Kemp v. G D Searle & Co

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 2, 1997
• Docket: 95-60643
• Status: Published

Opinion

REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60643 _____________________

CAROL STEWART KEMP,

Plaintiff-Appellant,

v.

G D SEARLE & CO,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi _________________________________________________________________ January 6, 1997

Before KING, JONES, and DUHÉ, Circuit Judges.

KING, Circuit Judge:

Carol Stewart Kemp brought this products liability action based on an allegedly defective intrauterine device. Both sides

filed motions for summary judgment based on the statute of

limitations. The trial court granted the motion of the

defendant, G.D. Searle & Co., and denied Kemp’s motion. Kemp

timely appealed. We affirm.

I. BACKGROUND

In the light most favorable to Kemp, as we must review a

summary judgment, the facts are as follows. In 1977, Kemp was

prescribed a Copper 7 (“Cu-7") intrauterine device (“IUD”), manufactured by G.D. Searle & Co. (“Searle”), for birth control.

In a routine procedure, this first IUD was removed and a second

one inserted by Dr. Susan Hakel in July of 1980. In August of

1984, after Kemp went to an emergency room complaining of

abdominal cramps, she was diagnosed with pelvic inflammatory

disease (“PID”). Later that month, Dr. Hakel removed the IUD and

prescribed oral contraceptives for Kemp. It is unclear whether

Hakel indicated to Kemp at that time that the PID had been caused

by the IUD.

In December of 1985, Kemp went to Hakel for an annual

checkup. Kemp asked Hakel about the possibility of tubal

scarring from her PID incident; in her records regarding this

visit, Dr. Hakel made this notation: “had PID with Copper 7,

wonders re tubal scarring.” The details of the conversation that

followed are unclear, but Kemp was told at least of the

connection between the IUD and her PID and that PID can lead to

tubal scarring which, if severe enough, can result in

infertility. There are two procedures to diagnose infertility

from tubal scarring: an hysterosalpingogram and a laparoscopy.

Dr. Hakel described these procedures as “invasive, painful, [and]

expensive” and recommended that Kemp not undergo these procedures

until she had attempted conception for at least twelve to

eighteen months. According to Kemp, Dr. Hakel told her that “no

doctor would perform such [an] invasive operative procedure[]

until I first attempted unsuccessfully to conceive for eighteen

months.”

2 Within a few months of her conversation with Dr. Hakel, Kemp

married Sam Abazari, but for personal reasons they never

attempted conception. Kemp and Abazari divorced in October of

1989. In January of 1993, Kemp decided to begin attempting

conception with Charles Kemp, whom she later married. In April

of 1993, Kemp received treatments for pelvic pain that was

unrelated to her previous PID. During the course of treatment,

Kemp underwent a laparoscopy, which revealed that her fallopian

tubes were severely scarred. Kemp was told that the scarring was

so severe that she would be unable to conceive naturally. This

was the first time that Kemp knew of her infertility. Despite

the diagnosis that natural conception was impossible, Kemp and

her husband attempted, unsuccessfully, to conceive.

On November 24, 1993, Kemp filed suit in Mississippi state

court. Searle removed the suit to federal district court based

on diversity of citizenship. Kemp moved for partial summary

judgment on Searle’s affirmative defense of statute of

limitations. Searle made a counter-motion for summary judgment,

asserting that Kemp’s action was barred by Mississippi’s statute

of limitations.1 The district court granted Searle’s motion,

concluding the statute of limitations on Kemp’s cause of action

began running at the latest in December of 1985 because of Kemp’s

1 The parties agree that the limitations period governing this suit is six years. However, the statute has subsequently been amended to allow only three years. See MISS. CODE ANN. § 15- 1-49 (1995); Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 705 (Miss. 1990).

3 discussion with Dr. Hakel regarding the connections between the

IUD, PID, scarring, and infertility. Kemp timely appealed.

On appeal, Kemp argues that her injury is the infertility,

which she did not discover until April of 1993. Kemp asserts

that she exercised reasonable diligence in discovering the

infertility because she relied upon her physician’s advice not to

seek the diagnostic procedures until she had attempted conception

for twelve to eighteen months. Kemp maintains that because she

acted with reasonable diligence, her claim is timely under

Mississippi’s discovery rule.

