Summary
holding that cause of action accrued before formal diagnosis of latex allergy when plaintiff had previously suspected that she might be allergic to latex
Summary of this case from Murphy v. Aero-Med, Ltd.Opinion
CIVIL ACTION NO. 96-CV-10683-PBS
August 12, 2003
MEMORANDUM AND ORDER
INTRODUCTION
Plaintiff Dr. Jacqueline Starer, a licensed physician, filed this action on February 8, 1996 against defendant Baxter Healthcare Corporation ("Baxter"), claiming she suffered permanent injury as a result of exposure to Baxter's natural rubber latex gloves. Baxter moves for summary judgment on the ground that the claims are time-barred because Dr. Starer knew, or should have known, the cause of her allergic reaction more than three years prior to filing suit. After hearing, Baxter's motion for summary judgment is ALLOWED.
The complaint asserts claims of negligence, breach of implied warranty of merchantability, and breach of implied warranty and fitness for a particular purpose.
STANDARD FOR SUMMARY JUDGMENT
"Summary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and 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.'" Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). "To succeed [in a motion for summary judgment], the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
"Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who `may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'" Barbour, 63 F.3d at 37 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). "There must be `sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.'" Rogers, 902 F.2d at 143 (quoting Anderson, 477 U.S. at 249-50) (citations and footnote in Anderson omitted). The Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Barbour, 63 F.3d at 36.
BACKGROUND
The record contains the following undisputed facts. Shortly after starting work as a physician at the Brigham and Women's Hospital in Boston in August 1983, Dr. Starer began experiencing allergic reactions after wearing latex gloves. These symptoms included itchy hands, eyes and throat as well as watery eyes and hives. On December 17, 1983, Dr. Starer also exhibited swelling and tearing in her right eye and sought emergency care. During this visit, Dr. Starer told the physician that she was unsure as to the source of the irritation, but that she suspected she might be allergic to rubber gloves. She said that these symptoms occurred in the past with exposure to gloves. She also believed that the cause of the symptoms was the gloves.
By 1984, Dr. Starer had daily reactions to latex gloves when she was at work, and was frequently complaining of her allergic symptoms with the rubber gloves. That same year, Dr. Starer underwent a routine pelvic exam by Dr. Tamulski, who she believed was wearing latex gloves. Within fifteen minutes of the exam, Dr. Starer experienced allergic symptoms including an asthmatic attack, shortness of breath and pelvic pain. Dr. Starer revealed that she was not curious about these symptoms because by that point, she was "always having reactions" to contact with rubber gloves, although this time the reaction was more serious. In 1984, she went to an allergist to ascertain why she had a reaction to the gloves. The allergist, Dr. Dirk Greineder told the plaintiff that her allergic reactions were a result of either the talcum powder or some other component in the latex gloves.
In 1985, Dr. Starer had a similar allergic reaction to a latex condom. She knew the condom was made of latex because her allergic response was similar to the experience that she had with the hospital gloves, also made of latex. In 1986, she returned again to a doctor because of an allergic reaction to latex gloves. Before giving birth to her son in 1988, Dr. Starer provided one of her doctors with non-latex gloves so that she could be examined with them, instead of the standard hospital gloves. From 1988 through 1991, Dr. Starer told doctors she had a contact allergy to latex gloves. Her medical records are replete with references to a latex allergy and warnings that exposure to latex can cause anaphylaxis.
On September 21, 1995 Dr. Starer was officially tested and diagnosed with a latex allergy by Dr. Aiden Long. She says she did not realize until then that she had an allergy to natural latex rubber itself, rather than something on the gloves or in the powder. She stopped using latex gloves after that diagnosis. The Brigham Women's Hospital removed all defendant's gloves by mid-1994.
Baxter's director of regulatory and consumer affairs knew that Baxter's gloves could cause harm by 1990 and believed that a warning should be used in 1991.
LEGAL ANALYSIS
1. Time-bar
Claims of negligence and breach of warranty must, under Massachusetts law, be commenced within three years after the cause of action accrues. Mass. Gen. L. ch. 260, § 2A; Mass. Gen. L. ch. 106, § 2-318.
Under the "discovery rule," the statute of limitations begins when a plaintiff has "(1) knowledge or sufficient notice that she was harmed and (2) knowledge or sufficient notice of what the cause of harm was." Bowen v. Eli Lilly Co., 408 Mass. 204, 208, 210-11, 557 N.E.2d 739, 742-43 (1990) (holding that the "prospect" of a significant causal connection between defendant's drug and plaintiff's cancer was brought to plaintiff's attention more than three years before action was commenced). The court uses the standard of a reasonable person "in the position of the plaintiff." Id. Therefore, a cause of action accrues when the plaintiff "knows or reasonably should know that [she] contracted [her] symptomology `as a result of conduct of the defendants.'" Doucette v. Handy Harmon, 35 Mass. App. Ct. 724, 725, 625 N.E.2d 571, 572 (1994) (citation omitted). See also Olsen v. Bell Telephone Laboratories, Inc., 388 Mass. 171, 175, 445 N.E.2d 609, 612 (1983) (holding claim accrued before permanency of plaintiff's asthmatic condition was known). "If knowledge of the extent of injury were to control the accrual of a cause of action, the fixed time period of statutes of limitations effectively would be destroyed." Id.
Notice of likely cause is usually enough to start the statute of limitations running. See Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir. 1983); Martinez v. Sherwin Williams Co., 50 Mass. App. Ct. 908, 908-09, 737 N.E.2d 927, 928 (2000) (holding plaintiff's personal belief as to causation was enough to start the statute of limitations running). Once on notice, the plaintiff "has the duty to discover from the legal, scientific and medical communities whether the theory of causation is supportable and whether it supports a legal claim." Fidler, 714 F.2d at 199. The statute of limitations begins to run "once the plaintiff has enough information to target the defendant as a suspect, though not necessarily to identify the defendant as the culprit." Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21, 29-30 (1st Cir. 1993).
Dr. Starer must present evidence that her cause of action did not accrue prior to February 8, 1993. Dr. Starer contends that her claims are not time-barred because they were filed within three years of the test by Dr. Long in 1995. However, the undisputed facts in the record demonstrate that Dr. Starer believed that the latex gloves were causing her allergic reaction long before February 8, 1993, and indeed as early as 1983 or 1984. She sought medical help for the allergic symptoms from the gloves, and repeatedly told treating physicians that she had a contact allergy to latex gloves.
As a fallback, plaintiff contends she had no knowledge that it was specifically the latex in the gloves that was causing her reaction until she was diagnosed by Dr. Long in 1995. However, Massachusetts courts have ruled that a plaintiff need not know the specific injurious ingredient that caused an injury, in order for the statute of limitations to accrue. See Doucette, 35 Mass. App. Ct. at 725, 625 N.E.2d at 572 (holding that statute of limitations ran before plaintiff knew the specific component in emitted fumes that was making her sick, because once plaintiff knew her symptoms were a result of the vapors, she had a duty to investigate the precise ingredient causing her harm); Gray v. Johnson Johnson Med., No. 98-5484, 2001 WL 1319542, *5 (Mass.Super. Oct. 23, 2001) (holding plaintiff, who thought powdered latex gloves were connected to her allergic reactions, had requisite knowledge to start the statute of limitations running even though she did not know it was specifically the latex in the glove causing her symptoms).
Dr. Starer argues that since managers at Baxter claim they did not know that latex could be harmful until 1990, Dr. Starer should not be required to have greater knowledge of the hazards of a product than the manufacturer. See Stoleson v. United States, 629 F.2d 1265, 1270-271 (7th Cir. 1980) (holding plaintiff's claim was "unknowable" until she was informed of causal connection between her exposure to nitroglycerin and her heart condition, which was previously not acknowledged by medical community). It is true that Dr. Starer's subjective belief may not be sufficient to start the running of the statute of limitations if, despite her diligent investigation, she could find no recognition in the medical community of the causal connection. Yet the medical community was aware of the existence of latex sensitivity as early as 1988, when "latex allergy" was written in large letters across Dr. Starer's medical records before she underwent surgery. The references attached to Dr. M. Eric Gershwin's expert letter submitted by plaintiff cites articles on point published in 1989, 1991, and 1992 (although most came later in the decade). Judge Alsop's opinion in Kennedy v. Baxter Healthcare Corporation, states "the incidence and dangers of latex allergy became a significant concern in the scientific community around 1980." Civil No. 97-1773, 3 (D. Minn. April 26, 2002). Thus, even if published knowledge of the medical community were used as the trigger date for the running of the statute of limitations, the claim is barred. See United States v. Kubrick, 444 U.S. 111, 122-23 (1979) (holding plaintiff's claim against veterans hospital was knowable because a doctor could have told him that he had a cause of action, if he had inquired); Gore v. Daniel O'Connell's Sons, Inc., 17 Mass. App. Ct. 645, 648-49, 461 N.E.2d 256, 259-60 (1984) (holding plaintiff's claim against husband's employer was not "inherently unknowable" even if it was unknown to her, because doctors had identified her husband's injury). There is no evidence that the cause of Dr. Starer's allergic reactions was unknowable until after February 8, 1993.
