O'brien, Ann C. v. Eli Lilly & Company E. R. Squibb & Sons, Inc. The Upjohn Company, and Winthrop Company, Inc

668 F.2d 704

• Court: Court of Appeals for the Third Circuit
• Decided: January 21, 1982
• Docket: 81-1291
• Status: Published

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question for decision in this appeal from a summary judgment in favor of four defendant pharmaceutical manufacturers in a diversity action is whether the district court properly applied the Pennsylvania “discovery rule,” which modifies the personal injury statute of limitations. The district court determined that, if she had exercised due diligence, appellant Ann O’Brien reasonably could have discovered in February 1976 that her mother had taken Diethylstilbestrol (commonly known as Stilbestrol or DES) during her 1956 pregnancy and that the drug arguably caused appellant’s subsequent cancer. She did not file her complaint until December 31, 1979; accordingly, the district court concluded that the suit was barred by the two-year statute of limitations. Appellant contends that whether she possessed the knowledge necessary in 1976 to start the running of the statute was a jury question. Conceding that this is a close case, we nevertheless find no genuine issue of material fact and affirm the grant of summary judgment.

I.

The relevant Pennsylvania statute of limitations for personal injury actions states: The following actions and proceedings must be commenced within two years:

(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

42 Pa.Cons.Stat.Ann. § 5524(2). The district court applied this statute in granting appellees’ motion for summary judgment. Appellant’s warranty claims implicate a four-year statute and are discussed below in Part IV of this opinion.

Statutes of limitation express the legislatures’ public policy judgments of how long a plaintiff may delay suit without being unfair to a defendant. Overfield v. Pennroad Corp., 42 F.Supp. 586, 614 (E.D.Pa.1941), aff’d, 146 F.2d 889 (3d Cir. 1944). “These and similar legislative enactments are expressive of the feeling' of mankind that where there are wrongs to be redressed, they should be redressed without unreasonable delay, and where there are rights to be enforced, they should be enforced without unreasonable delay.” Ulakovic v. Metropolitan Life Ins. Co., 339 Pa. 571, 576, 16 A.2d 41, 43 (1940).¹

Nevertheless, Pennsylvania courts have recognized the potential harshness inherent in a rigid application of the statute and long ago carved out an exception: ignorance of an injury may delay the running of the statute of limitations. Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895). The judicially created “discovery rule” announced in Lewey has been expanded to except the plaintiff who is aware of his injury but not its cause. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). Federal courts in this circuit have helped to refine the precept. Our district courts have noted that the rule delays the accrual of a cause of action from the time of a defendant’s tortious conduct to a time when the injury and its cause become known or knowable, Gemignani v. Philadelphia Phillies Nat’l League Baseball Club, 287 F.Supp. 465, 467 (E.D.Pa.1967), that it is a rule intended to benefit plaintiffs in that it avoids potential injustice caused where an injury is “inherently unknowable” at the time of a defendant’s conduct, Landis v. Delp, 327 F.Supp. 766, 768 (E.D.Pa.1971); Prince v. Trustees of the Univ. of Pennsylvania, 282 F.Supp. 832, 840 (E.D.Pa.1968); Daniels v. Beryllium Corp., 227 F.Supp. 591, 595 (E.D.Pa. 1964), and that the legislatively declared desirability for repose and judicial administrative expediency will not be unduly affected by the small number of “inherently unknowable” injuries, Prince v. Trustees, 282 F.Supp. at 840. Moreover, this court, in Bayless v. Philadelphia Nat’l League Club, 579 F.2d 37 (3d Cir. 1978), and DaMato v. Turner & Newall, Ltd., 651 F.2d 908 (3d Cir. 1981) (per curiam), adopted the reasoning and the precept announced by our colleague A. Leon Higginbotham, Jr. (then a district judge) in Gemignani: in a personal injury action under Pennsylvania law, the period of limitations begins to run “from the time the plaintiff, through the exercise of reasonable diligence, should have learned both the facts in question and that those facts bore some causative relationship to the injury.”² Gemignani, 287 F.Supp. at 467; see Bayless, 579 F.2d at 40. In further refining the test, Pennsylvania courts have developed a precise analysis defining the elements of the discovery rule. Coyne v. Porter-Hayden Co., 286 Pa.Super. 1, 5-6, 428 A.2d 208, 209-10 (1981); Anthony v. Koppers Co., 284 Pa.Super. 81, 95-97, 425 A.2d 428, 436 (1980), rev’d, other grounds, 496 Pa. 119, 436 A.2d 181 (1981); Volpe v. Johns-Manville Corp., 4 P.C.R. 290, 295 (C.P.Phila. County 1980). We will discuss this analysis in detail in Part III of this opinion.