Searle counters that Kemp’s claim is barred because she had

only one cause of action that accrued when she discovered that

her IUD had caused her an injury, namely the PID. Thus, Kemp’s

diligence in discovering her infertility is irrelevant. In the

alternative, Searle insists that Kemp did not act with reasonable

diligence because she waited too long before undergoing the

diagnostic procedures.

We hold that Kemp had a single cause of action that accrued

when she discovered the PID and its source, which was more than

six years before filing suit. Thus, we affirm.

II. STANDARDS OF REVIEW

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. Texas Medical Ass’n v. Aetna Life Ins. Co., 80 F.3d

153, 156 (5th Cir. 1996). Summary judgment is proper "if the

pleadings, depositions, answers to interrogatories, and

4 admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."

FED. R. CIV. P. 56(c). Questions of statutory interpretation are

questions of law and thus reviewed de novo. Estate of Bonner v.

United States, 84 F.3d 196, 197 (5th Cir. 1996).

Because this is a diversity action, we must apply

Mississippi substantive law. Erie R.R. v. Tompkins, 304 U.S. 64

(1938). In doing so, we must reach the decision we think the

Mississippi Supreme Court would reach. Jackson v. Johns-Manville

Sales Corp., 781 F.2d 394, 396-97 (5th Cir.) (en banc), cert.

denied, 478 U.S. 1022 (1986). “We are emphatically not permitted

to do merely what we think best; we must do that which we think

the Mississippi Supreme Court would deem best.” Id. at 397.

III. ANALYSIS

Kemp asks us to hold that a fact issue exists as to whether

she acted with reasonable diligence in discovering her

infertility. Before we can determine this, we must first

establish whether Kemp has a cause of action for infertility.

Kemp recognizes that she could have sued based on her PID and

that the statute of limitations has run on that claim. The

question then is whether Kemp’s infertility gives rise to an

additional cause of action. Because we hold that Kemp had only

one cause of action and that the infertility does not give rise

to a new cause of action, we do not reach the question whether

5 Kemp acted with reasonable diligence in discovering her

infertility and we express no opinion on the matter.

A.

Searle urges us to follow cases from several other circuits

that have addressed this specific issue. For example, the First

Circuit, in Gagnon v. G.D. Searle & Co., 889 F.2d 340 (1st Cir.

1989), discussed the statute of limitations for a woman who had a

Cu-7 IUD and began experiencing cramping, infections, fever,

etc., and eventually developed PID, leading to a total

hysterectomy. Id. at 340. The court held that the statute of

limitations began running when she first began experiencing

symptoms that she suspected were caused by the IUD, not when she

knew the full extent of her injuries, and therefore her suit for

injuries including the hysterectomy was barred. Id. at 343.

Similarly, the Second, Fourth, Seventh, and Eighth Circuits held

that the relevant statute of limitations began to run for a

plaintiff seeking to recover for injury caused by an IUD when she

discovered that she had PID and that the PID was caused by an

IUD. A plaintiff in such a situation cannot split her cause of

action into one for PID and one for infertility, even though she

did not realize the full extent of her injuries –– specifically,

her infertility –– until years later. See Gnazzo v. G.D. Searle

& Co., 973 F.2d 136, 137-39 (2d Cir. 1992); Granahan v. Pearson,

782 F.2d 30, 31-33 (4th Cir. 1985); Miller v. A.H. Robins Co.,

766 F.2d 1102, 1103, 1105-06 (7th Cir. 1985); Klempka v. G.D.

Searle & Co., 963 F.2d 168 (8th Cir. 1992); cf. Cacciacarne v.

6 G.D. Searle & Co., 908 F.2d 95 (6th Cir. 1990) (holding that

plaintiff’s cause of action did not accrue until she discovered

her infertility, even though the IUD had previously caused the

plaintiff difficulties, because the injury was not certain and

clear enough to trigger limitations before the definitive

diagnosis). While factually similar and persuasive, these cases

are legally distinguishable because each is based upon the law of

the particular state at issue, not Mississippi law. See Gagnon,

889 F.2d at 341 (New Hampshire); Gnazzo, 973 F.2d at 138

(Connecticut); Granahan, 782 F.2d at 31 (Virginia); Cacciacarne,

908 F.2d at 96 (Ohio); Miller, 766 F.2d at 1103 (Indiana);

Klempka, 963 F.2d at 169 (Minnesota).

