Summary
In Reis v. Pfizer, 61 A.D.2d 777, 402 N.Y.S.2d 401 (1st Dep't 1978), aff'd., 48 N.Y.2d 664, 421 N.Y.S.2d 879, 397 N.E.2d 390 (1979) the Court rejected an extension of the statute of limitations where plaintiff became aware of the cause of his injuries by reading a magazine article connecting vaccine with the disease he contracted six years after his injury. The Court held that foreign object cases are to be read narrowly to include the kind of malpractice found in Flanagan and are not to be used in warranty or strict products liability cases.
Summary of this case from Rockwell v. Ortho Pharmaceutical Co.Opinion
February 27, 1978
Order, Supreme Court, New York County, entered October 25, 1976, denying defendant's motion for summary judgment, is unanimously reversed, on the law, without costs and without disbursements, and the motion granted and the complaint dismissed. Plaintiff's three-month-old son was given defendant's oral polio vaccine in October, 1966 and January, 1967. In February, 1967 plaintiff developed poliomyelitis and was hospitalized until December, 1967, and the illness culminated in permanent crippling. Plaintiff alleges that the Federal Communicable Disease Center found his illness to be vaccine-induced contact poliomyelitis, and though he is not named, the case described in their annual survey for 1967 may well be his case. At issue is whether Special Term properly used the date plaintiff claims he could have discovered that his malady might have been caused by defendant's oral polio vaccine instead of the date when the illness manifested itself, in calculating the time when the Statute of Limitations began to run. This is not a medical malpractice claim to which the tolling doctrine of Flanagan v Mt. Eden Gen. Hosp. ( 24 N.Y.2d 427) and its progeny — the foreign object doctrine — could apply. At best, plaintiff had a claim for strict products liability which accrued at the time of injury in 1967 (see Martin v Julius Dierck Equip. Co., 43 N.Y.2d 583) or breach of warranty which accrued at the time of sale of the "defective" vaccine (Uniform Commercial Code, § 2-725, subd [2]). In either event, the period of limitations has long since expired — three years for strict products liability under CPLR 214 (subd 5) (see Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, 399-400) or four years for breach of warranty under subdivision (1) of section 2-725 of the Uniform Commercial Code (see Victorson, supra, p 403).
Concur — Birns, J.P., Evans, Lane and Markewich, JJ.