Moss v. Pacquing

455 N.W.2d 339, 183 Mich. App. 574
CourtMichigan Court of Appeals
DecidedMay 7, 1990
DocketDocket 110936, 111741
StatusPublished
Cited by20 cases

This text of 455 N.W.2d 339 (Moss v. Pacquing) 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
Moss v. Pacquing, 455 N.W.2d 339, 183 Mich. App. 574 (Mich. Ct. App. 1990).

Opinions

Murphy, P.J.

In this products liability and medical malpractice action arising out of the use of the Cu-7 intrauterine device, we are asked to determine whether the trial court erred by granting summary disposition on the ground that plaintiff Tammy Moss’ claims were barred by the statute of limitations. MCR 2.116(C)(7). The court, having concluded that the statute of limitations barred Tammy Moss’ claim, further granted defendant summary disposition on plaintiff Dennis Moss’ claim for loss of consortium for failure to state a claim. MCR 2.116(C)(8). We reverse.

On April 22, 1979, following the birth of her daughter, plaintiff Tammy Moss came to the office of her obstetrician-gynecologist, Artemio Pacquing, M.D., and explained that she had become pregnant while on oral contraceptives and wanted a more [577]*577reliable form of contraception. Dr. Pacquing informed plaintiff that the Copper-7 or Cu-7 iud was effective and inserted the device that day. He also explained that she might experience cramping and heavier menstrual periods. The iud was manufactured by defendant Searle.

Plaintiff used the iud for over two years. She experienced longer and heavier menstrual periods, but had no other complaints.

On November 16, 1981, plaintiff returned to Dr. Pacquing complaining of severe cramping, vaginal discharge, and a high fever. Suspecting a pelvic infection, Dr. Pacquing prescribed a vaginal cream and antibiotics.

The following day plaintiff presented herself at the emergency room of St. Joseph’s Hospital in Pontiac with complaints of a high fever and urinary retention. Following treatment, she was discharged with a final diagnosis of acute cystitis, an inflammation of the urinary bladder.

On February 5, 1982, plaintiff returned to Dr. Pacquing and requested removal of the iud. Dr. Pacquing was unable to locate the iud. On February 19, 1982, Dr. Pacquing was again unsuccessful in locating the device. Plaintiff was therefore required to undergo surgery for removal of the iud. This surgery took place on March 2, 1982. Plaintiff was not told that she had suffered any permanent injury as a result of the iud.

For approximately one year following removal of the iud, Tammy Moss used oral contraceptives. She then ceased using contraceptives and attempted to become pregnant. When the couple’s attempts proved unsuccessful, Tammy and Dennis Moss both underwent a series of fertility tests. Dennis Moss’ sperm count was within the normal limits. However, tests performed at the Lapeer Community Hospital in March, 1985, disclosed [578]*578that Tammy Moss’ two Fallopian tubes were infected or occluded.

On June 25, 1985, Tammy Moss underwent a diagnostic laparoscopy which revealed the need for major corrective surgery to remove the blockage from both Fallopian tubes. In August of 1985, a bilateral salpingostomy1 and lysis of adhesions were performed. Following surgery, plaintiff continued her efforts to become pregnant but was still unable to do so.

Plaintiffs claim that it was not until August, 1986, when they read a magazine article, that they first realized that the iud was capable of causing permanent sterility and that defendants Searle and Pacquing had negligently failed to warn of this danger. On September 30, 1986, plaintiffs filed their complaint for products liability and medical malpractice.

The six-count complaint alleged that Searle knowingly provided an unsafe and defective product, failed to warn of known risks, breached express and implied warranties, and fraudulently represented the product’s safety. The complaint also alleged that Dr. Pacquing committed medical malpractice by failing to warn plaintiff of the risks associated with the use of the iud and that plaintiff Tammy Moss had become sterile as a result of the wrongful acts of defendants. A loss of consortium claim was filed by Dennis Moss. The complaint specifically alleged that plaintiffs filed their complaint within six months after discovering their cause of action.

Pursuant to MCR 2.116(C)(7), defendants moved for summary disposition on the ground that plaintiffs’ claims were barred by the statute of limita[579]*579tions. Plaintiffs responded to the motions, asserting that their cause of action for medical malpractice was not time-barred because the complaint was filed within six months after plaintiffs discovered the malpractice. Plaintiffs contended that the claim for products liability was filed within three years from the time that the claim accrued in compliance with MCL 600.5805(9); MSA 27A.5805(9). Plaintiffs argued that determination of when they first knew or should have known of their cause of action was a question of fact to be determined by a jury rather than by summary disposition.

In considering a motion for summary disposition under MCR 2.116(C)(7), a court must consider any affidavits, pleadings, depositions, admissions, and documentary evidence then filed or submitted by the parties. MCR 2.116(G)(5). In this case, all of plaintiffs’ well-pled factual allegations are accepted as true and are to be construed most favorably to plaintiffs. Wakefield v Hills, 173 Mich App 215, 220; 433 NW2d 410 (1988). If a material factual question is raised by the evidence considered, summary disposition is inappropriate. Levinson v Sklar, 181 Mich App 693, 697; 449 NW2d 682 (1989); Hazelton v Lustig, 164 Mich App 164, 167; 416 NW2d 373 (1987). The trial court in this case, in addition to the pleadings, was presented with plaintiff Tammy Moss’ deposition and an affidavit filed by Tammy Moss in opposition to the summary disposition motion.

Currently, a conflict exists among panels of this Court regarding whether a statute of limitations issue must be decided by a jury, Wakefield, supra; Leyson v Krause, 92 Mich App 759, 764-765; 285 NW2d 451 (1979), or by the judge as a preliminary question. Blana v Spezia, 155 Mich App 348, 354; 399 NW2d 511 (1986). If decided by a judge as a [580]*580preliminary question, there must be an evidentiary hearing and opinion with full findings of fact and conclusions of law. Levinson, supra; Palenkas v William Beaumont Hosp, 162 Mich App 271, 284-285; 412 NW2d 709 (1987), aff'd in part, rev’d in part, this issue not addressed, 432 Mich 527 (1989).

Even if we agreed with Blana, which we do not, we would reverse since the trial court failed to comply with the requirement of a full evidentiary hearing. However, we reject Blana and would follow the Wakeñeld-Leyson line of cases.

MCR 2.116(I)(3) provides in pertinent part:

A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court .... If the motion is based on subrule (C)(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury. [Emphasis added.]

At the time our Supreme Court adopted this court rule, there existed a long line of cases which held that, where there is a dispute concerning the date when a plaintiff discovered, or reasonably should have discovered, his cause of action, this factual determination is to be made by a jury. Winfrey v Farhat,

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Moss v. Pacquing
455 N.W.2d 339 (Michigan Court of Appeals, 1990)

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Bluebook (online)
455 N.W.2d 339, 183 Mich. App. 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moss-v-pacquing-michctapp-1990.