B.

Thus, the key inquiry in the case at bar is the law of

Mississippi. The Mississippi Code section applicable to this

case provides as follows:

(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

MISS. CODE ANN. § 15-1-49(2). In Owens-Illinois, Inc. v. Edwards,

573 So. 2d 704, 709 (Miss. 1990), the Mississippi Supreme Court

sitting en banc held that section 15-1-49 applies to products

liability cases. The court held that “[t]he cause of action

accrues and the limitations period begins to run when the

plaintiff can reasonably be held to have knowledge of the injury

or disease.” Id. Furthermore, Mississippi has long followed the

7 general rule that “a tortious act gives rise to but a single

cause of action.” McDonald v. Southeastern Fidelity Ins. Co.,

606 So. 2d 1061, 1064 (Miss. 1992). Kemp concedes that she could

have sued Searle in December of 1985 when she knew of her PID and

that Searle’s IUD had caused her PID. Because infertility is

merely a sequela of PID and not a separate disease, the tortious

act that led to Kemp’s PID was the same tortious act that led to

her infertility. Thus, we see no reason to believe that

Mississippi would depart from its well-settled rule that a

tortious act gives rise to only one cause of action, and that the

statute of limitations applicable to the single cause of action

in this case began to run no later than December of 1985 with

Kemp’s conversation with Dr. Hakel.

C.

None of the Mississippi cases Kemp cites dictates a contrary

result. Kemp cites many discovery rule cases such as Williams v.

Kilgore, 618 So. 2d 51 (Miss. 1992), and Smith v. Sanders, 485

So. 2d 1051 (Miss. 1986). However, these cases merely reiterate

that the general rule of section 15-1-49 that the time of the

discovery of the injury is also the time when the statute of

limitations begins to run. Williams, 618 So. 2d at 55; Smith,

485 So. 2d at 1052. We agree: the time that Kemp discovered her

PID is crucial. These cases do not even suggest a departure from

the well-settled rule that Kemp had only one cause of action for

her injuries from the IUD.

8 Relying on Schiro v. American Tobacco Co., 611 So. 2d 962,

965 (Miss. 1992), Kemp argues that the statute of limitations as

to her infertility could not have begun to run until the

infertility was diagnosed. In Schiro, plaintiff Schiro sued four

cigarette manufacturers in products liability, alleging that

their unreasonably dangerous and unsafe cigarettes caused her to

develop cancer. Id. at 962-63. Schiro began smoking in 1943.

Id. at 963. She developed emphysema in the late 1960s or early

1970s, and she stopped smoking in 1977. Id. In April of 1981,

she began coughing up blood, and at this time Schiro believed she

had cancer, even though her doctor assured her she did not. Id.

She coughed up blood again in November of 1981. Id. On December

27, 1981, a small mass was detected in Schiro’s chest, which was

determined two days later to be lung disease. Id. On January

24, 1982, the mass was diagnosed as cancer. Id. On January 22,

1988, Schiro filed suit. Id. The defendants filed for summary

judgment, arguing that Schiro’s suit accrued at least in April

1981 when Schiro began coughing up blood or December 29, 1981,

when the lung mass was discovered, and the lower court granted

the motion. Id. at 963-64. The Mississippi Supreme Court

disagreed. The court held that the cause of action accrued with

the cancer diagnosis. Id. at 965. The court determined that

Schiro’s belief that she might have cancer was insufficient to

trigger limitations because “[a] belief is nothing more than an

opinion or a person’s view of something unsubstantiated by

proof.” Id.

9 While facially similar to the case at bar, Schiro does not

command the result Kemp desires. While the cancer diagnosis was

necessary to confirm that Schiro’s disease was in fact cancer,

Kemp had a diagnosis of her disease –– she was diagnosed with PID

in August of 1984. Because infertility is not a separate and

distinct disease but an aftereffect of the PID, a later diagnosis

of infertility is irrelevant to the commencement of the statute

of limitations.

