MISTI J. BLESSING v. JOHNSON & JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3561-08T33561-08T3

MISTI J. BLESSING, an individual,

and DAVID R. BLESSING, an

individual,

Plaintiffs-Appellants,

v.

JOHNSON & JOHNSON, a corporation,

JOHNSON & JOHNSON HEALTH CARE SYSTEMS,

INC., a corporation, ETHICON, INC.,

a corporation,

Defendants-Respondents.

_____________________________________________

 

Argued January 19, 2010 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4891-07.

Jane S. Kelsey argued the cause for appellants (Lum, Drasco & Positan, L.L.C., attorneys; Ms. Kelsey, Dennis J. Drasco, and Kevin J. O'Connor, of counsel and on the brief; Stacie L. Vacca, on the brief).

Jodi Sydell Rosenzweig argued the cause for respondents (Drinker, Biddle & Reath, L.L.P., attorneys; Ms. Rosenzweig, and Jeffrey A. Peck, on the brief).

PER CURIAM

The trial court granted defendants' motion for summary judgment and dismissed this products liability action on the basis that it was filed after the statute of limitations had run. Plaintiffs appeal from that dismissal, contending that the trial court failed to apply the discovery rule, improperly rejected principles of equitable tolling, erred by not conducting a Lopez hearing, and mistakenly failed to hold the motion in abeyance until a federal court made a determination on a motion to certify a class action for similar litigation pending in federal court. We affirm.

I

We review the pertinent facts. On August 10, 2001, Misti J. Blessing (plaintiff) had a cesarean section in which Panacryl sutures were used. This was her third cesarean section. Six months later, on February 10, 2002, plaintiff noticed some blood coming from the incision and found that the incision had opened; she saw her doctor that day. Plaintiff testified at her deposition that her doctor "told me that the sutures caused an infection, and that the infection worked from the inside out and it bubbled out and it opened up my incision." She further testified that "[h]e told me that the sutures, that they're internal sutures and they were supposed to dissolve," although she did not recall that he told her the time frame in which they should have dissolved. The doctor told her that she would need surgery to remove the sutures. She also saw another doctor in the office who told her what would have to be done "about fixing" the incision.

On March 15, 2002, plaintiff underwent scar revision surgery and the Panacryl sutures were removed. After the surgery, according to plaintiff, the doctor "told me the sutures [were] why I had the infection, because they were still in my body." The doctor told her that "because the sutures [were] still in there . . . I needed to have the sutures removed."

Thus, at the time of the operation, in 2002, plaintiff was aware that the sutures had caused her infection and that they had caused her incision to open; she knew that the need for surgery was caused by the sutures. She also knew that the sutures were supposed to dissolve. The doctor's operative report sets forth as his post-operative diagnosis "[i]ncision separation secondary to probable chronic inflammatory reaction to Panacryl suture" and indicates that "intact Panacryl suture with intact knots" was found on the right side but not on the left and excised during the surgery.

Plaintiff did not file her complaint until May 31, 2007. In the complaint, she sued defendants Johnson & Johnson, Johnson & Johnson Health Care Systems, Inc., and Ethicon, Inc. (defendants) as the manufacturers and distributors of Panacryl sutures, which she maintained were defective. Her complaint sought compensatory and punitive damages for her personal injuries due to her problem with the sutures under various legal theories, including products liability claims. Her husband, David R. Blessing, asserted a per quod claim. In addition, the complaint sought class certification pursuant to Rule 4:32-1.

When asked what precipitated the filing of the lawsuit, plaintiff explained:

I had heard something on TV about someone else having a problem and I cannot specifically know which - when. It was sometime in 2006, because I remember getting on the internet and looking around and I remember putting my name on a website if anybody wanted to contact me. I was contacted by Mr. Toma.

She further indicated that the matter she saw on television involved someone who "had a problem with their c-section reopening from sutures, and I related to it and I decided to do some investigation online."

On March 3, 2009, the trial court granted defendants' motion for summary judgment on the basis that plaintiff's claim was barred by the statute of limitations. Plaintiff appeals, contending that under the discovery rule, the complaint was timely filed; that the trial court should have held a Lopez hearing; that defendants are equitably estopped from asserting the statute of limitations; and that the trial court should have held in abeyance its decision on defendants' summary judgment motion until the federal court decided the question of class certification in federal multi-district litigation involving claims that Panacryl sutures were defective.

II

Plaintiff's claim for personal injuries is governed by a two-year statute of limitations, which runs from the time that the cause of action has accrued. N.J.S.A. 2A:14-2. In a personal injury action, the claim generally accrues on the date of the injury. Tevis v. Tevis, 79 N.J. 422, 431 (1979) (stating a cause of action in tort usually accrues "at the time of the commission of the wrong and the suffering of injury"). Here, plaintiff sustained her injury in 2002, and the two-year statute of limitations ran in 2004. Plaintiff filed her complaint in 2007, long after the statute of limitations period had expired. However, she claims that she is entitled to relief under the discovery rule.

The discovery rule is an equitable rule designed to mitigate the harshness that sometimes results from a rigid application of a statute of limitations. Lopez v. Swyer, 62 N.J. 267, 273-74 (1973). Under the discovery rule, a cause of action does not accrue "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Id. at 272. In applying the discovery rule, the court considers the inequity of a blameless person losing a claim because he was unaware of an injury or did "not know that it [was] attributable to the fault or neglect of another" until after the statute of limitations had run. Id. at 274. The court then must consider whether it is "unjust, however, to compel a person to defend a law suit long after the alleged injury has occurred, when memories have faded, witnesses have died and evidence has been lost." Ibid.