2. Continuing Tort
Alternately, Dr. Starer contends that regardless of her knowledge, her claims are not time-barred under a "continuing tort" theory. Cf. Doe v. Town of Blanford, 402 Mass. 831, 839, 525 N.E.2d 403, 409 (1988) (stating that where negligent supervision was a continuing event, the time in which to present a tort claim is tolled until the event ceases). She asserts that she was continuously harmed by the defendant's latex allergens until the Brigham Women's Hospital stopped using the defendant's gloves in 1994, well within the three year statute of limitations. Plaintiff attempts to use the expert opinion of Dr. M. Eric Gershwin, a highly qualified, board-certified specialist in allergy, immunology, and internal medicine, to show that her exposure to Baxter's latex gloves was a "continuing tort." Dr. Gershwin asserts that Type I latex allergy is a dose response disease: "Once a person is sensitized, each and every exposure to natural rubber latex gloves contributes to risk of allergic reactions." Dr. Gershwin opined that health care workers must leave their work environment to avoid further risk to their health.
However, Massachusetts courts have been hesitant to expand the concept of continuing torts to settings other than nuisance and trespass actions. White's Farm Dairy, Inc. v. DeLaval Separator Co., 433 F.2d 63, 67 (1st Cir. 1970); John Beaudette v. Sentry Ins. A Mut. Co., 94 F. Supp.2d 77, 107 (D.Mass. 1999); Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 363-64 (D.Mass. 1985), aff'd, 814 F.2d 775 (1st Cir. 1987) (declining to apply continuing tort theory in defamation action because of Massachusetts reluctance to extend theory); see also Church v. Gen. Elec. Co., 138 F. Supp.2d 169, 175-76 (D.Mass. 2001) (holding continuing tort doctrine applied to nuisance and trespass claims). This hesitation "is based upon a strong judicial preference to adhere to the purposes and policies of the statute of limitations." Flotech, 627 F. Supp. at 363.
Furthermore, even if the Court were to extend the "continuing tort" theory to negligence and breach of warranty cases, the court's decision in the Multi-District Litigation has already barred Dr. Gershwin from giving the opinion that "each and every" exposure to latex increases the likelihood for latex sensitivity on Daubert grounds. In Re: Latex Gloves Products Liability Litigation, CIV-1148, 2002 WL 992037, *1 (E.D.Pa. May 10, 2002). The Court held four days of evidentiary hearings at which Dr. Gershwin testified. Because the Court was not given the record and no reasons were given for the decision to grant the motion in limine, the Court has an inadequate basis for determining whether it agrees with the opinion. Moreover, the Court stated, "However, the witness is not precluded from testifying to the foundations and reasons given for this opinion." Id. It is unclear from the sparse record what this means.
In a similar products liability action against Baxter, the United States District Court of Minnesota has also ruled that Dr. Gershwin would not be permitted to testify regarding a "causal connection between a specific level of exposure to latex and the development or severity of latex sensitivity or latex allergy." Kennedy v. Baxter Healthcare Corp., Civil No. 97-1773, 4 (D. Minn. April 26, 2002).
Although this Court is not bound by a ruling in the Multi-District Litigation, it should not vacate or modify that ruling lightly. See Manual for Complex Litigation (West 3rd Ed. 1995) at 255 ("Although the transferor court has the power to vacate or modify rulings made by the transferee court, subject to comity and `law of the case' considerations, doing so in the absence of a significant change of circumstances would frustrate the purposes of centralized pretrial proceedings."). If transferor judges "upset rulings of transferee judges, the result would be an undermining of the purpose and usefulness of transfer under Section 1407 for coordinated or consolidated pretrial proceedings. . . ." Stanley A. Weigel, The Judicial Panel on Multi-District Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 577 (1978). See also, In re Multi-piece Rim Products Liability Litigation, 653 F.2d 671, 678, 209 U.S.App.D.C. 416, 423 (1981) (stating "[p]roper coordination of complex litigation may be frustrated if other courts do not follow the lead of the transferee court"); 15 Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 3866 (Juris.2d 2003) (practice of transferor court deferring to transferee court's ruling on pretrial motions "has avoided any possible struggle or conflict" between the two courts).
Plaintiff has presented only an unsworn letter by the expert. There is no admissible evidence in the record that would suggest that the MDL or Minnesota decision is unfounded. Significantly, there is no evidence that Dr. Gershwin reviewed the facts of Dr. Starer's case and concluded that repeated exposure worsened her allergic reaction. Accordingly, the expert opinion is not admissible to support a continuing tort theory.
ORDER
For the foregoing reasons, defendant's motion for summary judgment (Docket No. 54) is ALLOWED.