Kemp asserts that it is “well settled Mississippi law that

the gravity of the injury is a significant factor to be

considered in determining whether a plaintiff has brought his or

her action within the applicable limitations period.” For

example, in Struthers Wells-Gulfport, Inc. v. Bradford, 304

So. 2d 645 (Miss. 1974), plaintiff Bradford was bitten by what

was believed to be a poisonous brown recluse spider in December

of 1968. Id. at 646. She immediately began developing

complications, including a kidney infection. Id. Bradford had

intermittent problems over the next few years, and in February of

1972, she was diagnosed with a vasculitis infection in a blood

vessel. Id. at 646-47. Although her employer’s insurance had

paid most of her medical bills, after the vasculitis infection

diagnosis, Bradford applied for disability benefits. Id. at 647.

The employer argued that she was barred by the two-year

limitations period for making such claims because she knew of her

injury from the spider in 1968. Id. at 648. The court,

construing the workers’ compensation statute, held that the

10 employer was not required to pay disability compensation until

“it became reasonably apparent that she had a disability arising

[from the spider bite]” and concluded that until she was

diagnosed with vasculitis, Bradford had no injury serious enough

to qualify for disability benefits. Id. at 649. Bradford is

distinguishable from the case at bar because Kemp had a

compensable injury with the PID, even though she may not have

realized that she was infertile until much later.

Kemp also points to Pittman v. Hodges, 462 So. 2d 330 (Miss.

1984), to support her argument that the gravity of the injury

must be considered in determining when limitations begins. In

Pittman, the plaintiff’s suit was filed two years and seven days

after the defendant dentist last saw the plaintiff for care

relating to a wisdom tooth extraction. Id. at 331. On this last

visit as well as during previous visits, the plaintiff had

complained of numbness, and the defendant told him that the

numbness was only temporary and could last for as little as a few

works or as long as a year. Id. at 332. The numbness turned out

to be permanent. Id. at 333. The dentist argued that the

statute of limitations began when the plaintiff discovered the

numbness. Id. The court disagreed, stating that “the essence of

the injury” was the permanent nature of the injury, which could

not have been discovered until the period of temporary numbness

had passed, and thus limitations began when that temporary

numbness period expired. Id. Relying on Pittman, Kemp argues

that she did not discover the essence of her injury until she was

11 diagnosed with infertility and thus limitations did not begin to

run until that discovery. However, Pittman does not apply

because the plaintiff did not even know he had been injured until

he discovered that the temporary numbness was really permanent.

Kemp knew she was injured when she was diagnosed with PID. That

she later discovered an aftereffect of that injury does not

change the fact that she knew she was injured.

Kemp insists that because PID and infertility are not

synonymous, limitations for a cause of action for infertility

should be measured on a different timeline than an action for

PID. We in no way mean to suggest that PID and infertility are

synonymous. However, they are both the product of the same chain

of causality: the IUD caused the PID, and the PID caused the

infertility. Cases in other contexts, such as asbestos, have

distinguished between two separate, distinct diseases and two

interrelated conditions.2 See, e.g., Wilson v. Johns-Manville

Sales Corp., 684 F.2d 111 (D.C. Cir. 1982). In the case at bar,

there is but one disease –– PID; the infertility is not a

separate disease, but a complication of the PID. We express no

opinion with regard to a situation involving a later-manifesting

disease that is totally separate and distinct from the initial

2 For example, following exposure to asbestos, an individual can contract asbestosis or mesothelioma. These diseases can emerge years apart from each other. The asbestosis is related to the mesothelioma only in the sense that both are caused by exposure to asbestos. However, mesothelioma develops independently of asbestosis; it is possible to have mesothelioma without ever having asbestosis, and vice versa. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 113, 117 (D.C. Cir. 1982).

12 injury. We simply hold that the district court was correct in

concluding that Kemp’s injury was the PID and that the statute of

limitations began to run when she knew of her injury and its

cause, not when she later discovered all of the consequences and

complications of the PID.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM.