Moss v. Pacquing , 183 Mich. App. 574 ( 1990 )

Murphy, P.J.

In this products liability and medical malpractice action arising out of the use of the Cu-7 intrauterine device, we are asked to determine whether the trial court erred by granting summary disposition on the ground that plaintiff Tammy Moss’ claims were barred by the statute of limitations. MCR 2.116(C)(7). The court, having concluded that the statute of limitations barred Tammy Moss’ claim, further granted defendant summary disposition on plaintiff Dennis Moss’ claim for loss of consortium for failure to state a claim. MCR 2.116(C)(8). We reverse.

On April 22, 1979, following the birth of her daughter, plaintiff Tammy Moss came to the office of her obstetrician-gynecologist, Artemio Pacquing, M.D., and explained that she had become pregnant while on oral contraceptives and wanted a more reliable form of contraception. Dr. Pacquing informed plaintiff that the Copper-7 or Cu-7 iud was effective and inserted the device that day. He also explained that she might experience cramping and heavier menstrual periods. The iud was manufactured by defendant Searle.

Plaintiff used the iud for over two years. She experienced longer and heavier menstrual periods, but had no other complaints.

On November 16, 1981, plaintiff returned to Dr. Pacquing complaining of severe cramping, vaginal discharge, and a high fever. Suspecting a pelvic infection, Dr. Pacquing prescribed a vaginal cream and antibiotics.

The following day plaintiff presented herself at the emergency room of St. Joseph’s Hospital in Pontiac with complaints of a high fever and urinary retention. Following treatment, she was discharged with a final diagnosis of acute cystitis, an inflammation of the urinary bladder.

On February 5, 1982, plaintiff returned to Dr. Pacquing and requested removal of the iud. Dr. Pacquing was unable to locate the iud. On February 19, 1982, Dr. Pacquing was again unsuccessful in locating the device. Plaintiff was therefore required to undergo surgery for removal of the iud. This surgery took place on March 2, 1982. Plaintiff was not told that she had suffered any permanent injury as a result of the iud.

For approximately one year following removal of the iud, Tammy Moss used oral contraceptives. She then ceased using contraceptives and attempted to become pregnant. When the couple’s attempts proved unsuccessful, Tammy and Dennis Moss both underwent a series of fertility tests. Dennis Moss’ sperm count was within the normal limits. However, tests performed at the Lapeer Community Hospital in March, 1985, disclosed that Tammy Moss’ two Fallopian tubes were infected or occluded.

On June 25, 1985, Tammy Moss underwent a diagnostic laparoscopy which revealed the need for major corrective surgery to remove the blockage from both Fallopian tubes. In August of 1985, a bilateral salpingostomy¹ and lysis of adhesions were performed. Following surgery, plaintiff continued her efforts to become pregnant but was still unable to do so.

Plaintiffs claim that it was not until August, 1986, when they read a magazine article, that they first realized that the iud was capable of causing permanent sterility and that defendants Searle and Pacquing had negligently failed to warn of this danger. On September 30, 1986, plaintiffs filed their complaint for products liability and medical malpractice.

The six-count complaint alleged that Searle knowingly provided an unsafe and defective product, failed to warn of known risks, breached express and implied warranties, and fraudulently represented the product’s safety. The complaint also alleged that Dr. Pacquing committed medical malpractice by failing to warn plaintiff of the risks associated with the use of the iud and that plaintiff Tammy Moss had become sterile as a result of the wrongful acts of defendants. A loss of consortium claim was filed by Dennis Moss. The complaint specifically alleged that plaintiffs filed their complaint within six months after discovering their cause of action.

Pursuant to MCR 2.116(C)(7), defendants moved for summary disposition on the ground that plaintiffs’ claims were barred by the statute of limitations. Plaintiffs responded to the motions, asserting that their cause of action for medical malpractice was not time-barred because the complaint was filed within six months after plaintiffs discovered the malpractice. Plaintiffs contended that the claim for products liability was filed within three years from the time that the claim accrued in compliance with MCL 600.5805(9); MSA 27A.5805(9). Plaintiffs argued that determination of when they first knew or should have known of their cause of action was a question of fact to be determined by a jury rather than by summary disposition.

In considering a motion for summary disposition under MCR 2.116(C)(7), a court must consider any affidavits, pleadings, depositions, admissions, and documentary evidence then filed or submitted by the parties. MCR 2.116(G)(5). In this case, all of plaintiffs’ well-pled factual allegations are accepted as true and are to be construed most favorably to plaintiffs. Wakefield v Hills, 173 Mich App 215, 220; 433 NW2d 410 (1988). If a material factual question is raised by the evidence considered, summary disposition is inappropriate. Levinson v Sklar, 181 Mich App 693, 697; 449 NW2d 682 (1989); Hazelton v Lustig, 164 Mich App 164, 167; 416 NW2d 373 (1987). The trial court in this case, in addition to the pleadings, was presented with plaintiff Tammy Moss’ deposition and an affidavit filed by Tammy Moss in opposition to the summary disposition motion.

Currently, a conflict exists among panels of this Court regarding whether a statute of limitations issue must be decided by a jury, Wakefield, supra; Leyson v Krause, 92 Mich App 759, 764-765; 285 NW2d 451 (1979), or by the judge as a preliminary question. Blana v Spezia, 155 Mich App 348, 354; 399 NW2d 511 (1986). If decided by a judge as a preliminary question, there must be an evidentiary hearing and opinion with full findings of fact and conclusions of law. Levinson, supra; Palenkas v William Beaumont Hosp, 162 Mich App 271, 284-285; 412 NW2d 709 (1987), aff'd in part, rev’d in part, this issue not addressed, 432 Mich 527 (1989).

Even if we agreed with Blana, which we do not, we would reverse since the trial court failed to comply with the requirement of a full evidentiary hearing. However, we reject Blana and would follow the Wakeñeld-Leyson line of cases.

MCR 2.116(I)(3) provides in pertinent part:

A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court .... If the motion is based on subrule (C)(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury. [Emphasis added.]

At the time our Supreme Court adopted this court rule, there existed a long line of cases which held that, where there is a dispute concerning the date when a plaintiff discovered, or reasonably should have discovered, his cause of action, this factual determination is to be made by a jury. Winfrey v Farhat, 382 Mich 380, 387; 170 NW2d 34 (1969); Wallisch v Fosnaugh, 126 Mich App 418, 424-425; 336 NW2d 923 (1983), lv den 418 Mich 871 (1983); Leyson, 92 Mich App 764-765; Leary v Rupp, 89 Mich App 145; 280 NW2d 466 (1979); Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976). Accordingly, we can only conclude that the issue of discovery is an issue to which a right to jury trial exists unless the facts are undisputed and the trial court can properly conclude that the plaintiffs claim is barred as a matter of law. This interpretation is consistent with the notes following the court rule:

Subrule (I) includes the provisions regarding disposition of the motion found in GCR 1963, 116.3 and 117.3. In addition, under subrule (I)(2), an immediate trial of disputed factual issues raised by a motion under subrule (C)(7) may be held despite the fact that a jury has been demanded. The immediate trial would, however, be by jury. [Emphasis added.]

We disagree with the assertion in Blana, supra, p 354, that the language of MCR 2.116(G)(5) serves as support for the conclusion that the discovery issue is to be decided by the trial court after an evidentiary hearing. MCR 2.116(G)(5) provides in part:

The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(l)-(7) or (10).

We read this subrule as mandating no more than that the trial judge take advantage of as broad a base of evidentiary material as possible before determining whether a material factual dispute exists. We find nothing in this subrule, or in MCR 2.116(I)(3) for that matter, that expressly repudiates the time-honored precepts that where no factual disputes exist, the question becomes one of law appropriate for the trial court to answer, but that where a factual dispute does exist, the question is to be answered by a jury. Wallisch, supra, p 424.

The issue thus becomes whether or not there is a disputed fact question regarding the statute of limitations which should be submitted to the jury. We have carefully reviewed the record, including the pleadings, plaintiff’s deposition, and plaintiff’s affidavit, and conclude that an ambiguity exists concerning what plaintiff knew and when she knew it. Therefore, because a fact question was presented for the jury to resolve, the trial court erred by granting defendants summary disposition.

Although no one expressly told her of a connection, there is evidence to support a finding that plaintiff knew that the infection she suffered in late 1981 was probably related to the iud. However, it is unclear exactly when she made this connection and whether she knew that the infection was caused by a defective product. Similarly, in late 1982 or early 1983, from reading various magazines, she may have known that iuds in general carried a slight risk of causing infertility in some women. However, the record does not reflect that she knew or should have known that the Cu-7 intrauterine device with which she was provided caused infertility or that she, in fact, was at risk.

In her deposition, plaintiff stated that she was not concerned about the effect of the infection on her ability to have children and that Dr. Pacquing never mentioned that it might affect her ability to bear children. Furthermore, according to plaintiff’s affidavit, it was not until 1986, shortly before filing suit, that she became aware that defendant doctor was negligent or that she had a cause of action against him, that defendant doctor was supposed to warn her of the possibility of sterility and associated risks before inserting the iud, that she suffers sterility as a result of using the Cu-7 iud, or that the iud was a defective product for which she might have a claim against defendant Searle.²

Under these circumstances, we hold that the question of when plaintiff Tammy Moss discovered or should have discovered the medical malpractice claim and the products liability claim should have been submitted to the jury for determination. See Wakefield, supra, pp 220-221; Bonney v Upjohn Co, 129 Mich App 18, 35; 342 NW2d 551 (1983).

Plaintiff Dennis Moss’ claim for loss of consortium is clearly derivative of his injured spouse’s claim. His recovery for loss of consortium stands or falls upon her recovery of damages. Furby v Raymark Industries, Inc, 154 Mich App 339, 343; 397 NW2d 303 (1986). However, defendants argue that even if plaintiff Tammy Moss’ claim is not time-barred, her husband’s claim must be dismissed because the parties were not married at the time the alleged tortious injury occurred. According to defendants, one should not be entitled to marry a cause of action.

This issue was raised and rejected in Furby, supra. In that case, a panel of this Court adopted the "discovery rule” and concluded that a claim of loss of consortium could still be brought if, at the time of marriage, neither spouse knew, or in the exercise of reasonable diligence could have known, of the claim. Id., p 347. Application of Furby to our holding in the instant case means that the disposition of the consortium claim will also be determined upon remand and proofs at trial._

In summary, the decision of the trial court dismissing plaintiffs’ action against defendant Searle and defendant Pacquing is reversed and the matter remanded for trial. We do not retain jurisdiction.

Neff, J., concurred.

1 A salpingostomy is an artificial opening made in the Fallopian tube in which the fimbriated extremity has been closed by inflammation.

2 We find this case distinguishable from Caldwell v AH Robins Co, 577 F Supp 796 (WD Pa, 1984), cited by our dissenting colleague. In Caldwell, the trial court found that the plaintiffs claim was barred by the statute of limitations because the plaintiff considered litigation arising out of her use of an iud as early as June, 1981. Unlike the situation in this case, the plaintiff in Caldwell was clearly aware of a causal connection between the iud and her injury more than two years before her complaint was filed in August, 1983. Id., pp 797-798.