Britt v. Arvanitis

590 F.2d 57, 26 Fed. R. Serv. 2d 479
Court of Appeals for the Third Circuit·Decided November 24, 1978·No. No. 78-1302·Published·Cited by 33 cases

Opinion

OPINION

HANNUM, District Judge.

(I) INTRODUCTION

This is an appeal from the Order of the United States District Court for the District of New Jersey dismissing appellants’ suit for products liability as barred by the New Jersey Statute of Limitations which provides:

N.J.S.A. 2A:14-2. 2 Years; actions for injuries to persons by wrongful act.
Every action at law for an injury to the person caused by wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

The case began as an action for medical malpractice and products liability. With the dismissal of certain defendants, however, it has become solely a products liability suit against appellee, Ethicon, Inc., which manufactured certain wire surgical sutures that were implanted in appellant Thomas Britt during an operation in March of 1970. Federal jurisdiction is based on diversity of citizenship.

(II) FACTS

On March 20, 1970, appellant underwent a gastrectomy for correction of a chronic duodenal ulcer. Initial recovery appeared to be normal, but in 1972 he began to experience sharp pain in the upper abdomen near the locus of the gastrectomy. These episodes became more frequent and intense and on October 17, 1974, appellant had exploratory surgery in an attempt to determine the source of his continuing discomfort. As a result of this second operation, it was discovered, in January 1975,1 that some of the sutures used in the 1970 operation were defective. The complaint was filed in the District Court on October 1, 1975, naming as defendants the doctor who performed the gastrectomy, the hospital in which it occurred, the administrator of the hospital, and, because Ethicon, Inc.’s identity was at that time unknown, “John Doe” as manufacturer of the wire sutures. Discovery elicited the name of Ethicon, Inc. as the manufacturer of the sutures, which information was given to plaintiff November 9, 1976. Thereafter, by notice of motion dated November 18, 1976, plaintiff sought leave to amend the complaint and name Ethicon, Inc. in place of the “John Doe” originally denominated. A consent order [59] allowing the amendment was filed January 24, 1977 and the amended complaint was filed February 28, 1977 with service on Ethicon, Inc. effected on March 2, 1977. Ethicon, Inc. raised the Statute of Limitations defense by moving to vacate the District Court’s Order allowing the amendment and the Court below granted summary judgment for appellee.2

In so ruling, the District Court held first, that appellants’ cause of action accrued, for Statute of Limitations purposes, in January, 1975 when it was first ascertained that the sutures were defective; and second, since the amended complaint was filed more, than two years after the accrual date, the action was barred by the two year Statute of Limitations. Finally, the District Court held that the amendment did not relate back to the date the original complaint was filed (concededly within the two year period) because the amendment replacing John Doe with Ethicon, Inc. effectively introduced a new party to the action and the notice provisions of Fed.R.Civ.P. 15(c) which allow relation back of an amendment in such circumstances were not met.3

(Ill) ISSUES

Appellants raise two contentions on this appeal. First, they argue that the cause of action did not accrue until appellants knew the actual identity of the potential defendant. Thus, in the present case, since the identity of Ethicon, Inc. was not discovered until November 9, 1976, the filing of the amended complaint in February, 1977 would have been well within the two year period of the Statute of Limitations.

Second, appellants assert that even if the cause of action accrued in January, 1975 when the defect was discovered, the rule enunciated in Farrell v. Votator Division of Chemtron Corporation, 62 N.J. 111, 299 A.2d 394 (1973), is part of the substantive Statute of Limitations law of New Jersey which must be applied by a federal court sitting in that state in a diversity action.4

(IV) ANALYSIS

(A) Accrual Of The Action

The issue of when a cause of action accrues for Statute of Limitations purposes is a matter of substantive law of the state concerned which must be applied by a federal court in a diversity action. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Bolender v. Farm Bureau Mutual Insurance Company, 474 F.2d 1360 (3d Cir. 1973). It is necessary to canvass New Jersey law.

As this Court noted with respect to Pennsylvania law under similar circumstances in Bolender, supra: New Jersey “ . law is replete with simplistic statements concerning the times causes of action accrue.” Appellants cite numerous New Jersey cases for the proposition that discovery of the true identity of the potential defendant dates the accrual of the cause of action. See, Fox v. Passaic General Hospital, 71 N.J. 122, 363 A.2d 341 (1976); Moran v. Napolitano, 71 N.J. 133, 363 A.2d 346 (1976); [60] Farrell v. Votator Division of Chemtron Corporation, supra; Federal Insurance Company v. Hausler, 108 N.J.Super. 421, 261 A.2d 671 (1970). While these cases are instructive on the discovery aspect, they shed little illumination on what New Jersey law considers the true identity of the defendant. The only New Jersey authority that directly addresses the precise issue presented here is Lawrence v. Bauer Publishing and Printing, Ltd., 143 N.J.Super. 387, 363 A.2d 357 (1976), which holds that:

Our fictitious name practice requires that when a claimant is in a position to describe a defendant in terms of what he did or failed to do which gave rise to the claim, an action against that defendant must be commenced within the limitations period even though the claimant does not then know defendant’s name. 143 N.J.Super. 391, 363 A.2d 359.

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Britt v. Arvanitis, 590 F.2d 57, 26 Fed. R. Serv. 2d 479 (3d Cir. 1978).

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