 705
(Miss. 1990).
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discussion with Dr. Hakel regarding the connections between the
IUD, PID, scarring, and infertility. Kemp timely appealed.
On appeal, Kemp argues that her injury is the infertility,
which she did not discover until April of 1993. Kemp asserts
that she exercised reasonable diligence in discovering the
infertility because she relied upon her physician’s advice not to
seek the diagnostic procedures until she had attempted conception
for twelve to eighteen months. Kemp maintains that because she
acted with reasonable diligence, her claim is timely under
Mississippi’s discovery rule.
Searle counters that Kemp’s claim is barred because she had
only one cause of action that accrued when she discovered that
her IUD had caused her an injury, namely the PID. Thus, Kemp’s
diligence in discovering her infertility is irrelevant. In the
alternative, Searle insists that Kemp did not act with reasonable
diligence because she waited too long before undergoing the
diagnostic procedures.
We hold that Kemp had a single cause of action that accrued
when she discovered the PID and its source, which was more than
six years before filing suit. Thus, we affirm.
II. STANDARDS OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. Texas Medical Ass’n v. Aetna Life Ins. Co., 80 F.3d
153, 156 (5th Cir. 1996). Summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and
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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). Questions of statutory interpretation are
questions of law and thus reviewed de novo. Estate of Bonner v.
United States, 84 F.3d 196, 197 (5th Cir. 1996).
Because this is a diversity action, we must apply
Mississippi substantive law. Erie R.R. v. Tompkins, 304 U.S. 64
(1938). In doing so, we must reach the decision we think the
Mississippi Supreme Court would reach. Jackson v. Johns-Manville
Sales Corp., 781 F.2d 394, 396-97 (5th Cir.) (en banc), cert.
denied, 478 U.S. 1022 (1986). “We are emphatically not permitted
to do merely what we think best; we must do that which we think
the Mississippi Supreme Court would deem best.” Id. at 397.
III. ANALYSIS
Kemp asks us to hold that a fact issue exists as to whether
she acted with reasonable diligence in discovering her
infertility. Before we can determine this, we must first
establish whether Kemp has a cause of action for infertility.
Kemp recognizes that she could have sued based on her PID and
that the statute of limitations has run on that claim. The
question then is whether Kemp’s infertility gives rise to an
additional cause of action. Because we hold that Kemp had only
one cause of action and that the infertility does not give rise
to a new cause of action, we do not reach the question whether
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Kemp acted with reasonable diligence in discovering her
infertility and we express no opinion on the matter.
A.
Searle urges us to follow cases from several other circuits
that have addressed this specific issue. For example, the First
Circuit, in Gagnon v. G.D. Searle & Co., 889 F.2d 340 (1st Cir.
1989), discussed the statute of limitations for a woman who had a
Cu-7 IUD and began experiencing cramping, infections, fever,
etc., and eventually developed PID, leading to a total
hysterectomy. Id. at 340. The court held that the statute of
limitations began running when she first began experiencing
symptoms that she suspected were caused by the IUD, not when she
knew the full extent of her injuries, and therefore her suit for
injuries including the hysterectomy was barred. Id. at 343.
Similarly, the Second, Fourth, Seventh, and Eighth Circuits held
that the relevant statute of limitations began to run for a
plaintiff seeking to recover for injury caused by an IUD when she
discovered that she had PID and that the PID was caused by an
IUD. A plaintiff in such a situation cannot split her cause of
action into one for PID and one for infertility, even though she
did not realize the full extent of her injuries –– specifically,
her infertility –– until years later. See Gnazzo v. G.D. Searle
& Co., 973 F.2d 136, 137-39 (2d Cir. 1992); Granahan v. Pearson,
782 F.2d 30, 31-33 (4th Cir. 1985); Miller v. A.H. Robins Co.,
766 F.2d 1102, 1103, 1105-06 (7th Cir. 1985); Klempka v. G.D.
Searle & Co., 963 F.2d 168 (8th Cir. 1992); cf. Cacciacarne v.