After weighing these factors, the trial court must decide whether the claimant is equitably entitled to application of the discovery rule. Id. at 275-76. The burden is on the plaintiff to satisfy the court that the discovery rule should be applied. Id. at 276. In making this decision, the court shall consider "[a]ll relevant facts and circumstances." Id. at 275-76.

The determinative factors may include but need not be limited to: the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, [and] whether the delay may be said to have peculiarly or unusually prejudiced the defendant.

[Id. at 276.]

When determining whether to apply the discovery rule, the court looks at the "injured party's knowledge concerning the origin and existence of his injuries as related to the conduct of another person. Such knowledge involves two key elements, injury and fault." Lynch v. Rubacky, 85 N.J. 65, 70 (1981). The question thus is "whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001).

When determining whether the injured party had knowledge of fault, the law does not require that the person have a provable claim or even that the person be aware of facts to suggest that fault is "probable," rather all that is required is that the person be aware of facts which suggest the "possibility" of wrongdoing. Savage v. Old Bridge-Sayreville Med. Group, P.A., 134 N.J. 241, 248 (1993). "[K]nowledge of fault" for purposes of the discovery rule has a circumscribed meaning: it requires only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care." Ibid. (second emphasis added).

Here, plaintiff was aware that her injury was caused by the sutures and that the sutures were not performing as expected. This was sufficient to alert her to the possibility that the sutures were defective. Nothing that the doctors said to her suggested that her body was having an idiosyncratic reaction to the sutures or that this was a normal side effect or accepted risk of using sutures. Under these circumstances, a reasonable person of ordinary diligence would be in possession of enough information to realize that the injuries may have been due to the fault of another. Indeed, plaintiff says that her investigation into the sutures years later was triggered by learning on television that others had similar side effects. However, plaintiff does not say that the television program suggested the manufacturer was at fault. Rather, the program apparently reminded her of her injuries, and she chose at that time to go on the internet and further explore the matter.

We also reject plaintiff's contention that the trial court erred in declining to conduct a Lopez hearing. Where credibility is an issue in resolving application of the discovery rule, the trial court should conduct a Lopez hearing. Lopez v. Swyer, supra, 62 N.J. at 275. However, "[w]here credibility is not involved, affidavits, with or without depositions, may suffice." Ibid. In this case, a Lopez hearing was not necessary, because even accepting everything plaintiff said at her deposition as true, she is not entitled to the benefit of the discovery rule. She knew that the sutures did not perform as they should have, and that as a result, they caused the injuries.

Plaintiff also argues that defendant Ethicon was aware of complaints that had emerged regarding the Panacryl sutures from 2000 to 2002 but did not appropriately reveal to its sales force, the medical community, or regulators the problems with the sutures. Plaintiff contends that due to this conduct, defendants should be equitably estopped from invoking the statute of limitations. This argument relies on the case of Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159 (App. Div. 2007).

Equitable estoppel is a distinct and separate doctrine from the discovery rule. Id. at 167-68. Its requirements have been described as "exacting." Id. at 171. Under principles of equitable estoppel, "a defendant may be denied the benefit of a statute of limitations where, by its inequitable conduct, it has caused a plaintiff to withhold filing a complaint until after the statute has run." Ibid. It is typically applied where a plaintiff "has been induced or tricked by defendant into missing a deadline." Pressler, Current N.J. Court Rules, comment 36.4.1 on R. 4:5-4 (2010). For example, it may be invoked in a contract action where defendant's conduct was calculated to mislead plaintiff into believing that litigation was unnecessary. Trinity Church v. Atkin Olshin Lawson-Bell, supra, 394 N.J. Super. at 171. "[E]stoppel may arise if a defendant wrongfully conceals or withholds information which it has a duty to provide to the plaintiff, thus causing the plaintiff to miss a filing deadline." Ibid. None of these occurred here.

Further, a party may not invoke "equitable tolling if it has the information in sufficient time to comply with the limitations period." Id. at 171-72. As set forth in the discussion of the discovery rule, plaintiff was in possession after her surgery with information sufficient to alert her to the possibility that the product was defective. She did nothing. As defendants note, in 2003, within the statute of limitations period for plaintiff's claim, other products liability litigation was commenced against defendants for similar injuries allegedly caused by the Panacryl sutures.

We also reject plaintiff's argument that the trial court should have refrained from deciding defendants' motion for summary judgment until the federal court had decided whether to certify a national class action regarding similar claims involving Panacryl sutures. Plaintiff argues that if the trial court had delayed its decision, she could have voluntarily dismissed this case, opted into the federal class, and had the statute of limitations issues resolved in the federal litigation. However, after this motion was decided, the federal court declined to certify a national class action. In re Panacryl Sutures Products Liability Cases, No. 5:08-MD-1959-BO (E.D.N.C. Nov. 13, 2009). Consequently, plaintiff suffered no prejudice.

For all of these reasons, we affirm the trial court determination that plaintiff's claim is barred by the statute of limitations.

Affirmed.

 

Lopez v. Swyer, 62 N.J. 267 (1973).

(continued)

(continued)

11

A-3561-08T3

RECORD IMPOUNDED

March 5, 2010