Steiner v. Ciba-Geigy Corp.

364 So. 2d 47, 1978 Fla. App. LEXIS 16970
CourtDistrict Court of Appeal of Florida
DecidedOctober 31, 1978
Docket77-2691
StatusPublished
Cited by28 cases

This text of 364 So. 2d 47 (Steiner v. Ciba-Geigy Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steiner v. Ciba-Geigy Corp., 364 So. 2d 47, 1978 Fla. App. LEXIS 16970 (Fla. Ct. App. 1978).

Opinion

364 So.2d 47 (1978)

Louis K. STEINER, Appellant,
v.
CIBA-GEIGY CORPORATION, Appellee.

No. 77-2691.

District Court of Appeal of Florida, Third District.

October 31, 1978.
Rehearing Denied December 6, 1978.

*48 Podhurst, Orseck & Parks and Michael Olin, Miami, for appellant.

Walton, Lantaff, Schroeder & Carson and Laurence A. Schroeder, Miami, for appellee.

Before PEARSON, BARKDULL and KEHOE, JJ.

PEARSON, Judge.

The plaintiff, Louis K. Steiner, appeals a summary final judgment for the defendant Ciba-Geigy Corporation. The controlling question presented is whether the trial court correctly determined that it appeared without genuine issue of material fact that the cause of action arose more than four years prior to the filing of the complaint. We hold that it conclusively appears from the evidentiary matters before the trial court on the motion for summary judgment that the "... facts giving rise to the cause of action were discovered or should have been discovered *49 with the exercise of due diligence ...[[1]]" more than four years prior to the filing of this cause, and the action was, therefore, barred by the Statute of Limitations, Section 95.11(3)(a) & (e), Florida Statutes (1977).[2]

The complaint charged the defendant with negligence, breach of express warranty, breach of implied warranty and strict liability on the ground that the plaintiff, at various times and pursuant to a physician's prescription, ingested a drug known as Tegretol manufactured by the defendant. It further alleged that as a proximate result of the ingestion of the drug, the plaintiff was substantially, if not totally, blinded. The defendant answered, pleading affirmative defenses, including the statute of limitations. Discovery proceeded and the defendant moved for a summary judgment on the basis of plaintiff's answers to interrogatories and the deposition of plaintiff. The trial court entered summary judgment and no other basis for the judgment is urged by the appellee other than that it appears without genuine issue of material fact that the defendant was entitled to a judgment as a matter of law because of plaintiff's failure to file the action within the four year period prescribed by Section 95.11(3)(a) & (e), Florida Statutes (1977).

The facts revealed upon discovery, viewed in the light most favorable to the plaintiff, are as follows:

Prior to March, 1971, Louis Steiner was in good health. On or about March 17, 1971, Mr. Steiner contracted herpes zoster — commonly known as shingles. His symptoms began as an itch and a rash on the upper portion of his lip and progressively worsened ultimately resulting in considerable pain on the entire left side of his face. He was treated by Dr. William Abelove, who told him that shingles affects the nerves. Mr. Steiner was hospitalized at Doctors Hospital for five days. He did not recall what medications he was given, although he did not believe those medications included Tegretol. He obtained minor relief during his first hospitalization.

After his release from the hospital in April, 1971, Mr. Steiner was treated by Dr. Sherif Shafey, a neurologist who had first seen him in the hospital. His condition was ultimately diagnosed as post-herpetic neuralgia, or post-zoster syndrome.

The pain continued, and on August 31, 1971, Dr. Shafey first prescribed Tegretol. At that time, he was also taking other drugs. Mr. Steiner took Tegretol until his next admission to the hospital on September 16, 1971. He stayed for five days, but did not know which drugs he was given in the hospital.

The first change in Mr. Steiner's eyesight occurred the second week in September, 1971. Just prior to his hospitalization, Mr. Steiner's right eye experienced what he called a "rising tide effect." That is, his loss of sight would proceed upwards from the bottom of his eye. Only the vision in his right eye was affected, and the neuralgia he was experiencing occurred only on the left side of his face. Mr. Steiner told *50 Dr. Shafey of his vision problem while he was in the hospital. Shafey advised him to see an ophthalmologist upon his discharge. The condition continued after that discharge until only a glimmer of light was visible over the top of his right eye. He saw Dr. Warren Lieberman, an ophthalmologist. Dr. Lieberman did not name Mr. Steiner's ailment, but prescribed a drug called Decadron.

Dr. Lieberman told Mr. Steiner that with medication he hoped Mr. Steiner would be able to recover his sight. His sight, in fact, did improve.

Mr. Steiner next took Tegretol in April, 1972, again upon Dr. Shafey's prescription. Mr. Steiner took Tegretol for four or five days and noted a vision problem in his left eye. He described the vision problems with his left eye as being like a jigsaw puzzle with pieces missing.

Mr. Steiner returned to Dr. Lieberman in May, 1972, and was told by Dr. Lieberman that he was suffering from "optic neuritis." Dr. Lieberman decided the situation was serious and sent Mr. Steiner to the Bascom-Palmer Eye Clinic to see Dr. Joel Glaser, who confirmed the diagnosis of optic neuritis. He told Mr. Steiner that the problem was quite serious. Dr. Glaser advised Mr. Steiner that he wanted to wait a few days before beginning treatment. Before treatment began, however, both eyes worsened. Mr. Steiner's vision never improved. On August 30, 1972, Mr. Steiner expressed to Dr. Ross Davis, whom he had consulted for his neuralgia, that it appeared to him that his vision seemed to decrease at about the same times he was taking Tegretol. He recalled that he "... just got to wondering, is this coincidence or what?" He felt that "[s]omething was doing it," and stated, "... it seemed that there was a temporal relationship, I guess."

Tegretol was gain prescribed in September, 1972, by Dr. Shafey, who was still treating the plaintiff's post-herpetic neuralgia. Mr. Steiner did not complete this prescription but discontinued it after only four to five days. He took the Tegretol in very small amounts and his visual acuity decreased but then improved when he stopped taking Tegretol. He did this twice and confirmed for himself that there was a relationship between his loss of eyesight and the taking of Tegretol. This action against the manufacturer of Tegretol was filed January 12, 1977.

Appellant presents three points. The first urges that there is a genuine issue of material fact concerning the time that he knew, or should have known, of the cause of his injury and, therefore, that summary judgment is precluded. The second urges that the facts on the record were not sufficient in 1972 to show that he knew, or should have known, the cause of his injury. Third, it is urged that the summary judgment should be reversed as being premature in that further discovery should have been permitted prior to determination of the statute of limitations issue.

We will deal with the first two points together. The decision of the Supreme Court of Florida in Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976), appears to us to govern in this case. In Nardone, the Supreme Court dealt with a certified question from the United States Court of Appeals, Fifth Circuit, in a medical malpractice action. The question concerned the commencement of the period of limitations, as follows:

"`I. In a medical malpractice case does the period of limitation (F.S.A. 95.11(4)) commence:
(a) As to the parents and legal guardians of the incompetent minor in their own right

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364 So. 2d 47, 1978 Fla. App. LEXIS 16970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steiner-v-ciba-geigy-corp-fladistctapp-1978.