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G.D. Searle & Co., 908 F.2d 95 (6th Cir. 1990) (holding that
plaintiff’s cause of action did not accrue until she discovered
her infertility, even though the IUD had previously caused the
plaintiff difficulties, because the injury was not certain and
clear enough to trigger limitations before the definitive
diagnosis). While factually similar and persuasive, these cases
are legally distinguishable because each is based upon the law of
the particular state at issue, not Mississippi law. See Gagnon,
889 F.2d at 341 (New Hampshire); Gnazzo, 973 F.2d at 138
(Connecticut); Granahan, 782 F.2d at 31 (Virginia); Cacciacarne,
908 F.2d at 96 (Ohio); Miller, 766 F.2d at 1103 (Indiana);
Klempka, 963 F.2d at 169 (Minnesota).
B.
Thus, the key inquiry in the case at bar is the law of
Mississippi. The Mississippi Code section applicable to this
case provides as follows:
(2) In actions for which no other period of limitation
is prescribed and which involve latent injury or
disease, the cause of action does not accrue until the
plaintiff has discovered, or by reasonable diligence
should have discovered, the injury.
MISS. CODE ANN. § 15-1-49(2). In Owens-Illinois, Inc. v. Edwards,
573 So. 2d 704, 709 (Miss. 1990), the Mississippi Supreme Court
sitting en banc held that section 15-1-49 applies to products
liability cases. The court held that “[t]he cause of action
accrues and the limitations period begins to run when the
plaintiff can reasonably be held to have knowledge of the injury
or disease.” Id. Furthermore, Mississippi has long followed the
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general rule that “a tortious act gives rise to but a single
cause of action.” McDonald v. Southeastern Fidelity Ins. Co.,
606 So. 2d 1061, 1064 (Miss. 1992). Kemp concedes that she could
have sued Searle in December of 1985 when she knew of her PID and
that Searle’s IUD had caused her PID. Because infertility is
merely a sequela of PID and not a separate disease, the tortious
act that led to Kemp’s PID was the same tortious act that led to
her infertility. Thus, we see no reason to believe that
Mississippi would depart from its well-settled rule that a
tortious act gives rise to only one cause of action, and that the
statute of limitations applicable to the single cause of action
in this case began to run no later than December of 1985 with
Kemp’s conversation with Dr. Hakel.
C.
None of the Mississippi cases Kemp cites dictates a contrary
result. Kemp cites many discovery rule cases such as Williams v.
Kilgore, 618 So. 2d 51 (Miss. 1992), and Smith v. Sanders, 485
So. 2d 1051 (Miss. 1986). However, these cases merely reiterate
that the general rule of section 15-1-49 that the time of the
discovery of the injury is also the time when the statute of
limitations begins to run. Williams, 618 So. 2d at 55; Smith,
485 So. 2d at 1052. We agree: the time that Kemp discovered her
PID is crucial. These cases do not even suggest a departure from
the well-settled rule that Kemp had only one cause of action for
her injuries from the IUD.
8
Relying on Schiro v. American Tobacco Co., 611 So. 2d 962,
965 (Miss. 1992), Kemp argues that the statute of limitations as
to her infertility could not have begun to run until the
infertility was diagnosed. In Schiro, plaintiff Schiro sued four
cigarette manufacturers in products liability, alleging that
their unreasonably dangerous and unsafe cigarettes caused her to
develop cancer. Id. at 962-63. Schiro began smoking in 1943.
Id. at 963. She developed emphysema in the late 1960s or early
1970s, and she stopped smoking in 1977. Id. In April of 1981,
she began coughing up blood, and at this time Schiro believed she
had cancer, even though her doctor assured her she did not. Id.
She coughed up blood again in November of 1981. Id. On December
27, 1981, a small mass was detected in Schiro’s chest, which was
determined two days later to be lung disease. Id. On January
24, 1982, the mass was diagnosed as cancer. Id. On January 22,
1988, Schiro filed suit. Id. The defendants filed for summary
judgment, arguing that Schiro’s suit accrued at least in April
1981 when Schiro began coughing up blood or December 29, 1981,
when the lung mass was discovered, and the lower court granted
the motion. Id. at 963-64. The Mississippi Supreme Court
disagreed. The court held that the cause of action accrued with
the cancer diagnosis. Id. at 965. The court determined that
Schiro’s belief that she might have cancer was insufficient to
trigger limitations because “[a] belief is nothing more than an
opinion or a person’s view of something unsubstantiated by
proof.” Id.