We use the discovery rule to measure the facts adduced in the summary judgment proceedings below. We are not presented with a question of choice or interpretation of the precept; rather the dispute is over the application of the precept to the facts presented to the district court. We will review the facts in detail and in the light most favorable to the appellant, essentially as set forth in her brief.

II.

In July 1956, Mary Ann O’Brien, appellant’s mother, consulted Dr. Kenneth L. Cooper, a gynecologist and obstetrician, concerning her pregnancy with appellant Ann O’Brien, who was born on February 18, 1957. Because Mrs. O’Brien’s previous pregnancy had terminated in a miscarriage, Dr. Cooper on July 26, 1956, prescribed 25 milligrams of Stilbestrol. In her deposition Mrs. O’Brien recalled that Dr. Cooper had prescribed some medication during this pregnancy, but she did not know the specific kind. She did recall taking a “red pill” or “white pill” during her pregnancy with appellant. App. at 102-03. Mrs. O’Brien testified: “I took whatever he prescribed and never questioned ... it, I simply took it, if he prescribed it, I took it.” Id. at 102.

During the summer of 1971, when she was fourteen years old, appellant experienced unusual vaginal bleeding. In September of that year, upon examination by a gynecologist, Dr. Carl Dorko, and following a recommendation by her pediatrician, Dr. Frank Procopio, she was admitted to the Harrisburg Hospital for diagnosis. Dr. Dorko discovered a tumor and performed a biopsy. In addition to the pathology report prepared by the Harrisburg Hospital pathologist, the biopsy slides were sent for evaluation to Dr. Robert Scully, a pathologist at Massachusetts General Hospital.

Dr. Scully responded that the tumor “fits into the category of clear cell carcinoma occurring in young women that we have found to be frequently associated with maternal Stilbestrol administration.” App. at 178. Dr. Dorko informed Mr. and Mrs. O’Brien of the biopsy results and referred their daughter for treatment to Dr. John Mikuta, a gynecologist and oncologist at the Hospital of the University of Pennsylvania. There, in October 1971, appellant underwent a radical hysterectomy, lymph node dissection, and partial vaginectomy. She received radiation therapy for six weeks.

Appellant’s parents requested that she not be told that her tumor was malignant. All doctors participating in her diagnosis and treatment cooperated with that wish and her parents did not themselves tell her of the malignancy.

Shortly before appellant’s surgery, in the fall of 1971, her mother met with Dr. Mikuta. During this meeting, Dr. Mikuta asked Mrs. O’Brien whether she had ever taken diethylstilbestrol to prevent a miscarriage. Mrs. O’Brien denied taking the medication. App. at 114, 122-23.

In 1971, Dr. Scully and Dr. Arthur Herbst of Massachusetts General Hospital reported in the medical literature an association between maternal ingestion of diethylstilbestrol during pregnancy and clear cell adenocarcinoma in the female offspring of that pregnancy. As a means of centralizing data obtained from such cases, Drs. Herbst and Scully established a Registry for Adenocarcinoma of the Genital Tract in Young Women. Dr. Mikuta was familiar with the work of Drs. Herbst and Scully. He discussed appellant’s case with Dr. Herbst as well as with Drs. Cooper and Dorko in late 1971 and early 1972.

In October 1971, Dr. Herbst wrote to Dr. Dorko, enclosing two questionnaire forms pertaining to appellant, her treatment, medical history, and family history. Following a telephone conversation with Mrs. O’Brien in January 1972, Dr. Dorko sent her one of the forms asking her to “fill out as much of it as you can.” App. at 186-87. The form included the question, “Did mother take hormones during pregnancy?” Mrs. O’Brien has stated, in an affidavit, that the answer “No” on the form is in her handwriting and was placed there in late January 1972. App. at 186. The form also asked for “Other medications taken during pregnancy (name, dosage, and when taken).” Diethylstilbestrol is not among the medicines Mrs. O’Brien listed in response.

Shortly before her regular appointment with Dr. Mikuta in February 1976, appellant read an article in a January 1976 issue of Newsweek.3 At this time she knew that her mother had suffered a miscarriage before appellant was born. App. at 157. She also knew that Dr. Cooper was her mother’s obstetrician. Id. at 156.

In her deposition, Ann recollected the article and her subsequent discussion with Dr. Mikuta:

A. Well, the article talked about a girl whose mother'had taken DES and the girl had cancer. And the article talked about the procedure, the surgical procedure . . . that she had gone through. And what happened to her after that and she died.

And everything about the procedure that she had gone through — or almost everything — was what I had gone through. And it was all too close, the cancer, and this was my concern, not DES at that point. And I was quite upset with Doctor Mikuta, I was very adamant that I wanted an answer from him whether I had cancer or not. And he said that I did.

Q. Did you ask him whether it was in any way DES related?

A. Yes. And he said that it pointed to that but they were not sure.

Q. It pointed to DES but they were not sure?

A. Not sure. And we continued to talk about cancer.

Q. Did he tell you why it pointed to DES?

A. No.

Q. Did he tell you why they were not sure?

A. No.

Q. Did Doctor Mikuta indicate to you why he responded that the cancer pointed to DES?

A. Because of the type of cancer that it is or was.

Q. Did he say that to you?

A. Yes.

Q. Did he ever say to you that it pointed to DES because your mother had taken it?

A. I don’t think so.

App. at 147 — 48, 156-57.

In April 1976, Ann O’Brien confronted her mother about concealing the truth about the tumor. She was very upset with her parents and dissatisfied with Mrs. O’Brien’s explanation for withholding the information. During the course of that confrontation, appellant also asked her mother whether she had taken DES during her pregnancy. Her mother denied taking the drug. Although Mrs. O’Brien does not remember her daughter asking prior to September 1979 whether she had taken DES, appellant’s recollection of the 1976 conversation is very clear. App. at 149-51.

Three years later, in the summer of 1979, appellant became aware of additional magazine and newspaper articles on the relationship of DES ingestion by pregnant women to the incidence of cancer in female offspring. Although the record does not set forth the content or text of these articles, she testified that again she was struck by the similarity between her own medical history and the type of cancer and treatment described. App. at 153-54.

In September 1979, appellant again asked her mother if she had taken DES while pregnant, and Mrs. O’Brien again replied that she had not. This time, however, appellant insisted that her mother call Drs. Cooper and Mikuta in order to determine if in fact she had taken the drug. According to appellant, both doctors confirmed that it had been prescribed for Mrs. O’Brien. Mrs. O’Brien also contacted the Kolb Pharmacy in an attempt to identify the manufacturer of the diethylstilbestrol she had purchased there, but found that any records the pharmacy might have maintained were destroyed in the Hurricane “Agnes” flood of 1972. Thereafter, on December 31, 1979, appellant filed her complaint against four leading manufacturers of DES.

III.

In DaMato v. Turner & Newall, Ltd., 651 F.2d 908 (3d Cir. 1981)(per curiam), we noted Pennsylvania’s acceptance of a standard for defining the level of knowledge a plaintiff must have before the period of limitations will start to run. See Anthony v. Koppers Co., 284 Pa.Super. 81, 95-97, 425 A.2d 428, 436 (1980), rev’d, other grounds, 496 Pa. 119, 436 A.2d 181 (1981). As set forth by Pennsylvania Common Pleas Court Judge Takiff in Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phila.C.P.1980), the standard has three elements:

With the question of “reasonableness” as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury, (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.

4 P.C.R. at 295.

Measuring the instant facts against this three-part standard, we are persuaded that in 1976, when Ann O’Brien was told that she had had cancer, she acquired knowledge of her injury; and that when she read the Newsweek article and consulted with Dr. Mikuta she acquired knowledge from which, by the exercise of due diligence, she could have discovered both the alleged operative cause of her injury — her mother’s ingestion of DES — and the causal relationship between the operative conduct and her injury.

Appellant concedes the first element, knowledge of injury by 1976, but she contends that there was sufficient controversy regarding the second and third elements to require submission to a factfinder the issue of when she could have acquired information about the causal relation to DES by the exercise of due diligence. We do not agree. There is no dispute to be resolved by a factfinder. The question is solely whether from the facts presented a jury could reasonably conclude that appellant, if she had exercised due diligence, could not have discovered the operative cause of her injury and the causal relationship in 1976.

Appellant argues that because she did not know that her mother had taken DES until September 1979, she did not acquire actual knowledge of the cause of her injury until then. The acquisition of actual knowledge, however, is not the trigger for the running of the limitations period under Pennsylvania law. The correct inquiry, as appellant recognizes, is not whether she had actual knowledge of all three Volpe elements before 1979, but “whether [she] should reasonably be charged with that knowledge before that time.” Brief for Appellant at 19. We held in Bayless that the statute runs “from the time the plaintiff, through the exercise of due diligence, should have learned” the facts and their relationship. 579 F.2d at 40. The policy enunciated by Judge Takiff in Volpe is also applicable:

Plaintiff’s ignorance of his injury or its cause may render knowledge of his cause of action unknown and unknowable. But once he possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim. Postponing the commencement of the limitations period until he has actually done so would nullify the justifiable rationale of the statute of limitations and permit the prosecution of stale claims.

Volpe, 4 P.C.R. at 303-04. Although Volpe dealt with the relationship of the discovery rule to ignorance of a legal cause of action, the same considerations are present in a case in which a plaintiff has facts sufficient to prompt an investigation but does not investigate.

The flaw in appellant’s case is her failure to present evidence sufficient to permit a jury to find that she could not reasonably have possessed “the salient facts concerning the occurrence of [her] injury and who or what caused it” before 1979. The facts recited in Part II of this opinion demonstrate that in 1976 appellant knew the facts necessary to complete her investigation: (1) that her mother had miscarried prior to appellant’s birth, (2) that appellant’s medical history had a marked similarity to the medical history of other young women whose cancers had been linked to DES ingestion by mothers who had previously miscarried, (3) that her doctors believed her medical history pointed in the direction of DES, and (4) the identity of her mother’s obstetrician.

The district court’s conclusion that as a matter of law appellant unreasonably delayed investigating is underscored by the similarity of appellant’s knowledge in 1976 to her knowledge in 1979. The record shows only two historical events of 1979 supplementing the basic factual matrix of 1976: (1) appellant read some additional articles on DES and (2) she insisted that her mother ask Dr. Cooper if he had prescribed DES to her during her pregnancy. The record does not indicate that appellant acquired knowledge from her reading about the DES-cancer relationship in 1979 that she had not previously acquired in 1976. Indeed, the entire record on this is most scanty:

A. There seemed to be quite a few articles on DES in the [Washington] Post and magazines. . .. and it just seemed like things were really showing up in publications. And I was reading more about it.

App. at 153. The record as to the new information gained from Drs. Cooper and Mikuta in 1979 ⁴ also compels our conclusion that the crucial information on causation was available upon reasonable inquiry in 1976. The 1976 Newsweek article was specific and presented a case history that paralleled appellant’s in many ways. The record fails to show that the articles read by appellant after 1976 contained any new information about either the operative cause or the causal relationship between the operative conduct and the injury that was not contained in the 1976 Newsweek article. Similarly, appellant’s mother provided information in 1976 that, in effect, she merely repeated in 1979. When asked by her daughter in 1976, the mother denied having taken DES. When asked again in 1979, the mother persisted in the denial. Given the foregoing circumstances, there appears to be no persuasive' reason why appellant in 1976 could not, “through the exercise of due diligence,” have requested her mother to call Dr. Cooper then to learn “both the facts in question and that those facts bore some causative relationship to the injury.” See Bayless, 579 F.2d at 40.

The polestar of the Pennsylvania discovery rule is not a plaintiff’s actual acquisition of knowledge but whether the knowledge was known or, through the exercise of diligence, knowable to plaintiff. We agree with the district court that, as a matter of law, the crucial knowledge was knowable to the appellant in 1976 and could have been obtained through the exercise of due diligence. Therefore, its conclusion that the action is barred by the statute of limitations must be affirmed.

IV.

We need consider only one of appellant’s remaining contentions.⁵ In her complaint, appellant advanced a claim for breach of warranty. Under the Uniform Commercial Code, the statute of limitations period applicable to breach of warranty actions is four years. 13 Pa.Cons.Stat.Ann. § 2725; see also 42 Pa.Cons.Stat.Ann. § 5525(2). Thus, if characterized as a breach of warranty complaint, appellant’s action would not be barred if her cause of action were deemed to have accrued in 1976.⁶

Section 2725 provides in part:

(a) General rule. — An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

(b) Accrual of cause of action. — A cause of action accrues when, the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

Except for explicit warranties of future performance, the statute expressly rejects a discovery rule similar to the one that has been developed for personal injury actions. Applying the statute to the facts of this case, appellant’s cause of action accrued in 1956 or 1957 when Mrs.. O’Brien purchased the drug. Only if the warranty explicitly extended to future performance would appellant’s cause of action be deemed to have accrued at the date of discoverability. Nothing in the record provides a satisfactory description of the warranties allegedly made or even specifies whether these warranties were express or implied. In opposing appellees’ motion for summary judgment, appellant failed to present evidence that the warranty extended to future performance. • Although appellant cited the four-year statute of limitations and asserted that her claim was made within four years of discovery of the cause and causal relationship, this was insufficient to block the grant of summary judgment. As we recently stated in Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981), “a party resisting the motion [for summary judgment] cannot expect to rely merely upon bare assertions, conclusory allegations, or suspicions.” See Fed.R.Civ.P. 56(e). Appellant presented no evidence that would bring her action within the statute upon which she relies. We conclude, therefore, that the district court did not err in granting appellees’ motion for summary judgment.

V.

The judgment of the district court will be affirmed.

1 . The Supreme Court of Pennsylvania in Ulakovic set forth the following explanation of the policy behind Pennsylvania statutes of limitation:

It has always been the policy of the law to expedite litigation and not to encourage long delays. From this fact arose the various statutes of limitations, and the reasons why the law is unfavorable to delayed litigation are self-evident. If any person has a right which he wishes enforced, he should enforce it promptly. The person against whom the right is to be enforced might be greatly prejudiced by plaintiff’s delay. Witnesses disappear or remove to distant parts and the entire aspect of the parties on both sides may change with the lapse of time. In Waring Bros. v. Pennsylvania R. R. Co., 176 Pa. 172, 35 A. 106, 107, this court, in an opinion by Justice Green, quoted with approval what Chief Justice Black said in Huffman’s Heirs v. Stiger, 1 Pittsb.Leg.J. 185: “No honest man would be willing to live in a country where the law would require him to prove the actual falsehood and injustice of every stale claim which malice or cupidity might dig up against him. Hence we have statutes of limitation, and, in cases to which they do not apply, we have presumptions which are equally strong.”

339 Pa. at 575, 16 A.2d at 42-43.

2 . Gemignani was an action brought under the Pennsylvania Survival Act, 20 Pa.Stat.Ann. § 320.601 (reenacted as 42 Pa.Cons.Stat.Ann. § 8302). In denying a motion for summary judgment, Judge Higginbotham adopted the discovery rule rationale developed in personal injury and property damage cases. See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959). Recently the Supreme Court of Pennsylvania distinguished survival actions from personal injury actions. It held that because survival actions merely permit a decedent’s personal representative to enforce the cause of action that accrued before the decedent’s death, where the knowledge of the causal connection between the injury and its cause is not discovered until after the decedent’s death, no action has accrued that can be preserved under the survival statutes. Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181 (1981). The Pennsylvania court expressly limited its decision to survival and wrongful death actions, id. at 124, 436 A.2d at 184; therefore, insofar as Judge Higginbotham’s discussion applies to personal injury actions, we continue to consider it persuasive.

3 . The article stated, in part:

For Grace Malloy, childbearing did not come easily. Although her first daughter was bom in 1946 without complications, a subsequent pregnancy ended in miscarriage. When during her next pregnancy she also showed signs of miscarrying, her doctor prescribed diethylstilbestrol (DES), a synthetic estrogen widely used in such cases at the time. A second daughter, Patti, was delivered in 1951. After yet another miscarriage, Mrs. Malloy became pregnant a fifth time and was again given DES. Another daughter, Marilyn, was born in 1956.

It was not until Patti and Marilyn were 19 and 14 that Grace Malloy read a newspaper report linking DES to a rare but deadly form of vaginal cancer in young women whose mothers had taken the hormone during pregnancy. Alarmed, Mrs. Malloy asked her doctor if there was anything to this “scare.” “You bet your life there is,” he replied. “You’d better get those girls in for an examination right away.” The result was bad news: Marilyn had vaginal cancer.

Malignancy: In an operation lasting more than twelve hours, Marilyn’s vagina and nearby lymph glands were removed; an artificial vagina was constructed using skin grafts from her legs. The doctors were hopeful that they had excised the entire malignancy, but a year later they discovered that the cancer had spread to one lung, the esophagus and the lining of the heart. Following another operation, Marilyn recovered sufficiently to resume her passion — horseback riding.

A short time later Marilyn’s condition worsened. She lost her appetite, suffered from nausea and severe headaches. Tests revealed that the cancer had reached her pituitary gland, and Marilyn underwent a grueling six week regimen of “whole head” radiation. When all her hair fell out as a result, she still refused to give in to self-pity and kept up an active social life, wearing a bright scarf over her head. But at night Mrs. Malloy could hear her daughter moaning in pain with the cancer that was continuing its lethal spread through her arms, legs, spine and brain. Soon she was blind and confined to a wheelchair. Marilyn died on May 26, 1974, two weeks before her high school class’s graduation.

Daughters of DES, Newsweek, January 26, 1976, at 66, reprinted in app. at 185.

4 . A. I called [my mother] and I told her that I had been reading the news articles and what I had read in them and how it sounded so similar to what I had gone through and what had happened to me and that I wanted to know from her again if she had taken that drug. And she said no, that she didn’t take it.

Q. Did you ask her to make any further inquiries?

A. Yes, I asked her to call [Drs.] Mikuta and Cooper about it.

Q. Did she do that, do you know?

A. Yes, she did, and [Dr.] Mikuta said she must have taken the drug because of the kind of cancer that I had.

Q. Did your mother report to you about what Dr. Cooper said?

A. That it had been — he told her that it had been indicated on his record that it was prescribed but she nevertheless does not remember taking the drug....

App. at 154-55.

5 . Appellant contends that the district court erred in not allowing her to amend her complaint to set forth a cause of action based on defendants’ market share. She also disputes a contention raised by defendants in their motion for summary judgment that the failure of her parents to institute timely suit during her minority bars the present action. Our disposition of her appeal on the statute of limitations issue obviates consideration of those contentions.

6 . Like the district court, for purposes of this discussion we assume that under 13 Pa.Cons. Stat.Ann. § 2318, appellant is a third party beneficiary of any warranty made to her parents. If she is not within the class of plaintiffs contemplated by § 2318, her action falls within the rule laid down by the Pennsylvania Superior Court in Salvador v. Atlantic Steel Boiler Co. (Salvador II), 256 Pa.Super. 330, 389 A.2d 1148 (1978), and recognized by this court in Hahn v. Atlantic Richfield Co., 625 F.2d 1095 (3d Cir. 1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816 (1981), that personal injury causes of action by non-purchaser third party beneficiaries are governed by the two-year personal injury statute of limitations and are deemed to accrue at the injury. Thus, if Salvador II and Hahn apply, appellant’s claim is barred for the reasons discussed in Part III of this opinion.