Pompa v. Burroughs Wellcome Co.

259 A.D.2d 18, 696 N.Y.S.2d 587, 1999 N.Y. App. Div. LEXIS 10709
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 21, 1999
StatusPublished
Cited by20 cases

This text of 259 A.D.2d 18 (Pompa v. Burroughs Wellcome Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pompa v. Burroughs Wellcome Co., 259 A.D.2d 18, 696 N.Y.S.2d 587, 1999 N.Y. App. Div. LEXIS 10709 (N.Y. Ct. App. 1999).

Opinion

OPINION OF THE COURT

Spain, J.

Beginning in the summer of 1987 and ending in January 1991, plaintiff Patrick M. Pompa (hereinafter plaintiff), was prescribed and consumed the drug acyclovir marketed under the trade name of Zovirax. In 1988 to 1989, plaintiff began experiencing certain symptoms, including anxiety, confusion, uncontrollable fits of rage and paranoia, as well as hallucina[20]*20tions. In March 1989 he suffered a severe psychotic experience resulting in an involuntary commitment to a psychiatric center, where he was diagnosed with a psychiatric disorder. Upon his release, plaintiff’s symptoms continued and he was arrested several times for acts of violence or threatened violence, and he was rehospitalized in other psychiatric centers. Plaintiff stopped taking Zovirax in January 1991. Plaintiff alleges that in August 1993 he first became aware of the possible link between Zovirax and his psychiatric problems after reading an article in a nonmedical magazine which reported that the drug’s potential side effects included paranoia, hallucinations, confusion, insomnia, fearfulness and depression.

In June 1994 plaintiff and his wife, derivatively, commenced this action against, inter alia, the manufacturer of Zovirax, defendant Burroughs Wellcome Company (hereinafter defendant), alleging causes of action for negligence, failure to warn, strict products liability, breach of warranty and fraud, and seeking punitive damages.1 Upon defendant’s motion, Supreme Court dismissed plaintiffs’ fraud and warranty claims and that portion of their punitive damages claim which asserted an independent cause of action. With respect to plaintiffs’ negligence and products liability claims, Supreme Court denied defendant’s motion, finding that material questions of fact exist as to whether these tort claims were timely interposed under CPLR 214-c (4). Defendant appeals from the denial of its summary judgment motion related to the tort claims.2

We affirm, determining that Supreme Court correctly concluded that material, triable questions of fact exist regarding whether plaintiffs’ tort claims were timely commenced under CPLR 214-c (4). As an initial matter, we agree with Supreme Court’s conclusion that under the prevailing liberal construction of pleadings (see, CPLR 3026), plaintiffs sufficiently pleaded — and notified defendant of — their reliance upon CPLR 214-c (4). Although it would certainly have been preferable for plaintiff to have expressly cited CPLR 214-c (4) and to have more closely paraphrased the requirement pertain[21]*21ing to the unavailability of technical, scientific or medical knowledge or information in the scientific and medical communities, rather than plaintiffs’ or plaintiff’s physicians’ subjective understanding or knowledge of the cause of plaintiff’s condition, plaintiffs’ amended complaint sufficiently alleged the unavailability of this information during the relevant time (see, CPLR 214-c [4]; see also, Matter of New York County DES Litig., 89 NY2d 506, 512-513, 515; Hedlund v County of Tompkins, 235 AD2d 980, 982-983, lv dismissed 89 NY2d 1086, lv denied 90 NY2d 808; cf., Krogmann v Glens Falls City School Dist., 231 AD2d 76, 78, lv dismissed 91 NY2d 848).

We now turn to defendant’s central contention that plaintiffs’ action is time-barred. Plaintiffs concede that this action for personal injury allegedly caused by latent effects of exposure to Zovirax — commenced in June 1994 — was not commenced within three years of the discovery of plaintiff’s injury — which plaintiffs allege occurred in January 1989 — and thus was not timely under either CPLR 214 or 214-c (2). Plaintiffs maintain, however, that the exception in CPLR 214-c (4) is applicable, to their tort claims as their discovery of the cause of plaintiff’s injury/symptoms was delayed until July or August 1993 due to the unavailability — prior to that time — of technical, scientific or medical knowledge necessary to demonstrate a potential causal link between plaintiff’s ingestion of this drug and his symptoms.

CPLR 214-c (4) provides a qualified exception to the general three-year limitations period (see, CPLR 214 [5]; 214-c [2]) in situations in which a plaintiff was aware of the injury itself but there was a justifiable delay in the discovery of its cause. Specifically, CPLR 214-c (4) affords plaintiffs an additional year after the discovery of the cause of the injury to commence an action, provided: (a) plaintiffs demonstrate that they discovered the injury’s cause within five years of discovering the injury, or when plaintiffs should have discovered the injury, (b) where, as here, the action was not timely commenced under CPLR 214-c (2) — i.e., it was not commenced within three years of the discovery of the injury — plaintiffs must allege and prove that “technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined” within the three-year period after the injury’s discovery, and (c) that CPLR 214-c (2) and (3) have otherwise been satisfied. As relevant to this appeal, the practical effect of this exception is to grant a plaintiff — whose claim is time-barred under subdivision (2) or [22]*22(3) — an additional year following discovery of the injury’s cause to commence an action, but only where plaintiff is able to prove that he or she discovered the injury’s cause in the next two years (i.e., within five years of the injury’s discovery) and that scientific information was not available to ascertain the injury’s cause within the three years after the injury’s discovery (see, Annunziato v City of New York, 224 AD2d 31, 38-39).

In moving for summary judgment dismissing plaintiffs’ tort claims, defendant contended that plaintiffs did not satisfy any of the requirements of CPLR 214-c (4). Plaintiffs having conceded that this action was not commenced within the general three-year limitations period (see, CPLR 214 [5]; 214-c [2]), the burden is on them to aver evidentiary facts showing that the exception embodied in the statute applies (see, CPLR 214-c [4]; see also, Sweet v Austin, 226 AD2d 942, 943, lv denied 88 NY2d 811; Annunziato v City of New York, supra, at 31, 38-39).

The threshold requirement of CPLR 214-c (4) is that plaintiffs must have discovered the cause of plaintiff’s injury within five years of discovering the injury. The parties dispute when plaintiff discovered or should have discovered his injury. Under CPLR 214-c, discovery of an injury occurs “when the injured party discovers the primary condition on which the claim is based” (Matter of New York County DES Litig., 89 NY2d 506, 509, 514, n 4, supra; accord, MRI Broadway Rental v United States Min. Prods. Co., 92 NY2d 421, 429; Whitney v Quaker Chem. Corp., 90 NY2d 845, 847; Scheidel v A.C. & S., Inc., 258 AD2d 751, 753, lv denied 93 NY2d 809), which may include being actually diagnosed as suffering from a particular disease (see, Sweeney v General Print., 210 AD2d 865, 866, lv denied 85 NY2d 808; see also, Hedlund v County of Tompkins, 235 AD2d 980, 983, supra; Krogmann v Glens Falls City School Dist., 231 AD2d 76, 78-79, supra). Notably, an injury refers to “an actual illness, physical condition or other similarly discover able objective manifestation of the damage [or

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Bluebook (online)
259 A.D.2d 18, 696 N.Y.S.2d 587, 1999 N.Y. App. Div. LEXIS 10709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pompa-v-burroughs-wellcome-co-nyappdiv-1999.