Bonney v. the Upjohn Company

342 N.W.2d 551, 129 Mich. App. 18
CourtMichigan Court of Appeals
DecidedSeptember 26, 1983
DocketDocket 60821
StatusPublished
Cited by42 cases

This text of 342 N.W.2d 551 (Bonney v. the Upjohn Company) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonney v. the Upjohn Company, 342 N.W.2d 551, 129 Mich. App. 18 (Mich. Ct. App. 1983).

Opinions

R. M. Maher, J.

Plaintiffs appeal from a circuit court order granting defendant’s motion for accelerated judgment, GCR 1963, 116.1(5).

According to the complaint, in July, 1971, plaintiff Wallace Bonney was afflicted with a condition of bone deterioration associated with certain dental treatments. To alleviate the condition, he was advised to take a drug called Lincocin manufactured by defendant. After taking considerable quantities of Lincocin, Mr. Bonney developed a variety of psychological and physical disorders which were eventually "crippling and disabling to his person”. Mr. Bonney underwent a series of medical examinations to uncover the cause of his malady. Plaintiffs allege, however, that it was not until June 20, 1974, that they discovered the possibility that Lincocin was the source of Mr. Bonney’s physical and psychological troubles. In January, 1975, plaintiffs read an article in a local newspaper stating that the federal Food and Drug Administration was concerned about the side effects of Lincocin. Plaintiffs recognized these side effects as the same disorders Mr. Bonney had experienced.

On February 25, 1975, Mr. Bonney and his wife initiated a lawsuit against defendant in federal district court. Subsequently, the defendant moved for summary judgment, arguing that plaintiffs had not complied with the statute of limitations. The [21]*21court denied the motion. See Bonney v Upjohn Co, 487 F Supp 486 (WD Mich, 1980). Apparently, the court later vacated its order on the ground that it lacked subject matter jurisdiction over the case.

Plaintiffs then brought their case in circuit court on April 15, 1980, alleging that the defendant negligently manufactured Lincocin and failed to warn potential users of its harmful side effects. The defendant then moved for accelerated judgment, arguing again that the plaintiffs had not complied with the statute of limitations. On October 2, 1981, the trial court granted the defendant’s motion.

On appeal, plaintiffs argue that the trial court erred in ruling that they failed to commence their products liability action before the running of the period of limitations.

The applicable period of limitations is three years.1 The statute of limitations was tolled when [22]*22the plaintiffs filed their complaint in federal court. See Ralph Shrader, Inc v Ecclestone Chemical Co, Inc, 22 Mich App 213; 177 NW2d 241 (1970), app dis 385 Mich 789 (1971). We must decide, therefore, where the statutory period began to run.

The limitations period runs from the time the claim accrues. MCL 600.5827; MSA 27A.5827. Plaintiffs argue that their claim accrued when they discovered, or through the exercise of reasonable diligence should have discovered, the possibility that they had a cause of action. In other words, they urge us to apply their version of the "discovery rule” to a products liability action against a drug manufacturer. Defendant argues, however, that the plaintiffs’ claim accrued when all the elements of their cause of action were in place whether or not the plaintiffs knew or should have known that they may have had a claim.

The trial court adopted the view of the defendant and ruled that the plaintiffs’ claim accrued more than three years before they commenced their lawsuit in federal court. We believe, however, that the plaintiffs’ position is correct and reverse.

Under Michigan’s general accrual statute, MCL 600.5827; MSA 27A.5827, a "claim accrues at the time the wrong upon which the claim is based was [23]*23done regardless of the time when damage results”. Michigan courts have expanded this provision to include the discovery rule as the method of defining when particular claims accrue. We must first ascertain the exact nature of the discovery rule as it has been formulated in Michigan. In some jurisdictions, the rule is that the claim accrues when the plaintiff discovers or should have discovered the injury. Harig v Johns-Manville Products Corp, 284 Md 70; 394 A2d 299 (1978); Karjala v JohnsManville Products Corp, 523 F2d 155 (CA 8, 1975) (applying the law of Minnesota). Other jurisdictions define accrual as when the plaintiff knew or should have known that he was injured and that the defendant’s product caused the injury. Burd v New Jersey Telephone Co, 76 NJ 284; 386 A2d 1310 (1978); Raymond v Eli Lilly & Co, 117 NJ 164; 371 A2d 170 (1977); Roman v A H Robins Co, Inc, 518 F2d 970 (CA 5, 1975) (applying the law of Texas). Finally, it has been held that the claim accrues when the plaintiff knows or should have known that he has a possible cause of action. See Grigsby v Sterling Drug, Inc, 428 F Supp 242 (DC, 1975), aff'd 177 US App DC 270; 543 F2d 417 (1976).

The formulation advanced by Michigan appellate courts falls into this last category. In Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963), the Supreme Court adopted the discovery rule for malpractice claims. As formulated by the Court the period of limitations does not begin to run until the plaintiff discovers or should have discovered "the wrongful act”. 371 Mich 379. In Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973), the Court said that a malpractice suit may be brought within two years after "the asserted malpractice” is discovered or should have been discov[24]*24ered. The Court next extended the discovery rule to a cause of action for negligent misrepresentation by a title abstractor. Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974). This cause of action accrues, the Court said, when the plaintiff knows or should know of "the negligent misrepresentation”. 391 Mich 25. Finally, the Court has extended the rule to a products liability case involving property damage. Southgate Community School Dist v West Side Construction Co, 399 Mich 72; 247 NW2d 884 (1976). The Court held that the claim accrues when the plaintiff discovers or should have discovered "the manufacturer’s breach of warranty”. 399 Mich 82 (footnote omitted).

These cases indicate that Michigan’s discovery rule focuses on the plaintiffs awareness of the cause of action. By the time he discovers the "wrongful act”, "malpractice”, "negligent misrepresentation” or "breach of warranty”, the plaintiff will have uncovered evidence as to each element of his cause of action. See Williams v Polgar, supra, p 25; Bluemlein v Szepanski, 101 Mich App 184, 190; 300 NW2d 493 (1980), lv den 411 Mich 995 (1981) (finding that Southgate Community School Dist v West Side Construction Co, supra, held that "[a] cause of action accrues in a case involving property damage at the time the plaintiff either discovers or reasonably should have discovered his cause of action”). We conclude that the discovery rule, as traditionally formulated by Michigan courts, is as follows: A plaintiffs cause of action accrues when he discovers or, through the exercise of reasonable diligence, should have discovered that he has a possible cause of action.

We have been unable to find any Michigan case deciding whether or not this discovery rule should [25]*25be applied to a products liability case against a drug manufacturer. Defendant argues, however, that this Court has refused to apply the discovery rule to other products liability cases involving personal injury. We do not agree with defendant’s interpretation of these cases. In Sedlak v Ford Motor Co,

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Bluebook (online)
342 N.W.2d 551, 129 Mich. App. 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonney-v-the-upjohn-company-michctapp-1983.