DAWN R. GALEENER v. BAXTER HEALTHCARE CORPORATION
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RENDERED: JULY 5, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS.
AND
2001-CA-000388-MR
2001-CA-000976-MR
DAWN R. GALEENER
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 92-CI-00484
v.
BAXTER HEALTHCARE CORPORATION
APPELLEE
OPINION
REVERSING AND REMANDING IN 2001-CA-000388-MR,
VACATING IN 2001-CA-000976-MR
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; DYCHE AND MILLER, JUDGES.
DYCHE, JUDGE:
In this products liability/personal injury case,
Dawn Galeener appeals a summary judgment of the McCracken Circuit
Court dismissing her complaint as barred by the one-year statute
of limitation under KRS 413.040.
Galeener had a breast augmentation on February 2, 1983,
when she was nineteen years of age.
Her surgeon, Dr. William G.
Wheeler, II, implanted Heyer-Shulte silicone breast prostheses
into Galeener’s left and right breasts at Western Baptist
Hospital in Paducah, Kentucky.
Approximately six to seven months after the
augmentation, Galeener returned to Dr. Wheeler with complaints of
pain and hardness in her left breast.
Between 1983 and late 1986
Galeener had four capsulotomies1 performed on her left breast by
Dr. Wheeler.
In 1986 Galeener developed enlarged lymph nodes in her
left axilla, pain in her left breast, and a mass on her left side
which prompted Dr. Wheeler to perform a left excisional biopsy on
February 25, 1987.
While performing the biopsy Dr. Wheeler
discovered that the left implant had ruptured; he therefore
removed and replaced the Heyer-Shulte implant with a Dow Corning
implant.
Galeener was assured by Dr. Wheeler that the rupture
was a freak accident and she should not be concerned further.
On April 20, 1987, Dr. Wheeler wrote Heyer-Schulte
Corporation on behalf of Galeener, inquiring whether the
corporation would reimburse her for the new left implant.
Dr.
Wheeler added a note at the end of his letter calling attention
to the fact that gel leaks were becoming more common in the
Heyer-Shulte prosthesis.
There is no evidence that Heyer-Schulte
responded to Dr. Wheeler’s letter.
A second biopsy was performed on the left breast when
another mass was discovered on November 9, 1987.
Dr. Wheeler
assured Galeener that the migrating silicone in her body was not
1
A capsulotomy is performed by squeezing the breast with
the hands to soften and stretch out the capsule or tissue that
has formed around the implant.
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a cause for concern beyond the necessity of removing a lump or
enlarged lymph node.
Between 1988 and 1989 Galeener had two more
capsulotomies performed on her left side.
Dr. Wheeler testified
in his deposition that in 1987 he did not suspect problems with
the remaining right implant.
On February 6, 1990, during an office visit Dr. Wheeler
found a fair amount of adenopathy2 in the left axilla;
generalized adenopathy in the right axilla, groins, and in both
cervical areas; and one enlarged lymph node in the left cervical
area in Galeener.
According to Dr. Wheeler’s testimony, he did
not relate the generalized adenopathy to the implants.
One month
later, on April 5, Galeener was prescribed a course of
antibiotics after Dr. Wheeler’s partner noted a palpable node on
the left side of her neck.
On May 27, 1991, Galeener met with Dr. Wheeler, who
again assured her that her symptoms did not indicate that
“anything major or dangerous [was] going on.”
Dr. Wheeler
believed that the remaining silicone from the ruptured left
implant had “finally accumulated” and that there was
“encapsulation bilaterally.”
As a result of the meeting it was
decided that both the left and right implant be removed and
replaced.
Since Dr. Wheeler did not believe the right implant
had ruptured, he did not discuss the possibility of such with
Galeener at any time before June 5, 1991.
2
Adenopathy is the enlargement of the glands,
predominantly occurring in the lymphatic glands.
-3-
On June 5, 1991, both the right and left implants were
removed and replaced; it was at this time that the rupture of the
right implant was discovered.
Galeener filed her complaint on June 5, 1992, against
Baxter Healthcare Corporation who, through merger, had become
responsible for Heyer-Shulte’s liabilities.