9
While facially similar to the case at bar, Schiro does not
command the result Kemp desires. While the cancer diagnosis was
necessary to confirm that Schiro’s disease was in fact cancer,
Kemp had a diagnosis of her disease –– she was diagnosed with PID
in August of 1984. Because infertility is not a separate and
distinct disease but an aftereffect of the PID, a later diagnosis
of infertility is irrelevant to the commencement of the statute
of limitations.
Kemp asserts that it is “well settled Mississippi law that
the gravity of the injury is a significant factor to be
considered in determining whether a plaintiff has brought his or
her action within the applicable limitations period.” For
example, in Struthers Wells-Gulfport, Inc. v. Bradford, 304
So. 2d 645 (Miss. 1974), plaintiff Bradford was bitten by what
was believed to be a poisonous brown recluse spider in December
of 1968. Id. at 646. She immediately began developing
complications, including a kidney infection. Id. Bradford had
intermittent problems over the next few years, and in February of
1972, she was diagnosed with a vasculitis infection in a blood
vessel. Id. at 646-47. Although her employer’s insurance had
paid most of her medical bills, after the vasculitis infection
diagnosis, Bradford applied for disability benefits. Id. at 647.
The employer argued that she was barred by the two-year
limitations period for making such claims because she knew of her
injury from the spider in 1968. Id. at 648. The court,
construing the workers’ compensation statute, held that the
10
employer was not required to pay disability compensation until
“it became reasonably apparent that she had a disability arising
[from the spider bite]” and concluded that until she was
diagnosed with vasculitis, Bradford had no injury serious enough
to qualify for disability benefits. Id. at 649. Bradford is
distinguishable from the case at bar because Kemp had a
compensable injury with the PID, even though she may not have
realized that she was infertile until much later.
Kemp also points to Pittman v. Hodges, 462 So. 2d 330 (Miss.
1984), to support her argument that the gravity of the injury
must be considered in determining when limitations begins. In
Pittman, the plaintiff’s suit was filed two years and seven days
after the defendant dentist last saw the plaintiff for care
relating to a wisdom tooth extraction. Id. at 331. On this last
visit as well as during previous visits, the plaintiff had
complained of numbness, and the defendant told him that the
numbness was only temporary and could last for as little as a few
works or as long as a year. Id. at 332. The numbness turned out
to be permanent. Id. at 333. The dentist argued that the
statute of limitations began when the plaintiff discovered the
numbness. Id. The court disagreed, stating that “the essence of
the injury” was the permanent nature of the injury, which could
not have been discovered until the period of temporary numbness
had passed, and thus limitations began when that temporary
numbness period expired. Id. Relying on Pittman, Kemp argues
that she did not discover the essence of her injury until she was
11
diagnosed with infertility and thus limitations did not begin to
run until that discovery. However, Pittman does not apply
because the plaintiff did not even know he had been injured until
he discovered that the temporary numbness was really permanent.
Kemp knew she was injured when she was diagnosed with PID. That
she later discovered an aftereffect of that injury does not
change the fact that she knew she was injured.
Kemp insists that because PID and infertility are not
synonymous, limitations for a cause of action for infertility
should be measured on a different timeline than an action for
PID. We in no way mean to suggest that PID and infertility are
synonymous. However, they are both the product of the same chain
of causality: the IUD caused the PID, and the PID caused the
infertility. Cases in other contexts, such as asbestos, have
distinguished between two separate, distinct diseases and two
interrelated conditions.2 See, e.g., Wilson v. Johns-Manville
Sales Corp., 684 F.2d 111 (D.C. Cir. 1982). In the case at bar,
there is but one disease –– PID; the infertility is not a
separate disease, but a complication of the PID. We express no
opinion with regard to a situation involving a later-manifesting
disease that is totally separate and distinct from the initial
2
For example, following exposure to asbestos, an
individual can contract asbestosis or mesothelioma. These
diseases can emerge years apart from each other. The asbestosis
is related to the mesothelioma only in the sense that both are
caused by exposure to asbestos. However, mesothelioma develops
independently of asbestosis; it is possible to have mesothelioma
without ever having asbestosis, and vice versa. See Wilson v.
Johns-Manville Sales Corp., 684 F.2d 111, 113, 117 (D.C. Cir.
1982).
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injury. We simply hold that the district court was correct in
concluding that Kemp’s injury was the PID and that the statute of
limitations began to run when she knew of her injury and its
cause, not when she later discovered all of the consequences and
complications of the PID.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
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