Prod.liab.rep.(cch)p 12,449martha Kay, Plaintiff, Appellant, v. Johnson & Johnson and Ortho Pharmaceutical Corporation,defendants, Appellees, 902 F.2d 1 (1st Cir. 1990)

This is an appeal from an order of summary judgment entered by the United States District Court for the District of Massachusetts in a prescription drug products liability action. The plaintiff, Martha Kay, claims that she suffers from hyperpigmentation, a severe pigmentary disorder, as a result of her use, during the period 1966-68, of Ortho Novum, an oral contraceptive manufactured by Ortho Pharmaceutical Corporation ("Ortho"). Plaintiff asserts claims sounding in negligence and breach of warranty against Ortho and Johnson & Johnson, Ortho's parent corporation. Suit was originally brought in Massachusetts Superior Court and was removed to the United States District Court on the basis of diversity of citizenship. Plaintiff's claims and the statute of limitations questions at issue in this case are governed by the substantive law of Massachusetts.

After extensive discovery on the statute of limitations issues, Ortho and Johnson & Johnson moved for summary judgment on the grounds that plaintiff's claims are barred by the three-year limitations provisions of G.L. c. 260, Sec. 2A (the statute of limitations governing negligence claims) and G.L. c. 106, Sec. 2-318 (the statute of limitations governing claims for breach of warranty). After briefing and the hearing of oral argument, the district court allowed defendants' motion for summary judgment; and the judgment was entered in accordance with the court's order.

We do not repeat the material facts as we are satisfied that they are adequately set forth in the comprehensive opinion of the district court, 722 F. Supp. 874 (D. Mass. 1989). Plaintiff has argued on appeal that the district court erred in its application of the Massachusetts discovery rule to her claims and was incorrect in its conclusion that these claims were barred by the statute of limitations. We find plaintiff's arguments to be without merit. We conclude, for substantially the same reasons as those given in the district court's opinion, that this action is time-barred under Massachusetts law. A different holding would result in a rule which sanctioned delay in proportion to the lack of medical support for a claim. While, as the district court noted, there may be reason to apply a "medical breakthrough" theory in some cases, this is not such a case. Dr. Balsam's June 1982 opinion supporting plaintiff's theory did not rest upon newly developed scientific knowledge; for all that appears, it could have been rendered much earlier. We note, moreover, that if April 21, 1981, were taken as the triggering date (as the district court suggests could possibly be appropriate), plaintiff had ample time to have filed suit after securing Dr. Balsam's opinion favorable to her claim.

Affirmed.