On July 16, 1993,
Galeener saw Dr. Khouri who found that her breasts were tender
and that she had multiple hard, large, and palpable axillary
lymph nodes bilaterally.
After Galeener’s systemic symptoms had
not improved, Dr. Khouri removed the right implant and performed
reconstructive surgery on the right breast on November 29, 1994,
and again on April 4, 1995, for the left breast.
Galeener joined the class action MDL 926 Silicone Gel
Breast Implants Products Liability Litigation shortly after she
filed her complaint.
On April 1, 1994, the presiding judge over
the class action, Judge Pointer, ordered a tolling of the statute
of limitations for the plaintiffs involved in the class action.
The tolling began on January 24, 1992, and was ordered to
continue for each plaintiff until that plaintiff chose to opt
out.
Galeener chose to opt out on June 15, 1994.
Appellee, Baxter Healthcare Corporation, filed a motion
for summary judgment on January 8, 2001, arguing that Galeener’s
action was barred by the one-year statute of limitations.
Baxter
contended that the statute of limitations began to run on
February 25, 1987, when the rupture of the left implant was
discovered because the implants were to be considered as a set,
and therefore the action had to be filed no later than February
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25, 1988.
Galeener responded to the motion arguing that the
statute of limitations began to run when the rupture of the right
breast was discovered on June 5, 1991.
Following a hearing,
Baxter’s motion was granted on February 1, 2001, by the McCracken
Circuit Court.
On April 18, 2001, the trial court granted
Baxter’s amended Bill of Costs in the amount of $7,716.21.
We have considered appellee’s argument that breast
implants are to be considered as a set; under the facts of the
present action, where each implant had a different lot number and
were of different sizes, breast implants are not a set. Galeener
had no reason to believe or even suspect problems with her right
breast since she had no adverse symptoms with the right implant
and her physician continually assured her that she had nothing to
be concerned about.
The discovery rule contained in KRS 413.140(2) states
that a cause of action shall be deemed to accrue when the injury
is discovered, or should have been discovered, using reasonable
care.
This rule originated with underground trespass actions in
Falls Branch Coal Co. v. Proctor Coal Co., 203 Ky. 307, 262 S.W.
300 (1924); was applied to medical malpractice in Tomlinson v.
Siehl, Ky., 459 S.W.2d 166 (1970); and has been extended to
products liability by Louisville Trust Co. v. Johns-Manville
Products Corp., Ky., 580 S.W.2d 497 (1979).
In Louisville Trust the Supreme Court of Kentucky
extended the discovery rule “to tort actions for injury from
latent disease caused by exposure to a harmful substance whether
-5-
the action be based on negligence or on a products liability
theory.”
Id. at 501.
The court also held that the cause of
action will accrue when the plaintiff discovers, or should have
discovered using reasonable diligence, that he has been injured
and that his injury may have been caused by the defendant’s
conduct.
Galeener discovered that she was injured by Baxter’s
conduct in 1987 when she learned that the left implant had
ruptured.
According to the discovery rule, as applied to
products liability actions, her cause of action for the left
implant rupture and all harm to that point accrued on February
25, 1987, and expired one-year later on February 25, 1988.
Galeener again discovered that she was injured by
Baxter’s conduct on June 5, 1991, when she learned that the right
implant had ruptured.
She filed her complaint, on June 5, 1992,
within the one-year statute of limitations and her cause of
action for the right breast is therefore not barred.
Galeener experienced systemic symptoms between her left
implant removal and her right implant removal.
when the right implant ruptured.
It is unknown
Therefore it is unknown whether
Galeener’s remaining symptoms were from the silicone that had
leaked from the left implant or from new leaks in the right
implant.
We accordingly reverse and remand to the trial court
for further proceedings consistent with this opinion.
Having
ruled thus, we vacate the order granting appellee’s Bill of
Costs, in order No. 2001-CA-000976-MR.
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EMBERTON, CHIEF JUDGE, CONCURS.
MILLER, JUDGE, DISSENTS.
MILLER, JUDGE, DISSENTING.
barred by limitations.
I am of the opinion this action is
I would affirm the decision of the
Circuit Court.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Len W. Ogden, Jr.
Paducah, Kentucky
John L. Tate
Stites & Harbison
Louisville, Kentucky
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